IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
ERIC LI, )
)
Plaintiff, )
)
v. ) C.A. No. N18C-02-160 ALR
)
GEICO ADVANTAGE )
INSURANCE COMPANY and )
ROBERT DEJONGH, )
)
Defendants. )
Submitted: September 16, 2019
Decided: October 7, 2019
Upon Defendants’ Motions to Strike Evidence Regarding Plaintiff’s Possible
Future Surgery
GRANTED IN PART
ORDER
This case involves two separate motor vehicle collisions, both involving
Plaintiff Eric Li (“Plaintiff”). Defendants each filed motions to exclude testimony
regarding Plaintiff’s potential need for future surgery and treatment. Plaintiff
opposes both motions. The Court has considered the parties’ submissions; the
Delaware Rules of Evidence; the facts, arguments, and legal authorities presented
by the parties; and decisional law.
At the trial level, it is the role of the Court to perform a gatekeeping function
with expert testimony.1 The admissibility of expert testimony is governed by
Delaware Rule of Evidence 702, which provides:
If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of
the case.2
Delaware has adopted the Daubert standard to determine whether an expert
has a reliable basis in the knowledge and experience of the relevant discipline.3
Under this standard, the trial judge may consider the following factors: (1) whether
the theory or technique has been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether a technique has a high-known
or potential rate of error and whether standards controlling its operation exist; and
(4) whether the theory or technique enjoys acceptance within a relevant scientific
community.4
1
Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 583 (Del. 2007).
2
D.R.E. 702.
3
See M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999)
(adopting the Daubert standard as the correct interpretation of Delaware Rule of
Evidence 702).
4
Sturgis, 942 A.2d at 584 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 595 (1993)).
2
In addition to the Daubert factors, Delaware requires the trial judge to
consider an additional five-step test to determine the admissibility of expert
testimony.5 The trial judge must determine that:
(1) the witness is qualified as an expert by knowledge, skill, experience,
training, or education;
(2) the evidence is relevant;
(3) the expert’s opinion is based upon information reasonably relied
upon by experts in that particular field;
(4) the expert testimony will assist the trier of fact to understand the
evidence or determine a material fact in issue; and
(5) the expert testimony will not create unfair prejudice or confuse or
mislead the jury.6
“[Delaware’s] case law is clear that ‘when an expert offers a medical opinion
it should be stated in terms of a reasonable medical probability or a reasonable
medical certainty.’”7 “A doctor cannot base [an] expert medical opinion on
speculation or conjecture.”8 “A doctor’s testimony that a certain thing is possible is
no evidence at all”9 because “[a] doctor’s opinion about ‘what is possible is no more
valid than the jury’s own speculation as to what is or is not possible.’”10
In his first expert report dated October 31, 2017, Plaintiff’s first medical
expert witness, Dr. Ali Kalamchi, states that Plaintiff “may need periodic visits for
5
Id.
6
Id.
7
O’Riley v. Rogers, 69 A.3d 1007, 1011 (Del. 2013) (quoting Floray v. State, 720
A.2d 1132, 1136 (Del. 1998)) (quotation marks omitted).
8
Id.
9
Oxendine v. State, 528 A.2d 870, 873 (Del. 1987).
10
O’Riley, 69 A.3d at 1011 (quoting Oxendine, 528 A.2d at 873).
3
evaluation if there is any change in his symptoms.”11 The first report also states that
“[t]he major future cost would be related to surgical intervention if his symptoms
became severe to require surgery.”12 In his second expert report dated February 22,
2018, Dr. Kalamchi states that the “[f]uture course [of treatment] will depend on
flare-up, then he may need resumption of then acute conservative treatment such as
physical therapy and medication.”13
Plaintiff concedes that Dr. Kalamchi’s opinions concerning the need for future
surgery are not stated to a reasonable degree of medical probability. 14 Instead,
Plaintiff argues that Dr. Kalamchi’s opinions regarding the possibility of future
surgery are admissible to support Plaintiff’s claim that he will experience mental
anguish over the future possible consequences of his injuries, including the
possibility of future surgery.
In O’Riley v. Rogers, the Delaware Supreme Court held that the Superior
Court abused its discretion by ordering a new trial after it had properly excluded
medical expert testimony similar to Dr. Kalamchi’s proposed testimony.15 Prior to
trial, the Superior Court excluded a medical expert’s testimony that “it was possible
that the plaintiff’s permanent injury might improve depending on the results of
11
Def. DeJongh’s Mot. to Strike Ex. B, at 2 (emphasis added).
12
Id. (emphasis added).
13
Def. DeJongh’s Mot. to Strike Ex. C, at 2 (emphasis added).
14
Pl.’s Resp. to Mot. in Limine and Mot. to Strike ⁋ 1.
15
O’Riley, 69 A.3d at 1008.
4
further recommended testing.”16 The Superior Court initially found the testimony
impermissibly speculative because the testimony addressed possibilities, not
reasonable medical probabilities.17 After the jury returned a verdict favoring the
plaintiff, the defendant moved for a new trial.18 The Superior Court granted the
defendant’s motion, concluding that the disputed testimony supported the depth and
credibility of the expert’s opinion on the permanency of the plaintiff’s injuries.19
The Delaware Supreme Court found that the Superior Court erred in ordering
a new trial because the testimony was impermissibly speculative.20 The Supreme
Court found that the excluded testimony did not test the credibility of the expert’s
opinion but instead opined about the permanency of the plaintiff’s injuries based on
the treatment possibilities that a medical test might reveal.21 Finding the Superior
Court abused its discretion by ordering a new trial, the Supreme Court vacated the
Superior Court’s order granting the defendant’s motion for a new trial and remanded
the case with instructions to reinstate the original jury verdict.22
Similar to the testimony in O’Riley, Dr. Kalamchi’s proposed testimony is not
proper because it is speculative. Specifically, Dr. Kalamchi’s statements opine about
16
Id. (emphasis added).
17
Id. at 1009.
18
Id. at 1010.
19
Id.
20
Id. at 1012.
21
Id.
22
Id.
5
the possible courses of treatment and costs that might arise if now-unmet conditions
are satisfied in the future. Such speculative medical expert testimony is “no evidence
at all.”23
Moreover, to the extent Plaintiff seeks to offer these statements to support his
claim of mental anguish, the Court finds that the testimony would “create unfair
prejudice or confuse or mislead the jury.”24 Dr. Kalamchi’s testimony regarding the
potential need for future surgery and treatment is therefore inadmissible.
Defendant GEICO also objects to portions of proposed testimony by
Plaintiff’s second medical expert witness, Dr. Steven Diamond. In his narrative
report dated December 8, 2017, Dr. Diamond states the following: “It has been
suggested by orthopedic spinal surgery that [Plaintiff] may benefit, if his symptoms
become more acute of a cervical surgical procedure to correct the defects found on
MRI. I will leave this in the capable hands of Dr. Kalamchi to discuss with
[Plaintiff].”25 By his own words, Dr. Diamond does not intend to offer his own
opinion as to Plaintiff’s future need for surgery. In addition, these statements suffer
from the same speculation defects as Dr. Kalamchi’s statements. The Court
23
See Oxendine, 528 A.2d at 873.
24
See Sturgis, 942 A.2d at 584 (“Before admitting expert testimony, the trial judge
must determine that . . . the expert testimony will not create unfair prejudice or
confuse or mislead the jury.”); see also D.R.E. 403.
25
See Def. GEICO’s Mot. in Limine Ex. C, at 3 (emphasis added). In his response,
Plaintiff does not raise any opposition to GEICO’s objection to this portion of Dr.
Diamond’s report.
6
therefore finds that Dr. Diamond’s statements regarding the potential need for future
surgery are inadmissible.
Finally, GEICO objects to the admissibility of Plaintiff’s own testimony
regarding his potential need for surgery. In his deposition, Plaintiff testified that his
doctor told him that he “eventually . . . need[s] a surgery.”26 Plaintiff further testified
that he is “not ready” to undergo surgery because he is “not prepared” and is aware
of “side effects for any surgery.”27 Unlike the doctors’ testimony, Plaintiff’s
testimony is not offered as a medical expert opinion and does not speculate about
the potential consequences of unmet conditions. Moreover, the Court finds that
Plaintiff’s testimony satisfies the relevancy test as to his mental anguish claim.28
However, additional context is needed to determine the testimony’s admissibility
and therefore the issue will be addressed when raised at trial.
NOW, THEREFORE, this 7th day of October 2019, the Court rules as
follows:
1. Statements by Drs. Kalamchi and Diamond regarding Plaintiff’s
future treatment and surgery are hereby excluded; and
26
Def. GEICO’s Mot. in Limine Ex. A, at 42:8–9.
27
Id. at 42:20–23.
28
See D.R.E. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”).
7
2. Testimony by Plaintiff regarding Plaintiff’s future treatment and
surgery shall be addressed at trial in consideration of, among other things,
Delaware Rule of Evidence 403.
IT IS SO ORDERED.
Andrea L. Rocanelli
________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
8