Bell v. Fisher, M.D., D.M.D., et al.
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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
Carl D. Neff, Esquire
James L. Griffith, Esquire
Fox Rothschild LLP
Citizens Bank Center, Suite 1300
919 N. Market Street
Wilmington, Delaware 19801
Attorneys for Plaintiffs
Gilbert F. Shelsby, Esquire
Shelsby & Leoni
221 Main Street
Wilmington, Delaware 19804
Attorney for Defendants
Re: Richard H. Bell, III and Jennifer Bell v. Bruce D. Fisher, M.D.,
D.M.D. and Southern Delaware Oral and Maxillofacial Surgery, P.A.
C.A. No. 09C-01-211 RRC
Submitted: April 16, 2012
Decided: April 16, 2012
Written Opinion: May 21, 2012
On Plaintiffs’ Motion for Reargument on Plaintiff’s Motion to Vacate
Previous Orders Granting Defendants’ Motions in Limine.
DENIED.
Dear Counsel:
Before the Court in a dental malpractice case is a Motion for Reargument
filed by Plaintiffs Richard and Jennifer Bell pursuant to Superior Court Civil Rule
59(e). Plaintiffs seek to reargue the Court’s December 6, 2011 order which
procedurally granted Plaintiffs’ motion to vacate prior orders, but reissued the orders
substantively without fresh consideration. The orders that Plaintiffs seek to vacate
granted Defendants’ earlier motions in limine, and excluded three expert witnesses.
In its December 6 order, the Court determined the orders must be procedurally
vacated because the orders were entered during the automatic stay in Defendant
Fisher’s bankruptcy, but the Court held that fresh consideration of the motions in
limine was not required. On the current Motion for Reargument, Plaintiffs advance
new arguments that should have been raised in Plaintiffs’ underlying motion to
vacate orders. Accordingly, Plaintiffs’ Motion for Reargument is DENIED.
1
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs’ dental malpractice action alleges negligence and a lack of informed
consent regarding Richard Bell’s wisdom teeth extraction surgery occurring in
January 2007. 1 Plaintiffs originally filed this case pro se in January 2009; current
counsel for Plaintiffs first entered their appearances in April 2009. The case
originally proceeded relatively routinely. Defendants filed three motions in limine
in June 2010. The motions sought to exclude: (1) the testimony of Plaintiffs’ expert
Dr. Tara Moore; (2) the testimony of Plaintiffs’ expert Dr. John Postlethwaite, D.C.;
and (3) Plaintiff’s Future Lost Wage Claim.
Dr. Moore, a biomechanical engineer, proposed to testify that Dr. Fisher used
“excessive force” in removing Plaintiff’s wisdom teeth contributing to nerve
damage. Dr. Postlethwaite was Plaintiff Richard Bell’s chiropractor and was
prepared to testify regarding the causation of Plaintiff’s injury. Lastly, Defendants
sought to eliminate Plaintiff’s future lost wage claim by excluding the testimony of
vocational expert Maria Babinetz and Dr. Samuel Kursh, the latter a specialist in
economic damages. Babinetz and Kursh’s testimony would together address the
validity and worth of Plaintiff’s lost wage claim.
The Court granted each of the motions in limine by memorandum opinion on
August 30, 2010. 2 The Court conducted a pretrial conference in September 2010 in
preparation for the October 25, 2010 anticipated trial date. However, by letter dated
September 30, 2010, Dr. Fisher’s counsel in this case notified the Court and
Plaintiffs’ counsel that Defendant Fisher had filed for bankruptcy on May 3, 2010 in
the United States Bankruptcy Court for the District of Delaware. For reasons that
are not clear to the Court, neither Dr. Fisher nor his bankruptcy counsel notified
either counsel in this case of the bankruptcy filing.
Upon a bankruptcy filing, Section 362 of the United States Bankruptcy Code
automatically stays actions to create or enforce claims against a debtor or property
included within a bankruptcy estate. 3 An automatic stay was implemented in this
case beginning May 3, 2010 and remained in effect until June 9, 2011 when the
1
Jennifer Bell’s only claim is for loss of consortium.
Bell v. Fisher, 2010 WL 3447694 (Del. Super. Aug. 30, 2010).
3
See 11 U.S.C. §362(a)(1).
2
2
Bankruptcy Court lifted the automatic stay. 4 Defendants’ motions in limine and the
orders granting the motions occurred during the automatic stay.
After the bankruptcy stay was lifted, the Court held a scheduling conference
on August 30, 2011. At the conference, Plaintiffs’ counsel argued that discovery
was necessary to update the record with information developed during the stay. 5
Plaintiffs’ counsel stated his expectation that an expert’s health would prevent the
expert from testifying. Therefore, Plaintiffs’ counsel wished to substitute an
expert. 6 Furthermore, Plaintiffs’ contended that the motions in limine must be
reargued because the argument and the order occurred during the stay. 7 During the
scheduling conference, the Court entered a briefing schedule for Plaintiffs’ proposed
motion to vacate the orders granting Defendants’ motions in limine. 8
Defense counsel advised the Court at that August 30, 2011 scheduling
conference that Defendants opposed the identification of several new experts during
the new discovery period and feared this would result in the case’s complete
relitigation. Defense counsel explained, “I don’t have a problem with substituting
an expert based on a representation of counsel [that a prior expert was not healthy
enough to testify] but I would have an objection to having three new experts
identified on different specialties.” 9 The Court agreed with defense counsel and
urged the parties to “live with the existing record as much as possible.” 10 Plaintiffs’
counsel stated, “I would certainly be prepared to submit to [defense counsel] and to
the Court an explanation as to why I would be substituting the new person. I am not
going to go out and get a new expert wholesale. I am only concerned who for
whatever reason might not be able to testify.” 11
The Court set a new expert deadline and required Plaintiffs’ counsel to
explain why any purported new expert was required. 12 Defense counsel explained
that such an explanation would “give [defense counsel] an opportunity to then say to
the Court I object —if substitution is based on somebody’s illness or they can’t
4
In re Bruce D. Fisher, No. 10-11501-CSS (Bankr. D. Del. June 8, 2011)(Order Authorizing
Motion for Relief from the Automatic Stay).
5
Status Conference Tr. at 5 (Aug. 30, 2011).
6
Id.
7
Id.
8
Id. at p. 9-10.
9
Id. at p. 12.
10
Id.
11
Id. at 13.
12
Id.
3
participate, I am not going to have an objection to that. If it’s because well, I am
going to get new experts, I am going to have an issue with that and I obviously want
to be able to address that with the Court.” 13
The Court entered a trial scheduling order which included a right to identify
expert witnesses until November 30, 2011. 14 Additionally, the scheduling order set
September 30, 2011 as the deadline for Plaintiffs to submit a proffer regarding
Plaintiffs’ expected use of experts. 15 In September 2011, Plaintiffs submitted the
motion to vacate the previous orders occurring during the automatic stay. On
September 29, 2011, Plaintiffs submitted a letter which provided:
“Pursuant to the Trial Scheduling Order . . . this letter serves as
Plaintiffs’ status report regarding the expected use of witnesses at
trial, which is scheduled to begin on May 29, 2012. Plaintiffs
intend to call all of the witnesses identified in the Joint Pre-trial
Stipulation and Order filed with this Court on September 3, 2010.
Specifically, Jay W. Friedman, DDS MPH and David Sirois,
D.M.D., Ph.D. will be testifying in person at the trial. The
remaining witnesses will either be available to testify in person, or
be deposed by video deposition.” 16
Plaintiffs timely produced two new expert report disclosures by the deadline for
experts Dr. David Sirois, D.D.S., PhD and Robert Appleby D.O. (“Updated Expert
Reports”)
On December 6, 2011, the Court granted Plaintiffs’ motion to vacate previous
orders because they occurred during the automatic stay, but reissued the orders
without change. 17 The Court reasoned that while the automatic stay required both
parties to halt action in this case, the stay only required that the orders be
procedurally voided. 18 The Court determined the substance underlying the motions
did not require fresh consideration. 19 Specifically, the Court found Plaintiffs failed
to articulate how they were prejudiced by the orders’ occurrence during the stay and
failed to proffer proposed new evidence. 20 Plaintiffs timely filed a Motion for
13
Id. at 16.
Trial Scheduling Order, (Aug. 30. 2011).
15
Id.
16
Id.
17
Bell v. Fisher, 2011 WL 6400277 (Del. Super. Dec. 6, 2011).
18
Id. at *3-4
19
Id.
20
Id.
14
4
Reargument on the motion to vacate orders and briefing was completed in January
2012. Oral argument was held April 16, 2012. At the conclusion of oral argument,
the Court DENIED Plaintiff’s Motion for reargument with a written Opinion to
follow. This is that Opinion. Trial is scheduled for May 29, 2012.
II. The Parties’ Contentions
Plaintiffs’ seek to reargue the underlying motions in limine and assert the
Court failed to consider the updated expert reports when the Court reissued the
orders granting Defendants’ motions in limine. Plaintiffs contend they were denied
the opportunity to respond because the motions in limine were sua sponte deemed
re-filed without permitting Plaintiffs opportunity to argue that the updated expert
reports affect the underlying motions in limine. Plaintiffs assert it was legal error
for the Court to sua sponte reissue the motions in limine, while depriving Plaintiffs’
opportunity to respond. Plaintiffs seek to produce the updated expert reports and
respond anew to Defendants’ previous motions in light of the updated expert
reports’ findings. Plaintiffs contend that both experts were timely identified as
treating physicians during the initial discovery period and that the updated reports
support the three excluded experts’ testimony. Therefore, Plaintiffs assert the Court
must reevaluate the three previously granted motions in limine to determine whether
the updated expert reports compel the opposite result.
Defendants contend that in the September 29, 2011 letter, Plaintiffs only
mentioned their intent to call witnesses identified in the joint pre-trial stipulation,
and identified Drs. Friedman and Sirois, but failed to include a new expert, Dr.
Robert Appleby. Defendants argue that if Plaintiffs indicated an intention to
identify a new expert, Defendant would have objected. Defendants anticipated that
expert testimony would be limited to the opinions previously expressed by Drs.
Friedman and Sirois. Defendants argue that Plaintiffs now seek to re-open
discovery and moot the prior discovery and the Court’s previous deadlines.
Defendants contend that the Court’s scheduling order represented a final binding
order and only provided a limited new discovery period. Defendants contend that
the updated discovery does not compel reconsideration of the previous motions in
limine.
III. DISCUSSION
A motion for reargument will be denied unless the Court “overlooked a
precedent or legal principle that would have controlling effect, or that it has
5
misapprehended the law or the facts such as would affect the outcome of the
decision.” 21 Motions for reargument should not be used merely to rehash arguments
already decided by the Court. 22 Superior Court Civil Rule 59(e) allows a party to
file a motion for reargument following a Court opinion or decision and, “[t]he Court
will determine from the motion and answer whether reargument will be granted.” 23
Delaware litigants cannot use Rule 59(e) to raise new arguments. 24 Similarly,
federal case law interpreting the similar federal rule provides that a motion for
reargument cannot be used to raise arguments that “could have been raised prior to
the Court’s opinion or decision.” 25
Plaintiffs’ essentially contend the Court erred when it reissued its order
granting the motions in limine without considering the updated expert reports.
Plaintiffs seemingly assert that the Court misapprehended the facts and that such
misapprehension affected the Court’s decision. However, the arguments raised by
21
Gass v. Truax, 2002 WL 1426537 (Del. Super. June 28, 2002).
Norfleet v. Mid-Atlantic Realty Co., Inc., 2001 WL 695547 (Del Super. Apr. 20, 2001).
23
Delaware Superior Court Civil Rule 59(e).
24
Plummer v. Sherman, 2004 WL 63414 (Del. Super. Jan. 14, 2004). Bd. of Managers of the
Del.Crim. Justice Info. Sys. v. Gannett Co., 2003, 2003 WL 1579170 (Del.Super.Ct.) (holding
that a motion for reargument is not a device for raising new arguments or stringing out the length
of time), rev'd on other grounds Gannett Co. v. Bd. of Managers of the Del.Crim. Justice Info.
Sys., 2003 Del. LEXIS 644, 2003 WL 23104811 (Del.Supr.); Carlozzi v. Fidelity and Casualty
Company, 2001 Del.Super. LEXIS 217, *3-4, 2001 WL 755941 (Del.Super.Ct.) (holding that
motions for reargument will be denied where they rely on grounds not raised in the original
proceeding or where they merely advance the same matters that were already considered in the
original proceeding).
25
FDIC v. World University, Inc., 978 F.2d 10 (1st Cir.1992) (holding that parties should not use
Rule 59(e) motions to raise arguments which “could, and should,” have been made before a
judgment is issued); Moro and Kahuna, Inc. v. Shell Oil Company, 91 F.3d 872 (7th Cir.1996)
(holding that Rule 59(e) does not allow a party to advance new arguments that “could and
should” have been presented to the district court prior to judgment); Steele v. Young, 11 F.3d
1518 (10th Cir.1993) (holding that Rule 59(e) cannot be used to expand a judgment to
encompass new issues which “could” have been raised prior to issuance of the judgment). See
also Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1 (“The Rule
59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence
that could have been raised prior to the entry of judgment”); cf. 12 Moore's Federal Practice, §
59.30 (Matthew Bender 3d ed.) (“[A] motion to alter or amend [i.e., a motion for reargument]
may not be used to raise arguments, or to present evidence, that could reasonably have been
raised or presented before the entry of judgment”). The cases cited by Wright, Miller & Kane,
and Moore in support of the principle of law at issue contain two lines of language in their
holdings: “could and should [have raised],” or just “could [have raised].” This Court believes
that the standard is best expressed by the phrase “could have raised,” which phrase is also used in
the text of the two above treatises.
22
6
Plaintiffs are raised for the first time in this Motion. Nothing prevented Plaintiffs
from raising the current arguments in either their motion to vacate orders or in their
reply to Defendant’s response. As the Court mentioned specifically in its
December 6 Opinion:
[A]t no point in [Plaintiffs'] briefing did [Plaintiffs]
demonstrate how they were prejudiced (other than that they had
been unsuccessful in their opposition to the motion) simply
because the motions and the orders occurred during the stay.
Plaintiffs argue that they incurred substantial time and expense
because of the defendants' conduct. Additionally, Plaintiffs in their
Reply argue that they must be given the opportunity to present new
evidence. Nevertheless, Plaintiffs fail to proffer what potential
new evidence they would seek to present or how expenses were
greater because the motions were handled during the automatic
stay 26
Each of the arguments Plaintiffs currently advance were absent from
Plaintiffs’ motion to vacate orders. The absence of these arguments was expressly
contemplated by the Court when reaching its conclusion. On reargument,
Plaintiffs now argue particulars as to how the prior order was prejudicial, and for
the first time, the purported detrimental impact of the orders reissuance. Plaintiffs
were aware the Court might sua sponte reissue the orders and were given
opportunity to respond appropriately. In Defendants’ response to Plaintiff’s
motion to vacate orders, Defendants suggested that a possible alternative was for
the Court to reissue its orders granting of Defendants’ motions in limine after
procedurally vacating them. 27 Yet, despite Defendants explicitly raising that
argument, Plaintiffs only casually responded by mentioning purported “new
evidence” and “substantial time and expense” without more detail. 28
When the automatic stay was lifted, discovery was only opened to allow for
limited additional discovery. The Court expressly required Plaintiffs to provide
explanations for additional experts. No replacement experts were named and no
objection was made by defense counsel. Separately, Plaintiffs were permitted to
update expert reports where the facts underlying the previous reports changed
during the stay. No objection was made by Defendants to any updates made to
expert reports. However, despite the permissible updates, it does not follow that
26
Bell v. Fisher, 2011 WL 6400277 *3 (Del. Super. Dec. 6, 2011) (emphasis, internal quotations
and citations omitted).
27
Def’s. Response to Plaintiffs’ M to Vacate Orders at 2.
28
Pl’s Reply Br. at 2.
7
the Court’s analysis of the excluded testimony differs simply because the updates
support the excluded testimony.
The Court’s task of addressing the orders and motions unknowingly entered
during a bankruptcy automatic stay was an issue of apparent first impression
before the Court. Neither party cited any directly relevant precedent. Plaintiffs
provided terse briefing focused almost entirely on the procedural reasons why the
automatic stay forbade the entered orders. Despite being prompted by
Defendants’ response, Plaintiffs provided no specific substantive reason why the
underlying reasoning granting those motions must differ. Plaintiffs never asserted
in their motion or reply that the updated expert reports would modify the analysis
of the excluded expert testimony. Plaintiffs attempt to assert that the Court erred
by not considering the updated expert reports when Plaintiffs did not argue that
previously or even specifically mention the updated reports in their original papers.
While as Plaintiffs have asserted, the updated expert reports may “materially
change the state of the record,” 29 Plaintiffs’ failed to provide any support for that
position in their motion to vacate orders.
Because the arguments Plaintiffs presently offer were not argued in the
motion to vacate orders, Plaintiffs are barred from raising these new arguments in
their Motion for Reargument. Therefore, the Court need not reach the merits of
Plaintiffs’ argument and accordingly, Plaintiffs’ Motion for Reargument is
DENIED.
IT IS SO ORDERED.
____________________
Richard R. Cooch, R.J.
oc:
29
Prothonotary
Office Conference Tr. at 11-12 (Apr. 16, 2012)
8
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