Watunya v. Siena

• Court: Superior Court of Delaware
• Decided: August 27, 2014
• Docket: 12C-02-118
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE CHARLES E. BUTLER NEW CASTLE COUNTY COURTHOUSE JUDGE 500 NORTH KING STREET Suite 10400 WILMINGTON, DE 19801 PHONE: (302) 255-0656 FAX: (302) 255-2274 August 27, 2014

Leo J. Boyle, Esquire 5197 W. Woodmill Drive, Suite 26 Woodmill Corporate Center Wilmington, DE 19808

Danielle K. Yearick, Esquire Tybout Redfearn & Pell 750 Shipyard Drive Wilmington, DE 19899-2092

Erin K. Radulski, Esquire The Law Office of Dawn L. Becker Mellon Bank Center, Suite 725 919 Market Street Wilmington, DE 19801

Re: Watunya v. Siena, et al. C.A. No. N12C-02-118 CEB Upon Consideration of Defendant State Farm’s Motion in Limine to Exclude the Proposed Testimony of Plaintiff’s Medical Experts. GRANTED.

Dear Counsel:

Before me is a motion filed by defendant State Farm to exclude the proposed

expert testimony of Plaintiff’s expert witnesses, to wit: Drs. Bodenstab, Palma,

Fallorina-Rubio, and Guarino. Apparently all of these witnesses, at one time or

1 another, treated the plaintiff. The basis for this motion is that although they were all

identified as “experts” in answer to interrogatories, none provided expert reports or

otherwise explained the basis for their expert opinions so that the defense can

prepare for their testimony in court. Apparently the expectation that they would

testify at trial was first revealed in the pretrial stipulation filed with the Court.

Plaintiff responds that he need not produce expert “reports” because the

experts were all identified in the answer to the interrogatories and the substance of

their opinions are adequately conveyed in the medical records provided in

discovery.

Plaintiff did provide an expert report by Dr. Bruce Grossinger, D.O. in

discovery. That report is not in controversy and defendant’s motion is not therefore

“outcome determinative” as plaintiff apparently has sufficient ammunition in the

single expert report to get to a jury. Thus these additional experts are treating

doctors who noted in their records that plaintiff was being treated for injuries from

an auto accident.

To the extent Plaintiff believes they were under no duty to provide expert

reports as to those witnesses they now propose to call at trial, the argument is not

well taken. As the Court said in Duncan v. Newton & Sons Co. 1 and endorsed by

1 2006 WL 2329378 at *6 (Del. Super. July 27, 2006).

2 the Delaware Supreme Court in Sammons v. Doctors for Emergency Servs., P.A.; 2

This is contrary to the scheduling order and this Court's practice. Plaintiff was to identify her experts and provide their reports as to their expert opinions. Then, Defendants would be on notice of the bases for the expert opinions, and, pursuant to the scheduling order, respond in kind as to their experts and supply the bases for their opinions by way of a report. It is not reasonable to require Defendants' counsel to go on a wild goose chase with Plaintiff's experts or to depose Plaintiff's experts without the benefit of having the opinions and the medical or scientific reasoning for those opinions.

The problem with Plaintiff’s general designation of the four doctors as expert

witnesses along with, in effect, a “see medical records” in their interrogatories is that

“see medical records” falls far short of explaining the specific opinions of the

experts or the basis for those opinions. In the field of personal injury litigation, an

“expert report” is a term of art, well understood by all parties and the Court. It

clearly designates a particular expert – usually a physician – and explains the basis

for the opinion, a chronology of prior treatment and a prognosis for future care, if

any. Moreover, while many may have opinions – experts and otherwise – only

experts identified as such with the filing of a report are understood by the parties to

be “testifiers” – those with opinions that a party seeks to share with the jury. The

medical records produced in discovery are little more than notes of meetings with

the Plaintiff with some notation of his physical complaints. They are not “expert

reports” and are not prepared with that purpose in mind. They do not put

2 913 A.2d 519, 529 (Del. 2006). 3 defendants on notice as to the basis for an expert opinion or as to what expert, if any,

they should consult for a contrary opinion.

One can quickly surmise that Plaintiff is well aware of the procedure for

designating an expert and providing a report: they did just that with respect to Dr.

Grossinger. It is thus a bit ironic that Plaintiff, having fairly led Defendants to

believe that Dr. Grossinger was their one and only expert to be designated as a

testifier, now identifies four more testifiers, with no expert reports upon which to be

deposed or even prepare for trial without their depositions. We might see it all as

some sort of oversight were it not for the clear designation of Dr. Grossinger by

Plaintiff. In light of Grossinger’s designation, however, it is difficult to reconcile

Plaintiff’s position.

We are aware that the Court has a good bit of discretion when it comes to the

allowance of expert witnesses and the Court will exercise its discretion here to

disallow these four witnesses who did not file expert reports and thus did not fairly

give Defendants notice that they would be offering testimony at trial.

Defendant State Farm’s Motion in Limine to Exclude the Proposed

Testimony of Plaintiff’s Medical Experts is hereby GRANTED.

4 IT IS SO ORDERED.

Sincerely,

/s/ Charles E. Butler

Charles E. Butler