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

JAMAR R. HYNSON,                  :
                                  :     C.A. No: K14C-03-023 RBY
          Plaintiff,              :
                                  :
    v.                            :
                                  :
DOVER DOWNS, INC.,                :
                                  :
          Defendant.              :

                       Submitted: August 19, 2015
                       Decided: September 2, 2015


            Upon Consideration of Plaintiff’s Motion in Limine
             to Exclude Police Report and Related Testimony
                               GRANTED

          Upon Consideration of Defendant’s Motion to Exclude
             David Johnston/Motion for Summary Judgment
                               DENIED

 Upon Consideration of Defendant’s Motion in Limine to Exclude Plaintiff’s
  Expert from Referencing Articles on Statistics and Comments Regarding
                                 Alcohol
                               GRANTED

 Upon Consideration of Defendant’s Motion in Limine to Exclude Evidence
                  Regarding Security Officers’ Wages
                              GRANTED

 Upon Consideration of Defendant’s Motion in Limine to Exclude Plaintiff’s
           Expert from giving Opinions on Improper Training
                               DENIED

                                 ORDER
Scott E. Chambers, Esquire, Schmittinger & Rodriguez, Dover, Delaware for
Plaintiff.

Michael J. Logullo, Esquire, Heckler & Frabizzio, Wilmington, Delaware for
Defendant.




Young, J.




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Hynson v. Dover Downs, Inc.
C.A. No.: K14C-03-023 RBY
September 2, 2015

                                   SUMMARY
       Jamar Hynson (“Plaintiff”) and James Downes (“Downes”) spent the
evening of May 17, 2013 at Dover Downs, Inc.’s (“Defendant”) Casino in Dover,
Delaware. Plaintiff alleges that, upon their leaving, the pair was attacked by
unknown assailants. Plaintiff claims that he sustained injuries in the assault as a
result of inadequate security measures taken by Defendant. Plaintiff filed suit
alleging negligent failure to protect a business patron against third party criminal
activity.
       Following extensive discovery, including the deposition of Plaintiff’s expert
witness, David Johnston (“Johnston”), both parties have moved to exclude various
testimonies and pieces of evidence. There is a total of five motions in limine, plus
one summary judgment motion, accompanying one of the motions in limine. Upon
consideration of these motions, and the record in this case, the Court finds the
following.
                              FACTS AND PROCEDURES
       On the evening of May 17, 2013, Plaintiff and his companion Downes were
patrons at Defendant’s Casino. Specifically, Plaintiff claims he and Downes spent
the night at Doc Magrogan’s restaurant, located on the premises. Plaintiff asserts
that neither he nor Downes consumed any alcohol at the restaurant. It is alleged
that, at some juncture, Downes exchanged unpleasantries with some other
customer at the Casino. After spending most of the evening at the Casino, at
around 1:14 a.m. the next morning, Plaintiff and Downes left through the west
entrance doors. Upon exiting, Downes was assaulted and knocked unconscious by

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an unknown assailant, followed by a similar attack on Plaintiff. Plaintiff’s attacker
or attackers are, also, unknown. As a result of the incident, Plaintiff purportedly
suffered a fractured mandible and head injury.
      Plaintiff filed suit against Defendant on March 14, 2014. Substantial
discovery has taken place, including the deposition of Plaintiff’s expert Johnston,
held on July 27, 2015. Trial is scheduled for October 2015.
                                    DISCUSSION
      Plaintiff claims that his injuries, allegedly sustained from the attack by
unknown assailants, was the direct result of an inadequate security program at
Defendant’s establishment. Plaintiff asserts Defendant was negligent in not
preventing the criminal conduct of the unidentified third parties. After over a year
of discovery, Plaintiff’s case approaches trial. Various depositions and other
pieces of evidence have been compiled, the admissibility of which, presently,
require the Court’s attention. A total of five motions in limine have been filed by
the parties, as well as a motion for summary judgment, attached to one of the
motions in limine. The Court addresses each in turn.
I. Plaintiff’s Motion in Limine to Exclude Police Report
      In a clear attempt to dispute Plaintiff’s version of the events of that fateful
evening – to wit, that he and his companion were innocent victims attacked by a
group of assailants in a fit of rage – Defendant seeks to admit the police report and
testimony of an officer, implicating Plaintiff in a later charge for resisting arrest.
The police report and officer’s testimony detail an incident occurring several
months after the events forming the basis of Plaintiff’s claim, in which Plaintiff

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Hynson v. Dover Downs, Inc.
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allegedly behaved in a disorderly manner at the scene of a house party. There is
some indication that Plaintiff’s conduct in that later event was fueled by alcoholic
consumption. Plaintiff moves to exclude the evidence comprising his charge for
resisting arrest, on the grounds that it is not relevant, and is, further, improper
character evidence.
      Delaware Rule of Evidence (“D.R.E.”) 402 provides, in short, that evidence
which is not relevant is not admissible. Relevant evidence is defined by D.R.E.
401 as: “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Plaintiff argues that this later charge is
neither relevant to the alleged attack nor relevant to the negligence on the part of
Defendant, in failing to protect him from the criminal acts of third parties.
      On the contrary, physical altercations in which the Plaintiff was involved, in
similarly recreational settings, could go to the credibility of Plaintiff’s version of
events at Dover Downs, that he was an innocent victim in the assault. Plaintiff
alleges that his companion’s disagreement with some other patrons led to the full
blown assault. Plaintiff’s remaining detached or disinterested in this heated
exchange could be a significant question. Thus, the defense might argue that
Plaintiff’s charge for resisting arrest at a rowdy party could reflect on an issue of
comparative negligence in the instant matter.
      Nevertheless, although relevant, that does not mean the police report or




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Hynson v. Dover Downs, Inc.
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September 2, 2015

related testimony are admissible.1 First, the D.R.E. 403 issue arises. Hence,
although relevant, evidence may be excluded if its probative value is substantially
out weighed by the danger of unfair prejudice, and so forth. That is a significant
factor here. It need not require extensive analysis, however, because of the effect
of D.R.E. 404, which provides that, as a general rule, evidence of character is
inadmissible. Specifically, courts are concerned with excluding evidence of a
party’s “propensity to commit crimes, or his general bad character,” as it is
“inconsistent with the presumption of innocence.”2 These worries arise
predominantly out of situations involving criminal defendants, but, the exclusion
of evidence of bad character has been extended to civil cases as well.3 Therefore,
in order for Plaintiff’s subsequent charge to enter into evidence, it must meet one
of the accepted exceptions to the general rule of exclusion.
       Evidence of bad acts is normally admitted in two factual situations. “The
first involves the use of prior acts which are so unusual and distinctive that their
relationship to the [relevant conduct in the case at issue] may establish identity.”4
“The second basis for admissibility of the other bad acts under the plan or scheme
exception is where the other acts form part of the background of the alleged act, to

       1
         Minnick v. State, 541 A.2d (Del. 1988) (recognizing relevancy determination as the
“threshold test”).
       2
           Getz v. State, 538 A.2d 726, 731 (Del. 1988).
       3
         Brett v. Berkowitz, 1995 WL 270146, at *7 n.6 (Del. Super. Ct. Apr. 13, 1995) (“the
guidelines regarding the admissibility of evidence under D.R.E. 404(b)...are applicable to civil
cases”).
       4
           Id., at *7(internal quotations omitted).

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Hynson v. Dover Downs, Inc.
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September 2, 2015

which it is inextricably related and without which a full understanding of the
charged offense is not gained.” 5 Neither of these two exceptions is applicable to
Plaintiff’s claim, nor to the circumstances alleged in his complaint.6
       The Court notes that there is an additional instance in which character
evidence may be introduced against a party. Where the party “wishes to introduce
character, reputation, or general practice”evidence, then the opposing side may do
so as well.7 At the present time, Plaintiff has made no indication that he so desires.
Therefore, until that time when Plaintiff opens the door, so to speak, to pertinent
character evidence, Defendant may not introduce the police report, or any other
forms of evidence relating to Plaintiff’s penchant for disorderly conduct. Subject
to such an opening, Plaintiff’s motion is GRANTED.
II. Defendant’s Motions in Limine & Motion for Summary Judgment
  a. Defendant’s Motion in Limine to Exclude Expert David Johnston/Motion for
  Summary Judgment
       In support of his negligence claim against Defendant, Plaintiff has retained
an expert witness, Johnston. Johnston produced an expert report, which, among
other things, asserts that Defendant did not provide adequate security measures to
prevent the alleged criminal act of a third party alleged to have been suffered by
Plaintiff. Johnston is a “Board Certified Protection Professional,” with fifty-plus

       5
           Id.
       6
         Nor are the other recognized exceptions to the prohibition of character evidence
applicable, e.g., intent, motive. Brett, 1995 WL 270146 at *7.
       7
           Brett, 1995 WL 270146 at *8.

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years of experience in the security field. He has also, purportedly, testified as an
expert witness in another Superior Court case.8
         Defendant asserts that Johnston is not qualified to testify as an expert
witness in this case. Defendant bases this argument on, more or less, three
grounds. The first argues that Johnston did not base his opinion on proper factual
foundation. Citing to Johnston’s deposition testimony, Defendant asserts that
Johnston did not review the Delaware Lottery Regulations, and failed to perform a
risk assessment in coming to his conclusions. As to the Lottery Regulations,
Defendant contends that Johnson is, indeed, prohibited from active surveillance
monitoring outside of the Casino, in the area of the alleged attack. It is
Defendant’s position that this a crucial factor, neither addressed nor known by
Johnston, demonstrating that his opinion is based on pure speculation.
         The second reason articulated by Defendant for the inadmissibility of
Johnston’s testimony is that Johnston does not have experience working for the
security department of a casino. The lack of such experience is said to disqualify
him from providing expert testimony.
         Lastly, Defendant takes issue with the methodology employed by Johnston.
Pointing, again, to the failure to review the Lottery Regulations, and failure to
conduct a risk assessment, Defendant argues that Johnston has solely based his
findings on his “experience,” which, as mentioned, Defendant avers is not
applicable to casino security. Defendant, thus, moves for summary judgment.


         8
             See Rogers v. Delaware State Univ., 2007 WL 625060, at *1 (Del. Super. Ct. Feb. 28,
2007).

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      Contending that the testimony is inadmissible, Defendant continues this line
of argument further, stating that without a liability expert, Plaintiff cannot sustain
his claim: “it is settled law in Delaware, that the standard of care applicable to a
professional can be established only through expert testimony.”9 Where such
testimony is lacking, “a motion for summary judgment will be granted.” 10
      When considering the admissibility of expert testimony, the Court is to act
as a “gatekeeper” to determine whether “expert’s opinion [is] based upon proper
factual foundation and sound methodology.”11 D.R.E. 702 requires that witnesses
providing scientific or technical testimony be qualified. The Delaware Supreme
Court has established a five-step test to determine admissibility of scientific or
technical expert testimony:
    (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 the
    particular field; (4) the expert testimony will assist the trier of fact to
    understand the evidence or to determine a fact in issue; and (5) the expert
    testimony will not create unfair prejudice or confuse or mislead the jury.12
Importantly, the expert’s method must not be derived from “subjective belief
or speculation.”13 With these several factors in mind, the Court addresses


      9
          Citing Robinson v. J.C. Penny Co., 977 A.2d 899 (Del. 2009).
      10
           Id.
      11
           Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010).
      12
           Bowen v. E.I. DuPont Nemours & Co., 906 A.2d 787, 795 (Del. 2006).
      13
           Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1210 (Del. 2002).

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Defendant’s contentions.
      With regard to the notion that Johnston’s testimony is not based in
proper factual foundation, the Court finds that the two considerations lacking
from Johnston’s opinion (Delaware Lottery Regulations and risk assessment)
speak more to his credibility, than to the admissibility of his findings: “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.” 14 Indeed, although Johnston did not review the factors
that Defendant finds to be critical, he did study other, extensive sources of
information relating to security procedures. For example, Plaintiff presents
Johnston’s testimony as stemming from “review[ing] the extensive material
available, including crime data, Dover Downs’ security program, the security
officer’s deposition testimony....[which] he applied...to the facts surrounding
Mr. Hynson’s assault...”15 This appears to be sufficient, adequate ground upon
which to form an opinion.
      Defendant’s argument as to Johnston’s background is unavailing.
Although Johnston may never have been employed by a casino, he has fifty-
plus years of security experience and is a “Board Certified Protection

       14
            Perry, 996 A.2d at 1271 (emphasis added).
       15
          Plaintiff’s Opposition to Defendant’s Motion in Limine to Exclude Johnston’s
Testimony, at ¶ 10. In addition, Johnston’s Report indicates his reliance on “fifty-plus years of
professional, hands on experience in related security management and risk assessment matters,
participation with and/or study of relevant research in the field of Security Management, reliance
upon an extensive body of knowledge, and benchmarking similar environs with regard to apply
standard security practices.” Ex. F to Plaintiff’s Opposition, at p.6.

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September 2, 2015

Professional” in the field. The Supreme Court has articulated that the
preparation necessary to testify as an expert stems from “knowledge, skill,
experience, training, or education.”16 To the extent he has not worked in a
casino, Johnston has supplemented this lack of experience by education.
Though opening Johnston to more cross-examination, that will not disqualify
him.
       Defendant’s assertion that Johnston’s methodology was speculative and
unsound is not persuasive. The Rogers v. Delaware State University Court,
before which Johnston appeared previously as an expert in Delaware,
recognized that his “adequate” foundation “imparts an objective and sound
methodology.”17 Likewise, in the case at bar, the Court has determined that
Johnston reviewed extensive materials, pointing to a proper foundation.
Moreover, Johnston employed a similar method in Rogers,18 which that Court
acknowledged “appears to be the exact type relied upon by other experts in the
security field.”19 There is no reason to find that Johnston employed speculative
methods, untested in the field.


       16
            Bowen, 906 A.2d at 795.
       17
            2007 WL 625060 at *2.
       18
          “[t]he underlying factual basis for Mr. Johnston’s opinions...was his examination of
DSU’s reported crime and incident data, and an examination of DSU’s current security program.
Mr. Johnston applied this data and information to the facts of the case, and relied upon several
authoritative texts, treatises, and reports as an foundation for his opinions.”2007 WL 625060 at
*2.
       19
            Rogers, 2007 WL 625060 at *2.

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      With respect to the remaining factors designated by the Supreme Court,
the Court finds Johnston’s testimony satisfies the standard. Johnston’s
testimony is relevant. Plaintiff’s claim rests almost entirely upon the assertion
that Defendant employed inadequate security procedures. Expertise concerning
the reasonable standard of care in security monitoring is directly on point. In
the same vein, Johnston’s opinion is helpful to the trier of fact in determining
whether Defendant should have done more to protect Plaintiff from the alleged
assault.
      The Court finds that Johnston is qualified to present expert testimony as
to the security procedures employed by Defendant. Therefore, Defendant’s
motion in limine is DENIED. In addition, given Plaintiff’s retention of a
qualified liability expert who will testify as to this matter, Defendant’s motion
for summary judgment is, also, DENIED.
   b. Defendant’s Motion in Limine to Exclude Alcohol and Crime Statistical
   Testimony
       Part of Johnston’s expert testimony is that there is a link between
alcohol consumption and crime rates. Johnston relies upon statistical data to
support this assertion. Defendant moves to exclude this evidence, arguing it is
not relevant, pursuant to D.R.E. 402, and that its probative value is far
outweighed by the risk of jury confusion and prejudice, under D.R.E. 403.
       The resolution of this dispute depends upon what the core of Plaintiff’s
claim is, that is, Plaintiff’s theory of the case. As per Plaintiff’s Complaint, it
is alleged that Defendant owed a duty to Plaintiff, and other business invitees,


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September 2, 2015

to protect against foreseeable third party criminal acts. Plaintiff further avers
that, at the time of the incident, the security procedures in place were woefully
inadequate. As a result, Plaintiff claims that he suffered personal injury from
the criminal attack by unidentified third parties. In failing to prevent the
attack, Defendant is alleged to have breached his duty to Plaintiff.
      The Delaware Supreme Court has articulated that a proprietor’s duty to
protect patrons against the acts of third parties arises from prior “incidents of
criminal activity.”20 Such prior occurrences may make it foreseeable that
further third party criminal activity may occur, and proprietors are to take
reasonable care to prevent it.21 Importantly, the prior criminal activity is that
which occurs “on the premises...[establishing] the circumstantial setting in
which security needs are measured.”22 This is a significant point, as the
statistical evidence Johnston relies upon is general, rather than specific to the
Dover Downs Casino or the surrounding area. The broad statement that the
consumption of alcohol leads to criminal activity by third parties is not
applicable to a negligence standard that creates a duty, based upon prior
violent acts on the premises in question. These concerns go to the issue of
relevance. It is not clear how the trier of fact will be helped in determining
Defendant’s duty, with these general statistical findings. Such data does not
create the foreseeability defined by the Supreme Court. Had Johnston

      20
           Jardel Co., v. Hughes, 523 A.2d 518, 525 (Del. 1987).
      21
           Id.
      22
           Id., at 526 (emphasis added).

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Hynson v. Dover Downs, Inc.
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reviewed local incident reports involving criminal acts by impaired, drunken
patrons, this Court could perceive a relevancy, had alcohol been involved in
this matter.
      However, Plaintiff does not allege by his Complaint that alcohol was a
contributing factor in his assault. Thus, the presence of alcohol cannot be tied
to Defendant’s negligence. Plaintiff maintains that neither he nor his
companion consumed alcoholic beverages on the night of the melee. As the
alleged assailants remain unidentified, there is, further, no evidence that the
attackers were under the influence. Even if Johnston’s statistics are taken at
face value, they have little to do with the factual circumstances as represented
in Plaintiff’s Complaint. Even statistics specific to Defendant’s own
establishment involving instances of alcohol induced brawls may not be on
point or relevant, given that alcohol does not appear to be a factor in Plaintiff’s
allegations.
      There is, further, the concern expressed by D.R.E. 403 that, where the
probative value of evidence is greatly outweighed by risk of jury confusion or
prejudice, such evidence should be excluded. Given the duty of care standard
applicable to proprietors’ and third party acts requiring future foreseeable
conduct, these general statistical findings may confuse the jury as to the issues
in this case. Defendant cites to the proposition of the Supreme Court in
Timblin v. Kent Gen. Hosp. that “evidence of statistical probability creates a
significant risk of jury confusion and unfair prejudice because such evidence
may lead a jury to decide a case based on what happens normally rather than


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Hynson v. Dover Downs, Inc.
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September 2, 2015

what happened in the case before it.”23
      Plaintiff contends that Timblin is inapposite, as it is a medical
malpractice claim.
      The Court sees no real distinction here. As the Timblin Court stated “[a]
plaintiff in a medical malpractice action must prove that the doctor’s
inadequate treatment was the proximate cause of the patient’s injury...”24
Much the same theory underlies Plaintiff’s negligence suit. Plaintiff must
prove that Defendant’s inadequate security procedures were the proximate
cause of harm, resulting from the foreseeable criminal acts of third parties. At
their core, these two actions are the same. Therefore, the potential of general
statistical evidence misleading the jury is equally applicable to the case at bar.
      As regards the statistical evidence concerning alcohol and crime rates,
since this data is not specific to the premises in question, the jury may very
well misguidedly focus upon that data in finding previous incidents of
criminal activity, where, potentially, there are none. These findings are not
meant to show that, on prior occasions, other patrons of Defendant’s
establishment have been attacked by intoxicated assailants frequenting the
casino. Rather, the statistics are meant to show that alcohol, in a broad sense,
causes violence. This is not relevant to the duty owed by Defendant to
Plaintiff. Defendant was to protect Plaintiff, and other business invitees, from
foreseeable acts by third parties. Lastly, as Plaintiff has not alleged alcohol

      23
           640 A.2d 1021, 1025 (Del. 1994).
      24
           Id., at 1024.

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was a contributing factor in the assault, such information may wrongly
prejudice the jury to believe otherwise.
        Johnston’s testimony regarding the correlation between criminal acts
and alcohol consumption is not relevant to the facts and legal theory pleaded
in Plaintiff’s Complaint. Moreover, these widespread statistics create a true
possibility of jury confusion. Thus, Defendant’s motion in limine regarding
the alcohol testimony is GRANTED.
 c. Defendant’s Motion in Limine to Exclude Security Officers’ Wages
       One of the deponents in the instant matter, John Hardy (“Hardy”), was
formerly a Security Officer employed by Defendant. At the time of the
incident in question, Hardy was stationed near the area of the attack, and was
one of the responding officers. During the course of his deposition, testimony
was elicited as to Hardy’s hourly wage, stated to be $10.00 per hour. Hardy,
additionally, testified that he was not willing to engage with brawling patrons
for such a level of pay. Defendant moves to exclude evidence of Defendant’s
security officers’ hourly wages, arguing these figures are irrelevant, creating
the high chance of jury confusion and prejudice. Plaintiff responds that the
low wages and resulting low morale point to the inadequate security
procedures in place.
       The Court notes that $10.00 per hour is above the minimum wage in
Delaware.25 Moreover, the views expressed by Hardy that he was unwilling to,


       25
           At present, the minimum wage in Delaware is $8.25.
http://dia.delawareworks.com/labor-law/minimum-wage.php.

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in essence, perform the functions of his employment, because he was
unsatisfied with his earnings, may reflect more upon a work ethic, than
anything else. The wages that he and other security officers earned while
employed by Defendant are not relevant to the issue at hand. The question is
whether the security mechanisms of Defendant’s establishment were sufficient
to prevent foreseeable third party criminal actions. As regards the security
officers, the trier of fact might relevantly be helped by learning of the type and
extent of training or preparation that the officers received, rather than the
wages that they earned.
      Additionally, any wage level information may confuse or prejudice the
jury. Plaintiff, by his own admission, seeks to enter this salary figure into
evidence in order to paint Defendant as paying his security officers poorly.
However, Defendant’s wage practices are not at issue in this case. Instead, it is
Defendant’s security procedures that are on trial. The admission of such
evidence would work to take attention away from what is really at issue.
Defendant’s motion is GRANTED.
 d. Defendant’s Motion in Limine to Exclude Improper Training Evidence
      During his deposition, held on July 27, 2015, Plaintiff’s expert Johnston
testified to the purportedly insufficient training received by the security
officers employed by Defendant. Defendant objects to this testimony, arguing
that the assertion of improper training appeared, for the first time, in this
deposition. The Court understands Defendant’s contention to be that this
opinion was not properly and timely disclosed. The discovery deadline closed


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Hynson v. Dover Downs, Inc.
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on August 3, 2015. Defendant seeks to exclude the testimony regarding the
officers’ training, as Defendant did not have time to procure rebuttal testimony
from its own expert witness.
       In response, Plaintiff references several occasions during which the
training allegations were made. Most notably, Plaintiff points to his
Complaint, whereby he pleaded the following: “[Defendant] failed to
establish and/or enforce internal operating standards and procedures
designed to protect Defendant’s customers, including Plaintiff, from
foreseeable criminal assaults...”26 It is Plaintiff’s position that this language,
inherently, encompasses allegations of improper training. Plaintiff also cites to
language in Johnston’s expert report, which speaks to the below-standard
security procedures in place at Defendant’s Casino.27 In addition, Plaintiff
asserts that the deposition testimonies of a number of other witnesses, elicited
prior to Johnston’s deposition, included assertions of inadequate security
officer preparation.
       Superior Court Civil Rule 26 requires that each party disclose its
respective experts, the experts’ opinions, and the bases for these opinions, “so
that the opposing party can properly prepare for depositions and trial.”28 That
is, “[i]t is not reasonable to require [opposing] counsel to go on a wild goose

       26
         Plaintiff’s Opposition to Defendant’s Motion to in Limine to Exclude Improper
Training Testimony, at ¶ 2 (emphasis in the original).
       27
        See Ex. B to Defendant’s Motion to in Limine to Exclude Improper Training
Testimony.
       28
            Sammons v. Doctors for Emergency Servs. P.A., 913 A.2d 519, 530 (Del. 2006).

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chase with [adversary’s] experts or to depose [adversary’s] experts without the
benefit of having the opinions and medical or scientific reasoning for these
opinions.”29
      The disagreement between the parties concerns the level of specificity
required by expert disclosures. Both Plaintiff’s Complaint and Johnston’s
expert report speak to security standards and procedures. This language is very
broad, and can be argued to apply to a wide range of testimony – including
that pertaining to the officers’ preparation and education. Indeed, in
considering, supra, the type of relevant testimony regarding the security
officers employed by the Defendant, this Court recognized that the training
received is more relevant than the wages paid.
      The Delaware Supreme Court in Sammons v. Doctors for Emergency
Servs. P.A. stated merely that “do[ing] [nothing] more than...identify[ing]...
expert witnesses and then [opposing side] could take depositions to learn what
those opinions might be” was insufficient as an expert disclosure.30 Clearly,
Plaintiff has done much more in the way of disclosure than the litigant in
Sammons. However, neither the Complaint, nor Johnston’s expert report
expressly states that Defendant’s security officers were improperly trained.
      It is generally accepted in Delaware that the substance of an expert’s
opinion may be “explored thoroughly by counsel at deposition” and that
“[t]his is a proper means by which to obtain from an expert a detailed preview

      29
           Id., at 529.
      30
           913 A.2d at 529 (internal quotations omitted).

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of the testimony the expert will offer at trial.”31 Therefore, as it was revealed,
albeit generally, that Johnston would be testifying as to the efficacy of the
security program in place at Defendant’s casino, prior to the deposition, his
statements concerning the officers’ training were not so unexpected as to lead
Defendant on a “wild goose chase.”32 Furthermore, the deposition was an
appropriate place for the procurement of a “detailed preview” of Johnston’s
trial testimony.33 Stated more precisely, it is permissible for a deponent to
expound upon, with more specificity, the exact substance of his expert opinion
at his deposition.
       The Court, therefore, DENIES Defendant’s motion in limine,
permitting the admission of Johnston’s testimony as to the allegedly
ineffective training received by Defendant’s security officers. However, the
Court notes Defendant’s concern of not having had time to procure rebuttal
testimony. Thus, Defendant may request an extension of time to do so, to
which Plaintiff may, of course, respond.
                                    CONCLUSION
       For the foregoing reasons the Court: 1) GRANTS Plaintiff’s motion in
limine to exclude the police report and related testimony; 2) DENIES
Defendant’s motion in limine to exclude Johnston’s expert testimony/motion for


       31
         Simmons v. Bay Health Med. Ctr., Inc., 2007 WL 4237723, at *3 (Del. Super. Ct. Nov.
30, 2007).
       32
            Sammons, 913 A.2d at 529.
       33
            Simmons, 2007 WL 4237723 at *3.

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Hynson v. Dover Downs, Inc.
C.A. No.: K14C-03-023 RBY
September 2, 2015

summary judgment; 3) GRANTS Defendant’s motion in limine to exclude
alcohol and crime statistical testimony; 4) GRANTS Defendant’s motion in
limine to exclude security officers’ wages; and 5) DENIES Defendant’s motion
in limine to exclude testimony of improper training.
      IT IS SO ORDERED.
                                           /s/ Robert B. Young
                                                      J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
     File




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