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Strobert Tree Services Inc v. Kenneth Lilly Fasteners, Inc.

Superior Court of Delaware

April 4, 2019

STROBERT TREE SERVICES, INC, Plaintiff,
v.
KENNETH LILLY FASTENERS, INC., Defendant.

          Date Submitted: March 29, 2019

         On Defendant Kenneth Lilly Fastener's Motion for Summary Judgment.

          Victoria Petrone, Esquire, Logan & Petrone, LLC, 100 West Commons Blvd., Suite 435, New Castle, Delaware, 19720. Attorney for Plaintiff.

          David Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill Road, Suite 301, Wilmington, Delaware, 19806. Attorney for Defendant.

          CALVIN L. SCOTT, JUDGE

         Upon consideration of the Defendant's Motion for Summary Judgment, and the record of the case, it appears that:

         1. Plaintiff's cause of action alleges industrial fasteners supplied by Defendant were defective, resulting in severe damage to an industrial land clearing grinder.

         2. On October 16, 2018, the Court granted Defendant's Motion to Exclude Plaintiff's expert's report. Defendant's filed this Motion on March 12, 2019, arguing Plaintiff cannot establish the necessary elements of their claim without expert testimony or opinion.

         3. The Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."[1] The moving party bears the initial burden of showing that no material issues of fact are present.[2] Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute.[3] In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party.[4] The Court will not grant summary judgment if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.[5]

         4. Defendant originally believed the batch of industrial nuts at issue had been returned to the manufacturer, they were not. Defendant discovered that they still had the batch of nuts in their possession.

         5. On April 11, 2017, Plaintiff's counsel notified the Court that he was scheduled to pick up a number of the nuts for the purpose of testing.[6] Plaintiff, however, expressed concern that the nuts picked up for testing were not from the same batch as the original.[7]

         6. In July 2018, with their Motion to Exclude Plaintiff's expert pending, Defendant expressed reluctance to allow more time for testing, as Plaintiff had failed to conduct any testing on the samples delivered the previous year.[8]

         7. Plaintiff has not conducted testing on any of the industrial nuts alleged to be faulty.

         8. Trial in this action was continued on November 10, 2016, to allow for testing by Defendant. In their opposition to the current motion, Plaintiff seeks to compel production of the nuts remaining in Defendant's possession for the purpose of expert testing and analysis. Plaintiff questioned the provenance of the same nuts in 2017, and chose not to submit them to testing at that time. The time for discovery ...


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