May 2018

Patrick G. Rock and Magistrate Judge Sherry Fallon

Partner, Patrick G. Rock, President of the Defense Counsel of Delaware, presided over the annual DCD Breakfast on May 11, 2018 which hosted Guest Speaker Magistrate Judge Sherry Fallon of the United States District Court.  The breakfast was at the Dupont Hotel Ballroom and more than 55 people attended the event, including board members and members of the Defense Counsel of Delaware.  Other notable attendees were Judges from the Superior Court, President Judge Jan Jurden, Resident Judge Richard Cooch, Associate Judge Paul Wallace and Associate Judge Vivian Medinilla.
The mission of the Defense Counsel of Delaware is to “promote justice, professionalism and integrity by bringing together attorneys dedicated to the defense of civil litigation.”  President Rock said of the event, “every attorney in that room is dedicated to professionalism and integrity and none more than the guest speaker, Magistrate Judge Fallon.  It was a terrific event and having collaboration among the defense bar is a great way to serve our clients which is our top priority at Heckler & Frabizzio, P.A.  Collaboration allows us to offer our clients not only our attorney’s perspectives, but we can share experiences of our defense colleagues to help navigate our client’s matters through every court in Delaware.”
The annual breakfast is held in May of every year and the next event for the Defense Counsel of Delaware is a guest bartending happy hour at Tonic on June 14, 2018.  The tips from that event benefit Delaware Autism and you will likely see Patrick Rock and many of our attorneys at that event!  Come out and enjoy!

Daubert Motion Denial
Biomechanical Expert Force Of Impact Causation Opinion Admissible Referencing Pre-existing Degenerative Condition
Plaintiff filed a Daubert Motion to exclude testimony of Defendant’s biomechanical expert, Dr. David Gushue, who opined that the force of the accident was not sufficient to cause the injuries the Plaintiff alleged. One of the key issues was that Dr. Gushue took into account the specific condition of Plaintiff, including that he had a degenerative disc condition. The condition of the Plaintiff is key because biomechanical experts cannot testify about force of impact and causation of injury on the general public or “average person”, as they have to take into account the physical characteristics of the specific Plaintiff at issue. Plaintiff argued that Dr. Gushue’s testimony should be barred because of an insufficient scientific basis and that he relied upon articles that were not peer-reviewed. Plaintiff further argued that Dr. Gushue’s testimony was at odds with Defendant’s medical expert and therefore unreliable. The Judge disagreed with both arguments of Plaintiff, issued a verbal ruling denying the Daubert Motion, and permitted the expert testimony of Dr. Gushue. The ruling was a victory for the defense in permitting the biomechanical expert to offer an opinion to include reference to the Plaintiff’s pre-existing degenerative condition in rendering the expert opinion that the force of the accident was not sufficient to cause the injuries which the Plaintiff claimed.
For Information on this matter, please contact Michael A. Pedicone or any other attorney in our Liability Department.
Fuggett v. Aronowicz, C.A. No.: N11C-11-106

Against All Odds
Employer Defeats Neck Surgery Recommended by Four Treating Physicians
Claimant was involved in a 2008 work accident that occurred when he was working as a probation officer. He was in a diner with his partner, and saw a wanted suspect in the parking lot. He and his partner left the diner, and the claimant was then in a vehicle. Claimant and his partner drew their weapons, and the suspect hit them with the car, while the Claimant attempted to shoot the suspect. Claimant sustained significant acknowledged head laceration/concussion injuries, fractured a vertebra in his cervical spine, and hurt his back. He underwent accepted lumbar and cervical surgeries with Dr. Rudin as well as a left shoulder surgery. Employer acknowledged the following permanencies: 22% to the cervical spine, 27% to the lumbar spine, 8% to the left upper extremity, and 7.5% for headaches. Claimant continued to treat for years with a neurologist for headaches, a pain manager for narcotic medications, and transferred his care to Dr. Rastogi for additional cervical spine surgery evaluations. Dr. Rastogi recommended neck surgery, a Petition was filed for same, and Employer filed a Petition to discontinue narcotic medications. Claimant presented medical testimony confirming that four physicians had recommended the C6-7 disc replacement surgery. All four physicians diagnosed C6-7 radiculopathy and cited allegedly correlating MRI, EMG, and discogram, and physical examination evidence in support of their recommendations. Therefore, claimant must win, right?
Wrong. Dr. Fedder testified that the surgery was not compensable and that the claimant should be weaned from narcotics. His examination did not support a diagnosis of radiculopathy. The Claimant specifically denied arm pain. Dr. Fedder questioned the Claimant’s allegedly significant pain complaints as well as alleged headache and cognitive issues noting that claimant regularly drove without incident. Dr. Fedder also noted that Claimant was well muscled, indicating that he was doing some kind of physical conditioning or exercise. Even claimant’s physicians conceded there was no atrophy on physical examination which was inconsistent with radiculopathy. Interestingly, the original neck injury and surgery were to address a spinous process fracture. This is on the outside of the spine, not the canal. Claimant’s four cervical MRI studies after the accident did not show any acute issues outside of the spinous process fracture, and were negative for findings at C6-7. The EMG findings were localized to C5-6, not C6-7. Accordingly, the positive discogram at C6-7 was felt to be a red herring and rejected. Dr. Fedder was the only physician involved in the case who reviewed all the above studies. On the issue of opioids, Claimant’s pain manager and Dr. Rastogi both testified Claimant should be weaned. Dr. Fedder agreed, citing claimant’s morphine milligram equivalent dosage of 180, which grossly exceeded CDC recommendations. Claimant also presented at Hearing with a box full of 20 plus pill bottles of narcotic medication (most of them full) and testified that he had been saving the medication for two years in case the Board cut off the medications. The Board found that Claimant must be immediately weaned, and questioned the credibility of claimant’s significant pain complaints, noting that if the pain were as bad as claimant testified, he would have been taking the medication. The Board indicated this was a further reason he did not need the recommended neck surgery.
If you have any questions regarding this Decision, please contact Anthony Frabizzio or any other attorney in our Workers’ Compensation Department.
Scott Meixell v. State, IAB Hrg. No. 1318804 (Jan. 12, 2018).

Continuing Storm Doctrine Update
First Ice, Then Salt
In January of 2018, the Supreme Court issued an opinion in Lanie v Speedway, 2018 Del. LEXIS 6, * 14- 15 (Del. January 8, 2018), upholding the Superior Court application of freezing rain to the
continuing storm doctrine.
On May 2, 2018, the Supreme Court issued two additional opinions addressing the application of the continuing storm doctrine.
First, in Buchanan v. TD Bank, the Supreme Court concluded that the landowner’s duty to make premises reasonably safe for business invitees does not require the landowner to take pre-storm, precautionary measures to attempt to prevent ice from accumulating during a storm that has not yet arrived.
In Buchanan, Plaintiff slipped and fell on ice while walking into the bank. At the time Plaintiff fell, it was raining/sleeting. Plaintiff filed a lawsuit against Defendants alleging negligence for their failure to take reasonable steps to prevent ice and snow accumulation prior to the winter storm. Defendants filed a motion for summary judgment arguing under the continuing storm doctrine, that business owners are allowed to wait until precipitation has ended and a reasonable time thereafter before removing ice from the premises. The Plaintiff sought to avoid the continuing storm doctrine by arguing that the Defendants failed to take preventive or precautionary measures to prevent ice from forming before the storm began. Specifically, Defendants breached their duty of care by not salting the area or adequately salting the area before the storm. The Court rejected Plaintiff’s arguments, and upheld the granting of summary judgement by the Superior Court.
In Day v. Wilcox Landscaping, Inc., the Plaintiff was injured when she slipped and fell during a snow storm. The Superior Court granted summary judgment for Denfenants, ruling the continuing storm doctrine was a defense to Plaintiff’s negligence claim. Plaintiff made several arguments, including Defendant’s failure to take preventative or precautionary measures before the storm arrived, which was decided earlier that day in Buchanan v TD Bank, and thus this argument failed. Plaintiff also tried to argueD that the continuing storm doctrine does not apply to independent contractors as they are contractually bound to perform snow removal services. This argument failed because the doctrine applies to both those owning the land and those hired to perform the snow removal services on the land. Additionally, while the storm is ongoing, there is no duty, regardless of the existence of a contract. Accordingly, the Court again upheld the granting of Summary Judgement by the Superior Court.
For information on these Decisions or any other liability law questions, please contact any attorney in our Liability Department.
Day v. Wilcox Landscaping, Inc., 2018 Del. LEXIS 187 (Del. May 2, 2018)
Buchanan v TD Bank, N.A., et al. Del. LEXIS 187 (Del. May 2, 2018).


Double Checked: UIAB’s Credibility Determination  

Upheld Despite Conflicting Testimony Regarding Check Signing Authority
Under Delaware Law, the Delaware Superior Court has jurisdiction to hear Appeals regarding the decisions reached by the Unemployment Insurance Appeal Board (“UIAB”). In reviewing the UIAB’s decisions, the Superior Court must limit its review to “a determination of whether the Board’s decision is supported by substantial evidence and free from legal error.” In completing this review, the Court “is not authorized to … assess credibility of witnesses or weigh the evidence,” but rather decide if the evidence as noted in the record from the UIAB is “legally adequate to support the [UIAB’s] finding.”
In Capitol Cleaners v. Joseph Pedrotty, the Employer, Capitol Cleaners, appealed the UIAB’s finding that its ex-employee, Joseph Pedrotty (“Pedrotty”), was entitled to unemployment benefits and had not been fired for “just cause” as required to overcome Pedrotty’s entitlement to the same. Employer asserted that Pedrotty had been fired for cause after he failed to comply with his supervisor’s directive that no checks should be issued without prior approval. Pedrotty did acknowledge this directive in writing and later admitted to the UIAB that there may have been times where checks were signed without approval. Further, Employer asserted that claimant was lacking in other areas of his performance, to include failing to submit payments for wage garnishments to the appropriate agencies. Pedrotty stated that any poor performance was linked to being overworked and overwhelmed, and on the occasion that checks were submitted without prior approval, it was because he “didn’t want the employees to not get their checks,” and his supervisor was unavailable for approval of same.
In upholding the UIAB’s decision, the Superior Court found that while Employer contended that Pedrotty signing checks without approval was contradictory to the notice provided by Employer, the Board could infer, as noted by Pedrotty, that these checks were signed due to the supervisor’s unavailability. Therefore, the Court held, it was plausible the UIAB could find that this testimony does not conflict with Pedrotty’s statement that he never signed checks without authority following the written warning. Following further review of the UIAB record, the Court found that Employer had not met the “heavy burden” required for overturning the UIAB’s credibility determinations. The Court continued on to state that the “Board was entirely within its discretion to credit the Employee’s testimony over the Employer’s.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Capitol Cleaners v. Joseph Pedrotty, et al., C.A. No. K17A-08-001 WLW (Del. Supr. May 2, 2018).

May 16, 1927
U.S. Supreme Court Rules Bootleggers Must Pay Income Tax
In United States v. Sullivan,  274 U.S. 259 (1927), the U.S Supreme Court allowed prosecution of criminals for income tax evasion, the Fifth Amendment notwithstanding. In the 1920s, during prohibition, successful prosecution of prominent organized crime bosses was nearly impossible due to witness intimidation and lack of written records. Assistant Attorney General Mabel Walker Willebrandt, in charge of enforcing the Volsted Act which prohibited manufacture, production, use, and sale of high-proof spirits, is credited with recognizing that these figures publicly led lavish lifestyles yet never filed tax returns, and thus might be prosecuted for this failure without requiring testimony about the specific crimes that enriched them. The first person prosecuted under this theory was Manley Sullivan, a South Carolina bootlegger. Sullivan’s lawyers argued that filing a tax return on illegal income would amount to self-incrimination, and he was therefore protected by the Fifth Amendment. Sullivan was convicted in Federal court, but the conviction was reversed by the 4th Circuit Court of Appeals, on Fifth Amendment grounds.
On appeal to the U.S. Supreme Court, Justice Oliver Wedell Holmes Jr. wrote the decision for the Court. He noted that the Revenue Act of 1921 provided that gross income includes “gains, profits, and income derived from . . . the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever,” and that while the 1913 version of the law included the word “lawful” before “business,” Congress had removed the word “lawful” in 1921. Holmes rejected theFifth Amendment argument saying that if a defendant believed information required on the tax form would incriminate him, he could raise that issue on the form, but he could not simply refuse to file. Holmes dispatched another objection saying: “It is urged that, if a return were made, the defendant would be entitled to deduct illegal expenses, such as bribery. This by no means follows, but it will be time enough to consider the question when a taxpayer has the temerity to raise it”. Famously, the Sullivandecision was instrumental in the conviction for federal tax evasion of notorious gangster Al Capone four years later in 1931.

St. Anthony’s Italian Festival
    Anthony Frabizzio and his family will be running the Nona Strada Cafe at the St. Anthony’s Italian Festival this year from June 10 to June 17 in Wilmington, DE. All proceeds benefit the St. Anthony’s grade school. – To learn more please visit this link. 
DSBA WC Seminar Speakers
On Wednesday, May 2, 2018, H&F partner Maria Paris Newill and attorney John J. Ellis were presenters at the seminar on Workers’ Compensation. The Workers’ Compensation section of the Delaware State Bar Association sponsored this seminar, which this year had over 200 legal professionals and industry attendees. This event took place in New Castle County at the Chase Center on the Riverfront. For more information please visit the DSBA’s website.