August 23, 2012
Viking Pump, Inc., et al.
Century Indemnity Company, et al.
Plaintiffs' Motion to Strike the Expert Report of Dr. Peter R. Kensicki and to Preclude Dr. Kensicki from Testifying at Trial – DENIED.
John E. James, Esquire Potter Anderson & Corroon LLP Hercules Plaza
John D. Balaguer, Esquire White and Williams LLP
In denying this narrow motion, the court will first address the upcoming trial broadly. For the reasons set-out in the November 15, 2011 order denying all motions for summary judgment, the trial will resolve all potential, factual disputes. Accordingly, the court will not now decide whether the policies are unambiguous, as a matter of law. Therefore, the trial will precede on the assumption that the policies must be construed with the jury's help.
As to Dr. Kensicki, specifically, regardless of whether his expertise is mainly academic, he is qualified to help the jury understand deductible and self-retention clauses. It may also help if Dr. Kensicki, as an insurance law specialist, tells the jury it can simply use common sense to construe those clauses. If, in the process, Dr. Kensicki offers his opinion on the ultimate fact, even if it is based on his common sense, so be it. Basically, Plaintiffs' opposition to Dr. Kensicki's competence and common sense are better left to cross-examination.
In closing, it remains to be seen whether Dr. Kensicki will need to testify. First, Plaintiffs call the policy language "plain, " and Dr. Kensicki sees it similarly. Thus, the parties seem to tacitly agree that the court should resolve this issue, as a matter of law, after trial. Second, Plaintiffs tout their expert. After Plaintiffs' expert's direct and cross-examination there may be nothing for Dr. Kensicki to add, but that is not for the court to say here.
If it comes to it, it is difficult to see how Dr. Kensicki's testimony -direct, cross examination and redirect - should take more than a half hour. This order does not impose a time-limit on Dr. Kensicki, but the parties are again reminded about the trial's time constraints. In the end, one party's witness's testimony may come at the expense of another. The parties must budget their time accordingly.
For the foregoing reasons, Plaintiffs' motion to exclude Dr. Kensicki's testimony is DENIED.
IT IS SO ORDERED.
Very truly yours,
Fred S. Silverman Judge