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 &amp; 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 &amp; 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 &amp; 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 &amp; 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 &amp; 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
