Opinion
C.A. No. 07C-04-583 PLA.
Submitted: June 4, 2009.
Decided: June 24, 2009 Amended: July 13, 2009.
ON DEFENDANT HITCHENS TIRE SERVICE, INC.'S MOTIONS IN LIMINE.
GRANTED in part; DENIED in part.This 24th day of June, 2009, it appears to the Court that:
1. This case arises out of a motor vehicle accident that occurred on August 24, 2005, when a loose tractor-trailer tire struck a car operated by plaintiff Jeanette Christina Drejka ("Drejka") on Route 1 in Smyrna. After the tire hit her car, Drejka lost control of her vehicle, crossed a median, and collided with another car. Apparently, the loose tire that struck Drejka's car had been attached to a tractor-trailer owned by Defendant Atlantic Concrete, Inc. ("Atlantic Concrete"). An Atlantic Concrete employee, David Wood ("Wood"), had been driving the tractor-trailer in the opposite direction from Drejka around the time of Drejka's accident. Upon returning to the Atlantic Concrete lot, Wood discovered that the tractor-trailer was missing two tires. The tires had been installed a few days prior to the accident by Defendant Hitchens Tire Service, Inc. ("Hitchens").
2. Drejka alleges that the accident caused her to suffer permanent injury to her back and neck. On April 24, 2007, Drejka filed negligence claims against Atlantic Concrete, Wood, and Hitchens. In addition, Drejka's husband, Joseph Drejka, brought a loss of consortium claim against all three defendants.
For convenience, the Court will refer only to "Plaintiff" or "Drejka."
3. Now before the Court are three motions in limine filed by Hitchens. First, Hitchens seeks to exclude evidence regarding Drejka's out-of-pocket expenses for health-care premiums, medical expenses, and lost wages incurred from April and August 2006, on the basis that Drejka received compensation for these expenses via a PIP policy. Drejka does not contest the merits of this motion, and it will be granted.
4. Hitchens's second motion seeks a ruling to exclude photographs depicting damage to Drejka's vehicle, as well as testimony from Drejka regarding the forces of impact she experienced during the accident. Hitchens contends that such evidence is barred by Davis v. Maute, in which the Delaware Supreme Court held that a party in a personal injury case generally may not directly argue that the severity of personal injuries caused by an automobile accident can be inferred from the extent of vehicle damage unless competent expert testimony is offered on the issue.
770 A.2d 36, 40, 42 (Del. 2001).
5. In response, Drejka contends that Davis is not applicable to this case in light of Eskin v. Carden. Drejka emphasizes statements in Eskin indicating that expert testimony is not required in every case to establish the admissibility of vehicle photographs. Drejka argues that the photographs of her vehicle "are relevant as to not only how the accident happened but the point of impact and what happened to plaintiff's body inside the vehicle."
852 A.2d 1222 (2004).
Docket 27 (Pl.'s Resp.), ¶ 6.
6. Hitchens's third motion requests that the Court exclude testimony of any medical experts whose reports or opinions were not disclosed until after discovery deadlines. In particular, Hitchens contends that the Court should exclude the expert testimony of Dr. Ganesh Balu, M.D., one of the plaintiff's treating physicians. The trial scheduling order in this case set a deadline of December 19, 2008, for Plaintiff's expert reports or Rule 26(b)(4) disclosures. Defendants' expert reports or Rule 26(b)(4) disclosures were to be produced by January 16, 2009, and discovery was to conclude on or before February 13, 2009. On October 31, 2008, in response to interrogatories requesting identification of all experts expected to be called at trial and "the substance of the facts and opinion[s] to which the expert is expected to testify," Drejka merely reserved "the right to call any and all expert witnesses, upon determination thereof." Hitchens asserts that Drejka did not produce Dr. Balu's expert medical report, which was dated May 4, 2009, until May 5, 2009, more than four months after the disclosure deadline.
Docket 11 (Trial Scheduling Order).
Docket 23, Ex. B.
7. In response, Plaintiff urges that she complied with the Court's trial scheduling order by submitting copies of her medical records from Dr. Balu in October 2008. Plaintiff describes Dr. Balu's May 2009 report as a "supplemental" summary of her medical records, and emphasizes that the defense medical expert was provided with Dr. Balu's records and with an opportunity to conduct an independent examination. Accordingly, Drejka suggests that Hitchens received a reasonable opportunity to defend itself in advance of trial and would suffer no prejudice if Dr. Balu is permitted to testify.
Docket 26 (Pl.'s Resp.), ¶ 5.
8. As to Hitchens's first motion, the Court agrees that Davis controls this case and, because Drejka will not present relevant expert testimony, requires exclusion of all evidence, including vehicle photographs, offered to relate vehicle damage to the extent of Plaintiff's personal injuries. Davis refutes that there is a commonsense connection between the extent of damage to a vehicle resulting from an accident and the severity of a vehicle occupant's personal injuries.
See Sloan, 2001 WL 1735087, at * 2 (quoting Davis, 770 A.2d at 41).
9. Plaintiff's position that Davis is inapplicable misconstrues the effect of Eskin v. Carden. In Eskin, the Delaware Supreme Court observed that Davis did not bar the admission of photographs of damaged vehicles without expert testimony if the photographs were relevant for a purpose other than correlating personal injury to the extent of property damage and that other purpose did not require supporting expert opinion. But Eskin merely clarifies, and does not restrict, the holding of Davis. In fact, the Eskin Court emphasizes that it "follow[s] the holding in Davis that, absent facts that are supported by competent expert testimony, counsel may not directly argue to the finder of fact that there is a correlation between the extent of the damage to the vehicles involved in an accident and the cause or severity of personal injuries alleged from that accident."
842 A.2d at 1233.
Id. at 1226.
10. The plaintiff lacks the knowledge and expertise to relate either the damage to her vehicle or her subjective experience of the forces of impact to her injuries. Her testimony thus cannot provide a foundation for admission of the vehicle photographs, nor can it serve as the basis for any implied or explicit argument that the extent of damage to her vehicle is probative as to the extent of her personal injuries.
11. Drejka argues that the vehicle photographs are relevant to show how the accident occurred, to identify the points of impact, and to explain the movement of her body inside the car during the accident. The parties do not dispute, however, that an accident occurred. At issue are whether any of the defendants negligently caused the accident and the severity of Plaintiff's injuries. In light of these disputed issues, the relevance of the vehicle photographs is dubious. Still photographs of Drejka's car cannot depict the sequence of events during the accident or the movements of Plaintiff's body. Plaintiff's testimony will convey this information. This Court has previously observed that Davis does not prevent a plaintiff from describing her own physical experience of an accident and her subsequent treatment. Moreover, Davis "does not prohibit all evidence that bears on force of impact" and will not bar Drejka from describing the forces she felt during the accident. Thus, as Hitchens acknowledges, Drejka remains free to testify as to her experience of the accident, including the motion of her vehicle and her body. To the extent Hitchens's motion seeks to exclude such testimony, it must be denied.
See Kapetanakis v. Baker, 2008 WL 3824165, at *2 (Del.Super. Aug. 14, 2008); Sloan v. Clemmons, 2001 WL 1735087, at *4 (Del.Super. Dec. 19, 2001).
Garneski v. Teromina, 2003 WL 504863, at *1 (Del.Super. Feb. 25, 2003).
12. Finally, turning to Hitchens's third motion, the Court concludes that Drejka failed to comply with the trial scheduling order and that exclusion of Dr. Balu's testimony is appropriate. The Court's order required the plaintiff to provide her expert report or Rule 26(b)(4) disclosure by December 19, 2008. Superior Court Civil Rule 26(b)(4) contemplates the discovery of "facts known and opinions held by experts." As this conjunctive construction suggests, each party has the right to discover not only the facts known to the opposing side's experts, but the substance of the opposing experts' opinions. The underlying logic should be evident: a party must respond not only to facts — which, in many cases, may be undisputed — but also to the opinions drawn by opposing experts from those facts.
Del. Super. Ct. Civ. R. 26(b)(4) (emphasis added).
13. Here, Drejka's disclosure of Dr. Balu's medical records was insufficient to satisfy her discovery obligations. The records did not contain Dr. Balu's opinions as to the causation or permanency of Drejka's injuries. Although Plaintiff has characterized Dr. Balu's May 2009 report as "supplemental," it was the first notification provided to the defendants of Dr. Balu's opinions.
14. This Court is vested with the inherent power "to manage its own affairs and to achieve the orderly and expeditious disposition of its business." Trial scheduling orders are one crucial means by which this power is exercised, and violation of the discovery deadlines established in a trial scheduling order can result in sanctions. In this case, Dr. Balu's report was not provided to the defendants until more than four months after the applicable expert report deadline, and more than two months after discovery was concluded. Hitchens therefore had no means to develop a rebuttal of Dr. Balu's opinions, nor to prepare adequately for crossexamination. Accordingly, Drejka will not be permitted to present Dr. Balu's testimony at trial.
Gehardt v. Ernest DiSabatino Sons, Inc., 264 A.2d 153, 159 (Del. 1970).
See Super. Ct. Civ. R. 16(f) ("If a party or party's attorney fails to obey a scheduling or pretrial order . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just. . . .").
15. For the foregoing reasons, Hitchens's Motions in limine to exclude evidence of special damages and to exclude the testimony of Dr. Balu are hereby GRANTED. Hitchens's Motion to Preclude Testimony from the Plaintiff with Regard to Force of Impact, As Well As Photographs Depicting Damage to Plaintiff's Vehicle is DENIED in part to the extent the motion attempts to limit the plaintiff's testimony as to her experience of the accident and the movements of her body within the vehicle during the accident; to the extent that the motion seeks exclusion of vehicle photographs and testimony relating property damage to Plaintiff's injuries, the motion is GRANTED in part.
IT IS SO ORDERED.
Original to Prothonotary
cc: Andrea C. Panico, Esq.
Timothy A. Rafferty, Esq.
Thomas F. Sacchetta, Esq.
William R. Stewart, III, Esq.
This 13th day of July, 2009, it appears to the Court that:
1. Defendants have moved for a protective order to bar Plaintiffs from taking the video trial deposition of Dr. Jeffrey S. Meyers, MD. Whether an examining expert may be compelled to testify regarding his expert report at the behest the opposing party is a discretionary decision, to be determined "in the interests of fairness." Upon consideration of the defendants' motion, it is clear that the interests of fairness do not merit permitting the plaintiffs to call Dr. Meyers as an expert on their behalf. Dr. Meyers was retained as a defense medical expert and objects to testifying on behalf of Plaintiffs. Plaintiffs did not rely upon Dr. Meyers's medical report in preparing for trial, as indicated by their failure to serve him with expert interrogatories, to take a discovery deposition, or to pursue a trial deposition until after Defendants sought the exclusion of Plaintiffs' medical expert.
Pinkett v. Brittingham, 567 A.2d 858, 860 (Del. 1989).
2. For the foregoing reasons, Defendants' Motion for a Protective Order precluding Plaintiffs from taking the video trial deposition of Dr. Meyers is hereby GRANTED.
1. This case arises out of a motor vehicle accident that occurred in August 2005, when a loose tractor-trailer tire struck a car operated by plaintiff Jeanette Christina Drejka ("Drejka") on Route 1 in Smyrna. By order dated June 24, 2009, this Court granted Defendant Hitchens Tire Service, Inc.'s ("Hitchens") motion in limine to preclude the expert testimony of Dr. Ganesh Balu, one of Drejka's treating physicians. The Court held that exclusion of Dr. Balu's testimony was merited in light of Plaintiffs' failure to disclose the substance of Dr. Balu's opinions to the defendants until after the close of discovery, in violation of the Court's scheduling order. Plaintiffs now move for the Court to reconsider this ruling, arguing that Dr. Balu's records, which were provided to the defendants within the applicable discovery deadlines, did contain opinions and that the Plaintiffs' case "will be severely prejudiced" if Dr. Balu is not permitted to testify.
2009 WL 1813761 (Del.Super. June 24, 2009).
Docket 33 (Pls.' Mot. for Reargument), ¶¶ 8-9.
2. A motion for reargument pursuant to Superior Court Civil Rule 59(e) will be granted only if "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." A motion for reargument is not an opportunity for a party to rehash arguments already decided by the Court or to present new arguments not previously raised.
Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del.Super. Jan. 31, 2006) (citation omitted).
Id.; Hennegan v. Cardiology Consultants, P.A., 2008 WL 4152678, at *1 (Del.Super. Sept. 9, 2008) (citing Denison v. Redefer, 2006 WL 1679580, at *2 (Del.Super. Mar. 31, 2006)).
3. Plaintiffs' motion does not argue that the Court has overlooked applicable precedent or principles. Upon consideration of Hitchens's original motion, the Court reviewed the records provided and was unable to discern the content of Dr. Balu's opinions other than his diagnosis of Drejka. Although Plaintiffs contend that Dr. Balu's records contained his opinions, they have not identified any portion of the records relating those opinions. The Court cannot conclude that these ordinary treatment records satisfied Plaintiffs' obligation to timely disclose the substance of Dr. Balu's opinions. They certainly are not tantamount to an expert report, nor are they an acceptable substitute for such a report under Superior Court Civil Rule 26(b)(4).
4. The Court is thus satisfied that it did not misapprehend the law or the facts in granting Hitchens's motion. While Plaintiffs' case is undoubtedly affected by the exclusion of Dr. Balu's testimony, their failure to comply with the scheduling order denied the opposing parties a meaningful and timely opportunity to formulate a response to Dr. Balu's opinions. Excluding Dr. Balu's testimony is an appropriate means of avoiding the serious prejudice to the defendants that would otherwise result from Plaintiffs' actions.
5. For the foregoing reasons, Plaintiffs' Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.