Court Limits Podiatrist Testimony on Spinal Cord Stimulator Necessity

IN THE SUPERIO R COUR T OF THE ST A TE OF DELA W ARE ST ACI DICKERSO N)) Plaintif f,) v.) C.A. No.: N 24C- 08 -004 SSA) ST A TE F ARM MUTUAL) AUT OMOBIL E INSURANCE CO.,)) Defendant.) Submitted: Fe bruary 27, 202 6 Decided: March 4, 2026 The Court mus t determine whe ther a treating podiatrist is permitted to testify regarding the reas onablenes s, cost, and nec essity of a spina l cord stim ulator where treatment n otes indicate Plain tiff w as referred to under go a lum bar MRI and consult an ortho pedic spine s ur geon to discuss t he procedure. T he Court has reviewed the pa rties’ arg uments, the record, and the law gover ning this matte r. The Court finds the tes timony will be l imited, i n part. Factual Bac kground Plaintif f seeks un insured motorist b enefits from Defendant. Fac tually, s he maintains an uninsured motorist ra n over her foo t and she suf fe red injury as a result. 1 Defendant dispute s the facts u nderlying the inc ident, as well a s the “natur e 1 Pretrial Stipulation, at p. 1.

and extent, a nd/or causal re lationship” of t he injuries. 2 Plaintiff t reated with D r. Jamrok, a podia trist. For over a decade, Dr. Jamrok has practiced w ith Peninsula Orthopaedic Associates. He is a member of the Amer ican Podiatric Me dical Association and t he American B oard of Ortho paedics and Prim ary Podiatric Medicine. 3 Dr. Jamrok ha s not been depo sed; however, he authored a two-pa ge report, detailing his treatment of Pla intif f. He diagnosed Plai ntiff w ith RSD /complex regional pain s yndrome 1 and his re port deta ils she was treated with physica l therapy and med ication for pain, inflamm ation, an d “her nerve sit uation.” 4 Eventually, Dr. Jamrok felt P laintif f was “ no longer sig nificantly impr oving…” 5 The record as to Dr. Jamro k’ s treatment, ge neral qualification s, and qualifica tions specific to the spinal cord stimula tor is limite d to his re port and CV. T he Court has been provide d with porti ons of Plaintif f ’ s de position transcr ipt and one a dditional treatment n ote from a physicia n assistant w ithin Dr. Jamr ok’ s practice. Significant for t his decisi on, Dr. Jamrok’ s rep ort states he “rec ommended that the pa tient visit my partner D r. McGo vern to discuss the DRG spinal c ord stimulator wh ich is indic ated for RSD/complex reg ional pain sy ndrome.” 6 Dr. 2 Id. at p. 2. 3 See Plaintif f ’ 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 s tated “I believe that the pr ognosis for t he patient w ith the DRG spinal cord s timulator w ould be very positive.” 7 T hus, it appears the stimulator requires sur gery whic h Dr. Jamrok coul d not perform. The report of D r. Jamrok and his exper t disclosure does not de tail his experie nce managin g patients who have had a sp inal cord stimu lator. Dr. Jamrok does not opine as to the cost of the de vice or its imp lantation. He concludes his report “t he patient is going to nee d more adva nced treatmen ts such as the DRG s pinal cord stimulator to completely res olve her RSD/c omplex regional pain s yndrome 1 base d on her last visit.” 8 Defendant po ints, in part, to a medical re cord fro m T revor Abbott, a physician ass istant within D r. Jamrok’ s practice, that is dated more than six mont hs before Dr. Jamr ok’ s rep ort. Mr. Abbo tt’ s note state s “[n]ext app ointment wil l be with Dr. McGo vern. I have order ed a lum bar MRI 9 and will have the patient follow-up with Dr. M cGovern to discuss if she is a can didate for DRG neuromodulat ion.” 10 Plaintif f testifie d she met wi th Dr. McGov ern and disc ussed the spine stimulator. Th is transcript includes her description of t he stimulator — “it wa s 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 comple ted. See Defendant’ s D aubert Motion to Exclude and/or Limit the T estimony of Plaintif f ’ s Medical Expert, Ex. C p. 2. 10 Defendant’ s Daubert Motion to Exclude and/or Limit the T estimony of Plaintiff ’ s Medical Expert, Ex. C.

putting this b ox in my ba ck with like s ome wire han ging out of my ba ck with a button that I w ould push if I ha d pain.” 11 Plaintiff w as not interested in pursuing this option. Parties’ Contentions Defendant ar gue s Dr. Jamrok’ s opinions regarding t he spinal cor d stimulator should be excl uded by this C ourt, under i ts gatekeepi ng function, beca use his opinions are “s peculative, u nreliable, a nd exceed the scope of his q ualifications a s a podiatrist.” 12 Defendants ar g ue testimony on this point “requ ir[es] specialize d spinal and neur osur gical e xpertise.” 13 T o put a finer point on the iss ue, Defendant arg ues “[w]hether a patient is a candidate f or a DRG spi nal cord stim ulator — a sur gically impla nted spinal device—falls well outs ide the scop e of podiatric medicine.” 14 Moreover, Defendant sugges ts such testim ony would be speculati ve because Plaintif f did n ot follow-up on reco mmended d iagnostic st udies to evalua te for the spinal cord s timulator. In Defendant’ s vie w, whether she is a candidate for the spine stimula tor is a decisi on made by D r. McGovern. Therefor e, Defendant asks the Court t o exclude or limit the testimony of Dr. Jamro k on the subjec t of the 11 Plaintiff ’ s Response, Ex. C. at p. 23. 12 Defendant’ s Daubert Motion to Exclude and/or Limit the T estimony of Plaintif f ’ s Medical Expert at ¶ 2. 13 Id. 14 Id. at ¶ 4.

spine stimula tor. Defendant also ask ed the Court to preclude opinion testimon y from Dr. Jamr ok regarding the RSD/ complex re gional pain syndrome 1 diagnosis, but this port ion of the moti on was with drawn during ora l ar gument. Plaintif f disputes these characteriz ations. Plain tiff p oints to D r. Jamrok’ s CV and ar gues he has “ specialized ex pertise in foot and ankle pa thology.” Plaintiff frames the que stion slightly d iffe rently ins ofar as she ad vises Dr. Jamrok is not offer ed to te stify as to how to perform the implementat ion but instead wil l testify she will not im prove without it. Plaintif f a nswers the c har ge of specu lative testimony by po inting to tw o years of treatmen t and an MRI. Plaintif f suggests her doctor can tes tify as to his r ecommendation for the spine stim ulator even if she did not under go diag nostic testin g, which she c haracterizes a s ordere d “to finalize sur gical placeme nt.” 15 Legal Standar ds As t he proponent of the expe rt t estimony in this case, Ms. Dickerson bears the burden by a preponderance of the evidence. 16 Ms. Dickerson need not demonstrat e her expert is corr ect, but she must demonstrate he is re liable. 17 This C ourt “must act as a gate keeper and determine tha t the evidence i s both (1) reliable and (2) 15 Plaintiff ’ s Response a t ¶ 8. 16 In r e Zantac (Ranitidine) Litigation, 342 A.3d 1 131, 1 144 (De l. 2025) citing Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 795 (Del. 2006). 17 State v. McM ullen, 900 A.2d 103, 1 14 (Del. Super. Ct. 2006) citing In r e Paoli R.R. Y ar d P.C.B. Litigation, 35 F.3d 717 (3d Cir. 1994).

relevant.” 18 “ Ultimately, the testimony of an expert is admitted upon the theory tha t, in a particular case, the issue is such that the j urors are not competent to draw their own conclusi ons from the facts with out the ai d of the expert. ” 19 In mak ing thi s determination, t he Court lo oks to D.R.E. 702 and to Daubert. 20 Delaware Rule of E vidence 70 2 provides: A witness who is qualifi ed as an expert by knowle dge, skill, experience, training, or education may testify in the fo rm of an opinion or otherwise if: (a) The expert’ s scientifi c, technical, or other sp ecialize d k nowledg e will help the t rier of fact to understand the evidence or t o determine a fact in issue; (b) The testimo ny is base d on suf ficient fa cts or data; (c) The testimo ny is the product of rel iable principle s and methods; and (d) The expert has reliably applied the principles and methods t o t he facts of the case. This Court must be focused on principles and methodo logy, not the conclusions of the e xpert—and w hile th e Court’ s inquiry is g uided by f actors, they ar e flex ible. 21 The factors inc lude: 22 18 In r e Zantac (Ranitidine) Litigation, 342 A.3d at 1 144 quoting T umlinson v. Adv anced Micr o 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. Merr ell Dow Pharms., Inc., 509 U.S. 579 (1993). 21 Daubert, 509 U.S. at 594. 22 Most recently in In r e Z antac (Ranitidine) Litigation, 342 A.3d at 1 144 quoting Daubert, 509 U.S. at 593–94.

(1) Whether the ex pert opinion tes timony “ca n be (and has been) tested” (2) Whether the opinion testimony “has been subjected to peer review and publication” (3) The “known or potential rate o f error” and (4) Whether it has attracted widespread acceptance within the scientific community. The Delaware Supreme Court has recently reaffi rmed this Court’ s obligation as a gatekeeper a nd that this Court should not presume ad missibili ty. 23 As t o relevance, the proffere d 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 j ust to let the opinion of the credentiale d expert into evide nce for what it is worth and leave its evaluation to the jury.” 25 W hile the Court should consider the expert’ s back ground [t]he words of an expert qualified to opine within a recognized “field” do not automat ically guarantee reliable, and therefore admissible, testimony, however. The inquiry will b e whether the expert and the “field of expertise” itself can produce a n o pinion t hat is s uff iciently informed, testable and in fac t ver ifiable on an issue to be determ ined a t trial. 26 23 Id. at 1 147. 24 T umlinson v. Advanced Micr o 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. Car den, 842 A.2d 1222, 1228 (Del. 2004).

I n O’Riley v. Rogers, the D elaware Su preme Court se t param eters for this Court to co nsider. 27 Specifically, “[a] doctor cannot base h is expert medica l opinion on speculat ion or conjecture.” 28 Indeed, “a d octor ’ s testimony t hat a certain thing is possible is no evidence at all.” 29 In O’Riley, Pl aintif f treated with an orthopedic sur geon but di d not under go a recommend ed 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 te st were c ompleted, it wou ld e nable the doctor t o determine if sur gery were appropriate. 30 Upon review, it was determined that t he proper bounds of expert testimony were exceeded when “counsel asked the doctor to speculate about the possible medical conseq uences of possible t reatment courses an EMG test mi ght reveal.” 31 In Li v. Geico, this Court excluded testimony from an expert regarding the potential need f or future sur gery. 32 In its decision, t his Court noted conclus ions within the expert’ s report were phrased in a speculative manner. The Court found the prof fere d testim ony s ought to “opine about the possible courses of trea tment an d costs that mig ht arise if n ow-unmet conditions are satisfied in the future.” 33 27 69 A.3d 1007 (Del. 2013). 28 Id. at 101 1 quoting Oxe ndine v. State, 527 A.2d 870, 873 (Del. 1987). 29 Id. 30 Id. at 1009. 31 Id. at 1012. 32 2019 W L 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 of fer opinions in a given specific factual setting.” 34 T his Cour t has also exc luded spe culative exper t testim ony from a d octor couched in terms of the “likely” form o f sur gery “i f” treatment was inef fective and that he was “ hopeful” total knee replacem ent was not r equired. 35 Analysis On the record pre sented, the mechanics of the DRG spinal cor d stimulator sur gery is lim ited to Plaintif f ’ s lay testimony. What a D RG spinal cor d stimulat or is or does, or wh ich doctor/specialty deter mines its proper use and/or ma nagement is unclear. Furt her, while Plaintif f ar gues t he diagnostic testing ordered is for the purpose of de termining sur gica l placeme nt as opposed to de termining the necessi ty or reasonablenes s of sur gery—the Court c an find no record ci tation for this proposition. 36 Plaintif f cites Pavey v. Kalish for support. 37 Specifically t hat it is the Co urt’ s duty “not to de termine w hich theory i s stronger but ins tead to act as a gatekeeper who determ ines whether the testimony i s based on suf fic ient facts or data and o n reliable princ iples and me thods that hav e been reliab l y applied to thi s case.” 38 34 Friedel v. Osunk oya, 994 A.2d 746, 751 (Del. Super. 2010). 35 Jackson v. Aglio, 2014 WL 1760316 *3 (Del. Super. 2014). 36 See Plaintif f ’ s R esponse at ¶ 8. 37 3 A.3d 1098 (Del. 2010). 38 Id. at *3.

Here, the Court is not presente d with alternate the ories; instead, the Court i s asked if the testimon y is based on s uff icient facts or data. W ith the legal princip les cited above i n mind, the Co urt re -review s the report of Dr. Jamrok a nd his expert disc losure. His report indica tes he recomme nded Plaintif f “visit m y partner Dr. McG overn to discuss the DRG spinal cord stimula tor which is indica ted for RSD/comple x regional pain s yndrome.” Dr. Jamrok notes Plaintif f will need “advanced treatments such a s the DRG spin al cord stim ulator ” Additionally, the note from M r. Abbott i ndicates he ordere d a lumbar MRI an d advised Plaintif f f ollow-up with D r. McGovern to discu ss if s he is a candida te for DRG neuromodu lation.” The Court f inds this langu age is line w ith testimony excluded in bo th O’Riley and Li bec ause it is speculative. Dr. Jamrok can testify as to his dia gnosis of RSD/c omplex reg ional pain syndrome 1. He can test ify regarding his treatment of Pla intif f. He can testify tha t she has not s ignificantly impr oved with the course of t reatment h e prescribed. However, Dr. Jamrok canno t testify as t o the cost of the D RG spina l cord stimulator, as he candidly states he doe s not have that informat ion. The record does not have suff icient information to evaluate t he quality of te stimony pr oposed as it relates to the DRG spinal cord stimulato r. Nor does the Co urt have suf fic ient information, un der a prepon derance of the evidence stan dard, regardi ng the field of

expertise appli cable to eval uating Plaint iff ’ s suita bility for the s pinal cord stimulator or its managemen t. Regarding the reas onableness of the DRG spi nal cord stimula tor, the Court finds the referra l to Dr. McGo vern, without any clarifica tion of Dr. McG overn’ s role in the matt er, leaves a record that is unclear as t o the underl ying basis of such reasonablene ss under Rule 702. I t is unknown if Dr. McGo vern was identifie d to simply carr y out the procedur e after Dr. Jamro k determined i t was appropriate, or if Dr. McGover n would be re quired to independen tly assess Plaint if f in determi ning whether she i s an appropriate can didate for a DRG spinal cord stimulator. The record reflect s an MRI was or dered at the time t he referral to Dr. McGovern was made. While Plai ntif f asserts the purpose of the MRI w as to limited assist with sur gical placeme nt and not for dia gnostic purpo ses, the Court canno t make this factual connec tion in the record. It appears no such MRI ha s been comp leted. Therefore, the C ourt determines it would b e impermissib ly speculat ive to permit testimony regar ding the sp inal cord simula tor. Finally, D r. Jamrok c oncludes Plainti ff ’ s prognosis with a spinal cord stimulator is “ very positive.” H owever, the underlying sup port for th is conclusion is also unknown. Th e Court find s this does not meet the standar d under 702. The Defendan t’ s Motion to Excl ude and/or Limi t T estimony is therefore, GRANTE D, in part.

IT IS S O ORDER ED. /s/Sonia Augu sthy Judge Sonia Augus thy