Roxanne Eastes, attorney, was sworn into the New York State Bar on June 25th, 2020. Congratulations Roxanne!!
CONGRATULATIONS TO THE VALEDICTORIAN
Sarah Unterberger’s younger sister Lauren was awarded valedictorian of Mount Pleasant High School! Sarah is very proud. Congratulations Lauren!
Jess Lee, paralegal, welcomes a new family member Ava! Ava is a black lab and loves to chew everything. Welcome home Ava!
WORKERS’ COMPENSATION LAW
MIND THE GAP: BOARD CITES 15 MONTH GAP IN TREATMENT IN FINDING WORK RELATED INJURY “RESOLVED”
Claimant was involved in an accepted 8/13/2015 work accident involving a lumbar injury, with limited medical benefits paid through treatment cessation on 7/20/17. Claimant resumed treatment in October 2018, which was denied as not causally related to the work accident.
In an IAB Decision on Claimant’s petition for benefits, the Board found that Claimant sustained only a resolved lumbar strain/sprain injury in the work accident, which returned to her pre-existing baseline condition by 7/20/17, accepting the opinion of Defense Expert, Dr. Gelman, over that of Claimant’s treating physician, Dr. Bakst. The evidence established that Claimant’s low back and left leg were chronically symptomatic dating back to a 1998 non-work-related automobile accident. Even though, the Claimant suggested that she had no back problems from 2000 until the 2015 work event, her medical records suggested otherwise with additional employment record evidence of periodic work absences due to back pain in the same time frame. Her condition at the time of the 7/20/17 treatment discharge was similar to her pre-injury, baseline condition. Her own physician’s physical examination at that time was benign with low pain scores and she did not return to treatment for 15 months. The Board also rejected Claimant’ s testimony that the reason for the treatment gap was due to personal issues finding that the Claimant was able to treat for other non-work-related medical conditions during the 15-month gap. The Board further questioned whether Claimant’s October 2018 presentation was truly a “flare up” of the original work injury noting that although Claimant pointed to her right sided MRI findings as evidence of a structural disc injury, Claimant’s lower extremity complaints were consistently left sided before and after the work injury. The Board went on to accept Dr. Gelman’s testimony that it is well established that the side where the herniation and compression are displayed on MRI correlates with which side leg symptoms will present.
Should you have any questions concerning this Decision, please contact John Ellis, or any other attorney in our Workers’ Compensation Department.
Michelle Westbrook v. Walgreens, IAB Hrg. No. 1432077 (May 11, 2020).
LITIGATION CASE LAW
WHEN CALCULATING THE STATUTE OF LIMITATION UNDER THE RELATION BACK DOCTRINE, DON’T FORGET TO CARRY THE ONE (OR 120).
Plaintiff alleges she slipped and fell on water that was leaking from a cooler at Ride Aid. Initially, the Plaintiff commenced litigation solely against Rite Aid. However, after filing suit, the Plaintiff learned that Rite Aid had a contractual agreement with Medi-Pure, Inc. for servicing its water coolers. Subsequently, the Plaintiff attempted to add Medi-Pure as a defendant in the litigation.
The catch. Medi-Pure was notified and served with the amended complaint more than 120 days after the filing of the initial complaint and following the expiration of the two-year statute of limitations. However, Medi-Pure received notice of the complaint prior to the expiration of the statute of limitation plus 120 days. Medi-Pure moved for summary judgment asserting that the Plaintiff’s claims were time-barred.
In evaluating the requirements for a defendant to be added to a litigation after the statute of limitations has expired, the Delaware Superior Court reviewed the elements set forth in its Civil Procedure Rule 15(c), commonly known as the “relation back” doctrine. Thereunder, an amended complaint relates back to the date of the original pleadings if, among other requirements, “within the period provided by statute or these Rules for service of the summons and complaint, the party sought to be added received notice of the action, and knew or should have known that but for a mistake, it would have been named initially.”
The Court held that Rule 15(c)(2) effectively extends the statute of limitations by 120 days regardless of when the initial complaint was filed. Essentially, the statute of limitations and 120-day Rule for service of process are stacked for the purposes of Rule 15(c)(2). Medi-Pure was put on notice of the litigation within a week of the statute’s expiration (well within the 120 day period immediately following the expiration) and knew that but for a mistake it would have been named in the lawsuit. As such, Medi-Pure’s dispositive motion practice was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Clifton v. Rite Aid of Delaware, Inc., et al., 2020 Del. Super. LEXIS 340 (July 8, 2020).
Plaintiff Blew the Statute of Limitations, Barring His Claim
Plaintiff began working for Defendant in May 2015 and became the Associate Director of Academic Programming in October 2015. This position was a grant position, which was supposed to be at a salary of $75,000.00 but was offered to plaintiff at $70,000.00.
In January 2016, the plaintiff became aware of a safety issue, in which at least one student was participating in athletics without being enrolled full time. Plaintiff reported this issue verbally and in writing to the Associate Director of Academic Services, who disapproved of plaintiff expressing his concerns in writing. Plaintiff then reported the safety issue to the Director of Athletics and Associate Provost, also complaining about the discrepancy in his salary as violating grant conditions. The Associate Provost advised the Plaintiff he was not happy about his email. Plaintiff was terminated on February 16, 2016.
In September 2016, Plaintiff reapplied for employment with Defendant for the position of Associate Director for Compliance. Plaintiff was not accepted for the position, being told it was due to his prior complaint.
Plaintiff filed a Complaint against Defendant for unlawful retaliation in violation of 19 Del. C. §1791, also known as the Delaware Whistleblower Protection Act (“DWPA”). Plaintiff’s initial complaint was filed on February 25, 2019 and his amended complaint on June 25, 2019, which alleged defendant unlawfully retaliated against the Plaintiff when it failed to rehire the Plaintiff for a new position.
Defendant argues that the three-year statute of limitations for the DWPA claim expired on February 16, 2019, nine days before Plaintiff filed his initial complaint. Plaintiff argues that the unlawful discrimination was the refusal to rehire which occurred in October 2016, which would make his filing of the complaint within the statute of limitations.
The statute of limitations begins to run at the time the wrongful act occurs, and it runs regardless of whether the plaintiff is aware that the cause of action has accrued. The Court found that the Delaware Whistleblower Protection Act is granted to current employees, not former employees and the legislative intent was to exclude former employees.
The Court concluded that Plaintiff’s action is untimely, and time barred because the only applicable conduct is his termination on February 16, 2016 and the three-year limitation period expired on February 16, 2019.
Reynolds v. Del. State Univ.,2020 U.S. Dist. LEXIS 111894, at *1 (D. Del. June 25, 2020).
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.