Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-01321-SLR Document 100 Filed 02/02/2006 Page 1 of 4
C IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

· Delaware limited partnership, )
Plaintiff, g
v. ; Civil Action No. 04-1321-SLR
TOWN OF ELSMERE, a Delaware g
Municipal corporation, )
ELLIS BLOMQUIST, EUGENE BONEKER, )
and JOHN GILES, ) Jury Trial Demanded
Defendants. g
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION
TO EXTEND CERTAIN DEADLINES
Plaintiff Elsmere Park Club, L.P. ("Plaintiff" or "EPC") opposes Defendants’ requested
amendmentl to the Order entered on November 16, 2005 (the "Scheduling Order") (D.l. 91), and
seeks an order precluding any expert testimony by or on behalf of the Defendants, for the reasons
set forth below.
1. On November 16, 2005, the Court entered a new Scheduling Order extending the
deadlines for expert discovery. Under this Scheduling Order: (a) Plaintiff was required to file
supplemental expert reports on or before December 29, 2005, (b) Defendants were required to
file responsive expert reports on or before January 31, 2006, (c) expert discovery is required to
be complete by February 28, 2006, and (d) case and issue dispositive motions are required to be
filed on or before March 31, 2006. (D.I. 91) (emphasis in original).
2. Plaintiff timely served two supplemental expert reports on December 29, 2005.
3. On January 30, 2006, Defendants’ attorney informed Plaintiffs counsel that the
Defendants would not comply with the Scheduling Order, and that the Defendants needed an
. I Defendants filed their Motion to Extend on January 30, 2006 (D.I. 99). Defendants include the Town of Elsmere,
Ellis Blomquist, Eugene Boneker and John Giles (collectively, the "Town" or "Defendants”).
nam 63412-2

Case 1:04-cv-01321-SLR Document 100 Filed 02/02/2006 Page 2 of 4
additional month to produce one expert report, conceming technical environmental issues
relating to mold. Defendants’ attorney stated that the Defendants would not present a real estate
appraisal or an expert report on any other matter. Defendants asked Plaintiff to consent to an
extension of time of one month for submission of this one expert report.
4. As a preliminary matter, Defendants’ Motion to Extend should be, and presumably is,
limited to seeking an extension of time only for an expert report relating to technical
environmental issues pertaining to mold.
5. Defendants’ request for an extension of time on January 30, 2006 was the first time the
Defendants had indicated to Plaintiff that the Defendants might not be able to comply with the
Scheduling Order.
6. Plaintiffs counsel asked, but Defendants’ counsel refused to identify, who the
Defendants had retained as their technical expert. Defendants’ counsel stated that his refusal to
I identify the expert was based on the fact that the expert was, at least as of January 30, 2006, only
a "consulting" expert, stating that the Defendants had not finally determined whether or not the
expert would testify at trial.
7. Defendants failed to file or provide any expert reports on or before the deadline of
January 3l, 2006.
8. Plaintiff produced its two expert reports within forty-three (43) days of the Scheduling
Order, notwithstanding the difficulty of doing so given the Thanksgiving and Christmas
holidays. Defendants have had an additional thirty-three (33) days within which to prepare their
reports, but failed to do so. The Defendants apparently failed to take any action to retain an
expert witness until very recently, despite the fact that this litigation was filed over fifteen
months ago.
2
DELl 63412-2

Case 1:04-cv-01321-SLR Document 100 Filed 02/02/2006 Page 3 of 4
9. Defendants’ last minute request for a lengthy thirty day extension, coupled with their
unwillingness to identify the expert, indicates that the Defendants may not retain an expert at all,
let alone identify who that expert is.
l0. There is no reason for an extension of time if Defendants do not use a testifying expert.
11. Given the circumstances, Defendants clearly were aware before January 30, 2006 that
they would seek additional time to submit their expert report. Presumably, the Defendants did
not request an extension earlier hoping that the -Court would not rule on their Motion until the
Defendants finally determined if they could find an expert who would provide helpful testimony
and after they provided said expert’s report, thereby (Defendants hoped) mooting the issue.
Defendants should not be rewarded for (a) waiting until after the deadline set in the Scheduling
. Order to determine if they will retain an expert to testify and (b) waiting until well after they `
knew that they would not meet the Scheduling Order’s deadline to provide an expert report to
ask for an extension of time to provide such a report.
12. It is not credible for Defendants to assert that there was not sufficient time to submit
their responsive expert reports. Plaintiffs experts finished their reports by December 29, 2005
and worked feverishly during the holiday season in order to meet the Court’s deadline.
Defendants’ experts could have initiated their reports before the Plaintiffs deadline, and
Defendants have had over a full month more to finalize their reports and rebut Plaintiff" s reports.
Furthermore, Defendants have had since the case was started in the fall of 2004 to retain experts.
Defendants cannot now claim that they need more time.
13. Since the Defendants did not file expert reports in accordance with the Scheduling
Order, they should be precluded from introducing expert testimony at the trial of this matter.
3
DE1.1 63412-2

Case 1:04-cv-01321-SLR Document 100 Filed 02/02/2006 Page 4 of 4
For the reasons stated above, Plaintiff respectfully requests that the Court (a) deny
Defendants’ Motion to Extend Certain Deadlines and (b) enter an Order precluding the
Defendants from offering expert testimony at the trial of this matter.
Dated: February 2, 2006 KLEHR, HARRISON, HARVEY,
BRANZBURG & ELLERS LLP
Byr Q.
David S. Eagle, (Bar No. 3387)
Douglas F. Schleicher, pro hac vice
Patrick A. Costello (Bar No. 4535)
919 Market Street, Suite 1000
Wilmington, DE 19801-3062
(302) 426-1189 (Telephone)
(302) 426-9193 (Fax)
[email protected]
[email protected]
Attorneys for Plaintw
4 .
DELl 63412-2