 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Eagle-Picher Industries Inc. v. Balbos8/29/1990
ow that appellants met the considerable burden of proof in this type of case on the degree of prejudice they would suffer if the testimony were not allowed.
(5) Cure by postponement/desirability of continuance
The last consideration is "whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance." In Colter v. State, 297 Md. 423, 429, 466 A.2d 1286(1983), the court found abuse of discretion partially because "the court gave scant consideration to . . . 'whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.'" The court distinguished the case from Taliaferro, where thorough consideration was given to a continuance before rejecting that alternative. Id. In the instant case, assuming that appellees' counsel did rely on the pre-trial order for not starting the "36 hour rule" preparation for Ayer, a continuance as granted plus appellants' offer to provide appellees with all the information and depositions they had on Ayer probably would have remedied any prejudice to appellees.
Although the trial judge did not consider a continuance for the purposes of permitting Ayer to testify as an alternative solution, he did agree to a continuance to allow appellants a substitute witness (for Ayer) from among those listed on the pre-trial order. In arriving at his decision not to permit the Ayer's testimony, the judge based his ruling on many, if not all, relevant considerations, not the least of
which included the precedential effect of his decision on the efficiency of the courts in future asbestos litigation and the integrity of the pre-trial order. The judge reviewed the requirements of the pre-trial order; the purpose of the pre-trial order; the reason for the violation of the order; and the prejudice to the respective parties. In addition, the learned trial judge raised several relevant concerns. The judge was concerned that, if he allowed Ayer to testify, every time a mistake was claimed by one party the burden of proof would shift to the opposing party to prove he had been hurt by the mistake. He also was concerned that the door would be open for "chicanery" and that the court would then have the burden of determining, in every case where a name is not on the list, whether it was intentional, or a change of mind, or a tactical ploy. And finally, he was concerned that if he overlooked the "slip up" there would be no incentive for anyone to obey the rules.
Appellants further maintain that the trial court's decision not to allow Ayer to testify was inconsistent with an earlier court decision to allow one of appellees' witnesses to testify. That witness was not identified in witness letters prepared by appellees but was listed on the pre-trial order. We find no inconsistency in these rulings. The court acted consistently to protect the integrity of the pre-trial order by ruling in both situations that a witness may testify if the witness's name was listed in the pre-trial order. As mentioned above, and apparently not contested by appellants, the manner in which the pre-trial order was established in this case provided a five-day "escape hatch" in which a deposition could be taken if a name of a witness, of which a party was unaware, appeared in the pre-trial order.
In Taliaferro, the Court of Appeals noted that "the exclusion sanction should be one of last resort, to be 'invoked only in those cases where other less stringent sanctions are not applicable to effect the ends of justice.'" 295 Md. at 395, 456 A.2d 29. The Court went on, however, to emp
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|