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Asbestos-R.I. Superior Court Denies Motion To Preclude Plaintiff's "Naval" Expert Identified Shortly Before Trial

In an asbestos case, the Rhode Island Superior Court has denied a defendant's motion to preclude plaintiff's replacement "naval" expert identified shortly before the trial. The court said that since the trial date was postponed and defendant did not attempt to to depose the expert before filing its motion it was not prejudiced.

This is the most recent of numerous decisions rendered in this fiercely litigated cased. Plaintiff alleges her husband was exposed to asbestos while serving in the Navy. Plaintiff originally designated Capt. Arnold Moore as her "naval" expert, however, he declined to testify at trial. On October 1, 2013, plaintiff's counsel informed defendant that she was substituting Capt. William Lowell as her expert. Trial was then scheduled for October 28, 2013. Plaintiff informed defendant that Lowell would be available for deposition on November 14, 2013. The next day, the parties agreed to move the trial date to January 13, 2014. Defendant did not seek to depose Lowell. Instead, it moved to preclude Lowell as an expert witness. The trial date was postponed again to February 10, 2014. Plaintiff served amended answers to interrogatories identifying Lowell as her expert

The court said the purpose of Rule 33(c) and other discovery rules is to enable litigants to prepare for trial free from the elements of surprise so that judgments can rest on the merits of the case rather than the skill and maneuvering of counsel. Rule 33(c) requires parties to amend their interrogatories within a reasonable time "but not later than 30 days prior to the date fixed for trial." If a party fails to amend its answers in accordance with Rule 33(c) the court has discretion to refuse to allow a party to call a witness, including an expert witness. This is particularly true if the failure to exclude the witness will prejudice the opposing party.

The court rejected defendant's argument that the operative trial date for purposes of Rule 33(c) was October 28, 2013. The court said the operative trial date was not the one in effect when the witness was identified but when the case actually went to trial. The court said that because the witness was identified more than 30 days before the actual trial date it did not have authority under Rule 33(c) to exclude Lowell.

However, even if defendant's reading of the Rule was correct, the court still has discretion to allow the expert to testify. The court said plaintiff had a "meritorious explanation" for failing to notify defendant sooner. Moreover, the notice of the new expert came over four months before the actual trial date. Finally, depriving plaintiff of her naval expert would be a "drastic sanction." The court declined to exclude the expert pursuant to Rule 33(c).

The court also rejected defendant's argument that Lowell should be excluded pursuant to Rule 26(e). The Rule requires a party to update its discovery responses "seasonably" when it obtains information that its discovery responses are no longer correct. The court looked to federal precedent. While there are federal decisions precluding expert witnesses identified on the eve of trial, the court found plaintiff's actions not so "extreme." The court said plaintiff "effectively amended" its discovery responses on October 1, 2013 when her counsel informed defendant that it was substituting experts.

The court denied defendant's motion to preclude Capt. Lowell as plaintiff's naval expert.

Sweredoski v. Alfa Laval, Inc., P.C. 2011-1544, slip decision, (R.I. Super. Jan. 15. 2014)

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