      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


KEITH A. WILANT,                                )
                                                )
                    Plaintiff,                  )
                                                )
      v.                                        )     C.A. No.: N17C-10-365 CEB
                                                )
BNSF RAILWAY COMPANY, f/k/a                     )
BURLINGTON NORTHERN AND                         )
SANTA FE RAILWAY COMPANY                        )
                                                )
                    Defendant.                  )


                                 Submitted: June 12, 2020
                                  Decided: July 9, 2020

                                           ORDER

      Before the Court is Plaintiff’s motion for reconsideration of the Court’s ruling

that excluded Plaintiff’s expert witness under the Daubert standard and consequently

granting Defendant’s motion for summary judgment. The following are the Court’s

rulings on Plaintiff’s motion.

      1.     Plaintiff first argues that the Court incorrectly granted summary

judgment on two grounds: one that excluded the expert testimony of Plaintiff’s

general causation expert, Dr. Harrison and a second that excluded the expert

testimony of Plaintiff’s specific causation expert, Dr. Perez. The docket does indeed

reflect those judgments.



                                            1
         2.      The Court’s opinion did not reach the testimony of Dr. Perez under the

Daubert standard. Once the Court found Dr. Harrison’s testimony inadmissible, the

Court did not reach the testimony of Dr. Perez at all. The docket entry incorrectly

characterizes the Court’s ruling and to that extent, Plaintiff’s motion is granted and

Docket Entry No. 110 will be vacated as that was not the Court’s ruling and reflects

a clerical error.

         3.      The second basis for Defendant’s motion is an argument that the Court

should have granted Plaintiff a live hearing on Dr. Harrison’s Daubert testimony in

order for Plaintiff to more or better articulate why Dr. Harrison’s testimony meets

the Daubert standard.

         4.      The problem with Plaintiff’s position is that it is not the position it took

before the Court entered its Order. To the contrary, the Court inquired of the parties

from the first teleconference in this matter in October, 2019, whether either party

believed a Daubert hearing with live testimony was necessary and both parties

agreed that the Court could rely upon the deposition testimony of the expert

witnesses and the arguments of counsel.1 Specifically, the following occurred:

         [Plaintiff’s Counsel]: I mean, typically, when it comes down to
         Daubert, I mean, I think the depositions were thorough. We typically,
         if given the choice, would prefer to have a Daubert hearing and present
         our experts. But, you know, if your Honor doesn't think that's necessary,
         then we could just proceed forward. I mean, I think they were pretty
         vigorous discovery depositions.

1
    See Official Transcript of Teleconference, October 17, 2019, D.I. No. 122
                                                 2
          THE COURT: Well, do you feel there was anything not covered in a
          deposition that you want to have factfinding on?
          [Plaintiff’s Counsel]: No, I think everything was covered in the
          discovery deps.2

          5.      Having reviewed the excellent briefs and arguments of both counsel

and the detailed questioning at the deposition, it is understandable why the parties

were comfortable resting on the record as developed by the parties. The mere fact

that the outcome did not go the way Plaintiff hoped is not a basis for giving Plaintiff

a mulligan and starting over.

          Having considered Plaintiff’s motion for reconsideration of the Court’s

Daubert ruling, that motion is DENIED. Plaintiff’s motion to correct the record

with respect to the testimony of Dr. Perez is granted and the Court’s record will

reflect that judgment as to that issue is VACATED.

          IT IS SO ORDERED.




                                                      Judge Charles E. Butler




2
    Id. at pp. 13-14.
                                            3
