Case Law » Civil Law
Experts
Perry v. Berkley, 996 A.2d 1262 (Del. 2010).
Delaware Supreme Court affirmed the trial court’s decision to exclude plaintiff’s expert testimony and dismiss her case, due to a lack of evidence of causation. Plaintiff alleged low back and neck injuries as a result of a motor vehicle accident. Plaintiff proffered one expert for trial, who admitted he was unaware of plaintiff’s pre-accident treatment records for both neck and low back injuries, in rendering his causation opinions. The trial court found that plaintiff’s expert testimony was inadmissible under Daubert v. Merril Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) and D.R.E. 702(1), for lack of factual knowledge of plaintiff’s pre-existing condition. On appeal, plaintiff argued that her expert’s lack of accurate knowledge about her pre-existing condition went to weight and credibility, rather than admissibility. However, the Court rejected this argument, reasoning that if an expert’s proposed testimony is not based upon “sufficient facts or data,” the expert must be disqualified.
Drejka v. Hitchens Tire Service, Inc., 15 A.3d 1221 (Del. 2010)
The Delaware Supreme Court reversed the Superior Court’s decision to exclude Plaintiff’s expert in a personal injury action and grant of summary judgment in favor of Defendant, Hitchens Tire Service, Inc. The Court found that the lower court’s exclusion of plaintiff’s medical expert was not warranted as a sanction for plaintiff’s discovery violation of providing defendant with an expert report five months after the deadline in the scheduling order. The Court reasoned that exclusion of plaintiff’s expert had the effect of entering a default judgment against plaintiff. As plaintiff did not appear to have any responsibility for her attorney’s conduct, and the expert report was produced over two months prior to trial, the Court held that the defendant was not severely prejudiced by the violation. There was also no evidence of bad faith on the part of plaintiff’s counsel and lower court failed to impose lesser sanctions. Therefore, the Court found the decision to grant summary judgment to be inappropriate under the circumstances. The Court further noted that if the lower court had imposed monetary sanctions for discovery violations several times, and these sanctions were not effective, the sanction of dismissal would be more supportable.
Pfizer v. Advanced Monoblock Corp., et al., 1999 WL 1240864 (Del.Super.)
This litigation stemmed from the launch and subsequent demise of a Pfizer premium women's shave cream gel. Defendant Monobloc designed and manufactured an aluminum can to package the product. Defendant Piedmont was charged with filling the cans with the propellant and inspecting and testing the cans. Serious problems developed when cans of the product were rupturing. Pfizer discontinued the product and brought this action. In one of multiple pretrial motions Defendants moved to exclude a Pfizer marketing expert's opinions on forecasted sales of the product. Defendants argued that sales projections were inflated, calculated in error, based on assumption, biased, and based on arbitrary or selective data. The Superior Court excluded the testimony noting that it was not satisfied that there was a reliable basis for the expert's opinions. The Court cited that more than speculative opinion was required when determining damages for prospective earning loss. The inherent uncertainty of the subject matter was immaterial. Reliability of the lost profits projections is essential in making a determination of lost profits.
