Opinion
C.A. No. 09C-11-021-JRJ.
November 5, 2010.
Ian C. Bifferato, Esq., David W. Debruin, Esq., Kevin G. Collins, Esq., Bifferato, LLC, Wilmington, DE.
John Z. Haupt, Esq., Timothy J. Houseal, Esq., William E. Gamgort, Esq., Young, Conaway, Stargatt Taylor, Wilmington, DE.
Dear Counsel:
The Court is working on its opinion on the Defendants' Partial Motion to Dismiss. It is clear that the parties' Dominican law experts disagree on several key points. For example, one of the plaintiffs' experts opines that the statute of limitations in the Dominican Republic does not accrue until a plaintiff discovers not only that he has an injury, but also its cause and the party responsible. One of the defendants' experts disagrees, opining that absent some unforeseeable or unavoidable event that would prevent a plaintiff from filing suit, the plaintiff must file within the limitations period. Thus, according to the defendants' expert, if plaintiffs knew or should have known of the factual basis for a claim, then there is no tolling of the statute of limitations.
Lavandier Decl., ¶¶ V and X (A.3) (Trans. ID. 30118427) at Exh. 10.
Pena Supp. Aff., ¶ (Trans. ID. 30441638) at Exh. 2.
The parties' Dominican law experts also disagree on whether the plaintiffs can avail themselves of the longer statute of limitations provided by the Dominican Penal Code if there is no parallel criminal action, and whether plaintiffs may assert a claim under Dominican Republic Environmental Law 64-00 in the absence of a parallel criminal action. The defendants' experts say that there has never been a case in the Dominican Republic in which a plaintiff has pursued monetary damages under 64-00 independent of a criminal action, and plaintiffs' experts have identified none.
Compare Castillo Decl., § IV(b), Exh. 11, Lavandier Decl., ¶ V, Exh. 10 (Trans. I.D. 30118427) at Exh. 11 and 10, with Ramos Supp. Aff., ¶¶ 14-18 and Exh. 2, Pena Supp. Aff., ¶¶ 9-10 (Trans. I.D. 30441638) at Exh. 1 and 2.
Pena Supp. Aff., ¶ 21 (Trans. I.D. 30441638) at 2.
The Court has been in the situation before where foreign law experts do not agree and the Court cannot reconcile the conflicting opinions. Given the conflicting opinions on Dominican law, the Court finds it necessary to retain an independent Dominican law expert. Pursuant to Delaware Uniform Rule of Evidence 706, the Court orders the parties to show cause why it should not appoint a Dominican law expert to assist the Court in interpreting the relevant Dominican law, and asks the parties to submit nominations by November 15, 2010. If the parties are unable to agree on the nominations, each side shall submit three names by November 15, 2010. The opposing party will submit objections by November 22, 2010, if any.
See Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Inc., 2003 WL 22016864, at *2 (Del. Super. Aug. 26, 2003), (Court hired an independent Saudi law expert where parties' Saudi law experts disagreed on the proper elements of one of the causes of action) aff'd, 866 A.2d 1 (Del. 2005).
IT IS SO ORDERED.