Free Order on Motion for Miscellaneous Relief - District Court of Delaware - Delaware


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Date: June 1, 2007
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Case 1:05-cv-OOO72—JJF Document 173 Filed 06/O1/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: :
: Chapter 7
STUDENT FINANCE CORPORATION, :
: Bankruptcy Case No. O2-11620-KJC
Debtor. :
CHARLES A. STANZIALE, JR., :
Chapter 7 Trustee Of Student ;
Finance Corporation, :
: Adversary No. 04-56423
Plaintiff, :
: Civil Action No. 04-1551 JJF
V . Z
PEPPER HAMILTON LLP, ET AL., :
Defendants. :
ROYAL INDEMNITY COMPANY, z
Plaintiff, z
v. : Civil Action No: 05-165-JJF
PEPPER HAMILTON LLP, ET AL., :
Defendants. :
MEMORANDUM ORDER
Pending before the Court is Plaintiff Royal Indemnity’s
Emergency Motion For Leave To Replace Stricken Expert Witnesses
(D.I. 498, 05-165; D.I. 254, O4-1551; D.I. 167, 05-72; D.I. 422,
02-1294). For the reasons discussed, the Court will grant the
Motion.
On May 25, 2007, the Court granted Defendants’ Motion To
Strike Expert Witnesses (D.I. 494, 05-165; D.I. 247, O4-1551).
On May 29, 2007, Plaintiff Royal Indemnity filed the instant
Motion requesting that the Court grant it leave to replace two of
the three stricken expert witnesses; specifically, to replace

Case 1:05-cv-OOO72—JJF Document 173 Filed 06/O1/2007 Page 2 of 4
stricken experts Moore and Schwarcz.l By its Motion, Plaintiffs
contend that denial of leave to replace their experts imposes too
harsh a sanction because they would be left without expert
testimony on the subject of professional responsibility and
standards of care applicable to the conduct of the Pepper
Defendants. In response, Defendantsz contend that Plaintiffs’
emergency Motion is really a motion for reconsideration and they
would be prejudiced by allowing Plaintiff time to replace its
expert witnesses.
The Court is persuaded by Plaintiffs’ argument that they
would suffer undue prejudice by denial of leave to replace two of
the three stricken experts. In support of their opposition, the
Pepper Defendants cite the Court’s recent decision in Bridgestone
in which the Court denied the defendant leave to supplement its
expert reports 136 days before trial. Bridgestone Sports Co.,
Ltd. v. Acushnet, No. 05-132, 2007 U.S. Dist. LEXIS 13347, at *6
(D.Del. Feb. 26, 2007) (emphasis added). The Court finds that
the circumstances here are distinguishable. In Bridgestone, the
Court reasoned that leave to supplement the reports was not
1The Trustee joined in Royal’s Motion but requested leave to
replace all three stricken experts (D.I. 257, 04-1551). The
Court refers to the Trustee and Royal collectively as
“Plaintiffs.”
2 The Pepper Defendants opposition to Plaintiffs' Motion was
joined by Defendants Robert L. Bast, Pamela Bashore Gagné, W.
Roderick Gagné in his capacity as Trustee of the Brennan Trusts,
and the Brennan Trusts. (D.I. 262, 04-1551).
2

Case 1:05-cv-OOO72—JJF Document 173 Filed 06/O1/2007 Page 3 of 4
warranted because defendant had knowingly allowed its expert to
rely on prior art references in disputed patents and plaintiffs
would have been prejudiced by the delay that would result from
supplementation. Further, in Bridgestone, the Court's decision
did not preclude defendants from asserting any defenses to the
patents at issue.
In contrast, in the circumstances here, the Court concludes
that the balance of prejudice favors granting Plaintiffs leave to
replace two of the stricken expert witnesses. As a result of the
Court's decision granting Defendants’ Motion To Strike,
Plaintiffs are without any expert testimony on the issues of
professional responsibility and standards of care; an element of
their prima facie case. Without the opportunity to replace their
experts, Plaintiffs would be severely prejudiced. Further,
expert discovery has not yet commenced and Defendants have not
yet submitted their expert reports. Thus, the Court concludes
that Defendants suffer little prejudice by the delay caused by
Plaintiffs’ submission of the replacement experts' reports.
Accordingly, the Court will grant Plaintiffs’ Motion.
3

Case 1:05-cv-OOO72—JJF Document 173 Filed 06/O1/2007 Page 4 of 4
QBILE.
NOW THEREFORE, IT IS HEREBY ORDERED that:
1) Plaintiffs' Emergency Motion For Leave To Replace Stricken
Expert Witnesses (D.I. 498, 05-165; D.I. 254, 04-1551; D.I.
167, 05-72; D.I. 422, 02-1294) is GRANTED; Plaintiffs shall
submit the expert reports of the replacement experts for
stricken experts Moore and Schwarcz no later than Friday,
June 15, 2007.
2) The parties shall confer and submit a joint proposed Amended
Case Management Order to reflect the deadline above no later
than Wednesday, June 6, 2007.
June 1, 2007 H Q, Q; S? U
UN ED TATE DISTRICT J G
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