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McFarlane v. Atlantic Budget Inn Millsboro, Inc., C.A. No. S10C-09-031 - RFS (Del. Super. Ct. Dec. 5, 2012)

Slip and Fall case dismissed where Plaintiff's causation expert failed to consider Plaintiff's preexisting medical conditions when rendering his opinion.

Plaintiff alleged that she slipped and fell on Defendant's premises on September 28, 2008. Plaintiff further alleged that she suffered a significant low back injury as a result of the September 2008 slip and fall. Ultimately, Plaintiff had two separate surgeries to her low back.

During litigation, Plaintiff identified a local neurosurgeon as the expert that would testify on her behalf regarding the causal connection of her injuries and treatment to the September 2008 slip and fall. The neurosurgeon obtained Plaintiff's medical history, as self reported by Plaintiff, during an initial visit with Plaintiff. During this initial visit, Plaintiff attributed her low back pain entirely to the September 2008 slip and fall. The neurosurgeon did not have knowledge of any low back pain complaints or treatment prior to the September 2008 slip and fall. As such, the neurosurgeon, in his expert report, opined that Plaintiff's low back injury and surgeries were directly related to the September 2008 slip and fall. Contrary to the neurosurgeon's knowledge of Plaintiff's medical history, Plaintiff had a lengthy history of low back pain, which predated the September 2008 slip and fall.

Defendant filed a motion in limine to exclude the expert testimony of Plaintiff's neurosurgeon. The Defendant argued that where a personal injury expert renders an opinion on causation without taking into account relevant prior medical history, the opinion lacks the required factual foundation to be admissible under Delaware Rule of Evidence 702. The Defendant further argued that if Plaintiff's neurosurgeon's opinion is excluded, she would not be able to establish a prima facie case of negligence against the Defendant and the case must therefore be dismissed. The Court agreed, excluded the opinion of Plaintiff's expert, and dismissed the case.

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