Creasy v. Georgia Pacific ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
FRANKLIN E. CREASY, as Executor )
of the Estate of HERBERT E. )
CREASY, deceased, and MARILYN )
CREASY, )
)
Plaintiffs, ) C.A. No. N15C-01-218 ASB
)
v. )
)
GEORGIA PACIFIC, et al., )
)
Defendants. )
August 28, 2017
Upon Plaintiffs’ Appeal of Plaintiffs’ Motion to Move Trial Grouping
and Reopen Discovery to Supplement Expert Report.
AFFIRMED.
This is an appeal from the Special Master’s July 28, 2017 decision denying
Plaintiffs’ Motion to Move Trial Grouping and Reopen Discovery to Supplement
Expert Report. Plaintiffs filed the Complaint on January 28, 2015 against numerous
Defendants. The case was initially scheduled for trial in June 2017. Plaintiffs’
expert reports were due November 18, 2016. Their original expert pathologist
became ill, and Plaintiffs sought an extension of the expert report deadline. The
parties agreed to move the trial to September 2017 and extend the expert deadline.
Plaintiffs retained Mark Ginsburg, M.D. as their new expert, and Plaintiffs filed Dr.
Ginsburg’s report on March 9, 2017. Defendants filed a motion for summary
judgment on April 7, 2017 arguing that Dr. Ginsburg’s expert report was insufficient
under Virginia law. On May 5, 2017, Plaintiffs filed their motion to reopen
discovery in lieu of a response. The Special Master analyzed Plaintiffs’ request
under Delaware’s good cause standard, Rule 56(f) for reopening discovery, and
under the Delaware Supreme Court’s decision in Drejka. The Special Master found
that Plaintiffs did not meet their burden to demonstrate good cause to reopen
discovery, they did not properly seek relief under Superior Court Civil Rule 56, and
even if Drejka applied, that the Plaintiffs have not made out a case for relief.
The Court reviews the Special Master’s legal and factual findings de novo.1
This Court agrees that Plaintiffs have not met their burden to show good cause to
reopen discovery. This Court is “not required to allow a plaintiff to supplement a
previously submitted expert report after the expert report cutoff has expired if there
is no good cause to permit the untimely filing.”2 “Good cause is likely to be found
when the moving party has been generally diligent, the need for more time was
neither foreseeable nor its fault, and refusing to grant the continuance would create
a substantial risk of unfairness to that party.”3
1
DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999); see also In re Asbestos Litig.,
623 A.2d 546, 548 (“Masters’ decisions on pre-trial, non-dispositive issues should
be reviewed under the clearly erroneous standard, while decisions which are case
dispositive or which determine substantial issues and establish legal rights should be
subject to de novo review.”).
2
Moses v. Drake, 109 A.3d 562, 566 (Del. 2015).
3
Id.
As Defendant points out, Plaintiffs provided an extensive witness list of
medical causation experts to use in Plaintiffs’ case. Defendant agreed to extend the
initial expert deadline from November 18, 2016 to December 9, 2016. Additionally,
per Plaintiffs’ request, the trial was moved from June 2017 to the September 2017
asbestos trial calendar. Thus expert report deadline moved to February 28, 2017.
Again, at Plaintiffs’ request, the expert deadline was extended to March 10, 2017.
Plaintiffs’ filed a Notice of Service of Dr. Ginsburg’s expert report on March 9,
2017. On April 7, 2017, Defendant filed a Motion for Summary Judgment based on
a claim that Plaintiffs’ March 9 expert report is deficient under Virginia substantive
law. Based on these facts before the Court, Plaintiffs did not demonstrate substantial
risk of unfairness. Rather, Plaintiffs now ask to re-open discovery because their
expert report is subject to scrutiny under Virginia law, which was declared the
substantive law in this case on December 20, 2016. Additionally, this Court agrees
with the Special Master, concluding that Drejka does not apply to Plaintiffs’ case.4
This is not the case where there is a discovery violation, a violation of the trial
scheduling order, or a motion in limine to exclude the expert report. Rather, Plaintiffs
ask the Court to grant Plaintiffs relief because Defendant’s motion for summary
judgment claims that Plaintiffs’ expert report is deficient under Virginia law.
Although the original expert’s death was an unforeseeable event, Defendant
4
Drejka v. Hitchens Tire Service Inc., 15 A.3d 1221, (Del. 2010).
accommodated Plaintiffs numerous times throughout the course of this litigation,
and Plaintiffs did in fact file an expert report in March. For the aforementioned
reasons, the Special Master’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.