October 2018

Co-Managing Partner Maria Paris Newill attended a seminar in September presented by The Defense Research Institute (DRI) on Nursing Home / ALF Litigation in New Orleans, LA. Please contact our office with any Nursing Home litigation claims or questions you may have.
Heckler & Frabizzio’s Managing Partner Patrick G. Rock is currently attending the Annual Defense Research Institute (DRI) Conference in San Francisco, California. This annual meeting provides valuable educational information and the opportunity to interact with and learn from litigation defense industry leaders.
Heckler & Frabizzio staff Page Hyson, Brianna Grajewski and Stephanie Dzedzy participated in Bike to the Bay in support of The National Multiple Sclerosis Society. This charity event took place on October 13th, the ride was 75 miles beginning in Dover, DE and ending in Rehoboth Beach, DE. The team of H&F ladies raised over $1,500 to help the fight against MS.

Switching Teams?
Dr. Zaslavsky Testifies Successfully For Employer
Claimant was on total disability for four years as the result of an acknowledged low back injury. Claimant had multiple failed back surgeries and she was seen for a defense medical examination with a finding that she was “permanently totally disabled.”
Claimant’s treating physician, Dr. Zaslavsky, then sent the Claimant for a functional capacity evaluation, which found full time sedentary duty work capability. Dr. Zaslavsky released the Claimant to return to work starting at three days per week but working up to five days per week.
Employer filed a Petition to Terminate total disability. Both parties called Dr. Zaslavsky as their medical witness. Dr. Zaslavsky changed course in his deposition and testified that he only sent the Claimant for the functional capacity evaluation because she pressed him to see whether she could do any job, so that she could at least attempt to contribute financially to her family. He felt that she would never be a reliable worker because after every occasion where she exerted herself, even for a very brief period of time, she was bed-ridden for 2-3 days afterwards. He agreed with the defense medical expert’s opinion on permanent total disability. On cross examination, he conceded that this opinion was not contained in his medical records. His records only noted his return to work release. He agreed that Employer’s labor market survey was technically compliant with his restrictions as stated in his disability notes.
The Board found that Claimant was medically capable of working based on the functional capacity evaluation and Dr. Zaslavsky’s notes. She was not a displaced worker as, while there was evidence of a minimal job search, there was no evidence offered that Claimant was not hired because of her work injury. The Board also noted that Claimant had numerous transferrable skills, as she had a college degree and numerous years of experience in the educational field. The Board further stated that Employer’s labor market survey was a reasonable representation of jobs available to the Claimant in the open labor market.
Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
Joy Ferguson v. State of Delaware, IAB Hrg. No. 1420745 (Aug. 27, 2018).


Lack Of Decedent Examination
Not A Bar to Medical Expert Testimony
On February 12, 2016, decedent allegedly slipped and fell outside of defendant’s facility. Decedent was then hospitalized for a fractured hip and subsequently experienced a number of complications until her death. Plaintiffs, on behalf of decedent, allege that decedent died as a result of a slip and fall and subsequent complications for which defendants are liable. Defendant filed a Daubert Motion to exclude the testimony of Plaintiffs’ medical expert. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), is a United States Supreme Court case determining the standard for admitting expert testimony.)
Defendant argued that Plaintiffs’ physician-witness lacked the requisite knowledge to qualify as an expert witness, based on the physician never having evaluated the decedent after her fall.
The Court found that the Daubert standard for admissibility of expert witness testimony was met. First, the physician received a medical degree and subsequent license and is qualified in the medical field. Second, the physician’s report is relevant and reliable as defined by Daubert. The physician’s opinions were based on his training and experience as an M.D., he reviewed the decedent’s medical records and, based on his training, was able to offer an opinion as to what caused her death. Third, under Mumford v. Paris, “an experienced practicing physician is an expert, and it is not required that he be a specialist in the particular malady at issue in order to make his testimony as an expert admissible.” Fourth, the physician’s opinions and testimony will assist the trier of fact. Finally, the physician’s testimony will not create prejudice or confusion or mislead the jury.
Therefore, the Court found that the physician is a medical expert under Daubert and Defendant’s Motion to Exclude Opinions and Testimony of the medical expert was denied.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.

Employee’s Unemployment Benefits Denied Following Sexual Harassment Allegations
Under Delaware Law, an employee may be entitled to unemployment benefits even in the case of a voluntary resignation if their departure was due to “good cause attributable to such work.” 19 Del.C. §3314(1). In these circumstances, Delaware Courts have found “good cause” to include “substantial reduction in wages or hours or a substantial deviation in working conditions from the original agreement of hire to the employee’s detriment.” In addition to showing good cause for the voluntary resignation, the employee must also show that all other administrative remedies were exhausted. In the case of a sexual harassment claim, this would include reporting the matter to the Delaware Depart of Labor, Office of Anti-Discrimination. ** The Office of Anti-Discrimination would then proceed to investigate the matter and further help the employee collect lost wages if the same is the result of the alleged harassment, satisfying the second prong of the Court’s test when determining eligibility for unemployment benefits.
In Feige v. Boulevard Auto Sales, Inc., Shirley Feige (“Feige”) was employed as a wholesale clerk scanner for Boulevard Auto Sales (“Employer”) from February 2016 to November 2017. During her time of employment with Employer, Feige alleged that her boss asked her on a date on three separate occasions. In addition to the alleged advances by her boss, she also alleged that she was harassed by her co-workers with name calling and statements that she should leave her job. Feige did subsequently report the issues to the human resources representative, following which an investigation was completed. However, the investigation was impeded due to Feige’s refusal to identify the alleged co-workers, as well as failing to respond to human resources follow-up inquiries. Additionally, when asked, her co-workers denied any wrongdoing or having committed the acts alleged. Further, Feige never reported these alleged incidents to the Office of Anti-Discrimination in order to have the claims further investigated and possibly resolved. Ultimately, Feige did voluntarily resign from her position with Employer and filed for unemployment benefits.
In upholding the Unemployment Appeals Board’s decision to deny Feige benefits, the Court found that not only did Feige fail to show “good cause” for voluntarily leaving her position, but she also failed to seek/ exhaust other administrative remedies prior to resigning. The Court noted that Feige herself prevented the Employer from completing a full investigation into her claims by failing to respond to requests for key information. In reviewing the record and the facts as noted above, the Court found that the Board did have substantial evidence to support its finding that while Feige was unhappy about her work environment, “unhappiness arising out of an unpleasant work environment does not constitute good cause” for voluntary resignation.
Shirley M. Feige v. Boulevard Auto Sales, Inc., and Unemployment Insurance Appeal Board, C.A. No. S18A-06-001 ESB (Del. Super. Ct. Sept. 17, 2018).
**Further resources and information on this topic can be found at

October 17, 1888
Thomas Edison Files First Motion Picture Patent Claim
On October 17, 1888, Thomas Edison filed a preliminary claim, known as a caveat, with the U.S. Patent Office announcing his plans to create a device called an Optical Phonograph (motion picture) that Edison wrote would do “for the eye what the phonograph does for the ear”. It is clear that it was intended as part of a complete audiovisual system with Edison also writing that “we may see & hear a whole opera as perfectly as if actually present”.  In March 1889, Edison filed a second caveat, in which the proposed motion picture device was given a name, Kinetoscope, derived from the Greek roots kineto (“movement”) and scopos (“to view”). It was the first in a long line of commercially unsuccessful inventions, refinements and developments in the field of motion pictures by Edison and others that sought to integrate sound and moving pictures with such names as Eidoloscope, Photoscope, Vitascope, Projectoscope, Super Kinetoscope, and Projecting Kinetoscope. Attempts to synchronize sound and moving pictures on film would continue for another 30 years until 1927 when the first commercially successful sound on film movies appeared in theaters, with the most famous of which was the Jazz Singer made with Vitaphone, which was at the time the leading brand of sound-on-film technology.