Opinion
C.A. No. 04C-12-196 MMJ.
Submitted: March 3, 2008.
Decided: May 8, 2008.
On Motions in Limine to Exclude Expert Testimony.
GRANTED.Robert Pasquale, Esquire, Cynthia H. Pruitt, Esquire, Doroshow, Pasquale, Krawitz Bhaya, Wilmington, DE, Attorneys for Plaintiff.
Robert K. Pearce, Esquire, Thomas R. Riggs, Esquire, Ferry, Joseph Pearce, P.A., Wilmington, DE, Attorneys for Defendants Kevin T. Baker and Kevin P. Baker.
Robert D. Goldberg, Esquire, Biggs and Battaglia, Wilmington, DE, Attorney for Defendant Kevin M. Roberts.
MEMORANDUM OPINION
STATEMENT OF FACTS
On December 22, 2002, Kevin M. Roberts shot Daniel Streevy with a .357 revolver. Daniel Streevy survived the shooting. At the time of the shooting, Roberts lived with his mother Barbara Roberts Baker, stepfather Kevin T. Baker, and stepbrother Kevin P. Baker. The .357 revolver used in the Streevy shooting belonged to Roberts' stepfather, Kevin T. Baker. Kevin T. Baker kept the gun in a combination safe located at the family residence. Six to eight months prior to the shooting, Roberts' stepfather gave the gun to his son Kevin P. Baker. Kevin P. Baker stored the gun in a desk drawer in his bedroom, wrapped in a towel. The gun was not loaded. No ammunition was kept near the gun.
On the evening of the Streevy shooting, Roberts entered his stepbrother Kevin P. Bakers' room and took the unloaded gun without permission. Roberts loaded the gun with his own ammunition. Roberts left the residence without informing his family he was in possession of the gun. Roberts confronted Streevy, and shot Streevy with the .357 revolver.
PROCEDURAL CONTEXT
On December 20, 2004, Streevy filed a civil suit against Kevin M. Roberts, Kevin P. Baker, Kevin T. Baker; and against Daniel Roberts and Jason Roberts, who are Kevin M. Roberts' brothers. Streevy alleges that Kevin P. and Kevin T. Baker had a duty to properly secure the .357 revolver. Streevy argues Roberts' stepbrother and stepfather reasonably could have, and should have, foreseen that Roberts could take and violently use the improperly stored .357 revolver.
Streevy wants to introduce the expert testimony of psychologist Dr. David Fink. Streevy believes the testimony of Dr. Fink would aid the jury in understanding whether Kevin P. and Kevin T. Baker were aware of Roberts' propensity to be violent. Kevin P. and Kevin T. Baker plan to introduce the expert testimony of psychiatrist Dr. Carole Tavani to rebut the testimony of Dr. Fink.
On May 10, 2007, Kevin P. and Kevin T. Baker filed: (1) a Motion in Limine to exclude the testimony of Dr. Fink; and (2) a Motion in Limine to exclude the criminal records of the Kevin M. Roberts. Kevin M. Roberts also filed a Motion in Limine to preclude Dr. Fink's testimony. On September 10th and 11th, 2007, the Court held a Daubert hearing on the issue of admissibility of expert testimony and the duty of defendants Kevin P. and Kevin T. Baker, to properly secure the gun. During the hearing the Court heard testimony from: Barbara Roberts Baker, Daniel Roberts, Kevin M. Roberts, Kevin T. Baker, Kevin P. Baker, Dr. Fink and Dr. Tavani. The parties submitted post-trial memoranda.
The Court heard oral argument on March 3, 2008. The Court found the question of whether Kevin T. and Kevin P. Baker had a duty to properly secure the .357 revolver was a factual issue, proper for consideration by a jury. Therefore, the Court denied summary judgment on the issues of a duty to properly secure the weapon and the reasonable foreseeability of Kevin Roberts' use of the handgun.
The Court also found further testimony is needed to lay the foundation for the introduction of Kevin M. Roberts' criminal records. Therefore, the Court denied the Motion in Limine to exclude the criminal record of Kevin M. Roberts. The Court took the Motion in Limine to exclude expert testimony under advisement.
DISCUSSION
In Eskin v. Carden, the Court outlined a five-part test for the admissibility of expert testimony; i.e., whether: (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.
842 A.2d 1222, 1227 (Del. 2004).
There are four nonexclusive factors that the trial court may consider in assessing the reliability of expert opinions: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community. This list, however, is not exclusive. The trial court has broad discretion to consider a variety of other factors. The court's function as the gatekeeper to insure the reliability and relevance of expert testimony must be tied to the facts of a particular case.
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993).
Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).
Id. at 150-52.
Expert Testimony
To prove negligence, Streevy must establish that the defendants' conduct, given the circumstances, did not measure up to the conduct of an ordinarily prudent and careful person, i.e., the kind of care a reasonably prudent and careful person would exercise in similar circumstances. Streevy argues that expert testimony is admissible to demonstrate that the defendants knew Kevin M. Roberts was potentially violent. If the defendants were aware of Roberts' propensity for violence, then they should have kept the .357 revolver in a more secure location.Dr. Fink is a qualified expert in general and forensic psychology. Dr. Fink testified during the Daubert hearing that "the persistent, repetitive pattern of antisocial and dangerous behaviors that is associated with the progression of the mental condition Oppositional Defiant Disorder to Conduct Disorder would have been apparent" to the defendants. Dr. Fink based his medical diagnosis of Roberts on the DSM IV (Diagnostic and Statistical Manual for Mental Disorders) and his experience and training. In sum, Dr. Fink opined that because of Roberts' diagnosed condition he must have exhibited curtain behaviors, and persons living with Roberts must have observed those behaviors.
Streevy argues Dr. Fink's testimony is necessary "because of the blanket denials of the family members" that Kevin M. Roberts demonstrated risky or volatile behaviors. Streevy contends that the expert testimony is necessary to show "a layperson, using their common sense, could see these behaviors and realize that this is a potentially dangerous person."
Expert testimony must aid in the understanding of evidence. Dr. Fink's testimony does not. Instead, plaintiff is offering Dr. Fink for the improper purpose of challenging the credibility of defendants as to what actually took place in their home. The underlying factual issue is what the defendants saw and were aware of. The ensuing issue is what duty of care reasonably arose under the circumstances. How a "typical" person with Kevin M. Roberts' diagnosis would act, while marginally relevant, is not an appropriate subject for expert testimony.
The jury can use common sense to asses whether the defendants should have realized Kevin M. Roberts had the propensity to be violent. Therefore, whether the defendants knew of Roberts' propensity for violence is ultimately a question of fact for the jury. The Court finds Dr. Fink's testimony inadmissible. For the same reason, the testimony of defendant's expert, Dr. Tavani, is neither necessary nor admissible.
CONCLUSION
The testimony offered by Dr. Fink and Dr. Tavani does not meet the standards for admissible expert testimony outlined in Daubert.
THEREFORE, the Motions in Limine are hereby GRANTED.
IT IS SO ORDERED.