Opinion
C. A. No. 04C-01-151.
Submitted: December 12, 2007.
Decided: February 4, 2008.
Upon Consideration of Defendant's Motion to Reopen: DENIED, IN PART.
Richard A. Zappa, Esquire, of Young, Conaway, Stargatt Taylor, LLP on behalf of Plaintiffs.
Dennis D. Ferri and Amy A. Quinlan, Esquires, of Morris James, LLP on behalf of Defendant Carl Abramowicz, M.D. and Southern Delaware Imaging Associates, LLC.
MEMORANDUM OPINION
Introduction
This case is on remand after plaintiff's successful appeal to the Supreme Court. Defendants have moved to reopen the record on several issues: (1) to allow defendant to offer an additional expert whose testimony was barred at the initial trial, (2) to allow the defendant physician to testify on both causation and facts, and (3) to allow an updated deposition of plaintiff, Mrs. Barrow. After reviewing the moving papers and the mandate from the Supreme Court, the Court holds defendant is not permitted to submit the additional expert and the recorded testimony of the defendant physician, Dr. Abramowicz, will be limited to the facts only. The Court will hear oral argument on the limited issue of updating Mrs. Barrow's deposition.
Background
After a trial in which a jury found defendants negligent but not the proximate cause of Mr. Barrow's death, plaintiffs appealed. Two errors were cited; first, that this Court improperly prohibited plaintiff from calling a witness identified as an expert by the defense and second, that the defendant doctor was improperly permitted to give causation testimony at trial. The Supreme Court agreed with plaintiff on both issues. Defendant did not raise any issues on appeal. On remand, defendant seeks to reopen the record for several issues: (1) to introduce previously excluded expert testimony, (2) to permit defendant Abramowicz' causation testimony to be admitted, and (3) to take an updated deposition of Mrs. Barrow.
Discussion
The issues which were appealed by plaintiff relate to the issue of proximate causation only. As such, the Court agrees with plaintiff that the new trial will encompass the issues of proximate cause and damages only. Defendant did not appeal the question of negligence. On remand, this Court must proceed according to the Supreme Court's "mandate as well as the law of the case established on appeal." This includes any implicit determinations. The law of the case doctrine compels this Court to decide new issues in accordance with the Supreme Court's holding on appeal. There are three limited exceptions to the doctrine; that the law of the case is (1) clearly wrong, (2) would create an unjust result or (3) there are changed circumstances.
Cede Co. v. Technicolor, 884 A.2d 26, 38 (Del. 2005).
Id. citing Insur. Co. of Amer. v. Barker, 628 A.2d 38, 40 (Del. 1993).
Barker, 628 A.2d 38.
Barker, 628 A.2d 38 citing Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984).
Defendant cites to changed circumstances as basis for its motion to reopen. Defendant claims that plaintiffs now have adequate notice to prepare for Dr. Kaye and Dr. Abramowicz' testimony and that any changes in Mrs. Barrow's testimony are relevant for the issue of damages.
In deciding the motion to reopen, this Court has discretion. The Court considers the burden that reopening will place on the parties and the court, whether the evidence is newly discovered, and whether unfair prejudice will result from failing to reopen.
See In re Melson, 1999 WL 160136 at *4 (Del. Ch) and Kahn v. Tremont Corp., 1997 WL 689488 (Del.Ch. 1997).
Testimony of Dr. Kaye
After the Court disallowed the proffered opinion of Dr. Krasnow on the issue of causation, defendant sought to introduce the expert testimony of Dr. Kaye. In order to do so, defendant filed a motion to extend the discovery deadline arguing:
There is ample time between now and the new trial date of August 21, 2006 for the identification of an expert on behalf of the defendant's including ample time for plaintiff to depose that expert prior to trial.
Defendant's Motion to Extend, filed March 28, 2006.
The Court denied this motion and also denied defendant's motion to reargue. Defendant makes substantially the same argument regarding notice and prejudice when it now seeks to reopen the record on appeal. Defendant did not present the Court's decision to exclude Dr. Kaye as error to the Supreme Court. The Supreme Court's decision in this case makes clear that litigants are to be given ample notice and that this Court's deadlines must be met in the absence of good cause. This Court previously denied defendant's untimely request to identify Dr. Kaye, as such, the evidence cannot be described as newly discovered on appeal. There is also an additional burden to plaintiff in terms of cost and time.
Defendants complain that the new testimony is needed to "level the playing field since without it defendants would be left with testimony from only one live witness versus the multitude of plaintiffs' expert witnesses." But, the decision regarding how many, which, and what type of experts to identify was defendant's. The record will not now be reopened for that testimony.
Dr. Abramowicz' Testimony
The Supreme Court held that it was inappropriate for this Court to permit Defendant Abramowicz to testify regarding causation because it was not properly noticed to plaintiffs. The Court specifically pointed to the inconsistencies in the doctor's deposition and his trial testimony as prejudicing plaintiffs. Dr. Abramowicz has died during the appeal process. Defendant argues that since there is now notice to plaintiff, the spirit of the Supreme Court's decision would be upheld if this Court permits Dr. Abramowicz' causation testimony to be heard by a jury. However, Dr. Abramowicz can no longer be examined by plaintiffs regarding the inconsistencies in his testimony, as such, the same prejudice found by the Supreme Court remains. The Supreme Court has ruled that the previous trial gave plaintiffs an insufficient notice to examine Dr. Abramowicz. Permitting his testimony once again, when he cannot be cross-examined, would violate the mandate given to this Court. Plaintiffs may have notice, but the prejudice cannot be cured.
Updated Deposition of the Widow Barrow
While the Court initially denied oral argument on defendant's motion to reopen, upon further consideration of the papers the Court asks the parties for oral argument on this issue only. The specific issue concerning the Court is whether, based upon the claims set forth by plaintiff in the complaint, damages are limited in time to the death of death, or if they are continuing in nature.
Conclusion
Defendant's motion to reopen to admit the testimony of Dr. Kaye and the causation testimony of Dr. Abramowicz is DENIED. The Court will hear oral argument on the issue of the updated deposition.IT IS SO ORDERED.