      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BERNARD KATZ,                          )
                                       )
      Plaintiff,                       )
                                       )
      v.                               )      C.A. No. N18C-11-008 ALR
                                       )
TRACTOR SUPPLY                         )
COMPANY, INC.                          )
                                       )
      Defendant.                       )

    ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT

      Upon consideration of Defendant’s motion for summary judgment and

Plaintiff’s response thereto; the evidence and arguments presented by the parties

during the July 28, 2020 Daubert hearing; the facts, arguments, and legal authorities

set forth in the parties’ submissions; the Superior Court Rules of Civil Procedure;

the Delaware Rules of Evidence; statutory and decisional law; and the entire record

in this case, the Court hereby finds as follows:

      1.     By Order dated March 16, 2020, this Court granted Defendant’s motion

for summary judgment with respect to Plaintiff’s strict products liability claims and

held in abeyance Defendant’s motion for summary judgment with respect to

Plaintiff’s breach of warranty claims, pending a determination on the admissibility

of Plaintiff’s proposed expert testimony.
      2.     Given Delaware’s strong policy favoring resolution of claims on the

merits,1 the Court’s March 16, 2020 Order also scheduled a Daubert hearing to

consider Plaintiff’s proposed expert testimony for April 21, 2020.

      3.     In consideration of the state of emergency declared by Governor

Carney, the Court issued an Amended Scheduling Order on March 31, 2020. With

respect to deadlines that had expired as of March 12, 2020—the day Governor John

Carney declared a state of emergency in Delaware—the Court ordered that those

deadlines would not be reinstated by the Court without a showing of extraordinary

hardship and/or manifest injustice. The deadlines set forth in the Trial Scheduling

Order that had not expired as of March 12, 2020, including the trial date of July 27,

2020, were vacated. The Court also rescheduled the Daubert hearing for Tuesday,

July 28, 2020, at 11:00 a.m. (previously set aside as the second day of trial).

      4.     On July 28, 2020, the Court held the Daubert hearing, at which Plaintiff

testified and presented demonstrative evidence for the Court’s consideration.

      5.     The Court denied Plaintiff’s request for additional time to identify an

expert witness as the deadline set forth in the Trial Scheduling Order had expired

February 1, 2020. In addition, Plaintiff had previously represented he did not intend


1
  See, e.g., Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008) (“The
sanction of dismissal [for discovery violations] is severe . . . . Other sanctions are
often more appropriate because ‘the important goal of timely adjudications must be
balanced against the strong policy in favor of decisions on the merits.’” (quoting
Draper v. Med. Ctr. of Del., 767 A.2d 796, 798 (Del. 2001))).
                                          2
to retain an expert. Finally, the Court concluded any further extensions would be

futile as Plaintiff testified under oath that he was unable to retain an expert.

      6.     The party seeking to introduce expert testimony bears the burden of

establishing admissibility by a preponderance of the evidence.2

      7.     For the reasons stated in the Court’s March 16, 2020 Order, Plaintiff’s

breach of warranty claims require expert testimony to establish defect and causation.

      8.     The Court recognizes that self-represented litigants may be held to a

less stringent standard in presenting their cases under certain circumstances. 3

However, “[l]itigants, whether represented by counsel or appearing pro se, must

diligently prepare their cases for trial or risk dismissal for failure to prosecute.” 4

Indeed, “[t]here is no different set of rules for pro se plaintiffs, and the trial court

should not sacrifice the orderly and efficient administration of justice to

accommodate the unrepresented plaintiff.”5

      9.     Plaintiff persists by restating the unsupported allegation, based on

decades of experience in the field of manufacturing, that the part malfunctioned




2
  Pavey v. Kalish, 2010 WL 3294304, at *3 (Del. 2010); Sturgis, 942 A.2d at 584.
3
  Hayward v. King, 2015 WL 6941599, at *4 (Del. Nov. 9, 2015); Anderson v.
Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011) (internal citations
omitted); Buck v. Cassidy Painting, Inc., 2011 WL 1226403, at *2 (Del. Super. Mar.
28, 2011) (internal citations omitted).
4
  Draper, 767 A.2d at 799.
5
  Id.
                                          3
because it was made up of two welded-together pieces of metal instead of a single

metal bar stock.

      10.    The Court found that Plaintiff’s proposed expert testimony did not meet

the standard set forth by the United States Supreme Court in Daubert v. Merrell Dow

Pharmaceuticals.6 Plaintiff failed to meet his burden of proof to establish that the

expert opinion proposed by Plaintiff is based upon information reasonably relied

upon by experts in the particular fields of metallurgy and/or engineering; Plaintiff’s

proposed expert testimony will not assist the trier of fact to understand the evidence

or determine a material fact in issue; and Plaintiff’s proposed expert testimony will

confuse or mislead the jury.7




6
  M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521–22 (Del. 1999) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).
7
  Smith v. Grief, 2015 WL 128004, at *2 (Del. Jan. 8, 2015) (citing Bowen v. E.I.
DuPont de Nemours & Co., Inc., 906 A.2d, 787, 794 (Del. 2006)); Pallano v. AES
Corp., 2016 WL 750432, at *3 (Del. Super. Feb. 26, 2016).
                                        4
NOW, THEREFORE, this 29th day of July 2020:

     1. Plaintiff’s proposed expert testimony is inadmissible for the reasons

        stated on the record during the July 28, 2020 hearing;

     2. Defendant’s motion for summary judgment is GRANTED with

        respect to Plaintiff’s remaining breach of warranty claims for the

        reasons stated on the record during the July 28, 2020 hearing;

     3. Judgment shall be entered against Plaintiff and in favor of

        Defendant.

IT IS SO ORDERED.

                                                                                                                        Andrea L. Rocanelli
                                     ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                     The Honorable Andrea L. Rocanelli




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