Opinion
C.A. No. 04C-02-035 WCC.
Submitted: February 22, 2007.
Decided: May 31, 2007.
On Plaintiff's Motion for Reargument. DENIED.
Richard H. Cross, Jr., Esquire Cross Simon, Wilmington, DE.
Gary W. Lipkin, Esquire, Duane Morris LLP, Wilmington, DE.
Kelly A. Green, Esquire Richards, Layton Finger, Wilmington, DE.
Dear Counsel:
Plaintiff Michael D. Wharton has filed a motion pursuant to Superior Court Civil Rule 59(e) seeking reargument of the Court's decision on cross motions for summary judgment filed by the parties in this case (the "Motion"). Upon review of the submissions by the parties, the Motion is hereby denied.
Mr. Wharton is only seeking reargument with respect to certain claims against ChoicePoint. As a result, the Court will not discuss the claims relating to Worldwide Dedicated Services and will only address those claims Mr. Wharton seeks reargument.
Discussion
A motion for reargument is the correct device to allow a court to correct any mistakes, prior to an appeal, which may have been made. To prevail on a motion for reargument, the proponent must show the Court has "overlooked a controlling precedent or legal principles, or [that] the Court has misapprehended the law or facts such as would affect the outcome of the decision." The Plaintiff fails to meet this burden. The Court finds that it did not misapprehend the facts or controlling legal principles in rendering its opinion on February 2, 2007 when it denied the Plaintiff's Motion for Summary Judgment and granted both Defendants' Motions for Summary Judgment (the "Opinion").
Kovach v. Brandywine Innkeepers Ltd. P'ship, 2001 WL 1198944 (Del.Super.Ct.), at *1 (citing Hessler v. Farrell, 260 A.2d 701, 702 (Del. 1969)).
Id.; see also, Murphy v. State Farm Ins. Co., 1997 WL 528252 (Del.Super.Ct.).
Wharton v. Worldwide Dedicated Serv., 2007 WL 404770 (Del.Super.Ct.) (hereinafter "Opinion at ___").
The Plaintiff asserts that there remains questions of material facts and that the Court misapprehended the facts provided when it decided the summary judgment motions. Specifically, the Plaintiff alleges 1) that the specimen tested was not the Plaintiff's sample; 2) that there were problems regarding the chain of custody of the sample provided by Mr. Wharton and 3) that Mr. Wharton was not properly advised by ChoicePoint of his right to a split-specimen test. These arguments were each addressed in the Opinion, and the Court will not completely rehash its decision. However, while the Court is not convinced an error was made in this instance, it will briefly review the three allegations above. A. Theory that the Sample Tested was not Mr. Wharton's Sample and that the Chain of Custody was Tainted .
Barrow v. Abramowicz, 2006 WL 3041929 (Del.Super.Ct.) (citing Cunningham v. Horvath, 2004 WL 2191035. At *2 (Del.Super.Ct.).
Mr. Wharton first asserts two theories to establish that the sample tested by ChoicePoint was not the sample Mr. Wharton originally provided. If either theory were true, Mr. Wharton could then attempt to establish his theory that the positive test result for codeine and morphine was an error. However, as indicated in the Opinion, Mr. Wharton's theories do not form a basis for ChoicePoint's negligence.
Opinion at 11.
First, Mr. Wharton argues that ChoicePoint was negligent for either not testing the specimen for oxycodone to establish it was not Mr. Wharton's specimen, or for failing to act on the results which reflect no "spike" for oxycodone. However, federal regulations prohibit ChoicePoint from testing for any drug not listed in 49 C.F.R. § 40.85, and oxycodone is not one of the enumerated drugs. Accordingly, it logically follows that ChoicePoint could not be found negligent for failing to test for the drug since it was following federal regulations by not testing Mr. Wharton's specimen for oxycodone. In addition, the Plaintiff can point to no regulatory requirement for the testing of oxycodone when it is known that the drug should be present.
Mr. Wharton argued that a spike on the result chart would be apparent, establishing oxycodone was present in his system. Because Mr. Wharton admitted to taking oxycodone after his accident, the absence of this spike allegedly would be evidence that the wrong specimen was tested.
Secondly, Mr. Wharton argues the chain of custody of his specimen was breached while the specimen was at LabCorp, but has offered nothing further to establish that ChoicePoint was negligent in its handling of Mr. Wharton's specimen. First, ChoicePoint had no duty to review the chain of custody of Mr. Wharton's specimen while it was at LabCorp. Further, as the Court noted in its Opinion, ChoicePoint was able to verify the test results because the social security number and specimen number matched. Lastly, while the Plaintiff argues within his theory above that ChoicePoint should have questioned the chain of custody because oxycodone did not appear on the test results, the Court again emphasizes that ChoicePoint was prohibited from testing for oxycodone. Thus, simply because Mr. Wharton advised ChoicePoint that he took oxycodone prior to the drug test does not then place a duty on ChoicePoint to check the specimen for oxycodone to ensure it was his sample. Mr. Wharton still has failed to provide any legal grounds which would require ChoicePoint to re-test a specimen for a non-enumerated drug, nor has he established that the Court misapprehended the facts as provided.
49 C.F.R. § 40.123 ("As an MRO, you are not required to review laboratory internal chain of custody documentation. No one is permitted to cancel a test because you have not reviewed this documentation.").
B. Mr. Wharton was not Properly Advised of his Split-Specimen Test Rights
Mr. Wharton asserts ChoicePoint did not properly advise him of his right to a split-specimen test. However, even assuming the facts in the light most favorable to Mr. Wharton — that ChoicePoint did not properly advise him of this right — Mr. Wharton was aware of his right to a split-specimen test and chose to not exercise that right. As a result, Mr. Wharton cannot establish that ChoicePoint's failure to advise him of his right to a split-specimen test caused him to not request the test. Again, Mr. Wharton's Motion fails to establish that this Court misapprehended the law or facts of this case, and has simply restated his previous argument.
Mr. Wharton signed a certification of receipt of a handbook in which it clearly stated his right to a split-specimen test.
Conclusion
As a final note, it appears that the Plaintiff is implying that the Court in some way has stymied his ability to fully develop his case. Nothing could be further from the truth. This case was filed in 2004 and was originally scheduled for trial in October of 2005. The trial was subsequently moved to April 2006, then July 2006, which was canceled in June of 2006 to allow for a resolution of summary judgment motions and the completion of discovery. Throughout the litigation, the Court has addressed various discovery disputes and generally has allowed the parties to work through the difficult issues presented by this litigation without pushing the matter to trial.
In spite of this freedom provided by the Court, the Plaintiff has simply been unable to develop evidence to support his various theories as to what may have occurred with the testing of this specimen. While all efforts in discovery have been done in good faith and the Plaintiff's initial impressions as to what may have occurred were logical assumptions, at some point there must be an end to the fishing for evidence to support these theories. If the Plaintiff was wronged by the conduct of the Defendants, he has had three years to develop that evidence. There are no disputed facts to prevent summary judgment as the Plaintiff simply has failed to discover credible evidence to support his initial assumptions. For the reasons set forth above, the Plaintiff's Motion for Reargument is hereby denied.
The Court notes there is also a significant issue whether the Plaintiff would have maintained his truck driving position with Worldwide even if the Plaintiff's assertions were correct. The Plaintiff had been employed for a very short period of time and it was reported by Worldwide's counsel that he was on a "probationary" status and would likely have been terminated in any event due to the accident.
The Court notes that its previous opinion addressed cross-motions for summary judgment as both defendants and the Plaintiff each filed a motion for summary judgment, thereby implicitly conceding the absence of material factual disputes.
IT IS SO ORDERED this 31st day of May 2007.