SUPERIOR COURT

of the

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

 Judge 38 The Green

 Dover, DE 19901

 Telephone (302)735-2111

February 26, 2020

John Charles Willis James E. Drnec, Esq.

Evelyn Holly Willis Wharton Levin Ehrmantraut

1300 South Farmview Drive & Klein, P.A.

#A10 300 Delaware Avenue

Dover, DE 19901 Suite 1110

Wilmington, DE 19899 

RE: John Charles Willis and Evelyn Holly Willis v. Bayhealth 

Surgical Assoc., John F. Glenn, III, M.D., and Bayhealth 

Medical Center, Inc., D/B/A Kent General Hospital

K18C-05-031 JJC

Submitted: January 24, 2020

Decided: February 26, 2020

Dear Mr. and Ms. Willis and Mr. Drnec:

This letter order provides the Court’s reasoning and decision regarding 

Defendants Bayhealth Surgical Associates, John F. Glenn, III, M.D., and Bayhealth

Medical Center’s (hereinafter, collectively “Bayhealth’s”) summary judgment 

motion. At the outset, after reviewing the evidence and considering Mr. and Ms. 

Willis (hereinafter, collectively, “the Willises’”) arguments, the Court recognizes 

that Mr. Willis suffered extremely serious and unfortunate complications following 

his treatment. The Court does not question their good faith belief that Bayhealth is 
2

responsible. They have been professional and persistent in advancing their claims

without an attorney. Throughout the pretrial process, counsel for Bayhealth has also

interacted patiently and professionally with the Willises. 

Apart from these observations, however, the Court must apply well settled 

legal principles when deciding Bayhealth’s motion for summary judgment. 

Delaware statute requires that a plaintiff that sues for medical negligence must 

present expert medical testimony at trial that a defendant breached the standard of 

care and that the breach caused harm.1 Here, the discovery period is closed and the 

Willises have identified no expert medical opinion that meets these requirements. 

Accordingly, Bayhealth’s motion for summary judgment must be granted. 

The Parties’ Arguments and the Procedural Background

Mr. Willis suffered from a leg wound and infection. The Willises assert claims 

of health care negligence against Bayhealth. In their complaint, they allege the 

following: (1) Bayhealth misdiagnosed Mr. Willis; (2) Bayhealth negligently treated 

him by prescribing the wrong medication to treat the wound; and (3) the

misdiagnosis and incorrect treatment permitted further infection that required 

additional medical treatment. 

Bayhealth now moves for summary judgment alleging that the Willises have 

identified no medical expert’s opinion that supports their claims. In response, the 

Willises claim that their expert disclosures are sufficient. Namely, they argue that a 

report from Dr. Nicholas Biasotto provides the necessary expert opinion.

Discovery in this matter took place over eight months. On April 15, 2019, the 

Court issued its scheduling order. The order set an August 6, 2019 deadline for the 

Willises to meet their expert disclosure requirements. After the Willises failed to 

provide expert disclosures by August 6th, Bayhealth’s counsel reminded them by e-

 

1

18 Del. C. § 6853 (e). 
3

mail that the disclosures were late.

2

 Thereafter, on August 21, 2019, the Willises

filed their “Defendant’s Expert Discovery Disclosure.” It was a document that 

merely listed physicians who treated Mr. Willis after his Bayhealth treatment.

3

 On 

August 23, 2019, Bayhealth’s counsel again contacted the Willises, explained the 

deficiencies in their expert disclosures, and requested that they supplement them by 

September 6, 2019.4

After the Willises did not, Bayhealth filed a motion to dismiss. In response, 

the Willises filed a motion to amend the scheduling order, seeking more time to 

obtain an expert. The Court heard the Willises’ motion to amend the scheduling 

order first. At a hearing on that motion, Bayhealth did not oppose an amendment to 

the scheduling order that provided the Willises additional time. The Court then 

entered an order extending their expert disclosure deadline to December 1, 2019.

On November 26, 2019, the Willises contacted Bayhealth to request an 

additional extension until December 16, 2019.5 When Bayhealth declined, the 

Willises submitted a letter to the Court requesting additional time.6 At that point, 

Bayhealth withdrew its opposition and stipulated to a further extension until 

December 16, 2019. When doing so, Bayhealth conditioned this agreement upon its 

assumption that the Willises would request no further extensions.7 

On December 16, 2019, the Willises e-mailed a report from Dr. Biasotto to 

Bayhealth.

8

 On December 20, 2019, they filed Dr. Biasotto’s report and a letter from 

 

2 Def. Mot., Ex. D.

3 Def. Mot., Ex. E.

4 Def. Mot., Ex. F.

5 Def. Mot., Ex. H.

6 Def. Mot., Ex. I.

7 Def. Mot., Ex. J.

8 Def. Mot., Ex. K.
4

Dr. Thomas Burke with the Court. Dr. Burke’s letter explained the treatment that

he provided Mr. Willis.9 Dr. Biasotto’s report provided only the following:

[Mr. Willis’s] wounds were very friable and exquisitely tender and had 

been increasing in size from previous debridements. This led me to 

consider vasculitis and/or pyoderma gangrenosa as the diagnosis. This 

type of wound is extremely painful and typically gets worse and 

enlarges with debridement, if the inflammatory process is not 

controlled. Biopsies were performed using an immunofluorescent 

technique, which distinguishes the normal from vasculitic lesions. . . It 

should be noted that the usual H & E stained biopsies may NOT identify 

atypical wounds such as pyoderma and/or vasculitis; 

immunofluorescent stains are needed to make the diagnosis.10

Bayhealth then filed the present motion for summary judgment. 

Summary Judgment Standard

Summary judgment is appropriate only if there is no genuine issue of material 

fact and if Bayhealth is entitled to judgment as a matter of law.11 The Court must 

view the evidence in the light most favorable to the Willises, as the non-movants.12 

The burden of proof is initially on Bayhealth, who seeks summary judgment.

13

 

However, if Bayhealth meets its burden, then the burden shifts to the Willises to 

demonstrate the existence of material issues of fact.14 Their evidence of material 

facts in dispute must be sufficient to withstand a motion for judgment as a matter of 

law and to support the verdict of a rational jury.15 After adequate time for discovery 

 

9

See Def. Mot., Ex. L (stating that Mr. Willis “was seen in [Burke Dermatology’s] practice June 

9, 2016 and September 21, 2016. He presented with an eczema like reaction on his arms and legs 

and an ulcer located on his left lower leg. The ulcer was biopsied and the results came back 

consistent with Stasis Ulcer. Patient has not had any follow up visit.”).

10 Pl. Resp., Ex. A.

11 Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

12 Brozaka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

13 Super. Ct. Civ. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

14 Id. at 681 (citing Hurtt v. Goleburn, 330 A.2d 134 (Del. 1974)).

15 Lum v. Anderson, 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).
5

and upon motion, summary judgment must be entered against a party who cannot 

demonstrate facts supporting an essential element of that party’s case.

16

Discussion

In order to prevail, the Willises must present expert medical testimony 

supporting their claim. Namely, 18 Del. C. § 6853(e) provides that “[n]o liability 

shall be based upon asserted negligence unless expert medical testimony is presented 

as to the alleged deviation from the applicable standard of care in the specific 

circumstances of the case and as to the causation of the alleged personal injury or 

death[.]”17 Given this “statutory mandate, the production of expert medical 

testimony is an essential element of a plaintiff’s medical malpractice case.”18 The 

plaintiff bears the burden of proof to step forward with such expected testimony.

19

 

Under the rules of civil discovery, a plaintiff must identify it prior to trial.

Here, the Willises do not identify an expert opinion that Bayhealth deviated 

from the applicable standard of care.20 The Willises initially failed to identify 

evidence meeting their burden by the original deadline of August 6, 2019. The Court 

permitted them more than four additional months to obtain the necessary medical

expert evidence. Although they eventually filed letters from two doctors, neither 

document addresses the applicable standard of care. Nor do they address 

Bayhealth’s deviation from that standard. Finally, neither doctor’s letter addresses 

the element of causation of harm. Instead, the documents discuss their diagnoses 

and Mr. Willis’s course of treatment. 

 

16 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 

322–23 (1986)).

17 18 Del. C. § 6853(e) (emphasis added).

18 Burkhart, 602 A.2d at 59 (citing Russell v. Kanaga, 571 A.2d 724, 732 (Del. 1990)).

19 Id.

20 Dr. Biasotto’s statements that the wounds increased in size due to previous debridements 

arguably provide evidence of the second statutory requirement that Bayhealth’s actions 

proximately caused Mr. Willis’s aggravated personal injury.
6

The Court recognizes that pro se litigants are afforded some leniency when

presenting their case.21 However, all plaintiffs must meet the same substantive 

requirements.22 Any leniency must be limited to the extent that it does not affect the 

substantive rights of the parties.23 Here, the Willises have failed to identify in 

discovery the evidence necessary to meet their burden of proof at trial. Excusing 

this requirement would impair Bayhealth’s substantive rights. In the absence of an

expert medical opinion that (1) Bayhealth deviated from the applicable standard of 

care, or that (2) this deviation proximately caused harm, summary judgment for

Bayhealth must be granted. 

Conclusion

In summary, after receiving adequate time for discovery, the Willises have 

not produced an expert medical opinion that Bayhealth deviated from the applicable 

standard of care, or that such a deviation caused them harm. Accordingly, summary 

judgment on behalf of Bayhealth must be GRANTED. 

IT IS SO ORDERED. 

/s/ Jeffrey J Clark

 Judge

JJC:jb

Via File & ServeXpress and U.S. Mail

 

21 Damiani v. Gill, 116 A.3d 1243, 2015 WL 4351507, at *1 (Del. 2015) (TABLE).

22 Id. (quoting Draper v. Med Ctr., 767 A.2d 796, 799 (Del. 2001).

23 Tsipouras v. Szambelak, 2012 WL 1414096, at *1 (Del. Super. Apr. 5, 2012) (quoting Anderson 

v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011)).