SUPERIOR COURT OF THE STATE OF DELAWARE Delaware Avenue P.O. Box 876 P.O. Box 2165 Georgetown, DE Wilmington, DE 19899

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1 SUPERIOR COURT OF THE STATE OF DELAWARE E. SCOTT BRADLEY P.O. Box 746 JUDGE COURTHOUSE GEORGETOWN, DE July 21, 2004 George T. Lees, III, Esquire Bruce A. Rogers, Esquire Bifferato, Bifferato & Gentilotti 16 S. Front Street 1308 Delaware Avenue P.O. Box 876 P.O. Box 2165 Georgetown, DE Wilmington, DE Richard W. Pell, Esquire Tybout Redfearn & Pell 300 Delaware Avenue Suite 1100 P.O. Box 2092 Wilmington, DE RE: Frederick Durnan v. Tiffanie M. Butler C.A. No. 01C ESB Date Submitted: April 29, 2004 Dear Counsel: This is my decision on the Motion to Strike the opinion testimony of a Delaware State Police Officer and Plaintiffs accident reconstruction expert, George Govatos, Ph.D., and the Motion for Summary Judgment filed by Defendants Stephen P. Durham ( Durham ), Tenui Corporation ( Tenui ), and Century Wine & Spirits, Inc s ( Century Wine ), who are sometimes referred to herein collectively as the Defendants. The Motion to Strike is denied and the Motion for Summary Judgment is granted, in part, and denied, in part, for the reasons stated herein.

2 STATEMENT OF THE CASE An automobile accident occurred at the intersection of Anderson Corn Road and Indian Mission Road in Sussex County, Delaware, on June 9, Tiffanie M. Butler ( Butler ) was operating a 1988 Chevrolet Cavalier and decedent Lynda Durnan ( Durnan ) was a front seat passenger in the automobile which was involved in an intersectional collision with a liquor delivery truck operated by Durham while in the course of his employment with Tenui. Butler failed to remained stopped at the stop sign and entered the intersection with her vehicle, causing a collision with the vehicle operated by Durham. The exact speed of Durham s vehicle is disputed. The posted speed limit in the area is 50 miles per hour. Durham claims that he was traveling below the speed limit and Plaintiffs argue that he was traveling in excess of the speed limit. Durham s truck struck the right side of Butler s vehicle, causing Durnan to suffer severe and ultimately fatal injuries. As a result of the accident, Durnan died on June 9, A complaint was filed by Plaintiffs Frederick Durnan and Margaret Durnan (the Durnans ), on behalf of their daughter, Lynda Durnan, on June 28, 2001, alleging that (1) Durnan experienced conscious pain, suffering and discomfort, ultimately expiring from her injuries, (2) Durham operated his vehicle in an unlawful manner and caused a collision with Butler s vehicle, in which Durnan was a passenger, (3) the negligence of Durham may be attributed to defendants Tenui and Century Wine pursuant to the doctrine of respondeat superior, and (4) the Durnans are entitled to recover damages for the wrongful death of their daughter, pursuant to 10 Del. C. 3724, as a direct and proximate result of the actions, omissions and commissions on the part of Durham. 2

3 Following the accident, the Delaware State Police FAIR Team (the FAIR Team ) from Troop 7, along with EMS personal and Firefighters from the Milton Fire Department, responded to the scene of the accident. Members of the FAIR Team conducted an investigation and reconstruction of the accident. Durnan was unresponsive when the medical personnel initially began treatment. Although Durnan initially had a pulse and was breathing, these signs of life quickly ceased. This was a fatal accident and Corporal Lance Abbott ( Cpl. Abbott ) of the Delaware State Police (the DSP ) was assigned to be the lead investigator as to the cause of the accident. Accordingly, Cpl. Abbott testified as to the actions taken in the investigation and reconstruction of the accident. Based on the information obtained during the investigation and accident reconstruction, Cpl. Abbott opined that Durham was driving in excess of the posted speed limit and that if Durham had been operating his vehicle at the posted speed limit, Butler s vehicle would have cleared the intersection and the accident would not have occurred. The Durnans also retained George C. Govatos, Ph.D. ( Dr. Govatos ) to perform an analysis of the accident. Although Dr. Govatos opined that the DSP committed a number of errors with their reconstruction and calculations regarding the speed of Durham s vehicle, in reaching his ultimate opinion as to the speed of the vehicle, Dr. Govatos relied upon the results of the tests performed by Cpl. Abbott. Dr. Govatos testified that he assumed that the officers conducting the investigation were trained and that they used the accident reconstruction equipment properly, but he had no knowledge as to whether or not this assumption was accurate. However, Dr. Govatos did in fact review the deposition testimony of Cpl. Abbott, but failed to consider the testimony of the other officers involved. 3

4 The Defendants argue that the DSP and Dr. Govatos relied upon data from an unverified, uncalibrated piece of equipment, operated by someone with questionable experience and training in the operation of the equipment, and without a license to operate the equipment. Accordingly, the Defendants seek to have the testimony of both Cpl. Abbott and Dr. Govatos struck. If the Court finds that the opinions must be struck, the Defendants claim that the Durnans cannot sustain their burden of proof, and, therefore, the Defendants are entitled to judgment as a matter of law as to the issue of causation of the accident. Moreover, the Defendants claim that there is no evidence that Durnan experienced conscious pain and suffering prior to her death and that they are, therefore, entitled to judgment as a matter of law as to the Durnans survival claim. DISCUSSION A. Motion to Strike The Defendants claim that the opinion testimony of DSP Officer Cpl. Abbott and Dr. Govatos should be precluded and/or struck as scientifically unreliable. The Defendants question the accuracy of the speed calculations of Durham s vehicle due to testimony which suggested that the equipment used to calculate the speed was not calibrated prior to its use. Furthermore, the Defendants argue that if the skid testing data, more specifically, the coefficient of friction, used to calculate the momentum of Durham s vehicle was incorrect, then the results obtained by Cpl. Abbott in terms of the conservation of momentum and the pre-impact, pre-skid speed of Durham s vehicle would also be incorrect. As a result, the Defendants claim that due to the unreliability of the DSP s coefficient of friction data, the opinions of the DSP as to causation are scientifically unreliable under the criterion set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993), and adopted by the Delaware Supreme Court in Nelson v. State, 628 A.2d 69 (Del. 1993) and M.G. 4

5 Bancorporation, Inc. V. Le Beau, 737 A.2d 513 (Del. 1999). Moreover, if Cpl. Abbott s testimony is based on information that is scientifically unreliable, the Defendants claim that Dr. Govatos testimony is also scientifically unreliable since it is based on the results obtained by Cpl. Abbott. Delaware Rule of Evidence 702 governs the admissibility of expert witness testimony. 1 To be admissible, expert testimony must be both relevant and reliable. DRE 702 is identical to its federal counterpart and the Delaware Supreme Court has adopted the United States Supreme Court s holdings in Daubert and Kumho Tire Co., Ltd. V. Carmichael, 562 U.S. 137 (1999) as the correct interpretation of Delaware Rule of Evidence As the proponent of the proffered expert testimony, the Durnans bear the burden of establishing relevance, reliability, and admissibility by a preponderance of the evidence. 3 Therefore, the Court must analyze the proffered testimony in light of the following six factors before an expert may testify: 4 1. The witness is qualified as an expert by knowledge, skill, experience, training or education; 5 1 Del. R. Evid. 702 provides: 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 State v. Jones, 2003 WL , at *2 (Del. Super. Ct.), citing M.G. Bancorporation, Inc., 737 A.2d at Minner v. American Mort. & Guar. Co., 791 A.2d 826, 843 (Del. Super. Ct. 2000). 4 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993); Nelson v. State, 628 A.2d 69, 75 (Del. 1993); New Haverford Partnership v. Stroot, 772 A.2d 192, 799 (Del. 2001). 5 D.R.E

6 2. The evidence offered is otherwise admissible, relevant and reliable; 6 3. The expert s opinion is based upon information reasonably relied upon by experts in the particular field; 7 4. The specialized knowledge being offered will assist the trier of fact to understand the evidence or to determine a fact in issue The expert testimony will not create unfair prejudice, confuse the issues or mislead the jury; 9 and 6. The probative value of the evidence upon which the expert relies substantially outweighs the risk of prejudice. 10 It is well established that [u]nder Daubert, Kumho Tire and M.G. Bancorporation, the Trial Judge acts as the gatekeeper to ensure that scientific testimony is not only relevant but reliable. 11 Moreover, the Trial Judge must play an active role in ruling on the admissibility of evidence Testimony of Cpl. Abbott Cpl. Abbott testified that he was the primary officer assigned to the investigation and reconstruction of the automobile accident on June 9, Cpl. Abbott became a member of the omitted). 6 D.R.E. 401; D.R.E D.R.E D.R.E D.R.E D.R.E Minner, 791 A.2d at 843, citing M.G. Bancorporation, 737 A.2d at 521 (citations 12 Id. at 843, citing Patrick C. Barry, Comment, Admissibility of Scientific Evidence in the Remand of Daubert v. Merrell Dow Pharmaceuticals, Inc.: Questioning the Answers, Widener L. Symp. J. 299, 311 (1997). 6

7 DSP in 1992 and was assigned to Troop 7 and the FAIR Team in He completed the necessary Academy training required of all DSP officers and served as a road trooper between 1992 and He attended specialized class training in Advanced Collision Investigation where he received training in accident reconstruction at the Maryland State Police Academy in April Cpl. Abbott also attended a Traffic Accident Reconstruction course for two weeks in May 1999 where he received training in angular accident investigation and reconstruction. Prior to the accident, Cpl. Abbott had been the lead officer in one other momentum type case. Although the Defendants question Cpl. Abbott s training and expertise in the reconstruction of accidents and the use of the reconstruction equipment, more specifically, the VC2000, it is the Court s determination that Cpl. Abbott is at least minimally qualified to operate the equipment and to render an opinion based on the results of the investigation. Since this area of expertise is not subject to peer review or publication, and there are no definitive guidelines as to the amount of training and experience necessary to operate the equipment used in accident reconstruction, it is too much to expect that the field of accident reconstruction would necessarily fit all of the Daubert criteria. 13 However, the evidence to be offered is otherwise admissible, relevant, and reliable under D.R.E. 401 and 402 as it relates to the issue of causation. 14 Moreover, the use of experts in accident 13 See State v. Jones, 2003 WL (Del. Super. Ct), citing State v. Brown, Del. Super. Ct., No , Stokes, J. (July 10, 2001) (Bench ruling) Docket No. 63), which held that the field of handwriting analysis is not a science but a special skill and it would be too much to expect it to satisfy the Daubert criteria. Rather, the Court found the expert to be a skilled person by training and experience and admitted the testimony as specialized knowledge that would assist the trier of fact, rather than scientific. Therefore, the handwriting analysis testimony would satisfy D.R.E. 401, 402, and Del. R. Evid. 401 provides the following: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. 7

8 reconstruction has been allowed and encouraged by the courts. 15 In Delaware, accident reconstruction expert witnesses have testified regarding traveling speed, failure to exercise due care, force of impact, position of vehicles prior to an accident, and the lack of evasive action due to a lack of skidmarks. 16 The Defendants have submitted no evidence to suggest that Cpl. Abbott and the DSP failed to take the necessary steps to reconstruct the accident or failed to participate in the required training to operate the necessary equipment. Therefore, the specialized knowledge being offered will assist the trier of fact pursuant to D.R.E Moreover, such testimony will not create unfair prejudice, confuse the issues or mislead the jury and the probative value of the evidence substantially outweighs the risk of prejudice. Furthermore, it is for the jury to decide whether or not to accept Cpl. Abbott s testimony given his experience and training. The Defendants will have an opportunity to cross-examine Cpl. Abbott as to his expertise and the methods employed in the accident reconstruction. If there are any issues regarding the reliability or credibility of Cpl. Abbott s testimony, it goes to the weight that the jury should give his testimony, rather than to its admissibility. 17 Del. R. Evid. 402 provides: All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible. 15 Sanchez-Caza v. Estate of Salem, Del. Super. Ct., C.A. No. 02C , Graves, J. (Mar. 17, 2004). 16 Id. at *3, citing Hammond v. State, 569 A.2d 81 (Del. 1989); Barnes v. Toppin, 482 A.2d 749 (Del. 1984); State v. Drake R. McN, 1986 Del. Super. Ct. LEXIS 1183 (Del. Super. Ct. 1983); Cox v. Turner, 1994 Del. Super. Ct. LEXIS 212 (Del. Super. Ct. 1994); Dixon v. Reid, 1991 Del. Super. Ct. LEXIS 270 (Del. Super. Ct. 1991). 17 Jones, 2003 WL at *4. 8

9 2. Testimony of Dr. Govatos Dr. Govatos curriculum vitae reveals that he has extensive experience as an engineer and accident reconstructionist. Obviously, the Defendants are not questioning the experience, education and training of Dr. Govatos to permit him to render an opinion as to accident reconstruction. Rather, the Defendants move to strike the opinions of Dr. Govatos because he relies upon the data obtained by Cpl. Abbott in rendering his opinion as to the speed of Durham s vehicle. Dr. Govatos determined that Durham was speeding just prior to the accident based on the information submitted by the DSP. The Court has determined that the opinion testimony of Cpl. Abbott is both relevant and reliable. Therefore, the opinion testimony of Dr. Govatos, based on the results submitted by the DSP, is also sufficiently relevant and reliable to be heard by the jury. Once again, it is for the jury to determine how much weight should be given to Dr. Govatos testimony. Accordingly, this Motion to Strike is denied. B. Motion for Summary Judgment Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. 18 Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. 19 Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing 18 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 19 Id. at

10 a genuine issue of material fact for trial. 20 If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of her case, then summary judgment must be granted. 21 If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate Survival Claim The Defendants claim that they are entitled to summary judgment as to the Durnans survival claim as there is no evidence that decedent Durnan experienced conscious pain and suffering prior to her death. In order to prevail on a survival claim, it is necessary for the Durnans to prove the existence of conscious pain and suffering. Proof that the decedent experienced pain and suffering as are substantially contemporaneous with death, or mere incidents to it, is insufficient. 23 The Durnans concede that there is no sufficient, credible evidence to support the survival claim of conscious pain and suffering and agree that summary judgment should be granted. I agree. 2. All of the Durnans Claims The Defendants claim that they are entitled to summary judgment as to all of the Durnans claims and cross-claims since there is no evidence of negligence on the part of the Defendants which caused or contributed to the accident of June 9, The Defendants argue that if the Court strikes 20 Super. Ct. Civ. R. 56(3); Celotex Corp. v. Catrett, 477 U.S. 317, (1986). 21 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct (1992); Celotex Corp., 477 U.S. 317 (1986). 22 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). 23 Magee v. Rose, 405 A.2d 143 (Del. Super. Ct. 1979). 10

11 the opinion testimony of Cpl. Abbot and Dr. Govatos, the Durnans cannot establish liability or causation on the part of the Defendants. However, as determined above, the Court has denied the Defendants Motion to Strike. Accordingly, the Defendants are not entitled to summary judgment on this issue either. Generally, negligence cases are not susceptible to summary judgment. 24 However, if the Durnans are unable to prove the essential elements of their claims against the Defendants, then summary judgment is appropriate. At this point in time, the Court does not find this to be the case. There are issues of fact to be decided by the jury and it would be premature to grant summary judgment at this time. Moreover, this Court has found that a defendant s motion for summary judgment must be denied where an expert s testimony raises issues of fact. 25 It is up to the jury to decide whether or not Durham was in fact negligent. Although Durham contends that he was traveling within the posted speed limit, Durham told Cpl. Abbott that he was traveling at 55 miles per hour prior to the accident and that his brakes locked up and his vehicle slid into the Butler vehicle. Obviously, there are material issues of fact in dispute. It is possible for a jury to find that Durham was in fact traveling in excess of the posted speed limit and that he could have taken evasive measures to avoid the crash. Therefore, summary judgment is inappropriate. 24 Ebersole, 180 A.2d at 469; Orsini v. K-Mart, 1997 Del. Super. LEXIS, at *5 (Del. Super. Ct. 1997). 25 Taylor v. Pathmark of Roxbury, 295 A.2d 747 (Del. Super. Ct. 1972). 11

12 CONCLUSION The Defendants Motion to Strike the opinion testimony of Cpl. Abbott of the DSP and Dr. Govatos is denied and their Motion for Summary Judgment is granted, in part, and denied, in part, for the reasons stated herein. IT IS SO ORDERED. Very truly yours, ESB:tll E. Scott Bradley cc: Prothonotary s Office 12