            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


KIMOTHY VINCENT,                            :
                                            :      C.A. No: K14C-05-013 RBY
              Plaintiff,                    :      In and For Kent County
                                            :
      v.                                    :
                                            :
HARRINGTON RACEWAY, INC.,                   :
                                            :
              Defendant/Third-Party         :
              Plaintiff,                    :
                                            :
      v.                                    :
                                            :
MELISSA OLSEN,                              :
                                            :
              Third-Party Defendant.


                           Submitted: November 16, 2016
                            Decided: February 7, 2017

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

                                       ORDER


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

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


Young, J.
Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

                                      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 Limine to Preclude Evidence of Insurance Details to the Jury

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February 7, 2017

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,



        1
          Please note that while the Complaint states that this is the date on which Plaintiff
allegedly sustained injuries, the expert reports consistently state that the alleged injury occurred
on May 20, 2012.
        2
         Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s Motion in Limine to
Exclude Plaintiff’s Proposed Expert Testimony of Joseph C. Vincent, D.C. at Exhibit B, Vincent
v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Oct. 20, 2016).

                                                      3
Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

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




        3
            Id.
        4
         Plaintiff’s Response to Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s
Motion in Limine to Exclude Plaintiff’s Proposed Expert Testimony of Michele Y. Holding,
M.D. at 1-2, Vincent v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Nov. 8, 2016).
        5
         Defendant/Third-Party Plaintiff Harrington Raceway, Inc.’s Motion in Limine to
Exclude Plaintiff’s Proposed Expert Testimony of Michele Y. Holding, M.D. at Exhibit B,
Vincent v. Harrington Raceway, Inc., No. K14C-05-013 (Del. Super. Oct. 20, 2016).
        6
            Id.
        7
          The relevant portion of the report reads “the patient will continue to follow up with Dr.
Vincent and will continue the current therapeutic regime to achieve decreased pain, independent,
safe ADL’s, ambulation up and down one flight of steps and return to his premorbid functioning
status both personally and for work.” Id.

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

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.

        8
           The relevant portion of the report reads “this is a 52-year-old man status post slip and
fall 05/20/2012 with the following diagnosis: 1) Incomplete injury to the left ulnar nerve at the
level of the wrist consistent with the timing and mechanism of action of his slip and fall
05/20/12. 2) Cervical radiculopathy involving the left C5-C6 and bilateral C8-T1 nerve roots
consistent with the timing of his slip and fall 05/20/2012. 3) Moderate bilateral carpal tunnel
syndrome affecting both sensory and motor.” Id.
        9
            Plaintiff was born on May 27, 1960. Id.

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Vincent v. Harrington Raceway, Inc.
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February 7, 2017

       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. 1 0 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

       10
            Cruz v. G-Town Partners, L.P., 2010 WL 5297161, at *3-4 (Del. Super. Dec. 3, 2010).
       11
            I d. at *14.
       12
            Id.
       13
          Erhart v. Directv, Inc., 2012 WL 2367426, at *3 n.5 (Del. Super. June 20, 2012)
(determining motion in limine filed after dispositive motion deadline though the motion was a

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

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 conclusions. Thus, his conclusions
are not based on sufficient facts or data.
        When an expert does not demonstrate knowledge regarding a key component
of her opinion, her testimony is not based upon sufficient facts or data.15 In Perry v.
Berkley, an expert concluded that the plaintiff’s lumbar injuries were a result of an
accident because, he contended, the plaintiff did not have pain prior to the accident.16
In fact, the plaintiff was receiving treatment for lumbar issues at the time of her
accident.17 The Delaware Supreme Court held that the trial court properly excluded
this expert’s testimony.18 It reasoned that the expert’s opinion was based on an




disguised dispositive motion).
        14
             D.R.E. 702.
        15
             Perry v. Berkley, 996 A.2d 1262, 1270-71 (Del. May 11, 2010).
        16
             Id. at 1265.
        17
             Id.
        18
             Id. at 1270-71.

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Vincent v. Harrington Raceway, Inc.
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February 7, 2017

inaccurate factual predicate.19
       Similar to Perry, Dr. Vincent has not demonstrated knowledge of basic facts
regarding his opinion. Dr. Vincent offers an opinion regarding causation. However,
throughout his report, Dr. Vincent fails to acknowledge that Plaintiff broke his hand
three months after his initial alleged injury. In so doing, Dr. Vincent failed to show
basic awareness of another possible cause of Plaintiff’s alleged injuries. Such an
opinion on causation lacks the reliability that is the hallmark of admissible expert
testimony.
       Plaintiff’s argument that Defendant does not have an expert is not pertinent.
Plaintiff’s expert’s deficiency stands on its own. No opposing position is necessary.
Defendant’s motion with respect to Dr. Vincent’s testimony is GRANTED.
C. Michele Y. Holding, M.D.’s Expert Testimony is Admissible
       Defendant makes three arguments as to why this Court should exclude Dr.
Holding’s expert testimony. First, Defendant argues that Dr. Holding’s testimony
lacks the requisite factual basis to be admissible. Second, Defendant argues that Dr.
Holding’s testimony must eliminate other possible causes in order to be valid. Third,
Defendant contends that Plaintiff did not provide an expert report containing
information sufficient to permit Dr. Holding’s testimony. Defendant’s first argument
fails because, even though it contains an inaccurate age at which Plaintiff broke his
hand, Dr. Holding’s expert report is based on sufficient facts. Defendant’s second
argument fails because experts do not have to eliminate alternate causes in order for


       19
            Id.

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

their opinions to be valid, they simply have to have the ability to do so. Defendant’s
third argument fails because Dr. Holding’s expert report adequately placed Defendant
on notice as to the basis for her opinion.
       1. Dr. Holding’s Report Is Based on Sufficient Facts
       As noted above, when an expert does not demonstrate knowledge regarding a
key component of her opinion, her testimony is not based upon sufficient facts or
data, and is, therefore, inadmissible.20 In Perry, the expert reached a conclusion
completely based on his inaccurate understanding of the facts. Unlike the expert in
Perry, Dr. Holding misunderstood a fact that is not at the heart of her conclusions,
namely, Plaintiff’s age when he broke his hand. Dr. Holding’s conclusions in the
instant case are that Plaintiff has “incomplete injury to the left ulnar nerve at the level
of the wrist consistent with the timing and mechanism of action of his slip and fall
05/20/12, cervical radiculopathy involving the left C5-C6 and bilateral C8-T1 nerve
roots consistent with the timing of his slip and fall 05/20/2012, and moderate bilateral
carpal tunnel syndrome affecting both sensory and motor.” These conclusions may
still be valid even though Dr. Holding misunderstood when Plaintiff broke his hand.
That is a matter for cross-examination.
       2. Experts Are Not Required to Eliminate Alternate Causes
       Defendant erroneously relies on Bowen v. E.I. duPont de Nemours and
Company, Inc. to assert that Dr. Holding must eliminate alternate causes, in her expert
opinion, in order for the opinion to be admissible. In fact, Bowen stands for the


       20
            Id.

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

proposition that experts must have the ability to eliminate alternate causes in opinions
they provide.21 In Bowen, an expert, who was not a geneticist, wanted to give an
opinion regarding how the interaction between a certain gene and a chemical could
cause injury.22 The Delaware Superior Court held that the expert could not give such
testimony, since he had no expertise with respect to genetics.
       Dr. Holding satisfies any requirement in Bowen. While the expert in Bowen
was completely unable to eliminate alternate causes of the injury, Dr. Holding
maintains an ability to address to what extent the Plaintiff’s broken hand contributed
to his alleged injuries. The fact that Dr. Holding did not do so is not fatal.
       3. Dr. Holding’s Expert Report Adequately Placed Defendant on Notice
       Litigants must produce expert reports that place other litigants on notice as to
the basis of their testifying expert’s opinions.23 In Watunya v. Siena, a litigant
produced notes of meetings with some notation of the plaintiff’s physical
complaints.24 The Delaware Superior Court held that this production was not enough
to equate to an expert report.25 It reasoned that this production fell far short of the
customary production, which normally included the basis for an expert opinion, a



       21
         Bowen v. E.I. duPont de Nemours and Co., Inc., 2005 WL 1952859, at *11 (Del. Super.
May 9, 2005).
       22
            Id. at *10-11.
       23
            Watunya v. Siena, 2014 WL 4249677, at *2 (Del. Super. Aug. 27, 2014).
       24
            Id. at *1.
       25
            Id. at *2.

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

chronology of prior treatment, and a prognosis for future care, if any.26
      Dr. Holding’s report differs greatly from that in Watunya. While the report in
Watunya included only the plaintiff’s physical complaints and some notes of
meetings, Dr. Holding’s report provides recommendations for future care, an opinion,
and detailed descriptions of the tests used to reach her conclusions. Because of the
information included in Dr. Holding’s report, the report satisfies the requirements of
Watunya.
      Defendant’s motion with respect to Dr. Holding’s report is DENIED.
D. Delaware Rule of Evidence 411 Excludes Evidence of Insurance
      Delaware Rule of Evidence 411 states “evidence that a person was or was not
insured against liability is not admissible upon the issue of whether he acted
negligently or otherwise wrongfully.”27 As Plaintiff concedes, this rule mandates that
evidence, testimony, and argument concerning policy limits, duration of coverage,
insurance premiums, and the amount of insurance coverage available are
inadmissible. Under this rule, Plaintiff may not use this evidence, unless he uses it for
a purpose other than showing that Defendant acted negligently or otherwise
wrongfully. Defendant’s motion is GRANTED.
                                      CONCLUSION
      For the foregoing reasons this Court:
1) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude All


      26
           Id. at *1.
      27
           D.R.E. 411.

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Vincent v. Harrington Raceway, Inc.
C.A. No. K14C-05-013 RBY
February 7, 2017

Evidence of Defect to the Jury;
2) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude
Plaintiff’s Proposed Expert Testimony of Joseph C. Vincent, D.C.;
3) DENIES Defendant/Third-Party Plaintiff’s Motion in Limine to Exclude Plaintiff’s
Proposed Expert Testimony of Michele Y. Holding, M.D.; and
4) GRANTS Defendant/Third-Party Plaintiff’s Motion in Limine to Preclude
Evidence of Insurance Details to the Jury.
      IT IS SO ORDERED.

                                                  /s/ Robert B. Young
                                                           J.

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