Bangs v. Follin

SUPERIOR COURT
of the
STATE OF DELAWARE
Jeffrey J Clark Kent County Courthouse
Judge 38 The Green
Dover, DE 19901
Telephone (302)735-2111
November 21, 2016
Edward C. Gill, Esq. David C. Malatesta, Jr., Esq.
Law Office of Edward C. Gill, & Associates Kent & McBride, P.C.
16 North Bedford Street 824 North Market Street
Georgetown, DE 19947 Suite 805
Wilmington, DE 19801
Monica E. O’Neill, Esq.
Four Penn Center
1600 JFK Blvd., Suite 620
Philadelphia, PA 19103
RE: Robert Bangs v. Diana & Dawn Follin
K15C-05-008 JJC
Dear Counsel:
Before the Court are three motions in limine filed by Defendants Diana Follin
and Dawn Follin (hereinafter “Defendants”). This is a personal injury claim wherein
Plaintiff Robert Bangs (hereinafter “Plaintiff”) alleges injuries suffered after he fell
through the floor in a property rented to the Plaintiff by the Defendants.
Medical Bills
Defendants first move to preclude evidence and argument regarding any
evidence of medical bills in excess of the amounts paid by Medicaid. Defendants cite
Stayton v. Delaware Health Corp. for the premise that the collateral source rule does
not apply to write-offs of amounts in excess of the amounts paid by Medicaid.1
Defendants argue that although Stayton applies to Medicare related write-offs,
Medicaid write-offs are similarly excepted from the collateral source rule. In response,
Plaintiff does not oppose the motion and stipulates to the inadmissibility of any amounts
written-off from the actual billed amounts after payment of those bills by Medicaid.
Namely, Plaintiff stipulates that only the amounts actually paid by Medicaid are
admissible in evidence in support of claims for past medical expenses. Accordingly,
pursuant to stipulation, Defendants’ motion is granted. Plaintiff shall be precluded from
offering evidence of the full value of medical bills paid by Medicaid, and shall be
limited to boarding only those amounts paid by Medicaid.
Evidence of Mold
Second, Defendants move to exclude evidence that mold was found within the
unit. Plaintiff indicates he will seek to offer evidence regarding mold near the area of
injury, and perhaps elsewhere. Plaintiff’s offer of proof includes that the existence of
mold circumstantially provides evidence of moisture, which in turn provides
circumstantial evidence that the floor was weakened because of moisture. Defendant
argues that the correlation between mold and an allegedly unreasonably unsafe floor
should be barred from admission absent an expert opinion linking the mold to the
allegedly unsafe defect in the floor.
Plaintiff counters that common knowledge, without the need for expert
testimony, recognizes that mold accompanies moisture, and moisture degrades wood.
Accordingly, Plaintiff argues that no expert testimony is necessary to make evidence
of mold relevant. After discussion at the pretrial conference, the parties agreed that the
1
117 A.3d 521, 534 (Del. 2015).
2
Court should reserve decision on the admissibility of this evidence pending the
evidentiary context that unfolds at trial. Accordingly, the Court will reserve decision
regarding the admissibility of evidence of mold in the home at issue until trial.
Mental Anguish and Emotional Harm
Lastly, Defendants move to exclude evidence regarding metal anguish and
emotional harm. Defendants argue that absent expert psychological or psychiatric
testimony, Defendants are unable to recover for mental anguish. Plaintiff proffers that
he suffered physical injury, and that under Delaware law, mental anguish and pain and
suffering are compensable elements of damages that automatically flow from physical
injury without the need for expert testimony.
In support of this argument, Defendants cite the Delaware Supreme Court
decision in Money v. Manville Corp. Asbestos Disease Comp. Trust Fund.2 Money,
however, is inapposite. Namely, it addresses the need for expert testimony to establish
proximate cause of injury related to asbestos related exposure.3 There, the Court held
that a plaintiff must introduce expert medical testimony with respect to causation of
asbestos-related diseases because such a linkage is not a matter of common
knowledge.4 Defendants cite no other authority for the proposition that expert
testimony is a prerequisite for recovery for emotional harm and mental anguish when
tortious conduct causes physical injury.
In Delaware, as provided elsewhere in black letter tort law, whenever a party’s
negligence is directly responsible for physical injury to another, the injured party may
2
596 A.2d 1372 (Del. 1991).
3
Id. at 1376-1377.
4
Id.
3
recover for actual physical injury and for concomitant mental and emotional pain and
suffering that flows as a natural consequence of the wrongful act.5 Both mental and
physical pain and suffering may be recovered in a personal injury action where there
is physical injury related to the tort, without the need for further expert testimony
regarding mental anguish.6 Accordingly, Defendants motion to preclude evidence and
argument regarding mental pain and suffering is DENIED.
IT IS SO ORDERED
/s/Jeffrey J Clark
Judge
5
See Roberts v. Delmarva Power & Light, 2 A.3d 131, 142 (Del. 2009) (where the Delaware
Supreme Court recognized the general common law rule providing that an element of damages based
upon physical injury includes mental anguish and emotional distress); see also Collins v. African
Methodist Episcopal Zion Church, 2006 WL 1579718, at *4 (Del Super. Mar. 31, 2006) (where the
Court recognized that in cases involving alleged physical injury, expert testimony for emotional
distress is only necessary if there is no expert testimony as to causation of the physical injury).
6
See Restatement(Second) of Torts § 912 cmt.b. (1979) (where the Restatement discusses
the need for certainty in establishing general damages for tortious conduct. Namely,
[f]or harm to body, feelings, or reputation, compensatory damages reasonably
proportioned to the intensity and duration of the harm can be awarded without proof
of amount other than evidence of the nature of the harm. There is no direct
correspondence between money and harm to the body, feelings or reputation. There
is no market price for a scar or for loss of hearing since the damages are not measured
by the amount for which one would be willing to suffer the harm. The discretion of
the . . . jury determines the amount of recovery, the only standard being such an
amount as a reasonable person would estimate as fair compensation. In these cases,
the trier of fact can properly award . . . damages as compensation for harms that
normally flow from the tortious injury even without specific proof of their existence,
such as pain from a blow or humiliation from a scars.).
4