Bangs v. Follin

SUPERIOR COURT
of the
STATE OF DELAWARE
Jeffrey J Clark Kent County Courthouse
Judge 38 The Green
Dover, DE 19901
Telephone (302)735-2111

January 13, 2017

Edward C. Gill, Esq. David C. Malatesta, Jr., Esq.
Law Office of Edward C. Gill, & Associates Kent & McBride, P.C.
16 North Bedford Street 824 North Market Street
Georgetown, DE 19947 Suite 805
Wilmington, DE 19801

Monica E. O’Neill, Esq.
Four Penn Center
1600 JFK Blvd., Suite 620
Philadelphia, PA 19103

RE: Robert Bangs v. Diana & Dawn Follin
K15C-05-008 JJC

Counsel:

This letter order addresses Plaintiff Robert Bangs’ (hereinafter “Mr. Bangs’”)
recently filed motion in limine. By previous letter order, the Court ruled on other
motions raised by the Defendants Diana and Dawn Follin (hereinafter “Follin
Defendants”).1 Trial in this matter is scheduled to begin on January 23, 2017. It
involves Mr. Bangs’ claim that he fell through a hole in the residence that he previously
rented from the Follin Defendants. The Follin Defendants claim that Mr. Bangs

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Bangs v. Follin, 2016 WL 6875959 (Del. Super. Nov. 21, 2016).
falsified his injury claim because of his need for money and because of legal and other
disagreements with them.
In preparation for trial, the parties shared proposed trial exhibits and
disagreements persist. Mr. Bangs sought leave to file this additional motion in limine
addressing certain common objections to the Follin Defendants’ exhibits. His motion,
however, also separately lists foundational and other objections to the majority of the
Follin Defendants’ forty-three trial exhibits.
In this Order, the Court will address Mr. Bangs’ primary objections that (1)
evidence of poverty is not relevant or admissible to support an inference that Defendant
manufactured a false claim against the Follin Defendants; (2) Delaware Rule of
Evidence (“DRE”) 404(b) poverty related evidence offered to show separate relevance
such as motive, opportunity, preparation and plan is inadmissible; and (3) the expert
reports are inadmissible. For the reasons discussed below, evidence of Mr. Bangs’
economic means is inadmissible for any purpose. Furthermore, the expert reports are
likewise inadmissible. However, the Court does not agree with Mr. Bangs’ contention
that evidence offered pursuant to DRE 404(b) cannot be relevant under any
circumstances. The Court will reserve decision regarding that issue, as well as Mr.
Bangs’ other objections including relevance, DRE 403, foundation, discovery
violations, and hearsay. More evidentiary context is necessary prior to the Court’s
decision on those issues.

Evidence of Mr. Bangs’ Poverty Offered to Show Motive to Falsify a Claim is
Inadmissible

After reviewing the motion, response, and the exhibits, the Court finds that

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evidence of Mr. Bangs’ poverty offered for the purposes of proving his alleged motive
to manufacture a claim is at most marginally relevant to any fact of consequence.
Nevertheless, if there is any relevance to such evidence, it is inadmissible pursuant to
DRE 403 because any such relevance would be substantially outweighed by the risk
of unfair prejudice or confusing the issues. Furthermore, in considering evidence of
economic means offered for a purpose advanced pursuant to DRE 404(b), DRE 403
also separately requires exclusion at trial of any such evidence .
Courts generally recognize, in the context of criminal cases, that poverty is not
admissible to show that a person is more likely to commit a crime because of need.2
Likewise, evidence of poverty is no more relevant in the civil context to establish the
likelihood that a person experiencing financial difficulties is somehow more likely to
falsify a personal injury claim.3 In balancing any marginal relevance in a civil claim,
where money compensation for pain and suffering is the only recourse permitted, the
Court finds an even greater risk of unfair prejudice and confusion of the issues than in

2
See United States v. Mitchell, 172 F.3d 1104, 1108 (9th Cir. 1999) (recognizing that the
traditional view is “that evidence of poverty is not admissible to show motive, because it is of slight
probative value and would be unfairly prejudicial to poor people charged with crimes”); see also John
A. Glenn et al.,Corpus Juris Secundum Robbery § 78 (2016) (noting that “[g]enerally evidence of a
defendant’s poverty or indebtedness is inadmissible to establish a motive to commit robbery or theft”
because “it would be unfair to persons in difficult financial circumstances to permit general evidence
of their poverty to be introduced for the purpose of establishing a motive for a robbery, and the risk
of causing suspicion of indigent persons generally outweighs the probative value of such evidence”).
3
See Hodge v. Weinstock, Lubin & Co., 293 P. 80, 84-85 (1930)(providing that statements
of counsel suggesting to the jury “that the plaintiff was impoverished and without means” violates the
rule that “[i]t is well settled that evidence of poverty is not admissible in civil claims such as this, and
that its admission is reversible error”); see also Joseph Bassano et al., Corpus Juris Secundum
Damages § 333 (2016) (recognizing that with regard to the pecuniary condition of parties,
“[i]nterjection of the wealth or poverty of any party is irrelevant to the issue of compensatory
damages in a personal injury case based on negligence, highly prejudicial because it diverts the jury
from a fair assessment of damages, and a basis for reversal”).

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the criminal context. Any arguably marginal relevance would be substantially
outweighed by the danger of unfair prejudice to Mr. Bangs.
Several of the exhibits offered by the Follin Defendants are clearly offered solely
for this purpose and are accordingly barred from admission at trial. These include
Defendant’s Exhibit No. 4 which is a letter “To Whom it may concern” asking for
charitable assistance, and Defendant’s Exhibit No. 10 which is a notice of a social
security hearing. These exhibits are offered only to establish Plaintiff’s poverty and are
therefore not admissible pursuant to DRE 403. Additionally, Follin Defendants’
Exhibit No. 21 is alleged to be Mr. Bangs’ letter to Catholic Charities requesting
assistance and is likewise inadmissible for the same reason. Finally, Defendants’
Exhibit No. 25, which includes liens and judgments due against Mr. Bangs, is also
inadmissible.
Furthermore, to the extent any of the other exhibits or other evidence are offered
to establish poverty, even to prove a separate relevance contemplated by DRE 404(b),
they are likewise inadmissible pursuant to DRE 403. There, any such purported
relevance to an itemized separate purpose in DRE 404(b) would be substantially
outweighed by the danger of unfair prejudice and confusion of the issues.
The Court’s decision here rests solely on the propriety of offering evidence
regarding Mr. Bangs’ economic means. Absent Mr. Bangs opening the door, such
evidence will not be admissible at trial for any purpose. On the other hand, the Court
reserves decision regarding the admissibility of any documents or testimony offered to
prove the tenancy related legal disputes between the parties, and the course of the
parties’ relationship. Contrary to Mr. Bangs’ argument, although character evidence
is inadmissible in civil matters, DRE 404(b) permits such evidence for purposes other

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than character evidence in the civil context.4 As such, many of the documents at issue
may be relevant and admissible directly, or separately admissible for a DRE 404(b)
purpose.

Expert Reports Are Not Admissible

Mr. Bangs also objects to the admission of the Follin Defendants’ written expert
reports at trial. The Follin Defendants seem to agree in part, but also argue that they
are “admissible” for purposes of refreshing recollection and also because they fall
within an exception to the hearsay rule.
Expert reports are generally not admissible at trial.5 This general rule applies
even though it is conceivable, though unlikely, that an expert report could fall under
either the recorded recollection or the records of regularly conducted activity exception
to the hearsay rule.6 Nevertheless, if such documents do fall into one of these
exceptions from the definition of hearsay, it does not automatically make them

4
See Fed. R. Evid. 404(b) advisory committee’s note to 2006 amendment (stating “[t]he
admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases).
5
See Gerstley v. Mayer, 2015 WL 756981, at *9 n. 48 (Del. Super. Feb. 11, 2015) (stating
“[g]enerally expert reports are not admissible . . .”); Mine Safety Appliances Co. v. AIU Insurance
Co., 2015 WL 5818071, at *3 (Del. Super. Oct. 1, 2015) (recognizing that “[w]ritten expert reports
normally are not admitted into evidence and will not be viewed by the jury”).
6
See Rizzi v. Mason, 799 A.2d 1178, 1185 (Del. Super. 2002) (refusing to admit physician
reports because defendant was unable to lay the proper foundation that a doctor’s report satisfied any
hearsay exception); Gerstley, 2015 WL 756981, at *9 n. 48 (stating “[g]enerally expert reports are
not admissible as evidence as the report constitutes hearsay”). While the Court is not deciding
whether a hearsay exception is available for an expert report, it is unlikely that the reports at issue
here could rely on the records of regularly conducted activity exception to the hearsay rule as these
reports were prepared in anticipation for litigation. Therefore, the reports likely would not satisfy
the provision contained in DRE 803(6) that the record be kept in the ordinary course of business.

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admissible. DRE 702 addresses the admissibility of opinion evidence and provides for
introduction of expert testimony, not written reports.7 Furthermore, assuming there is
an otherwise adequate foundation for admitting a written report, admitting both expert
testimony and the expert’s written report would be unduly cumulative in the context of
the reports at issue. Pursuant to a DRE 403 balancing test, the danger of needlessly
presenting cumulative evidence substantially outweighs the relevance provided by
duplicating the experts’ opinions in writing. Accordingly, the Follin Defendants’ expert
reports are inadmissible at trial.
This ruling, however, does not bar from admission as evidence any photographs,
charts, or other evidence contained within the reports. Such other evidence, though
included within the reports, may be separately admissible provided it meets
foundational requirements and other standards for admissibility. Likewise, that the
written reports themselves are not admissible in evidence does not prohibit their use to
refresh the recollection of the testifying experts, provided the requirements of DRE 612
apply.

Conclusion

Evidence of Mr. Bangs’ poverty is excluded from trial absent him somehow
opening the door to make it admissible. Accordingly, Defense Exhibits 4, 10, 21 and
25 are inadmissible. With regard to all other objections, including potential evidence
of Mr. Bangs’ other conduct, motives, and intent, the Court reserves decision until trial
because of the need for evidentiary context and (1) to provide the parties sufficient

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Namely, “[i]f scientific , technical, or other specialized knowledge will assist the trier of fact
to understand evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify
thereto in the form of an opinion or otherwise . . ..” Del. R. Evid. 702 (emphasis added).

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opportunity to proffer relevance and (2) to consider argument regarding any unfair
prejudice of such evidence. The parties are encouraged to confer and resolve as many
discovery, foundational, and hearsay objections as possible before trial.
IT IS SO ORDERED

/s/Jeffrey J Clark
Judge

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