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Vincent v. Harrington Raceway, Inc.

Superior Court of Delaware, Kent

February 7, 2017

KIMOTHY VINCENT, Plaintiff,
v.
HARRINGTON RACEWAY, INC., Defendant/Third-Party Plaintiff,
v.
MELISSA OLSEN, Third-Party Defendant.

         Upon Consideration of Defendant/Third-Party Plaintiff 's Motions in Limine GRANTED IN PART and DENIED IN PART

          Stephen A. Hampton, Esquire, Grady & Hampton, LLC, Dover, Delaware for Plaintiff.

          Daniel L. McKenty, Esquire, Heckler & Frabizzio, Wilmington, Delaware for Defendant/Third-Party Plaintiff.

          ORDER

          Robert B. Young, J.

          SUMMARY

         Kimothy Vincent ("Plaintiff") filed a premises liability claim against Harrington Raceway, Inc. ("Defendant"). Defendant then filed a Third-Party Complaint against Melissa Olsen ("Third-Party Defendant") asserting that she was responsible for Plaintiff's alleged injuries. The Third-Party Defendant has since been dismissed by the stipulation. Defendant has filed four motions in limine. Defendant's first motion in limine moves this Court for an Order precluding all non-expert evidence, testimony, and argument concerning Plaintiff's allegations of defect. Defendant's second and third motions in limine move to exclude the proposed expert testimony of Joseph C. Vincent, D.C. and Michele Y. Holding, M.D. Defendant's fourth motion in limine moves to exclude all evidence, testimony, and argument concerning its policy limits, duration of coverage, insurance premiums, and the amount of insurance coverage available.

         Defendant's Motion in Limine to Exclude All Evidence of Defect to the Jury is GRANTED because lay testimony regarding whether the barstool was a dangerous condition is improper opinion. Defendant's Motion in Limine to Exclude Plaintiff's Proposed Expert Testimony of Joseph C. Vincent, D.C. is GRANTED because Dr. Vincent's testimony is not based on sufficient facts or data. Defendant's Motion in Limine to Exclude Plaintiff's Proposed Expert Testimony of Michele Y. Holding, M.D. is DENIED because the expert report is based on sufficient facts, adequately considers alternate causes of Plaintiff's alleged injuries, and contains enough information to place Defendant on notice as to the basis for the expert opinion. Defendant's Motion in Li mine to Preclude Evidence of Insurance Details to the Jury is GRANTED because Delaware Rule of Evidence 411 does not permit evidence regarding insurance coverage.

         FACTS AND PROCEDURE

         On May 25, 2012, [1] Plaintiff alleges that he sustained injuries in a fall at Defendant's first floor patio bar. This establishment, Plaintiff maintains, provides music, sells drinks, and allows dancing. Plaintiff asserts that the previous Third-Party Defendant leaned against his barstool while she allegedly was standing between his legs. He further attests that the chair portion of his barstool fell off of the seat portion of his barstool. After the chair portion allegedly failed, Plaintiff claims that he fell to the ground, and that the previous Third-Party Defendant landed on top of him. Plaintiff asserts that he had no reason to know of, and was unaware of, any defect in the barstool.

         Plaintiff is prepared to offer at least two purported experts in support of his claim. First is Joseph C. Vincent, D.C. He wrote his report on July 23, 2014. In his expert report, Dr. Vincent states "today . . . [Plaintiff] denies any recent accidents or injuries and at this time offers nothing further."[2] Dr. Vincent's report also says "[Plaintiff] denies any previous accidents, illnesses or injuries involving his left arm, cervical and thoracic spine."[3] Dr. Vincent asserts, in his report, that he did not maintain formal records for Plaintiff outside of Plaintiff's initial examination. The remainder of the report discusses Plaintiff's alleged injuries and provides an opinion with respect to causation of those alleged injuries.

         Plaintiff's second expert is Michele Y. Holding, M.D. Plaintiff asserts that Michele Y. Holding, M.D. will testify "specifically that there was injury to [Plaintiff's] wrist and hand and that the charge for the test is a reasonable and customary charge."[4] Dr. Holding's report states that Plaintiff "is a 52-year-old right-handed man without previous medical history status post slip and fall 05/20/12."[5]Furthermore, Dr. Holding's report indicates that Plaintiff "is status post fracture of the left dorsal hand at 51 years old which was treated with a cast. . . ."[6] Additionally, this report makes recommendations for future care, [7] and reaches conclusions regarding Plaintiff's alleged injuries.[8]

         Defendant contends that these reports contain false information. Defendant claims that Plaintiff was treated for a broken hand on August 19, 2012, when he was 52 years old.[9] Defendant provides medical records supporting this proposition. Moreover, Defendant asserts that Dr. Vincent testified, in his deposition, that his expert report was based on Plaintiff's first visit to his office on May 28, 2012.

         Plaintiff filed the Complaint for this case on May 12, 2014. On June 10, 2014, Defendant filed a third-party Complaint against Third-Party Defendant. The parties stipulated as to the dismissal of Third-Party Defendant on October 17, 2016. Defendant filed the four instant motions in limine on October 20, 2016.

         DISCUSSION

         A. Lay Testimony Regarding Whether the Stool Was a Dangerous Condition is Not Admissible

         Since whether a barstool constitutes a dangerous condition is a matter that is outside the understanding of a layperson, a layperson may not provide testimony relative to whether or not a given barstool constitutes a dangerous condition. Any evidence a layperson could offer regarding the level of danger with respect to the barstool would be irrelevant.

          Proof regarding the dangerous nature of it requires expert testimony, since such proof is outside the ordinary knowledge of a layperson, even though laypeople are familiar with the item itself. In Cruz v. G-Town Partners, L.P., a plaintiff was injured when a sink fell from the bathroom wall in her apartment.[10] The Delaware Superior Court held that an expert had to testify as to the extent of the defendant's duty to inspect, repair, or replace the bathroom sink mountings.[11] As stated, though laypeople are familiar with sinks, testimony regarding the duty to inspect, repair, or replace a sink is beyond their knowledge level.[12]

         Plaintiff makes two arguments counter to the above conclusion. The first is that the instant motion is a dispositive motion disguised as a motion in limine. Since the dispositive motion deadline in this case has passed, Plaintiff argues that this Court should not entertain Defendant's motion. The second is that there is a distinction between evidence of defect, needed in products liability cases, and evidence of whether a chair is unfit for a patron to sit on in a bar area does not require expert testimony.

         With respect to the first argument, Delaware courts have decided motions in limine that were disguised dispositive motions and filed after the dispositive motion deadline.[13] As to Plaintiff's second argument, expert testimony is necessary to prove the defects alleged. Thus, Defendant's motion with respect to testimony regarding defect is GRANTED.

         B. Joseph C. Vincent, D.C.'s Expert Testimony Is Inadmissible Since it Is Not Based on Sufficient Facts or Data

         Expert testimony must be based upon sufficient facts or data in order for it to be admissible.[14] Joseph C. Vincent, D.C.'s expert report does not consider Plaintiff's broken hand, from August of 2012, in reaching its ...


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