Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01321-SLR Document 73 Filed 10/11/2005 Page 1 of 3
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
222 Delaware Avenue, 10th Floor
Wilmington, Delaware 19801-1621
~ (302) 888-6800
Facsimile (302) 571-1750
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Edward M. McNally Mailing Address
(302) 888-6880 P.0. Box 2306
[email protected] Wilmington, DE 19899-2306
October 11, 2005
VIA HAND DELIVERY AND CM/ECF
The Honorable Sue L. Robinson
Chief Judge i °
U.S. District Court for the District of Delaware
844 North King Street
Wilmington, DE 19801
( Re: Elsmere Park Club, L.P. v. Town of Elsmere, et al.
. Civ. No. 04-1321-SLR
Dear Judge Robinson:
On October 6, 2005, the Plaintiff Elsmere Park Club served a "supplemental report" of
Larry W. Johnson (D.I. 71). That report was 50 days after the cut-off date for expert reports and
two weeks after the deadline for Daubert motions. By this letter, Defendants seek the guidance
of the Court.
Briefly, this case arises from the contention of Plaintiff that the Defendants have violated
the constitutional rights of Plaintiff by the condemnation and evacuation of Plaintiff s apartments
located in Elsmere, Delaware, owing in part to pervasive mold infestation. The Court entered a
Scheduling Order on January 20, 2005 (D.I. 12), amended by stipulation of the parties on June
13, 2005 (D.I. 26). Pursuant to the Amended Scheduling Order, expert reports were due by
August 15, 2005, rebuttal expert reports by September 15, 2005, and Daubert motions due by
p September 23, 2005. Discovery closed on August 22, 2005; that date was also the deadline for
supplementation pursuant to Fed. R. Civ. Pro. 26(e).
Plaintiff served the Expert Report of Larry W. Johnson ("Johnson") on August 23, 2005.
Johnson was deposed by Defendants on September 14, 2005. During Johnson’s deposition, he
testified that it would be impossible to definitively determine the costs of remediation of the
contaminated apartments at issue in this case without observing any "hidden damage" present.
(D.I. 66 at C—399). Without regard to Johnson’s swom testimony, Plaintiff now seeks to admit
Dover (302) 678-8815 Broom Street (302) 655-2599 Newark (302) 368-4200

Case 1 :04-cv-01321-SLR Document 73 Filed 10/11/2005 Page 2 of 3
The Honorable Sue L. Robinson MoR1us,]AMEs, HITCHENS & WILLIAMS LLP
October ll, 2005
Page 2
into evidence an alleged "supplemental report" by Johnson, which estimates the cost of
remediation at $292,100. I
This litigation-driven estimate is generated in response to Defendants’ Motion In Lirnine
to Exclude the Expert Report and Testimony of David J. Wilk. (D.I. 55). Wilk’s report valued
the apartments at issue in the absence of environmental contamination, and Defendants’ Daubert
motion pointed out that remediation costs must by included in a proper valuation, as a matter of
law. (Id.). Plaintiff seeks to admit a "supplemental report" by Johnson that both exceeds the
scope of his original reports and directly contradicts his own prior testimony. This is being done,
plainly, in an improper effort to defeat Defendants’ Motion In Limine. As evidence of this fact, I
attach hereto a letter from Plaintiffs counsel, indicating that the report of David Wilk, combined
with the newly-proffered "supplemental report" now "estab1ishes the fair market value" of the
Apartments.
The "supplemental report," is prohibited by Rule 26(e)(l). That rule permits
supplementation of an expert report only as required to correct information contained in the
expert’s report or provided through the expert’s deposition. Here, the "supp1ement" is merely an
attempt to make an end-run around both this Court’s Scheduling Order and arotmd the
Defendants’ Motion in Limine. It does not correct a misapprehension, misstatement or other
error of fact—it merely adds an additional layer of putative "evidence" to bolster Plaintiffs
claim. In light of the tiling of J ohnson’s "supp1emental" report after the close of discovery, and
after the deadline for fi1ing»Daubert motions, and the dubious purpose for which the
"supplement" is submitted, this putative "supplement" is properly excluded as untimely.
The prejudice to Defendants is plain. Defendants carmot file a Daubert motion as to the
supplemental report, as the time to do so has passed and they cannot submit a rebuttal report, as
the time to do so has passed. Trial is soon. Hence, Defendants need relief from this too—late tiling
and we therefore respectfully request that the Court hold a conference to discuss this problem.
Plaintiff has offered to let Defendants tile yet another Daubert motion next month, in
` violation of the Court’s Scheduling Order. Of course, that would put the Defendants in violation
of the order, may cause the Court to decline to hear the motion and, in any case, does not cure
the failure to give the Defendants an opportunity to submit a rebuttal report.
1 The "supplement," is not only in derogation of Mr. J ohnson’s sworn testimony, but his estimate
of the costs of remediation is meaningless, in light of the submission of the actual costs, to date,
which exceed Mr. J ohnson’s belated estimate by more than $600,000. The third-party purchaser
of the apartments at issue submitted to Defendants a copy of their costs, to date, in performing
the remediation of the apartments. D.I. 58. Their costs have approached $1 million. Q

Case 1:04-cv-01321-SLR Document 73 Filed 10/11/2005 Page 3 of 3
The Honorable Sue L. Robinson MORRIS,]AMES, H1TcHENs & WILLIAMS LLP
October 1 1, 2005
Page 3
Of course, I am available at the COl1I't’S convenience to address any questions or concerns
raised hereby.
Respectfully submitted, 1
Edward M. McNally (#614)
[email protected]
Enclosure
cc: David S. Eagle, Esquire (w/enclosure; via CM/ECF)
A 1297520/1