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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2008 <br> <br>                       BECKY J. LICCIARDI, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                       TIG INSURANCE GROUP, <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>             [Hon. Mary M. Lisi, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                    Selya, Boudin and Lynch, <br>                        Circuit Judges. <br>                                 <br>                                 <br> <br> <br>      <br> <br> <br>     Leonard Glazer, with whom Frank E. Glazer, Anthony R. Orlandoand Law Offices of Leonard Glazer were on brief, for appellant. <br>     Carol A. Griffin, with whom Mark T. Nugent and Morrison, <br>Mahoney & Miller were on brief, for appellee.      <br> <br> <br> <br> <br>April 10, 1998 <br> <br> <br> <br>

  LYNCH, Circuit Judge.  The malfunction of the Free Fall <br>ride in a Rhode Island amusement park caused it to stop <br>unexpectedly on the upper runoff track.  The passengers were <br>jolted.  One passenger, Becky Licciardi, then 20 years old, <br>complained that her side and ribs hurt and that she was bruised.  <br>She later developed a far more serious condition, fibromyalgia, <br>which she believed was caused by the trauma to her from the <br>accident.  She sued the park, which was in bankruptcy, and the <br>park's insurer was substituted as defendant.  See R.I. Gen. Laws  <br>27-7-1 (1994). <br>  After an eight day trial, a jury returned a defense <br>verdict.  The defense verdict was procured, however, by trial by <br>ambush tactics:  the defense Rule 35 medical expert changed course <br>180 degrees from his report in his testimony on a key topic at the <br>heart of plaintiff's case.  Further, he went into a new area of <br>testimony.  There was no prior disclosure of the coming volte face; <br>indeed there was a misrepresentation in the supplemental answer to <br>interrogatories filed two days after the jury was impaneled that <br>the expert's testimony would be the same as in his initial report.  <br>Plaintiff's counsel protested in vain, objecting to the testimony, <br>and when that failed, moving for a mistrial and then a new trial.  <br>Because we believe the district court abused its discretion in <br>admitting the evidence, we vacate the verdict and remand the case. <br>                               I. <br>     On July 10, 1992, Licciardi and her then-fianc, Torrey <br>LeBlanc, were passengers on the Free Fall ride at Rocky Point <br>Amusement Park, in Warwick, Rhode Island, when the ride <br>malfunctioned.  Plaintiff claims that instead of gradually <br>decelerating as it normally did, the ride stopped with "three <br>enormous jerks, thrusting her violently forward and back in her <br>seat before the car came to an abrupt stop on the emergency runoff <br>track."  The ride operator had to use a specialized tool to release <br>plaintiff and LeBlanc.  Plaintiff and LeBlanc both testified that <br>the car felt as if it was crashing into a barricade when it <br>stopped.  As she climbed off the ride, plaintiff told the ride <br>attendant that she was in some pain on the right side of her body, <br>in the area of her ribs.  Some 35 to 45 minutes later, plaintiff <br>sought medical attention at the Rocky Point first aid station.  The <br>emergency medical technician on duty examined plaintiff, and noted <br>slight bruising and tenderness in the area of plaintiff's right <br>ribs.  He recommended that plaintiff go to a hospital, which <br>plaintiff declined to do.  Plaintiff filled out an accident report <br>in which she stated that the "car jerked to a stop [and] I hurt my <br>right side." <br>     The next day Licciardi did go to the emergency room at <br>Tobey Hospital, where she was examined and diagnosed with a <br>contusion to her right lower ribs.  The examining physician advised <br>her to avoid lifting activity, to follow up with her regular <br>physician, and to take pain medication as needed.  Because her <br>discomfort persisted, plaintiff saw her family physician two weeks <br>later, at which point she was switched to a different medication.  <br>Plaintiff returned to college in the fall, but testified that she <br>remained in constant discomfort, particularly experiencing pain in <br>her lower right back, as well as pain radiating down her right leg.  <br>Over the next year, plaintiff continued to report to her physicians <br>that she was experiencing persistent back, buttock, and leg pain; <br>that the pain was causing her to lean to the right when she stood; <br>and that her neck, shoulders, and head were constantly aching.  <br>Throughout 1993 and 1994 her pain remained essentially unchanged <br>despite physical therapy, and by the end of 1994 she had developed <br>a generalized persistent pain and discomfort termed <br>"fibromyalgia." <br>     Plaintiff filed this lawsuit on December 28, 1994, <br>alleging negligence and breach of warranty.  A jury trial began on <br>June 5, 1997, and lasted until June 19, 1997.  The jury returned a <br>verdict in favor of the defendant.  Plaintiff filed a motion for a <br>new trial, which the district court denied after a hearing.  <br>Plaintiff appeals from the judgment and from the denial of the <br>motion for a new trial. <br>     Plaintiff's most meritorious argument on appeal is that <br>the district court committed reversible error when it permitted <br>defendant's medical expert to testify in a manner directly <br>contradictory to and beyond his prior report, where defendant <br>failed to supplement its answers to interrogatories in order to <br>alert plaintiff to this turnaround testimony.  We agree. <br>                              II. <br>     As of the start of trial, the plaintiff's theory and the <br>defense theory were straightforward.  The plaintiff's theory was <br>that the accident on the Free Fall ride was caused by a failure in <br>the ride's braking systems, which was caused by defendant's <br>negligent maintenance of the ride.  This accident, in turn, had <br>caused traumatic injury to Licciardi which eventually led to her <br>more serious fibromyalgia.  The defense theory was that the only <br>malfunction in the Free Fall was the failure of a reversing <br>mechanism, that the braking systems functioned properly, and there <br>was no negligence.  As for plaintiff's injuries, defendant's theory <br>was that plaintiff had not proven that the fibromyalgia resulted <br>from the trauma plaintiff suffered, and that fibromyalgia results <br>from conditions other than trauma.  Importantly, the defense Rule <br>35 medical expert, Dr. Morgan, in his report, opined that plaintiff <br>had indeed suffered a trauma from the accident, but that this <br>trauma was not the cause of the fibromyalgia.  Thus, a major aspect <br>of plaintiff's case was built on the sensible belief that the fact <br>of the trauma was uncontested; the real contest lay elsewhere. <br>     However, at trial, during his direct examination, the <br>Rule 35 expert for the first time offered two new items of <br>testimony.  He opined that plaintiff did not suffer the trauma from <br>the accident which she claimed.  He also supported that opinion by <br>saying he had been to the park and had inspected the ride.  He <br>described the seat and features of the ride, and, although he was <br>a medical expert, concluded that the features of the seat were such <br>that they could not have injured plaintiff as she said.  He <br>described the way in which the forces of deceleration would impact <br>a passenger on the Free Fall, and asserted that Licciardi's <br>injuries were not consistent with this type of impact.  It is this <br>new testimony which is at issue. <br>     A description of the course of pre-trial discovery and <br>events at trial sets the context.  In February of 1995, plaintiff <br>submitted a series of interrogatories to defendant, including <br>expert interrogatories.  Defendant answered on May 22, 1995, <br>stating that it "had not yet retained an expert for the trial[, but <br>retained] the right to supplement this answer in accordance with <br>the rules of procedure." <br>     In November of 1995, defendant requested, pursuant to <br>Fed. R. Civ. P. 35(a), a court order compelling plaintiff to submit <br>to a physical examination by Dr. Thomas Morgan, a neurologist.  The <br>court granted the motion, and Dr. Morgan performed a medical <br>examination of plaintiff on January 18, 1996.  Dr. Morgan took a <br>full medical history from plaintiff, reviewed her medical records, <br>and performed his own neurological examination of plaintiff.  After <br>the examination, Dr. Morgan produced a report, which plaintiff <br>received in accordance with Rule 35.  The report first detailed <br>plaintiff's medical history since the Free Fall incident, and then <br>stated the following: <br>     After performing this neurological examination  <br>     and reviewing this patient's medical records, <br>     I can say with a reasonable degree of medical <br>     certainty that this patient sustained a bruise <br>     and strain to her right lower rib and lumbar <br>     paraspinal area as a result of her accident at <br>     Rocky Point on 7/10/92.  She was treated for <br>     this problem conservatively, and as evidenced <br>     by the physical therapy notes, seemed to <br>     improve as of September, 1992.  Subsequently, <br>     the patient went through further evaluations <br>     with multiple physicians for lumbar pain and <br>     diffuse body pain, with disturbed posture with <br>     a tilt to the right; also, complaining of <br>     headaches and depression; she was given the <br>     diagnosis of fibromyalgia.  These complaints <br>     and the fibromyalgia syndrome are not causally <br>     related to her accident in the amusement park <br>     at Rocky Point. <br> <br>The report further stated that,  <br> <br>     [t]he diagnosis, at the time of the injury and <br>     within the subsequent six to eight weeks . . . <br>     was consistent with sprain and strain.  The <br>     onset was consistent with biologically timed <br>     relevant factors.  Strains and sprains <br>     typically last from a few weeks to a few <br>     months consistent with minor soft tissue <br>     injury, and this is related to the amusement <br>     park incident.  The patient's subsequent <br>     complaints, which ultimately led to <br>     fibromyalgia syndrome, are not causally <br>     related to the incident. <br> <br>(Emphasis added).  The thrust of Dr. Morgan's report, therefore, <br>was that the accident caused a strain and bruising to plaintiff, <br>but the later, more serious complaints and the diagnosis of <br>fibromyalgia were not related to the accident. <br>     On May 14, 1996, four months after Dr. Morgan examined <br>plaintiff and issued his report, Dr. Morgan accompanied defendant's <br>lawyers and engineering expert on a visit to Rocky Point.  The Free <br>Fall was tested at that time, and Dr. Morgan inspected the ride.  <br>Although plaintiff's lawyer was present at Rocky Point on the day <br>of defendant's inspection of the Free Fall, he was not specifically <br>alerted to Dr. Morgan's presence and inspection of the ride.  <br>Further, defendant never disclosed until Dr. Morgan was on the <br>witness stand at trial that Dr. Morgan would change his testimony <br>as a result, or that he would testify about his observations of the <br>ride. <br>     On May 7, 1997, nearly one year after Dr. Morgan's <br>inspection of the Free Fall, and two days after the jury in this <br>case was impaneled, defendant gave the following supplemental <br>answer to plaintiff's interrogatory regarding expert testimony: <br>     (a) Thomas F. Morgan, M.D., . . . (b) the <br>     subject matter upon which Dr. Morgan will <br>     testify is completely set forth in his report, <br>     dated January 18, 1996, a copy of which has <br>     already been provided to plaintiff's counsel <br>     but which is nonetheless attached hereto; (c) <br>     the substance of facts and opinions upon which <br>     Dr. Morgan will testify is completely set <br>     forth in his report, dated January 18, 1996 . <br>     . . (d) the summary of grounds for each <br>     opinion is stated in Dr. Morgan's report. <br> <br>(Emphasis added). <br>     The plaintiff's case took six days to put in.  Dr. Morgan <br>testified near the end of trial, starting on day seven of trial.  <br>At trial, Dr. Morgan was permitted to testify, over plaintiff's <br>persistent objections, that he examined the Free Fall and its seats <br>when he visited Rocky Point, and that nothing in the car could have <br>caused a localized bruise to plaintiff's kidney and ribs.  Dr. <br>Morgan's testimony included the following: <br>     Q:  Now, Doctor, what is the mechanism of a <br>     bruise, a localized bruise occurring? <br>     A:  The mechanism to get a bruise means that <br>     you have to have sustained a load or a punch <br>     or a pressure to the bruised area or that area <br>     has to push into something, like a <br>     compression. <br>     Q:  And Doctor, based upon your examination of <br>     this gondola, examination of the seat -- <br>     you're actually sitting in it -- based upon <br>     where Miss Licciardi explained to you where <br>     the bruise was, based upon the location as <br>     described in the Tobey Hospital record and <br>     based upon her description of it as being a <br>     kidney-like punch, do you have an opinion to a <br>     reasonable degree of medical certainty as to <br>     whether or not there is a structure inside the <br>     ride on the seat which could produce that <br>     mechanism of injury? <br>     . . .  <br>     A:  Yes, I do have an opinion. <br>     Q:  And what is your opinion, please? <br>     A.  There is no structure in that seat that <br>     would give you a localized kidney punch with a <br>     bruise. <br> <br>     In addition to testifying that he believed the Free Fall <br>car could not have caused Licciardi's injury as she described, Dr. <br>Morgan discussed the engineering and physics of the ride.  He <br>testified that he was familiar with the forces of deceleration, and <br>that based upon his understanding of those forces and his <br>understanding of the ride, it was his opinion that on the ride the <br>maximum deceleration force would impact a passenger's body "in the <br>buttock region."  Further, he testified, Licciardi never <br>complained of nor described any type of injury to her buttocks <br>following the ride.  None of this testimony was alluded to in Dr. <br>Morgan's report. <br>                              III. <br>     We will disturb a decision to admit or exclude expert <br>testimony only if there was an abuse of discretion which resulted <br>in prejudice to the complaining party.  See Poulin v. Greer, 18 <br>F.3d 979, 984 (1st Cir. 1994); cf. General Elec. v. Joiner, 118 <br>S.Ct. 512, 517 (1997) (holding that appeals courts review trial <br>court decisions to admit or exclude expert testimony under Dauberton an abuse of discretion standard). <br>     "Recognizing the importance of expert testimony in modern <br>trial practice, the Civil Rules provide for extensive pretrial <br>disclosure of expert testimony."  Thibeault v. Square D Co., 960 <br>F.2d 239, 244 (1st Cir. 1992).  Rule 26(e) of the Civil Rules <br>requires a party to supplement its answers to interrogatories "if <br>the party learns that the response is in some material respect <br>incomplete or incorrect" and the other party is unaware of the new <br>or corrective information.  See Fed. R. Civ. P. 26(e)(2).  That <br>rule also requires a party to inform another party of a material <br>change in or addition to information contained in an expert's pre- <br>trial report.  See Fed. R. Civ. P. 26(e)(1).  This supplementation <br>requirement increases the quality and fairness of the trial by <br>"narrowing [the] issues and eliminat[ing] surprise."  Johnson v. <br>H.K. Webster, Inc., 775 F.2d 1, 7 (1st Cir. 1985) (internal <br>quotation marks omitted); see Thibeault, 960 F.2d at 244.   <br>     In order to "ensure that the spirit of open discovery <br>embodied in Rule 26 is not undermined either by evasion or by <br>dilatory tactics," Thibeault, 960 F.2d at 244, this court has <br>looked to a variety of factors in assessing a claim of error under <br>Rule 26.  Among the factors to consider are "the conduct of the <br>trial, the importance of the evidence to its proponent, and the <br>ability of the [opposing party] to formulate a response."  Johnson, <br>775 F.2d at 8; see also Thibeault, 960 F.2d at 246 ("[T]he focus of <br>a preclusion [of testimony not previously disclosed to the opposing <br>party] inquiry is mainly upon surprise and prejudice, including the <br>opponent's ability to palliate the ill effects stemming from the <br>late disclosure.").  In Johnson, this court also noted that part of <br>the purpose of the disclosure and supplementation requirements in <br>Rule 26 was to alleviate "the heavy burden placed on a cross- <br>examiner confronted by an opponent's expert whose testimony had <br>just been revealed for the first time in open court."  775 F.2d at <br>7.  See also 8 Charles A. Wright et al., Federal Practice and <br>Procedure  2949.1 (2d ed. 1994) ("[Rule 26] makes a special point <br>of the importance of full disclosure and supplementation with <br>regard to expert testimony, a traditionally troublesome area <br>concerning last-minute changes.").  To increase the effectiveness <br>of this rule, the Advisory Committee Note suggests that the court <br>may impose sanctions on one who defies the rule, including <br>exclusion of evidence, granting a continuance, or other appropriate <br>action.  See Johnson, 775 F.2d at 7. <br>     Dr. Morgan's changed testimony on two points was highly <br>prejudicial to plaintiff's case.  Counsel prepared plaintiff's case <br>on the assumption that the question of causation regarding the <br>original localized bruising and trauma was not in dispute, for <br>defendant's own expert had conceded there was such causation.  <br>Plaintiff's medical case therefore focused on proving the <br>connection between the original bruising and the later, more <br>serious, fibromyalgia.  On the issue of causation of the <br>fibromyalgia, the parties had battling experts.  Fibromyalgia is a <br>syndrome of ambiguous origin, as defendant's expert emphasized.  <br>Both plaintiff's treating physician and her expert testified that <br>plaintiff's fibromyalgia was caused by the trauma and injuries she <br>suffered from the accident. <br>     Scant attention was paid to establishing that the <br>accident did cause trauma, because it had been conceded by the <br>defense medical expert.  The record lacks the sort of testimony <br>which plaintiff would have been put in had plaintiff known this to <br>be at issue.  Thus, plaintiff was prejudiced by presenting a case <br>addressed to one key issue, only to have defendant put on a case <br>addressed to a different predicate key issue.  See Fortino v. <br>Quasar Co., 950 F.2d 389, 396-97 (7th Cir. 1991) (finding trial <br>court's admission of testimony erroneous and prejudicial where <br>plaintiff violated Rule 26 by failing to supplement answers to <br>interrogatories with the new testimony, where that testimony was <br>"critical" to the case and completely unexpected from defendant's <br>point of view); cf. Voegeli v. Lewis, 568 F.2d 89, 96-97 (5th Cir. <br>1977) (finding trial court's admission of expert testimony <br>erroneous and prejudicial where expert had changed opinion since <br>deposition and defendant did not alert plaintiff to this change). <br>     Moreover, the engineering testimony presented by <br>plaintiff was addressed to the issue of whether the malfunction in <br>the Free Fall that caused it to stop abruptly on the upper runoff <br>was attributed to negligence.  It was not addressed to whether the <br>plaintiff could have been injured by the seat at the ride as she <br>claimed.  The only "expert" testimony on this point came from Dr. <br>Morgan, a Rule 35 medical expert, who went beyond the scope of an <br>ordinary Rule 35 examination, and far beyond the scope of his <br>report, in his testimony about the ride itself.  On both of these <br>points, plaintiff had no opportunity to prepare her own case or <br>conduct a meaningful cross examination.  See Freund v. Fleetwood <br>Enters., Inc., 956 F.2d 354, 358 (1st Cir. 1992) (holding that <br>trial court properly excluded plaintiff's expert testimony where <br>substance of that testimony was not made known to defendants until <br>the middle of trial, and noting that "had [defendants] known about <br>the [expert] testimony sooner, they might well have decided to <br>counter it, through cross-examination or other expert testimony"); <br>Mills v. Beech Aircraft Corp., 886 F.2d 758, 764 (5th Cir. 1989) <br>(trial court properly excluded expert testimony where defendant <br>first learned about additional tests conducted by plaintiffs' <br>expert when the expert testified at trial, depriving defendant of <br>the opportunity to engage its own expert to analyze and testify <br>about the tests); Labadie Coal Co. v. Black, 672 F.2d 92, 94-95 <br>(D.C. Cir. 1982) (finding erroneous and prejudicial district <br>court's admission of documents where plaintiff was alerted to the <br>documents for the first time after it had rested its case and on <br>the last day of trial, and noting that "when the documents were <br>finally produced, [plaintiff] had little, if any, time effectively <br>to . . . cross examine [defendant] as to their contents"); cf.Meltzer v. Comerica, __ F.3d __ (1st Cir. 1998) (trial court <br>properly prohibited defendants from changing their position on a <br>pre-trial stipulation at the last minute, where such change would <br>have prejudiced plaintiff). <br>     There was another aspect of prejudice as well.  <br>Unbeknownst to plaintiff before trial, her very credibility as to <br>whether she had suffered the trauma she described from the accident <br>was challenged.  And that challenge came from defendant's Rule 35 <br>medical expert.  From Dr. Morgan's report, plaintiff had no reason <br>to believe Dr. Morgan would challenge her credibility on this (or <br>indeed any) point.  There was no suggestion in that report that <br>plaintiff was not credible in reporting any of her symptoms, <br>whether of the trauma or of the fibromyalgia.   <br>     Defendant makes four arguments as to why any error in <br>admitting Dr. Morgan's turnaround testimony is not reversible.  <br>First, defendant claims that Dr. Morgan's new testimony was not <br>expert opinion testimony at all, but was based purely on his "first <br>hand observations of the interior" of the Free Fall ride.  No such <br>distinction was made to the jury nor did defendant offer Dr. Morgan <br>as a lay witness.  Dr. Morgan was testifying as a medical expert, <br>offering opinions based on "reasonable medical certainty," and the <br>jury undoubtedly took all of his testimony to be based on his <br>expert knowledge. <br>     Defendant's second argument is equally meritless. <br>Defendant claims that Dr. Morgan's trial testimony should not have <br>come as a surprise to plaintiff because plaintiff's counsel was at <br>Rocky Point on the day of the Free Fall demonstration and <br>inspection, and he had some information that a Dr. Morgan was <br>there.  Plaintiff's counsel states that he was not aware that Dr. <br>Morgan was inspecting the ride, and that even if he was aware of <br>this, it would be irrelevant because he had no reason to believe <br>that Dr. Morgan's testimony had changed as a result of the <br>inspection.  We agree. <br>     Defendant suggests that because plaintiff was aware of <br>the presence of a Dr. Morgan at the Free Fall demonstration, <br>plaintiff should have compelled supplementation of Dr. Morgan's <br>report or the answers to interrogatories.  But plaintiff was <br>entitled to assume that defendant would abide by the rules and <br>inform plaintiff of a material change in Dr. Morgan's opinion. <br>Indeed, when plaintiff received defendant's "supplemental answers" <br>two days after jury impanelment and one year after the Free Fall <br>inspection, any thoughts that Dr. Morgan's opinion may have changed <br>since his initial report were dispelled by defendant's statement <br>that Dr. Morgan's testimony was "completely set forth" in his <br>initial report. <br>     Defendant's third argument is that even if Dr. Morgan's <br>surprise testimony did constitute unfair surprise, any error in its <br>admission was harmless because it was "cumulative" of other <br>testimony.  This is so, according to defendant, because Torrey <br>LeBlanc, plaintiff's former fianc who was on the ride with <br>plaintiff on the day the ride malfunctioned, testified that he did <br>not recall seeing any protrusions in the car.  But, as plaintiff <br>aptly notes, LeBlanc did not testify as an expert giving an opinion <br>as to causation.  Dr. Morgan's testimony was prejudicial to <br>plaintiff's case because plaintiff did not herself put in expert <br>testimony to substantiate the causal connection between the Free <br>Fall incident and the initial bruising; plaintiff understood that <br>to be a given. <br>     Finally, defendant argues that the proper remedy for a <br>Rule 26 violation is not exclusion of the testimony, but a request <br>for a continuance.  See Newell Puerto Rico v. Rubbermaid, Inc., 20 <br>F.3d 15, 22 (1st Cir. 1994) (affirming trial court's decision not <br>to exclude testimony despite proponent's failure to supplement <br>answers to interrogatories under Rule 26, and noting that "[i]f <br>counsel felt ill-prepared to cross-examine Mr. Villamil when faced <br>with his testimony at trial, counsel's solution was to request a <br>continuance").  It is true that, where effective to counteract the <br>surprise to one party wrought by the other party's failure to abide <br>by Rule 26, a continuance or the calling of a rebuttal witness is <br>preferable to terminating the trial and beginning anew.  However, <br>a continuance is not effective in every circumstance to counteract <br>the unfair surprise.  See Thibeault, 960 F.2d at 246 ("[A] <br>continuance is often ineffectual as a sanction and unfair to both <br>the court and the opposing party.").   <br>     This is a legitimate question of whether a lesser remedy <br>-- a continuance -- would have sufficed.  There are several reasons <br>why a recess and a continuance of a trial would not have been an <br>adequate remedy.  First, several of our cases preferring a <br>continuance arise in the context of claimed surprise after there <br>has been some belated, subtle notice, of a change in an expert's <br>testimony.  See, e.g., Newell, 20 F.3d at 21-22; cf. Stevens v. <br>Bangor and Aroostook R.R. Co., 97 F.3d 594, 598-600 (1st Cir. 1996) <br>(in Federal Employers' Liability Act action against railroad, trial <br>court properly excluded defendant's proffered evidence of <br>myocardial infarction plaintiff suffered two weeks prior to trial, <br>where defendant failed to produce expert testimony explaining <br>relationship between infarction and plaintiff's work and life <br>expectancy; defendant had notice prior to trial and two weeks was <br>enough time to engage expert).  Here, there was no subtle notice of <br>change in testimony; until Dr. Morgan testified, plaintiff did not <br>know of his changed position.      Second, even in cases where the <br>surprise comes at trial, we have considered whether the new <br>testimony is a departure from the general scheme of the expert's <br>report.  See Johnson, 775 F.2d at 8.  In Johnson, it was not.  <br>Here, most assuredly, Dr. Morgan's testimony departed from the <br>general scheme of the report.  Indeed, it both directly <br>contradicted a portion of his report and went into an entirely new <br>area. <br>     Third, the surprise testimony was not on an arguably <br>peripheral matter.  It went to the heart of the plaintiff's case, <br>for reasons we have explained.  The surprise was not only about <br>whether plaintiff did suffer trauma but that a Rule 35 medical <br>expert was now testifying as to his observations of the accident <br>scene and whether plaintiff could have been so injured.  "We think <br>it is beyond dispute that an eleventh-hour change in a party's <br>theory of the case can be [as harmful as the introduction of new <br>expert testimony on the eve of trial], perhaps more harmful, from <br>the standpoint of his adversary."  Thibeault, 960 F.2d at 247 <br>(citations omitted).  Defendant violated both of Rule 26's dual <br>purposes -- "narrowing of issues and elimination of surprise."  SeeJohnson, 775 F.2d at 7.   <br>     Fourth, in considering what plaintiff would have had to <br>do, even with a recess and continuance, to meet the surprise <br>testimony, we see no practical outcomes except outcomes which would <br>have been prejudicial to plaintiff before the jury.  It is likely <br>that plaintiff would have, after her case had closed, had to recall <br>almost all of her witnesses, both experts and not, on the point <br>that the accident at the ride could have and did cause the trauma <br>she claimed.  Cf. Freund, 956 F.2d at 358 ("[A] continuance midway <br>through the trial could have meant losing the benefits of <br>previously cross-examined witnesses . . . .").  Most likely, a <br>recess would have been required as plaintiff scrambled to get new <br>evidence, perhaps engaging a new expert.  This recess and <br>continuance situation would give defendant, who did not bear the <br>burden of proof, a decided advantage and unfairly tipped the <br>playing field. <br>     Fifth, we consider important a factor identified by <br>Thibeault:  the incentive system created for counsel to engage in <br>violations of their Rule 26(e).  "If continuances were granted as <br>a matter of course for violations of Rule 26(e), the rule could <br>always be disregarded with impunity."  Thibeault, 960 F.2d at 246.  <br>Here, affirming the verdict would put defendant in an almost no- <br>lose situation:  if the change in testimony were admitted, it would <br>severely prejudice plaintiff, and if a recess and continuance were <br>granted, defendant would still gain an advantage.  On this record <br>there is little reason to think the actions of defense counsel were <br>not deliberate.  See Johnson, 775 F.2d at 8 (testimony properly <br>excluded "where courts have found some evasion or concealment, <br>intentional or not, on the part of the litigant offering the <br>evidence").  Such conduct should not be rewarded. <br>     In concluding, we stress that the solution of a <br>continuance, where the continuance would be effective, is generally <br>to be commended.  Evidence and theories evolve in the last minute <br>preparation for trial and trial itself, when counsel's focus is <br>most intense.  It is common for there to be some deviation between <br>what was said in discovery and what comes out at trial, and a <br>continuance may well be adequate to handle a material deviation.  <br>But this is an extreme case, both in the prejudice wrought and the <br>apparent deliberateness of the behavior -- and we have no <br>hesitation, despite our respect for the trial judge and the general <br>latitude allowed in such matters, in concluding that in this case <br>a new trial is necessary. <br>     Vacated and remanded. </pre>

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