IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALLSTATE INDEMNITY
COMPANY,

Plaintiff,
C.A. No. Nl 6C-02-048 JRJ

V.

GENOVA PRODUCTS, INC.,

Defendant.

Date Submitted: July 12, 2017
Date Decided: August 15, 2017

ORDER
Upon consideration of Defendant’s Motion for Summary Judgment;l
Plaintiff’s Response;2 Defendant’s Reply;3 and the record in this case, IT
APPEARS THAT:
l. This case is a subrogation action brought by Allstate Indemnity Company
(“Allstate”) against Genova Products, Inc. (“Genova”).4 Allstate indemnified its

insured for property damage allegedly caused by a faulty “CPVC tee titting”

 

1 Defendant’s Motion for Summary Judgrnent (“Genova Mot.”) (Trans. ID. 60667537).

2 Plaintift’ s Response in Opposition to Defendant’s Motion for Summary Judgrnent (“Allstate
Resp.”) (Trans. ID. 60798919).

3 Defendant’s Reply Support Summary Judgrnent (“Genova Reply”) (Trans. ID. 60842366).

4 Compl. 11 1 (Trans. ID. 58524611).

manufactured by Genova.5 Allstate seeks monetary damages from Genova for
negligent manufacturing6
2. Allstate alleges that the CPVC tee fitting on a pipe in its insured’s house
failed, causing a large amount of water to leak into the home, damaging the insured’s
realty and personal property.7 As part of its investigation, Allstate submitted the
CPVC tee fitting to The Madison Group Plastic Consulting Engineers for analysis,
and Antoine Rios, Ph.D. of The Madison Group issued a letter opinion, which states,
in pertinent part:
[The] CPVC pipe assembly [consists of] four straight sections, two
union fittings and a tee fitting. The tee fitting shows two longitudinal
cracks along the expected location of the weld line, The weld line is an
inherently weak area created during manufacturing The external visual
examination of the fitting appears to indicate that cracking was
facilitated by a weak weld line, which would be considered a
manufacturing defect.8
The allegedly defective weld line forms the basis of Allstate’s claim of negligent
manufacture against Genova.9

3. In the instant Motion, Genova argues that it is entitled to summary

judgment because Allstate’s expert report is “not an opinion to a reasonable

 

5 Id.

6 Id.

7 Id. 1111 4-5.

8 Genova Mot., Ex. B, March 15, 2015 Letter Opinion of Antoine Rios, Ph.D. Dr. Rios’s findings
are “based on a non-destructive visual analysis and have been reached to a reasonable degree of
scientific certainty.” Id.

9 Compl.1H[ 10-15.

probability” and is, therefore, inadequate as a matter of law.l° Additionally, Genova
argues that summary judgment is warranted because Allstate has failed to timely
respond to discovery.ll

4. Allstate opposes Genova’s Motion on the basis that it is “premature as
Allstate’s deadline to produce a rebuttal expert report has not yet passed [as of the
date of Allstate’s Response to Genova’s Motion] and discovery does not close until
[September 8, 2017].”12

5. Because Genova’s Motion relies in part on Allstate’s alleged failure to
timely respond to discovery, some background is necessary. Allstate filed its
Complaint on February 4, 2016. In the original Trial Scheduling Order, trial was
scheduled to begin December 4, 2017, with discovery deadlines scheduled as
follows: Allstate’s expert report, September 9, 2016; Genova’s expert report,
November 9, 2016; Allstate’s expert rebuttal report, January 9, 2017; and discovery
to be initiated such that it will be completed by March 8, 2017.13

6. On February 14, 2017, less than a month before the discovery cut-off, the
parties submitted a Stipulation and [Proposed] Order stating “the parties have spent

considerable time and effort attempting to resolve this matter, settlement discussions

 

10 Genova Mot. 11 9; Genova Reply 11 3.

11 Genova Mot. 1 10.

12 Allstate Resp. 1[ 2.

13 Trial Scheduling Order (Trans. ID. 58992690).

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have recently broken down and the parties have now conferred and desire to amend
the Court’s Trial Scheduling Order.”14 The Court signed the Stipulation and Order,
setting new discovery deadlines as follows: Allstate’s expert report, March 17, 2017;
Genova’s expert report, May 19, 2017; Allstate’s expert rebuttal report, July 14,
2017; and discovery to be initiated such that it will be completed by September 8,
2017.15

7. On March 9, 2017, Genova sent Allstate a set of interrogatories and a set
of requests for production of documents.16 By March 17, 2017, Allstate’s expert
report deadline, Allstate had not submitted a new or amended expert report, leaving
Dr. Rios’s letter opinion as Allstate’s expert report on causation.

8. In April, Allstate requested an extension to May 12, 2017, from Genova to
respond to Genova’s interrogatories and requests for production of document.17
Genova agreed.18 Despite agreeing to a May 12, 2017 discovery extension, Genova
did not submit a motion to amend Genova’s May 19, 2017 expert report deadline,
and the record does not reflect that Genova requested that Allstate informally agree
to an extension of Genova’s May 19, 2017 expert report deadline. Genova’s failure

to request an extension of its expert report deadline is notable because Genova’s

 

14 Stipulation and [Proposed] Order to Modify the Trial Scheduling Order (Trans. ID. 60210114).
15 Feb. 20, 2017 TSO.

16 Genova’s Mot., Ex. D, Defendant’s Interrogatories Directed to the Plaintiff and Request for
Production Directed to the Plaintiff; Notice of Service (Trans. ID. 60317913).

17 Genova’s Mot., Ex. E. April 2017 Emails Between Counsel for Allstate and Counsel for Genova.
18 Id.

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interrogatories seek information that Genova now claims is necessary to the
formulation of a “qualified opinion as to causation in this matter.”19

9. By May 12, 2017, Allstate’s deadline to respond to Genova’s March 9,
2017 discovery requests, Allstate had not responded.20 Genova did not move to
compel or seek sanctions under Rule 37.21 Instead, on June 1, 2017, Genova filed
the instant Motion for Summary Judgment.

10. Pursuant to Superior Court Civil Rule 56(0), summary judgment is
appropriate only if there is no genuine issue as to any material fact. The burden is
on the moving party to show that there is no genuine issue as to any material fact.22
The Court views the record in the light most favorable to the non-moving party,23
and the burden shifts to the non-moving party to establish the existence of a genuine
issue of material fact only after the moving party has met its burden.24

11. The precise basis for Genova’s argument that Dr. Rios’s opinion “fail[s]

to meet the standard required” is hardly clear. The “standard” is not identified If

Genova means Delaware Rule of Evidence 702 or Daubert v. Merrell Dow

 

19 Genova Mot. 11 10 (listing information purportedly necessary for the issuance of an expert
opinion on causation in this case); Genova Mot., Ex. D Defendant’s Interrogatories Directed to the
Plaintiff 1111 4, 8-9, 13-14 (requesting the information listed in paragraph 10 of Genova’s Motion).
20 Genova Mot. 1[ 6.

21 Super. Ct. Civ. R. 37.

22 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole v. Lowengrub, 180 A.2d
467 (Del. 1962)).

23 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).

24 Moore, 205 A.2d at 681 (citing Hurtt v. Goleburn, 330 A.2d 134 (Del. 1974)).

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Pharmaceuticals, Inc.,25 it has not cited those authorities. Rather, Genova’s one
paragraph argument summarily concludes that Dr. Rios’s opinion that a weak weld
line facilitated cracking in the CPVC tee fitting “is not an opinion to a reasonable
probability.”26 This argument is not supported by any legal citation or by any further
argument clarifying what the supposedly fatal inadequacy in Dr. Rios’s opinion is.27
Dr. Rios’s opinion may be fatally inadequate in some respect. However, at a
minimum, Genova has failed to meet its burden as the moving party on a motion for
summary judgment to establish that fact.

12. As to Genova’s second one-paragraph argument-that it is entitled to
summary judgment because Allstate failed to timely respond to discovery_-the
Court finds this argument premature. Genova has never filed a motion to compel,

and discovery is still on-going.28

 

25 509 U.S. 579 (1993); see M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d513, 522 (Del. 1999)
(adopting the United States Supreme Court’s holdings in Daubert and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999), as the correct interpretation of Delaware Rule of Evidence 702).
26 Genova Mot. 11 9.

27 In his March 15, 2015 letter opinion, Dr. Rios states that his findings were reached “to a
reasonable degree of scientific certainty.” Genova Mot., Ex. B, March 15, 2015 Letter Opinion of
Antoine Rios, Ph.D. Delaware courts have held that the phrases “reasonable probability” and
“reasonable certainty” are interchangeable in expert opinions. E.g., Dunlap v. State Farm Fire &
Cas. Co., 955 A.2d 132, 147 (Del. Super. Aug. 3, 2007) (citing Perkins v. State, 920 A.2d 391,
395 (Del. 2007)).

28 In its Response, Allstate states that since Genova filed the instant Motion for Summary Judgrnent
Allstate has provided Genova with the requested discovery responses. Allstate Resp. 11 3.

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NOW THEREFORE, for the foregoing reasons, Defendant’s Motion for
Summary Judgrnent is DENIED.

IT IS SO ORDERED.

    

,-Jurden_? President Judge

