It's great that we are getting to point of having frequent jury trials again here in Delaware. Trial is the most dynamic and interesting part of the litigation process. It's where you get to address classic questions like "Can we get this admitted into evidence even though it's not on our exhibit list?", "Where was THAT in his expert report?", and "Can we show the jury this video of the other side's expert saying 'I don't know' for ten minutes straight?"
Luckily, on that last question, we now have some precedent. According to Judge Andrews last week:
I agree with First Quality that Dr. Mitton's availability does not make the deposition inadmissible. But I nevertheless exclude the deposition testimony. Ten minutes of Dr. Mitton saying "I don't know" does not tend to prove any relevant fact. And, it is unfairly prejudicial since his recalcitrance or genuine lack of knowledge or unwillingness to engage with broadly worded propositions, whichever combination of factors may have been at play during the deposition, makes him look bad, but not in a way that is relevant to the issues in the case. Thus, any probative value would be substantially outweighed by the almost certain risk of unfair prejudice to Defendant. Plaintiff's request to introduce the deposition testimony is DENIED.
So now we know.
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