Leslie v. Jones

Full title: JOSEPH H. LESLIE, Plaintiff, v. MARK A. JONES and JOHN M. MAGUIRE…

Court: Superior Court of Delaware, New Castle County

Date published: Oct 16, 2000

CIVIL ACTION NUMBER 98C-10-345-VAB (Del. Super. Ct. Oct. 16, 2000)

Opinion

CIVIL ACTION NUMBER 98C-10-345-VAB.

Submitted: September 5, 2000.

Decided: October 16, 2000.

Upon Motion in Limine of Plaintiff to Preclude the Testimony of Defendants' Experts — DENIED .

James A. Erisman, Esq., of Daley, Erisman vanOgtrop, attorney for plaintiff.

Stephen P. Casarino, Esq., of Casarino, Christman Shalk.

HERLIHY, Judge.

MEMORANDUM OPINION

Plaintiff Joseph H. Leslie has moved to exclude certain defense testimony. He seeks to prevent an expert for the defendants from testifying that Leslie's headlights

were not operating at the time of the accident which prompted this lawsuit. The basis for Leslie's motion is that someone on behalf of the defense has lost the headlights while in the testing process and he cannot now test them himself.

The complaint alleges the accident occurred on November 8, 1996 around 6:00 p.m. Leslie says he was driving southbound on Delaware Route 896 and that defendant Mark A. Jones was driving a truck, owned by defendant John M. Maguire, northbound on 896. All of this was just south of U.S. 40. Apparently, Jones turned left into Leslie's path and the two collided.

Leslie filed his complaint in October 1998. When the defendants answered in December 1998, they raised the affirmative defense that Leslie was driving in the rain without his headlights on. This is not an arbitration case and a scheduling order was issued on January 5, 1999. It set, among other dates, a deadline for discovery of July 2, 1999. At some point, the defense obtained the headlights for testing.

The record also shows that on June 17, 1999, the defense supplied to Leslie an expert report that indicated Leslie's headlights were either not on or were inoperative (the record before the Court as to which is unclear). Even though supplied less than thirty days prior to the cut-off for discovery, Leslie did not ask for an extension of the deadline.

A status conference with the then-assigned judge (now retired) was held on August 6, 1999 and a trial date of March 3, 2000 was set. The prior discovery cutoff date of July 2^nd was not changed. On November 15, 1999, however, Leslie identified an accident reconstruction expert who wanted to view the headlights. It was discovered one of the defendants' experts had died and soon thereafter that the headlights could not be found. A search of that expert's possession proved fruitless. Another defense expert had examined the headlights, too, and had reached the same conclusion that they were not on when the accident occurred.

A pretrial conference was held on March 3, 2000 and on that same day, the plaintiff filed this motion. The trial did not proceed as originally scheduled and was first postponed to September 5, 2000 and again to October 10, 2000. Due to very recent information relating to Leslie's claim of a closed head injury and that he had a right to present that evidence but that the defense now needed time to explore that evidence, the October 10^th trial has been continued.

DISCUSSION

Leslie argues that since the defendants cannot produce the headlights for his expert to examine, they should be precluded from offering the expert opinion that Leslie's lights were not on at the time of the accident. In short, Leslie invokes the spoliation rule. In support of this argument, Leslie cites cases from other jurisdictions. But they are not helpful to his cause for two reasons.

First, Delaware's spoliation rule is not necessarily the same as those jurisdictions. Delaware's rule applies were the destruction of the evidence is intentional or reckless.¹ There is nothing in this record to suggest that the defense experts recklessly or intentionally lost the headlights.²

1 Collins v. Throckmorton, Del.Supr., 425 A.2d 146, 150 (1980); Equitable Trust Co. v. Gallagher, Del.Supr., 102 A.2d 538, 541 (1954); Playtex, Inc. v. Columbia Casualty, Del.Super., C.A. No. 88C-MR-233, Del Pesco, J. (September 20, 1993). Compare to the rule in criminal cases where the spoliation rule is potentially applicable for negligent loss of evidence. Lolly v. State, Del.Supr., 611 A.2d 956 (1992).

2 See the pattern jury instruction on spoliation:

There is evidence from which you may conclude that [person's name] may have [intentionally/recklessly] suppressed or destroyed the following relevant evidence [identify items destroyed or suppressed]. In your deliberations, if you conclude that this is the case, that is, that the loss of [identify items] was due to the [intentional! reckless] conduct of [person's name], then you may conclude that the missing evidence would have been unfavorable to [person's name]'s case.

Second, and more fatal to Leslie's motion, however, is the timing of his request to obtain and examine the headlights. The only operable discovery cutoff deadline in this case was July 2, 1999. While arguable the defendants should have provided their experts' reports thirty or more days in advance of the cutoff date, the July 2^nd date was never changed. Further, there was never a request to extend it, even at the status conference in August. In addition, in their answer to the complaint filed in December 1998, the defense put Leslie on notice that they claimed his lights were not on. There was no surprise, therefore, to Leslie about this issue.

Furthermore, Leslie's request to see the headlights came nearly five months after the discovery cutoff date had passed. The defendants relied upon that date in getting the headlights examined and in producing their experts' reports. If Leslie had made a request prior to the discovery cutoff date of July 2, 1999 to see the headlights, his position may be stronger. But, Leslie made no such timely request and he is bound by that deadline.³ The events after July 2^nd, therefore, are irrelevant since they occurred and/or were uncovered after the discovery cutoff date.

3 National Union Fire Ins. Co. of Pittsburgh, Pa v. Stauffer Chemical Co., Del.Super., C.A. No. 87C-SE-11, Poppiti, J. (January 15, 1991).

CONCLUSION

For the reasons stated herein, plaintiff Joseph H. Leslie's motion to preclude defendants' experts' testimony about the headlights is DENIED.

IT IS SO ORDERED.