Smack-Dixon v. Wal-Mart, Inc.


SUPERIOR COURT OF THE STATE OF DELAWARE PAUL R. WALLACE NEW CASTLE COUNTY COURTHOUSE JUDGE 500 N. KING STREET, SUITE 10400 WILMINGTON, DELAWARE 19801 (302) 255-0660 Date Submitted: April 28, 2021 Date Decided: July 16, 2021 Leroy A. Tice, Esquire David G. Culley, Esquire LEROY A. TICE, ESQUIRE, P.A. TYBOUT, REDFEARN & PELL 1203 North Orange Street 750 Shipyard Drive Second Floor Suite 400 Wilmington, Delaware 19801 Wilmington, Delaware 19801 RE: Sharon and William Smack-Dixon v. Wal-Mart, Inc. C.A. No. N18C-09-220 PRW Dear Counsel: This Letter Order addresses the Defendant Wal-Mart, Inc.’s motion in limine to preclude the proffered testimony of Plaintiffs Sharon and William Smack-Dixon’s medical expert, Nicholas Theodore, M.D. Upon review of the parties’ pleadings, their arguments at the hearing, and the record in this case, Wal-Mart’s motion in limine is DENIED. I. FACTUAL AND PROCEDURAL BACKGROUND This action arises out of a slip-and-fall incident that occurred in the Seaford, Delaware Wal-Mart store on October 22, 2016.1 Wal-Mart surveillance footage 1 Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 1, Sept. 11, 2020 (D.I. 40) [hereinafter Def.’s Mot.]. Sharon Smack-Dixon v. Wal-Mart, Inc. C.A. No. N18C-09-220 PRW July 16, 2021 Page 2 of 20 captures Mrs. Smack-Dixon’s “right foot slipping on an unknown substance; her left leg bending behind her causing her to perform a near ‘split’; and her falling to the floor where she came to rest on her left hip.”2 Mrs. Smack-Dixon is a 64-year-old woman who, according to plaintiffs, only suffered from the usual age-related aches and pains prior to the incident.3 After the incident, Mrs. Smack-Dixon reports she has suffered progressively debilitating lower back and bilateral hip pain, among other related physical complaints.4 In November 2018, Mrs. Smack-Dixon was evaluated by Ali Bydon, M.D., at Johns Hopkins Hospital.5 Following this evaluation, review of pertinent medical records, and imaging studies, an L3-L5 lumbar fusion was recommended.6 On December 19, 2018, Dr. Bydon and Nicholas Theodore, M.D., performed the L3-L5 instrumented fusion, utilizing Dr. Theodore’s newly developed robotic guidance technology.7 Dr. Theodore, because of his expertise in the use of robotic technology 2 Pl.’s Opp’n to Def.’s Mot. in Lim. to Preclude Expert Test. of Nicholas Theodore, M.D. ¶ 5, Mar. 1, 2021 (D.I. 49) [hereinafter Pl.’s Opp’n]. 3 Id. 4 Id. 5 Pl.’s Opp’n ¶ 6. 6 Id., Ex. A (Johns Hopkins Medical Records). 7 Id. Sharon Smack-Dixon v. Wal-Mart, Inc. C.A. No. N18C-09-220 PRW July 16, 2021 Page 3 of 20 for spine surgery, led the procedure.8 Dr. Theodore’s Operative Report records that the reasons for surgery were “severe intractable lower back pain” and imaging that revealed “marked disease and destruction of the facet joints bilaterally at L3-L4 and L4-L5 with fluid in the facets and evidence of offset instability.”9 Six months later, in June 2019, Joshua Hornstein, M.D., of Rothman Orthopaedics, examined Mrs. Smack Dixon.10 He noted continuing bilateral hip and left groin pain.11 But he did confirm that the lumbar spine surgery had relieved Mrs. Smack-Dixon’s bilateral …

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