applying this standard to a motion to strike expert rebuttal reports as violative of Rule 26(b)(2)
How later courts described this case
- applying this standard to a motion to strike expert rebuttal reports as violative of Rule 26(b)(2)
- reversing the exclusion of the witnesses’ testimony where the failure to include the witnesses in the pretrial memoranda was not a result of bad faith but of late discovery'of the witnesses, the • plaintiff informed the defendant of the discovery of the witnesses three weelcs before trial but defendant did not attempt to gain information about these witnesses; and the possibility existed of postpon *741 ing the trial for a few days, conducting further discovery and taxing the costs to the plaintiff
- evidence should be excluded only in cases involving flagrant disregard of a court order or willful deception
- “we are required to review the district court’s holding as it applies to sections 1981 and 1982”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113 (1985)
559 F.2d 894, 904-05 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113
Overruled on other grounds by In Re: Tmi Litigation Lori Dolan Joseph Gaughan Ronald Ward Estate of Pearl Hickernell Kenneth Putt Estate of Ethelda Hilt Paula Obercash Jolene Peterson Estate of Gary Villella Estate of Leo Beam, No. 96-7623 in Re: Tmi Litigation All Except Lori Dolan, Joseph Gaughan, Ronald Ward, Estate of Pearl Hickernell, Kenneth Putt, Estate of Ethelda Hilt, Paula Obercash, Jolene Peterson, Estate of Gary Villella and Estate of Leo Beam, No. 96-7624 in Re: Tmi Litigation, 193 F.3d 613 (1999)
559 F.2d 894 (3d Cir.1977), overruled on other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985). In re TMI Litig., 193 F.3d 613, 721 (3d Cir.1999).
Abrogated on other grounds by Wilson v. Garcia, 471 U.S. 261 (1985)
559 F.2d 894, 904-05 (3d Cir.1977), abrogated on other grounds by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985),
Distinguished
Distinguished by Addie v. Kjaer, 50 V.I. 914 (2008)
Meyers is inapplicable to this matter because the Court is not excluding the testimony of an unlisted witness.
Distinguished by Kickapoo Oil Co. v. Clark Oil & Refining Corp., 788 F.2d 11 (1985)
” The Meyers holding is inapposite, since the length of time needed to prepare cross-examination of a fact witness ordinarily will be much shorten than that needed to prepare for an expert witness intending to testify as to a complex pricing methodology.
The opinion
WEIS, Circuit Judge,
concurring and dissenting:
I join in Parts I, II and III of the majority opinion. However, I am unable to agree with the majority view in Part IV that the trial judge’s refusal to allow two proposed witnesses to testify was an abuse of discretion.
On numerous occasions, this Court has held that the determination as to whether a party should be held to pretrial orders is within the discretion of the trial judge. Absent a clear abuse of that discretion, we will not interfere with such rulings. See, e. g., De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972); Ely v. Reading Company, 424 F.2d 758 (3d Cir. 1970). That principle should be applied here.
The plaintiff filed an amended pretrial memorandum on February 23, 1976, and a pretrial conference took place on that day. The letter from plaintiff’s counsel listing four additional witnesses was dated February 26, 1976. The record does not reveal when it was delivered to defense counsel, but the objection dated March 3, 1976 followed soon thereafter.
Under local Rule 7 of the district court, only witnesses listed in the pretrial order will be permitted to testify except to “prevent manifest injustice.” The trial judge noted that the rule was designed to give both sides an opportunity to explore the facts in the case and that it was unfair to bring in a witness at the eleventh hour when the other party could not arrange for a deposition.
The majority faults defendant for not contacting plaintiff’s counsel to secure information from him, not initiating further discovery, or taking other steps to minimize prejudice. In short, the burden is placed on the defendant to cure a situation brought on by the plaintiff’s dereliction. The record contains no explanation of when plaintiff first learned of the witness, particularly if his identity were discovered before February 23, the date of the pretrial conference; or why plaintiff did not request an amendment of the pretrial order or a further pretrial conference. Conspicuously lacking also is the justification plaintiff had for his failure to be prepared for pretrial as required by the court’s order of November 18, 1975.
Since the time for discovery fixed by the court had expired, defendant was not free to depose the four proposed witnesses in the absence of a court order. Under the circumstances, one would have expected the plaintiff at least to have delivered a statement of the proposed witnesses’ testimony and an offer to arrange for depositions, if agreeable to the court. Plaintiff did nothing, choosing instead to wait until the day of trial for a ruling from the court. I find no abuse of discretion on this record and, therefore, do not agree with the majority’s remand order. Since I am in the minority, however, and the remand will take place, I note my concurrence with Judge Rosenn’s suggestion that because this is a non-jury trial, a limited reopening may suffice.
In view of the remand order, it is not appropriate for me to express my views on the other serious issues not reached by the majority and the ultimate disposition of the case.