McCloskey v. Welch et al

Filing 93

MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/30/17. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHAD J. MCCLOSKEY,
Plaintiff,
v.

BUREAU CHIEF JAMES WELCH,
et al.,
Defendants.

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) Civ. Action No. 14-030-GMS
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MEMORANDUM
1. Background. The plaintiff, Chad J. McCloskey ("McCloskey"), an inmate at the
James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit on January
14, 2014, pursuant to 42 U.S.C. § 1983. 1 (D.I. 3.) McCloskey appears prose and was granted
permission to proceed informa pauperis pursuant to 28 U.S.C. § 1915. (D.I. 7.) The case
proceeds on medical needs claims against the defendants. McCloskey seeks additional time to
respond to dispositive motions (D.I. 89), moves for discovery (D.I. 90) and, for a second time,
moves to convene a medical negligence review panel (D.I. 91).
2. Motion for Additional Time. McCloskey requests additional time to respond to the
defendants' pending dispositive motions. (D.I. 89.) The court will grant the motion. McCloskey
states that he did not receive copies of the motions that the court indicated it would copy and
forward to him. The Clerk's Office provided the copies to McCloskey by mail on May 5, 2017.

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When bringing a § 1983 claim, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).

Out of an abundance of caution, the Clerk's Office mailed a second set of the motions to
McCloskey on May 22, 2017.
3. Motion for Discovery. McCloskey has filed a motion to obtain certain discovery.
(D.I. 90.) The court will deny the motion. The discovery deadline expired on February 1, 2016.

(See D.I. 52.) It has not been extended.
4. Second Motion to Convene Medical Negligence Review Panel. McCloskey moves
the court to convene a medical negligence/malpractice review panel as proscribed under 18 Del.
C. § 6814 to "void the need for the plaintiff to file an affidavit of merit pursuant to 18 Del. C.
§ 6853." (D.I. 91.) The motion is identical to a motion to convene a medical negligence review
panel that McCloskey filed in August 2015 and that was denied on November 19, 2015. (See
D.I. 46, D.I. 67.)
5. Pursuant to Delaware Superior Court Civil Rule of Procedure Rule 71.2(b), "a party
may file a demand to convene a malpractice review panel at any time subsequent to entry of
appearance by all defendants who have been served and after a reasonable time for discovery
unless otherwise stipulated to by the parties or ordered by the Court." Del. Sup. Ct. Civ. R. P.
7 l.2(b ). Section 6853( e) of the Delaware Health Care Negligence Insurance and Litigation Act
provides in pertinent part:
No liability shall be based upon asserted negligence unless expert medical
testimony is presented as to the alleged deviation from the applicable standard of
care in the specific circumstances of the case and as to the causation of the alleged
personal injury or death, except that such expert medical testimony shall not be
required if a medical negligence review panel has found negligence to have
occurred and to have caused the alleged personal injury or death and the opinion
of such panel is admitted into evidence ....

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18 Del. C. § 6853(e). The Delaware Superior Court reads§ 6853(e) and Rule 71.2 together, and
is satisfied that, where a timely demand to convene a medical malpractice review panel has been
filed, no affidavit of merit is required under Section 6853. See Miller v. Taylor, 2010 WL
3386580, at *2 (Del. Super. Aug. 19, 2010).
6. Section 6814 of the Delaware Health Care Negligence Insurance and Litigation Act
provides that the Delaware Insurance Commissioner shall convene a medical negligence review
panel at the request of a Federal District Court Judge sitting in a civil action in the District of
Delaware alleging medical negligence in the manner instructed by the said federal court, but also
in a manner as consistent as possible with the process of selecting such panels provided for in
Superior Court actions. See 18 Del. C. § 6814. The caveat to this section, however, is that the
Insurance Commissioner shall not convene any such panels at the request of any such federal
court "unless provisions are made for the payment of the compensation and expenses of such
panelists and the compensation and expenses of all witnesses called by such panel out of the
funds other than those of the General Fund of the State." Id.
7. The court lacks authority to appoint a medical review panel for McCloskey at the
public's expense. See e.g., Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) ("Congress
has authorized the courts to waive prepayment of such items as filing fees and transcripts if a
party qualifies to proceed in forma pauperis. 28 U.S.C. § 1915. However, we have been directed
to no statutory authority nor to any appropriation to which the courts may look for payment of
expert witness fees in civil suits for damages. Provisions have been made for expert witness fees
in criminal cases, 18 U.S.C. § 3006A(e)(l), but not in civil damage suits."). Nor has McCloskey,
who has been granted informa pauperis status, indicated that he has the financial means for

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compensation and expenses of the medical review panel. Therefore, the court will deny without
prejudice the motion to convene a medical negligence review panel. The court will reconsider
the request upon a showing by McCloskey of his financial ability to pay the compensation and
expenses of the medical review panel.
8. Conclusion. For the above reasons, the court will grant the plaintiff additional time to
respond to dispositive motions (D.I. 89), deny the motion for discovery (D.1. 90) and deny the
motion to convene a medical malpractice review panel (D.I. 91 ). An appropriate Order follows.

TES DISTRICT JUDGE

f:l2-'-1 3.1

,2017
Wilmington, Delaware

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