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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHARON SMACK
- DIXON and ) WILLIAM MASON DIXON, ) ) Plaintiff s , ) ) v. ) C.A. No. N18C
- 09
- 220 PRW ) WAL
- MART, INC. ) ) Defendant. )
Submitted: January 7, 2023 Decided: January 2 5 , 202 3
ORDER Upon Defendant Wal

- Mart, Inc’s Motion for a New Trial ,

DENIED

. This 2 5 th day of January , 202 3 , upon consideration of the Defendant’s m otion
for a n ew t rial (D.I. 82), the Plaintiffs’ r esponse (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

- M art, Inc. for injuries arising out of a slip

- and

- fall at a Wal

- M art 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, M r s. Smack

- Dixon designated one of her treating

1 Mr. D ixon was added as a plaintiff when the Complaint was amended to include a claim for loss of consortium. D.I. 41.- 2

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doctors, Nichols Theodore, M.D. , as her expert medical witness. Before trial, Wal

M art sought to preclude portions of Dr. Theodore’s proffered testimony concerning
M r s. Smack

- Dixon’s hip injury. 2 (3) The Court denied Wal

- M art’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

- M art negligent, that Wal

- M art’s negligence was a proximate
cause of Ms. Smack

- Dixon’ s injur ies , 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

- M art filed a timely m otion for a n ew t rial, and Plaintiffs answered shortly thereafter. (6) Upon Rule 59 motion for a new trial, “[t]he jury ’ s verdict is presumed

to be correct,” 6 though 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 Assoc s ., L.P. , 2006 WL 3457628, at *1 (Del. Super. Ct. Nov. 28, 2006) (“The sta ndard 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).- 3

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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

- M art’s m otion for a n ew t rial 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

- M art asserts Dr. Theodore was “not competent” “ to provide the necessary ca u sal bridge between the accident and [Mrs.
Smack

- Dixon’s] alleged hip injuries.” 11 (8) Wal

- M art relies on a single Delaware Supreme Court case

— Peters v.
Gelb 12

— to support its position that Dr. Theodore ’s hip

- injury testimony should have
been excluded. (9) This Court’s decision 13 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 , 40 1 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).- 4

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distinguishable here. In th e underlying Gelb decision, this Court found that in the preceding fifteen to twenty years the “body of knowledge concerning the results of vasectomy procedures” ha d 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 caus ation 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

- M art’s motion in l imine , “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. Smack

Dixon ’ s pre
- and post

- injury medical records; this includes Dr. Hornstein ’ s office

an d 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.- 5

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(11) In its present motion, Wal

- M art insists Dr. Theodore cannot be considered a competent expert on the hip injury complained

- of, because , in his practice, he refers pat ients with such maladies to hip specialists. 19 But t hat does not
diminish his own ability to provide hip

- relevant expert testimony. 20 As the Court
found o n Wal

- M art’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 l egal 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

- M art’s m otion for a n ew t rial is
DENIED

. SO ORDERED this 2 5 th day of January, 2023

.

_ Paul R. Wallace, Judge Original to Prothonotary cc: All counsel via File & Serve

19 Wal

- M art’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).