Opinion
C.A. No. 97C-01-089.
January 19, 2000.
ORDER
This 19th day of January, 2000, several motions having been presented, upon notice, after due consideration and for the reasons stated during the course of argument on January 19, 2000;
NOW BE IT ORDERED:
1. The Plaintiff's Motion for Reconsideration is denied. Specifically, the Plaintiff can not introduce evidence relating to the disposal of staircases other than that upon which the Plaintiff was injured. In addition, the condition of any other staircase, before or after the instant accident, is not relevant to this litigation and no questioning in that regard should be allowed. The Plaintiff may, subject to objection to specific items based upon DRE 403, introduce evidence of how and where staircases at this job site were stored if the staircase upon which the Plaintiff was injured was similarly stored.
2. A party may be entitled to a spoliation instruction based upon negligent conduct by another party under Delaware law. See Lucas v. Christiana Skating Center , Del. Super., 722 A.2d 1247 (1998); and Burns v. Kay Bee Toy Stores , C. A. No. 96C-O1-036, Witham, J. (September 17, 1999) (Letter Op.). However, the evidence no longer available must be relevant to a defense or cause of action being raised in the litigation and the nonspoliating party must have suffered some detriment as a result. Whether a spoliation instruction will be given by the trial judge depends upon the facts and circumstances of the testimony elicited at trial. Evidence tending to establish those elements shall be admissible at trial at least for purposes of determining whether any party is entitled to such an instruction.
3. The Defendants' Motion for Summary Judgment or in the Alternative, Motion in Limine is denied.
(a) Charles Stanley may testify pursuant to DRE 702 given his experience and expertise in woodworking in general and installation of staircase specifically. That testimony shall be limited to the existence of defects in and/or the condition of the wood used to construct the staircase as well as the installation of staircases. Testimony shall not be allowed from Mr. Stanley regarding the existence or definition of any duty to inspect staircases by a supplier or manufacturer thereof. Objections raised as to his competency go to the weight of that testimony, not its admissibility.
(b) Defendant Masten Lumber's cross claim for indemnification against Defendant Stair Tech is denied without prejudice as premature. At this stage of the proceedings, the moving defendant can not show that there are no genuine issues of material fact in dispute or that it is entitled to judgment as a matter of law on the record that presently exists.
4. The Plaintiff's application to add Fred Roland as an expert witness is granted. The Plaintiff shall inform the Defendants of his continued intention to call him as a witness before the close of business on this date. If called, Mr. Roland's testimony shall be limited to the areas that Mark Hope, testifying as an expert on behalf of Defendant Stair Tech, was examined and gave testimony on during the course of his deposition in this matter. In addition, the Plaintiff must make Mr. Roland available for deposition on or before January 21, 2000, unless otherwise agreed to by the parties.
TOLIVER, JUDGE