                                             SUPERIOR COURT
                                                 OF THE
                                           STATE OF DELAWARE


RICHARD F. STOKES                                                     SUSSEX COUNTY COURTHOUSE
            JUDGE                                                              1 THE CIRCLE, SUITE 2
                                                                             GEORGETOWN, DE 19947
                                                                            TELEPHONE (302) 856-5264

                                                August 9, 2016

Matthew R. Fogg, Esquire                               Kevin J. Connors, Esquire
Debra C. Aldrich, Esquire                              1007 N. Orange Street, Suite 600
28535 Dupont Blvd., Suite 2                            Wilmington, DE 19899
Millsboro, DE 19966

           RE:     Patrick Black v. Chromascape, Inc., a foreign corporation, d/b/a/ Amerimulch
                   C.A. No.: S13C-04-018 RFS

                                           Submitted: July 28, 2016
                                           Decided: August 9, 2016

                      Upon Defendant‟s Motion to Strike Plaintiff‟s Expert Report.
                                              Denied.

Dear Counsel:

           Pending before the Court is the Motion to Strike Plaintiff‟s Expert Report filed by
Defendant, Chromascape, Inc., a foreign corporation, d/b/a Amerimulch (“Defendant”). For the
following reasons, Defendant‟s Motion is DENIED.
           This is a products liability action arising out of an incident that took place on April 25,
2011. Plaintiff, Patrick Black (“Plaintiff”), had been operating a front-end loader to feed mulch
from a ground level storage pile into the hopper of a Mega Mite mulch-dyeing machine (“Mega
Mite”). Defendant designed, constructed, and installed the Mega Mite operated by Plaintiff on
the day of the incident. At some point, while Plaintiff was loading mulch into the Mega Mite,
the feeder bridged.1 In an attempt to clear the bridge, Plaintiff tapped on the mulch was his foot.
As soon as Plaintiff successfully cleared the bridge, he was “sucked into” the Mega Mite
resulting in severe personal injuries and amputation of his right leg.


1
    Bridging is an industry term which means jammed.

                                                       Page 1
         Plaintiff filed a Complaint on April 18, 2013, and alleged Defendant was negligent,
careless, and/or reckless by failing to adequately design, manufacture, or inspect the Mega Mite. 2
Plaintiff further alleged Defendant failed to provide adequate instructions or warnings with
respect to the Mega Mite‟s use and operation.3 Defendant filed an Answer denying all the
allegations set forth in Plaintiff‟s Complaint. After several amendments, the Trial Scheduling
Order set a June 29, 2015 deadline for the production of Plaintiff‟s expert report.
         On June 25, 2015, Plaintiff submitted an expert report prepared by Bartley Eckhardt
(“Eckhardt”). However, upon receiving new information, Eckhardt submitted a supplement
(“Supplemental Report”) to his initial expert report on November 12, 2015. On February 1,
2016, Defendant filed a Motion to Strike Eckhardt‟s Supplemental Report for two reasons. First,
Defendant contends the Supplemental Report was untimely. Second, Defendant contends that
Eckhardt‟s opinion expresses a legal conclusion which is prohibited by Delaware law.
         As mentioned, Defendant offers two bases to strike Eckhardt‟s Supplemental Report.
First, Defendant contends that because Plaintiff‟s expert deadline was June 29, 2015, the
Supplemental Report filed on November 12, 2015, should be stricken as untimely. In support of
this argument, Defendant notes that the Trial Scheduling Order did not contain any provisions
which allowed either party‟s expert to supplement their original report. Further, Defendant
contends it has been prejudiced because “Plaintiff‟s untimely production of what is in reality a
rebuttal report prohibits [Defendant‟s] expert from addressing Eckhardt‟s opinions as the Court
intended.”4
         In Chase Manhattan Mortg. Corp. v. Advanta Corp.,5 the defendant sought to exclude a
supplemental report filed by the plaintiff‟s expert because it was submitted six weeks after the
deadline for expert reports.6 To begin its analysis, the court explained that “[t]he touchstone for
determining whether to exclude untimely expert reports is whether the party opposing their
admission is prejudiced.”7 The court found that the defendant was not prejudiced for several
reasons.8 First, the plaintiff‟s expert‟s supplemental report was submitted before the defendant


2
  See Am. Compl. ¶ 26.
3
  Id.
4
  Def.‟s Reply in Supp. of its Mot. to Strike at 3.
5
  2004 WL 422681, at *1(D. Del Mar. 4, 2004).
6
  Id. at *10.
7
  Id.
8
  Id.

                                                      Page 2
was scheduled to depose her.9 Because of this, the court held that the defendant had enough time
to question the plaintiff‟s expert about the opinions expressed in the supplemental report.10
Second, the court cited the lapse of time between the submission of the supplemental report and
when the defendant raised its objections.11 Had the defendant felt truly prejudiced, it would have
raised this objection as soon as the supplemental report was filed.12 Finally, the court noted that
the defendant did not articulate any prejudice it suffered apart from the report‟s untimeliness.13
        Like the defendant in Chase Manahattan, Defendant‟s only claim of prejudice stems
from the fact that Plaintiff‟s supplemental report was untimely. While timeliness is an important
factor, it is not alone determinative.14 The supplemental report in this case was submitted before
Defendant was scheduled to depose Plaintiff‟s expert. Thus, Defendant had the opportunity to
question Plaintiff‟s expert about the opinions expressed in the supplemental report. Additionally,
Defendant raised this objection nearly three months after Plaintiff‟s supplemental report was
submitted. In the face of true prejudice, Defendant would have raised this objection much
sooner than it did.
        The Court granted Defendant the opportunity to have its expert submit his own
supplemental report in response to Plaintiff‟s. The following excerpts from the February 5, 2016
motion hearing and the Court‟s February 18, 2016 decision show the fallacy of this prejudice
argument:
        Mr. Connors:             The fact that Doctor Richard said he didn‟t feel the need to
                                 add another report or, you know, a surrebuttal [sic] report,
                                 that‟s his opinion. That may not be counsel‟s opinion. I‟m
                                 not asking for that at this point in time, but there is no
                                 provision in the scheduling order for it.15

                                             *        *       *

        Mr. Connors:             Your Honor, Kevin Connors. Your Honor mentioned in
                                 the discussion here that there is sufficient time for the
                                 defense to respond to the punitive damage issue. Does
                                 Your Honor mean that defendants have the -- can submit an
                                 expert?
9
  Id.
10
   Id.
11
   Chase Manhattan Mortg. Corp., 2004 WL 422681, at *10.
12
   Id.
13
   Id.
14
   Id.
15
   Black v. Chromascape, Inc., C.A. No. S13C-04-018, at 51 (Del. Super. Feb. 5, 2016) (TRANSCRIPT).

                                                   Page 3
        The Court:               Yes. Yes, of course. Yes, of course. Of course, I expect
                                 that. What I was thinking is you would probably use the
                                 people you already have on board. That was my
                                 assumption. Yes, of course. I think -- yes, there would be
                                 time. I thought I indicated that, but if I didn‟t, I certainly
                                 meant to.

        Mr. Connors:             Okay. Thank you. I appreciate that, Your Honor.16

The Court made it abundantly clear that Defendant‟s expert could submit an additional report to
address what Plaintiff‟s expert included in his Supplemental Report. As such, the Court rejects
Defendant‟s argument that allowing Plaintiff to file an expert report after the deadline has
prejudiced its position.
        Furthermore, it was the Court‟s understanding that the parties were going to work out the
scheduling of additional expert reports and depositions amongst themselves:
        Mr. Rosner:              We will work that out among ourselves, Your Honor. I
                                 doubt there will be a need to redepose the expert, but if
                                 there is, it will be limited to whatever he may say that may
                                 appear new that we didn‟t have before, Judge, and we may
                                 need to take his short deposition hopefully, depending upon
                                 what he says, of course, since we have no idea what he is
                                 going to say. Okay. We will work that out among the
                                 parties and ask your assistant if we can‟t agree ourselves,
                                 okay, Your Honor?17

Despite this understanding, the Court received no further communications from either party
regarding this issue.
        Second, Defendant contends that the Supplemental Report should be stricken because
Eckhardt “purports to testify that [Defendant] acted with conscious indifference to the safety of
others including Plaintiff, as this opinion expresses a legal conclusion which Delaware law
prohibits.”18 Defendant‟s position corresponds with the so-called “ultimate issue rule” which has
its roots in early common law. Generally speaking, this rule prohibits an expert from stating an
opinion, conclusion, or inference where the trier of fact could make its own deductions.19



16
   Black v. Chromascape, Inc., C.A. No. S13C-04-018, at 12-13 (Del. Super. Feb. 18, 2016) (TRANSCRIPT).
17
   Id. at 13.
18
   Pl.‟s Mot. to Strike at 4.
19
   See generally 7 Wigmore, Evidence § 1918.

                                                   Page 4
However, the “ultimate issue rule” was effectively abolished in this State with the adoption of
Rule 704 of the Delaware Rules of Evidence.
        D.R.E. 704, which was modeled after the Federal Rule, states, in its entirety, “[t]estimony
in the form of an opinion or inference otherwise admissible is not objectionable merely because
it embraces an ultimate issue to be decided by the trier of fact.” “Although D.R.E. 704 allows
opinions on ultimate issues, „[t]he abolition of the ultimate issue rule does not lower the bars so
as to admit all opinions.‟ ”20 The expert‟s testimony must assist the trier of fact.21 Further, if the
probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the
testimony will be excluded.22
        To be sure, “the line between an inadmissible legal conclusion and admissible assistance
to the trier of fact in understanding the evidence or in determining a fact in issue is not always
bright.”23 Facing this issue, the Sixth Circuit concluded that “[t]he best resolution of this type of
problem is to determine whether the terms used by the witness have a separate, distinct and
specialized meaning in the law different from that present in the vernacular.                      If they do,
                                                                                        25
exclusion is appropriate.”      24
                                     In Karns v. Emerson Electric Company,                   the Tenth Circuit
discussed the line between an inadmissible legal conclusion and admissible assistance in the
context of an expert opinion that was analogous to Eckhardt‟s opinion in the present case.
        In Karns, the plaintiff, a thirteen-year-old boy, was cleaning up an overgrown yard by
picking up trash while his uncle was operating a weed-trimming and brush-cutting device.26 The
plaintiff had bent down to pick up some debris approximately eight feet behind his uncle when
the blade of the device struck something near the ground, which caused the device to swing
violently around, cutting off the plaintiff‟s right arm.27 At trial, judgment was entered in favor of
the plaintiff and the defendant appealed.28 On appeal, the defendant argued that the trial court
erred in permitting the plaintiff‟s expert to testify that the defendant acted recklessly. 29



20
   State v. Manger, 732 A.2d 234, 245 (Del. Super. 1997) (citation omitted).
21
   D.R.E. 702.
22
   D.R.E. 403.
23
   Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997).
24
   Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985).
25
   817 F.2d 1452 (10th Cir. 1987).
26
   Karns, 817 F.2d at 1454.
27
   Id.
28
   Id.
29
   Id. at 1459.

                                                     Page 5
         To begin its analysis, the Tenth Circuit explained that although Rule 704 allows experts
to render an opinion that embraces the ultimate issue, “[o]pinions embracing legal standards
may, however, be excluded for reasons, such as the likelihood of jury confusion, the danger of
unfair prejudice, or the inability of such evidence to assist the trier of fact.” 30 Upholding the
decision of the trial court, the Tenth Circuit noted that, given the technical, complex nature of the
device at issue, expert testimony would be expected to assist the trier of fact.31 Also, the legal
term, reckless, was not “so complex or shaded with subtle meaning as to be beyond the
understanding of the average person.”32 Accordingly, the Tenth Circuit found that the expert‟s
testimony did not invade the province of the jury.33
         The basic necessities of expert testimony are relevance and reliability. 34 Eckhardt‟s
Supplemental Report is both relevant and reliable. It is relevant because it will assist the trier of
fact, and it is reliable because it discusses matters beyond common knowledge. Further, the
phrases “conscious indifference to the safety of others” and “wanton disregard for safety” do not
have a separate, distinct and specialized meaning in the law different from that in present
vernacular.       These phrases are well within the understanding of the average person.
Accordingly, the Court concludes that since Eckhardt‟s Supplemental Report is “otherwise
admissible,” striking it would be inappropriate.
         Considering the foregoing, Defendant‟s Motion to Strike Plaintiff‟s Expert Report is
DENIED.
         IT IS SO ORDERED.
                                                                 Very truly yours,


                                                                 /s/ Richard F. Stokes
                                                                 Richard F. Stokes


cc:      Prothonotary‟s Office

30
   Id.
31
   Karns, 817 F.2d at 1459.
32
   Id.; but see Burkhart, 112 F.3d at 1212 (holding that it was improper to permit the expert to testify as to whether
the plaintiff had been discriminated against because “[t]he expert‟s actual testimony constituted a legal conclusion
for two reasons: it tracked the language of the statute, and the term „discrimination‟ has a specialized legal meaning
that is more precise than the lay understanding of the term”).
33
   Karns, 817 F.2d at 1459.
34
   Sweiger v. Del. Park, L.L.C., 2013 WL 6662720, at *1 (Del. Super. Oct. 8, 2013).

                                                        Page 6
Page 7
