Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-01538-SLR Document 118 Filed 11/10/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HEIDI VASCEK, individually and as :
Administratrix of the ESTATE OF :
JOHN VASCEK, JR., :
Plaintiffs, :
: C.A. No. 04—1538 SLR
vs. :
UNITED PARCEL SERVICE, INC. and
MARK BARD, :
Defendants. :
PLAINTIFF’S BRIEF IN SUPPORT OF
PLAINTIFF’S MOTION TO COMPEL THE PRODUCTION OF
DOCUMENTS, PUBLICATIONS AND OTHER MATERIALS
RELIED UPON BY DEFENDANTS’ EXPERTS
I. INTRODUCTION
Plaintiff incorporates the Introduction and Statement of Facts contained in
Plaintiffs Response to Defendants, United Parcel Service’s and Mark Bard’s Motion for
Protective Order and Plaintiffs Omnibus Motion and other Motions and Responses in
this case.
II. ARGUMENT
Pursuant to Federal Rule of Civil Procedure 26(2)(B), the Defendants are required
to disclose a written report prepared and signed by the expert. "The report shall contain a
complete statement of all opinions to be expressed and the basis and reasons therefore;
the date or other information entered by the witness in forming the opinion; any exhibits
to be used as a summary of or support for the opinion; qualifications of the witnesses,
including the list of all publications authored by the witness within the preceding ten
years; the compensation to be paid for the study and testimony; and a listing of any other

Case 1:04-cv-01538-SLR Document 118 Filed 11/10/2005 Page 2 of 4
cases in which the witness has testified as an expert at trial or by deposition within the
preceding four years.
On October 19, 2005 Plaintiff and Defendant exchanged expert reports. Plaintiff
submitted the report of George Govatos, Ph.D. Defendants submitted the reports of
William M. Otto and Tyler Kress, Ph.D. In their reports, Otto and Kress relied on
numerous documents, publications and other materials in reaching their conclusions. ln
order to prepare a rebuttal report, Plaintiffs expert requires the documents, photographs
and materials considered by Defendants’ experts which are set forth in paragraph 10 A—O
in Plaintiffs instant motion.. On October 26, 2005 via fax Plaintiff requested the
documents, publications and other materials considered by Defendants’ experts. On
October 28, 2005 in response to a similar request by Defendants, Plaintiff hand delivered
the documents considered by Plaintiffs expert Govatos in preparing his report. On
November 1, 2005 Defendant advised Plaintiff that they are still gathering materials
relied upon by Defendants’ experts and would forward the materials "as soon as
possible." The materials have not been received. Absent these materials, Plaintiffs
expert cannot prepare a rebuttal report. Plaintiff is therefore prejudiced. Defendant is in
violation of the requirements of Rule 26.
Accordingly, Plaintiff respectfully requests that the Court enter an Order to
compel documents, publications and other materials relied upon by Defendants’ experts.
Respectfully submitted,
RICHARD R. WIER, JR., P.A.
Dated: 11/10/05 /s/ Daniel W. Scialpi
Richard R. Wier, Jr. (#716)
Daniel W. Scialpi (#4146)
1220 Market Street, Suite 600

Case 1:04-cv-01538-SLR Document 118 Filed 11/10/2005 Page 3 of 4
Wilmington, DE 19801
(302)888—3222
[email protected]
OF COUNSEL:
Michael T. van der Veen
Kats, Jamison, van der Veen & Associates
25 Bustleton Pike
Feasterville, PA 19053

Case 1:04-cv-01538-SLR Document 118 Filed 11/10/2005 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HEIDI VASCEK, individually and as :
Administratrix of the ESTATE OF :
JOHN VASCEK, JR., :
Plaintiffs, :
: C.A. N0. 04-1538 SLR
vs. :
UNITED PARCEL SERVICE, INC. and
MARK BARD, :
Defendants. :
CERTIFICATE OF SERVICE
I certify that on this 10th day of November, 2005, that I caused to be
electronically tiled the Plaintiff s Motion to Compel Documents, Publications and Other
Materials Relied upon by Defendants’ Experts with the Clerk of the Court using
CM/ECF, which will send notification of such tiling(s) to the following:
William J. Catie, III, Esquire
Rawle & Henderson
300 Delaware Avenue, Suite 1015
PO Box 588
Wilmington, DE 19899
Attorney for Defendants
Jayne A. Risk, Esquire
One Liberty Place
1650 Market Street, Suite 4900
Philadelphia, PA 19103
Via Regular Mail
RICHARD R. WIER, JR., P.A.
/s/ Daniel W. Scialpi
Richard R. Wier, Jr. (#716)
Daniel W. Scialpi (#4146)
1220 Market Street, Suite 600
Wilmington, Delaware 19801
(302)888·3222
[email protected]