Free Letter - District Court of Delaware - Delaware

Case 1 :07-cv-001 29-M PT Document 38 Filed 10/12/2007 Page 1 of 3
LAW OFFICES
SCHMITTINGER AND RODRIGUEZ, P.A. HAR¤¤-¤ SCHMITTINGER
NICHOLAS H. RODRIGUEZ OF COUNSEL
PAUL H_ Bg5wEL;_
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FRED A. TOWNSEND III
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DAVID A. BoswELL WAcH0v|A BANK BUILDING
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October I2, 2007
VIA ELECTRONIC FILING
The Honorable Mary Pat Thynge
United States District Court
844 King Street
Wilmington, DE l980l
RE: Laymon v. Lobby House, Inc.
C.A. NO. O7—l29 MPT
Dear Judge Thynge:
This is Plaintiff's submission regarding the discovery dispute
that is to be heard by you on Wednesday, October l7, 2007, at 9:00
a . m . Counsel are seeking the Court ’ S guidance regarding 1;wO
discovery disputes, one regarding the production of certain
photographs, and the other regarding the identification of a
treating medical expert.
In July 2007, Defendants produced to Plaintiffs copies of two
photographs of Plaintiff taken at Defendant’s place of business on
New Year’s Eve 2005-2006. On August 8, 2007, Plaintiff served a
request for production requesting additional photographs in the
possession of Defendant taken that evening. In response to this
request, Defendant represented that it was not in possession of
additional photographs. Subsequently, at a deposition taken on
August 30, Defendant’s assistant manager testified that he was in
possession of approximately l8 additional photographs taken that
evening. Later, in a telephone conversation, Mr. Poliquin
represented to me that Defendant would produce the additional
photographs. After repeated requests, on October l Defendant
produced. copies of three additional photographs. when I
questioned Mr. Poliquin about this disparity, he said that he was
trying to obtain an explanation from his client. Then, on October
l0, Mr. Poliquin produced copies of 9 additional photographs and

Case 1:07-cv-00129-MPT Document 38 Filed 10/12/2007 Page 2 of 3
October l2, 2007
Page 2
represented that “not all of the pictures may have been taken on
New Year’s Eve [2005—2006]" and that “[t]hese are all of the
pictures within defendant’s control ” I accept Mr. Poliquin’s
representation that his client is telling him that it has produced
all of the photographs. However, I wish to argue at trial that
Defendant may have concealed or destroyed additional photographs,
and I am seeking the Court’s guidance on this issue.
Turning to the second issue regarding the medical expert, when
Plaintiff was deposed by Defendant on August 3, 2007, Plaintiff
was questioned about any treatment that she received as a result
of Defendant’s actions. Plaintiff testified that she received
mental health counseling at a facility located on Walker Road in
Dover, but she could not recall at that time the name of the
counselor or the name of the facility. Our office believed that
facility to be F.H. Everett & Associates, located at ll5l Walker
Road, and we ordered Plaintiff's records. when we received the
records from that facility, we were able to identify the counselor
as Elizabeth Wallick, LCSW.
On September 2l, 2007, I informed Mr. Poliquin of Ms. Wallick's
identity and that we intended to call Ms. Wallick to testify at
trial regarding her treatment of Plaintiff. In early October, we
provided copies of Plaintiff‘s records from F.H. Everett to
Defendants as part of Plaintiff's response to a request for
production. I intend to have Ms. Wallick testify from her records
regarding both her treatment and diagnosis of Plaintiff.
Mr. Poliquin has objected to Plaintiff's designation of Ms.
Wallick on two grounds:
(l) the deadline for the identification of experts set forth
in the scheduling order was September l4, 2007; and
(2) Plaintiff has not produced an expert report from Ms.
Wallick.
I have represented to Mr. Poliquin that Plaintiff will agree to
whatever period he feels is necessary for the identification of a
rebuttal expert and for taking Ms. Wallick's deposition.
Discovery in this case is scheduled to end on November 30, 2007,
and has not previously been extended. Trial is scheduled to begin
on September 8, 2008. Plaintiff notes that Defendant has not
identified any prejudice that would result to it if Plaintiff is
allowed to designate Ms. Wallick as an expert. Plaintiff further
notes that Ms. Wallick’s testimony would not go to the issue of
liability, but only to damages, and therefore there is no reason
why expert discovery regarding this issue would need to be
completed by the discovery deadline.
Plaintiff respectfully asks the Court that the expert disclosure

Case1:O7-cv-OO129—|\/IPT Document 38 Fi|ed10/12/2007 Page30f3
October l2, 2007
Page 3
deadline be extended to allow Plaintiff to identify Ms. Wallick as
a medical expert so that she may testify regarding her treatment
and diagnosis of Plaintiff. In addition, since the medical
records, while they discuss Plaintiff’s harassment by Defendant,
do not explicitly state a causal connection between Defendant’s
harassment of Plaintiff and any mental injuries, Plaintiff
respectfully requests additional time so that we may obtain a
brief report from Ms. Wallick.
Thank you for your attention to this matter.
Respectfully submitted,
’Z‘ { fra
NO l E. PRIMOS
cc: Ronald G. Poliquin, Esquire