Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-01254-Gl\/IS Document 135 Filed O9/13/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HARRY SMITH, JR. and ROSLYN )
WOODARD SMITH, Individually and as )
Administrators of THE ESTATE OF )
HARRY SMITH, Ill )
)
Plaintiffs, ) Case No. O4-l254—GMS
)
v. )
)
CITY OF WILIVHNGTON, JOHN )
CIRITELLA, THOMAS DEMPSEY, and )
MATHEW KURTEN, )
)
Defendants. )
DEFENDANTS’ THIRD MOTION IN LIMINE
gPRECLI}SION OF CERTAIN TESTIMONY FROM THOMAS SMI'I`H[
Plaintiffs have listed Thomas Smith, twin brother of the decedent, as a fact witness.
Defendant move to preclude plaintiffs from offering testimony hom Thomas Smith about the
mental anguish he may have suffered as a result of his brother’s death. Any mental anguish
Thomas Smith may have suffered is irrelevant because, he is not entitled to recover for any under
Delaware’s wrongful death statement. This motion does not seek to preclude Thomas Smith
from offering admissible testimony about his parents’ mental anguish.
A. The Wrongful Death Claims In This Action Arise Solely Under 1)elaware’s
Wrongful Death Statute.
This Court has previously ruled that plaintiffs cannot assert a wrongtiil death claim under
the Fourteenth Amendment and therefore any such claim must arise under state law.
B. Thomas Smith ls Not Entitled To A Recovery For Mental Anguish Under
Delaware’s Wrongful Death Statute, i0 Del'. CZ § 372.
Wrongful death actions were unknown at common law exist only as a creature of statute.
Because Delaware’s wrongful death statute is in derogation of common law, it must be strictly
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Case 1:04-cv-01254-Gl\/IS Document 135 Filed O9/13/2006 Page 2 of 4
construed. Sterner v. Wesley College, Inc., 747 F,Supp. 263, 268 (D. Del. 1990) (Delaware’s
wrongful death statute “is in derogation of the common law and must be strictly construed?).
By its terms, the statute prohibits a recover for mental anguish by the sibling of a decedent if the
decedent is not survived by a spouse, child or parent, Section 3724 provides in pertinent part:
However, when mental anguish is claimed as a
measure of damages under this subchapter, such
claim for mental anguish will be applicable only to
the surviving spouse, children and persons to whom
the deceased stood in loco parerztts at the time of
the injury which caused the death of the deceased,
parents and persons standing in loco przrerztts to the
deceased at the time of the injury which caused the
death of the deceased (if there is no surviving
spouse, children or persons to whom the deceased
stood in loco porerztis), and siblings (y' there is no
surviving spouse, children, persons to whom the
deceased stood in loco pareutis at the time of the
iujmgv, parents or persons standing in loco pcxrerztis
to the deceased at the time of the injury which
caused the death of the deceased).
10 Del. C. § 3724 (d)(5). (Emphasis added). (For the Court’s convenience a copy of section
3724 is attached). Here the amended Complaint alleges that plaintiff Harry Smith and Roslyn
Smith are the parents of the decedent. Under the statute, therefore, Thomas Smith may not
recover for whatever mental anguish to ID3}! have suffered as a result of his siblings death.
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Case 1:04-cv-01254-Gl\/IS Document 135 Filed O9/13/2006 Page 3 of 4
WHEREFORE, defendants move to exclude any evidence of, or reference to, the mental
anguish suffered by Thomas Smith as a resuit of his brother’s death.
OF COUNSEL: J : , Parkins, Jr. (#859)
.' er O’Connell (#4514)
Rosamaria Tassone ‘ - ards, Layton & Finger
City of Wilmington Law Department One Rodney Square
City/County Building, 9th Floor Pt Ot Box 551
800 N. French Street Wilmington, Delaware 19899
Wilmington, Delaware l980l .302—65l—770O
.302-576-2175 [email protected]
Oconnel1@rl§.com
Attorneys for Defendants
Dated: September 8, 2006
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Case 1:04-cv-01254-Gl\/IS Document 135 Filed O9/13/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I hereby certify that on September 8, 2006, I electronically filed the foregoing document
with the Clerk of Court using CM/ECF which will send notification of such tiling(s) and Hand
Delivered to the following:
Kester III, Crosse, Esquire
Williams & Crosse
l2l4 King Street
Suite 300
Wilmington, BE 19801
I hereby certify that on September 8, 2006, I have sent by U.S. Regular Mail, the
foregoing document to the following non-registered participants:
Anne T, Sulton, Esquire
Post Office Box 2763
Olympia, WA 98507
it
x
3 • ·. A. Parkins, In (#859) Q
ards, Layton & Finger, PA,
I Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(.302) 651-7700
Parlcins@rlfQcom
RL?]-3055049-1