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Paikin v. Vigilant Insurance Co.

Superior Court of Delaware

October 1, 2013

Alan H. Paikin and Susan F. Paikin, Individually and as the Personal Representatives of the Estate of Danielle R. Paikin
v.
Vigilant Insurance Company

Submitted: September 6, 2013

Richard A. Zappa, Esquire Young Conaway Stargatt & Taylor, LLP Attorney for Plaintiffs

R. Stokes Nolte, Esquire Reilly Janiczek & McDevitt, P.C. Attorney for Defendant

Dear Counsel:

I. INTRODUCTION

In this wrongful death and survival action stemming from a motor vehicle accident, Plaintiffs seek by a motion in limine to limit the testimony of Defendant's expert witness and forensic toxicologist Nicholas T. Lappas, Ph.D. ("Dr. Lappas") regarding decedent Danielle Paikin's ("Danielle") potential alcohol related impairment during and immediately after the crash that led to her death. This is an underinsured motorist claim brought by Danielle's parents, Alan and Susan Paikin ("Plaintiffs"), against Vigilant Insurance Company ("Vigilant"). Plaintiffs, conceding that this evidence has some relevance, nevertheless argue that under D.R.E. 403 any probative value such evidence might have is substantially outweighed by the potential prejudice that would result if heard by the jury.

Defendant contends that Dr. Lappas' testimony is relevant and probative to establish whether or not Danielle experienced conscious pain and suffering in the moments before her death, in that, Defendant argues, this evidence is highly relevant as to an important element of Plaintiffs' survival claim and a factor to be considered when assessing damages.

The Court concludes that this aspect of Dr. Lappas' testimony is relevant and highly probative, and is not substantially outweighed by the danger of unfair prejudice or confusion of the issues. Therefore, Plaintiffs' motion to limit the testimony of Dr. Lappas regarding Danielle is DENIED.

II. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs' motion arises from a motor vehicle collision that occurred in Maryland on May 6, 2010 which resulted in the injury and subsequent death of their 21 year old daughter, Danielle. The vehicle in which Danielle was a front seat passenger was hit first by a vehicle driven by William Turner ("Turner"). A second collision quickly followed when Cory Kuczynski ("Kuczynski") crashed into the disabled vehicle with Danielle still inside. There was roughly one minute between the first and the second impact.[1] One of Plaintiffs' experts has opined that Danielle died as a result of the second impact.[2] Danielle's post-mortem blood ethanol concentration was 0.24% and, in the opinion of Dr. Lappas, "consistent with significant ethanol induced adverse effects including … drowsiness or unconsciousness."[3]

Plaintiffs' underinsured motorist claim against Vigilant seeks to recover underinsured motorist benefits relating to the accident for survival and wrongful death. Plaintiffs' other uninsured motorist insurer, The Travelers Home and Marine Insurance Company ("Travelers"), has been dismissed from the case.[4] A first wrongful death and survival action filed in Maryland including Turner and Kuczynski as parties was resolved out of court.

Other unrelated aspects of Plaintiffs' motion were granted during oral argument on all motions in limine that resulted in the preclusion of the Defendant calling three of Plaintiffs' retained consulting, non-testifying experts at trial.[5] As to the instant issue, during oral argument, both parties agreed that the intoxication levels in Dr. Lappas' report of other parties to the accident were irrelevant and immaterial, [6] but the Court deferred ruling on the only remaining issue from all motions in limine, namely, whether Defendant should be precluded from introducing evidence of 1) Danielle's consumption of alcohol on the day of the collision or 2) any impairment relating to her consumption of alcohol at the time of the collision.

III. THE PARTIES' ...


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