Opinion
CA No. 00C-03-144-JEB.
Submitted: January 8, 2003.
Decided: May 30, 2003.
Upon Plaintiff's Motion for Reconsideration of the Court's Decision Granting Summary Judgment to Defendant Mark Collins.
Motion Denied.
Motion for Reinstatement of Mark Collins as a Defendant. Moot.
Appearances: John R. Padova, Esquire, Padova Lisi, Philadelphia, Pennsylvania, and James F. Kipp, Esquire, Trzuskowski Kipp Kelleher Pearce, P.A., Wilmington, Delaware. Attorneys for Plaintiffs.
Gilbert F. Shelsby, Esquire, Morgan Shelsby Leoni, Newark, Delaware. Attorney for Defendant Tadie Wakamatsu, M.D. Christian Singewald, Esquire, White and Williams, LLP, Wilmington, Delaware Attorney for Defendants Dr. Alpas and St. Francis Hospital.
Mason E. Turner, Esquire, Prickett Jones Elliott, Wilmington, Delaware. Attorney for Defendant Mark Collins, M.D.
OPINION
This is the Court's decision on Plaintiffs' motion for reconsideration of the Court's earlier decision granting Defendant Mark Collins' motion for summary judgment. For the reasons explained below, the motion is denied.
FACTS
On April 9, 1998, Defendant Tadaie Wakamatsu, M.D., performed a bilateral inguinal hernia operation on Plaintiff Frederick DeVries at St. Francis Hospital. Also in attendance at the operation were Defendants Mark Collins, M.D., and Abe Alpas, M.D. During the procedure, Mr. DeVries' left testicular artery was inadvertently severed. Dr. Wakamatsu removed the left testicle, and Mr. DeVries was released the same day. A few days later he returned to the hospital with pain and swelling in the right testicle, which also had to be removed because of inadequate blood flow and infection. Plaintiffs filed this action in March 2000, alleging that all three physicians were negligent during the April 9, 1998 herniorrhaphy.
Plaintiffs' medical expert, Kenneth Brayman, M.D., submitted his first report to Plaintiffs' counsel on May 29, 2001. In this report, Dr. Brayman attributed negligence only to Dr. Wakamatsu. Plaintiffs' counsel did not provide this report to the defense until March 11, 2002, when defense counsel requested it prior to the March 15 cut-off date for expert witness reports. On March 26, 2002, Dr. Collins filed for summary judgment because Plaintiffs had not offered any expert testimony indicating that Collins had breached the standard of care.
Dr. Collins' deposition was taken on April 3, 2002. Carol Dickerson, the scrub nurse at the operation, was deposed on June 4, 2002. The hearing on Collins' summary judgment motion, which was postponed several times at Plaintiff's request, was conducted on July 30, 2002. Plaintiffs provided no reports or deposition testimony that even suggested that Dr. Collins had breached the standard of care. For this reason, the Court found that no genuine issue of material fact existed and granted Collins' motion for summary judgment.
On November 18, 2002, Dr. Brayman wrote a report to supplement his earlier report and his deposition testimony, which was taken on September 23, 2002. In his supplemental report, Dr. Brayman stated that, based on Dr. Wakamatsu's deposition testimony that the artery had been severed by extensive use of retractors, all three doctors were negligent. Shortly after the filing of the supplemental report, Plaintiffs filed a Motion for Reconsideration of the Court's decision granting summary judgment to Dr. Collins.
DISCUSSION
The parties disagree as to whether Plaintiffs filed the motion under Rule 59 or under Rule 60. If it is a Rule 59 motion, as Defendant Collins argues, it was not filed within Rule 59's five-day jurisdictional time limit for motions for reargument. If it is a Rule 60 motion, as Plaintiffs argue, the issue of timeliness rests within the trial court's discretion. Because Plaintiffs argue that Dr. Brayman had more complete information when he wrote his supplemental report than when he wrote his original report, the Court will construe the motion under Rule 60.
Shremp v. Marvel, 405 A.2d 119 (Del. 1979).
To obtain relief from a judgment under Rule 60, Plaintiffs must show mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, voidness or satisfaction of the judgment. Plaintiffs argue that Dr. Brayman had incomplete information until sometime after the summary judgment hearing on July 30, 2002. To prevail on a claim of newly discovered evidence, a party must show that the new evidence could not in the exercise of due diligince have been discovered in time to file a motion for reargument under Rule 59. However, the depositions of Wakamatsu, Collins and Dickerson had all been taken prior to the hearing, and their statements are the basis for the opinions expressed in Dr. Brayman's supplemental report. In fact, Dr. Wakamatsu was deposed on November 20, 2001, and Brayman's opinions rest largely on his testimony. Plaintiffs have not shown or argued that they could not have obtained this information prior to the hearing.
Super.Ct.Civ.R. 60(b).
Furthermore, the supplemental report states that, if Dr. Collins had excessively pulled on the retractor, such pulling would have been a breach of the standard of care. There is no evidence from any source that Dr. Collins pulled the retractors at all, much less excessively. The evidence is that Dr. Collins was a first-year family practice resident who was observing the operation when Dr. Wakamatsu asked him to hold the retractors after they were put in place by Dr. Wakamatsu. As the Court stated at the conclusion of the summary judgment hearing, nothing in the record suggests that Dr. Collins breached the standard of care. In regard to the original report, the Court stated as follows:
[T]here is nothing in that report that suggests that a family practice resident, observing an operation — there's nothing with regard to the standard of care that would apply to a physician in that position, especially when the only evidence is that he was asked to hold the retractor by Dr. Wakamatsu.
Transcript of Summary Judgment Hearing (July 30, 2002) at 17.
Nothing has changed with the submission of Dr. Brayman's supplemental report. Dr. Brayman has added Dr. Collins to the list of allegedly negligent physicians, but he has done so using testimonial evidence that was available to him prior to the hearing.
CONCLUSION
Plaintiffs have not met their burden for obtaining relief from judgment under Rule 60, and their motion for reconsideration is therefore denied. This conclusion renders moot their motion to reinstate Dr. Collins as a defendant in this case.
A status conference is now scheduled for June 20, 2003 at 9:15 a.m.
It Is So ORDERED.