Hopkins v. Frontino et al

Filing 25

MEMORANDUM ORDER denying 22 MOTION for Reargument. Signed by Judge Richard G. Andrews on 2/7/2012. (ksr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STANLEY HOPKINS,
Plaintiff,
Civil Action No. 11-900-RGA

v.

JOSEPH FRONTINO, et al.,
Defendants.

MEMORANDUM ORDER
Before the Court is the Plaintiffs Motion for Reargument of the Court's Decision and
Order Dated January 5, 2012 Pursuant to FED. R. Crv. P. 60(b)(6). (D.I. 22). In this medical
negligence suit, Plaintiff asserts that Defendants Joseph Frontino, D.O., Delmarva Emergency
Physicians, LLP ("DEP"), David Cloney, M.D., and Atlantic Surgical Associates, LLC,
performed an emergency exploratory abdominal surgery that was counterindicated and that
caused pain and suffering, disfigurement, and disability. Dr. Frontino and DEP requested this
Court review any affidavit of merit that Plaintiff might have filed with his complaint for
compliance with 18 DEL. C.

~

6853, and requested the Court dismiss the complaint if Plaintiff

had not filed an affidavit. (D.I. 8, p.3, n.1). The Court dismissed Plaintiffs claims against all
defendants without prejudice for failure to file an affidavit of merit. (D.I. 20-21 ).
Plaintiff argues here, as he argued in response to the original motion by Dr. Frontino and
DEP, that~ 6853 is a state procedural rule that does not apply in this diversity suit under Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1937), and that therefore he did not need to file an affidavit

of merit (D.I. 22). Dr. Frontino and DEP opposed reargument, arguing that Local Rule 7.1.5

1

guides the relief Plaintiffs motion seeks, not FED.R.Crv.P. 60(b), and that under either rule,
Plaintiffs citation of Dishman v. Fucci, 2011 WL 5438957 (Del. Nov. 10, 2011) does not
provide Plaintiff any extension of time for his Affidavit of Merit or establish

~

65 83 as a

procedural rule that does not bind this Court.
Plaintiff has failed to meet the burden necessary to warrant reargument or reconsideration
under either Rule 60 or Local Rule 7.1.5. Plaintiff simply restated his argument that~ 6853 is a
state procedural rule, with an additional citation of an inapplicable case that was available to him
at the time of the original briefing. 1 Dishman is inapplicable because it addresses the prima facie
evidentiary requirements of an affidavit of merit and the procedural consequences from failing to
submit the affiant's curriculum vitae with the affidavit of merit.
Plaintiffs renewed attempt to distinguish Third Circuit cases finding similar Pennsylvania
and New Jersey affidavit of merit statutes to be binding substantive law also fails. The Delaware
statute, like the Pennsylvania and New Jersey statutes, was designed to reduce the filing of
meritless negligence claims, and the penalty for failing to comply is dismissal. Liggan-Redding
v. Sugarman, 659 F.3d 258, 262-63 (3d Cir. 2011); Chamberlain v. Giampapa, 210 F.3d 154,
160-61 (3d Cir. 2000); Dishman, 2011 WL 5438957, *2. Delaware's reference in its statute to
the Superior Court and the Prothonotary does not change the nature of the statute, and the District
Court and the Clerk serve the same functions in the federal courts as the Superior Court and the
Prothonotary serve in Delaware courts.
Plaintiff has not shown fraud, mistake, or newly discovered evidence as required under Rule

1

Dishman was decided November 101h and the Plaintiffs Response was filed December

2

60; nor has he shown the Court to have patently misunderstood him, that the Court erred in
apprehension, or that the Court made a decision outside the scope of the issue presented, as
required under Local Rule 7.1.5. See Maymi v. Phelps, No. 10-638, 2011 WL 6034480, *1 (D.
Del. Dec. 5, 2011) (providing the Rule 60 standard); Dentsply Int'l, Inc. v. Kerr Mfg Co., 42
F.Supp.2d 385,419 (D. Del. 1999) (providing the Local Rule 7.1.5 standard).
THEREFORE, the

7tl--aay of February, 2012, the Court ORDERS that Plaintiffs Motion

for Reargument is DENIED.

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