Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Withrow v. Spears

United States District Court, D. Delaware

August 22, 2013

JAMES R. WITHROW, Plaintiff,
v.
JOHN H. SPEARS, and TRUCKS ON THE RUN, Jointly and Severally, Defendants/Third Party Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Third Party Defendant

Page 983

[Copyrighted Material Omitted]

Page 984

[Copyrighted Material Omitted]

Page 985

[Copyrighted Material Omitted]

Page 986

For James R. Withrow, Plaintiff: Bernard A. Van Ogtrop, LEAD ATTORNEY, Kevin A. Guerke, Seitz, Van Ogtrop & Green, P.A., Wilmington, DE.

For John H. Spears, Jointly and Severally, Trucks on the Run, Jointly and Severally, Defendants: Daniel L. McKenty, LEAD ATTORNEY, Michael James Logullo, Heckler & Frabizzio, Wilmington, DE.

For John H. Spears, Jointly and Severally, ThirdParty Plaintiff: Daniel L. McKenty, LEAD ATTORNEY, Heckler & Frabizzio, Wilmington, DE.

For Trucks on the Run, Jointly and Severally, ThirdParty Plaintiff: Daniel L. McKenty, LEAD ATTORNEY, Michael James Logullo, Heckler & Frabizzio, Wilmington, DE.

For State Farm Fire & Casualty Co., ThirdParty Defendant: Colin M. Shalk, LEAD ATTORNEY, Casarino, Christman & Shalk, P.A., Wilmington, DE; Michael James Logullo, Heckler & Frabizzio, Wilmington, DE.

OPINION

Page 987

MEMORANDUM ORDER

Christopher J. Burke, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court in this personal injury case is Plaintiff James R. Withrow's (" Plaintiff' or " Withrow" ) Daubert motion (" Daubert Motion" ) to exclude opinions and testimony of John A. Desch, P.E., an accident reconstruction expert hired by Defendants John H. Spears (" Spears" ) and Trucks on the Run (collectively, " Defendants" ). (D.I. 47) Also pending is Plaintiff's motion to strike the expert reply report of Defendants' expert Robert T. Bove, Ph.D. (" Motion to Strike" ). (D.I. 41) [1] For the following

Page 988

reasons, the Court GRANTS-IN-PART Plaintiff's Daubert Motion and DENIES Plaintiff's Motion to Strike.

I. BACKGROUND

A. Factual Background

This case arises from a collision that occurred on November 4, 2011, when a tractor-trailer driven by Spears and owned by Trucks on the Run hit Withrow's vehicle. (D.I. 1, ex. A at ¶ 7; D.I. 48, ex. 1 at 2) The collision occurred at approximately 5:00 a.m. on Route 1 in Delaware, when the tractor-trailer struck Plaintiff's car door. (D.I. 44 at 1; D.I. 48, ex. 1 at 2) A portion of Plaintiff's left hand, including two fingers and a thumb, was severed in the collision. (D.I. 48 at 1 & ex. 1 at 4) At the time of the collision, Plaintiff was parked on the shoulder of Route 1. (D.I. 42 at 1; D.I. 48, ex. 1 at 4)

B. Procedural Posture

On November 28, 2011, Plaintiff commenced this action in the Superior Court of the State of Delaware. (D.I. 1 at ¶ 1) On January 3, 2012, Defendants removed the action to this Court. (D.I. 1) On March 8, 2012, Judge Leonard P. Stark entered a Scheduling Order in the case, (D.I. 13), and on April 6, 2012, Judge Stark referred the action to the Court to hear and resolve all pretrial matters, up to and including the resolution of case dispositive motions (D.I. 15). Defendants later filed a third party complaint on November 15, 2012 against Third Party Defendant State Farm Fire & Casualty Co. (D.I. 30) The Court issued an amended Scheduling Order on November 16, 2012. (D.I. 29)

The amended Scheduling Order called for (1) the party with the initial burden of proof on the subject matter to disclose expert testimony by November 9, 2012; (2) for a supplemental expert disclosure to contradict or rebut evidence on that subject matter to be disclosed by December 21, 2012; and (3) for reply expert reports from the party with the initial burden of proof to be submitted by January 19, 2013. (D.I. 29, ex. B at ¶ 3(f)(i)) Defendants produced the expert report of accident reconstruction expert Mr. Desch (the " Desch Report" ) on November 8, 2012. (D.I. 48 at 1) Plaintiff retained a rebuttal accident reconstruction expert, George C. Govatos, Ph.D., P.E., and submitted his report to Defendants (the " Govatos Rebuttal" ) on February 1, 2013. [2] ( Id. ) Defendants then produced two separate reply expert ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.