Opinion
C.A. No. 05C-06-014 WLW.
Submitted: October 25, 2006.
Decided: November 3, 2006.
Wayne N. Elliott, Esquire of Prickett Jones Elliott, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Gary H. Kaplan, Esquire of Goldfein Joseph, Wilmington, Delaware; attorneys for the Defendant Kathleen R. Kennedy.
Jeffrey A. Young, Esquire of Young McNelis, Dover, Delaware; attorneys for the Defendant State Farm Mutual Automobile Insurance Company.
ORDER
Upon Defendants' Motion in Limine Seeking to Preclude Testimony from Plaintiffs' Expert and/or in the Alternative, Seeking a Continuance of the Trial. Granted in part; Denied in part; Deferred in part. Defendants, Kathleen R. Kennedy ("Ms. Kennedy") and State Farm Mutual Automobile Insurance Company ("State Farm"), filed a Motion in Limine seeking to preclude the testimony of Plaintiffs' second economic expert on the basis of surprise and timeliness. In the alternative, Defendants seek an update in discovery, a second deposition of the Plaintiff and financial sanctions against Plaintiffs' counsel.The initial Complaint was filed on June 8, 2005, and an amended Complaint was filed on May 10, 2006, which added State Farm as a second Defendant. This Court issued a scheduling Order on May 31, 2006 that set Discovery Cutoff for August 22, 2006 and a Trial date for November 13, 2006. On June 5, 2006, an Answer to the amended Complaint was filed. It appears that the parties agreed to an informal extension of discovery, including expert reports, past the August 22, 2006 cutoff date, and both parties took advantage of the agreement. Defendants' expert report in response to Plaintiffs' first expert, John Artis, was produced to the Plaintiffs on September 15, 2006. On October 6, 2006, Plaintiffs produced an expert report from a second expert, Dr. Minnehan, to the Defendants.
Defendants claim that Dr. Minnehan's testimony should be excluded on the basis of surprise and timeliness concerning the production of Plaintiffs' second expert report. Defendants claim that they are prejudiced by Dr. Minnehan's report, because they received his report after the discovery cutoff date. Further, Defendants claim that they received the report too close to the trial date. Plaintiffs argue that they sent the Defendants a letter on December 22, 2005, stating that they would be employing Dr. Minnehan to provide "future projections" concerning Plaintiffs' lost income. Consequently, Plaintiffs believe that Dr. Minnehan's report should not be precluded. On the other hand, Defendants claim that Mr. Artis' report was the only expert report produced when Defendants asked for discovery, so the second report should be precluded.
Defendants further argue that Dr. Minnehan's report contains facts and data requested in discovery but never supplied to Defendants. Specifically, since the time of Plaintiff's deposition, the Plaintiff has relocated, accepted new employment and perhaps sold his business, and Defendants claim that they do not have this information. Also, Defendants argue that Dr. Minnehan's report reflects this knowledge, and his analysis has taken into account these new developments.
In response to Mr. Artis' report, Defendants hired their own expert to analyze and assess the theory of recovery proffered by Mr. Artis. Defendants' expert report was provided to Plaintiffs on September 15, 2006. Defendants claim that Dr. Minnehan's subsequent (second) expert report addresses issues not raised in Mr. Artis' first report. Also, the second report asserts additional losses which he projects into the future, which are now beyond the scope of Defendants' expert report, because the defense report was created in response to the Plaintiffs' first report only. For these reasons, Defendants argue that they are prejudiced, not only by being limited to the scope of their expert submission, but by now having to scramble to ascertain the validity of the facts and data not previously disclosed and made available to their experts. Defendants also seek financial sanctions to cover their cost in retaining an expert to counter the testimony of Mr. Artis, Plaintiffs' first expert.
Plaintiffs oppose the Motion in Limine arguing that Defendants have been on notice, because Plaintiffs' economic claims have been consistent throughout. Plaintiffs claim that the separate values computed by their two experts concerning the Plaintiff's wage loss are not significantly different. Defendants counter argue that the methodologies utilized by Plaintiffs' two experts greatly differ, and they believe that the amounts also differ greatly. Defendants' claim to be prejudiced, because their expert report responded to the approach utilized by Plaintiffs' first expert and does not fully respond to Defendants' second report.
Mr. Artis' projection of future wage loss is $1,715,184, and Dr. Minnehan's projection of future wage loss is $2,209,468.
For the reasons set forth below, Defendants' Motion in Limine is granted in part, denied in part and deferred in part.
Discussion
The Court will grant a continuance to allow for updated discovery, not excluding discovery relating to Dr. Minnehan, and to allow a second deposition of the Plaintiff, in lieu of precluding the testimony of Dr. Minnehan. Allegedly, there is new information, which Plaintiffs did not have, concerning Mr. Kelleman's new employment and whether or not he has sold his previous practice. It is alleged that this information was used in Dr. Minnehan's expert report, and Defendants claim to have sought further discovery and an updated deposition concerning the information, which was not provided to them.
Both parties agreed to an informal extension of discovery past the August 22, 2006 cutoff date, but the parties disagree as to whether expert reports were part of that agreement. Since both parties actually submitted expert reports after the August 22, 2006 cutoff, the Court feels that expert reports must have been included within the parties' informal extension agreement.
Defendants submitted their expert report in response to Plaintiffs' first expert report on September 15, 2006, and Plaintiffs submitted their second expert report on October 6, 2006.
In fairness to both parties, a continuance is granted to allow for updated discovery and a second deposition of the Plaintiff, so that both parties can fully prepare for trial. Defendants have been unable to discover new pertinent information about Mr. Kelleman, which was used in Dr. Minnehan's analysis. The parties' also had an informal agreement to extend discovery beyond the cutoff date evidencing their willingness to accept late discovery. Thus, Defendants should be able to depose the Plaintiff again. Defendants should also be allowed to prepare a response to Plaintiffs' new (second) expert report. Due to the Court's ruling on the issue of updated discovery and the second deposition of the Plaintiff, Dr. Minnehan's testimony will not be precluded, because the Defendants will be able to fully prepare a response to his testimony.
Defendants' claim that they should be awarded financial sanctions against Plaintiffs for their costs in retaining their defense expert. Defendants argue that their expert was retained to rebut the testimony of Mr. Artis, Plaintiffs' first expert, and the new (second) expert report goes beyond the scope of Defendants' expert report, minimizing the value of the current defense report. The Court will defer the issue concerning sanctions and the financial cost of additional discovery and experts will be decided after trial.
Based on the foregoing, Defendants' Motion in Limine is granted in art, denied in part and deferred in part.
Given the ruling of the Court, no further experts other than those who have been identified will be permitted to testify in this case. The only exception would be the possibility of an additional defense expert occasioned by the new report of Dr. Minnehan.
IT IS SO ORDERED.