November 2017

Everyone Knows What Hoagie Guts Are,
Don’t They?
We all know Delawareans are serious about their hoagies, so when you hear that the First State’s number one gas station deli is invoking trade secret privileges in Superior Court, one would guess they want to keep their competitors from learning the perfect proportion of provolone to Capicola on their famous hoagie sandwiches.
Wawa found itself as a party in Superior Court defending against allegations of negligence arising from a patron slipping on a discarded hoagie – or “hoagie guts.” The allegations resulted in significant motion practice. Wawa moved for Summary Judgment arguing Plaintiff’s allegations of negligence were specific, highly technical and clearly beyond the knowledge of the average person, and therefore required expert testimony. To the contrary, Plaintiff contended “that an expert is unnecessary because the need to sweep up trash in a parking lot is something all lay persons understand.”  In siding with the Plaintiff, the Superior Court found that expert testimony was not required for a jury to determine if the store was negligent for failure to clean up the “hoagie guts.”
Wawa also moved for a Protective Order, arguing that Plaintiff’s request to depose a store supervisor was subject to privilege under Delaware Rules of Evidence. The Court did not take issue with Plaintiff’s discovery request, so long as the questions were relevant to the specific incident before the Court.  So while Wawa may be able to invoke privilege to prevent their employees from disclosing the recipe for a cheesesteak or café latte, the Superior Court found that the convenience store did not establish that information such as staffing guidelines, records from manager meetings and incident or safety kits are actually trade secrets protected by privilege.
If you have any questions regarding this Decision, please contact any of our attorneys in our Liability Department.
Donovan v. Wawa, Inc., C.A. No. N16C-05-068 CLS (Del. Super. Ct. October 17, 2017).

IAB Just Says No To Narcotic Medication
Orders Inpatient Detox
This matter concerned a 1993 low back injury. Claimant had a failed lumbar spine surgery, and had essentially been on ongoing total and/or partial disability benefits plus high doses of narcotic pain medications for close to 25 years. Employer filed a Petition for Review seeking to terminate Claimant’s pain management program and total disability benefits.
The Board found that the Employer met its burden to show that Claimant’s total disability benefits shall be terminated as of sixty days from the date of his admission into an inpatient narcotics detoxification program, and ordered Claimant to “promptly enroll in such a program.”
In reaching this decision, the Board noted that it found the testimony of Employer’s expert, Dr. Nathan Schwartz, to be more credible than that of Claimant’s expert, Dr. Uthaman. The Board agreed with Dr. Schwartz that Dr. Uthaman’s program was not effective because he had not documented positive patient response or improvement in condition as required by the healthcare practice guidelines. The Board also relied on Dr. Schwartz’s testimony that Dr. Uthaman’s program was dangerous to the Claimant, as Dr. Uthaman had not considered the effect of claimant’s chronic alcoholism and medical marijuana usage, both of which are central nervous system depressants.
Should you have any questions concerning this Decision, please contact Anthony Frabizzio, or any of our other workers’ compensation attorneys.
Maurice Parham v. ERCO Ceilings of Delaware, Inc., IAB Hrg. No. 1015833 (Oct. 11, 2017)


Phoned In Employer Defense Disconnect:
Unemployment Benefits Granted Due To Inadmissible Telephonic Testimony
The Delaware Administrative Code governs not only how to commence an action before the Unemployment Board but also the rules pertaining to the admissibility of evidence during such actions. Pursuant to 19 Del. Admin. Code §1201-4.7.4, “[t]he Board shall not receive into evidence any testimony offered by means of a telephone or other electronic or electromagnetic device.”
In Smack v. Randstad HR Solutions of DE, Keyauna Smack (“Smack”) was appealing the prior Decision of the Board to the Superior Court, stating that the Board had improperly considered evidence submitted by employer, Randstad HR Solutions of Delaware (“Randstad”), via electronic format during its telephonic appearance before the Board. In this instance, Smack was an employee of Randstad on assignment to FedEx. On January 5, 2017, Smack alleged that she was notified by her supervisor at FedEx that things were slow and there would be some “downtime.” Following this notice, Smack filed for unemployment benefits. However, employer, Randstad, testifying via telephone, contended that Smack was not due any unemployment benefits, as she had voluntarily quit and had failed to notify employer of her assignment ending. Randstad stated that such notice was required by various “Agreements” employees are required to sign, which were submitted during Randstad’s telephonic appearance before the Board. Smack, at Hearing and on appeal, contested not only the validity of her signing such “Agreements” but also the Board’s admission of the documents into evidence.
In reversing the Board’s decision, the Superior Court held that under the Delaware Administrative Code, the Board cannot consider or admit any evidence, testimony, or document which is offered via telephone or other electronic means. By relying on testimony and evidence that was received via telephone in finding for Randstad, the Board had directly violated the procedure outlined in the Code and committed reversible legal error. Accordingly, the Superior Court reversed and sent the matter back to the Board for reconsideration consistent with the Superior Court findings.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
 C.A. No. S17A-06-002 THG (Del. Super. Ct. Nov. 8, 2017).

November 15, 1904
King Camp Gillette was granted a U.S. Patent for an improved safety razor. Gillette’s innovation was the development of a thin, inexpensive, disposable blade of stamped steel. By 1908, the corporation Gillette founded, the Gillette Safety Razor Company, had established manufacturing facilities in the United States, Canada, Britain, France and Germany with razor sales reaching 450 thousand units and blade sales exceeding 70 million units by 1915. In 1917, when the U.S. entered World War I, the company provided all American soldiers with a field razor set, paid for by the government. Ironically, Gillette was also a Utopian Socialist, and he published a book titled the Human Drift in 1894, which advocated that all industry should be taken over by a single corporation owned by the public, and that everyone in the U.S. should live in a giant city called Metropolis powered by Niagara Falls.

On November 12th Maria Paris Newill presented U.S. Senator Carper with the SDRA Public Service Award in Maria’s capacity as President of the Smyrna Downtown Renaissance Association (SDRA).
We congratulate John Gilbert on 30 years as a practicing attorney and wish him continued success and achievement.