Gettler v. Hofer

5 Pa. D. & C.5th 522
CourtPennsylvania Court of Common Pleas, Lebanon County
DecidedSeptember 29, 2008
Docketno. 2003-01718
StatusPublished

This text of 5 Pa. D. & C.5th 522 (Gettler v. Hofer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gettler v. Hofer, 5 Pa. D. & C.5th 522 (Pa. Super. Ct. 2008).

Opinion

CHARLES, J.,

Before us is a motion entitled “plaintiffs’ motion to preclude addi[524]*524tional discovery.” While cleverly couched, it is obvious to us that what plaintiffs truly seek is preclusion of testimony by defendant’s expert witness. For reasons that follow, we do not believe that the circumstances of this case justify the “drastic” remedy of evidence preclusion. Thus, we will be denying plaintiffs’ motion. However, because the conduct of defendant’s expert will cause plaintiffs delay and inconvenience, we will be awarding plaintiffs relief that we find appropriate under the circumstances presented.

I. FACTS

On June 13, 2008, we conducted a status conference in the above-referenced case. At that time, counsel for the parties advised us that discovery was nearly complete and that everyone wished to move the above-referenced matter forward toward a trial. As a result of our discussion with the parties, we entered an order establishing August 15, 2008 as a discovery deadline. Everyone’s expectation was that the above-referenced matter could be tried before a jury during the November term of civil court.

By agreement of counsel, both parties agreed that the discovery deadline would not apply to videotape depositions used for trial.1 Pursuant to this agreement, defendant scheduled the videotape deposition of Dr. Larry Rotenberg for August 19, 2008. On that date, both counsel arrived at Dr. Rotenberg’s office expecting that Dr. Rotenberg’s testimony would be preserved for trial.

[525]*525When defendant’s counsel met with Dr. Rotenberg prior to commencement of the deposition, she learned for the first time that Dr. Rotenberg had procured psychological testing from two psychologists, Dr. Paul Delfín and Dr. Peter Thomas. Defense counsel notified plaintiffs’ attorney about the situation and provided copies of reports authored by Dr. Delfín and Dr. Thomas. Plaintiffs’ counsel was understandably upset given that he did not even know of the existence of Dr. Thomas and Dr. Delfín until the day of Dr. Rotenberg’s deposition.

Ultimately, Dr. Rotenberg’s deposition was canceled. When defendant’s counsel sought to reschedule, plaintiffs responded with the motion now before us. Both sides have filed briefs in support of their respective positions. The question of whether we should permit Dr. Rotenberg to provide testimony based upon the reports of Dr. Thomas and Dr. Delfín is now before us for disposition.

II. DISCUSSION

We confess that our sympathy and our “gut instinct” favor plaintiffs with respect to this dispute. This case was proceeding forward pursuant to our status conference order, and plaintiffs had every right to rely upon the premise that they would not be blindsided with new and previously undisclosed information. In candor, we take this opportunity to advise defendant that we were very tempted to grant plaintiffs’ motion.

Unfortunately for plaintiffs, the law simply does not favor the relief they seek. With respect to discovery issues, evidence preclusion has been described by our [526]*526appellate courts as a “drastic remedy” that should be employed only sparingly. See e.g., Kearns by Kearns v. DeHaas, 377 Pa. Super. 200, 546 A.2d 1226 (1988). Our appellate cases consistently instruct us to eschew evidence preclusion as a remedy wherever it is possible under the equities of a given situation. See e.g., Green Construction Co. v. PennDOT, 164 Pa. Commw. 566, 643 A.2d 1129 (1994).

Pa.R.C.P. 4003.5 governs discovery of expert testimony. Sub-section (b) of the rule precludes a party from calling an undisclosed expert. However, sub-section (b) also states: “[I]f the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.”

Sub-section (b) of Rule 4003.5 was invoked by our Supreme Court in Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). In Feingold, plaintiff’s treating physician had been listed as a witness by plaintiff but not defendant. Plaintiff did not call the treating physician. During its case-in-chief, defendant sought to do so. The trial court ruled that defendant could not call plaintiff’s physician because defendant did not list the physician as a witness in his pretrial statement. The Supreme Court reversed the trial court, holding that Pa.R.C.P. 4003.5 requires a trial court to “balance the facts and circumstances of each case to determine the prejudice to each party.” Id. at 573, 517 A.2d at 1273. Among the factors to be used within the balancing test are the following:

(1) Whether the party seeking to call the witness engaged in bad faith;

[527]*527(2)Did the party seeking to call the witness have the ability to discover the identity of the witness earlier;

(3)Whether the party seeking to call the witness proffered a legitimate excuse;

(4)Did the party seeking to call the witness “willfully” fail to comply with a court order;

(5)Did the party seeking to call the witness intend to mislead or confuse his adversary; and

(6)What is the importance of the proffered testimony. Summarizing all of these factors, the court stated:

“Underlying the cases to which we have adverted are these basic considerations: (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 against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases of the court, and (4) bad faith [or] willfulness in failing to comply with the court’s order.” Id. at 574, 517 A.2d at 1274.

The principles enunciated in Feingold have been applied on numerous occasions by our appellate courts. For example, in Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451 (1987), the Superior Court reversed a trial judge’s decision to bar defendant’s expert from testifying because he was unidentified in interrogatories. The court emphasized that defendant’s original expert became unavailable shortly before trial and the defendant acted promptly to procure another witness and notify plaintiff of what the new witness [528]*528would say. Similarly, in Green Construction Co. v. PennDOT, 164 Pa. Commw. 566, 643 A.2d 1129 (1994), the Commonwealth Court upheld a trial court’s decision to permit a defense expert who was only disclosed five days prior to trial. The court stated:

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Related

Feingold v. Southeastern Pennsylvania Transportation Authority
517 A.2d 1270 (Supreme Court of Pennsylvania, 1986)
Curran v. Stradley, Ronon, Stevens & Young
521 A.2d 451 (Supreme Court of Pennsylvania, 1987)
KEARNS BY KEARNS v. DeHaas
546 A.2d 1226 (Supreme Court of Pennsylvania, 1988)
Green Construction Co. v. Department of Transportation
643 A.2d 1129 (Commonwealth Court of Pennsylvania, 1994)
Aiello v. Southeastern Pennsylvania Transportation Authority
687 A.2d 399 (Commonwealth Court of Pennsylvania, 1996)

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Bluebook (online)
5 Pa. D. & C.5th 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gettler-v-hofer-pactcompllebano-2008.