In Sammons v. Doctors For Emergency Services, P.A., (Del. Supr., Dec. 6, 2006), read opinion here, the Delaware Supreme Court addressed important matters of pre-trial practice and trial procedure that will serve as a useful standard for trial lawyers. Several issues were addressed (not all of which I will cover in this short blurb), but especially helpful for its practical utility is the high court’s analysis of pre-trial disclosures required as a prerequisite for an expert witness to be called at trial.
In sum, the Supreme Court upheld the trial court’s restriction of an expert’s trial testimony to the scope of the expert report that was previously produced by the expert in discovery and pursuant to the Rule 16 scheduling order. The court reasoned that to allow expert testimony more expansive than the report produced would defeat the purpose of pre-trial deadlines and would be unfair to the other lawyers who were relying on the scope of that report to prepare for trial. In this case there was no effort to amend the Rule 16 scheduling order, nor was there any apparent attempt to supplement the prior replies to discovery so as to notify the other counsel of the newly expanded scope of testimony. The expanded scope of the expert’s opinions were disclosed for the first time at a deposition, several months after the deadline for producing expert reports. One defense counsel did not attend the deposition because he was relying on the limited scope of the expert report that apparently was not expected to impact his client. The court found such reliance on the report to be reasonable and held that an opponent should not be required to wait for the deposition of the expert to be made aware of the substance and scope of that expert’s opinions that are to be presented at trial.
In essence, this opinion strongly supports the enforcement of pre-trial deadlines in scheduling orders and it emphasizes the importance of the expert report produced before trial. Although this decision was based on the Superior Court rules, it can be used by analogy, at least, in Chancery Court. (The state court rules in Delaware are based on the federal rules, but Rule 16 of the Federal Rules of Civil Procedure is different in some respects.)
The Delaware Supreme Court reasoned:
The purpose of the Rule 16 scheduling order and discovery deadlines are to improve the efficiency of trials. The expert identification deadline assists the parties in conducting useful discovery of expert’s opinions. Pursuant to Rule 26, the expert disclosure statements should identify the expert’s opinions and the basis for those opinions so that the opposing party can properly prepare for depositions and trial. Here, Sammons did not properly and timely disclose Dr. Bridges’s opinion regarding causation and failure to diagnose sepsis before the expert disclosure date mandated by the trial judge’s scheduling order. Contrary to Sammons’s assertion, she did not cure the discovery deficiency simply by disclosing Dr. Bridges’s opinion regarding a failure to diagnose sepsis and causation during a deposition scheduled by another party for discovery purposes.
Further, Sammons’s counsel neither moved to amend the Rule 16 scheduling order upon a “showing of good cause,” supplemented their original expert disclosure to expand Dr. Bridges’s opinion nor contacted DFES counsel to notify him of Dr. Bridges’s expanded opinion before the scheduled deposition. Without notice of the proposed expanded expert opinion to be proffered, DFES was entitled to rely on Sammons’s disclosure. DFES could fairly assume it to be an accurate statement of the expert’s anticipated opinion at his deposition as well as later at trial. DFES relied on Sammons’s expert disclosure statement, and did not attend the deposition.
Therefore, the trial judge did not abuse his discretion when he granted Family Practice and Dr. Sobel’s motion to restrict Dr. Bridges’s trial testimony.
See also Duncan v. Newtown & Sons, Co., 2006 WL 2329378 (Del. Super. 2006).