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Dillulio v. Reece

Superior Court of Delaware, Kent

April 7, 2014

THOMAS J. DILLULIO and JANET DILLULIO, Plaintiffs,
v.
JACOB D. REECE, TRI-STATE GROUTING, LLC, a Delaware limited liability company, and TRI-STATE GROUTING, INC., a Delaware corporation, Defendants.

Submitted: April 4, 2014

Upon Defendants' Motion for Reargument. Granted in part; Denied in part.

Scott E. Chambers, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiffs.

Michael I. Silverman, Esquire of Silverman McDonald & Friedman, Wilmington, Delaware; attorney for Defendants.

ORDER

William L. Witham, Jr. Resident Judge

The issue before the Court is whether the Court should grant Defendants' Motion for Reargument on the Court's decision granting Plaintiffs' motion in limine to preclude the testimony of Defendants' expert.

FACTUAL AND PROCEDURAL BACKGROUND

The Scheduling Order in this negligence case was issued on October 2, 2012. Pursuant to the Scheduling Order, the following cutoff dates were set: the deadline for Defendants' expert discovery was December 10, 2013; the date for discovery completion was January 28, 2014; and the date for "motions in limine to include Daubert motions" was March 18, 2014. The filing date for "responses to motions" was April 1, 2014.

On March 18, 2014, Plaintiffs filed a motion in limine seeking to: (1) preclude Defendants from offering any testimony at trial or any documentary evidence based on Defendants' failure to respond to Plaintiffs' discovery requests made on July 12, 2012; and (2) preclude Defendants from offering any expert testimony at trial, because Defendants did not identify any experts prior to the December 10 cutoff date under the Scheduling Order. It appears that Plaintiffs never filed any motion to compel discovery.

Also on March 18, Defendants' counsel submitted a letter to the Court indicating that Defendants would be unable to comply with the Scheduling Order's cutoff date for motions in limine and Daubert motions. Without providing an exact reason as to why, Defense counsel merely stated that he was not able to file a motion in limine to preclude Plaintiffs' expert testimony until the expert was deposed or a Daubert hearing was scheduled. On March 19, Plaintiffs' counsel responded via Dillulio v. Reece & Tri-State Grouting C.A. No. K12C-04-021 WLW April 7, 2014 letter to the Court indicating that he was "not consulted about any need to extend the deadlines set forth in the Court's Scheduling Order." Counsel informed the Court that he would oppose any such motions filed by Defense counsel as untimely. On March 24, 2014, Defendants noticed the video trial deposition of Dr. Richard Katz (hereinafter "Dr. Katz") for April 23, 2014.

By letter dated March 27, 2014, Plaintiffs' counsel reiterated the representations made in the motion in limine: that Dr. Katz was never identified as an expert by Defendants in accordance with the Scheduling Order and expert discovery was never provided by Defendants. Plaintiffs requested that this Court issue a ruling on Plaintiffs' previously filed motion in limine prior to the deposition date order to determine whether or not Dr. Katz's deposition would go forward.

On April 1, 2014–without any response from Defendants to either the March 18 motion in limine or the March 27 letter submitted by Plaintiffs' counsel–the Court issued a letter order decision granting Plaintiffs' motion in par t to p reclude Dr. Ka tz's testimony on the basis that Defendants failed to identify Dr. Katz as an expert by the Scheduling Order deadline.[1] The Court also observed that Defendants had not filed any response to the March 18 motion. The Court denied the other portion of Plaintiffs' motion seeking to prevent Defendants from presenting any testimony or documentary evidence at trial for Defendants' alleged failure to respond to Plaintiffs' discovery requests.[2] This Court reasoned that because Plaintiffs failed to file any Dillulio v. Reece & Tri-State Grouting C.A. No. K12C-04-021 WLW April 7, 2014 motions to compel discovery, Plaintiffs should "not be rewarded for their failure to vigorously pursue discovery by entirely preventing Defendants from putting on a case."[3]

On April 1, 2014–after the Court's letter order decision had already been e-filed–Defendants filed an opposition to Plaintiffs' motion in limine. Defendants allege that the parties all participated in the discovery process. Defense counsel states that he sent notification of a defense medical examination to Plaintiff's counsel on June 11, 2013–prior to the December 10 deadline for defense expert discovery. The medical examination was performed by Dr. Katz on August 1, 2013. Defense counsel claims that Dr. Katz timely issued a report based on the examination, which Defense counsel then directed his staff to mail to Plaintiff's counsel. Defendants' counsel claims he had no reason to believe Plaintiffs had not received Dr. Katz's report until March 11, 2014, when the parties appeared for mediation. Defense counsel alleges that on March 11, Plaintiffs' counsel informed Defense counsel "for the very first time" that Dr. Katz's report was never received, at which point Defense counsel provided a copy of the report "within minutes." Defense counsel claims that prior to March 11, both attorneys had been in communication and Plaintiffs' counsel never indicated that Dr. Katz's report had not been received.

On April 2, 2014, Defendants timely filed the instant Motion for Reargument. Defendants point out under the Scheduling Order, the deadline for responses to motions was April 1. Thus, Defendants contend that their opposition to Plaintiffs' Dillulio v. Reece & Tri-State Grouting C.A. No. K12C-04-021 WLW April 7, 2014 March 18 motion in limine was timely filed. Defendants claim that Defense counsel has timely complied with all deadlines under the Scheduling Order and allege that "the parties have worked well together" prior to this point. Defendants reiterate the same representations made in their April 1 response. Defendants further contend that the Supreme Court's decisions in Drejka v. Hitchens[4] and Christian v. Counseling Res. Assoc., Inc.[5] are implicated by the case at bar–i.e., Defendants ...


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