The Thanksgiving Lesson - Know Your Expert’s Opinion In Advance
I call this the Thanksgiving lesson — if you will— on practice and procedure, especially when it comes to selecting which physician to testify on behalf of your client and knowing well in advance what that physician is willing to testify to.
In Harris v. Citigroup Global Mark, N20A-11-004 JRJ (Del. Super. Ct. Oct. 28, 2021), the claimant filed a DCD petition, alleging she developed bilateral carpal tunnel syndrome as a result of her job duties as an administrative agent for the employer. The deposition of claimant’s treating physician, Dr. J. Douglas Patterson, was scheduled for October 16, 2020 = 6 days before the scheduled hearing on the merits. Three days before the deposition and nine days before the hearing, the claimant canceled Dr. Patterson’s deposition because his testimony “would not be helpful in establishing causation related to the workplace.” Consequently, the claimant sought a continuance from the Board to allow her an opportunity to find a medical expert who might support her claim. The Board denied the claimant’s continuance request essentially stating that the claimant (1) chose her treating doctor to testify and (2) chose to cancel the deposition of said doctor — all of which were within her control. The mere fact that Dr. Patterson could not testify as to causation, by itself, was not a basis to prolong litigation. The hearing proceeded without medical expert testimony on behalf of the claimant, and, ultimately, the Board denied the claimant’s petition, concluding “there are simply too many holes in Claimant’s causation theory to allow the Board to find in her favor.”
On appeal, the Superior Court affirmed the Board’s decision, finding that:
The Board’s denial of the claimant’s continuance request was not an abuse of discretion nor an error of law because the Board ‘s determination that the claimant’s decision to cancel the deposition of her medical expert days before the hearing did not qualify as an unforeseen circumstance beyond her control, and therefore, it did not constitute “good cause” pursuant to 19 Del. C. § 2348(h) and Rule 12 (B)(1);
The Board’s denial of Claimant’s DCD Petition was supported by substantial evidence based on Claimant’s failure to establish good cause for the continuance, the Board had no expert medical testimony causally relating Claimant’s injuries to her work duties before it, and while the Board may consider evidence outside of medical testimony when determining causation, it did not consider the nature of the claimant’s carpal tunnel injuries to be so obvious as to establish their existence and severity without expert medical opinion.
On behalf of my mom and I, we would like to wish you and your families a safe and happy Thanksgiving filled with lots of pumpkin pie! Be on the lookout in the weeks to come for our Holiday Round-up!
Best,
Caroline Kaminski
