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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHARON SMACK-DIXON and )

WILLIAM MASON DIXON, )

)

Plaintiffs, )

) 

v. ) C.A. No. N18C-09-220 PRW 

)

WAL-MART, INC. )

)

 Defendant. )

 

Submitted: January 7, 2023

Decided: January 25, 2023

ORDER 

Upon Defendant Wal-Mart, Inc’s Motion for a New Trial,

DENIED. 

This 25th day of January, 2023, upon consideration of the Defendant’s motion 

for a new trial (D.I. 82), the Plaintiffs’ response (D.I. 85), and the record in this 

matter, it appears to the Court that:

(1) Plaintiff Sharon Smack-Dixon filed a personal injury lawsuit against 

Wal-Mart, Inc. for injuries arising out of a slip-and-fall at a Wal-Mart store in 

Seaford, Delaware on October 22, 2016. Ms. Smack-Dixon complained she suffered 

injuries requiring her to undergo back and hip surgery.1

(2) As relevant here, Mrs. Smack-Dixon designated one of her treating 

1 Mr. Dixon was added as a plaintiff when the Complaint was amended to include a claim for 

loss of consortium. D.I. 41. 
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doctors, Nichols Theodore, M.D., as her expert medical witness. Before trial, WalMart sought to preclude portions of Dr. Theodore’s proffered testimony concerning 

Mrs. Smack-Dixon’s hip injury.2

(3) The Court denied Wal-Mart’s motion in limine, finding Dr. Theodore 

was qualified to opine on the causation question.3

(4) The action was subsequently tried before a jury. The jury returned a 

verdict finding Wal-Mart negligent, that Wal-Mart’s negligence was a proximate 

cause of Ms. Smack-Dixon’s injuries, and that Ms. Smack-Dixon was in no way 

negligent in the slip-and-fall incident.

4

 The jury awarded Ms. Smack-Dixon 

$250,000 in damages and awarded Mr. Dixon $25,000 in damages.5

(5) Wal-Mart filed a timely motion for a new trial, and Plaintiffs answered 

shortly thereafter. 

(6) Upon Rule 59 motion for a new trial, “[t]he jury’s verdict is presumed 

to be correct,”6though the Court may “order a new trial when the jury’s verdict is 

2

Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *1 (Del. Super. Ct. July 16, 2021). 

3

Id. at *7. 

4 Verdict Form, at 34-35, Dec. 6, 2022 (D.I. 81).

5

Id. at 36.

6 Galindez v. Narragansett Housing Assocs., L.P., 2006 WL 3457628, at *1 (Del. Super. Ct. 

Nov. 28, 2006) (“The standard of review on a motion for new trial is well-settled.”); Kelly v. 

McHaddon, 2002 WL 388120, at *4 (Del. Super. Ct. Mar. 4, 2002) (same).
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tainted by legal error committed by the trial court before or during the trial.”7 When

considering a motion for a new trial, the Court ascribes “enormous deference” to the

jury’s verdict and to the jury’s role as the ultimate finder of fact.8 “Thus, the Court 

will not disturb a jury’s verdict unless ‘the evidence preponderates so heavily against 

the jury verdict that a reasonable jury could not have reached the result.’”

9

(7) Wal-Mart’s motion for a new trial effectively seeks a re-argument of 

the Court’s earlier decision denying its motion in limine to exclude certain proffered 

testimony by Dr. Theodore.10 Specifically, Wal-Mart asserts Dr. Theodore was “not 

competent” “to provide the necessary causal bridge between the accident and [Mrs. 

Smack-Dixon’s] alleged hip injuries.”11

(8) Wal-Mart relies on a single Delaware Supreme Court case—Peters v. 

Gelb12—to support its position that Dr. Theodore’s hip-injury testimony should have 

been excluded.

(9) This Court’s decision13 that was affirmed in Gelb is helpful but 

7 Gillen v. Cont’l Power Corp., 2014 WL 1347491, at *2 (Del. Super. Ct. Apr. 7, 2014) (citation 

omitted). 

8 Crist v. Connor, 2007 WL 2473322, at *1 (Del. Super. Ct. Aug. 31, 2007) (citation omitted).

9 Balderson v. Freeman, 2007 WL 1378343, at *2 (Del. Super. Ct. May 9, 2007) (quoting

Storey v. Camper, 401 A.2d 458, 465 (Del. 1979)).

10 Wal-Mart only seeks “a new trial on the issue of damages.” Wal-Mart’s Mot. for New Trial ¶ 

10, Dec. 19, 2022 (D.I. 82).

11 Id. ¶ 8 (“Dr. Theodore was not competent to address the contested hip issues.”). 

12 Id. ¶ 9 (citing 314 A.2d 901 (Del. 1973)).

13 Peters v. Gelb, 303 A.2d 685 (Del. Super. Ct. 1973), aff’d, 314 A.2d 901 (1973).
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distinguishable here. In the underlying Gelb decision, this Court found that in the 

preceding fifteen to twenty years the “body of knowledge concerning the results of 

vasectomy procedures” had changed, yet the testifying expert “had not maintained a 

study in recent years of the developments in the field.”14 And because he “lacked 

the current expertise which is required of one who is called upon to express a 

professional opinion concerning probable causation of unfavorable results following 

[such] surgical procedure” he was unqualified to provide the proffered testimony.15

(10) That is not the case here. As the Court previously found in its decision 

denying Wal-Mart’s motion in limine, “Dr. Theodore stated he has diagnosed 

Mrs. Smack-Dixon’s specific hip issue—trochanteric bursitis—in patients before.”

16

 

“He was able to explain the symptoms and give a description of the procedure 

Dr. Hornstein performed on Mrs. Smack-Dixon.”17 And his “competency in this 

particular case is further supported by his review of over 1,900 pages of Mrs. SmackDixon’s pre- and post-injury medical records; this includes Dr. Hornstein’s office 

and operative notes, which Dr. Theodore relied upon in forming his hip causation 

opinion.”18

14 Id. at 688 (citation omitted).

15 Id.

16 Smack-Dixon, 2021 WL 3012056, at *4.

17 Id.

18 Id.
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(11) In its present motion, Wal-Mart insists Dr. Theodore cannot be 

considered a competent expert on the hip injury complained-of, because, in his 

practice, he refers patients with such maladies to hip specialists.19 But that does not 

diminish his own ability to provide hip-relevant expert testimony.20 As the Court 

found on Wal-Mart’s motion in limine, Dr. Theodore has the “‘knowledge, skill, 

experience, training, or education’ necessary to give an expert opinion on Mrs. 

Smack-Dixon’s hip injuries despite his own now-specialized surgical practice 

concentrating on the spine.”21

(12) The Court’s refusal to limit Dr. Theodore’s expert medical testimony 

was not a legal error and thus the admission of that testimony could not have tainted 

the jury’s verdict such that a new trial would be required. 

(13) For the reasons stated above, Wal-Mart’s motion for a new trial is 

DENIED.

 SO ORDERED this 25

th day of January, 2023.

_

 Paul R. Wallace, Judge

Original to Prothonotary

cc: All counsel via File & Serve

19 Wal-Mart’s Mot. for New Trial ¶ 5. 

20 Smack-Dixon, 2021 WL 3012056, at *4 (finding Dr. Theodore qualified to opine on causation 

after noting “from a diagnostic standpoint, [Dr. Theodore] identifies hip problems all the time and 

refers those patients out to hip surgeons for further care”).

21 Id. (citing D.R.E. 702).