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THE SURPRISE WITNESS IN PENNSYLVANIA
By Robert Phillips, Esquire and Lawrence M. Kelly, Esquire
The following scenario is based on a true story; only the names have been changed, as well as the actual course of events.
You're on trial in a premises-liability case, say. You represent a subcontractor on a construction site. The employee of a fellow contractor working alongside yours falls on loose boards, and claims a brain injury, with a $100,000 workers comp lien and a ten million dollar demand . The plaintiff tells you he's never had prior accidents...oh yeah, wait, maybe one minor auto accident, a fender bender in which he was a back seat passenger, but no injuries resulted. You meet the actual backseat passenger later, and learn she'll testify that (a) he was the driver in the car accident, (b) he was drag-racing, and best of all, (c) before the accident, he'd bragged that he had accidently loosened the boards that later tripped him up. The accident was his own fault, but he'd still make millions off of it. The witness hates him now-the car accident left her crippled and disfigured.
Before you break open the champagne or make the book deal, reflect on her value as a witness. How can you use her? And do you have to identify her pre-trial, removing the benefit of surprise? Consider the car accident. He was racing, but he had told you in sworn testimony that he was in the back seat. Is it relevant, as sensational as it sounds?
Obviously, the testimony of a witness can be used to contradict a party, but "the grounds for contradicting a witness must be germane to the issues at trial." Walley v Iraca. "Contradicting evidence is 'collateral' if it may not be admitted at trial for any purpose independent of the contradiction." McGoldrick v The Pennsylvania Railroad Co.
Putting aside the considerable prejudice to the plaintiff by the admission of such evidence, the driver's identity is a collateral issue. The jury is not there to determine whether this guy was a bad driver, but whether he was hurt at work, and whose fault that was. If your plaintiff struck his head in the car accident, that would likely come in since his injury is at issue. You can argue the real injury, if any, came from the car accident, and that it was a major incident and not a mere fender-bender.
So, what are we left with? There has to be a reason to wheel in this bitter, disfigured witness and elicit the gasps of the jury. How about the plaintiff's "bragging" about his own fault and opportunism at work? This would almost certainly be an admission by a party, an exception to the hearsay rule. Pa.R.Ev. 803(25). Germane to an issue at trial? Certainly. He admits the accident was his own fault.
As for the need to identify her, consult the pre-trial order. Pa.R.C.P. 4019(i) seems to require the identification of all witnesses, but according to the rule's notes, a witness need not necessarily be identified if used only in rebuttal. Mitchell v Grevely International, Inc. But if the other sides' discovery is carefully drafted, or the pre-trial order is clear, it may be wise to give up the surprise and reveal the witness. As the trial lawyer, you may well know your particular Judge does not mind surprises, or you know that this particular plaintiff attorney will try to introduce surprises as well. In short, it's a judgment call, but consider it carefully.
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