February 2019
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ANNOUNCEMENTS
A Winning Record
Serving our clients is our #1 goal. Our attorneys preeminent winning records for 2018 are highlighted below:
Women in the Law Retreat
Partners Maria Paris Newill and Amy Taylor as well as associate Michele Subers will be attending the Women in the Law Retreat on March 1st & 2nd. The seminar is presented by the Women in the Law Section of the Delaware State Bar Association.
Partner John Gilbert Retirement
Congratulations to partner John Gilbert on his retirement from the practice of law. The Firm is happy for John and his wife Karen who will be leaving Delaware and relocating to Florida. After 32 years of legal practice, John is excited to slow down and move onto the next chapter of his life. We wish John and Karen the best in their retirement and we look forward to hearing stories of lobster, shrimp and hurricanes! We’ll miss you John!
Presentation on Courtroom Technology
Workers Compensation Department Associate Michael Torrice will be presenting during a CLE program on Courtroom Technology on February 13, 2019 at the Rodney Inn of Court.
Workers’ Compensation Annual Report
Pursuant to 19 Del. C. §2301D(b), attached please find an electronic version of the 21st Annual Report on the Status of Workers’ Compensation Case Management.
The electronic delivery of this report is in accordance with the 12/16/09 directive from Ann Visalli, Director of the Office of Management and Budget, which states, “Effective immediately, all printed reports, as required by committee, task force or council within the executive branch, shall be submitted to the prescribed recipient electronically, unless otherwise required by Delaware code or mandate.”
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LITIGATION CASE LAW UPDATE
What You See is Not What You Get
In the matter of Rodas v. Hazzard, the damage to the plaintiff’s vehicle in a collision did not substantiate the claim that the Defendant was operating his vehicle at a high rate of speed.
 Citing Burkhart v. Davies (Del. 1991) and Davis v. Maute (Del. 2001), the judge affirmed that Summary Judgement is appropriate where the evidence of record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgement as a matter of law. This was the case in Rodas v. Hazzard.
The Complaint detailed claims that the Defendant was travelling at a high rate of speed and did not signal his intention to make a turn into the intersection. During deposition, however, the Plaintiff admitted that he did not know the Plaintiff’s speed, or if he used his turn signal. The Defendant testified that he was operating his vehicle within the posted limit. Plaintiff’s response was that the nature of his injury and damage to the vehicle could allow the jury to infer that the Defendant was travelling at a high rate of speed.
In the ruling, the judge stated that inferring speed based on damage was too speculative without expert testimony. With no evidence in the record to support any claims of negligence on the part of the Defendant, the Defendant is entitled to judgement as a matter of law and the motion for Summary Judgement was granted.
Should you have any questions regarding this decision, please contact Amy Taylor, or any any attorney in our Liability Law Department.
Rodas v. Hazzard, 2019 Del. Super. LEXIS 49 (Del. Super. Ct. January 23, 2019)
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RECENT WIN
WORKERS’ COMPENSATION REPORT
Better Stick to Picnic Baskets:
Board Precludes Attempted Medical Testimony of “Nurse Bobo”
 Claimant filed an initial Petition alleging a 6/28/17 right elbow/biceps injury, total disability from the date of accident until 9/18/17, and partial disability from 9/19/17 and ongoing. Employer, based upon the testimony of Dr. Crain, agreed that the injury occurred, and treatment was appropriate. However, Employer disputed the significant period of disability alleged. Employer asserted two primary arguments. Employer argued that claimant’s expert, “Nurse Bobo” was not competent to provide testimony on the issue of work capability status. Employer also argued that the record evidence did not substantiate the period of disability alleged.The Board agreed that Nurse Bobo could not provide medical testimony. Nurse Bobo did not have the knowledge, skill, experience, training, or education necessary regarding Claimant’s work injury and its effect on his work capabilities, nor did she exhibit an understanding of the legal standard to which she must testify in Delaware (“reasonable degree of medical probability”). The Board commented that Nurse Bobo did not “seem to understand the meaning of the term diagnosis.” She did not understand whether she could make medical conclusions or diagnoses without being under the supervision of a medical doctor. The Board commented that her alleged diagnosis was “right arm pain,” but this was not a diagnosis, it was a symptom.
The Board then accepted the now unrebutted opinion of defense expert Dr. Crain on the issue of disability and opined that Claimant had failed to satisfy his burden of proof on this issue. Dr. Crain noted that during the relevant time period, Nurse Bobo’s examinations revealed no objective findings. No medication was prescribed. The records showed no change in claimant’s condition during this time. Other records supported lack of disability status. Dr. Crain’s examination was normal. There was also evidence that claimant applied for unemployment benefits in February 2018 and indicated “he was open to any job.” Claimant started working at a hardware store in March 2018 with activities of cleaning, stocking shelves, driving forklifts, and carrying/lifting lumber and concrete. The Board noted these activities were not consistent with a light duty position. Claimant also indicated in his job application for this position that he could perform all job duties without accommodation. Claimant admitted he worked overtime for this employer.
If you have any questions regarding this Decision, please contact John Gilbert, or any other attorney in our Workers’ Compensation Department.
Anthony Carl Wolford v. Cape Environmental Management, Inc., IAB Hrg. No. 1465632 (Jan 9, 2019).
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EMPLOYMENT LAW UPDATE
Delaware’s Sexual Harassment Training Law Is In Effect
 Delaware’s sexual harassment training law became effective January 1, 2019 and it applies to Delaware employers, with 50 or more employees.Sexual harassment of an employee is an unlawful employment practice when the employee is subjected to conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. An employer is responsible for sexual harassment of an employee when: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of the non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee.
Training shall include: (a) The illegality of sexual harassment; (b) The definition of sexual harassment using examples; (c) The legal remedies and complaint process available to the employee; (d) Directions on how to contact the Department of Labor; and (e) The legal prohibition against retaliation.
Training is to be conducted within one year of January 1, 2019 for existing staff and then every two years thereafter. New staff employees are required to complete the training within one year of their employment and then every two years thereafter. Employers are not required to provide training to applicants, independent contractors or employees employed less than 6 months continuously.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Heckler & Frabizzio staff members were trained on February 12th by an employment law attorney. |
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THIS DAY IN LEGAL HISTORY
February 14, 1803
U. S. Supreme Court issues decision in
Marbury v. Madison
Chief Justice John Marshall writing for the Court declared in Marbury v. Madison that any act of the U. S. Congress that conflicts with the Constitution is void, establishing the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution. Marbury remains the single most important decision in American constitutional law and established that the U.S. Constitution is actual “law”, not just a statement of political principles and ideals, and which helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
The case originated from the political and ideological rivalry between outgoing President John Adams, a Federalist, and incoming President Thomas Jefferson, a Democratic-Republican. Adams lost the presidential election of 1800 to Jefferson, and in March 1801, just two days before his term as president ended, Adams appointed several dozen men who supported him and the Federalist party to new circuit judge and justice of the peace positions in an attempt to frustrate Jefferson and his supporters. The U. S. Senate quickly confirmed Adams’ appointments, but upon Jefferson’s inauguration two days later, a few of the new judges’ commissions still had not been delivered. Jefferson believed the commissions were void because they had not been delivered in time, and instructed his new Secretary of State, James Madison, not to deliver them. One of the men whose commissions had not been delivered in time was William Marbury, a Maryland businessman who had been a strong supporter of Adams and the Federalists. In late 1801, after Madison had repeatedly refused to deliver his commission, Marbury filed a lawsuit in the Supreme Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.
In an opinion written by Chief Justice Marshal, the Court held firstly that Madison’s refusal to deliver Marbury’s commission was illegal, and secondly that it was normally proper for a Court in such situations to order the government official in question to deliver the commission. However, in Marbury’s case, the Court did not order Madison to comply. Examining the law Congress had passed that gave the Supreme Court jurisdiction over types of cases like Marbury’s, Marshall found that the law had expanded the definition of the Supreme Court’s jurisdiction beyond what was originally set down in the U. S. Constitution. Marshall therefore struck down the law, announcing that American courts have the power to invalidate laws that they find to violate the Constitution. Accordingly, because this meant the Court had no jurisdiction over the case, it could not issue the writ that Marbury had requested.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); 2 L. Ed. 60; 1803 U.S. LEXIS 352
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