Opinion
C.A. No. 08C-04-055 JAP.
July 13, 2009.
Leo J. Boyle, Esquire, Leo J. Boyle, Attorney at Law, Wilmington, Delaware.
Anthony N. Forcina Jr., Esquire, Allstate Insurance, Wilmington, Delaware.
Dear Counsel:
In a June 26 Memorandum Opinion this Court struck Plaintiff's opening brief in support of a motion for additur or a new trial because that brief fell "far short of what this Court expects from Delaware lawyers." Plaintiff has filed a revised brief. Sadly her counsel has whiffed again.
In its Memorandum Opinion the Court required Plaintiff's counsel to attach a separate certification that he proofread the brief, which certification was attached to the revised brief. Despite the fact that counsel certified he proofread the brief, the document is filled with typographical and other errors, the sum total of which continues to show counsel's disregard for the Court. For example:
• In its memorandum opinion the Court castigated Plaintiff's counsel for failing to provide citations to three of the four cases to which he referred. In the revised brief, Plaintiff's counsel supplied the missing citations. All three citations are wrong. These errors are not merely citation format errors. Rather the page numbers provided are either incorrect or do not exist. In one citation counsel neglected to provide any page number at all. Moreover in his brief Plaintiff's counsel characterized these three cases as issuing from the Supreme Court when, in fact, they came out of this Court. The incorrect citations are of no great inconvenience to this Court because this time (pursuant to the Court's previous direction to counsel) the opinions were attached to the brief, but counsel's absence of care by failing to provide accurate citations manifests yet again his indifference to his obligations to the courts.
• There are numerous other mistakes that show lack of attention. The following excerpts are just examples to be found in Plaintiff's revised brief:
•• "He conducted an examination, were he found . . ."
•• "the radiologist report did feel that there was a disc herniation . . ."
•• "the award bares no relationship . . ."
The Court stated in its previous Memorandum Opinion that occasional typographical errors or other omissions can be easily overlooked, and if any of the above examples had appeared in an otherwise well done brief they would never have been the subject of judicial comment. But where, as here, they form part of a consistent theme of sloppiness and lack of attention, they are difficult to overlook.
These problems pale, however, in comparison with a glaring omission by Plaintiff's counsel. In the Court's June 26, 2009 Memorandum Opinion Plaintiff's counsel was directed to file a revised brief which shall, among other things:
1. Detail the amounts sought for medical expenses and describe where in the record evidence supporting those expenses can be found. Copies of trial exhibits upon which Plaintiff relies shall be attached.
This directive seems clear on its face. Yet if there was any doubt about its meaning, it was dispelled by another passage in the Court's memorandum opinion:
Plaintiff asserts that she is entitled to the cost of her Emergency Room visit as damages. Yet she never advises the Court of the amount of that cost or where evidentiary support for any such amount can be found in the record. Apparently Plaintiff expects the Court to sift through her exhibits until it comes upon a bill from the Emergency Room and then further expects the Court to scour the remaining bills to determine whether there are any additional bills, such as separate radiology bills, that might be related to the emergency room visit.
Although it is clear from Plaintiff's revised brief that she is still pursuing some medical expenses, her counsel made no attempt to comply with this Court's memorandum opinion. There is nary a word mentioned in the revised brief about the amount of the bills claimed or the specific bills for which Plaintiff claims she is entitled to be reimbursed. Not surprisingly no exhibits relating to claimed medical expenses are attached to the revised brief.
As a result of Plaintiff's omissions from the revised brief, the Defendant (and the Court, for that matter) are still left with no idea what expenses are being claimed. Although there is a strong preference for resolution of claims on the merits, the Court no longer harbors any hope that Plaintiff will provide the information essential to reaching that resolution. The Court is left with no choice but to deny Plaintiff's claims for medical expenses.
It is hereby ordered that Plaintiff's claims for medical expenses are DENIED. Defendant shall file a brief relating to Plaintiff's remaining claim for pain and suffering in accordance with the schedule previously ordered.