Dickerson v. State Farm Mutual Automobile Insurance Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STACI DICKERSON )
)
Plaintiff, )
v. ) C.A. No.: N24C-08-004 SSA
)
STATE FARM MUTUAL )
AUTOMOBILE INSURANCE CO., )
)
Defendant. )

Submitted: February 27, 2026
Decided: March 4, 2026

The Court must determine whether a treating podiatrist is permitted to testify

regarding the reasonableness, cost, and necessity of a spinal cord stimulator where

treatment notes indicate Plaintiff was referred to undergo a lumbar MRI and

consult an orthopedic spine surgeon to discuss the procedure. The Court has

reviewed the parties’ arguments, the record, and the law governing this matter. The

Court finds the testimony will be limited, in part.

Factual Background

Plaintiff seeks uninsured motorist benefits from Defendant. Factually, she

maintains an uninsured motorist ran over her foot and she suffered injury as a

result.1 Defendant disputes the facts underlying the incident, as well as the “nature

1
Pretrial Stipulation, at p. 1.
and extent, and/or causal relationship” of the injuries.2 Plaintiff treated with Dr.

Jamrok, a podiatrist. For over a decade, Dr. Jamrok has practiced with Peninsula

Orthopaedic Associates. He is a member of the American Podiatric Medical

Association and the American Board of Orthopaedics and Primary Podiatric

Medicine.3

Dr. Jamrok has not been deposed; however, he authored a two-page report,

detailing his treatment of Plaintiff. He diagnosed Plaintiff with RSD/complex

regional pain syndrome 1 and his report details she was treated with physical

therapy and medication for pain, inflammation, and “her nerve situation.”4

Eventually, Dr. Jamrok felt Plaintiff was “no longer significantly improving…”5

The record as to Dr. Jamrok’s treatment, general qualifications, and qualifications

specific to the spinal cord stimulator is limited to his report and CV. The Court has

been provided with portions of Plaintiff’s deposition transcript and one additional

treatment note from a physician assistant within Dr. Jamrok’s practice.

Significant for this decision, Dr. Jamrok’s report states he “recommended

that the patient visit my partner Dr. McGovern to discuss the DRG spinal cord

stimulator which is indicated for RSD/complex regional pain syndrome.”6 Dr.

2
Id. at p. 2.
3
See Plaintiff’s Response in Opposition to Defendant’s Daubert Motion to Exclude and/or limit
the testimony of Plaintiff’s Medical Expert (“Plaintiff’s Response”), Exhibit B.
4
Id. at Exhibit A at p. 1.
5
Id. at p. 2.
6
Id.
Jamrok further stated “I believe that the prognosis for the patient with the DRG

spinal cord stimulator would be very positive.”7 Thus, it appears the stimulator

requires surgery which Dr. Jamrok could not perform. The report of Dr. Jamrok

and his expert disclosure does not detail his experience managing patients who

have had a spinal cord stimulator.

Dr. Jamrok does not opine as to the cost of the device or its implantation.

He concludes his report “the patient is going to need more advanced treatments

such as the DRG spinal cord stimulator to completely resolve her RSD/complex

regional pain syndrome 1 based on her last visit.”8

Defendant points, in part, to a medical record from Trevor Abbott, a

physician assistant within Dr. Jamrok’s practice, that is dated more than six months

before Dr. Jamrok’s report. Mr. Abbott’s note states “[n]ext appointment will be

with Dr. McGovern. I have ordered a lumbar MRI9 and will have the patient

follow-up with Dr. McGovern to discuss if she is a candidate for DRG

neuromodulation.”10

Plaintiff testified she met with Dr. McGovern and discussed the spine

stimulator. This transcript includes her description of the stimulator— “it was

7
Plaintiff’s Response, Exhibit B at p. 2.
8
Id.
9
It appears X-rays and an MRI of the foot and ankle were completed. See Defendant’s Daubert
Motion to Exclude and/or Limit the Testimony of Plaintiff’s Medical Expert, Ex. C p. 2.
10
Defendant’s Daubert Motion to Exclude and/or Limit the Testimony of Plaintiff’s Medical
Expert, Ex. C.
putting this box in my back with like some wire hanging out of my back with a

button that I would push if I had pain.”11 Plaintiff was not interested in pursuing

this option.

Parties’ Contentions

Defendant argues Dr. Jamrok’s opinions regarding the spinal cord stimulator

should be excluded by this Court, under its gatekeeping function, because his

opinions are “speculative, unreliable, and exceed the scope of his qualifications as

a podiatrist.”12 Defendants argue testimony on this point “requir[es] specialized

spinal and neurosurgical expertise.”13 To put a finer point on the issue, Defendant

argues “[w]hether a patient is a candidate for a DRG spinal cord stimulator—a

surgically implanted spinal device—falls well outside the scope of podiatric

medicine.”14

Moreover, Defendant suggests such testimony would be speculative because

Plaintiff did not follow-up on recommended diagnostic studies to evaluate for the

spinal cord stimulator. In Defendant’s view, whether she is a candidate for the

spine stimulator is a decision made by Dr. McGovern. Therefore, Defendant asks

the Court to exclude or limit the testimony of Dr. Jamrok on the subject of the

11
Plaintiff’s Response, Ex. C. at p. 23.
12
Defendant’s Daubert Motion to Exclude and/or Limit the Testimony of Plaintiff’s Medical
Expert at ¶ 2.
13
Id.
14
Id. at ¶ 4.
spine stimulator. Defendant also asked the Court to preclude opinion testimony

from Dr. Jamrok regarding the RSD/complex regional pain syndrome 1 diagnosis,

but this portion of the motion was withdrawn during oral argument.

Plaintiff disputes these characterizations. Plaintiff points to Dr. Jamrok’s CV

and argues he has “specialized expertise in foot and ankle pathology.” Plaintiff

frames the question slightly differently insofar as she advises Dr. Jamrok is not

offered to testify as to how to perform the implementation but instead will testify

she will not improve without it. Plaintiff answers the charge of speculative

testimony by pointing to two years of treatment and an MRI. Plaintiff suggests her

doctor can testify as to his recommendation for the spine stimulator even if she did

not undergo diagnostic testing, which she characterizes as ordered “to finalize

surgical placement.”15

Legal Standards

As the proponent of the expert testimony in this case, Ms. Dickerson bears the

burden by a preponderance of the evidence.16 Ms. Dickerson need not demonstrate

her expert is correct, but she must demonstrate he is reliable.17 This Court “must act

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

15
Plaintiff’s Response at ¶ 8.
16
In re Zantac (Ranitidine) Litigation, 342 A.3d 1131, 1144 (Del. 2025) citing Bowen v. E.I.
DuPont de Nemours & Co., 906 A.2d 787, 795 (Del. 2006).
17
State v. McMullen, 900 A.2d 103, 114 (Del. Super. Ct. 2006) citing In re Paoli R.R. Yard P.C.B.
Litigation, 35 F.3d 717 (3d Cir. 1994).
relevant.”18 “Ultimately, the testimony of an expert is admitted upon the theory that,

in a particular case, the issue is such that the jurors are not competent to draw their

own conclusions from the facts without the aid of the expert.”19 In making this

determination, the Court looks to D.R.E. 702 and to Daubert.20

Delaware Rule of Evidence 702 provides:

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;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts
of the case.
This Court must be focused on principles and methodology, not the conclusions

of the expert—and while the Court’s inquiry is guided by factors, they are flexible.21

The factors include: 22

18
In re Zantac (Ranitidine) Litigation, 342 A.3d at 1144 quoting Tumlinson v. Advanced Micro
Devices, Inc., 106 A.3d 983, 990 (Del. 2013).
19
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 846 (Del. Super. Ct. 2000) (citation
omitted).
20
D.R.E. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
21
Daubert, 509 U.S. at 594.
22
Most recently in In re Zantac (Ranitidine) Litigation, 342 A.3d at 1144 quoting Daubert, 509
U.S. at 593–94.
(1) Whether the expert opinion testimony “can be (and has been) tested”

(2) Whether the opinion testimony “has been subjected to peer review and

publication”

(3) The “known or potential rate of error” and

(4) Whether it has attracted widespread acceptance within the scientific

community.

The Delaware Supreme Court has recently reaffirmed this Court’s obligation as

a gatekeeper and that this Court should not presume admissibility.23 As to relevance,

the proffered expert testimony must both “relate to an ‘issue in the case’ and ‘assist

the trier of fact to understand the evidence or to determine a fact issue.’”24 “Courts

are not just to let the opinion of the credentialed expert into evidence for what it is

worth and leave its evaluation to the jury.”25 While the Court should consider the

expert’s background

[t]he words of an expert qualified to opine within a recognized “field”
do not automatically guarantee reliable, and therefore admissible,
testimony, however. The inquiry will be whether the expert and the
“field of expertise” itself can produce an opinion that is sufficiently
informed, testable and in fact verifiable on an issue to be determined at
trial.26

23
Id. at 1147.
24
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013) (internal footnote
omitted) quoting Daubert, 509 U.S. at 591.
25
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 841 (Del. 2000).
26
Eskin v. Carden, 842 A.2d 1222, 1228 (Del. 2004).
In O’Riley v. Rogers, the Delaware Supreme Court set parameters for this

Court to consider.27 Specifically, “[a] doctor cannot base his expert medical opinion

on speculation or conjecture.”28 Indeed, “a doctor’s testimony that a certain thing

is possible is no evidence at all.”29 In O’Riley, Plaintiff treated with an orthopedic

surgeon but did not undergo a recommended diagnostic test to determine the source

of the injury due to cost concerns. At trial, on cross-examination, testimony was

elicited that, if the diagnostic test were completed, it would enable the doctor to

determine if surgery were appropriate.30 Upon review, it was determined that the

proper bounds of expert testimony were exceeded when “counsel asked the doctor

to speculate about the possible medical consequences of possible treatment courses

an EMG test might reveal.”31

In Li v. Geico, this Court excluded testimony from an expert regarding the

potential need for future surgery.32 In its decision, this Court noted conclusions

within the expert’s report were phrased in a speculative manner. The Court found

the proffered testimony sought to “opine about the possible courses of treatment and

costs that might arise if now-unmet conditions are satisfied in the future.”33

27
69 A.3d 1007 (Del. 2013).
28
Id. at 1011 quoting Oxendine v. State, 527 A.2d 870, 873 (Del. 1987).
29
Id.
30
Id. at 1009.
31
Id. at 1012.
32
2019 WL 4928614 at *2 (Del. Super. 2019).
33
Id. at *2.
“An expert may be highly qualified and competent to offer many opinions.

But that expert must be competent to offer opinions in a given specific factual

setting.”34 This Court has also excluded speculative expert testimony from a doctor

couched in terms of the “likely” form of surgery “if” treatment was ineffective and

that he was “hopeful” total knee replacement was not required. 35

Analysis
On the record presented, the mechanics of the DRG spinal cord stimulator

surgery is limited to Plaintiff’s lay testimony. What a DRG spinal cord stimulator

is or does, or which doctor/specialty determines its proper use and/or management

is unclear. Further, while Plaintiff argues the diagnostic testing ordered is for the

purpose of determining surgical placement as opposed to determining the necessity

or reasonableness of surgery—the Court can find no record citation for this

proposition.36

Plaintiff cites Pavey v. Kalish for support.37 Specifically that it is the Court’s

duty “not to determine which theory is stronger but instead to act as a gatekeeper

who determines whether the testimony is based on sufficient facts or data and on

reliable principles and methods that have been reliably applied to this case.”38

34
Friedel v. Osunkoya, 994 A.2d 746, 751 (Del. Super. 2010).
35
Jackson v. Aglio, 2014 WL 1760316 *3 (Del. Super. 2014).
36
See Plaintiff’s Response at ¶ 8.
37
3 A.3d 1098 (Del. 2010).
38
Id. at *3.
Here, the Court is not presented with alternate theories; instead, the Court is asked

if the testimony is based on sufficient facts or data.

With the legal principles cited above in mind, the Court re-reviews the report

of Dr. Jamrok and his expert disclosure. His report indicates he recommended

Plaintiff “visit my partner Dr. McGovern to discuss the DRG spinal cord stimulator

which is indicated for RSD/complex regional pain syndrome.” Dr. Jamrok notes

Plaintiff will need “advanced treatments such as the DRG spinal cord stimulator”

Additionally, the note from Mr. Abbott indicates he ordered a lumbar MRI and

advised Plaintiff follow-up with Dr. McGovern to discuss if she is a candidate for

DRG neuromodulation.” The Court finds this language is line with testimony

excluded in both O’Riley and Li because it is speculative.

Dr. Jamrok can testify as to his diagnosis of RSD/complex regional pain

syndrome 1. He can testify regarding his treatment of Plaintiff. He can testify that

she has not significantly improved with the course of treatment he prescribed.

However, Dr. Jamrok cannot testify as to the cost of the DRG spinal cord

stimulator, as he candidly states he does not have that information. The record

does not have sufficient information to evaluate the quality of testimony proposed

as it relates to the DRG spinal cord stimulator. Nor does the Court have sufficient

information, under a preponderance of the evidence standard, regarding the field of
expertise applicable to evaluating Plaintiff’s suitability for the spinal cord

stimulator or its management.

Regarding the reasonableness of the DRG spinal cord stimulator, the Court

finds the referral to Dr. McGovern, without any clarification of Dr. McGovern’s

role in the matter, leaves a record that is unclear as to the underlying basis of such

reasonableness under Rule 702. It is unknown if Dr. McGovern was identified to

simply carry out the procedure after Dr. Jamrok determined it was appropriate, or if

Dr. McGovern would be required to independently assess Plaintiff in determining

whether she is an appropriate candidate for a DRG spinal cord stimulator. The

record reflects an MRI was ordered at the time the referral to Dr. McGovern was

made. While Plaintiff asserts the purpose of the MRI was to limited assist with

surgical placement and not for diagnostic purposes, the Court cannot make this

factual connection in the record. It appears no such MRI has been completed.

Therefore, the Court determines it would be impermissibly speculative to permit

testimony regarding the spinal cord simulator.

Finally, Dr. Jamrok concludes Plaintiff’s prognosis with a spinal cord

stimulator is “very positive.” However, the underlying support for this conclusion

is also unknown. The Court finds this does not meet the standard under 702.

The Defendant’s Motion to Exclude and/or Limit Testimony is therefore,

GRANTED, in part.
IT IS SO ORDERED.

/s/Sonia Augusthy
Judge Sonia Augusthy