The Court of Appeals for the Fifth Circuit recently held that the District Court erred in excluding plaintiff’s late designated expert witnesses and granting defendant’s Motion for Summary Judgment. In doing so the court discussed four factors that the court should consider in the exercise of its discretion in considering whether to exclude late designated witnesses. In Betzel v. State Farm Lloyds, ____ F.3d ___ (5th Cir. 2007) 2007 WL 603036 plaintiff designated two expert witnesses about three months after the deadline in the scheduling order. The Court of Appeals held that the District Court abused its discretion and discussed the following four factors which should be considered:
“(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.”
The Court of Appeals noted that when plaintiff in another case offered no explanation, it had held that exclusion of an expert was appropriate on this basis. However, the court reversed because the remaining three factors in this case favored the plaintiff.
(Thanks to TAA member Craig Nelson of New Orleans for advisory of this discussion.)