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denying bifurcation while recognizing that Delaware courts routinely considers questions of liability, compensatory, and punitive damages together
Summary of this case from Moyer v. Am. Zurich Ins. Co.Opinion
C.A. No. 97C-10-132-RFS.
August 3, 2007.
On Plaintiffs' Motion In Limine to Bar Testimony of Adultery. Denied.
On Defendant's Motion to Exclude Evidence of Tenant Complaints. Denied.
On Defendant's Motion in Limine to Exclude Expert Testimony of Samuel J. Kursh, D.B.A. Denied.
On Defendant's Motion to Exclude Financial Evidence on the Punitive Damages Claim and for Consideration at a Separate Hearing. Denied.
On Defendant's Motion In Limine to Exclude Evidence of Neurocognitive Impairment. Denied.
On Defendant's Motion In Limine to Exclude Reference to "Sick Building Syndrome." Granted.
Jeffrey M. Weiner, Esquire, of Wilmington, Delaware for the Plaintiffs.
David E. Wilks, Esquire and Katharine V. Jackson, Esquire, of Reed Smith LLP, Wilmington, Delaware for the Defendant Rokeby Realty Company.
ORDER
Plaintiffs have moved to strike references to alleged affairs by Charles Brandt with two women in 1989 and 1992 under D.R.E. 403. Under that Rule, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. I find the evidence is relevant and its probative value is not substantially outweighed by unfair prejudice. In this regard:
1) Mr. Brandt claims Defendant caused serious personal injuries which, in part, include depression and mental anxiety. Derivatively, Mr. Brandt's wife, Nancy Brandt, claims loss of consortium.
2) The depression and mental anxiety may be attributable in part to these affairs and forms part of the defense expert's opinion presented by Dr. Stephen Mechanick.
3) For loss of consortium, Nancy Brandt claims that Defendant's actions caused her loss of her husband's services, companionship, comfort, company, cooperation, affection, and aid that were previously a feature of their married life. However, if the tort committed against the impaired spouse is not the proximate cause of the loss of consortium, the cause of action will fail. In this regard, if the spouses were experiencing serious marital difficulties at the time of the tort, causation may be absent. 41 Am. Jur.2d Husband Wife § 220. The affect these affairs had on Mr. Brandt, his relationship to his wife, and how it influenced the marital relationship are matters for the jury to weigh. The first alleged act of adultery is close enough in time to the leasing of the office. The second alleged act happened later. The loss of consortium claim seeks recovery through the date of trial. Mrs. Brandt's belated discovery of these incidents in 2002 and any impact on the marital relationship also would be for the jury to weigh.
4) Defendant argues that the acts of alleged adultery would be permitted under D.R.E. 608(b). I find that adultery is not like false swearing and is not probative of truthfulness or untruthfulness and may not be used to attack Mr. Brandt's credibility. The law confirming this point is discussed in State v. Moses, 726 A.2d 250 (N.H. 1999); and in State v. Young, 2006 N.C. App. LEXIS 1428 (N.C.Ct.App. July 5, 2006).
Considering the foregoing, Plaintiffs' motion in limine is denied.
Defendant has moved to exclude evidence of tenant complaints regarding air quality and alleged injuries at the office building for three reasons:
First, the argument is made that the tenants did not share common air handling equipment or even draw air from the same supply as Plaintiff's office located in Suite 200. However, this is a disputed issue of fact for a jury to decide. There is evidence that all three floors are served by one outside air intake chase. Air could migrate between the floors. Whether the plenum space above Suite 201, a suite occupied by Feminist Therapy Associates ("FTA"), was effectively isolated is also a disputed question of fact. The existing air system (for a common air plenum) was reflected in a 1995 design and installation of extensions intended for that office. The detail about "added ductwork" suggests a connection to the second floor plenum. The FTA tenants would also be exposed to the air in the bathrooms and common areas. The jury — not the Court — must weigh the probative value of this evidence.
Second, the argument is made that no expert testimony links the tenant health problems to any of the problems of which Brandt seeks damages. This is an overstatement because the tenant health problems and the problems raised by Brandt both address poor air quality. Furthermore, the tenants and Brandt have at least some common symptoms.
Further, in response to continuing complaints about poor indoor air quality and to information provided by Indoor Air Solutions in February of 1996, Defendant employed an expert, W. Curtis White, to investigate, analyze and report his findings to Defendant about the environmental status of the building. Without considering other expert testimony, his report provides the connection which Defendant claims to be missing.
On June 6, 1996, White wrote:
Interpretation of Test Results: There are no government approved or generally accepted standards for "safe" levels of microbial contamination, although the U.S. Air Force environmental laboratories at Brooks Air Force Base has recommended an "action level" of 200 CFU per cubic meter of air. Our interpretations and recommendations are based on what we believe to be the most reliable scientific data and on our many years of experience with the kind of testing performed and with typical human reactions at various levels of microbial contamination. Overall test results are much more meaningful than individual sample results. In any set of tests there may be aberrations which are not representative of the overall building condition. In general, for testing done with the Single Stage Andersen Air Sampler, sample levels below 70 CFU per cubic meter are extremely good . Those levels are acceptable for most individuals. Levels from 70 to 140 are marginal for hypersensitive individuals and levels above 140 could be expected to cause some problems for a significant number of individuals. Levels above 350 are an indication of definite, widespread problems. For surface samples, the intensity of growth is of importance in assessing overall contamination potential, but the identification of organism types is of much greater value for assessment of potential human risk.
Although total numbers are a good indicator of building condition, it is also important to look at the species present and the distribution of species. The potential for triggering serious human reaction varies dramatically from species to species. Fungi such as Stachybotrys atra, Aspergillus oryzae, and Aspergillus versicolor are considered to be so dangerous that any presence is considered significant. In contrast, common fungi such as Hormoconis sp. (formerly known as Cladosporium sp.) have a low potential for causing human health problems, even at relatively high concentrations. Fungi such as Penicillium chrysogenum are known to trigger allergic reactions for a high percentage of individuals. A normal environment will have several species of organisms with none dominating. Where one or more species have gained dominance, an imbalance has been created and the imbalance would suggest that remedial action be taken at lower total levels. Finally, adding to the complexity of the above, is the fact that hypersensitive individuals can have severe reactions at extremely low levels or to organisms which have little or no effect on normal individuals.
Ex. J of Notice of Brandt Pls.' Resp. In Opp'n — Evidence of Tenant Compls. At 2-3.
White's report is an admission under D.R.E. 801(d)(2)(c). See ONTI, Inc. v. Integra Bank, 1998 WL 671263 (Del.Ch. Aug. 25, 1998); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980). While these cases involve expert depositions, there is no principled reason to treat White's report differently. It is an expert's routine report to determine the state of the building. White's report provides evidence of safe standards and effects on people which is relevant under D.R.E. 402. See Kupendua v. Emsley, 1997 WL 528259 (Del.Super. July 24, 1997) (reviewing statutes, regulations and excerpted deposition testimony, the court concluded that a "defective condition" exists only when painted surfaces are found to contain 0.7 milligrams per square centimeter or more of lead).
As the Court ruled last summer:
Furthermore, Brandt points out that in comparison to standards laid out by Defendant's expert W. Curtis White, fourteen of the sixteen tests taken at Three Mill Road produced results marginal for hypersensitive individuals, and eleven produced results commensurate with causing problems for a significant number of individuals. In addition, he notes that some of the other tenants complained of poor air quality. One tenant, Borin, had test results that showed abnormal results in relation to mold counts, and, according to Brandt, Barbara McCloskey, also had developed a sensitivity to mold.
Brandt v. Rokeby Realty Co., 2006 WL 1942314, at *25 (Del.Super. July 7, 2006).
The testing showed levels of contamination in excess of the safety standards recognized by White.
Third, Defendant argues that the probative value of the evidence is substantially outweighed by the dangers of unfair prejudice and confusion under D.R.E. 403. Tenant complaints are relevant to show the pervasive nature of the mold problems at the building. This is a properly recognized factor. See New Haverford P'ship v. Stroot, 772 A.2d 792, 800 (Del. 2001). Evidence of the complaints is also relevant to show foreseeability of potentiall y adverse health problems for significant numbers of people which a reasonable landlord under similar circumstances may be expected to investigate and remedy. See Jardel Co. v. Hughes, 523 A.2d 518, 526 (Del. 1987) (finding on the issue of foreseeability of harm, that prior crime statistics were part of the "circumstantial setting" to measure the degree of security expected of a reasonable mall owner). The Defendant has questioned whether the alleged injury to Plaintiff is so idiosyncratic that a reasonable landlord should not anticipate it. The foregoing evidence addresses that contention as well. See Brandt 2006 WL 1942314.
Moreover, tenant complaints are probative of the Defendant's state of mind on the punitive damages question. See Littleton v. Young, 1992 Del. LEXIS 15 (Del. Jan. 2, 1992). "[T]he focus [for punitive damages] is upon the defendant's state of mind."); Brandt, 2006 WL 1942314. Tenant complaints about the need for repairs and the landlord's alleged indifference to them are part of the circumstantial setting of this case.
Upon consideration, I find that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice or confusion.
Accordingly, Defendant's motion is denied.
IT IS SO ORDERED
The Defendant has moved to exclude evidence on the alleged lost earnings capacity of the Plaintiff, Charles Brandt.
This issue concerns a report done by Samuel J. Kursh on May 7, 2001 that found that Plaintiff will suffer an estimated $2,928,717.00 in loss of earnings through 2009. The assumption was based upon Plaintiff's total disability and his desire to continue working until his sixty-seventh birthday. The report averaged Plaintiff's earnings from 1994 through 1998 and used that figure as the basis for the calculation.
Arguments are made that the averaging cannot be a reasonable basis. Further, the assumption that Plaintiff would work until sixty-seven years of age is claimed to be unreasonable. In this vein, since evidence must be reliable, Defendant contends that Kursh's lost earnings opinion must fail.
The Defendant references M. G. Bancorporation v. Le Beau, 737 A.2d 513, 523 (Del. 1999) which speaks about the Court's gatekeeping role to assure the admissibility of relevant and reliable evidence. The Le Beau decision applies the Daubert case. I will not consider any Daubert objections at this time. They were to have been resolved long before now, with motions being filed on May 16, 2003 by Order, docket entry #160. Previously, Daubert objections have been extensively considered by the Court.
Even so, I am satisfied that the use of a five year average of Plaintiff's earnings is reasonable. If a ten year average had been used, the base would be greater. Pertinent points concerning proof of past earnings are found in Stein on Personal Injury Damages, Section 6:10 as follows:
Damages must be proven with reasonable certainty . . . proof of prior earnings, plus the fact of permanent injury, is evidence from which the trier of fact can estimate impairment of earning capacity in a manner that goes beyond mere conjecture. . . . When the earnings at precise time of injury do not fairly reflect the actual earnings capacity of the plaintiff, his or her income may be determined on the basis of plaintiff's average earnings, unless income averaging would distort the Plaintiff's pre-injury income. The losses of a stevedore who sustained permanent injury were properly computed on the basis of plaintiff's average yearly earnings, rather than on the basis of his earnings for the year which immediately preceded the accident . . . in another case, the wages of a worker during the year immediately preceding the accident were higher than they had been, but there was no showing that higher wages would have continued during the period between the injury and trial. The Court held that the loss of earnings in the 2 1/2 year period between the injury and trial should have been computed on the basis of the Plaintiff's average annual income for the 4 year period immediately preceding the injury. . . .
Of significance also is the decision of Delmarva Power Light Co. v. Burrows, 435 A.2d 716 (Del. 1981). The Supreme Court found an average annual earnings for a three year period immediately before the injury was a reasonable base. In the present litigation there is evidence that Plaintiff's injuries are permanent.
Concerning Plaintiff's work life, Plaintiff has proffered testimony in his response to the motion that he expected to work longer, at least to age sixty-seven.
Moreover, Stein provides helpful information in Section 6.5 on the measure of damages. Section 6.5 provides as follows:
Damages are usually measured over the plaintiff's work life expectancy. In determining work life expectancy, the fact finder can consider mortality tables, the testimony of others in the same profession, the plaintiff's general health and physical condition at the time of the injury, whether the plaintiff would have been subject to compulsory retirement and the dangers of the occupation as well as other weaknesses from the defense point of view.
The use of data from the Department of Labor to estimate Plaintiff's work life based on the aging of males with fifteen or more years of education go merely to the weight a jury may give Kursh's testimony — not to its admissibility. The Defendant through cross examination can show the data may be dated and does not differentiate among industry or occupation.
As the Supreme Court has said before: "assessing damages for loss of earning capacity `presents a jury with a problem which can be solved only by the use of common sense. Loss of future earnings . . . cannot be estimated with any degree of accuracy. The jury must do the best it can to estimate an amount. . . ." Sears, Roebuck, Co. v. Facciolo, 320 A.2d 347, 350 (Del. 1974) (citation omitted).
As a threshold matter, there is sufficient basis for the jury to weigh this question, Defendant's motion is denied.
Previously, the Defendant's motion for summary judgment on the punitive damages claim was denied. Brandt v. Rokeby Realty Co., 2006 WL 1942314, at *25 (Del.Super. July 7, 2006). I am not going to repeat what has been discussed before. The jury will decide disputed issues of fact and will be given instructions of law.
Concerning Defendant's request to bifurcate the punitive damages claim, the facts are interwoven and an already lengthy trial should not be prolonged for a second hearing. Bifurcation of liability and damage issues will not be "conducive to expedition and economy" under Civil Rule 42(b). Del. Super. Ct. Civ. R. 42(b). The jury will hear evidence bearing on the Defendant's alleged "I do not care" attitude and will be able to apply the instructions of law, including those relating to the award of punitive damages based upon Jardel Co. v. Hughes, 523 A.2d 518, 522 (Del. 1987). If the Defendant believes additional instructions are desirable beyond the standard ones previously filed by Plaintiff (docket #369), then it should provide them and they will be given serious consideration.
In this regard, Delaware juries have often considered questions of liability, compensatory, and punitive damages together. For instance, a 1909 reported case, Jordan v. Delaware A. Tel. Co., 75A 1014 (Del. 1909) shows a jury instruction on both compensatory and punitive damages.
Consequently, the Court declines to exercise discretion under Rule 42(b) to separate the punitive damages claim. See Wallace v. Keystone Ins. Group, 2007 WL 884755 (Del.Super. Mar. 22, 2007) ("Courts have held that negligence actions should not be routinely bifurcated. The decision to divide a negligence action into separate trials of liability and damages `should be carefully considered and sparingly granted.'" (citation omitted)).
Further, I have reviewed the case of Rochen v. Huang, 1989 WL 5373 (Del.Super. Jan. 6, 1989), and find it to be inapposite. There, both sides sued each other for punitive damages. This is not the typical case nor the one here. The trial judge was concerned that the difference in the financial positions between the parties (a doctor and three former patients) would be too problematical.
Defendant's motion is denied.
Defendant has moved to exclude evidence of "Neurocognitive Impairment." This motion is another attempt to argue against the admissibility of the testimony of Dr. Vincent Marinkovich which was part of the Court's opinion last summer. Brandt v. Rokeby Realty Co., 2006 WL 1942314 (Del.Super. July 7, 2006). I will not repeat this Court's prior rulings. As a threshold matter on the whole record, Plaintiff has medical evidence to a reasonable degree of probability that Plaintiff has fungal hypersensitivity with cognitive impairments attributed to exposure at the office rented from Defendant. The evidence is outlined in pages 1 — 3 of Plaintiffs' revised response (docket entry #371) which is incorporated by reference herein.
There is sufficient evidence on the subject for jury consideration. The jury will give it the weight it feels appropriate. Therefore, the motion is denied.
Defendant has moved to exclude reference that Plaintiff or any tenants at the office premises had "Sick Building Syndrome."
The law on this subject is straightforward, and it has been cited accurately by Defendant. The Superior Court has held that Sick Building Syndrome is not a medically valid diagnosis. Minner v. American Mortg. Guar. Co., 791 A.2d 826, 851-52 (Del.Super. 2000).
Consequently, there will be no reference to Sick Building Syndrome and Defendant's motion is granted in this regard.
IT IS SO ORDERED.