Hichez v. Delmarva Power & Light Company

majority opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEYANARA MOJICA HICHEZ, )

Individually and as Personal Representative )

of the Estate of RAFAEL MENA PEREZ, )

her husband, and as parent and next friend of )

their minor children, L.M.M., D.M.M., and ) C.A. No. N19C-10-273 KMM D.M.M., )

)

Plaintiffs, )

)

v. )

)

DELMARVA POWER & LIGHT )

COMPANY, PEPCO HOLDINGS, LLC, )

ASPLUNDH TREE EXPERT CO., )

ASPLUNDH TREE EXPERT, LLC, )

VERIZON DELAWARE, LLC, and )

COMCAST OF DELMARVA, LLC, )

)

Defendants. )

Date Submitted: May 29, 2026

Date Decided: August 19, 2026

Delmarva’s Motion to Exclude the Expert Opinions of Mark Webber – DENIED

Delmarva’s Motion to Exclude the Expert Opinions of James Orosz – DENIED

Delmarva’s Motion to Exclude the Expert Opinions of H. Landis Floyd – DENIED

Delmarva’s Motion to Exclude the Expert Opinions of Joseph Loferski – DENIED

Comcast’s Motion to Exclude the Expert Opinions of Mark Webber – DENIED

Comcast’s Motion to the Exclude Expert Opinions of James Orosz – DENIED

Comcast’s Motion to Exclude the Expert Opinions of H. Landis Floyd – DENIED

MEMORANDUM OPINION AND ORDER

Francis J. Murphy (argued), Scott M. Himelein (argued), MURPHY & LANDON, P.A., Wilmington, Delaware, Attorneys for Plaintiffs.

Lisa C. McLaughlin (argued), PHILLIPS MCLAUGHLIN & HALL, Wilmington

Delaware, Attorney for Defendant Delmarva Power & Light Company.

Robert M. Greenberg, TYBOUT REDFEARN & PELL, Wilmington, Delaware; Mathew

C. Wilson, GOLDBERG SEGALLA LLP, Philadelphia, Pennsylvania, Attorneys for

Defendant Verizon Delaware LLC.

Ashley Scrivner (argued), ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY, P.C.,

Wilmington, Delaware, Attorney for Defendant Comcast of Delmarva LLC.

Miller, J.

I. INTRODUCTION

Rafael Mena Perez was employed by a tree trimming company that was hired

by Delmarva Power & Light Company (“Delmarva”) to trim a tree around its

electrical lines. The company assigned that task to Mr. Mena Perez. While Mr.

Mena Perez was in the tree, he was electrocuted and died.

Plaintiffs—Mr. Mena Perez’s estate and loved ones—bring claims against

Delmarva, Verizon Delaware LLC (“Verizon”), and Comcast of Delmarva LLC

(“Comcast”). The thrust of Plaintiffs’ claims is that Delmarva, Verizon, and

Comcast, failed to properly maintain their equipment surrounding the area of the tree

in a safe manner and those failures caused Mr. Mena Perez’s injuries.

Delmarva moves to exclude four of Plaintiffs’ experts. As to each, Delmarva

argues that the opinion is not based on sufficient facts and data, and therefore are

inadmissible. An expert’s opinion must rely on a sufficient and accurate factual

foundation for it to be proffered to the fact-finder. If an expert bases his opinion on

an erroneous factual foundation or his opinion is fundamentally unsupported by the

facts, it is inadmissible. After review, the Court finds that the experts’ opinions are

based on, and supported by, a sufficient factual foundation. Delmarva also raises a

series of objections to the experts on various other grounds, none of which require

exclusion. Accordingly, Delmarva’s motions are DENIED.

Comcast moves to exclude three of Plaintiffs’ experts on its premise that it

owed no legal duty to Mr. Mena Perez and therefore, the experts’ opinions are

irrelevant and inadmissible. The Court has already determined that Comcast owed

a legal duty to Mr. Mena Perez. 1 Accordingly, Comcast’s motions are DENIED.

II. FACTUAL BACKGROUND 2 1F

A. The subject tree and related equipment

The tree situated on the property located around Saulsbury Avenue and

Temple Terrace in Wilmington (the “Tree”), grew into and around utility lines,

which were fastened to a utility pole on the nearby sidewalk on Saulsbury Avenue

(the “Sidewalk Pole”) and another in a residential backyard (the “Backyard Pole”).

The poles are owned by Verizon. Attached to the poles, at the highest elevation, are

Delmarva’s electrical conductor lines, comprised of 12kV tree wire. 3 Below, 2F

Comcast’s and Verizon’s communication lines are attached.

Delmarva is required to maintain the vegetation around its electrical

conductors. 4 It engaged Asplundh Tree Expert, LLC (“Asplundh”) to perform such

2026 WL 2364458 (Del. Super. Aug. 14, 2026).

The facts are derived from the undisputed facts and exhibits submitted by the parties. Citations in the form of [Name] Rep. refer to expert reports submitted as exhibits by the parties. Citations in the form of [Name] Disclosure refer to expert disclosures submitted as exhibits by the parties. Citations in the form of [Name] Dep. refer to expert and fact witness testimony from a deposition transcript submitted as an exhibit by the parties.

Tree wire is the term used for electrical conductors that have a factory installed extruded plastic covering. The purpose of the covering is to reduce service outages. It does not provide sufficient insulation to make a conductor safe to touch. D.I. 423, Ex. A (“Floyd Rep.”) at 7. 4

The parties do not dispute that Delmarva is a landowner by virtue of its utility easement.

services. Part of Asplundh’s scope of work was to trim the Tree around the electrical

lines on August 2, 2018. 5 Asplundh employee, Mr. Mena Perez, was assigned this

job. 6

The electrical conductor lines running through the Tree created problems in

the years leading up to the August 2018 incident. Specifically, a homeowner called

Delmarva “two or three times” “[s]o that they could trim” the Tree, after she

witnessed arcing and “sparks flying [onto her] roof” as a result of the electrical lines

coming into contact with the Tree. 7 On one occasion, the arcing was so severe that

two branches caught on fire. 8 In response to the calls, Delmarva “came out [to trim]

twice[.]” 9 8F

Verizon’s and Comcast’s lines were passing through and making contact with

the Tree. 109F

B. The incident

On August 2, 2018, Mr. Mena Perez was a climber, i.e., his task was to climb

into the Tree and trim its branches. To get a sense of the job, he and his co-workers

looked at the Tree, the area surrounding it, and discussed with their superiors what

Floyd Rep. at 13.

D.I. 421, Ex. A (“Webber Rep.”) at 8; D.I. 483 (Compendium of Deposition Transcripts Volume IV, part 2 (“Bellafore-Dougherty Dep.”)) at 19–20 (describing the location of the Tree in her backyard).

Bellafore-Dougherty Dep. at 28, 43, 50.

Id. at 50–51.

Id. at 46–47.

D.I. 422, Ex. A (“Orosz Rep.”) at 17.

needed to be done. 11 The crew concluded that the Tree “was a regular [T]ree, just

10F

like the ones [Asplundh] did every day,” 12 and the surrounding area did not present

11F

any greater danger than what the crew typically experienced. 13 Thereafter, Mr. 12F

Mena Perez climbed into the Tree and began to trim. When a climber is in the tree,

Asplundh has another employee on the ground (a “spotter”) to observe the climber

and keep him safe. 14

13F

Roughly 30 to 40 minutes after he started, Mr. Mena Perez requested that his

spotter go to a truck—approximately 50 to 100 feet away from the Tree—to retrieve

him water. 15 The spotter obliged and headed toward the truck. 16 Upon arriving at

14F 15F

the truck, the spotter heard Mr. Mena Perez scream twice, 17 and rushed back to the

Tree, finding Mr. Mena Perez hanging in his harness, unresponsive. 18 The spotter 17F

alerted other crew members, who quickly arrived on the scene. 19 The crew lowered

1 F

D.I. 483 (Compendium of Deposition Transcripts Volume IV, part 1 (“Pena Dep.”)) at 41–44, 86.

Id. at 86.

Id.

D.I. 482 (Compendium of Deposition Transcripts Volume III, part 2 (“Mendoza Figueroa Dep.”)) at 44-49.

Pena Dep. at 45.

Id.

Id. at 45–49.

Id. at 50; Mendoza Figueroa Dep. at 53.

Pena Dep. at 55.

Mr. Mena Perez out of the Tree. 20 EMS arrived and transported him to a local

19F

hospital, 21 where he was later pronounced dead. 22

20F 1F

An autopsy revealed that electrocution, through contact with Delmarva’s

electrical lines, caused his death. 23 Mr. Mena Perez had electrical burns on both

22F

hands, the upper part of both legs, and the lower part of his left leg. 24 The electrical

23F

current path indicates that the current flowed through his heart, “causing ventricular

fibrillation and ultimately cardiac arrest and death.” 25 24F

C. The Challenged Experts

Plaintiffs’ theory of the case is essentially that the defendants failed to inspect

and properly maintain the vegetation around the electrical and communication lines,

failed to inspect and maintain the utility poles, and Delmarva failed to inspect and

maintain its electrical lines. As a result of the condition of the Tree, and the

deteriorating and leaning utility poles, the electrical lines had more sag and were

more prone to sway. While Mr. Mena Perez was in the Tree, a gust of wind blew

the electrical lines into the Tree, electrifying it, causing the electrical current to run

through Mr. Mena Perez, killing him. Plaintiffs offer several experts to support their

theory, including James Orosz, H. Landis Floyd, Mark Webber, and Joseph Loferski

Id. at 56–57.

Id. at 56–58.

D.I. 419, Ex. A (“Arden Rep.”) at 2.

Id.

(together the “Challenged Experts”). These experts’ opinions relate to the condition

of the Tree, the utility lines, and the poles.

1. James Orosz

James Orosz is an electrical engineer, and a member of the Institute of

Electrical and Electronics Engineers and the National Fire Protection Association

(“NFPA”). Mr. Orosz states that “[i]t is known … that vegetation in contact with

[electrical] lines can conduct fatal levels of electrical current.” 26 He explains that it

25F

is not the electrical voltage, but the electrical current that causes a person to be

electrically shocked. 27 Mr. Orosz noted that Mr. Mena Perez had injuries to both

26F

hands and both legs, indicating that the electrical current flowed through his body

and exited through his legs. 28 Mr. Orosz opines that Mr. Mena Perez “made indirect

27F

contact” with Delmarva’s electrical line. 29 That is, the Tree “made contact with the

28F

primary power line, that electrical current flowed through the [T]ree, through Mr.

Mena [Perez and then] back into the [T]ree[.]” 30 In coming to this opinion, Mr.

29F

D.I. 422, Ex. A (“Orosz Rep.”) at 5.

Id. at 7.

Id. at 5.

D.I. 422, Ex. D (“Orosz Dep.”) at 18.

Id. at 19.

Orosz reasons that if Mr. Mena Perez had made direct contact with the electrical

line, his physical injuries would have been much more severe. 31

30F

Mr. Orosz further opines that a cause of that indirect contact was Delmarva’s

failure to inspect and maintain its electrical lines. Mr. Orosz relies on Section 3007

of the Delaware Administrative Code, 32 which sets reliability standards for

31F

Electrical Distribution Companies (“EDCs”), such as Delmarva. Section 3007–3.1

states: “Each EDC shall install, operate and maintain its delivery facilities in

conformity with the requirements of the National Electrical Safety Code (“NESC”)

and the operating policies and standards of” other organizations. 33 32F

Section 3007–5.1 states: “Each EDC shall have an inspection and

maintenance program designed to maintain delivery facilities performance at an

acceptable level. The program shall be based on industry codes, national electric

industry practices, manufacture’s recommendations, sound engineering judgment,

NESC Rule 214 guidance, and past experience.” 34 33F

Section 3007–5.2 states:

As a maintenance minimum, each EDC shall inspect all right-of-way

vegetation at least once every four (4) years and trim or maintain as

necessary, according priority to circuits that have had significant

numbers of vegetation-related outages, while not unduly delaying the

trimming of other circuits that inspections indicate currently need

Orosz Rep. at 5.

Id. at 8; 26 Del. Admin. C. § 3007.

26 Del. Admin. C. § 3007–3.1.

26 Del. Admin. C. § 3007–5.1.

trimming. Vegetation management practices should be applied at least

once every four (4) years except where growth or other assessments

deem it unnecessary. 35 34F

NESC Rule 214, titled “Inspection and tests of lines and equipment” states, in

pertinent part: “Lines and equipment shall be inspected at such intervals as

experience has been shown to be necessary.” 36 35F

NESC Rule 218, titled “Vegetation management” states, in pertinent part:

“Vegetation management should be performed around supply and communication

lines as experience has been shown to be necessary. Vegetation that may damage

ungrounded supply conductors should be pruned or removed.” 37 36F

Based on his review of historical photographs of the area, including of the

Tree and relevant electrical and communication lines, three inspections of the area

from 2019 to 2022, deposition transcripts and discovery responses, and the code and

rules identified above, Mr. Orosz concludes that Delmarva failed to inspect and

perform necessary vegetation management on the Tree for at least six years, which

caused Mr. Mena Perez’s electrocution. 38 By the time Mr. Mena Perez was assigned

37F

to trim the Tree, it was “engulfing” Delmarva’s electrical lines. 39 That produced the

3 F

hazardous condition of allowing Delmarva’s energized electrical line and the Tree

26 Del. Admin. C. § 3007–5.1.

NESC Rule 214 (A)(2).

NESC Rule 218 (A)(1).

Orosz Rep. at 11.

Id.

to come in contact through an external force, such as wind or the weight of Mr. Mena

Perez, sending electrical current into the Tree and then through Mr. Mena Perez.

Mr. Orosz opines that Comcast similarly failed to adequately maintain the

vegetation of the Tree, which caused Mr. Mena Perez’s electrocution. 40 Mr. Orosz

3 F

explains that the NESC also applies to communication companies like Comcast. 41 40F

He opines that Comcast should have recognized the hazardous conditions caused by

its lack of vegetation management and removed the Tree. 42 Had it done so, Mr.

41F

Orosz continues, Mr. Mena Perez would not have been in the Tree and thus, would

not have been electrocuted. 43 42F

Finally, Mr. Orosz notes that the Sidewalk Pole had been in place since 1953

and opines that it had not been properly or timely inspected in the decades prior to

the incident. 44 The top of the pole was cracked and “had rotting” at its base. 45 The

43F 4F

Sidewalk Pole had significant bend toward its top, and because of this defect, the

Delmarva line “attached to the pole was not stable, was more likely to move, sag,

and sway[.]” 46 He concludes that the Sidewalk Pole was defective and in need of

45F

replacement prior to the incident on August 2, 2018.

The experts also offered opinions as to Verizon. Because Verizon did not timely file a motion to exclude the experts, the Court focuses only on the opinions relating to Delmarva and Comcast. 41

Orosz Rep. at 18 (Sections 214 and 218 apply to Comcast and Verizon).

Id.

Id. at 17; Orosz Dep. at 45–46.

D.I. 422, Ex. B (“Orosz Disclosure”) at 60.

Id.

2. H. Landis Floyd

Mr. Floyd is an electrical engineer with over 45 years of experience in

occupational electrical safety management. 47 He conducted three site inspections of

46F

the incident area and reviewed numerous photographs. 48 Mr. Floyd opines that the

47F

utility poles were in a damaged and rotted condition. 49 Similar to Mr. Orosz, Mr.

48F

Floyd opines that the condition of the Sidewalk Pole (including the detachment of

the top part of the pole) and the attachment of Delmarva’s line to that pole, allowed

for greater movement and sway of the line, creating an even greater likelihood that

Delmarva’s line would come in contact with the Tree. 50 49F

Mr. Floyd further opines on the extent of contact between the Tree and

Delmarva’s lines. He notes that the evidence shows that the plastic covering on

Delmarva’s line had been damaged 51 “due to arcing and abrasion[,] indicating [that

50F

Delmarva’s line] had [made] multiple contacts with the [T]ree.” 52 Mr. Floyd 51F

continues, that created “a hazardous, life-threatening condition [] that allowed

electric current to travel through the [T]ree to earth[,]” presenting a shock hazard to

any person in contact with the Tree. 53 52F

Floyd Rep. at 1, 7.

Id. at 7, 11–12, 17.

The Sidewalk Pole was installed in 1953 and the Backyard Pole was installed in 1951. D.I. 423, Ex. C (“Floyd Rebuttal Disclosure”) at 6.

Floyd Disclosure at 50; Floyd Rebuttal Disclosure at 6.

Floyd Rep. at 12.

Id. Delmarva’s line “had been in contact with [T]ree limbs[.]” Id. at 15.

Id. at 15.

As to Comcast, Mr. Floyd opines that it was required to engage in vegetation

management, but failed to do so. 54 He further opines “[h]ad … Comcast taken prior

53F

actions to prevent the hazardous condition”—such as removing the Tree—“the

[T]ree limbs would not have been in contact with [Delmarva’s electrical line] and

the incident that resulted in [Mr.] Mena Perez’s death would not have occurred.” 55 54F

3. Mark Webber

Mark Webber is a Master Arborist, a Certified Utility Arborist Specialist, and

is tree risk assessment certified. 56 Mr. Webber opines that Delmarva and Comcast

55F

failed to adequately manage vegetation surrounding their lines. 57 That failure, he

56F

continues, exposed Mr. Mena Perez to an unnecessary electrical hazard. 58 57F

Mr. Webber inspected the Tree during a site visit 59 and reviewed 21 aerial and

58F

street-view photographs of the Tree and the area surrounding it. 60 The photographs

5 F

span over a decade, from September 2005 through March 2019. 61 Mr. Webber 60F

opines “that the … [T]ree was not actively managed by the defendants … for 18-years prior to [Mr. Mena Perez’s] injuries and this is the cause of his injuries.” 62 61F

D.I. 480, Compendium of Deposition Transcripts Volume I, Floyd Rebuttal Disclosure at 2. 55

Floyd Rep. at 17–18.

Webber Rep. at 7.

Id. at 54.

Id. at 3.

Id. at 40.

Id. at 11–30.

Id.

Id. at 58.

Mr. Webber further opines that had Delmarva and Comcast managed the

Tree’s “growth away from the [electrical lines] prior to the incident, [Mr. Mena

Perez] would have been afforded a minimal approachable distance” (“MAD”) and

thus, could have kept himself from exposure to the electrical lines. 63 Mr. Webber

62F

explains the importance of the MAD—the closest distance a worker should come to

an energized electrical conductor or utility system—in the work of vegetation

management near electrical lines. 64 Mfr. Webber continues that defendants’ failure

63F

to conduct sufficient vegetation management in the years prior to the incident

resulted in the lack of minimum space between the energized electrical lines and the

Tree, leaving no space for Mr. Mena Perez. 65 64F

Mr. Webber additionally opines that his “inspection found the … [T]ree in a

highly deteriorated condition” and that it “contained severely decayed regions”

amounting to an “imminent risk [of] failure onto [electrical lines], people, and

property.” 66

65F

4. Joseph Loferski

Joseph Loferski is an expert in wood science and wood engineering, having

over 45 years of experience in the area. From review of photos and deposition

Id.

Id., Annex A at 8.

Id. at 58.

Id. at 40.

testimony, Mr. Loferski concludes that the Sidewalk Pole showed “extreme

bend/deflection[,]” indicating that the pole was weakened and at least partially

broken. 67 Another close-up photo of the portion of the pole in the sidewalk, reflected

66F

“extensive deterioration and weathering of the wood pole surface[]” and “a ruler

inserted into the pole approximately 2.5 inches deep at the base/groundline[]”

indicating that the bottom of the pole was damaged. 68 Mr. Loferski reasons that

67F

because the bottom of the pole is “a highly stressed zone, the condition of the wood

in that zone is critical to the safety of the pole in terms of strength and stiffness.” 69 68F

Additional photos show “a rough, brash fracture” at the top of the pole, with a “bolt

hole … in the fracture zone further weakening the pole.” 70 Further, the photos show

69F

“the pole had been attacked by brown rot decay fungi, further reducing the strength

of the pole.” 71 Another photo showed the circumference of the pole. 72

70F 71F

Mr. Loferski opines that on August 2, 2018, the Sidewalk Pole was “old,

severely weakened, fractured and decayed in the upper zone and rotted with missing

wood at the highly stressed bottom of the pole.” 73 Utility poles act as cantilever

72F

D.I. 480 (Compendium of Deposition Transcripts Volume I, part 4 (“Loferski Disclosure”)) at 22-23.

Id. at 23-24, 26.

Id. at 24, 26.

Id. at 25.

Id.

Id. at 26.

Id. at 30.

beams, with the stress on the pole focused at the bottom. 74 Utility poles are

chemically treated to preserve the wood. The treatment penetrates “an inch or two

into the pole around the circumference[]” so damage at the groundline deeper than

this penetration, leaves the “untreated wood in the interior of the pole” exposed and

subject to decay. 75 The Sidewalk Pole was replaced after this incident, but only a

7 F

portion of the pole was preserved as evidence. 76 Because this bottom portion of the

75F

pole was not preserved, Mr. Loferski was unable to conduct standard tests to

determine the extent of deterioration. 77

76F

The Backyard pole was approximately 67 years old. Deposition testimony

revealed that the pole had been inspected about four months after the incident “and

was determined to be in need of replacement.” 78 The Backyard Pole was replaced

77F

in 2024, but not preserved as evidence. 79 Mr. Loferski opines that the Backyard

78F

Pole was “old, severely weakened, and decayed, and in need of replacement.” 80 79F

Id. at 31.

Id. at 29.

Id. at 30.

Id. at 31-32.

Id. at 29.

Id. at 32.

Id.

III. THE PARTIES’ CONTENTIONS

Delmarva contends that the Challenged Experts must be excluded because

their opinions are not supported by sufficient facts and they do not fit the facts of the

case, thereby failing to satisfy Daubert’s standards.

Plaintiffs respond that their experts are not required to know all of the facts

Delmarva recites. They argue that the Challenged Experts’ opinions are based on

sufficient facts and those facts are applied with sufficient methodology to be

admissible.

Comcast contends it has no duty to maintain vegetation and accordingly, the

Challenged Experts’ opinions are irrelevant and therefore, must be excluded.

Plaintiffs contend that they have established that Comcast, in fact, has a duty

to maintain vegetation and their experts have established that Comcast failed to

satisfy that duty. Accordingly, there is no basis to exclude the opinions.

IV. THE DAUBERT STANDARD

Delaware Rules of Evidence (“DRE”) 702 governs the admissibility of expert

testimony. Rule 702 states that:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

methods; and

(d) the expert has reliably applied the principles and methods

to the facts of the case. 81 80F

Delaware has adopted Daubert as the “correct interpretation of [DRE] 702.” 82 81F

“[U]nder Daubert, in order for expert testimony to be admissible, the trial judge must

act as a gatekeeper and determine that the evidence is both (1) reliable and (2)

relevant.” 83

82F An expert opinion is relevant “if it assists the fact finder in

‘understand[ing] the evidence or … determin[ing] a fact in issue.’” 84 An opinion is

83F

reliable if it is based on technical or specialized knowledge “which requires the

testimony to be grounded in reliable methods and procedures and ‘supported by

appropriate validation – i.e., ‘good grounds,’ based on what is known.’” 85 84F

Trial judges are required to “vigorously exercise their gatekeeping

function.” 86 “‘The party seeking to introduce the expert testimony bears the burden

85F

of establishing its admissibility by a preponderance of the evidence.’” 87 86F

DRE 702.

In re Zantac (Ranitidine) Litig., 342 A.3d 1131, 1144 (Del. 2025) (quoting M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999)).

Zantac, 342 A.3d at 1143–44 (cleaned up).

State ex rel. French v. Card Compliant, LLC, 2018 WL 4151288, at *1 (Del. Super. Aug. 29, 2018) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). 85

Reybold Construction Gp. v. Delmarva Power & Light Co., 2025 WL 836784, at *4 (Del. Super. Mar. 3, 2025) (quoting State ex rel. French, 2018 WL 4151288, at *1 (citation omitted)). 86

Zantac, 342 A.3d at 1145 (citing Fed. R. Evid. 702).

Id. at 1144 (quoting Bowen v. E.I. Dupont de Nemours & Co., 906 A.2d 787, 795 (Del. 2006)).

Delmarva and Comcast move to exclude the expert opinions of Mark Webber,

James Orosz, and H. Landis Floyd. Delmarva also moves to exclude the expert

opinions of Joseph Loferski. Delmarva asserts a plethora of arguments, contending

that all or parts of the Challenged Experts’ opinions must be excluded. The Court

addresses each of those arguments first and then turns to Comcast.

V. ANALYSIS

A. Delmarva’s factual foundation argument

As to each Challenged Expert, Delmarva argues that he lacks a sufficient

understanding of the factual circumstances, rendering the opinions inadmissible. An

expert’s opinion will be excluded if it is not “based upon an understanding of the

fundamental facts of the case[.]” 88 The Court analyzes below the factual foundation

87F

of each Challenged Expert to ensure his testimony is reliable—helpful to the jury—

but a party’s disagreement with the factual foundation of an expert’s opinion does

not, alone, render the opinion unreliable. 89 88F

Perry v. Berkley is instructive. 90 In Perry, plaintiff sought recovery for

89F

injuries she sustained as a result of a car accident. 91 Plaintiff proffered a medical

90F

expert on the cause and permanency of her injuries. 92 The expert opined that Perry

91F

Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010).

Delmarva has a different theory, supported by its experts, of how the accident occurred. 90

996 A.2d 1262 (Del. 2010).

Id. at 1264.

Id. at 1265.

sustained permanent injuries to her lumbar spine, solely related to the accident. 93 92F

The expert, however, had no knowledge of plaintiff’s prior complaints, medical

imaging, and over two years of treatment relating to her lumbar spine prior to the

accident. The medical expert was not informed of, and did not ask about, plaintiff’s

preexisting conditions. Defendant moved to exclude the expert due to his lack of

factual foundation. Plaintiff argued that this lack of knowledge went to weight, not

admissibility. 94

93F

The Delaware Supreme Court “recognize[d] that, as a general rule, the factual

basis of an expert opinion goes to the credibility of the testimony, not the

admissibility, and it is for the opposing party to challenge the factual basis of the

expert opinion on cross-examination.” But where the expert’s opinion was not based

on “the fundamental facts of the case,” the opinion would “provide no assistance to

the jury” and must be excluded. 95 94F

Noting that this was an “unusual case,” the Supreme Court found that Perry’s

case did not fall within the general rule because her expert’s “opinion [was] based

upon a completely incorrect case specific factual predicate.” 96 Reasoning that

95F

plaintiff’s “prior medical history was pivotal to the issue of whether the car accident

Id.

Id. at 1270.

Id. at 1271.

Id. (“If an expert bases an opinion on an erroneous factual foundation, the inaccurate premises invalidate the conclusion even if the expert’s methods are generally valid.”) (emphasis in original) (citation omitted).

caused her back injuries[]” and the expert “rendered a causation opinion without an

accurate factual predicate[,]” the expert’s testimony was properly excluded. 97 96F

1. Delmarva’s factual foundation arguments as to Mr. Webber.

Delmarva contends that Mr. Webber “does not know any of the factual

circumstances and conditions existing at the time of the accident that are needed to

form a competent opinion as to the proximate cause of Mr. Mena Perez’s injury[.]” 98 97F

It argues that Mr. Webber does not know “Mr. Mena Perez’s height and location in

the [T]ree …, the position and posture of his body …, the tools he was using at the

time and how he was using them …, whether the [T]ree was electrified/energized

…, and, most importantly, how he was injured ….” 99 98F

Plaintiffs respond that there were no eyewitnesses to the incident, so no one

knows exactly how and where Mr. Mena Perez was positioned in the Tree. 100 But 99F

Mr. Webber’s opinions are still admissible because they were based on the facts of

the case and he is establishing “more likely than not” what occurred, which is within

the realm of acceptable expert testimony.

Id.

D.I. 421 at 3.

Id. at 3–4. Delmarva argues that Mr. Webber conceded that he “was never asked to investigate the proximate cause of Mr. Mena Perez’s injury.” Id. at 4 (emphasis in original). Id. The Court reviewed Mr. Webber’s deposition testimony cited by Delmarva, in addition to other portions of his deposition and his expert reports and disclosures. When this testimony is put into context, it is clear to the Court that Mr. Webber was not conceding that he has no opinion on proximate cause, but rather, he was referring to Mr. Mena Perez’s placement and activity in the Tree at the time of the injury.

100

D.I. 494 at 3.

Mr. Webber was offered to address vegetation management. 101 He opines 100F

that the Tree was “incompatible vegetation” and it “should not have been” there. 102 101F

He further opines that Delmarva had a duty to manage the vegetation around its lines,

but failed to do so. 103 And, this failure “exposed [Mr. Mena Perez] to an unnecessary

1 2F

electrical hazard and this is a cause of his injuries.” 104 103F

The Court is satisfied that Mr. Webber understands the fundamental facts of

the case and that his opinions are based on “sufficient facts or data.” He reviewed

19 years of aerial and street view photographs of the Tree and its surrounding area,

conducted site visits, and reviewed witnesses’ testimony, among other things. He is

offering his opinions on what “more likely than not” occurred, which is permissible

expert testimony. 105 Unlike the expert in Perry, this case falls within the general

104F

101

Webber Dep. at 34 (“My purpose was vegetation conditions…. That [has] been kind of the focus of my investigation. It was [not] to…say where he was at, what he was doing, and what he should have been doing.”).

102

Id. at 19.

103

Delmarva argued that because Mr. Webber cannot point to a statute or regulation specifying a specific length a tree must be trimmed, he is unable to state a standard of care. The lack of a statute or regulation with specific trimming measurements, however, does not make Mr. Webber’s testimony inadmissible. By his testimony, he is establishing the standard of care, just as a doctor would in a medical negligence case, for example. See Roberts v. Delmarva Power & Light Co., 2 A.3d 131, 137 (Del. Super. 2009) (“Experts can establish standards of care, from which the trier of fact determines whether a duty has been breached.”). Delmarva attempted to distinguish the medical negligence cases based on those cases being highly regulated. This is a distinction without a difference. While the medical negligence statute mandates that a medical expert testifying as to the applicable standard of care be familiar with “the degree of skill ordinarily employed in the field of medicine on which he or she will testify,” there is nothing in the statute requiring that the expert rely on a specific written standard in order to testify. See 18 Del. C. § 6854. 104

Webber Rep. at 58.

105

See Laugelle v. Bell Helicopter Textron, Inc., 2014 WL 5038142, at *2 n.28 (Del. Super. Oct. 6, 2014) (citing Desert Falcon–Special Mar. Enter. v. E. Coast Terminal Co., 2004 WL 5612966, at *2 (S.D. Ga. Jan. 5, 2004) (“... with accident re-constructionists ... reliability is found by looking

rule and Delmarva’s “challenge [to] the factual basis [for Mr. Webber’s] opinion [is

for] cross-examination[;]” 106 exclusion is not warranted.

105F

2. Delmarva’s factual foundation arguments as to Mr. Orosz.

Delmarva argues that Mr. Orosz does “not know how, when or where the

[T]ree and power line came into contact, how or where Mr. Mena Perez contacted

the energized part(s) of the [T]ree, what Mr. Mena Perez was doing at the time and

what, if anything, he was holding when he was electrocuted.” 107 Nor does he know

106F

“what specific part of the [T]ree, or which limb, if any, contacted the power line at

the time of the incident …, or whether it was a cut branch or one still attached to the

[T]ree ….” 108 Delmarva also points out that Mr. Orosz “believes wind blew the

107F

[T]ree into the power line … but he does not know the speed or direction of the wind

….” 109 Nor is he able to identify or date “what visible mark(s) … on the power line

08F

resulted from the incident.” 110 109F

Plaintiffs, again, respond that Mr. Orosz’s opinions are admissible because he

is establishing “more likely than not” what occurred, which is within the realm of

acceptable expert testimony.

‘at the physical and factual information available, appl[ying] standard engineering principles to this information, and determin[ing] the most probable sequence of events.’”)). 106

Perry, 996 A.2d at 1271.

107

D.I. 422 at 4.

108

Id.

109

Id.

110

Id.

Mr. Orosz opines that Mr. Mena Perez made indirect contact with Delmarva’s

electrical lines. That opinion is based on the location and severity of Mr. Mena

Perez’s physical injuries and the flow of the electricity through his body. Mr. Orosz

further opines that Delmarva failed to adequately inspect and maintain its lines and

adequately manage the vegetation surrounding its lines. For support, Mr. Orosz

points to worn tree wire as evidence of significant contact with the Tree and years

of photographs of the Tree. Tying the injuries and the condition of the wires and

lack of vegetation management together, Mr. Orosz opines that a gust a wind coupled

with sag in Delmarva’s line—exacerbated by the broken and rotted poles—caused

Delmarva’s line to touch the Tree and trigger the electrocution. For further support,

Mr. Orosz points to the fact that the branches had previously contacted Delmarva’s

line, there were gusts of winds, and the deteriorated condition of the poles

themselves.

The Court finds that Mr. Orosz’s opinions are based on sufficient facts and

factual understanding. Mr. Orosz reviewed Mr. Mena Perez’s injuries, the

conditions of Delmarva’s line and the poles that supported it, and the area

surrounding it to come to his conclusions. As with Mr. Webber, Delmarva’s

challenge to Mr. Orosz’s factual basis is for cross-examination. 111

110F

111

Perry, 996 A.2d at 1271.

3. Delmarva’s factual foundation arguments as to Mr. Floyd.

Delmarva’s factual foundation arguments as to Mr. Floyd largely restate the

arguments made against Messrs. Orosz and Webber and adds that “Mr. Floyd cannot

explain how the ‘hazardous conditions’ he identifies … are in any way connected to

how Mr. Mena Perez was injured[]” 112 because of his lack of knowledge. 113

111F 112F

Mr. Floyd opines that the electrical line’s constant contact with the Tree

created a hazardous condition to any person in contact with the Tree, as contact with

Delmarva’s electrical line allowed electrical current to travel through the Tree. And

that electrical current passing through the Tree presents a life-threatening shock

hazard that Delmarva should have rectified but instead allowed to persist, ultimately

causing the electrocution of Mr. Mena Perez.

For that opinion he relies on the prior testimony of Delmarva’s lines coming

into contact with the Tree, causing arcing. And that, in response, Delmarva had

come to the scene. Mr. Floyd further based his opinion on numerous photos,

including those of the Verizon utility poles, Delmarva’s line, and the Tree. 114 That

113F

review led Mr. Floyd to conclude on a “but for” basis that had Delmarva rectified

the hazardous condition (the contact between its power line and the Tree) before Mr.

Mena Perez was assigned to trim the Tree, the hazardous condition that allowed

112

D.I. 423 at 6.

113

Id.

114

Floyd Rep. at 11.

electrical current to pass through the Tree would not have existed and thus, Mr. Mena

Perez would not have been electrocuted. 115 Mr. Floyd’s factual foundation is neither

114F

erroneous nor is it fundamentally unsupported by the facts.

B. Delmarva’s “fit” argument

1. Mr. Orosz and Mr. Floyd

As an offshoot of its factual foundation arguments, Delmarva argues that Mr.

Orosz’ and Mr. Floyd’s opinions are inadmissible because they do not “fit.” In other

words, Delmarva argues that these Challenged Experts’ opinions lack of

foundational facts precluded them from utilizing reliable methodology. 116 115F

Delmarva also asserts that, to the extent the experts did consider any facts, they are

irrelevant or unconnected to the opinions they ultimately delivered and therefore,

must be excluded under DRE 702. 117 116F

The “fit” requirement is a relevancy requirement, meaning that the expert’s

testimony must be helpful to the jury. 118 “[T]he Court must evaluate whether there

117F

is ‘an adequate ‘fit’ between the [underlying] data and the opinion[s] proffered.’” 119 118F

115

Id. at 13.

116

D.I. 421 at 7; D.I. 422 at 8; D.I. 423 at 8.

117

D.I. 421 at 7; D.I. 422 at 8; D.I. 423 at 8.

118

Hopkins v. Astrazenca Pharm. LP, 2010 WL 1267219, at *8 (Del. Super. Mar. 31, 2010). 119

Laugelle, 2014 WL 5038142, at *2 (quoting Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998)).

As noted above, “only if the expert opinion is so fundamentally unsupported that it

can offer no assistance to the jury must such testimony be excluded.” 120 119F

The Court has already determined that the Challenged Experts utilized

sufficient facts and data. Thus, there is no need to reiterate the factual foundation

on which the experts base their opinions. It is sufficient to say that the facts relied

on did not lead to flawed methodology.

As to Delmarva’s unconnected argument, Delmarva seemingly again asserts

that the experts do not have sufficient facts to support their opinions, this time under

a different lens. For example, it argues that Mr. Orosz’s and Mr. Floyd’s opinions

on the defective condition of the utility poles are unconnected from the facts they

considered. Delmarva asserts that the experts’ failure to take measurements of the

poles or perform certain tests on the poles preclude them from offering an opinion

on the condition of the poles—in essence, Delmarva contends that those facts are a

mandatory prerequisite to offering an opinion on the condition of the utility poles. 121 120F

Delmarva makes the same argument based on these experts’ inability to say

how far back the Tree was trimmed in 2014, when the electrical lines last came into

120

Id. (citing Perry, 996 A.2d at 1271).

121

For example, Delmarva argues that Mr. Orosz did not perform structural integrity tests or strength tests on the poles. D.I. 422 at 7-8.

contact with the Tree, or how long the hazardous condition existed other than to say,

“several years.” 122

121F

Both experts reviewed photographs of the poles and the Tree. Those

photographs, according to the experts, show a damaged and rotted pole. And beyond

review of photographs, both experts—on multiple occasions—visited the incident

area where they performed further inspections. The experts also reviewed other

evidence, including electrical wires. Delmarva may take issue with the experts not

taking certain measurements or conducting certain tests, 123 but a review of

122F

photographs of the evidence coupled with site inspections does not lead the Court to

conclude that the opinions the experts offer are unconnected to the facts they

reviewed.

2. Mr. Loferski

Delmarva argues that Mr. Loferski’s opinions do not fit the case because he

did not (i) take any measurements, (ii) test the poles structural integrity, or (iii)

determine the strength of the poles at the time of the incident, the species of the

122

Id.; D.I. 423 at 7-8.

123

As noted, evidence was not preserved. This includes part of the Sidewalk Pole that was removed in 2018 and the top of the pole, which were not preserved. Additional parts of the Sidewalk Pole were removed between 2022 and 2024, including the base of the pole, but were not preserved. Further, the Backyard Pole was removed in 2024 but it was not preserved. The parties spar over spoliation of evidence in the various motions, but those issues have not been properly presented to the Court. Finally, there were some branches that may not have been preserved. As the Court advised the parties at oral argument, spoliation issues will need to be fully briefed by a date to be set by the Court.

poles, the stress on the bottom of the poles, the length of the poles, or the groundline

radius. 124 Delmarva contends that Mr. Loferski’s opinions rest entirely on the fact

123F

that one pole was replaced and the other was tagged for removal after the incident. 125 124F

Finally, Delmarva contends that Mr. Loferski’s opinions are within the ken of an

average juror and therefore, not ripe for expert testimony.

Plaintiffs respond that Mr. Loferski is well-qualified to offer the opinions

based on his 45 years of experience in wood science and a number of wellrecognized publications that have “become his general knowledge.” 126 Plaintiffs

125F

argue that Mr. Loferski would have liked to conduct more tests, such as those

identified by Delmarva, but he was unable to do so because the defendants did not

preserve the evidence. Even without these tests, Plaintiffs continue, Mr. Loferski

was able to apply a reliable application of principles and methods to analyze

photographs of the poles.

As with the other Challenged Experts, simply because certain testing was not

performed or certain facts are not known, does not mean that the opinion is

necessarily inadmissible. It is also true that an expert’s opinion is not subject to a

less rigorous Daubert review simply because some evidence may not be available.

124

D.I. 420 at 4-5.

125

Delmarva contends that this evidence is not admissible under DRE 407 as a subsequent remedial measure. The Court does not reach this issue in connection with the pending motions. Rather, it is more suitable to disposition through a motion in limine.

126

D.I. 488.

The Court’s gatekeeping function remains the same. The question here is whether

based on the available facts is there “‘an adequate ‘fit’ between the [underlying] data

and the opinion[s] proffered.’” 127 The Court finds that there is. Mr. Loferski

26F

reviewed photographs of the utility poles, documents, and depositions. He has a

sufficient understanding of the factual foundation to support his opinions. To those

facts, he has applied his expertise in wood science to reach his conclusions. Mr.

Loferski’s opinions are not “so fundamentally unsupported that it can offer no

assistance to the jury” such that the testimony must be excluded. 128 127F

The Court also finds that Mr. Loferski’s opinions are not based on the poles

being replace. Further, the Court finds that the opinions offered by Mr. Loferski are

not within the ken of a reasonable juror.

C. Delmarva’s additional arguments

Beyond its facts and data and its “fit” arguments, Delmarva asserts a number

of arguments that parts of each of the Challenged Experts’ testimony should be

excluded.

1. Delmarva’s additional Mr. Webber arguments.

Delmarva argues that Mr. Webber should be precluded from testifying that

Delmarva failed to trim the Tree to create a MAD. 129 First, Delmarva contends that

128F

127

See Laugelle, 2014 WL 5038142, at *2 (quoting Moore, 151 F.3d at 276).

128

Id. (citing Perry, 996 A.2d at 1271).

129

D.I. 421 at 5–8.

Mr. Webber misapplies MAD, conflating MAD and line clearance distance. 130 That 129F

misapplication, according to Delmarva, precludes Mr. Webber from opining as to

MAD.

Plaintiffs respond that Mr. Webber did not misapply MAD, rather, his

opinions reflect the interplay between MAD and line clearance. Mr. Webber relies

on ANSI Z133-2017, which states that “[b]ranches and other parts of trees within

the minimum approach distances (MAD) which have been browned or charred by

part electrical arcing or contact should be considered likely to become re-energized

without warning and thus should be treated as energized. Climbing of trees in such

condition should be avoided.” 131 He further testified that the Tree was “riddled with

130F

burns all around it.” 132

131F

Mr. Webber’s opinions as to the MAD are that “had the defendants …

managed the … [T]ree’s growth away from [Delmarva’s lines] prior to the incident,

[Mr. Mena Perez] would have been afforded [the MAD] … and have kept himself

safe from being exposed to the energized [lines].” 133 He testified that if Delmarva

132F

had trimmed the Tree over the years as required, “there would be a space between

130

Id. MAD is the minimal approachable distance a worker or his equipment must maintain from an electrical conductor. According to Delmarva, line clearance is the distance between vegetation and electrical conductors. Id. Plaintiffs dispute this definition of “line clearance” as not being complete. D.I. 492 at 6. The Court need not resolve this dispute to resolve the motion. 131

D.I. 492 at 5.

132

Webber Dep. at 53.

133

Webber Rep. at 4.

where those outer branches grow back into the utility space and where the conductor

is. In this circumstance, it doesn’t show that. It shows a quagmire of vegetation into

that clearance zone.” 134 133F

In the Court’s view, Mr. Webber’s testimony does not reflect a misapplication

or misunderstanding of MAD. It is clear to the Court that Mr. Webber understands

the difference between MAD and line clearance. Mr. Webber’s testimony is an

attempt to explain the relationship between the two. Delmarva’s disagreement over

the alleged interrelationship is for cross-examination; it does not require exclusion.

Second, Delmarva argues Mr. Webber’s opinions improperly place, or

assume, a duty on the utility company to create the MAD. But Mr. Webber’s

opinions do not stray from who maintains MAD. As he testified:

Q. [W]hen Delmarva hires a contractor to perform vegetation

management, you are saying that [Delmarva] ha[s] an obligation to

make sure that there is a minimum approach distance for the worker

who’s climbing the tree?

A. The worker that’s in the tree, the climber in the tree needs to have a

minimum approach distance from his tools or her tools and equipment

and their body parts of X number of feet or inches depending on the

voltage of the conductor …. So if the tree branches and limbs are in

the conductor, and there’s no minimum approachable distance beyond

what you have been given, then you have to find another method by

which to do the work. 135134F

134

Webber Dep. at 48.

135

Id. at 52.

Thus, Mr. Webber understands that it is the responsibility of the worker to maintain

the MAD. But the MAD may be afforded to a worker through adequate vegetation

management. That opinion does not impose a duty on Delmarva to create the MAD.

Mr. Webber only opines that the MAD can be created through vegetation

management. As Plaintiffs argue “Webber’s opinion is … had Delmarva managed

the vegetation adequately, there would not have been branches within the MAD and

[Mr.] Mena Perez could have kept himself safe from the energized [lines].” 136 Mr. 135F

Webber opines that defendants’ failure to conduct vegetation management made it

impracticable for Mr. Mena Perez to maintain the MAD.

Third, Delmarva argues that Mr. Webber cannot rely on Delmarva’s internal

line clearance procedures (which refer to specific trimming distances) to establish

the legal standard of care. Delmarva also asserts that this procedure is the sole basis

for his opinion. Plaintiffs respond that Mr. Webber uses the internal procedures to

“simulate the interplay between the line clearance of the trimming and the” MAD,

not to establish the standard of care. 137

136F

While a company’s internal procedures may be evidence of negligence, they

do not set the standard of care. 138 Mr. Webber cannot rely on the internal procedures

137F

136

D.I. 492 at 5.

137

Id. at 8.

138

State, to Use of Henderson, v. Clark, 20 A.2d 127, 130 (Del. 1941) (“What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence.”).

to establish the standard of care, but it appears to the Court that he is not attempting

to do so. Mr. Webber testified that ANSI does not establish a specific distance of

pruning that is required. 139 138F Mr. Webber offers his opinion that Delmarva’s

vegetation management was insufficient, independent of the internal procedures.

But, this does not mean he cannot rely on the procedures as evidence that Delmarva

breached its duty.

Delmarva further argues that any testimony regarding the internal procedures

should be precluded because Mr. Webber first discussed them in his deposition,

which Delmarva claims is a late expert disclosure. Plaintiffs respond that Mr.

Webber is not offering any new opinions, he was simply offering additional evidence

to support his opinions.

Superior Court Civil Rule 26(b)(4)(A)(i) requires expert disclosures to “state

the subject matter on which the expert is expected to testify, and to state the

substance of the facts and opinions to which the expert is expected to testify and a

summary of the grounds for each opinion.” Parties must comply with the disclosure

rules “as a precondition to the admissibility of expert testimony at trial.” 140 But, a

139F

party “need not provide every nuance or detail of the expert’s opinion in a pretrial

139

Webber Dep. at 58-59.

140

Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 528 (Del. 2006).

disclosure (whether by report or interrogatory response), particularly given that our

rules of procedure … allow for expert depositions.” 141140F

The Court finds that reference to Delmarva’s procedures was not a late

disclosure. Mr. Webber did not change his opinions, but rather offered further

support based on Delmarva’s own document.

Finally, Delmarva seeks to preclude Mr. Webber from testifying to a

growth/regrowth analysis, a tree ring analysis, his finding of “embedded charcoal

between wound wood,” and his reliance on any other expert. Delmarva asserts that

these topics were first raised in Mr. Webber’s testimony and therefore, are late expert

disclosures. Plaintiffs respond that this testimony is merely further explanation and

therefore the testimony should not be precluded.

The growth/regrowth analysis appears to have been performed after Mr.

Webber submitted his expert opinions but before his deposition. It is mentioned in

response to defense counsel asking what he did to prepare for his deposition. It is

unclear whether Mr. Webber intends to testify about this analysis in any detail other

than what he mentioned in his deposition. Without a clear understanding of the

analysis or the proposed testimony, the Court cannot rule on the admissibility of this

141

Project Boat Holdings, LLC v. Bass Pro Gp., LLC, 2018 WL 3814930, at *2 (Del. Ch. Aug. 10, 2018).

testimony. A ruling will have to wait until a motion in limine or trial. The motion

on this ground is DENIED without prejudice.

The tree ring analysis was raised in response to defense counsel asking if Mr.

Webber had taken any steps to compare a branch that had been preserved in a shed

after the incident, to photos taken by the police. This testimony falls within

information that may be learned through a deposition and is not a late disclosure.

The Court also finds that the testimony regarding the embedded charcoal falls into

the same category.

As to the other experts’ reports, Delmarva seems to suggest that Mr. Webber

was equivocal about his reliance. Mr. Webber either did or did not rely on them

when he prepared his reports. If he did, he can testify that he did. If not, he cannot.

2. Delmarva’s additional Mr. Orosz arguments.

Delmarva argues that Mr. Orosz offers an opinion on vegetation management,

but he does not know how far back the Tree may have been previously trimmed and

he cannot identify any applicable standard that was violated. Similarly, he does not

point to a regulation that Delmarva violated with respect to his testimony on pole

inspections and de-energizing the electrical lines. Therefore, he should be precluded

from offering these opinions.

These arguments were addressed above. Mr. Orosz has sufficient facts to

support his opinions. Simply because there is no written document setting forth an

industry standard in terms of specific trimming distance, inspection schedule, or line

de-energization, does not make the testimony inadmissible. Mr. Orosz is offering

his opinion on industry standard and Delmarva’s breach of that standard. 142 141F

The cases Delmarva cites in support of its argument are distinguishable. In

Goodridge v. Hyster Co., the expert offered opinions on the alleged defective design

of a forklift that was involved in an incident causing personal injuries. 143 The expert

42F

offered opinions on the need for the forklift to have a backup camera and an audible

alarm. 144 The expert had no training or experience as an engineer. 145 He never

143F 144F

compiled any data on forklift designs and safety issues. 146 The extent of his

1 5F

“testing” was being in proximity to forklifts in operation and hearing the backup

alarm. 147 Further, he relied on nothing more than “snippets from various safety

146F

publications” and his own article. The lower court found, and the Supreme Court

affirmed, that the expert was not qualified to offer opinions on forklift design.

Further, the opinions would not be helpful to the jury because the most the expert

could do is identify safety articles and leave the jury “to speculate” to apply the

literature to the facts. The expert was properly excluded.

142

See Orosz Dep. at 54 (the Tree “certainly was not [trimmed] to industry standards. That’s what I’m saying…”). See Roberts, 2 A.3d at 137 (“Experts can establish standards of care, from which the trier of fact determines whether a duty has been breached.”).

143

2002 WL 32007200 (Del. Super Oct. 4, 2002), aff’d 845 A.2d 498 (Del. 2004).

144

Id. at *1.

145

Id. at *2.

146

Id.

147

Goodridge v. Hyster Co., 845 A.2d 498, 504 (Del. 2004).

In Farrell v. University of Delaware, plaintiff offered an expert on public ice

rink management, supervision, and training of ice guards. 148 The expert, however,

147F

had no training or experience on those topics. His experience and training with

regard to ice rinks was limited to construction and design. 149 Those were not at issue

148F

in the case. The expert based his opinions on conclusory statements of “custom and

practice in the industry” of which he had no knowledge. 150 Not only was the expert

149F

not qualified to offer the proposed opinions, the court found his “rambling

commentary on just about every common-sense matter in the case” would not assist

the trier of fact. The expert was excluded.

In Costalas v. Safeway, Inc., plaintiff offered an expert on the frequency of

inspections, which he opined was every 30 minutes, based on “industry standard.” 151 150F

The expert relied on nothing more than a pamphlet he authored. 152 Plaintiff admitted 151F

that the expert’s opinion was not based on the type of “information relied [on] by

others in the field [because] that information [did] not exist.” 153 The court ruled that

152F

the expert’s opinion, based on nothing more than his “experience,” does not satisfy

the rigor of Rule 702 and his testimony was excluded.

148

2009 WL 5176218 (Del. Super. Nov. 24, 2009).

149

Id. at *2.

150

Id. at *3.

151

2007 WL 2893585, at *1 (Del. Super. Oct. 1, 2007).

152

Id.

153

Id.

Finally, in the transcript ruling in Harris v. Quickform Concrete Co., LLC, the

court addressed the proposed expert testimony regarding the requirement for a shutoff valve on pipelines. 154 The applicable regulation required the valve on pipes

153F

installed after the regulation was adopted. By the terms of the regulation, it did not

apply to pipes installed before the adoption date, like the pipe at issue in the case.

The expert also could not “cite to any standard policy, procedure, or recognized

industry standard which would establish best practices or any standard that would

establish best practices to support his position that a shut-off valve was to have been

installed.” The only basis he gave for this supposed requirement was that “he had

seen them installed before.” 155 Finding that the expert’s opinion was merely his

154F

“personal perspective” the court excluded his testimony.

Unlike in these cases, the Challenged Experts are well-qualified to offer

opinions in their respective fields. Indeed, Delmarva does not challenge their

credentials. Also, unlike in these cases, Messrs. Webber, Floyd, and Orosz rely on

statutes and regulations to support their testimony of industry standards and Mr.

Loferski relies on scientific training applied to the information that is available.

154

C.A. No. 03C-10-243 (Del. Super. Mar. 30, 2007).

155

Id., transcript at 14.

3. Delmarva’s additional Mr. Floyd arguments.

Similar to Mr. Webber, Delmarva argues that Mr. Floyd cannot offer opinions

on vegetation management because he does not know how far back the Tree may

have been trimmed in prior years. For the same reasons Mr. Webber’s testimony is

admissible, Mr. Floyd’s is admissible.

With respect to structural integrity of the poles, Delmarva argues that the

expert “has reviewed no standards regarding pole integrity” and therefore, he cannot

point to a standard that has been violated. But again, Mr. Floyd is testifying to the

industry standard which he is able to establish through his training and

experience. 156155F

4. Delmarva’s additional Mr. Loferski arguments.

Delmarva seeks to preclude Mr. Loferski from testifying about utility pole

inspections or sag in the utility wires. At oral argument, Plaintiffs confirmed that

Mr. Loferski is not offering opinions on either of these topics. Further, Mr. Loferski

is not offering any opinion on the utility wires touching the Tree.

While he cannot offer an opinion on sag in the line or the wires touching the

Tree, this does not mean he cannot testify to facts in the record that the line had sag

and the wires had come in contact with the Tree, if those facts are indeed developed

at trial.

156

See Floyd Dep. at 129-32.

D. Comcast’s motions

Comcast’s motions to exclude the Challenged Experts largely rests on the

proposition that Comcast owed no duty to Mr. Mena Perez and it had no legal duty

to perform vegetation management. 157 In a previously issued decision, the Court

156F

ruled that Comcast owed a legal duty and it was required to engage in vegetation

management by the Delaware Code via Comcast’s franchise from the Public Service

Commission. 158 Further, the Court found Comcast was not entitled to summary

157F

judgment based on the theory that Mr. Mena Perez was not injured by the

communication lines. As noted in that opinion, Plaintiffs’ theory is that had Comcast

performed the required vegetation management, the Tree would not have been in the

condition that existed on August 2, 2018, and Mr. Mena Perez would not have been

injured. Therefore, the motions based on this ground are without merit.

Turning to the specific challenges to Mr. Orosz, Comcast argues that his

opinion regarding Comcast’s failure to properly inspect and maintain the vegetation

around its lines must be excluded because he is unaware of any regulation requiring

it to maintain vegetation, he reviewed no inspection documents, and his opinion is

based on the condition of a tree other than the Tree.

157

D.I. 446 (Floyd); D.I. 455 (Orosz); D.I. 464 (Webber).

158

Hichez v. Delmarva Power & Light Co., 2026 WL 2364458, at 11-13 (Del. Super. Aug. 14, 2026).

Plaintiffs respond that Mr. Orosz’s opinions are based on Comcast’s

obligation under the NESC and further, he relied on Comcast’s responses for request

for admissions that it is subject to the NESC.

Comcast misconstrues Mr. Orosz’s testimony. He did in fact rely on the

NESC. 159 Further, his testimony regarding lack of inspection is based on his

158F

investigation of the neighborhood where the Tree is located. This investigation led

Mr. Orosz to conclude that Comcast had not inspected or conducted vegetation

management in the area surrounding the Tree, which included another tree that had

grown “completely around the communication cables” for years. 160 Had Comcast

159F

inspected the area, the condition of the vegetation on August 2, 2018, would not

have existed. 161 The Court is satisfied that Mr. Orosz’s opinions are based on

160F

“sufficient facts or data” and there is no basis to exclude his testimony.

Comcast’s additional argument with respect to Mr. Webber relates to an

exchange during his deposition. After testifying as to Comcast’s duty (and failure)

to maintain vegetation around the communication lines, Comcast’s counsel asked

the witness about a pole attachment agreement between Delmarva and Comcast, the

159

Orosz Dep. at 58.

160

Id. at 57-58.

161

Id. at 59-60.

details of which Mr. Webber was not aware. 162 Then, the following exchange

161F

occurred:

Q. In your reports you state that the evidence in this case shows that

the subject [T]ree was not actively managed by the defendants

Comcast, Verizon, Delmarva [] for 18 years prior to the plaintiff’s

injuries and this is the cause of his injuries. When you say that the

evidence in this case shows, what evidence do you have that the [T]ree

was not actively managed by Comcast?

A. Not pruned, there’s no evidence that it was ever pruned or

managed…. Now, whatever the inner workings are between y’all and

Delmarva, that’s not my issue. My issue is talking about what the

[T]ree – the body language of the [T]ree and the evidence of the [T]ree.

That’s where I am going with it.

Q. But you understand my question is that you are saying the

evidence shows that the [T]ree was not actively managed by Comcast

and that this was the cause of his injuries. So I am asking you what

evidence show that this [T]ree was not managed by Comcast?

A. The photographic evidence, the [T]ree itself, the testimony, the

pleadings, everything in totality that I reviewed, including the subject

[T]ree, it showed no evidence of management.

Q. But you have no understanding as to what the obligations of

Comcast are with respect to vegetation management, correct?

A. No, nor was it the purpose of my investigation. 163

162F

It is the last question and answer, in isolation, on which Comcast relies. It is

clear to the Court that when viewed in context, Mr. Webber was not testifying that

he has no understanding that Comcast had a duty to maintain the vegetation. Rather,

162

Webber Dep. at 136-137.

163

Id. at 137-39.

Mr. Webber’s response was addressing whatever agreement there may have been

between Comcast and Delmarva regarding vegetation management. Accordingly,

Comcast’s motion on this ground fails.

III. CONCLUSION

Delmarva seeks to exclude Plaintiffs’ experts based on its assertion that the

experts lack a sufficient factual foundation to render the opinions and that the

opinions do not fit the case. Delmarva also seeks to exclude certain other portions

of the opinions on various grounds. Having found that the experts rely on sufficient

facts and the opinions are relevant and reliable, there is no basis to exclude the

opinions. The additional grounds raised by Delmarva also do not require exclusion.

Therefore, the motions are DENIED.

Comcast separately seeks to exclude experts based on its argument that it

owed no duty to Mr. Mena Perez. Having found a duty existed, Comcast’s motions

are DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller

Kathleen M. Miller, Judge

Hichez v. Delmarva Power & Light Company

Authorities cited

Opinion · public domain