Pallano

• Court: Superior Court of Delaware
• Decided: September 29, 2015
• Docket: 09C-11-021
• Status: Published

Opinion

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