the reason why we're here today is not because of the government's negligence because it's a trial court it's already been found that the government was negligent and in fact this negligence caused our clients  wanted to introduce this expert because that was the reason for which she brought her claim and the real fundamental unfairness in this case that the government's expert was able to prepare was able to use but fundamentally unfair about having was able to then prepare is own report submit it and testify having paler his testimony with the knowledge of what dr jordan would have testified and yet was able to also preclude dr jordan from testifying a trial in other words the government was an expert physician and that's why it was so important because he was mysteriously the only expert she wanted to have his testimony at trial and the ultimate issue the paramount issue the reason why she brought her claim was permanent disability that she faces retrospect there may there may have been tactical trial decisions that could have been a differently however rule thirty seventy one is a disjunctive and we believe that we've satisfied harmlessness in this case because the government really faced no surprise or prejudice here the government's expert was able to incorporate dr jordan findings in his own written report was able to respond to that and tailor his testimony at trial with full knowledge and the  time crunch but the government also here was able to prepare and have enough time to submit a written report in which its expert incorporated dr jordan's findings and therefore there was really no real surprise no real harmful prejudice to the district course did need more guidance with respect to that already the third fourth fifth and ten circuits have recognized the need to have factors test and they've all adopted a factor to test this in turn will out of can create a record for a court consider the importance of the evidence and determine whether that testimony should be excluded and that well we know that the interests of the federal rules of civil procedure they are there to in order to prevent surprised and to promote you to still fish and sea but consideration cloud calendar in this case the district court was ready and had set aside a week to try this case and i think that the court properly exercised its discretion in not offering to continue to trial based on the fact that a week before trial based on the acts of the trial attorney it would open up pandora's box because there would be little if no compliance with the discovery statutes there would always be that out to argue that well it wasn't my fault it was my attorney's ball and i should be permitted to disclose later i should be permitted to conduct further discovery or what have you it would completely circumvent the intent of the discovery statu counsel also argued briefly that we were not harmed by the fact that there was a leak disclosure because dr carroll had an opportunity to review the opposing expert's report  but more importantly i did not have an opportunity to depose that expert prior to trial i think there is much more to preparing for trial than just having your expert review and comment upon that report well yes or on and on fortunately i would not have had time given the fact that during the week before trial i was preparing my witnesses i was preparing my cross examination of the witnesses i was friends opening closing did not have time to set aside two days which is probably what it would have taken to prepare for a deposition of that expert spent several hours opposing that expert would have taken away two days of my valuable purpose trial preparation time which would  report i had no medical records i did not know who dr jordan was i had no choice but to assume that he was nothing more than a threesome doctor and my practice in every situation is to depose an expert witness that is retained and designated two exceptions that are discussed in rule thirty seven substantial justification of harmlessness incompetence all of the factors that are critical for the district courts to address since before ruling on i basis of his opinions were that why that was why it was critical for me to depose him to find out the basis of his opinions to find out what he meant by his report because it was something so i didn't i couldn't say i was surprised by it but i really couldn't tell  correct but we believe that that what made me think that my limited difference for the jones yes especially because the government was able to have an expert and not only an expert but an expert that was able to incorporate our expert report into his own and testify to that report and we believe that that means the major difference he did not have the benefit of our expert but the government was able to use our expert against  particular harm in a particular case the government here did not suffer an actual harm my q i'm curious what you think the trial judge should have done that morning the trial coming in and you've got to see if you that the deposition