Dishmon v. Fucci, No. 784, 2010 (Del. Supr., Nov. 10, 2011) (en banc), read Delaware Supreme Court decision here.

A former associate of Eckert Seamans prepared the overview of this case.

Although tangential to the substantive topic of commercial and corporate litigation, this negligence case is relevant to corporate and business litigators because it establishes an important rule applicable to procedural aspects of all cases before the Delaware courts. The gist of this opinion is that procedural defects caused by excusable neglect should not prevent a litigant from having her day in court for an adjudication of her case.


In December 2006, plaintiff filed a complaint alleging that medical negligence caused the death of his father. In medical negligence cases, Delaware statute requires a plaintiff to submit an Affidavit of Merit with a complaint. An Affidavit of Merit is a statement signed by an expert witness supporting the plaintiff’s assertion that there are reasonable grounds to support a medical negligence claim. Affidavits of Merit are not discoverable by defendants, and must be submitted to the court in a sealed envelope marked “CONFIDENTIAL.”

Procedural History

With his complaint, plaintiff filed a motion for extension of time to file his Affidavit of Merit. That motion was granted, and the plaintiff thereafter submitted Affidavit of Merit to the court within the newly prescribed deadline. Four months later, the court dismissed plaintiff’s complaint (it is unclear from the Delaware Supreme Court’s written decision whether a motion to dismiss was pending) for failure to comply with the statutory requirements governing the submission of an Affidavit of Merit. In dismissing the case, the court found that plaintiff failed to submit his expert’s curriculum vitae with the Affidavit of Merit. Plaintiff moved for relief from judgment in a timely fashion.

More than three years passed before the court denied plaintiff’s motion (without explanation–i.e., no explanation for the delay or for denying the motion).

On appeal, the Delaware Supreme Court reversed and held that a procedural defect that does not prejudice the defendants in any way should not bar a litigant from receiving his day in court:

[W]e conclude, as a matter of law, that trial courts must give weight to Delaware’s well known public policy that favors permitting a litigant to have his day in court. In these circumstances, the absent curriculum vitae should have been viewed as a procedural defect, but not an independent basis for dismissal.

The court further admonished the trial court for the inexplicable and regrettable delay in ruling on the motion for relief from judgment.

Comparison to Recent Chancery Decision Refusing to Extend Pre-Trial Deadline, in:  Encite LLC v. Soni, 2011 Del. Ch. LEXIS 58 (Apr. 15, 2011). See highlights of that opinion here.

In one of Chancellor Chandler’s final decisions, summarized at the link above, the Court of Chancery declined to allow counsel to submit an expert report after the court-ordered discovery deadline had passed. The overarching holding of Dishmon—that procedural defects should not deny a plaintiff his right to his day in court—was a peripheral issue in Encite. The starkly different decisions in these cases are noted and compared briefly as practice points:

The decision in Encite was not dispositive of the merits. Disallowing a party to file an expert report is not the equivalent of dismissing a plaintiff’s case in its entirety, as happened in Dishmon. In Encite, the plaintiff still was allowed its day in court.

The procedural defect in Encite was not due to excusable neglect. In Encite, plaintiff’s counsel proffered to the court that the parties had reached an agreement to extend the deadline to submit expert reports, but defendants’ counsel did not concur. Further, plaintiff’s counsel only moved the court to extend the applicable deadlines after the deadline had passed, and only days before dispositive motions were set to be filed.

In contrast, in Dishmon, the Delaware Supreme Court found that counsel’s failure to confirm that the expert’s curriculum vitae was included in the sealed envelope was excusable because administerial tasks like sealing an expert report and accompanying documents in an envelope are not typically completed by an attorney.

The defendant in Dishmon was not prejudiced. Unlike the clearly prejudicial effect of submitting an expert report to opposing counsel within days of the dispositive motion deadline (and where expert reports were intended to be submitted simultaneously by all parties), there was no prejudice in Dishmon since Affidavits of Merit are not submitted to, or discoverable by, defendants.


Procedural defects can result in myriad outcomes; but they should never result in denying a litigant of his day in court.