Hichez v. Delmarva Power & Light Company

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. ii  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. 1  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. 0F 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 3F 1 2026 WL 2364458 (Del. Super. Aug. 14, 2026). 2 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. 3 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. 2 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 4F job. 6 5F 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 6F two branches caught on fire. 8 In response to the calls, Delmarva “came out [to trim] 7F 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 5 Floyd Rep. at 13. 6 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). 7 Bellafore-Dougherty Dep. at 28, 43, 50. 8 Id. at 50–51. 9 Id. at 46–47. 10 D.I. 422, Ex. A (“Orosz Rep.”) at 17. 3 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 6F 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 11 D.I. 483 (Compendium of Deposition Transcripts Volume IV, part 1 (“Pena Dep.”)) at 41–44, 86. 12 Id. at 86. 13 Id. 14 D.I. 482 (Compendium of Deposition Transcripts Volume III, part 2 (“Mendoza Figueroa Dep.”)) at 44-49. 15 Pena Dep. at 45. 16 Id. 17 Id. at 45–49. 18 Id. at 50; Mendoza Figueroa Dep. at 53. 19 Pena Dep. at 55. 4 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 20 Id. at 56–57. 21 Id. at 56–58. 22 D.I. 419, Ex. A (“Arden Rep.”) at 2. 23 Id. 24 Id. 25 Id. 5 (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 26 D.I. 422, Ex. A (“Orosz Rep.”) at 5. 27 Id. at 7. 28 Id. at 5. 29 D.I. 422, Ex. D (“Orosz Dep.”) at 18. 30 Id. at 19. 6 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 31 Orosz Rep. at 5. 32 Id. at 8; 26 Del. Admin. C. § 3007. 33 26 Del. Admin. C. § 3007–3.1. 34 26 Del. Admin. C. § 3007–5.1. 7  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 35 26 Del. Admin. C. § 3007–5.1. 36 NESC Rule 214 (A)(2). 37 NESC Rule 218 (A)(1). 38 Orosz Rep. at 11. 39 Id. 8 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. 40 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). 42 Id. 43 Id. at 17; Orosz Dep. at 45–46. 44 D.I. 422, Ex. B (“Orosz Disclosure”) at 60. 45 Id. 46 Id. 9  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 47 Floyd Rep. at 1, 7. 48 Id. at 7, 11–12, 17. 49 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. 50 Floyd Disclosure at 50; Floyd Rebuttal Disclosure at 6. 51 Floyd Rep. at 12. 52 Id. Delmarva’s line “had been in contact with [T]ree limbs[.]” Id. at 15. 53 Id. at 15. 10  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 54 D.I. 480, Compendium of Deposition Transcripts Volume I, Floyd Rebuttal Disclosure at 2. 55 Floyd Rep. at 17–18. 56 Webber Rep. at 7. 57 Id. at 54. 58 Id. at 3. 59 Id. at 40. 60 Id. at 11–30. 61 Id. 62 Id. at 58. 11  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 63 Id. 64 Id., Annex A at 8. 65 Id. at 58. 66 Id. at 40. 12 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 67 D.I. 480 (Compendium of Deposition Transcripts Volume I, part 4 (“Loferski Disclosure”)) at 22-23. 68 Id. at 23-24, 26. 69 Id. at 24, 26. 70 Id. at 25. 71 Id. 72 Id. at 26. 73 Id. at 30. 13 beams, with the stress on the pole focused at the bottom. 74 Utility poles are 3F 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 74 Id. at 31. 75 Id. at 29. 76 Id. at 30. 77 Id. at 31-32. 78 Id. at 29. 79 Id. at 32. 80 Id. 14  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; 15  (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. 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 81 DRE 702. 82 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)). 83 Zantac, 342 A.3d at 1143–44 (cleaned up). 84 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). 87 Id. at 1144 (quoting Bowen v. E.I. Dupont de Nemours & Co., 906 A.2d 787, 795 (Del. 2006)). 16  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 88 Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010). 89 Delmarva has a different theory, supported by its experts, of how the accident occurred. 90 996 A.2d 1262 (Del. 2010). 91 Id. at 1264. 92 Id. at 1265. 17 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 93 Id. 94 Id. at 1270. 95 Id. at 1271. 96 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). 18 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. 97 Id. 98 D.I. 421 at 3. 99 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. 19  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 20 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