In Re: Braxton

• Court: Superior Court of Delaware
• Decided: December 17, 2024
• Docket: N23C-02-129 ASB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

In Re: Asbestos Litigation ) ) ) C.A. No: N23C-02-129 ASB LADONNA SUE BRAXTON, ) Individually and as Independent ) Executrix of the Estate of MARVIN ) JERRY BRAXTON, JR., deceased, ) ) )

Submitted: October 24, 2021 Decided: December 17, 2024

ORDER GRANTING PLAINTIFF’S MOTION TO EXCLUDE THE TESTIMONY OF MEMORY RETENTION EXPERT CHARLES WEAVING, III, PHD.

GRANTED

Michael C. Smith, Esquire, Balick & Balick, Wilmington, Delaware, Attorney for Plaintiffs.

Paul D. Sunshine, Esquire, Reger Rizzo & Darnall, Wilmington, Delaware, Attorney for Defendant

Jones, J. On October 9, 2024, Plaintiff Ladonna Sue Braxton (“Braxton”) filed a

Motion in Limine seeking to exclude the testimony of Dr. Charles Weaver (“Dr.

Weaver”) as an expert witness to describe and explain to the jury various factors that

have been demonstrated scientifically to compromise the reliability of eyewitness

memory. Braxton proffers that Dr. Weaver will apply such scientific factors to the

testimony of decedent Marvin Braxton.

Whether Dr. Weaver’s expert testimony should be admitted turns on whether

such testimony is relevant and reliable in assisting the trier of fact. Under RULE 702

OF THE DELAWARE RULES OF EVIDENCE, if scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence to determine a fact

in issue, a witness qualified as an expert by knowledge, skill, experience, training or

education may testify if the testimony is based upon sufficient facts or data; the

testimony is the product of reliable principles and methods; and the witness has

applied the principles and methods reliably to the facts of the case. 1 When an

expert’s opinion is challenged, the trial judge acts as the gatekeeper and must

determine whether the expert testimony is both relevant and reliable. 2

JMM contends that Dr. Weaver’s testimony is admissible because it will assist

the jury to better understand the scientific principles that influence human memory

and guide the jury to apply such principles to Braxton’s testimony. JMM points to

1 D.R.E. 702. 2 Bell Sports, Inc. v. Yarusso, 759 A.2d 582, 588 (Del.2000) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). 2 the fact that Dr. Weaver has been admitted to testify on similar principles in

approximately thirty-five (35) other cases.

Plaintiff counters that Dr. Weaver’s expert memory testimony is inadmissible

because it would not assist the trier of fact to understand the evidence or to determine

a fact at issue. Plaintiff notes that Dr. Weaver’s testimony goes to the credibility of

the witness—a question for the jury to determine at trial.

JMM asserts that Dr. Weaver will not comment on the credibility of

Braxton’s testimony but will instead provide the jury with an accurate framework

with which to evaluate Braxton’s memory. However, the framework JMM seeks to

provide through Dr. Weaver directly attacks Braxton’s ability to remember events

that occurred 30 to 40 years ago. In doing so, the framework attacks Braxton’s

ability to testify truthfully on such events, and thus undermines his credibility.

According to JMM, Dr. Weaver’s testimony will explain factors that impact the

reliability and accuracy of such memories and then relate these factors to Braxton’s

testimony.

“[E]xpert testimony impermissibly invades the province of the jury if it

embraces matters in which ‘the jury is just as competent as the expert to consider

and weigh the evidence and draw necessary conclusions.’”3 This Court has

previously precluded Dr. Weaver from testifying as an expert witness on memory,

3 Wheat v. State, 527 A.2d 269, 272–73 (Del.1987) (citing IBN–TAMAS v. United States, 407 A.2d 626, 632 (D.C. 1979)) (quoting Lampkins v. United States, 401 A.2d 966, 969 (D.C. 1979)). 3 finding that the testimony was “sufficiently within the common knowledge and

experience of the jury.” 4 Here, the testimony JMM proffers is the exact testimony

previously rejected by this Court on two prior occasions as invading the province of

the jury in considering and weighing the evidence.5 The Court again finds this

evidence is not relevant in assisting the trier of fact to understand the evidence or to

determine a fact at issue.

It is the jury’s role to assess a witness’ credibility. JMM may certainly attack

Braxton’s memory on cross examination and discuss evidence produced at trial

relating to this issue during closing argument; however, it may not use an expert

witness to do so.

IT IS ORDERED that the Motion is GRANTED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge cc: File&ServeXpress

4 See in re: Asbestos Litigation, No. 032010JR Trial Grp., at 88 (Del. Super. Ct. Mar. 4, 2010) (p.88); CNH Indus. America LLC v. Travelers Indem. Co., 2015 5145523 (Del. Super. 2015). 5 Id. 4