Wynne v. Summerland Inc.
When ruling on whether to permit a party to disclose an expert after the court's deadline, a court may consider: 1.) whether inability, as opposed to willfulness, led to the late disclosure; 2.) whether the other party will be prejudiced; and 3.) whether denial is an appropriate sanction. In June 2009, the plaintiff, John Wynne Jr., sued the defendant, Summerland Inc. The court ordered the parties to disclose expert witnesses, on or before June 1, 2012. On Sept. 19, 2012, the defendant disclosed John Patrick Waterman as an expert witness. The plaintiff objected to the disclosure of Waterman as an expert. Although each party argued that the other was responsible for delays, the court was not persuaded that the defendant's late disclosure resulted from any dilatory tactics of the plaintiff, or that factors beyond the defendant's control should excuse compliance with the June 1, 2012, deadline. If the court permits the late disclosure, the plaintiff will be required to depose Waterman and to hire an opposition expert, which will prejudice the plaintiff and delay the trial. The parties' attorneys possess busy trial schedules and trial, which currently is scheduled for January 2013, probably would not take place until in or about June 2013, if the court permitted the defendant to disclose Waterman. The court denied the defendant's motion to disclose Waterman as an expert witness.