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Eagle-Picher Industries Inc. v. Balbos8/29/1990
ime for the appellees' counsel could be remedied by a continuance to allow for detailed preparation, the appellants' error was, arguably, not a violation of the spirit or intent of the rule and therefore may be categorized as simply technical non-compliance.
(2) Timing
The final pre-trial order was filed 20 days before trial. The fact that Professor Ayer's name was not on the pre-trial order list of witnesses was discovered by the plaintiff's counsel approximately 70 days after the trial began or approximately three months after the filing of the pre-trial order. This time period is substantial.
(3) The reason for the violation
The reason Professor Ayer's name did not appear on the pre-trial order was an inadvertent typographical error by the liaison counsel's office that was not observed and corrected because appellants' counsel failed to proofread the order. Even though the mistake was not intentional, it was within the control of the appellants to have prevented it.
(4) The degree of prejudice
The bulk of appellees' claim of prejudice was centered around not being able to prepare adequately for cross examination of the witness because they did not have copies of the Ayer's depositions. As pointed out by the appellants' counsel and acknowledged by the trial judge, the final pre-trial order does not serve as a notice for discovery and this sort of discovery preparation is begun long before the final pre-trial order is filed.
Appellees' counsel pointed out, however, that the way the pre-trial order was established in this case, provided a five-day "escape hatch" in which a deposition could have been taken, since the pre-trial order was due five days before the depositions were required to be completed. He explained this escape hatch " f we see an expert that we have no information on, we have five days to call up and say ' ey I need to depose your witness . . . .'" Since the facts indicate that appellees' counsel had been informed on at least three occasions prior to the pre-trial order that Ayer would be called to testify, and was offered information on the witness but claimed to have information on him already, it is arguable that appellees' counsel did not rely on the pre-trial order in not gathering discovery-type information prior to the filing of the pre-trial order, and would not have benefitted from the "escape hatch."
The trial judge correctly noted, however, that the function of the listing of witnesses in the pre-trial order was to alert the parties to the final, narrow, short list of witnesses to be confronted at trial so that the parties could limit their preparation for examination and cross-examination during the few days remaining before the witness was called. And the trial judge found that the appellees' counsel did rely on the pre-trial order and therefore was "caught short."
Appellants' counsel's argument on the issue of prejudice was focused less on the prejudice appellants would sustain, and more on the claim that appellees would not suffer one iota of prejudice. They claimed prejudice to appellants but
gave only the following reasons why appellants would be prejudiced: the witness "knew the times," was an industrial hygienist and participated in the shipyard studies on behalf of the U.S. Government; no other witness could duplicate his testimony since he was a member of the U.S. Public Health Service from 1948-1972; it would be difficult to get substitute witnesses because they were out of town witnesses; and "He is our head gun." Counsel did not elaborate on these statements or on the importance of the contents of Ayer's testimony. The record does not sh
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