FROMAL v. GEORGE, 840 A.2d 641 (Del. 2004)

ELEANOR J. FROMAL, Plaintiff Below, Appellant, v. NILES A. GEORGE, JR., Defendant Below, Appellee.

No. 696, 2002.Supreme Court of Delaware.Submitted: December 16, 2003.
Decided: January 7, 2004.

Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 98C-08-256.

Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE andJACOBS, Justices, constituting the Court en Banc.

ORDER
E. NORMAN VEASEY, Chief Justice.

This 7th day of January 2004, upon consideration of the briefs of the parties, it appears to the Court that:

(1) Eleanor Fromal was injured by Niles George, Jr., in an automobile collision. George was driving on a wet road and swerved over a double yellow dividing line, striking Fromal’s car and forcing her into a ditch. Fromal sustained injuries.

(2) Fromal brought an action against George in Superior Court. George did not contest liability for the accident, so the trial focused solely on causation and damages. In the first trial, Fromal called her treating chiropractor as an expert witness to testify about the cause and the severity of her injury. A jury awarded Fromal $25,000. The Superior Court granted a Rule 59 motion for a new trial, however.

(3) Before the second trial, George moved in limine to limit the chiropractor’s testimony, contending that in the second trial the chiropractor should be precluded from testifying about causation or the permanency of Fromal’s injury. The trial judge granted the motion in limine. The jury returned a verdict in favor of Fromal for $5,000. Fromal appeals the trial court’s grant of the motion in limine, arguing that the trial judge abused his discretion by excluding the chiropractor’s testimony on causation and permanency under Delaware Uniform Rule of Evidence 702.

(4) This Court reviews for abuse of discretion the Superior Court’s decision regarding the admissibility of proffered expert testimony.[1]

(5) We do not decide in this case whether the Superior Court’s limitation on the chiropractor’s testimony was error, because even if it were error, the limitation constituted harmless error. The jury heard the opinion of a board-certified neurologist that the accident caused Fromal’s injuries and that the injuries were permanent. The chiropractor’s testimony on the same issues would have been cumulative of the neurologist’s testimony. A trial court may exclude relevant evidence when it is cumulative with other evidence in the trial.[2] Thus, even if the Superior Court excluded the testimony on incorrect grounds — that is, that the issues of causation and permanency were not within chiropractic expertise, which we do not decide — the testimony could have been excluded on the basis that it was cumulative with the neurologist’s testimony.[3] The limitations imposed on the chiropractor’s testimony were therefore harmless.[4]

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.

[1] Price v. Blood Bank of Del., Inc., 790 A.2d 1203, 1209
(Del. 2002).

[2] DEL. UNIF. R. EVID. 403; see also Bacon v. State, No. 474, 1992, 1993 Del. LEXIS 388, at *9-10 (Del. Oct. 15, 1993) (ORDER) (stating that the cumulative nature of testimony impacts harmless error analysis).

[3] In fact, there is some indication in the record that the Superior Court limited the testimony on the basis that it would be cumulative with the neurologist’s testimony (in addition to finding that testimony regarding causation and permanency was beyond the scope of a chiropractor’s expertise).

[4] The jury also heard the chiropractor testify that Fromal “was as well as she was going to get objectively, and . . . there was not much more that we could do as far as improving her condition,” and that her injuries were consistent with those incurred in an automobile collision. Even if the court’s limitation prevented the chiropractor from stating explicitly the ultimate opinions that the accident caused Fromal’s injuries and that those injuries were permanent, his testimony did support such conclusions or inferences. Thus, the testimony that the court did allow the chiropractor to give also supports our conclusion that the limitations imposed were harmless.

jdjungle