          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CANDY VAUGHN, et al.,                                )
        Plaintiffs,                                  )
    v.                                               )       C.A. No. N13C-07-132 ALR
                                                     )
JEFFREY I. JACKERSON, D.O., et al.,                  )
           Defendants.                               )

                                             ORDER

                Upon Defendants’ Motion in Limine to Limit or Exclude
                Causation Opinions Rendered by Kenneth Algazy, M.D.
                                     DENIED

         Defendants have filed a motion in limine to limit or exclude the causation

opinions rendered by Kenneth Algazy, M.D.                     Plaintiffs oppose Defendant’s

motion. The Court heard oral argument today, and has considered the parties’

submissions as well as Rules 702 and 703 of 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 such 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,


1
    Sturgis v. Bayside Health Ass’n, 942 A.2d 579, 583 (Del. 2007).
       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.

Under this standard, the trial judge may consider the following factors: 1) whether

the theory or technique has been tested; 2) whether it has been subjected to peer

review and publication; 3) whether a technique has a high known or potential rate

of error and whether there are standards controlling its operation; and 4) whether

the theory or technique enjoys acceptance within a relevant scientific community.3

       In addition to the Daubert factors, Delaware requires the trial judge to

consider an additional five-step test to determine admissibility of expert

testimony.4 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.5




2
  D.R.E. 702
3
  Sturgis, 942 A.2d at 584 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)).
4
  Id.
5
  Id.
                                               2
      The Court is satisfied that Dr. Algazy is an expert qualified by knowledge,

skill, experience, training, and education. Dr. Algazy’s expert opinion is based

upon information reasonably relied upon by experts in the field of oncology. Dr.

Algazy’s proposed testimony is relevant and will assist the jury in understanding

the evidence and determining a fact in issue. Dr. Algazy’s testimony will not

create unfair prejudice or confuse or mislead the jury.     Defendants’ concerns

regarding Dr. Algazy’s testimony go to its weight and not its admissibility and

Defendants can effectively cross-examine Dr. Algazy at trial.


      NOW, THEREFORE, this 22nd day of June 2016, Defendants’ Motion in

Limine to Limit or Exclude Causation Opinions Rendered by Kenneth Algazy,

M.D. is hereby DENIED.

      IT IS SO ORDERED.

                                      Andrea L. Rocanelli
                                      Hon. Andrea L. Rocanelli




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