Viking Pump, Inc., et al. v. Century Indemnity Company, et al.
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SUPERIOR COURT OF THE STATE OF DELAWARE FRED S. SILVERMAN NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669 JUDGE August 23, 2012 (VIA E-FILED) John E. James, Esquire Potter Anderson & Corroon LLP Hercules Plaza - Sixth Floor 1313 North Market Street Wilmington, DE 19801 RE: John D. Balaguer, Esquire White and Williams LLP 824 North Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19899-0709 Viking Pump, Inc., et al. v. Century Indemnity Company, et al. C.A. No. 10C-06-141 FSS CCLD Plaintiffs Motion to Strike the Expert Report of Dr. Peter R. Kensicki and to Preclude Dr. Kensicki from Testifying at Trial DENIED. Dear Counsel: In denying this narrow motion, the court will first address the upcoming trial broadly. For the reasons set-out in the November 15, 2011 order denying all motions for summary judgment, the trial will resolve all potential, factual disputes. Accordingly, the court will not now decide whether the policies are unambiguous, as a matter of law. Therefore, the trial will precede on the assumption that the policies must be construed with the jury s help. As to Dr. Kensicki, specifically, regardless of whether his expertise is mainly academic, he is qualified to help the jury understand deductible and selfretention clauses. It may also help if Dr. Kensicki, as an insurance law specialist, tells the jury it can simply use common sense to construe those clauses. If, in the process, Dr. Kensicki offers his opinion on the ultimate fact, even if it is based on his John E. James, Esquire John D. Balaguer, Esquire Viking Pump, Inc., et al. v. Century Indemnity Company, et al. C.A. No.: 10C-06-141 FSS CCLD Letter/Order August 23, 2012 Page 2 common sense, so be it.1 Basically, Plaintiffs opposition to Dr. Kensicki s competence and common sense are better left to cross-examination. In closing, it remains to be seen whether Dr. Kensicki will need to testify. First, Plaintiffs call the policy language plain, and Dr. Kensicki sees it similarly. Thus, the parties seem to tacitly agree that the court should resolve this issue, as a matter of law, after trial. Second, Plaintiffs tout their expert. After Plaintiffs expert s direct and cross-examination there may be nothing for Dr. Kensicki to add, but that is not for the court to say here. If it comes to it, it is difficult to see how Dr. Kensicki s testimony direct, cross examination and redirect - should take more than a half hour. This order does not impose a time-limit on Dr. Kensicki, but the parties are again reminded about the trial s time constraints. In the end, one party s witness s testimony may come at the expense of another. The parties must budget their time accordingly. For the foregoing reasons, Plaintiffs motion to exclude Dr. Kensicki s testimony is DENIED. IT IS SO ORDERED. Very truly yours, /s/ Fred S. Silverman FSS:mes oc: Prothonotary (Civil) 1 D.R.E. 704 ( Testimony in a form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. ).
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