Background
Fishback and Taylor Made Home Center entered into a contract in April 2019 for purchase and installation of a mobile home. After installation, Fishback discovered alleged defects and property damage, and filed suit in October 2020 for breach of contract and improper installation. The litigation spanned five years with multiple continuances.
Fishback filed expert witness disclosures in August 2023 and February 2025, each listing eight experts by name, address, and phone number, but providing only a conclusory statement that experts would testify the defendant’s work was substandard and fell below professional standards. The disclosures did not specify the substance of facts and opinions each expert would provide or detailed grounds for those opinions—information required by Kentucky Rules of Civil Procedure 26.02(4)(a)(i) and the court’s pretrial orders. In March 2025, defendant requested detailed expert information via interrogatory; Fishback did not respond.
Defendant filed a motion in limine in May 2025 to exclude Fishback’s expert witnesses. The trial court granted the motion, excluding four of eight experts. After trial on May 28-29, 2025, the jury ruled for defendant. Fishback appealed, also challenging the denial of her post-tornado continuance motion.
The Court’s Holding
The Kentucky Court of Appeals affirmed on all issues. On expert exclusion, the court held the trial court did not abuse its discretion. Fishback’s disclosures failed to meet CR 26.02 requirements by not providing the substance of facts and opinions or summary of grounds for each expert’s opinions. The court rejected Fishback’s waiver argument, noting she had multiple opportunities to supplement disclosures and that defendant’s March 2025 interrogatory put her on notice to provide more information.
On the continuance motion, filed after a May 16, 2025 tornado struck the area, the court held denial was not an abuse of discretion. Fishback only speculated that jurors might be prejudiced; she presented no concrete evidence. Voir dire questioning was sufficient to ensure impartiality, and the five-year-old case with multiple continuances needed to proceed.
The court also rejected Fishback’s argument that the jury verdict lacked evidentiary support. Even without excluded expert testimony, Fishback presented other evidence, and defendant provided sufficient evidence to meet the preponderance of evidence standard.
Key Takeaways
- Expert disclosures must specify the substance of facts and opinions and detailed grounds for each opinion—listing only names and conclusory statements is insufficient and can result in complete exclusion.
- Courts uphold expert exclusions for discovery noncompliance even when imposed close to trial, particularly where the noncomplying party had multiple opportunities to cure.
- Courts will not grant continuances based on speculative jury prejudice from external events; counsel must show concrete evidence of actual bias, and voir dire is generally sufficient to ensure impartiality.
- In civil cases governed by preponderance of evidence, exclusion of one party’s expert testimony does not necessarily preclude that party’s case if other evidence supports the verdict.
Why It Matters
This decision reinforces strict compliance requirements for expert discovery in construction defect and contract breach litigation. Attorneys must ensure every expert disclosure identifies the expert, states subject matter, and provides the substance of facts and opinions with detailed grounds—not merely general conclusions. Vague or incomplete disclosures can be fatal even if filed well before trial, and courts will not excuse compliance failures based on technicality arguments.
The ruling also establishes a high bar for obtaining continuances due to external events affecting jurors. Counsel cannot rely on speculation about prejudice; courts expect specific showings of actual bias and view voir dire examination as an adequate safeguard. For practitioners handling construction cases, this decision emphasizes that strict adherence to discovery deadlines and specificity requirements is essential—compliance gaps cannot be cured by last-minute motions or appeals.