Opinion
Civil Action No. 15452-NC.
March 9, 2004.
Joseph A. Rosenthal, Rosenthal, Monhait, Gross Goddess, P.A., Wilmington, DE.
R. Franklin Balotti, Anne C. Foster, Richards, Layton Finger, Wilmington, DE.
Robert K. Payson, Kevin R. Shannon, Potter Anderson Corroon LLP, Wilmington, DE.
Joel Friedlander, Bouchard Margules Friedlander, Wilmington, DE.
David C. McBride, Young Conaway Stargatt Taylor, LLP, Wilmington, DE.
Gilchrist Sparks, III, Morris, Nichols, Arsht Tunnell, Wilmington, DE.
Lawrence C. Ashby, Ashby Geddes, Wilmington, DE.
Dear Counsel:
This letter concerns the individual defendants' motion to preclude the proposed expert testimony of Professor Deborah A. DeMott. In her expert report, Professor DeMott states that "the defendants . . . breached their fiduciary duties. . . ." As the parties are well aware, that is the legal issue presented in this case. After considering the parties' briefs and upon thorough review of Professor DeMott's report, I find that her proposed testimony is inadmissible for three reasons.
Individual Defendants' Motion to Preclude the Proposed Expert Testimony of Deborah A. DeMott, Ex. A (Expert Report of Professor DeMott), at ¶ 5. Plaintiffs state that there are other opinions in the report, but after reviewing its contents, I find that the "other" opinions are merely reformulations of the same basic conclusion.
In re The Walt Disney Co. Derivative Litig., 825 A.2d 275, 277-78 (Del.Ch. 2003).
First, "it is exclusively within the province of the trial judge to determine issues of domestic law." In this Court, witnesses do not opine on Delaware corporate law.
Itek Corp. v. Chicago Aerial Indus., Inc., 274 A.2d 141, 143 (Del. 1971). See also North American Philips Corp. v. Aetna Cas. and Sur. Co., 1995 WL 628447, at *3 (Del.Super. Apr. 22, 1995) (Delaware law requires "exclusion of expert testimony that expresses a legal opinion"); State v. Hodges, 1996 Del. Super. LEXIS 391, at *4 (Del.Super. Sept. 10, 1996) (same). Plaintiffs bear the burden of demonstrating that Professor DeMott's proposed testimony is admissible. Bourjaily v. United States, 483 U.S. 171, 175 (1987); Minner v. American Mortgage Guar. Co., 791 A.2d 826, 843 (Del.Super. 2000).
Second, Professor DeMott's proposed expert testimony does not satisfy D.R.E. 702. Rule 702 requires that expert testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." The Supreme Court has stated that "if [the trier of fact], without the assistance of the expert, [is] as capable of answering a question as an expert, then the expert's opinion would not be helpful and is not admissible under D.R.E. 702." After fifteen years of service on the Court of Chancery, I certainly hope that I am capable — without the assistance of Professor DeMott's testimony — of answering whether the individual defendants breached their fiduciary duties.
Jolly v. State, 670 A.2d 1338 (TABLE), 1995 WL 715868, at *1 (Del. Nov. 22, 1995).
Third, D.R.E. 704 does not compel the admission of Professor DeMott's proposed expert testimony. Rule 704 states that opinion testimony is not objectionable "merely because it embraces an ultimate issue." In this case, I find Professor DeMott's proposed testimony inadmissible not merely because it embraces an ultimate issue, but also because it embraces applicable domestic law. Consistent with Rule 704, Itek prohibits such testimony.
D.R.E. 704 (emphasis added).
D.R.E. 704 cmt.
Plaintiffs argue that the individual defendants' motion is premature, but I fail to see how Professor DeMott's testimony will become any more admissible three months from now. Moreover, following the close of discovery on May 14, I see no reason why this case should not proceed promptly to a trial on the merits. Early determination of this dispute over Professor DeMott's report promotes judicial efficiency.
As the parties have sought guidelines on certain scheduling matters, I also ask counsel to arrange a prompt teleconference with the Court to discuss such issues.
IT IS SO ORDERED.