Opinion
C.A. No. 03C-05-130 PLA.
Submitted: November 2, 2007.
Decided: December 14, 2007.
UPON PLAINTIFF'S MOTIONS IN LIMINE. DENIED.
This 14th day of December, 2007, it appears to the Court that:
1. Plaintiff Ronald W. Payne ("Payne") filed a complaint on May 15, 2003 against Defendant The Home Depot, Inc. ("Home Depot") asserting that Home Depot negligently maintained eighteen doors at one of its Newark, Delaware stores causing him injury. Specifically, Payne alleges that, while he was bent over looking at something on a shelf, two Home Depot employees negligently used a forklift, knocking off eighteen doors that were about five feet above Payne. The doors fell onto Payne, struck him on his back and shoulders, and pinned him underneath. As a result, Payne has alleged, inter alia, that he suffered a low back injury.
2. Now before the Court are four motions in limine filed by Payne seeking to exclude evidence of his March 16, 1997 motor vehicle accident, his April 1, 2004 motor vehicle accident, his prior use of marijuana, and his alleged tampering of a prescription for percocet. Payne argues that this evidence is irrelevant to Payne's complaints of injury and pain and that these acts are inadmissible under D.R.E. 404(b) because Home Depot intends to show Payne's bad character. In the alternative, should the Court conclude that the evidence is relevant and admissible under D.R.E. 404(b), Payne contends that the substantial prejudice of these facts outweighs any probative value they may have under D.R.E. 403 and should, therefore, be excluded.
Payne filed four separate motions addressing each of the four pieces of evidence he wishes this Court to exclude. Because they were filed contemporaneously and essentially raise the same issues, the Court will consider them together.
D.R.E. 404(b) states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
D.R.E. 404(b) applies to civil, as well as criminal, cases. See Mercedes-Benz of North America, Inc. v. Norman Gershman's Things to Wear, Inc., 596 A.2d 1358, 1365 (Del. 1991).
3. In response, Home Depot contends that all four pieces of evidence are relevant for impeachment purposes. Home Depot stresses that, with Payne's credibility being critical to this case, the evidence is highly relevant to contradict statements Payne made under oath at his depositions and statements Payne made to his treating physicians, who will also be testifying as witnesses. Home Depot notes that the evidence of these prior acts will be offered for impeachment and not as evidence to show Payne's bad character, as Payne argues.
4. Generally, a trial judge has discretion to permit the admission of impeachment evidence. A party may impeach a witness by
Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 536 (Del. 2006); see also D.R.E. 607 ("The credibility of a witness may be attacked by any party, including the party calling him.").
"showing the existence of bias, a prior inconsistent statement, untruthful or dishonest character, or defective ability to observe, remember, or recount the matter about which the witness testifies." . . . "A witness may be impeached on cross-examination or by other evidence contradicting the witness as to a material matter or establishing some other ground for impeachment."
Id. (quoting 81 AM. JUR. 2D Witnesses § 830 (2006) (footnotes omitted)).
5. "When impeachment evidence is offered to show bias, competency, or contradiction, the admissibility of that evidence is controlled by [D.R.E.] 402 and [D.R.E.] 403." D.R.E. 402 states that any evidence that is relevant is admissible. D.R.E. 403, however, permits a judge to exclude certain evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."
Id. at 536 (citing Baumann v. State, 891 A.2d 146, 148 (Del. 2005)). Importantly, though Home Depot relies on D.R.E. 608 as one of the bases on which to admit the evidence, D.R.E. 608 does not apply to impeachment evidence offered to contradict a witness. See id. at 536 n. 51.
6. Similarly, where a party seeks to impeach a witness by offering evidence of a witness' specific acts of conduct, D.R.E. 404(b) excludes the evidence if the offering party's purpose is to show the witness' propensity to act in a wrongful manner. The evidence of the bad act, however, may be admissible for another purpose such as to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
Id.
7. Where a witness' credibility is an important aspect of a case, a party has broad discretion to cross-examine a witness. For example, in Garden v. Sutton, the plaintiff sued a police officer for negligence after she had been in accident with him. The plaintiff and the officer were the only two witnesses to the accident. The trial court excluded evidence of the officer's resignation from his job and of an extramarital affair he had, reasoning that the evidence was irrelevant and unduly prejudicial under D.R.E. 403. On appeal, the Delaware Supreme Court permitted the plaintiff offer this evidence on cross-examination because "the case turned on a credibility assessment." The Court further explained that "[c]ircumstances surrounding a witness' misconduct which go directly to truthfulness are important in assessing admissibility."
683 A.2d 1041 (Del. 1996).
Garden, 683 A.2d at 1044 (citing Weber v. State, 457 A.2d 674, 682 (Del. 1983) ("jury [must be] . . . exposed to facts sufficient for it to draw inferences as to the reliability of the witness")).
Id.
8. With these general concepts in mind, I find that all of the evidence that Payne seeks to exclude is admissible as impeachment evidence. Defense counsel has identified numerous inconsistencies in Payne's testimony that would serve as appropriate evidence for impeachment. At least two of Payne's treating physicians testified, for example, that they had no knowledge of these two accidents, even though they admitted that these accidents would impact any causation determination. As a result, the two motor vehicle accidents are relevant to any determination as to whether Home Depot's alleged negligence caused Payne's injuries.
9. Moreover, as noted in Garden, the probative value of these accidents far outweighs any prejudice to Payne. Payne testified at depositions that he had no serious injuries or medical treatment from his car accidents. After the accidents, however, Payne told his treating physicians that he did suffer back pain — the same pain he now claims as a result of the incident at Home Depot — and that he had passed out after his 1997 accident. His physicians also prescribed him a cervical collar and restricted him from heavy lifting, in direct contradiction to his testimony that his injuries were not serious. Moreover, Payne testified at deposition that he never filed a claim with his insurance company for his 2004 motor vehicle accident for back and neck injuries, but later recanted and admitted that he had received some money. Because Payne has provided inconsistent statements about his injuries, and because the accidents are relevant to a determination of causation, the probative value of these accidents outweighs any prejudice to Payne.
10. The use of marijuana is similarly relevant to Payne's credibility. Payne admitted that he smokes marijuana "[a] couple times a year" and that, on average, he smokes marijuana once a month. Notwithstanding these admissions, Payne continually reported to many of his doctors that he never used illegal drugs. Some of these doctors will be testifying as to Payne's diagnosis and the cause of his injuries, even though Payne withheld information regarding his drug abuse. Again, because his experts and treating physicians have all testified that they would need to know all of Payne's medical history before making a diagnosis as to causation, Home Depot is entitled to impeach Payne's expert witnesses in this manner.
Docket 125, Ex. A (Payne's June 22, 2007 Deposition), 398:22-33, 400:8-10.
Docket 125, Ex. B.
11. The analysis is the same with respect to evidence that Payne presented a tampered prescription for percocet. Payne originally testified that he did not alter the prescription but had lost it. In contrast, after testifying that the prescription was, in fact, altered, one of his medical doctors testified that Payne told him that his babysitter had altered the prescription and that he was prosecuting her. Moreover, at least two of his treating physicians never released these records to defense counsel, despite a valid medical authorization. Though this evidence is prejudicial, it is highly probative of Payne's truthfulness, and that of his physicians.
12. Payne's argument that this evidence should be excluded under D.R.E. 404(b) is unpersuasive. Home Depot is seeking to admit this evidence to impeach the credibility of Payne and his witnesses. In any personal injury case, a plaintiff has a motive to increase his recovery as much as possible. Here, Home Depot is not offering evidence of Payne's conduct to show his bad character, but rather to contradict Payne's sworn testimony and to impeach the opinions offered by his medical experts. This is a proper purpose under D.R.E. 404(b).
See D.R.E. 404(b) ("Evidence of other crimes, wrongs or acts is . . . may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.)."
13. One final observation is warranted here. Credibility of the parties, and particularly the plaintiff, is one of the most important factors to consider in a personal injury case. This Court addressed a similar issue in Smith v. Williams, a case in which the defendants moved to dismiss a personal injury action based solely on a showing that the plaintiff had given numerous inconsistent statements under oath. Although the Court denied the motion, it offered a stern warning to the plaintiff:
2007 WL 2193748 (Del.Super.Ct. Jul. 27, 2007).
The fact that the Court has declined to dismiss this case does not, however, limit the Court from stating what may already be apparent here. That is, the success of a personal injury case is more dependent on the credibility of the plaintiff than on any other factor. Judging from the work done by defense counsel in identifying and exposing the conflicts raised in this motion, Smith's [Plaintiff's] cross-examination will likely be formidable. . . . When Delaware juries sense overreaching or a lack of candor on the part of a plaintiff seeking a damages award, they do not hesitate to respond accordingly. Moreover, in the event that these claims manifest themselves as perjury at trial or unfairly prejudice defendants, there are other sanctions available to the Court.
Even the most persuasive expert witnesses or objective medical findings by highly respected physicians will not compensate for a plaintiff's lack of candor. Delaware juries will frequently use their verdicts to punish dishonesty and they are not reluctant to express their dissatisfaction when asked to give up their valuable time for a litigant who seeks to gain more than he or she is legally entitled to be awarded.
Smith, 2007 WL 2193748 at *6 (footnotes omitted).
14. The comments made in Smith apply equally to the instant case. Defense counsel has identified several inconsistencies in Payne's testimony and a lack of candor by Payne with his own treating physicians. As explained in Smith, "the discrepancies in [Plaintiff's] reports and depositions . . . will certainly be fodder for cross-examination at trial." Likewise, the four pieces of evidence that Payne seeks to exclude are admissible to impeach Payne and his witnesses.
Id. at *6 n. 7.
15. Based on all the foregoing, Plaintiff's Motions in Limine are DENIED.
IT IS SO ORDERED.
Original to Prothonotary
ON DEFENDANT'S MOTION FOR REARGUMENT. DENIED.
This 14th day of December, 2007, upon consideration of the Motion for Reargument filed by Plaintiff Ronald Payne ("Payne"), it appears to the Court that:
1. On August 24, 2007, Defendant The Home Depot, Inc. ("Home Depot") filed a Motion to Extend Time for Expert Reports. This Court denied the motion on September 10, 2007, with the exception of permitting Dr. Richard Morris, a defense expert, to submit an IME report.
2. On November 9, 2007, Home Depot filed a Motion to Re-Open Expert Discovery requesting that Dr. Morris be permitted to supplement his report and that John Malamut, M.D., an expert that Home Depot did not identify before the discovery deadline, be allowed to testify as an expert witness. Home Depot sought to re-open discovery as a result of back surgery that Dr. Matthew Eppley performed on Payne to remove medical screws from his spine on October 19, 2007, three months after the discovery deadline had passed. Though Dr. Eppley began treating Payne in June 2007, Payne did not disclose this treatment until September 2007, two months after the discovery deadline.
3. The Court heard Home Depot's motion on November 26, 2007. As a result of Payne's surgery and his failure to disclose the latest medical information promptly, the Court re-opened discovery. Specifically, this Court allowed (1) Dr. Morris to update his report; (2) Dr. John Malamut to be identified as an expert witness; (3) Home Depot to complete discovery as established by the Court's earlier scheduling order; and (4) Home Depot and Payne to complete new discovery. The Court also informed counsel that the trial scheduled for January 26, 2008 would have to be continued.
4. Payne has now filed the instant Motion for Reargument. Payne contends that he has been forthright with defense counsel about his treatments and that he has complied with all discovery obligations. Payne argues that Home Depot cannot be prejudiced by Payne's treatment after the discovery deadline because the physicians with whom Payne treated will not be testifying as experts. Payne also argues that this Court should not reward Home Depot's failure to identify certain expert witnesses prior to the original discovery deadline. As a result, Payne contends that the Court should reconsider its earlier decision to re-open discovery.
The Court notes that it is highly unusual for a plaintiff to argue for the exclusion of evidence of additional surgical procedures or medical treatment which customarily would increase an award of damages. This in and of itself is sufficiently suspicious to justify further discovery.
5. In response, Home Depot points to numerous discovery failures by Payne as explained at the hearing on November 26, 2007. In support of his argument, Home Depot has offered evidence suggesting, for example, that (1) Payne failed to identify Dr. Eppley as a treating physician until after discovery closed; (2) Payne failed to timely supplement his responses as required by the Court Rules; (3) Payne has continued treatment, as evidenced by his major surgery; (4) Home Depot has been unable to complete expert depositions due to the unavailability of some of Payne's expert witnesses; and (5) at least three of Payne's experts have withheld records from Home Depot. As a result of Payne's failure to abide by the Court's scheduling order, Home Depot argues that the Court's November 26, 2007 decision to re-open discovery was warranted.
See Super. Ct. Civ. R. 26(e).
6. Under Rule 59(e), the Court will deny a Motion for Reargument unless "principles or authorities were overlooked and such points would have changed an outcome had they been addressed." A motion for reargument allows the Court to reconsider its "findings of fact, conclusions of law, or judgment . . . to afford the Trial Court an opportunity to correct errors prior to appeal. . . ."
Mortgage Elec. Registration Sys, Inc. v. Johnson, 2007 WL 2792242, at *1 (Del.Super.Ct. Sept. 25, 2007).
Bd. Of Managers of the Del. Crim. Justice Info. Sys. v. Gannet, 2003 WL 1579170, at *1 (Del.Super.Ct. Jan. 7, 2003).
7. After reviewing Payne's motion, the Court finds that it did not err when it re-opened discovery. An order of discovery establishes a tentative schedule for all discovery matters identified by counsel. A judge may, however, amend or alter the order "whenever justice so requires." In this case, Payne has alleged, inter alia, injuries to his back as a result of Home Depot's alleged negligence. By having major surgery to have screws removed from his L5-S1 paraspinal region after the discovery deadline, Payne has prevented Home Depot from having its expert evaluate Payne's condition to determine, for example, (1) whether he actually sustained injury from his visit to the Home Depot; (2) whether his injury is as extensive as he and his physicians claim; and (3) whether any accident at Home Depot, rather than any of his previous accidents, could have caused the injuries he claims to have sustained. There is also a new issue presented by this recent surgery, i.e., whether the prior procedure implanting the hardware was even necessary given the fact that this recent surgery was for its removal. Just requires that Home Depot should now have the opportunity to have an expert make these determinations.
See Super. Ct. Civ. R. 26(f) ("Following the discovery conference, the Court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any. . . .).
Id.
8. Moreover, defense counsel has shown that some of Payne's experts and treating physicians have yet to release all of their documents nor have they made themselves available for depositions as required by this Court's discovery rules. By re-opening discovery, the Court has simply made a decision to permit both sides to have their experts reevaluate Payne, complete all depositions, and obtain all of Payne's medical records after he chose to have major surgery that could potentially affect this litigation. Despite Payne's claims that he already identified all of his experts in a timely manner, the fact remains that Payne's recent surgery could influence affect the litigation in a substantial manner. Similarly, regardless of whether Payne's treating physicians will be testifying, any change in Payne's medical situation will affect Home Depot's ability to mount a defense. In light of these concerns, barring Home Depot from having the opportunity to reevaluate Payne subsequent to his surgery would cause Home Depot substantial prejudice. In short, justice requires the re-opening of discovery.
See generally Super. Ct. Civ. R. 26. For example, as noted in Home Depot's responses to Payne's motions in limine and mentioned in Home Depot's response to Payne's Motion for Reargument, some of Payne's physicians withheld portions of their records. Defense counsel has, in fact, offered evidence establishing that, at least two months after discovery closed, he has received over 1,000 pages of new medical records.
9. Accordingly, Plaintiff's Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.