Minner v. American Mortg. & Guar. Co.

• Decision Date: 17 April 2000
• Docket Number: C.A. No. 96C-09-263-WTQ.
• Citation: 791 A.2d 826
• Court: Delaware Superior Court
• Parties: Brenda MINNER, Hillard Muttart, Linda Brennan and James Brennan, Plaintiffs, v. AMERICAN MORTGAGE & GUARANTY COMPANY, a Delaware Corporation, and Emory Hill Management Company, a Delaware Corporation, Defendants.

791 A.2d 826

Brenda MINNER, Hillard Muttart, Linda Brennan and James Brennan, Plaintiffs, v. AMERICAN MORTGAGE & GUARANTY COMPANY, a Delaware Corporation, and Emory Hill Management Company, a Delaware Corporation, Defendants.

C.A. No. 96C-09-263-WTQ.

Superior Court of Delaware, New Castle County.

April 17, 2000.

Robert Jacobs, Esquire, and Thomas Crumplar, Esquire, Jacobs & Crumplar, Wilmington, Delaware, Attorneys for Plaintiffs.

Vincent A. Bifferato, Jr., Esquire, Bifferato, Bifferato & Gentilotti, Wilmington, Delaware, John Parker Sweeney, Esquire, and Tara Sky Woodward, Esquire, Miles & Stockbridge, Baltimore, Maryland, Attorneys for Defendants.

OPINION AND ORDER

QUILLEN, J.

This is the Court's Opinion and Order on Plaintiffs' and Defendants' respective Motions in Limine to exclude certain expert witnesses. There are twelve Motions. For the reasons stated herein, the two Plaintiffs' Motions are DENIED, one of the Defendants' Motions is GRANTED, seven Defendants' Motions are DENIED in part and GRANTED in part, and two Defendants' Motions are DENIED. An additional Motion by Defendants to strike an affidavit is considered moot.

FACTUAL OVERVIEW

This case is a so-called "sick building" case. Plaintiffs Hillard Muttart, Linda Brennan and Brenda Minner have filed suit claiming that, while they were working for the Greenwood Trust Company at the Discover Card building, located at 12 Reads Way, New Castle, Delaware, they suffered various illnesses as a result of the conditions in the building.¹ Greenwood Trust leases the building from the owners, Defendant American Mortgage & Guaranty Company ("AMGC"). The other remaining Defendant, Emory Hill Management Corporation, manages the building for AMGC.

This case deals with complex medical and psychological conditions the Plaintiffs claim they have suffered as a result of the conditions in this building. As noted, the Plaintiffs and Defendants have filed twelve Motions in Limine, attempting to exclude the others' expert witnesses. This is the Court's Opinion on the Motions before it.

EXPERT TESTIMONY

Expert evidence can be both powerful and misleading because of the difficulty in evaluating it. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). The identification of which expert testimony should be allowed is a hazardous and ill-defined enterprise. Stephen D. Easton, "Yer Outta Here!" A Framework for Analyzing the Potential Exclusion of Expert Testimony Under the Federal Rules of Evidence, 32 U. Rich. L.Rev. 1, 4 (1998). But, "[n]o one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best." Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 40 (1901) (hereinafter "Hand at ___"). Although the United States Supreme Court² has, in the recent cases of Daubert and Kumho Tire Co., Ltd. v. Carmichael,³ for the moment, pronounced the way that Trial Judges should handle questions of expert testimony, a review of the historical precedent is still useful to provide background on how Courts have struggled with the need for expert help. Certainly, our present method of using experts as witnesses was not the earliest or only means used. Hand at 42. And, all one must do is look to the yellowing pages of the early volumes of the Harvard Law Review to determine that the subject was of great debate at the turn of the Twentieth Century. See generally, William L. Foster, Expert Testimony, — Prevalent Complaints and Proposed Remedies, 11 Harv. L.Rev. 169 (1897).

Courts have particularly struggled with how expert testimony should be used in the context of a jury trial. Learned Hand writes that in early times, before trial by jury was substantially developed, there appears to have been two modes for the use of expert testimony. Hand at 40. The first method, as described by Hand, was to select jurymen who possessed experiences which were especially fitted to the class of facts which were before them. Id. The second method was for the Court to call before it the aid of skilled persons whose opinions it might adopt or not as it pleased. Id. See also, 7 John H. Wigmore, Evidence § 1917 (Chadbourn rev.1978) (hereinafter "Wigmore, Evidence § ___"). The first method described above is the so-called "special jury."

Special juries were basically juries of people who were particularly qualified to decide a case. These special juries were exceedingly common in London throughout the Fourteenth Century in trade disputes. Hand at 41.⁴ To assemble a special jury, the mayor would be called upon to summon a jury of men of the particular trade in question and those tradesmen decided whether the Defendant had offended the trade regulations. Hand at 41. This special jury process continued into the Eighteenth Century. In his commentaries, Blackstone describes the special jury process:

Special juries were originally introduced in trials at bar, when the caufes were of too great nicety for the difcuffion of ordinary freeholders; or where the fheriff was fufpected of partiality, though not upon fuch apparent caufe, as to warrant an exception to him ... either party is intitled upon motion to have a fpecial jury ftruck upon the trial of any iffue, as well as the affifes as at bar; he paying the extraordinarily expenfe, unless the judge will certify ... that the caufe required fuch fpecial jury.⁵

3 William Blackstone, Commentaries, *357-58.

In Blackstone's time, the mid-Eighteenth Century, when a special jury was called, the Prothonotary or other proper officer of the Court appeared with the freeholder's book and, in the presence of the attorneys, indifferently took the names of 48 of the freeholders. Id. at 358. Each of the attorneys were able to strike 12 of the jurors, and the remaining 24 constituted the panel. Id. at 358.

The practice of special juries is part of Delaware law. Delaware's special jury practice is "noted in several of Delaware's oldest reported cases decided shortly after the American Revolution." Haas v. United Technologies Corp., Del.Supr., 450 A.2d 1173, 1182 (1982) (citing Burton's Lessee v. Prettyman, Del.Supr., 1 Del. Cas. 11 (1793); Newbold's Lessee v. Stockley, Del. Supr., 1 Del. Cas. 10 (1783); Polk's Lessee v. Ross, Del. Com. Pl., 1 Del. Cas. 40 (1794)). The practice of striking special juries was codified in Delaware in 1810 by statute, but it did no more than codify into statutory law a practice long followed in Delaware Courts as a part of the legal heritage from England. See Nance v. Rees, Del.Supr., 2 Storey 533, 161 A.2d 795, 798 (1960)

. That statute exists still today in a modified form; a special jury can only be used for complex civil cases. See 10 Del. C. § 4506; Super. Ct. Civ. R. 40(b).⁶ Since 1987, the parties no longer have a right to a special jury upon application; the Court, as a matter of discretion, may order a special jury on the application of a party. Compare 10 Del. C. § 4506 with the former 10 Del. C. § 4511(a) as it appeared in the 1953 Delaware Code Annotated; see David L. Finger & Louis J. Finger, Delaware Trial Handbook, § 6:14 (1994).

Delaware Courts have never favored applications for special juries. See O'Mallie v. Harlan & Hollingsworth Corp., Del. Super., 6 Boyce 312, 99 A. 428 (1916).⁷ But, in the memory of some of us, it was still quite common for special juries to be requested in significant monetary cases. These relatively recent cases would include expert testimony as well.⁸ Given the expense of a special jury, concern arose over the economic and democratic implications of a jury for the wealthy. And the Twentieth Century, with its industrial, technological, medical, and scientific developments, made the hope of a jury of renaissance men and women a somewhat difficult one.

The second early method as described by Hand was to call before the Court the aid of skilled persons. Hand at 40. Experts were thought of as being helpers to the Court and the Court instructed the jury on the points on which such aid was furnished. 7 Wigmore, Evidence § 1917 (quoting James Bradley Thayer, A Selection of Cases on Evidence 672, note (2d ed.1990)). This type of testimony, in its original and long persisting form, was hardly regarded as evidence to the jury, but as an aid sought by the Court, and thus collateral to and parallel with the jury itself. 7 Wigmore, Evidence § 1917. But by the latter part of the 1700s, the expert took his place as a mere witness to the jury. Id. Members of the Bench and Bar have, for some time, turned their focus to the more sophisticated use of specialized expert witness testimony in the type of cases where special juries and advisory experts may have been formerly used. An expert is a person specially qualified in a field of knowledge. William A. Stern, Getting the Evidence, 240 (1936). The term "expert," from experti, signifies instructed by experience. Dole v. Johnson, N.H.Supr., 50 N.H. 452 (1870)(discussing the meaning of "expert" in the 1870s). It appears that throughout the history of the American legal process, expert witnesses have played an important role. One early United States case dealing with expert testimony was decided in Pennsylvania in 1803. The entire opinion of the Pennsylvania Supreme Court in that case read:

Mere abstract opinion is not evidence; but a surveyor, or any other person conversant in the subject, may state facts, and his opinion on those facts, to enable the jury to form a correct judgment of the matter in dispute. It is general information in a question of science, which others unacquainted with the subject must necessarily want. Thus a physician, who has not seen the particular patient, may, after hearing the evidence of others, be

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