The plaintiff contractor brought a motion on the eve of trial seeking leave under Rule 48.04 of the Rules of Civil Procedure to bring a motion to exclude an engineering report and related evidence relied on by the defendants in their counterclaim concerning alleged construction deficiencies.
The moving party argued the report had been delivered late and that remedial work was completed before it had an opportunity to obtain its own expert inspection.
The court held that leave was not warranted because the action had already been set down for trial and the moving party failed to demonstrate a substantial or unexpected change in circumstances making the motion necessary in the interests of justice.
The evidence showed the moving party had long been aware of the report and remedial work, had opportunities to conduct inspections and obtain its own expert evidence, and delayed bringing the motion until shortly before trial.
In any event, the court held the relief sought would not be justified because the evidence could be addressed through cross‑examination and exclusion would cause greater prejudice to the opposing party.
