Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv—01205—SLR Document 101 Filed 08/25/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
· FOR THE DISTRICT OF DELAWARE
JEFFREY ALONZO SIMMS, : h
Plaintiff, C.A. No. 04-1205-SLR
v.
: TRIAL BY JURY OF
: TWELVE DEMANDED
HARRY M. FREEDMAN, M.D., :
DONNA BURNS, DR., and :
MAJOR R. L. HUGHES, :
Defendants.
DEFENDANT, HARRY M. FREEDMAN, M.D.’S
MOTION TO DISMISS
NOW COMES defendant Harry M. Freedman, M.D., by and through his counsel
and hereby moves this Honorable Court to dismiss plaintiffs Complaint for failure to
state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure l2(b)(6). In support thereof, Dr. Freedman states the following:
l. Plaintiff Jeffrey Alonzo Simms is presently incarcerated at the Delaware
Correctional Center and has been incarcerated in Delaware since 2002.
2. Mr. Simms brought suit in Federal District Court pursuant to 42 U.S.C. §l983.
3. Dr. Freedman previously filed a Motion for Summary Judgment based on
unrelated grounds. This Motion to Dismiss may be considered independently of
the aforementioned Summary Judgment Motion.
· 4. On February 10, 2006, this Honorable Court entered the Scheduling Order which
included June 8, 2006 as the discovery cut-off. (Attached as Exhibit A.)
l

Case 1:04-cv—01205—SLR Document 101 Filed 08/25/2006 Page 2 of 4
5. As set forth more fully below, plaintiff has failed to state a claim upon which
relief can be granted. Pursuant to Federal Rule of Civil Procedure 12(h)(2), a
defense for failure to state a claim upon which relief can be granted may be set
forth in any pleading or at the trial on the merits.
Failure to Identify a Medical Expert
6. The claims against Dr. Freedman, an orthopedic specialist in private practice who
is not employed by any governmental entity, are brought in Federal District Court
through its Supplemental Jurisdiction over this state law medical malpractice
claim pursuant to 18 U.S.C. §l367. Sq Boardley v. First Correctional Medical,
2004 WL 2980727 (D.Del. 2004). -
7. Mr. Simms alleges that Dr. Freedman failed to provide information regarding his
8 pain level to Dr. Bturns of Prison Medical Services, also a defendant herein (see
plaintiffs deposition at p. 29 line 20 through p. 30 line 2, p. 40 lines 16-24).
(Attached as Exhibit B.)
- 8. Although not articulated by Mr. Simms, it is asstuned that Mr. Simms alleges that
this failure breached the standard of care required of an orthopedic surgeon
consulting in a case such as Mr. Simrns’.
9. Mr. Simms was required to identify an expert medical witness, the substance of
that expert’s opinion regarding the alleged breaches in the standard of care, and
expert testimony that the alleged breaches directly caused his alleged injuries
l pursuant to 18 Qe£ §6853(e) and McCusker v. Surgical Monitoring Associates,
A g, 299 F.Supp. 2d 396 (D.Del. 2004).
l0. Mr. Simms failed to produce expert medical witness testimony or reports to
2

I Case 1:04-cv—01205—SLR Document 101 Filed 08/25/2006 Page 3 of 4
support his medical malpractice claim before the discovery deadline, and has not
as of the date of this motion.
11. Plaintiff has failed to state a claim upon which relief can be granted pursuant to
Middlebrook v. Ayres, 2004 WL 1284207 (Del.Super.Ct. 2004). In Middlebrook,
the Court granted defendant’s Motion to Dismiss for failure to state a claim upon
which relief can be granted after plaintiffs failed to obtain expert testimony
necessary to maintain the medical malpractice action against the defendant.
12. Mr. Simms’ medical malpractice claims are subject to dismissal. pursuant to
Wahle v. Medical Center of Delaware, Inc., 559 A.2d 1228 (Del. 1989). In
e, a medical malpractice plaintiff failed to produce an expert witness before
the discovery cut-off, the Superior Court dismissed the claim, and the Delaware
Supreme Court affirmed the dismissal, stating "[l]`itigants who continually miss
discovery deadlines .... may not claim surprise by imposition of the ultimate
sanction of dismissal." Q at 1233.
Failure to File An Affidavit of Merit
13. Additionally, Mr. Simms was required to file an Affidavit of Merit pursuant to 18
@@4 §6853, which requires a medical malpractice plaintiff to file an Affidavit
of Merit executed by a board certified physician in the same specialty as each
defendant physician, either at the time of, or within sixty (60) days of filing of the
Complaint. ·
14. Mr. Simms has not filed an Affidavit of Merit as required in medical malpractice
suits brought in the District of Delaware pursuant to Jackson v. First Correctional
Medical Services, 380 F.Supp. 2d 387 (D.Del. 2005).
3

Case 1:04-cv—01205—SLFl Document 101 Filed 08/25/2006 Page 4 of 4
15. The purpose of an Affidavit of Merit is to prevent frivolous, baseless lawsuits
against competent physicians. Delaware’s legislature, by requiring the Affidavit
of Merit, intended to prevent unfounded attacks on physicians’ professional
reputations, and also, importantly, to keep physicians’ medical malpractice
insurance rates from rising urmecessarily. For each policy period that this suit
remains ongoing, Dr. Freedman’s malpractice insurance rates are negatively
impacted by this frivolous lawsuit, further contributing to the well-publicized
healthcare crisis in the United States. l
16. The claims against Dr. Freedman should be dismissed without delay because of
plaintiffs failure to file an Affidavit of Merit and plaintiffs failure to identify an
expert witness as required by statute. The negative effect on Dr. Freedman’s
insurance status will only be compounded as time passes.
WHEREFORE, defendant Harry Freedman, M.D. respectfully requests this
Honorable Court to dismiss all claims against him for the reasons detailed above.
ELZUFON AUSTIN REARDON
TARLO & MONDELL, P.A. .
J FREY M. AUSTIN, ESQ. .D. #2158)
ANDREA C. RODGERS, ESQ. (I.D. #4350)
300 Delaware Avenue, Suite 1700
P.O. Box 1630
Wilmington, DE 19899-1630
(302) 428-3181
Attorney for Dr. Freedman
DATE: August _, 2006
o;\o0cs\cuENTx1301x161 1 s\1¤1.EA1>n~1ox003ss91s.Doc
4