Opinion
Civil Action No. 03C-11-169-JRJ.
Submitted: December 1, 2006.
Decided: December 1, 2006.
Upon Defendant Beebe Medical Center, Inc.'s Motion for Partial Summary Judgment — GRANTED.
Gary H. Kaplan, Esq., Goldfein Joseph, DE
Anne L. Naczi, Esq., Griffin Hackett, P.A., DE
John A. Elzufon, Esq., Elzufon, Austin, Reardon, Tarlov Mondell, DE
The Court heard oral argument this morning and deferred decision in order to thoroughly review the file. Having now completed that review, the Court GRANTS Beebe's Motion for Partial Summary Judgment.
The Court entered an order in April 2006 requiring plaintiffs to identify experts and provide information regarding their expert opinions by September 1, 2006. It was the Court's expectation that pursuant to this Court order, plaintiffs would provide defendants with the information required under Super. Ct. Civ. R. 26 and 18 Del. C. § 6853. Section 6853, applicable in medical negligence cases, provides, in pertinent part:
No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death . . .
With respect to plaintiffs' claims of direct negligence by Beebe, it is undisputed that plaintiffs failed to provide the required expert opinion information by September 1, 2006 deadline. Consequently, Beebe timely moved for partial summary judgment on all claims against it except for those based on apparent agency. Plaintiffs oppose Beebe's motion, arguing: (1) the expert information it provided before the expert discovery cutoff precludes partial summary judgment because it puts Beebe on notice of plaintiffs' claims of direct negligence against Beebe, and (2) plaintiffs need and are entitled to take additional discovery to establish the factual predicate for those expert opinions.
Factual discovery has not yet closed.
The bottom line is the expert discovery cutoff has passed, and plaintiffs have no expert opinion based on a reasonable medical probability that (setting aside apparent agency), Beebe deviated from the applicable standard of care under the specific circumstances of this case and that its breach proximately caused the plaintiffs' injury. Notably, when specifically asked by the Court, plaintiffs could offer no explanation as to why they failed to request a modification of the scheduling order to extend the expert discovery cutoff. Further, plaintiffs could not explain to the Court's satisfaction why the factual discovery they need to enable their expert to base his opinions on a reasonable medical probability was not completed before September 1, 2006. This case is three years old, the alleged negligence occurred almost four years ago, and Beebe still does not know the basis for plaintiffs' contention that it was directly negligent.
The Court enters scheduling orders for a reason — to insure prompt, fair adjudication of civil suits. Through its scheduling orders, the Court attempts to effectively and efficiently manage its constantly growing civil docket. This is a challenge, given the volume of civil cases and the Court's burgeoning criminal docket.
The expert discovery cutoff has passed and Beebe's motion must be GRANTED.