Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.