Town of Georgetown v. David A. Bramble Inc. et al

Filing 185

MEMORANDUM ORDER regarding pretrial issues and rulings on motions in limine. Signed by Judge Leonard P. Stark on 8/2/17. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TOWN OF GEORGETOWN,
a municipal corporation
Plaintiff,
v.

C.A. No. 15-554-LPS

DAVID A. BRAMBLE, INC. and
LIBERTY MUTUAL INSURANCE COMPANY,
Defendants,
v.
LEE RAIN, INC., a foreign corporation, and
TRAVIS PATTERN & FOUNDRY INC.,
a foreign corporation
Third-Party Defendants.

MEMORANDUM ORDER
Having reviewed the parties' proposed final pretrial order and attachments (D .I. 184)
('_'PTO"), and with the pretrial conference ("PTC") to be held tomorrow, and the jury trial in this
matter to begin on August 14, IT IS HEREBY ORDERED that:

1.

The parties' various objections contained in footnotes in the PTO (see, e.g., at p.

13 n.8, p. 15 n.10, p. 22 n. 13), which largely relate to whether a particular issue is contested or
uncontested, or is an issue oflaw or of fact, are OVERRULED, as the Court determines that the
parties are simply preserving their rights. The Court will make necessary evidentiary decisions at
trial.
2.

With respect to deposition testimony designated by Defendants to be read or

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played to the jury at trial (see PTO at 30-32), the Court OVERRULES WITHOUT PREJUDICE
Plaintiffs generalized objection (PTO at 30) to "all portions, identified by Defendants." The
PTO contains the maximum universe of deposition designations and counter-designations, as
well as the maximum universe of objections to such designated testimony. It is anticipated that
as the parties finalize their trial presentations, the amount of designated testimony will likely be
narrowed.
In any event, and subject to the foregoing, should any objections to deposition testimony

remain following appropriate meet and confers, the following procedures will be used to resolve
such objections:
a.

Each party will identify specific excerpts of prior testimony that it intends

to introduce by 6:00 p.m. two (2) calendar days before the start of the trial day on which that
witness's testimony will be offered. (For example, witnesses to be called by designation on
Monday must be disclosed by 6:00 p.m. the preceding Saturday, along with their proposed
testimony.)
b.

The other side must identify any objections to the designated testimony,

and any counter-designations, no later than 9:00 p.m. that same day.
c.

The parties shall meet and confer as to any objections no later than 12:00

p.m. the calendar day before the trial day on which that witness's testimony will be offered.
d.

Any unresolved objections will be submitted to the Court in a joint

submission by 6:00 p.m. that same day. The joint submission shall include (i) a copy of the
entire proposed testimony of the witness at issue, clearly highlighting the designations and
counterdesignations; and (ii) a cover letter identifying the pending objections, as well as a brief

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indication (no more than one sentence per objection and response) of the basis for the objection
and the offering party's response to the objection.
Failure to comply with these procedures, absent an agreement by the parties and approval
by the Court, will result in waiver of the use of the testimony or waiver of objection to the use of
the testimony.
3.

The PTO contains. the maximum universe of exhibits that may be offered into

evidence as well as all objections that may be offered to the admission of such exhibits, absent
agreement among the parties or subsequent Order of the Court based upon a finding of good
cause. If, after disclosure by a party of the specific exhibits or demonstratives to be used with a
witness (or in opening statements or closing arguments), objections remain, the parties must
bring those objections to the Court's attention no later than the morning on which they anticipate
that the exhibit will be used in trial. Failure to comply with these procedures will result in
waiver of the use of the exhibit or waiver of the objection.
4.

Trial will begin, as has long been the schedule, on Monday, August 14. The case

will be submitted to the jury no later than August 21. Counsel must appear each morning of trial
at 8:30 a.m. The jury will be available each day from 9:00 a.m. to 5:00 p.m. other than on the
first morning, when the jury pool is available beginning at 9:30 a.m. for jury seledion.
The Court has determined that this case can be reasonably, fairly, and effectively tried in
a maximum of twenty (20) trial hours. Parties will be charged time for direct, cross, and
redirect examinations they conduct (including any testimony presented by deposition), opening
statements and closing arguments they offer, time spent reading uncontested facts to the jury, and
for arguments they make on any objections or motions outside the presence ofthe jury. The only
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times that are not charged to any party are the time spent on jury selection, jury instruction
(preliminary and final), jury deliberations, and any argument the Court permits on disputed jury
instructions:
As the PTO contains unreasonable 1 and insufficiently specific requests for trial hours, the
parties shall meet and confer and SUBMIT, no later than 2:00 p.m. tomorrow, August 3, their
specific proposal(s) for how to split the 20 hours among the five parties appearing at trial.
5.

Plaintiffs motion in limine ("MIL") #1, to exclude certain testimony (e.g.,

pertaining to issues of causation or hypothetical alternative designs) that may be offered by
Defendants from Scott Adkisson, is DENIED. Defendants will be permitted to present fact
testimony from Adkisson, the design professional who designed the Pettyjohn Woods System
("System") about which this trial is concerned. The examples of supposed "hypotheticals"
referenced by Plaintiff are not hypotheticals that call for expert testimony. See generally Donlin
v. Philips Lighting N Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009) ("When a lay witness has
particularized knowledge by virtue of her experience, she may testify- even ifthe subject matter
is specialized or technical - because the testimony is based upon a layerson's personal
knowledge rather than on specialized knowledge. within the scope of Rule 702."). However,
Defendants will not be permitted to elicit expert testimony from Adkisson, as he has never been

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The Court expressly advised the parties at the motions hearing in late June that this case
"strikes me as more like a five day trial than ten day trial." (Tr. at 103; see also id. at 104 ("I do
want you to start thinking that this is more likely to be something we fit into one week in this
court than two weeks.")) More particularly, the Court stated its expectation that by the time of
the PTC "my supposition is that I will come out with a number on the order of 10 to 12 [hours
per side] instead 20 to 25." (Id. at 107-08) Nonetheless, in the PTO Plaintiff requests 18 hours
for its trial presentation and Defendants Bramble and Liberty "request 30 hours Gointly) for their
trial presentation." (PTO at 37)
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designated in this case as an expert. The Court will rule at trial on any specific objections that
are made that a particular question calls for expert testimony.
6.

Plaintiffs MIL #2, to preclude testimony and argument that "low point drains"

were necessary to the design of the System, is DENIED. Contrary to Plaintiffs assertion, the
Court is not persuaded that what Defendants propose to do at trial "would be highly improper
and would greatly confuse the jury." Plaintiffs objection to Defendants' proposed evidence and
argument is based on factual disputes, which will be the responsibility of the jury to resolve.
Further, Defendants' experts will be permitted to testify consistent with their reports and
disclosed opinions, as no proper basis for excluding such testimony has been identified by
Plaintiff.
7.

. Plaintiff's MIL #3, to exclude the testimony of Travis expert Paulsen, is DENIED.

Travis has met its burden to show that Paulsen's opinion is sufficiently reliable, will be of
assistance to the jury, and meets all of the requirements for admissible expert testimony.
Plaintiffs criticisms go to the weight that.should be accorded to the witness's testimony, not its
admissibility. See also generally Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008)
(noting liberal policy in favor of admissibility).
8. ·Defendants' MIL #1, to exclude Plaintiffs attorneys' fee evidence, is GRANTED.
As in U.S. Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34, 77 (2d Cir. 2004), here the
Court "grapple[s] with a contract term that is susceptible to two, equally valid interpretations."
Plaintiff fails to respond to Defendants' assertion that, under the circumstances, the relevant
provision(s) should be construed against it. See generally Twin City Fire Ins. Co. v. Delaware
Racing Ass 'n, 840 A.2d 624, 630 (Del. 2003) ("[A]mbiguities in a contract should be construed
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against the drafter."). Moreover, "[u]nder the American Rule and Delaware law, litigants are
normally responsible for paying their own litigation costs." Mahani v. Edix Media Grp., Inc.,
935 A.2d 242, 245 (Del. 2007). For that reason, in actions at law, "attorney's fees will not be
awarded 'uhless clearly provided for by statute or contract.'" Pedrick v. Roten, 70 F. Supp. 3d
638, 653 (D. Del. 2014) (quoting Honaker v. Farmers Mut. Jns. Co., 313 A.2d 900, 904 (Del.
Super. Ct.1973)); see also Nat'l Union v. Rhone-Poulenc, 1995 WL 1791083, at *2 (Del. Ch.
Mar. 17, 1995). That standard is not met here. The Court is unable to conclude that the
attorneys' fees Plaintiff seeks to recover are "legal ... costs resulting from the Contractor's
Default, and resulting from the actions of or failure to act of the Suret[y]." Braspetro, 369 F.3d
at76-77. 2
9.

Defendants' MIL #2, to preclude Plaintiff from presenting its damages "estimate,"

is DENIED except to the limited extent stated below. For the reasons explained by Plaintiff,
there is no meritorious basis to deny Plaintiff the opportunity to present evidence and argument
that it has a "need" for a System replacement (as defined by Plaintiff in its opposition) and that
Plaintiff was told by Defendants (and/or individuals or entities associated with Defendants) that
the costs for that replacement are as identified in the "estimate." Defendants have pointed to no
unfair prejudice that will,. result from pemi.itting Plaintiffs to proceed in the manner the Court has
described. However, Defendants' motion is GRANTED to the limited extent that Plaintiff will

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Plaintiffs citation to Hicks & Warren LLC v. Liberty Mut. Ins. Co., 2011WL2436703
(S.D.N.Y. 2011), does not persuade the Court that it should deny the motion. In Hicks, there was
strong extrinsic evidence of the parties' intent to shift fees. See id. at *6 ("Indeed, ifthe express
fee-shifting provision in Paragraph 29 of the underlying Contract is an indication of the parties'
intent, the 'legal costs' covered in Paragraph 6.2 of the Bond should include attorneys' fees·
incurred in disputes over the Contract.").
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not be permitted to offer evidence (including expert opinion) or argument that the amounts listed
in the ,"estimate" are actually the amounts "the Town would need to pay to obtain the identical
above-ground system it J.10W seeks to replace," as Plaintiff did not timely disclose an expert or
other evidence to support this contention, and it would unfairly prejudice Defendants to permit
Plaintiff to do so at this late date. Thus, while Plaintiff can attempt to prove that the "estimate"
numbers are what Plaintiff was told it would cost to replace the System, Plaintiff cannot
attempt to prove that the "estimate" numbers are actually what it would cost to do so.
10.

Defendants' MIL #3, to preclude Plaintiff from presenting information and

evidence it supposedly "produced nine months after the close of fact discovery," is DENIED.
The Court agrees with Plaintiff that the evidence in dispute is better characterized as timely
supplementation of previously-produced evidence rather than as untimely produced new
discovery. Defendants have also failed to persuade the Court they have been unfairly prejudiced
by the timing of Plaintiffs production.
11.

The parties shall be prepared to discuss, at the PTC tomorrow,·how the Court

should proceed with respect to the motion filed yesterday by Selective Insurance (D.I. 182).

August 2, 201 7
Wilmington, Delaware

HONO BLE LEON
. ST
UNITED STATES DISTRICT JUDGE

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