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JOSEPH LINKER v. CHURNETSKI TRANSPORTATION (01/30/87)

filed: January 30, 1987.

JOSEPH LINKER, APPELLANT,
v.
CHURNETSKI TRANSPORTATION, INC.



Appeal from the Order February 10, 1986 in the Court of Common Pleas of Luzerne County, Civil, No. 4694-C of 1981.

COUNSEL

Jerome L. Cohen, Wilkes-Barre, for appellant.

Donald T. Rogers, Wilkes-Barre, for appellee.

Cirillo, President Judge, and Rowley and Beck, JJ.

Author: Cirillo

[ 360 Pa. Super. Page 367]

This is an appeal from an order of the Court of Common Pleas, Luzerne County, denying appellant's motion to remove a non-suit entered at trial. We reverse and remand.

[ 360 Pa. Super. Page 368]

Appellant Joseph Linker initiated suit against appellee Churnetski Transportation (Churnetski) as a result of an automobile accident. In response to appellee's expert interrogatories, appellant responded as follows: "Dr. G.W. Klem, Kingston, Pa. See report attached." No report was attached; only bills and extracts of the office record were attached to appellant's answers. Approximately ten months later, on May 18, 1983, appellee Churnetski made a request for documents, including "reports of any and all experts who are expected to testify at trial." Appellee received no response to this request.

Dr. Klem subsequently died, and in November of 1984 appellant began treatment with Dr. Rogers. Treatment continued until January 27, 1986, the date of trial.

Appellant's answers to appellee's interrogatories were never supplemented to inform appellee that Dr. Rogers would testify as an expert at trial. Appellant did identify Dr. Rogers by name as an expert witness at the January 28, 1985 pretrial conference, but no expert report was supplied to appellee. A copy of Dr. Roger's expert report was given to appellee's counsel on January 28, 1986, the second day of trial. This report, which was mailed by Dr. Rogers to appellant's counsel, was post-marked January 23, 1986.

The trial court, pursuant to the discovery rules, precluded the doctor's testimony. See Pa.R.Civ.P. 4003.5(b) and 4019(i). Appellant's motion for a continuance was denied by the trial court. As a result of the sanction, appellant was unable to meet the threshold requirements for his cause of action and a compulsory non-suit was entered against him. Appellant's motion to remove the non-suit was denied.

Appellant presents the following issues for our review: (1) is providing the name of an expert witness to defense counsel by way of pre-trial memorandum sufficient notice under the discovery rules; and (2) must the party requesting sanctions show prejudice in order to completely preclude expert testimony.

[ 360 Pa. Super. Page 369]

The purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits. See Page 369} Kaminski v. Employers Mutual Casualty Co., 338 Pa. Super 400, 487 A.2d 1340 (1985). When expert testimony is involved, elimination of surprise becomes even more critical since attorneys will not have the requisite knowledge to effectively rebut the unexpected testimony. Id.

The Kaminski court noted that "[b]y allowing for early identity of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot." Kaminski, 338 Pa. Super. at 408, 487 A.2d at 1344-45 (quoting Sindler v. Goldman, 309 Pa. Super. 7, 12, 454 A.2d 1054, 1056 (1982)) (emphasis ours).

In the instant case, appellant contends that his identification of Dr. Roberts by name in the pre-trial memorandum was ...


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