On 5/2/21, Claimant was injured in a fall from a second story window during a training exercise as a volunteer firefighter. On 9/12/22, Claimant filed a Petition seeking pre-authorization of a single level lumbar fusion surgery recommended by Dr. Yalamanchili during his first visit with the claimant on 9/7/22.

The Board found that the proposed surgery was not reasonable and necessary treatment at this time, accepting the opinion of defense medical expert, Dr. Close, over Dr. Yalamanchili.

The Board agreed with Dr. Close that the claimant had not exhausted conservative care. Claimant had not received steroid injections, which could be both diagnostic and therapeutic. Further physical therapy could benefit the claimant, especially as she had experienced good relief with this particular modality in the past. Anti-neuropathy medications should be trialed. An EMG would be of diagnostic utility. Claimant should have a second opinion.

The Board was also not comfortable with the risks associated with the surgery. Even Dr. Yalamanchili testified that claimant’s chances of success were 60-70% at best. Even with the surgery, the balance of patients do not improve and may even get worse. Dr. Close testified credibly that there were several factors that caused him to question Dr. Yalamanchili’s projections. Specifically, Claimant’s imaging findings were degenerative, common in patients in her age group, and showed no spinal instability. There was a bulge without any cord compromise. Fusion surgery is not effective for predominantly axial low back pain. Claimant conceded that she had predominantly low back pain and her leg pain was only intermittent. Fusion surgery would predispose Claimant to developing adjacent segment problems, especially as she already had pathology in at least one adjacent level.

Should you have any questions regarding this decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.

Jesika Martin v. State of Delaware, IAB Hrg. No. 1511181 (Mar. 6, 2023).

LITIGATION LAW UPDATE

Medical Expert Testimony Limited: Proffering Party Fails to Bridge Gap Between Data and Opinions

The Superior Court granted Defendants’ Motion to Limit the Testimony of Plaintiffs’ medical expert following an analysis of Delaware Rule of Evidence 702 and Daubert.  The Court reviewed Delaware’s Daubert requirements and emphasized that the burden is on the proponent of the proffered expert to prove the five Daubert elements by a preponderance of evidence. An opinion that “is not based upon an understanding of the fundamental facts of the case . . . can provide no assistance to the jury and such testimony must be excluded.”

In this case, the Court considered the proffered testimony of chiropractor Dr. Jack Norsworthy. Defendant motioned to limit Dr. Norsworthy’s causation opinion, arguing that it demonstrated a misunderstanding of the facts and was otherwise conclusory. In response, Plaintiffs failed to address the substance of Defendant’s motion and instead argued that Defendant has an opportunity to depose Dr. Norsworthy, cross-examine him at trial, or present rebuttal testimony to address Dr. Norsworthy’s conclusions.

The Court agreed that Delaware law, generally, allows chiropractors to opine on causation and permanency, but such opinions must be tied to the facts of the case at hand. The proffering party has the burden of establishing “the requisite level of expertise, sufficiency of supporting data, reliability of the methodology, and explaining how the testimony would help the trier of fact.” Furthermore, Plaintiffs “cannot punt away their burden by arguing that depositions, cross-examination, and retention of a rebuttal expert somehow frees her from this burden.” The Court reasoned that, without further explanation, Dr. Norsworthy’s opinion is ipse dixit and there was “nothing to bridge the gap between the data and his proffered opinions.” Defendant’s motion was granted and Dr. Norsworthy’s testimony on causation was excluded.

Sandra Torres and Gerardo Escobedo v. Stanley Stein, C.A. No. N21C-06-202 FWW (Del. Super. March 1, 2023)

EMPLOYMENT LAW

Plaintiff’s Attempt to Bring

Federal Lawsuit Fails

Plaintiff was employed by Defendant from 2009 through October 2017. In February and July of 2017, the Plaintiff alleges she was harassed by her employer based on her race and color and was subsequently terminated.

Plaintiff filed a claim with the Delaware Department of Labor (“DDOL”) and allegedly filed a charge with the Equal Employment Opportunity Commission (“EEOC”). After a “No-Cause Determination” by the DDOL, the Plaintiff received a right to sue letter. Plaintiff filed her Complaint in Federal Court, alleging that the EEOC issued her a right to sue letter. She attached a February 26, 2021 DDOL right to sue letter to her Complaint, which indicates that the charge was dual filed with the EEOC because there was an EEOC case number.

Plaintiff’s Complaint contained a broad outline of allegations of harassment. Therefore, the Defendant filed a Motion to Dismiss the initial Complaint on the grounds that the Plaintiff failed to state a claim of discrimination or harassment due to her race. The Court granted the Defendant’s motion and provided the Plaintiff with an opportunity to amend her Complaint. The Court also asked that the Plaintiff provide the EEOC right to sue letter. However, the Amended Complaint contained the same allegations in her original Complaint.  Further, the right to sue letter attached to the Amended Complaint was from the DDOL and not from the EEOC. Therefore, Defendant once again moved for dismissal.

In reviewing a Motion to Dismiss, the Court must accept all factual allegations in the Complaint as true and take them in the light most favorable to Plaintiff.   The Court noted that a Complaint “must do more than simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Further, a Plaintiff must plead facts sufficient to show that a cause has substantive plausibility, which is content that allows the Court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.

In this case, the Plaintiff proceeded pro se.  As such, her pleadings were liberally construed and her Complaint, “however inartfully plead, must be held to less stringent standards.” The Court analyzed the right to sue letter and determined that the Plaintiff’s claim of discrimination was never presented to the EEOC.  Therefore, the DDOL right to sue letter cannot “unlock the door to federal court” as the Court pointed out. The EEOC right to sue letter is required in order for the Plaintiff to bring a lawsuit in Federal Court. Since the Plaintiff has failed to provide the Court with an EEOC right to sue letter, the Court granted the Defendant’s Motion to Dismiss and dismissed the Amended Complaint without prejudice.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

Thomas v. Christiana Health Care Services, 2022 WL 671002 (D.Del., 2022)