Opinion
C.A. No. 97C-12-020 JTV.
Submitted: May 13, 2003.
Decided: August 25, 2003.
Fred Barakat, Esq., Chadds Ford, Pennsylvania. Attorney for Plaintiffs.
Mason E. Turner, Esq., Prickett, Jones Elliott, Wilmington, Delaware. Attorney for Defendant Bayhealth and Hardy.
Susan List, Esq., Wilmington, Delaware. Attorney for Defendant Radnich.
Upon Consideration of Plaintifs' Motion For Relief From a Final Judgment Under Superior Court Civil Rule 60, DENIED.
ORDER
Upon consideration of the plaintiffs' motion for relief from a final judgment under Superior Court Civil Rule 60, the defendants' response, and the record of the case, it appears that:
1. This is a medical negligence case. At the conclusion of a two-week trial which was held in February and March of 2001, the jury returned a verdict in favor of the defendants. The plaintiffs filed a motion for a new trial which was denied. An appeal was then taken to the Delaware Supreme Court. On appeal, the plaintiffs stated a contention directed to the admissibility at trial of the testimony of Dr. Elizabeth Perlman, M.D. The Supreme Court, noting that the plaintiff never requested a Daubert hearing at trial, refused to consider that contention because it had not been fairly presented to the trial court and there was no basis for considering the claim as plain error. The plaintiffs have now filed a motion under Rule 60 asking this Court to set aside the judgment previously entered and order a new trial. The sole grounds asserted for relief under Rule 60 is the alleged inadmissibility of Dr. Perlman' s testimony under Daubert. The plaintiffs' contend that the admission of her testimony resulted in them not receiving a fair trial.
Supreme Court Rule 8.
2. The only part of Rule 60 which might be applicable is Rule 60(b)(6). Rule 60(b)(6) permits a court to grant relief from a judgment "for any other reason justifying relief." The standard of review for a motion under Rule 60(b)(6) is the "extraordinary circumstances" test. Before a court will grant relief from judgment, a party must first demonstrate the existence of "extraordinary circumstances." Absent a showing of extraordinary circumstances, the finality of a judgment should not be disturbed.
Bachtle v. Bachtle, 494 A.2d 1253, 1256 (Del. 1985).
Schremp v. Marvel, 405 A.2d 119 (Del. 1979); Dixon v. Delaware Olds, Inc., 405 A.2d 117 (Del. 1979); Jewel v. Division of Social Services, 401 A.2d 88 (Del. 1979).
3. Timothy Malafronti was born with severe birth defects and died at age four. The theory of the plaintiffs case was that the birth defects were caused by oxygen deprivation during delivery due to negligence on the part of the defendants. Dr. Perlman was called as a defense witness and testified that the birth defects were more likely caused by a viral infection. In their motion for relief from judgment, the plaintiffs contend that Dr. Perlman's testimony lacked a proper scientific foundation and was inadmissible under Daubert.
4. The plaintiffs did make certain objections to Dr. Perlman's testimony at trial. The objections were overruled. As mentioned above, the Supreme Court concluded that the argument which the plaintiffs now make was not fairly presented at trial. The plaintiffs respond to this point by saying that they were not given adequate notice that Dr. Perlman would offer an opinion on causation. They also contend that the objections which they did make at trial were intended to raise this issue.
5. The plaintiffs had ample opportunity, however, to articulate issues fully and completely prior to the finality of the judgment in this case, both at trial and in their motion for a new trial. The issue the plaintiffs now raise was not presented in
their motion for a new trial at all. Rule 60(b)(6) is not intended to provide relief for perceived trial errors which a party did not adequately raise at trial or in a post-trial motion for a new trial. The plaintiffs offer no authority to support their argument that Rule 60(b)(6) relief should be granted under circumstances such as those present here. The plaintiffs have not shown extraordinary circumstances for relief under Rule 60(b)(6).
6. A second reason for denying the motion flows from the fact that the Supreme Court has entered an order affirming the judgment. A refusal by the Supreme Court to hear an issue under Supreme Court Rule 8 is a form of disposition. Rule 60(b)(6) should not, and perhaps cannot, be used to relitigate issues which have been expressly or impliedly addressed in a Supreme Court order. In my opinion, this includes issues raised in an appeal and disposed of under Supreme Court Rule 8.
Gulf Coast Building and Supply Co. V International Brotherhood of Electrical Workers, Local No. 480, AFL-CIO, 460 F.2d 105 (5th Cir. 1972); Lapiczak v. Zaist, 54 F.R.D. 546 (D. Vt. 1972).
7. The plaintiffs motion for a new trial is DENIED.