It is less than two weeks before the start of trial and you're making sure your trial team is well prepared. Your trial notebook is perfectly organized, your witnesses are all lined up to testify, your motions in limine have been filed and you have reviewed prior testimony of opposing counsel's experts. There should be no more surprises. However, when you walk into your office that morning, you receive an unexpected e-mail from opposing counsel — a new expert report. You think to yourself, "We are six months past the case management expert deadlines. No way is the court going to allow this expert to testify."

Well, think again, because the answer may shock you.

The decision to permit or preclude expert testimony is within the discretion of the trial court. In assessing whether to preclude expert witnesses at the time of trial, the court will be looking at whether or not the production of the late expert report causes the opposing party to suffer undue prejudice. More often than not, the answer is no.

Pa. R.C.P. 4003.5 (b) relates to the discovery of expert testimony and provides that if a party fails to disclose the expert witness it plans to call, as well as the substance of the potential testimony as required by other discovery rules, then the expert witness "shall not be permitted to testify on behalf of the defaulting party at the trial of the action." Despite the rule's use of the obligatory word "shall," the Pennsylvania Supreme Court has made it clear that the rule does not require preclusion, but permits it only if the facts of the case warrant. Courts feel that to preclude the testimony of an expert is a drastic sanction and that preclusion could be an abuse of discretion if the facts of the case do not warrant it.

When making a determination of whether an expert witness will be precluded at trial, courts continue to look to the factors set forth in Feingold . In Feingold v. SEPTA , a 1985 ruling, the state Superior Court reviewed the four factors that a trial court must consider in deciding whether to preclude expert testimony: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule would disrupt the orderly and efficient trial of the case or of other cases in the court; and (4) bad faith or willfulness in failing to comply with the court's order. The standard for determining whether a trial court should preclude a witness from testifying is a balancing of these four factors.

In Feingold , the state Superior Court set forth that "in the absence of bad faith or willful disobedience of the rule, the most significant considerations are the importance of the witness' testimony and the prejudice, if any, to the party against whom the witness will testify." To determine whether opposing counsel acted in bad faith, courts will look at whether the production of the late report is an isolated occurrence or whether there has been a history of violating court orders. The late production of an expert report in and of itself does not amount to bad faith or willful disobedience. However, bad faith may be found if opposing counsel has engaged in a pattern of dilatory and vexatious behavior.

Of the four factors, courts are most likely to preclude an expert from testifying upon a finding of incurable prejudice. So, if you are on the receiving end of a late expert report, the task before you is to be able to show that you are unable to cure any prejudice. For example, there may be a finding of incurable prejudice if your expert is not available to testify at trial. If your expert has already testified by videotape, the prejudice of an opposing expert's late report cannot be cured by any rebuttal testimony. Getting your expert's reaction to a new report would be considered a disruption of the case.

However, persuading a court of incurable prejudice may be difficult. Courts have found that there is the ability to cure the prejudice of a late expert report even if it is produced on the eve of trial. In its 1987 decision in Linker v. Churnetski Transportation Inc ., the state Superior Court held that expert testimony should not be precluded even though the expert report was not produced until the second day of trial. After an analysis of the Feingold factors, the court held that the expert witness was so important that the trial court abused its discretion by precluding him from testifying at trial.

The same result was seen in Kemp v. Qualls , a 1984 state Superior Court opinion, where the identity of a witness was not disclosed until three days before the trial. In Kemp , the court found that although the expert was not disclosed until three days before the start of trial, it was 13 days before the expert actually testified. There was no real prejudice from the late disclosure because opposing counsel had time to investigate the witness before he testified during trial.

Clearly, it is often difficult to demonstrate a real prejudice that would preclude a late expert report. However, if you find yourself staring at a new expert report only a few weeks away from trial, you do have some options available to you to attempt to preclude the expert.

Remember that the courts are always going to look at the extent of the prejudice and whether the attorney attempted to cure the prejudice. Therefore, if you receive a late expert report, immediately file a motion in limine to preclude the expert from testifying at trial. If you fail to properly raise your objection to the report, the court will find that you have done nothing to cure the prejudice and most likely the report will come in. Second, request a continuance so that you have more time to rebut this new expert's opinions with either a supplemental report from one of your existing experts or by retaining a new expert. If you fail to file a motion and/or seek a continuance, the court might find that your inaction mitigated any real prejudice caused by the untimely disclosure of the report.

In your motion, make sure to argue that the prejudice suffered by the late expert report cannot be cured. For example, illustrate that the expert's testimony presents a brand new issue into the case. If a new report interjects new theories never before presented in the litigation, this surprise might amount to an incurable prejudice. Remember that a bare allegation of prejudice is not sufficient. You must show actual prejudice and that it cannot be cured.

Therefore, next time you receive that late expert report, you should ask yourself four questions: (1) How great is the prejudice or surprise of the party against whom the witness would have testified to? (2) Is there the ability to cure that prejudice? (3) Would permitting this expert to testify disrupt the orderly and efficient trial of the case? And (4) did opposing counsel willingly act in bad faith?

The preclusion of an expert's testimony is a drastic sanction and will only be done when the facts of the case make it absolutely necessary. Therefore, more often than not, courts will find that a party has had adequate time to digest a late report and have its own expert review it and rebut it at trial. The next time you find a new expert report on your desk from opposing counsel on the eve of trial, don't be surprised if that expert will eventually be allowed to testify. 

Tara Dickerman is an attorney in Obermayer Rebmann Maxwell &Hippel’s litigation department. She focuses her practice on medical malpractice defense. She can be reached at tara.dickerman@obermayer.com.


Reprinted with permission from the March 20, 2012, edition of THE LEGAL INTELLIGENCER.© 2012 ALM Media Properties. All rights reserved. Further duplication without permission is prohibited.