Opinion
C. A. No. 04C-01-151.
Submitted: February 25, 2008, March 12, 2008.
Decided: April 17, 2008.
Upon Consideration of Plaintiff's Motion to Dismiss Defendant Carl Abramowicz: Denied.
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.
Jeffrey Austin, Esquire, of Elzufon, Austin, Reardon, Taylor Mondell, P.A., on behalf of Halina Abramowicz as Executrix of the Estate of Carl Abramowicz, M.D. Admitted for the limited purpose of the Motion to Dismiss Defendant Carl Abramowicz.
William J. Martin, Esquire, of Martin Lunger, P.A., Wilmington, Delaware, on behalf of Southern Delaware Imaging Associates, LLC. Admitted for the limited purpose of the Motion to Dismiss Defendant Carl Abramowicz.
MEMORANDUM OPINION
Introduction
This case is on remand from the Delaware Supreme Court. The issue of negligence was settled during the first trial and has not been overturned. The remaining issues are proximate cause and damages. The Court denies plaintiff's Motion to Dismiss, filed pursuant to Superior Court Civil Rule 41(a)(2), the estate of the defendant doctor, who passed away during the appeal process.
Parties' Contentions
Plaintiff argues that Dr. Abramowicz is no longer a necessary party "because it is an undisputed fact that Dr. Abramowicz' alleged and proven negligence is imputed to his employer, Southern Delaware Imaging, which is liable to the plaintiffs under the doctrine of respondeat superior." Further, plaintiff argues that Dr. Abramowicz' participation in a retrial is of "no consequence from an evidentiary standpoint." So, plaintiff argues, dismissal is appropriate because the presence of Dr. Abramowicz' widow will confuse the jury and create undue prejudice through sympathy for the widow Abramowicz.
D.I. 96 at ¶ 5.
Id.
Counsel for Southern Delaware Imaging Associates (both trial counsel and counsel appearing for this motion) oppose the motion. It provides several reasons in opposition of dismissal: (1) the amount of available insurance coverage will be reduced by one-half, (2) dismissal will expose the assets of the estate, (3) dismissal at this late stage would divide the interests of the defendants resulting in costly additional fact-finding and finally, (4) that plaintiff's reason for dismissal is tactical only and that concerns regarding confusion and prejudice can be cured by a jury instruction. Along the lines of the fourth argument, counsel for the defense also argued at oral argument that any undue prejudice faced by plaintiff in this action will merely be transferred to SDIA in an indemnification proceeding.
This argument was advanced by trial counsel, who represented both defendants, but was not adopted by counsel for the widow Abramowicz.
Plaintiff counters with several arguments, some of which appear to be in the alternative. First, plaintiff argues that SDIA does not have standing to object to dismissal where the plaintiff and the defendant doctor do not object to such dismissal. Second, that insurance availability would not be decreased because both defendants are covered by the same insurer and indemnity is available. In the alternative plaintiff argues that defendant SDIA has not moved to indemnify the defendant doctor so the assets of the estate are not exposed. Fourth, plaintiff argues that since it is too late for SDIA to assert an indemnification claim against the estate, so there is no prejudice to SDIA by dismissal.
Plaintiffs seek dismissal pursuant to Superior Court Civil Rule 41(a)(2) which provides that ". . . an action shall not be dismissed at the plaintiff's instance save upon order of the Court and upon such terms and conditions as the court deems proper . . ."
Plaintiff's motion to dismiss will be granted unless defendant demonstrates plain legal prejudice. Our Supreme Court has outlined the factors this Court is to consider in deciding such a motion: (1) the resources expended by defendant in preparing for trial, (2) plaintiff's actions in delaying prosecution, (3) plaintiff's explanation for its motion for dismissal and (4) whether defendant has moved for summary judgment. The Court has discretion to grant the motion.
Draper v. Gardner, 625 A.2d 859, 863 (Del. 1993).
Id. at 864.
Id. at 863.
At the outset, the Court notes that this case is distinct from other cases involving Rule 41(a)(2). Typically, the motivation of a plaintiff seeking dismissal under this Rule is so that it can pursue the claim in another jurisdiction. Here, plaintiff will pursue its claims in this Court. Also, the case is distinct in its procedural posture as the case has already been fully tried and appealed while other cases have not analyzed the application of this rule in the context of an appeal.
See Id.; ATT Wireless Services, Inc. v. Fed. Ins. Co., 2005 WL 2155695 (Del.Super.); ASX Inv. Corp. v. Newtown, 1994 WL 240697 (Del. Ch.); In Re Marriott Hotel Properties II Ltd. P'ship Unitholders Litig., 1997 WL 589028 (Del.Ch.).
In ATT Wireless Services, supra note 6, defendants filed an answer and motions to dismiss and while the Court was considering those motions, plaintiff filed its motion for dismissal pursuant to Rule 41(a)(2). In Draper, supra note 3, dismissal was sought shortly after the answer was filed and very little effort and expense had been expended by defendants. In In re Marriott, supra note 6, the case was still in its initial proceedings when plaintiff filed its Motion to Dismiss.
The Court now turns to Draper in analyzing the Motion to Dismiss. A is whether the defendant has expended considerable resources in this action. Considerable resources have been expended by trial counsel since this case has been in existence for nearly four years and has already been to trial and through appeal. During the course of the first trial, SDIA and Dr. Abramowicz presented a joint defense. Strategy for the first trial was likely shaped by this fact, and strategy for the second trial, which is limited to causation and damages, is also likely to be shaped by this fact.
Delaware courts have examined the resources expended and sought to determine whether they would be reproduced if dismissal under 41(a)(2) were granted. In this case, dismissal would open the possibility of additional litigation between the defendants on the coverage issue which is not before the Court. While that litigation may come to pass in any event, the Court is convinced that resources will not be saved by granting dismissal.
ATT Wireless, 2005 WL 2155695 at *4.
Draper requires the Court to consider plaintiff's actions in diligently prosecuting the action. There is no evidence of any delay on the part of plaintiff. Defendants do not make such an argument.
Third, the Court must consider plaintiff's explanation for its motion to dismiss. "It is not a bar to a court-granted dismissal that the plaintiff may obtain some tactical advantage thereby." In this instance, plaintiff seeks dismissal in order to minimize jury prejudice and confusion. The confusion plaintiff alleges is that Dr. Abramowicz' widow may be present at trial, confusing the jury on who was responsible for plaintiff's injuries. This case already has one party who is represented by a personal representative, and that is not alleged to have caused prejudice or confusion. Moreover, these concerns can be addressed through a jury instruction.
In Re Marriott Hotel Properties II Ltd. P'ship Unitholders Litig., 1997 WL 589028 at *6 (Del.Ch.) citing Wight Miller, § 2364 at 282-83.
Finally, the Draper decision instructs this Court to consider the procedural posture of the case. Here, the case has proceeded to trial and through the appeal process. The cases cited to by plaintiff are procedurally and factually distinct from this case. This is not a case where a complaint is filed, an answer has followed and shortly thereafter a dismissal is sought. The parties have expended considerable resources and proceeded strategically on the basis of both the doctor and his employer being named as defendants. Due to the advanced procedural posture and the waste of resources, the Court finds plain legal prejudice would result if plaintiff's motion is granted.
Conclusion
For the forgoing reasons, plaintiff's Motion to Dismiss defendant Abramowicz is DENIED.
IT IS SO ORDERED.
On February 4, 2008, this Court denied, in part, defendant's motion to reopen the record on remand. Defendant has filed a timely motion for reargument pursuant to Rule 59(e). For the reasons that follow, the motion is denied.
Barrow v. Abramowicz, 2008 WL 495703 (Del.Super.).
A motion for reargument will be denied unless the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision. "The manifest purpose of all Rule 59 motions is to afford the Trial Court an opportunity to correct errors prior to appeal." Such a motion "is not a device for raising new arguments or stringing out the length of time for making an argument."
McElroy v. Shell Petroleum, Inc., 618 A.2d 91 (Del. 1992). (citing Interim Health Care v. Fournier, 1994 Del. Ch. LEXIS 43).
Cummings v. Jimmy's Grille, Inc., 2000 WL 1211167, at *2 (Del.Super.) (quoting Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)).
Id. citing Murphy v. State Farm Ins. Co., 1997 WL 528252 (Del.Super.).
Defendant makes three arguments. First, that this Court failed to properly consider the Quimby decision when it determined that the retrial would be limited to that issue that was successfully appealed. Second, defendant argues that the Court's decision is "arbitrary" based upon the Coleman case and because a motion to reopen was granted in another case. Finally, defendant argues that reconsideration is warranted because the issue of reopening the record on remand is presently being briefed before the Delaware Supreme Court. The Court did not specifically address the two cases defendant cites to in the motion for reargument. The Court will address, as much as possible, the matter that defendant cites to which is presently being briefed to the Supreme Court.
Chrysler Corp. v. Quimby, 144 A.2d 123 (Del. 1958).
Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102 (Del. 2006); Defendant cites to the trial scheduling order in Lavelle v. St. Francis Hospital.
Wright v. Moore, No. 612, 2007.
The Court did not specifically cite to Quimby in its opinion. However, the Court was and is aware of that case and determined that, the issues of proximate cause and negligence are severable without prejudice to the parties. Plaintiff, in responding to this motion, appropriately points out that the jury's finding in this case makes it clear that the issues of negligence and proximate cause are severable. As previously stated, the issue of negligence was tried and not appealed, a limited retrial does not prejudice defendants.
Next defendant argues the Court's decision was arbitrary in balancing the factors at issue. To support this argument, defendant cites to Coleman v. Pricewaterhosue Coopers, LLC. That case involved an appeal specifically questioning the trial court's discovery rulings. Those rulings limited untimely evidence. The Delaware Supreme Court noted that "[t]he trial judge carefully considered and balanced the various factors relevant to his decision." The duty on the court is "to admit all relevant and material evidence with its duty to enforce standards of fairness and the [rules of the court]."
And, as noted above, whose exclusion was not appealed.
902 A.2d 1102 (Del. 2006).
Coleman, 902 A.2d at 1106.
Id. citing Concord Towers, Inc. v. Long, 348 A.2d 325 (Del. 1975).
In deciding defendant's motion to reopen, this Court stated:
"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."
Barrow, 2008 WL 495703 citing In re Melson, 1999 WL 160136 at *4 (Del. Ch) and Kahn v. Tremont Corp., 1997 WL 689488 (Del.Ch. 1997).
Coleman involved evidentiary questions before the trial court before the trial while the standard applied by this Court specifically addresses the issue of reopening the record. However, even under a Coleman analysis, the outcome is the same. As defendants well know, Dr. Kaye's testimony was sought after Dr. Krasnow's testimony was held inadmissible. The request to add Dr. Kaye was beyond the discovery deadline. Defendants did not appeal the exclusion. The evidence may be relevant but, after balancing the factors, it would be manifestly unfair to allow defendants to admit this previously excluded expert testimony. It was and remains untimely, particularly when notice and discovery schedules were at the core of the Supreme Court's remand. There will be unfair prejudice to plaintiff in the form of additional time and expense if the evidence is permitted at this stage of the proceedings.
Finally, defendant now presents the case of Wright v. Moore and notes that the Supreme Court has granted interlocutory review in a case "where the Trial Court refused to reopen discovery after a new trial was granted." The distinctions between this case and Wright are manifest upon review of the Supreme Court's Order granting interlocutory appeal. Wright involves the issue of plaintiff's additional evidence on continuing damages after plaintiff's successful appeal and remand. In this case, the Court has permitted defendant to take additional discovery on the issue of damages.
Moreover, this Court's decision is not "aribitrary" simply because, in another case, additional expert testimony was permitted after a hung jury.A hung jury implies that the jury had insufficient evidence upon which to base a conclusion, as such, the legal issues are distinct. Lavelle does not warrant a reconsideration of this issue.
See trial scheduling order in Lavelle v. St. Francis Hospital, attached to defendant's motion as Exhibit "A".
Defendant's Motion for Reargument is DENIED.
IT IS SO ORDERED.