SUPERIOR COURT

of the 

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

Judge 38 The Green

 Dover, DE 19901

Telephone (302)735-2111

November 21, 2016

Edward C. Gill, Esq. David C. Malatesta, Jr., Esq.

Law Office of Edward C. Gill, & Associates Kent & McBride, P.C.

16 North Bedford Street 824 North Market Street

Georgetown, DE 19947 Suite 805

Wilmington, DE 19801

Monica E. O’Neill, Esq.

Four Penn Center

1600 JFK Blvd., Suite 620

Philadelphia, PA 19103

RE: Robert Bangs v. Diana & Dawn Follin

K15C-05-008 JJC

Dear Counsel:

Before the Court are three motions in limine filed by Defendants Diana Follin

and Dawn Follin (hereinafter “Defendants”). This is a personal injury claim wherein

Plaintiff Robert Bangs (hereinafter “Plaintiff”) alleges injuries suffered after he fell

through the floor in a property rented to the Plaintiff by the Defendants.

Medical Bills

Defendants first move to preclude evidence and argument regarding any

evidence of medical bills in excess of the amounts paid by Medicaid. Defendants cite

Stayton v. Delaware Health Corp. for the premise that the collateral source rule does
not apply to write-offs of amounts in excess of the amounts paid by Medicaid.1

Defendants argue that although Stayton applies to Medicare related write-offs,

Medicaid write-offs are similarly excepted fromthe collateralsource rule. In response,

Plaintiff does not oppose the motion and stipulatesto the inadmissibility of any amounts

written-off from the actual billed amounts after payment of those bills by Medicaid.

Namely, Plaintiff stipulates that only the amounts actually paid by Medicaid are

admissible in evidence in support of claims for past medical expenses. Accordingly,

pursuant to stipulation, Defendants’ motion is granted. Plaintiffshall be precluded from

offering evidence of the full value of medical bills paid by Medicaid, and shall be

limited to boarding only those amounts paid by Medicaid.

Evidence of Mold

Second, Defendants move to exclude evidence that mold was found within the

unit. Plaintiff indicates he will seek to offer evidence regarding mold near the area of

injury, and perhaps elsewhere. Plaintiff’s offer of proof includes that the existence of

mold circumstantially provides evidence of moisture, which in turn provides

circumstantial evidence that the floor was weakened because of moisture. Defendant

argues that the correlation between mold and an allegedly unreasonably unsafe floor

should be barred from admission absent an expert opinion linking the mold to the

allegedly unsafe defect in the floor. 

Plaintiff counters that common knowledge, without the need for expert

testimony, recognizes that mold accompanies moisture, and moisture degrades wood.

Accordingly, Plaintiff argues that no expert testimony is necessary to make evidence

of mold relevant. After discussion at the pretrial conference, the parties agreed that the

1

117 A.3d 521, 534 (Del. 2015).

2
Court should reserve decision on the admissibility of this evidence pending the

evidentiary context that unfolds at trial. Accordingly, the Court will reserve decision

regarding the admissibility of evidence of mold in the home at issue until trial.

Mental Anguish and Emotional Harm

Lastly, Defendants move to exclude evidence regarding metal anguish and

emotional harm. Defendants argue that absent expert psychological or psychiatric

testimony, Defendants are unable to recover for mental anguish. Plaintiff proffers that

he suffered physical injury, and that under Delaware law, mental anguish and pain and

suffering are compensable elements of damagesthat automatically flow from physical

injury without the need for expert testimony.

In support of this argument, Defendants cite the Delaware Supreme Court

decision in Money v. Manville Corp. Asbestos Disease Comp. Trust Fund.2 Money,

however, is inapposite. Namely, it addressesthe need for expert testimony to establish

proximate cause of injury related to asbestos related exposure.3 There, the Court held

that a plaintiff must introduce expert medical testimony with respect to causation of

asbestos-related diseases because such a linkage is not a matter of common

knowledge.4 Defendants cite no other authority for the proposition that expert

testimony is a prerequisite for recovery for emotional harm and mental anguish when

tortious conduct causes physical injury.

In Delaware, as provided elsewhere in black letter tort law, whenever a party’s

negligence is directly responsible for physical injury to another, the injured party may

2

596 A.2d 1372 (Del. 1991).

3

Id. at 1376-1377.

4

Id.

3
recover for actual physical injury and for concomitant mental and emotional pain and

suffering that flows as a natural consequence of the wrongful act.5 Both mental and

physical pain and suffering may be recovered in a personal injury action where there

is physical injury related to the tort, without the need for further expert testimony

regarding mental anguish.

6 Accordingly, Defendants motion to preclude evidence and

argument regarding mental pain and suffering is DENIED.

IT IS SO ORDERED

/s/Jeffrey J Clark

Judge

5

See Roberts v. Delmarva Power &Light, 2 A.3d 131, 142 (Del. 2009) (where the Delaware

Supreme Court recognized the general common law rule providing that an element of damages based

upon physical injury includes mental anguish and emotional distress); see also Collins v. African

Methodist Episcopal Zion Church, 2006 WL 1579718, at *4 (Del Super. Mar. 31, 2006) (where the

Court recognized that in cases involving alleged physical injury, expert testimony for emotional

distress is only necessary if there is no expert testimony as to causation of the physical injury).

6

See Restatement(Second) of Torts § 912 cmt.b. (1979) (where the Restatement discusses

the need for certainty in establishing general damages for tortious conduct. Namely,

[f]or harm to body, feelings, or reputation, compensatory damages reasonably

proportioned to the intensity and duration of the harm can be awarded without proof

of amount other than evidence of the nature of the harm. There is no direct

correspondence between money and harm to the body, feelings or reputation. There

is no market price for a scar or for loss of hearing since the damages are not measured

by the amount for which one would be willing to suffer the harm. The discretion of

the . . . jury determines the amount of recovery, the only standard being such an

amount as a reasonable person would estimate as fair compensation. In these cases,

the trier of fact can properly award . . . damages as compensation for harms that

normally flow from the tortious injury even without specific proof of their existence,

such as pain from a blow or humiliation from a scars.).

4