
USCA1 Opinion

	




          May 25, 1993            [SYSTEM'S NOTE:  Opinion dated 3/12/93 was vacated and this is          the reissued opinion.]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1836                                AGUSTINA PEREZ-PEREZ,                                 Plaintiff, Appellee,                                          v.                        POPULAR LEASING RENTAL, INC., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Harry A. Ezratty for appellants.            ________________            Arnoldo  E. Granados  with whom Ortiz  Toro & Ortiz  Brunet was on            ____________________            ___________________________        brief for appellee.                                 ____________________                                     May 25, 1993                                 ____________________        _____________________        * Of the District of Massachusetts, sitting by designation.             SKINNER, Senior District Judge.                      ______________________                   Plaintiff-appellee   Agustina   Perez-Perez   ("Perez-             Perez") brought  this action  seeking damages  for emotional             distress  sustained as a result  of the death  of her forty-             nine year-old sister,  Maria Perez-Perez ("Maria").   Perez-             Perez   alleged   that   while   defendant-appellant   Oscar             Betancourt  Mateo ("Betancourt")  was  driving a  car leased             from  defendant-appellant  Popular   Leasing  Rental,   Inc.             ("Popular"), Betancourt negligently  struck and killed Maria             on  November 27, 1990, as she  was walking along the side of             Route 849  in Puerto  Rico.   A jury returned  a verdict  in             Perez-Perez's favor  in the amount of  $275,000.  Betancourt             and Popular appeal from the judgment entered on the  verdict             by the  United States district  court of Puerto  Rico, Judge             Fuste,  and from  an order  denying defendants'  "Motion For             Alternative  Relief."    Defendants claim  that  relief from             judgment is  necessary because  (1) the trial  testimony was             poisoned  by  perjury,   (2)  plaintiff's  counsel  unfairly             surprised   the   defendants   by   introducing   previously             undisclosed expert medical testimony concerning Betancourt's             eyesight,  and  (3)  the  verdict  was  excessive.    Before             considering   these  issues,   however,  we   first  address             plaintiff's  contention  that  this  court  lacks  appellate                                         -2-                                          2             jurisdiction because  the notice  of appeal and  the "Motion             for Alternative Relief"  were untimely filed.  We  find that             we  have  appellate  jurisdiction  to  consider  defendants'             direct appeal  from the district court judgment,  as well as             jurisdiction  to  consider the  district  court's  denial of             defendants' post  trial motion.   Because we  find that  the             district  court incorrectly  admitted  the testimony  of the             plaintiff's medical expert, we reverse and remand  for a new             trial.             I.   Appellate Jurisdiction                  Fed. R. App. P. 4(a)  requires any party appealing from             a judgment of the district court to file a notice  of appeal             within 30 days  of the entry of the judgment.  Timely filing             of  a notice  of appeal  is "mandatory  and jurisdictional."             Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264             _________________________________________             (1978).   In  this  case,  there  is  no  dispute  that  the             defendants timely filed a notice of appeal from the district             court's order denying the motion for alternative relief.  In             contrast, the  parties  dispute whether  timely  appeal  was             taken  from the  district  court's judgment  entered against             defendants on  April 22, 1992.   A notice of  appeal was not             filed until June 26, 1992, more than two months later.                                         -3-                                          3                  If a motion to alter or amend judgment pursuant to Fed.             R. Civ.  P. 59 is timely filed  with the district court, the             time for appeal  runs from  the entry of  the order  denying             such  motion.  Fed. R.  App. P. 4(a)(4).   Defendants invoke             the  tolling provisions  of  this rule  by describing  their             "Motion for Alternative Relief"  as one timely brought under             Rule 59(e).  The motion was filed with the district court on             April 30, 1992, but  not served on Perez-Perez until  May 4,             1992.  The timeliness of a  Rule 59 motion to amend judgment             is  determined by the date it is  served, not by the date it             is filed.  Rivera v.  M/T Fossarina, 840 F.2d 152,  154 (1st                        ________________________             Cir. 1988).  Though it might  appear that the motion was not             filed within the  requisite 10-day period,  Fed. R. Civ.  P.             6(a) provides that the intermediate Saturdays and Sundays be             excluded  from the 10-day count.   Accordingly, we find that             the  motion was served on  the plaintiff within  ten days of             the  entry of  judgment.   This, however,  does not  end our             inquiry.                  Our  jurisdiction  over the  appeal  from  judgment (as             opposed  to the appeal from the denial of the motion itself)             depends  on   whether  we  characterize   the  "Motion   For             Alternative Relief" as one brought under Rule 59(e) or  Fed.             R. Civ. P.  60(b).  A motion for relief  from judgment under                                         -4-                                          4             Rule 60(b), unlike a  motion to amend a judgment  under Rule             59(e), does not toll the 30-day appeal period.  Browder, 434                                                             _______             U.S. at  263 n.7; Lopez  v. Corporacion Azucarera  de Puerto                               __________________________________________             Rico, 938 F.2d 1510, 1513 (1st Cir. 1991).  Our inquiry into             ____             the   character  of   the  motion   is  a   functional  one:             "nomenclature  should   not  be  exalted   over  substance."             Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st             ______________________________________             Cir. 1988) (quoting Lyell Theatre Corp. v.  Loews Corp., 682                                 ____________________________________             F.2d 37, 41 (2nd  Cir. 1982)); 7 Moore's Federal  Practice               60.30[1]  (1992).    The  caption  "Motion  for  Alternative             Relief,"  does not describe a motion under either Rule 59 or             Rule 60.   One of  the claims  for relief, remittitur  of an             excessive  verdict, is a classic  Rule 59 claim.   The other             claims,  surprise and misconduct,  are specifically referred             to in Rule 60(b), and the defendants  appear to rely on Rule             60(b)(1) in their memorandum to the district court.1                                               ____________________             1 The district court entered the following order denying the             defendants' motion on June 12, 1992:                       This final order will  start the counting  of                  the term for appeal by defendants.                       The court  now denies [defendants']  April 30                  motion for relief against the verdict (JNOV) [sic]                  and for new trial or remittitur.                       IT IS SO ORDERED.                                         -5-                                          5                  Rule 59 provides  that a new trial may be  granted in a             jury action for any reason for which new trials were granted             at  common law.  The rule creates the opportunity to correct             a broad panoply  of errors, in  order to prevent  injustice.             11 Wright & Miller, Federal Practice and Procedure: Civil                2803, 2805  (1973).   In an  early case  under Rule 59,  the             Supreme Court described the breadth of the rule:                  The  motion  for  a   new  trial  may  invoke  the                  discretion  of  the  court  in  so  far  as  it is                  bottomed on the claim  that the verdict is against                  the weight  of the evidence, that  the damages are                  excessive, or, that, for  other reasons, the trial                                 ___________________________________                  was not  fair to the  party moving; and  may raise                  __________________________________                  questions of law arising out of substantial errors                  in   admission   or  rejection   of   evidence  or                  instructions to the jury.              Montgomery  Ward & Co. v.  Duncan, 311 U.S.  243, 251 (1940)             _________________________________             (emphasis supplied).   It would  appear in general  that the             grounds  for relief from judgment under  Rule 60(b) may also             be  grounds for a new trial under  Rule 59, if the motion is             timely made.   11 Wright & Miller, supra,    2805-2810.   In                                                ______             Conway v.  Chemical Leaman Tank  Lines, Inc., 687  F.2d 108,             _____________________________________________             112 (5th Cir. 1982), the court held that the grant  of a new             trial  under Rule  59 was  warranted when  a party  called a                                              ____________________                  If  the defendants' motion did not in fact qualify as a             motion under Rule  59, the  district court had  no power  to             extend   the   time  for   filing   an   appeal,  which   is             jurisdictional.  Browder, 434 U.S. at 264.                              _______                                         -6-                                          6             previously  unidentified expert  witness to  testify without             any forewarning,  resulting in a favorable  verdict for that             party.  This is precisely one of the instances of misconduct             of  which the  defendants complain in  their motion  in this             case.                   The  interrelation of Rules 59 and  60 was described by             the  court in  Van Skiver  v. United  States, 952  F.2d 1241                            _____________________________             (10th Cir. 1991),  cert. denied,  113 S. Ct.  89 (1992),  as                                ____________             follows:                  [T]he rules allow a litigant subject to an adverse                  judgment to file either a motion to alter or amend                  the judgment under Fed.R.Civ.P.  59(e) or a motion                  seeking   relief   from   judgment   pursuant   to                  Fed.R.Civ.P. 60(b).  These two rules are distinct;                  they   serve   different   purposes  and   produce                  different  consequences.  Which  rule applies to a                  motion depends essentially on the time a motion is                  served.   If a motion is served within ten days of                  the  rendition  of   judgment,  the  motion   will                  ordinarily fall  under Rule 59(e).   If the motion                  is  served after  that  time it  falls under  Rule                  60(b).             Van  Skiver, 952 F.2d at 1243 (citations omitted).  In other             ___________             words,  the litigant who gets  his motion in  on time enjoys             the  full menu of grounds for relief provided by Rule 59; if             not,  he is confined to  the six specific  grounds of relief             found in Rule 60(b).                  It  is  not  quite  that simple,  however,  because  of             additional  restraints which  the  courts  have  imposed  on                                         -7-                                          7             motions brought under each rule.  Motions under Rule 59 must             raise  matters that  were brought  to  the attention  of the             district judge  during the  trial, unless the  alleged error             was fundamental.  11 Wright & Miller, supra,   2805; Harley-                                                   _____         ________             Davidson Motor Co. v. Bank  of New England-Old Colony, N.A.,             ___________________________________________________________             897  F.2d 611,  616  (1st Cir.  1990).   Conversely, motions             under Rule 60(b)  must raise issues which were not available             to  the  moving  party  within the  appeal  period,  barring             exceptional circumstances.  Silk  v. Sandoval, 435 F.2d 1266                                         _________________             (1st Cir.), cert. denied, 402 U.S.  1012 (1971); Mitchell v.                         ____________                         ___________             Hobbs,  951 F.2d 417 (1st  Cir. 1991).   The relatively open             _____             ended  time  limits  of  Rule  60(b)  can  not  be  used  to             circumvent the time limitations on appeal.                  A  further  question  is   raised  by  our  opinion  in             Echevarria-Gonzalez  v. Gonzalez-Chapel,  in  which we  held             __________________________________________             that a motion  which invoked  Rule 60(b) and  relied on  the             rhetoric of Rule 60(b) to support it, would not be construed             as a motion under Rule 59 for purposes of tolling the appeal             period, even though filed  within ten days of  the judgment,             as required  by Rule 59.   Echevarria, 849 F.2d at  26.  The                                        ____________             critical fact  in Echevarria,  however, was that  the motion                               __________             sought relief from a  default judgment.  Under Fed.  R. Civ.             P. 55, the only means of setting aside a default judgment is                                         -8-                                          8             by motion under  Rule 60(b);  the motion was  either a  Rule             60(b) or nothing.                  A more  general rule is  exemplified by our  opinion in             Lopez v. Corporacion, in  which we held that a  timely filed             ____________________             motion could be treated  as filed under Rule 59  even though             it  was  titled  "Motion   for  Relief  From  Judgment"  and             ostensibly filed pursuant to Rule 60(b).  Lopez, 938 F.2d at                                                       _____             1513.   We  quoted with approval the statement  in a leading             text:                  [A] motion, though characterized as one under Rule                  60(b), which is filed within ten days of the entry                  of judgment  and questions the correctness  of the                  judgment,  will be considered a functional Rule 59                  motion and will postpone  the time to appeal until                  entry of the order disposing of it.             Id.  at  1513-14  (quoting  9  Moore's  Federal  Practice                ___             204.12[1]).  We distinguished  Echevarria on the ground that                                            ___________             the  movant  in  Echevarria  sought relief  from  a  default                              __________             judgment  and relied  on  cases construing  Rule 60(b),  and             neither was true of the motion in Lopez.  Id. at 1514.                                                       ___                  In  our   present  case,   the   defendants  have   not             characterized their motion  one way  or the other.   In  the             supporting memorandum filed in  the district court, the only             rule reference is  to Rule  60(b), but is  a casual,  rather                                         -9-                                          9             than  an  exclusive,  one.2    They  have,  however,  relied             heavily  on a  case decided  under  Rule 60(b),  Anderson v.                                                              ___________             Cryovac, Inc., 862 F.2d 910, 924 (1st Cir. 1988).  But as we             _____________             hold infra, the propositions for which that case is cited is                  _______             equally applicable to a timely filed motion under Rule 59.                  We find  the state  of the  record in  this case to  be             closer  to  Lopez than  to  Echevarria,  which  we  view  as                         _____           __________             specifically exemplary of the special rule affecting default             judgments.    Accordingly,  we  rule  that  the  defendants'             motion,  having  been filed  within  the  ten-day period  as             computed under Rule 6(a), may be construed as a motion under             Rule 59, the filing  of which postpones the time  for filing             an appeal  until 30  days after the  motion's determination.             The subsequent  timely filing of the  appeal established our             appellate jurisdiction.             II.  Grounds for the Motion                  Defendants' motion argued two grounds for setting aside             the jury verdict.  First, defendants alleged the trial was a                                              ____________________             2  "Defendants contend - among other things - that a certain             happening  at trial  constituted conduct  violative of  Rule             60(b)(3)  of  the Federal  Rules  of  Civil Procedure,  thus             paving  the way for relief from judgment.   In the same vein             the conduct complained of, in addition to other conduct, ran             afoul of section (b)(1) of the same Rule."                                         -10-                                          10             fraud on the court, claiming that a witness offered perjured             testimony with the assistance  of opposing counsel.  Second,             defendants  argued they  were  unfairly  surprised at  trial             because  the  court  allowed  the  plaintiff  to  offer  the             testimony  of  a  previously  undisclosed   medical  expert.             Ordering the presentation of witnesses and the granting of a             new trial are  both matters committed  to the discretion  of             the  trial  court, and  may be  reversed  only for  abuse of             discretion.   See Fed. R.  Evid. 611; CVD,  Inc. v. Raytheon                           ___                     ______________________             Co.,  769 F.2d 842, 848  (1st Cir. 1985),  cert. denied, 475             ___                                        ____________             U.S. 1016 (1986).             A.   Fraud on the Court                  Defendants must  clear a  high hurdle  in order  to set             aside  the verdict based on their allegations of fraud.  The             moving party must demonstrate  fraud by clear and convincing             evidence  and must show  that the fraud  foreclosed full and             fair  preparation or  presentation  of its  case.   We  have             explained that fraud on the court occurs,                  where   it  can   be  demonstrated,   clearly  and                  convincingly, that  a party has sentiently  set in                  motion  some  unconscionable scheme  calculated to                  interfere  with  the  judicial   system's  ability                  impartially to adjudicate  a matter by  improperly                  influencing  the trier  or unfairly  hampering the                  presentation  of  the  opposing  party's  claim or                  defense.                                          -11-                                          11             Aoude  v. Mobil  Oil Corp.,  892 F.2d  1115, 1118  (1st Cir.             __________________________             1989).                  When considered against these standards, it is clear to             us  that the  district  court  properly  denied so  much  of             defendants'  motion  as   was  based   on  speculative   and             unsubstantiated   allegations   of  perjury.     Defendants'             argument centers on the trial testimony given by Luis Rafael             Villanueva  Gaetan ("Rafi"),  the  only eye  witness to  the             accident.   During  trial,  Rafi testified  that  as he  was             walking  down Route 849 he passed Maria, who was standing on             the  shoulder of the  road.  A  short time later  he heard a             "blow" and turned to see Maria's body falling to the ground.             Rafi  explained that  Betancourt's car  was passing  just in             front of Maria's location  at the time her body  was falling             to the pavement.   After  the car stopped  a short  distance             down  the  road,   Rafi  said that  he  ran to  the  car and             informed  the driver, who  was then inspecting  the front of             his  car, that  he had  struck a  pedestrian.   According to             Rafi, the driver  looked in the  direction of Maria's  body,             then returned to  his car  and drove off.   Rafi  identified             Betancourt as the driver of the car.                  On  cross-examination, Rafi  admitted that some  of the             detail  of his  trial testimony  was absent  from two  prior                                         -12-                                          12             sworn statements given by  him.  Defense counsel highlighted             two   significant   additions   to   Rafi's   initial  sworn             statements.   First, while Rafi  testified at trial  that he             saw  Maria's  body  falling   to  the  pavement,  his  prior                                 ____________             statements implied that her body was already on the pavement                                                  __________             by  the  time  he turned  towards  the  sound  of the  blow.             Second, his trial testimony  placed Betancourt's car just in             front  of Maria at the  time of the  blow, while his initial             statements do not mention  the precise location of the  car,             other than  the fact that it  came to a stop  down the road.             Taking  these  inconsistencies  and adding  to  them  Rafi's             admission that  he had visited opposing  counsel's office to             prepare his trial testimony, defendants charge that opposing             counsel and Rafi conspired to present perjured testimony.                    The  judge properly concluded that defendants failed to             present clear  and convincing  evidence that Rafi  committed             perjury or  that opposing  counsel encouraged,   secured, or             knowingly  assisted the  allegedly perjured  testimony.   We             note  that  one  purpose  of cross-examination  is  to  give             counsel   the  opportunity   to   root  out   the  type   of             inconsistencies, omissions, and exaggerations  alleged here.             On  cross-examination, defendants raised before the jury the             same  facts that  are now  alleged on  appeal to  constitute                                         -13-                                          13             fraud on the court.  The significance of the inconsistencies             in  Rafi's  testimony,  as   well  as  his  credibility  and             sincerity, was for the jury to  decide and we see no  reason             to  disturb  its  findings  or the  district  court's  order             denying relief from the verdict on this ground.             B.   Undisclosed expert testimony                  Defendants also  seek a new trial  because the district             court abused its discretion  when it permitted the plaintiff             to  introduce  the  testimony of  a  previously  undisclosed             medical  expert,  Dr.  Walter   Kleis,  who  testified  that             Betancourt's  eyesight was  severely  impaired by  glaucoma.             Dr. Kleis testified that Betancourt's visual  impairment was             so  severe  that it  could cause  him  to miss  a pedestrian             walking along the road under conditions similar to  those on             the evening of the accident.                  Up to the time of  Dr. Kleis' testimony, plaintiff  had             pursued  the  case  under  the theory  that  Betancourt  was             driving with  "utter disrespect toward human  life" and that             "the accident was due only and exclusively to the negligence             of  defendants [sic]  for  not driving  safely."   Plaintiff             reaffirmed this as the  exclusive theory of the case  in the             initial pretrial order and two  amended pretrial orders.  At                                         -14-                                          14             no time  did plaintiff  suggest  that Betancourt's  eyesight             would  be raised  as an  issue at  trial, nor  did plaintiff             identify any medical experts who were to be called at trial.             Plaintiff, nonetheless,  argued to  the district  court that             Dr.  Kleis'  testimony  should  be permitted  as  "rebuttal"             evidence to  address an issue raised  by Betancourt's direct             examination.   Betancourt's entire direct  testimony on  the             issue follows:                  Q    Now, I note that you wear glasses.                  A    Yes.                  Q    Would  you tell  us, please,  what the  purpose of                       those glasses are [sic].                  A    The purpose of the glasses is to improve my vision                       to  make it  better.    But  I can  drive  without                       glasses.  I can see without glasses if I want to.                  Plaintiff's  counsel  made   Betancourt's  eyesight   a             central issue on cross-examination (more than a third of the             record  testimony is  devoted to  cross-examination on  this             issue).     Counsel's  examination  explored   the  physical             condition  of  Betancourt's  eyes,  namely the  presence  of             glaucoma; his on-going medical treatment for this condition,             including daily use of eye  drops and recent laser treatment             of  one  eye; and  the effect  of  this condition  and these             treatments  on  his  peripheral   vision,  his  ability   to                                         -15-                                          15             distinguish objects at a distance, and his ability to see in             the dark.                  During Betancourt's  cross-examination, plaintiff asked             the  court for permission to present Dr. Kleis as a rebuttal             witness.  Counsel  stated that Dr. Kleis  would testify that             based  on  his  review  of  Betancourt's   medical  records,             Betancourt suffered from  "all kinds of problems in terms of             centralized and focusing vision," particularly after sunset,             and that  he should not  have been  driving a car  at night.             The  court initially  denied plaintiff's  request, reasoning             that  the pretrial order made no mention of a medical expert             and that the proffered testimony  raised an entirely new and             inconsistent theory of the case.  The judge later decided to             hear  the testimony of Dr. Kleis outside the presence of the             jury.   At  that  time, the  court learned  that plaintiff's             counsel had  first contacted Dr. Kleis  around the beginning             of January 1992 at which time counsel told Dr. Kleis that it             was likely that he  would testify at trial.   Plaintiff made             no similar representation to the court or to defense counsel             at  any time  prior to  trial in  April 1992,  despite twice             seeking to  amend the pretrial  order to reflect  changes in             witnesses   and  other   evidence.    The   court  addressed             plaintiff's  counsel, concluding  that he  would  permit Dr.                                         -16-                                          16             Kleis to  testify before the jury  "as an act of  justice to             your client, not to you.  You did wrong."                  Dr.  Kleis  testified  for  the  jury  that  Betancourt             suffered from glaucoma, a medical condition of the eyes that             reduces an  individual's  peripheral vision,  especially  at             night.    He  stated  that  the  eye  drops  used  to  treat             Betancourt's  glaucoma made  his  pupils very  small,  which             further  reduced  his  visual  capacity.   In  addition,  he             testified that  Betancourt suffered from myopia, a condition             that impaired his ability to see objects at a distance.  Dr.             Kleis explained that taken  together, these conditions would             make it difficult for Betancourt to see and perceive objects             at  the  periphery   of  his  vision.     Responding  to   a             hypothetical question,  Dr. Kleis concluded  that under  the             lighting and driving conditions on the night of the accident             there  was a  possibility that  Betancourt did  not  see the             victim  on the  side  of  the  road.    Finally,  Dr.  Kleis             testified that Betancourt had undergone laser surgery on his             left eye shortly after the accident.                  In this case, the trial court's own findings compel the             conclusion  that the  defendant  was unfairly  surprised and             that plaintiff's  counsel engaged in misconduct.   Though we             believe that the judge abused  his discretion with regard to                                         -17-                                          17             his  ultimate decision  to admit  Dr. Kleis'  testimony, his             initial reaction  was correct  and we defer  to the  judge's             well-considered findings  of fact.   The judge  made several             germane findings on  the record.   The judge concluded  that             (1) Dr. Kleis' testimony was not proper rebuttal evidence of             an  issue  put  into  dispute on  direct  examination;3  (2)             plaintiff's counsel  "knew for a long  time" that Betancourt             suffered from glaucoma and that  "at least since January  []             had  Dr. Kleis  available  to testify;"  (3)  there was  "no             excuse as to why [counsel] kept [Dr. Kleis' testimony] under             [his]  sleeve  until this  moment;"  and  (4) the  proffered             testimony  changed the theory of the case from a charge that             Betancourt drove recklessly to an allegation that Betancourt             was "driving like normal  people do, and that because  of an             eyesight  problem he had the  accident."  In  spite of these             findings, the  judge ultimately decided to  admit Dr. Kleis'             testimony  as an "act  of justice" to  the plaintiff, noting                                              ____________________             3   Plaintiff  contends  that   Dr.  Kleis'   testimony  was             admissible  under  the terms  of  the  pretrial order  which             expressly  reserved   to  the   parties  a  right   to  call             undisclosed rebuttal witness.  The judge determined that Dr.             Kleis was not a proper rebuttal witness.  This determination                       ___             is within  the sound discretion of the trial judge, Lubanski                                                                _________             v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. 1991), and             ______________________             we are in full agreement with it.                                         -18-                                          18             that  the situation was totally beyond plaintiff's control.4                  In  this  case,  Dr.  Kleis'  testimony  and  counsel's             extensive  cross-examination of  Betancourt  on  his  visual             impairment, introduced  a novel theory of  liability to this             case.  Defense counsel was denied the opportunity  to design             an intelligent litigation strategy  to address the charge of             visual impairment and to effectively cross-examine Dr. Kleis             in  a highly specialized field of medicine.  Without time to             review  Dr. Kleis'  records  or to  gain sufficient  medical             knowledge and  without a chance to  investigate Betancourt's             physical condition, speak to  his primary care physician, or             arrange for a rebuttal expert, defense counsel was precluded             from effectively addressing the charge.                    We  have no doubt that this state of the record exactly             comports with the definition  of unfair surprise  succinctly             set out by the Court of Appeals of the Fifth Circuit:                  It is well settled  that Rule 59 provides a  means                  of  relief in  cases  in which  a  party has  been                  unfairly  made  the  victim  of   surprise.    The                  surprise,  however,  must  be  "inconsistent  with                                              ____________________             4  We  are  aware  of the  difficulty  of  excluding  highly             relevant  and perhaps  dispositive testimony  which apparent             substantive justice  requires should  be  considered by  the             jury.    Apparent  substantive  justice   may  be  illusory,             however,  if  the  purportedly dispositive  evidence  is not             subject to fair testing in an even handed process.                                         -19-                                          19                  substantial justice" in  order to justify  a grant                  of  a new trial.  The  district court is therefore                  entitled  to  grant  a   new  trial  only  if  the                  admission  of  the  surprise   testimony  actually                  prejudiced the [moving party's]  case.  This Court                  has limited reversible error from  unfair surprise                  to  situations where  a  completely  new issue  is                  suddenly  raised  or  a   previously  unidentified                  expert witness is suddenly called to testify.             Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d at 111-             __________________________________________             12  (footnote  and  citations  omitted).    Furthermore, the             district  judge  made a  specific  finding that  plaintiff's             counsel had been guilty of misconduct.  On the facts of this             case,  the criteria  for misconduct  which we  imposed under             Rule 60(b) in Anderson v. Cryovac, 862 F.2d at 923-26, apply                           ___________________             equally  to  this motion  under Rule  59.   Reversal  of the             judgment and a  remand for  a new trial  is warranted  under             either analysis.                  We  need not  address defendants'  claim that  the jury             award was excessive,  since in any case there  must be a new             trial.   The judgment is  reversed and the  case remanded to                                       ________               ________             the district court for a new trial.                  Costs awarded to appellants.                                         -20-                                          20
