Opinion
C.A. No. 98C-12-176 JRS
March 4, 2002
Kenneth M. Roseman, Esquire Ciconte, Roseman Wasserman, 1300 King Street, P.O. Box 1126, Wilmington, DE 19899.
Raymond W. Cobb, Esquire Three Mill Road, Suite 206, Wilmington, DE 19806.
Dear Counsel:
As you know, this matter was tried to a jury from December 10 through December 12, 2001. After deliberations, the jury awarded damages to the plaintiff in the amount of $30,000. The jury's responses to special interrogatories indicate that it concluded the defendants were jointly and severally liable for injuries sustained by the plaintiff in an automobile/tractor trailer accident which occurred on December 13, 1997. Defendants have moved for a new trial. They allege that several of the Court's rulings constituted legal error which, when considered together or separately, denied the defendants a fair trial. To follow is the Court's decision on the motion.
I. Facts
Plaintiff, Rosia Kelly, alleges that she was stopped at the Delaware toll booth plaza on southbound I-95 when her vehicle was struck from behind by a tractor trailer operated by defendant, Michael McHaddon. She further alleges that Mr. McHaddon was operating the tractor trailer in the course of his employment with defendant, Swift Transportation Company ("Swift"). While the defendants admitted fault for the accident, they disputed Ms. Kelly's description of the force of impact. Ms. Kelly described the impact as severe; Mr. McHaddon described the impact as minor.
As to damages, Ms. Kelly alleged that she sustained permanent soft tissue injuries and structural nerve damage as a proximate result of the accident and that she incurred medical bills not covered by her personal injury protection insurance. Defendants contended that Ms. Kelly suffered little if any injuries as a proximate result of the accident.
While perhaps not readily apparent, the recitation of the unfortunate procedural history of this case is relevant to the Court's decision on at least one of Defendants' claims of trial error. It should be noted that Defendants' Delaware counsel was not lead counsel in the case.
A. The First Trial
This case was tried to a jury for the first time on January 25, 2001. Prior to trial, plaintiff filed a motion in limine seeking an order precluding Defendants' biomechanical expert from testifying at trial. The motion was granted in part and denied in part. The Court concluded that the biomechanical expert could testify regarding biomechanical issues but could not express medical opinions because she was not qualified to do so.
Kelly v. McHaddon, Del. Super., C.A. No. 98C-12-176, Slights, J. (Jan. 24, 2001) (Letter Op.).
Id. at 4.
The trial lasted three days. Ultimately, after nearly a full day of deliberations, the jury was deadlocked and the Court declared a mistrial.
B. Preparations for the Second Trial
Within two weeks after the first trial, plaintiff propounded additional discovery to the defendants seeking information regarding their experts' compensation, both prior to and in connection with this litigation, and details regarding the experts' prior forensic experience. By March 2001, plaintiff was forced to file its first of several motions to compel this information in the face of defendants' failure to respond to the discovery or plaintiff's inquiries about the discovery. Defendants failed to file a timely response and the motion was granted.
When defendants failed to comply with the Court-ordered deadline for production, or to seek an extension, plaintiff filed her second motion to compel along with a request for sanctions to include an order excluding the experts' testimony at trial. The Court granted the motion in part and ordered sanctions, but declined to preclude the experts from testifying at trial. In September, the plaintiff again was forced to file a motion to compel after defendants again failed to comply with a Court-ordered deadline. The defendants again filed an untimely response to the motion. And, again, after further submissions were received, the Court entered an order granting the request for sanctions (except for expert preclusion) and compelling production of the requested information with the proviso that all objections were waived. Thereafter, defendants served untimely responses to the discovery with objections.
The Court conducted yet another hearing with respect to defendants' failure to comply with the Court's prior orders in November, 2001, now less than two weeks before trial. The Court determined that defendants once again had violated the Court's order without any adequate explanation. The Court "drew a line in the sand," as it had done previously, and directed that defense counsel produce the information at a date and time certain. Defendants did not comply. Consequently, two days before trial, the Court — for the sixth time — directed the defendants to produce the information or lose their experts.
The serial nature of the defendants' blatant disregard of the Court's orders before trial caused the Court to conclude that defense counsel intentionally was disregarding the Court's directions. In almost cartoon-like fashion, the Court would "draw a line in the sand" and defense counsel would cross it. The Court's expressions of frustration and displeasure did not cure the problem. Lines were drawn and crossed with remarkable (and troubling) frequency.
In the midst of the eleventh hour hearings on plaintiff's motions to compel, the Court inquired of counsel whether a second pretrial conference was needed. Both parties advised the Court that an updated pretrial conference was not necessary. According to counsel, the only outstanding issue was the ongoing dispute with respect to outstanding discovery.
It was against this procedural backdrop that the second trial commenced on December 10, 2001.
C. The Second Trial
The second trial began much as the first one did. In his opening statement, plaintiff's counsel described a forceful impact which caused disabling injuries to Ms. Kelly. He discounted the opinions of defendants' experts because they were "hired guns." He asked the jury to disregard Mr. McHaddon's description of the accident because it was inconsistent with the evidence.
For his part, defense counsel renewed the themes which were showcased by the defendants in the first trial. He explained that Mr. McHaddon would describe the impact as a slight impact which occurred after his tractor trailer drifted into the back of Ms. Kelly's car as they were waiting in line at the toll plaza. Significantly, defense counsel told the jury that Mr. McHaddon was unable to appear live at trial so the testimony would be presented by reading a transcript of his testimony from a prior proceeding. Defense counsel represented that Mr. McHaddon's description of the accident would be supported by photographs of the vehicles taken after the accident and by expert biomechanical testimony regarding the force of impact. He also explained that an orthopaedic surgeon retained by him would testify that injuries of the nature and kind described by the plaintiff were unlikely to result from such a minor impact.
This issue had not been addressed prior to trial. Defense counsel never advised the Court or opposing counsel of Mr. McHaddon's unavailability for trial. Because the parties declined the Court's invitation to conduct an updated pretrial conference, the pretrial stipulation was never amended to reflect that defense counsel intended to rely upon Mr. McHaddon's prior trial testimony. Plaintiff's counsel learned of this for the first time when the Court did: during defense counsel's opening statement. Plaintiff's counsel voiced no objection at that time.
Plaintiff's case-in-chief mirrored her presentation from the first trial. The same witnesses were called and, for the most part, the same questions were asked. Indeed, the trial depositions of plaintiff's experts from the first trial were used again in the second trial. Plaintiff also read an excerpt of Mr. McHaddon's testimony from the first trial.
With their first two witnesses, the defendants' presentation also appeared to mirror their presentation from the first trial. This changed, however, when they presented the testimony of their biomechanical engineer. Prior to her testimony, the Court reminded defense counsel of the Court's ruling with respect to the permissible scope of the expert's testimony and directed that counsel confine the testimony within those bounds. Defense counsel assured the Court of compliance. Nevertheless, consistent with a past-proven approach of "pushing the envelope" with respect to orders of the Court, defense counsel posed a question to the expert intentionally designed to elicit testimony with respect to causation of injury. On the heels of an established pattern of violating Court orders, the Court concluded that the question was an advertent effort to violate the spirit, if not the letter, of the Court's prior order, admonished counsel at sidebar and instructed the jury to disregard the question because it related to a subject area beyond the witnesses' expertise.
On the morning of the last day of trial, counsel advised the Court that a dispute had surfaced with respect to the presentation of Mr. McHaddon's testimony from the first trial. Plaintiff's counsel alleged that the former testimony was hearsay and that no exceptions to the hearsay rule were applicable. Defense counsel argued that the former testimony was not hearsay and, even if it was hearsay, it was admissible as the former testimony of an unavailable witness. Upon inquiry, the Court learned that no meaningful effort had been made to secure Mr. McHaddon's presence at trial. After hearing argument from counsel, the Court determined: (1) the prior testimony was hearsay; (2) the witness was not unavailable; and (3) the "other exceptions" provision of D.R.E. 803 did not apply because defense counsel had not given pretrial notice of its intent to use Mr. McHaddon's prior testimony as required by the rule. Accordingly, the Court did not allow Mr. McHaddon's prior testimony to be read to the jury.
Defense counsel did not argue that the "other exceptions" provision applied. The Court considered this issue sua sponte.
At the conclusion of the evidence, the Court conducted a prayer conference with counsel. Among the jury instructions proffered by the defendants was a charge from the Court's pattern instructions entitled: "Statements Made by Patient to Doctor — Subjective and Objective Symptoms." The Court declined to give the instruction. Specifically, the Court indicated that the instruction, from this judge's perspective, required the Court to comment on the evidence presented during trial in a manner inconsistent with the Court's limited purpose when instructing the jury on the law: to provide a complete and accurate explanation of applicable legal principles.
Pattern Jury Instructions for Civil Practice in the Superior Court of the State of Delaware, § 23.13 (2000).
Also at or near the close of the evidence, defense counsel moved for judgment as a matter of law on behalf of Swift. Defense counsel argued that by failing to present evidence that McHaddon was operating the tractor trailer on behalf of Swift at the time of the accident, plaintiff had failed to prove agency and, consequently, respondeat superior did not apply. The Court reserved decision on the motion.
Super.Ct.Civ.R. 50(a).
Super.Ct.Civ.R. 50(b).
Upon receiving the Court's instructions and the arguments of counsel, the jury retired to deliberate the evidence. After several hours, the jury announced its verdict in favor of the plaintiff and, as stated, awarded damages in the amount of $30,000.
D. Defendants' Motions for New Trial
McHaddon has raised three issues in his motion for new trial, each of which center on arguments that the Court committed legal error before and/or during the trial: (1) the Court erred by not allowing McHaddon's prior trial testimony to be read to the jury; (2) the Court erred by refusing to give the "subjective versus objective findings" jury instruction; and (3) the Court erred by limiting the testimony of the defendants' biomechanical engineer pretrial and later by instructing the jury that defense counsel's question of the biomechanical engineer sought to elicit testimony beyond the witness' expertise. For its part, Swift has renewed its motion for judgment as a matter of law and has incorporated by reference the arguments raised by McHaddon in his motion for new trial.
Plaintiff has filed memoranda opposing both motions.
III. Discussion
A. Standard of Review
The Court's standard of review on a motion for new trial is well-settled. The jury's verdict is presumed to be correct. Barring exceptional circumstances, the Court should not set aside a jury's verdict unless it contradicts the great weight of the evidence, or the Court is convinced the jury disregarded the applicable rules of law. Of course, Delaware courts will also order a new trial when the jury's verdict is tainted by legal error committed by the trial court before or during the trial.
Mills v. Telenczak, 345 A.2d 424, 426 (Del.Super. 1975).
Storey v. Camper, 401 A.2d 458, 465 (Del.Super. 1979).
Storey v. Castner, 314 A.2d 187, 193 (Del. 1973).
e.g. DuPhilly v. Delaware Electric Cooperative, Inc., 662 A.2d 821, 833-34 (Del. 1995).
B. The Admissibility of McHaddon's Prior Trial Testimony
1. McHaddon's Prior Testimony Is Hearsay
Defendants argue that McHaddon's prior trial testimony is not hearsay. Defendants point generally to the definition of hearsay, and then offer a bald argument that McHaddon's prior trial testimony does not fit the definition. Despite the Court's request, defendants (and plaintiff) declined to provide the Court with any authority to support their position on this issue.
D.R.E. 801 © defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Although the issue was raised quite suddenly during the trial, allowing little time for the Court or the parties to research the issue, the Court did adjourn the proceedings briefly to consider the issue and ultimately concluded that the prior testimony was hearsay. The Court then set about reviewing potentially applicable exceptions. Finding none that applied, the Court excluded the prior testimony.
The Court's conclusion with respect to the hearsay status of the former testimony was well-founded. The definition itself, touted by the defendants as support for their position, actually explains why testimony from a prior trial is hearsay. The definition excepts testimony offered at "the trial" from the proscriptions of the hearsay rule. Prior testimony, or prior proceedings, are not mentioned in the definition. Indeed, the only mention of former testimony is in one of the rules enumerating exceptions to the hearsay rule.
Interpretive exercises notwithstanding, and lest there be any doubt, the evidence treatises settle the issue. "Assuming that a declarant, defined in subdivision (b), made a statement, defined in subdivision (a), the statement is hearsay if two things are true: the statement was made at a time when the witness was not testifying before the trier of fact to whom the statement will be given, and the statement is offered for the purpose of having the trier of fact believe that it is true." Both elements are satisfied by McHaddon's prior trial testimony.
Treatises construing the identical Federal Rule of Evidence are persuasive authority. See Demby v. State, 695 A.2d 1152, 1156 (Del. 1996).
Saltzburg, Martin, Capra, Federal Rules of Evidence Manual, Rule 801 Editorial Comment, at 1464-65 (1998) (emphasis supplied).
Although sparse, Delaware case-law also supports the notion that testimony from a former trial is hearsay when offered at a subsequent trial for the truth of the matters asserted. In Phillips, the Court determined that prior trial testimony was hearsay but then concluded under the circumstances sub judice that the testimony was admissible under the "former testimony" and "residual" exceptions to the hearsay rule.
See e.g. State v. Phillips, Del. Ch., C.A. No. 276, Hartnett, V.C. (April 25, 1980) (Mem. Op.) (admissibility of prior trial testimony considered under the hearsay rule and applicable exceptions).
2. No Exceptions to the Hearsay Rule Apply
Having concluded that McHaddon's former testimony is hearsay, the Court next considers whether it erred in its conclusion that the testimony should not be admitted under an exception to the hearsay rule. At trial, Defendants argued that McHaddon was "unavailable" and, therefore, his prior trial testimony was admissible under the "former testimony" exception. In response to the Court's inquiry, defense counsel candidly advised the Court that no real effort had been made to secure Mr. McHaddon's presence at trial. This acknowledgment is fatal to Defendants' argument that Mr. McHaddon was "unavailable" for trial. The notion of "unavailability" assumes some good faith effort to secure the witnesses' presence at trial voluntarily. No such effort was made in this case.
Apparently, Mr. McHaddon, who lives out-of-state, advised counsel that he did not wish to fly in view of the events of September 11, 2001. Counsel did not explore alternative means to secure his presence at trial.
See Shamrock Associates v. the Dorsey Corp., Del. Ch., C.A. No. 7678, Brown, C. (July 24, 1984) (Mem. Op.) (citing Creamer v. General Teamsters Local Union 326, 560 F. Supp. 495 (D.Del. 1983)). See also Gov't of Virgin Islands v. Aquino, 378 F.2d 540, 550-52 (3d Cir. 1967) ("government must show diligent effort on its part to secure the [witnesses' presence]").
In Phillips, supra, the Court apparently was not presented with an argument that the declarant was not "unavailable."
A witnesses' former testimony is admissible under the applicable exception only if the witness is "unavailable." Mr. McHaddon was not "unavailable." His testimony, consequently, was not admissible under the "former testimony" exception.
See United States v. Faison, 679 F.2d 292, 295 (3d Cir. 1982).
Although not argued by the defendants at trial, the Court also considered whether McHaddon's former testimony should be admitted under the so-called "residual exception" to the hearsay rule. The exception is multi-layered and its application should be true to the letter of the rule and reserved for "extraordinary circumstances." In keeping with this direction, the Court considered each element of the exception before ruling during the trial and will do so again here.
See D.R.E. 803(24), which provides: "A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is admissible] if the court determines that: (A) The statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and © the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant."
See United States v. DeVillio, 983 F.2d 1185, 1190 (2d Cir. 1993). See also Brown v. Liberty Mutual Ins. Co., Del. Supr., 774 A.2d 232, 242 (2001) ("[The residual exception] must be construed narrowly to ensure that application of [it] does not `dramatically revise the hearsay rule'") (citation omitted).
Certainly, the former testimony was given under circumstances which guaranteed its trustworthiness; it was given during a trial involving the same parties, same attorneys, and the same judge. A full and fair opportunity to cross examine the witness was afforded plaintiff's counsel. The testimony addressed a material issue: the speed of the vehicles at impact and the force of impact generated in the collision. Although probative of these issues, the Court cannot say that Mr. McHaddon's prior testimony was "more probative on the point[s] than any other evidence . . . ." Defendants presented the testimony of a biomechanical engineer who, relying, inter alia, upon the police investigative reports of the accident and photographs of the vehicles taken after the accident, opined that McHaddon's vehicle was traveling no more than five miles per hour at impact and that the force of impact was minimal. This expert testimony was duplicative of McHaddon's former testimony. Moreover, if anything, the defendants' expert presentation likely was more probative of the circumstances of the accident than McHaddon's description because it addressed the objective evidence relating to the accident in a learned context arguably untainted (or, at least, less tainted) by the adversary process.
D.R.E. 803(24)(B). The Court acknowledges that when it addressed this issue during trial it concluded that "every aspect" of the "residual exception" was satisfied except the pretrial notice requirement. As stated, the Court has reconsidered each element of the exception in connection with this Motion For New Trial and the product of this renewed analysis, with refinements and adjustments, is reflected here.
The rule last mandates that the Court consider the "interests of justice." Here, the Court again considered the cumulative nature of the testimony, as noted above. In addition, the Court could not ignore that the defendants' predicament was of their own making. The Court had offered the parties an opportunity to participate in an updated pretrial conference. Both parties declined. Consequently, the pretrial order entered in advance of the first trial was the operative "road map" for the trial. It made no mention of McHaddon testifying by former testimony.
Super.Ct.Civ.R. 16(e); McLain v. GMC, 569 A.2d 579, 582 (Del. 1990).
Finally, the Court considered the prejudice to the plaintiff that might arise from introducing McHaddon's prior testimony in lieu of his live appearance at trial. The Court concluded that the plaintiff deserved an opportunity to consider whether she wished to stand on her prior examination of McHaddon or whether she wished to attempt a new strategy on cross examination in light of the unsettled outcome of the first trial. Indeed, the rule requires the party offering the statement under the "residual exception" to provide pretrial notice "to the adverse party." The express purpose of the pretrial notice requirement is to provide the adverse party with a "fair opportunity to prepare to meet" the hearsay statement. In this context, a "fair opportunity" would include an opportunity to conduct a pretrial deposition of McHaddon to supplement or, perhaps, attempt to cure certain aspects of the prior cross-examination. While the pretrial notice requirement may not be absolute, some effort at compliance, or reasonable explanation excusing compliance, must be shown. Neither was proffered to the Court by the defendants here.
See e.g. Mace v. Clark, Del. Super., C.A. No. 97C-05-253, Slights, J. (Dec. 7, 2000) (Letter Op.) (after determining that witness was not "unavailable," Court noted that plaintiff's counsel was entitled to have witness appear at retrial to attempt a new strategy on cross examination in an effort to improve the result of the trial).
D.R.E. 803(24). See also United States v. Leslie, 542 F.2d 341, 347-48 (3d Cir. 1978) (addressing pretrial notice requirement).
Id.
Mace, supra.
Id. During trial, the Court indicated that the pretrial notice requirement should be strictly enforced in keeping with the general thinking that the "residual exception" is an extraordinary remedy. See United States v. Oates, 560 F.2d 45, 72-73 n. 30 (2d Cir. 1977) ("There is absolutely no doubt that Congress intended that the requirement of advanced notice be rigidly enforced"). On reflection, however, the Court favors a more flexible approach to pretrial notice which recognizes the realities of the often fluid nature of the trial setting. Nevertheless, the notice requirement cannot be ignored by the parties or the Court and some effort at compliance, or reasonable justification for noncompliance, must be demonstrated.
The Court notes by way of distinction that the "pretrial notice" component of the "residual exception" was not considered by Vice Chancellor Hartnett in Phillips, supra.
The fact that defense counsel had represented to the jury in his opening statement that they would hear from McHaddon during the trial was not lost on the Court. Initially, plaintiff's counsel requested the Court to instruct the jury that defense counsel had not, and could not, produce McHaddon's testimony as promised. The Court declined. Eventually, it was agreed that plaintiff's counsel would not mention during his closing argument that defendants had failed to produce McHaddon or read his testimony during the trial. The Court was satisfied that such forbearance adequately would address any prejudice that would flow from the unfulfilled promise. And, again, the Court reminded defense counsel that the predicament was of their own making.
In determining that McHaddon's prior testimony properly was excluded from the second trial, the Court is mindful that "the hearsay rule should not be applied mechanistically to defeat the ends of justice." Under all of the extant circumstances, however, the Court is satisfied that it properly exercised its discretion to conclude that the "interests (or ends) of justice" would not be offended and, indeed, would be preserved by excluding the prior testimony.
Demby v. State, 695 A.2d 1152, 1157 (Del. 1996) (citations omitted).
C. The Subjective vs. Objective Symptom Instruction
As stated, the Court declined to read one of its Pattern Civil Jury Instructions on the grounds that the instruction constituted an improper comment on the evidence. The instruction in question states:
Del. Const. Art. IV, § 19 (1897) ("Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law").
A doctor's opinion about a patient's condition may be based entirely on objective symptoms such as those revealed through observation, examination, tests or treatment. Or the opinion may be based entirely on subjective symptoms, revealed only through statements made by the patient. Or the opinion may be based on a combination of objective symptoms and subjective symptoms.
If a doctor has given any opinion based on subjective symptoms described by a patient, you may of course consider the accuracy of the patient's statements in weighing the doctor's opinion.
Pattern Jury Instructions for Civil Practice in the Superior Court of the State of Delaware, § 23.13 (2000).
Pattern Jury Instructions for Civil Practice in the Superior Court of the State of Delaware, § 23.13 (2000).
The first three sentences of this instruction, from this judge's perspective, do not recite legal principles so much as they recite, or purport to recite, medical facts. The instruction, in essence, states as a matter of law what doctors rely upon when formulating their opinions. It seems more appropriate for physicians to address this issue in their testimony than for the Court to do so in its instructions of the law. Indeed, different medical experts may well hold different opinions with respect to the nature of the information a physician should rely upon when formulating a medical diagnosis or other medical opinion. Unless the matter is not controverted to any extent — and it certainly was in this case — the Court's statement of the proposition as a matter of law arguably would invade the province of the jury.
See Buckley v. R.H. Johnson Co., 25 A.2d 392, 399 (Del.Super. 1942).
Defendants argue that the Court is obliged to read the instruction because it is contained in our Pattern Instructions. Specifically, the defendants cite Peak v. State for the proposition that the "pattern jury instructions . . . should be followed in all cases unless unusual circumstances dictate modification." In Peak, the Court expressed concern that the trial court's modification of a pattern criminal instruction may actually have caused a misstatement of the law. When the trial court determines not to read an instruction at all, however, the concern addressed in Peak is not implicated, particularly if other instructions cover the issue. In this case, the Court instructed the jury that when assessing the credibility of an expert's opinion they could consider "the reliability of the information supporting the expert's opinions. . . ." Of course, among the information considered by the medical experts were the subjective symptoms of pain expressed by the plaintiff. Thus, the proffered "objective versus subjective symptoms" instruction was duplicative of the Court's "expert witness" instruction and, therefore, not needed to provide a complete and accurate statement of the law. Moreover, as noted, the instruction arguably would have caused the Court to tread unnecessarily on the fact-finding function of the jury. For these reasons, the decision to decline to read the instruction was proper.
Peak v. State, 1999 Del. LEXIS 98, *2 (Del.Supr.) (ORDER).
Id.
See Universal Products Co. v. Emerson, 179 A.2d 387, 397 (Del. 1935) (finding no error when the court refused to give requested instructions because the legal concept was covered adequately in other instructions). See also Culver v. Bennett, 588 A.2d 1094, 1096 (Del. 1991) (a party is not entitled to a particular jury instruction but does have the unqualified right to have the jury instructed on a correct statement of the substance of the law).
Kelly v. McHaddon, Del. Super., C.A. No. 98C-12-176, Slights, J., Jury Instructions at 16 (Dec. 12, 2001).
Defense counsel was free to argue from the Court's "expert witness" instruction that the plaintiff's medical experts' opinions were not reliable because the information supplied to them, including the patient's subjective complaints of pain, were not reliable.
D. The Limitation on the Biomechanical Engineer's Testimony and the Curative Instruction
The Court has reviewed its decision on plaintiff's motion in limine with respect to the defendants' biomechanical engineer and is satisfied that the decision was correct. The decision was reduced to writing and the Court will rely upon the analysis there to dispose of the issue as raised in the motion for new trial. Nothing new has been presented to the Court to justify a different result.
Kelly v. McHaddon, Del. Super., C.A. No. 98C-12-176, Slights, J. (Jan. 24, 2001) (Letter Op.).
With respect to the argument that the Court erred when it instructed the jury regarding the limitations the Court had placed on the testimony of the biomechanical engineer, the Court again has reviewed the transcript of the question which prompted the curative instruction to the jury. The Court remains satisfied that the question constituted a blatant effort to elicit testimony from the expert which was beyond the bounds set by the Court in its ruling on the motion in limine. Specifically, the question asked the expert to provide an opinion with respect to whether the accident could have caused injury to the plaintiff. The Court had already expressly determined that causation was a medical issue to be addressed to the expertise of a medical doctor.
Defendants argue that the question was proper because it did not seek to elicit testimony that the accident would not cause injury to this plaintiff, but instead sought to elicit testimony that the accident would not cause injury to any plaintiff. How that question, and/or the testimony it intended to elicit, is in any way consistent with the Court's prior ruling has not been answered by the defendants.
The question asked: "Based upon your biomechanical analysis, and compared to the physical evidence that you reviewed, did you come to a conclusion whether biomechanical literature supported an injury being caused from the events of December 13, 1997?" (emphasis supplied). When defense counsel asked the Court to reconsider the propriety of the curative instruction, and the Court reviewed the offending question again in this context, the Court was compelled to note: "I'll give you (defense counsel) credit, cleverly worded, but — and this ought to perhaps be an example in a legal writing text — but the clever use of the passive voice, an injury being caused, is the only reason that this question did not ask directly the question that I ruled was improper. The use of the passive voice as a way to get around my ruling is not going to be countenanced, and I'm not going to waiver from that. The essence of the question was what I ruled was improper.
The Court determined that its prior order clearly had been violated. In view of the prior history of systemic violations of Court orders by defense counsel, the Court believes that the violation was intentional or, at the very least, representative of yet another effort by defense counsel inappropriately to "push the envelope." Accordingly, the Court's instruction — admittedly strong in its tone — was a proper means by which to cure the prejudice to the plaintiff caused by the improper question.
See Saunders v. State, 375 A.2d 453, 455 (Del. 1977) (the decision to give a curative instruction is "entirely within the discretion of the Trial Judge").
E. Swift's Motion for Judgment as a Matter of Law
The Court's order excluding McHaddon's prior trial testimony was not without its consequences to the plaintiff. Without McHaddon's testimony, the jury was presented with absolutely no evidence upon which to conclude that McHaddon was operating within the scope of his employment with Swift at the time of the accident. No stipulations with respect to agency, or admissions of agency by either defendant, were presented to the jury. Consequently, absent direct evidence or a stipulation of the parties, the jury lacked a factual basis to return a verdict against Swift on the basis of respondeat superior or otherwise. That verdict, therefore, cannot stand.
IV. Conclusion
Based on the foregoing, Defendants' Motions for New Trial are DENIED. Swift's Motion for Judgment as a Matter of Law is GRANTED.
IT IS SO ORDERED.