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Atamian v. Bahar3/30/2005
within a lay person's scope of knowledge. The fabrication of a dental prostheses is not , however, a matter commonly within the knowledge of a layperson and the plaintiff must have an expert to testify as to the defect in the prostheses and that the defect proximately caused his injury.
The plaintiff repeatedly maintains that the Court on January 17, 2003 and January 24, 2003 ordered the defendant, Dr. Bahar, to serve as his expert witness. The plaintiff has misinterpreted the Court's ruling. The Court determined that Dr. Bahar will serve as her own expert witness. The Court at no time, however, stated that Dr. Bahar would be required to serve as an expert for the plaintiff. The Delaware courts will not force individuals to serve as expert witnesses. Indeed, it has been stated that to do so would amount to a form of "involuntary servitude" with experts "being made to serve without remuneration and without [their] consent."
To prevail on a claim for breach of the implied warranty of fitness, the plaintiff must show: (1) he had a special purpose for the goods; (2) P & R knew or had reason to know of that purpose; (3) P & R knew or had reason to know that the buyer was relying on the seller's superior skill to select goods that fulfilled that purpose; and (4) the plaintiff in fact relied on P & R's superior skill. "However, an action for breach of this warranty is unavailable where a product is used for its ordinary purpose."
The Uniform Commercial Code section 2-315 note two, defines ordinary purposes as "those envisaged in the concept of merchantability and go to the uses which are customarily made of the goods in question."
The plaintiff does not establish facts sufficient to meet any of the elements of a claim for breach of an implied warranty of fitness. The plaintiff does not allege that he had a particular purpose for the dental prostheses that was somehow different than the ordinary purposes of a dental prostheses. He also does not allege that P & R was told or knew of any particular purposes. The bridge was fabricated to be used for its ordinary purposes or those purposes for which a bridge is customarily made. Summary judgment on Count V for product liability in favor of P & R is granted.
IV. Conclusion
The gist of the plaintiff's action is dental negligence, although he has not alleged such and refuses to characterize any defendants' conduct as such. Even if he did, the record is insufficient to support a finding of negligence against any defendant.
Framing the claims as intentional tort, conspiracy, and product liability, as the plaintiff had done, yields no basis in law or fact for any of the counts. The bulk of the plaintiff's record consists of unsupported conclusory allegations. After a careful analysis of each count in the complaint, the Court finds that summary judgment on behalf of the defendants is appropriate on all counts. The motion for summary judgment is granted.
IT IS SO ORDERED.
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