Summary Judgment Motion Not Preceded by Motion to Compel Akin to Trial by Ambush

On January 2, the Delaware Supreme Court issued a trilogy of cases dealing generally with the issue of whether a case should be dismissed for the attorneys’ failure to obey scheduling orders. In the lead case, Christian v. Counseling Resource Associates, No. 460, 2011 (Del. Jan. 2, 2013), the court announced that, henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court would do so at their own risk. The court noted that when a party misses a discovery deadline, opposing counsel will have two choices — resolve the matter informally or promptly notify the court. If counsel contacts the court, that contact can take the form of a motion to compel, a proposal to amend the scheduling order, or a request for a conference. If the party chooses not to involve the court, the party will be deemed to have waived the right to contest any late filings by opposing counsel from that time forward. The court made clear that in those cases, there would be no motions to compel, motions for sanctions, motions to preclude evidence or motions to continue the trial.

The implications of the Christian trilogy are still being worked out by the trial courts and counsel. A recent decision by the Superior Court illustrates how the Supreme Court’s "practice guidelines" are being implemented by the trial courts. In Tsakalas v. Hicks, C.A. No. 12C-04-270-JOH (Del. Super. Feb. 22, 2013), the court had before it a motion for summary judgment by the defendants arguing that they were entitled to summary judgment because the plaintiff had failed to meet the court’s deadline for producing a medical expert report that their negligence had caused his injury. Because causation requires expert testimony, the failure to provide such an opinion when due would ordinarily result in the dismissal of the plaintiff’s case. In Tsakalas, the court’s scheduling order set a discovery deadline and a deadline for dispositive motions. The plaintiff failed to provide any expert medical reports during the discovery period, and the defendants moved for summary judgment on the last date for filing dispositive motions.