Opinion
C.A. No. 01C-02-067 RRC
Submitted: November 22, 2002
Decided: December 30, 2002
On Defendant's Motion for Reargument. GRANTED.
Stephen A. Hampton, Esquire, Grady Hampton, P.A.
Frank X. Nardo, Esquire, Tybout, Redfearn Pell
Dear Counsel:
Currently before the Court is Defendant's Motion for Reargument pursuant to Superior Court Civil Rule 59(e). Defendant seeks to reargue this Court's November 8, 2002 bench ruling granting Plaintiff's Motion in Limine and Request for Protective Order, which ruling had the effect of prohibiting Keith Wapner, M.D. from testifying at the upcoming medical negligence trial as an expert witness for Defendant. Because in retrospect this Court believes it misapprehended the facts and the law in this case by granting Plaintiff's Motion in Limine, Defendant's Motion for Reargument is GRANTED.
In the underlying action, Plaintiff alleged medical negligence on Defendant's behalf relative to surgery he performed on Plaintiff's right foot on February 8, 1999; Plaintiff alleged that two subsequent surgeries performed by a second doctor were thereafter needed and that none of these procedures remedied the damage she claims Defendant caused by negligently performing the initial surgery. In defense of this lawsuit, Defendant's initial counsel (later substituted when Defendant's insurer became insolvent) forwarded Plaintiff's medical records to Dr. Wapner, an orthopaedic surgeon, in order that Dr. Wapner could then be retained by Defendant as a "consulting" expert, i.e., Dr. Wapner would not testify at trial.
Defendant's original counsel did not ever meet with Dr. Wapner after forwarding Plaintiff's records because of the insurance company's subsequent insolvency and the attendant stay of actions involving its insureds. However, Defendant's first counsel objected to Plaintiff's initial discovery interrogatory requesting identification of expert witnesses because the interrogatory specifically requested information on experts retained in "consulting" positions. Defendant therefore did not that Dr. Wapner had originally been retained as a possible consulting expert.
Thereafter, Plaintiff herself met with Dr. Wapner, although the purposes for that meeting are not entirely clear and are in dispute. Plaintiff brought a copy of her medical records and an expert report that had earlier been prepared. Although the testimony of Dr. Wapner and Plaintiff conflict, Dr. Wapner has stated by affidavit that "as soon as . . . [he] suspected that . . . [he] had been [earlier] contacted by the defense regarding . . . [Plaintiff's] lawsuit . . . [he] terminated the appointment. . . ." Dr. Wapner "did not render medical treatment to [Plaintiff] Merendino at that appointment." Dr. Wapner has also stated that Plaintiff provided him "with no [additional] information at her . . . appointment beyond that contained in the . . . materials [she then brought and which had earlier been forwarded to him by Defendant's original counsel][,]" and accordingly, "no confidential information was included in . . . [his] final report. . . ."
Wapner Aff. ¶ 6 (Ex. "C" to Def.'s Mot. for Rearg.).
Wapner Aff. ¶ 3.
Wapner Aff. ¶ 4.
Plaintiff thereafter filed the Motion in Limine in which she sought to have Dr. Wapner precluded from testifying as an expert witness on Dr. Kupcha's behalf. Plaintiff advanced several reasons for such a ruling. Chief among these was the fact that Plaintiff had also met with Dr. Wapner, ostensibly for treatment purposes relative to the medical negligence she alleges occurred as a result of the earlier treatment that had been rendered by Dr. Kupcha.
At the November 8, 2002 argument on the motion (the time that had been set for a Pretrial Conference), the Court expressed its concern that Plaintiff's purpose in seeing Dr. Wapner may not have been strictly limited to seeking treatment, but may well have shaded into consultation with Dr. Wapner, perhaps (unknowingly to Dr. Wapner) to disqualify him from testifying against her at trial. Defendant's primary concern in response to the motion was that because of the imminence of trial (then scheduled for December 2, 2002), the granting of Plaitiff's motion would prejudice him due to monies he had already expended to retain Dr. Wapner and due to the possibility of his not being able to retain another expert in time for trial. At the beginning of oral argument, the Court initially denied Plaintiff's Motion in Limine on grounds that consulting experts need not be identified absent a showing of "exceptional circumstances" (which circumstances did not exist here), that there was no particular prejudice to Plaintiff in allowing Dr. Wapner to testify given that he apparently learned no confidential information from Plaintiff and because an order could be constructed limiting his trial testimony if needed, and that Defendant had already expended considerable sums in retaining Dr. Wapner as his sole orthopaedic expert retained for trial purposes. The Court emphasized the upcoming trial date as one of the bases for its ruling.
Plaintiff originally filed suit pro se on February 7, 2001; Mr. Hampton entered his appearance on July 6, 2001.
See Super.Ct.Civ.R. 26(b)(4)(B).
Merendino v. Kupcha, Del. Super., C.A. No. 01C-02-067, Cooch, J. (Nov. 8, 2002), Bench Ruling at 14-17.
Following the Court's ruling (and in the continuing Pretrial Conference), Plaintiff's counsel informed the Court that Plaintiff would potentially seek to pursue a lost wage claim that may be related to Dr. Kupcha's alleged negligence. Plaintiff's counsel represented that he had only learned of the potential permanency of the injury the week before the hearing on the motion. With those additional facts in the record, and because of a resulting need to reschedule Plaintiff's trial, the Court reconsidered its earlier ruling and granted Plaintiff's Motion in Limine (in large part because the imminence of trial was no longer an issue and Defendant would have time to secure another expert). It is this second ruling that Defendant now seeks to reargue.
Id., at 27-28.
Defendant's main argument in his Motion for Reargument is that "[b]y granting the Plaintiff's Motion in Limine based solely on the date of trial, the Court failed to recognize the remaining weight of prejudice against . . . [Defendant]." The "remaining" factors that Defendant argues militate against the Court's ruling are as follows: "[w]ithin the limits set under . . . [the] statute [describing the degree of competency required of expert witnesses] . . . Dr. Kupcha's right to identify and present competent expert witness testimony should not be impeded"; "excluding Dr. Wapner's testimony would not prevent Dr. Kupcha's discovery of information gleaned during the Plaintiff's visit with Dr. Wapner"; and "[i]t is . . . inequitable to allow a plaintiff to disqualify a defense expert merely by contacting that expert early enough in the pre-trial process to [not] allow the defense time to obtain a new expert[,]" particularly where "the [p]laintiff seeks to bar the testimony of . . . the only orthopaedist offered as an expert in . . . [a] case brought against an orthopaedist." In response, Plaintiff "takes no position on [D]efendant's right to reargue th[e] motion [in limine], but contends that it was properly decided. . . ."
Def.'s Mot. ¶ 7.
Def.'s Mot. ¶ 8.
Def.'s Mot. ¶ 9.
Def.'s Mot. ¶ 11.
Def.'s Mot. ¶ 13.
Pl.'s Resp. ¶ 6.
Superior Court Civil Rule 59(e) provides that a motion for reargument "shall briefly and distinctly state the grounds therefor[e]," and that the Court "will determine from the motion and answer [thereto] whether reargument will be granted." This Court has recognized that such a motion "is appropriate where it is shown that the Court either overlooked a precedent or legal principle that would have controlling effect, or misapprehended the law or the facts such as would [have] affect[ed] the outcome of the decision." The Court of Chancery has stated "a motion for reargument properly seeks only a re-examination of the facts in record at the time of decision or the law as it applies to those facts."
Crowhorn v. Nationwide Mut. Ins. Co., C.A. No. 00C-06-010, 2001 WL 789649, at *1 (Del.Super. June 13, 2001) (citation omitted).
Miles, Inc. v. Cookson America, Inc., 677 A.2d 505, 506 (Del.Ch. 1995) (citation omitted).
The Court believes that it placed undue emphasis on the fact that the rescheduling of the trial from December 2, 2002 to April 21, 2003 would give Defendant sufficient time to obtain another expert. The Court did not ultimately give sufficient weight to the merits of Defendant's initial arguments in response to the Motion in Limine. With the late notification that Plaintiff may potentially pursue a claim for lost wages in connection with Defendant's alleged negligence (which claim the Court has allowed — another reason warranting the rescheduling of the trial), the Court misapprehended the law and the facts underlying Plaintiff's motion and Defendant's response. This misapprehension by the Court is supported by the Court's miscalculation of the balance of potential prejudice to either side and in terms of Defendant's right to otherwise produce a competent expert witness. Upon further reflection, the Court has decided that the granting of reargument of Plaintiff's Motion in Limine is appropriate. Accordingly, Defendant's Motion for Reargument is GRANTED. Dr. Wapner shall be permitted to testify on Defendant's behalf, and an appropriate order limiting his testimony — if needed — may be entered on application at a later time.
See November 6, 2002 Pretrial Stip. ¶ 12 ("Other Matters").
IT IS SO ORDERED.