Shelak v. White Motor Co.

ALVIN B. RUBIN, Circuit Judge,

dissenting in part:

Although I concur in all of the other portions of the opinion, I must dissent from the result reached with respect to retrial on the issue of damages. My brethren order a new trial in essence because the trial judge refused to grant a continuance as a result of the failure of plaintiff’s counsel to reply adequately to discovery interrogatories. They rely on their reading of the record. I do not read it quite the same. But my difference is not predicated on the record alone; it is based in the first instance on using the record as the sole basis to evaluate whether the trial judge abused his discretion in a matter relating to the granting of a continuance because the party allegedly was surprised by an issue or the appearance of a witness.

Both the granting or denial of a continuance 1 and the supervision of discovery 2 are procedural matters of the kind that we, 3 *1162 and other courts, 4 and commentators 5 have repeatedly said are subject to a wide range of discretion of the trial judge. The majority does not say in condemnatory terms that he abused that discretion; but they must have found him to have committed some major misjudgment. They require a new trial because two related matters had not been adequately or timely disclosed to the defendant’s counsel: the name of one expert and the issue whether the plaintiff’s claim for personal injuries included, in addition to a number of other ailments and traumas, a heart attack.

In matters relating to discovery of witnesses’ names, trial issues, surprise, and pretrial preparation, the record, in any case, reveals only part of what happens. Counsel are encouraged to, and do, communicate information to each other informally. My brethren acknowledge in footnote 4 of their opinion that there is a factual dispute concerning when the plaintiff first gave the defendant verbal notice of the name of the medical expert. They assume that plaintiff’s counsel devoted himself diligently to the case for two years; perhaps they assume also that defense counsel did. They assume that “five or six days, two of which fell on a weekend” was not adequate time “to prepare to defend against the physician’s testimony.”

I cannot join in their assumptions, or in their action in the face of a dispute about the facts that was never presented to the trial court. Based on my own experience, I think I know how much time an experienced lawyer would need to prepare for the testimony of one witness, even a surprise one; certainly, the record shows no effort by defense counsel to prepare in the time available. The issue was a simple one; it required cross-examination of the plaintiff’s medical expert on what was essentially a theoretical (if not hypothetical) question and the possible summoning of an expert who would testify for the defense. Moreover, the defendant had taken the deposition of Dr. Allan Price, a specialist in internal medicine, and he had been examined at least in part on the heart attack question.

As appellate judges, I do not think we should decide how long this would require on the basis of our own experience dehors the record. But I suspect that evidence (including our own experiences) could be adduced that lawyers willing to make the effort have, in an emergency, been able to prepare on such a limited issue in five or six days, albeit at the sacrifice of more pleasurable weekend activities, and the putting aside of all other work. No lawyer likes to be so pressed, and, in usual circumstances, none should be; but the time interval was not so brief as to make preparation manifestly impossible. At least the trial judge did not think so.

In a sincere demonstration of its concern for trial courts, the majority further assumes that the trial judge “finally found a chance to try a civil case” and that he was “understandably, reluctant to suppress the heart attack evidence” or to “postpone the plaintiff’s relief to an indeterminable point in the future” (majority opinion footnote 5).

These also are assumptions, though they are obviously made out of generous and understanding hearts. If we turn to the *1163 record, we find that on December 28, 1975, the court assigned the case for trial “on the jury docket for the next term of the Court on March 22, 1976.” The case was in fact reached on that docket.

The record demonstrates far more: on September 25, 1974, the trial court ordered all discovery to be completed by February 28, 1975. In the next five months the only discovery taken was defendant’s propounding 27 interrogatories to the plaintiff (ten days before the cut-off date), and its noticing of the plaintiff’s deposition (eight days before the cut-off date). Then the plaintiff moved for a continuance stating, “due to a misunderstanding between counsel for Plaintiff and Defendant, no discovery work has been done in this case by either side.”

This was followed by a hearing. The trial judge to whom the case was then assigned stated to counsel:

“This type of motion meets with the utmost disapproval of this court. I cannot understand for the life of me how there could be such a mistake between the attorneys that there would have been no discovery done.”

Nonetheless, on March 20, 1975, he amended the court’s omnibus order to extend the time for discovery to August 1, 1975, and ordered a jointly prepared pre-trial order to be filed by August 22, 1975. Trial was set for September 8, 1975.

Thereafter, the plaintiff answered the interrogatories. In his answer to a question that asked him to list all doctors who had treated him “for injuries suffered on or about June 8, 1972,” he listed eight doctors, including a cardiologist.

A number of medical reports were attached to the answers. These included a report by Dr. DePetris regarding heart disease. There was also a report by Dr. Price with respect to the plaintiff’s hospitalization, listing as final diagnosis, inter alia, “(2) Hypertensive Cardiovascular Disease, controlled (3) Arteriosclerotic Heart Disease with Previous Myocardial Infarction.” The hospital record includes a report by Dr. Brian Baldwin, reciting in part:

“The patient says he enjoyed his usual good state of health until June, 1972, while on a trip on his truck through Tennessee on route to Harrisburg, Pennsylvania, he slipped on a broken step on the truck and over the next four to five days had progressive incapacitating back pain. This was felt to be secondary to a disc. On 13 June, 1972, approximately five to six days following his mishap with the truck, he had the onset of upper chest burning which radiated to his neck and gave him a grossly choking feeling. He was taken to a hospital and was found to have an anterior septal myocardial infarction. He remained in the hospital for 21 days and apparently had an uncomplicated course. Prior to that time the patient gave no history compatible with angina pectoris and since that time has had no history compatible with angina pector-is.”

On May 28, 1975, the deposition of Dr. Allan Price was taken by defendant. During the cross-examination, at page 19 of his deposition and continuing for several pages the witness was questioned about a report that, on June 13, 1972, “approximately five to six days following his mishap with the truck, he had the onset of upper chest burning which radiated to his neck and gave him a grossly choking feeling.” The doctor testified that it was possible the plaintiff then had “angina pectoris.”

In view of these events, it is evident that the defendant must at least have had actual knowledge that the plaintiff had suffered a heart attack “five to six days” after the fall from the truck step and should have surmised that his lawyer was making some effort to attribute the etiology of this to the product liability claim.

Moreover, on November 10,1975, the parties moved for a continuance of the trial date “to do additional discovery.” The case had meanwhile been allotted to another judge, and he granted the motion, making the March assignment at which the case was in fact heard. Unaccountably the parties did not file the pre-trial order until March 29, 1975.

*1164 There have been many justified complaints about the misuse of discovery. 6 The docket sheet demonstrates that, in this case as in most, 7 discovery was abused primarily by non-use. 8 There were long intervals of hibernation time in which both lawyers let the case lie dormant. Of course, the case could and should have been better prepared on both sides. An experienced trial judge who knew each of the lawyers and was familiar with the case that had been pending in his court over two years was satisfied that the defendant was not so prejudiced by events as they occurred as to warrant a further continuance of the trial. It takes many assumptions, and some disregard of the record, to find him in error. I do not consider his action to constitute an abuse of the discretion imparted to him. It solaces nothing but conscience to recite that, as a result of inexorable circumstance beyond our appellate control (see majority opinion footnote 3), a new trial must be commenced six years after the plaintiff’s injury.

APPENDIX

CHRONOLOGY OF EVENTS

June 8, 1972

June 4, 1974

September 25,1974

February 18,1975

February 20,1975

March 12,1975

March 14,1975

Date of Injury Complaint Filed

Omnibus Order with respect to discovery, ordering all discovery completed by February 28,1975.

Defendant propounded 27 interrogatories to plaintiff.

Notice by defendant to take deposition of the plaintiff.

Motion by plaintiff for a continuance stating, “due to a misunderstanding between counsel for Plaintiff and Defendant, no discovery work has been done in this case by either side.”

Hearing on motion for continuance. The trial judge to whom the case was then assigned, William Wayne Justice said to counsel:

“This type of motion meets with the utmost disapproval of this court. I cannot understand for the life of me how there could be such a mistake between the attorneys that there would have been no discovery done.”

*1165 March 20,1975

April 14,1975

April 21, 1975

May 28,1975

June 5,1975

June 24,1975

July 1,1975

September 11,1975

October 21,1975

November 10, 1975

December 12,1975

Amended omnibus order with respect to discovery, requiring all discovery to be completed by August 1, 1975 and a jointly prepared pre-trial order to be filed by August 22,1975.

Trial was set for September 8,1975.

Defendant’s motion to dismiss for plaintiff’s failure to answer interrogatories.

Plaintiff’s answers to interrogatories. Answer No. 1 listed 8 doctors who had treated plaintiff “for injuries suffered on or about June 8,1972,” including a cardiologist._

The attached medical reports included a report by Dr. De-Petris regarding heart disease.

The report did not relate the heart disease to the step episode.

There was also a report by Dr. Price with respect to hospitalization, listing as final diagnosis, inter alia, “(2) Hypertensive Cardiovascular disease, controlled, (3) Arteriosclerotic Heart Disease with Previous Myocardial Infarction.”

The hospital record includes a report by Dr. Brian Baldwin, reciting in part:

“The patient says he enjoyed his usual good state of health until June, 1972, while on a trip on his truck through Tennessee on route to Harrisburg, Pennsylvania, he slipped on a broken step on the truck and over the next four to five days had progressive incapacitating back pain. This was felt to be secondary to a disc. On 13 June, 1972, approximately five to six days following his mishap with the truck, he had the onset of upper chest burning which radiated to his neck and gave him a grossly choking feeling. He was taken to a hospital and was found to have an anterior septal myocardial infarction. He remained in the hospital for 21 days and apparently had an uncomplicated course. Prior to that time the patient gave no history compatible with angina pectoris and since that time has had no history compatible with angina pectoris.”

Deposition of Dr. Allan Price was taken by defendant. During the cross-examination, at page 19 of his deposition and continuing for several pages the witness was questioned about a report that, on June 13, 1972, “approximately five to six days following his mishap with the truck, he had the onset of upper chest burning which radiated to his neck and gave him a grossly choking feeling.” The doctor testified that it was possible the plaintiff then had “angina pectoris.”

Interrogatories propounded by defendant to intervenor.

Defendant’s notice of taking deposition upon written questions (Dr. Robert A. Callewart)

Defendant’s notice of taking deposition of Transcon Lines, Inc.

Transport Indemnity Company’s answers to interrogatories.

Defendant’s notice to take deposition of Joe E. Banker.

Joint motion for a continuance to do additional discovery.

Notice to take deposition of Transcon Lines, Inc. by written questions.

*1166 December 29,1975

March 29,1976

March 29, 1976

Order taking case from docket of November 10, 1975, and resetting on the jury docket for “the next term of the Court on March 22,1976.”

Motion to exclude testimony.

Pre-Trial Order.

. A thorough computer canvass of the authorities since 1945 reveals only one case involving similar circumstances in which an appellate court has determined that the failure to grant a continuance was an abuse of discretion. The majority’s opinion only seems to disprove the addage concerning the probability of lightning repeating its performance. Indeed, this bolt has a less likely target; in Nutt v. Black Hills Stage Lines, Inc., 8 Cir. 1971, 452 F.2d 480 , an abuse of discretion for failing to grant a new trial was found, but the plaintiff was first examined by a neuropsychiatrist on the day before trial and the defendant did not learn of his claim of traumatic neurosis until the commencement of the trial itself. For other bolts in the vicinity, see Anzaldo v. Croes, 8 Cir. 1973, 478 F.2d 446 , where the court reversed for failing to grant a continuance to allow the defendant to cross-examine a doctor whose report had been erroneously admitted into evidence notwithstanding an initial ruling against its admissibility, and Sutherland Paper Co. v. Grant Paper Box Co., 3 Cir. 1950, 183 F.2d 926 , cert. denied, 1950, 340 U.S. 906 , 71 S.Ct. 281 , 95 L.Ed. 655 (inadequate time for preparation permitted).

Of course, an abuse of discretion has been found in cases where a party or someone else vital to the case has become unavailable due to illness. See Gaspar v. Kassm, 3 Cir. 1974, 493 F.2d 964 , and cases cited therein (ill defendant); Latham v. Crofters, Inc., 4 Cir. 1974, 492 F.2d 913 (attendance by party would prove dangerous to his health); Robertson v. Malone, 5 Cir. 1951, 190 F.2d 756 (no counsel and ill witness); Cornwell v. Cornwell, 1941, 73 U.S.App.D.C. 233 , 118 F.2d 396 ; Annot., Unavailability or Absence of Party As Ground of Continuance in Civil Case in Federal Court, 4 A.L.R.Fed. 929 (1970); Annot., Continuance of Civil Case Because of Illness or Death of Party, 68 A.L.R.2d 470 (1959); Annot., Party Litigant’s Absence in Civil Case Because of Illness of Relative or Member of Family, as Grounds for Continuance, 47 A.L.R.2d 1058 (1956).

Additionally, the unavailability of counsel may result in a finding of abuse of discretion for failure to provide a continuance. See United States v. 9.19 Acres of Land, More or Less, 6 Cir. 1969, 416 F.2d 1244 . See also cases collected in Annot., Continuance of Civil Case Because of Illness or Death of Counsel, 67 A.L.R.2d 497 (1959); Annot., Withdrawal or Discharge of Counsel in Civil Case as Grounds for Continuance, 48 A.L.R.2d 1155 (1956).

. Imperial Ethiopian Gov’t v. Baruch-Foster Corp., 5 Cir. 1976, 535 F.2d 334 ; Bums v. Thiokol Chem. Corp., 5 Cir. 1973, 483 F.2d 300 ; Baker v. F & F Inv., 2 Cir. 1972, 470 F.2d 778 , cert. denied, 1973, 411 U.S. 966 , 93 S.Ct. 2147 , 36 L.Ed.2d 686 ; Brown v. Thompson, 5 Cir. 1970, 430 F.2d 1214 .

. Industries, Investments & Agencies (Bahamas) Ltd. v. Panelfab Int’l Corp., 5 Cir. 1976, 529 F.2d 1203 , 1213; Cash v. Murphy, 5 Cir. 1963, 339 F.2d 757 ; Peckham v. Family Loan Co., 5 Cir. 1959, 262 F.2d 422 ; cert. denied, 1959, 361 U.S. 824 , 80 S.Ct. 70 , 4 L.Ed.2d 68 ; Robertson v. Malone, 5 Cir. 1951, 190 F.2d 756 . See also Commercial Credit Corp. v. Pepper, 5 Cir. 1951, 187 F.2d 71 .

. Ungar v. Sarafite, 1964, 376 U.S. 575, 589 , 84 S.Ct. 841, 849 , 11 L.Ed.2d 921 ; Humble v. Mountain State Constr. Co., 6 Cir. 1971, 441 F.2d 816 ; Sacharow v. Vogel, 2 Cir. 1970, 428 F.2d 1389 ; Pingatore v. Montgomery Ward & Co., 6 Cir. 1970, 419 F.2d 1138 , cert. denied, 1970, 398 U.S. 928 , 90 S.Ct. 1818 , 26 L.Ed.2d 90 ; Winston v. Prudential Lines, Inc., 2 Cir. 1969, 415 F.2d 619 , cert. denied, 1970, 397 U.S. 918 , 90 S.Ct. 926 , 25 L.Ed.2d 99 ; Jude v. Prudential Ins. Co. of America, 6 Cir. 1969, 407 F.2d 955 ; Community Nat’l Life Ins. Co. v. Parker Square Savings and Loan Assc., 10 Cir. 1969, 406 F.2d 603 ; Commercial Union Ins. Co. v. Gonzalez Rivera, 1 Cir. 1966, 358 F.2d 480 ; Williams v. Nichols, 4 Cir. 1959, 266 F.2d 389 ; Johnston v. Jones, 3 Cir. 1949, 178 F.2d 481 ; Fook v. United States, 1947, 82 U.S.App.D.C. 391 , 164 F.2d 716 , cert. denied, 1948, 333 U.S. 838 , 68 S.Ct. 608 , 92 L.Ed. 1122 .

. 6A Moore’s Federal Practice ¶ 159.15[3], at 59-289 (2d ed. 1974); 11 Wright & Miller, Federal Practice and Procedure: Civil §§ 2803 and 2805 (1973); Annot., Prejudicial effect, in Civil Case, of Denial of Continuance to Call Nonappearing Witness Whom Adversary had been Expected to Call, 39 A.L.R.2d 1445 (1955).

. See, e.g., Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation, American Bar Association, October, 1977.

. See Connolly, Holleman, and Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery, District Court Study Series, Federal Judicial Center, 1978, p. 28, et seq. In 52 percent of the cases studied, there were no recorded discovery requests. In 72 percent of the cases studied, there were no more than two such requests. At page 35, the authors state: “. . . these data do not directly address the question of discovery abuse. It is possible for a single discovery request to be abusive, as it is possible for sixty-two requests to be appropriate, relevant, and facilitative in the just disposition of a particular case. The data do suggest, however, that discovery abuse, to the extent its exists, does not permeate the vast majority of federal filings. In half the filings, there is no discovery — abusive or otherwise. In the remaining half of the filings, abuse — to the extent it exists — must be found in the quality of the discovery requests, not in the quantity, since fewer than 5 percent of the filings involved more than ten requests.”

. As pointed out, from June 4, 1974, when the complaint was filed, until February 18, 1975, no discovery at all was taken. On the eve of the first cut-off date the defendant propounded one set of interrogatories and noticed one deposition. In May, the defendant took one deposition. In June the defendant propounded 5 interrogatories to the interviewer, and took a doctor’s deposition on written questions. It thereafter took a deposition of the plaintiff’s employer, and a deposition of one witness.