Perry v. Berkley

• Decision Date: 11 May 2010
• Docket Number: No. 445,2009.,445
• Citation: 996 A.2d 1262
• Parties: Linda S. PERRY, Plaintiff Below, Appellant,v.Kristin M. BERKLEY, Marie M. Rinehart, Harold M. Williams, and Nationwide Insurance Company, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

996 A.2d 1262

Linda S. PERRY, Plaintiff Below, Appellant,v.Kristin M. BERKLEY, Marie M. Rinehart, Harold M. Williams, and Nationwide Insurance Company, Defendants Below, Appellees.

No. 445, 2009.

Supreme Court of Delaware.

Submitted: April 13, 2010.

Decided: May 11, 2010.

Court Below-Superior Court of the State of Delaware, in and for New Castle County, C.A. No. 06C-07-246.

Upon appeal from the Superior Court. AFFIRMED.

Michael I. Silverman, Esquire, Silverman McDonald & Friedman, Wilmington, Delaware, for appellant.

Colin M. Shalk, Esquire (argued), Joshua H. Meyeroff, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware, for appellees, Kristin M. Berkley and Marie M. Rinehart.

Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.

HOLLAND, Justice:

This is an appeal from a final judgment entered by the Superior Court. This matter involves a claim for personal injuries filed by the plaintiff-appellant, Linda S Perry (“Perry”) against the defendants-appellees, Kristin M. Berkley (“Berkley”) and Marie M. Rinehart (“Rinehart”) as a result of a three-car accident that occurred on December 10, 2005. Perry initially filed a complaint that alleged negligence against Berkley and negligent entrustment against Rinehart. The Superior Court permitted Perry to file an amended complaint in which she added an additional defendant, Harold M. Williams (“Williams”) and asserted a claim of negligence against him.¹ The Superior Court also permitted Perry to file a second amended complaint to include Nationwide Insurance Company (“Nationwide”) as a defendant. Perry asserted a claim for uninsured motorist benefits against Nationwide.

The defendants filed a motion in limine seeking to exclude any testimony by Perry's expert witness, Dr. Matthew Eppley (“Dr. Eppley”), and any testimony from Perry regarding her subjective opinion as to the significance to her alleged injuries of the several impacts during the three-car accident. The Superior Court denied the defendants' motion in limine in part and granted the defendants' motion in limine in part. The Superior Court held that Perry could testify about her subjective opinion of the relative significance of the accident. That ruling became moot, however, after the Superior Court excluded the testimony of Dr. Eppley. The Superior Court then dismissed Perry's case due to lack of evidence as to the causation of her injuries.

Perry filed a timely appeal. Berkley and Rinehart filed a cross appeal. Perry asserts that the trial judge abused his discretion when he excluded the expert testimony of Dr. Eppley on the basis that Dr. Eppley's opinion lacked a proper factual foundation. In the cross appeal, the defendants allege that the trial judge abused his discretion when he ruled that Perry would be permitted to offer her subjective opinion about the relative forces of the vehicular impacts on the injuries she allegedly sustained as a result of the three-car accident.

We have concluded that Perry's argument is without merit. The record reflects that the Superior Court properly exercised its discretion in ruling that Dr. Eppley's expert testimony was inadmissible. Therefore, it is unnecessary to address the merits of the cross appeal. The judgment of the Superior Court is affirmed.

Facts ²

On December 10, 2005, Perry was driving southbound on I-95 toward the Christiana Mall in Delaware. As Perry began to move her vehicle to the right to exit onto the ramp for the Christiana Mall, she saw a pickup truck in front of her. Williams was the driver of the pickup truck. As Perry drove behind Williams, he applied his brakes and slid to avoid stopping traffic. At the time Williams hit his brakes, he estimated that he was driving at least sixty miles per hour. Perry then slammed on her brakes, but her vehicle slid into the rear of Williams' truck.

After the first impact with Williams, a second car, driven by Berkley and owned by Rinehart, made contact with the rear of Perry's car. Perry testified that the second impact “jerked me back real hard and I banged my head on the sun visor, the mirror, and broke that.” The impact also forced Perry's car into Williams' vehicle a second time.

Perry identified Dr. Eppley as her only medical expert for trial. Perry alleged that she sustained both lumbar and cervical injuries as a result of the accident. Dr. Eppley did not treat Perry for any neck or cervical complaints post-accident, nor did he opine as to whether the cervical issues were causally related to the accident. Dr. Peter Witherell (“Dr. Witherell”), Perry's pain management physician, was the only physician who treated her cervical complaint post-accident.

However, Dr. Witherell was not identified as an expert witness in the pretrial stipulation. In fact, Perry's attorney advised the Superior Court at the motion in limine hearing that only Dr. Eppley would offer medical testimony for the plaintiff at trial. Accordingly, there would have been no expert testimony at trial that Perry's cervical complaints or treatment were related to the accident.

Dr. Eppley issued a report on May 7, 2007. In his report, Dr. Eppley opined:

Given that Mrs. Perry's earlier problems were cervical and she had not had any complaints regarding her lumbar spine prior to the 2005 motor vehicle accident, in my opinion that trauma is causally related to the herniations seen thereafter.... Mrs. Perry does have permanent injuries to cervical and lumbar spines. The latter is entirely related to the December 2005 accident.

Two years later, at his deposition on June 15, 2009, Dr. Eppley stated that his knowledge of Perry's pre-accident medical condition and treatment was based on the records in his possession at the time of his report and “basically from what she has told me.” Dr. Eppley testified that he had no way of knowing whether what Perry told him was accurate but that he assumed it was truthful. Although Perry told Dr. Eppley that she had arthritis in her spine, Perry never informed Dr. Eppley of her cervical and lumbar conditions or her treatment for pain before the December 10, 2005 accident or the earlier MRI documenting similar complaints.

Dr. Eppley also testified that he was unaware of Dr. Witherell's pre-accident treatment records, which the defendants planned to enter into evidence at trial without objection from Perry. Those records reflect that Perry had pain complaints in the same regions of her back for which she complained of pain as a result of the accident. Dr. Eppley also testified he had no knowledge that Perry was actively undergoing treatment for her lumbar spine with Dr. Witherell at the time of the accident, had no knowledge that Dr. Witherell had administered thirty-five injections for pain to Perry's cervical and lumbar spines in the two years from July 12, 2003 to November 23, 2005, and had no knowledge of a May 21, 2004 MRI of Perry's lumbar spine.

The defendants filed a motion in limine seeking to preclude Perry's testimony as to the significance of both impacts. The defendants also sought to exclude Dr. Eppley's expert testimony as to causation. The day of trial, the Superior Court heard oral argument on the motions. The Superior Court denied the defendants' motion in limine to preclude any testimony of Perry's subjective opinion as to the significance of both impacts.

The trial judge then addressed the defendants' contention that Dr. Eppley's expert testimony about causation of Perry's alleged injuries should be barred under the United States Supreme Court holding in Daubert v. Merrell Dow Pharmaceuticals, Inc.³ that is now reflected in the text of Delaware Rule of Evidence (“D.R.E.”) 702.⁴ The trial judge expressed his concern about the factual basis for Dr. Eppley's opinion:

[Y]our doctor, Eppley, predicates his opinion as to causation on the lack of any complaints by your client [Perry] as to her low back prior to the accident, ... and that the trauma was causally related to the herniation.

I mean, how can that opinion be valid when he didn't know-when you client didn't tell him about the previous low-back complaints and it was never disclosed to him that she had been diagnosed with a herniation before the accident?

As the hearing continued, the trial judge's concern was not assuaged:

The problem that I have with this testimony is that the previous hern-the herniation previous to this is not disclosed to Dr. Eppley so that he could focus an opinion as to whether her symptoms and what he saw was likely the result of the automobile collision or not.

Perry argued that Dr. Eppley's lack of knowledge of Perry's prior back condition and treatments for pain was a credibility issue for cross-examination. The trial judge disagreed:

I mean Daubert, it's really a Daubert problem. This motion, as I see it, doesn't focus on qualifications or competence or methodology or science involved, it focuses on factual foundation. And if the factual foundation isn't there, the opinion is not valid.

The trial judge then ruled that Dr. Eppley's expert testimony was inadmissible under Daubert and D.R.E. 702(1) for lack of factual knowledge of Perry's pre-existing back condition:

The MRI-his [Dr. Eppley's] opinion is thus predicated on a fact which is incorrect, namely, that there were no low-back complaints prior to the automobile accident, and it is without any awareness that the herniation that he treated existed prior to the accident. That, that indicates to me, and I find that his opinion simply doesn't have an adequate basis in fact that I can allow it to go forward to the jury.

As a result of the Superior Court's ruling, Perry could not offer any medical expert testimony as to causation of her injuries. Perry then sought a continuance. The defendants opposed the continuance on the basis that Perry's counsel was on notice of the deficiencies with Dr. Eppley's opinion prior to his trial deposition.

Although Dr. Eppley's report mentions that Perry had no prior complaints before the accident and...