On December 3, 2015, in the medical malpractice case of Estate of Robert R. Rochester, Jr. v. Reyes, M.D., et al., N13C-07-371-JAP, the Delaware Superior Court (Clark, J.) issued a letter opinion which, among other things, denied the Defendants’ motion in limine seeking to preclude the Plaintiff from admitting out-of-court statements allegedly made by Christiana Care Health System staff instructing the decedent (Robert Rochester) to stop taking his Coumadin regimen.  The Court ruled that such statements were not being offered to prove the truth of the matter asserted–i.e., they were not “hearsay.”  Rather, the statements were being offered for the non-hearsay purpose of proving the effect of the statements on the listener, Robert Rochester.  The full decision is available here.

In this case, the Plaintiffs allege that Defendants (Dr. Reyes and Delaware Medical Group) were negligent in treating the decedent Robert Rochester.  Specifically, Plaintiffs allege that Dr. Reyes failed to appropriately treat the decedent’s hypercoagulation condition, which ultimately caused his death.  The decedent had been admitted to the emergency room to treat a severe dog bite.  During that visit, two separate healthcare professionals allegedly instructed the decedent to stop taking his prescribed Coumadin until a follow up appointment with Dr. Reyes.  Years earlier, the decedent had been prescribed Coumadin due to a pulmonary embolism.  Several days after allegedly being told to stop taking his Coumadin, the decedent suffered another pulmonary embolism and died.

Plaintiffs sought to introduce the healthcare providers’ statements to the decedent to stop taking his Coumadin.  Defendants argued that such statements are inadmissible hearsay because Plaintiffs were merely seeking to offer these out-of-court statements to prove their truth–i.e., to prove that the healthcare providers did in fact tell the decedent to stop taking his Coumadin.  Plaintiffs countered that the statements were in fact being introduced for a different purpose–to prove their effect on the listener.  In other words, Plaintiffs sought to introduce the statements to prove that the decedent likely stopped taking his Coumadin in response to the healthcare providers’ statements.

Agreeing with the Plaintiffs’ arguments, the Court overruled the Defendants’ hearsay objection.  In particular, the Court made clear that Delaware law does not require “independent corroborating evidence as a prerequisite to admission of nonhearsay.”  (Opinion at 4).  In other words, it is not necessary for the Plaintiffs to produce additional evidence, other than the healthcare workers’ statements themselves, that demonstrates that the decedent had stopped taking his Coumadin.  The Court also acknowledged, as Defendants argued, that “the statements at issue could also tend to prove the truth of the matter asserted.”  (Opinion at 5).  However, the Court noted, “nonhearsay statements involving effect on the listener ‘frequently have an impermissible hearsay aspect as well as the permissible nonhearsay aspect.'”  (Id., quoting McCormick on Evidence, Section 249 (3rd Ed.)).  Thus, because the statements were being introduced for a clear nonhearsay purpose and were highly relevant to the issues in the case, the Court allowed them to be admitted into evidence despite the fact that they also had some hearsay aspects to them.

This case provides an interesting analysis of the “effect on the listener” rule and how it interplays with the general rule against hearsay.  Although not discussed in the opinion, the statements could also be admissible on a separate ground: they are potentially admissions against the Defendants’ interest.


As seasoned litigators know, it is critical for your witnesses to perform well in court.  Sometimes, it can make the difference between winning and losing a case.  In the case of Fernandito Rivera v. State Farm Fire and Casualty Co. (Civil Action No. CPU4-14-003168) — a case recently tried in the Delaware Court of Common Pleas — the plaintiff lost the case for a variety of reasons, but the court made it clear that the plaintiff’s trial testimony was “less than compelling.”  This certainly contributed to the plaintiff’s defeat.

In Rivera v. State Farm, the plaintiff, Mr. Rivera, sued his insurance carrier for breach of contract, alleging that State Farm breached the parties’ insurance agreement by failing to pay for his medical expenses after he was involved in a car accident.

After trial, the court (Judge John K. Welch) weighed the evidence and found that Mr. Rivera did not meet his burden of proving, by a preponderance of the evidence, that the medical services he received were necessary and that the bills or charges for those services were reasonable.  In reviewing the medical records and expert reports, the court found that Mr. Rivera’s injuries were pre-existing and thus not compensable under his insurance agreement with State Farm.

Importantly, the court also noted the following:  “Plaintiff, as the only fact witness to provide live testimony, was less than compelling.  Plaintiff was unable to recall what medications he took or when he received medical treatment, and often times, contradicted himself.  Plaintiff was also unable to explain why he waited five weeks after the March 2013 accident before seeking medical treatment and what caused him to seek such treatment.  Additionally, Plaintiff could not provide details of the April 2009 accident, the injuries he sustained and the treatment he received as a result of the accident to the Court’s satisfaction.”  The full opinion is available here.

The comments from the court underscore the importance of making sure that one’s witnesses are prepared to testify at trial.  Unpreparedness can cost you the case.

The recent Supreme Court decision in Franklin v. Franklin, No. 602, 2014 (June 22, 2015), demonstrates the importance of providing the Court with the transcript of the proceeding below.

After a hearing in the Family Court, in which both parties testified, that Court entered an order modifying Mr. Franklin’s visitation.  Under the modified order, the terms of Mr. Franklin’s visitation changed slightly to alter exchange arrangements, but the total amount of his visitation time remained unchanged from the prior order.  The Family Court also noted that the testimony of both parties reflected their daughter’s confusion about Mr. Franklin’s gender transition and concluded it was their daughter’s best interest that the parties’ obtain counseling for her.  The Court also ordered the parties to participate in the counseling, but ordered that Mr. Franklin should bear the cost of the counseling.


Mr. Franklin appealed the Family Court’s decision alleging, among other things, that the Family Court’s decision was unlawfully discriminatory against him because he is a transgender individual.  He also asserted that the Family Court erred in denying him additional time with his daughter and in accepting certain testimony from Ms. Franklin. The Supreme Court noted, however, that:

[Mr. Franklin] challenges [Ms. Franklin’s] credibility and faults the Family Court for accepting [her] testimony on certain issues.  Father also contends that the Family Court exhibited bias because of [Mr. Franklin’s] gender transition. [Mr. Franklin] failed to provide this Court with a copy of the transcript of the Family Court in order to support those claims.  Without an adequate record, the Court has no sufficient basis to review [Mr. Franklin’s] challenge to any of the Family Court’s factual findings or credibility determinations. (emphasis added)

The Supreme Court found no error in the trial court’s application of the law and found that “under the circumstances, we find no basis to disturb the Family Court’s factual findings . . . Moreover, the allegations that the Family Court’s decision reflects discrimination against [Mr. Franklin] as a transgender person is completely unsupported by the record.” Id. at 7.


Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com

In Knott v. Covert, C.A. No. K13C-05-006-RBY, decided January 15, 2015, the Delaware Superior Court (Young, J.) excluded an expert report for failing to meet the admissibility requirements of Delaware Rule of Evidence 702 because it was based entirely on “common sense” rather than scientific expertise.

This case involved an automobile collision.  The defendant, Deborah Covert, moved to exclude the expert report prepared by co-defendant Nationwide Insurance Co.’s expert, William C. Camlin.  The Camlin Report disputed defendant Covert’s claim that her car was hit from behind by another unidentified driver, which resulted in a domino effect that ultimately, and unavoidably, caused her car to collide with Plaintiff’s car.  According to defendant Covert, the Camlin Report was based on the depositions of the Plaintiff and Covert, the photographs of Plaintiff’s and defendant Covert’s vehicles, and the accident report.  Based on these materials, Camlin observed “a slight scuff mark in the approximate center of the rear bumper with slight scratches on the leading edge of the rear bumper in the area of the meeting for the trunk lid.”  (Opinion at 5-6.)  Further, Camlin’s concluded that the damage to defendant Covert’s rear bumper could not have been caused by vehicular impact.  (Opinion at 6.)

Defendant Covert argued that these observations are not “scientific, technical, and/or specialized,” and could easily be grasped by the jury; hence, they are not instructive.  The Court agreed, concluding that “Camlin’s note regarding the location of the scuff mark on the rear of the car is something ‘within the common knowledge of the jury,’ and further something the jury is ‘equally competent to form an opinion about.'”  (Opinion at 6.)  As such, the Court concluded that Camlin’s Report “cannot be said to assist the trier of fact to understand the issue or to determine a fact in issue” as required by Delaware Rule of Evidence 702.  (Id.).

This result is soundly in keeping with D.R.E. 702 and the U.S. Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion.  The bottom line is, if your expert report is merely saying something that a lay person could have figured out, then it will likely be excluded.



A damages expert can’t just pull numbers out of thin air.  For example, in Johnson v. Henning, C.A. No. K12C-10-038 RBY (Young, J.)—a negligence suit arising out of an auto accident—the Delaware Superior Court issued a short and sweet Order last week excluding the expert testimony of plaintiff’s damages expert because it was unsupported by medical evidence. 

The Court held:  “Relative to the claim of $27,004.00 for future medical expenses, the amount may, indeed, be modest given anticipations.  However, there is no medical support presently established to provide any basis for an economic evaluation.  The economist may take numbers opined by the physician and analyze them for present value, cost projections, life expectancy and so forth.  However, he cannot create the original numbers from his imagination.”

Simply put, damages calculations must be based on concrete facts—not conjecture or, indeed, the imagination.

On July 21, 2014, the Delaware Superior Court (Judge Young) ruled in Dippold Marble & Granite, Inc. v. Harleysville Mutual Insurance Company (No. K12C-09-021) that “because the owner of personalty may testify as to its value, Plaintiff’s failure to name an outside expert is not fatal.”  The full opinion can be found here.

The Plaintiff, Dippold, filed suit against its insurance company, Harleysville, seeking to recover approximately $91,000 for damage to personal property stored in a rental unit in New Castle, Delaware.  To support this damages figure, Plaintiff produced a spreadsheet identifying the allegedly damaged property and the replacement cost for each item.  However, Plaintiff did not retain a damages expert.  After the deadline for identifying experts had passed, Harleysville moved to dismiss Plaintiff’s claim due to Plaintiff’s failure to produce an expert opinion on damages.

The Court denied Harleysville’s motion to dismiss.  Citing Ligon v. Brooks, 196 A. 200 (Del. Super. 1937), the Court explained that a “record owner…of personal property is qualified by law to testify to the value of such property.”  The Court further explained that a property owner’s familiarity with the property’s value “is, of course, subject to cross examination.”

In sum, the bottom line is this:  In a suit to recover the value of damaged property, it may not be necessary for the plaintiff to retain an expert to opine on the value of the property.  However, while a plaintiff’s failure to produce an expert report in such cases may not be fatal, it is almost always advisable to retain an expert to opine on such matters.

The Delaware Supreme Court has entered an order modifying Delaware Uniform Rules of Evidence 510, 606(b), 801(d)(1), and 803(10).  The comments to the Rules have been amended as well.  The amendments, which become effective July 1, 2014, may be read in their entirety here.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

In a matter of first impression in Delaware, the Superior Court in Villare v. Beebe Medical Center Inc., C.A. No. 08C-10-189-JRJ (Jurden, J., March 19, 2014) held that: (1) a medical center’s policy/bylaws regarding appointment to a medical staff position (“Appointment Policy” or “Bylaws”) does not constitute an enforceable contract; and (2) even if such a policy did constitute an enforceable contract, the Plaintiff here—Dr. Villare—was unable to prove damages because he lacked a sufficient evidentiary basis for making a fair and reasonable estimate of damages.  Thus, the Court granted defendant Beebe Medical Center’s motion for summary judgment on Dr. Villare’s breach of contract claim.  The full opinion can be read here.

Significantly, this case reinforces that, at the summary judgment stage, a plaintiff seeking to prove breach of contract must proffer more than mere “guesstimates.”  The plaintiff must have competent evidence of damages.

In Carroll, et al. v. Phillip Morris, C.A. No. 03C-08-167 (JTV)—a class action suit alleging that Philip Morris violated the Delaware Consumer Fraud Act—the Delaware Superior Court (Vaughn, President Judge) denied Philip Morris’s motion to strike Plaintiffs’ designation of William A. Farone as an expert witness on hearsay grounds.  The opinion can be read in its entirety here.

Plaintiffs had designated Farone as an expert relating to class certification, and proposed to offer into evidence former sworn testimony given by Farone in another class action suit brought against Philip Morris in Illinois – Miles v. Philip Morris Co.  Farone, a former employee of Philip Morris, had actually refused to be retained as an expert in the Delaware case due to his current position with the FDA, believing that providing testimony in the case would be a conflict of interest.  Defendants objected to Plaintiffs’ designation of Farone and moved to strike, contending that Farone’s former testimony in the Miles case would constitute inadmissible hearsay in the Delaware case.  Plaintiffs invoked the “former testimony” hearsay exception and argued that Farone’s former testimony should be admitted.

The Court denied Philip Morris’s motion for the following reasons: (1) Farone is “unavailable” as a witness because of his refusal to testify and because he is beyond the subpoena power of the Court, thus satisfying Rule 804(a)(5); (2) Farone was uniquely qualified to present the testimony that Plaintiffs sought to present, having worked for Philip Morris in the past; and (3) Philip Morris had an “opportunity and similar motive” to cross-examine Farone in the Miles case.  Thus, the Court concluded that Plaintiffs successfully satisfied the requirements of Delaware Rule of Evidence 804 and accordingly denied Philip Morris’s motion to strike.

Like many other states, Delaware law provides a dependent spouse with an opportunity to seek alimony in a divorce proceeding.  Section 1512 of Title 13 of the Delaware Code requires a party seeking alimony to establish that he or she “lacks sufficient property. . . to provide for his or her reasonable needs.”  The determination of what constitute “reasonable needs” and whether a party is dependent is a case-by-case decision that takes into account the parties’ lifestyle during the marriage.  The recent Delaware Supreme Court decision in the matter of Castle v. Castle, Del., No. 650, 2012, Steele, J. (June 11, 2013) examines the proof required to establish whether a party has established his or her dependence.


Mr. Castle lost his job as a respiratory therapist and sought support from his former wife as part of the divorce proceedings.  In connection with the hearing on his request, Mr. Castle provided the Court with a list of his monthly expenses.  He included in this budget $1,150 per month for a mortgage payment, a child support obligation of $1,000 per month for the parties’ children, and approximately $600 per month for the payment of certain marital debt. The marital debt was comprised of a $350 monthly obligation to the IRS and $250 monthly obligation for marital credit card debt.

Mr. Castle, however, did not provide documentation to support his budget.  In addition, Mr. Castle testified that he had not paid the mortgage, which caused the home to go into foreclosure.  He also testified that he had not paid $1,000 per month for child support since losing his job.  He informed the Court that his support obligation had actually been reduced to $200.  Further, he testified that the under the terms of the parties’ property division agreement he was only responsible for payment of half of the monthly obligation to the IRS and he was solely responsible for the credit card debt.     

The Family Court ultimately determined Mr. Castle was dependent on his former wife for support and ordered her to pay alimony of $1,500 per month.  In reaching this conclusion the Court accepted Mr. Castle’s listed expenses in full.

The Appeal

Ms. Castle appealed the Family Court’s determination arguing, inter alia, the Court erred in crediting Mr. Castle with payment of certain expenses that he expressly stated he was not paying and in crediting him with payment of expenses that had been disposed of in the property division agreement.  In reviewing the record below, the Delaware Supreme Court noted that a party requesting alimony bears the burden to prove their dependency.  The Court found that the Family Court erred in accepting Mr. Castle’s expenses “which were not supported by any evidence and, in some instances, were flatly contradicted by [h]usband’s own testimony.”  Id. at 7.  As a result, the Supreme Court reversed the decision and remanded the matter for further proceedings in the Family Court.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.