Opinion
NO. 2020-C-00652
10-14-2020
ROBERT TASSIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANCY AND RAYMOND HEBERT
ON WRIT OF CERTIORARI TO THE 1ST CIRCUIT COURT OF APPEAL, PARISH OF EAST BATON ROUGE CRAIN, J., dissenting.
The excluded witness was identified in the pre-trial order. Defendants indicated they might call "any witness listed, subpoenaed, or called by any other parties." Dawson was listed by another party dismissed before trial, and her affidavit was submitted in support of a motion for summary judgment. Thus, plaintiff was aware of both the witness's identity and the substance of her testimony. Pre-trial procedure is designed to avoid surprise and to allow orderly disposition of cases. See La. Code Civ. Pro. Art 1551; Theriot v. State Dept. of Wildlife and Fisheries, 94-1536 (La. App. 1 Cir. 4/7/95), 661 So. 2d 986, 989, writ denied, 95-1617 (La. 10/6/95), 662 So. 2d 1041. Plaintiff cannot reasonably claim "surprise" when the identity and content of testimony of the witness was known in advance of trial. Although, a trial judge has great discretion in deciding whether to receive or refuse testimony objected to on the grounds of failure to abide by the pre-trial order, any doubt must be resolved in favor of receiving the information. Branscum v. Catherine, 2000-0354 (La. App. 4 Cir. 4/5/00), 759 So. 2d 234, 236; Curry v. Johnson, (La. App. 1 Cir. 11/22/91), 590 So. 2d 1213, 1216. For these reasons, I would affirm the Court of Appeal's opinion.