Consequences of Not Submitting Expert Witnesses Reports on Time
In Kurian v. Anisman, 2004 PA Super 165, 851 A.2d 152 (Pa. Super. 2004), the plaintiffs in a medical malpractice action failed to meet a court-imposed deadline for identification of expert witnesses and submission of expert reports.
Thereafter, the defendants moved for summary judgment.
Plaintiffs filed timely responses to the summary judgment motions and attached an expert report prepared by the decedent's treating physician.
The trial court refused to accept the expert report, reasoning that it would cause defendants unfair surprise and prejudice.
On appeal, plaintiffs argued that under Pa. R.C.P. No. 1035.3(b) they were permitted to "supplement" the record within 30 days after service of the summary judgment motions.
Thus, the specific issue before the Superior Court in Kurian was how to reconcile Rules 1035.3 and 4003.5 when a party makes a timely response to a summary judgment motion and attempts to supplement the record with otherwise untimely expert reports.
Rule 1035.3 provides that the adverse party to a summary judgment motion may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying:
(1) issues of fact arising from the evidence of record or;
(2) evidence in the record establishing the facts essential to the cause of action which the motion cites as not having been produced. Pa. R.C.P. No. 1035.3(a).
The adverse party may also "supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence." Pa. R.C.P. No. 1035.3(b).
In answering that question, the Superior Court held that "when Rule 4003.5(b) is read in harmony with Rules 1035.3 and 1035.2, it becomes apparent that prejudice must be taken into account in such cases." Kurian, 851 A.2d at 159.
In other words, notwithstanding the intent of Rule 1035.3(b) to allow supplementation of the record, a trial court must still "apply the long-standing prejudice standard found in the caselaw construing Rule 4003.5(b)" when the supplemental material includes an untimely expert report. Id.
Later in its opinion, the Superior Court recognized that preclusion of expert testimony is a drastic sanction and noted that "prejudice must be determined by the trial court before an expert's testimony may be excluded." Id. at 162.