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McLeod v. McLeod

Superior Court of Delaware, New Castle

February 26, 2015

STEVEN MCLEOD Plaintiff,
v.
HUGHEY F. MCLEOD Defendant.

Submitted: November 26, 2014

Upon Defendant's Motion to Exclude Expert Testimony of Dr. Michael Gillum, DECISION DEFERRED.

Upon Defendant's Motion to Exclude Expert Testimony of Dr. Marianne Barnes, DECISION DEFERRED.

Steven A. McLeod, pro se, 1050 Big Joe Road, Monticello, Florida 32344.

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

OPINION

M. JANE BRADY SUPERIOR COURT JUDGE

I. Introduction

This is a personal injury case. Plaintiff Steven A. McLeod ("Plaintiff) alleges that he was sexually abused as a child by his father, Defendant Hughey F. McLeod ("Defendant"), from approximately December 1967 through January 1972. Both parties were domiciled in Delaware at the time of the alleged abuse, but both parties now reside in Florida. Plaintiff is currently incarcerated in Florida. On April 29, 2011, Plaintiff filed the instant action under 10 Del. C. § 8145.

On May 5, 2014, Plaintiff filed his Rule 26 expert report.[1] In the report, Plaintiff identifies Dr. Michael Gillum ("Dr. Gillum") and Dr. Marianne Barnes ("Dr. Barnes") as Plaintiffs expert witnesses at trial and provides his own summary of the experts' expected testimony.[2] The experts themselves have not provided reports or affidavits. Defendant has now moved to exclude the testimony of both Dr. Gillum and Dr. Barnes on the grounds that neither expert's testimony meets the admissibility requirements of D.R.E. 702. For the reasons outlined below, the Court DEFERS DECISION on both Motions until after receipt and review of supplemental material from Plaintiff or the passage of 90 days without further submission from Plaintiff.

II. Admissibility of Expert Testimony

The admissibility of expert testimony is governed by D.R.E. 702, which the Delaware Supreme Court has interpreted in keeping with the U.S. Supreme Court's decision in Daubert.[3] D.R.E. 702 provides:

[i]f 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 the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (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 case.[4]

The trial judge acts as "gatekeeper" and must assess proffered expert testimony in order to determine whether the testimony should reach the finder of fact.[5] In order for expert testimony to be admissible, it must be both relevant and reliable.[6] Relevance requires that the opinion "relate to an issue in the case and assist the trier of fact to understand the evidence or to determine a fact at issue."[7] Reliable evidence is "based on the methods and procedures of science, rather than subjective belief or speculation."[8] Specifically, reliability is determined by the court's examination of the non-exhaustive Daubert-factors, which include the opinion's testability, whether the opinion has been peer-reviewed, whether the opinion was formed independent of litigation, and ...


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