Failure to Timely Submit Supplemental Expert Report Leads to Denial of Motion for Leave Superior Court of Delaware, August 8, 2018
DELAWARE — The plaintiff moved for leave to submit a supplemental expert report after a change in substantive Ohio law. The court had previously granted summary judgment in favor of four defendants. Specifically, the defendants argued that summary judgment was proper based on the Ohio Supreme Court’s recent decision in Schwartz which found theories advanced on cumulative exposure as invalid to establish substantial factor causation. In the instant matter, The plaintiffs submitted an expert report from Dr. Ginsberg 8 months prior to the deadline imposed by the pre-trial scheduling order. Dr. Ginsberg’s report stated that it was his “opinion, to a reasonable degree of medical certainty, that the cumulative exposure from each company’s asbestos product or products was a substantial contributing factor in the development of Mr. Richardson’s malignant mesothelioma.” Several months later, the court’s decision in Schwartz was issued rendering the cumulative exposure theory insufficient to establish substantial factor causation. The plaintiffs moved for leave to supplement based on the new substantive law. The plaintiff took the position that they timely filed the original report 8 months prior to their deadline. Moreover, the change in substantive law did not take place until after the expert report was due. However, the Court pointed out that the plaintiff did not submit the motion for leave until 81 days after the expert report deadline and service of defendants’ motions for summary judgment which cited the Schwartz opinion. Accordingly, the court found no good cause or excusable neglect for the plaintiff’s motion for leave. Therefore, the motion was denied.