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Li v. Geico Advantage Insurance Co.

Superior Court of Delaware

October 7, 2019

ERIC LI, Plaintiff,
v.
GEICO ADVANTAGE INSURANCE COMPANY and ROBERT DEJONGH, Defendants.

          Submitted: September 16, 2019

         Upon Defendants' Motions to Strike Evidence Regarding Plaintiff's Possible Future Surgery GRANTED IN PART

          ORDER

          THE HONORABLE ANDREA L. ROCANELLI JUDGE

         This case involves two separate motor vehicle collisions, both involving Plaintiff Eric Li ("Plaintiff"). Defendants each filed motions to exclude testimony regarding Plaintiff's potential need for future surgery and treatment. Plaintiff opposes both motions. The Court has considered the parties' submissions; the Delaware Rules of Evidence; the facts, arguments, and legal authorities presented by the parties; and decisional law.

         At the trial level, it is the role of the Court to perform a gate keeping function with expert testimony.[1] The admissibility of expert testimony is governed by Delaware Rule of Evidence 702, which provides:

If 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.[2]

         Delaware has adopted the Daubert standard to determine whether an expert has a reliable basis in the knowledge and experience of the relevant discipline.[3]Under this standard, the trial judge may consider the following factors: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a technique has a high-known or potential rate of error and whether standards controlling its operation exist; and (4) whether the theory or technique enjoys acceptance within a relevant scientific community.[4]

         In addition to the Daubert factors, Delaware requires the trial judge to consider an additional five-step test to determine the admissibility of expert testimony.[5] The trial judge must determine that:

(1) the witness is qualified as an expert by knowledge, skill, experience, training, or education;
(2) the evidence is relevant;
(3) the expert's opinion is based upon information reasonably relied upon by experts in that particular field;
(4) the expert testimony will assist the trier of fact to understand the evidence or determine a material fact in issue; and
(5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.[6]

         "[Delaware's] case law is clear that 'when an expert offers a medical opinion it should be stated in terms of a reasonable medical probability or a reasonable medical certainty.'"[7] "A doctor cannot base [an] expert medical opinion on speculation or conjecture."[8] "A doctor's testimony that a certain thing is possible is no evidence at all"[9] because "[a] doctor's opinion about 'what is possible is no more valid than the jury's own speculation as to what is or is not possible.'"[10]

         In his first expert report dated October 31, 2017, Plaintiff's first medical expert witness, Dr. Ali Kalamchi, states that Plaintiff "may need periodic visits for evaluation if there is any change in his symptoms."[11] The first report also states that "[t]he major future cost would be related to surgical intervention if his symptoms became severe to require surgery."[12] In his second expert report dated February 22, 2018, Dr. Kalamchi states that the "[f]uture course [of treatment] will depend on ¶are-up, then he may need resumption of then acute conservative treatment such as physical therapy and medication."[13]

         Plaintiff concedes that Dr. Kalamchi's opinions concerning the need for future surgery are not stated to a reasonable degree of medical probability.[14] Instead, Plaintiff argues that Dr. Kalamchi's opinions regarding the possibility of future surgery are admissible to support Plaintiff's claim that he will experience mental anguish over ...


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