McNair v. Williams

• Court: Superior Court of Delaware
• Decided: November 30, 2020
• Docket: N19C-06-084 CLS
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHAYANA MCNAIR, ) ) Plaintiff, ) ) v. ) ) C.A. No. N19C-06-084 CLS KHALIL WILLIAMS, and ) ANTHONY M. TURNER ) ) Defendant. ) ) )

Date Submitted: August 28, 2020 Date Decided: November 30, 2020

Upon Defendants’ Motion for Summary Judgment DENIED.

Upon Plaintiff’s Motion to Extend Discovery Deadlines GRANTED.

Order

Gary S. Nitsche, Esquire, Weik Nitsche & Dougherty LLC, Wilmington, Delaware, Attorney for Plaintiff.

Robert T. Graney, Esquire, Graney, Chrissinger & Baumberger Law Offices, Wilmington, Delaware, Attorney for Defendant Khalil Williams.

David C. Malatesta, Jr., Esquire, Kent & McBride, Wilmington, Delaware, Attorney for Defendant Anthony Turner.

SCOTT, J. Before the Court is Defendants’ Motion for Summary Judgment and

Plaintiff’s Motion to Extend Discovery Deadlines. For the following reasons, the

Defendants’ Motion is DENIED and Plaintiff’s Motion is GRANTED.

BACKGROUND

Plaintiff Shayana McNair (“Ms. McNair”) was a passenger in Mr. Williams’

vehicle when she allegedly incurred personal injuries related to a motor vehicle

accident on May 7, 2018. On June 11, 2019, Ms. McNair initiated this suit by filing

a Complaint against Defendants Khalil Williams (“Mr. Williams”) and Anthony M.

Turner (“Mr. Turner”).1 On December 11, 2019, this Court entered a Trial

Scheduling Order and scheduled a three-day trial to take place on April 14, 2021.

Ms. McNair’s expert deadline was set for February 7, 2020. On September

25, 2019, Ms. McNair produced a “Narrative Report” from Dr. Damon Cary (“Dr.

Cary”). It is unclear whether Ms. McNair’s “narrative report” is an expert report,

however Ms. McNair has stated that she produced the “narrative report” in her Rule

3h document production.2 The Court has not received a copy of Dr. Cary’s Narrative

Report.

On July 15, 2020, after the close of discovery, Mr. Williams filed a Motion

for Summary Judgment against Ms. McNair for Ms. McNair’s failure to identify any

1 Collectively, the “Defendants.” 2 Pl.’s Resp. to Def.’s Mot. For Summ. J. at p. 1.

1 experts by February 7, 2020 deadline. On July 23, 2020, Mr. Turner joined Mr.

Williams in his Motion for Summary Judgment. On July 31, 2020, Ms. McNair filed

a Motion to Extend the Discovery Deadlines. On August 12, 2020, Mr. Williams

filed a Response to Ms. McNair’s Motion to Extend the Discovery Deadlines. On

August 18, 2020, this Court reserved decision and stated that the Court would issue

its decision with the decision for the pending Motion for Summary Judgment. On

August 28, 2020, Ms. McNair filed her Response to Mr. Williams’ Motion for

Summary Judgment.

STANDARD OF REVIEW

Under Superior Court Civil Procedure Rule 56, summary judgment is proper

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.3 Summary judgment will not be granted if material facts

are in dispute or if “it seems desirable to inquire more thoroughly into the facts to

clarify the application of the law to the circumstances.”4

The Court considers all facts in a light most favorable to the non-moving

party.5 In a Motion for Summary Judgment, the moving party bears the initial burden

3 Super. Ct. Civ. R. 56(c). 4 Infante v. Horizon Servs., Inc., 2019 WL 3992101, at *1 (Del. Super. Aug. 23, 2019). 5 Id.

2 of showing that there are no material issues of fact.6 If the moving party makes this

showing, then the burden shifts to the nonmoving party to show that there are

material issues of fact.7

PARTIES’ ASSERTIONS

A. Mr. Williams’ Motion for Summary Judgment

Mr. Williams moves for summary judgment “on the ground that [Ms. McNair]

has not produced evidence the support the essential elements of the allegations in

her Complaint.”8

Mr. Williams contends that, because Dr. Cary allegedly does not hold an

active medical license, Dr. Cary is not a competent medical expert and precluded

from testifying at trial. Notably, Mr. Williams uses no case law to support this

contention. However, Mr. Williams does not stop here. Mr. Williams takes it one

step further and states that, since Dr. Cary is not a competent medical expert, Ms.

McNair has not identified a medical expert to establish proximate cause and, and a

result, fails to make a prima facie case. In this statement, Mr. Williams implies here

that a medical expert, in a personal injury matter arising from an automobile

6 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 7 Id. at 681. 8 Def.’s Mot. for Summ. J. at paragraph 1.

3 accident, must hold an active medical license to testify as to matters of proximate

causation at trial.

B. Ms. McNair’s Response

Ms. McNair submits that Mr. Williams’ Motion for Summary Judgment is

premature and requests, pursuant to Superior Court Civil Rule 16, that the

Scheduling Order be amended to accommodate further development of the record.9

Ms. McNair states that the reason for her Motion to Extend the Discovery

Deadlines “is due to [Ms. McNair’s] additional treatment with Dr. Lingenfelter at

First State Orthopedics.”10

Regarding the ability of Dr. Cary’s ability to testify as to proximate causation,

Ms. McNair claims that Mr. Williams’ assertion is misleading because he confuses

Dr. Cary’s license to practice medicine and his controlled substance license. Ms.

McNair states that “one can still practice medicine without a controlled substance

license.”11 Moreover, Ms. McNair claims that the evidence supporting Mr.

Williams’ claim is contradictory because, although his controlled substance license

indicates that his license is expired, the expiration date is listed as June 30, 2021.

Last, Ms. McNair states that her “treatment with Dr. Cary and the narrative report

9 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 2. 10 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 2. 11 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 3.

4 authored by Dr. Cary was [created] while Dr. Cary ha[d] an active medical

license.”12

DISCUSSION

A. Motion for Summary Judgment

Rule 56(c) mandates the granting of summary judgment “against a party who

fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and one which that party will bear the burden of proof at trial.”13

Whether Dr. Cary, Ms. McNair’s medical expert, is qualified to testify as an

expert witness concerns a material issue that this Court will approach closer to trial.

It is unclear whether Dr. Cary is permanently suspended from practicing medicine.

However, whether Dr. Cary has a license to practice medicine is not determinative

of his ability to testify in this suit because an expert witness needs to only show

qualification by knowledge, skill, experience, training, or education.14

B. Motion for Extension of Discovery Deadlines

Trial is scheduled for April 14, 2021, but it is possible that this trial may be

rescheduled for a later date due to COVID-19. Parties are to confer and submit an

12 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 4. 13 Manucci v. The Stop’n’Shop Companies, Inc., 1989 WL 48587, at *4 (Del. Super.). 14 D.R.E. 702.

5 amended Scheduling Order to permit Ms. McNair a reasonable amount of time to

identify experts and submit any necessary expert reports.

CONCLUSION

For the forgoing reasons, Defendants’ Motion for Summary Judgment is

DENIED and Ms. McNair’s Motion to Extend Discovery Deadlines is GRANTED.

IT IS SO ORDERED.

The Honorable Calvin L. Scott, Jr.