The Coleman Analysis Applies to Untimely Expert Reports

In Kent v. The Dover Ophthalmology, et al., the Superior Court recently clarified the appropriate standard in reviewing a party’s motion to file untimely expert reports.

The Defendants sought to file an untimely supplemental expert report after the Court excluded a portion of Defendants’ causation expert’s opinions, finding them unreliable.  The Defendants urged the Court to apply factors from Christian v. Counseling Resource Associates, Inc., and Drejka v. Hitchens Tire Services Inc. in support of its argument to allow the supplemental report.  The Court found these cases inapplicable and noted that their holdings are confined to situations where a trial court is deciding whether to dismiss a case for discovery violations.

Although the Court’s decision here did exclude a significant portion of the Defendants’ causation expert, the Court noted that the Defendants did not bear the ultimate burden of proof at trial, Defendants’ expert could attack the Plaintiffs’ expert’s opinions, and the Defendants intended to call other witnesses to rebut liability and damages.

The Court found the Coleman standard applicable and balanced the following factors to deny Defendants’ Motion to File a Supplemental Disclosure:  1) the terms of the original scheduling order; 2) whether good cause exists to allow the supplemental disclosure; 3) prejudice to the opposing party; and 4) possible trial delay. Applying the above factors to the case sub judice, the court found: a six month delay in complying with the original scheduling order evinced “substantial noncompliance;” good cause was not shown because the Defendants had three opportunities to disclose the bases for their causation expert’s opinions; Plaintiffs would face substantial prejudice as trial was only days away; and trial would be delayed because based on Defendants’ representations, a second motion to reargue, accompanied by full briefing, would follow.

Read the full opinion here.

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