James Willey v. Phoenix Rehabilitation and Health Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JAMES WILLEY, )
)
Plaintiff, )
) C.A. No: N23C-09-033 KMM
v. )
)
PHOENIX REHABILITATION AND )
HEALTH SERVICES, INC., )
)
Defendant. )

Submitted: January 16, 2026
Decided: February 19, 2026

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Upon Phoenix Rehabilitation’s Motion for Summary Judgment on Punitive
Damages – GRANTED

Upon Willey’s Motion for Summary Judgment on Phoenix Rehabilitation’s fourth
sixth, and eighth affirmative defense – GRANTED

A. Introduction

Nearly four weeks after undergoing a microdiscectomy at L4-5, plaintiff

James Willey (“Willey”) sought the services of Phoenix Rehabilitation and Health

Services, Inc. (“Phoenix Rehabilitation”), a physical therapy provider. At the time

of his first appointment with Phoenix Rehabilitation, Willey was under a physician’s

restriction that cautioned against bending at the waist. Despite Willey informing

Phoenix Rehabilitation of this restriction, during an initial evaluation the therapist
instructed Willey to bend. Willey did so and immediately felt a sharp pain. An MRI

later revealed that the disk that required his first surgery had re-herniated, and as a

result, Willey needed a second surgery.

Each party moved for summary judgment. Phoenix Rehabilitation seeks

summary judgment on Willey’s claim for punitive damages, asserting that there is

no factual basis to submit the issue to a jury. Punitive damages are available when

a defendant’s conduct is willful or wanton, described as a “conscious indifference”

to the rights of others. Here, the record does not support a finding that a reasonable

jury might find willful or wanton conduct, accordingly Phoenix Rehabilitation’s

Motion is GRANTED.

Separately, Willey seeks summary judgment on three of Phoenix

Rehabilitation’s affirmative defenses. Phoenix Rehabilitation contests the dismissal

of two. 1 At issue are the affirmative defenses of comparative negligence and
0F

superseding cause. Willey contends that Phoenix Rehabilitation failed to support

these defenses with medical expert testimony and therefore, Phoenix Rehabilitation

is barred from asserting them at trial. A defendant bears the burden of proving its

affirmative defenses. Thus, to survive a motion for summary judgment, the

defendant must point to admissible evidence in the record supporting the defense.

1
Phoenix Rehabilitation does not contest Willey’s motion as to the Sixth Affirmative defense
(negligence by a third party), and therefore, the motion is GRANTED on that defense.
2
Phoenix Rehabilitation failed to proffer any expert testimony on plaintiff’s alleged

negligence or of a superseding cause, which is required for it to sustain its burden of

proof. Accordingly, Willey’s Motion is GRANTED.

B. Background 21F

On August 23, 2021, Dr. Justin Tortolani (“Dr. Tortolani”) performed a Right

L4-L5 microdiscectomy on Willey to repair disk herniation. The surgery was largely

a success. Shortly thereafter, Willey was diagnosed with Deep Vein Thrombosis

(“DVT”). 3 2F

On September 7, 2021, at Willey’s post-op appointment, Dr. Tortolani

“[r]ecommended that [Willey] continue to be mindful of waist bending and heavy

lifting or twisting.” 4 He was released to resume work the following week, with the
3F

caution to “avoid twisting especially at work” and a lifting restriction of 15 pounds. 5 4F

Willey was also referred to physical therapy. 6 The physical therapy prescription
5F

reflects a referral for “Core stabilization, LE strengthening, modalities…Eval and

treat.” 7 It did not indicate any restrictions.
6F

2
The facts are derived from the undisputed facts in the pleadings and exhibits submitted by the
parties. Citations in the form of [Name] Dep. refer to witness testimony from a deposition
transcript submitted as an exhibit by the parties.
3
D.I. 105, Ex. B at 1.
4
Id. at 2; D.I. 102, Ex. A (“Tortolani Dep.”) 18.
5
D.I. 105, Ex. B.
6
D.I. 105, Ex. D.
7
Id.
3
On September 16, 2021, Willey presented to Phoenix Rehabilitation for an

initial evaluation and treatment plan. 8 Dominick Policare, DPT (“Dr. Policare”), a
7F

Phoenix Rehabilitation physical therapist, conducted the initial evaluation. 9 Dr. 8F

Policare discussed with Willey his background, pain and discomfort levels, and his

current activity level. This discussion led Dr. Policare to conclude that Willey

presented with “pain and stiffness in the low back, tenderness to palpation, decreased

[range of motion,]” an antalgic gait, and was relatively sedentary post-surgery. 10 Dr. 9F

Policare also discussed Willey’s DVT with him. 11 Dr. Policare did not discuss any
10F

restrictions imposed by Dr. Tortolani. Willey did not provide Dr. Policare with the

physical therapy prescription, documents relating to any restrictions, or any other

papers relating to his surgery. 12
11F

In conducting the initial evaluation, Dr. Policare utilized the Axis Spine

Protocol (the “Axis Protocol”). 13 Phase 2 of the Axis Protocol applied because
12F

Willey was 3.5 weeks post-op, 14 the objective of which is to “re-establish
13F

neuromuscular recruitment…with dynamic lumbar stability exercise.” 15 The Axis14F

8
See D.I. 94, Ex. C (“Policare Dep.”) 16, 30, 54.
9
Id. at 52.
10
Id. at 61–62.
11
Id. at 62.
12
Id. at 11, 52.
13
Id. at 40.
14
D.I. 94, Ex. B (Deposition of Willey’s expert, Dr. Michelle Wolpov (“Wolpov Dep.”) 30, Ex.
D (“Axis Protocol”).
15
Axis Protocol at 2.
4
Protocol cautions physical therapists to “keep lumbar spine in neutral – avoid

bending and twisting below the knees.” 16 15F

Dr. Policare wanted to evaluate Willey’s range of motion and “instructed

[Willey] to bend forward [until it hurts] as if he was going to touch his toes.” 17 In 16F

response, Willey informed Dr. Policare “that’s one of the things they told me – the

words BLT may never have c[o]me out of my mouth, but I told him I was not

supposed to bend, lift or twist.” 18 Dr. Policare repeated the instruction, stating he
17F

“just want[ed] to evaluate how [Willey was] moving,” to get a sense of Willey’s

range of motion. 19 Willey complied and bent forward. 20 Upon bending forward,
18F 19F

Willey felt immediate pain and reported it to Dr. Policare. 21 After the appointment,
0F

Dr. Policare contacted Dr. Tortolani’s office to discuss clearance to treat Willey

given his DVT 22 (which he received), but he did not discuss any restrictions imposed
21F

by Dr. Tortolani. 23 22F

16
Id.
17
Policare Dep. 69; D.I. 102, Ex. C (“Willey Dep.”) 47 (“[Dr. Policare] said bend over until it
hurts”).
18
Willey Dep. 46.
19
Policare Dep. 69.
20
Id.
21
Willey Dep. 49; see also Policare Dep. 69, 71.
22
Policare Dep. 63.
23
Id. at 64.
5
A September 17, 2021, MRI revealed that the same disk (L4-L5) herniated

again. 24 As a result, Willey underwent another surgery on September 27, 2021,
23F

eleven days after his appointment with Phoenix Rehabilitation. 25 24F

C. Standard of review

“The Court will grant summary judgment if ‘there is no genuine issue as to

any material fact and…the moving party is entitled to judgment as a matter of

law.’” 26 The moving party bears the initial burden of showing the absence of
25F

genuine issues of material fact. 27 “If the moving party makes such a showing, ‘the
26F

burden shifts to the non-moving party to demonstrate that there are material issues

of fact.” 28 The Court must view the evidence and all reasonable inferences thereof
27F

in the light most favorable to the non-moving party. 29 8F “‘If the facts permit

reasonable persons to draw but one inference, the question is ripe for summary

judgment.’” 30 29F

24
D.I. 94, Ex. G at 3.
25
D.I. 94, Ex. E at 2.
26
Marcolini v. Horizon Servs., Inc., 2023 WL 111060, at * 2 (Del. Super. Jan. 5, 2023) (quoting
Super. Ct. Civ. R. 56(c)).
27
Id.
28
Davis v. Wayne Crosse, 2023 WL 7140169, at *4 (Del. Super. Oct. 31, 2023) (quoting Moore
v. Sizemore, 405 A.2d 679, 681 (Del. 1979)).
29
Id.
30
Marcolini, 2023 WL 111060, at * 2 (quoting Brzoska v. Olson, 668 A.2d 1355, 1364 (Del.
1995)).
6
D. Analysis

1. Phoenix Rehabilitation is entitled to summary judgment on punitive
damages.

“Punitive damages in medical negligence cases are governed by 18 Del. C. §

6855 which states, ‘punitive damages may be awarded only if it is found that the

injury complained of was maliciously intended or was the result of willful or wanton

misconduct by the health-care provider.’” 31 Willful or wanton conduct is conduct
30F

that reflects a “conscious indifference or I don’t care attitude.” 32 In other words,
31F

“[w]ithout ‘evidence of egregious conduct of an intentional or reckless nature’ in the

record, a claim for punitive damages cannot survive.” 33 And where the conduct “is
32F

based on an error of judgment…the plaintiff’s burden is substantial. It must be

shown that the precise harm which eventuated must have been reasonably apparent

but consciously ignored in the formulation of the judgment.” 34 Therefore, “[i]t is
33F

not enough that a decision be wrong. It must result from a conscious indifference to

the decision’s foreseeable effect.” 35 34F

31
Milton v. Alfred I. DuPont Hosp. for Children, 2025 WL 428070, at *4 (Del. Super. Feb 5, 2025)
(quoting 18 Del. C. § 6855).
32
Porter v. Turner, 954 A.2d 308, 312 (Del. 2008) (internal quotations marks omitted).
33
Marydale Pres. Assocs., LLC v. Leon N. Weiner & Assocs., Inc., 2022 WL 4446275, at *16 (Del.
Super. Sept. 23, 2022) (quoting Jardel Co., Inc. v. Hughes, 523 A.2d 518, 529 (Del. 1987)).
34
Jardel, 523 A.2d at 531.
35
Id. at 529.
7
Punitive damages serve to both “punish wrongdoers and deter others from

similar conduct.” 36 Because punitive damages implicate other societal policies,
35F

“[a]n award of punitive damages must therefore subsist on grounds other than

making the plaintiff ‘whole.’” 37 While “the question of punitive damages…is
36F

ordinarily for the trier of fact[,]” 38 “very high levels of inappropriate actions are
37F

required to warrant such a submission of punitive damages to a jury.” 39 If the
38F

evidence viewed most favorably for the plaintiff does not permit a reasonable

inference that defendant’s conduct was sufficiently egregious to warrant an

imposition of punitive damages, summary judgment in defendant’s favor is

appropriate. 40
39F

Willey argues that Dr. Policare’s request to bend down as if he was going to

touch his toes, despite Willey informing Dr. Policare of the bending restriction,

constitutes conscious indifference. 41 Under Willey’s view, Dr. Policare ignored a
40F

surgeon’s order and substituted his own inferior judgment, thereby putting his

patient’s safety in jeopardy. Further, Dr. Policare knew, or should have known, this

movement could easily re-injure Willey given his recent surgery. 4241F

36
Id.
37
Id. at 528.
38
Davis, 2023 WL 7140169, at *5 (internal citations and quotation marks omitted).
39
Vick v. Khan, 2019 WL 2177114, at *8 (Del. Super. May 17, 2019) (quoting Hartman v.
Orthopaedic Assocs. of S. Delaware, 2015 WL 995767, at *2 (Del. Super. Feb. 27, 2015)).
40
Davis, 2023 WL 7140169, at *5.
41
D.I. 102 (“Willey’s AB”) at 5.
42
Id.
8
Willey largely relies on Dr. Tortolani’s restrictions, which according to

Willey, were “strict ‘No BLT.’” 43 42F Dr. Tortolani’s expert report opines that Dr.

Policare was “grossly negligent” because he “completed [sic] disregarded the

restrictions and recommendations that we had provided to Mr. Willey and completed

[sic] disregarded Mr. Willey’s verbal explanation of what my physical therapy

recommendations were.” 44 Willey testified that he told Dr. Policare he (Willey) was
43F

under a “no bending” order from Dr. Tortolani. And, had Dr. Policare contacted Dr.

Tortolani’s office before the evaluation—just as Dr. Policare did when he sought

clarity as to Willey’s DVT—he would have known of the restriction. 45 44F

Even accepting the record in light most favorable to Willey, the facts do not

support the position that Willey was under a “strict no BLT.” Dr. Tortolani’s

contemporaneous office notes reflect the recommendation that Willey “be mindful

of bending.” 4645F

Willey also relies on the “hierarchy of orders,” which means a physician’s

orders takes precedence over a physical therapists’ protocols and the defense’s

reliance on the Axis Protocol fails for two reasons. First, Dr. Policare used the Axis

Protocol without Dr. Tortolani’s consent. Second, Dr. Policare violated the protocol,

43
Id. at 2; see also Tortolani Dep. 18.
44
D.I. 107, Ex. B at 3.
45
Willey’s AB at 5.
46
D.I. 105, Ex. B at 2.
9
which required the spine be kept in a “neutral” position, which was violated when

Willey “nose-dive[d]” to the floor. Willey relies on his expert Michelle Wolpov to

support these arguments.

Willey’s hierarchy of orders argument does not support a finding of conscious

indifference because Willey was not under a strict no BLT, as he contends. Further,

Dr. Tortolani testified that he does not provide guidelines for physical therapists’

protocols, rather, he relies on the judgment of the therapist. 47 46F

Ms. Wolpov’s testimony also does not support Willey’s argument. She

testified that it was reasonable for Dr. Policare to use the Axis Protocol. 48 Her 47F

opinions are based on the protocol’s requirement of keeping the spine neutral. With

respect to the remainder of the protocol’s parameters (avoid bending and twisting

below the knees), she testified that she is relying on the “more strict, the more precise

restriction.” 49
48F

Dr. Policare wanted to understand Willey’s range of motion as part of an

initial evaluation. He used an acceptable protocol. Accepting Willey’s testimony,

Dr. Policare asked Willey to bend “until it hurts,” Willey responded that he is “not

47
Tortolani Dep. 26, 65 (his opinions are based on the “assumption that a physical therapist is not
going to as a patient to bend, lift, or twist following a microdiscectomy.”) (emphasis added).
48
Wolpov Dep. 94.
49
Id. at 82. Willey also posits that Ms. Wolpov testified that the defense expert’s calculation of
the degree to which Willey bent shows that Dr. Policare violated the Axis Protocol. Willey
misconstrues this testimony. In a series of leading questions by Willey’s counsel, Ms. Wolpov
merely confirmed that bending to the degree calculated by the defense expert failed to keep the
spine neutral. Id. at 121.
10
supposed to bend, lift or twist.” 50 When Willey started to bend, he did not get “very
49F

far.” 51 Construing the facts in favor of Willey, the evidence does not raise a question
50F

of fact on whether Dr. Policare’s conduct rose to the level of willful or wanton. Dr.

Tortolani’s recommendation was to “avoid” bending, but not a strict “no BLT.” Ms.

Wolpov opines that Dr. Policare violated the Axis Protocol with respect to keeping

the spine neutral. Phoenix Rehabilitation submits its own expert who opines that

Willey bent forward no more than 20-30 degrees, which is less than “avoid bending

below the knees.” Thus, there is a factual dispute as to the interpretation of the Axis

Protocol and whether it was violated. That factual dispute does not, however, raise

a question of whether Dr. Policare acted willfully or wantonly, in conscious

disregard for Willey’s safety. 52 Perhaps Dr. Policare’s request was negligent (an
51F

error of judgment) —that is a question for a jury—but the evidence does not support

a reasonable inference that Dr. Policare’s conduct was “‘sufficiently outrageous to

warrant the imposition of punitive damages.’” 53 52F

Willey attempts to liken Dr. Policare’s conduct to that of the defendant in

Strauss v. Briggs. 54 That action stemmed from a misplaced surgical incision that
53F

50
Willey Dep. 46.
51
Id. at 47.
52
Marcolini, 2023 WL 111060, at *3 (rejecting the argument that a dispute of fact requires the
issue of punitive damages go to the jury).
53
Id. at *3 n.25 (quoting Greenlee v. Imperial Homes Corp., 1994 WL 46556, at *9 (Del. Super.
July 19, 1994)). That Willey’s experts’ reports opine that Dr. Policare was “grossly negligent” or
“reckless” does nothing to meet Willey’s burden here. Conclusory opinions are not sufficient.
54
525 A.2d 992 (Del. 1987); Willey’s AB at 5–6.
11
damaged a nerve in the plaintiff’s foot. 55 Plaintiff sought (and was awarded)
54F

punitive damages based on the theory that the doctor-defendant was so motivated by

greed that he acted with reckless indifference. 56 The evidence established that the
55F

doctor-defendant submitted multiple fraudulent bills to plaintiff’s insurer, started

work at 9 a.m. and worked continuously until he operated on plaintiff at 1 a.m. the

next day, and proposed to perform an operation which would only provide partial

relief to plaintiff’s symptoms, despite the fact that the doctor knew or should have

known that a different operation (that he was unable to perform), was indicated. 5756F

The Delaware Supreme Court affirmed the award of punitive damages. 58 57F

Strauss, instructive on the type of conduct that warrants punitive damages, is

factually distinguishable. Here, the disputed evidence does not tend to show that Dr.

Policare approached Willey’s treatment with reckless indifference or to serve some

other ulterior motive.

Moreover, punitive damages would not advance any underlying policy

(deterrence or punishment). 59 Phoenix Rehabilitation, and other physical therapy
58F

providers, are already disincentivized from performing physical therapy in a

negligent manner. Injured patients not only may result in expensive litigation, “but

55
Strauss, 525 A.2d at 994.
56
Id. at 999.
57
Id. at 999–1000.
58
Id. at 994.
59
See Jardel, 523 A.2d at 531.
12
it also damages the company’s image and reputation.” 60 As explained above, this
59F

dispute is over an error of judgment and the record lacks any evidence rising to the

level of conscious indifference. Accordingly, Phoenix Rehabilitation’s Motion is

GRANTED.

2. Willey is entitled to summary judgment on Phoenix Rehabilitation’s
fourth and eighth Affirmative Defenses.

The fourth affirmative defense states, in relevant part, “[t]o the extent that it

is found that any conduct on the part of [Phoenix Rehabilitation] cause[d] [Willey]

damages, [Willey] was comparatively negligent in causing his injury and his

damages should be reduced accordingly.” 61 The eighth affirmative defense states
60F

“[t]he injuries alleged by [Willey] were proximately caused by a superseding and/or

intervening act, not caused by [Phoenix Rehabilitation].” 62 Willey contends that
61F

Phoenix Rehabilitation failed to offer expert testimony to support either affirmative

defense. 63 Phoenix Rehabilitation responds that evidence exists in the record to
62F

support them. 64
63F

A defendant asserting an affirmative defense bears the burden of proving it. 65 64F

Where a medical expert opinion is required to prove negligence, the opinion

60
Marcolini, 2023 WL 111060, at *3.
61
D.I. 41 at 7.
62
Id. at 8.
63
See generally D.I. 95.
64
D.I. 100 at 3.
65
Paragon Metal Holdings, LLC v. Smith, 2025 WL 524265, at *10 (Del. Super. Jan. 28, 2025).
13
proffered must be to a reasonable degree of medical probability. 66 This standard
65F

applies to all elements, including causation. 67 66F

Phoenix Rehabilitation contends that if Willey was under a strict “no bending”

order, then any activity which caused him to bend constitutes negligence or a

superseding cause of Willey’s alleged injuries. 68 67F For support, Phoenix

Rehabilitation points to the opinions offered by Dr. Brian G. Leggin (“Dr. Leggin”)

and Dr. Scott A. Rushton (“Dr. Rushton”), the defense experts. Dr. Leggin opines

that “[t]here are a multitude of factors that could have precipitated the recurrent disk

herniation such as…positions the patient may have put himself into on his own such

as sitting for extended periods, etc.” 69 Dr. Rushton opined that
68F

functional activities of [] Willey following the index operative
procedure during his recovery time including the ability to drive, enter
and exit a vehicle, ambulate, get in and out of bed, in and out of a chair,
on an off the commode, would have exceeded the physiological stress
exhibited by the initial assessment of [Dr.] Policare. 70 69F

Phoenix Rehabilitation’s arguments fail for two reasons. First, contrary to

Phoenix Rehabilitation’s position, expert testimony is required to support

contributory negligence or superseding cause here. While Phoenix Rehabilitation is

66
Kardos v. Harrison, 980 A.2d 1014, 1018 (Del. 2009).
67
Id.
68
D.I. 100 at 4 (“[Willey] got up and down out of a chair, got up and down to use a commode, got
in an out of a car, and performed other activities of daily living. In addition, [Willey] reported to
his provider on October 18, 2024, ‘he just bent over to get something and had excruciating pain.’”).
69
Id., Ex. H at 8.
70
Id. at 5, Ex. I at 12.
14
not seeking to establish negligence by a medical provider, and therefore, 18 Del. C.

§ 6853(e) does not apply, where a question of negligence or a superseding cause is

beyond the purvey of lay jurors, expert testimony is required. 71 A lay juror will not
70F

be able to determine whether any activities Willey engaged in could have contributed

to the second herniation or whether another event was a superseding cause without

the assistance of a medical expert.

Second, neither of the defense experts offer opinions on how or when Willey

allegedly acted negligently or when the superseding cause 72 occurred after the initial
71F

alleged negligent act of Dr. Policare. Dr. Leggin offers opinions on activities that

could have contributed to the second rupture, but he does not go as far to opine that

Willey engaged in any of these activities negligently. Similarly, Dr. Rushton offers

no opinion causally linking the recurrent herniation with any negligent actions taken

by Willey. Furthermore, neither expert offers an opinion on any event after Dr.

Policare’s alleged negligence. 73 72F

71
Money v. Manville Corp. Asbestos Disease Comp. Trust Fund, 565 A.2d 1372, 1377 (Del. 1991)
(“When the issue of causation is presented in a context which is not a matter of common
knowledge, such a reasonable probability can only be proven by the testimony of a competent
expert witness.”).
72
Duphily v. Del. Elec. Coop., Inc., 662 A.2d 821, 829 (Del. 1995) (“A superseding cause is a new
and independent act, itself a proximate cause of an injury, which breaks the causal connection
between the original tortious conduct and the injury.”)
73
Id. (“An intervening cause is one which comes into active operation in producing an injury
subsequent to the negligence of the defendant.”) (emphasis in original).
15
As Willey recognizes, Phoenix Rehabilitation may present evidence of certain

risk factors and normal activities to explain why the re-herniation occurred, but there

is no medical expert testimony to support the conclusion that Willey was negligent

in performing such activities or that some event after his Phoenix Rehabilitation visit

was a superseding cause. Therefore, Willey’s motion is GRANTED.

E. Conclusion

Punitive damages are available only upon a showing of willful or wanton

conduct. Thus, a showing of egregious conduct is a prerequisite to the submitting

punitive damages to a jury. Dr. Policare’s conduct, viewed in the light most

favorable to Willey, does not rise to an egregious level. Accordingly, Phoenix

Rehabilitation’s Motion is GRANTED.

For an affirmative defense to survive summary judgment, the defendant must

produce evidence of a genuine issue of material fact. A medical expert’s opinion as

to the negligence of Willey or of a superseding cause of his injuries is required, but

none was provided. Therefore, Phoenix Rehabilitation has not produced evidence

to survive summary judgment as to its fourth and eighth affirmative defense. Thus,

Willey’s Motion is GRANTED.

IT IS SO ORDERED.

/s/Kathleen M. Miller
Kathleen M. Miller, Judge

16