Pretty good day for Wolfeboro

The court ruled on several key motions from both sides.

The court order denying the motion to preclude untimely documents, fact and expert testimony filed by WP.  This motion dealt with several issues:

  • Wolfeboro had provided thousands of documents to WP after the end of discovery.  Wolfeboro argued that most of the documents were previously disclosed as part of earlier submissions and were simply reorganized in support of the damages claim.  The other documents were explained as documents that were not previously available, such as spreadsheets updated to reflect operations to the present.
  • WP had objected to late expert opinions that they say were expressed in the depositions of several Wolfeboro experts.  The court responded that this wasn’t new testimony.
  • WP objected to expert testimony and new information by the fact witness Dave Ford.  The court declined to attempt to classify that testimony and through denial of the in limine motion, leaves WP to object on a point by point basis at trial.

What looks on the surface as a win for WP in the court’s order denying Wolfboro’s motion to strike affirmative defense of mitigation and comparative fault , bode poorly for WPs chances with these defenses at trial.

The judge started out by saying that Wolfeboro should have addressed these issues earlier by requesting summary judgement.  He goes on to recommend another avenue that Wolfeboro can pursue, and in the discussion states pretty clearly that in both cases, WP has wrongly asserted that these defenses can be made without expert testimony.  The judge put WP on notice that expert testimony will be required, although it seems like that will be difficult under the procedural rules that appear to prohibit new expert testimony.

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