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 September 6, 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 Upon Plaintiffs Motion to Strike the Expert Report and Deposition Testimony of Gregory V. Serio and to Preclude from Testifying - GRANTED. Upon Plaintiffs other Motions to Strike and/or Preclude Testimony DENIED. Upon Defendants Motions in Limine to Preclude Testimony - DENIED. Dear Counsel: This addresses both sides motions to limit or exclude opposing experts: Gregory V. Serio, Douglas Talley, F. Ford Loker, John Santapaola, Edward Gabrielson, Roger A. Quigley, James L. Britt, George L. Priest, Dennis Connolly, and Bernd G. Heinze. As explained in the Kensicki order, the trial will resolve all 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 September 6, 2012 Page 2 potential factual disputes.1 Accordingly, the court will not now decide whether the policies are unambiguous, and the trial will proceed on the presumption that the policies must be construed with the jury s help. The trial will also proceed under the presumption that the underlying policies have not been exhausted. As to both side s experts, regardless of whether their expertise is academic or practical, each is generally qualified to assist the jury. If, while testifying, an expert opines on an ultimate fact, so be it. Opposition to an expert s competence and testimony is better left to cross-examination. Additionally, several experts purportedly will testify against Chancellor Strine s previous holdings, the law of the case. No expert will confuse or mislead the jury by testifying contrary to the law of the case established by Chancellor Strine s rulings. To the limited extent that the jury must be instructed on the law, given the trial s preoccupation with the facts, the Court will charge. As to Gregory V. Serio, Chancellor Strine held that an all sums approach is the one embraced by the Houdaille policies. 2 Serio cannot question that. Otherwise, Defendants offer him for his regulator s perspective about how multitiered insurance programs operate, and to educate the jury on the insurance markets financial health and integrity. This proffer is vague and fails to satisfy the court about its relevance to the narrow, factual issues that will be put before the jury. Additionally, Defendants fail to show how Serio s testimony will be a productive use of our limited time. For these reasons, Plaintiffs Motion to Strike and Preclude Serio s testimony is GRANTED. In closing, it remains to be seen whether every listed expert will need to testify. In most instances, each side touts an expert to rebut another. For example, Excess Insurers state, [I]f Mr. Connolly may testify, then so may Mr. Heinze. 1 See Transaction ID 46065519. 2 Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 119 (Del. Ch. 2009). 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 September 6, 2012 Page 3 Additionally, Plaintiffs argue: Travelers in particular has proffered James Robertson as an expert to testify with regard to the meaning of the very same Aetna policies as Mr. Britt ; Defendants [moved] to exclude Mr. Loker, . . . yet Plaintiffs have not moved to disqualify Mr. Hugo, Defendants own expert on the same topic ; and Mr. Talley s . . . testimony was offered to rebut Mr. Heinze. After Plaintiffs experts direct and cross-examination, there may be nothing for Defendants experts to add, but that is not for the court to say here. Each party will decide how to use its allotted time. For the foregoing reasons, Plaintiffs motions to strike as to: Bernd G. Heinze, George L. Priest, Roger A. Quigley, and John Santapaola are DENIED. Plaintiffs Motion to Strike and Preclude Gregory V. Serio is GRANTED. Defendants motions in limine as to: James L. Britt, Dennis Connolly, Edward Gabrielson, F. Ford Loker, and Douglas Talley are DENIED. IT IS SO ORDERED. Very truly yours, /s/ Fred S. Silverman FSS:mes oc: Prothonotary (Civil)
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