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Eagle-Picher Industries Inc. v. Balbos8/29/1990
s and submissions scheduled prior to trial. The schedule ran as follows:
(a) 120 days before trial, final list of defendants' non-medical experts submitted;
(b) 30 days before trial, parties exchange pre-trial orders;
(c) 25 days before trial, notification by parties of any disputes or differences to the pre-trial orders;
(d) 25 days before trial, expert witness depositions completed; and
(e) 20 days before trial, final pre-trial order and voir dire filed.
Professor Ayer was named in the "master" pre-trial order, and in the appellants' final list of experts, which was submitted to appellees' counsel on May 26, 1988. In addition, on July 22 and August 1, 1988 respectively, appellees' counsel was informed at a meeting with counsel for one of the defendants and via a follow-up letter that Ayer would be called to testify. At the same meeting and via the same letter, appellees' counsel was offered information about Ayer but declined to consider the information because he already knew about Professor Ayer. The final pre-trial order and voir dire were typed in the liaison (defense) counsel's office and filed on September 23. Although the list of witnesses within the body of the order did not include Ayer's name as a result of a typographical error, the list of witnesses for voir dire purposes did include his name.
On October 24, 1988 the trial began. At the outset of the trial, Ayer's name was read to the jury in voir dire. On December 14, 1988, appellants' counsel, during his opening statement, told the jury that Ayer would testify and summarized the issues Ayer would address. The trial court recessed for the holidays from December 17, 1988 through January 2, 1989. The absence of Ayer's name in the pre-trial order was first discovered by appellees' counsel a few days before the trial resumed, when he was reviewing his notes on the appellants' opening statement.
On January 4, 1989, appellees' counsel objected to appellants' calling Ayer to testify because his name was not listed in the final pre-trial order filed September 23, 1988.
Judge Ross heard arguments from both sides on two occasions and sustained the objection on the ground that he could not
say that it would not be prejudicial to the plaintiffs to permit the witness to be called without the adequate notice, without the notice that is required by the pretrial order. So aside from the precedential value or importance of the decision [with respect to adherence to the pretrial order], on the merits of what we have before us, an error made and who suffers the consequences of that error . . . has to fall on the side that made the error.
On January 4, after Judge Ross made his initial decision not to allow Ayer to testify, appellants' counsel requested permission to proffer a transcript of the testimony Ayer would have given if allowed to testify. It is, however, not clear from the record whether the proffer was ever successfully completed.
The decision not to allow Ayer to testify was based solely on the violation of the pre-trial order.
Appellants contend that the trial court's exclusion of Ayer constituted an abuse of discretion because it failed to find manifest injustice in the exclusion of Ayer; refused to permit a continuance to allow appellees to prepare for Ayer; and failed to apply a consistent ruling as to the function of the pre-trial order.
The Pre-Trial Order -- Its Importance
The pre-trial order is an extremely important tool in managing the docket and trials. The pre-trial order codifies the decisions made at the pre-trial conference concer
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