Lee v. Holbrook

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BRUCE LEE and LISETTE LEE, )
)
Plaintiffs, )
) C.A. No. N17C-12-247 FWW
)
v. )
)
KIMBERLY HOLBROOK, )
)
Defendant. )
Submitted: November 25, 2020
Decided: November 22, 2021
Upon Plaintiff’s Renewed Motion in Limine to Exclude Defendant’s Expert
Accident Reconstruction Report and Anticipated Related Testimony
DENIED.
ORDER
Michael J. Hendee, Esquire, Kimmel, Carter, Roman, Peltz & O’Neill P.A., 56 W.
Main St., Fourth Floor, Newark, DE, 19702, Attorney for Plaintiffs Bruce Lee and
Lisette Lee.
Sarah B. Cole, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, P.C.,
1007 N. Orange St., Suite 600, Wilmington, DE, 19899, Attorney for Defendant
Kimberly Holbrook.
WHARTON, J.
1. This 22nd day of November, 2021, upon consideration of Plaintiffs
Bruce and Lisette Lee’s (“the Lees”) Renewed Motion to Exclude Defendant’s
Expert Accident Reconstruction Report and Anticipated Related Testimony
(“Motion”) and Defendant Kimberly Holbrook’s (“Holbrook”) Response; it appears
to the Court that:
2. On December 19, 2017, the Lees brought this personal injury action
against Holbrook, alleging she operated a motor vehicle in a negligent and/or
careless manner, resulting in injuries to them.1 Bruce Lee claims to have sustained
injuries to his neck, back, and bilateral shoulders, while his wife Lisette Lee asserts
loss of consortium.2
3. On September 30, 2019 the Lees first moved to exclude defense expert
accident reconstruction reports and anticipated testimony.3 On February 26, 2020,
the Court conditionally denied that motion in part with respect to a speed calculation
by Robert L. Miller, P.E., an accident reconstructionist.4 But it deferred resolving
the motion as to Garry R. Brock, Jr., Ph.D. (“Dr. Brock”), a biomechanical engineer,
until his deposition could be taken.5 That deposition was taken on July 22, 2020.6
1
Pls.’ Compl., at ¶ 1, D.I. 1.
2
Id. at ¶¶ 4-5.
3
Pls.’ Mot. to Exclude, D.I. 53.
4
D.I. 62.
5
Id.
6
Dep. Garry R. Brock, Jr. Ph.D., July 22, 2020, D.I. 74.
2
On October 2, 2020, the Lees renewed their motion seeking to exclude Dr. Brock’s
report and anticipated related testimony.7 Specifically, the Lees contend Dr. Brock
did not testify to a “reasonable scientific certainty” that Bruce Lee was not injured
by the collision.8 Further, they claim Dr. Brock failed to take into consideration
Bruce Lee’s physical conditions prior to the incident.9 On November 25, 2020,
Holbrook responded to the Lees’ Motion to Exclude.10 Holbrook argues Dr. Brock
did take into account Bruce Lee’s physical characteristics and any impact they had
on an injury determination.11 Also, Holbrook asserts that Dr. Brock did testify to a
reasonable degree of engineering and biomedical certainty.12
4. Dr. Brock’s opinions are admissible because his conclusions are based
upon reliable principles and methods in the field of biomechanical study and are held
with a reasonable degree of biomedical certainty. The admissibility of expert
testimony is governed by the D.R.E. Rule 702, which provides that 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
7
Pls.’ Renewed Mot. to Exclude, D.I. 77.
8
Id. at ¶ 11.
9
Id. at ¶ 12.
10
Def’s. Resp. in Opp., D.I. 78.
11
Id. at ¶ 6.
12
Id., at ⁋ 9.
3
(d) the expert has reliably applied the principles and methods to the
facts of the case.13
5. The touchstones of a Rule 702 analysis are relevance and reliability.14
Trial court judges are to act as gatekeepers with broad discretion in determining
whether expert testimony is reliable and relevant.15 The burden is on the proponent
to establish relevance and reliability by a preponderance of the evidence. 16 An
expert’s testimony is relevant if it relates to an “issue in the case” and aids a fact-
finder in understanding or determining that issue.17 An expert’s testimony is reliable
when the expert’s methodology is assessed through four factors: testing, peer review,
error rate, and acceptability to experts in the same field.18 No one factor is
dispositive and the list is not exhaustive.19 Furthermore, an expert’s opinion must
be supported by facts and cannot mislead the jury.20 In Delaware, a strong preference
to admit expert testimony exists if that testimony would be useful to a trier-of-fact.21
Moreover, the Delaware Superior Court has held that “‘cross-examination,
13
D.R.E. 702.
14
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”).
15
Perry v. Berkley, 996 A.2d 1262, 1267 (Del. 2010).
16
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006).
17
Tumlinson v. Advanced Micro Devs., Inc., 81 A.3d 1264, 1269 (Del. 2013).
18
Bowen, 906 A.2d at 794.
19
Tumlinson, 81 A.3d at 1269 (citing Daubert, 509 U.S. at 593).
20
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)); Daubert, 509 U.S. at 595.
21
Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018).
4
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.”22
6. The Delaware Supreme Court first addressed the admissibility of expert
biomechanical testimony in Eskin v. Carden, as follows:
a trial judge may admit biomechanical expert opinion that
a particular injury did (or did not) result from the forces of
an accident only where the judge determines that the
testimony reliably creates a connection between the
reaction of the human body generally to the forces
generated by the accident and the specific individual
allegedly injured or another determinative fact in issue.”23
A trial judge must be satisfied that the generalized conclusions of the biomechanical
expert are applicable to the particular individual by, for example, considering what
effect an expert gave to any “pre-existing medical conditions and unique
susceptibility of a particular plaintiff to the injuries claimed[.]”24 Shortly after Eskin,
in Mason v. Rizzi, the Court reiterated that the biomechanical expert’s opinion must
be connected to the plaintiff’s individual characteristics, and may not be a
generalized opinion.25
22
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).
23
Eskin v. Carden, 842 A.2d 1222, 1230 (Del. 2004).
24
Id, at 1228.
25
89 A.3d 32 (Del. 2004).
5
7. Dr. Brock is an expert. He has scientific, technical, and other
specialized knowledge in the field of biomechanical engineering based on his
education, experience, and publications. He has degrees in Biomechanics, including
a Ph.D. and M.S. from Cornell University.26 Additionally, Dr. Brock has numerous
years of work experience as a Biomechanical Engineer, including working for CED
Technologies Inc. as a Biomechanical Engineer since 2014.27 Moreover, Dr. Brock
has had multiple articles published in biomechanical engineering journals.28
8. Dr. Brock’s expert testimony is based on sufficient facts and data and
is connected to Bruce Lee’s individual characteristics. Specifically, Dr. Brock
reviewed Bruce Lee’s medical records and deposition testimony in order to
understand Lee’s physical characteristics, including his height, weight, and body
type, his placement in the vehicle, and previous medical history.29 He considered
the opinions of Dr. Michael Brooks, M.D., J.D., a neuroradiologist retained by
Holbrook, regarding the Lee’s pre-existing degenerative spine condition, as well as
the absence of prior complaints of neck and back pain in Lee’s medical history.30
He also relied upon biomechanical studies based on numerous tests from diverse
populations examining the effect low speed rear end collisions have on humans,
26
Def.’s Resp. in Opp., Ex. A, at 1, D.I. 78.
27
Id.
28Id.
29Id., Ex. B, at 10-11.
30
Id., at 11-13.
6
including ones with pre-existing conditions such as disc herniations, disc bulges, and
degenerative conditions of the spine.31 Dr. Brock testified that, based on the totality
of the material he reviewed, the testing performed and the studies he referenced, he
considered his opinions to be based on reliable principles and methods in the field
of biomechanical study.32 Further, his opinions were specific to Bruce Lee and not
the population as a whole.33 Based on his substantial calculations and review of
Lee’s individual characteristics, Dr. Brock testified that it would be “inconsistent
with medical literature” that an injury would occur to Bruce Lee in this particular
accident.34 Finally, Dr. Brock testified that he held all of his opinions to a reasonable
degree of engineering and biomedical certainty.35
9. The Delaware Supreme Court in Smith v. Grief rejected an argument
that a biomechanical expert opinion “can never be admitted unless the opinion is
seconded by or relied upon by a physician in forming that physician’s opinion about
whether an accident caused physical injury to a person.”36 Nevertheless, here
orthopedic surgeon Dr. Errol Ger, who was retained by Holbrook to testify as a
31
Id., at 28-36.
32
Id.
33Id., at 36.
34
Id., at 39.
35
Id., at 87-88.
36
2015 WL 128004 (Del. 2015).
7
medical expert, did rely on Dr. Brock’s conclusions in forming his own expert
opinion, thereby reinforcing the admissibility of Dr. Brock’s testimony.37
10. Accordingly, the Court finds that based on Dr. Brock’s analysis of
substantial calculations, the individual characteristics of both Bruce Lee and the
accident, and the application of relevant biomechanical principles, Dr. Brock’s
opinions are verifiable and trustworthy and held to a reasonable degree of scientific
certainty. His testimony is admissible.
THEREFORE, Plaintiffs Bruce and Lisette Lee’s Renewed Motion to
Exclude Defendant’s Expert Accident Reconstruction Report and Anticipated
Related Testimony is DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
37
Def.’s Resp. in Opp., at ¶ 4, D.I. 78.
8