Smack-Dixon v. Wal-Mart, Inc.

SUPERIOR COURT
OF THE
STATE OF DELAWARE
PAUL R. WALLACE NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660
Date Submitted: April 28, 2021
Date Decided: July 16, 2021
Leroy A. Tice, Esquire David G. Culley, Esquire
LEROY A. TICE, ESQUIRE, P.A. TYBOUT, REDFEARN & PELL
1203 North Orange Street 750 Shipyard Drive
Second Floor Suite 400
Wilmington, Delaware 19801 Wilmington, Delaware 19801
RE: Sharon and William Smack-Dixon v. Wal-Mart, Inc.
C.A. No. N18C-09-220 PRW
Dear Counsel:
This Letter Order addresses the Defendant Wal-Mart, Inc.’s motion in limine
to preclude the proffered testimony of Plaintiffs Sharon and William Smack-Dixon’s
medical expert, Nicholas Theodore, M.D. Upon review of the parties’ pleadings,
their arguments at the hearing, and the record in this case, Wal-Mart’s motion in
limine is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of a slip-and-fall incident that occurred in the Seaford,
Delaware Wal-Mart store on October 22, 2016.1 Wal-Mart surveillance footage
1
Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 1, Sept. 11, 2020
(D.I. 40) [hereinafter Def.’s Mot.].
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captures Mrs. Smack-Dixon’s “right foot slipping on an unknown substance; her left
leg bending behind her causing her to perform a near ‘split’; and her falling to the
floor where she came to rest on her left hip.”2 Mrs. Smack-Dixon is a 64-year-old
woman who, according to plaintiffs, only suffered from the usual age-related aches
and pains prior to the incident.3 After the incident, Mrs. Smack-Dixon reports she
has suffered progressively debilitating lower back and bilateral hip pain, among
other related physical complaints.4
In November 2018, Mrs. Smack-Dixon was evaluated by Ali Bydon, M.D., at
Johns Hopkins Hospital.5 Following this evaluation, review of pertinent medical
records, and imaging studies, an L3-L5 lumbar fusion was recommended.6 On
December 19, 2018, Dr. Bydon and Nicholas Theodore, M.D., performed the L3-L5
instrumented fusion, utilizing Dr. Theodore’s newly developed robotic guidance
technology.7 Dr. Theodore, because of his expertise in the use of robotic technology
2
Pl.’s Opp’n to Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 5,
Mar. 1, 2021 (D.I. 49) [hereinafter Pl.’s Opp’n].
3
Id.
4
Id.
5
Pl.’s Opp’n ¶ 6.
6
Id., Ex. A (Johns Hopkins Medical Records).
7
Id.
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for spine surgery, led the procedure.8 Dr. Theodore’s Operative Report records that
the reasons for surgery were “severe intractable lower back pain” and imaging that
revealed “marked disease and destruction of the facet joints bilaterally at L3-L4 and
L4-L5 with fluid in the facets and evidence of offset instability.”9
Six months later, in June 2019, Joshua Hornstein, M.D., of Rothman
Orthopaedics, examined Mrs. Smack Dixon.10 He noted continuing bilateral hip and
left groin pain.11 But he did confirm that the lumbar spine surgery had relieved
Mrs. Smack-Dixon’s bilateral sciatic pain.12 Further treatment was deemed
necessary due to Dr. Hornstein’s diagnoses of bilateral gluteal tendinitis and bilateral
bursitis.13 As a result, Dr. Hornstein performed an endoscopy and trochanteric
bursectomy on Mrs. Smack-Dixon’s left side in July 2019.14 He performed the same
8
Pl.’s Opp’n ¶ 6.
9
Id., Ex. A.
10
Pl.’s Opp’n ¶ 7, Ex. B (Rothman Orthopaedics Medical Records).
11
Id.
12
Id.
13
Id.
14
Id.
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on her right side, along with a gluteal tendon repair the following month.15
Through this suit, Mrs. Smack-Dixon seeks monetary damages for injuries
she allegedly sustained to her lower back and hips because of the fall in Wal-Mart.16
Mrs. Smack-Dixon filed her complaint in September 2018, accusing Wal-Mart of
negligence. 17 That complaint was amended to add Mr. Smack-Dixon’s loss of
consortium claim. 18 Trial was to occur in April 2020 but was pushed to November
2021 by the court closures occasioned by the COVID-19 pandemic. 19
In anticipation of the upcoming trial, Wal-Mart filed the instant motion in
limine to preclude Dr. Theodore from testifying as Mrs. Smack-Dixon’s medical
expert.20 The Smack-Dixons filed their written opposition,21 and the Court has heard
the parties’ arguments on this motion.22 So, the motion is now ripe for decision.
15
Id.
16
Def.’s Mot. ¶ 1.
17
Pl.’s Opp’n ¶ 2.
18
Id.
19
Id. ¶ 4; Notice, May 26, 2021 (D.I. 58).
20
Def.’s Mot.
21
Pl.’s Opp’n.
22
Judicial Action Form (D.I. 57).
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II. APPLICABLE LEGAL STANDARDS
Delaware Rule of Evidence 702 governs the admission of expert testimony:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise, 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 upon sufficient facts
or data; (c) the testimony is the product of reliable principles and
methods; and (d) the witness has applied the principles and methods
reliably to the facts of the case.23
Delaware’s Rule 702 is substantially similar to Rule 702 of the Federal Rules
of Evidence.24 The now well-understood bounds of the latter were interpreted and
explained in Daubert v. Merrel Dow Pharmaceaticals, Inc.,25 and Kumho Tire Co.,
Ltd. v. Carmichael.26 And Delaware has expressly adopted the holdings in Daubert
and Kumho to interpret our own analog rule.27
A trial judge must ensure that expert testimony is both relevant and reliable
23
D.R.E. 702.
24
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006).
25
509 U.S. 579 (1993).
26
526 U.S. 137 (1993).
27
Bowen, 906 A.2d at 794 (citing M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del.
1999)).
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when its admission is challenged.28 Consistent with Daubert, Delaware requires the
gatekeeping judge to engage in a five-step analysis to determine the admissibility of
proffered expert testimony.29 To properly determine admissibility, the judge must
ensure that:
(1) the witness is qualified as an expert by knowledge, skill,
experience, training, or education;
(2) the evidence is relevant;
(3) the expert’s opinion is based on information reasonably relied
upon by experts in the particular field;
(4) the expert testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue; and
(5) the expert testimony will not create unfair prejudice or confuse or
mislead the jury.30
The party seeking to introduce the expert testimony must shoulder the
burden of establishing its admissibility by a preponderance of the evidence.31 And
28
Daubert, 509 U.S. at 597.
29
Bowen, 906 A.2d at 795.
30
Id.31
Id.Sharon Smack-Dixon v. Wal-Mart, Inc.
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“[a] strong preference exists” for admitting expert opinions “when they will assist
the trier of fact in understanding the relevant facts or the evidence.”32
III. DISCUSSION
Wal-Mart seeks to exclude Dr. Theodore’s expert opinion regarding causation
on two grounds: (1) Dr. Theodore’s competency to give a causation opinion about
Mrs. Smack-Dixon’s hip injuries and (2) the reliability of his spinal and hip
causation opinions, which, according to Wal-Mart, were rendered without properly
accounting for certain fundamental facts. Given these grounds of contention, the
Court must focus mostly on the first and third factors mentioned above—i.e., Dr.
Theodore’s competency to testify on the hip issues and the reliability of his opinions
on the cause of all the injuries alleged and their relation to the Wal-Mart fall.
A. DR. THEODORE’S EXPERT OPINIONS ARE (1) RELEVANT, (2) WILL ASSIST
THE FACT FINDER, AND (3) WILL NOT OCCASION UNFAIR PREJUDICE.
No doubt, Dr. Theodore’s expert opinions satisfy the second (relevance),
fourth (assistance to the fact finder), and fifth (avoidance of unfair prejudice) factors
that are examined under Delaware Rule 702’s five-step admissibility analysis.33
Expert testimony is relevant if it assists the fact finder in “understand[ing] the
32
Delaware ex. Rel. French v. Card Compliant, LLC, 2018 WL 4151288, *2 (Del. Super. Ct.
Aug. 29, 2018) (quoting Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018)).
33
Bowen, 906 A.2d at 795.
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evidence or. . . determin[ing] a fact in issue.”34 And evidence creates unfair
prejudice when it invites a decision on an improper basis, commonly, emotion rather
than reason.35
Here, a key issue is whether Mrs. Smack-Dixon’s slip-and-fall at the Wal-
Mart was the proximate cause of her hip and spinal injuries. Dr. Theodore’s
testimony is relevant to this determination because it will assist the fact finder in
understanding her prior medical history, the operations performed, and the cause of
her alleged ensuing pain and physical limitations. And there has been no suggestion
by Wal-Mart that Dr. Theodore’s testimony will create any unfair prejudice of the
sort that might offend Rule 702.36 The jury may credit Dr. Theodore’s opinions and
medical analysis or it may not. But there is nothing in the record to suggest his
testimony will appeal to or persuade the jury on any improper basis. Whatever
persuasive power might lie in his opinions derives from the coherence of his
testimony in explaining Mrs. Smack-Dixon’s alleged injuries.
34
Daubert, 509 U.S. at 591 (quoting Fed. R. Evid. 702).
35
Henlopen Hotel, Inc. v. United Nat’l Ins. Co., 2020 WL 233333, at *5 (Del. Super. Ct. Jan. 10,
2020).
36
See, e.g., id. at *5 (observing that Rule 702 “[e]vidence appeals to an unfair prejudice when it
tends to suggest decision on an improper basis, commonly but not necessarily emotion rather than
reason.”)
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B. DR. THEODORE IS COMPETENT TO GIVE HIS CAUSATION OPINION ABOUT
MRS. SMACK-DIXON’S HIP INJURIES.
Dr. Theodore is competent to give his causation opinion about Mrs. Smack-
Dixon’s hip injuries based on his knowledge and expertise in neuro-, orthopaedic,
and spine surgery, his extensive medical education, and his substantive review of his
patient’s pre- and post-injury medical records. A trial judge acts as a gatekeeper in
deciding whether an expert “has a reliable basis in the knowledge and experience of
[the relevant] discipline.”37 Delaware recognizes that an expert may be qualified by
credentials outside of her formal training or designated specialty, and in determining
admissibility, her qualifications must be scrutinized with “due regard” for the
specialization of modern science.38 And certainly, where appropriate, an expert
might be rejected when her education, training, and experience doesn’t align with
the subject matter of the anticipated testimony.39
37
Bowen, 906 A.2d at 794 (Del. 2006)(citing M.G. Bancorportation, Inc. v. Le Beau, 737 A.2d
513, 522 (Del. 1999)).
38
Id. at 796.
39
E.g., Spencer v. Wal-Mart Stores East, LP, 930 A.2d 881, 888-89 (Del. 2007) (affirming this
Court’s finding that a forensic architect was not qualified as an expert on ice and snow removal).
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Concerning Mrs. Smack-Dixon’s alleged hip injuries, Wal-Mart challenges
that Dr. Theodore is not competent to give his causation opinion,40 despite
previously diagnosing trochanteric bursitis in patients41 and being a Professor in,
among other specialities, Orthopedic Surgery.42 The Court cannot agree.
Dr. Theodore holds an M.S. in Physiology and Biophysics from Georgetown
University, as well as an M.D. from Georgetown University School of Medicine.43
His postdoctoral work commenced thirty years ago with an internship in General
Surgery at the National Naval Medical Center and has included, among other
accomplishments, a Spinal Surgery Fellowship at Barrow Neurological Institute. He
is board certified in Neurological Surgery.44
Dr. Theodore’s professional experience spans from Lieutenant Commander
in the Medical Corps of the United States Navy Reserve to current Chairman of the
Head, Neck, and Spine Committee of the National Football League.45
40
Def.’s Mot. ¶ 14.
41
Pl.’s Opp’n, Ex. E at 48-49.
42
Id. ¶ 10.
43
Id. ¶ 11, Ex. F (Curriculum Vitae of Nicholas Theodore, M.D.).
44
Id.
45
Id.
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In 2016, he became affiliated with Johns Hopkins Hospital. He has an
appointment in orthopedic surgery46 and presently serves as a Professor in
Neurosurgery, Professor of Orthopedic Surgery, Professor of Biomedical
Engineering, Director of the Neurological Spine Program; and Co-Chair of the
Carnegie Center of Innovation, among other roles.47
When Dr. Theodore was questioned about his competency to testify about
Mrs. Smack-Dixon’s hip injuries, he noted his appointment and professorship in
orthopedic surgery, and stated that it is common, in his spinal practice, for patients
to have both back and hip pain.48 And he noted, from a diagnostic standpoint, that
he identifies hip problems all the time and refers those patients out to hip surgeons
for further care.49 Additionally, Dr. Theodore stated he has diagnosed Mrs. Smack-
Dixon’s specific hip issue—trochanteric bursitis—in patients before.50 He was able
to explain the symptoms and give a description of the procedure Dr. Hornstein
46
Pl.’s Opp’n, Ex. E at 43 (Nicholas Theodore, M.D. Dep.).
47
Pl.’s Opp’n, Ex. F.
48
Pl.’s Opp’n, Ex. E at 43-45.
49
Id.
50
Id. at 48-49.
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performed on Mrs. Smack-Dixon.51 Dr. Theodore’s competency in this particular
case is further supported by his review of over 1,900 pages of Mrs. Smack-Dixon’s
pre- and post-injury medical records;52 this includes Dr. Hornstein’s office and
operative notes, which Dr. Theodore relied upon in forming his hip causation
opinion.53
Accordingly, Dr. Theodore’s education, training, and experience align with
the subject matter of the anticipated testimony. And his professional and practical
expertise constitute the “knowledge, skill, experience, training, or education”54
necessary to give an expert opinion on Mrs. Smack-Dixon’s hip injuries despite his
own now-specialized surgical practice concentrating on the spine.55
C. DR. THEODORE’S SPINE AND HIP CAUSATION OPINIONS ARE RELIABLE;
THEY ARE GROUNDED ON THE FUNDAMENTAL FACTS OF THIS CASE.
Dr. Theodore’s spine and hip causation opinions are reliable because he is
aware of the relevant fundamental facts and provides a factual basis for his opinion.
51
Id.
52
Id. ¶ 9.
53
Id.
54
D.R.E. 702.
55
Pl.’s Opp’n, Ex. E at 43.
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Reliable expert testimony is premised on scientific or specialized knowledge,
which requires the testimony to be grounded in scientific methods and procedures
and “supported by appropriate validation—i.e., ‘good grounds,’ based on what is
known.”56
Many scientific, technical, or specialized fields are not subject to peer review
and publication, which is why the test of reliability is “flexible.” Rigid application
of the Daubert factors just cannot be engaged to determine testimonial reliability in
every field of expertise.57 Even with all the advances of medical science, the practice
of medicine remains an art, and a diagnosis in the practice of clinical medicine “is
not an exact science.” 58
56
Daubert, 509 U.S. at 590.
57
Henlopen Hotel, 2020 WL 233333, at *3.
58
State v. McMullen, 900 A.2d 105, 114 (Del. Super. Ct. 2006); see also Moore v.
Ashland Chem., 126 F.3d 679, 688-690 (5th Cir. 1997), vacated on reh’g en banc, 151 F.3d
269 (5th Cir. 1998) (“First, the goals of the disciplines of clinical medicine and hard
Newtonian science are different. . . . Second, the subject matter and conditions of study are
different. . . . Finally, clinical medicine and hard science have marked different
methodologies. . . . In sum, hard Newtonian scientific knowledge . . . is knowledge of a
particular and limited kind. . . . Although clinical medicine utilizes parts of some hard
sciences, clinical medicine and many of its subsidiary fields are not hard sciences. . . .
Consequently, the Daubert factors, which are hard scientific methods selected from the
body of hard scientific knowledge and methodology generally are not appropriate for use
in assessing the relevance and reliability of clinical medical testimony.”). The Fifth
Circuit’s discussion of the significant differences between disciplines in “hard science” and
clinical medicine still holds true even though the decision in that case was ultimately
vacated. Id.Sharon Smack-Dixon v. Wal-Mart, Inc.
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In clinical medicine, standard practice for diagnosing a patient and
establishing cause is through differential diagnosis.59 Differential diagnosis refers
to the process of determining which diseases the patient is suffering from by
comparing various competing diagnostic hypotheses with the clinical findings.60
A physician may reach a reliable differential diagnosis without performing a
physical examination himself, and it is acceptable for a physician to arrive at a
diagnosis by relying on examinations and tests performed by other medical
practitioners.61
Again, a gatekeeping judge has “broad latitude” to determine whether an
expert’s proffered opinion is based upon the “proper factual foundation and sound
methodology.”62 This “proper factual foundation” language has been distilled from
Delaware Rule 702.63 To meet the criterion for a “proper factual foundation,” an
59
McMullen, at 116; see also Bowen v. E.I. duPont de Nemours and Co., Inc., 2005 WL 1952859,
at *10 (Del. Super. Ct. May 9, 2005) (noting differential diagnosis is a standard practice for
establishing cause in clinical medicine).
60
McMullen, at 116.
61
Id. at 117; State v. Salasky, 2013 WL 5487363, at *26 (Del. Super. Ct. Sept. 26, 2013).
62
Russum v. IPM Development Partnership LLC, 2015 WL 2438599, at *2 (Del. Super. Ct. May
21, 2015).
63
Russum, 2015 WL 2438599, at *2.
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expert’s opinion must be based on “facts” and not “suppositions.”64 When applied
to a medical expert, a causation opinion is admissible when it’s “based on his
analysis of the circumstances . . . not mere speculation over the cause.”65 And a
proponent need only show by a preponderance of the evidence that her expert’s
opinions are reliable, not that they are correct.66 So, this Court’s Rule 702 reliability
examination must focus on principles and methodology and not on the resultant
conclusions.67
Delaware courts generally recognize that challenges to the “factual basis of
an expert opinion go[ ] to the credibility of the testimony, not the admissibility, and
it is for the opposing party to challenge . . . the expert opinion on cross-
examination.”68 “The different depth with which [an expert] pursued particular lines
64
Id. at 3.
65
Norman, 193 A.3d at 732.
66
State v. McMullen, 900 A.2d 105, 114 (Del. Super. 2006) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 744 (3d Cir. 1994).
67
Henlopen Hotel, 2020 WL 233333, at *2 (“At bottom, the Court’s examination of an expert’s
opinion must be solely focused on principles and methodology, not on the conclusions they
generate.”) (cleaned up) (quoting Tumlinson v. Advanced Micro Devices, 81 A.3d 1264, 1269 (Del.
2013)).
68
Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010); Hodel v. Ikeda, 2013 WL 226937, at *4
(Del. Super. Ct. Jan. 18, 2013); see also Daubert, 509 U.S. 579, 596 (1993) (“Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible evidence.” (citation
omitted)); Russum, 2015 WL 2438599, at *3.
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of investigation and the different assumptions they made are readily subject to cross-
examination and to evaluation by the fact finder for credibility and weight.”69 But
an expert’s testimony will only be excluded in the narrow circumstance where he is
shown to have completely neglected the core facts of the case.70 And under
Delaware Rule 702, a medical doctor’s opinion “based on his own knowledge” and
informed by his review of a patient’s records may certainly be sufficient to clear the
Daubert/Bowen reliability threshold.71 To be sure, the thorough review of treatment
records Dr. Theodore engaged in is a common and generally accepted method used
by medical experts to divine causation of a given condition.
According to Wal-Mart, both Dr. Theodore’s hip and spinal opinions are
rendered with too little knowledge or consideration of certain fundamental facts.
Wal-Mart says that Dr. Theodore’s understanding of Mrs. Smack-Dixon’s pre-injury
history for both her hip and spinal injuries is vague and limited to the mere fact she
previously reported having spinal and hip pain.72
69
Henlopen Hotel, 2020 WL 233333, at *4; Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010)
(noting cross-examination rather than exclusion can be the proper method of exploring the bases
of an expert’s opinion and the weight to be ascribed thereto).
70
Russum, 2015 WL 2438599, at *3.
71
E.g., Norman, 193 A.3d at 731-32.
72
Def.’s Mot. ¶ 14.
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Concerning Mrs. Smack-Dixon’s lower back pain, Dr. Theodore
acknowledged in his deposition that, in his assessment, “episode” meant an “entire
period of time,” and not a single incident.73 So, Dr. Theodore did consider the
multiple times Mrs. Smack-Dixon’s complained of lower back pain but concluded
it was caused by a single prolonged span of muscle spasm and detected no recurring
theme of disability.74
Concerning Mrs. Smack-Dixon’s hip injuries, Dr. Theodore agrees with
Wal-Mart’s experts that Mrs. Smack-Dixon’s pre-injury bilateral hip problems were
significant and further agrees that she suffered injury to her right hip because of the
slip-and-fall.75 As to the left hip, however, the experts disagree on whether the slip-
and-fall aggravated her underlying hip conditions warranting the bilateral
bursectomies.76
73
Pl.’s Opp’n, Ex. E at 53 (Nicholas Theodore, M.D. Dep.).
74
Id. ¶ 13.
75
Id. at 17.
76
Id. at 18.
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Wal-Mart summons two decisions—Perry v. Berkley77 and Bell v. Fisher78—
where this Court found the proffered experts’ ignorance of significant pre-injury
history compelled exclusion. But the exclusion of the Perry and Bell experts resulted
from the rather peculiar circumstance in each where the proffered expert was wholly
unaware of the fundamental facts of the plaintiff’s relevant prior medical history.79
But that’s not what’s happening here. No, Wal-Mart’s quibble here is with
Dr. Theodore’s interpretation of Mrs. Smack-Dixon’s prior medical history, not any
ignorance of it.
Dr. Theodore bases his spine and hip causation opinions on his preoperative
questioning, his review of over 1,900 pages of Mrs. Smack-Dixon’s prior medical
history, and on his knowledge and expertise in the fields of orthopedic and
77
Def.’s Mot. ¶ 12.
78
Id.
79
Perry, 996 A.2d at 1271 (plaintiff’s “prior medical history was pivotal to the issue of whether
the car accident caused her back injuries” and given her medical expert’s “complete lack of
knowledge of the[se] most fundamental relevant facts” his causation opinion was properly deemed
inadmissible under Daubert and Rule 702); Bell, 2013 WL 1120867, at *2 (Del. Mar. 18, 2013)
(expert’s conclusion that defendant surgeon’s procedure caused plaintiff’s neck and spinal injuries
was predicated on expert’s wholly mistaken belief that plaintiff had no history of neck and spinal
injuries before the procedure, and this “erroneous factual premise rendered” his medical opinion
about the cause of plaintiff’s injuries “(in the language of Perry )‘completely incorrect’” and his
testimony thereon excludable), aff’g, 2010 WL 3447694 (Del. Super. Ct. Aug. 30, 2010).
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neurosurgery.80 Dr. Theodore provided detailed analysis about why certain
procedures were elected in his initial expert report, his addendum thereto, and in his
deposition.81 Additionally, Dr. Theodore explains the factual bases for his
conclusions regarding Mrs. Smack-Dixon’s prior medical history and gives detailed
explanations for every disagreement he has with Wal-Mart’s expert’s opinion.82
Both Dr. Theodore and Wal-Mart’s experts relied on the same methodology of
differential diagnosis by reviewing Mrs. Smack-Dixon’s extensive medical history
to reach their opposing opinions. At bottom, Wal-Mart flatly disagrees with the
causation opinions Dr. Theodore derives from that same evaluative exercise. But,
again, a proffered expert’s testimony can’t be excluded just because an opponent
quarrels with his conclusions.83
80
Pl.’s Opp’n ¶ 9.
81
Id.82
Pl.’s Opp’n, Ex. E at 26-27, 39-40, 35-37, 32-34, 51-53, 54-57, 58-62.
83
See Daubert 509 U.S. at 595 (1993) (To pass on the “evidentiary relevance and reliability” of
a given expert’s opinion “[t]he focus, of course, must be solely on principles and methodology,
not on the conclusions that they generate.”); see also In re Paoli, 35 F.3d at 733 (3d Cir. 1994)
(Proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the
assessments of their experts are correct, they only have to demonstrate by a preponderance of the
evidence that their opinions are reliable.”) (emphasis in original).
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IV. CONCLUSION
Dr. Theodore’s testimony is admissible because it is relevant, reliable, and
will aid the fact finder in determining whether Mrs. Smack-Dixon’s slip-and-fall was
the proximate cause of her back and hip injuries. Dr. Theodore is competent to give
his causation opinion about Mrs. Smack-Dixon’s hip injuries because his education,
training, and experience constitute the “knowledge, skill, experience, training, or
education”84 necessary to give an expert opinion in his field. Dr. Theodore’s
testimony is reliable because he is aware of the fundamental facts of the case and
applies that understanding to his causation opinion that Mrs. Smack-Dixon’s slip-
and-fall caused both her spine and hip injuries. The significance Dr. Theodore
affords to her prior medical history is an issue for cross-examination and for
evaluation by the fact finder when judging the credibility of his expert testimony.
Accordingly, Wal-Mart’s motion in limine to preclude the proffered expert
testimony of Dr. Nicholas Theodore is DENIED.
IT IS SO ORDERED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: All Counsel via File and Serve
84
D.R.E. 702.