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Failure to Disclose Evidence in Timely Fashion Justifies Dismissal
Description Product liability suit properly dismissed by trial court when plaintiff failed to produce competent expert testimony within the deadline set by the court to establish a prima facie case. Since expert report was filed two months late, trial court properly dismissed suit.
Topic Court Procedure
Key Words Timeliness of Expert Testimony
C A S E   S U M M A R Y
Facts Trost was injured when riding a Trek on a path. He claimed he was flipped forward off the bike when the frame broke. Trost sued for product defect as the cause of the accident. Trial court scheduled completion of expert discovery by October 1. Trost had minimal work done by an expert who examined the frame; Trek completed its work, which contended the break did not cause Trost to fall. Trost then had further expert work done, but the report was not finished until the end of November. No request was made for extension. Trial court refused to accept the expert testimony offered by Trost at that point and found that Trost failed to "raise a material issue of fact concerning either defect or causation." Trek was granted summary judgment. Trost appealed.
Decision Affirmed. Federal Rules of Civil Procedure "permit a court to exclude untimely evidence unless the failure to disclose was either harmless or substantially justified." That was not the case here. "Trost has the burden of proof ... to produce sufficient competent evidence to make out a prima facie case regardless of what evidence Trek might assemble. Since failure to disclose in a timely manner is equivalent to failure to disclose, Trost needed to produce competent evidence within deadlines set by the court or risk sanctions...."
Citation Trost v. Trek Bicycle Corp., 162 F.3d 1004 (8th Cir., 1998)

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