New Jersey Judges Discretion to Preclude Expert Testimony
Expert testimony that deviates from the pretrial expert report may be excluded if the court finds "the presence of surprise and prejudice to the objecting party." Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576, 729 A.2d 1041 (App.Div. 1999), rev'd on other grounds, 163 N.J. 677, 751 A.2d 102 (2000).
In New Jersey, "it is well settled that a trial judge has the discretion to preclude expert testimony on a subject not covered in the written reports furnished in discovery." Ratner v. General Motors Corp., 241 N.J. Super. 197, 202, 574 A.2d 541 (App.Div.1990).
As a result, an abuse of discretion standard of review is utilized in appellate oversight of a trial judge's decision to allow or to exclude such testimony. Velazquez, supra, 321 N.J. Super. at 576, 729 A.2d 1041.
In Westphal v. Guarino, we identified a number of factors for a Law Division judge to consider in exercising his or her discretion. 163 N.J. Super. 139, 146, 394 A.2d 377 (App.Div.), aff'd, 78 N.J. 308, 394 A.2d 354 (1978).
The factors which would strongly urge the trial judge, in the exercise of discretion, to suspend the imposition of sanctions, are:
(1) the absence of a design to mislead;
(2) absence of the element of surprise if the evidence is admitted;
(3) absence of prejudice which would result from the admission of evidence. Ibid.
Importantly, "while a trial judge has wide discretion in deciding the appropriate sanctions for a breach of discovery rules, the sanction must be just and reasonable." R. 4:23; Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206, 542 A.2d 16 (App.Div.1988), aff'd, 116 N.J. 126, 561 A.2d 257 (1989).
A party cannot claim to be surprised by expert testimony, when it contains "the logical predicates for and conclusions from statements made in the report." Velazquez, supra, 321 N.J. Super. at 576, 729 A.2d 1041. Limiting an expert "to a statement of bare conclusion without giving the expert a chance to explain his or her reasons in detail is not fair or reasonable." Ibid.