Opinions Digested in Delaware Law Weekly for the Issue of
CIVIL PRACTICE Attorney Fees l Family Court Proceedings l Default Judgment l Motion to Reopen l Opposition Braham v. Braham DeFAX Case No. D63182 (Del. Supr. March 20, 2008).
Husband was not entitled to an award of attorney fees incurred in opposing wife’s motion to reopen a default judgment in Family Court where, inter alia, the Family Court specifically disclaimed any finding of bad faith on wife’s part and where wife was not in a position of financial superiority over husband. Vacated.
CIVIL PRACTICE Sanctions l Denial l Expert Testimony l Exclusion l Summary Judgment Empire Financial Services, Inc. v. Bank of New York (Delaware) DeFAX Case No. D63181 (Del. Supr. March 19, 2008).
Although the trial court did not err in refusing to impose sanctions in a discovery matter and in excluding reports from plaintiff’s proffered expert, it erred in granting summary judgment to defendant on the issue of lost profits. Reversed in part and remanded.
CRIMINAL PRACTICE Speedy Trial l Barker Factors l Delay l Prejudice Dabney v. State DeFAX Case No. D63183 (Del. Supr. March 10, 2008).
Defendant was entitled to have his conviction for rape second degree reversed due to violation of his right to a speedy trial, where the state alone was responsible for the delay and where defendant, who was incarcerated for over a year while awaiting trial, suffered prejudice. Reversed and remanded.
WORKERS’ COMPENSATION Causation l Carpal Tunnel Syndrome l Diabetes l Expert Testimony Fryberger v. Securitas DeFAX Case No. D63187 (IAB Nov. 28, 2007).
Claimant established that her carpal tunnel syndrome was a compensable injury and not attributable to her diabetes, where her treating orthopedic surgeon credibly related causation of the syndrome to claimant’s work accident. Petition to determine compensation due granted.
WORKERS’ COMPENSATION Disability l Right to Compensation l Forfeiture l Refusal of Reasonable Medical Services Parker v. Kanicki First Class DeFAX Case No. D63184 (IAB Nov. 20, 2007).
Employer failed to meet its burden of demonstrating that claimant unequivocally refused reasonable medical services where the evidence established that claimant was merely inconsiderate in his efforts to schedule surgery. Motion for reargument denied.
WORKERS’ COMPENSATION Termination of Benefits l Total Disability l Back Injury l Pain Nobles v. Back Burner DeFAX Case No. D63186 (IAB Jan. 16, 2008).
Employer was not entitled to termination of claimant’s total disability benefits where both medical experts agreed that claimant had an objective basis for his subjective complaints of back pain and that his condition had worsened. Petition to terminate benefits denied.
WORKERS’ COMPENSATION Termination of Benefits l Total Disability l Back Injury l Claimant’s Medical Expert Filiziani v. Midway Slots DeFAX Case No. D63188 (IAB Feb. 1, 2008).
Accepting the opinion of claimant’s medical expert that claimant remained totally disabled, the Industrial Accident Board denied employer’s petition to terminate claimant’s total disability benefits. Petition to terminate benefits denied.
WORKERS’ COMPENSATION Termination of Benefits l Total Disability l Expert Medical Evidence Brown v. Schottenstein Stores Corp. DeFAX Case No. D63185 (IAB Jan. 22, 2008).
Although claimant had a non-functioning left arm, the medical evidence established that he was no longer totally disabled from work since he was capable of working in a restricted capacity. Petition to terminate total disability benefits granted.
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