      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                      )
ERIC LI,                              )
                                      )
      Plaintiff,                      )
                                      )
      v.                              )     C.A. No. N18C-02-160 ALR
                                      )
GEICO ADVANTAGE                       )
INSURANCE COMPANY and                 )
ROBERT DEJONGH,                       )
                                      )
      Defendants.                     )

                          Submitted: September 16, 2019
                            Decided: October 7, 2019

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

                                      ORDER

      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 gatekeeping 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



1
  Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 583 (Del. 2007).
2
  D.R.E. 702.
3
  See M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999)
(adopting the Daubert standard as the correct interpretation of Delaware Rule of
Evidence 702).
4
  Sturgis, 942 A.2d at 584 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 595 (1993)).
                                         2
      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


5
  Id.
6
  Id.
7
  O’Riley v. Rogers, 69 A.3d 1007, 1011 (Del. 2013) (quoting Floray v. State, 720
A.2d 1132, 1136 (Del. 1998)) (quotation marks omitted).
8
  Id.
9
  Oxendine v. State, 528 A.2d 870, 873 (Del. 1987).
10
   O’Riley, 69 A.3d at 1011 (quoting Oxendine, 528 A.2d at 873).
                                        3
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

flare-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 the future possible consequences of his injuries, including the

possibility of future surgery.

      In O’Riley v. Rogers, the Delaware Supreme Court held that the Superior

Court abused its discretion by ordering a new trial after it had properly excluded

medical expert testimony similar to Dr. Kalamchi’s proposed testimony.15 Prior to

trial, the Superior Court excluded a medical expert’s testimony that “it was possible

that the plaintiff’s permanent injury might improve depending on the results of


11
   Def. DeJongh’s Mot. to Strike Ex. B, at 2 (emphasis added).
12
   Id. (emphasis added).
13
   Def. DeJongh’s Mot. to Strike Ex. C, at 2 (emphasis added).
14
   Pl.’s Resp. to Mot. in Limine and Mot. to Strike ⁋ 1.
15
   O’Riley, 69 A.3d at 1008.
                                         4
further recommended testing.”16 The Superior Court initially found the testimony

impermissibly speculative because the testimony addressed possibilities, not

reasonable medical probabilities.17 After the jury returned a verdict favoring the

plaintiff, the defendant moved for a new trial.18 The Superior Court granted the

defendant’s motion, concluding that the disputed testimony supported the depth and

credibility of the expert’s opinion on the permanency of the plaintiff’s injuries.19

      The Delaware Supreme Court found that the Superior Court erred in ordering

a new trial because the testimony was impermissibly speculative.20 The Supreme

Court found that the excluded testimony did not test the credibility of the expert’s

opinion but instead opined about the permanency of the plaintiff’s injuries based on

the treatment possibilities that a medical test might reveal.21 Finding the Superior

Court abused its discretion by ordering a new trial, the Supreme Court vacated the

Superior Court’s order granting the defendant’s motion for a new trial and remanded

the case with instructions to reinstate the original jury verdict.22

      Similar to the testimony in O’Riley, Dr. Kalamchi’s proposed testimony is not

proper because it is speculative. Specifically, Dr. Kalamchi’s statements opine about


16
   Id. (emphasis added).
17
   Id. at 1009.
18
   Id. at 1010.
19
   Id.
20
   Id. at 1012.
21
   Id.
22
   Id.
                                            5
the possible courses of treatment and costs that might arise if now-unmet conditions

are satisfied in the future. Such speculative medical expert testimony is “no evidence

at all.”23

       Moreover, to the extent Plaintiff seeks to offer these statements to support his

claim of mental anguish, the Court finds that the testimony would “create unfair

prejudice or confuse or mislead the jury.”24 Dr. Kalamchi’s testimony regarding the

potential need for future surgery and treatment is therefore inadmissible.

       Defendant GEICO also objects to portions of proposed testimony by

Plaintiff’s second medical expert witness, Dr. Steven Diamond. In his narrative

report dated December 8, 2017, Dr. Diamond states the following: “It has been

suggested by orthopedic spinal surgery that [Plaintiff] may benefit, if his symptoms

become more acute of a cervical surgical procedure to correct the defects found on

MRI. I will leave this in the capable hands of Dr. Kalamchi to discuss with

[Plaintiff].”25 By his own words, Dr. Diamond does not intend to offer his own

opinion as to Plaintiff’s future need for surgery. In addition, these statements suffer

from the same speculation defects as Dr. Kalamchi’s statements.              The Court


23
   See Oxendine, 528 A.2d at 873.
24
   See Sturgis, 942 A.2d at 584 (“Before admitting expert testimony, the trial judge
must determine that . . . the expert testimony will not create unfair prejudice or
confuse or mislead the jury.”); see also D.R.E. 403.
25
   See Def. GEICO’s Mot. in Limine Ex. C, at 3 (emphasis added). In his response,
Plaintiff does not raise any opposition to GEICO’s objection to this portion of Dr.
Diamond’s report.
                                          6
therefore finds that Dr. Diamond’s statements regarding the potential need for future

surgery are inadmissible.

      Finally, GEICO objects to the admissibility of Plaintiff’s own testimony

regarding his potential need for surgery. In his deposition, Plaintiff testified that his

doctor told him that he “eventually . . . need[s] a surgery.”26 Plaintiff further testified

that he is “not ready” to undergo surgery because he is “not prepared” and is aware

of “side effects for any surgery.”27 Unlike the doctors’ testimony, Plaintiff’s

testimony is not offered as a medical expert opinion and does not speculate about

the potential consequences of unmet conditions. Moreover, the Court finds that

Plaintiff’s testimony satisfies the relevancy test as to his mental anguish claim.28

However, additional context is needed to determine the testimony’s admissibility

and therefore the issue will be addressed when raised at trial.

      NOW, THEREFORE, this 7th day of October 2019, the Court rules as

follows:

      1.     Statements by Drs. Kalamchi and Diamond regarding Plaintiff’s

future treatment and surgery are hereby excluded; and




26
   Def. GEICO’s Mot. in Limine Ex. A, at 42:8–9.
27
   Id. at 42:20–23.
28
   See D.R.E. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”).
                                        7
     2.    Testimony by Plaintiff regarding Plaintiff’s future treatment and

surgery shall be addressed at trial in consideration of, among other things,

Delaware Rule of Evidence 403.

     IT IS SO ORDERED.


                                                                                                                            Andrea L. Rocanelli
                                         ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                         The Honorable Andrea L. Rocanelli




                                     8
