Free Reply Brief - District Court of Delaware - Delaware

Case 1 :06-cv—00275-GIVIS Document 121 Filed 04/14/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT D. CHRIST, )
1 Plaintiff, g
v. l C.A. No. 06-275-GMS
BRETT J. CORMICK and ELAN SUISSE )
INTERNATIONAL HOLDINGS (USA) )
LLC, )
)
Defendants. )
REPLY MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE EVIDENCE
OF BRETT J. CORMICICS PHYSICAL AND PSYCHOLOGICAL INJURIES
Plaintiff-counterclaim defendant Robert D. Christ hereby respectfully submits this
memorandum of law in further support of his Motion In Limine to preclude defendant-
counterclaim plaintiff Brett J. Cormick from offering at trial any testimony conceming physical
or psychological injuries he alleges to have suffered or the cause of such injuries:
1. Mr. Cormick contends that, under Third Circuit and Delaware law, he may offer
his own lay testimony concerning those alleged injuries which "logically flow" from his
incarceration in a Zimbabwean prison. Smith v. Chrysler Corp., l996 WL 945018, at *3 (Del.
Super. Oct. 25, 1996). This argument, however, runs contrary to established case law from the
Delaware Supreme Court that postdates Smith v. Chrysler Corp. and holds expressly that "[w]ith
a claim for bodily injuries, the causal connection between the detendant’s alleged negligent
conduct and the plaintiffs alleged injury mus! be proven by the direct testimony of a competent
medical eXpcrt." Rczyfield v. Power, 840 A.2d 642 (TABLE), dfsposftfort reported of 2003 WL
2237307, at *1 (Del. Dec. 2, 2003) (Ex. C to Mr. Christ’s opening brief) (emphasis added).

Case 1 :06-cv—00275-GIVIS Document 121 Filed 04/14/2008 Page 2 of 3
Accord Adams v. Sheldon, 2007 WL 2936193, at *3 (D. Del. Oct. 5, 2007) (Ex. D to Mr. Christ’s
opening brief).
2. Moreover, the Third Circuit precedent cited by Mr. Corrnick is persuasive only if
he has first provided competent evidence proving the existence of the injuries for which he `
intends to testify as to causation. See Bushman v. Ha/rn, 798 F.2d 651, 659-60 (3d Cir. 1986)
(concluding that expert opinion on causation not required given the plaintiff" s introduction of"“a
physiciarfs report setting forth a qualitative and quantitative description ofa common injury");
McKenna v. Pacyic Rail Service, 32 F.3d 820, 834 (3d Cir. 1994) (distinguishing Bushman and
holding that causation could not be proven in the absence of “‘objectively identifiable, medically
verified symptoms"). Here, Mr. Cormick admits that he does not intend to introduce any
medical evidence concerning either the existence or causation of his claimed injuries and, as
such, it would be improper to permit him to speculate and provide his lay opinion to the jury as
to causation —— particularly since, as discussed in Mr. Christ’s opening brief, there is a factual
dispute as to whether Mr. Cormick even suffered the injuries he alleges. This is true with respect
to Mr. Cormick’s claims for both physical and emotional injuries. See McKenna, 32 F.3d at 824
(affirming district court’s decision to strike plaintiffs’ claim for emotional distress damages
without °‘any objective evidence supporting the plaintift`s’ claims of emotional distress").
3. However, in the event the Court permits Mr. Cormick to testify as to his injuries,
such testimony should be limited strictly to such minor injuries as bruises, cuts and abrasions for
which the jury may be able to determine causation without the aid of an expert witness. See
Townsend v. Benya, 287 F. Supp.2d 868, 875 (N.D. Ill. 2003). To the extent the Court denies
Mr. Christ’s motion, the Court nonetheless should enter an order precluding Mr. Cormick from
attempting to introduce any evidence relating to those injuries for which Mr. Cormick concedes
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Case 1 :06-cv—00275-GIVIS Document 121 Filed 04/14/2008 Page 3 of 3
medical expertise is required - ag., post-traumatic stress disorder, double pneumonia, malaria,
kidney damage, and difticulty in breathing, hearing and vision. See id (granting motion in
Zirnfne to the extent plaintiffs’ claims of injury relied upon expert testimony and limiting
testimony to plaintit`fs’ °‘own personal observations and experiences"); F.R.E. 701 (lay opinion
testimony permitted only if "rationally based on the perception of a witness").
4. The Court likewise should limit Mr. Cormick’s testimony to only those mental or
emotional conditions to which he can testify from his own experience. Even where a plaintiff
testifies as to his own emotional distress, he °‘rnust reasonably and sufficiently explain the
circumstances of the injury rather than relying on mere conclusory statements? Alston v. King,
231 F.3d 383, 388 (7th Cir. 2000). See also Lloyd v. .]ej§@rson, 53 F. Supp.2d 643, 674 (D. Del.
1999) (plaintiff s emotional distress must be "both severe and reasonable under the
circumstances"). Moreover, the absence of expert testimony can be relevant to disproving
causation of emotional distress as well as compensatory damages. See Bailey v. Runyon, 220
F.3d 879, 881 (8th Cir. 2000). Given Mr. Cormick’s lack of any expert evidence, it is critical
that the Court strictly limit his testimony -— if it is permitted at all — only to those symptoms of
emotional distress that lie within the jury’s common experience and knowledge.
WHEREFORE, Mr. Christ respectfully requests that his Motion In Lirnfne to Exclude
Evidence of Mr. Cormick’s Physical and Psychological Injtuies be granted.
REED SMITH LLP
lS/ Thad J Brcicegircffe
Thad J. Bracegirdle (No. 3691)
1201 Market Street, Suite 1500
Wilmington, Delaware 19801
(302) 778-7500
i Attorneys for Robert D. Christ
Dated: April 14, 2007
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Case 1:06-cv—OO275-Gl\/IS Document 121-2 Filed O4/14/2008 Page 1 0f 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT D. CHRIST, )
)
Plaintiff, )
)
V- >
) C.A. N0. 06-225-GMS
BRETT J. CORMICK. and ELAN SUISSE )
INTERNATIONAL HOLDINGS (USA), )
LLC, )
)
Defendants. )
CERTIFICATE OF SERVICE
I, Thad J. Bracegirdle, hereby certify that 0n April 14, 2008, I caused a true and c0rrect
c0py 0f the foregeing Reply Memorandum of Law in Support of Plaintiffs Motion for Limine
to Exclude Evidence of Brett JC C orrnick ’s Physica! and Psychological Injuries t0 be served 0n
counsel f0r defendants as listed be10w, via CMIECF.
Attorneys for Dejendantss
David L. Finger, Esquire
Finger & Slanina, P.A.
One C0mmerce Center, Suite 7*25
1201 N0rth Orange Street
Wilmington, DE 19801-1155
Dated: April 14, 2008
U fsf Thad J Bracegirdie
Thad J. Bracegirdle (N0. 3691)
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