19 Del. Admin. Code §§ 1331-9.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1331-9.0 - Pre-Trial Scheduling Conference and Pre-Trial Memorandum

9.1 Pre-Trial Scheduling Conference

9.1.1 In any action, including remands, a pre-trial scheduling conference shall be held. The Department shall designate an employee to arrange the time and date for the pre-trial conference. The designated employee will have discretionary power to re-schedule the pre-trial scheduling conference, if necessary. The employee designated by the Department in accord with this Rule shall be responsible for noticing such pre-trial scheduling conference.

9.1.2 The pre-trial scheduling conference shall be held on a date not later than 30 days after the date of the issuance of proper notice of a pre-trial scheduling conference regarding the petition at issue. The designated employee of the Department may grant a continuance of the pre-trial scheduling conference.

9.1.3 Such pre-trial scheduling conference may be held telephonically or by email, unless a party is unrepresented by counsel, in which case, the pre-trial scheduling conference shall be held at the Department of Labor offices servicing the county where the accident occurred.

9.1.4 The Department shall set a date and time for the hearing on the issues that are the subject of the petition, subject to the provisions of 19 Del.C. § 2348.

9.2 Pre-Trial Memorandum

9.2.1 In any action, including remands, a Pre-Trial Memorandum shall be completed by the parties and filed with the Department. The Department will issue notice of the pre-trial scheduling conference. Along with this notice the Department will electronically send a link to the online Pre-Trial Memorandum form to counsel for the moving party (petitioner), with notice to the opposing parties.

9.2.2 Fifteen days after receipt of the link counsel for the moving party shall complete the online Pre-trial Memorandum form and provide notice of its submission to the opposing parties. The opposing or non-moving parties shall complete their forms with notice of completion to petitioner's counsel 15 days after receiving notice that the petitioner has submitted their portion of the form. Electronic signature is acceptable for submission of the form. Should any party be unrepresented, the Pre-Trial Memorandum shall be completed by that party.

9.2.3 In the event the Pre-Trial Memorandum has not been filed with the Department in the time specified in subsection 9.2.2, either party may file a motion pursuant to Section 8.0 seeking an Order from the Board to compel the opposing party to complete or file a completed Pre-Trial Memorandum by a date certain providing notice of the filing to the moving party. Should any party fail to complete a Pre-Trial Memorandum the Board may remedy the deficiency by removing witnesses, rescheduling the Hearing, striking issues or defenses, or taking any other actions deemed appropriate to remedy prejudice to an opposing party and to facilitate the fair and orderly presentation of issues.

9.2.4 Any party may object to any matter in the Pre-Trial Memorandum. If the parties cannot agree to resolve the objection, any party may file a motion in accordance with Section 8.0. The basis for an objection may include, but is not limited to, that an item in the Pre-Trial Memorandum is not permitted, or that a matter stated in the Pre-Trial Memorandum should be dismissed, altered, supplemented or filed as another petition under Section 26.0.

9.3 The Pre-Trial Memorandum shall contain:

9.3.1 Names (and, if requested, the addresses) of prospective medical and lay witnesses;

9.3.2 A complete statement of what the petitioner seeks and alleges. When a claimant seeks an order for payment of medical expenses either by petition or when raised as an issue at the pre-trial hearing or in the Pre-Trial Memorandum on the employer's petition, copies of the bills shall be provided to counsel with the petition or at least 30 days before the hearing;

9.3.3 A complete statement of defenses to be used by the opposing party;

9.3.4 A copy of the medical report upon which a petition for benefits under 19 Del.C. § 2326 is based shall be provided;

9.3.5 A clear statement of the basis for a petition under 19 Del.C. § 2347;

9.3.6 Notice of the intent to use any movie, video or still picture and either a copy of the same or information as to where the same may be viewed;

9.3.7 An accurate estimate of the time necessary for hearing. This requirement includes an ongoing responsibility to update to Board as to any changes in the estimated trial time that may arise before hearing.

9.4 Amendments:

9.4.1 Either party may modify a Pre-Trial Memorandum at any time prior to 30 days before the hearing. Amending the Pre-Trial Memorandum by written notice to the opposing party and the designated employee of the Department of Labor may be made in accord with this regulation. If a party objects to an amendment, the party requesting relief shall file a motion in accord with Section 8.0.

9.4.2 If the thirtieth day prior to a hearing falls on a weekend or legal holiday, the last day to amend the Pre-Trial Memorandum shall be the next business day following that date.

9.4.3 Should a party wish to amend the Pre-Trial Memorandum to list additional witnesses, the party shall provide the names (and, if requested, the addresses) of such witnesses.

9.4.4 Notice of any modification to the Pre-Trial Memorandum shall be sent to the opposing counsel or unrepresented party in the same manner and on the same day as it is submitted to the Department.

9.4.5 The 30-day notice requirement regarding amendments to the Pre-Trial Memorandum may be waived or modified by consent of the parties upon written stipulation, or by the Board upon written motion pursuant to Section 8.0.

9.5 The designated employee of the Department of Labor will review the Pre-Trial Memorandum, note a time and date for the hearing, sign the form and send copies of the completed Pre-Trial Memorandum to the Parties. Such Pre-Trial Memorandum controls the subsequent course of the action unless amended by the Board to prevent manifest injustice.

9.6 Parties are responsible for arranging the appearance of noticed witnesses including the issuance of any subpoenas and the sending of notices of date and place of the hearing as well as the scheduled time of that witness' testimony.

19 Del. Admin. Code §§ 1331-9.0

1 DE Reg. 938 (01/01/98)
1 DE Reg. 1621 (04/01/98)
15 DE Reg. 854 (12/01/11)
26 DE Reg. 966 (5/1/2023) (Final)