IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KIMOTHY VINCENT, :

: C.A. No: K14C-05-013 RBY

Plaintiff, : In and For Kent County

:

v. :

:

HARRINGTON RACEWAY, INC., :

:

Defendant/Third-Party :

Plaintiff, :

:

v. :

:

MELISSA OLSEN, :

:

Third-Party Defendant.

Submitted: November 16, 2016

Decided: February 7, 2017

Upon Consideration of Defendant/Third-Party Plaintiff’s

Motions in Limine

GRANTED IN PART and DENIED IN PART

ORDER

Stephen A. Hampton, Esquire, Grady & Hampton, LLC, Dover, Delaware for

Plaintiff.

Daniel L. McKenty, Esquire, Heckler & Frabizzio, Wilmington, Delaware for

Defendant/Third-Party Plaintiff.

Young, J.
Vincent v. Harrington Raceway, Inc.

C.A. No. K14C-05-013 RBY

February 7, 2017

SUMMARY

Kimothy Vincent (“Plaintiff”) filed a premises liability claim against

Harrington Raceway, Inc. (“Defendant”). Defendant then filed a Third-Party

Complaint against Melissa Olsen (“Third-Party Defendant”) asserting that she was

responsible for Plaintiff’s alleged injuries. The Third-Party Defendant has since been

dismissed by the stipulation. Defendant has filed four motions in limine. Defendant’s

first motion in limine moves this Court for an Order precluding all non-expert

evidence, testimony, and argument concerning Plaintiff’s allegations of defect.

Defendant’s second and third motions in limine move to exclude the proposed expert

testimony of Joseph C. Vincent, D.C. and Michele Y. Holding, M.D. Defendant’s

fourth motion in limine moves to exclude all evidence, testimony, and argument

concerning its policy limits, duration of coverage, insurance premiums, and the

amount of insurance coverage available.

Defendant’s Motion in Limine to Exclude All Evidence of Defect to the Jury

is GRANTED because lay testimony regarding whether the barstool was a dangerous

condition is improper opinion. Defendant’s Motion in Limine to Exclude Plaintiff’s

Proposed Expert Testimony of Joseph C. Vincent, D.C. is GRANTED because Dr.

Vincent’s testimony is not based on sufficient facts or data. Defendant’s Motion in

Limine to Exclude Plaintiff’s Proposed Expert Testimony of Michele Y. Holding,

M.D. is DENIED because the expert report is based on sufficient facts, adequately

considers alternate causes of Plaintiff’s alleged injuries, and contains enough

information to place Defendant on notice as to the basis for the expert opinion.

Defendant’s Motion in Limine to Preclude Evidence of Insurance Details to the Jury

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Vincent v. Harrington Raceway, Inc.

C.A. No. K14C-05-013 RBY

February 7, 2017

is GRANTED because Delaware Rule of Evidence 411 does not permit evidence

regarding insurance coverage.

FACTS AND PROCEDURE

On May 25, 2012,

1 Plaintiff alleges that he sustained injuries in a fall at

Defendant’s first floor patio bar. This establishment, Plaintiff maintains, provides

music, sells drinks, and allows dancing. Plaintiff asserts that the previous Third-Party

Defendant leaned against his barstool while she allegedly was standing between his

legs. He further attests that the chair portion of his barstool fell off of the seat portion

of his barstool. After the chair portion allegedly failed, Plaintiff claims that he fell to

the ground, and that the previous Third-Party Defendant landed on top of him.

Plaintiff asserts that he had no reason to know of, and was unaware of, any defect in

the barstool.

Plaintiff is prepared to offer at least two purported experts in support of his

claim. First is Joseph C. Vincent, D.C. He wrote his report on July 23, 2014. In his

expert report, Dr. Vincent states “today . . . [Plaintiff] denies any recent accidents or

injuries and at this time offers nothing further.”

2 Dr. Vincent’s report also says

“[Plaintiff] denies any previous accidents, illnesses or injuries involving his left arm,

1

 Please note that while the Complaint states that this is the date on which Plaintiff

allegedly sustained injuries, the expert reports consistently state that the alleged injury occurred

on May 20, 2012.

2

 Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s Motion in Limine to

Exclude Plaintiff’s Proposed Expert Testimony ofJoseph C. Vincent, D.C. at Exhibit B, Vincent

v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Oct. 20, 2016).

3
Vincent v. Harrington Raceway, Inc.

C.A. No. K14C-05-013 RBY

February 7, 2017

cervical and thoracic spine.”

3 Dr. Vincent asserts, in his report, that he did not

maintain formal records for Plaintiff outside of Plaintiff’s initial examination. The

remainder of the report discusses Plaintiff’s alleged injuries and provides an opinion

with respect to causation of those alleged injuries.

Plaintiff’s second expert is Michele Y. Holding, M.D. Plaintiff asserts that

Michele Y. Holding, M.D. will testify “specifically that there was injury to

[Plaintiff’s] wrist and hand and that the charge for the test is a reasonable and

customary charge.”

4 Dr. Holding’s report states that Plaintiff “is a 52-year-old righthanded man without previous medical history status post slip and fall 05/20/12.”

5

Furthermore, Dr. Holding’s report indicates that Plaintiff “is status post fracture of

the left dorsal hand at 51 years old which was treated with a cast. . . .”

6 Additionally,

this report makes recommendations for future care,

7

and reaches conclusions

3

 Id.

4

 Plaintiff’s Response to Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s

Motion in Limine to Exclude Plaintiff’s Proposed Expert Testimony of Michele Y. Holding,

M.D. at 1-2, Vincent v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Nov. 8, 2016).

5

 Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s Motion in Limine to

Exclude Plaintiff’s Proposed Expert Testimony of Michele Y. Holding, M.D. at Exhibit B,

Vincent v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Oct. 20, 2016).

6

 Id.

7

 The relevant portion of the report reads “the patient will continue to follow up with Dr.

Vincent and will continue the current therapeutic regime to achieve decreased pain, independent,

safe ADL’s, ambulation up and down one flight of steps and return to his premorbid functioning

status both personally and for work.” Id.

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C.A. No. K14C-05-013 RBY

February 7, 2017

regarding Plaintiff’s alleged injuries.

8

Defendant contends that these reports contain false information. Defendant

claims that Plaintiff was treated for a broken hand on August 19, 2012, when he was

52 years old.

9 Defendant provides medical records supporting this proposition.

Moreover, Defendant asserts that Dr. Vincent testified, in his deposition, that his

expert report was based on Plaintiff’s first visit to his office on May 28, 2012.

Plaintiff filed the Complaint for this case on May 12, 2014. On June 10, 2014,

Defendant filed a third-party Complaint against Third-Party Defendant. The parties

stipulated as to the dismissal of Third-Party Defendant on October 17, 2016.

Defendant filed the four instant motions in limine on October 20, 2016.

DISCUSSION

A. Lay Testimony Regarding Whether the Stool Was a Dangerous Condition is

Not Admissible

Since whether a barstool constitutes a dangerous condition is a matter that is

outside the understanding of a layperson, a layperson may not provide testimony

relative to whether or not a given barstool constitutes a dangerous condition. Any

evidence a layperson could offer regarding the level of danger with respect to the

barstool would be irrelevant.

8

 The relevant portion of the report reads “this is a 52-year-old man status post slip and

fall 05/20/2012 with the following diagnosis: 1) Incomplete injury to the left ulnar nerve at the

level of the wrist consistent with the timing and mechanism of action of his slip and fall

05/20/12. 2) Cervical radiculopathy involving the left C5-C6 and bilateral C8-T1 nerve roots

consistent with the timing of his slip and fall 05/20/2012. 3) Moderate bilateral carpal tunnel

syndrome affecting both sensory and motor.” Id.

9

 Plaintiff was born on May 27, 1960. Id.

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C.A. No. K14C-05-013 RBY

February 7, 2017

Proof regarding the dangerous nature of it requires expert testimony, since such

proof is outside the ordinary knowledge of a layperson, even though laypeople are

familiar with the item itself. In Cruz v. G-Town Partners, L.P., a plaintiff was injured

when a sink fell from the bathroom wall in her apartment.

1 0 The Delaware Superior

Court held that an expert had to testify as to the extent of the defendant’s duty to

inspect, repair, or replace the bathroom sink mountings.

11 As stated, though laypeople

are familiar with sinks, testimony regarding the duty to inspect, repair, or replace a

sink is beyond their knowledge level.

12

Plaintiff makes two arguments counter to the above conclusion. The first is that

the instant motion is a dispositive motion disguised as a motion in limine. Since the

dispositive motion deadline in this case has passed, Plaintiff argues that this Court

should not entertain Defendant’s motion. The second is that there is a distinction

between evidence of defect, needed in products liability cases, and evidence of

whether a chair is unfit for a patron to sit on in a bar area does not require expert

testimony.

With respect to the first argument, Delaware courts have decided motions in

limine that were disguised dispositive motions and filed after the dispositive motion

deadline.

13 As to Plaintiff’s second argument, expert testimony is necessary to prove

10

 Cruz v. G-Town Partners, L.P., 2010 WL 5297161, at *3-4 (Del. Super. Dec. 3, 2010).

11

I d. at *14.

12

 Id. 

13

 Erhart v. Directv, Inc., 2012 WL 2367426, at *3 n.5 (Del. Super. June 20, 2012)

(determining motion in limine filed after dispositive motion deadline though the motion was a

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C.A. No. K14C-05-013 RBY

February 7, 2017

the defects alleged. Thus, Defendant’s motion with respect to testimony regarding

defect is GRANTED.

B. Joseph C. Vincent, D.C.’s Expert Testimony Is Inadmissible Since it Is Not

Based on Sufficient Facts or Data

Expert testimony must be based upon sufficient facts or data in order for it to

be admissible.

14

Joseph C. Vincent, D.C.’s expert report does not consider Plaintiff’s

broken hand, from August of 2012, in reaching its conclusions. Thus, his conclusions

are not based on sufficient facts or data.

When an expert does not demonstrate knowledge regarding a key component

of her opinion, her testimony is not based upon sufficient facts or data.

15

In Perry v.

Berkley, an expert concluded that the plaintiff’s lumbar injuries were a result of an

accident because, he contended, the plaintiff did not have pain prior to the accident.

16

In fact, the plaintiff was receiving treatment for lumbar issues at the time of her

accident.

17 The Delaware Supreme Court held that the trial court properly excluded

this expert’s testimony.

18

It reasoned that the expert’s opinion was based on an

disguised dispositive motion).

14

 D.R.E. 702.

15 Perry v. Berkley, 996 A.2d 1262, 1270-71 (Del. May 11, 2010).

16

Id. at 1265.

17

Id.

18

Id. at 1270-71.

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inaccurate factual predicate.

19

Similar to Perry, Dr. Vincent has not demonstrated knowledge of basic facts

regarding his opinion. Dr. Vincent offers an opinion regarding causation. However,

throughout his report, Dr. Vincent fails to acknowledge that Plaintiff broke his hand

three months after his initial alleged injury. In so doing, Dr. Vincent failed to show

basic awareness of another possible cause of Plaintiff’s alleged injuries. Such an

opinion on causation lacks the reliability that is the hallmark of admissible expert

testimony.

Plaintiff’s argument that Defendant does not have an expert is not pertinent.

Plaintiff’s expert’s deficiency stands on its own. No opposing position is necessary.

Defendant’s motion with respect to Dr. Vincent’s testimony is GRANTED.

C. Michele Y. Holding, M.D.’s Expert Testimony is Admissible

Defendant makes three arguments as to why this Court should exclude Dr.

Holding’s expert testimony. First, Defendant argues that Dr. Holding’s testimony

lacks the requisite factual basis to be admissible. Second, Defendant argues that Dr.

Holding’s testimony must eliminate other possible causes in order to be valid. Third,

Defendant contends that Plaintiff did not provide an expert report containing

information sufficient to permit Dr. Holding’s testimony. Defendant’s first argument

fails because, even though it contains an inaccurate age at which Plaintiff broke his

hand, Dr. Holding’s expert report is based on sufficient facts. Defendant’s second

argument fails because experts do not have to eliminate alternate causes in order for

19

Id.

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C.A. No. K14C-05-013 RBY

February 7, 2017

their opinions to be valid, they simply have to have the ability to do so. Defendant’s

third argument fails because Dr. Holding’s expert report adequately placed Defendant

on notice as to the basis for her opinion.

1. Dr. Holding’s Report Is Based on Sufficient Facts

As noted above, when an expert does not demonstrate knowledge regarding a

key component of her opinion, her testimony is not based upon sufficient facts or

data, and is, therefore, inadmissible.

20

In Perry, the expert reached a conclusion

completely based on his inaccurate understanding of the facts. Unlike the expert in

Perry, Dr. Holding misunderstood a fact that is not at the heart of her conclusions,

namely, Plaintiff’s age when he broke his hand. Dr. Holding’s conclusions in the

instant case are that Plaintiff has “incomplete injury to the left ulnar nerve at the level

of the wrist consistent with the timing and mechanism of action of his slip and fall

05/20/12, cervical radiculopathy involving the left C5-C6 and bilateral C8-T1 nerve

roots consistent with the timing of his slip and fall 05/20/2012, and moderate bilateral

carpal tunnel syndrome affecting both sensory and motor.” These conclusions may

still be valid even though Dr. Holding misunderstood when Plaintiff broke his hand.

That is a matter for cross-examination.

2. Experts Are Not Required to Eliminate Alternate Causes

Defendant erroneously relies on Bowen v. E.I. duPont de Nemours and

Company, Inc. to assert that Dr. Holding must eliminate alternate causes, in her expert

opinion, in order for the opinion to be admissible. In fact, Bowen stands for the

20

Id.

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proposition that experts must have the ability to eliminate alternate causes in opinions

they provide.

21

In Bowen, an expert, who was not a geneticist, wanted to give an

opinion regarding how the interaction between a certain gene and a chemical could

cause injury.

22 The Delaware Superior Court held that the expert could not give such

testimony, since he had no expertise with respect to genetics.

Dr. Holding satisfies any requirement in Bowen. While the expert in Bowen

was completely unable to eliminate alternate causes of the injury, Dr. Holding

maintains an ability to address to what extent the Plaintiff’s broken hand contributed

to his alleged injuries. The fact that Dr. Holding did not do so is not fatal.

3. Dr. Holding’s Expert Report Adequately Placed Defendant on Notice

Litigants must produce expert reports that place other litigants on notice as to

the basis of their testifying expert’s opinions.

23

In Watunya v. Siena, a litigant

produced notes of meetings with some notation of the plaintiff’s physical

complaints.

24 The Delaware Superior Court held that this production was not enough

to equate to an expert report.

25

It reasoned that this production fell far short of the

customary production, which normally included the basis for an expert opinion, a

21 Bowen v. E.I. duPont de Nemours and Co., Inc., 2005 WL 1952859, at *11 (Del. Super.

May 9, 2005).

22

Id. at *10-11.

23

 Watunya v. Siena, 2014 WL 4249677, at *2 (Del. Super. Aug. 27, 2014).

24

Id. at *1.

25

Id. at *2.

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chronology of prior treatment, and a prognosis for future care, if any.

26

Dr. Holding’s report differs greatly from that in Watunya. While the report in

Watunya included only the plaintiff’s physical complaints and some notes of

meetings, Dr. Holding’s report provides recommendations for future care, an opinion,

and detailed descriptions of the tests used to reach her conclusions. Because of the

information included in Dr. Holding’s report, the report satisfies the requirements of

Watunya.

Defendant’s motion with respect to Dr. Holding’s report is DENIED.

D. Delaware Rule of Evidence 411 Excludes Evidence of Insurance

Delaware Rule of Evidence 411 states “evidence that a person was or was not

insured against liability is not admissible upon the issue of whether he acted

negligently or otherwise wrongfully.”

27 As Plaintiff concedes, this rule mandates that

evidence, testimony, and argument concerning policy limits, duration of coverage,

insurance premiums, and the amount of insurance coverage available are

inadmissible. Under this rule, Plaintiff may not use this evidence, unless he uses it for

a purpose other than showing that Defendant acted negligently or otherwise

wrongfully. Defendant’s motion is GRANTED.

CONCLUSION

For the foregoing reasons this Court:

1) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude All

26

Id. at *1.

27

 D.R.E. 411.

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February 7, 2017

Evidence of Defect to the Jury;

2) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude

Plaintiff’s Proposed Expert Testimony of Joseph C. Vincent, D.C.;

3) DENIES Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude Plaintiff’s

Proposed Expert Testimony of Michele Y. Holding, M.D.; and

4) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Preclude

Evidence of Insurance Details to the Jury.

IT IS SO ORDERED.

/s/ Robert B. Young

J.

RBY/lmc

Via File & ServeXpress

cc: Counsel

Opinion Distribution

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