In an opinion issued on November 13, 2008, in the Delaware Superior Court case of Clifton Cann v. Stephen Dunner, The Honorable Richard R. Cooch, Resident judge of New Castle County, granted Defendant’s Motion for Summary Judgement. Dismissing Plaintiff Clifton Cann’s negligence action against Defendant Stephen Dunner, which sought compensation for soft tissue injuries Plaintiff allegedly sustained in an automobile accident on November 1, 2005, with the Defendant. Plaintiff, indicated at the pre-trial conference on October 31, 2008, that Plaintiff’s doctor, Domingo Singson, would not be called as a witness at the trial. Defendant immediately moved for summary judgment. The court granted Defendant’s Motion for Summary Judgment quoting the Delaware Supreme Court case of Rayfield v. Power, 840 A.2d 642 (Del. 2000):
“In order to survive the [defendant’s] motion for summary judgment, the [plaintiffs] were required to adequately establish all elements essential to their case that they would have the burden of proving a trial. In Delaware, in order to prevail in a negligence action, a plaintiff must prove by a preponderance of the evidence that the defendant’s action breached a duty of care in a way that proximately caused injury to the plaintiff. With a claim for bodily injires, the causal connection between the defendant’s alleged negligent conduct and the plaintiff’s alleged injury must be proven by the direct testimony of a competent medical expert.”
Judge Cooch also noted the more recent holding in the Superior Court case of Sluss v. Davis, 2006 WL 2846387 (Del. Super. 2006).
Judge Cooch noted, “In the instant case, the nature of Plaintiff’s injuries must be noted. Plaintiff’s injuries are exclusively soft tissue injuries. Unlike a fracture or laceration, a soft tissue injury cannot be seen by the naked eye. Soft tissue injuries may be caused by a number of activities or prior occurrences. Thus expert medical testimony is necessary to connect the defendant’s negligence with the plaintiff’s injuries in this particular case.”
