Opinion
C.A. No.: N18C-03-279 FJJ
12-07-2020
LUZ ORTIZ, Plaintiffs, v. KATHERINE LEE SMITH, URGENT AMBULANCE SERVICE, INC., and EDS TRANSPORTATION SYSTEMS, INC. Defendants.
cc: File&ServeXpress Gary L. Smith, Esquire, counsel to Plaintiff Amy M. Taylor, Esquire, counsel to Defendants
DECISION ON PLAINTIFF'S MOTION FOR REARGUMENT AND/OR CLARIFICATION AS TO DR. YUCHA'S TESTIMONY
On October 26, 2020 this Court issued an Opinion denying Plaintiff's Motion to Exclude Certain Testimony of the Defendant's DME doctor Regarding a Prior Accident ("Opinion".) Plaintiff has filed a timely Motion for Reargument and/or Clarification relating to the Court's decision on the scope of the testimony of Defendant's medical expert. In the Court's Opinion, I wrote that a 2011 automobile accident involving Ortiz and the injuries that Ortiz sustained from that accident were relevant to the causation of Ortiz's injuries in the instant case, because emergency room records following the 2011 accident indicate that Ortiz complained of pain in her neck and low back at the time. Plaintiff takes issue with this ruling. According to plaintiff "this is not a case concerning which of the accidents caused or contributed to the plaintiff's injuries." Plaintiff points to the DME report's conclusion that "there is no chronic permanent impairment to the cervical spine, lumbar spine or right knee [of Ortiz.]" Based on this sentence, Plaintiff argues that Dr. Yucha should be prevented from testifying that Mrs. Ortiz has no permanent injuries, and that if he is allowed to testify that Ortiz has suffered permanent injuries, that her 2011 accident caused them. According to Plaintiff, to allow him to do so would allow him to testify inconsistently with his report.
A motion for reargument will be granted if the Court has "overlooked a controlling precedent or legal principles, or misapprehended the law or facts such as would have changed the outcome of the underlying decision." Movants may neither present new arguments nor rehash those already presented. The movant "has the burden of demonstrating newly discovered evidence, a change in the law, or manifest injustice."
Radius Servs., LLC v. Jack Corrozi Const., Inc., 2010 WL 703051, at *5 (Del.Super., Feb. 26, 2010) (quoting Lamourine v. Mazda Motor of Am. 2007 WL 3379048, at *1 (Del.Super., Sept. 24, 2007)).
Reid v. Hindt, 2008 WL 2943373, at *1 (Del.Super., July 31, 2008).
Id. (quoting State v. Brooks, 2008 WL 435085, *2 (Del.Super., Feb. 12, 2008)). --------
The question in the present motion is whether I misapprehended the content of the DME report in my original decision. While plaintiff is correct that there is no specific statement in the DME that says any permanent damage was caused by the 2011 motor vehicle accident, the Court is focused on the following in the report:
Additionally, Ms. Ortiz has a significant history of injuries to her neck and back in prior motor vehicle accidents noted in the medical records[,] although she was not forthcoming when I asked her about these accidents at our visit in the office today... I believe she is fully recovered with respect to any injuries reported to her cervical spine, lumbar spine or right knee sustained in the motor vehicle accident on March 30, 2016. (Underlining added).
While not a model of clarity, the above passages from the report suggest that the 2011 accident plays a role on this causation issue from the point of view of the DME doctor. I do not agree with the Plaintiff's position that the issue of causation has not been addressed by the DME doctor. At this point, I am not willing to bar this testimony as to the causation issue. I am prepared to readdress this issue after I have the benefit of a full trial deposition of Dr. Yucha or voir dire of Dr. Yucha outside the presence of the jury at trial.
Setting aside whether the testimony is admissible on the question of causation, the existence of the 2011 motor vehicle accident and the injuries that Ortiz suffered as a result of that accident are at least admissible because it goes to the credibility of the Plaintiff, since Dr. Yucha has indicated that the Plaintiff failed to tell him about the 2011 motor vehicle accident and any resulting injuries and treatment.
Given the above, plaintiff's Motion for Reargument is DENIED at this time.
SO ORDERED this 7th day of December, 2020.
/s/_________
Francis F. Jones, Jr., Judge cc: File&ServeXpress
Gary L. Smith, Esquire, counsel to Plaintiff
Amy M. Taylor, Esquire, counsel to Defendants