Judge Andrews recently granted a motion in limine precluding a party from presenting expert opinions that were not disclosed until the expert's deposition -- without analyzing the Pennypack factors.
The correct procedure for challenging a late disclosure of theories or evidence has long been a matter of some debate in Delaware. There are cases suggesting that the party seeking to update its contentions should move for leave to do.
More commonly, a party will simply serve updated contentions or expert reports that the opposing party moves to strike. Regardless, the motions are generally analyzed under the demanding Pennypack factors, with the usual result that the late-disclosed theory is allowed, but the opposing party is given some further discovery and perhaps a responsive report to alleviate any prejudice.
The situation in TQ Delta LLC v. ADTRAN Inc., C.A. No. 14-954-RGA, D.I. 1201 (D. Del Aug. 17, 2020), was somewhat different. There, the plaintiff's expert had expressed new opinions at his deposition, but rather than serving a supplemental report or contentions incorporating this opinion, Plaintiffs took the position that "anything said in a deposition becomes a disclosed opinion." The defendant then moved in limine to exclude the plaintiff from presenting this new opinion at trial.
Judge Andrews granted the motion and precluded the new opinion, stating that "absent proper supplementation of [the expert's] reports, the particular opinion . . . is excluded." Id. at 5.
It's difficult to tell from the brief opinion whether the outcome would have been different if the plaintiff had moved immediately to supplement its expert reports and contentions -- but it's notable that Judge Andrews did not even mention the Pennypack factors, which normally counsel against the "extreme sanction" of preclusion.
The lesson then is that, at least in this situation, it might be better to ask permission (move to supplement) than forgiveness.
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