"provides for extraordinary relief and may only be invoked upon a showing
Coltec Indus., Inc.
280 F.3d 262, 273 (3d Cir. 2002) (internalquotation marks and citations omitted).Although the Federal Rules clearly contemplate the exclusion
untimely or improperexpert disclosures (which has the effect
excluding expert testimony based thereon), the ThirdCircuit has cautioned that because "[t]he exclusion
critical evidence is an extreme sanction," itis "not normally to be imposed absent a showing
willful deception or flagrant disregard
acourt order by the proponent
In re Paoli R.R. Yard PCB Litig.,
F.3d 717,791-92 (3d Cir. 1994) (internal quotation marks and citations omitted). In considering whetherto exclude such expert testimony, courts generally weigh five factors, referred to as the
factors: (1) the surprise or prejudice to the moving party; (2) the ability
the movingparty to cure any such prejudice; (3) the extent to which allowing the testimony would disrupt theorder and efficiency
trial; (4) bad faith or willfulness in failing to comply with the court'sorder; and (5) the importance
the testimony sought to be excluded.
PennypackWoods Home Ownership
559 F.2d 894, 904-05 (3d Cir. 1977),
overruled on othergrounds, Goodman
(3d Cir. 1985).
The Basis for Sandoz's Rule
In its March 14th Order, the Court analyzed the five
factors and determinedthat Dr. Zhanel should be permitted to testify based on those portions
his report that respondeddirectly to points raised for the first time in the Riley Report.
D.I. 115) In so doing, theGiven that the first two
consider prejudice to themoving party and whether such prejudice can be
hand-in-hand, the Court consideredthem together.
D.I. 115 at