It can be tough to get late-produced theories or evidence excluded in Delaware, because the Court must apply the permissive Pennypack factors that typically favor admission.
The factors include prejudice, ability to cure any prejudice, disruption of trial, and bad faith/willfulness.
But lately, the Court seems to be granting more motions to strike such theories. Today, Judge Andrews granted a motion to strike a late DOE theory offered for the first time in a reply report.
Judge Andrews Isn't Messing Around
He shot down the Pennypack factors in four short and to-the point paragraphs.
As to the first factor, he found prejudice because admission of a late theory requires …
