Opinion
C.A. No. 04C-12-122-JRJ.
Submitted: August 29, 2007.
Decided: October 1, 2007.
Gary S. Nitsche, Esq. Weik, Nitsche, Dougherty Componovo, Wilmington, DE.
Elizabeth A. Saurman, Esq. Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, DE.
Colleen D. Shields, Esq. Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, DE.
Dear Counsel:
Before the Court are three motions: (1) Defendant, Gleason Technology, Inc.'s ("Gleason") Motion to Strike, (2) Gleason's Motion to Exclude Plaintiffs' Expert Opinions, and (3) Gleason's Motion for Summary Judgment.
Following oral argument, the Court reviewed all of the parties' additional submissions. For the reasons that follow, Gleason's Motion to Strike is DENIED, Gleason's Motion to Exclude Plaintiffs' Expert Opinions is GRANTED, and Plaintiffs' Motion for Summary Judgment is DENIED.
Gleason's Motion to Strike
Gleason claims that it would be "unjust and overly prejudicial" to allow the untimely report of William Julio ("Julio"), plaintiffs' liability expert. Plaintiff produced a supplemental report from Julio a month after the deadline set forth in the Court's scheduling order. In response, plaintiffs claim that Gleason's "failure to produce discovery information and witnesses for a deposition" rendered them unable to meet the deadline. Plaintiffs admit that they should have sought an extension of the Court's deadline when they realized they could not meet it.
The Court imposes deadlines for good reason and expects counsel to adhere to them. This judge specifically states in her scheduling orders that:
See Fletcher v. Doe, 2005 WL 1370188 (Del.Supr.) ("Parties must be mindful that scheduling orders are not merely guidelines but have the full force and effect as any other order of the Court."). See also Sammons v. DFES, 913 A.2d 519, 528-529 (Del. 2006).
NO DEADLINE IN THIS ORDER MAY BE EXTENDED WITHOUT PRIOR COURT APPROVAL.
Scheduling Order (emphasis in original), D.I. 54, Tab B.
There is no question plaintiffs should have filed a motion requesting an extension prior to the expert discovery cutoff, even if, as they claim, the extension was necessitated by Gleason's conduct. Nor is there any question that scheduling orders are very important to the efficient management of the Court's docket. Plaintiffs show no good cause as to why they failed to timely file for an extension. Plaintiffs instead argue that their conduct caused no prejudice to Gleason. Because the report is merely supplemental and the Court has, for other reasons, continued the October 15, 2007 trial date, the Court is satisfied that although plaintiffs' conduct caused inconvenience and annoyance to Gleason, it does not prejudice their ability to prepare for trial. Therefore, the Court hereby extends Gleason's expert discovery deadline to October 31, 2007. Consequently, Gleason's Motion to Strike is DENIED.
Motion to Exclude Plaintiffs' Expert Opinions
Gleason's Motion to Exclude Julio's Opinions is premised on Daubert. According to Gleason, Julio's opinion that the "industry practice" for frequency of inspections is every half hour is ipse dixit. Gleason argues that Julio is unable to point to any written authorities (other than a pamphlet he authored) which reference an inspection frequency of every half hour. In opposition, plaintiffs claim that since "there is no standard relevant to the . . . [frequency of inspections], it cannot be said that Mr. Julio's opinion is not based upon such information relied by others in the field since that information does not exist." Plaintiffs ask, "[h]ow can one be excluded as an expert for failure to rely upon a certain guideline or protocol when same does not exist?" The Court is not persuaded by plaintiffs' logic or argument. Under Daubert, an expert opinion must be based on valid reasoning and reliable methodology in order to be admissible. The "reliability" requirement ensures that the expert's opinion is based upon proper factual foundation and sound methodology. Julio fails to offer any factual basis for his opinion other than his "experience." This is not enough. The Court will not accept Julio's opinion that the "industry practice" with regard to inspection frequency is every 30 minutes simply because he says so. Accordingly, because Julio's opinion is not based on sufficient facts or data and is not the product of reliable methods, it fails to meet the Daubert. Consequently, Gleason's Motion to Exclude this portion of Julio's expert opinion is GRANTED.
Daubert v. Merill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
"[Julio's] opinion on the industry practice of inspection frequency is simply his own declaration that it is what he says it is. . . ." Def. Mot. to Exclude Pls. Expert Op's., D.I. 61, ¶ 9.
Pls. Resp. to Def. Mot. to Exclude Pls. Expert Op's., D.I. 64, ¶ 3.
See Daubert, 509 U.S. at 590; Crowhorn v. Boyle, 793 A 2.d 422, 428-431 (Del.Super.Ct. 2002).
See id.
See Crowhorn, 793 A.2d at 433.
D.R.E. 702.
Gleason's Motion for Summary Judgment
Gleason has moved for Summary Judgment, claiming, inter alia, that "[i]t is undisputed . . . that Gleason neither owned nor occupied the premises [where plaintiff fell] and had no responsibility for [its co-defendant's] store operations, maintenance or inspection." Viewing the facts in the light most favorable to the non-moving party, the Court finds genuine issues of material fact as to the responsibility for maintenance and inspection of the system at issue, and whether the system was working properly at the time of the incident. These are issues for the jury to decide. Consequently, Gleason's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.