Delaware Announces Guidelines to Avoid Dismissal of Plaintiffs’ Claims Without Being Heard on Merits for Attorneys’ Failure to Obey Scheduling Orders

A man undergoing outpatient mental health treatment for depression committed suicide. His family filed a medical negligence action against his mental health care providers.


The trial court issued a scheduling order that required the plaintiffs’ expert report to be filed, discovery to be concluded two months later, and the trial to begin approximately six months after discovery concluded. The month before the original scheduling order required the plaintiffs’ expert report to be filed, the parties filed a stipulation to amend the scheduling order, extending the deadlines for the filing of expert reports and the discovery cut-off date, but leaving the start of trial the same. The trial court approved the amended scheduling order.


During discovery, the plaintiffs’ attorney found out that he knew one of the defendants. The plaintiffs retained new counsel approximately eight months before the trial was scheduled to start. The parties agreed informally that the plaintiffs could file their expert report one month after the new counsel was retained, which was three weeks after the extended deadline set forth in the amended scheduling order.


The plaintiffs did not file their expert report. Instead, five months prior to the trial date, the plaintiffs’ new counsel wrote a letter to the trial court requesting a conference to discuss further amendments to the discovery schedule as well as changing the trial date as the new counsel and one of the defendant’s counsel had conflicts. The trial court refused to schedule a conference and refused to change the trial date.


The parties worked through the rest of discovery without the trial court’s input. The plaintiffs disclosed some information relevant to their expert report three months prior to trial. More information was disclosed two months prior to trial. The plaintiffs’ experts were only available for depositions the last two weeks prior to trial.


Five weeks prior to trial, the defendants filed a motion to preclude the plaintiffs’ experts’ testimony arguing that they were severely prejudiced by the delays. The trial court granted the defendants’ motion and related motion for summary judgment. The court explained that it decided not to change the trial date because that would be a serious disservice to the defendants, the court, and other litigants. In its opinion, the court analyzed the six factors the Delaware Supreme Court held, in Drejka v. Hitchens Tire Service Inc.,15 A.3d 1221, 1224 (Del.2010), that a trial court should balance in deciding whether to dismiss a case for discovery violations: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense.


The Supreme Court of Delaware reversed the trial court reasoning the trial court abused its discretion when, five months prior to the trial date, it refused to schedule a conference and refused to change the trial date, and thereby avoid the ultimate sanction of dismissal. Had the plaintiffs been given the opportunity to discuss the problems that were delaying discovery and to explain why a new trial date was needed, perhaps they would have convinced the trial court that the case should be rescheduled, or at least to set new discovery deadlines. The trial court could have taken the opportunity to warn that fines would be imposed if those deadlines were missed.


The court set out a number of prospective practice guidelines to clarify the Drejka analysis. Specifically, any party that grants an informal extension to opposing counsel will be precluded from seeking relief from the court with respect to any deadlines in the scheduling order. If the trial court is asked to extend any deadlines in the scheduling order, the extension should not alter the trial date. In the unusual circumstance when the trial court does decide to postpone the trial date, litigants should expect that the trial will be rescheduled after all other trials already scheduled on the court's docket.


See: Christian v. Counseling Resource Associates, Inc., 2013 WL 22042 (Del.Supr., January 02, 2013) (not designated for publication).