A recent short letter ruling by the Delaware Court of Chancery provides a useful tool for the toolbox of commercial and corporate litigators regarding pre-trial arguments to exclude the testimony of an expert who has prepared a report, even though in the Court of Chancery motions in limine to obtain pre-trial rulings on such evidentiary issues are not as meaningful as they would be for a jury trial. Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, C.A. No. 7906-VCG (Del. Ch. Nov. 13, 2017). See also prior decisions in this litigation that have been highlighted on these pages for more background details.
Overview: A motion in limine was denied without prejudice to object at trial to exclude consideration of expert evidence on two issues: (1) whether the expert, who relied on a recitation of facts upon which his opinion was based, should have been precluded from testifying about the facts which allegedly were “cherry-picked and self-serving.” The court determined that it was able to separate the testimony at trial that was based on second-hand comments — as opposed to first-hand facts. In addition, the court reasoned that the expert would be subject to cross-examination, where any deficiencies or any inaccuracies on the facts relied upon for the expert opinion can be scrutinized.
The second issue is whether the expert should be precluded from opining on subjective knowledge or intent of individuals that would be outside the scope of the area of expertise of the expert. The court concluded the risk of that danger could be dealt with by objections at trial.
The court relied on Delaware Rule of Evidence 702 which requires that expert opinion be based, among other things, on “sufficient facts or data . . ..” The court also relied on precedent for the view that subjective testimony about the subjective intent of a plaintiff regarding damages is not admissible as expert testimony under DRE 702. See Hoechst Celanse Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 1994 WL 721624 at *1 (Del. Ch. Apr. 20, 1994).