Opinion
C.A. No.: N14C-12-149 FSS
03-10-2015
KATHLEEN JANSSEN individually, and as the Executrix of the Estate of JOHN H. JANSSEN, III, JOHN H. JANSSEN, IV, JOSEPH W. JANSSEN, heirs of JOHN H. JANSSEN, III, Plaintiffs, v. CHRISTIANA CARE HEALTH SYSTEM, INC., a Delaware corporation, Defendant.
ORDER
Upon Plaintiffs' Amended Affidavit of Merit - REJECTED.
1. On February 10, 2015, the court rejected Plaintiffs' original Affidavit of Merit "because it [did] not say whether the standard of care's breach caused Mr. Janssen's death."
2. The order also provided:
The court must be satisfied that the expert is prepared to meet the "but for" proximate cause standard. "If the expert believes
Defendants' negligence proximately caused [Plaintiff's] injuries, the affidavit should say so in simple, clear language." Otherwise, without a proper affidavit, this case may not go on.
3. On February 27, 2015, Plaintiffs submitted a new affidavit, which opined that Christiana Hospital's breaches of the standard of care "caused [Mr. Janssen] to have a severe abdominal hemorrhage and they were a direct cause of his death." (Emphasis in original.)
4. The fact, if it proves-out, that the breaches "were a direct cause" of Mr. Janssen's death does not mean that "but for" those breaches, Mr. Janssen would not have died. Again, Delaware is "but for," not a "substantial factor" jurisdiction. Accordingly, it remains unknown whether Plaintiff has an expert to opine about proximate cause in a court like this one.
5. While the court is drawing a fine distinction, it is real. Moreover, Plaintiffs' second failure to satisfy §6853, after the court's previous caution, raises a suspicion that Plaintiffs do not have an expert opinion meeting Delaware's heightened, "but for" causation standard.
6. Defendant SHALL have two weeks to file a third and final affidavit accompanied by a $100 check to the Prothonotary.
7. If the third and final affidavit is insufficient, the check will demonstrate that dismissal of the complaint followed unsuccessful, progressive sanctions. Meanwhile, Plaintiffs' approach to the Affidavit of Merit requirement here has been an unnecessary, unacceptable imposition on the court. The court is not calling for an apology; a satisfactory affidavit will be enough.
IT IS SO ORDERED. Date: March 10, 2015
/s/ Fred S. Silverman
Judge
cc: Prothonotary (Civil)
Stephen A. Hampton, Esquire
John D. Balaguer, Esquire
Kalinowski v. Adams, C.A. No. 12C-01-063 FSS, 2012 WL 1413999, at *1 (Del. Super. Mar. 9, 2012).