North Carolina Business Litigation Report

Kornegay v. Aspen Asset Group, LLC, 2007 NCBC 5 (N.C. Super. Ct. Feb. 28, 2007)(Diaz)

Plaintiff designated its expert witness in an untimely way, without any good reason. Plaintiff furthermore had not seasonably supplemented an earlier discovery response seeking the identification of expert witnesses. The Court emphasized the duty of parties to comply with the Court's scheduling orders, and stated "[p]ut bluntly, when it comes to matters of case management and scheduling, a party is not entitled to anything unless and until the court says so."

Defendant requested that the testimony of the expert be excluded at trial. The Court recognized the significance of the witness to plaintiff's case, and noted the possibility that the plaintiff might dismiss and re-file if the expert was excluded.

It therefore declined to exclude the expert, and instead sanctioned the plaintiff by ordering him to pay the deposition costs of deposing the expert, and defendant's fees incurred in making the motion. It furthermore gave defendant leave to identify rebuttal experts, and said that defendant should provide disclosure as to the opinions of those experts but that plaintiff would not be entitled to depose them.

The Court further indicated that it would consider a motion to continue by the defendants if they were unable to properly prepare to meet the testimony of plaintiff's expert.

Full Opinion

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Mack Sperling
Brooks Pierce, LLP
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