Klonoski v. Mahlab

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Court of Appeals for the First Circuit·Decided September 25, 1998·No. 97-1976·Published

Opinion

USCA1 Opinion

United States Court of Appeals
For the First Circuit

No. 97-1976

RICHARD F. KLONOSKI, M.D., ET AL.,

Plaintiffs, Appellants,

v.

BENJAMIN MAHLAB, M.D., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Joan A. Lukey, with whom Hale and Dorr LLP, Michael G.
Bongiorno, and John T. Gutkoski were on brief for appellants.
Ronald L. Snow, with whom Orr & Reno, P.A., James P. Bassett,
and Cordell A. Johnston were on brief for appellees.

September 23, 1998

BOWNES, Senior Circuit Judge. This is an appeal from a
jury verdict of no liability in a medical malpractice case.
Plaintiff-appellant is Richard K. Klonoski, M.D., who brought suit
on his own behalf for loss of consortium, as administrator of the
estate of his wife Jolanta, and on behalf of their three children.
Defendants-appellees are Benjamin Mahlab, M.D., Mary Hitchcock
Memorial Hospital, Inc., and Hitchcock Clinic, Inc.
We address only one of the three issues raised by
appellant because it is dispositive. On the thirteenth day of
trial during cross-examination of Dr. Klonoski, the last witness in
plaintiff's case, defendants disclosed for the first time and used
letters written by Mrs. Klonoski to her sister in Poland. Excerpts
from the letters were allowed in evidence. Neither Dr. Klonoski
nor his attorneys knew of the existence of the letters prior to
this time, despite a court order requiring disclosure of such
information prior to trial. We find that this constituted trial by
ambush. We vacate the judgment below and remand for a new trial.
I.
BACKGROUND

Jolanta Klonoski and her husband, Dr. Klonoski, were the
parents of two children: Brian, born in Poland, and Karina, born
in the United States. Dr. Klonoski was born and raised in
Connecticut. He received his medical training in Poland where he
met and married his wife. After he finished his medical training,
he, his wife, and their son, Brian, moved to the United States.
Mrs. Klonoski became pregnant with their third child in September
or October of 1992. At that time Dr. Klonoski was employed by Mary
Hitchcock Memorial Hospital as a cardiologist. On Saturday, May 8,
1993, at approximately 11:15 a.m., Mrs. Klonoski went to the
Birthing Pavilion of the Dartmouth-Hitchcock Medical Center because
of vaginal spotting. She was sent home in the afternoon. Mrs.
Klonoski returned to the Birthing Pavilion that night about 9:00
p.m. complaining of severe epigastric pain. She remained in the
hospital until her death on Monday, May 10, of a massive cerebral
hemorrhage. Prior to Mrs. Klonoski's death she was delivered of a
healthy baby girl, subsequently named Caroline.
Dr. Klonoski was in San Diego at a medical meeting of
cardiologists on Saturday, May 8. He was notified late Saturday of
his wife's admission to the hospital. He flew home on Sunday,
arriving at the hospital late in the day. His wife was comatose
and did not recognize him. After conducting his own investigation
into the cause of his wife's death, Dr. Klonoski consulted with an
obstetrician in Connecticut and then brought suit.
PRETRIAL DISCOVERY
As is usual in a well prepared medical malpractice case,
both sides engaged in extensive pretrial discovery and, as is also
usual, the parties squabbled about what information should or
should not be disclosed. Over a year prior to trial, plaintiff
disclosed, as part of the discovery process, the address in Poland
where Mrs. Klonoski's father and sister lived, the address to which
her letters (the evidence in dispute) were sent.
The district court issued a nineteen-page discovery order
on July 19, 1996, covering disputes between the parties. In part
of its order, the court stated:
defendants shall produce a list of all persons
known by them to possess discoverable
information related to: (1) marital discord
between Dr. and Mrs. Klonoski; and (2) the
paternity of Dr. Klonoski's youngest daughter.
To the extent defendants can more persuasively
support their assertion that such a list (or
the names of particular people which would
otherwise appear on such a list) is protected
by the work product doctrine (i.e., with
references to precedent and/or scholarly
writings on the subject), they shall provide
plaintiffs with a privilege log as
contemplated by Fed. R. Civ. P. 26(b)(5) and a
list of cases and/or scholarly writings which
specifically support their claim of privilege.
Plaintiffs will, of course, then be free to
file an appropriate motion to compel.

In its conclusion the court ordered:
Defendants shall produce a list of the names
of individuals having knowledge of
discoverable information relating to the
issues of marital discord and paternity and a
general description of the nature of that
information on or before August 14, 1996. To
the extent that defendants are able, in good
faith, to legally support an assertion of
privilege with regard to some or all of those
names, they shall produce a privilege log as
described above.

A final pretrial order was issued on December 19, 1996.
It provided that a jury would be drawn on January 7, 1997, and the
presentation of evidence would commence on January 13. The order
noted that both parties had submitted requests for jury
instructions. After noting that some motions in limine had been
filed, the court gave the parties until December 31, 1996 to file
additional motions in limine, with objections to be filed not later
than January 10, 1997. Exhibits were to be premarked and
submitted, along with any objections, not later than January 7,
1997. Defendants were ordered to "disclose all documents ordered
disclosed after close of business on December 27, 1996, forthwith
[sic]."
The penultimate paragraph stated in pertinent part:
All counsel and the court anticipate
conducting a brief Daubert hearing prior to
the testimony of plaintiffs' psychological
expert, who is expected to testify as to the
loss of enjoyment of life, or hedonic damage,
aspect of the estate's wrongful death claim.
The court expects that that hearing will be
held at some point during the first week of
trial as is convenient to counsel, and the
parties agree that one hour should be
sufficient.

The order also required a "final will-call witness list." The
final paragraph exhorted the parties to try to settle the case. It
would appear from the order that all discovery had been completed
and the case was ready for trial.

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USCA1 Opinion

United States Court of Appeals

For the First Circuit

No. 97-1976

RICHARD F. KLONOSKI, M.D., ET AL.,

Plaintiffs, Appellants,

BENJAMIN MAHLAB, M.D., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Joan A. Lukey, with whom Hale and Dorr LLP, Michael G.

Bongiorno, and John T. Gutkoski were on brief for appellants.

Ronald L. Snow, with whom Orr & Reno, P.A., James P. Bassett,

and Cordell A. Johnston were on brief for appellees.

September 23, 1998

BOWNES, Senior Circuit Judge. This is an appeal from a

jury verdict of no liability in a medical malpractice case.

Plaintiff-appellant is Richard K. Klonoski, M.D., who brought suit

on his own behalf for loss of consortium, as administrator of the

estate of his wife Jolanta, and on behalf of their three children.

Defendants-appellees are Benjamin Mahlab, M.D., Mary Hitchcock

Memorial Hospital, Inc., and Hitchcock Clinic, Inc.

We address only one of the three issues raised by

appellant because it is dispositive. On the thirteenth day of

trial during cross-examination of Dr. Klonoski, the last witness in

plaintiff's case, defendants disclosed for the first time and used

letters written by Mrs. Klonoski to her sister in Poland. Excerpts

from the letters were allowed in evidence. Neither Dr. Klonoski

nor his attorneys knew of the existence of the letters prior to

this time, despite a court order requiring disclosure of such

information prior to trial. We find that this constituted trial by

ambush. We vacate the judgment below and remand for a new trial.

BACKGROUND

Jolanta Klonoski and her husband, Dr. Klonoski, were the

parents of two children: Brian, born in Poland, and Karina, born

in the United States. Dr. Klonoski was born and raised in

Connecticut. He received his medical training in Poland where he

met and married his wife. After he finished his medical training,

he, his wife, and their son, Brian, moved to the United States.

Mrs. Klonoski became pregnant with their third child in September

or October of 1992. At that time Dr. Klonoski was employed by Mary

Hitchcock Memorial Hospital as a cardiologist. On Saturday, May 8,

1993, at approximately 11:15 a.m., Mrs. Klonoski went to the

Birthing Pavilion of the Dartmouth-Hitchcock Medical Center because

of vaginal spotting. She was sent home in the afternoon. Mrs.

Klonoski returned to the Birthing Pavilion that night about 9:00

p.m. complaining of severe epigastric pain. She remained in the

hospital until her death on Monday, May 10, of a massive cerebral

hemorrhage. Prior to Mrs. Klonoski's death she was delivered of a

healthy baby girl, subsequently named Caroline.

Dr. Klonoski was in San Diego at a medical meeting of

cardiologists on Saturday, May 8. He was notified late Saturday of

his wife's admission to the hospital. He flew home on Sunday,

arriving at the hospital late in the day. His wife was comatose

and did not recognize him. After conducting his own investigation

into the cause of his wife's death, Dr. Klonoski consulted with an

obstetrician in Connecticut and then brought suit.

PRETRIAL DISCOVERY

As is usual in a well prepared medical malpractice case,

both sides engaged in extensive pretrial discovery and, as is also

usual, the parties squabbled about what information should or

should not be disclosed. Over a year prior to trial, plaintiff

disclosed, as part of the discovery process, the address in Poland

where Mrs. Klonoski's father and sister lived, the address to which

her letters (the evidence in dispute) were sent.

The district court issued a nineteen-page discovery order

on July 19, 1996, covering disputes between the parties. In part

of its order, the court stated:

defendants shall produce a list of all persons

known by them to possess discoverable

information related to: (1) marital discord

between Dr. and Mrs. Klonoski; and (2) the

paternity of Dr. Klonoski's youngest daughter.

To the extent defendants can more persuasively

support their assertion that such a list (or

the names of particular people which would

otherwise appear on such a list) is protected

by the work product doctrine (i.e., with

references to precedent and/or scholarly

writings on the subject), they shall provide

plaintiffs with a privilege log as

contemplated by Fed. R. Civ. P. 26(b)(5) and a

list of cases and/or scholarly writings which

specifically support their claim of privilege.

Plaintiffs will, of course, then be free to

file an appropriate motion to compel.

In its conclusion the court ordered:

Defendants shall produce a list of the names

of individuals having knowledge of

discoverable information relating to the

issues of marital discord and paternity and a

general description of the nature of that

information on or before August 14, 1996. To

the extent that defendants are able, in good

faith, to legally support an assertion of

privilege with regard to some or all of those

names, they shall produce a privilege log as

described above.

A final pretrial order was issued on December 19, 1996.

It provided that a jury would be drawn on January 7, 1997, and the

presentation of evidence would commence on January 13. The order

noted that both parties had submitted requests for jury

instructions. After noting that some motions in limine had been

filed, the court gave the parties until December 31, 1996 to file

additional motions in limine, with objections to be filed not later

than January 10, 1997. Exhibits were to be premarked and

submitted, along with any objections, not later than January 7,

1997. Defendants were ordered to "disclose all documents ordered

disclosed after close of business on December 27, 1996, forthwith

[sic]."

The penultimate paragraph stated in pertinent part:

All counsel and the court anticipate

conducting a brief Daubert hearing prior to

the testimony of plaintiffs' psychological

expert, who is expected to testify as to the

loss of enjoyment of life, or hedonic damage,

aspect of the estate's wrongful death claim.

The court expects that that hearing will be

held at some point during the first week of

trial as is convenient to counsel, and the

parties agree that one hour should be

sufficient.

The order also required a "final will-call witness list." The

final paragraph exhorted the parties to try to settle the case. It

would appear from the order that all discovery had been completed

and the case was ready for trial.

DIRECT EXAMINATION OF DR. KLONOSKI

We next set forth the pertinent parts of Dr. Klonoski's

testimony.

After moving from Poland to the United States, Mrs.

Klonoski wrote frequently to her family in Poland and sent packages

to them. Her father visited her and Dr. Klonoski, and stayed for

six months. She was quite happy when he was there, but felt lonely

when he went back to Poland. Dr. Klonoski was working long hours

at the hospital in Connecticut where he was training.

Consequently, he was not spending much time at home with his

family. His wife complained about the long hours he had to spend

at the hospital. Mrs. Klonoski was thirty-five years of age. She

did not have a driver's license and was "house-bound" with their

two small children.

In early 1990 there was a period of stress in the

marriage. Dr. and Mrs. Klonoski "had some strong discussions."

"[T]here was a lot of stress between us." The problem was that

Mrs. Klonoski wanted her husband to spend more time at home with

the family. He could not accommodate her because he was in the

residency program at the hospital which required that he spend a

great deal of time there.

Dr. Klonoski became angry at his wife and filed for

divorce. The divorce proceedings remained pending for four or five

weeks. The couple did not stop living together during this period.

There was more stress in the house, "but everything typically went

on." At the end of the five-week period Dr. Klonoski and his wife

talked things out and decided that they did not want a divorce, so

the divorce proceeding was dropped. In May of every year, Dr.

Klonoski gave his wife one rose for each year that had passed since

their first meeting in Poland. In May of 1990 the doctor followed

this ritual.

Things eventually changed "tremendously" for the better.

Dr. Klonoski completed his residency program in June of 1990 and he

went on to a sub-specialty program. This enabled him to spend more

time with his family. Mrs. Klonoski became pregnant in June of

1990.

Dr. Klonoski had been accepted into the cardiology

program at the Mary Hitchcock Memorial Hospital and the Hitchcock

Clinic in 1989. The family moved to Lebanon, New Hampshire, in

June of 1990. Mrs. Klonoski was excited about the move. It was "a

new stage in [their] lives." When the Klonoskis relocated to

Lebanon, Mrs. Klonoski was pregnant, their oldest child, Brian, was

six, and their daughter Karina was three. A short time later, in

July 1990, Mrs. Klonoski had a miscarriage. She was treated by

doctors at the Dartmouth-Hitchcock Clinic.

Mrs. Klonoski could not reconcile herself to the fact

that her husband had to work harder than Polish doctors. She did

not like his going to medical conferences because he was away from

the family too much. Outside of this, things were "going great"

between Dr. Klonoski and his wife. She "blossomed" and became very

self-confident and self-reliant. She obtained a driver's license

just before she left Connecticut for New Hampshire. This helped a

lot because she could go places with the children and do things.

In October of 1990 she obtained a job as a bank teller.

She also attended Lebanon College. After she had been there a

time, she was offered a position teaching Polish but refused

because she did not want to take too much time away from the

family. She was devoted to the children.

Mrs. Klonoski became pregnant again in the fall of 1991.

She suffered another miscarriage. Both spouses were devastated.

Routine testing was advised and Dr. Klonoski encouraged his wife to

take the tests. She did not, however, take all of the tests.

Generally speaking, Mrs. Klonoski was healthy. She exercised by

doing calisthenics and running.

Mrs. Klonoski made a lot of friends in Lebanon. She was

ebullient, very outgoing, very effervescent. Dr. and Mrs. Klonoski

socialized occasionally, but were not party people. They preferred

to spend their leisure time together as a family.

Mrs. Klonoski became pregnant again in September or

October of 1992. Both spouses were worried because of the prior

miscarriages. This was the pregnancy that ended in the birth of a

daughter, Caroline, and Mrs. Klonoski's death.

There was considerable testimony about Mrs. Klonoski's

physical condition during the pregnancy. She did not complain to

her husband excessively. In early spring, 1993, Dr. Klonoski

accepted a fellowship at Massachusetts General Hospital in Boston.

His wife was concerned about moving to Boston.

The family attended Dr. Klonoski's brother's wedding on

April 24, 1993. He was an usher and his son, Brian, was the ring

bearer. A videotape taken at the wedding showing his wife and

daughter was presented to the jury. This was a good period during

their marriage marred only by the worries both had about the

pregnancy and the move to Boston.

Dr. Klonoski was away at a medical conference in San

Diego the week his wife was admitted to the hospital. The

conference was important to his career because of the knowledge he

would get in his specialty and as a job forum. He had skipped two

prior conferences, once because his wife had asked him not to go

and another time because she had recently had a miscarriage. Mrs.

Klonoski was "not thrilled" about his going to the conference, but

she did not ask him not to go. Other doctors and some nurses from

the Hitchcock Hospital-Clinic establishment also attended the

conference in San Diego. Dr. Klonoski left for the conference on

May 5; his return was scheduled for May 9. His wife's due date was

May 28. Before he left he bought her a bouquet of her favorite

flowers for Mother's Day on May 9. At the time Dr. Klonoski left,

Mrs. Klonoski had not exhibited any signs of serious problems. He

was not even aware that his wife was ill when he left.

Dr. Klonoski called home on Friday evening. His wife

told him that everything went fine at her prenatal visit, but that

she did not feel well and if she continued to feel badly, she would

go to the doctor the next day. She called the next day and told

him that she continued to feel poorly and was going to the

hospital. She did not mention vaginal bleeding. We have already

related the essentials of what happened at the hospital when Dr.

Klonoski visited his wife. She was comatose by the time he arrived

at the hospital and did not recognize him. He was informed by a

neurosurgeon that his wife was brain-dead due to a massive

hemorrhage of her brain. He was with her when the life supports

were disconnected and she died.

Direct examination of Dr. Klonoski drew to a close with

his statement, "I loved my wife without reservation, and I still

love her."

CROSS-EXAMINATION OF DR. KLONOSKI

On cross-examination, it was established that Dr.

Klonoski was suing, inter alia, as administrator of his wife's

estate. He acknowledged that his wife did not have a will and he

knew he would receive the first $100,000 of his wife's estate.

It was brought out that initially after their marriage

his wife stayed in Poland for a time while he was in the United

States working as a medical clerk. During this time he and his

wife corresponded regularly. All of his wife's letters to him were

written in Polish. In response to questions he stated that his

wife had an older sister, named Marta.

Dr. Klonoski testified, as he had on direct examination,

that his wife's father had visited in the fall and winter of 1989-

90. Other than Christmas cards, he had not stayed in touch with

his wife's family and had not sent them photographs of the children

subsequent to his wife's death.

There was a series of questions about his wife's plans

for the future. He testified that he had no specific information

about his wife's future plans. He did not know any of his wife's

friends who worked at the same bank as she did. He had never met

any of his wife's work-colleagues.

Dr. Klonoski testified that he and his wife planned the

pregnancy that resulted in her death and the birth of their third

child, Caroline. He testified that everybody in the cardiology

department was very helpful and supportive after his wife's death.

Money was collected for his family and food was prepared for the

children and himself. All of this was very helpful and he

appreciated what was done.

Then followed a series of questions setting the stage for

the use of the letters that are the heart of this appeal. Dr.

Klonoski acknowledged that he was seeking damages for injury to the

marital relationship with his wife and damages for his wife's loss

of enjoyment of life. In answer to a question, Dr. Klonoski agreed

that the quality of the marital relationship would be an important

factor in the enjoyment of life. He also agreed that a good

marriage would improve the quality of life. Dr. Klonoski

testified, as he had on direct examination, that by the time he and

his wife and their two children moved to Lebanon, the marriage was

getting along much better; the primary ongoing issue was the time

he spent away from the house and family.

In answer to a question, Dr. Klonoski testified that he

knew that his wife corresponded with her father and sister, Marta,

in Poland. Dr. Klonoski was then asked: "[I]f I were to show you

a letter, you'd certainly be able to recognize your wife's

handwriting; is that right?" The answer was "Yes, I would." After

Dr. Klonoski testified that his wife's sister lived in Krakow,

defense counsel began to show the witness a document marked for

identification. At this point, plaintiff's counsel requested a

bench conference. The request was granted.

We feel it necessary to quote at length the bench

conference.

MS. LUKEY: I don't have a clue what this

is, but it's never been produced in discovery,

and there is absolutely no question that we

requested anything that they intend to use in

this case. I have no idea where it came from

or what it might be. And I assume it's in

Polish, so I can't read it, but really this is

unfair.

THE COURT: What is it?

MR. BASSETT: It's impeachment. This is

a letter written by Mrs. Klonoski to her

sister Marta in Poland. And this letter

happens to have been written in late April of

1993 and early May of 1993, and it contains in

it a description of a number of things, most

prominently the marital relationship and the

significant problems that Mrs. Klonoski

believed existed at that time, and I don't

believe we actually just got that letter

last night.

MS. LUKEY: Your Honor, we had, as you

recall, a court-ordered disclosure from them

pertaining to anything to do with alleged

marital discord. This was not disclosed to

us. I don't know where it came from. I don't

know what he's doing, but it obviously doesn't

give me the opportunity to speak, for example,

to his sister her sister, if that's the

recipient. I really think this is litigation

by ambush and totally inappropriate. This is

a situation with an actual court order.

MR. BASSETT: Your Honor, it's legitimate

cross-examination. We just got that last

night based on the testimony that we had heard

in this case, and it's legitimate cross-

examination. We are not required to disclose

what we are going to use on cross-examination.

We specifically brought it up with the Court,

and you said for impeachment and credibility,

we did not have to disclose it, and we didn't

have it until last night. But in any event,

we want to use it for that purpose, and I

think Attorney Lukey is entitled to go into

those issues on reexamination.

MS. LUKEY: Your Honor, he may not have

to disclose it on a trial exhibit list, but in

discovery he certainly has to disclose it if

he has knowledge of it, and we actually had to

get a court order to get their evidence on

marital discord. That was the reason we asked

for it.

THE COURT: But he didn't have it.

MR. BASSETT: Didn't have it until last

night.

MS. LUKEY: He should have had it, and

what is it that they're contending justifies

ambushing us with it at this moment in time.

....

MR. BASSETT: We, frankly, haven't had

the entire thing translated yet because it was

received this one was received this morning

actually. All we have had is a skeletal

translation of it, your Honor, but I think at

this point it's an admission by a party

opponent. It's her letter, and that's how it

would come into evidence.

THE COURT: What does it say?

MR. BASSETT: Well, it says quite a few

things. He can translate it for us.

THE COURT: I can't determine the

relevance of "quite a few things." That's not

relevant.

MR. BASSETT: I'll read you my

understanding of it, but it's this is the

last letter from Jola. This is a paraphrasing

of it right now, your Honor. We would ask him

to read it because he can read Polish and he

can translate it.

She goes on to the subject of his of

the pregnancy: I'm afraid of what's going to

happen. He cares only about his career. I

was surprised by his announcement that he was

leaving for California and for a business

trip.

There are problems with her spending

habits. He doesn't like it. I bought a baby

stroller, and he screamed at the top of his

lungs. I think we should get a divorce.

She mentions that Richard is working so

hard to become a cardiologist. She doesn't

say her situation will improve directly, but

intimation is she has a stake I don't

understand what all that is. I don't,

frankly, know what everything is in there, but

just the fact that she says she thinks we

should get a divorce is enough, your Honor.

And he can translate it.

And its an admission. . . . This is a

party-opponent admission. And just as we're

entitled to make the arguments that outweigh

it, so, too, Attorney Lukey can.

There are three more four more of

those. That's the first of the ones that I

intend to offer in evidence.

MS LUKEY: I would like to know how long

they've known of the existence of these

letters regardless of when they may have

received this one.

MR. BASSETT: I'll make a

representation of that.

THE COURT: How long have you known?

MR. BASSETT: We've known about them,

it's no more than two days. We received the

first of them

THE COURT: No, no.

MS. LUKEY: How did you know they were

there?

MR. BASSETT: We found Marta this week.

We found her three days ago. We looked for

her father.

MS. LUKEY: He's dead.

MR. BASSETT: And he's dead; that's

right. He died last winter. That's who we

were trying to find. Instead we found Marta

this week, and I can certainly get somebody to

prepare an affidavit to say that she was not

spoken to until two days ago, and in fact we

didn't get the first transcript of these

letters until yesterday afternoon. They were

faxed from Poland last night. The meeting

with Marta took place last night in Poland.

They were faxed to us, and I spent most of the

night up with these letters, and translators

spent most of the night with the letters, too.

We have the other letters translated. This

one we just received within two hours. So we

haven't had it fully translated.

MS. LUKEY: I have a serious issue with

this, your Honor. It's a little bit like

springing Dawn Rafferty on us right after

Christmas when she turns out to be Linda

Bowers' niece, and they've known about her

right along. There's nothing that I heard to

suggest this is not something they could have

determined earlier if they intended to use it.

This is truly an ambush. They knew about her

sister. That's not new. I don't know what it

is they think is new about this. But the fact

that they choose to wait until three and a

half weeks into a trial and then spring it on

us as purported impeachment I find extremely

troubling and inconsistent with the rules.

I also have a very strong suspicion that

the reason that they made a point with you in

our pretrial conference some months ago of

saying we don't have to show any impeachment,

right, is because they knew exactly what they

intended to do.

I don't know what Jola wrote, and it's

clear that Dr. Klonoski doesn't know what Jola

wrote. I find it very upsetting and extremely

inconsistent with the open disclosure rules of

current litigation that this would occur.

This is the kind of thing that occurred 25

years ago and was the whole reason the Rules

of Civil Procedure were adopted. I mean I've

built a whole case obviously, and they're

suddenly coming in and trying to spring

something on me about what the wife supposedly

felt. She's dead. I can't ask her.

But I do not feel this is appropriate. I

have heard nothing from Mr. Bassett that

suggests why he couldn't have come up with

this earlier if it was something they intended

to use. You don't keep investigating the case

when the trial is in process.

MR. BASSETT: Yes, you do.

THE COURT: A lot of people do.

MS. LUKEY: But it's inappropriate.

MR. BASSETT: Based on the type of

testimony we got in this case

MS. LUKEY: What in this case has

justified this that you didn't know before?

MR. BASSETT: We couldn't find them, and

we found them now, your Honor.

MS. LUKEY: All you had to do was ask for

the address.

....

MS. LUKEY: Your Honor, my problem is the

method that they've done this.

THE COURT: Your problem is you don't

accept that they just knew about it. I do

accept that they did just find out as he's

represented to me.

MS. LUKEY: It isn't just whether they

just knew about it. You're right. I do not

believe that they just found out about it.

You're absolutely correct.

But quite apart from that is the fact

that what one is supposed to do is to do one's

discovery and so forth for trial by the

discovery disclosure date in order to ensure

under the Rules of Civil Procedure, the

information you come up with is shared if

appropriately requested by the other party.

In this case it was not only requested, we had

to get a court order. We got the court order

regarding all evidence they had on the subject

of alleged marital discord.

MR. BASSETT: That was to identify the

witnesses.

THE COURT: Take the next step. Then you

have all the evidence they had on marital

discord.

MS. LUKEY: And, frankly, that evidence

doesn't trouble me. Then they come up with

this.

THE COURT: That's a different test.

MS. LUKEY: I understand, your Honor. My

point is if it were in fact the case that it

was okay to send your investigator out while

the trial was in progress, what everyone would

do in order to avoid the necessity of

disclosing materials that are particularly

good for ambushing the other side is not do

their investigation until the time of trial.

THE COURT: Well, I hear you, but I don't

agree with you. You took the initiative to

put on the evidence of a good marriage, stable

marriage. Everything's hunky-dory and

wonderful.

MS. LUKEY: As far as he knew.

THE COURT: Well, as far as he knew. But

to the extent that's relevant, I've already

my view, I don't think it's particularly

relevant one way or the other. But both of

you think it is, and once you do that, they

have a right to then challenge whether that

was the case. If they just got this and

they're going to use it for impeachment, I

think they have a right to do it.

....

THE COURT: All right. I'll allow their

use, Mr. Bassett. They'll be admissible under

Rule 801(d)(2).

MS. LUKEY: Your Honor, there's one other

issue that I think

THE COURT: Not yet.

MS. LUKEY: There is one other issue that

I think I'm a little troubled about here

that I would raise to you. This doesn't give

me the opportunity to find out from the sister

whether there's more to the story, more

letters, another side, an explanation,

whatever. I mean I cannot imagine, short of

paying out large sums of money, what would

cause a sister to turn over these letters,

which has me a bit troubled, and I would like

to know if there is more. I can't do that in

the middle of trial. I'm about to close in

you know, ten minutes after he finishes his

cross.

So I do remind the Court again, he placed

me in an impossible position in that regard

because I don't know whether there's more out

there, another side to the story or some

explanation. Nor do I know whether money has

changed hands. I don't know anything. I

cannot imagine why a sister would turn these

over to be used against her sister's estate.

THE COURT: I'm not sure that's relevant.

The only question is are they legitimate

documents.

MS. LUKEY: But my ability to examine

Marta is essentially nonexistent because of

the fact that

THE COURT: Well, I'm not sure Marta

makes a difference.

MS. LUKEY: Well she might make a

difference if it turns out that there are

other letters, ones that came after, ones that

came before, explanatory letters, phone

conversations, none of which I can possibly

know. I don't know if this is complete. I

don't know if

THE COURT: Are you asking for a

continuance?

MS. LUKEY: No, I'm not asking for a

continuance. I'm asking to have these

documents excluded, your Honor, on the basis

that it's litigation by ambush.

THE COURT: Yeah. That objection has

been overruled. All right.

After Dr. Klonoski identified the letters as being in his

wife's handwriting, the court held an extended hearing on their

admissibility. After considering the arguments of counsel it

issued rulings accompanied by comments:

I think these letters pose a substantial risk

of unfair prejudice that would outweigh their

probative value. I think their probative

value, to the extent they have any probative

value, lies on the fact of whether or not

there was marital discord, whether a divorce

was impending, whether she was happy or not in

the marriage, why she was unhappy, and the

degree of her unhappiness, as expressed in

some of these statements, I think might be

tangentially relevant. But to present that

evidence in this form to the jury poses a very

grave risk that they would start to be

inflamed or distracted onto issues that aren't

relevant in the case; that is, was Jolanta

Klonoski a good or bad person? More

importantly, was Dr. Klonoski a good or bad

person? And factor that into their award, if

there is an award, and they shouldn't. I

think we all agree they shouldn't be factoring

that into their award.

Now, they're probably cumulative anyway,

because you put in in fact, your case seems

to be three experts and everybody says there's

a bad marriage. So in a sense it's

cumulative. So I agree it's better to have

words in the decedent's mouth, so I'm willing

to cut you some slack in that regard. And

despite Attorney Lukey's, I think, well-taken

position that these are pretty late in the

ball game and she doesn't really have a great

opportunity to deal with that, but I'm not

going to give you the ruling, Attorney Lukey.

What I'm going to do is give you some relief

by limiting the admissibility of these

statements to those statements that directly

speak about her unhappiness in the marriage,

but not in histrionic terms and not in terms

that pose a risk of appealing to the passion,

prejudice of the jury, and not in terms that

pose a risk of putting Dr. Klonoski in such a

bad light that that might affect an award in

this case. Like I said, I'll give you a

chance to rebut, if you can and want to, just

as to these statements, but I can't imagine

you will want to.

....

In my judgment well, as I think about

it, it's probably an inconsistent view myself,

but having read these documents, the four

documents you presented, it's my conclusion

that certainly to the extent that you claim

anything is relevant in there, most of it is

not relevant. Material statements that are

made in these documents that might be relevant

that seem to portray the former plaintiff, Dr.

Klonoski, in a very poor light are not

relevant to the issue of Mrs. Klonoski's

future hedonic damages. To the extent they

are relevant, or one might argue that they are

relevant as a predictor or prognostication of

her future happiness, I find that those

statements, though relevant in that respect,

would, nevertheless, be excluded. I do

exclude them on grounds that their probative

value is far outweighed by the risk of unfair

prejudice in that those statements would tend

to, in my judgment, distract the jury and

confuse the jury and inflame the passions and

prejudice of the jury, such that they may be

at risk of focusing on the nature of Dr.

Klonoski as a person in calculating a damages

award for the estate, which we all agree would

not be proper.

To the extent to the limiting [sic]

extent it gives a marriage view different than

this than Dr. Klonoski and others portrayed,

I think they are relevant. And I think by

going through the letters and allowing you to

admit those portions of the letters that give

that contrary view, without the inflammatory

baggage of the other statements and comments

in the letters, I think your interests are

fairly protected.

So that's my ruling, I acknowledge that

Attorney Lukey makes a very good point about

late discovery, not that you've violated my

order of disclosure. I find that you've not.

And not that you had the document in a in a

timely fashion that you could have delivered

them to the plaintiffs in a meaningful timely

way. I find you didn't. But she is somewhat

at a prejudicial point in that there are other

letters that may present a different view

altogether of this.

But again, we're at the point where I

think we're cumulative anyway on the item of

was there discord or not discord in the

marriage, and that's not a very major issue

in the case, in any event. So here is what

the potentially inconsistent part, I suppose,

with respect to all of those other statements

in these letters that I have not agreed to

allow you to read to the jury or present to

the jury. I would I also exclude those on

grounds that, to the extent they are

inflammatory but fall below the line of

proposing an unfair risk of substantial

prejudice, outweighing their probative value,

I would exclude them on the additional

independent grounds that Attorney Lukey does

not have the opportunity to have those other

nine letters translated and examined for the

possibility that they may have equally

praiseworthy and laudatory comments about Dr.

Klonoski in them. So who knows. Maybe they

would balance them off. So that's just

another independent reason why I wouldn't

allow the statements to be denigrating of Dr.

Klonoski or certainly his relatives into

evidence. All right.

The court allowed the following excerpts in evidence.

They were read to the jury by the defendants' translator:

Despite the fact that I want to save this

marriage very much, I cannot stand being

treated as a moron, but that's how Richard

likes to behave. I think he will never

appreciate me as a person and will always

expect from me obedience and approval of

anything he proposes. This does not satisfy

me and does not provide even a bit of

happiness.

Excerpt from letter of May 20, 1990 (Ex. LLL, RA 4487; RA 3854).

Now I am with him not for myself but for the

children and I know that the day will come

when we separate because I will not stand

being with him to the end of my life.

Excerpt from letter of August 27, 1990 (Ex. LLL, RA 4488; RA 3855).

And I knew that something was wrong. I did

not have to wait long because in the evening

he came to my bed and graciously informed me

that on May 5, 6 and 7 he flies to California,

San Diego, for another conference. I could

not believe it but he said nobody was going to

change his plans. After that last conference

I told him I do not want him to ever fly

without me.

Excerpts from letter of April 27 and May 1993 (Ex. LLL, RA 4489; RA

3856).

As you can see, I think we should get a

divorce because we are tormenting each other

and no good will come between us. I only pity

this yet to be born child because it will

never see love between its parents. Sooner or

later both I and he will not be able to stand

this tension and misery between us any more.

Excerpt from letter of April and May, 1993 (Ex. LLL, RA 4489; RA

3856-3857).

Prior to reading the letter excerpts and marking them as

exhibits, defendants put on the following witnesses whose testimony

we summarize. Joan Conrad worked in the cardiology department and

became acquainted with Dr. Klonoski. When she congratulated him on

the coming birth of another child, he said: "It wasn't my idea.

This wasn't planned." When Conrad asked Dr. Klonoski about his

wife, he replied: "She's always complaining, lots of aches and

pains. Always complaining about headaches, and I don't pay

attention to that anymore." Conrad testified that there was no

positive feedback from Dr. Klonoski about his wife.

The next witness was Dr. John Robb, a cardiologist, who

worked with Dr. Klonoski. Accompanied by Dr. Klonoski's parents,

he met Dr. Klonoski at the Lebanon Airport on his return from the

meeting in San Diego, and drove him to the hospital. Dr. Robb

testified that Dr. Klonoski was crying when Dr. Robb picked him up

at the airport, that he was "very distraught and upset" and

"grieving."

Ellen Fullington was a medical secretary at the Hitchcock

Hospital. She worked for Dr. Klonoski as well as other doctors.

She testified that Dr. Klonoski's comments about his marriage were

negative.

Dr. Douglas H. James was director of the fellowship

program at the Hitchcock Hospital. Dr. Klonoski discussed his

marriage with him during a review of his performance. Dr. Klonoski

felt that his performance was adversely affected by stress at home.

Dawn Rafferty worked with Mrs. Klonoski at the bank. She

testified that Mrs. Klonoski was not happy with her marriage. She

was considering a divorce, but was afraid that the children would

be taken away from her. Mrs. Klonoski complained that her husband

was only interested in money. He worked extremely long hours and

did not pay attention to her or the children. She wanted to have

another child when she became pregnant again. Dr. Klonoski was not

happy about her pregnancy. She felt that he wanted her to have an

abortion.

The final witness for defendants was the translator who

read the letter excerpts to the jury.

Dr. Klonoski was recalled as a rebuttal witness. He

testified as follows:

Q. Were you aware before this weekend

that your wife had written thoughts of divorce

to her family?

A. No, I was not.

Q. Did you have any idea that she felt

that way?

A. No, I did not.

Q. When you learned about her feelings,

at least as contained at these points in time

in these letters, what steps did you take?

A. I was very stunned and distressed

that her perception of things was so vastly

different from what she represented to me and

was distressing her at the same time and that

she thought that she could get more answers or

more comfort by writing to her family in

Poland and not discussing it with me.

When I found that out, I instructed the

attorney in Connecticut who is handling the

probate of her estate that I waive any right

to the proceeds of the estate, and I

established an irrevocable trust in the names

of our children equally and relinquished all

rights to them with the trustee, that is not

myself, and that is the trustee's attorney,

Jennifer Snyder, from Hale and Dorr in Boston.

Q. And what is your understanding as to

whether you now have any claim to the proceeds

of the estate?

A. I understand that with the execution

of the trust, I have no claim to any of the

proceeds in her estate.

Q. One final question, Doctor. We heard

testimony on the defense case that you did not

want the pregnancy that resulted in Caroline's

birth. Is that true?

A. No, that's not true.

On cross-examination there were questions about when the

irrevocable trust was established, which were answered ambiguously.

There was also a series of questions relative to the testimony by

defendants' witnesses.

Dr. Klonoski having withdrawn his own claims, the case

went to the jury on only one claim, that of Mrs. Klonoski's estate.

The jury returned a defendant's verdict, and the plaintiff

appealed.

II.

APPLYING THE DISCOVERY RULES

We begin our analysis with a brief review of the

pertinent rules of discovery. Rule 26(a)(3)(C) requires each

party to disclose to other parties, without awaiting a discovery

request, the following information:

document or other exhibit, including summaries

of other evidence, separately identifying

those which the party expects to offer and

those which the party may offer if the need

arises.

Fed. R. Civ. P. 26(a)(3)(C).

This rule requires that: "[u]nless otherwise directed by

the court, these disclosures shall be made at least 30 days before

trial." Id. It is obvious that defendants did not follow the

strictures of Rule 26(a)(3)(C) with respect to the letters from

Mrs. Klonoski to her sister.

In addition to the mandatory pretrial disclosures,

parties may obtain discovery of further matter by various methods.

See Fed. R. Civ. P. 26(a)(5). Rule 26(b)(1) defines the scope and

limits of discovery:

(b) Discovery Scope and Limits. Unless

otherwise limited by order of the court in

accordance with these rules, the scope of

discovery is as follows:

(1) In General. Parties may obtain

discovery regarding any matter, not

privileged, which is relevant to the subject

matter involved in the pending action, whether

it relates to the claim or defense of the

party seeking discovery or to the claim or

defense of any other party, including the

existence, description, nature, custody,

condition, and location of any books,

documents, or other tangible things and the

identity and location of persons having

knowledge of any discoverable matter. The

information sought need not be admissible at

the trial if the information sought appears

reasonably calculated to lead to the discovery

of admissible evidence.

Fed. R. Civ. P. 26(b)(1). Like Rule 26(a)(3)(C), Rule 26(b)(1)

provides no exception for documents found during belated

investigation that takes place after the trial has begun. On the

contrary, the plain language of this Rule 26(b)(1) contemplates

wide-ranging discovery to the fullest possible extent.

Such a broad reading is supported by leading Supreme

Court precedent. As the Court stated in Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340 (1978), the word "relevant" encompasses

any matter that bears on, or that reasonably

could lead to other matter that could bear on,

any issue that is or may be in the case. . . .

[D]iscovery is not limited to issues raised by

the pleadings, for discovery itself is

designed to help define and clarify the

issues. Nor is discovery limited to the

merits of a case, for a variety of fact-

oriented issues may arise during litigation

that are not related to the merits.

Id. at 351 (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

In Hickman, the Court characterized the "pre-trial

deposition-discovery mechanism established by Rules 26 to 37 [as]

one of the most significant innovations of the Federal Rules of

Civil Procedure." Hickman, 329 U.S. at 500. The Court went on to

discuss the purpose of the discovery rules:

Under the prior federal practice, the pre-

trial functions of notice-giving, issue-

formulation and fact-revelation were performed

primarily and inadequately by the pleadings.

Inquiry into the issues and the facts before

trial was narrowly confined and was often

cumbersome in method. The new rules, however,

restrict the pleadings to the task of general

notice-giving and invest the deposition-

discovery process with a vital role in the

preparation for trial. The various

instruments of discovery now serve (1) as a

device, along with the pre-trial hearing under

Rule 16, to narrow and clarify the basic

issues between the parties, and (2) as a

device for ascertaining the facts, or

information as to the existence or whereabouts

of facts, relative to those issues. Thus

civil trials in the federal courts no longer

need be carried on in the dark. The way is

now clear, consistent with recognized

privileges, for the parties to obtain the

fullest possible knowledge of the issues and

facts before trial.

Id. at 500-01 (emphasis added; footnotes omitted). The Court added

that the "deposition-discovery rules are to be accorded a broad and

liberal treatment." Id. at 507. This is because

[m]utual knowledge of all the relevant facts

gathered by both parties is essential to

proper litigation. To that end, either party

may compel the other to disgorge whatever

facts he has in his possession. The

deposition-discovery procedure simply advances

the stage at which the disclosure can be

compelled from the time of trial to the period

preceding it, thus reducing the possibility of

surprise.

Id. (emphasis added).

Similarly, in United States v. Procter & Gamble Co., 356

U.S. 677 (1958), the Court stated that "[m]odern instruments of

discovery serve a useful purpose . . . . They together with

pretrial procedures make a trial less a game of blindman's bluff

and more a fair contest with the basic issues and facts disclosed

to the fullest practicable extent. Only strong public policies

weigh against disclosure." Id. at 682 (emphasis added; citation

omitted).

Based on the plain language of Rule 26 and the broad

scope that it has been given, it would appear that Mrs. Klonoski's

letters fit well within the rule's reach. The letters plainly

contain information "reasonably calculated to lead to the discovery

of admissible evidence." Fed. R. Civ. P. 26(b)(1). As noted,

Rule 26 provides no exception for documents found after discovery

deadlines have passed.

To the extent the rules contemplate additional material

that a party finds after it has provided discovery to the other

side, the rules require prompt supplementation of its additional

material so the opposing party is not misled by the original

discovery responses as the opposing party prepares its case for

trial. See Fed. R. Civ. P. 26(e). Rule 26(e) provides in

pertinent part:

(e) Supplementation of Disclosures and

Responses. A party who has made a disclosure

under subdivision (a) or responded to a

request for discovery with a disclosure or

response is under a duty to supplement or

correct the disclosure or response to include

information thereafter acquired if ordered by

the court or in the following circumstances:

(1) A party is under a duty to

supplement at appropriate intervals its

disclosures under subdivision (a) if the

party learns that in some material

respect the information disclosed is

incomplete or incorrect and if the

additional or corrective information has

not otherwise been made known to the

other parties during the discovery

process or in writing.

(2) A party is under a duty

seasonably to amend a prior response to

an interrogatory, request for production,

or request for admission if the party

learns that the response is in some

material respect incomplete or incorrect

and if the additional or corrective

information has not otherwise been made

known to the other parties during the

discovery process or in writing.

Fed. R. Civ. P. 26(e). In the instant case, the defendants

provided no supplementation of their prior disclosures by adding

the letters in question to the list of evidence to be offered at

trial.

In 1993, the Federal Rules of Civil Procedure were

significantly amended, particularly Rules 26(e) and 37(c)(1). The

changes to Rule 26(e) substantially expanded the duty to

supplement. Under the pre-1993 version of Rule 26(e),

supplementation was required only in a few, limited circumstances.

The current version of the rule, as quoted supra, imposes a broad

requirement on parties to update their earlier disclosures and

discovery responses. See 8 Charles Alan Wright et al., Federal

Practice and Procedure 2049.1 (2d ed. 1994 & Supp. 1998) ("Wright

& Miller"). Thus, even if the defendants could argue that the pre-

1993 rule might not have required them to disclose the letters to

the plaintiff, they have no such argument under the 1993 amendments

to the supplementation requirement.

IS PRECLUSION THE APPROPRIATE REMEDY?

The 1993 amendments to the Federal Rules also added

Rule 37(c)(1) which provides:

(1) A party that without substantial

justification fails to disclose

information required by Rule 26(a) or

26(e)(1) shall not, unless such failure

is harmless, be permitted to use as

evidence at a trial, at a hearing, or on

a motion any witness or information not

so disclosed. In addition to or in lieu

of this sanction, the court, on motion

and after affording an opportunity to be

heard, may impose other appropriate

sanctions. In addition to requiring

payment of reasonable expenses, including

attorney's fees, caused by the failure,

these sanctions may include any of the

actions authorized under subparagraphs

(A), (B), and (C) of subdivision (b)(2)

of this rule and may include informing

the jury of the failure to make the

disclosure.

Fed. R. Civ. P. 37(c)(1).

Prior to adoption of Rule 37(c)(1), no rule specifically

provided sanctions for the failure to supplement discovery. Courts

were free to apply their discretion in sanctioning Rule 26(e)

violations. The new rule is mandatory: a party that fails to make

the required disclosures "shall not, unless such failure is

harmless, be permitted to use [undisclosed] evidence at a trial."

Id. To be sure, the rule somewhat tempers this mandate by

permitting courts to excuse failures to disclose to some degree

(i.e., to impose other sanctions "in lieu of this sanction"). Fed.

R. Civ. P. 37(c)(1). But the new rule clearly contemplates

stricter adherence to discovery requirements, and harsher sanctions

for breaches of this rule, and the required sanction in the

ordinary case is mandatory preclusion.

Even before the 1993 amendments, in National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per

curiam), the Supreme Court stressed the policy reasons for

enforcing the discovery rules. The most severe sanctions provided

by the rules, the Court explained, "must be available to the

district court in appropriate cases, not merely to penalize those

whose conduct may be deemed to warrant such a sanction, but to

deter those who might be tempted to such conduct in the absence of

such a deterrent." Id. at 643. While a warning alone might have

made the plaintiffs in that case comply with all future discovery

orders, "other parties to other lawsuits would feel freer than we

think Rule 37 contemplates they should feel to flout other

discovery orders of other district courts." Id. Thus, enforcement

of discovery rules and orders is necessary, the Court concluded, to

prevent abuse by future litigants. Id.

It appears, therefore, that the letters in question were

covered by the disclosure requirements of Rule 26, including the

duty to supplement, and that defendants' failure to disclose them

prior to trial precluded defendants from using the letters at

trial. The district court did not take this position because it

found the letters to fall within an exception to the discovery

rules for material that is presented "solely for impeachment

purposes." Fed. R. Civ. P. 26(a)(3).

DO THE LETTERS FALL WITHIN AN EXCEPTION

TO THE DISCOVERY RULES?

Rule 26(a)(3) provides:

Pretrial Disclosures. In addition to the

disclosures required in the preceding

paragraphs, a party shall provide to other

parties [certain delineated] information

regarding the evidence that it may present at

trial other than solely for impeachment

purposes: . . . .

Fed. R. Civ. P. 26(a)(3) (emphasis added).

Neither the Rule itself nor the advisory notes define

impeachment evidence. The federal cases that have decided whether

evidence falls within the impeachment exception to the discovery

rules are, for the most part, personal injury cases. They

frequently deal with two kinds of evidence: video surveillance

tapes of a plaintiff's activities subsequent to the injury giving

rise to the suit; and information that a defendant has of the

plaintiff's prior medical history. Although some district courts

have found video surveillance tapes to be "solely" impeachment

evidence, see Fed. R. Civ. P. 26(a)(3), the weight of authority

seems to be that such evidence is both impeaching and substantive

and should be disclosed. See Wegner v. Cliff Viessman, Inc., 153

F.R.D. 154, 157-59 (N.D. Iowa 1994).

And this approach makes evidentiary sense. As the Wright

and Miller treatise put it, after reviewing the case law:

If a party plans to testify to one version of

the facts, and the opponent has evidence

supporting a different version of the facts,

the opponent's evidence will tend to impeach

the party by contradiction, but if discovery

of this kind of evidence is not permitted the

discovery rules might as well be repealed.

Even those who have been most concerned about

protecting impeachment material recognize that

substantive evidence must be subject to

discovery even though it also tends to

contradict evidence of the discovering party.

8 Wright & Miller, supra, 2015, at 212 (footnote omitted).

The only circuit court that directly addresses this

subject is Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th

Cir. 1993). In holding that a video surveillance tape was not

"solely" impeachment evidence, the court defined substantive

evidence as "that which is offered to establish the truth of a

matter to be determined by the trier of fact." Id. at 517. It

then stated: "Impeachment evidence, on the other hand, is that

which is offered to 'discredit a witness . . . to reduce the

effectiveness of [her] testimony by bringing forth evidence which

explains why the jury should not put faith in [her] . . .

testimony.'" Id. (alterations in original) (quoting John P.

Frank, Pretrial Conferences and Discovery - Disclosure or

Surprise?, 1965 Ins. Law J. 661, 664 (1965)).

The court recognized that some evidence serves both

functions, and, because such evidence is not "solely offered for

impeachment," it is not covered by the exception to the Rule 26

discovery requirements. The court held: "Because the tape is, at

the very least, in part substantive, it should have been disclosed

prior to trial, regardless of its impeachment value." Id. at 517-

18.

The same is true of the disputed evidence here. The

excerpts from the letters written by Mrs. Klonoski to her sister

were at least in part substantive, and therefore they did not fall

within the "solely for impeachment" exception of Fed. R. Civ. P.

26(a)(3). The letter excerpts constituted substantive evidence

because, separate and apart from whether they contradicted Dr.

Klonoski's testimony, they tended "to establish the truth of a

matter to be determined by the trier of fact." Chiasson, 988 F.2d

at 518. This is true even though, in addition to their substantive

content, the excerpts tended to contradict Dr. Klonoski's testimony

regarding the state of his marriage. We hold, therefore, that the

district court erred, as a matter of law, in finding the letter

excerpts to fall within the exception to the discovery rules for

evidence introduced "solely for impeachment purposes" of Fed. R.

Civ. P. 26(a)(3).

Nor do we think that Fed. R. Evid. 801(d)(2) opens the

evidence door to the excerpts because they are admissions against

a party opponent, as defendants argue. The question is not the

admissibility of the excerpts under the Federal Rules of Evidence

but whether they were barred because their introduction violated

the pretrial discovery orders of the district court and federal

discovery rules. The rules of evidence do not trump the discovery

rules contained in the Federal Rules of Civil Procedure. The

purpose of the discovery rules is to provide for the "fullest

possible" pretrial disclosure of admissible evidence, to "reduc[e]

the possibility of surprise," Hickman, 329 U.S. at 500-01, and to

insure "a fair contest," Procter & Gamble, 356 U.S. at 682.

As we have discussed, supra, absent some unusual

extenuating circumstances not present here, the appropriate

sanction when a party fails to provide certain evidence to the

opposing party as required in the discovery rules is preclusion of

that evidence from the trial.

We have recently condemned trial by ambush tactics and

for this reason vacated a verdict returned for the defendant.

Licciardi v. TIG Ins. Group, 140 F.3d 357 (1st Cir. 1998), centered

on the testimony of a medical expert who:

changed course 180 degrees from his report in

his testimony on a key topic at the heart of

plaintiff's case. Further, he went into a new

area of testimony. There was no prior

disclosure of the coming volte face; indeed

there was a misrepresentation in the

supplemental answer to interrogatories filed

two days after the jury was impaneled that the

expert's testimony would be the same as in his

initial report.

Id. at 359 (footnote omitted). We found this "volte face" to be

"highly prejudicial to plaintiff's case." Id.

We recognize that the focus of Licciardi was on the

divergence between the pretrial disclosure of the testimony of a

party's expert witness and his trial testimony. This court's

forthright condemnation of trial by ambush, however, applies to

what happened in the case before us.

Labadie Coal Co. v. Black, 672 F.2d 92 (D.C. Cir. 1982),

is factually closer to the situation before us. In Labadie, the

D.C. Circuit found that the district court's admission of documents

was erroneous and prejudicial because plaintiff was not given

notice of the documents until after it had rested its case on the

last day of trial. The court noted that "when the documents were

finally produced, [plaintiff] had little, if any, time effectively

to . . . cross-examine [defendant] as to their content." Id. at

94-95. In the present case, plaintiff was even more prejudiced by

the lack of discovery. He had virtually finished presenting his

entire case to the jury; Dr. Klonoski's direct testimony had been

completed. His depiction of the state of the marriage was very

different from the way he would have characterized it if his late

wife's letters had been disclosed to him prior to his testifying.

We cannot help being impressed by the exquisite timing of

the injection of the letters into the trial. Dr. Klonoski, the

last witness in the plaintiff's case, had finished his direct

testimony. The plaintiff's case had been completed. Cross-

examination started with some innocuous questions. This was

followed by what clearly were questions setting up Dr. Klonoski for

the introduction of the letters. Whether by design or accident the

timing could not have been better for defendants.

Policy reasons also militate against the district court's

ruling that the letters are exceptions to the discovery rule. If

letters or other documents are allowed in evidence after a trial

starts for the sole reason that they were not obtained sooner by

the party offering them, the rules of discovery and court orders

pertaining thereto would become empty phrases signifying nothing.

Trial by ambush would be re-born. Enforcement of discovery rules

and orders is necessary to prevent abuse by future litigants. SeeNational Hockey League, 427 U.S. at 643.

THE ADEQUACY OF DEFENDANTS' EXPLANATIONS

Defense counsel argued successfully to the district court

that the reason the letters had not been disclosed was that counsel

had not received them until two days prior to the start of their

cross-examination and did not have an opportunity prior to their

use at trial to have them translated from Polish to English. This

explanation was accepted by the district judge. But it is beside

the point. The fact that a party had not actually obtained certain

documents before the discovery deadline does not excuse a

violation.

The belated appearance of the letters violated the plain

meaning and the intent of the discovery rules. It also ignored the

specific requirements of the court's pretrial discovery orders.

The contents of Mrs. Klonoski's letters were not disclosed prior to

trial, as they should have been under the July 16, 1996 discovery

order which provided specifically: "defendants shall produce a

list of all persons known by them to possess discoverable

information related to: (1) marital discord between Dr. and Mrs.

Klonoski . . . and a general description of the nature of that

information." The final pretrial order was based on the parties'

representations that discovery had been completed and the case was

ready for trial.

Nor can the defendants be excused for their failure to

comply. That defense counsel did not obtain the letters until two

days before their use at trial on cross-examination does not make

them admissible. Defendants had been furnished with the address of

Mrs. Klonoski's father in Poland more than a full year before

trial. Her father and sister lived at the same address. The

defendants could, at that time, have undertaken the same

investigation that for some unexplained reason did not come to

fruition until the trial was near completion. They have offered no

legitimate explanation for why they waited as long as they did,

knowing that the federal rules and the court had required them to

disclose potential trial exhibits and all relevant responses to

discovery requests well before the trial began. This suggests

that the defendants may have been, at best, either lax or negligent

in pursuing pretrial discovery.

Finally, defense counsel admitted that they at least knew

about the letters and the general outlines of their contents two

days earlier than they disclosed them, i.e., they knew about them

before Dr. Klonoski testified on direct. Counsel could have put

plaintiff on notice that certain new and hitherto undisclosed

evidence was on the verge of becoming available on the issue of

marital discord. If such notice had been given at that point,

prior to Dr. Klonoski's testimony on direct, then undoubtedly his

testimony would have been different and the present problem would

most likely never have arisen.

THE DISTRICT COURT'S RULING

After reading the district court's rulings and comments,

we have difficulty understanding the basis of its decision to allow

excerpts from the letters to be read to the jury. The first

paragraph of the court's order states: "I think these letters pose

a substantial risk of unfair prejudice that would outweigh their

probative value." Despite this pronouncement, the court admitted

excerpts from the letters into evidence. With due respect, we do

not think that the prejudice was reduced appreciably by limiting

the court's ruling to the excerpts read to the jury. In fact, by

shortening lengthy letters and allowing into evidence only the

inflammatory portions, their prejudicial impact was probably

heightened.

We are also puzzled by the statement: "I acknowledge

that Attorney Lukey makes a very good point about late discovery,

not that you've violated my order of disclosure. I find that

you've not." The only basis for this finding was that the court

believed the letter fell within the impeachment exception

provisions of Fed. R. Civ. P. 26(a)(3). We have found, supra, that

the exception does not apply. Clearly the introduction of the

letters without prior notice to plaintiff violated the pretrial

discovery order of July 19 and the final pretrial order.

We agree with the court's statement that Attorney Lukey

"is somewhat at a prejudicial point in that there are other letters

that may present a different view altogether of this." We believe

this greatly understated the predicament in which plaintiff's

attorney found herself. First, Attorney Lukey was correct that,

because of the defendants' failure to provide these letters during

the discovery process, plaintiff's counsel was unable to conduct

her own investigation which might uncover other letters from Mrs.

Klonoski explaining what she wrote in the letters introduced by

defendants, or which might demonstrate that Mrs. Klonoski's anger

was a passing feeling that did not reflect her overall view of the

marriage. But more critically, plaintiff had already planned and

executed his trial strategy based on the evidence available to the

parties through discovery. He had presented his entire case,

including the direct examination of his lead witness. To spring

these letters hitherto unknown by plaintiff and his attorneys

upon the plaintiff at that stage of the litigation was a lot more

than "somewhat . . . prejudicial." Realistically, it was

devastating to his ability to succeed with the jury.

A CONTINUANCE AS A POSSIBLE REMEDY

The district court asked plaintiff's counsel at least

twice if she wanted a continuance. She said she did not want one

because she did not think it would do any good. It is true, as

defendants argue, that in some cases we have found that surprise

evidence could be combated by granting a continuance to the

surprised party. See Newell Puerto Rico, Ltd. v. Rubbermaid, Inc.,

20 F.3d 15, 22 (1st Cir. 1994). In Licciardi we discussed at

length the effectiveness of a continuance as an antidote to

surprise evidence. 140 F.3d at 366-67. As we stated there:

It is true that, where effective to counteract

the surprise to one party wrought by the other

party's failure to abide by Rule 26, a

continuance or the calling of a rebuttal

witness is preferable to terminating the trial

and beginning anew. However, a continuance is

not effective in every circumstance to

counteract the unfair surprise. See Thibeault[v. Square D Co.], 960 F.2d [239,] 246 [(1st

Cir. 1992)] ("[A] continuance is often

ineffectual as a sanction and unfair to both

the court and the opposing party.").

Licciardi, 140 F.3d at 366. We found no practical way for the

plaintiff to remedy the surprise; any solution would have

prejudiced the plaintiff even more. Id. at 366. We thought it

important to consider the policy behind the discovery rules.

Directly contrary to this policy, granting a continuance, we found,

would create greater incentives for attorneys to violate

Rule 26(e). Id.; see also National Hockey League, 427 U.S. at 643

(Strict sanctions are necessary "to deter those who might be

tempted to such conduct in the absence of such a deterrent.").

"Such conduct should not be rewarded." Licciardi, 140 F.3d at 367.

And as we also noted in Thibeault: "If continuances were granted

as a matter of course for violations of Rule 26(e), the rule could

always be disregarded with impunity." Thibeault, 960 F.2d at 246;

Opinion

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