        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                    IN AND FOR KENT COUNTY

DOROTHY M. RUSSUM,                         :
                                           :   C.A. No: K13C-03-022 RBY
                  Plaintiff,               :
                                           :
       v.                                  :
                                           :
IPM DEVELOPMENT PARTNERSHIP                :
LLC, a Delaware limited liability company, :
BIG LOTS STORES, INC., an unregistered :
entity, and SILICATO COMMERCIAL            :
REALTY, INC., a Delaware corporation, :
                                           :
                  Defendants.              :


                           Submitted: May 13, 2015
                           Decided: May 21, 2015


  Upon Consideration of Defendants’ Motion in Limine to Limit the Medical
                          Expenses of Plaintiff
                               STAYED

        Upon Consideration of Defendants’ Motion to Strike the Expert
               Report/Testimony of Dr. Richard DuShuttle
                                 DENIED

Upon Consideration of Defendants’ Motion to Strike the Expert Report/Opinion
                          of Ronald J. Cohen, PE
                                DENIED


                                   ORDER
William D. Fletcher, Jr.,Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware
for Plaintiff.

Christopher T. Logullo, Esquire, Chrissinger & Baumberger, Wilmington, Delaware
for Defendants IPM Development Partnership, LLC and Silicato Commercial Realty,
Inc.

David J. Soldo, Esquire, Morris James, LLP, Wilmington, Delaware for Defendant
Big Lots Stores, Inc.




Young, J.
Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

                                        SUMMARY
      Dorothy Russum (“Plaintiff”) alleges she was hurt, following a slip and fall
incident on a ramp in front of Big Lots, Inc.’s (“Defendant Big Lots”) store in Dover,
Delaware. The premises were leased from IPM Development Partnership, LLC
(“Defendant IPM”) and managed by Silicato Commercial Realty, Inc. (“Defendant
Silicato,” and together with Big Lots and IPM, “Defendants”). Plaintiff retained the
services of a certified engineering expert, who opined that the dangerous slope of the
ramp caused Plaintiff to slip and fall. In addition, Plaintiff presents the expert report
of her treating physician, who links the injuries sustained to the alleged incident on
Defendants’ premises. Thus far, Plaintiff’s medical expenses have been covered by
her insurer, Medicare.
      Defendants, by three motions in limine, seek to exclude certain evidence from
admission. The first motion seeks to limit evidence concerning Plaintiff’s current and
future medical expenses, to the amounts actually paid by Medicare. The second
motion seeks to strike the expert opinion of Plaintiff’s treating physician, pursuant
to a Daubert1/D.R.E. 702 challenge. The third motion seeks to strike the report of
Plaintiff’s engineering expert, also pursuant to a Daubert/D.R.E. 702 challenge. For
the reasons that follow, the Court: 1) stays consideration of the motion concerning
Plaintiff’s medical expenses; 2) denies the motion in limine to strike the treating
physician’s testimony; and 3) denies the motion in limine to strike the report of the
engineering expert.


      1
          Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

                           FACTS AND PROCEDURES
       On April 21, 2011, Plaintiff purportedly sustained injuries resulting from a
slip and fall accident while on Defendants’ business premises. On March 18, 2013,
Plaintiff filed a Complaint against Defendants seeking damages stemming from
her purported injuries. Among the damages sought are medical expenses, which
have been covered by Plaintiff’s insurer, Medicare.
       Plaintiff alleges that, while attempting to enter Defendant Big Lots’ retail store,
she felt something under her foot, causing her to fall. Directly in front of Defendant
Big Lots’ store is a sloped ramp. Plaintiff indicated that it was in the general area of
this sloped ramp that her accident occurred. However, in a recorded statement,
Plaintiff was unable to identify precisely what it was she felt under her feet, causing
her to fall.
       On June 10, 2014, Ronald J. Cohen, PE (“Cohen”), a certified engineer
retained by Plaintiff, conducted a site inspection of the alleged accident location.
Also attending this inspection were Plaintiff, Plaintiff’s counsel, and Defendants’
counsel. Cohen rendered a copy of his findings on July 15, 2014, in which he
concludes that the sloped ramp in front of Defendants’ store caused Russum to fall
and sustain injuries.
       Plaintiff’s other expert in this case is Dr. Richard P. DuShuttle (“Dr.
DuShuttle”). Dr. DuShuttle has been Plaintiff’s treating physician, following her
alleged accident. Dr. DuShuttle prepared an expert report, dated November 20,
2014. In it, Dr. DuShuttle diagnoses Plaintiff with lumbosacral strain, sciatica, and
lumber spine stenosis, all of which, he opines, was asymptomatic until aggravated

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

by Plaintiff’s purported fall. Dr. DuShuttle’s report also concludes that Plaintiff is
a candidate for surgery to remedy her injuries.
       By contrast, Defendants present the expert report of Dr. Jonas B. Gopez,
M.D., who finds that Plaintiff’s ailments preceded any alleged accident at the site
– specifically, a chronic lower back condition having its origin in 1973. This
report was issued on January 7, 2014.
                                        DISCUSSION
       Defendants present three separate motions in limine: 1) motion to
limit/preclude Plaintiff’s medical expenses; 2) motion to strike expert opinion of Dr.
DuShuttle; and 3) motion to strike expert opinion of Ronald Cohen, PE.2 The Court
addresses each motion in turn.
       Defendants’ first motion in limine raises the issue of the collateral source
doctrine, and its extension beyond the Supreme Court’s ruling in Mitchell v. Haldar3
to public collateral sources. In Mitchell, the Supreme Court determined that where
Plaintiff is insured by a private company, Plaintiff may recover the full cost of
medical care, irrespective of whether his private insurer received a discount from
Plaintiff’s medical provider. This Court, in Stayton v. Delaware Health Corp., held
that Mitchell’s ruling does not apply to public insurers, such as Medicare.4 In the
instant matter, Plaintiff was also insured by Medicare. By analogy, Defendants argue

       2
         Defendants IPM and Silicato filed said motions on April 27, 2015. Defendant Big Lots
joined the motions on April 29, 2015.
       3
           883 A.2d 32 (Del. 2005).
       4
           2014 WL 4782997, at *1 (Del. Super. Ct. Sept. 24, 2014).

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

that any sums above that which Medicare paid, may not be presented to the jury, as
they are unrecoverable.
       This Court’s Stayton opinion is currently on appeal before the Supreme Court.5
Plaintiff, rightfully, contends that this Court should refrain from issuing any decisions
concerning the reach of Mitchell to plaintiffs insured by Medicare. Therefore,
Defendants’ motion concerning Plaintiff’s medical expenses is STAYED, pending
the Supreme Court’s decision in Stayton.
      Defendants’ second motion in limine seeks to strike the opinion of Plaintiff’s
expert, Dr. DuShuttle, who determined that Plaintiff’s injuries were caused by the
accident on Defendants’ property. Defendants allege that Dr. DuShuttle’s opinion
failed to take into account Plaintiff’s prior medical history – a crucial factual
predicate. According to Defendants, Plaintiff suffered from chronic lower back
ailments for decades prior to the accident. Defendants assert that, in not considering
Plaintiff’s preexisting condition, Dr. DuShuttle’s opinion lacks sufficient foundation,
therefore rendering that opinion inadmissible as expert testimony under D.R.E. 702.
      As a starting point, this Court recognizes the Delaware Supreme Court’s
exposition in Perry v. Berkley of the proper role of a trial court in contemplating
D.R.E. 702 challenges. “The trial court acts as a gatekeeper” to determine whether the
“expert’s opinion [is] based upon proper factual foundation and sound methodology,”
which would be required to create admissible evidence.6 The Court further has “broad


      5
          Case No. 601, 2014 (Del.), appeal filed on October 23, 2014.
      6
          996 A.2d 1262, 1267 (Del. 2010).

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

latitude” in making such rulings.7 The “proper factual foundation” language has been
distilled from D.R.E. 702, which provides in relevant part:
    a witness qualified as an expert...may testify...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.8
Addressing the “proper factual foundation” part of the analysis, the Perry Court
determined that, to meet this criteria, an expert’s opinion must be based on “facts” of
the case rather than “suppositions.”9 Expanding upon this further, the Supreme Court
stated “[i]f an expert bases an opinion on an erroneous factual foundation, the
inaccurate premises invalidate the conclusion...”10 The key is that the expert must
have an “understanding of the case’s factual foundations.”11
       Defendants’ motion to strike the testimony of Dr. DuShuttle is based in the
Perry opinion. Defendants argue that Dr. DuShuttle’s testimony is akin to the expert
testimony stricken by the Perry Court. The Court does not find the analogy to Perry
persuasive. To begin, Perry involved a situation in which the expert at issue


       7
           Id.
       8
           Id., at 1267-1268 (internal quotations omitted).
       9
           Id., at 1269.
       10
        Id. (quoting David G. Kaye, David E. Bernstein and Jennifer L. Mnookin, The New
Wigmore: Expert Evidence § 3.1 (2004)) (emphasis in the original).
       11
          Id.(finding the expert’s opinion inadmissible as in preparing his opinion, the expert was
ignorant of crucial aspects of the Plaintiff’s medical history).

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

formulated his opinion “upon a completely incorrect case specific factual predicate.”12
Without even having treated the Plaintiff, the Perry expert concluded that the
Plaintiff’s injuries resulted from the accident in question, though that expert was
ignorant that some of the Plaintiff’s symptoms preceded the accident.13 This
information was included in the Plaintiff’s medical records, a file that the Perry
expert did not review in preparing his opinion.14 It was as a result of this egregious
set of events that the Supreme Court excluded the expert’s testimony, finding that his
opinion originated from “assumptions that have no basis in fact.”15
      Although Defendants contend that Dr. DuShuttle’s opinion was similarly based
on speculation, the Court is satisfied that the testimony is grounded in the facts of this
case. Defendants’ primary argument is that Dr. DuShuttle’s testimony did not give
proper weight to Plaintiff’s longstanding lower back pain. As per Defendants, this is
the same blunder committed by the Perry expert – to wit, ignorance of Plaintiff’s
medical history. However, as Plaintiff notes, Dr. DuShuttle’s opinion does not
discount or overlook Plaintiff’s medical history, but rather deems the slip and fall
accident to be the cause of Plaintiff’s current health troubles, rather than her ongoing
lower back condition. As a qualified expert in the field, Dr. DuShuttle is free to do




      12
           Perry, 996 A.2d at 1271 (emphasis in original).
      13
           Id., at 1265.
      14
           Id.
      15
           Id., at 1270.

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

so.16 Moreover, unlike the Perry expert who did not even treat or examine the Perry
Plaintiff, Dr. DuShuttle has been intimately involved with Plaintiff’s care. The
situations are, simply stated, inapposite.
      Defendants’ argument, in sum, is that Dr. DuShuttle should have focused on
a different set of facts, from the one he found important in his diagnosis. Indeed,
Defendants contend that their own expert found the prior lower back condition to be
the true culprit. However, as the Supreme Court has recognized, challenges to the
“factual basis of an expert opinion go to the credibility of the testimony, not the
admissibility, and it is for the opposing party to challenge...the expert opinion on
cross-examination.”17 It is only in the narrow circumstance, where an expert has
completely neglected core facts, that a court will exclude the testimony. To say that
Dr. DuShuttle’s opinion is founded “upon a completely incorrect case specific factual
predicate,” 18 would be too strong. Defendants’ second motion in limine is DENIED.
      Defendants’ final motion in limine attacks the admissibility of Cohen’s expert
report, which opines that the ramp in front of Defendant Big Lots’ store was
dangerously sloped, causing Plaintiff’s fall. Defendants begin their argument by
referencing D.R.E. 702, claiming that Cohen’s report fails every prong. “[An expert]
may testify to an opinion so long as it is based on sufficient facts or data, the
testimony is the product of reliable principles and methods, and the witness has


      16
           Indeed, Defendants do not challenge Dr. DuShuttle’s qualifications.
      17
           Perry, 996 A.2d at 1271 (emphasis added).
      18
           Id. (emphasis in original).

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

applied the principles and methods to the facts of the case.”19 Defendants’ contention
is another Perry challenge. Defendants premise their assault on the admissibility of
Cohen’s report on the fact that he did not review Plaintiff’s deposition testimony and
other recorded statements. Defendants aver that Plaintiff’s recorded statement reveals
she was unaware of what caused her to fall.20 Further, Plaintiff acknowledged that she
noticed the yellow cautionary paint above the ramp.21 Defendants argue that Cohen,
by not considering Plaintiff’s deposition testimony, missed central facts regarding the
accident. At its core, Defendants’ position is that Cohen’s report is not founded in
sufficient facts.
       While claiming that the contents of Plaintiff’s deposition are integral to any
expert findings concerning the slip and fall incident, Defendants recognize the
various sources upon which Cohen’s report is based. These include the Complaint,

       19
          Defendants’ Motion in Limine to Strike the Expert Report/Testimony of Ronald Cohen,
PE, at ¶ 6. The Court notes that the expert admissibility standard in Delaware has been, further,
developed by case law, chiefly from the Supreme Court, recognizing additional factors to be
considered such as: “(1) whether scientific theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) the known
or potential rate of error and the existence and maintenance of standards controlling the
technique’s operation; and (4) whether the technique is generally accepted.” Spencer v. Wal-Mart
Stores East, LP, 930 A.2d 881, 889-890 (Del. 2007)(internal quotations omitted). These factors
have been termed the “reliability” test. Price v. Blood Bank of Delaware, Inc., 790 A2d. 1203,
1210 (Del. 2002) (“D.R.E. 702 imposes a special obligation upon the trial judge to ensure that
any and all scientific testimony...is not only relevant, but reliable”)(emphasis added)(internal
quotations omitted).
       20
        See Ex. B to Defendants’ Motion to Strike the Expert Report/Testimony of Ronald
Cohen, PE.
       21
        See Ex. A to Defendants’ Motion to Strike the Expert Report/Testimony of Ronald
Cohen, PE, at p.32-33.

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

photographs of the accident site, and a personal inspection of the area in question,
accompanied by Plaintiff. These numerous materials, from which Cohen’s report is
comprised, reveal an effort on Cohen’s part to “understan[d]...the case’s factual
foundations.”22 Moreover, as Plaintiff argues, some of the allegedly ignored key facts,
such as the existence of yellow paint serving to alert patrons of the ramp, were, in
fact, noted in Cohen’s report.23 Furthermore, it is not, in itself, dispositive that
Plaintiff may have seen the yellow paint. Cohen’s report opines that the ramp was
hazardously sloped. Even with the yellow paint, one can imagine the argument being
formulated that Plaintiff was, nonetheless, imperiled. Most importantly, this is a
factual dispute for the fact-finder. As such, Cohen’s failure to review the deposition
transcript goes to the credibility of his expert opinion, not its admissibility.
Defendants’ third motion in limine is DENIED.
                                       CONCLUSION
       For the foregoing reasons the Court: 1) STAYS consideration of
Defendants’ Motion in Limine to Limit the Medical Expenses of Plaintiff; 2)
DENIES Defendants’ Motion to Strike the Expert Report/Testimony of Dr.
Richard DuShuttle; and 3) DENIES Defendants’ Motion to Strike the Expert
Report/Opinion of Ronald J. Cohen, PE.




       22
            Perry, 996 A.2d at 1269.
       23
         See Ex. A to Plaintiff’s Response to Defendants’ Motion to Strike the Expert
Report/Testimony of Ronald Cohen, PE, at p.2.

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Russum v. IPM Development Partnership, LLC, et. al.
C.A. No. K13C-03-022 RBY
May 21, 2015

      IT IS SO ORDERED.
                                             /s/ Robert B. Young
                                                        J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution




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