When assessing prejudice to a party from the admission of late expert evidence, the relevant prejudice must be measured as the additional burden beyond what existing case management orders already impose. Where case management orders already contemplate that experts may disagree at conclaves and provide reasons in joint reports, and that lay witnesses may need to be recalled, the admission of responsive expert evidence does not necessarily create relevant additional prejudice. However, a party seeking to adduce late expert evidence that was deliberately excluded by case management orders bears a heavy onus, particularly where the inability to rely on the evidence is a consequence of the party's own forensic choices and the orders were designed to ensure a fair trial.
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