J-S71034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TERRA FIRMA BUILDERS, LLC              :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 WILLIAM M. KING, A/K/A BILLY M.        :
 KING, AND MELANIE L. KING, A/K/A       :
 MELANIE L. FRANTZ                      :   No. 1521 EDA 2019
                                        :
                   Appellants           :

              Appeal from the Judgment Entered July 9, 2019
     In the Court of Common Pleas of Delaware County Civil Division at
                        No(s): No. CV-2013-1580,
                   No. CV-2013-4202, No. CV-2015-1536

 TERRA FIRMA BUILDERS, LLC.            :    IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                   Appellant           :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 WILLIAM KING AND MELANIE L.           :    No. 2045 EDA 2019
 KING A/K/A MELANIE L. FRANTZ          :

              Appeal from the Judgment Entered July 9, 2019
     In the Court of Common Pleas of Delaware County Civil Division at
                         No(s): CV-2015-001536


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

DISSENTING MEMORANDUM BY BOWES, J.:                  Filed: August 20, 2020

     My distinguished colleagues find that the trial court did not abuse its

discretion in excluding the testimony of Robert J. Illo, the Kings’ expert

architect and engineer, from the second trial of this case, because his
J-S71034-19


amended expert report was filed after the close of discovery.1 The amended

report, dated August 28, 2018, was sent to Terra Firma by certified mail that

day, more than two months before the November 2, 2018 scheduled re-trial

of this case, and three months before the actual trial. Since Terra Firma did

not establish that it was prejudiced by the timing of the amended expert

report, I believe the trial court abused its discretion in this regard, and that a

new trial is required. Hence, I respectfully dissent.

       Mr. Illo was excluded as an expert at the first trial on the ground that

his report did not contain the methodology he used in calculating the value of

the work performed by Terra Firma. Nonetheless, the trial court erroneously

relied upon Mr. Illo’s conclusions in awarding the Kings $27,266.30 on their

counterclaim. Terra Firma filed a post-trial motion alleging that the trial court

erred in relying upon a report that was not in evidence, the trial court

acknowledged its mistake, and it ordered a new trial pursuant to Pa.R.C.P.

227.1.

       On August 28, 2018, well in advance of the scheduled new trial, the

Kings provided to Terra Firma Mr. Illo’s amended expert report, in which he

defined the methodology used in arriving at the conclusions contained in his



____________________________________________


1 The deadline for identification of the Kings’ expert witnesses and furnishing
of expert reports was September 21, 2017, for trial commencing October 19,
2017. The Kings complied with that deadline. After a new trial was ordered,
the trial court did not issue a new case management order for the identification
of experts and submission of their reports.

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original report, and itemized the values he assigned to the tasks performed.

On October 5, 2018, Terra Firma filed a motion to preclude Mr. Illo’s amended

report, as well as his testimony, alleging that the amended report was “late-

filed and inadmissible” as discovery had long been closed.     See Motion to

Preclude Mr. Illo’s Amended Report, at ¶24. Terra Firma alleged further that

the granting of the new trial pursuant to Pa.R.C.P. 227.1 did not reopen

discovery. Id. at ¶26. It pled that it would be “patently unfair and unjust to

allow [the Kings] to submit an amended expert report after they gained

knowledge of [Terra Firma’s] trial strategy.”    Id. at ¶30.   The trial court

granted Terra Firma’s motion on October 24, 2018, and excluded the expert

and his amended report from the second trial.

      The second trial commenced on December 12, 2018.              The Kings

renewed their proffer of the testimony of Mr. Illo, and sought admission of his

amended expert report.     Again, the trial court denied the request.    In its

subsequent opinion, the trial court held that the Kings could not offer or seek

admission of additional evidence at the new trial because Pa.R.C.P. 227.1,

which was the basis for the new trial herein, “does not provide a mechanism

to reopen discovery.” Trial Court Opinion, 8/22/19, at 5. Moreover, the court

stated that it did not issue a new case management order when it ordered the

new trial, and therefore “made no allowances for new or extended discovery

deadlines.”   Id.   The court concluded that its mistake in relying upon the

inadmissible report “cannot be a basis for which [the Kings] can seek to


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introduce an amended expert report to get a second bite of the apple.” Id.

at 6. In its view, the Kings’ position “would lead to an untenable result that

would clearly unfairly prejudice [Terra Firma].” Id.

      A new trial is just that --- a new trial. Unless specifically limited, the

grant of a new trial “means a new trial generally; it restores a case to the

status it had before the trial took place and is fully open to be tried de novo

as to all parties and all issues.”     Rivera v. Philadelphia Theological

Seminary of St. Charles Borromeo, Inc., 507 A.2d 1, 11 (Pa. 1986). The

parties are not restricted to the evidence introduced at the first trial. That is

true whether it is the trial court granting a new trial pursuant to Pa.R.C.P.

227.1, or this Court ordering a new trial on appeal.           See Merklin v.

Philadelphia Suburban Water Co., 361 A.2d 754, 755 (Pa.Super. 1976)

(noting when case is reversed and remanded for a new trial, the parties can

introduce new evidence and assert new defenses not raised at the first trial).

      In my view, the propriety of excluding Mr. Illo because his amended

report was filed after the discovery deadline is governed by Pa.R.C.P. 4003.5,

and the case law interpreting that rule. Rule 4003.5(c) provides that expert

opinion testimony should be limited as follows:

      To the extent that the facts known or opinions held by an expert
      have been developed in discovery proceedings . . . his direct
      testimony at the trial may not be inconsistent with or go beyond
      the fair scope of his testimony in the discovery proceedings as set
      forth in his deposition, answer to an interrogatory, separate
      report, or supplement thereto.

Pa.R.C.P. 4003.5(c).


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      “[T]he purpose of Pa.R.C.P. 4003.5 is to prevent surprise.” Miller v.

Brass Rail Tavern, Inc., 664 A.2d 525, 530 n.3 (Pa. 1995). I submit that

the language providing that an expert’s trial testimony cannot go beyond his

“separate report or supplement thereto” expressly contemplates and permits

experts to supplement their reports. See also Pa.R.C.P. 4007.4(1) (requiring

parties and experts to supplement responses regarding subject matter on

which each     expert is   expected to      testify as   provided in    Pa.R.C.P.

4003.5(a)(1)). Notably, this rule does not place any time limitations on the

exchange of expert reports or the filing of supplemental responses.          As a

matter of practice, expert reports are often furnished with pretrial statements,

or as directed in case management orders, usually after the close of discovery.

It is also customary for parties to reserve the right to file supplemental expert

reports.

      Generally, the issue with the filing of an amended or supplemental

expert report after the deadline for submission of expert reports is whether

the report injects new theories, and if so, whether the other side has an

adequate opportunity to respond prior to trial.      In Keffer v. Bob Nolan's

Auto Serv., 59 A.3d 621, 633-34 (Pa.Super. 2012), a defense expert filed a

supplemental report containing opinions responsive to the supplemental

report of the plaintiff’s expert. The plaintiff moved to strike that report on the

ground that it introduced a new theory and was untimely.          The trial court

denied the motion and permitted the expert to testify based on the


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supplemental report. This Court affirmed, adopting the reasoning of the trial

court that:

       The record is devoid of any evidence of a willful violation of the
       discovery rules or bad faith by the [d]efendants. The [d]efendants
       did not hide the identity of their expert and did not attempt a “trial
       by ambush.” On the contrary, [the] supplemental report was
       necessary only because [plaintiff’s] supplemental report
       introduced new issues in responding to [the defense expert’s] two
       prior reports.

Id. at 654.

       As the Kings correctly point out, even experts who have not been

identified or submitted reports prior to the close of discovery have been

permitted to testify.2 In Feingold v. SEPTA, 517 A.2d 1270 (Pa. 1986), ten

expert reports were filed after the discovery deadline. In reviewing the trial

court’s rulings that these experts were permitted to testify, our Supreme Court

held that trial courts should consider the following factors: “(1) the prejudice

or surprise in fact of the party against whom the excluded witnesses would

have testified, (2) the ability of that party to cure the prejudice, (3) the extent

to which waiver of the rule against calling unlisted witnesses would disrupt the

orderly and efficient trial of the case or of other cases in the court, and (4)

bad faith of (sic) willfulness in failing to comply with the court’s order.” See

also Gill v. McGraw Electric Co., 399 A.2d 1095, 1102 (Pa.Super. 1979)

____________________________________________


2 Pa.R.C.P. 4003.5(b) provides that expert witnesses who are not identified
in accordance with subsection (a)(1), “shall not be permitted to testify on
behalf of the defaulting party at the trial of the action. However, if the failure
to disclose the identity of the witness is the result of extenuating
circumstances beyond the control of the defaulting party, the court may grant
a continuance or other appropriate relief.”

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(en banc) (citing same four factors for consideration when deciding whether a

witness should be precluded for failing to comply with pre-trial orders).

       The foregoing cases illustrate that rigid adherence to deadlines in such

circumstances is in tension with our rules and prevailing decisional law. While

trial courts may preclude an expert from testifying based upon violation of

discovery order or deadline, its discretion is implicated. The court, guided by

factors such as those in Feingold, must assess prejudice. This Court has

defined prejudice as “any substantial diminution of a party’s ability to properly

present its case at trial,” not simply damage to the opponent’s case. Florig

v. Estate of O'Hara, 912 A.2d 318, 325 (Pa.Super. 2006) (citing Metz

Contracting Inc. v. Riverwood Builders, Inc., 520 A.2d 891, 894

(Pa.Super. 1987); Albert v. Alter, 381 A.2d 459, 465 n.2 (Pa.Super. 1977).

Terra Firma’s claim that it would be prejudicial to permit the expert to amend

his report because the Kings knew its trial strategy, as well as the trial court’s

belief that its mistake should not give the Kings a second bite of the proverbial

apple, falls into the latter category.3

       The trial court was under the misimpression that the discovery deadline

for the first trial controlled, and that it lacked discretion under Pa.R.C.P. 227.1,

to permit the parties to supplement reports or offer additional evidence at the


____________________________________________


3It is often the case that trial court error necessitates a new trial. I see no
bar to parties availing themselves of new strategies or curing evidentiary
deficiencies at a new trial.

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re-trial of the case.   Hence, the court did not exercise its discretion and

consider the Feingold factors prior to excluding Mr. Illo from testifying at the

re-trial. Since there was no showing by Terra Firma that Mr. Illo’s proffered

testimony would cause prejudice, unfair surprise, or disruption to the second

trial, or that the amended report was prepared in bad faith, I believe it was

an abuse of discretion to preclude Mr. Illo from testifying within the scope of

his expert reports. Hence, I would remand this case for yet another new trial

at which Mr. Illo would be permitted to offer expert testimony consistent with

his reports.    Terra Firma would be allowed to seasonably obtain a

supplemental report from its expert, or even a new expert, to address the

methodology employed by Mr. Illo.

      For the foregoing reasons, I dissent.




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