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A party may include expert witness testimony when responding to a summary judgment motion, but a trial court may still use its discretion to preclude that testimony when it’s prejudicial to the opposing party or the court system, the Pennsylvania Superior Court has ruled. In an opinion last week underscoring the authority of case management deadlines, the court panel affirmed a Philadelphia trial judge’s decision to preclude expert testimony that plaintiffs submitted just days before trial and months after a case management deadline for expert report submission had passed. The defendants had moved for summary judgment because the plaintiffs had not produced an expert report on time, said Regan Safier, a partner at Weber Gallagher Simpson Stapleton Fires & Newby who represented one of the defendant doctors. In the plaintiffs’ response to the summary judgment motion, they included testimony from an expert physician. But with such short notice, the defendants would have had little time to prepare for the expert’s testimony or raise additional defenses to his opinions, the lower court had held in dismissing Kurian v. Anisman. Deborah M. Knight, a partner at Goldfein & Joseph who represented the other defendant doctors in the medical malpractice case, said the Superior Court’s decision would give some guidance to trial courts in similar cases. “A party does have a right to supplement the record, but that’s not an unlimited right,” Knight said. “The trial court won’t let a party supplement the record and bring in information so late that the opposing parties are prejudiced.” The Superior Court panel interpreted the state Supreme Court’s 2002 decision in Gerrow v. John Royle & Sons, which held that a trial court might permit a party to respond to a motion for summary judgment with supplemental information, including an expert report. The Kurian plaintiffs had argued for a broad reading of that decision, saying it required that their expert report be admitted just as long as it was filed within the 30 days they had to defeat the defendants’ motions for summary judgment. But adopting the plaintiffs’ broad reading of Gerrow “would take away the very discretion Rule 4003.5(b) gives to the trial court and make a mockery of court orders and court-imposed deadlines,” Senior Judge Peter Paul Olszewski wrote. Rule 4003.5(b) permits the court to preclude expert witness testimony when the witness’s identity wasn’t disclosed as required. Further, Olszewski wrote, such a reading would “open wide a door closed by Rule 4003.5(b) and allow the very things Rule 4003.5(b) seeks to prevent: unfair surprise and prejudice.” The Superior Court’s decision “fills a gap between what Gerrow requires and what Rule 4003 requires,” Safier said. After Gerrow, Safier said, “there was a disconnect in the law there.” The facts in Gerrow were a “far cry” from those in Kurian, Olszewski explained. “There was absolutely no prejudice to the moving party,” he wrote, and the parties had informally agreed to extend the discovery deadline. But in Kurian, the plaintiffs continually disregarded court orders and deadlines, and this is potentially prejudicial, said Olszewski, who was joined by Judges Seamus P. McCaffery and Richard B. Klein. “Does potential prejudice against [the defendants] even matter under Gerrow?” Olszewski wrote. The plurality opinion in Gerrow didn’t address the question directly, but the Superior Court concluded that prejudice must be taken into account in these circumstances. “When a party makes a timely response to a summary judgment motion and attempts to supplement the record with otherwise untimely expert reports, the court may, on its own motion, determine whether this is allowed under Rule 4003.5(b),” the judge wrote. “In so doing, however, the court must apply the long-standing prejudice standard found in the case law construing” the rule. Of course, most prejudice or harm can be addressed with a trial delay or an award of attorney fees, Olszewski noted, but “we must also weigh the effect of any delay on the just and speedy resolution of cases in our overburdened court system. Giving the trial judge the ability to preclude testimony on its own motion satisfies this concern.” But in Kurian, any additional delay would have disrupted the “efficient and just administration of justice and would send a blatant message that case management deadlines are meaningless,” the trial judge, Philadelphia Common Pleas Judge Sandra Mazer Moss, had written in her opinion. The Superior Court agreed. “While our Supreme Court has made clear the fact that local rules, such as Philadelphia’s case management system, must take a backseat to our Rules of Civil Procedure, these deadlines are far from meaningless. They are court orders,” Olszewski wrote. “When these deadlines are violated with impunity, as was done by the plaintiffs in this case, the abusing party must be prepared to pay the consequences.” Kurian involved parents who alleged that two doctors had failed to properly evaluate and repair damage to their child’s heart and lungs when they diagnosed her with Down syndrome in 1990, causing irreversible pulmonary vascular disease, according to the opinion. There was a change in counsel for the plaintiffs in 2002. Shortly after the trial was scheduled that year, the plaintiffs’ lawyer withdrew, and the judge issued a 60-day stay so that they could find new counsel, according to the opinion. That lawyer, Christopher Culleton of Kolsby Gordon Robin Shore & Bezar, did not come into the case until weeks after the stay had expired and the defendants had filed for summary judgment. He has declined to comment.

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