Free Amended Document - District Court of Delaware - Delaware

Case 1:04-cv-01411-KAJ

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE JOYCE CORNETT v. NATHANIEL EDWARDS, JR. and FEDERAL EXPRESS CORP. : : : : : : : CASE NO. 04-1411 KAJ

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF DEFENSE MEDICAL WITNESS Defendants Nathaniel Edwards and Federal Express Corp., by and through their counsel, Rawle & Henderson, LLP, hereby submit this memorandum of law in opposition to plaintiff's motion in limine to preclude the testimony of defense medical witness: Expert testimony is admissible under the Federal Rule of Evidence 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The Advisory Committee noted in drafting Rule 702 that " an intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness." Advisory Committee's Note to F.R.E. 702. Trial judges are given broad discretion to determine the qualifications of expert witnesses and to decide whether expert testimony may assist the jury's deliberations. United States v. Dellinger, 472 F.2d 340, 382-83 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35

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L.Ed.2d 706 (1972). It is the plaintiff's burden, not defendants, to establish the cause of the accident, injuries and damages. A defense expert need not testify to a reasonable decree of certainty when rebutting the testimony of plaintiffs' expert as to the cause of a loss. St. Paul Fire and Marine Insurance v. Nolen Group, Civil Action Nos. 02-8601, 03-3192, 03-3651 (consolidated case) (E.D.Pa. 2005), citing, Holbrook v. Lykes Bros. Steamship Co., Inc., 80 F.3d 777, 786 (3d. Cir. 1996). Moreover, while the testimony must be factually based, the burden of exploring the facts and assumptions underlying the expert testimony rests on opposing counsel during cross-examination. St. Paul Fire and Marine Insruance, at 21, citing, Stecyk v. Bell Helicopter Textron Inc., 295 F.3d 408, 414 (3d. Cir. 2002). In St. Paul, the plaintiffs filed a motion to preclude the defense expert as speculative because he did not submit his opinions within a degree of scientific certainty and asserted in his opinions in terms of "could have." The defendants argued that defense experts were not required to testify to a reasonable degree of certainty and that the plaintiff have the opportunity to test the assumptions made during cross examination. The district Court agreed, holding that the opinions of the defense expert can be challenged during cross examination and should not be excluded for lacking certainty. Id at 21-22. Similarly, In Holbrook, the opinions of the defense experts were stated in terms of "distinct possibility" and not to a reasonable degree of certainty. The Third Circuit held that defense expert was not required to testify to a reasonable degree of certainty because it was sufficiently certain on rebuttal and could help the jury on the issue of causation. Id. at 786. In the present case, Dr. Fedder's opinions are based on a factual foundation and reliable methodology. Dr. Fedder is a neurosurgeon and the chief of Neurosurgery at Lankenau In his report, Dr. Fedder

Hospital. There is no dispute as to his qualifications as an expert.

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concluded that in "all probability" plaintiff struck the truck because of her inability to see it in her restricted visual field. Dr. Fedder also testified that the it was possible that plaintiff sustained an epileptic seizure that impaired her ability to operate a vehicle at the time of the accident. Dr. Fedder based this opinion on plaintiff's clinical history and a review of laboratory tests taken at the emergency department of Christiana Hospital revealing that the Dilantin levels were sub-therapeutic at the time of the accident. Dr. Fedder's opinions were based on his experience as neurosurgeon, coupled with his review of the medical records and his evaluation of the plaintiff. Like Holbrook, Dr. Fedder's opinions were based on a factual foundation and can assist the jury in assessing the causation. As stated above, the Third Circuit does not require a defense expert to testify to a reasonable degree of certainty. In fact, the Third Circuit has held that opinions phrased in terms of "could have" and "distinct possibility" are sufficient for defense expert opinions. It is up to the Plaintiff to explore these opinions during cross-examination. Conclusion For the foregoing reasons, defendants respectfully request that this Honorable Court deny plaintiff's Motion in Limine to Preclude the Testimony of Defense Medical Witness.

RAWLE & HENDERSON LLP /s/Delia Clark Delia A. Clark, No. 3337 300 Delaware Avenue, Suite 1015 Wilmington, DE 19801 /s/ Dawn L. Jennings Dawn L. Jennings The Widener Building One South Penn Square Philadelphia, PA 19107 Attorneys for defendants
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing response in opposition to Plaintiff's motion in limine to preclude defense medical witnesses. Defenses was served upon the below-listed counsel of record this day by electronic and first class mail: Thomas F. Sacchetta, Esquire Sacchetta & Baldino 308 East 2nd Street Media, PA 19603 Timothy M. Rafferty P.O. Box 627 Hockessin, DE 19707 Attorneys for Plaintiff RAWLE & HENDERSON LLP

By: __/s/ Delia Clark ______ Delia A. Clark, No. 3337 300 Delaware Avenue, Suite 1015 Wilmington, DE 19801 302-654-0500 Attorney for Defendants By: ___/s/Dawn Jennings__________ Dawn L. Jennings Rawle & Henderson, LLP The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 575-4200 DATED: April 20, 2006

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