Meck v. Christiana Care Health Services, Inc.
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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD R. COOCH RESIDENT JUDGE NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, Delaware 19801-3733 (302) 255-0664 Elwood T. Eveland, Jr., Esquire The Eveland Law Firm 715 North King Street Suite 200 Wilmington, Delaware 19801 Attorney for Plaintiff Lorraine Meck Stephen J. Milewski, Esquire White & Williams, LLP 824 North Market Street Suite 902 P.O. Box 709 Wilmington, Delaware 19899-0709 Attorney for Defendant Christiana Care Health Services, Inc. Re: Lorraine Meck v. Christiana Care Health Services, Inc. C.A. No. N10C-03-080 RRC Submitted: March 25, 2011 Decided: March 29, 2011 On Plaintiff s Application for a [C]ontinuance of the [T]rial [D]ate. DENIED. Dear Counsel: On March 25, Plaintiff s counsel submitted a letter to the Court requesting a continuance of the April 4 trial date. The letter represents that Defendant has no opposition to the requested rescheduling of this slip-and-fall case. The stated reasons for a continuance of the trial date appear to be mostly of Plaintiff s counsel s own making. At the pretrial conference held on March 18, Plaintiff s counsel confirmed that this case was ready to proceed to trial as scheduled; more significantly, at the conference, Plaintiff s counsel indicated that Plaintiff s sole expert witness would be Dr. Jeffrey Cramer, Plaintiff s primary care physician. Plaintiff had previously disclosed Dr. Peter Townsend, and orthopedic medicine specialist, as a potential expert witness, but stated at the pretrial conference that only Dr. Cramer would be called at trial. However, Plaintiff s counsel s March 25 letter states as follows: I note that we had two doctors on the pre-trial stipulation listed as expert witnesses, but that I only intended to call Jeffrey Cramer, my client s primary care physician. Unfortunately, we have run into serious difficulty in obtaining testimony from Dr. Cramer. From March 18 to March 23, my assistant and I had a number of conversations with Dr. Cramer s office regarding deposition of the doctor. We had actually commenced getting a deposition time prior to the pre-trial conference, but Dr. Cramer s scheduling person was not in the office last week. . . .Dr. Cramer s office has advised us that Dr. Cramer does not believe that he can provide expert witness testimony in this matter, as he does not believe he has sufficient knowledge of Plaintiff s condition before and after her fall to render an expert opinion. We have been advised that he was not aware that this case was in litigation and, apparently, does not feel appropriately prepared to be deposed. As Dr. Peter Townsend was also on our witness list, we attempted to secure a date to obtain trial testimony from Dr. Townsend yesterday once it became clear that we would not be able to secure Dr. Cramer s testimony. However, we have not been able to obtain a date and time on which we could depose Dr. Townsend between now and the scheduled date for trial. Given this situation, I am compelled to request that the trial date in this matter be continued to allow the Plaintiff to obtain expert testimony for trial. I have discussed this matter with Defendant s counsel [], and I have been advised that his client has no opposition to a continuance of the trial date at this time. 1 1 Pltf. s Counsel s Letter of Mar. 25, 2011 (emphasis added). 2 Defendant s counsel also filed a letter with the Court, dated March 25, 2 in which he reported that Defendant is not interested in offering any type of settlement in light of the facts of this case. However, this letter further states that the matter will need to go forward to trial beginning April 4, 2011. This Court assumes, for purposes of this letter opinion, that Defendant does not object to Plaintiff s request to amend the Trial Scheduling Order to continue the April 4 trial date. The standard for modifying a scheduling order, including continuing a trial date, is set forth in Superior Court Civil Rule 16. As relevant to this case, the rule provides that [t]he [scheduling] order following a final pretrial conference shall be modified only to prevent manifest injustice. 3 There is a dearth of Delaware case law applying the manifest injustice standard to post-pretrial conference request for a continuance of the trial date, likely due to the relative rarity of such requests. Consequently, the case law discussing manifest injustice generally has arisen in the context of a party seeking to admit or to exclude evidence at trial that was not explicitly covered by the pretrial stipulation; the Supreme Court of Delaware has observed that, [w]hen a party argues that modification [of a Pretrial Order after the Pretrial Conference has been held] is necessary to prevent manifest injustice, the trial judge should consider: (1) the prejudice or surprise in fact of the party against whom the proffered documents would have been submitted; The docket indicates that Defense counsel s letter was filed approximately five hours after Plaintiff s counsel s letter. The Court, at the March 18 Pretrial Conference, had asked counsel for Defendant to submit a status report on any settlement negotiations by March 25. 3 Super. Ct. Civ. Rule 16(e) (emphasis added); see also Wright v. Moore, 953 A.2d 223, 226 (Del. 2008) ( Superior Court Civil Rule 16(e) dictates that pretrial orders be modified only to prevent manifest injustice, but nevertheless allows for a modification if that standard is met. ). Most cases addressing a party s motion to continue a trial date have been decided under the less demanding good cause standard. In this case, it is a distinction without a difference, because Plaintiff has failed to satisfy the less demanding standard of good cause and, consequently, would necessarily be unable to demonstrate manifest injustice. See McLaughlin v. Dover Downs, Inc., 2008 WL 795311, *2 (Del. Super. Ct. 2008) (reviewing case law under Rule 16(e) for a Rule 26 analysis of manifest injustice and observing that manifest injustice is a stringent standard that applies only in special circumstances, and the court is required to exercise restraint in applying the balancing standard. ). 2 3 (2) the ability of the party to cure the prejudice; (3) the extent to which waiver of the rule against admission of unlisted documents would disrupt the orderly and efficient trial of the case or of other cases in the court; and (4) bad faith and willfulness in failing to comply with the court's order. 4 Under the instant circumstances, Plaintiff has not satisfied the manifest injustice requirement of Rule 16, and a continuance is not warranted. Plaintiff requested this continuance (which is, in effect, a motion to amend the Trial Scheduling Order) a mere five business days prior to the scheduled trial date; this trial date had been agreed upon by the parties at the scheduling conference held on June 23, 2010. Most significantly, and as recently as March 18, at the pretrial conference, Plaintiff s counsel represented that the case was ready to proceed to trial as scheduled. 5 The timing of Plaintiff s eleventh-hour request for a continuance must be viewed in light of the reasons giving rise to the need for a continuance. As indicated in Plaintiff s counsel s letter, Dr. Cramer, the sole medical witness Plaintiff anticipated calling to testify at trial, was not aware that this case was in litigation; however, Plaintiff s counsel apparently came to this realization only after the March 18 pretrial conference. Indeed, at no time during the pretrial conference did Plaintiff s counsel express any apprehensions about his ability to secure Dr. Cramer s testimony or otherwise Cuonzo v. Shore, 958 A.2d 840, 845-46 (Del. 2008) (quoting Green v. Alfred A.I. DuPont Institute of Nemours Foundation, 759 A.2d 1060, 1063-64 (Del. 2000)). Delaware s standard for manifest injustice appears to have been adopted from federal case law on the analogous Federal Rule of Civil Procedure. See Green, 759 A.2d at 1063 ( Federal courts, under the counterpart to Rule 16(e), have applied a four-factor test in assessing whether to permit a party to depart from its pretrial submissions. ). Federal case law under the analogous rule, Federal Rule of Civil Procedure 16, utilizes an identical analysis. See, e.g. Jacob v. Nat l R.R. Passenger Corp., 63 Fed.Appx. 610, 612 (3d Cir. 2003) (noting that [f]our criteria guide courts in deciding whether or not to modify a final pretrial order: (1) the prejudice or surprise in fact to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or willfulness of the noncompliance. ) (quoting Greate Bay Hotel & Casino v. Tose, 34 F.2d 1227, 1236 (3d Cir. 1994)). 5 At the Pretrial Conference, Plaintiff s counsel stated, inter alia, that: [w]e re going to have [Dr.] [C]ramer on videotape, I think my secretary contacted [defense counsel s] secretary yesterday regarding the dates we have between now and April first. Pretrial Conference Transcript at 4. 4 4 proceed to trial as scheduled. 6 Further, Plaintiff s counsel apparently only began communicating with Dr. Townsend in an attempt to secure his testimony on March 24. Not surprisingly, Plaintiff s counsel had not been able to obtain a date and time on which we could depose Dr. Townsend between now [March 24] and the scheduled date for trial [April 4]. In considering Plaintiff s unopposed application to reschedule the trial date, this Court is mindful of the Supreme Court of Delaware s recent holding in Drejka v. Hitchens Tire Service. 7 In Drejka, this court had entered a scheduling order in June 2008, setting December 19, 2008 as the deadline for submission of the plaintiff s expert report, January 16, 2009 as the deadline for submission of the defendants expert report, February 13, 2009 as the discovery end date, and July 27, 2009 as the trial date. 8 Apparently, none of the parties met the foregoing discovery deadlines; the plaintiff produced her expert report on May 5, 2009. 9 In turn, the defendants filed a motion in limine to exclude the plaintiff s medical expert testimony on the grounds that the May 5 submission of Plaintiff s expert report was far too late and that the defendant would be severely prejudiced; the trial court granted this motion, and the plaintiff was ultimately left without an expert. 10 The defendants moved for summary judgment, arguing that the plaintiff could not establish a prima facie case of negligence without expert testimony; the trial court granted defendant s motion. 11 Reversing the decision of this Court, the Supreme Court concluded that the sanction of dismissal was an abuse of discretion by the trial court. 12 The Court reviewed the six relevant factors for evaluating a sanction imposed against a party by a trial court: 1) the extent of the party s personal responsibility; 2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; 3) a history of dilatoriness; 4) whether the conduct of the party or the attorney was willful or in bad faith; 5) Indeed, Plaintiff s counsel indicated that the standard voir dire questions would be sufficient, and that the trial might well be completed within two days. Id. at 6-8. At no time did Plaintiff s counsel indicate anything other than his expectation that trial would commence as scheduled. 7 2010 WL 6007845 (Del. 2010). 8 Id. at *1. 9 Id. 10 Id. 11 Id. 12 Id. at 2. 6 5 the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and 6) the meritoriousness of the claim or defense. 13 Specifically, the Drejka Court noted that the plaintiff appeared to have borne no responsibility for her attorney s conduct, the defendant had received the plaintiff s expert report months before the trial date, providing sufficient time to depose the plaintiff s expert, there had been no evidence that the plaintiff s attorney was acting in bad faith, there had been no reason to believe that lesser sanctions would be ineffective, and, on the merits, even the defendant s expert agreed that the plaintiff suffered permanent soft tissue impairment due to the accident at issue. 14 Drejka is inapposite. As a threshold matter, this Court is not now (at least at this juncture) dismissing Plaintiff s case. 15 Rather, this Court is denying Plaintiff s request to continue the trial. Consequently, the six factors articulated in Drejka 16 do not apply, as these factors are to be considered when assessing the appropriate sanction to impose; the sole issue before this Court is Plaintiff s application for a trial continuance. 17 No application or motion for sanctions is currently before this Court, although this Court of course has the inherent power to impose a sanction sua sponte. Also, in Drejka, the discovery dispute arose two months prior to the scheduled trial date, whereas in this case, Plaintiff s inability to produce a medical expert was disclosed five (5) business days prior to the scheduled trial date. The Drejka Court observed, in apparent dicta, that it is not uncommon for litigants to disregard Scheduling Orders because the attorneys may be pressed for time or may be talking settlement, or may be having difficulty finding or paying for an expert. 18 This rationale is also not Id. (citing Minna v. Energy Coal S.p.A., 984 A.2d 1210, 1215 (Del. 2009)). Id. at *3. 15 However, this Court recognizes that dismissal of the case may well be the ultimate result of the instant decision. See, e.g., Wahle v. Med. Ctr. of Del., 559 A.2d 1228, 1232 (Del. 1989) (noting that the trial court s decision to preclude Plaintiff from introducing expert medical testimony at trial effectively ended the case by rendering a trial meaningless. ). 16 See supra text accompanying note 13. 17 Moreover, in Drejka, the pretrial conference had not yet been held; instead, the defendant filed a motion in limine after the plaintiff missed the deadline for submission fo expert reports. Drejka, 2010 WL at *1. Thus, the manifest injustice standard applicable to the instant motion was not at issue in Drejka. 18 Id. at *2. This Court will note that the very essence of preparing a civil case for trial pursuant to a Trial Scheduling Order will inevitably result in lawyers, who of course have 13 14 6 applicable in this case; there has been no showing that the attorneys were pressed for time during the course of this case, this case is on the very eve of trial, and no scheduling issues were raised at the pretrial conference. Likewise, Defendant has apparently, throughout this case, taken the position that it will not extend any settlement offer. Finally, to the extent Plaintiff is having difficulty finding an expert, it is only because Plaintiff s expert, Dr. Cramer, who is Plaintiff s primary care physician, seemingly had not been informed that he was expected to serve as an expert in this case until immediately prior to trial, and he is not presently amenable to so serving. However, assuming the truth of Dr. Cramer s statement that he was not aware of his patient s lawsuit, this factor militates against, rather than in favor of, Plaintiff; the only reason for Dr. Cramer to be unaware of Plaintiff s anticipated reliance on his expert testimony is the failure of Plaintiff and Plaintiff s counsel to timely and diligently communicate with Dr. Cramer on this issue. Indeed, it appears that Dr. Cramer s patient, Plaintiff herself, did not ever mention to him in the course of her treatment that a lawsuit had been filed; thus, Plaintiff herself must bear part of the blame. 19 Notably, the Drejka Court s opinion did not dilute the Supreme Court s previously expressed views on the critical importance, generally, of firm trial dates. To the contrary, the Drejka Court explicitly acknowledged that trial courts caseloads. . .require that trials be scheduled a year or more in advance. 20 Numerous Delaware cases confirm this Court s necessary other cases and commitments, to be pressed for time, talking settlement, or having difficulty finding or paying for an expert (although with respect to the latter instance, a party bringing a civil action must know that timely retention of an expert (if an expert is needed) is a fundamental underpinning of civil litigation in the Superior Court). Although there will certainly be extraordinary situations in which these factors, standing alone or in conjunction with other circumstances, may constitute sufficient manifest injustice or good cause, in general, these realities are properly viewed as inherent characteristics of civil litigation, and not factors that, in themselves, justify the Court s indulgence when the Trial Scheduling Order is not observed. 19 It should also be noted that, despite being Plaintiff s treating physician, Dr. Cramer apparently does not believe he has sufficient knowledge of Plaintiff s condition before and after her fall to render an expert opinion. See Pltf. s Counsel s Letter of Mar. 25, 2011. This Court will note that, even if Dr. Cramer had been aware of the existence of this litigation, that knowledge would not change the outcome of this decision. 20 Drejka, 2010 WL at *2. 7 authority to manage its caseload and trial calendar. 21 Indeed, the Supreme Court has affirmed this Court s denial of a party s request to continue the trial date where no good cause had been demonstrated; in Valentine v. Mark, the Court had scheduled a trial date of November 1, 2004, and, on June 24, 2004, granted the plaintiff s motion to extend the time for disclosing her experts, but nonetheless maintained the trial date of November 1. 22 On appeal, the plaintiff argued, inter alia, that the trial court had abused its discretion by denying her request to continue the trial date; the plaintiff asserted that she had needed the continuance because: 1) she had recently learned that potential witnesses would not be allowed to participate in the trial and 2) various family tragedies prevented her from assisting her counsel in preparing for trial. 23 However, this Court denied the plaintiff s request for an extension based on the fact that the plaintiff had ample time to find experts and that [the defendant] should have his day in court. 24 The trial court also observed that five days had been reserved for trial, and it would be unfair to other litigants if those days were not used. 25 The Supreme Court found nothing in the record to suggest that the trial court s decision was arbitrary or capricious, and that, in fact, the trial court acted well within its discretion, given the amount of time the case had been pending and the need to maintain scheduled trial dates. 26 This Court has denied a litigant s motion to continue the trial date based on an inability to schedule a time for the deposition of the plaintiff s medical expert. 27 In Brewington-Carr v. University and Whist Club, trial in a See, e.g., Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006) ( It is well settled that the trial court has discretion to resolve scheduling issues and to control its own docket. ) (quoting Valentine v. Mark, 873 A.2d 1099 (Del. 2005)). 22 Valentine, 873 A.2d at *1; see also Goode v. Bayhealth, 931 A.2d 437, *3 (Del. 2007) ( A trial judge has broad discretion to control scheduling and the court s docket. ) (citing Valentine, 873 A.2d at 1099); Weber v. Weber, 547 A.2d 634, *2 (Del. 1988) (noting, in an appeal from a decision of the Family Court, that [c]ontrol over the court s calendar and docket is left to the sound discretion of the trial judge. ); Gebhardt v. Ernest DiSabatino & Sons, Inc., 264 A.2d 157, 159 (Del. 1970) (acknowledging the trial court s inherent authority to manage its own affairs and to achieve the orderly and expeditious disposition of its business. ). 23 Valentine, 873 A.2d at *1. 24 Id. 25 Id. 26 Id. (emphasis added). 27 Brewington-Carr v. University and Whist Club, 2009 WL 924533 (Del. Super. Ct. 2009). 21 8 slip-and-fall case was scheduled for April 27, 2009, and the plaintiff moved for a continuance of this date on March 23, 2009; the basis for the plaintiff s motion was plaintiff s counsel s inability to schedule a mutually agreeable time for a deposition of the plaintiff s medical expert. 28 Although the plaintiff s motion to reschedule the trial was unopposed, this Court noted that the enforcement of trial scheduling orders is the essential mechanism for cases becoming trial-ready in an efficient, just and certain manner, and that control of these schedules is deliberately reposed in the court, and not in counsel, so that this end may be achieved. 29 This Court found that the plaintiff had made no showing that timely communication with the plaintiff s medical expert s office had occurred; thus, the record did not support a finding of good cause for continuing the trial date. 30 Accordingly, the plaintiff s motion for a continuance of the trial date was denied. 31 This Court has also denied joint requests for a continuance of a trial. For example, in Todd v. Delmarva Power & Light Co., the parties jointly moved for a continuance of the trial date and an extension of the discovery end date based on alleged difficulties in locating witnesses who had left their employment with defendant. 32 In denying the joint motion, this Court stated: It is well-settled in this state that [p]arties must be mindful that scheduling orders are not mere guidelines but have full force and effect as any other order of the [Superior] Court. Adherence to case scheduling orders is essential to the orderly administration of the Court s docket. If this Court were to allow parties to disregard these orders on the basis of the thin excuse offered by the instant parties, the Court would be hard pressed to deny almost any request to modify other scheduling orders. Scheduling orders would then become meaningless guidelines and the Court s docket would soon become chaotic. There is a second reason why the Court has chosen not to modify its scheduling order-the modification requested here would not be fair to litigants who have been diligent in preparation for trial and who would stand to have their trial date bumped if this case were rescheduled. The present matter is one of the oldest on the Court s docket. Because of that, any new trial date for this case would likely cause this case to have priority over other cases already scheduled for trial on the same Id. at *1. Id. (citations omitted). 30 Id. 31 Id. 32 2009 WL 143169, *1 (Del. Super. Ct. 2009). 28 29 9 new date. Under the circumstances presented here the Court is unwilling to penalize those diligent parties in other cases to accommodate the parties in this one. 33 As stated, by the terms of Rule 16(e), the standard applicable to Plaintiff s instant request is manifest injustice because Plaintiff s request was submitted after the Court entered a final pretrial order. However, the existing four factor analysis for manifest injustice is largely focused on the admission of evidence not listed in the pretrial stipulation. 34 Consequently, the good cause standard provides more substantive guidance in the context of a motion to continue a trial date. 35 In this case, Plaintiff has similarly not demonstrated good cause to amend the scheduling order entered at the March 18 pretrial conference. 36 As explained by the Supreme Court, good cause may be found when the moving party has been generally diligent, the need for more time was neither foreseeable nor its fault, and refusing to grant the continuance would create a substantial risk of unfairness to that party. 37 Put another way, [i]t has been stated that [p]roperly construed, good cause means that scheduling deadlines cannot be met despite a party s diligent efforts. 38 Further, in evaluating good cause, the lack of prejudice to the opposing party, such as when the opposing party joins or does not oppose a continuance of the trial date, may be a relevant factor, but it does not end the Court s inquiry. 39 In this case, none of the foregoing conditions for good cause have been met; Plaintiff s counsel s failure to confirm that Dr. Cramer was Id. at *2 (citations omitted). See supra note 3; supra text accompanying note 4. 35 Nonetheless, this Court notes that Plaintiff s application must demonstrate manifest injustice to warrant a continuance of the trial date, rather than merely good cause; given that Plaintiff has failed to satisfy the requirements for good cause, it necessarily follows that Plaintiff cannot show manifest injustice. See supra note 3. 36 See id. 37 Coleman, 902 A.2d at 1106 (quoting 3 James Wm. Moore, et. al., Moore s Federal Practice ยง 16.14(1)(b) (3d ed. 2004). 38 Candlewood Timber Group, LLC v. Pan Am. Energy, LLC, 2006 WL 258305, *4 (Del. Super. Ct. 2006) (quoting Gonzalez v. Comcast Corp., 2004 WL 2009336, *1 (D. Del. 2004)). 39 Id. ( The Court agrees that lack of prejudice to another party can, in appropriate cases, be a factor in the Court s determination of whether good cause exists, but the Court s inquiry does not end with consideration of that one factor. ). 33 34 10 amenable to serving as the sole medical witness until after the pretrial conference precludes a finding that plaintiff s counsel was generally diligent. Similarly, the need for more time was foreseeable; it should be anticipated that a physician who has never confirmed a willingness to serve as an expert witness (nor even, apparently, been advised of the party s intention to utilize him as a witness) may refuse to offer testimony. It is likewise unsurprising that Dr. Townsend, Plaintiff s alternative medical witness, would be unable to offer deposition testimony between March 23 and April 4, a period of only seven (7) business days. Given these facts, denying Plaintiff s motion for a continuance would create no risk of unfairness to Plaintiff. Importantly, this Court also notes that no monetary sanctions would be effective at this juncture of this case. 40 Although, as stated in Drejka, monetary sanctions can be an effective mechanism to prod[] certain cases forward, 41 especially during the discovery phase of a case, monetary sanctions are unable to remedy the lack of appreciation of a firm trial date, administrative inconvenience, and unfairness to other litigants that would result from an eleventh hour continuance of the trial date based on nothing more than an insufficiently explained failure to properly coordinate expert witness testimony. If this Court were to indulge Plaintiff s instant request, a request which is properly subject to the stringent manifest injustice standard, the Court would be hard pressed to deny almost any request to modify other scheduling orders. 42 If trial date certainty is to be maintained in this Court, a party requesting a continuance of the trial date must, at the very least, exercise due diligence and satisfy the requirements for good cause or manifest injustice, as applicable. The Drejka Court did comment that, [u]nfortunately, it is not uncommon for litigants to disregard Scheduling Orders, and indeed, with a total of 15,060 civil cases filed statewide in 2010 in the Superior Court, 43 some degree of slippage is certain to occur. See, e.g., Drejka, 2010 WL at *3 ( The Superior Court Rules recognize this problem and provide what is likely to be the most effective sanction-monetary penalties to be paid by the attorneys, not their clients. If monetary sanctions were imposed more frequently, attorneys would be far less likely to delay in obtaining (and thus having to pay) experts. ). 41 Id. 42 Todd, 2009 WL at *2. 43 See 2010 Annual Report of the Delaware Judiciary at 22. 40 11 Nonetheless, this Court continually aspires to maintain the efficacy of scheduling orders and the integrity of trial dates to the extent possible and appropriate. The importance of the general understanding of litigants in this Court that trial dates are firm (with appropriate exceptions for manifest injustice or good cause ) cannot be emphasized enough. Recognition of the importance of the trial date is a key part of this Court s collective management of its civil docket. To that end, parties must be held to the requirements of Rule 16. In this case, Plaintiff has not established good cause, much less the requisite manifest injustice, sufficient to warrant the unopposed continuance of the trial date. Thus, Plaintiff has not satisfied the requirements of Rule 16. Accordingly, for the reasons stated above, Plaintiff s motion for a continuance of the trial date is DENIED. The case remains set for trial on April 4. IT IS SO ORDERED. Very truly yours, RRC/rjc oc: Prothonotary 12
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