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The court reviews the district court's decision to allow testimony by a late-designated expert for abuse of discretion. The district courts have wide latitude in pretrial matters and must be allowed to act with intelligent flexibility in this arena. The district courts must consider four factors in determining whether the testimony of a late-designated expert witness should be permitted: (1) the importance of the witness's testimony; (2) the prejudice to the opposing party if the witness is allowed to testify; (3) the possibility that a continuance would cure potential prejudice; and (4) the explanation given for the failure to identify the witness.
A Cessna 320E airplane crashed into the wall of a canyon near Battle Mountain, Nevada. Steve Fish, the pilot, and Thomas Campbell were killed in the accident. The pilot was employed by Keystone Aerial Surveys, Inc. ("Keystone"), and Campbell was conducting aerial magnetic surveys for Keystone. Melva Campbell, Thomas Campbell’s widow, and his five children, filed a wrongful death and survival action against Keystone. The Campbells contended that the pilot had control of the plane but crashed into the terrain either because he did not see it or because he simply did not leave enough time and space to avoid it. Keystone denied that the accident resulted from pilot error and offered a number of possible alternative explanations for the crash through the testimony of their expert, Warren Wandell, a former National Transportation Safety Board employee. The district court granted Keystone's motion to bifurcate the trial into a liability and compensatory damages portion and a punitive damages portion. The liability and compensatory damages portion was tried to a jury, which failed to find that any negligence on the pilot’s part proximately caused the accident. The district court rendered judgment on the jury's verdict. On appeal, the Campbells contended that the district court erred in allowing Keystone’s late-disclosed expert to testify because as a former National Transportation Safety Board employee he was barred from testifying, and asserted other evidence-related errors.
Did the district court err in permitting Keystone’s late-disclosed expert to testify?
In reversing the judgment, the court held that the district court abused its discretion in permitting Keystone’s late-disclosed expert to testify. The court noted that the district court had not even considered the four factors relevant to determining whether a late-disclosed witness should be permitted to testify. Because the testimony was highly probative, the error warranted reversal. As a former National Transportation Safety Board employee who had derived no knowledge of the crash from his prior employment, however, this witness was not barred by 49 C.F.R. § 835.3(a) from giving expert testimony.