Opinion
C.A. No. 06C-04-129-PLA.
Submitted: June 18, 2007.
Decided: June 19, 2007.
UPON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. GRANTED.
This 19th day of June, 2007, upon consideration of the motion for summary judgment filed by defendants Acme/Asco/Albertson Inc. ("Defendants"), it appears to the Court that:
See Docket 16. The Court notes that defense counsel filed this motion as a "Motion for Summary Judgment/Motion to Dismiss." While the Court is somewhat perplexed, a motion for summary judgment is nevertheless the appropriate motion in these circumstances and not a motion to dismiss.
1. Pro se plaintiff Rudolph V. Bailey, Sr. ("Bailey") initially brought this action in the Court of Common Pleas ("CCP") alleging that Defendants sold him contaminated apple juice which made him ill and caused him severe pain. The CCP judge dismissed the case and Bailey appealed to this Court, which reversed the CCP's decision. The case was subsequently transferred to this Court.
See Docket 1.
2. The matter entered arbitration, resulting in the arbitrator finding in favor of Defendants and against Bailey. Bailey appealed that decision. The Court then held a scheduling conference with the parties and entered a trial scheduling order consisting of the following discovery deadlines:
• Discovery Cut-Off: Discovery to be initiated such that it will be completed by May 15, 2007.
• Plaintiff's Expert Report (or Rule 26(b)(4) Disclosure) Deadline: March 30, 2007.
• Defendant's Expert Report (or Rule 26(b)(4) Disclosure) Deadline: May 1, 2007.
See Docket 2, 3, 10.
3. Defendants now contend they are entitled to summary judgment because Bailey has failed to identify and produce an expert report by the March 30, 2007 deadline. Defendants further point out that Bailey has not documented any compensable damages.
See Docket 16.
4. Bailey's response to the motion is, in effect, non-responsive. Bailey's brief does not address his failure to identify an expert. At oral argument, when asked by the Court whether he had an expert, Bailey responded that he had a "note" from his primary care physician. He also stated that he had a report from the emergency medical center he visited after the incident, but he could not remember the name of the doctor who treated him at the emergency center and that he was ultimately diagnosed only with constipation.
See Docket 17, 20.
5. When considering a motion for summary judgment, the Court's function is to examine the record to ascertain whether genuine issues of material fact exist and determine whether a party is entitled to judgment as a matter of law. Summary judgment will not be granted if, after viewing the record in a light most favorable to the non-moving party, there are material facts in dispute or if judgment as a matter of law is not appropriate. If, however, there are no material facts in dispute, and the moving party is entitled to judgment as a matter of law, summary judgment will be granted.
See SUPER. CT. CIV. R. 56; Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del.Super.Ct. 2005); Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973); Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
6. "In Delaware, in order to prevail in a negligence action, a plaintiff must prove by a preponderance of the evidence that the defendant's action breached a duty of care in a way that proximately caused injury to the plaintiff. With a claim for bodily injuries, the causal connection between the defendant's alleged negligent conduct and the plaintiff's alleged injury must be proven by the direct testimony of a competent medical expert."
Rayfield v. Power, 2003 WL 22873037, at *1 (Del. Dec. 2, 2003).
7. In this case, Bailey has failed to identify and provide a medical expert to render an opinion as to the "causal connection" between Defendants' alleged negligent conduct in selling the supposed contaminated juice and Bailey's injuries. Bailey can not, therefore, establish a prima facie element of his case. As such, Defendants are entitled to summary judgment.
8. Based on the foregoing, Defendants' motion for summary judgment is GRANTED. Bailey's remaining motions before the Court are hereby moot.
See Docket 18 ("Motion for Production of Records and Relief from Order"); Docket 19 ("Motion to Compel the Professional Who Performed Test on Apple Juice to Testify as Plaintiff's Hostile Witness").
IT IS SO ORDERED.