On November 18, 1994, paragraphs 3-14 of the July CMO were amended, so that all of plaintiff's expert reports on affirmative claims would be served by November 30, 1994; all defendants' expert reports on defenses would be served by January 4, 1995, and all rebuttal reports would be served by February 3, 1995. November CMO PP 3-5.
Then, on December 19, 1994, paragraphs 3-14 of the July CMO were further modified so that plaintiff could file one additional affirmative expert report by January 11, 1995; all defense expert reports on defenses would be served by February 10, 1995; and all rebuttal reports would be served by March 13, 1995. December CMO PP 3-5. The December CMO provided that depositions of experts would begin on March 23, 1995 and be completed by May 22, 1995. Id. at P 6.
Although Elf designated several experts in October, on February 22, 1995, Elf notified the United States and Witco that it was designating one more expert, Kenneth T. Wise, as a rebuttal expert on the issue of cost allocation.
The United States and Witco seek to exclude this expert on the ground that his designation was untimely.
Elf's argument is that Mr. Wise was designated weeks before rebuttal reports were due, and that none of the CMOs ever "established an explicit deadline for the identification of rebuttal experts." Brief in Opp. at 2. It pleads now that it made a good faith effort to interpret the various CMOs, and that even if its interpretation attempt failed, no one is prejudiced thereby.
We begin by ruling that Elf's argument that there was no explicit deadline for identifying rebuttal experts is specious. Both the November and December CMOs expressly stated that they were amending only paragraphs 3-14 of the July CMO. Paragraph 2, which required the identification of "expert witnesses" by October 17, 1994 and then, "any additional experts" by October 31, 1994, was never amended by the subsequent CMOs. There is no reasonable way to read the CMOs but that all designations were due in October, 1994. Elf's argument that it otherwise reasonably read the CMOs must fail. See Brief in Opp. at 8-10 (explaining reasoning).
We turn now to the merits of this Motion. All parties agree on the proper standard this Court will apply to decide whether to exclude the evidence of an expert. In fact, both sides have cited to this Court our own opinions in other cases dealing with this same issue. Brief in Opp. at 5-6; Reply Brief at 5; Kotes v. Super Fresh Food Markets, Inc., 157 F.R.D. 18 (E.D. Pa. 1994); Corrigan v. Methodist Hospital, No. 94-1478, 1994 Westlaw 702917 (E.D. Pa. Dec. 13, 1994); Daugherty v. Fruehauf Trailer Corp., 146 F.R.D. 129 (E.D. Pa. 1993).
The parties all agree, therefore, that we will apply the test provided to us in DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir. 1978). This test assesses:
1. the prejudice or surprise in fact of the party against whom the excluded witnesses are to testify;