IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GIUSEPPE D’ARRO and MARIA ) D’ARRO, husband and wife, ) ) Plaintiffs, ) ) v. ) C.A. No. N21C-01-142 CLS ) CHRISTOPHER L. MORKIDES, ) ) Defendant. ) ) )
Date Submitted: January 14, 2022 Date Decided: March 9, 2022
Upon Defendant’s Motion in Limine to Exclude Opinions of Plaintiff’s Expert. GRANTED.
ORDER
Michael I. Silverman, Esquire, Silverman, McDonald & Friedman, Wilmington, Delaware, 19805, Attorney for Plaintiffs, Giuseppe and Maria D’Arro.
Paul D. Sunshine, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, 19803, Attorney for Defendant, Christopher L. Morkides.
SCOTT, J. 1 INTRODUCTION Before the Court is Defendant Christopher L. Morkides’s (“Mr. Morkides”)
Motion in Limine to Exclude the Neurological Opinions of Plaintiffs Giuseppe and
Maria D’Arro’s (“Mr. and Mrs. D’Arro”) Medical Expert. The Court reviewed the
parties’ submissions. For the reasons that follow, the Defendant’s Motion in Limine
is GRANTED.
FACTS This suit stems from head-on car accident from February 1, 2019, where Mr.
Morkides allegedly struck Mr. and Mrs. D’Arro. Mr. D’Arro suffered injury causing
him to seek medical care.
Mr. and Mrs. D’Arro identified Dr. Mark Eskander (“Dr. Eskander”) as their
expert witness for Mr. D’Arro’s injuries. Dr. Eskander has been licensed to practice
medicine since 2012 and is a Board-Certified orthopedic surgeon. He is currently
and has actively practiced medicine specializing in spinal care, and regularly treats
patients.
Mr. Morkides seeks to exclude Dr. Eskander’s opinions relating to the
concussion because Dr. Eskander fails to provide a factual basis, as required by
Daubert, for his opinions regarding the traumatic brain injury suffered. Additionally,
Mr. Morkides argues Dr. Eskander acts as a “conduit to hearsay” when relying on
the opinions of Dr. Bley and Dr. Voltz in diagnosing the brain injury. Mr. Morkides
2 also makes the argument the expert report should be excluded in its entirety because
the report was not received until six weeks after the deadline for providing expert
reports.
Mr. Morkides takes issue with Dr. Eskander’s findings related to Mr. D’Arro
neurological findings. According to Dr. Eskander’s report, “Mr. D’Arro underwent
treatment with Dr. Bradley Bley and Dr. Matthew Voltz for concussion and post-
concussion syndrome. Records indicate that the patient continues to experience
symptoms of headaches, nausea, fatigue, difficulties with his memory and balance,
dizziness and confusion. MRI imagining of the brain was completed and was
negative for acute intracranial abnormality.” Additionally, “In relation to the
patient’s concussion and postconcussive syndrome, physical therapy has been
recommended with an emphasis on vestibular training secondary to numerous falls.
It is my opinion that all treatment related to the head injury is reasonable, necessary,
and causally related to the motor vehicle collision. It is likely that the patient’s
ongoing deficits related to his postconcussive syndrome have contributed to his
likely need for assisted living.”
Mr. and Mrs. D’Arro argue Dr. Eskander’s neurological testimony is
admissible because he treats patients who suffer from a variety of injuries, including
closed head trauma. They further present Dr. Eskander regularly works with head
3 and brain trauma specialists at his office, and he responsibly relied on the medical
records of Dr. Bley and Dr. Voltz to form his opinions.
STANDARD OF REVIEW The admissibility of expert testimony is governed by Delaware Rule of
Evidence 702 which provides:
[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skills, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.1 The federal standard is identical to the Delaware standard which was interpreted by
the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2
and Kumho Tire Co., Ltd. v. Carmichael.3 In Kumho Tire, the Supreme Court
extended the holdings in Daubert to encompass all expert testimony including,
“scientific, technical or other specialized” knowledge.4
The holdings in Daubert and Kumho have been adopted by the Delaware
Supreme Court as “correct interpretations” of D.R.E. 702.5 “The inquiry envisioned
1 D.R.E. 702. 2 509 U.S. 579 (1993). 3 526 U.S. 137 (1999). 4 526 U.S. at 141. 5 M.G. Bankcorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del.1999). 4 by Rule 702 is, we emphasize, a flexible one ... [t]he focus, of course, must be solely
on principles and methodology, not on the conclusions that they generate.”6
Daubert held that the trial judge must act as a “gatekeeper” and determine
whether the proffered expert testimony is both relevant and reliable.7 Several factors
are considered in this determination, but they are not viewed as a “definitive
checklist or test.”8 Those factors are:
(1) whether a theory of technique has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.9
In addition to the Daubert factors, the trial court must determine the admissibility of
an expert witness using a “five-step test:”
1. The witness is qualified (D.R.E.702); 2. The evidence is otherwise admissible, relevant, and reliable (D.R.E. 401 and 402); 3. The bases for the opinion are those reasonably relied upon by experts in the field (D.R.E.703); 4. The specialized knowledge being offered will assist the trier of fact to understand the evidence or determine a fact in issue (D.R .E.702); and
6 Daubert, 509 U.S. at 594. 7 Id. 8 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del.2006). 9 Daubert, 509 U.S. at 592–93. 5 5. The evidence does not create unfair prejudice, confuse the issues, or mislead the jury (D.R.E.403).10
The focus of the Daubert analysis concerns the principles and methodology used to
form the expert's opinion and not on the resulting conclusions.11 The party seeking
to introduce the expert testimony bears the burden of establishing its admissibility
by a preponderance of the evidence.12
DISCUSSION In applying the “five-step test” to Dr. Eskander’s testimony, the Court finds
the Mr. and Mrs. D’Arro did not established the admissibility of his testimony by a
preponderance of the evidence.
First, an expert witness is qualified to testify through any of the following:
knowledge, skill, experience, training or education.13 Mr. Morkides does raise an
argument regarding Dr. Eskander’s qualifications to give neurological diagnoses in
his motion.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GIUSEPPE D’ARRO and MARIA ) D’ARRO, husband and wife, ) ) Plaintiffs, ) ) v. ) C.A. No. N21C-01-142 CLS ) CHRISTOPHER L. MORKIDES, ) ) Defendant. ) ) )
Date Submitted: January 14, 2022 Date Decided: March 9, 2022
Upon Defendant’s Motion in Limine to Exclude Opinions of Plaintiff’s Expert. GRANTED.
ORDER
Michael I. Silverman, Esquire, Silverman, McDonald & Friedman, Wilmington, Delaware, 19805, Attorney for Plaintiffs, Giuseppe and Maria D’Arro.
Paul D. Sunshine, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, 19803, Attorney for Defendant, Christopher L. Morkides.
SCOTT, J. 1 INTRODUCTION Before the Court is Defendant Christopher L. Morkides’s (“Mr. Morkides”)
Motion in Limine to Exclude the Neurological Opinions of Plaintiffs Giuseppe and
Maria D’Arro’s (“Mr. and Mrs. D’Arro”) Medical Expert. The Court reviewed the
parties’ submissions. For the reasons that follow, the Defendant’s Motion in Limine
is GRANTED.
FACTS This suit stems from head-on car accident from February 1, 2019, where Mr.
Morkides allegedly struck Mr. and Mrs. D’Arro. Mr. D’Arro suffered injury causing
him to seek medical care.
Mr. and Mrs. D’Arro identified Dr. Mark Eskander (“Dr. Eskander”) as their
expert witness for Mr. D’Arro’s injuries. Dr. Eskander has been licensed to practice
medicine since 2012 and is a Board-Certified orthopedic surgeon. He is currently
and has actively practiced medicine specializing in spinal care, and regularly treats
patients.
Mr. Morkides seeks to exclude Dr. Eskander’s opinions relating to the
concussion because Dr. Eskander fails to provide a factual basis, as required by
Daubert, for his opinions regarding the traumatic brain injury suffered. Additionally,
Mr. Morkides argues Dr. Eskander acts as a “conduit to hearsay” when relying on
the opinions of Dr. Bley and Dr. Voltz in diagnosing the brain injury. Mr. Morkides
2 also makes the argument the expert report should be excluded in its entirety because
the report was not received until six weeks after the deadline for providing expert
reports.
Mr. Morkides takes issue with Dr. Eskander’s findings related to Mr. D’Arro
neurological findings. According to Dr. Eskander’s report, “Mr. D’Arro underwent
treatment with Dr. Bradley Bley and Dr. Matthew Voltz for concussion and post-
concussion syndrome. Records indicate that the patient continues to experience
symptoms of headaches, nausea, fatigue, difficulties with his memory and balance,
dizziness and confusion. MRI imagining of the brain was completed and was
negative for acute intracranial abnormality.” Additionally, “In relation to the
patient’s concussion and postconcussive syndrome, physical therapy has been
recommended with an emphasis on vestibular training secondary to numerous falls.
It is my opinion that all treatment related to the head injury is reasonable, necessary,
and causally related to the motor vehicle collision. It is likely that the patient’s
ongoing deficits related to his postconcussive syndrome have contributed to his
likely need for assisted living.”
Mr. and Mrs. D’Arro argue Dr. Eskander’s neurological testimony is
admissible because he treats patients who suffer from a variety of injuries, including
closed head trauma. They further present Dr. Eskander regularly works with head
3 and brain trauma specialists at his office, and he responsibly relied on the medical
records of Dr. Bley and Dr. Voltz to form his opinions.
STANDARD OF REVIEW The admissibility of expert testimony is governed by Delaware Rule of
Evidence 702 which provides:
[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skills, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.1 The federal standard is identical to the Delaware standard which was interpreted by
the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,2
and Kumho Tire Co., Ltd. v. Carmichael.3 In Kumho Tire, the Supreme Court
extended the holdings in Daubert to encompass all expert testimony including,
“scientific, technical or other specialized” knowledge.4
The holdings in Daubert and Kumho have been adopted by the Delaware
Supreme Court as “correct interpretations” of D.R.E. 702.5 “The inquiry envisioned
1 D.R.E. 702. 2 509 U.S. 579 (1993). 3 526 U.S. 137 (1999). 4 526 U.S. at 141. 5 M.G. Bankcorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del.1999). 4 by Rule 702 is, we emphasize, a flexible one ... [t]he focus, of course, must be solely
on principles and methodology, not on the conclusions that they generate.”6
Daubert held that the trial judge must act as a “gatekeeper” and determine
whether the proffered expert testimony is both relevant and reliable.7 Several factors
are considered in this determination, but they are not viewed as a “definitive
checklist or test.”8 Those factors are:
(1) whether a theory of technique has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.9
In addition to the Daubert factors, the trial court must determine the admissibility of
an expert witness using a “five-step test:”
1. The witness is qualified (D.R.E.702); 2. The evidence is otherwise admissible, relevant, and reliable (D.R.E. 401 and 402); 3. The bases for the opinion are those reasonably relied upon by experts in the field (D.R.E.703); 4. The specialized knowledge being offered will assist the trier of fact to understand the evidence or determine a fact in issue (D.R .E.702); and
6 Daubert, 509 U.S. at 594. 7 Id. 8 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del.2006). 9 Daubert, 509 U.S. at 592–93. 5 5. The evidence does not create unfair prejudice, confuse the issues, or mislead the jury (D.R.E.403).10
The focus of the Daubert analysis concerns the principles and methodology used to
form the expert's opinion and not on the resulting conclusions.11 The party seeking
to introduce the expert testimony bears the burden of establishing its admissibility
by a preponderance of the evidence.12
DISCUSSION In applying the “five-step test” to Dr. Eskander’s testimony, the Court finds
the Mr. and Mrs. D’Arro did not established the admissibility of his testimony by a
preponderance of the evidence.
First, an expert witness is qualified to testify through any of the following:
knowledge, skill, experience, training or education.13 Mr. Morkides does raise an
argument regarding Dr. Eskander’s qualifications to give neurological diagnoses in
his motion. Thus, the Court must analyze whether Dr. Eskander is qualified to render
such neurological opinions. Dr. Eskander has nine years of experiencing practicing
medicine and is an orthopedic surgeon whose expertise is the spine. Mr. Morkides
contends neurological conclusions are outside of Dr. Eskander’s field of expertise.
10 Nelson v. State, 628 A.2d 69, 74 (Del.1993). 11 Daubert, 509 U.S. at 594. 12 Bowen, 906 A.2d at 794–95. 13 D.R.E. 702. 6 While the Court understands Dr. Eskander’s specialty is orthopedics, this Court
cannot conclude his specialty makes him qualified to give neurological opinions,
even with his affidavit he received training and has experience treating patients who
suffered from head and brain injuries, including closed head injuries.
The Court also takes issue with Dr. Eskander’s opinions being admissible,
relevant, and reliable due to his lack of methodology. Even if Dr. Eskander was
qualified to testify to neurological opinions, his statements alone, without providing
methodology, will not be sufficient to admit the opinion.14 Here, in Dr. Eskander’s
report, he concludes Mr. D’Arro suffers from concussion and post-concussive
syndrome without explaining nor conducting any neurological testing, which would
be necessary to make any conclusions about the lasting effect of such injuries to a
reasonable degree of medical probability.
Mr. Morkidies contends Dr. Eskander’s findings related to Mr. D’Arro’s
concussion and post-concussion syndrome act as a conduit to hearsay. This Court
agrees. Delaware case law provides that experts may rely on hearsay while forming
their opinions, as long as that hearsay evidence is reasonably relied upon by experts
in the field.15 But, experts are not to serve as a “conduit” for otherwise inadmissible
14 Jones v. Astrazeneca, LP, 2010 WL 1267114, at *9 (Del. Super. Ct. Mar. 31, 2010). 15 See Brandt v. Rokeby Realty Co., 2005 WL 16543621, at *4 (Del. Super. Ct. May 9, 2005) (finding expert's reliance on inadmissible hearsay evidence is limited 7 hearsay statements. “An expert may not, however, rely on hearsay evidence alone to
substantively prove the truth of his statement or opinion. If the expert is merely
acting as a mouthpiece or conduit for another's opinions or statements, he cannot be
said to be acting in his capacity as an expert in the matter and the hearsay evidence
is inadmissible.” The opinions Dr. Eskander presents are opinions of his colleagues,
Dr. Bley and Dr. Voltz, who presumable performed neurological testing on Dr.
D’Arro to come to the conclusions Dr. Eskander presents. While reliance on the
opinions of professional in forming Dr. Eskander’s opinion falls withing Delaware
Rule of Evidence 703’s parameters.16 Mr. and Mrs. D’Arro fail to show Dr.
Eskander’s reliance on such communication renders Dr. Eskander little more than a
mouthpiece for the conclusions of his colleagues.
Additionally, the Court recognizes allowance of Dr. Eskander’s expert
testimony related to Mr. D’Arro’s neurological condition would prejudice Mr.
Morkides as he would be unable to effectively cross-examine Dr. Eskander on his
opinions as they are the opinions of his colleagues.
by Rule 703's requirement that it also be reasonably relied upon by others in the field). 16 D.R.E. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”). 8 Because the Court finds Dr. Eskander, with regard to Mr. D’Arro’s
neurological condition, is not qualified as an expert, his opinions and conclusions
lack methodology making them unreliable, his testimony acts as a conduit to hearsay
and Mr. Morkides would be significantly prejudiced by the testimony, Dr. Eskander
may not testify to Mr. D’Arro’s neurological condition.
CONCLUSION Based on the forgoing reasons, Defendants’ Motion in Limine to exclude
opinions of Plaintiff’s expert is GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.