Walton, Sr. v. Cole ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES DEAN WALTON, SR., )
LINDA JANE MCGEE, KENDRA )
ADAIR as personal representative for )
the estate of JAMES D. WALTON, JR., )
and KENNETH A. BRYANT, III )
as personal representative for the )
estate of RICHARD GREGORY )
CHITTICK, )
) C.A. No. N18C-04-314 FWW
Plaintiffs, )
)
)
v. )
)
ROGER LOUIE COLE, )
)
Defendant. )
)
Submitted: December 28, 2021
Decided: January 3, 2022
Upon Defendant’s Motion to Exclude Plaintiffs’ Claims for Future Lost Savings
GRANTED IN PART and DENIED IN PART.
ORDER
Lawrance Spiller Kimmel, Esquire, Brian S. Legum, Esquire, Kimmel, Carter,
Roman, Peltz & O’Neill P.A., 56 W. Main St. Fourth Floor, Newark, DE, 19702,
Attorneys for Plaintiffs.
Daniel P. Bennett, Esquire, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, 919
North Market Street, Suite 200, Wilmington, DE, 19801, Attorney for Defendant.
WHARTON, J.
This 3rd day of January 2022, upon consideration of Defendant Roger Louie
Cole’s (“Cole”) Motion to Exclude Plaintiffs’ Claims for Future Lost Savings
(“Motion”); the Response of Plaintiffs James Dean Walton, Sr. (“Walton, Sr.”),
Linda Jane McGee (“McGee”), Kendra Adair (“Adair”)1, and Kenneth Bryant, III
(“Bryant”), the latter two as personal representatives for the estates of James D.
Walton, Jr. (“Walton, Jr.”), and Richard Gregory Chittick’s (“Chittick”) respectively
(collectively “Plaintiffs”); and the parties’ supplemental memoranda as ordered by
the Court, it appears to the Court that:
1. On April 30, 2018, Plaintiffs brought this wrongful death action against
Cole.2 Plaintiffs claim that Cole operated a motor vehicle in a negligent, reckless,
and/or careless manner resulting in the deaths of Walton, Jr. and Chittick.3 In
particular Walton, Sr. and McGee claim they are entitled to damages due to the
wrongful death of their son, Walton, Jr., pursuant to 10 Del. C. §§ 3722 and 3724.4
Bryant, in his capacity as the personal representative for the estate of Richard
Gregory Chittick, pursuant to 10 Del. C. §§ 3701, 3702, 3704, and 3707, claims he
is entitled to recover all damages that would be due to Chittick.5 Adair makes a
1
Kendrick Adair replaced Nicholas Cavnar as the personal representative of the
Estate of James Walton, Jr.
2
Compl., at 1, D.I. 1.
3
Id.
4
Id., at 4.
5
Id., at 3-4.
2
similar claim as the personal representative for Walton. Jr.’s estate.6 Bryant, in his
capacity as representative for Chittick’s estate, also claims damages for the wrongful
death of Walton, Jr., Chittick’s spouse, pursuant to 10 Del. C. §§ 3722 and 3724.7
Adair makes a similar claim on behalf of Walton, Jr.’s estate for Chittick’s wrongful
death.8
2. For purposes of this motion, it is sufficient to say that Walton, Jr. and
Chittick, who were married to each other, died simultaneously when they were
struck by a vehicle operated by Cole. A fuller exposition of the facts is found in this
Court’s Opinion on Cole’s Motion for Summary Judgment.9
3. On July 13, 2021, Cole moved to exclude Plaintiffs’ claims for Future
Lost Savings based on: (1) a lack of standing to bring suit on the part of the estates’
personal representatives to claim damages as a result of wrongful death of the spouse
of each estate’s decedent; and (2) unsubstantiated and speculative expert economic
opinions as to the decedents’ future savings.10 Specifically, Cole argues that each
decedent’s will presumes that his spouse predeceased him if the two die within 60
days of each other.11 Thus, if Chittick predeceased Walton, Jr., Chittick’s estate
6
Id. at 3.
7
Id., at 4.
8
Id.
9
2020 WL 4784599 (Del. Super. 2020).
10
Def’s. Mot. to Exclude, D.I. 50.
11
Id.
3
cannot bring a claim for Walton, Jr.’s wrongful death because Chittick is presumed
to have died before Walton, Jr., and vice versa.12 Cole also claims that Plaintiffs’
expert economist’s testimony should be excluded because he failed to properly
account for each decedent’s living expenses in calculating future savings.13
4. Plaintiffs responded on August 4, 2021.14 They argue that they have
standing as beneficiaries under Delaware’s Wrongful Death Statute and that Cole’s
reliance on Title 12 of the Delaware Code dealing with decedents’ estates is
misplaced. Further, they argue that their expert, Dr. Lawrence Spizman (“Dr.
Spizman”), did account for future personal expenses, and, thus, his opinion
testimony regarding future savings is admissible.15
5. In his motion, Cole only challenges the standing of the personal
representatives of the estates to sue for the wrongful death of each decedent’s spouse.
Wrongful death actions are governed by Chapter 37 of Title 10 of the Delaware
Code. That chapter provides that all causes of action that a decedent had at the time
of his death survive to the executors or administrators of the person to whom the
cause of action accrued.16 A wrongful death “action under this subchapter shall be
12
Id.
13Id.
14Pls.’ Resp. Mot. to Exclude, D.I. 52.
15
Id.
16
10 Del. C. § 3701.
4
for the benefit of the spouse, parent, child and siblings of the deceased person.17 The
Superior Court has held that “all of those who are specified in §3724(a), namely,
wife, husband, parents and children, are entitled to recover their losses in those
categories.”18 Although Walton and Chittick are deceased, 10 Del. C. § 3704
contemplates that their personal representatives may properly assert wrongful death
claims on their behalf:
No action brought to recover damages for injuries to the person by
negligence or default shall abate by reason of the death of the plaintiff,
but the personal representatives of the deceased may be substituted as
plaintiff and prosecute the suit to final judgment and satisfaction.
6. Cole argues in his Motion that Title 12 of the Delaware Code governs
who has standing to bring this wrongful death action. He argues: (1) Title 12 Del.
C. §§ 701, 702, and 706 govern the disposition of property where the disposition of
property depends on the priority of death, except where a will makes that
determination; (2) the wills of each decedent provide that if the decedents should
die within 60 days of each other they are presumed to have predeceased each other;
and (3) since each spouse is presumed to have died before the other, neither can sue
for the wrongful death of the spouse who is presumed to have survived him.19
17
10 Del. C. §3724(a).
18
Fall v. Evans, No. C.A. 85C-FE-30, 1989 WL 31558, at *5 (Del. Super. Ct. Mar.
28, 1989), aff’d, 577 A.2d 752 (Del. 1990) (citing Sach v. Kent General Hosp., 518
A.2d 695, 696 (Del. Super. 1986).
19
Def.’s Mot. to Exclude, at 3-6. D.I. 50.
5
7. On November 28th, the Court directed the parties to submit supplemental
memoranda addressing three questions: (1) What standard should the Court employ
to address the request to exclude the spousal wrongful death claims – the Rule
12(b)(6) dismissal standard, the Rule 56 summary judgment standard, or some other
standard; (2) Do the parties agree that James Dean Walton, Jr. and Richard Gregory
Chittick died simultaneously; and (3) Under Delaware’s Wrongful Death Statute,
must a plaintiff suing for the wrongful death of his spouse survive the deceased
spouse?20
8. They parties have answered. Cole responds that the standard the Court
should employ is two-fold. First, regarding standing, because matters outside of the
pleadings must be considered, the Court should employ the standard applicable to
motions for summary judgment.21 Regarding, Plaintiffs’ expert witness’ testimony,
the Court should employ the familiar Daubert standard.22 Plaintiffs agree.23 Cole
answers the other two questions affirmatively – both decedents died simultaneously
and a plaintiff suing for the wrongful death of his spouse must survive his spouse.24
Plaintiffs agree that there is no evidence that Walton, Jr. and Chittick died other than
20
D.I. 56.
21
Def.’s Supp. Sub., D.I. 57.
22
Id.
23Pls.’ Supp. Sub., D.I. 60.
24
Def.’ Supp. Sub., D.I. 57.
6
simultaneously.25 Plaintiffs contend that even though the deaths were simultaneous,
each decedent had a statutory wrongful death claim for his spouse’s death at the time
of his own death which survived.26 They did not answer the Court’s question
directly.
9. Because matters outside of the pleadings must be considered to resolve
the motion the Court will employ the standard applicable to motions for summary
judgment. Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate
where there is “no genuine issue as to any material fact…and the moving party is
entitled to a judgment as a matter of law.”27 The moving party initially bears the
burden of establishing both of these elements; if there is such a showing, the burden
shifts to the non-moving party to show that there are material issues of fact for
resolution by the ultimate fact-finder.28 The Court considers the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any” in determining whether to grant summary judgment. 29 Summary
judgment will be appropriate only when, upon viewing all of the evidence in the
light most favorable to the non-moving party, the Court finds that there is no genuine
25
Pls.’ Supp. Sub., D.I. 60.
26
Id.
27Del. Super. Ct. Civ. R. 56(c).
28
See, More v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citations omitted).
29
Del. Super. Ct. Civ. R. 56(c).
7
issue of material fact.30 When material facts are in dispute, or “it seems desirable to
inquire more thoroughly into facts to clarify the application of the law to the
circumstances, summary judgment will not be appropriate.”31 However, when the
facts permit a reasonable person to draw but one inference, the question becomes
one for decision as a matter of law.32
10. The wills of both Walton, Jr. and Chittick create a fictive presumption
that each predeceased the other. In truth, they died simultaneously, a fact upon
which the parties agree. While the creation of survivorship presumptions may be
helpful in estate planning, asset distribution, and probate efficiency, it is not clear
why such presumptions should apply to wrongful death actions, which are governed
by separate statutes. Nevertheless, the Court need not resort to Title 12 to determine
that the estates may not sue for the wrongful deaths of their decedents’ spouses.
11. Each decedent must have had an existing cause of action for the
wrongful death of his spouse at the time of his own death in order for his estate’s
personal representative to pursue that claim.33 Obviously, someone who predeceases
his spouse may not sue for the subsequent wrongful death of that spouse. Thus, the
30
Singletarry v. Amer. Dept, Ins. Co., 2011 WL 607017 at *2 (Del. Super. 2011)
(citing Gill v. Nationwide Mut. Inc. Co., 1994 WL 150902 at *2 (Del. Super 1994)).
31
Ebersole v. Lowengrub, 180 A.2d 467, 468-69, (Del. 1962) (citing Knapp v.
Kinsey, 249 F.2d 797 (6th Cir. 1957)).
32
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
33
10 Del. C. § 3701.
8
viability of a wrongful death action for the death of a spouse depends on establishing
that the spouse bringing suit had a claim at the time of his death. Because the deaths
were truly simultaneous, neither personal representative is able to establish
survivorship necessary to support a viable claim. The spousal wrongful death claims
did not survive to be pursued by personal representatives because they did not exist.
Cole’s motion to dismiss the spousal wrongful death claims is GRANTED.
12. In view of the Court’s ruling on standing, it may be unnecessary to
determine the admissibility of Dr. Spizman’s testimony. However, in the event
Plaintiffs intend to offer his testimony in connection with the remaining wrongful
death claims, the Court addresses that portion of Cole’s Motion seeking to exclude
Dr. Spizman’s opinion testimony. Cole argues that Dr. Spizman’s opinions are not
admissible because his findings are based on speculation, and thus, are neither
relevant nor reliable.34 Specifically, Cole claims Dr. Spizman failed to use any
evidence of the decedent’s actual living expenses when analyzing future income,
and therefore, his methodology was unreliable.35 Cole asserts that Dr. Spizman’s
use of 13.50% of income as a measurement of “personal consumption” does not
comport with Delaware law.36
34
Def’s. Mot. to Exclude, at 8, D.I. 50.
35
Id. at 10.
36
Id. at 11.
9
13. “Damages may be awarded to the beneficiaries proportioned to the
injury resulting from the wrongful death.”37 In determining the amount of an award,
the court or jury may consider “[d]eprivation of the expectation of pecuniary benefits
to the … beneficiaries that would have resulted from the continued life of the
deceased[.]”38 Delaware courts have held the Wrongful Death Statute allows “the
recovery only of that portion of the decedent’s lost earnings that would have been
saved, over and above the decedent’s spending on his maintenance, and passed on
to his estate.39
14. The admissibility of expert testimony is governed by the Delaware
Rules of Evidence. Specifically, under D.R.E. 702, a qualified expert may testify in
the form of an opinion if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
37
10 Del. C. §3724(c).
38
10 Del. C. §3724(d)(1).
39
Ferguson v. Valero Energy Corp., No. CIV.A. 06-540, 2009 WL 1116595, at *6
(E.D. Pa. Apr. 24, 2009); see Lum v. Nationwide Mut. Ins. Co., 1982 WL 1585(Del. Super. Ct. April 27, 1982) (holding, in a wrongful death claim, “the
representatives of the decedent's estate are entitled to recover the amount,
discounted to present value, that the decedent would likely have saved from his
earnings over the course of his lifetime and left in his estate, but for his wrongful
death”); see also Bradley v. Dionisi, 1988 WL 130411 (Del. Super. Ct. Nov.17,
1988).
10
(d) the expert has reliably applied the principles and methods to the
facts of the case.40
15. The touchstones of a Rule 702 analysis are relevance and reliability.41
Trial court judges are to act as gatekeepers with broad discretion in determining
whether expert testimony is reliable and relevant.42 If a court finds the expert’s
testimony is either irrelevant or unreliable, it should exclude that testimony.43 The
burden is on the proponent to establish relevance and reliability by a preponderance
of the evidence.44 An expert’s testimony is relevant if it relates to an “issue in the
case” and aids a fact-finder in understanding or determining those issues.45 An
expert’s testimony is reliable when the expert’s theory or technique is assessed
through four factors: testing, peer review, error rate, and acceptability to experts in
the same field.46 No one factor is dispositive and the list is non-exhaustive.47
16. When considering the aforementioned factors, a court must focus on an
expert’s methodology, not the conclusions that his or her methodology creates.48 An
40
D.R.E. 702.
41
Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579, 594–95 (1993); see M.G.
Bancorp., Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999) (holding that Daubert
and its progeny is the “correct interpretation of Delaware Rule of Evidence 702”).
42
Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010).
43
Tumlinson v. Advanced Micro Devs., Inc., 81 A.3d 1264, 1269 (Del. 2013).
44
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006).
45
Tumlinson, 81 A.3d at 1269 (citing Daubert, 509 U.S. at 591).
46
Bowen, 906 A.2d at 794.
47
Tumlinson, 81 A.3d at 1269 (citing Daubert, 509 U.S. at 593).
48
Id. (citing Daubert, 509 U.S. at 595).
11
expert’s opinion must be supported by facts and not based on ipse dixit.49
Furthermore, the expert’s opinion cannot mislead or confuse the jury.50 A strong
preference to admit expert testimony exists if that testimony would be useful for a
trier-of-fact.51 The Delaware Superior Court has held that “‘cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof’
are, more often, the appropriate methods for attacking scientific, technical, or other
testimony based on specialized knowledge.”52 Objections to factual bases or biases
go to credibility, not admissibility, and such challenges are more suited for trial.53
17. Dr. Spizman’s testimony as an expert is admissible because it is both
relevant and reliable opinion testimony. First, Dr. Spizman’s scientific, technical,
and other specialized knowledge will assist the trier of fact in understanding the
evidence and determine a fact in issue.54 He is a forensic economist with thirty-five
years’ experience qualifying claims of lost earning capacity.55 Dr. Spizman received
a Ph.D. in economics from the State University of New York at Albany in 1977.56
49
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 851 (Del. Super. Ct. 2000)
(citing General Electric Co., 522 U.S. 136, 146 (1997)).
50
Daubert, 509 U.S. at 595.
51
Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018).
52
State ex rel. French v. Card Compliant, LLC, 2018 WL 4151288, at *1 (Del.
Super. Ct. Aug. 29, 2018) (citing Daubert, 509 U.S. at 596).
53
Id. at *4.
54
See D.R.E. 702(a).
55
Pls.’ Resp. Mot. Exclude, Exhibit C at 1, D.I. 52.
56
Id.
12From 1977 to 2013, he was a professor of economics at State University of New
York Oswego.57 Additionally, Dr. Spizman has worked as an economic consultant
since 1985.58 He has authored more than thirty-five articles on the subject of labor
and forensic economics and has served as the president of the National Association
of Forensic Economics (“NAFE”), from which he has received multiple awards in
economics.59
18. Dr. Spizman’s methods are both reliable and relevant.60 His report is
based on multiple sources of information, such as ages of the decedents, tax returns,
and various governmental and professional tables and publications.61 In relying on
these resources, Dr. Spizman applied the standards set forth in them to the ages and
work life of the decedents in order to determine the proper amount of future income
and living expenses.62 For example, Dr. Spizman relies on the National Vital
Statistics Report from the Department of Health and Human Services, Center for
Disease Control and Prevention to determine the life expectancy of both decedents.63
He relies on the analysis provided in the Journal of Political Economy to determine
57
Id.
58Id.
59Id. (Spizman received the Ward Piette Research Prize for his publication tilted
“Loss of Future Income in Personal Injury of a Child: Parental Influence on a
Child’s Future Earnings”).
60
See D.R.E. 702(b-d).
61
Pls.’ Resp. Mot. Exclude, Exhibit C at 2.
62
Id.
63Id.
13how long a self-employed individual would remain in the work force through the
use of his or her tax returns.64 Finally, Dr. Spizman relies on the “Patton-Nelson
Personal Consumption Table” that was published in the journal of Legal Economics
to determine how much personal consumption should be subtracted from future
earnings.65
19. This specialized knowledge and reliable methodology will assist the
trier-of-fact in determining the how much the Plaintiffs are entitled to under 10 Del.
C. § 3742(d).66 The Court’s gatekeeper role does not extend to determining the
accuracy of an expert’s opinion, merely the reliability of his methodology. What
Cole’s complaint with Dr. Spizman’s opinion boils down to is a disagreement with
his conclusion about the amount that the decedents’ earning capacity should be
reduced by their living expenses. He argues that “Reducing these amounts by a mere
13.50% figure is an obvious understatement of actual costs of all living expenses
combined.”67 Clearly Dr. Spizman took living expenses into account when
determining future lost savings. Simply because Cole disputes the amount Dr.
64
Id.
65
Id. at 5.
66
State ex rel. French v. Card Compliant, LLC, 2018 WL 4151288, at *1 (Del.
Super. Ct. Aug. 29, 2018) (citing Daubert, 509 U.S. at 596).
67
Def.’s Mot. to Exclude, at 11, D.I. 50.
14
Spizman assigns to living expenses does not provide a basis to exclude Dr.
Spizman’s testimony.68
19. Finally, Dr. Spizman’s opinions would not mislead the trier-of-fact or
create unfair prejudice because his opinions are supported by facts and reached
through proper methodology. Cole may more appropriately attack the credibility of
Dr. Spizman through “cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof[.]”69 Dr. Spizman’s testimony is
admissible, and therefore, Cole’s motion to exclude it is DENIED.
THEREFORE, Defendant Roger Cole’s Motion to Exclude Plaintiffs’
Claims for Lost Savings is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
68
Dr. Spizman’s figure of 13.50% was based on a male in a two-person family
with a gross family income of over $200,000. Pl.’s Response to Mot. to Exclude,
Ex. A, at 4, D.I. 52. Obviously, that percentage would be higher if the decedents
were in single-person households because a single person would not be able to
share expenses for housing, food, utilities, insurance, taxes, and other household
expenses.
69
State ex rel. French v. Card Compliant, LLC, 2018 WL 4151288, at *1 (Del.
Super. Ct. Aug. 29, 2018) (citing Daubert, 509 U.S. at 596).
15