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McLeod v. McLeod

Superior Court of Delaware, New Castle

January 28, 2014


Submitted: October 29, 2013

Steven A. McLeod, pro se,

Cynthia H. Pruitt, Esq., Doroshow, Pasquale Krawitz & Bhaya, Attorney for Defendant.


M. Jane Brady, Superior Court Judge

I. Introduction

This is a personal injury action based upon Plaintiff Steven A. McLeod's ("Plaintiff") allegations that the named defendant, Hughey McLeod ("Defendant"), sexually abused Plaintiff as a child.[1] Plaintiff has filed three motions, currently before the Court, including (1) a Motion for Reargument, [2] filed on October 4, 2013, that contends this Court abused its discretion in a previous ruling, which denied Plaintiff's request to have the State pay costs associated with retaining Plaintiff's expert witness; (2) a Motion In Limine seeking to preclude Defendant from offering expert testimony into evidence, which was filed on October 4, 2013; and (3) a "Motion for Order for a Physical Examination, " which Plaintiff filed on October 1, 2013. Defendant filed a response in opposition to Plaintiff's Motion for Order for a Physical Examination on October 29, 2013. Defendant did not file any opposition with regard to Plaintiff's Motion for Reargument or Motion In Limine. For the reasons discussed below, Plaintiff's Motion for Reargument is DENIED; Plaintiff's Motion In Limine is DENIED; and Plaintiff's Motion for Order for a Physical Examination is DENIED.

II. Facts

On April 29, 2011, Plaintiff, who is incarcerated at the Jefferson Correctional Institutional in Monticello, Florida, filed suit in this Court under 10 Del. C. § 8145.[3]Plaintiff's Section 8145 lawsuit alleges that Defendant, his biological father, sexually abused him from approximately December 1967 through January 1972, while Plaintiff was a child. Relevant to the pending motions, Plaintiff's allegations of sexual abuse include, inter alia, that Defendant repeatedly penetrated Plaintiff's anus with Defendant's fingers and penis. Plaintiff contends that research he has conducted evidences "that when a small child is anally penetrated by a full grown adult male, there is specific tearing and scar tissue generated that can be technologically dated by the use of a videoscope inserted into the victim's rectum and recorded, even decades after the abuse occurred."

On August 26, 2013, Plaintiff moved the Court to enter an Order appointing an expert witness for Plaintiff with court-approved hourly rates.[4] The Court denied Plaintiff's motion on September 18, 2013, explaining that it is well-settled in Delaware that the Court does not "appoint experts to testify for either party in civil actions, and no funds are available for such appointments."[5] The Court also engaged in an Eldridge analysis, which balances four factors, to ascertain whether appointment of an expert witness was appropriately within the Court's discretion.[6]

III. Motions Before the Court

A. Plaintiff's Motion for Reargument

Plaintiff filed a Motion for Reargument on October 4, 2013, seeking to reargue the Court's decision that denied his motion requesting the appointment of a government-funded expert witness with court-approved hourly rates. A motion for reargument is the proper device for seeking reconsideration by this Court of its findings of fact and conclusions of law.[7] "The manifest purpose of all Rule 59 motions is to afford the . . . Court an opportunity to correct errors prior to an appeal."[8] A motion for reargument will be granted only in the event that "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision."[9]

In moving for reargument, Plaintiff cites, and relies on, Sheehan v. Oblates of St. Franscis de Sales, [10] wherein the Delaware Supreme Court concluded that "[t]he trial judge erred by failing to properly balance, on the record, the probative value of admitting [an expert's] testimony against the unfair prejudice to [the plaintiff] of excluding the testimony."[11] The decision in Sheehan is of no moment to Plaintiff's Motion for Reargument, because, unlike the case sub judice, that case did not involve the appointment of a government-funded expert witness. This Court's September 18 decision made clear that Plaintiff was not precluded from retaining an expert witness, stating: "Should Plaintiff retain an expert witness, this Court will then consider Plaintiff's application for an Order for Telephonic Conference."

Plaintiff's Motion for Reargument also asserts that this Court improperly balanced the four-part test promulgated by the United States Supreme Court in Mathews v. Eldridge.[12] The four-part test balances the following considerations: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used; (3) the probable value of additional or substitute procedural requirements; and (4) the government's interest including the fiscal and administrative burdens of additional procedures.[13] Plaintiff asserts ...

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