Opinion
C.A. No. 05C-10-258-JOH.
Submitted: September 4, 2007.
Decided: November 30, 2007.
Upon Motion in Limine by Defendants Delaware Transit Corporation and Wright to Exclude Testimony of Thomas P. Lacek, P.E.— DENIED.
L. Vincent Ramunno, Esquire, of Ramunno Ramunno Scerba, Wilmington, Delaware, attorney for plaintiffs.
Douglas T. Walsh, Esquire, of Marshall Dennehy Warner Coleman Goggin, attorney for defendants Delaware Transit Corporation and Marshall L. Wright.
Gary W. Alderson, Esquire, of the Law Offices of Dawn L. Becker, Wilmington, Delaware attorney for defendant Ted L. Pridgen.
MEMORANDUM OPINION
Defendant Delaware Transit Corporation moves to exclude the testimony of co-defendant Ted L. Pridgen's accident reconstruction expert. A DTC DART bus and Pridgen's SUV were involved in a collision at an oblique angle. Pridgen's expert has opined that the bus hit the SUV and not the other way around. The plaintiffs were passengers on the bus.
The issue as between the defendants is whether the bus pulled into the path of Pridgen's SUV or Pridgen turned right in front of the bus. The parties' motion and response do not indicate there is an eyewitness to help resolve this dispute.
There is obviously an issue of fault, which could be joint or several and, if joint, a matter of degree. Absent any apparent eyewitness, ascertaining who pulled into whom is harder to determine. T he accident reco nstructionist's opinion w ill assist the jury and his testimony's probative value is not out weighed by the risk of unfair prejudice. DTC's motion is DENIED.
Factual Background
The DART bus, driven by defendant Marshall Wright, and Pridgen's SUV were traveling northbound on Orange Street in Wilmington on April 28, 2004. Near the intersection of 9th and Orange Streets, they collided. The DART bus sustained damage on the left front bumper. Pridgen's reconstructionist, Thomas P. Lacek, P.E., has described that damage as minor. He describes the damage to Pridgen's SUV as a right front fender pushed inward behind the right wheel well opening. The right door and right headlight, he reports, are undamaged.
There is an interior video from the bus showing passenger movement due to either braking or the collision. Lacek opines it is due to hard braking as the damage to the two vehicles is too slight to cause the type of movement shown on the video.
Not unexpectedly, the two drivers, Wright and Pridgen differ concerning how the accident occurred. The only description of the collision presented to the Court is Lacek's recitation o f the police accident report.
The Police Report states:
Responded to the above location regarding a personal injury collision, involving eight passengers on Vehicle #1 [Wright]. Upon my arrival, I made contact with Operator #1 who stated he was stopped and pulling out from the Bus Stop when Vehicle #2 [Pridgen] struck the bus. When asked where Vehicle #2 came from, Operator #1 stated Vehicle #2 was parked on west side of the street in a parking space, and pulled out, turning from the parking space. Operator #1 stated he observed Vehicle #2 parked there when he pulled into the Bus Stop. Operator #1 also added that there was a vehicle illegally parked in front of him. I then was able to view the camera video from the bus. I observed the bus, Vehicle #1 traveling north bound on Orange Street in the 800 block. However, no where on the video does it show Vehicle #2 parked on the street. I did observe a white vehicle illegally parked in front of the bus, but I also observed the bus, Vehicle #1 pull out into the lane where Vehicle #2 was attempting to turn from.
Operator #2 stated that he was traveling north bound in the 800 block of Orange Street in the eastern lane and when he began to turn east onto West 9th Street he was struck by Vehicle #1.
Vehicle #2's dam age was to the front right passenger side quarter panel at the crease of the front door.
Vehicle #1 sustained minor damage to the front driver's side bumper.
DTC/Wright's motion, Exhibit A.
Parties' Contentions
DTC contends that the offered expert testimony is impermissible under D.R.E. 702 because it will be of no assistance to the trier of fact. In the alternative, DART argues that the expert testimony should be excluded under D.R. E. 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury.Pridgen replies that Lacek's expertise in accident reconstruction will be helpful to the jury in this case. Lacek, Pridgen contends, will assist the jury in appreciating the discrete facts presented by this case, i.e. the width of the street, the position of the vehicles prior to the accident, the width of the vehicles, etc. He emphasizes that "without expert analysis the jury is more likely to be confused or mislead by the semantics employed by counsel to argue causation."
Co-def.'s Resp. ¶ 5.
Discussion
The admissibility of expert testimony is governed by D.R.E. 702 which states:
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 Delaware Supreme Court in M.G. Bancorporation v. Le Beau, applied the United States Supreme Court holdings in Daubert v. Merrel Dow Pharmaceuticals and Kumho Tire Co. V. Carmichael in determining the admissibility of expert testimony. Under D.R.E. 702, the trial judge must determine whether: (1) the witness is qualified as an expert by knowledge, skill, experience, training or education; (2) the evidence is relevant; (3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.
M.G. Bancorporation v. Le Beau, 737 A.2d 513, 522 (Del. 1999).
509 U.S. 579 (1993).
526 U.S. 137 (1999).
Bowen v. E.I. Dupont de Nemours Co., 906 A.2d 787, 795 (Del. 2006).
As the proponent of the expert testimony, Pridgen bears the burden to establish "relevance, reliability, and admissibility by a preponderance of the evidence." Under the adopted interpretation of D.R.E. 702, the trial judge acts as a "gatekeeper" to confirm that the proffered testimony is relevant and reliable.
Durnan v. Butler, 2004 WL 1790117 (Del.Super.) at *3.
Infra pp. 3.
Durnan, 2004 WL 1790117 at *3.
The only factor under D.R.E. 702 which DTC raises is number (4), "[W]hether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." The admission of expert testimony is impermissible where the testimony
Infra pp. 4.
"embraces matters in which `the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions.'"
Wheat v. State, 527 A.2d 269, 272 (Del. 1987) quoting Lampkins v. United States, 401 A.2d 966, 969 (D.C.App. 1979).
In his report, Lacek's analysis consists of the following conclusions: (1) based on the damage to Pridgen's vehicle, Wright struck Pridgen; (2) the collision resulted in negligible forces to the DART bus, and (3) the movement of the bus passengers was not caused by impact of Wright striking Pridgen, but is indicative of hard braking by the driver. Pridgen argues in his reply that Mr. Lacek " . . . will assist the jury to appreciate the significance of the discrete facts of the case: the width of the street, the width of the delineated traffic lanes, the width of the vehicles, the mass of the vehicles, the positions of the vehicles immediately prior to and at impact, as well as the forces experienced by the plaintiffs within the bus."
Some of these "discreet facts" are mentioned in Lacek's report, such as, the comparative weights of the bus and the SUV and general positioning of the vehicles on Orange Street. Also, Lacek briefly discusses the direction of the passengers' body movements and relationship to either hard braking or a collision.
Though spartan, the report provides enough of a basis to assist a jury in determining who may have hit whom in this oblique angle accident. To be clear, the
A motion following a deposition would have been of much greater assistance to the Court.
circumstance surrounding the occurance of the accident in this case is a key factor in this Court's holding that Lacek's opinion will help the jury. Without it, the jury may have to speculate or it will lack the testimony which will assist it. For these reasons Lacek's opinion will not invade the province of the jury.
DTC has also challenged Lacek's opinion under D.R.E. 403. It argues whatever relevance it has is outweighed by the risk of unfair prejudice, confusion, or potential to mislead the jury. Ignoring the implicit concession Lacek's opinion is relevant, the Court, nevertheless finds that risk does not exist here. The opinion is relevant. The Court has determined it will assist the jury.
That assistance is highlighted by the substantially differing versions of the drivers concerning w ho struck whom. There is the key issue of fault or degree thereof.
Conclusion
In conclusion, DTC's motion in limine to exclude Lacek's expert testimony is DENIED.
IT IS SO ORDERED.