concurring and dissenting:
I join in Parts I, II and III of the majority opinion. However, I am unable to agree with the majority view in Part IV that the trial judge’s refusal to allow two proposed witnesses to testify was an abuse of discretion.
On numerous occasions, this Court has held that the determination as to whether a party should be held to pretrial orders is within the discretion of the trial judge. Absent a clear abuse of that discretion, we will not interfere with such rulings. See, e. g., De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972); Ely v. Reading Company, 424 F.2d 758 (3d Cir. 1970). That principle should be applied here.
The plaintiff filed an amended pretrial memorandum on February 23, 1976, and a pretrial conference took place on that day. The letter from plaintiff’s counsel listing four additional witnesses was dated February 26, 1976. The record does not reveal when it was delivered to defense counsel, but the objection dated March 3, 1976 followed soon thereafter.
Under local Rule 7 of the district court, only witnesses listed in the pretrial order will be permitted to testify except to “prevent manifest injustice.” The trial judge noted that the rule was designed to give both sides an opportunity to explore the facts in the case and that it was unfair to bring in a witness at the eleventh hour when the other party could not arrange for a deposition.
The majority faults defendant for not contacting plaintiff’s counsel to secure information from him, not initiating further discovery, or taking other steps to minimize prejudice. In short, the burden is placed on the defendant to cure a situation brought on by the plaintiff’s dereliction. The record contains no explanation of when plaintiff first learned of the witness, particularly if his identity were discovered before February 23, the date of the pretrial conference; or why plaintiff did not request an amendment of the pretrial order or a further pretrial conference. Conspicuously lacking also is the justification plaintiff had for his failure to be prepared for pretrial as required by the court’s order of November 18, 1975.
Since the time for discovery fixed by the court had expired, defendant was not free to depose the four proposed witnesses in the absence of a court order. Under the circumstances, one would have expected the plaintiff at least to have delivered a statement of the proposed witnesses’ testimony and an offer to arrange for depositions, if agreeable to the court. Plaintiff did nothing, choosing instead to wait until the day of trial for a ruling from the court. I find no abuse of discretion on this record and, therefore, do not agree with the majority’s remand order. Since I am in the minority, however, and the remand will take place, I note my concurrence with Judge Rosenn’s suggestion that because this is a non-jury trial, a limited reopening may suffice.
In view of the remand order, it is not appropriate for me to express my views on the other serious issues not reached by the majority and the ultimate disposition of the case.