Motion to Preclude Late Noticed Expert



The Plaintiff requests that the Court exclude the Defendants’ expert John Doe, M.D. (“Dr. Doe”) on grounds of late disclosure.  Discovery in this case terminated on January 9, 2006.  The Defendants disclosed Dr. Doe on August 30, 2007, less than three weeks before the start of trial, on September 17, 2007.  The Defendants’ inexcusably late expert disclosure violates Mass. R. Civ. P. 26 and has deprived the Plaintiff of the opportunity to pursue discovery of Dr. Doe’s qualifications, opinions and the basis for his opinions.  For this reason, any expert testimony by Dr. Doe should not be admitted at trial.  See Barren v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-20 (2003); Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984); Liacos, Massachusetts Evidence § 7.6, at 384 n.1 (7th ed. 1999).  Dr. Doe must be excluded for the additional reason that the Defendants did not seek the Court’s leave to add witnesses following the pre-trial conference pursuant to Superior Court Standing Order 1-88.

Relevant Procedural History

The Complaint in this matter was filed on November 20, 2003.  The Plaintiff served Interrogatories on the defendant on November 24, 2003.  (SeeInterrogatories, attached as Exhibit A.)  The discovery deadline elapsed on January 9, 2006.  (See Tracking Order, attached as Exhibit B.)  A pre-trial conference took place on February 15, 2007, at which time the Defendants did not disclose Dr. Doe.   Eventually, on August 30, 2007, less than three weeks before trial, the Plaintiff received the unsigned Supplemental Answers of the Defendant to Interrogatories Propounded by the Plaintiff.  (SeeSupplemental Answers, attached as Exhibits C.)  The Defendants for the first time disclosed their intention to offer the expert testimony of Dr. Doe.  (Id.)  Trial is set to begin on September 17, 2007.


The disclosure of expert witnesses is governed by Rule 26(e)(l)(B) of the Massachusetts Rules of Civil Procedure, which provides in pertinent part:

A party is under a duty seasonably to supplement his response with respect to any question directly addressed to … the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

In the context of Rule 26, “seasonably” means “soon enough to do the discovering party some good.”  Smith and Zobel, Evidence, Mass. Practice, Vol. 7 § 26.8, pp. 217-220, 2006 Pocket Part, p. 54-56.  The spirit of this rule relies upon an “honor system,” and imposes an obligation to supplement “promptly [and] not wait until the eve of trial.”  Id.

In instances where the disclosure of the expert is late, trial judges have “broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.”  Mattoon v. City of Pitsfield, 56 Mass. App. Ct. 124, 131-132 (2002) (quoting Nally v. Volkswagen of America, Inc., 405 Mass. 191, 197 (1989)).  More specifically, the Court has wide discretion in applying Rule 26 (e)(l)(B), and in determining whether to permit expert testimony where a party fails to give proper notice of the identity of the expert or subject matter of testimony. Amica Mut. Ins. Co., 66 Mass. App. Ct. 1109, 2006 WL 1473326, at *2 (2006) (affirming judge’s exclusion of expert’s causation testimony where “Amica had not mentioned the anticipated testimony in answers to interrogatories or in supplementary responses”); Barren v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-20 (2003) (excluding expert because of failure to adequately answer and supplement expert interrogatories on eve of trial); Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 180 n.15 (2003) (defendant’s “expert witnesses were precluded from testifying, as a sanction by the trial court, due to the bank’s failure to disclose the substance or grounds of the facts and opinions upon which they were expected to testify”); Cassano v. Gogos, 20 Mass. App. Ct. 348, 355 (1985) (excluding expert’s estimates of repair costs where “[t]he defendant had not mentioned those estimates in answers to interrogatories and in supplementary answers to interrogatories inquiring into the expert’s anticipated testimony”); Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984) (expert properly excluded given long pendency of case and disclosure of expert on eve of trial).

The Superior Court has repeatedly held that a party responding to expert interrogatories has “an affirmative obligation to secure sufficient information from retained experts intended to be called at trial so that counsel can furnish full and complete answers” to those interrogatories. Zirpolo v. Lyons, 1993 WL 818742, at *1 (Mass. Super. Ct. Jul. 2, 1993) (Lauriat, J.) (quoting Ferrara v. Balistreri & Di Maio, Inc., 105 F.R.D. 147, 150 (D. Mass. 1985)).  Accordingly, a party may not postpone supplementation indefinitely by delaying the retaining of experts, or by not obtaining the information from the experts necessary for answering the expert interrogatories.  Id.

In this case, there is no legitimate justification for the Defendants’ late disclosure of their expert.  This case has been in suit for over almost four years.  The Defendant has been on notice of the Plaintiff’s experts and their anticipated testimony since June 2006.  The Defendants never previously disclosed this expert’s testimony although they were aware of the September 17, 2007 trial date since last February.  Nevertheless, the defendant waited until the eleventh hour to spring a new expert upon the Plaintiff.  The Defendants attempted to veil this disclosure via a cover letter that indicates that these disclosures are “identical to the pre-trial memorandum disclosures” when that is patently untrue.  Dr. Doe was never previously disclosed.  His specialty, anesthesiology, is entirely different than those of the other experts previously disclosed by the Defendants in this case.

In the presumed absence of a nefarious intent to surprise the Plaintiff in order to place them at a significant disadvantage at trial, the only reason for this late disclosure of expert testimony is the defendant’s careless laxity and inattentiveness to the case.  The Superior Court should follow the reasoning of the federal court, which does not consider such excuses sufficient to justify late disclosure.  Rather, as stated by the First Circuit, the integrity of the litigation and trial process dictates adherence to the rules, including Rule 26.  See Thibeault v. Square D Co., 960 F.2d 239, 245 (1992) (stating that in the Rule 26(e) context, preclusion can be imposed in response to a party’s subversion of the trial process, even if the responsible party was guilty of laxity rather than bad faith.)

In this case, the Defendants disclosed Dr. Doe more than a year and a half after the close of discovery, more than six months after the pre-trial conference, and less than three weeks before the commencement of trial.  The Plaintiff has been deprived of the opportunity to pursue discovery of Dr. Doe’s qualifications, opinions and the basis for his opinions, and will be prejudiced accordingly.

Furthermore, the Defendants’ conduct runs afoul of the recently-adopted Superior Court rules.  If they have not already done so, parties are required to disclose the identities and opinions of expert witnesses in the pretrial memorandum.  Standing Order No. 1-88, Appendix A (6)(a).[1]  No party may reserve the right to add witnesses after the pre-trial conference without leave of the Court at the conference.  Standing Order No. 1-88, Appendix A (5).  In this case, Dr. Stevens was not disclosed until more than six months after the pre-trial conference without the Defendants’ seeking the Court’s leave to add additional witnesses.


For the foregoing reasons, the Plaintiff respectfully requests that the Court issue an order excluding the Defendants’ expert Dr. Doe from testifying at trial.

[1] Even disclosure in the pre-trial memorandum, however, does not preclude a motion to exclude an expert based on untimely disclosure.  Standing Order No. 1-88, Appendix A(6)(Note).  In this case, a motion to exclude would have been warranted given that the pretrial conference took place more than a year following the close of discovery.


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