Eskin v. Carden, 322,2002.

• Decision Date: 13 February 2004
• Docket Number: No. 322,2002.,322,2002.
• Citation: 842 A.2d 1222
• Parties: Marla R. ESKIN, Administratrix of the Estate of Robert P. Chickadel, Defendant Below, Appellant. v. Barbara A. CARDEN, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

842 A.2d 1222

Marla R. ESKIN, Administratrix of the Estate of Robert P. Chickadel, Defendant Below, Appellant. v. Barbara A. CARDEN, Plaintiff Below, Appellee.

No. 322,2002.

Supreme Court of Delaware.

Submitted: August 5, 2003.

Decided: February 13, 2004.

Daniel L. McKenty (argued) and Steven F. Mones of McCullough & McKenty, P.A., Wilmington, DE, for appellant.

Frederick S. Freibott of The Freibott Law Firm P.A., Wilmington, DE, for appellee.

Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and JACOBS, Justices, constituting the court en banc. STEELE, Justice:

In this appeal we address for the first time whether biomechanical expert testimony may be admitted in Delaware courts to address the relationship between the physical forces involved in an automobile accident and the cause and severity of an occupant's alleged injuries. In doing so, we take the opportunity to address and clarify Davis v. Maute,¹ in an attempt to provide guidance to Delaware trial judges who are frequently called upon to consider the admissibility of proffered biomechanical expert testimony.

We hold that trial judges may admit qualified biomechanical expert testimony regarding the physical forces involved in automobile accidents and the effect on the human body those forces may produce where the relevance, reliability and trustworthiness of that testimony is established by the proffer and is not outweighed by the danger of confusion of the issues or misleading the jury. We caution that even competent, qualified biomechanical testimony may not be admissible when that testimony purports to bridge the analytical gap between an engineer's application of constants to, and a physician's artful evaluation of, a specific individual. Competent biomechanical expert testimony may be admissible, however, to impeach factual assumptions made in expert medical testimony, where the medical opinion relies on an injured party's subjective statements about the facts of an accident. Biomechanical evidence may contradict expert medical testimony under some circumstances — e.g., where, it purports to quantify the forces exerted on an individual's body during an accident, describe an individual's reaction to the forces involved in the accident, or relies upon principles of physics to rationalize causation, diagnoses, course of treatment or an opinion on permanency. We reaffirm that the longstanding standard of review of abuse of discretion applies to trial judges' rulings on the admissibility of this testimony.

We follow the holding in Davis that, absent facts that are supported by competent expert testimony, counsel may not directly argue to the finder of fact that there is a correlation between the extent of the damage to the vehicles involved in an accident and the cause or severity of personal injuries alleged from that accident.

We conclude, in the case sub judice, that the trial judge exercised reasonable discretion by granting a Motion in Limine to exclude the proffered testimony of a biomechanical expert. Under the particular circumstances of this case, a trial judge could reasonably conclude that the proffered biomechanical evidence, although superficially relevant, was neither reliable nor validated sufficiently to be deemed trustworthy. What relevance it may have had was, accordingly, outweighed by the danger of misleading or confusing the jury.

Finally, the trial judge did not abuse her discretion by denying Defendant/Appellant's Motion for a Mistrial based upon a single inadmissible statement by the Plaintiff that could have permitted the finder of fact to imply that the Defendant was suspected of driving under the influence of alcohol. The trial judge provided a curative instruction sufficient to mitigate the effects of the Plaintiff's improper comments.

Accordingly, we AFFIRM the decision of the Superior Court.

I.

On December 3, 1998, Robert Chickadel², and Appellee, Barbara Carden, were involved in a motor vehicle collision. Chickadel struck the rear-end of Carden's vehicle. After the first collision, Chickadel backed his vehicle up, stopped, moved forward, and struck Carden's vehicle again. The accident caused physical damage to both vehicles.

Carden went to the emergency room later that day complaining of a burning sensation in her lower back and tingling in her legs. She was treated and released with prescriptions for pain medication, a steroid and a muscle relaxer. On September 14, 1999, after conservative treatment and therapy had failed, Carden had back surgery. After the lawsuit was filed, the Defendant (through Eskin, his estate's administratrix) admitted liability. Consequently, the nature and extent of Carden's alleged injuries were the only issues at trial.

Before trial, Carden moved in limine to exclude the testimony of Lawrence Thibault, D.Sc., a biomechanical expert, whose report proffered the following expert opinions:

1) The forces, or "loading," of this rear-end collision were insufficient under the principles of physics and engineering to have caused the acute lumbar spine disc herniation to this individual plaintiff;

2) The loading associated with this collision was less than the loadings associated with everyday activities such as walking, bending, and lifting; and

3) The loading associated with this collision placed this incident in category AIS-1 (minor transient injuries) of the "Abbreviated Injury Scale" ("AIS") developed in a cooperative effort by the American Medical Association, the Association for the Advancement of automotive Medicine, and the Society of Automotive Engineers.

After a hearing, the trial judge granted Carden's motion to exclude the testimony. The trial judge ruled that Thibault could not testify consistently with the proffer because his opinions had no probative value and were not "tied in" with the admissible medical evidence. The trial judge further ruled that Davis v. Maute barred introduction of photographs of Carden's vehicle, because they were not supported by expert testimony that was related to an issue at trial.

Because Chickadel died before the trial, Carden was the only eyewitness to testify. On direct examination, Carden was asked whether she requested the police officer to do anything after he had talked to Chickadel. Carden responded:

I told [the police officer] I had enough. I can't take it any more. I looked at like from behind in my mirror and I could see he was talking to Mr. Chickadel and he made him blow into something.

Defense counsel objected to Carden's statement about Chickadel "blow[ing] into something" because it raised the highly inflammatory issue of alcohol, despite the fact that neither fault nor punitive damages were issues in the case. Counsel then moved for a mistrial. The trial judge denied the Motion for a Mistrial, and gave the jury an instruction directly designed to eliminate any risk of prejudice. The jury returned a $580,000 verdict for Carden.

II.

Eskin first claims the trial judge abused her discretion by excluding Thibault's proffered testimony. We review the trial judge's ruling under an abuse of discretion standard.³

A witness may testify as an expert when qualified as an expert and the trial judge determines that the witness has scientific, technical or other specialized knowledge that will assist the trier of fact in understanding evidence or in determining a fact at issue. This Court has adopted a five-step test to determine the admissibility of scientific or technical expert testimony:

The trial court must decide that: (i) the witness is `qualified as an expert by knowledge, skill experience, training or education' ...; (ii) the evidence is relevant and reliable; (iii) the expert's opinion is based upon information `reasonably relied upon by experts in the particular field' ...; (iv) the expert testimony will `assist the trier of fact to understand the evidence or to determine a fact in issue' ...; and (v) the expert testimony will not create unfair prejudice or confuse or mislead the jury.⁴

We recently held, in Davis v. Maute, that "a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue."⁵

Eskin proffered Thibault's testimony to link "the contention of slight damage to a contention tending to minimize the plaintiff's physical injuries."⁶ For that type of proffered testimony to be admitted, the proponent must first present reliable, competent expert testimony relevant to the circumstances of the particular case. Admissible biomechanical testimony bridges the gap between the general forces at work in an accident determined by physical forces analysis (whether it be "physics" or "engineering") and the specific injuries suffered by the particular person who was affected by those forces. The testimony must provide definitive evidence that the physics of a particular accident did (or did not) cause a particular injury to a particular individual. A trial judge must closely scrutinize this testimony to be confident that it is trustworthy, i.e., relevant, reliable and validated. Neither here, nor, we suspect, in most cases, will the issue be the competency of an expert or whether the field of "biomechanics" is a recognized scientific or technical field. The words of an expert qualified to opine within a recognized "field" do not automatically guarantee reliable, and therefore admissible, testimony, however. The inquiry will be whether the expert and the "field of expertise" itself can produce an opinion that is sufficiently informed, testable and in fact verifiable on an issue to be determined at trial. The trial judge must be satisfied that the generalized conclusions of the biomechanical expert are applicable to a particular individual.⁷ For example, did the expert consider the effect of pre-existing medical conditions and the unique...