SUPERIOR COURT

OF THE

STATE OF DELAWARE

PAUL R. WALLACE

JUDGE

NEW CASTLE COUNTY COURTHOUSE

500 N. KING STREET, SUITE 10400

WILMINGTON, DELAWARE 19801

(302) 255-0660

Date Submitted: April 28, 2021

Date Decided: July 16, 2021

Leroy A. Tice, Esquire David G. Culley, Esquire 

LEROY A. TICE, ESQUIRE, P.A. TYBOUT, REDFEARN & PELL

1203 North Orange Street 750 Shipyard Drive

Second Floor Suite 400

Wilmington, Delaware 19801 Wilmington, Delaware 19801

RE: Sharon and William Smack-Dixon v. Wal-Mart, Inc.

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

Dear Counsel:

This Letter Order addresses the Defendant Wal-Mart, Inc.’s motion in limine

to preclude the proffered testimony of Plaintiffs Sharon and William Smack-Dixon’s

medical expert, Nicholas Theodore, M.D. Upon review of the parties’ pleadings, 

their arguments at the hearing, and the record in this case, Wal-Mart’s motion in

limine is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of a slip-and-fall incident that occurred in the Seaford, 

Delaware Wal-Mart store on October 22, 2016.1 Wal-Mart surveillance footage 

1 Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 1, Sept. 11, 2020 

(D.I. 40) [hereinafter Def.’s Mot.].
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captures Mrs. Smack-Dixon’s “right foot slipping on an unknown substance; her left 

leg bending behind her causing her to perform a near ‘split’; and her falling to the 

floor where she came to rest on her left hip.”2 Mrs. Smack-Dixon is a 64-year-old

woman who, according to plaintiffs, only suffered from the usual age-related aches 

and pains prior to the incident.

3

 After the incident, Mrs. Smack-Dixon reports she 

has suffered progressively debilitating lower back and bilateral hip pain, among 

other related physical complaints.4

In November 2018, Mrs. Smack-Dixon was evaluated by Ali Bydon, M.D., at 

Johns Hopkins Hospital.5 Following this evaluation, review of pertinent medical 

records, and imaging studies, an L3-L5 lumbar fusion was recommended.6 On 

December 19, 2018, Dr. Bydon and Nicholas Theodore, M.D., performed the L3-L5 

instrumented fusion, utilizing Dr. Theodore’s newly developed robotic guidance

technology.

7

 Dr. Theodore, because of his expertise in the use of robotic technology 

2 Pl.’s Opp’n to Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 5, 

Mar. 1, 2021 (D.I. 49) [hereinafter Pl.’s Opp’n].

3

Id.

4

Id.

5 Pl.’s Opp’n ¶ 6. 

6

Id., Ex. A (Johns Hopkins Medical Records). 

7

Id.
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for spine surgery, led the procedure.

8 Dr. Theodore’s Operative Report records that 

the reasons for surgery were “severe intractable lower back pain” and imaging that

revealed “marked disease and destruction of the facet joints bilaterally at L3-L4 and 

L4-L5 with fluid in the facets and evidence of offset instability.”9

Six months later, in June 2019, Joshua Hornstein, M.D., of Rothman 

Orthopaedics, examined Mrs. Smack Dixon.

10 He noted continuing bilateral hip and 

left groin pain.

11 But he did confirm that the lumbar spine surgery had relieved 

Mrs. Smack-Dixon’s bilateral sciatic pain.12 Further treatment was deemed

necessary due to Dr. Hornstein’s diagnoses of bilateral gluteal tendinitis and bilateral 

bursitis.13 As a result, Dr. Hornstein performed an endoscopy and trochanteric 

bursectomy on Mrs. Smack-Dixon’s left side in July 2019.14 He performed the same

8 Pl.’s Opp’n ¶ 6.

9

Id., Ex. A.

10 Pl.’s Opp’n ¶ 7, Ex. B (Rothman Orthopaedics Medical Records). 

11 Id.

12 Id.

13 Id. 

14 Id.
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on her right side, along with a gluteal tendon repair the following month.

15

Through this suit, Mrs. Smack-Dixon seeks monetary damages for injuries

she allegedly sustained to her lower back and hips because of the fall in Wal-Mart.

16

Mrs. Smack-Dixon filed her complaint in September 2018, accusing Wal-Mart of

negligence. 17 That complaint was amended to add Mr. Smack-Dixon’s loss of 

consortium claim.

18

 Trial was to occur in April 2020 but was pushed to November 

2021 by the court closures occasioned by the COVID-19 pandemic. 19

In anticipation of the upcoming trial, Wal-Mart filed the instant motion in

limine to preclude Dr. Theodore from testifying as Mrs. Smack-Dixon’s medical 

expert.20 The Smack-Dixons filed their written opposition,

21 and the Court has heard 

the parties’ arguments on this motion.22 So, the motion is now ripe for decision.

15 Id. 

16 Def.’s Mot. ¶ 1. 

17 Pl.’s Opp’n ¶ 2.

18 Id.

19 Id. ¶ 4; Notice, May 26, 2021 (D.I. 58).

20 Def.’s Mot. 

21 Pl.’s Opp’n.

22 Judicial Action Form (D.I. 57).
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II. APPLICABLE LEGAL STANDARDS

Delaware Rule of Evidence 702 governs the admission of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or 

otherwise, if: (a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or to 

determine a fact in issue; (b) the testimony is based upon sufficient facts 

or data; (c) the testimony is the product of reliable principles and 

methods; and (d) the witness has applied the principles and methods 

reliably to the facts of the case.23 

Delaware’s Rule 702 is substantially similar to Rule 702 of the Federal Rules 

of Evidence.

24 The now well-understood bounds of the latter were interpreted and 

explained in Daubert v. Merrel Dow Pharmaceaticals, Inc.,25 and Kumho Tire Co., 

Ltd. v. Carmichael.

26

 And Delaware has expressly adopted the holdings in Daubert 

and Kumho to interpret our own analog rule.

27

A trial judge must ensure that expert testimony is both relevant and reliable 

23 D.R.E. 702. 

24 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006).

25 509 U.S. 579 (1993).

26 526 U.S. 137 (1993). 

27 Bowen, 906 A.2d at 794 (citing M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 

1999)). 
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when its admission is challenged.

28

 Consistent with Daubert, Delaware requires the 

gatekeeping judge to engage in a five-step analysis to determine the admissibility of

proffered expert testimony.29 To properly determine admissibility, the judge must 

ensure that:

(1) the witness is qualified as an expert by knowledge, skill,

experience, training, or education;

(2) the evidence is relevant;

(3) the expert’s opinion is based on information reasonably relied 

upon by experts in the particular field;

(4) the expert testimony will assist the trier of fact to understand the 

evidence or to determine a fact in issue; and 

(5) the expert testimony will not create unfair prejudice or confuse or 

mislead the jury.30

The party seeking to introduce the expert testimony must shoulder the 

burden of establishing its admissibility by a preponderance of the evidence.

31 And 

28 Daubert, 509 U.S. at 597.

29 Bowen, 906 A.2d at 795.

30 Id. 

31 Id.
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“[a] strong preference exists” for admitting expert opinions “when they will assist 

the trier of fact in understanding the relevant facts or the evidence.”32 

III. DISCUSSION

Wal-Mart seeks to exclude Dr. Theodore’s expert opinion regarding causation

on two grounds: (1) Dr. Theodore’s competency to give a causation opinion about 

Mrs. Smack-Dixon’s hip injuries and (2) the reliability of his spinal and hip

causation opinions, which, according to Wal-Mart, were rendered without properly 

accounting for certain fundamental facts. Given these grounds of contention, the 

Court must focus mostly on the first and third factors mentioned above—i.e., Dr. 

Theodore’s competency to testify on the hip issues and the reliability of his opinions 

on the cause of all the injuries alleged and their relation to the Wal-Mart fall.

A. DR. THEODORE’S EXPERT OPINIONS ARE (1) RELEVANT, (2) WILL ASSIST 

THE FACT FINDER, AND (3) WILL NOT OCCASION UNFAIR PREJUDICE.

No doubt, Dr. Theodore’s expert opinions satisfy the second (relevance), 

fourth (assistance to the fact finder), and fifth (avoidance of unfair prejudice) factors

that are examined under Delaware Rule 702’s five-step admissibility analysis.

33

 

Expert testimony is relevant if it assists the fact finder in “understand[ing] the 

32 Delaware ex. Rel. French v. Card Compliant, LLC, 2018 WL 4151288, *2 (Del. Super. Ct. 

Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018)).

33 Bowen, 906 A.2d at 795.
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evidence or. . . determin[ing] a fact in issue.”34 And evidence creates unfair 

prejudice when it invites a decision on an improper basis, commonly, emotion rather 

than reason.35

Here, a key issue is whether Mrs. Smack-Dixon’s slip-and-fall at the WalMart was the proximate cause of her hip and spinal injuries. Dr. Theodore’s 

testimony is relevant to this determination because it will assist the fact finder in 

understanding her prior medical history, the operations performed, and the cause of 

her alleged ensuing pain and physical limitations. And there has been no suggestion 

by Wal-Mart that Dr. Theodore’s testimony will create any unfair prejudice of the 

sort that might offend Rule 702.36 The jury may credit Dr. Theodore’s opinions and 

medical analysis or it may not. But there is nothing in the record to suggest his 

testimony will appeal to or persuade the jury on any improper basis. Whatever 

persuasive power might lie in his opinions derives from the coherence of his 

testimony in explaining Mrs. Smack-Dixon’s alleged injuries.

34 Daubert, 509 U.S. at 591 (quoting Fed. R. Evid. 702).

35 Henlopen Hotel, Inc. v. United Nat’l Ins. Co., 2020 WL 233333, at *5 (Del. Super. Ct. Jan. 10, 

2020).

36 See, e.g., id. at *5 (observing that Rule 702 “[e]vidence appeals to an unfair prejudice when it 

tends to suggest decision on an improper basis, commonly but not necessarily emotion rather than 

reason.”)
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B. DR. THEODORE IS COMPETENT TO GIVE HIS CAUSATION OPINION ABOUT 

MRS. SMACK-DIXON’S HIP INJURIES.

Dr. Theodore is competent to give his causation opinion about Mrs. SmackDixon’s hip injuries based on his knowledge and expertise in neuro-, orthopaedic, 

and spine surgery, his extensive medical education, and his substantive review of his 

patient’s pre- and post-injury medical records. A trial judge acts as a gatekeeper in 

deciding whether an expert “has a reliable basis in the knowledge and experience of 

[the relevant] discipline.”37 Delaware recognizes that an expert may be qualified by 

credentials outside of her formal training or designated specialty, and in determining

admissibility, her qualifications must be scrutinized with “due regard” for the 

specialization of modern science.38 And certainly, where appropriate, an expert

might be rejected when her education, training, and experience doesn’t align with 

the subject matter of the anticipated testimony.39

37 Bowen, 906 A.2d at 794 (Del. 2006)(citing M.G. Bancorportation, Inc. v. Le Beau, 737 A.2d 

513, 522 (Del. 1999)).

38 Id. at 796.

39 E.g., Spencer v. Wal-Mart Stores East, LP, 930 A.2d 881, 888-89 (Del. 2007) (affirming this 

Court’s finding that a forensic architect was not qualified as an expert on ice and snow removal).
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Concerning Mrs. Smack-Dixon’s alleged hip injuries, Wal-Mart challenges 

that Dr. Theodore is not competent to give his causation opinion,

40 despite

previously diagnosing trochanteric bursitis in patients41 and being a Professor in, 

among other specialities, Orthopedic Surgery.

42

 The Court cannot agree.

Dr. Theodore holds an M.S. in Physiology and Biophysics from Georgetown 

University, as well as an M.D. from Georgetown University School of Medicine.43 

His postdoctoral work commenced thirty years ago with an internship in General 

Surgery at the National Naval Medical Center and has included, among other 

accomplishments, a Spinal Surgery Fellowship at Barrow Neurological Institute. He 

is board certified in Neurological Surgery.

44

Dr. Theodore’s professional experience spans from Lieutenant Commander 

in the Medical Corps of the United States Navy Reserve to current Chairman of the 

Head, Neck, and Spine Committee of the National Football League.45

40 Def.’s Mot. ¶ 14.

41 Pl.’s Opp’n, Ex. E at 48-49.

42 Id. ¶ 10.

43 Id. ¶ 11, Ex. F (Curriculum Vitae of Nicholas Theodore, M.D.).

44 Id.

45 Id.
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In 2016, he became affiliated with Johns Hopkins Hospital. He has an 

appointment in orthopedic surgery46 and presently serves as a Professor in 

Neurosurgery, Professor of Orthopedic Surgery, Professor of Biomedical 

Engineering, Director of the Neurological Spine Program; and Co-Chair of the

Carnegie Center of Innovation, among other roles.47 

When Dr. Theodore was questioned about his competency to testify about 

Mrs. Smack-Dixon’s hip injuries, he noted his appointment and professorship in 

orthopedic surgery, and stated that it is common, in his spinal practice, for patients 

to have both back and hip pain.

48 And he noted, from a diagnostic standpoint, that 

he identifies hip problems all the time and refers those patients out to hip surgeons 

for further care.

49 Additionally, Dr. Theodore stated he has diagnosed Mrs. SmackDixon’s specific hip issue—trochanteric bursitis—in patients before.

50 He was able 

to explain the symptoms and give a description of the procedure Dr. Hornstein 

46 Pl.’s Opp’n, Ex. E at 43 (Nicholas Theodore, M.D. Dep.).

47 Pl.’s Opp’n, Ex. F.

48 Pl.’s Opp’n, Ex. E at 43-45.

49 Id.

50 Id. at 48-49.
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performed on Mrs. Smack-Dixon.

51

 Dr. Theodore’s 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;

52 this includes Dr. Hornstein’s office and 

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

opinion.

53

Accordingly, Dr. Theodore’s education, training, and experience align with 

the subject matter of the anticipated testimony. And his professional and practical 

expertise constitute the “knowledge, skill, experience, training, or education”54

necessary to give an expert opinion on Mrs. Smack-Dixon’s hip injuries despite his

own now-specialized surgical practice concentrating on the spine.55

C. DR. THEODORE’S SPINE AND HIP CAUSATION OPINIONS ARE RELIABLE;

THEY ARE GROUNDED ON THE FUNDAMENTAL FACTS OF THIS CASE.

Dr. Theodore’s spine and hip causation opinions are reliable because he is 

aware of the relevant fundamental facts and provides a factual basis for his opinion.

51 Id.

52 Id. ¶ 9.

53 Id.

54 D.R.E. 702. 

55 Pl.’s Opp’n, Ex. E at 43.
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Reliable expert testimony is premised on scientific or specialized knowledge, 

which requires the testimony to be grounded in scientific methods and procedures 

and “supported by appropriate validation—i.e., ‘good grounds,’ based on what is 

known.”56

Many scientific, technical, or specialized fields are not subject to peer review 

and publication, which is why the test of reliability is “flexible.” Rigid application 

of the Daubert factors just cannot be engaged to determine testimonial reliability in 

every field of expertise.57 Even with all the advances of medical science, the practice 

of medicine remains an art, and a diagnosis in the practice of clinical medicine “is 

not an exact science.” 58 

56 Daubert, 509 U.S. at 590.

57 Henlopen Hotel, 2020 WL 233333, at *3.

58 State v. McMullen, 900 A.2d 105, 114 (Del. Super. Ct. 2006); see also Moore v. 

Ashland Chem., 126 F.3d 679, 688-690 (5th Cir. 1997), vacated on reh’g en banc, 151 F.3d 

269 (5th Cir. 1998) (“First, the goals of the disciplines of clinical medicine and hard 

Newtonian science are different. . . . Second, the subject matter and conditions of study are 

different. . . . Finally, clinical medicine and hard science have marked different

methodologies. . . . In sum, hard Newtonian scientific knowledge . . . is knowledge of a 

particular and limited kind. . . . Although clinical medicine utilizes parts of some hard 

sciences, clinical medicine and many of its subsidiary fields are not hard sciences. . . . 

Consequently, the Daubert factors, which are hard scientific methods selected from the 

body of hard scientific knowledge and methodology generally are not appropriate for use 

in assessing the relevance and reliability of clinical medical testimony.”). The Fifth 

Circuit’s discussion of the significant differences between disciplines in “hard science” and 

clinical medicine still holds true even though the decision in that case was ultimately 

vacated. Id.
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In clinical medicine, standard practice for diagnosing a patient and 

establishing cause is through differential diagnosis.59 Differential diagnosis refers 

to the process of determining which diseases the patient is suffering from by

comparing various competing diagnostic hypotheses with the clinical findings.60 

A physician may reach a reliable differential diagnosis without performing a 

physical examination himself, and it is acceptable for a physician to arrive at a 

diagnosis by relying on examinations and tests performed by other medical 

practitioners.61

Again, a gatekeeping judge has “broad latitude” to determine whether an 

expert’s proffered opinion is based upon the “proper factual foundation and sound 

methodology.”62 This “proper factual foundation” language has been distilled from 

Delaware Rule 702.63 To meet the criterion for a “proper factual foundation,” an 

59 McMullen, at 116; see also Bowen v. E.I. duPont de Nemours and Co., Inc., 2005 WL 1952859, 

at *10 (Del. Super. Ct. May 9, 2005) (noting differential diagnosis is a standard practice for 

establishing cause in clinical medicine).

60 McMullen, at 116.

61 Id. at 117; State v. Salasky, 2013 WL 5487363, at *26 (Del. Super. Ct. Sept. 26, 2013).

62 Russum v. IPM Development Partnership LLC, 2015 WL 2438599, at *2 (Del. Super. Ct. May 

21, 2015).

63 Russum, 2015 WL 2438599, at *2.
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expert’s opinion must be based on “facts” and not “suppositions.”64 When applied 

to a medical expert, a causation opinion is admissible when it’s “based on his 

analysis of the circumstances . . . not mere speculation over the cause.”65 And a 

proponent need only show by a preponderance of the evidence that her expert’s 

opinions are reliable, not that they are correct.66 So, this Court’s Rule 702 reliability 

examination must focus on principles and methodology and not on the resultant 

conclusions.67 

Delaware courts generally recognize that challenges to the “factual basis of 

an expert opinion go[ ] to the credibility of the testimony, not the admissibility, and 

it is for the opposing party to challenge . . . the expert opinion on crossexamination.”68

 “The different depth with which [an expert] pursued particular lines 

64 Id. at 3. 

65 Norman, 193 A.3d at 732.

66 State v. McMullen, 900 A.2d 105, 114 (Del. Super. 2006) (citing In re Paoli R.R. Yard PCB 

Litig., 35 F.3d 717, 744 (3d Cir. 1994). 

67 Henlopen Hotel, 2020 WL 233333, at *2 (“At bottom, the Court’s examination of an expert’s 

opinion must be solely focused on principles and methodology, not on the conclusions they 

generate.”) (cleaned up) (quoting Tumlinson v. Advanced Micro Devices, 81 A.3d 1264, 1269 (Del. 

2013)).

68 Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010); Hodel v. Ikeda, 2013 WL 226937, at *4 

(Del. Super. Ct. Jan. 18, 2013); see also Daubert, 509 U.S. 579, 596 (1993) (“Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof are 

the traditional and appropriate means of attacking shaky but admissible evidence.” (citation 

omitted)); Russum, 2015 WL 2438599, at *3.
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of investigation and the different assumptions they made are readily subject to crossexamination and to evaluation by the fact finder for credibility and weight.”69

 But

an expert’s testimony will only be excluded in the narrow circumstance where he is 

shown to have completely neglected the core facts of the case.70 And under 

Delaware Rule 702, a medical doctor’s opinion “based on his own knowledge” and 

informed by his review of a patient’s records may certainly be sufficient to clear the 

Daubert/Bowen reliability threshold.

71

 To be sure, the thorough review of treatment 

records Dr. Theodore engaged in is a common and generally accepted method used 

by medical experts to divine causation of a given condition. 

According to Wal-Mart, both Dr. Theodore’s hip and spinal opinions are

rendered with too little knowledge or consideration of certain fundamental facts.

Wal-Mart says that Dr. Theodore’s understanding of Mrs. Smack-Dixon’s pre-injury 

history for both her hip and spinal injuries is vague and limited to the mere fact she 

previously reported having spinal and hip pain.

72

69 Henlopen Hotel, 2020 WL 233333, at *4; Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010) 

(noting cross-examination rather than exclusion can be the proper method of exploring the bases 

of an expert’s opinion and the weight to be ascribed thereto).

70 Russum, 2015 WL 2438599, at *3.

71 E.g., Norman, 193 A.3d at 731-32.

72 Def.’s Mot. ¶ 14.
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Concerning Mrs. Smack-Dixon’s lower back pain, Dr. Theodore 

acknowledged in his deposition that, in his assessment, “episode” meant an “entire 

period of time,” and not a single incident.

73 So, Dr. Theodore did consider the 

multiple times Mrs. Smack-Dixon’s complained of lower back pain but concluded 

it was caused by a single prolonged span of muscle spasm and detected no recurring 

theme of disability.74 

Concerning Mrs. Smack-Dixon’s hip injuries, Dr. Theodore agrees with 

Wal-Mart’s experts that Mrs. Smack-Dixon’s pre-injury bilateral hip problems were 

significant and further agrees that she suffered injury to her right hip because of the 

slip-and-fall.75 As to the left hip, however, the experts disagree on whether the slipand-fall aggravated her underlying hip conditions warranting the bilateral 

bursectomies.76

73 Pl.’s Opp’n, Ex. E at 53 (Nicholas Theodore, M.D. Dep.).

74 Id. ¶ 13.

75 Id. at 17.

76 Id. at 18.
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Wal-Mart summons two decisions—Perry v. Berkley77 and Bell v. Fisher78—

where this Court found the proffered experts’ ignorance of significant pre-injury

history compelled exclusion. But the exclusion of the Perry and Bell expertsresulted 

from the rather peculiar circumstance in each where the proffered expert was wholly 

unaware of the fundamental facts of the plaintiff’s relevant prior medical history.

79

But that’s not what’s happening here. No, Wal-Mart’s quibble here is with 

Dr. Theodore’s interpretation of Mrs. Smack-Dixon’s prior medical history, not any 

ignorance of it.

Dr. Theodore bases his spine and hip causation opinions on his preoperative 

questioning, his review of over 1,900 pages of Mrs. Smack-Dixon’s prior medical 

history, and on his knowledge and expertise in the fields of orthopedic and 

77 Def.’s Mot. ¶ 12.

78 Id.

79 Perry, 996 A.2d at 1271 (plaintiff’s “prior medical history was pivotal to the issue of whether 

the car accident caused her back injuries” and given her medical expert’s “complete lack of 

knowledge of the[se] most fundamental relevant facts” his causation opinion was properly deemed 

inadmissible under Daubert and Rule 702); Bell, 2013 WL 1120867, at *2 (Del. Mar. 18, 2013) 

(expert’s conclusion that defendant surgeon’s procedure caused plaintiff’s neck and spinal injuries 

was predicated on expert’s wholly mistaken belief that plaintiff had no history of neck and spinal 

injuries before the procedure, and this “erroneous factual premise rendered” his medical opinion 

about the cause of plaintiff’s injuries “(in the language of Perry )‘completely incorrect’” and his 

testimony thereon excludable), aff’g, 2010 WL 3447694 (Del. Super. Ct. Aug. 30, 2010).
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neurosurgery.80 Dr. Theodore provided detailed analysis about why certain 

procedures were elected in his initial expert report, his addendum thereto, and in his 

deposition.81 Additionally, Dr. Theodore explains the factual bases for his

conclusions regarding Mrs. Smack-Dixon’s prior medical history and gives detailed

explanations for every disagreement he has with Wal-Mart’s expert’s opinion.

82

 

Both Dr. Theodore and Wal-Mart’s experts relied on the same methodology of 

differential diagnosis by reviewing Mrs. Smack-Dixon’s extensive medical history 

to reach their opposing opinions. At bottom, Wal-Mart flatly disagrees with the 

causation opinions Dr. Theodore derives from that same evaluative exercise. But,

again, a proffered expert’s testimony can’t be excluded just because an opponent 

quarrels with his conclusions.83

80 Pl.’s Opp’n ¶ 9.

81 Id.

82 Pl.’s Opp’n, Ex. E at 26-27, 39-40, 35-37, 32-34, 51-53, 54-57, 58-62.

83 See Daubert 509 U.S. at 595 (1993) (To pass on the “evidentiary relevance and reliability” of 

a given expert’s opinion “[t]he focus, of course, must be solely on principles and methodology, 

not on the conclusions that they generate.”); see also In re Paoli, 35 F.3d at 733 (3d Cir. 1994)

(Proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the 

assessments of their experts are correct, they only have to demonstrate by a preponderance of the 

evidence that their opinions are reliable.”) (emphasis in original).
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IV. CONCLUSION

Dr. Theodore’s testimony is admissible because it is relevant, reliable, and 

will aid the fact finder in determining whether Mrs. Smack-Dixon’s slip-and-fall was 

the proximate cause of her back and hip injuries. Dr. Theodore is competent to give 

his causation opinion about Mrs. Smack-Dixon’s hip injuries because his education, 

training, and experience constitute the “knowledge, skill, experience, training, or 

education”84 necessary to give an expert opinion in his field. Dr. Theodore’s 

testimony is reliable because he is aware of the fundamental facts of the case and

applies that understanding to his causation opinion that Mrs. Smack-Dixon’s slipand-fall caused both her spine and hip injuries. The significance Dr. Theodore 

affords to her prior medical history is an issue for cross-examination and for 

evaluation by the fact finder when judging the credibility of his expert testimony.

Accordingly, Wal-Mart’s motion in limine to preclude the proffered expert 

testimony of Dr. Nicholas Theodore is DENIED.

IT IS SO ORDERED.

Paul R. Wallace, Judge

Original to Prothonotary

cc: All Counsel via File and Serve

84 D.R.E. 702.