Opinion
C.A. No. 12207-NC
Date Submitted: April 12, 2001
Date Decided: April 27, 2001
Arthur L. Dent, Esquire.
Stephen E. Jenkins, Esquire.
Dear Counsel:
The parties in this appraisal action cannot agree on a relative schedule for exchange of reports by their valuation experts. Plaintiff Robert Michael Lane ("Lane") has suggested the simultaneous filing of expert reports. Defendant Cancer Treatment Centers of America, Inc. ("CTCA") wants Lane to file his report first. For the reasons that follow, I conclude that, under the unique facts of this action, Lane should submit the report of his valuation expert first, with the report of CTCA's valuation expert to be filed 30 days thereafter.
This case is old: it was filed on July 18, 1991. Lane has narrowly avoided dismissal for failure to prosecute on more than one occasion.
See Lane v. Cancer Treatment Centers of America, Inc., Del. Ch., C.A. No. 12207, Noble, V.C. (April 11, 2001); Lane v. Cancer Treatment Centers of America, Inc., Del. Ch., C.A. No. 12207, Steele, V.C. (November 17, 1999); Lane v. Cancer Treatment Centers of America, Inc., Del. Ch., C.A. No. 12207, Steele, V.C. (March 16, 2000).
CTCA argues that Lane's level of commitment to pursuing his claim raises a reasonable concern that he might not even produce a valuation expert's report and that CTCA should not be put to the expense of preparation of a valuation expert's report under these circumstances. CTCA also contends that a staggered exchange will result in a more focused valuation analysis and, accordingly, a smaller range of values. CTCA further asserts that, simply from a practical standpoint, Lane, as the party who brought this action, should bring forth the first report.
Lane argues that simultaneous exchange of experts' reports is fundamentally a more fair schedule because the party submitting its report second gains a significant tactical advantage by being able to have its expert craft her report in partial response to the first expert's report. Lane also contends that because this is an appraisal proceeding where "both sides have the burden of proving their respective valuation positions," it is appropriate that the experts' reports be submitted simultaneously.
MG Bancorp v. LeBeau, Del. Supr., 737 A.2d 513, 520 (1999).
The parties agree that the scheduling of expert discovery is committed to the Court's discretion. As part of their review of Chancery practice, the parties have submitted sample orders that require simultaneous exchange of expert reports and sample orders that require the sequential exchange of expert reports. In short, depending upon the circumstances, either approach could be appropriate.
I am persuaded that, because of the inordinate delay associated with Lane's prosecution of his claim, Lane should submit his valuation expert's report first. Because of his inability or unwillingness over the years to move forward in this matter, it is not appropriate to force CTCA to incur the expense of producing its valuation expert's report until Lane demonstrates, in fact, that he has the commitment necessary to pursue his appraisal rights by meeting the burdens associated with the preparation and submission of his valuation expert's report.
See note 1, supra, and the memorandum opinions cited therein.
This is not some form of backhanded punishment for Lane's conduct in this matter; it is simply an effort to address the risk that CTCA might needlessly incur the cost of preparation of its expert's report, a risk to which Lane's conduct has given substance.
With this guidance, the parties should now have all the pieces for completing the scheduling order, which I ask that they submit within ten days of the date hereof.