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Dillulio v. Reece

Superior Court of Delaware, Kent

April 23, 2014

Thomas and Janet Dillulio
Jacob D. Reece, et al.

Scott E. Chambers, Esquire Schmittinger and Rodriguez, P.A.

Michael I. Silverman, Esquire Silverman McDonald & Friedman

Dear Counsel,

Before the Court is a case in which communication breakdowns between counsel resulted in the filing of Plaintiffs' motion in limine to preclude the testimony of Defendants' expert witness. This Court had already granted Plaintiffs' motion in a prior letter order decision. After Defendants indicated in their motion for reargument that the Court had potentially misapprehended key facts, the Court granted that motion and requested further filings from the parties in order to reconsider Plaintiffs' original motion. The Court has carefully considered the filings of the parties, relevant legal authority, and the positions iterated by counsel at the pretrial conference. Plaintiffs' motion to preclude expert testimony is DENIED, but sanctions shall still be imposed on Defendants for their failure to participate in the discovery process in a timely and responsive manner. This letter decision expands upon the reasons mentioned at the pretrial conference.


This is a negligence action filed by Plaintiffs Thomas and Janet Dillulio (collectively "Plaintiffs") against Defendants Jacob Reece, Tri-State Grouting, L.L.C., and Tri-State Grouting, Inc. (collectively "Defendants"). On October 2, 2012 this Court issued a Scheduling Order which set the cutoff date for Defendants' expert discovery as December 10, 2013. The deadline for motions in limine, including Daubert motions, was March 18, 2014, and the deadline for responses to motions was April 1, 2014. Trial is currently set for May 12, 2014.

Plaintiffs submitted interrogatories and requests for production to Defendants on June 19, 2012. On November 20, 2012 Plaintiffs' counsel mailed a letter to Defendants' counsel requesting a response to the formerly submitted discovery. Defendants ultimately never responded to the discovery requests or the letter. At the pretrial conference, Defendants' counsel acknowledged he did not respond to Plaintiffs' discovery, and indicated he may have been under a mistaken impression that he did not have to respond based on conversations with Plaintiffs' counsel. Plaintiffs' counsel stated he could not remember any conversation excusing Defendants' lack of response, and pointed out that he had sent the November 20 letter specifically requesting responses. Defendants' counsel did not acknowledge receiving the letter. Despite not receiving any responses, Plaintiffs' counsel never filed a motion to compel discovery.

On June 11, 2013, Defendants mailed Plaintiffs notice of a defense medical examination of Plaintiff Thomas Dillulio. The letter stated that the examination would be performed by Dr. Richard Katz (hereinafter "Dr. Katz"). The examination was conducted on August 1, 2013. Aside from the June 11 letter, Defendants provided no written disclosure of Dr. Katz as their expert witness prior to the December 10, 2013 cutoff date.

Dr. Katz prepared a report based on the examination, and Defendants' counsel directed his office staff to mail copies of the report to Plaintiffs' counsel. Plaintiffs' counsel claims he never received the report. Defendants' counsel claims he never had any reason to believe the report had not been received, because he was never contacted by Plaintiffs' counsel about not receiving Dr. Katz's report.

Mediation was held on March 11, 2014. For the first time, Defendants' counsel learned that Plaintiffs' counsel never received Dr. Katz's report. Defendants' counsel immediately provided Plaintiffs' counsel a copy of the report at the mediation. Seven days later, on March 18, 2014–the motion in limine deadline–Plaintiffs filed a motion seeking to: (1) preclude Defendants from offering any testimony at trial or any documentary evidence based on Defendants' failure to respond to Plaintiffs' 2012 discovery requests; and (2) exclude any expert testimony offered by Defendants at trial due to Defendants' failure to identify experts prior to the cutoff date under the Scheduling Order. The Court notes that Plaintiffs' original motion does not mention the June 11, 2013 examination letter, the March 11, 2014 mediation, or the fact that Plaintiffs' counsel received Dr. Katz's report at the mediation.

Also on March 18, Defendants' counsel filed a letter with the Court indicating counsel's intent to file a Daubert motion once Plaintiffs' experts were deposed or a Daubert hearing was scheduled. Plaintiffs' counsel subsequently filed a letter to the Court indicating that no agreement to extend the motion deadline had been reached by counsel, and informed the Court that any such motion filed by Defendants would be opposed as untimely.

On March 24, 2014, Defendants noticed the video trial deposition of Dr. Katz. On March 27, 2014, Plaintiffs counsel filed another letter with the Court in which he reiterated the same representations and arguments made in the March 18 motion in limine. Plaintiffs' counsel requested that the Court issue a ruling on the March 18 motion prior to the deposition of Dr. Katz in order to determine whether or not the deposition would go forward. As with the March 18 motion, counsel made no mention of Defendants' medical examination letter on June 11, 2013 nor of the March 11, 2014 mediation. Defendants still had not filed any response to the March 18 motion at this time.

On April 1, 2014–the deadline for responses to motions, and still with no response from Defendants to either the March 18 motion or the March 27 letter–the Court issued a letter order decision granting Plaintiffs' motion in part as to exclude the testimony of Dr. Katz.[1] The Court based its decision on Defendants' failure to timely disclose Dr. Katz as an expert prior to the December 10, 2013 cutoff date.[2]The Court denied Plaintiffs' motion in part as to allow Defendants to present testimony and documentary evidence at trial.[3] The Court entered and e-filed the decision at 1:52 p.m.

Defendants filed their opposition to Plaintiffs' motion in limine at 7:19 p.m. on April 1–more than five hours after the Court had already issued its decision. Defendants argued that they timely sent Plaintiffs the notice of the medical examination on June 11, 2013 in which Dr. Katz was named. Defendants also contended that Dr. Katz's report was timely issued and sent to Plaintiffs' counsel following the August 1 examination, and that the March 11, 2014 mediation was the first time Defendants learned that Plaintiffs never received Dr. Katz's report, which prompted Defendants to promptly provide the report to Plaintiffs' ...

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