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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.



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.


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.


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.

Family Court – Unique Rules For A Court Of Special Jurisdiction Part III

Posted in Delaware Family Court

Given the sensitive and personal nature of many of the proceedings heard in the Family Court the Delaware Constitution, Delaware Code and the Family Court Rules of Procedure specify whether Family Court matters are closed or open to the public. For example, termination of parental rights and adoption records and proceedings are private and cannot be accessed or viewed by anyone other than the parties except in special circumstances. Divorce and custody matters are also closed. Protection from abuse hearings and criminal proceeds are considered open.  To assist litigants and the public in understanding which proceedings are open and which proceedings are closed, Family Court has published a helpful chart.  The chart may be viewed here.


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.

Uniform Interstate Depositions and Discovery Act

Posted in Civil Procedure, Delaware Superior Court

The Delaware Uniform Interstate Depositions and Discovery Act provides a process through which litigants in actions pending outside of Delaware may conduct depositions or access information in Delaware.  The Act simplifies past practice and permits litigants to conduct discovery without requiring a commission or the commencement of a miscellaneous action.  Rather than filing for a commission or commencing a miscellaneous action, an out-of-state litigant may file their out- of-state subpoean with the Prothonotary’s office and request the issuance of a similar Delaware subpoena to be issued and served her.  The Act, and the process for discovery, may be found in 10 Del. C. § 4311.  Litigants using this process should also be mindful of the Superior Court Rules of Civil Procedure, including Rule 45 regarding service of supoenas.


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.


So, You Want To Amend Your Complaint . . .

Posted in Civil Procedure, Delaware Superior Court

So, you want to amend your complaint to add a claim after the statute of limitations has expired.  Is it possible? The short answer is yes, it may be possible.  As the Superior Court decision recently issued in the case of Mills v. J.E.M. Enterprises, Inc. reminds us, the amendment may be permitted if the complaint was filed before the statute expired and the Court is satsifed that the requirements of Superior Court Civil Procedure Rule 15 are satisfied.  To meet the requirements of that Rule: (i) the claim to be added must relate back to the same conduct transaction or occurrence in the initial complaint, and (ii) the party opposing the amendment must have been put on notice of the existence of the potential additional claims in order to avoid prejudice to the opposing party’s ability to defend against the merits of the proposed claims.  The Court’s analysis of Rule 15 may be read in its entirety here.

November Is National Adoption Month!

Posted in Adoption

November has been declared National Adoption Month! A Proclamation signed by President Obama designates November as National Adoption Month and states:


Every year, adoptive parents welcome tens of thousands of children and teenagers into supportive and loving families.
These mothers and fathers provide their sons and daughters with the security and stability of a safe environment and the opportunity to learn, grow, and achieve their full potential. During National Adoption Month, we honor those who have opened their hearts and their homes, and we recommit to supporting all children still in need of a place to call their own.

Over the past decade, more than 500,000 children have been adopted. However, there are still too many children waiting to be part of an adoptive family. This month — on the Saturday before Thanksgiving — we will observe the 15th annual National Adoption Day, a nationwide celebration that brings together policymakers, practitioners, and advocates to finalize thousands of adoptions and to raise awareness of those still in need of permanent homes.

To help ensure there is a permanent home for every child, my Administration is investing in programs to reduce the amount of time children in foster care wait for adoption and to educate adoptive families about the diverse needs of their children, helping ensure stability and permanency. We are equipping State and local adoption organizations with tools to provide quality mental health services to children who need them, and — because we know the importance of sibling relationships — we are encouraging efforts to keep brothers and sisters together. Additionally, last year I was proud to permanently extend the Adoption Tax Credit to provide relief to adoptive families. By supporting policies that remove barriers to adoption, we give hope to children across America. For all those who yearn for the comfort of family, we must continue our work to increase the opportunities for adoption and make sure all capable and loving caregivers have the ability to bring a child into their life, regardless of their race, religion, sexual orientation, or marital status.

Throughout November, we recognize the thousands of parents and kids who have expanded their families to welcome a new child or sibling, as well as the professionals who offer guidance, resources, and counseling every day. Let us reaffirm our commitment to provide all children with every chance to reach their dreams and realize their highest aspirations.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim November 2014 as National Adoption Month. I encourage all Americans to observe this month by answering the call to find a permanent and caring family for every child in need, and by supporting the families who care for them.

IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of October, in the year of our Lord two thousand fourteen, and of the Independence of the United States of America the two hundred and thirty-ninth.




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.


Family Court – Unique Rules For A Court of Special Jurisdiction Part II

Posted in Civil Procedure, Delaware Family Court

Any exploration of the unique nature of the Family Court Civil Rules of Civil Procedure must include a review of Rule 26, regarding the general provisions regarding discovery.  In many trial courts, Rule 26 permits parties to gather information through multiple methods such as interrogatories, requests for admission, requests for production and depositions.  In addition, discovery of information held by non-parties is possible.

Family Court, however, takes a different approach.  Family Court Civil Procedure Rule 26 narrows the forms and manner of discovery available to parties.  The Rule states,

While the Court encourages the prompt and voluntary exchange of information and documents by the parties before trial, no formal discovery shall be conducted without Court order following a motion therefore except for depositions of the parties and Requests for Production.

So, under this Rule one party may depose the other party or ask the other party to produce documents, but discovery may not go beyond that without the permission of the Court.


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.

Prevailing Parties Are Entitled to Some, But Not ALL, Of Their Costs

Posted in Civil Procedure, Delaware Superior Court

You won a case by prevailing on a motion for summary judgment.  Therefore, as the prevailing party, the court will award costs to you as a matter of course pursuant to Delaware Superior Court Rule 54, correct?  Generally speaking, YES – but not necessarily ALL of the costs you incurred in the litigation.

In Martin v. National General Assurance Company, C.A. No. N13C-01-020-RRC, decided on November 3, 2014, the Delaware Superior Court (Cooch, J.) (available in its entirety here) awarded the following costs to the defendant, who had prevailed on summary judgment:

  • Court costs (such as filing fees)
  • Costs incurred in obtaining the plaintiff’s medical records.

However, the Court denied the defendant’s request for an additional $690.33 to cover the cost of a deposition transcript the defendant had attached as an exhibit to its winning Motion for Summary Judgment.  The reason the court denied this request is because the deposition transcript was “not introduced into evidence at trial” as required by Rule 54(f); attaching the transcript as an exhibit to the winning summary judgment motion did not count.  The Court pointed to Delaware Superior Court 54(f) and the case of DIGA v. Troise, 1992 WL 240352 (Del. Super. Ct. Sept. 14, 1992) (finding that depositions, when used for the purpose of pretrial motions, are not “introduced into evidence” under Rule 54(f)).

The bottom line is, as a prevailing party, it is best not to overreach when seeking costs—or else you may end up incurring extra fees to brief the issues!