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Delaware Trial Practice Blog

Stay Up To Date On Delaware State Court Matters

Delaware Supreme Court Adjusts the Assessment For Admission Pro Hac Vice

Posted in Civil Procedure, Delaware Supreme Court

The Delaware Supreme Court has amended Rules 71 and 72 related to the assessment for an application for admission pro hac vice.  Since 2002 the fee has been $300.  Effective February 1, 2015, it will be $375 and in calendar year 2016 it will increase to $400.  In 2017 and beyond the fee will increase annually by the rate of inflation as determined by the Court.  The amendments may be viewed in their entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Superior Court – Complex Commercial Litigation Division

Posted in Uncategorized

President Judge Vaughn now Justice Vaughn‘s movement to the Supreme Court created a vacancy on the CCLD panelAdministrative Directive 2015-1, names Judge Davis to the panel of CCLD judges.  The panel now consists of:

  • President Judge Jurden
  • Judge Carpenter
  • Judge Johnston
  • Judge Davis

See our previous post on the CCLD here.

The Court also issued Administrative Directive 2015-2, which states the judicial assignments for 2015.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Expert reports cannot be based merely on “common sense”; that’s common sense!

Posted in Delaware Superior Court, Evidence

In Knott v. Covert, C.A. No. K13C-05-006-RBY, decided January 15, 2015, the Delaware Superior Court (Young, J.) excluded an expert report for failing to meet the admissibility requirements of Delaware Rule of Evidence 702 because it was based entirely on “common sense” rather than scientific expertise.

This case involved an automobile collision.  The defendant, Deborah Covert, moved to exclude the expert report prepared by co-defendant Nationwide Insurance Co.’s expert, William C. Camlin.  The Camlin Report disputed defendant Covert’s claim that her car was hit from behind by another unidentified driver, which resulted in a domino effect that ultimately, and unavoidably, caused her car to collide with Plaintiff’s car.  According to defendant Covert, the Camlin Report was based on the depositions of the Plaintiff and Covert, the photographs of Plaintiff’s and defendant Covert’s vehicles, and the accident report.  Based on these materials, Camlin observed “a slight scuff mark in the approximate center of the rear bumper with slight scratches on the leading edge of the rear bumper in the area of the meeting for the trunk lid.”  (Opinion at 5-6.)  Further, Camlin’s concluded that the damage to defendant Covert’s rear bumper could not have been caused by vehicular impact.  (Opinion at 6.)

Defendant Covert argued that these observations are not “scientific, technical, and/or specialized,” and could easily be grasped by the jury; hence, they are not instructive.  The Court agreed, concluding that “Camlin’s note regarding the location of the scuff mark on the rear of the car is something ‘within the common knowledge of the jury,’ and further something the jury is ‘equally competent to form an opinion about.’”  (Opinion at 6.)  As such, the Court concluded that Camlin’s Report ”cannot be said to assist the trier of fact to understand the issue or to determine a fact in issue” as required by Delaware Rule of Evidence 702.  (Id.).

This result is soundly in keeping with D.R.E. 702 and the U.S. Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion.  The bottom line is, if your expert report is merely saying something that a lay person could have figured out, then it will likely be excluded.

 

 

Family Court Has Updated the Delaware Child Support Formula

Posted in Child Support, Delaware Family Court

The Family Court has updated the Delaware Child Support Formula and related Rules.  Some of the notable changes, which became effective on January 1, 2015, are:

  • Minimum income – The minimum income attributable to a parent is $1,430 per month.  This reflects 40 hours of work per week at minimum wage, or $8.25 per hour.
  • Out-of-pocket medical expenses – The prior practice, which required the parent receiving support to pay the first $350 of out-of-pocket medical expenses per year, will no longer apply.  Parents will share out-of-pocket expenses pursuant to their respective percentage share of the total net available income.
  • Income from a second job – Whether income from a second job may be included in a child support calculation will be determined on a case-by-case basis.  “Second job income is more likely to be included if it has been historically earned, raises the standard of living of the parent, or is necessary to meet the minimum needs of the child.  It is more likely to be excluded if it merely allows the parent to make ends meet, is used to pay extraordinary medical or educational expenses, is necessitated by the nonpayment of support, or substantially conflicts with visitation.  Fluctuations in income or that wage income may exceed 40 hours per week is not a basis for exclusion.  The Court must determine average monthly income likely to prospectively recur.  Previously earned second job income and overtime will not be considered if it is no longer earned, has been over 2½ years since the last determination of current support, and income from primary employment is consistent with reasonable earning capacity.
  • The fact that the Formula was updated does not constitute a change of circumstances for modification purposes.

To assist litigants, Family Court has revised the Instructions for child support.  If you have a child support proceeding on your calendar, understanding these any all the other changes will be helpful.  The revised Instructions may be found here.  The child support calculator may be found here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Resolutions for the New Year

Posted in Family Law, Uncategorized

As 2015 begins many start the year with resolutions, promises to themselves, of things they want to accomplish in the next 12 months.  Eric Solotoff, a Partner in our Roseland, New Jersey office authored an interesting post entitled “The New Year’s Resolution Divorce.”  The post examines the phenomenon of spouses who add filing for divorce to their “to do” list for the new year. Filing for divorce, and getting through the divorce process, can be difficult.  If filing for divorce is on your list of resolutions, you may want to consider some related resolutions, as suggested by Jennifer Weisberg Millner, a Partner in our Princeton, New Jersey office in her post entitled “New Years Resolutions: How to Be a Good Divorce Client.”

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Superior Court Interprets ‘Prompt Notice’

Posted in Uncategorized

The Complex Commercial Litigation Division of the Superior Court routinely presides over actions involving insurance coverage and contractual indemnification clauses. In Avaya, Inc. v. Charter Communications Holding Co., Inc., et al., the Court was asked to interpret the notice provision within an indemnification clause. The relevant language in the contract is as follows:

Avaya will defend or settle, at its own expense, any claim or suit against you alleging that any Avaya Products purchased under this Agreement infringe any United States patent or copyright or trade secret. Avaya will also pay all damages and costs that may be assessed against you due to such infringement as such damages and costs are incurred. Avaya’s obligation is expressly conditioned upon the following: (1) you shall promptly notify Avaya in writing of such claim or suit ….

At the outset of the case, Avaya filed a summary judgment motion seeking a declaration that it was not required to defend or indemnify the defendants because they failed to give ‘prompt notice’ of suit as a matter of law–specifically, Avaya claimed that defendants waited 10 months to provide notice and demand coverage of an infringement suit. Defendants did not dispute the 10 month lapse in notice, however they contend that the term ‘prompt’ is subject to some interpretation, and sought the opportunity to take discovery on attendant facts and circumstances. The Court agreed with defendants:

I am not persuaded that the fact alone of a ten month period between the commencement of the Katz Lawsuit and the giving of the July 2, 2007 notice constitutes lack of prompt notice as a matter of law. I agree with Charter that the phrase [Prompt Notice] is subject to some interpretation, and that the interpretation may be influenced by attendant facts and circumstances.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Imagine that! Damages calculations must be based on something more than an economic expert’s imagination.

Posted in Delaware Superior Court, Evidence

A damages expert can’t just pull numbers out of thin air.  For example, in Johnson v. Henning, C.A. No. K12C-10-038 RBY (Young, J.)—a negligence suit arising out of an auto accident—the Delaware Superior Court issued a short and sweet Order last week excluding the expert testimony of plaintiff’s damages expert because it was unsupported by medical evidence. 

The Court held:  “Relative to the claim of $27,004.00 for future medical expenses, the amount may, indeed, be modest given anticipations.  However, there is no medical support presently established to provide any basis for an economic evaluation.  The economist may take numbers opined by the physician and analyze them for present value, cost projections, life expectancy and so forth.  However, he cannot create the original numbers from his imagination.”

Simply put, damages calculations must be based on concrete facts—not conjecture or, indeed, the imagination.

Serving As Local Counsel – Lessons From The Court Of Chancery

Posted in Uncategorized

 

Members of the Delaware bar frequently have the pleasure of serving as local counsel for out-of-state attorneys who are litigating before a Delaware court.  As Carl Neff discusses in more detail on our Delaware Chancery Law Blog, the Court of Chancery has examined the role of local counsel.  See James v. National Financial LLC, C.A. No. 8931-VCL (Del. Ch. Dec. 5, 2014).  Serving as “local counsel” does not relieve a Delaware attorney from responsibility for the case.  Rather, as the Court of Chancery points out, “[o]ur rules make clear that the Delaware lawyer who appears in an action always remains responsible to the Court for the case and its presentation.”  The post and the decision in James are well worth reading.

 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Survey Of the Bar

Posted in Uncategorized

We previously posted on the Delaware Courts’ consideration of work-life balance—see post here. Last week, Supreme Court Chief Justice Strine advised that the Court will be surveying the Bar in an effort to help  set the agenda of the Delaware Courts for the future:

Since becoming Chief Justice last February, I have spoken with a wide variety of persons, including judges and persons outside of the judicial system, to better understand the challenges that are ahead for the Delaware Judiciary. I plan to continue those conversations throughout my tenure on the bench. Through those discussions, I am aware that the direct involvement of the Delaware Bar will be key in helping set the agenda of the Delaware Courts for the future.

As a part of that process, I am reaching out to you to ask for your assistance as we embark on a very exciting project. The Delaware Chapter of the American College of Trial Lawyers has been working in concert with the leadership of the Delaware State Bar Association to create a survey that will give practitioners the chance to provide confidential input about how the Delaware Courts are doing in all of the key practice areas. In the coming weeks, surveys will be conducted by a team of interviewers made up of lawyers from across our state. If you are contacted by one of the interviewers in the next few weeks, you will be asked to set aside some time to meet and answer the survey questions in an interview format. Given limitations on the ability to conduct individual interviews, an electronic version of the survey will also be available in early 2015 to seek additional input….

Although work-life balance adjustments are not specifically mentioned in the message from Chief Justice Strine, it will likely be an area of inquiry in the survey of the Bar.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Liquidated Damages Clause Upheld

Posted in Contract law, Delaware Superior Court

Liquidated damages clauses are contract terms that set forth in advance the amount of monetary damages due for a beach of the contract. In the matter of KOLD, LLC v. Croman, No. N13C-05-249, Johnston, J. (Nov. 25, 2014), the Superior Court was asked to examine a liquidated damages clause contained in an employment contract. Employer, KOLD, alleged that its prior employee, Croman, breached their employment contract. KOLD sought to recover $35,000 pursuant to a liquidated damages clause, which provided:

Termination of this Agreement by Employee, for any reason, prior to the expiration date of this Agreement or any renewal thereof, will cause loss to the Employer, including but not limited to, lost productivity/revenues/ratings, increased operating costs, loss of training/promotion provided the Employee, as well as costs in advertising, interviewing and other associated costs related to replacing the employee. The parties acknowledge however, that such costs are difficult to ascertain, calculate and foresee. Therefore, the parties agree that, in the event of breach of this contract on the part of the Employee, the Employee shall pay to the Employer, the sum of $35,000 dollars. Such payment is not a penalty but is for liquidated damages sustained, it being mutually agreed and understood between the parties hereto that such amount is reasonable as liquidated damages.

Croman challenged the enforcement of the clause arguing that it was a penalty and therefore violated Delaware law.

The Court noted that liquidated damages clauses are presumptively valid and enforceable in Delaware. However, these clauses are not enforceable if the damages are a penalty rather than compensatory. Liquidated damages will not be viewed as a penalty if: (1) at the time of contracting, damages were difficult or impossible to determine; and (2) the stipulated amount of damages found in the contract reasonably estimates the damages that would likely be caused by a breach, or the stipulated amount of damages is reasonably proportionate to the damages that have actually been caused by the breach. The Court upheld the clause and KOLD’s claim finding that damages were difficult to ascertain at the time the contract was formed and the sum of $35,000 was was a reasonable forecast of damages.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.