Klonoski v. Mahlab

United States Court of Appeals
For the First Circuit

No. 97-1976

RICHARD F. KLONOSKI, M.D., ET AL.,

Plaintiffs, Appellants,

v.

BENJAMIN MAHLAB, M.D., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Joan A. Lukey, with whom Hale and Dorr LLP, Michael G.
Bongiorno, and John T. Gutkoski were on brief for appellants.
Ronald L. Snow, with whom Orr & Reno, P.A., James P. Bassett,
and Cordell A. Johnston were on brief for appellees.

September 23, 1998

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.
Defendants-appellees are Benjamin Mahlab, M.D., Mary Hitchcock
Memorial Hospital, Inc., and Hitchcock Clinic, Inc.
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.
I.
BACKGROUND

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.
PRETRIAL DISCOVERY
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:
defendants shall produce a list of all persons
known by them to possess discoverable
information related to: (1) marital discord
between Dr. and Mrs. Klonoski; and (2) the
paternity of Dr. Klonoski's youngest daughter.
To the extent defendants can more persuasively
support their assertion that such a list (or
the names of particular people which would
otherwise appear on such a list) is protected
by the work product doctrine (i.e., with
references to precedent and/or scholarly
writings on the subject), they shall provide
plaintiffs with a privilege log as
contemplated by Fed. R. Civ. P. 26(b)(5) and a
list of cases and/or scholarly writings which
specifically support their claim of privilege.
Plaintiffs will, of course, then be free to
file an appropriate motion to compel.

In its conclusion the court ordered:
Defendants shall produce a list of the names
of individuals having knowledge of
discoverable information relating to the
issues of marital discord and paternity and a
general description of the nature of that
information on or before August 14, 1996. To
the extent that defendants are able, in good
faith, to legally support an assertion of
privilege with regard to some or all of those
names, they shall produce a privilege log as
described above.

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:
All counsel and the court anticipate
conducting a brief Daubert hearing prior to
the testimony of plaintiffs' psychological
expert, who is expected to testify as to the
loss of enjoyment of life, or hedonic damage,
aspect of the estate's wrongful death claim.
The court expects that that hearing will be
held at some point during the first week of
trial as is convenient to counsel, and the
parties agree that one hour should be
sufficient.

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
the divorce proceeding was dropped. In May of every year, Dr.
Klonoski gave his wife one rose for each year that had passed since
their first meeting in Poland. In May of 1990 the doctor followed
this ritual.
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
was not even aware that his wife was ill when he left.
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 had 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.
MS. LUKEY: I don't have a clue what this
is, but it's never been produced in discovery,
and there is absolutely no question that we
requested anything that they intend to use in
this case. I have no idea where it came from
or what it might be. And I assume it's in
Polish, so I can't read it, but really this is
unfair.

THE COURT: What is it?

MR. BASSETT: It's impeachment. This is
a letter written by Mrs. Klonoski to her
sister Marta in Poland. And this letter
happens to have been written in late April of
1993 and early May of 1993, and it contains in
it a description of a number of things, most
prominently the marital relationship and the
significant problems that Mrs. Klonoski
believed existed at that time, and I don't
believe we actually just got that letter
last night.

MS. LUKEY: Your Honor, we had, as you
recall, a court-ordered disclosure from them
pertaining to anything to do with alleged
marital discord. This was not disclosed to
us. I don't know where it came from. I don't
know what he's doing, but it obviously doesn't
give me the opportunity to speak, for example,
to his sister her sister, if that's the
recipient. I really think this is litigation
by ambush and totally inappropriate. This is
a situation with an actual court order.

MR. BASSETT: Your Honor, it's legitimate
cross-examination. We just got that last
night based on the testimony that we had heard
in this case, and it's legitimate cross-
examination. We are not required to disclose
what we are going to use on cross-examination.
We specifically brought it up with the Court,
and you said for impeachment and credibility,
we did not have to disclose it, and we didn't
have it until last night. But in any event,
we want to use it for that purpose, and I
think Attorney Lukey is entitled to go into
those issues on reexamination.

MS. LUKEY: Your Honor, he may not have
to disclose it on a trial exhibit list, but in
discovery he certainly has to disclose it if
he has knowledge of it, and we actually had to
get a court order to get their evidence on
marital discord. That was the reason we asked
for it.

THE COURT: But he didn't have it.

MR. BASSETT: Didn't have it until last
night.

MS. LUKEY: He should have had it, and
what is it that they're contending justifies
ambushing us with it at this moment in time.

....

MR. BASSETT: We, frankly, haven't had
the entire thing translated yet because it was
received this one was received this morning
actually. All we have had is a skeletal
translation of it, your Honor, but I think at
this point it's an admission by a party
opponent. It's her letter, and that's how it
would come into evidence.

THE COURT: What does it say?

MR. BASSETT: Well, it says quite a few
things. He can translate it for us.

THE COURT: I can't determine the
relevance of "quite a few things." That's not
relevant.

MR. BASSETT: I'll read you my
understanding of it, but it's this is the
last letter from Jola. This is a paraphrasing
of it right now, your Honor. We would ask him
to read it because he can read Polish and he
can translate it.

She goes on to the subject of his of
the pregnancy: I'm afraid of what's going to
happen. He cares only about his career. I
was surprised by his announcement that he was
leaving for California and for a business
trip.

There are problems with her spending
habits. He doesn't like it. I bought a baby
stroller, and he screamed at the top of his
lungs. I think we should get a divorce.

She mentions that Richard is working so
hard to become a cardiologist. She doesn't
say her situation will improve directly, but
intimation is she has a stake I don't
understand what all that is. I don't,
frankly, know what everything is in there, but
just the fact that she says she thinks we
should get a divorce is enough, your Honor.
And he can translate it.

And its an admission. . . . This is a
party-opponent admission. And just as we're
entitled to make the arguments that outweigh
it, so, too, Attorney Lukey can.

There are three more four more of
those. That's the first of the ones that I
intend to offer in evidence.

MS LUKEY: I would like to know how long
they've known of the existence of these
letters regardless of when they may have
received this one.

MR. BASSETT: I'll make a
representation of that.

THE COURT: How long have you known?

MR. BASSETT: We've known about them,
it's no more than two days. We received the
first of them

THE COURT: No, no.

MS. LUKEY: How did you know they were
there?

MR. BASSETT: We found Marta this week.
We found her three days ago. We looked for
her father.

MS. LUKEY: He's dead.

MR. BASSETT: And he's dead; that's
right. He died last winter. That's who we
were trying to find. Instead we found Marta
this week, and I can certainly get somebody to
prepare an affidavit to say that she was not
spoken to until two days ago, and in fact we
didn't get the first transcript of these
letters until yesterday afternoon. They were
faxed from Poland last night. The meeting
with Marta took place last night in Poland.
They were faxed to us, and I spent most of the
night up with these letters, and translators
spent most of the night with the letters, too.
We have the other letters translated. This
one we just received within two hours. So we
haven't had it fully translated.

MS. LUKEY: I have a serious issue with
this, your Honor. It's a little bit like
springing Dawn Rafferty on us right after
Christmas when she turns out to be Linda
Bowers' niece, and they've known about her
right along. There's nothing that I heard to
suggest this is not something they could have
determined earlier if they intended to use it.
This is truly an ambush. They knew about her
sister. That's not new. I don't know what it
is they think is new about this. But the fact
that they choose to wait until three and a
half weeks into a trial and then spring it on
us as purported impeachment I find extremely
troubling and inconsistent with the rules.

I also have a very strong suspicion that
the reason that they made a point with you in
our pretrial conference some months ago of
saying we don't have to show any impeachment,
right, is because they knew exactly what they
intended to do.

I don't know what Jola wrote, and it's
clear that Dr. Klonoski doesn't know what Jola
wrote. I find it very upsetting and extremely
inconsistent with the open disclosure rules of
current litigation that this would occur.
This is the kind of thing that occurred 25
years ago and was the whole reason the Rules
of Civil Procedure were adopted. I mean I've
built a whole case obviously, and they're
suddenly coming in and trying to spring
something on me about what the wife supposedly
felt. She's dead. I can't ask her.

But I do not feel this is appropriate. I
have heard nothing from Mr. Bassett that
suggests why he couldn't have come up with
this earlier if it was something they intended
to use. You don't keep investigating the case
when the trial is in process.

MR. BASSETT: Yes, you do.

THE COURT: A lot of people do.

MS. LUKEY: But it's inappropriate.

MR. BASSETT: Based on the type of
testimony we got in this case

MS. LUKEY: What in this case has
justified this that you didn't know before?

MR. BASSETT: We couldn't find them, and
we found them now, your Honor.

MS. LUKEY: All you had to do was ask for
the address.

....

MS. LUKEY: Your Honor, my problem is the
method that they've done this.

THE COURT: Your problem is you don't
accept that they just knew about it. I do
accept that they did just find out as he's
represented to me.

MS. LUKEY: It isn't just whether they
just knew about it. You're right. I do not
believe that they just found out about it.
You're absolutely correct.

But quite apart from that is the fact
that what one is supposed to do is to do one's
discovery and so forth for trial by the
discovery disclosure date in order to ensure
under the Rules of Civil Procedure, the
information you come up with is shared if
appropriately requested by the other party.
In this case it was not only requested, we had
to get a court order. We got the court order
regarding all evidence they had on the subject
of alleged marital discord.

MR. BASSETT: That was to identify the
witnesses.

THE COURT: Take the next step. Then you
have all the evidence they had on marital
discord.

MS. LUKEY: And, frankly, that evidence
doesn't trouble me. Then they come up with
this.

THE COURT: That's a different test.

MS. LUKEY: I understand, your Honor. My
point is if it were in fact the case that it
was okay to send your investigator out while
the trial was in progress, 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.

THE COURT: Well, I hear you, but I don't
agree with you. You took the initiative to
put on the evidence of a good marriage, stable
marriage. Everything's hunky-dory and
wonderful.

MS. LUKEY: As far as he knew.

THE COURT: Well, as far as he knew. But
to the extent that's relevant, I've already
my view, I don't think it's particularly
relevant one way or the other. But both of
you think it is, and once you do that, they
have a right to then challenge whether that
was the case. If they just got this and
they're going to use it for impeachment, I
think they have a right to do it.

....

THE COURT: All right. I'll allow their
use, Mr. Bassett. They'll be admissible under
Rule 801(d)(2).

MS. LUKEY: Your Honor, there's one other
issue that I think

THE COURT: Not yet.

MS. LUKEY: There is one other issue that
I think I'm a little troubled about here
that I would raise to you. This doesn't give
me the opportunity to find out from the sister
whether there's more to the story, more
letters, another side, an explanation,
whatever. I mean I cannot imagine, short of
paying out large sums of money, what would
cause a sister to turn over these letters,
which has me a bit troubled, and I would like
to know if there is more. I can't do that in
the middle of trial. I'm about to close in
you know, ten minutes after he finishes his
cross.

So I do remind the Court again, he placed
me in an impossible position in that regard
because I don't know whether there's more out
there, another side to the story or some
explanation. Nor do I know whether money has
changed hands. I don't know anything. I
cannot imagine why a sister would turn these
over to be used against her sister's estate.

THE COURT: I'm not sure that's relevant.
The only question is are they legitimate
documents.

MS. LUKEY: But my ability to examine
Marta is essentially nonexistent because of
the fact that

THE COURT: Well, I'm not sure Marta
makes a difference.

MS. LUKEY: Well she might make a
difference if it turns out that there are
other letters, ones that came after, ones that
came before, explanatory letters, phone
conversations, none of which I can possibly
know. I don't know if this is complete. I
don't know if

THE COURT: Are you asking for a
continuance?

MS. LUKEY: No, I'm not asking for a
continuance. I'm asking to have these
documents excluded, your Honor, on the basis
that it's litigation by ambush.

THE COURT: Yeah. That objection has
been overruled. All right.

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:
I think these letters pose a substantial risk
of unfair prejudice that would outweigh their
probative value. I think their probative
value, to the extent they have any probative
value, lies on the fact of whether or not
there was marital discord, whether a divorce
was impending, whether she was happy or not in
the marriage, why she was unhappy, and the
degree of her unhappiness, as expressed in
some of these statements, I think might be
tangentially relevant. But to present that
evidence in this form to the jury poses a very
grave risk that they would start to be
inflamed or distracted onto issues that aren't
relevant in the case; that is, was Jolanta
Klonoski a good or bad person? More
importantly, was Dr. Klonoski a good or bad
person? And factor that into their award, if
there is an award, and they shouldn't. I
think we all agree they shouldn't be factoring
that into their award.

Now, they're probably cumulative anyway,
because you put in in fact, your case seems
to be three experts and everybody says there's
a bad marriage. So in a sense it's
cumulative. So I agree it's better to have
words in the decedent's mouth, so I'm willing
to cut you some slack in that regard. And
despite Attorney Lukey's, I think, well-taken
position that these are pretty late in the
ball game and she doesn't really have a great
opportunity to deal with that, but I'm not
going to give you the ruling, Attorney Lukey.
What I'm going to do is give you some relief
by limiting the admissibility of these
statements to those statements that directly
speak about her unhappiness in the marriage,
but not in histrionic terms and not in terms
that pose a risk of appealing to the passion,
prejudice of the jury, and not in terms that
pose a risk of putting Dr. Klonoski in such a
bad light that that might affect an award in
this case. Like I said, I'll give you a
chance to rebut, if you can and want to, just
as to these statements, but I can't imagine
you will want to.

....

In my judgment well, as I think about
it, it's probably an inconsistent view myself,
but having read these documents, the four
documents you presented, it's my conclusion
that certainly to the extent that you claim
anything is relevant in there, most of it is
not relevant. Material statements that are
made in these documents that might be relevant
that seem to portray the former plaintiff, Dr.
Klonoski, in a very poor light are not
relevant to the issue of Mrs. Klonoski's
future hedonic damages. To the extent they
are relevant, or one might argue that they are
relevant as a predictor or prognostication of
her future happiness, I find that those
statements, though relevant in that respect,
would, nevertheless, be excluded. I do
exclude them on grounds that their probative
value is far outweighed by the risk of unfair
prejudice in that those statements would tend
to, in my judgment, distract the jury and
confuse the jury and inflame the passions and
prejudice of the jury, such that they may be
at risk of focusing on the nature of Dr.
Klonoski as a person in calculating a damages
award for the estate, which we all agree would
not be proper.

To the extent to the limiting [sic]
extent it gives a marriage view different than
this than Dr. Klonoski and others portrayed,
I think they are relevant. And I think by
going through the letters and allowing you to
admit those portions of the letters that give
that contrary view, without the inflammatory
baggage of the other statements and comments
in the letters, I think your interests are
fairly protected.

So that's my ruling, I acknowledge that
Attorney Lukey makes a very good point about
late discovery, not that you've violated my
order of disclosure. I find that you've not.
And not that you had the document in a in a
timely fashion that you could have delivered
them to the plaintiffs in a meaningful timely
way. I find you didn't. But she is somewhat
at a prejudicial point in that there are other
letters that may present a different view
altogether of this.

But again, we're at the point where I
think we're cumulative anyway on the item of
was there discord or not discord in the
marriage, and that's not a very major issue
in the case, in any event. So here is what
the potentially inconsistent part, I suppose,
with respect to all of those other statements
in these letters that I have not agreed to
allow you to read to the jury or present to
the jury. I would I also exclude those on
grounds that, to the extent they are
inflammatory but fall below the line of
proposing an unfair risk of substantial
prejudice, outweighing their probative value,
I would exclude them on the additional
independent grounds that Attorney Lukey does
not have the opportunity to have those other
nine letters translated and examined for the
possibility that they may have equally
praiseworthy and laudatory comments about Dr.
Klonoski in them. So who knows. Maybe they
would balance them off. So that's just
another independent reason why I wouldn't
allow the statements to be denigrating of Dr.
Klonoski or certainly his relatives into
evidence. All right.

The court allowed the following excerpts in evidence.
They were read to the jury by the defendants' translator:
Despite the fact that I want to save this
marriage very much, I cannot stand being
treated as a moron, but that's how Richard
likes to behave. I think he will never
appreciate me as a person and will always
expect from me obedience and approval of
anything he proposes. This does not satisfy
me and does not provide even a bit of
happiness.

Excerpt from letter of May 20, 1990 (Ex. LLL, RA 4487; RA 3854).

Now I am with him not for myself but for the
children and I know that the day will come
when we separate because I will not stand
being with him to the end of my life.

Excerpt from letter of August 27, 1990 (Ex. LLL, RA 4488; RA 3855).

And I knew that something was wrong. I did
not have to wait long because in the evening
he came to my bed and graciously informed me
that on May 5, 6 and 7 he flies to California,
San Diego, for another conference. I could
not believe it but he said nobody was going to
change his plans. After that last conference
I told him I do not want him to ever fly
without me.

Excerpts from letter of April 27 and May 1993 (Ex. LLL, RA 4489; RA
3856).

As you can see, I think we should get a
divorce because we are tormenting each other
and no good will come between us. I only pity
this yet to be born child because it will
never see love between its parents. Sooner or
later both I and he will not be able to stand
this tension and misery between us any more.

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, and drove him to the hospital. Dr. Robb
testified that Dr. Klonoski was crying when Dr. Robb picked him up
at the airport, that he was "very distraught and upset" and
"grieving."
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:
Q. Were you aware before this weekend
that your wife had written thoughts of divorce
to her family?

A. No, I was not.

Q. Did you have any idea that she felt
that way?

A. No, I did not.

Q. When you learned about her feelings,
at least as contained at these points in time
in these letters, what steps did you take?

A. I was very stunned and distressed
that her perception of things was so vastly
different from what she represented to me and
was distressing her at the same time and that
she thought that she could get more answers or
more comfort by writing to her family in
Poland and not discussing it with me.

When I found that out, I instructed the
attorney in Connecticut who is handling the
probate of her estate that I waive any right
to the proceeds of the estate, and I
established an irrevocable trust in the names
of our children equally and relinquished all
rights to them with the trustee, that is not
myself, and that is the trustee's attorney,
Jennifer Snyder, from Hale and Dorr in Boston.

Q. And what is your understanding as to
whether you now have any claim to the proceeds
of the estate?

A. I understand that with the execution
of the trust, I have no claim to any of the
proceeds in her estate.

Q. One final question, Doctor. We heard
testimony on the defense case that you did not
want the pregnancy that resulted in Caroline's
birth. Is that true?

A. No, that's not true.

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.
II.
APPLYING THE DISCOVERY RULES

We begin our analysis with a brief review of the
pertinent rules of discovery. Rule 26(a)(3)(C) requires each
party to disclose to other parties, without awaiting a discovery
request, the following information:
(C) an appropriate identification of each
document or other exhibit, including summaries
of other evidence, separately identifying
those which the party expects to offer and
those which the party may offer if the need
arises.

Fed. R. Civ. P. 26(a)(3)(C).

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:
(b) Discovery Scope and Limits. Unless
otherwise limited by order of the court in
accordance with these rules, the scope of
discovery is as follows:

(1) In General. Parties may obtain
discovery regarding any matter, not
privileged, which is relevant to the subject
matter involved in the pending action, whether
it relates to the claim or defense of the
party seeking discovery or to the claim or
defense of any other party, including the
existence, description, nature, custody,
condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of any discoverable matter. The
information sought need not be admissible at
the trial if the information sought appears
reasonably calculated to lead to the discovery
of admissible evidence.

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. On the
contrary, the plain language of this Rule 26(b)(1) contemplates
wide-ranging discovery to the fullest possible extent.
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 (1978), the word "relevant" encompasses
any matter that bears on, or that reasonably
could lead to other matter that could bear on,
any issue that is or may be in the case. . . .
[D]iscovery is not limited to issues raised by
the pleadings, for discovery itself is
designed to help define and clarify the
issues. Nor is discovery limited to the
merits of a case, for a variety of fact-
oriented issues may arise during litigation
that are not related to the merits.

Id. at 351 (citing Hickman v. Taylor, 329 U.S. 495, 501 (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. The Court went on to
discuss the purpose of the discovery rules:
Under the prior federal practice, the pre-
trial functions of notice-giving, issue-
formulation and fact-revelation were performed
primarily and inadequately by the pleadings.
Inquiry into the issues and the facts before
trial was narrowly confined and was often
cumbersome in method. The new rules, however,
restrict the pleadings to the task of general
notice-giving and invest the deposition-
discovery process with a vital role in the
preparation for trial. The various
instruments of discovery now serve (1) as a
device, along with the pre-trial hearing under
Rule 16, to narrow and clarify the basic
issues between the parties, and (2) as a
device for ascertaining the facts, or
information as to the existence or whereabouts
of facts, relative to those issues. Thus
civil trials in the federal courts no longer
need be carried on in the dark. The way is
now clear, consistent with recognized
privileges, for the parties to obtain the
fullest possible knowledge of the issues and
facts before trial.

Id. at 500-01 (emphasis added; footnotes omitted). The Court added
that the "deposition-discovery rules are to be accorded a broad and
liberal treatment." Id. at 507. This is because
[m]utual knowledge of all the relevant facts
gathered by both parties is essential to
proper litigation. To that end, either party
may compel the other to disgorge whatever
facts he has in his possession. The
deposition-discovery procedure simply advances
the stage at which the disclosure can be
compelled from the time of trial to the period
preceding it, thus reducing the possibility of
surprise.

Id. (emphasis added).

Similarly, in United States v. Procter & Gamble Co., 356
U.S. 677 (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 (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:
(e) Supplementation of Disclosures and
Responses. A party who has made a disclosure
under subdivision (a) or responded to a
request for discovery with a disclosure or
response is under a duty to supplement or
correct the disclosure or response to include
information thereafter acquired if ordered by
the court or in the following circumstances:

(1) A party is under a duty to
supplement at appropriate intervals its
disclosures under subdivision (a) if the
party learns that in some material
respect the information disclosed is
incomplete or incorrect and if the
additional or corrective information has
not otherwise been made known to the
other parties during the discovery
process or in writing.

(2) A party is under a duty
seasonably to amend a prior response to
an interrogatory, request for production,
or request for admission if the party
learns that the response is in some
material respect incomplete or incorrect
and if the additional or corrective
information has not otherwise been made
known to the other parties during the
discovery process or in writing.

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 et al., 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:
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.

(1) A party that without substantial
justification fails to disclose
information required by Rule 26(a) or
26(e)(1) shall not, unless such failure
is harmless, be permitted to use as
evidence at a trial, at a hearing, or on
a motion any witness or information not
so disclosed. In addition to or in lieu
of this sanction, the court, on motion
and after affording an opportunity to be
heard, may impose other appropriate
sanctions. In addition to requiring
payment of reasonable expenses, including
attorney's fees, caused by the failure,
these sanctions may include any of the
actions authorized under subparagraphs
(A), (B), and (C) of subdivision (b)(2)
of this rule and may include informing
the jury of the failure to make the
disclosure.

Fed. R. Civ. P. 37(c)(1).

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 (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. 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:
Pretrial Disclosures. In addition to the
disclosures required in the preceding
paragraphs, a party shall provide to other
parties [certain delineated] information
regarding the evidence that it may present at
trial other than solely for impeachment
purposes: . . . .

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 to the discovery
rules are, for the most part, personal injury cases. They
frequently deal with two kinds of evidence: video surveillance
tapes of a plaintiff's activities subsequent to the injury giving
rise to the suit; and information that a defendant has of the
plaintiff's prior medical history. Although some district courts
have found video surveillance tapes to be "solely" impeachment
evidence, see Fed. R. Civ. P. 26(a)(3), the weight of authority
seems to be that such evidence is both impeaching and substantive
and should be disclosed. See Wegner v. Cliff Viessman, Inc., 153
F.R.D. 154, 157-59 (N.D. Iowa 1994).
And this approach makes evidentiary sense. As the Wright
and Miller treatise put it, after reviewing the case law:
If a party plans to testify to one version of
the facts, and the opponent has evidence
supporting a different version of the facts,
the opponent's evidence will tend to impeach
the party by contradiction, but if discovery
of this kind of evidence is not permitted the
discovery rules might as well be repealed.
Even those who have been most concerned about
protecting impeachment material recognize that
substantive evidence must be subject to
discovery even though it also tends to
contradict evidence of the discovering party.

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. We hold, therefore, that the
district court erred, as a matter of law, in finding the letter
excerpts to fall within the exception to the discovery rules for
evidence introduced "solely for impeachment purposes" of Fed. R.
Civ. P. 26(a)(3).
Nor do we think that Fed. R. Evid. 801(d)(2) opens the
evidence door to the excerpts because they are admissions against
a party opponent, as defendants argue. The question is not the
admissibility of the excerpts under the Federal Rules of Evidence
but whether they were barred because their introduction violated
the pretrial discovery orders of the district court and federal
discovery rules. The rules of evidence do not trump the discovery
rules contained in the Federal Rules of Civil Procedure. The
purpose of the discovery rules is to provide for the "fullest
possible" pretrial disclosure of admissible evidence, to "reduc[e]
the possibility of surprise," Hickman, 329 U.S. at 500-01, and to
insure "a fair contest," Procter & Gamble, 356 U.S. at 682.
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:
changed course 180 degrees from his report in
his testimony on a key topic at the heart of
plaintiff's case. Further, he went into a new
area of testimony. There was no prior
disclosure of the coming volte face; indeed
there was a misrepresentation in the
supplemental answer to interrogatories filed
two days after the jury was impaneled that the
expert's testimony would be the same as in his
initial report.

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. SeeNational Hockey League, 427 U.S. at 643.
THE ADEQUACY OF DEFENDANTS' EXPLANATIONS
Defense counsel argued successfully to the district court
that the reason the letters had not been disclosed was that counsel
had not received them until two days prior to the start of their
cross-examination and did not have an opportunity prior to their
use at trial to have them translated from Polish to English. This
explanation was accepted by the district judge. But it is beside
the point. The fact that a party had not actually obtained certain
documents before the discovery deadline does not excuse a
violation.
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.
The contents of Mrs. Klonoski's letters were not disclosed prior to
trial, as they should have been under the July 16, 1996 discovery
order which provided specifically: "defendants shall produce a
list of all persons known by them to possess discoverable
information related to: (1) marital discord between Dr. and Mrs.
Klonoski . . . and a general description of the nature of that
information." The final pretrial order was based on the parties'
representations that discovery had been completed and the case was
ready for trial.
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. This suggests
that the defendants may have been, at best, either lax or negligent
in pursuing pretrial discovery.
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 you've violated my order of disclosure. I find that
you've not." The only basis for this finding was that the court
believed the letter fell within the impeachment exception
provisions of Fed. R. Civ. P. 26(a)(3). We have found, supra, that
the exception does not apply. Clearly the introduction of the
letters without prior notice to plaintiff violated the pretrial
discovery order of July 19 and the final pretrial order.
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 plaintiff's
attorney found herself. First, Attorney Lukey was correct that,
because of the defendants' failure to provide these letters during
the discovery process, plaintiff's 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:
It is true that, where effective to counteract
the surprise to one party wrought by the other
party's failure to abide by Rule 26, a
continuance or the calling of a rebuttal
witness is preferable to terminating the trial
and beginning anew. However, a continuance is
not effective in every circumstance to
counteract the unfair surprise. See Thibeault[v. Square D Co.], 960 F.2d [239,] 246 [(1st
Cir. 1992)] ("[A] continuance is often
ineffectual as a sanction and unfair to both
the court and the opposing party.").

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
(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 Dr.
Klonoski had finished his direct testimony before disclosing the
letters to the plaintiff. As noted supra, defense counsel knew
about the letters prior to Dr. Klonoski's testimony. If counsel
had notified the plaintiff at that point, then perhaps a
continuance might have been the appropriate remedy.
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 (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 Paria, 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:
"Misconduct" does not demand proof of
nefarious intent or purpose as a prerequisite
to redress. For the term to have meaning in
the Rule 60(b)(3) context, it must differ from
both "fraud" and "misrepresentation."
Definition of this difference requires us to
take an expansive view of "misconduct." The
term can cover even accidental omissions--
elsewise it would be pleonastic, because
"fraud" and "misrepresentation" would likely
subsume it. Cf. United States v. One Douglas
A-26B Aircraft, 662 F.2d 1372, 1374-75 n.6
(11th Cir. 1981) (to avoid redundancy,
"misrepresentation" in Rule 60(b)(3) must
encompass more than false statements made with
intent to deceive). We think such a
construction not overly harsh; it takes scant
imagination to conjure up discovery responses
which, though made in good faith, are so
ineptly researched or lackadaisical that they
deny the opposing party a fair trial.
Accidents--at least avoidable ones--should not
be immune from the reach of the rule. Thus,
we find ourselves in agreement with the Fifth
Circuit that, depending upon the
circumstances, relief on the ground of
misconduct may be justified "whether there was
evil, innocent or careless, purpose." Bros
Inc. v. W. E. Grace Mfg. Co., 351 F.2d 208,
211 (5th Cir. 1965), cert. denied, 383 U.S.
936, 86 S. Ct. 1065, 15 L. Ed. 2d 852 (1966).

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.
We concluded:
To summarize, in motions for a new trial
under the misconduct prong of Rule 60(b)(3),
the movant must show the opponent's misconduct
by clear and convincing evidence. Next, the
moving party must show that the misconduct
substantially interfered with its ability
fully and fairly to prepare for, and proceed
at, trial. This burden may be shouldered
either by establishing the material's likely
worth as trial evidence or by elucidating its
value as a tool for obtaining meaningful
discovery. The burden can also be met by
presumption or inference, if the movant can
successfully demonstrate that the misconduct
was knowing or deliberate. Once a presumption
of substantial interference arises, it can
alone carry the day, unless defeated by a
clear and convincing demonstration that the
consequences of the misconduct were nugacious.
Alternatively, if unaided by a presumption--
that is, if the movant is unable to prove that
the misconduct was knowing or deliberate--it
may still prevail as long as it proves by a
preponderance of the evidence that the
nondisclosure worked some substantial
interference with the full and fair
preparation or presentation of the case.

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 (alterations in original). Noting, however,
that this misconduct was not the plaintiff's fault, but rather her
counsel's, the district court admitted the testimony as an "act of
justice." Id.
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
is 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 a fair testing in an even-handed
process.

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. Id. at 287. Because the doctor's testimony introduced a
"novel theory of liability," defense counsel could not "design an
intelligent litigation strategy to address the charge of visual
impairment and . . . effectively cross-examine [him]." Id. In
addition, we found that the criteria for "misconduct" set forth in
Anderson "apply equally to this motion under Rule 59." Id. at 288.
The same reasoning applies to the case before us. We
conclude that the district court's error in admitting Mrs.
Klonoski's letters was prejudicial, not harmless.
CONCLUSION
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 (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.