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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GIUSEPPE D’ARRO and MARIA 

D’ARRO, husband and wife,

Plaintiffs,

v.

CHRISTOPHER L. MORKIDES,

Defendant.

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) C.A. No. N21C-01-142 CLS

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Date Submitted: January 14, 2022

Date Decided: March 9, 2022

Upon Defendant’s Motion in Limine to Exclude Opinions of Plaintiff’s Expert.

GRANTED.

ORDER

Michael I. Silverman, Esquire, Silverman, McDonald & Friedman, Wilmington, 

Delaware, 19805, Attorney for Plaintiffs, Giuseppe and Maria D’Arro. 

Paul D. Sunshine, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, 

19803, Attorney for Defendant, Christopher L. Morkides.

SCOTT, J.
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INTRODUCTION

Before the Court is Defendant Christopher L. Morkides’s (“Mr. Morkides”) 

Motion in Limine to Exclude the Neurological Opinions of Plaintiffs Giuseppe and 

Maria D’Arro’s (“Mr. and Mrs. D’Arro”) Medical Expert. The Court reviewed the 

parties’ submissions. For the reasons that follow, the Defendant’s Motion in Limine

is GRANTED.

FACTS

This suit stems from head-on car accident from February 1, 2019, where Mr. 

Morkides allegedly struck Mr. and Mrs. D’Arro. Mr. D’Arro suffered injury causing 

him to seek medical care.

Mr. and Mrs. D’Arro identified Dr. Mark Eskander (“Dr. Eskander”) as their 

expert witness for Mr. D’Arro’s injuries. Dr. Eskander has been licensed to practice 

medicine since 2012 and is a Board-Certified orthopedic surgeon. He is currently 

and has actively practiced medicine specializing in spinal care, and regularly treats 

patients.

Mr. Morkides seeks to exclude Dr. Eskander’s opinions relating to the 

concussion because Dr. Eskander fails to provide a factual basis, as required by 

Daubert, for his opinions regarding the traumatic brain injury suffered. Additionally, 

Mr. Morkides argues Dr. Eskander acts as a “conduit to hearsay” when relying on 

the opinions of Dr. Bley and Dr. Voltz in diagnosing the brain injury. Mr. Morkides 
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also makes the argument the expert report should be excluded in its entirety because 

the report was not received until six weeks after the deadline for providing expert 

reports. 

Mr. Morkides takes issue with Dr. Eskander’s findings related to Mr. D’Arro 

neurological findings. According to Dr. Eskander’s report, “Mr. D’Arro underwent 

treatment with Dr. Bradley Bley and Dr. Matthew Voltz for concussion and postconcussion syndrome. Records indicate that the patient continues to experience 

symptoms of headaches, nausea, fatigue, difficulties with his memory and balance, 

dizziness and confusion. MRI imagining of the brain was completed and was 

negative for acute intracranial abnormality.” Additionally, “In relation to the 

patient’s concussion and postconcussive syndrome, physical therapy has been 

recommended with an emphasis on vestibular training secondary to numerous falls. 

It is my opinion that all treatment related to the head injury is reasonable, necessary,

and causally related to the motor vehicle collision. It is likely that the patient’s 

ongoing deficits related to his postconcussive syndrome have contributed to his 

likely need for assisted living.” 

Mr. and Mrs. D’Arro argue Dr. Eskander’s neurological testimony is 

admissible because he treats patients who suffer from a variety of injuries, including 

closed head trauma. They further present Dr. Eskander regularly works with head 
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and brain trauma specialists at his office, and he responsibly relied on the medical 

records of Dr. Bley and Dr. Voltz to form his opinions. 

STANDARD OF REVIEW

The admissibility of expert testimony is governed by Delaware Rule of 

Evidence 702 which provides:

[i]f scientific, technical or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skills, experience, training or education 

may testify thereto in the form of an opinion or otherwise, if (1) the testimony 

is based upon sufficient facts or data, (2) the testimony is the product of 

reliable principles and methods, and (3) the witness has applied the principles 

and methods reliably to the facts of the case.1

The federal standard is identical to the Delaware standard which was interpreted by 

the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2

and Kumho Tire Co., Ltd. v. Carmichael.3In Kumho Tire, the Supreme Court 

extended the holdings in Daubert to encompass all expert testimony including, 

“scientific, technical or other specialized” knowledge.4

The holdings in Daubert and Kumho have been adopted by the Delaware 

Supreme Court as “correct interpretations” of D.R.E. 702.5“The inquiry envisioned 

1 D.R.E. 702.

2 509 U.S. 579 (1993).

3 526 U.S. 137 (1999).

4 526 U.S. at 141.

5 M.G. Bankcorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del.1999).
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by Rule 702 is, we emphasize, a flexible one ... [t]he focus, of course, must be solely 

on principles and methodology, not on the conclusions that they generate.”6

Daubert held that the trial judge must act as a “gatekeeper” and determine 

whether the proffered expert testimony is both relevant and reliable.7 Several factors 

are considered in this determination, but they are not viewed as a “definitive 

checklist or test.”8 Those factors are:

(1) whether a theory of technique has been tested;

(2) whether it has been subjected to peer review and publication;

(3) whether a technique had a high known or potential rate of error and 

whether there are standards controlling its operation; and

(4) whether the theory or technique enjoys general acceptance within a 

relevant scientific community.9

In addition to the Daubert factors, the trial court must determine the admissibility of 

an expert witness using a “five-step test:”

1. The witness is qualified (D.R.E.702);

2. The evidence is otherwise admissible, relevant, and reliable (D.R.E. 401 

and 402);

3. The bases for the opinion are those reasonably relied upon by experts in the 

field (D.R.E.703);

4. The specialized knowledge being offered will assist the trier of fact to 

understand the evidence or determine a fact in issue (D.R .E.702); and

6 Daubert, 509 U.S. at 594.

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Id.

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

9 Daubert, 509 U.S. at 592–93.
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5. The evidence does not create unfair prejudice, confuse the issues, or 

mislead the jury (D.R.E.403).10

The focus of the Daubert analysis concerns the principles and methodology used to 

form the expert's opinion and not on the resulting conclusions.11 The party seeking 

to introduce the expert testimony bears the burden of establishing its admissibility 

by a preponderance of the evidence.12

DISCUSSION

In applying the “five-step test” to Dr. Eskander’s testimony, the Court finds 

the Mr. and Mrs. D’Arro did not established the admissibility of his testimony by a 

preponderance of the evidence. 

First, an expert witness is qualified to testify through any of the following: 

knowledge, skill, experience, training or education.13 Mr. Morkides does raise an 

argument regarding Dr. Eskander’s qualifications to give neurological diagnoses in 

his motion. Thus, the Court must analyze whether Dr. Eskander is qualified to render 

such neurological opinions. Dr. Eskander has nine years of experiencing practicing 

medicine and is an orthopedic surgeon whose expertise is the spine. Mr. Morkides 

contends neurological conclusions are outside of Dr. Eskander’s field of expertise. 

10 Nelson v. State, 628 A.2d 69, 74 (Del.1993).

11 Daubert, 509 U.S. at 594.

12 Bowen, 906 A.2d at 794–95.

13 D.R.E. 702.
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While the Court understands Dr. Eskander’s specialty is orthopedics, this Court 

cannot conclude his specialty makes him qualified to give neurological opinions, 

even with his affidavit he received training and has experience treating patients who 

suffered from head and brain injuries, including closed head injuries. 

The Court also takes issue with Dr. Eskander’s opinions being admissible, 

relevant, and reliable due to his lack of methodology. Even if Dr. Eskander was

qualified to testify to neurological opinions, his statements alone, without providing 

methodology, will not be sufficient to admit the opinion.14 Here, in Dr. Eskander’s 

report, he concludes Mr. D’Arro suffers from concussion and post-concussive 

syndrome without explaining nor conducting any neurological testing, which would 

be necessary to make any conclusions about the lasting effect of such injuries to a 

reasonable degree of medical probability.

Mr. Morkidies contends Dr. Eskander’s findings related to Mr. D’Arro’s 

concussion and post-concussion syndrome act as a conduit to hearsay. This Court 

agrees. Delaware case law provides that experts may rely on hearsay while forming 

their opinions, as long as that hearsay evidence is reasonably relied upon by experts 

in the field.15 But, experts are not to serve as a “conduit” for otherwise inadmissible 

14 Jones v. Astrazeneca, LP, 2010 WL 1267114, at *9 (Del. Super. Ct. Mar. 31, 

2010).

15 See Brandt v. Rokeby Realty Co., 2005 WL 16543621, at *4 (Del. Super. Ct. 

May 9, 2005) (finding expert's reliance on inadmissible hearsay evidence is limited 
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hearsay statements. “An expert may not, however, rely on hearsay evidence alone to 

substantively prove the truth of his statement or opinion. If the expert is merely 

acting as a mouthpiece or conduit for another's opinions or statements, he cannot be 

said to be acting in his capacity as an expert in the matter and the hearsay evidence 

is inadmissible.” The opinions Dr. Eskander presents are opinions of his colleagues, 

Dr. Bley and Dr. Voltz, who presumable performed neurological testing on Dr. 

D’Arro to come to the conclusions Dr. Eskander presents. While reliance on the 

opinions of professional in forming Dr. Eskander’s opinion falls withing Delaware 

Rule of Evidence 703’s parameters.16 Mr. and Mrs. D’Arro fail to show Dr. 

Eskander’s reliance on such communication renders Dr. Eskander little more than a 

mouthpiece for the conclusions of his colleagues. 

Additionally, the Court recognizes allowance of Dr. Eskander’s expert 

testimony related to Mr. D’Arro’s neurological condition would prejudice Mr. 

Morkides as he would be unable to effectively cross-examine Dr. Eskander on his 

opinions as they are the opinions of his colleagues. 

by Rule 703's requirement that it also be reasonably relied upon by others in the 

field).

16 D.R.E. 703 (“An expert may base an opinion on facts or data in the case that the 

expert has been made aware of or personally observed. If experts in the particular 

field would reasonably rely on those kinds of facts or data in forming an opinion 

on the subject, they need not be admissible for the opinion to be admitted.”).
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Because the Court finds Dr. Eskander, with regard to Mr. D’Arro’s 

neurological condition, is not qualified as an expert, his opinions and conclusions 

lack methodology making them unreliable, his testimony acts as a conduit to hearsay 

and Mr. Morkides would be significantly prejudiced by the testimony, Dr. Eskander 

may not testify to Mr. D’Arro’s neurological condition. 

CONCLUSION

Based on the forgoing reasons, Defendants’ Motion in Limine to exclude 

opinions of Plaintiff’s expert is GRANTED.

IT IS SO ORDERED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.