IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TROY FARMER, Personal )

Representative of the Estate )

of CARL METZ, )

)

Plaintiff, )

)

v. ) C.A. No. N18C-06-010 ALR

)

MANOR CARE OF WILMINGTON, )

DE, LLC, a Delaware Limited Liability )

Company, individually and d/b/a )

MANOR CARE HEALTH SERVICES )

—Wilmington )

Submitted: July 27, 2018

Decided: August 2, 2018

Upon Defendant’s Motion to Determine if the Affidavit of Merit Complies with 

Sections (a)(1) and (c) of Title 18 § 6853

ORDER

Upon consideration of Defendant’s Motion to Determine if the Affidavit of 

Merit Complies with Sections (a)(1) and (c) of Title 18 § 6853; the Affidavit of 

Merit; and statutory and decisional law, the Court hereby finds as follows:

1. On July 27, 2018, Defendant moved for Court review of Plaintiff’s 

affidavit of merit, in camera, to determine whether it complies with 18 Del. C.

6853(a)(1) and (c). 

2. Pursuant to 18 Del. C. § 6853(a)(1), all healthcare negligence 

complaints must be accompanied by an affidavit of merit as to each defendant signed 
2

by an expert witness, accompanied by a current curriculum vitae of the witness, 

stating that there are reasonable grounds to believe that there has been healthcare 

medical negligence committed by each defendant.1 More specifically, pursuant to 

18 Del. C. § 6853(c), the affidavit of merit must set forth the expert’s opinion that 

“there are reasonable grounds to believe the applicable standard of care was 

breached by the named defendant or defendants and that the breach was a proximate 

cause of injury or injuries claimed in the complaint.”2 In addition, pursuant to 18 

Del. C. § 6853(c), the expert witness shall have the following qualifications: 

[The] expert signing the affidavit of merit shall be licensed to practice 

medicine as of the date of the affidavit; and in the 3 years immediately 

preceding the alleged negligent act has been engaged in the treatment 

of patients and/or in the teaching/academic side of medicine in the same 

or similar field of medicine as the defendant or defendants, and the 

expert shall be Board certified in the same or similar field of medicine 

if the defendant or defendants is Board certified.3

3. Plaintiff’s affidavit of merit does not comply with 18 Del. C. § 

6853(a)(1) and (c). First, the “affidavit of merit” was not made under oath. Second, 

Plaintiff’s expert does not state that there are reasonable grounds to believe the 

applicable standard of care was breached and that the breach was a proximate cause 

of Plaintiff’s injuries. Third, the expert’s curriculum vitae is not a current version, 

 

1 18 Del. C. § 6853(a)(1).

2 18 Del. C. § 6853(c).

3 18 Del. C. § 6853(c).
3

such that the Court cannot discern whether the expert meets the qualifications set 

forth in the statute. 

4. While there are deficiencies in Plaintiff’s affidavit of merit, “[t]he 

statute does not ... contemplate that affidavits that are initially incomplete are 

automatically subject to outright dismissal.”4 The nature and scope of the 

deficiencies may have been the result of administrative error.5 The Court “must give 

weight to Delaware’s well-known public policy that favors permitting a litigant to 

have his day in court.”6 

5. To that end, the Court will allow Plaintiff 30 days to comply with the 

statutory requirements. If Plaintiff files an affidavit of merit and curriculum vitae

that comply with 18 Del. C. § 6853(a)(1) and (c) within 30 days, the lawsuit shall 

move forward. If Plaintiff does not file an affidavit of merit and curriculum vitae 

that comply with the statutory requirements, the Court will dismiss the complaint. 

NOW, THEREFORE, this 2

nd day of August, 2018: 

1. Plaintiff’s affidavit of merit does not comply with 18 Del. C. § 

6853(a)(1) and (c).

 

4 Dishmon v. Fucci, 32 A.3d 338, 345 (Del. 2011).

5

Janssen v. Christiana Care Health System, Inc., 2015 WL 105727, at *1 (Del. 

Super. Feb. 10, 2015) (stating that a defect in an affidavit of merit could have been 

a mere drafting error).

6 Dishmon, 32 A.3d at 344.
4

2. Plaintiff is granted leave to file an affidavit of merit and curriculum 

vitae that comply with 18 Del. C. § 6853(a)(1) and (c) within 30 days. 

IT IS SO ORDERED. 

Andrea L. Rocanelli

____________________________

The Honorable Andrea L. Rocanelli