Collis v. Topper's Salon and Health Spa, Inc., et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
TORINA A. COLLIS,
Plaintiff,
v.
TOPPER’S SALON AND HEATH
SPA, INC., & TINA CASEY,
Defendants.
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Submitted: July 12, 2013
Decided: August 29, 2013
Torina A. Collins, Pro Se..
Douglas T. Walsh, Esq., Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware. Attorney for Defendants.
Upon Consideration of Plaintiff’s
Motion for Summary Judgment DENIED
Defendants’ Motion for Summary Judgment GRANTED
VAUGHN, President Judge
Collis v. Topper’s Salon.
C.A. No. 11C-04-007 JTV
August 29, 2013
OPINION
This is a professional negligence action. The pro se plaintiff, Torina Collis
(“Ms. Collis”), alleges that she was injured while receiving a massage from Tina
Casey (“Ms. Casey”), a licensed massage therapist employed by Topper’s Salon &
Health Spa, Inc. (“Topper’s”) (collectively, “Defendants”). All of the parties have
now moved for summary judgment.
FACTS
On April 5, 2009, Ms. Collis received the massage in question at Topper’s
location in Dover. During the massage, the plaintiff alleges that Ms. Casey performed
cranial therapy and other maneuvers without disclosing any of the associated risks.
Additionally, she asserts that Topper’s did not have her fill out any medical history
at any time during the visit. Ms. Collis contends that she has sustained injuries to her
head, neck and upper back as a result of Defendants’ negligence, and that treatment
for those injuries is ongoing.
The plaintiff filed her complaint on April 5, 2011 and the Court entered a
scheduling order on August 8, 2012. The expert disclosure deadline was originally
set for April 15, 2013. The parties twice stipulated to extend the expert disclosure
deadline, and established June 28, 2013 as the cutoff for the plaintiff. On June 20,
2013, the Court denied Ms. Collis’ motion for a new scheduling order. The trial date
provided in the August 8, 2012 scheduling order has remained in place. A jury trial
is scheduled to commence on September 9, 2013.
The central issue before the Court involves the plaintiff's alleged failure to
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provide any expert testimony to support her negligence claim. The Court heard oral
argument on the motions for summary judgment on July 12, 2013. During the motion
hearing, Ms. Collis maintained that she did not need any experts to prove negligence
in this case. However, she alternatively claimed that she had, in fact, emailed a list
of experts to Defendants’ counsel on June 28, 2013, in compliance with the expert
disclosure date. She provided the list to the Court at the hearing. Four days after the
hearing, on July 16, 2013, the plaintiff submitted a letter to the Court wherein she
requested yet more time to submit an expert report in the event that she had
misinterpreted the applicable law.
The plaintiff’s Motion for Summary Judgment does not have any merit. Ms.
Collis has not proved essential elements of her negligence case as a matter of law.
Therefore, for the same reasons discussed later in this opinion, the plaintiff’s Motion
for Summary Judgment is denied. However, at Ms. Collis’ request, and in accordance
with the leniency this Court provides to pro se litigants, I will consider the more
expansive arguments contained in the plaintiff’s briefing in support of her motion as
part of her response to Defendants’ motion.
CONTENTIONS
Generally, Defendants contend that summary judgment is warranted for two
reasons: (1) because Ms. Collis has failed to obtain competent expert testimony
regarding the standard of care applicable to a professional massage therapist and (2)
because Ms. Collis has failed to offer any expert opinion causally relating the
plaintiff’s injuries to the alleged negligence. Defendants contend that the allegations
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Ms. Collis raises in her complaint regarding the standard of care—i.e., the scope of
massage therapy, the techniques and maneuvers a professional massage therapist may
use and the manner in which the techniques are implemented—are not within the
common knowledge of a layperson and must be established through expert testimony.
Additionally, Defendants contend that none of the plaintiff’s proposed experts offer
a causation opinion. Lastly, Defendants contend that the settlement offer from their
insurer to Ms. Collis is inadmissible at trial to prove liability pursuant to Delaware
Rule of Evidence 408.1
Ms. Collis contends that reasonable jurors of ordinary experience and
intelligence can understand whether a massage therapist was negligent without the
aid of an expert. She argues that the fact that Ms. Casey made a mistake is so
apparent that a layperson is competent to determine whether there was negligence.
Ms. Collis further contends that expert testimony is not required to establish causation
in this case because she was in good health before the massage, but afterwards, her
neck became stuck, causing severe pain and headaches. She suggests that the
connection between Defendants’ actions and her injuries is obvious and within the
common knowledge of a layperson. Alternatively, she contends that she has
disclosed expert opinions in compliance with the stipulated deadline. Finally, she
contends that Defendants’ insurer admitted to liability and the validity of her claim
when it made a settlement offer on January 11, 2011.
1
D.R.E. 408.
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STANDARD OF REVIEW
Summary judgment should be granted when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.2 “[T]he
moving party bears the burden of establishing the non-existence of material issues of
fact.”3 If a motion is properly supported, the burden shifts to the non-moving party
to establish the existence of material issues of fact.4 In considering the motion, the
facts must be viewed in the light most favorable to the non-moving party. 5 Thus, the
court must accept all undisputed factual assertions and accept the non-movant’s
version of any disputed facts.6 Summary judgment is inappropriate “when the record
reasonably indicates that a material fact is in dispute or if it seems desirable to inquire
more thoroughly into the facts in order to clarify the application of law to the
circumstances.” 7
DISCUSSION
“To prove negligence, [the plaintiff] is required to establish, by a
2
Super. Ct. Civ. R. 56(c).
3
Gray v. Allstate Ins. Co., 2007 WL 1334563, at *1 (Del. Super. May 2, 2007).
4
Id.
5
Pierce v. Int’l Ins. Co. of Ill., 671 A.2d 1361, 1363 (Del. 1996).
6
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
7
Mumford & Miller Concrete, Inc. v. New Castle Cnty., 2007 WL 404771, at *1 (Del.
Super. Jan. 31, 2007).
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preponderance of the evidence, that the defendants failed to meet their respective
legal standard of care, and that the defendants’ misconduct proximately harmed her;
that is; she must prove the elements of duty, breach, causation, and harm.”8
The plaintiff’s contention that she does not need expert testimony to prove her
claim for bodily injuries is contrary to Delaware law. In Rayfield v. Power, the
Delaware Supreme Court held that “[w]ith a claim for bodily injuries, the causal
connection between the defendant's alleged negligent conduct and the plaintiff's
alleged injury must be proven by the direct testimony of a competent medical
expert.”9 Ms. Collis’ argument that this case is distinguishable from Rayfield because
it involves a massage rather than an automobile accident is not persuasive. Medical
expert testimony regarding causation is required when there is a claim for bodily
injuries, regardless of the nature of the negligence involved. Moreover, the injuries
that the plaintiff allegedly suffered in this case cannot readily be observed by the
naked eye and may have been caused by any number of prior activities or
occurrences. It follows that expert testimony is needed to connect the alleged
negligence with the injuries.10
Further, none of the alleged experts whom the plaintiff has disclosed offer
8
Jones v. Crawford, 1 A.3d 299, 302 (Del. 2010)
9
840 A.2d 642, 2003 WL 22873037, at *1 (Del. Dec. 2, 2003) (TABLE).
10
See Cann v. Dunner, 2008 WL 5048425, at *3 (Del. Super. Nov. 13, 2008) (“Unlike a
fracture or laceration, a soft tissue injury cannot be seen by the naked eye. Soft tissue injuries
may be caused by a number of activities or prior occurrences. Thus, expert medical testimony is
necessary to connect the defendant’s negligence with the plaintiff’s injuries . . . .”).
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opinions linking the alleged injuries to actions undertaken by Ms. Casey.
The plaintiff has produced a note from a chiropractor, Ronda Sharman, D.C.,
that is dated October 18, 2012. The majority of the note describes the types and
frequency of chiropractic treatment received by the plaintiff. The doctor opines that
“Ms. Collis will continue to have flare-ups throughout her lifetime which will require
treatment.”11 However, Dr. Sharman never connects the injury to negligence on the
part of Ms. Casey or Topper’s. She merely reports that at a March 30, 2011
appointment, Ms. Collis told her the pain began after receiving the massage.
On June 28, 2013, the plaintiff attempted to email a list of four expert witnesses
to counsel for Defendants. In the document attached to the email, she provided
witness names, contact information and a brief summary of their expected testimony.
First, the plaintiff named Tracy Morris, a massage therapist who first treated Ms.
Collis in 2011. Ms. Morris’ proposed testimony pertains to the severity of the
plaintiff’s injuries and the dangers associated with cranial sacral therapy when it is
performed incorrectly. Second, Ms. Collis named GiGi Leon, a Physician Assistant
who treated the plaintiff after the April 5, 2009 incident. Ms. Leon is said to have
stated “that cranial therapy is dangerous if the person does not know what they are
doing.” 12 Additional testimony from Ms. Leon would address the plaintiff’s pain and
the treatment necessary to manage that pain. Third, Ms. Collis again named Dr.
11
Defs.’ Mot. Summ. J., D.I. 43, Ex. D.
12
Pl.’s List of Experts, D.I. 59.
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August 29, 2013
Sharman, whose summarized testimony appears to be consistent with what was
provided in her letter of October 18, 2012. Last, the plaintiff indicated that she would
call Defendants’ insurer’s medical expert who reviewed the plaintiff’s medicals. Ms.
Collis states that this person will testify that, upon review of the plaintiff’s medical
records, the injuries appear to be related to the incident.
Ms. Collis admits that she does not know who the insurer’s doctor is, let alone
what opinion he or she would be willing to offer at trial. Consequently, none of the
aforementioned witnesses offers a causation opinion. The jury may not infer that the
massage caused the injuries without a supporting expert’s opinion to a reasonable
degree of medical probability.
I further conclude that Defendants are correct in their contention that an expert
is necessary to establish the professional standard of care of a massage therapist in
order to determine whether a breach occurred. In Weaver v. Lukoff, the Delaware
Supreme Court stated:
As a general rule the standard of care applicable to a
professional can only be established through expert
testimony. An exception to this rule exists, however, when
the professional’s mistake is so apparent that a layman,
exercising his common sense, is perfectly competent to
determine whether there was negligence.13
13
Weaver v. Lukoff, 511 A.2d 1044, 1986 WL 17121, at *1 (Del. July 1, 1986) (TABLE)
(citations omitted).
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Massage therapists are required to be licensed in Delaware.14 Presumably, Ms. Casey
was licensed at the time of the alleged negligence. I find that a layman would not be
able to determine from a description of the massage whether Ms. Casey breached the
standard of care for a reasonable massage therapist. Expert testimony is necessary. 15
Ms. Collis did provide a potential standard of care expert in Tracy Morris, a massage
therapist. However, the plaintiff has not disclosed any opinion from Ms. Morris
regarding a professional standard of care beyond “Ms. Morris is familiar with cranial
sacral therapy and realizes it can be dangerous if done incorrectly.”16 This broad
statement cannot be construed as offering any opinion regarding what the standard
of care was, and whether Ms. Casey breached that standard.
As to the plaintiff’s contention regarding the January 11, 2011 settlement offer
from Defendants’ insurer, pursuant to Delaware Rule of Evidence 408,17 the offer is
not admissible at trial to prove liability. At the time of the offer, the claim was clearly
disputed as to both validity and amount.
14
24 Del. C. § 5307.
15
See Bickom v. Bierwagen, 852 N.Y.S.2d 542, 543 (N.Y. App. Div. 2008) (holding that
the plaintiff’s submission of an expert affidavit raised a triable issue of fact as to a physical
therapist’s alleged departure from the standard of care during a massage).
16
Pl.’s List of Experts, D.I. 59.
17
D.R.E. 408 provides: “Evidence of (1) furnishing or offering or promising to furnish,
or (2) accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount is not
admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible.”
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August 29, 2013
The Court is mindful of Drejka18 and its progeny.19 However, Ms. Collis had
many opportunities during the discovery period to obtain the expert testimony
necessary to support her negligence claim. The Court twice permitted an extension
of the expert disclosure deadline. Despite these accommodations, the plaintiff
affirmatively decided against securing competent expert testimony under the mistaken
theory that it was unnecessary. Now, with the trial date imminent, it is too late to
substantiate her claim. Any further delay would require the Court to reschedule trial.
The comments from the persons whom Ms. Collis has identified as experts are brief
and generalized. None of them have any pertinent connection to the defendants in
this case, and it does not seem likely to the Court that refining those comments would
lead to opinions which are required to make a prima facie case. The case has been
pending over two years. Ms. Collis’ failure to procure expert testimony means that
she cannot survive summary judgment because she has not “adequately establish[ed]
all the elements essential to [her] case that [she] would have the burden of proving
at trial.”20 She cannot establish a prima facie negligence case.21
18
Drejka v. Hitchens Tire Serv., 15 A.3d 1221 (Del. 2010).
19
See, e.g., Hill v. DuShuttle, 58 A.3d 403, 406 (Del. 2013) (finding dismissal of a
plaintiff’s case to be an inappropriate sanction for failing to comply with a court order and
disclose a medical expert in a personal injury case).
20
Rayfield, 840 A.2d 642, 2003 WL 22873037, at *1.
21
See Money v. Manville Corp. Asbestos Disease Comp. Trust Fund, 596 A.2d 1372,
1375-76 (Del. 1991) ("[I]f the matter in issue is one within the knowledge of experts only and not
within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert
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Collis v. Topper’s Salon.
C.A. No. 11C-04-007 JTV
August 29, 2013
CONCLUSION
Defendants’ Motion for Summary Judgment is granted.
IT IS SO ORDERED.
/s/
oc:
cc:
James T. Vaughn, Jr.
Prothonotary
Order Distribution
File
testimony in order to establish a prima facie case.” (quoting M.S. Madden, Products Liability
533 (2nd ed. 1988))).
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