Midcap v. Sears, Roebuck and Co.

Full title: MARIA S. MIDCAP, et al. v. SEARS, ROEBUCK AND COMPANY, et al

Court: Superior Court of Delaware

Date published: Oct 10, 2003

Civil Action No. 01C-03-042 WLW (Del. Super. Ct. Oct. 10, 2003)

Opinion

Civil Action No. 01C-03-042 WLW

Submitted: October 9, 2003

Decided: October 10, 2003

I. Barry Guerke, Esquire, Parkowski Guerke Swayze, P.A., Dover, Delaware.

William J. Cattie, III, Esquire, Cattie and Fruchauf, Wilmington, Delaware.

Daniel P. Bennett, Esquire, Heckler Frabizzio, Wilmington, Delaware.

Paul R. Bartolacci, Esquire, Cozen and O'Connor, Philadelphia, Pennsylvania.

William L. Witham, Jr., Judge

Dear Counsel:

This is the Court's decision on Defendant Sears, Roebuck and Company's motion in limine to exclude the testimony of Plaintiff's expert, Cyril Wecht, M.D., a pathologist who is expected to present testimony concerning the decedent's alleged conscious pain and suffering. Defendant Southern States Milford Cooperative, Inc. joins in the motion.

The Plaintiff does have the burden of proof to establish by a preponderance of the evidence that the decedent did not die instantaneously and that there was some appreciable interval of conscious pain and suffering after the injury. We have an expert prepared to testify that the decedent would have been conscious prior to death in the absence of any significant trauma to the brain. The law does not specify the length of time of survivability for an award of damages, yet the pain and suffering must not be contemporaneous with death. What is appreciable or not is a matter for the jury to determine.

Therefore, Defendants' motion to exclude the testimony of Dr. Wecht is denied . IT IS SO ORDERED.