O'Riley v. Rogers
69 A.3d 1007
Del.2013Background
- In a personal injury action, the Superior Court sua sponte excluded Harriott’s testimony that permanency could improve with further testing.
- O’Riley suffered left elbow/hand injuries from a 2006 collision with Rogers; EMG was recommended to clarify permanency but not performed due to insurance/cost.
- Harriott testified to permanent injuries but said permanency would be clearer with an EMG; portions suggesting possible improvement were struck.
- After the first trial, the jury awarded $292,330 to O’Riley; Rogers moved for a new trial alleging prejudicial evidentiary error.
- The trial judge granted a new trial on damages, focusing on the excluded testimony’s impact on measuring depth/credibility of permanency.
- A second trial was held; the jury awarded $7,500 to O’Riley; on appeal, the court vacated the new-trial order and remanded to reinstate the original verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by granting a new trial. | O’Riley argues exclusion harmed trial integrity and merits a new trial. | Rogers contends the trial court correctly remedied prejudicial error affect on damages. | Yes, the trial court abused discretion; vacate new-trial order and reinstate original verdict. |
| Whether permitting speculation about EMG outcomes to test permanency was proper. | O’Riley asserts crossexamination to probe permanency should be allowed. | Rogers argues only testing credibility, not speculation, should be allowed. | No, reviewing the record, speculation about treatment possibilities was improper; the initial exclusion was correct. |
Key Cases Cited
- Floray v. State, 720 A.2d 1132 (Del. 1998) (expert opinion must be stated as reasonable medical probability or certainty)
- Oxendine v. State, 528 A.2d 870 (Del.1987) (testimony that something is possible is not evidence)
- Riegel v. Aastad, 272 A.2d 715 (Del.1970) (possible medical consequences cannot substitute for probability)
- Kardos v. Harrison, 980 A.2d 1014 (Del.2009) (trial court relied on improperly testing causation via speculation)
- Rizzi v. Mason, 799 A.2d 1178 (Del.Super.2002) (opinion testing must remain within reasonable medical probability)