Robert Scott McKINLEY and Deborah McKinley, h/w, Plaintiffs Below, Appellants,
Michele CASSON, Defendant Below, Appellee.
Submitted: Aug. 28, 2013.
[Copyrighted Material Omitted]
Court Below: Superior Court of the State of Delaware, in and for New Castle County, C.A. No. N10C-09-192.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Matthew M. Bartkowski, Esquire (argued), Kimmel, Carter, Roman & Peltz, P.A., Newark, Delaware for Appellants.
Beth H. Christman, Esquire (argued), Rachel D. Allen, Esquire and Deborah L. Cuoco, Esquire, Casarino Christman Shalk Ransom and Doss, P.A., Wilmington, Delaware for Appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
In this appeal we consider several evidentiary rulings in a personal injury action arising from a motor vehicle accident. Among other things, appellant  complains that the trial court erred in denying him access to appellee's medical records, and that the jury should not have been allowed to learn that he was not wearing a helmet at the time of the accident. We agree, and reverse and remand for a new trial.
Factual and Procedural Background
On the evening of October 3, 2009, Robert McKinley and Michele Casson were involved in a motor vehicle accident near the base of the Summit Bridge in northern Delaware. Casson had been driving her SUV north on Route 896 and was preparing to cross the Summit Bridge when she
became anxious due to her fear of bridges and confined spaces. Construction work was being done on the bridge, and reflective orange barrels had been placed on the road to merge traffic from two northbound lanes into one. Casson slowed down and attempted to pull between the construction barrels to stop on the right-hand shoulder. Casson claims to have slowed down gradually, whereas McKinley testified that she came to a sudden stop. In either event, McKinley's motorcycle collided with the back of Casson's SUV. McKinley, who was not wearing a motorcycle helmet, sustained serious injuries.
At the scene of the accident, Delaware State Police Corporal Robert Downer, Jr. interviewed Casson. He asked her, among other questions, whether she was taking any medication at the time of the accident. She told him that she is afraid of bridges and takes medication for anxiety. Casson also said that she had an anxiety attack and abruptly stopped at the foot of the bridge.  Downer issued Casson a citation for careless driving.
In September 2010, McKinley filed this negligence suit against Casson, seeking damages for the injuries he sustained in the collision. Based on Casson's statements about her anxiety attack and medication, McKinley subpoenaed Casson's medical records from Dr. William Sommers, a physician who had prescribed Casson anti-anxiety medication. Casson moved for a protective order to compel the return of the records and to exclude evidence of Casson's medical history. The Superior Court granted her motion, finding that the records were protected by the physician-patient privilege. Casson then moved for summary judgment, which the court denied.
In anticipation of trial, both parties filed motions in limine. McKinley moved to exclude references to his non-use of a helmet at the time of the accident. The court denied that motion, finding that evidence of non-use of a helmet was relevant to secondary assumption of the risk and mitigation of damages. Casson then moved to exclude all references to her prescriptions for, and use of, medication, arguing that McKinley had improperly obtained Casson's medical records, and that the evidence of Casson's medication lacked probative value. The court granted the motion. In addition, Casson moved to allow Brandon Thomas, an EMT who had arrived at the accident scene shortly after the collision, to testify about the statements he had gathered from bystanders at the scene. The court granted that motion, finding that the bystanders' statements are admissible under the present sense impression exception to the rule against hearsay.
At trial, McKinley called Downer to testify about his investigation of the accident. On cross-examination, Casson's counsel asked Downer for his opinion as to the point of impact based on the damage to McKinley's motorcycle. McKinley objected to the question, arguing that it called for speculation and that Downer was not qualified as an accident reconstruction expert. The court overruled the objection.
At the end of trial, the Superior Court issued a jury instruction on secondary assumption of the risk and riding a motorcycle without a helmet. The instruction stated:
Michele Casson has alleged that Robert McKinley voluntarily assumed a known risk when he drove a motorcycle without a helmet. Michele Casson must prove by a preponderance of the evidence that Robert Scott McKinley voluntarily assumed a known risk when he drove a motorcycle without a helmet.
If you find that Robert Scott McKinley chose to take a risk and understood or should understand the danger associated with that risk, then you may take that into account when considering what damages were proximately caused by the accident.
The jury found that Casson had not engaged in negligent conduct that proximately caused the accident. McKinley appealed various evidentiary rulings. Casson cross-appealed the trial ...