January 2020

A Winning Record
Serving our clients is our #1 goal. Our preeminent attorneys winning records for 2019 are highlighted below:
Maria Paris Newill
Win: 9
Losses: 2
Split: 1
Outstanding: 2
Gregory P. Skolnik
Win: 11
Losses: 5
Split: 2
Outstanding: 3
John J. Ellis
Win: 13
Losses: 2
Split: 2
Outstanding: 2
Video That “Shows Nothing” Wins the Day
Claimant filed a Petition alleging that while she was stocking shelves with packages of JELL-O at Walmart, she needed to lift a shelf to fit more packages, and while lifting the shelf, she felt immediate severe pain in her back, “yelled out” in response, and expected someone to come to her aide. Claimant requested acknowledgement of the injury and payment of associated medical bills.
The Board denied the Petition finding her testimony about the accident and injuries not credible and inconsistent with the record evidence. Accident scene video showed claimant stocking the shelf with JELL-O. She did not appear to lift the shelf as she had claimed, nor did anything else untoward occur. There were multiple co-workers observed on screen, none of whom appeared to react to the claimant as would be expected had she “yelled out” as alleged. The Claimant was shown stepping back from the shelf on several occasions, going to an adjacent aisle to speak to another associate, and placing boxes on a cart. The Board cited testimony from employer witnesses who observed no changes in claimant’s work habits before and after the accident, as well as extensive medical records documenting that claimant had a well-known symptomatic permanent injury to her back prior to the alleged event at Walmart.
This outcome illustrates the point that accident scene video should always be preserved, even if at first glance nothing appears to occur. There is often evidence contained in accident scene videos that may not jump out as relevant in the early investigation stages of the case, but can be of great assistance later in rebutting allegations of a work event.
Should you have any questions concerning this Decision, please contact Maria Paris Newill, or any other attorney in our Workers’ Compensation Department.
Cerarea Demby v. Walmart Associates, Inc., IAB Hrg. No. 1483744 (Dec. 3, 2019)
Speak Up, Write Up
Plaintiff (Employer) terminated the Defendant (Employee) after an office prescription stamp went missing and after receiving complaints about how the Employee treated her co-workers. Employee filed for unemployment benefits and her claim was denied after the claims deputy found her ineligible for disregarding the company rules and standards. The Employee appealed the decision to the appeals referee who reversed the claims deputy decision. The appeal referee found that the Employer failed to provide the Employee a prior, final, unequivocal warning and the Employer failed to produce any evidence that the Employee took or misplaced the office stamp. The Employer then appealed to the UIAB (“Board”) who upheld the appeals referee decision.
Employer appealed the Board’s decision to the Superior Court arguing that the Board’s decision was not based on substantial evidence and was a result of legal error. Further, Employer argued that it was denied due process because it had retained counsel who was late to the Board’s hearing and was not permitted entry into the hearing.
First, the Court found that the Employer was not denied due process. The Court explained that though the parties have a right to retain counsel, many parties are often unrepresented at UIAB hearings. Here, the Employer had no attorney prior to the appeals referee hearing and no entry of appearance or other attorney contact prior to the UIAB hearing. Further, when the hearing began, Employer did not notify the Board at any time that it had retained an attorney, that it was missing its attorney, or even that it desired any attorney. Therefore, the Court found that the Board did not commit legal error by failing to permit something it knew nothing about.
The Court also found that the Board committed no legal error in its decision when determining if Employee was terminated for just cause. In its decision, the Board correctly explained that Delaware law requires “notice to the employees in the form of a final warning that further poor behavior or performance may lead to termination,” and the Board found that evidence to be missing. The Board also weighed the evidence, judged the credibility of the witnesses, and found that the Employee’s alleged misconduct was not sufficiently willful or wanton to excuse a final warning.
Therefore, the Board’s decision was upheld, and the Employee was entitled to benefits.
Kids v. Marie O’Brian, 2020 Del. Super. LEXIS (Del. Super. Ct. January 8, 2020)
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Plaintiff was thrown out of a bar in Trolley Square on St. Patrick’s Day. What’s thrown up, must come down. Plaintiff did— and sustained various injuries. Subsequently, the Plaintiff commenced a civil action against the bar, as well as three individuals who were employed as security staff, alleging assault and battery.
At the close of discovery, the Defendants moved for summary judgment averring that the Plaintiff failed to produce any evidence to support his claims. Additionally, the Defendants moved to exclude all evidence at trial of injuries to the Plaintiff’s eye, knee, and sense of well-being on the grounds that the Plaintiff did not present expert opinions regarding the nature, extent, or cause of those injuries.
In denying the Defendants’ Motion for Summary Judgment, the Court found that a genuine issue of material fact remained as to whether the Plaintiff was assaulted and battered by the Defendants.
The Court then considered the Defendants’ Motion in Limine to exclude evidence of injury regarding Plaintiff’s eye, knee, and sense of well-being. The Court noted that expert testimony is necessary if a claim requires proof of facts that are not within the common knowledge of laymen. The Court held that injuries suffered as the result of being beaten in a barroom brawl are within the common knowledge of lay jurors, such that expert testimony is not required. As such, Defendants’ Motion in Limine was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Jordan v. Trolley Tap House, Inc., 2020 Del. Super. LEXIS 10 (Jan. 8, 2020) (MSJ); Jordan v. Trolley Tap House, Inc., 2020 Del. Super. LEXIS 11 (Jan. 8, 2020) (MIL).
The Delaware State Bar Association (DSBA), held its annual WC Breakfast Seminar on January 14th from 8:30 am – 12:00 pm at the Chase Center on the Riverfront. John Ellis, Partner, spoke on a panel regarding case law updates. For more information about this event please visit dsba.org.