BOWNES, Senior Circuit Judge.
This is an appeal from a jury verdict of no liability in a medical malpractice case. Plaintiff-appellant is Richard K. Klonoski, M.D., who brought suit on his own behalf for loss of consortium, as administrator of the estate of his wife Jolanta, and on behalf of their three children.
We address only one of the three issues raised by appellant because it is dispositive. On the thirteenth day of trial during cross-examination of Dr. Klonoski, the last witness in plaintiff's case, defendants disclosed for the first time and used letters written by Mrs. Klonoski to her sister in Poland. Excerpts from the letters were allowed in evidence. Neither Dr. Klonoski nor his attorneys knew of the existence of the letters prior to this time, despite a court order requiring disclosure of such information prior to trial. We find that this constituted trial by ambush. We vacate the judgment below and remand for a new trial.
Jolanta Klonoski and her husband, Dr. Klonoski, were the parents of two children: Brian, born in Poland, and Karina, born in the United States. Dr. Klonoski was born and raised in Connecticut. He received his medical training in Poland where he met and married his wife. After he finished his medical training, he, his wife, and their son, Brian, moved to the United States. Mrs. Klonoski became pregnant with their third child in September or October of 1992. At that time Dr. Klonoski was employed by Mary Hitchcock Memorial Hospital as a cardiologist. On Saturday, May 8, 1993, at approximately 11:15 a.m., Mrs. Klonoski went to the Birthing Pavilion of the Dartmouth-Hitchcock Medical Center because of vaginal spotting. She was sent home in the afternoon. Mrs. Klonoski returned to the Birthing Pavilion that night about 9:00 p.m. complaining of severe epigastric pain. She remained in the hospital until her death on Monday, May 10, of a massive cerebral hemorrhage. Prior to Mrs. Klonoski's death she was delivered of a healthy baby girl, subsequently named Caroline.
Dr. Klonoski was in San Diego at a medical meeting of cardiologists on Saturday, May 8. He was notified late Saturday of his wife's admission to the hospital. He flew home on Sunday, arriving at the hospital late in the day. His wife was comatose and did not recognize him. After conducting his own investigation into the cause of his wife's death, Dr. Klonoski consulted with an obstetrician in Connecticut and then brought suit.
As is usual in a well prepared medical malpractice case, both sides engaged in extensive pretrial discovery and, as is also usual, the parties squabbled about what information should or should not be disclosed. Over a year prior to trial, plaintiff disclosed, as part of the discovery process, the address in Poland where Mrs. Klonoski's father and sister lived, the address to which her letters (the evidence in dispute) were sent.
The district court issued a nineteen-page discovery order on July 19, 1996, covering disputes between the parties. In part of its order, the court stated:
In its conclusion the court ordered:
A final pretrial order was issued on December 19, 1996. It provided that a jury would be drawn on January 7, 1997, and the presentation of evidence would commence on January 13. The order noted that both parties had submitted requests for jury instructions. After noting that some motions in limine had been filed, the court gave the parties until December 31, 1996 to file additional motions in limine, with objections to be filed not later than January 10, 1997. Exhibits were to be premarked and submitted, along with any objections, not later than January 7, 1997. Defendants were ordered to "disclose all documents ordered disclosed after close of business on December 27, 1996, forthwith [sic]."
The penultimate paragraph stated in pertinent part:
The order also required a "final will-call witness list." The final paragraph exhorted the parties to try to settle the case. It would appear from the order that all discovery had been completed and the case was ready for trial.
DIRECT EXAMINATION OF DR. KLONOSKI
We next set forth the pertinent parts of Dr. Klonoski's testimony.
After moving from Poland to the United States, Mrs. Klonoski wrote frequently to her family in Poland and sent packages to them. Her father visited her and Dr. Klonoski, and stayed for six months. She was quite happy when he was there, but felt lonely when he went back to Poland. Dr. Klonoski was working long hours at the hospital in Connecticut where he was training. Consequently, he was not spending much time at home with his family. His wife complained about the long hours he had to spend at the hospital. Mrs. Klonoski was thirty-five years of age. She did not have a driver's license and was "house-bound" with their two small children.
In early 1990 there was a period of stress in the marriage. Dr. and Mrs. Klonoski "had some strong discussions." "[T]here was a lot of stress between us." The problem was that Mrs. Klonoski wanted her husband to spend more time at home with the family. He could not accommodate her because he was in the residency program at the hospital which required that he spend a great deal of time there.
Dr. Klonoski became angry at his wife and filed for divorce. The divorce proceedings remained pending for four or five weeks. The couple did not stop living together during this period. There was more stress in the house, "but everything typically went on." At the end of the five-week period Dr. Klonoski and his wife talked things out and decided that they did not want a divorce, so
Things eventually changed "tremendously" for the better. Dr. Klonoski completed his residency program in June of 1990 and he went on to a sub-specialty program. This enabled him to spend more time with his family. Mrs. Klonoski became pregnant in June of 1990.
Dr. Klonoski had been accepted into the cardiology program at the Mary Hitchcock Memorial Hospital and the Hitchcock Clinic in 1989. The family moved to Lebanon, New Hampshire, in June of 1990. Mrs. Klonoski was excited about the move. It was "a new stage in [their] lives." When the Klonoskis relocated to Lebanon, Mrs. Klonoski was pregnant, their oldest child, Brian, was six, and their daughter Karina was three. A short time later, in July 1990, Mrs. Klonoski had a miscarriage. She was treated by doctors at the Dartmouth-Hitchcock Clinic.
Mrs. Klonoski could not reconcile herself to the fact that her husband had to work harder than Polish doctors. She did not like his going to medical conferences because he was away from the family too much. Outside of this, things were "going great" between Dr. Klonoski and his wife. She "blossomed" and became very self-confident and self-reliant. She obtained a driver's license just before she left Connecticut for New Hampshire. This helped a lot because she could go places with the children and do things.
In October of 1990 she obtained a job as a bank teller. She also attended Lebanon College. After she had been there a time, she was offered a position teaching Polish but refused because she did not want to take too much time away from the family. She was devoted to the children.
Mrs. Klonoski became pregnant again in the fall of 1991. She suffered another miscarriage. Both spouses were devastated. Routine testing was advised and Dr. Klonoski encouraged his wife to take the tests. She did not, however, take all of the tests. Generally speaking, Mrs. Klonoski was healthy. She exercised by doing calisthenics and running.
Mrs. Klonoski made a lot of friends in Lebanon. She was ebullient, very outgoing, very effervescent. Dr. and Mrs. Klonoski socialized occasionally, but were not party people. They preferred to spend their leisure time together as a family.
Mrs. Klonoski became pregnant again in September or October of 1992. Both spouses were worried because of the prior miscarriages. This was the pregnancy that ended in the birth of a daughter, Caroline, and Mrs. Klonoski's death.
There was considerable testimony about Mrs. Klonoski's physical condition during the pregnancy. She did not complain to her husband excessively. In early spring, 1993, Dr. Klonoski accepted a fellowship at Massachusetts General Hospital in Boston. His wife was concerned about moving to Boston.
The family attended Dr. Klonoski's brother's wedding on April 24, 1993. He was an usher and his son, Brian, was the ring bearer. A videotape taken at the wedding showing his wife and daughter was presented to the jury. This was a good period during their marriage marred only by the worries both had about the pregnancy and the move to Boston.
Dr. Klonoski was away at a medical conference in San Diego the week his wife was admitted to the hospital. The conference was important to his career because of the knowledge he would get in his specialty and as a job forum. He had skipped two prior conferences, once because his wife had asked him not to go and another time because she had recently had a miscarriage. Mrs. Klonoski was "not thrilled" about his going to the conference, but she did not ask him not to go. Other doctors and some nurses from the Hitchcock Hospital-Clinic establishment also attended the conference in San Diego. Dr. Klonoski left for the conference on May 5; his return was scheduled for May 9. His wife's due date was May 28. Before he left he bought her a bouquet of her favorite flowers for Mother's Day on May 9. At the time Dr. Klonoski left, Mrs. Klonoski had not exhibited any signs of serious problems. He
Dr. Klonoski called home on Friday evening. His wife told him that everything went fine at her prenatal visit, but that she did not feel well and if she continued to feel badly, she would go to the doctor the next day. She called the next day and told him that she continued to feel poorly and was going to the hospital. She did not mention vaginal bleeding. We have already related the essentials of what happened at the hospital when Dr. Klonoski visited his wife. She was comatose by the time he arrived at the hospital and did not recognize him. He was informed by a neurosurgeon that his wife was brain-dead due to a massive hemorrhage of her brain. He was with her when the life supports were disconnected and she died.
Direct examination of Dr. Klonoski drew to a close with his statement, "I loved my wife without reservation, and I still love her."
CROSS-EXAMINATION OF DR. KLONOSKI
On cross-examination, it was established that Dr. Klonoski was suing, inter alia, as administrator of his wife's estate. He acknowledged that his wife did not have a will and he knew he would receive the first $100,000 of his wife's estate.
It was brought out that initially after their marriage his wife stayed in Poland for a time while he was in the United States working as a medical clerk. During this time he and his wife corresponded regularly. All of his wife's letters to him were written in Polish. In response to questions he stated that his wife had an older sister, named Marta.
Dr. Klonoski testified, as he had on direct examination, that his wife's father had visited in the fall and winter of 1989-90. Other than Christmas cards, he had not stayed in touch with his wife's family and had not sent them photographs of the children subsequent to his wife's death.
There was a series of questions about his wife's plans for the future. He testified that he had no specific information about his wife's future plans. He did not know any of his wife's friends who worked at the same bank as she did. He did never met any of his wife's work-colleagues.
Dr. Klonoski testified that he and his wife planned the pregnancy that resulted in her death and the birth of their third child, Caroline. He testified that everybody in the cardiology department was very helpful and supportive after his wife's death. Money was collected for his family and food was prepared for the children and himself. All of this was very helpful and he appreciated what was done.
Then followed a series of questions setting the stage for the use of the letters that are the heart of this appeal. Dr. Klonoski acknowledged that he was seeking damages for injury to the marital relationship with his wife and damages for his wife's loss of enjoyment of life. In answer to a question, Dr. Klonoski agreed that the quality of the marital relationship would be an important factor in the enjoyment of life. He also agreed that a good marriage would improve the quality of life. Dr. Klonoski testified, as he had on direct examination, that by the time he and his wife and their two children moved to Lebanon, the marriage was getting along much better; the primary ongoing issue was the time he spent away from the house and family.
In answer to a question, Dr. Klonoski testified that he knew that his wife corresponded with her father and sister, Marta, in Poland. Dr. Klonoski was then asked: "[I]f I were to show you a letter, you'd certainly be able to recognize your wife's handwriting; is that right?" The answer was "Yes, I would." After Dr. Klonoski testified that his wife's sister lived in Krakow, defense counsel began to show the witness a document marked for identification. At this point, plaintiff's counsel requested a bench conference. The request was granted.
We feel it necessary to quote at length the bench conference.
After Dr. Klonoski identified the letters as being in his wife's handwriting, the court held an extended hearing on their admissibility. After considering the arguments of counsel it issued rulings accompanied by comments:
The court allowed the following excerpts in evidence. They were read to the jury by the defendants' translator:
Excerpt from letter of May 20, 1990 (Ex. LLL, RA 4487; RA 3854).
Excerpt from letter of August 27, 1990 (Ex. LLL, RA 4488; RA 3855).
Excerpts from letter of April 27 and May 1993(Ex. LLL, RA 4489; RA 3856).
Excerpt from letter of April and May, 1993(Ex. LLL, RA 4489; RA 3856-3857).
Prior to reading the letter excerpts and marking them as exhibits, defendants put on the following witnesses whose testimony we summarize. Joan Conrad worked in the cardiology department and became acquainted with Dr. Klonoski. When she congratulated him on the coming birth of another child, he said: "It wasn't my idea. This wasn't planned." When Conrad asked Dr. Klonoski about his wife, he replied: "She's always complaining, lots of aches and pains. Always complaining about headaches, and I don't pay attention to that anymore." Conrad testified that there was no positive feedback from Dr. Klonoski about his wife.
The next witness was Dr. John Robb, a cardiologist, who worked with Dr. Klonoski. Accompanied by Dr. Klonoski's parents, he met Dr. Klonoski at the Lebanon Airport on his return from the meeting in San Diego,
Ellen Fullington was a medical secretary at the Hitchcock Hospital. She worked for Dr. Klonoski as well as other doctors. She testified that Dr. Klonoski's comments about his marriage were negative.
Dr. Douglas H. James was director of the fellowship program at the Hitchcock Hospital. Dr. Klonoski discussed his marriage with him during a review of his performance. Dr. Klonoski felt that his performance was adversely affected by stress at home.
Dawn Rafferty worked with Mrs. Klonoski at the bank. She testified that Mrs. Klonoski was not happy with her marriage. She was considering a divorce, but was afraid that the children would be taken away from her. Mrs. Klonoski complained that her husband was only interested in money. He worked extremely long hours and did not pay attention to her or the children. She wanted to have another child when she became pregnant again. Dr. Klonoski was not happy about her pregnancy. She felt that he wanted her to have an abortion.
The final witness for defendants was the translator who read the letter excerpts to the jury.
Dr. Klonoski was recalled as a rebuttal witness. He testified as follows:
On cross-examination there were questions about when the irrevocable trust was established, which were answered ambiguously. There was also a series of questions relative to the testimony by defendants' witnesses.
Dr. Klonoski having withdrawn his own claims, the case went to the jury on only one claim, that of Mrs. Klonoski's estate. The jury returned a defendant's verdict, and the plaintiff appealed.
APPLYING THE DISCOVERY RULES
We begin our analysis with a brief review of the pertinent rules of discovery.
This rule requires that: "[u]nless otherwise directed by the court, these disclosures shall be made at least 30 days before trial." Id. It is obvious that defendants did not follow the strictures of Rule 26(a)(3)(C) with respect to the letters from Mrs. Klonoski to her sister.
In addition to the mandatory pretrial disclosures, parties may obtain discovery of further matter by various methods. See Fed. R.Civ.P. 26(a)(5). Rule 26(b)(1) defines the scope and limits of discovery:
Fed.R.Civ.P. 26(b)(1). Like Rule 26(a)(3)(C), Rule 26(b)(1) provides no exception for documents found during belated investigation that takes place after the trial has begun.
Such a broad reading is supported by leading Supreme Court precedent. As the Court stated in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), the word "relevant" encompasses
Id. at 351, 98 S.Ct. 2380 (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).
In Hickman, the Court characterized the "pre-trial deposition-discovery mechanism established by Rules 26 to 37[as] one of the most significant innovations of the Federal Rules of Civil Procedure." Hickman, 329 U.S. at 500, 67 S.Ct. 385. The Court went on to discuss the purpose of the discovery rules:
Id. at 500-01, 67 S.Ct. 385 (emphasis added; footnotes omitted). The Court added that the "deposition-discovery rules are to be accorded a broad and liberal treatment." Id. at 507, 67 S.Ct. 385. This is because
Id. (emphasis added).
Similarly, in United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), the Court stated that "[m]odern instruments of discovery serve a useful purpose.... They together with pretrial procedures make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. Only strong public policies weigh against disclosure." Id. at 682, 78 S.Ct. 983 (emphasis added; citation omitted).
Based on the plain language of Rule 26 and the broad scope that it has been given, it would appear that Mrs. Klonoski's letters fit well within the rule's reach. The letters plainly contain information "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). As noted, Rule 26 provides no exception for documents found after discovery deadlines have passed.
To the extent the rules contemplate additional material that a party finds after it has provided discovery to the other side, the rules require prompt supplementation of its additional material so the opposing party is not misled by the original discovery responses as the opposing party prepares its case for trial. See Fed.R.Civ.P. 26(e). Rule 26(e) provides in pertinent part:
Fed.R.Civ.P. 26(e). In the instant case, the defendants provided no supplementation of their prior disclosures by adding the letters in question to the list of evidence to be offered at trial.
In 1993, the Federal Rules of Civil Procedure were significantly amended, particularly Rules 26(e) and 37(c)(1). The changes to Rule 26(e) substantially expanded the duty to supplement. Under the pre-1993 version of Rule 26(e), supplementation was required only in a few, limited circumstances. The current version of the rule, as quoted supra, imposes a broad requirement on parties to update their earlier disclosures and discovery responses. See 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2049.1 (2d ed. 1994 & Supp.1998) ("Wright & Miller"). Thus, even if the defendants could argue that the pre-1993 rule might not have required them to disclose the letters to the plaintiff, they have no such argument under the 1993 amendments to the supplementation requirement.
IS PRECLUSION THE APPROPRIATE REMEDY?
The 1993 amendments to the Federal Rules also added Rule 37(c)(1) which provides:
Prior to adoption of Rule 37(c)(1), no rule specifically provided sanctions for the failure to supplement discovery. Courts were free to apply their discretion in sanctioning Rule 26(e) violations. The new rule is mandatory: a party that fails to make the required disclosures "shall not, unless such failure is harmless, be permitted to use [undisclosed] evidence at a trial." Id. To be sure, the rule somewhat tempers this mandate by permitting courts to excuse failures to disclose to some degree (i.e., to impose other sanctions "in lieu of this sanction"). Fed.R.Civ.P. 37(c)(1). But the new rule clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule, and the required sanction in the ordinary case is mandatory preclusion.
Even before the 1993 amendments, in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam), the Supreme Court stressed the policy reasons for enforcing the discovery rules. The most severe sanctions provided by the rules, the Court explained, "must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Id. at 643, 96 S.Ct. 2778. While a warning alone might have made the plaintiffs in that case comply with all future discovery orders, "other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts." Id. Thus, enforcement of discovery rules and orders is necessary, the Court concluded, to prevent abuse by future litigants. Id.
It appears, therefore, that the letters in question were covered by the disclosure requirements of Rule 26, including the duty to supplement, and that defendants' failure to disclose them prior to trial precluded defendants from using the letters at trial. The district court did not take this position because it found the letters to fall within an exception to the discovery rules for material that is presented "solely for impeachment purposes." Fed.R.Civ.P. 26(a)(3).
DO THE LETTERS FALL WITHIN AN EXCEPTION
TO THE DISCOVERY RULES?
Rule 26(a)(3) provides:
Fed.R.Civ.P. 26(a)(3) (emphasis added).
Neither the Rule itself nor the advisory notes define impeachment evidence. The federal cases that have decided whether evidence falls within the impeachment exception
And this approach makes evidentiary sense. As the Wright and Miller treatise put it, after reviewing the case law:
8 Wright & Miller, supra, § 2015, at 212 (footnote omitted).
The only circuit court that directly addresses this subject is Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). In holding that a video surveillance tape was not "solely" impeachment evidence, the court defined substantive evidence as "that which is offered to establish the truth of a matter to be determined by the trier of fact." Id. at 517. It then stated: "Impeachment evidence, on the other hand, is that which is offered to `discredit a witness ... to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] ... testimony.'" Id. (alterations in original) (quoting John P. Frank, Pretrial Conferences and Discovery — Disclosure or Surprise?, 1965 Ins. Law J. 661, 664 (1965)).
The court recognized that some evidence serves both functions, and, because such evidence is not "solely offered for impeachment," it is not covered by the exception to the Rule 26 discovery requirements. The court held: "Because the tape is, at the very least, in part substantive, it should have been disclosed prior to trial, regardless of its impeachment value." Id. at 517-18.
The same is true of the disputed evidence here. The excerpts from the letters written by Mrs. Klonoski to her sister were at least in part substantive, and therefore they did not fall within the "solely for impeachment" exception of Fed.R.Civ.P. 26(a)(3). The letter excerpts constituted substantive evidence because, separate and apart from whether they contradicted Dr. Klonoski's testimony, they tended "to establish the truth of a matter to be determined by the trier of fact." Chiasson, 988 F.2d at 518. This is true even though, in addition to their substantive content, the excerpts tended to contradict Dr. Klonoski's testimony regarding the state of his marriage.
Nor do we think that Fed.R.Evid. 801(d)(2) opens the evidence door to the excerpts
As we have discussed, supra, absent some unusual extenuating circumstances not present here, the appropriate sanction when a party fails to provide certain evidence to the opposing party as required in the discovery rules is preclusion of that evidence from the trial.
We have recently condemned trial by ambush tactics and for this reason vacated a verdict returned for the defendant. Licciardi v. TIG Ins. Group, 140 F.3d 357 (1st Cir.1998), centered on the testimony of a medical expert who:
Id. at 359 (footnote omitted). We found this "volte face" to be "highly prejudicial to plaintiff's case." Id.
We recognize that the focus of Licciardi was on the divergence between the pretrial disclosure of the testimony of a party's expert witness and his trial testimony. This court's forthright condemnation of trial by ambush, however, applies to what happened in the case before us.
Labadie Coal Co. v. Black, 672 F.2d 92 (D.C.Cir.1982), is factually closer to the situation before us. In Labadie, the D.C. Circuit found that the district court's admission of documents was erroneous and prejudicial because plaintiff was not given notice of the documents until after it had rested its case on the last day of trial. The court noted that "when the documents were finally produced, [plaintiff] had little, if any, time effectively to ... cross-examine [defendant] as to their content." Id. at 94-95. In the present case, plaintiff was even more prejudiced by the lack of discovery. He had virtually finished presenting his entire case to the jury; Dr. Klonoski's direct testimony had been completed. His depiction of the state of the marriage was very different from the way he would have characterized it if his late wife's letters had been disclosed to him prior to his testifying.
We cannot help being impressed by the exquisite timing of the injection of the letters into the trial. Dr. Klonoski, the last witness in the plaintiff's case, had finished his direct testimony. The plaintiff's case had been completed. Cross-examination started with some innocuous questions. This was followed by what clearly were questions setting up Dr. Klonoski for the introduction of the letters. Whether by design or accident the timing could not have been better for defendants.
Policy reasons also militate against the district court's ruling that the letters are exceptions to the discovery rule. If letters or other documents are allowed in evidence after a trial starts for the sole reason that they were not obtained sooner by the party offering them, the rules of discovery and court orders pertaining thereto would become empty phrases signifying nothing. Trial by ambush would be re-born. Enforcement of discovery rules and orders is necessary to prevent abuse by future litigants. See National Hockey League, 427 U.S. at 643, 96 S.Ct. 2778.
THE ADEQUACY OF DEFENDANTS' EXPLANATIONS
Defense counsel argued successfully to the district court that the reason the letters
The belated appearance of the letters violated the plain meaning and the intent of the discovery rules. It also ignored the specific requirements of the court's pretrial discovery orders.
Nor can the defendants be excused for their failure to comply. That defense counsel did not obtain the letters until two days before their use at trial on cross-examination does not make them admissible. Defendants had been furnished with the address of Mrs. Klonoski's father in Poland more than a full year before trial. Her father and sister lived at the same address. The defendants could, at that time, have undertaken the same investigation that for some unexplained reason did not come to fruition until the trial was near completion. They have offered no legitimate explanation for why they waited as long as they did, knowing that the federal rules and the court had required them to disclose potential trial exhibits and all relevant responses to discovery requests well before the trial began.
Finally, defense counsel admitted that they at least knew about the letters and the general outlines of their contents two days earlier than they disclosed them, i.e., they knew about them before Dr. Klonoski testified on direct. Counsel could have put plaintiff on notice that certain new and hitherto undisclosed evidence was on the verge of becoming available on the issue of marital discord. If such notice had been given at that point, prior to Dr. Klonoski's testimony on direct, then undoubtedly his testimony would have been different and the present problem would most likely never have arisen.
THE DISTRICT COURT'S RULING
After reading the district court's rulings and comments, we have difficulty understanding the basis of its decision to allow excerpts from the letters to be read to the jury. The first paragraph of the court's order states: "I think these letters pose a substantial risk of unfair prejudice that would outweigh their probative value." Despite this pronouncement, the court admitted excerpts from the letters into evidence. With due respect, we do not think that the prejudice was reduced appreciably by limiting the court's ruling to the excerpts read to the jury. In fact, by shortening lengthy letters and allowing into evidence only the inflammatory portions, their prejudicial impact was probably heightened.
We are also puzzled by the statement: "I acknowledge that Attorney Lukey makes a very good point about late discovery, not that
We agree with the court's statement that Attorney Lukey "is somewhat at a prejudicial point in that there are other letters that may present a different view altogether of this." We believe this greatly understated the predicament in which plaintiffs attorney found herself. First, Attorney Lukey was correct that, because of the defendants' failure to provide these letters during the discovery process, plaintiffs counsel was unable to conduct her own investigation which might uncover other letters from Mrs. Klonoski explaining what she wrote in the letters introduced by defendants, or which might demonstrate that Mrs. Klonoski's anger was a passing feeling that did not reflect her overall view of the marriage. But more critically, plaintiff had already planned and executed his trial strategy based on the evidence available to the parties through discovery. He had presented his entire case, including the direct examination of his lead witness. To spring these letters — hitherto unknown by plaintiff and his attorneys — upon the plaintiff at that stage of the litigation was a lot more than "somewhat ... prejudicial." Realistically, it was devastating to his ability to succeed with the jury.
A CONTINUANCE AS A POSSIBLE REMEDY
The district court asked plaintiff's counsel at least twice if she wanted a continuance. She said she did not want one because she did not think it would do any good. It is true, as defendants argue, that in some cases we have found that surprise evidence could be combated by granting a continuance to the surprised party. See Newell Puerto Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 22 (1st Cir.1994). In Licciardi we discussed at length the effectiveness of a continuance as an antidote to surprise evidence. 140 F.3d at 366-67. As we stated there:
Licciardi, 140 F.3d at 366. We found no practical way for the plaintiff to remedy the surprise; any solution would have prejudiced the plaintiff even more. Id. at 366. We thought it important to consider the policy behind the discovery rules. Directly contrary to this policy, granting a continuance, we found, would create greater incentives for attorneys to violate Rule 26(e). Id.; see also National Hockey League, 427 U.S. at 643, 96 S.Ct. 2778 (Strict sanctions are necessary "to deter those who might be tempted to such conduct in the absence of such a deterrent."). "Such conduct should not be rewarded." Licciardi, 140 F.3d at 367. And as we also noted in Thibeault: "If continuances were granted as a matter of course for violations of Rule 26(e), the rule could always be disregarded with impunity." Thibeault, 960 F.2d at 246; see also Freund, 956 F.2d at 359.
We think this rationale applies with equal force to the instant case. We fail to see how a continuance could have accomplished anything in this case. As plaintiff's counsel pointed out orally at the hearing on the admissibility of the letters, the only thing she could have done was to take the deposition of Dr. Klonoski's sister-in-law to find out as much as she could about the letters. Because of the distances involved and the language problems, this would have necessitated a lengthy continuance. A continuance was not a practical alternative.
Moreover, short of a new trial, a continuance would have accomplished nothing at all to mitigate the prejudice caused to plaintiff's case by defendants' having waited until after
A continuance would have been an inadequate remedy in this case also because of the policy concerns regarding incentives for parties to comply with discovery rules. See National Hockey League, 427 U.S. at 643, 96 S.Ct. 2778 (Absent strict sanctions, "other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts."). As plaintiff's counsel told the district court, if we were to condone the procedure followed by the defendants in this case, then "what everyone would do in order to avoid the necessity of disclosing materials that are particularly good for ambushing the other side is not do their investigation until the time of trial."
IS A NEW TRIAL REQUIRED?
Finally, the defendants argue that, even if the district court erred by admitting the letter excerpts into evidence and allowing the defendants to use them in cross-examining Dr. Klonoski, a new trial is not warranted because the letter excerpts could have had no effect on the jury's verdict of no liability. Their contention can be summarized as follows. In his jury instructions, the district court judge told the jury to consider the letter excerpts only in its determination of hedonic damages. Because the jury found that the defendants were not liable, it never reached the damages issue. Therefore, the admission of the letter excerpts were, at the most, harmless error.
This argument has surface appeal but we reject it. We note that the cases cited by defendants in support of their position are not cases involving the breach of discovery orders and the discovery rules. Defendants' precedential support consists of cases that focus on the judge's instructions after the admission or exclusion of evidence. See Navarro de Cosme v. Hospital Pavia, 922 F.2d 926 (1st Cir.1991).
Where there has been, as there was here, an egregious breach of discovery orders and the discovery rules, we think that the controlling case is Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.1988). The plaintiffs in Anderson sued for personal injuries allegedly sustained because of toxic contamination to water wells. The jury found that the defendants were not responsible for the pollution. Shortly after the trial, the plaintiffs learned that the defendants had failed to disclose a groundwater study during pretrial discovery. Id. at 922. The plaintiffs moved to set aside the judgment under Fed.R.Civ.P. 60(b). Id. at 923. The district court denied the motion because the "plaintiffs had not been prevented from fully and fairly presenting their case." Id.
We reviewed the district court's ruling for abuse of discretion. We noted that under Fed.R.Civ.P. 60(b), "the court may relieve a party ... from a final judgment, order, or proceeding for ... (3) fraud ... (4) misrepresentation, or other misconduct of an adverse party." Fed.R.Civ.P. 60(b) (emphasis added). We held that the "[f]ailure to disclose or produce materials requested in discovery can constitute `misconduct' within the purview of this subsection." Anderson at 923 (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978)).
We defined misconduct as follows:
Id. at 923.
Anderson holds that any "uncertainties attending the application of hindsight in this area" should favor the party that was denied discovery because "parties ought not to benefit from their own mis-, mal-, or nonfeasance." 862 F.2d at 924.
Id. at 926 (emphasis added).
We think this case falls well within the parameters of Anderson. As already noted, there was, intentional or otherwise, an egregious breach of the discovery orders and the discovery rules which resulted in "substantial interference with the full and fair preparation" of plaintiff's case. We cannot know with certainty what impact the letter excerpts had on the jury, but to dismiss what happened as harmless error would render the discovery rules and orders issued thereunder useless. Moreover, where, as in this case, undisclosed evidence is introduced at a key point in the trial, it would be unrealistic to say that it had no effect on the jury's determination as to liability. If the jury decided that Dr. Klonoski was a tyrant as a husband and a liar, his chances of obtaining a favorable and fair verdict were destroyed. We find that the district court erred as a matter of law in allowing the letter excerpts into evidence and, as in Anderson, abused its discretion in not granting plaintiff's motion for a new trial.
In Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281 (1st Cir.1993), we applied the Anderson misconduct test to a Fed. R.Civ.P. 59 motion for a new trial. Here, the plaintiff sought damages for emotional distress sustained because of her sister's death. She alleged that one defendant drove into the sister while she was walking on the side of the road. During the trial, the plaintiff used a previously-undisclosed expert witness. Id. at 286. Prior to trial, the plaintiff never suggested that the defendant's eyesight was at issue. Id. During the defendant's direct examination, his lawyer noted he wore glasses and asked one question about them. Id. The plaintiff's lawyer focused on the defendant's eyesight during cross-examination. Id. Following this testimony, the plaintiff's lawyer sought to introduce an eye doctor as a "rebuttal witness." Id. Despite contacting the doctor four months prior to trial, the plaintiff's lawyer never listed the doctor as a potential witness. Id.
In its decision to allow the doctor to testify, the district court stated that "there was `no excuse as to why [counsel] kept [Dr. Kleis' testimony] under [his] sleeve until this moment;' and ... the proffered testimony changed the theory of the case." Id. at 287
We found that this decision was an abuse of discretion. In response to the district court's "act of justice" reason for admitting the evidence, we stated that the court
Id. at 287 n. 4. Applying the analysis of Fed.R.Civ.P. 59(a) used in Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108, 111-12 (5th Cir.1982), the Perez-Perez panel found that the undisclosed eye doctor "exactly comports with" the Fifth Circuit's definition of "unfair surprise" and prejudiced the defendants' case.
We find that the district court abused its discretion in allowing the excerpts from the letters in evidence. There was a clear violation of the court's pretrial discovery orders and the requirements of the discovery rules. It follows that the court also abused its discretion in denying plaintiff's motion for a new trial.
In fairness to the district court, we must explain that our findings of abuse of discretion were not based on any arbitrary refusal by the court to require compliance with its pretrial orders and the discovery rules. Rather, the court's findings stemmed from its legally incorrect ruling that the letters fell within the impeachment exception of Fed.R.Civ.P. 26(a)(3). This does not mean that there was no abuse of discretion. As the Supreme Court has stated, "[a] district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 94-102, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); see United States v. Marroquin, 136 F.3d 220, 223 (1st Cir.1998); Golas v. HomeView, Inc., 106 F.3d 1, 3 (1st Cir.1997).
We vacate the judgment below and remand for a new trial. Costs on appeal awarded to appellant.