IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

NATIONWIDE MUTUAL INSURANCE )

COMPANY A/S/O )

THOMAS AND NADINE BRUHN

, ) ) C.A. No.: N14C

- 07

- 076 ALR Plaintiffs, ) )

v. ) ) HH GREGG, INC., and ) 3PD HOLDING, INC., ) )

Defendants. )

Date Submitted: November 30 , 2015

Date Decided: December 17 , 2015

Upon Defendants’ M otion in Limine to Preclude or Limit

The Report and Testimony of Plaintiff’s Expert,

Kenneth R. McLauchla n , P.E., CFEI

DENIED

This matter arises from damages sustained by Nationwide Mutual Insurance

Company (“Plaintiff”) from providing insurance coverage to their insured, Thomas

an d Nadine Bruhn ( “Insured”), as a result of alleged negligence by HH Gregg, Inc.

and 3PD Holding, Inc. (collectively “Defendants”). Plaintiff contends that

Defendants

– in installing a new refrigerator in the home of Insured in December

2012

– were neglige nt in their installation of water lines to the new refrigerator,

their replacement of the refrigerator, and in failing to properly train or supervise2 the installation of the water lines to the refrigerator such that it caused damage to

Insured’s water line s and residence.

Plaintiff proposes to present the testimony of an expert witness, Kenneth

McLauchlan, P.E., CFEI

, a forensic engineer who personally inspected Insured’s

residence and relevant parts of the refrigerator. Mr. McLauchla n also took

photographs. Mr. McLauchlan’s expert opinion rules out any design or

manufacturing defects with the water supply line, which is the opinion of

Defendants’ expert witness. Instead, Mr. McLauchlan’s expert opinion is that the

water supply hose w as damaged when Defendants installed the refrigerator.

Defendants have filed a motion in limine to limit or exclude the testimony of

Plaintiff’s expert

. Defendants do not contest Mr. McLauchlan’s qualifications.

Rather, Defendants argue that Mr. McLauch lan’s opinion is scientifically

unsupported.

At the trial level, it is the role of the Court to perform a gatekeeping function

with expert testimony. 1 The admissibility of such testimony is governed by

Delaware Rule of Evidence 702, which provides:

If 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, skill, experience, training or education may testify thereto in th e form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data,

1 Sturgis v. Bayside Health Ass’n , 942 A.2d 579, 583 (Del. 2007).3 (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 cas e. 2

Delaware has adopted the Daubert standard to determine whether an expert

has a reliable basis in the knowledge and experience of the relevant discipline.

Under this standard, the trial judge may consider the following factors: 1) whether

the theory o r technique has been tested; 2) whether it has been subjected to peer

review and publication; 3) whether a technique has a high known or potential rate

of error and whether there are standards controlling its operation; and 4) whether

the theory or techniq ue enjoys acceptance within a relevant scientific community. 3

In addition to the Daubert factors, Delaware requires the trial j udge to

consider an additional five

- step test to determine admissibility of expert

testimony. 4 The trial judge must determine t hat:

(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 upon information reasonably relied upon by experts in that particular field; (4) the expert testimony w ill assist the trier of fact to understand the evidence or determine a material fact in issue; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury. 5

2 D.R.E. 702

3 Sturgis , 942 A.2d at 584 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993 ) ).

4 Id.

5 Id.4 The Court is satisfied that Mr. McLauchlan’s expert opinion is based upon

information reasonably relied upon by experts in that particular field , including Mr.

McLauchlan’s personal inspection. Mr. McLauchlan’s testimony and report is

relevant and will assist the jury in understanding the evidence and determining a

fact in issue

– the cause of the damage to Insured’s water lines and residence. The

Court finds that the probative value of Mr. McLauchlan’s testimony substantially

outw eighs any prejudicial effect. Defendants’ concerns regarding Mr.

McLauchlan’s testimony go to its weight and not its admissibility and Defendants

can effectively cross

- examine Mr. McLauchlan at trial

.

NOW, THEREFORE, this 17 th day of December, 2015, Upon

Defendants ’ Motion in Limine to Preclude and/or Limit t he Report and

Testimo ny of Plaintiff’s Expert, Kenneth R. McLauchla n , P.E., CFEI, is

hereby DENIED.

IT IS SO ORDERED.



# Andrea L. Rocanelli

Hon. Andrea L. Rocanelli