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Thompson v. Mehlhaff6/8/2005
t the Mehlhaff truck [driven by Baltzer] was loaded and traveling west on the old section of roadway in the eastbound lane apparently as he had been instructed. Analysis of the evidence indicates the Spencer Quarries truck [driven by Thompson] was traveling east in the eastbound lane and not in accordance with the instructions given by the contractor. He was traveling on the cured or old mat and not on the new mat. It should be noted that Mr. Dirks report indicates that the driver of the Spencer Quarries truck [Thompson] was the contractor's employee that instructed other drivers where to drive. In that case, the Spencer Quarries driver [Thompson] was in the wrong lane at the time of the accident. Failure on the part of the driver of the Spencer Quarries truck [Thompson] and trailer to drive in the opposing lane as the drivers had been instructed is a cause of this accident. The driver of the Mehlhaff truck [Baltzer] and trailer was following instructions that had been given at the time of the accident. Once he was able to determine that the Spencer Quarries truck [Thompson] and trailer were in his lane he attempted to avoid to the right. The Mehlhaff truck driver [Baltzer] did not contribute to the cause of this accident. (emphasis added).
Alcorn concluded that Thompson caused the accident, not Baltzer. Good stuff for the defense. In fact, it would have been the only evidence of contributory negligence. However, it was not allowed into evidence based on the untimely disclosure.
[ .] Mehlhaff argues that exclusion of the testimony should have been the "last resort" sanction for failure to timely disclose the witness. Schrader, 522 NW2d at 210. Mehlhaff relies upon a four-part test from Verzwyvelt v. St. Paul Fire & Marine Ins. Co., 204 FRD 309, 311 (WDLa 2001), for determining whether to exclude a witness for untimely disclosure. First, the court should examine the party's explanation for failure to comply with the scheduling order. Id. Second, the court should determine the prejudice to the opposing party. Id. Third, the court should consider the possibility of curing the prejudice by granting a continuance. Id. Fourth, the court should take into account the importance of the witness' testimony. Id. However, even considering these factors the trial court did not abuse its discretion.
[ .] First, the only explanation offered by Mehlhaff for failure to disclose Alcorn in a timely manner was that by agreement both parties continued other discovery past the deadlines. Moreover, the record shows that Mehlhaff did not contact Alcorn until March 23, 2003, after the disclosure deadline. Then, despite written discovery requests asking for the identity of expert witnesses and the identity of persons investigating or reconstructing the collision, Mehlhaff waited until November 7, 2003, to disclose the expert it had retained seven months earlier. Mehlhaff also failed to supplement its discovery as required by the rules of discovery.
[ .] Second, in this case, Thompson would have been prejudiced by allowing Alcorn's late disclosure. Late disclosure would have required a continuance for additional discovery by Thompson and possible retention of additional experts.
[ .] Third, granting a continuance would not have solved the prejudice to Thompson. Despite a scheduling order requirement that any additional motions be filed by October 17, 2003, Mehlhaff did not file the motion for extension of disclosure and continuance by the deadline. Even when Thompson moved in limine to exclude any expert testimony, Mehlhaff did not disclose Alcorn until November 7, 2003, and did not move to extend the deadline to disclose until November 11, 2003, almost a month after the deadline
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