Opinion
C.A. No. 95C-11-008
Submitted: May 8, 2001
Decided: July 31, 2001
Upon Defendants-Third Party Plaintiffs' Motion for Reargument. Denied.
Edward Curley, Esquire, Whitehurst Curley, Dover, Delaware, attorneys for the Plaintiffs.
Robert K. Pearce, Trzuskowski Kipp Kelleher Pearce, P.A., Wilmington, Delaware, attorneys for the Defendants-Third Party Plaintiffs.
Roy S. Shiels, Brown Shiels Beauregard Chasanov, Dover, Delaware, attorneys for Third Party Defendant.
ORDER
(1) On April 20, 2001, this Court entered an Opinion and Order in this matter Denying Plaintiffs' Motion for Reargument, Denying Plaintiffs' Motion to Exclude Testimony of Defendants' Expert, Granting Defendants' Motion to Exclude Testimony of Plaintiffs' Expert, and Denying in Part and Granting in Part Defendants' Renewed Motion for Summary Judgment. Defendants filed this Motion for Reargument with the Court on April 27, 2001, claiming that the Court did not address certain controlling legal principles and facts in rendering its decision.
(2) In the April 20, 2001, decision, the Court did not reach the merits of Plaintiffs' Motion for Reargument because it was not timely filed. Similarly, Plaintiffs first line of attack against Defendants' Motion for Reargument is that it was not timely filed. Pursuant to Superior Court Rule 59(e), "[a] motion for reargument shall be served and filed within 5 days after the filing of the Court's opinion or decision." Under Superior Court Civil Rule 6(b) the Court may not enlarge the time for taking action under Rule 59(e). The Court's decision was entered on April 20, 2001, and the Defendants' motion for reargument was not filed until April 27, 2001, which at first glance exceeds the five day rule. However, April 20, 2001, was a Friday and is not included because the "day of the act, event or default after which the designated period of time begins to run shall not be included." In addition, the rule states that "when the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and other legal holidays shall be excluded in the computation;" therefore, Saturday. April 21 and Sunday, April 22 are not included in the five days. The net result is that Defendants had until Friday, April 27 to file their motion in a timely fashion, which they did.
(3) The standard for a Rule 59(e) motion for reargument is well-defined under Delaware law. As this Court recalled in Monsanto Co. v. Aetna Cas. And Sur. Co., "reargument will usually be denied unless it is shown that the Court "overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or the facts such as would affect the outcome of the decision.'" The Delaware Supreme Court has also stated that motions for reargument should not be used merely to "rehash the arguments already decided by the court."
Monsanto Co. v. Aetna Cas. and Sur. Co., Del. Super., C.A. 88-JA-118, Ridgely, P.J. (Jan. 14, 1994), Mem. Op. at 2 (quoting Wilshire Restaurant Group, Inc. v. Ramada, Inc., Del. Ch., C.A. No. 11506, Jacobs, V.C. (Dec. 19, 1990), Let. Op. at 2.
McElroy v. Shell Petroleum, Inc., Del. Supr., 618 A.2d 91 (table), No. 375, 1992, Moore, J. (Nov. 24, 1992) (ORDER).
(4) Defendants' motion for reargument alleges that the Court did not address certain controlling legal principles and facts that would affect the outcome of the decision. Specifically, Defendants claim that the Court should have granted their summary judgment motion because Plaintiffs failed to establish a prima facie case of negligence. In support of this argument, Defendants claim the Court found that the opinions of Mr. Schneiders, Plaintiffs' expert, created a question of fact and then found that he was not competent to testify as an expert witness in this matter. according to the Defendants, this results in the Plaintiffs being unable to bring a prima facie negligence case. Defendants' argument that the Plaintiffs have not made out a prima facie case of negligence reflects a continued misunderstanding of this Court's rulings. For this Court to grant summary judgment, Defendants must prove that there are no material issues of fact when viewing the evidence in the light most favorable to the Plaintiffs. In its prior two opinions the Court has cited the opinions of Mr. Schneiders, now disqualified, as an example of evidence that when viewed in the light most favorable to the Plaintiffs created a material issue of fact. To grant summary judgment the Court must view the evidence in the light most favorable to the Plaintiff. Before the Court's most recent ruling, the testimony of Plaintiffs' expert created a material issue of fact. Then in the April 20, 2001, opinion, the Court decided that the testifying experts must be familiar with the local standard of care. Granting Defendants' summary judgment motion would be fundamentally unfair as Plaintiffs have never attempted to establish a material issue of fact concerning a local standard of care because they did not know local testimony would be necessary. The Court then gave Plaintiffs six (6) months to find an appropriate expert to establish the local standard of care. Should the Plaintiffs be unable to establish a prima facie case of negligence within six months, the Court is ready to reconsider its denial of Defendants' summary judgment motion.
Moore v. Sizemoore, Del. Supr., 405 A.2d 679, 680 (1979).
The Court noted in the April 20th decision that if the Plaintiffs are unable to secure an appropriate expert within six (6) months, Defendants' summary judgment motion will be granted.
(5) After alleging that Plaintiffs fail to bring a prima facie case of negligence and detailing the "strategic decisions" made by Plaintiffs throughout the course of this litigation, Defendants claim that Plaintiffs should not be permitted a "third bite at the apple." According to the Defendants, the Court's decision allowing Plaintiffs six (6) months to find a new expert is unfair, prejudicing them and discouraging the filing of motions in advance of trial. To support these contentions, Defendants highlight the pre-trial motion work throughout the course of this litigation. Defendants recall that they initially filed two motions with respect to Plaintiffs' first expert, Mr. McLaughlin. Plaintiffs changed experts at this time informing the Court that Mr. McLaughlin's health did not permit him to continue with the case. Plaintiffs then filed a motion to exclude the testimony of Mr. Quecertti, Defendants' standard of care expert. This motion filed by Plaintiffs recognized the Defense position that a local standard of care expert should be required and argued against such a requirement. Defendants also filed a second set of motions to limit and/or exclude the testimony of Plaintiffs' current expert, Mr. Schneiders. In addition, Defendants contend that even if Plaintiffs were able to "bridge" Mr. Schneiders' testimony, his testimony still does not meet the Court's requirement because he is not a member of the real estate community and cannot testify to the relevant standard of care for said community.
(6) Plaintiffs reply that they did not know until the Court's April 20, 2001, decision that expert testimony would be necessary to establish a local standard of care. Now that the Court has established the parameters for this case, Plaintiffs argue that it is appropriate for the Court to allow the Plaintiffs time to secure an appropriate expert.
(7) The Court is painfully aware of the extended history of this case. Defendants are correct that this State prefers to allow litigants their day in court. In light of this, the Court does not find Defendants' prejudice argument persuasive. Defendants claim they have been prejudiced by filing motions with respect to two unqualified experts. These pre-trial motions have not been worthless as the Defendants have successfully excluded Mr. Schneider's testimony and narrowed down the issues and scope of testimony. With the issues in the case narrowed significantly and the Court's evidentiary requirements established, the Court has allowed the Plaintiffs six (6) months to comply with the Court's April 20 decision and try its case before a jury.
On a final note, the Court reviewed the recent Supreme Court decision of New Haverford Partnership v. Stroot and does not find that it gives this Court any reason to reconsider its April 20, 2001, decision. Defendants' Motion for Reargument is denied.
New Haverford Partnership v. Stroot, Del. Supr., No. 549, 1999, Berger, J., (May 7, 2001) , Order at 4. The Court does not believe that the Supreme Court's ruling is inconsistent with the April 20, 2001, opinion requiring an expert to be familiar with the local standard of care.
IT IS SO ORDERED.