Fardjallah v. Christiana Hospital

SUPERIOR COURT
of the
STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse
Resident Judge 38 The Green
Dover, DE 19901
Telephone (302)735-2111

Mr. Khaled Fardjallah Mr. Phillip M. Casale, Esquire
117 Stature Drive Wharton Levin
Newark, DE 19713 300 Delaware Ave., Suite 1110
P.O. Box 1155
Wilmington, DE 19899

Submitted: August 29, 2025
Decided: September 24, 2025

RE: Khaled Fardjallah v. Christiana Hospital, et al.,
C.A. No. N23C-05-001 JJC

Dear Mr. Fardjallah and Mr. Casale:
This letter provides the Court’s decision resolving summary judgment
motions filed by Dr. Maria Shah, Mr. Michael Schuh, and Christiana Hospital
(hereinafter, collectively “Defendants”).1 For the reasons to follow, the summary
judgment record contains no likely admissible medical expert evidence that could
support Mr. Fardjallah’s burden at trial. As a result, Defendants’ motions for
summary judgment must be granted.

1
The complaint names “Christiana Hospital” as a defendant. D.I. 2, at 1. Defendants contend in
their Answer that Christiana Hospital is not a legal entity, and that Christiana Care Health Services,
Inc. is the proper defendant. D.I. 15, at 1 n.1. The Defendants summary judgment motions do not
address the issue of proper party, so the Court does not address it.
FACTUAL AND PROCEDURAL BACKGROUND
The facts to follow are those in the summary judgment record read in the light
most favorable to Mr. Fardjallah. Mr. Fardjallah was admitted to Christiana Hospital
for approximately twelve days in 2021 for COVID-19 acquired pneumonia and acute
hypoxic respiratory failure.2 During his hospitalization, hospital staff inserted an IV
in the flexor region of his right hand and wrist. At some point, he began to
experience pain and swelling at the site of the insertion. His attending physician,
Dr. Maria Shah, discharged him on November 3, 2021. The doctor prescribed him
a zinc topical cream for the site for use at home.
The pain and swelling persisted, however. Mr. Fardjallah followed up with
his family physician and later returned to Christiana Hospital’s emergency room
where Michael Schuh, a physician’s assistant, attended him on November 6th. Mr.
Schuh examined, treated, and discharged him with the diagnosis of right-hand
cellulitis and prescribed him oral antibiotics. The condition worsened, however, and
Mr. Fardjallah was treated by several other providers through late January 2022.3
Mr. Fardjallah now sues the Defendants in medical negligence.4 Specifically,
he contends that Defendants’ treatment of his right hand and wrist from October 28,
2021, through November 6, 2021, fell below the appropriate standard of care and
caused him permanent harm.5
Defendants have filed three motions for summary judgment in their individual
and collective capacities.6 In their motions, they challenge the sufficiency of Mr.
Fardjallah’s expert disclosures, which include only two expert medical reports from

2
D.I. 2, at 5.
3
D.I. 33, Ex. 1 at 1 [Initial Report]. This included a follow up with the family physician, a trip to
Abbey Medical Center urgent care, office visits with First State Orthopedics, two MRIs, and a
subsequent admission to Christiana Hospital. Id. at 3-4, 6; D.I. 61, Ex. D.
4
D.I. 2.
5
Id. at 5–12.
6
D.I. 41; D.I. 41; D.I. 43.
2
Dr. Scott D. Olewiler, an infectious disease doctor.7 The reports contain no opinion
that any specific medical provider or entity breached the standard of care. 8 Nor do
they contain an opinion that any treatment occurring before November 7, 2021—
which was the day after the defendants’ treatment of Mr. Fardjullah ended—failed
to meet the standard of care.9 Finally, they contain opinions regarding only possible,
as opposed to probable, outcomes.10
The trial scheduling order set a deadline for Mr. Fardjallah to disclose any
expert opinions and the basis for those opinions by August 30, 2024.11 The
scheduling order also set a discovery cutoff of January 24, 2025.12 Defendants’
motions allege that Dr. Olewiler’s opinions do not support Mr. Fardjallah’s medical
negligence claims for multiple reasons, and that the expert deadline expired more
than one year ago. For his part, Mr. Fardjallah counters with an emphasis on
circumstantial and correlative facts of record that he believes bolster Dr. Olewiler’s
opinions sufficiently to create genuine issues of material fact.13
The Court scheduled oral argument for the motions on August 15, 2025.14 Mr.
Fardjallah, however, did not appear at the hearing. He later explained that he had
technical difficulties that prevented his attendance.15 The Court has since examined
the record evidence closely and determined that no oral argument would be
necessary. It nevertheless provided both parties the opportunity to supplement their
arguments and the summary judgment record by August 29, 2025.16 Mr. Fardjallah

7
D.I. 35, Ex. 1 [Rebuttal Report]; Initial Report, Ex. 1.
8
Initial Report, at 6; Rebuttal Report, at 1-2.
9
Rebuttal Report, at 2.
10
Initial Report, at 6.
11
D.I. 38, at 1.
12
Id.
13
D.I. 45, at 2-3; D.I. 46, at 2; D.I. 47, at 2-3.
14
D.I. 54.
15
D.I. 58.
16
D.I. 56.
3
first supplemented the record with an additional power point summary.17 He later
supplemented the record with additional medical records and argument after the
deadline.18 The Defendants, for their part, presented timely supplemental argument
in letter form.19 None of the supplemental submissions demonstrated the need to
reschedule an oral argument.
STANDARD OF REVIEW
Under Superior Court Rule 56(c), summary judgment is appropriate where
“the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”20
Throughout, the Court draws all reasonable inferences in the light most favorable to
the non-moving party.21
As to the burden of persuasion, the moving party bears the initial burden of
demonstrating the absence of genuine issues of material fact.22 After such a
showing, the burden shifts to the non-moving party to identify material issues of
fact.23 Summary judgment then becomes appropriate when the non-moving party
fails to identify evidence of record sufficient to support the essential elements of his

17
D.I. 58.
18
D.I.s 60-75. Although Mr. Fardjallah filed these additional exhibits and arguments after the
Court’s deadline of September 9, 2025, the Court has nevertheless considered them in light of his
pro se status to provide him a full opportunity to present all supportive materials. In that September
9th filing, Mr. Fardjallah also contends that the Defendants motions should be stricken for factual
inaccuracies and that a defense expert’s testimony should be excluded on Daubert grounds. All
such newly raised issues are rendered moot by this decision granting summary judgment for
Defendants.
19
D.I. 59.
20
Super. Ct. Civ. R. 56(c).
21
Mechell v. Palmer, 343 A.2d 620, 621 (Del. 1975).
22
Brown v. Ocean Drilling & Expl. Co., 403 A.2d 1114, 1115 (Del. 1979).
23
Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).
4
or her case for which he bears the burden.24 In other words, a plaintiff must identify
sufficient evidence in the summary judgment record to support those essential
elements.25
DISCUSSION
To sustain a medical negligence claim in Delaware, a plaintiff must
demonstrate by a preponderance of the evidence that a medical provider breached
the standard of care, the breach proximately caused harm to the plaintiff, and the
plaintiff suffered harm.26 Furthermore, the Delaware Medical Negligence Act
requires a plaintiff to support his or her claim with expert medical testimony.27
Specifically, 18 Del. C. § 6853(e) (hereinafter “Subsection (e)”) provides in relevant
part:
[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[.]
Thus, before liability can attach at trial, a plaintiff’s medical expert must offer expert
testimony, to a degree of reasonable medical probability, that explains (1) the
applicable standard of care, (2) how the medical provider deviated from that standard
of care, and (3) how that deviation caused the plaintiff’s injury.28 To that end,

24
Dickenson v. Sopa, 2013 WL 3482014, at *3 (Del. Super. June 20, 2013) (citing Burkhart v.
Davies, 602 A.2d 56, 60 (Del. 1991)), aff’d, 83 A.3d 737, 2013 WL 6726884 (Del. 2013)
(TABLE); see also Smith v. Haldeman, 2012 WL 3611895, at *1 (Del. Super. Aug. 21, 2012)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
25
Roache v. Charney, 38 A.3d 281, 286 (Del. 2012), as corrected (Feb. 28, 2012).
26
18 Del. C. § 6853; Jones v. Crawford, 1 A.3d 299, 302–303 (Del. 2010).
27
Vick v. Khan, 2019 WL 2177114, at *6 (Del. Super. May 17, 2019) (citing 18 Del. C. § 6853).
28
Id. (first citing 18 Del. C. § 6853; then citing Russell v. Kanaga, 571 A.2d 724, 732 (Del. Super.
1990); and then citing O’Donald v. McConnell, 858 A.2d 960, 2004 WL 1965034, at *2 (Del.
2004) (TABLE)). There are three limited exceptions to this requirement. None apply in this case.
Id.
5
Delaware courts routinely grant summary judgment if a plaintiff cannot identify
likely admissible evidence in the record that will satisfy these requirements at trial.29
Here, Defendants move for summary judgment because Mr. Fardjallah’s
expert disclosures, on their face, contain gaps regarding all three requirements. That
satisfies the Defendants’ initial burden which shifts the burden to Mr. Fardjallah to
demonstrate a genuine issue of fact regarding those elements. To do so, he relies on
(1) Dr. Olewiler’s two expert reports, and (2) correlative evidence regarding the
timing between Defendants treatment and the significant complications he suffered
shortly thereafter.
Under Subsection (e), the Court’s focus must remain on the sufficiency of Dr.
Olewiler’s proffered medical expert testimony. Temporal circumstances cannot
overcome the deficiencies in the record given the Medical Negligence Act’s
requirements. Namely, for several reasons, the expert reports demonstrate on their
face that Mr. Fardjullah cannot meet Subsection (e)’s requirements at trial. Those
shortfalls must guide the Court’s decision.
First and foremost, parties generally cannot compel experts to offer opinion
testimony at trial through compulsory process.30 Rather, a party seeking to present

29
See, e.g., Burkhart, 602 A.2d at 59-60 (affirming the Superior Court’s grant of summary
judgment in favor of defendant medical provider because, inter alia, the record unambiguously
reflected that the plaintiff’s allegations had not and would not be supported by expert medical
testimony); Dickenson, 2013 WL 3482014, at *4 (granting defendant medical provider’s motion
for summary judgment because the expert discovery deadline had passed, and the plaintiff had not
procured an expert to testify that defendant deviated from the applicable standard of care while
performing plaintiff’s surgery or that defendant’s alleged breach proximately caused plaintiff’s
injuries); Valentine v. Mark, 2004 WL 2419131, at *2–3 (Del. Super. Oct. 20, 2004) (granting
defendant medical provider’s motion for summary judgment because, inter alia, excerpts from the
deposition of plaintiff’s only expert witness indicated that he was unwilling to testify as to
causation in the case), aff ’d, 873 A.2d 1099 (Del. 2005).
30
See Owens v. Silvia, 838 A.2d 881, 901 (R.I. 2003) (“Absent extraordinary circumstances . . . ,
a non-party expert cannot be compelled to give opinion testimony against his or her will.”); see
also 98 C.J.S. Witnesses § 10 (2025) (“[A]bsent substantial need that cannot be met without undue
hardship, or compelling circumstances, . . . an expert witness who has not been engaged but merely
6
expert opinion testimony must retain an expert on a voluntary basis. 31 Most
Delaware cases examining the issue—and refusing to enforce compulsory process
on an objecting expert—do so in the context of one party seeking to compel another
party’s expert to testify.32 Those decisions frequently turn, in significant part, on
the recognition that to do so would improperly involve imposing a form of
involuntary servitude.33 That concern will almost universally prevent a litigant from
forcing an expert to testify where the expert acquired no factual information
independent of his or her efforts to formulate the opinion.
In this case, Dr. Olewiler’s initial report recites that he will refuse to testify
for Mr. Fardjallah at trial.34 To that end, Dr. Olewiler wrote:
[p]er your request, here is a summary of my opinion of your case.
Please be reminded that I am not able to attend depositions nor court
proceedings. My opinion is based upon our single office visit of
10/4/22.35
This reference, and others in his report, demonstrate that Dr. Olewiler discussed and
agreed upon the scope of Dr. Olewiler’s services – that of a consultation expert only.
Because of (1) Dr. Olewiler’s refusal to testify at trial, (2) Mr. Fardjallah’s inability
to compel him to offer expert opinion testimony, and (3) the expiration of the expert

subpoenaed cannot be compelled to give opinion testimony against the expert’s will.”) (citations
omitted).
31
Owens, 838 A.2d at 901.
32
See e.g., Drejka v. Hitchens Tire Serv., 15 A.3d 1221, 1223 (Del. 2010) (finding no abuse of
discretion where the trial court refused to allow plaintiff to compel defendant’s expert to testify
over the defendant’s objection); Winchester v. Hertrich, 658 A.2d 1016, 1022 (Del. Super. Feb. 2,
1995) (examining the issue in terms of “consultation experts” and recognizing that they cannot be
compelled to testify at trial involuntarily); c.f. Pinkett v. Brittingham, 567 A.2d 858, 860 (Del.
1989) (finding no abuse of discretion where the trial court allowed plaintiff to compel defendant’s
expert to testify, over the defendant’s objection, because the defendant’s expert had performed an
independent medical examination and the expert agreed to testify).
33
See Winchester, 658 A.2d at 1020.
34
Initial Report, at 1.
35
Id. (emphasis added). Dr. Olewiler also reemphasized his unwillingness to testify at multiple
other locations in that report.
7
deadline more than a year earlier leaves no available expert testimony to meet
Subsection (e)’s requirements. Consequently, Mr. Fardjallah does not meet his
burden on summary judgment.
Second, Dr. Olewiler’s two reports provide no opinion that one or more of the
defendants breached the standard of care. Rather, he opines only that “proper
medical care was not rendered.”36 In other words, Dr. Olewiler’s reports do not
address any of the Defendants by name or express an opinion as to how a designated
defendant breached the standard of care.
Third, in Dr. Olewiler’s second report, he opines that the treatment provided
to Mr. Fardjallah prior to November 7, 2021—which includes all of the treatment
provided by the named defendants—constituted “reasonable care.”37 To this end,
Dr. Olewiler’s opinion actually insulates—as opposed to incriminates—the
individuals and entities Mr. Fardjallah sued.
Fourth and finally, as to causation, Dr. Olewiler’s reports frame his opinion
in terms of possible, rather than probable, outcomes. Namely, Dr. Olewiler opines
that Mr. Fardjallah “could have preserved the function of his right hand,” had he
been attended to in a timelier fashion.38 This falls short of a plaintiff’s obligation in
a medical negligence action to present expert testimony to a reasonable degree of
medical probability that a defendant’s alleged negligence caused the plaintiff’s
injuries.39 On this record, there is no likely admissible evidence that demonstrates

36
Id.
37
Rebuttal Report, at 2 (“Prior to 11/7, initial care . . . was reasonable care. . . . My greater concern
is for the opportunities that were missed AFTER 11/2/21.”) (emphasis and capitalization in
original).
38
Initial Report, at 1 (emphasis added); see also id. at 6 (“It does appear that the several
opportunities to intervene, could have yielded a better long-term outcome. [Proper care rendered
after 11/7/21] may have preserved function of the hand.” ) (emphasis added).
39
The Delaware Supreme Court has consistently recognized that “when an expert offers a medical
opinion it should be stated in terms of ‘a reasonable medical probability’ or ‘a reasonable medical
certainty[.]’” Mammarella v. Evantash, 93 A.3d 629, 635 (Del. 2014) (quoting O’Riley v.
8
Mr. Fardjallah’s ability at trial to meet this additional element of a medical
negligence claim.
CONCLUSION
For these reasons, Defendants’ motions for summary judgment are
GRANTED. The summary judgment record contains no likely admissible expert
medical testimony to support his medical negligence claims.
IT IS SO ORDERED.

Very truly yours,
/s/Jeffrey J Clark
Resident Judge

U.S. Postal Service, Email, and Via File & ServeExpress

Rogers, 69 A.3d 1007, 1011 (Del. 2013)); see also Floray v. State, 720 A.2d 1132, 1136 (Del.
1998) (same). The Delaware Supreme Court has also expressed on numerous occasions that in
medical negligence cases where a plaintiff’s claim involves bodily injury, causation between the
medical provider’s alleged negligent conduct and the plaintiff’s alleged injury “must be proven by
the direct testimony of a competent medical expert.” Roache, 38 A.3d at 286 (emphasis added)
(quoting Rayfield v. Power, 840 A.2d 642, 2003 WL 22873037, at *1 (Del. Dec. 2, 2003)
(TABLE)); see also Money v. Manville Corp. Asbestos Disease Comp. Tr. Fund, 596 A.2d 1372,
1376 (Del. 1991) (same).
9