Case Caption: Elbe V. Brathwaite v. Phillip Xavier d/b/a Gary’s Marine ServiceCase Number: S. Ct. Civ. No. 2017-0037Date: 07/16/2019Author: Cabret, Maria M. Citation: 2019 VI 26Summary: In a personal injury action by a plaintiff seeking damages for injuries suffered as a passenger on a boat owned and operated by the defendant when he negligently crashed that boat onto a rocky outcropping near Cruz Bay, St. John, the Superior Court’s erred in excluding portions of the testimony of the plaintiff’s expert witness. Although exclusion was couched in terms of Virgin Island Rule of Evidence 403, it resulted from the court’s concern that some of the conclusions about the plaintiff’s alleged brain injuries were contradicted by certain objective medical evidence; however, the differential diagnosis satisfied the Daubert reliability test and a patient's medical history, including subjective complaints, may be a sound basis for a medical expert's diagnosis in some instances. It was for the jury to determine the credibility of the medical evidence. Because the Superior Court improperly usurped the role of the jury by substituting its own determination of weight and credibility for that of the jury, it abused its discretion by excluding this expert testimony. Although the Superior Court committed procedural error by dismissing, sua sponte, a claim for gross negligence and accompanying prayer for punitive damages without providing her any notice or opportunity to be heard, the dismissal of that claim is affirmed as harmless error because plaintiff failed to introduce any evidence to establish that the defendant was grossly, as opposed to ordinarily, negligent. Because the defendant failed to introduce any evidence from which the jury might reasonably infer that plaintiff was comparatively negligent in causing her injuries, the Superior Court abused its discretion by instructing the jury on comparative negligence. The judgment of April 5, 2017 is vacated, and the matter is remanded for a new trial.Attachment: Open Document or Opinion