exclusion of the undisclosed testimony that resulted from the flagrant rule twenty six violation in this case when when did you first have noticed what mark reporter was going to put on notice of what was about to happen and the first time the defense was on notice with respect to the testimony that the witness himself admitted on the stand was a change in his testimony was was live testimony during trial that was the first time and i don't think there's any dispute that it was it was at trial on the witness stand that the witness gave the undisclosed testimony at issue here and what was his explanation on cross for our or direct for explaining why he didn't change his mind there has never been an explanation for not notifying mentor of the change the explanation on the stand that was given was that in response to questions from plaintiff's counsel about his testimony preparing for testimony once the case was set for trial  went back and looked at his testimony in response to questioning from his tailor's lawyers so that was his explanation for the change but there's never been any doubts what is what exactly was the change i thought i had understood from the record that what happened was that he had expressed in deposition and even earlier in his direct some lack of knowledge about whether the product degraded and then the  if lawyer asked him to assume degradation and he then went on to express an opinion based on that assumption is that what happened not precisely your honor and let me if i may  and quote from what dr porter said at his testimony he was specifically i set up this at his deposition deposition think your honor at his deposition he was specifically asked what are you claiming the defendant's product caused in this  and this is what he said and i quote the only thing currently that we could somewhat relate to her odd take would be maybe some of the tenderness on examination along the mess that's in appendix volume one at tab one fifty five dash two at three sixty six he further admitted there was no evidence of an erosion that's document one fifteen at three no and all of that changed in the middle of trial with no warning to mental when a doctor based on the question that presupposed that asked him to assume that predation is not true that was one aspect but he also a pint he did assume it he had been quite frankly skeptical of degradation in his deposition testimony he had been very skeptical of degradation and so mentor had no warning that he would assume it for purposes but i think i think more importantly iran there was a complete about face with respect to the bladder inflammation that he tried in his deposition testimony setting aside assuming for purposes of responding to question changed his mind between the deposition and the trial i know that they didn't give you any notice i gather no good explanation for why counsel had notified you know no explanation whatsoever for why we were notified again the only explanation on the trial on the stand trial preparation i may have something other than he's just in a different mood that day just felt differently or was there something more scientific as to why he changed  basically rethought the case that it once it was he said once it was set for trial in his report it is report he lists all of the information he used to reach his opinion which included the doctored certainly not anything further in the briefing on appeal went to once the case got set for trial he met with ms taylor's lawyers and in response to questions from them we reef we thought i presumably which is the term for the bladder problem so you are feeling good in trial prep i assume you don't have to worry about that or did you come back with your own expert to say what well what did you think you were in peril of what was the problem is not going to be cystitis what did you think porter and he was or only specific cause ation testimony there were certainly general causes testimony in the case but in terms of the specific causation testimony we wanted to you know we refused an offer of settlement is that all that was on the table  and discomfort but but her her treating physician said it was not was not the cause the treating physician testimony and dr porter was her only specific cause ation  problem you might have gotten your own expert back and discount that but you weren't alerted that that was going to be a problem absolutely i think i think going back as far as the decision to reject the plaintiff's offer of settlement for which which we are now on the option did you argue in support of however most many motions you that the prejudice to you perhaps among others was that you were misled and therefore didn't have an expert to counter quarters allegedly new version i think our argument your honor was because plaintiffs for the burden of proof i think our argument was that we simply were ambushed in our holes trial strategy in terms of basing it on this notion of a weak case as causation in terms of the strike after you heard him as well as you know we yes we did we move as we have several times several times and did you on any of those occasions say judge this continuance this doesn't even begin to cut it in terms of protecting our rights because in reliance on the opinion that was never supplemented we didn't go out and get an expert to counter this new testimony if those words in substance or in height verb ever uttered by your so that those words to those effect in terms of that the error was dot substantially justified or harmless in our motion our motion that was made several times after trial and certainly in our in our post trauma that in our view is very simple did you say to the trial judge we were prejudiced at least in part in that we were misled and the f word did not have an expert to counter this test did you say that mr lennon you didn't try this case i did not try this case right now when what the what where do i find a record the first indication that you knew or  testify to ok when i read the deposition the deposition i was i said to myself i've been around a little while and i would never put this guy on the witness stand  because because the only testimony the possibly gave in his deposition that had any problems that it was very slam was after there was a break in the deposition and then he went out and talked to counsel and when he came back in and testified one page must tell testify examined he had somewhat of an opinion but not one that had a trial so that's so i assume that there was a time when he told blizzard what he was going to say but we don't know that do we i certainly don't know the record doesn't the record doesn't say say that either just the inference that he wouldn't have brought that expensive witness and without knowing i think that we can make an inference that he had some idea of what the doctor was going to testify to let me tell you what my problem is and you can address  to happen at trial and if there's a material deviation without any notice or it then all that's left for the proponent of the testimony is there is no prejudice well if that's the case it writes the rule off the off the books because the judge in the middle of the trial nine day trial with a witness costing us ten thousand dollars a day in blizzard's trying to get him off the stand  isn't going to declare a mistrial so that's what he was left with prejudice so what i'm weighing is the policy underpinnings of the requirement that candor be displayed in terms of producing  doesn't go to the jury and you're a critical witness so that's right if these policy i'm wrestling with this policy but do we forgive this is the most egregious i've seen in fifty years on the bench to be frank with you well so what i would i think my answer to your question where i think you're going judge show flight is is what would mentor have done in this case had they had some notice that the testimony when it was going to be as it was and i think the answer to that is the opponent in that case said your honor can we have the lunch hour to read oppose this witness and figure out what he's going to say the just district judge said no that was an abuse of discretion here and force trial counsel said can we at least have overnight well that's that in the again the same eight circuit case in the first circuit case that the courts the courts of appeals there found that the party in mentors shoes had no opportunity to present rebuttal evidence because they had no idea that this sort of evidence was going to be in a trial and that's just not the case here mentor had a days long presentation of its evidence experts that said degradation is bogus whether it's prison your opening statement and blizzard's opening state i looked read the opening statement and i said to myself maybe he dumped statement without dribbling it to him i think that the substance of dr porter's testimony wasn't capsulated and in the opening statement he described what that the plaintiff was going to show the injuries that they were going to show the defects that they were don't we ultimately have to fall back on the scope of review here you have an experienced trial judge conducting a trial assume for the sake of argument that there was a violation in the failure to more timely apprised of the change but what the defense asked for is overnight they got it they don't say anything  about their being prejudiced by the failure to have an opportunity to call their own expert on the same subject or if i might excuse me they don't ask to depose him overnight or for a continuance of a day to conduct a new deposition something is a trial judge and it more than once isn't it simply a question of whether the trial judge abused his discretion it is indeed and i think you're absolutely right and the reason they didn't ask for let us get a week to develop all kinds of other evidence that we might use to rebut dr pore is because they already have that evidence it's the evidence in their case it's the evidence that degradation is bogus science so to speak it's evidence that ms taylor actually didn't suffer any injuries it's evidence that the warnings were sufficient it's evidence that the regulatory process was proper that mentor and they had evidence because to me the one tangible thing forget the degradation the it's the bladder problem that length and that he testified dr porter only as to certain injuries and not others but the rule rule twenty six is not about depositions it's about reports expert reports and at page eight and nine of dr porter's expert report that was submitted well before trial he concludes that within a reasonable degree of medical certainty the most likely cause of her chronic inflammation is the object is the what up to the product and that's a that is his final conclusion in his expert report not to the extent that that their complaint is about degradation that that is something that's not in his expert report i freely admit that and it's something that he testified at his deposition he said i don't know maybe maybe not so you could have a report where an expert vaguely says something like bladder problems caused by the product then you depose the expert expert says don't know why that was in the report not a problem at all and then you go to trial and then on your side to pull the rug out from under the defendant certainly am not but what i am saying and mr blizzard will keep going with this practice simply i'm not sure he will because i think that a an opinion that this court could write in this case affirming the judgment of the district court on this issue would speak to the fact that really there was no prejudice here because mentor had the opportunity and in fact the evidence that it put in at trial everybody all this testing council you have a lawyer telling the judge i've got a what does this cost to be ten thousand up i read his report that's conclusory he cites all the things that it concludes so you take the deposition time down there was no time to take his deposition away from the can mask a substantial convenient when and under what circumstances that he change his mind and when did he tell blizzard and what were the conversations because in my view the attorney client privilege on this in response to mr blizzard of course he could overnight he had this deposition i've marked fourteen places in a deposition or where he gave negative answers that he couldn't say this could say that i take your point about the ten thousand dollars i think that that's undermined somewhat by the what do we say in opinion that keeps this from happening again and start what do we say end up in an opinion th as it relates to what evidence mentor would have submitted if there were if the testimony had not changed and the fact i think of the matter in this case is that the evidence would have been the same and if we could have a deposition admired by the able to destroy the would so it seems to me judge so thought that you might be saying that the abuse of discretion is granting an overnight continuance rather than no no i think the abuse of discretion is is the violation of the rule first of all and so on their way to the violation well i think that whether they're caught in a woodshed is sort of or the judge saw the problem he did and he did the best that he could to try to fix it and i think that under an abuse of discretion review overnight continuance when the mentor has all the evidence that it might need to rebut this testimony so i feel strongly about these things but don't don't take it for granted you never got that never your honor let me make three points first if i were the district judge i would have had reinforce my answer to your question about the record if you look in our supplemental appendix in our motion that we filed on page two of that motion we say mentor has been prejudiced dr porter's new in change testimony which mentor learned for the first time in open court as dr porter testified deprived mentor of the ability to depose dr porter to discover these opinions or to challenge his data and methods including the reliability of his opinions under dahlberg it also deprived mentor of the ability to fully prepare for trial including the reports and testimony of of its own experts so it doesn't say the word rebuttal there but it does we do defense case part and still on the defense case it was filed to play defense we're still presenting it with this well this was this was playing this yes this was plaintiffs i mean this was plaintiffs it was plaintiff's witness art i ended on the fifth and we made a motion for directed verdict at that time that referred to quarter but the motion that i'm that i'm referring to was actually filing to give you the exact date it was filed  were we were reiterating our motion we initially asked for a mistrial for exclusion and then only in the alternative did did did mentors counsel say if you are and if you are not going to grant if you're not in the response to to the prejudice and i think that that's precisely why the first circuit and the eighth circuit in ten bart reversed on and on the same abuse of discretion standard that applies here on in similarly sanctions as it's and i think it's important that it's prejudice the focus is on prejudice but it's also on deterrence that the point of the rule is not only to cure whatever prejudice or harmfulness may have caused but it's also to deter future conduct and