Andino v. Nexius Solutions, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

VANESSA ANDINO, Individually )
and as the Administratrix of the Estate )
of BRYAN MALDONADO-ANDINO ) C.A. No.: N22C-10-671 FJJ
and the Estate of JOVAN )
MALDONADO-ANDINO; and )
JOAQUIN MALDONADO, )
)
Plaintiffs, )
v. )
)
NEXIUS SOLUTIONS, INC.; )
MYNDCO, INC.; SUNBELT )
RENTALS, INC., )
)
Defendants. )

Submitted: February 27, 2026
Decided: March 13, 2026

OPINION AND ORDER
ON PLAINTIFFS’ MOTIONS IN LIMINE

Timothy E. Lengkeek, Esquire, Young Conaway Stargatt and Taylor, LLP,
Wilmington, Delaware, David L. Kwass, Esquire and Michael J. Zettlemoyer,
Esquire (argued), Saltz Mongeluzzi Bendesky, Attorney for Plaintiff.

Walter O’Brien, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby, LLP,
Wilmington, Delaware, Attorney for Defendant Nexius Insight, Inc.

R. Joseph Hrubiec, Esquire, Post & Schell, P.C., Wilmington, Delaware, Attorney
for Defendant Myndco, Inc.

Joshua D. Scheets, Esquire, Marshall Dennehey, P.C., Wilmington, Delaware,
Attorney for Sunbelt Rentals, Inc.

Jones, J.

1
INTRODUCTION

Plaintiffs Vanessa Andino, individually and on behalf of the Estates of Bryan

Maldonado-Andino and Jovan Maldonado-Andino (“Decedents”), and Joaquin

Maldonado (collectively “Plaintiffs”) have brought a wrongful death action against

numerous defendants, including Nexius Solutions, Inc. (“Nexius”), Myndco, Inc.

(“Myndco”), and Sunbelt Rentals, Inc. (“Sunbelt”), for the death of Decedents

during a workplace accident on November 2, 2020. Plaintiffs have filed three

Motions in Limine. This is the Court’s ruling on these Motions.

FACTS & PROCEDURAL HISTORY

On November 2, 2020, Decedents were working for Velex, Inc. (“Velex”) at

a construction site in Bethany Beach, Delaware. 1 Decedents were working on a

Genie High Reach Z-135 aerial boom lift (“Boom Lift”) approximately 120 feet in

the air when strong winds tipped the lift over.2 Following the incident, OSHA

conducted an investigation and issued citations to Velex.3

On November 12, 2025, all parties to this action agreed to, signed and

submitted to the Court a Stipulation of Dismissal. 4 The Court entered the Stipulation

1
Docket Item (“D.I.”) 307, at 2.
2
Id.
3
D.I. 284, at 1.
4
D.I. 245; D.I. 283, at 3.

2
of Dismissal as an Order on November 14, 2025. 5 The agreement and subsequent

Order stated the following:

IT IS HEREBY STIPULATED AND AGREED … by and
between the parties of this action, through the undersigned
counsel and subject to approval by the Court, that all
claims and cross-claims asserted by and against
Defendants, Genie Industries, Inc. and Terex Corporation,
in the above-captioned action are hereby dismissed with
prejudice. All parties are to bear their own costs. 6

In its subsequent disclosure on December 3, 2025, Defendant Myndco produced an

expert, R. Kevin Smith, P.E., who reached conclusions as to the defective design of

the lift, the insufficient warnings that came with the lift, and placed Genie at fault

as a major factor in the accident.7

I. Plaintiffs’ Motion in Limine to Preclude Evidence or Testimony as to
Negligence of Velex

Plaintiffs have moved to preclude Defendants from introducing testimony or

evidence as to Velex’s negligence.8 Plaintiffs argue this evidence is irrelevant under

Delaware Rules of Evidence (“DRE”) 401, the prejudicial effect substantially

outweighs any probative value under DRE 403, and Defendants cannot establish

Velex’s conduct was a superseding cause of the injuries. Defendants respond that

5
D.I. 246; D.I. 283, at 3.
6
D.I. 246, at 1.
7
D.I. 283 at 3; D.I. 307, at 3-4, Ex. C, Report of R. Kevin Smith, P.E., at 6-7.
8
D.I. 282.

3
evidence of Velex’s negligence is relevant and non-prejudicial as it goes to a

supervening cause of injury.9

Plaintiffs lean on Cox v. Delaware Elec. Co-op., Inc.’s language to support

their position: “[t]he longstanding common law rule is that where one putative

defendant is for some reason immune from liability, the other defendant(s) remain

fully liable.”10 There, an electrical lineman was killed when he touched a high

voltage wire near Laurel, DE11 without wearing his protective gear.12 The employer

could not be held “liable” due to Pennsylvania’s workers compensation scheme.13

Still, the defendant sought to introduce evidence that the employer was negligent

because “[employer’s] negligence in failing to adequately train and/or supervise the

decedent may be found to constitute an intervening-superseding cause and thereby

relieve defendant of liability.”14 The Cox Court noted such a determination must be

made on a case-by-case basis 15 and ultimately held “as a matter of law [employer’s]

actions cannot constitute an intervening-superseding cause, and … may not be

introduced into evidence because it simply is not relevant.”16

9
D.I. 306.
10
Cox v. Delaware Elec. Co-op., Inc., 823 F. Supp. 241, 247 (D. Del. 1993).
11
Id. at 242-43.
12
Id. at 247.
13
Id. at 245, 246.
14
Id. at 247.
15
Id.
16
Id. The Cox Court also held that even if it were relevant, the evidence would still be excluded as the prejudice far
outweighed the probative value. Id. at 247-48.

4
In support of their position, Defendants highlight the Delaware Supreme

Court’s decision in Duphily v. Delaware Elec. Co-op., Inc.17 for the proposition that

a litigant can point to the actions of an immune party as a supervening cause of

injury. There, the Duphily Court considered the Cox case and recognized that “the

court in Cox intimated that the real claim of the defendant was contributory

negligence on the part of the decedent, not superseding cause.” 18 The Court then

recognized the general rule that “[w]hen a party's negligence is relevant to the injury-

producing event but not actionable, a defendant may nonetheless introduce evidence

to establish that the negligence of the immune party was the supervening cause of

the plaintiff's injury.”19 As such, the trial court did not err in admitting evidence of

negligence on the part of an immune employer as evidence of a superseding cause.20

I am satisfied that a jury could find that the actions of Velex were the

supervening cause of Decedents’ death. Unlike the situation in Cox, this Court

cannot say that Velex’s action did not constitute a supervening cause as a matter of

law. Therefore, the evidence is admissible.

17
Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821 (Del. 1995).
18
Id. at 828; see also Wells v. Delaware Elec. Co-op., Inc., 2000 WL 973121, at *1 (Del. Super. Ct. Apr. 27, 2000),
aff'd sub nom. Delaware Elec. Co-op., Inc. v. Wells ex rel. Est. of Wells, 782 A.2d 263 (Del. 2001) (noting that
“Defendant is not allowed to argue that the employer was contributory negligent. However, the Defendant is
allowed to argue that the employer was a supervening cause which will cut off liability from another party's
negligence.”).
19
Id.
20
Id. at 824, 828.

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I also conclude that the admissibility of this evidence is not more prejudicial

than it is probative under DRE 403’s balancing test. Accordingly, the Motion in

Limine is DENIED and this evidence may come in at trial for the limited purpose

of establishing that Velex’s actions were a supervening cause. If the parties require

a limiting instruction to the use of the evidence, it will be given.

II. Plaintiffs’ Motion in Limine to Preclude Evidence or Testimony of
Negligence, Responsibility or Defective Design

Plaintiffs have moved to preclude Defendants from introducing any evidence,

arguments or expert testimony that Genie Industries, Inc. (“Genie”) or Terex

Corporation (“Terex”) were negligent or responsible for the Decedents’ deaths, and

that the Genie boom lift was defectively designed.21 Plaintiffs contend that the

Stipulation of Dismissal entered as an Order on November 14, 2025 bars such

evidence under the doctrine of res judicata, DRE 401 (relevance) and 403

(prejudice). Defendants respond that res judicata does not apply here as this is the

same case, and the evidence is not barred by DRE 401 or 403.22

This Court intends to hold the parties to their agreements. The Stipulation of

Dismissal signed by both parties and entered as an Order by this Court is clear: “IT

IS HEREBY STIPULATED AND AGREED … by and between the parties of this

action … that all claims and cross-claims asserted by and against Defendants, Genie

21
D.I. 283.
22
D.I. 307.

6
Industries, Inc. and Terex Corporation, in the above-captioned action are hereby

dismissed with prejudice.” 23 While Defendants are correct that this is not a new

case, they expressly agreed to dismiss all claims against Genie and Terex in this

action. As a result, any evidence or expert testimony going to prove Genie or Terex’s

negligence, responsibility or defective design are irrelevant under DRE 401 and

could confuse the issues or mislead the jury under DRE 403.

Accordingly, this Motion in Limine is GRANTED, and evidence or expert

testimony going to these points shall be excluded.

III. Plaintiffs’ Motion in Limine to Preclude Evidence of Velex’s OSHA
Citation

Plaintiffs have moved to preclude evidence of employer Velex’s OSHA

citation which was handed down as a result of the November 2, 2020 incident.24

Plaintiffs highlight that Velex is not a party to this action and cannot be sued by any

party due to workers’ compensation immunity. 25 They go on to assert that the OSHA

violation is not admissible for numerous reasons: 1) it constitutes employer

negligence which is not relevant to any claim; 2) it is hearsay that does not fall under

any exception; 3) it is an unreliable investigative opinion lacking indicia of

trustworthiness required for admissibility; 4) Defendants cannot support a

superseding cause defense in the given circumstances; and 5) the prejudicial effect

23
D.I. 246, at 1.
24
D.I. 284.
25
Id. at 2.

7
far outweighs any probative value. Defendants respond that they intend to use this

evidence to establish a supervening cause of the accident.26

In Duphily, the Delaware Supreme Court held “as a general matter, a party's

violation of an OSHA safety regulation may be used as evidence of that party's

negligence.” 27 This Court has also previously held that “[u]nder Delaware law, a

party's violation of an OSHA safety regulation may be used as evidence of that

party's negligence, but the violation does not constitute negligence per se.”28

Despite the language in Cox v. Delaware Elec. Co-op., Inc.,29 because this Court has

determined that a fact issue exists as to the whether Velex’s actions were an

intervening superseding cause of the accident in question, this Court is convinced

that allows for some evidence relating to OSHA to be admitted.

The parties may use the OSHA safety regulations as evidence of a violation

of those regulations. However, the question of whether the actual OSHA violation

given to Velex in this case is admissible is another matter.

Plaintiffs have cited to the Court a number of cases where Courts have held

that the actual OSHA violation itself is not admissible. 30 Defendants have not cited

26
D.I. 309.
27
Duphily, 662 A.2d at 836 (citing Muzzleman v. Nat'l Rail Passenger Corp., 839 F. Supp. 1094, 1098 (D. Del.
1993)).
28
Est. of Mitchell v. Allen Fam. Foods, Inc., 2013 WL 870664, at *4 (Del. Super. Ct. Mar. 1, 2013) (citing Duphily
v. Delaware Electric. Co-op., Inc., 662 A.2d 821, 836 (Del.1995)) (footnotes omitted).
29
Cox v. Delaware Elec. Co-op., Inc., 823 F. Supp. 241, 247 (D. Del. 1993) (“[t]he longstanding common law rule
is that where one putative defendant is for some reason immune from liability, the other defendant(s) remain fully
liable.”).
30
Lenoir v. C. O. Porter Mach. Co., 672 F.2d 1240, 1247 (5th Cir. 1982) (“error was committed in allowing the
OSHA document to be produced on the issue of negligence.”); see also Millison v. E.I. du Pont de Nemours & Co.,

8
the Court to any contrary authority. This Court agrees with those decisions that have

not allowed the admission of the actual OSHA violation. The thrust of these

decisions is that OSHA’s finding of a violation without giving the plaintiffs the

ability to cross examine those responsible for the findings of the OSHA investigators

makes the finding more prejudicial than probative under the DRE 403 balancing test.

I agree with this proposition. To allow Defendants to rely on the existence of the

violation itself would unfairly prejudice Plaintiffs without giving them the right to

challenge those conclusions. Moreover, the jury could very well give added

significance to this finding without having the full benefit of the entire investigation.

Evidence of the relevant OSHA standard and whether they were violated is

proper evidence. That an OSHA violation was issued to Velex is not.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge

545 A.2d 213, 224 (App. Div. N.J. 1988), aff'd, 558 A.2d 461 (N.J. 1989) (“[w]hile OSHA regulations may be
admissible to establish a standard of care, … OSHA citations are the opinions of investigators and ordinarily do not
‘carry with [them] the indicia of reliability that is inherent in government adopted safety standards.’”) (citations
omitted); see also Swartz v. Dow Chem. Co., 326 N.W.2d 804, 805, 809 (Mich. 1982) (holding the trial judge erred
in allowing “the employer's safety engineer to read from a letter of an unknown Michigan Department of Public
Health employee indicating that citations for MIOSHA violations were issued against the nonparty employer”
because “it was prejudicial hearsay” and “immaterial to the case.”).

9