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Is Surprise Expert Testimony Allowed ?

In Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales, Inc., 1998 ME 53, PP19-23, 707 A.2d 1311, 1317, the Law Court held that surprise testimony typically given by an expert resulted in unjustifiable prejudice to the defendant because the witness had not been designated as an expert.

the defendant "had no reason to anticipate that the content of the expert's testimony would include precise profitability projections developed after the litigation had commenced ... defendant reasonably could have concluded that his testimony would be limited ... the surprise testimony left defendant with no time to formulate a meaningful cross-examination with respect to the... lost profits."

The Chrysler reasoning can be applied with equal force to this case.

Furthermore, courts in other jurisdictions have recognized the unfairness created by conduct like Plaintiff's. In Green v. Fleishman, D.P.M., 882 S.W.2d 219, 221-22 (Mo. Ct. App. 1994), the Missouri Court of Appeals affirmed the trial court's exclusion of an expert witness's testimony.

At the expert's deposition, he had not reached an opinion concerning negligent care. by the time of trial, however, the witness had formulated a clear opinion.

The court held that because the expert's proponent did not supplement the expert's testimony as mandated by the discovery rules, the trial testimony was properly excluded.

The Illinois Court of Appeals faced the same issue in Bart v. Union Oil Co. of California, 185 Ill. App. 3d 64, 540 N.E.2d 770, 773, 132 Ill. Dec. 848 (Ill. App. Ct. 1989).

The expert testified at his deposition that he could not opine to a reasonable degree of medical certainty whether the decedent had endured any conscious pain and suffering prior to his death.

At trial, however, the expert testified that the decedent may have survived the first explosion and suffered pain. the court excluded the trial testimony because the expert's testimony violated a court rule prohibiting experts's trial testimony to be inconsistent with or to go beyond that adduced in discovery.