Smack-Dixon v. Wal-Mart, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHARON SMACK-DIXON and ) WILLIAM MASON DIXON, ) ) Plaintiffs, ) ) v. ) C.A. No. N18C-09-220 PRW ) WAL-MART, INC. ) ) Defendant. )

Submitted: January 7, 2023 Decided: January 25, 2023

ORDER

Upon Defendant Wal-Mart, Inc’s Motion for a New Trial, DENIED.

This 25th day of January, 2023, upon consideration of the Defendant’s motion for a new trial (D.I. 82), the Plaintiffs’ response (D.I. 85), and the record in this matter, it appears to the Court that:

(1) Plaintiff Sharon Smack-Dixon filed a personal injury lawsuit against Wal-Mart, Inc. for injuries arising out of a slip-and-fall at a Wal-Mart store in Seaford, Delaware on October 22, 2016. Ms. Smack-Dixon complained she suffered injuries requiring her to undergo back and hip surgery.1

(2) As relevant here, Mrs. Smack-Dixon designated one of her treating

1 Mr. Dixon was added as a plaintiff when the Complaint was amended to include a claim for loss of consortium. D.I. 41.

- 1-doctors, Nichols Theodore, M.D., as her expert medical witness. Before trial, Wal-Mart sought to preclude portions of Dr. Theodore’s proffered testimony concerning Mrs. Smack-Dixon’s hip injury.2

(3) The Court denied Wal-Mart’s motion in limine, finding Dr. Theodore was qualified to opine on the causation question.3

(4) The action was subsequently tried before a jury. The jury returned a verdict finding Wal-Mart negligent, that Wal-Mart’s negligence was a proximate cause of Ms. Smack-Dixon’s injuries, and that Ms. Smack-Dixon was in no way negligent in the slip-and-fall incident.4 The jury awarded Ms. Smack-Dixon $250,000 in damages and awarded Mr. Dixon $25,000 in damages.5

(5) Wal-Mart filed a timely motion for a new trial, and Plaintiffs answered shortly thereafter.

(6) Upon Rule 59 motion for a new trial, “[t]he jury’s verdict is presumed to be correct,”6 though the Court may “order a new trial when the jury’s verdict is

2 Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *1 (Del. Super. Ct. July 16, 2021). 3 Id. at *7. 4 Verdict Form, at 34-35, Dec. 6, 2022 (D.I. 81). 5 Id. at 36. 6 Galindez v. Narragansett Housing Assocs., L.P., 2006 WL 3457628, at *1 (Del. Super. Ct. Nov. 28, 2006) (“The standard of review on a motion for new trial is well-settled.”); Kelly v. McHaddon, 2002 WL 388120, at *4 (Del. Super. Ct. Mar. 4, 2002) (same).

-2-tainted by legal error committed by the trial court before or during the trial.”7 When considering a motion for a new trial, the Court ascribes “enormous deference” to the jury’s verdict and to the jury’s role as the ultimate finder of fact.8 “Thus, the Court will not disturb a jury’s verdict unless ‘the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.’”9

(7) Wal-Mart’s motion for a new trial effectively seeks a re-argument of the Court’s earlier decision denying its motion in limine to exclude certain proffered testimony by Dr. Theodore.10 Specifically, Wal-Mart asserts Dr. Theodore was “not competent” “to provide the necessary causal bridge between the accident and [Mrs. Smack-Dixon’s] alleged hip injuries.”11

(8) Wal-Mart relies on a single Delaware Supreme Court case—Peters v. Gelb12—to support its position that Dr. Theodore’s hip-injury testimony should have been excluded.

(9) This Court’s decision13 that was affirmed in Gelb is helpful but

7 Gillen v. Cont’l Power Corp., 2014 WL 1347491, at *2 (Del. Super. Ct. Apr. 7, 2014) (citation omitted). 8 Crist v. Connor, 2007 WL 2473322, at *1 (Del. Super. Ct. Aug. 31, 2007) (citation omitted). 9 Balderson v. Freeman, 2007 WL 1378343, at *2 (Del. Super. Ct. May 9, 2007) (quoting Storey v. Camper, 401 A.2d 458, 465 (Del. 1979)). 10 Wal-Mart only seeks “a new trial on the issue of damages.” Wal-Mart’s Mot. for New Trial ¶ 10, Dec. 19, 2022 (D.I. 82). 11 Id. ¶ 8 (“Dr. Theodore was not competent to address the contested hip issues.”). 12 Id. ¶ 9 (citing 314 A.2d 901 (Del. 1973)). 13 Peters v. Gelb, 303 A.2d 685 (Del. Super. Ct. 1973), aff’d, 314 A.2d 901 (1973).

-3-distinguishable here. In the underlying Gelb decision, this Court found that in the preceding fifteen to twenty years the “body of knowledge concerning the results of vasectomy procedures” had changed, yet the testifying expert “had not maintained a study in recent years of the developments in the field.”14 And because he “lacked the current expertise which is required of one who is called upon to express a professional opinion concerning probable causation of unfavorable results following [such] surgical procedure” he was unqualified to provide the proffered testimony.15

(10) That is not the case here. As the Court previously found in its decision denying Wal-Mart’s motion in limine, “Dr. Theodore stated he has diagnosed Mrs. Smack-Dixon’s specific hip issue—trochanteric bursitis—in patients before.”16 “He was able to explain the symptoms and give a description of the procedure Dr. Hornstein performed on Mrs. Smack-Dixon.”17 And his “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; this includes Dr. Hornstein’s office and operative notes, which Dr. Theodore relied upon in forming his hip causation opinion.”18

14 Id. at 688 (citation omitted). 15 Id. 16 Smack-Dixon, 2021 WL 3012056, at *4. 17 Id. 18 Id.

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(11) In its present motion, Wal-Mart insists Dr. Theodore cannot be considered a competent expert on the hip injury complained-of, because, in his practice, he refers patients with such maladies to hip specialists.19 But that does not diminish his own ability to provide hip-relevant expert testimony.20 As the Court found on Wal-Mart’s motion in limine, Dr. Theodore has the “‘knowledge, skill, experience, training, or education’ necessary to give an expert opinion on Mrs. Smack-Dixon’s hip injuries despite his own now-specialized surgical practice concentrating on the spine.”21

(12) The Court’s refusal to limit Dr. Theodore’s expert medical testimony was not a legal error and thus the admission of that testimony could not have tainted the jury’s verdict such that a new trial would be required.

(13) For the reasons stated above, Wal-Mart’s motion for a new trial is

DENIED.

SO ORDERED this 25th day of January, 2023.

_ Paul R. Wallace, Judge Original to Prothonotary cc: All counsel via File & Serve

19 Wal-Mart’s Mot. for New Trial ¶ 5. 20 Smack-Dixon, 2021 WL 3012056, at *4 (finding Dr. Theodore qualified to opine on causation after noting “from a diagnostic standpoint, [Dr. Theodore] identifies hip problems all the time and refers those patients out to hip surgeons for further care”). 21 Id. (citing D.R.E. 702).

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