Opinion
C.A. No. 02C-04-011 WLW.
Submitted: May 17, 2004.
Decided: May 28, 2004.
Darryl K. Fountain, Esquire, Wilmington, Delaware.
Adam Balick, Esquire, Balick Balick, Wilmington, Delaware.
Dear Counsel:
This letter serves as the Court's decision on Defendant Manmeet Brar's Motion for Summary Judgment. Dr. Brar contends that Plaintiff Family Health of Delaware, Inc. ("FHD") has not sufficiently established damages as is required in a breach of contract claim. FHD opposed the motion. Because Plaintiff will be presenting expert testimony establishing the alleged lost profits, Defendant's motion is denied.
Background
On October 1, 1999, Dr. Brar entered into an employment contract with FHD. Dr. Brar did not report to work at FHD on October 1, 2000, as was required by the contract. Plaintiff alleges that as a result of Dr. Brar's failure to report to work it has and will continue to lose profits. However, Dr. Brar contends that FHD has failed to substantiate its claims for lost profits.On April 27, 2004, Robert B. Lank, a certified public accountant, prepared a report detailing the lost profits FHD has allegedly experienced as a result of Dr. Brar's alleged breach. Defendant conducted a Mr. Lank on April 30, 2004. In his report, Mr. Lank projected that as a result of the alleged breach, FHD lost profits totaling $59,759. As the basis for his report, Mr. Lank relied on a report he had previously prepared for FHD in 2001 estimating profits based on three doctors currently employed by FHD.
Defendant asserts that because Mr. Lank's 2001 report was flawed by incorrect assumptions, the current report is also flawed. For example, Defendant claims that Mr. Lank based his analysis performed in 2001 on projected 2002 revenue. However, Mr. Lank now knows that the projections for 2002 were incorrect, but the new figure was allegedly not used. In addition, Defendant contends that Mr. Lank's analysis failed to take into consideration a relevant factor — the fact that Dr. Brar would work in FHD's Millsboro and Greenwood offices, rather than the busier Dover and Milford offices. FHD however asserts that these points are not sufficient for the court to reject Mr. Lank's testimony entirely, but rather should be raised by Defendant on cross-examination.
Discussion
Superior Court Civil Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." The moving party bears the initial burden of showing that no material issues of fact are present. The burden then shifts to the nonmoving party to demonstrate that there is a genuine issue of material fact. Summary judgment should only be granted when, after viewing the record in a light most favorable to the non-moving party, there is no genuine issue of material fact. The Delaware Supreme Court has stated that after a reasonable time for discovery "[a] motion for summary judgment is properly granted `against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'"
Super. Ct. Civ. R. 56.
Martin v. Nealis Motors, Inc., 247 A.2d 831, 833 (Del. 1968).
Id.
Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973); see also McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. 1994).
Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1270-71 (Del. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
When faced with expert testimony, the trial judge is a gatekeeper and must assess whether the evidence presented is reliable and relevant. The objective of this gatekeeping requirement is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
Ward v. Shoney' s, Inc., 817 A.2d 799 (Del. 2003).
As set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., the trial judge must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can properly be applied to the facts in issue. Pursuant to Kumho Tire Co., Ltd. v. Carmichael, Daubert and its progeny have been extended to all expert testimony, not merely scientific testimony. The Delaware Supreme Court has adopted a five step test to determine the admissibility of expert or scientific testimony:
509 U.S. 579 (1993).
526 U.S. 137 (1999).
The trial court must decide that: (i) the witness is `qualified as an expert by knowledge, skill experience, training or education' . . .; (ii) the evidence is relevant and reliable; (iii) the expert's opinion is based upon information `reasonably relied upon by experts in the particular field' . . .; (iv) the expert testimony will `assist the trier of fact to understand the evidence or to determine a fact in issue' . . .; and (v) the expert testimony will not create unfair prejudice or confuse or mislead the jury.
Eskin v. Carden, 2004 Del. LEXIS 81, *7-8 ( citing Cunningham v. McDonald, 689 A.2d 1190, 1193 (Del. 1997)).
Mr. Lank is a CPA who currently performs tax and accounting work for FHD. Defendant is not challenging Mr. Lank's qualifications as an expert, but rather is challenging the accuracy of his report. However, even if an expert's opinions are ultimately wrong, as long as he is qualified as an expert and his opinions are based upon information reasonably relied upon by others in the field, the testimony is admissible. Mr. Lank's report relies upon information regarding profits earned by FHD in the past. In terms of projecting lost profits, this appears to be proper. Although Defendant may disagree with assumptions Mr. Lank made and may believe that Mr. Lank failed to consider relevant factors, his overall report will still assist the trier of fact in determining whether FHD suffered lost profits. Further, as this is a bench trial, there is no concern that a jury will be confused or misled by his testimony. Therefore, even if Mr. Lank's opinion is ultimately found to be incorrect, it appears to the Court that the issues raised by Defendant are not sufficient to preclude Mr. Lank from testifying.
Conway v. Bayhealth Medical Center, 2001 Del. Super. LEXIS 115, *7.
Therefore, because Mr. Lank will be providing testimony regarding the lost profits allegedly suffered by FHD, Defendant's motion for summary judgment is denied. IT IS SO ORDERED.