Wednesday, March 27, 2013

Delaware Promotes A Cherished Value

The Delaware Supreme Court reversed the dismissal of a civil action, concluding that the trial court abused its discretion in dismissing the case.

The court concluded that the strong policy interest in favor of deciding cases on the merits outweighed the interest of moving cases.

The matter involved allegations of medical malpractice. The plaintiff's first attorney discovered at a deposition that he had a conflict of interest and withdrew. The new attorney did not meet a discovery deadline for designating an expert. However, opposing counsel did not complain to the court and discovery proceeded. An expert was eventually identified and deposed.

Opposing counsel nonetheless filed an eve-of-trial motion to exclude the expert testimony for failure to comply with the scheduling order. The court granted the motion and ordered summary judgment for the defendants..

The attorney had sought a conference with the judge to discuss the need to modify the scheduling order. The judge refused the meeting and would not modify the order.

The court noted that

In Delaware, where civility is a cherished value, attorneys are likely to grant extensions to opposing counsel without "bothering" the court. That practice is commendable, and fosters good will. But it also leads to the pedicament that occured here.

Hee, opposing counsel had failed to notify the court of the problem and dealt with counsel for many months. 

The court advised the Bar that where there is a failure to comply with a scheduling order, opposing counsel has "[t]wo choices -- resolve the matter informally or promptly notify the court."

While the result may be more motions and ill-will, the court concluded that such an approach was in the interest of justice. (Mike Frisch)

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