Patterson v. State Farm Mutual Automobile Insurance Co.
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SUPERIOR COURT OF THE STATE OF DELAWARE FRED S. SILVERMAN NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669 JUDGE June 13, 2012 (VIA E-FILED) Kenneth M. Roseman, Esquire Kenneth Roseman, P.A. 1300 North King Street P.O. Box 1126 Wilmington, DE 19899 Colin M. Shalk, Esquire Casarino Christman Shalk Ransom & Doss, P.A. 405 North King Street, Suite 300 P.O. Box 1276 Wilmington, DE 19899 RE: Aneita Patterson v. State Farm Mutual Automobile Ins. Co. C.A. No. 10C-07-149 FSS Upon Plaintiff s Motion to Exclude Dr. Bonner s Testimony DENIED, in part and GRANTED, in part; Upon Plaintiff s Motion to Exclude Dr. Cary s Testimony DENIED; Upon Defendant s Motion to Bar Evidence of Lost Wages DENIED. Dear Counsel: As we know, this PIP case, filed almost two years ago, will go to trial in a few days. The pretrial conference was held a few days ago, on June 4, 2012. Despite this hotly contested case s age, the run-up to the pretrial conference and the conference, itself, brought out festering disputes. This decides two of them. Kenneth M. Roseman, Esquire Colin M. Shalk, Esquire Aneita Patterson v. State Farm Mutual Automobile Insurance Company C.A. No. 10C-07-149 FSS Letter/Order June 13, 2012 Page 2 I. On June 6, 2012, Plaintiff filed a motion to preclude Defendant from relying on two doctors depositions: James Bonner, M.D., and Damon Cary, D.O. The same day, Defendant filed a motion to bar evidence of lost wages. As to the latter, the court agrees with Plaintiff. Defendant has waived the right to rely on estoppel as an affirmative defense. Defendant had knowledge that Plaintiff was claiming medical disability from work, based on Dr. Cary s verification of disability before Defendant filed its answer. At the latest, Defendant knew Plaintiff would rely on Dr. Cary when his opinion was disclosed a year ago, on June 7, 2011. As Plaintiff suggests, Defendant probably knew about the potential issue even sooner. By waiting so long to raise the defense, Defendant violated Superior Court Civil Rule 12 (b) s spirit and purpose. Further, the court views Defendant s motion as a backdoor motion for summary judgment.1 If the motion is granted, the claim for lost wages will not go to trial, much less to the jury. Simply put, the collateral estoppel claim should have been raised, at the latest, as part of Defendant s July 22, 2011 motion for summary judgment. Now is too late. Of course, Defendant may cross-examine Dr. Cary as to how he only found his voice on May 23, 2012, during his deposition. II. In contrast to Defendant s motion, Plaintiff s motion in limine is procedurally proper. But, as Defendant argues, it is overreaching. As to Dr. Bonner, he has offered his expert opinion here and elsewhere that soft tissue injuries like 1 See Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 499-500 (Del. 2001) ( It will quickly be seen that this is not a motion in limine. [It] is dispositive of a substantive legal issue . . . [and] was in reality a motion for summary judgment. There was no dispute. Therefore the question was an entirely legal one. ). Kenneth M. Roseman, Esquire Colin M. Shalk, Esquire Aneita Patterson v. State Farm Mutual Automobile Insurance Company C.A. No. 10C-07-149 FSS Letter/Order June 13, 2012 Page 3 Plaintiff s generally resolve within a period of one to four months time. 2 The court has held, and Defendant concedes here, that Dr. Bonner s general opinion is inadmissable. So, he will not offer it at trial. Defendant, however, has established that Dr. Bonner examined Plaintiff, and, based on the examination rather than his general opinion, he specifically opines that Plaintiff s injuries had resolved. Defendant may rely on that specific opinion at trial. In deciding that Dr. Bonner may offer opinion based on an actual examination, the court appreciates that Dr. Bonner s original reports seem to rely on his general opinion about soft tissue injuries rather than an actual physical examination. Plaintiff makes too much of that, however. Plaintiff knew that Dr. Bonner had examined her in March or April 2010.3 Had the examination not supported the opinion, Defendant would have had to disclose it. Plaintiff cannot benefit now from obliviousness. As for Dr. Cary, at least in part, his expert opinion relies on Plaintiff s statements about her medical history and subjective complaints. Accordingly, her credibility is at issue and Defendant is entitled to cross-examine her about ways she may have minimized prior incidents and injuries, and ways she may have exaggerated her subjective complaints. In allowing Defendant cross-examination, the court appreciates that Plaintiff has been in sixteen prior collisions and that fact raises the possibility of unfair prejudice. Nevertheless, some of the sixteen collisions included injury claims, and Plaintiff s not mentioning fourteen of them potentially has a significant bearing on whether Plaintiff is believable and whether Dr. Cary, having formed opinions in reliance on what Plaintiff told him, is also believable. 2 Patterson v. State Farm Mutual Automobile Ins. Co., C.A. No. 08C-04-127 JRJ, at *2 (Del. Super. July 1, 2009). 3 Dr. Bonner s report is dated March 12, 2010, yet it anachronistically says Plaintiff was seen today April 12, 2010. Kenneth M. Roseman, Esquire Colin M. Shalk, Esquire Aneita Patterson v. State Farm Mutual Automobile Insurance Company C.A. No. 10C-07-149 FSS Letter/Order June 13, 2012 Page 4 III. For the foregoing reasons, Plaintiff s motion in limine to exclude Dr. Bonner s testimony is GRANTED as to general opinion about soft tissue injuries, but DENIED as to the rest. Plaintiff s motion in limine to scale-back Dr. Cary s crossexamination is DENIED. Defendant s motion to preclude testimony about lost wages is DENIED. IT IS SO ORDERED. Very truly yours, /s/ Fred S. Silverman FSS:mes oc: Prothonotary (Civil)
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