Pallano ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
ANAJAI CALCAÑO PALLANO, et al., )
)
Plaintiffs, )
)
v. ) C.A. No. N09C-11-021 JRJ
)
THE AES CORPORTATION, et al., )
)
Defendants. )
ORDER
AND NOW TO WIT, this 29th of September, 2015, the Court having duly
considered Defendants’ Notice of Exceptions to the Special Master’s Ruling of
May 22, 2015; 1 and Plaintiffs’ Response,2 IT APPEARS THAT:
1. Special Master Slights has issued two letter opinions on Defendants’
Motion to Compel Production of Documents Pertaining to Dr. Cynthia Bearer. 3
Following the first letter opinion, Defendants filed a Motion for Reconsideration
and Clarification. The Special Master granted the Motion for Reconsideration and
issued a second letter opinion granting in part and denying in part Defendants’
1
Defendants’ Notice of Exceptions to the Special Master’s Ruling of May 22, 2015 Pursuant to
Super. Ct. Civ. R. 122 (“Defs.’ Br.”) (Trans. ID. 57401400).
2
Plaintiffs’ Response to Defendants’ Notice of Exceptions to the Special Master’s Ruling of
May 22, 2015 Pursuant to Super. Ct. Civ. R. 122 (Trans. ID. 54735665).
3
(Trans. ID. 56705451).
Motion to Compel Production. 4 The Special Master’s decision is subject to de
novo review. 5
2. At issue here is the Special Master’s determination that Plaintiffs are not
required to produce “communications between Plaintiffs’ Counsel and Dr. Bearer
as fact witness” “[b]ecause Defendants can discover what they seek through expert
discovery.” Plaintiffs maintain that they did not know, nor should they have
known, of the causation link between their injuries and Defendants’ coal ash waste
until June 2009, when Dr. Bearer traveled to the Dominican Republic to examine
Plaintiffs. After her examination, Dr. Bearer communicated her findings to
Plaintiffs’ counsel, who then communicated actual notice of potential claims
against Defendants to Plaintiffs. Because Plaintiffs retained Plaintiffs’ counsel at
the same time that Plaintiffs’ counsel communicated actual notice of claims to
Plaintiffs, any knowledge that Plaintiffs’ counsel had before that meeting,
including anything communicated to them by Dr. Bearer, cannot be imputed to
Plaintiffs.6
3. Defendants argue that Dr. Bearer’s written communications with counsel
are discoverable because Dr. Bearer is both a fact and an expert witness, and,
therefore, communications between Dr. Bearer and Counsel are relevant to what
4
Letter Opinion (May 22, 2015) (Trans. ID. 57283025).
5
Super. Ct. Civ. R. 122.
6
Letter Opinion at 2–4.
2
the Plaintiffs should have known.7 As stated by Defendants, “[t]he critical
question is not merely when Dr. Bearer’s information became attributable to
Plaintiffs, but whether she imparted anything new that Plaintiffs could not
previously have discovered.” 8
4. The Special Master permitted discovery on “any facts and data
considered by Dr. Bearer, as testifying expert, in formulating her expert opinion.
To the extent such facts and data considered and relied upon by Dr. Bearer include
data, assumptions or impressions from Plaintiffs’ Counsel, such information would
fall within the scope of the discovery.” 9 The Special Master explicitly included
“those opinions reviewed or generated by Dr. Bearer in her capacity as a
consulting expert.”10 Furthermore, the Special Master recommended that
Defendants be allowed to depose Dr. Bearer “thoroughly” on the basis for her
expert opinion on causation.11
5. On the separate subject of potential communications between Dr. Bearer
and Pennsylvania counsel, the Special Master denied discovery of any written
communications between Dr. Bearer and Pennsylvania counsel because the
Plaintiffs’ privilege log reflected that no pre-June 2009 written communications
7
Defs.’s Br. 1–2.
8
Id. at 3.
9
Letter Opinion. at 9–10.
10
Id. at 13.
11
Id. at 14.
3
occurred between Dr. Bearer and Pennsylvania counsel. 12 However, Defendants
were permitted to depose Dr. Bearer, as a fact witness, on any pre-June 2009 oral
communications she may have had with Pennsylvania counsel.13
6. The Special Master concluded: “Because Defendants can discover what
they seek through expert discovery, I decline to order (over Plaintiffs’ privilege
objections) production of communications between Plaintiffs’ Counsel and Dr.
Bearer as fact witness.” 14
7. Dr. Bearer is an expert witness on causation for the Plaintiffs. Plaintiffs
have been ordered to produce all materials generated or reviewed by her in the
formation of her expert opinion. Additionally, Defendants are able to depose Dr.
Bearer on the basis for her expert opinion on causation.
8. Upon de novo review, the Court concludes that Defendants have ample
opportunity, through expert discovery, to discover what information was
discoverable by Dr. Bearer, that may also have been discoverable by Plaintiffs. 15
9. WHEREFORE, the Special Master’s May 22, 2015 recommendation is
APPROVED, and Defendants’ Notice of Exceptions is DENIED.
12
Id. at 11.
13
Id.
14
Id. at 14.
15
See Super. Ct. Civ. R. 26 (“The frequency or extent of use of the discovery . . . shall be limited
by the Court if it determines that: . . . (ii) the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought.”).
4
______________________________
Jan. R. Jurden, President Judge
5