Petition — Smith v. Ford Motor Co.
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| Supreme Court, U.S,
FILE D
80-973 ORC 15 1980
DAK, JR, CLERK |
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
JOHN H. SMITH,
Petitioner
V.
FORD MOTOR COMPANY.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
John R. Hursh
Central Wyoming Law Associates, P.C.
105-107 South 6th East
Riverton, Wyoming 82501
G. L. Spence
Spence, Moriarity & Schuster
Post Office Box 554
Jackson, Wyoming 83001
Counsel fox-Respoudents
December 1980
Custom Printing Service 856-9618 1900 E. Park — Riverton, Wy 82501
QUESTIONS PRESENTED FOR REVIEW
Should this Court, exercising its power to regulate pre-
trial procedures in the district courts, determine a uni-
form pretrial procedure in order that trials will be uni-
formly expedited to the end that litigants, for insub-
stantial procedural requirements, not be deprived of their
cases by undue delay.
In a civil case should the Circuit be permitted to reverse
a case based on insubstantial procedural requirements
for the pretrial conference contrary to the rulings in
other circuits, and of the United States Supreme Court,
when to do so will cause petitioner to retry his case
nearly ten years after injury, the result of which would
be to deprive the petitioner of a speedy civil trial, as
guaranteed to him by the Wyoming State Constitution,
as well as to deprive him, because of such delay, of the
right to prove any case, now lost by such unconscionable
passage of time?
Should this Court, recognizing its clear duty to exercise
supervisory control over the circuit courts to insure
speedy justice recognizing further that specifically in
the Tenth Circuit the back-log of cases exceeds one
thousand, and leaves litigants waiting over two years
for some decisions, take “the bull by the horns” and lay
down rules, guidelines, work-load requirements and ex-
pectations for circuit judges and take such other steps
as in the wisdom of this Court might better insure parties
to speedy trials in civil as well as criminal cases.
(i)
ru
4
LIST OF PARTIES
The Petitioner is John H. Smith of Dubois, Wyoming.
The Respondent is Ford Motor Company of Dearborn, Michigan.
(ii)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW............. (i)
ee Ee eT Ck ick Rats WS OES eee kK RDO (ii)
Re NN 655.6 5 a OR ae Cage Ren bee hie (iii)
Py Ba gd. 2 ee ee’ Per eee rete (iv)
POCO ka wick yea tava c occ nene hens eae 2
Rs VS 0G aw h.ca 5 hte eka es Pu ys Pee eee 2
PE OPEN M WINS 5 6 ibe deer en ech ep eetnieestas 2
Sf igs 2 ge Be he \ Se Pera rie ieee 2
Background — Proceedings ...........++-eeeeeeee 2
REASONS FOR GRANTING WRIT............000056: 6
a; ONIN oo WPS deaco'p sia bea nic -wpete nie Wipe 8 del 6
11. Pretrial procedure should not be transformed into
a system of “mini trials” that directly contribute
to the delay and “‘log-jammed”’ dockets in Federal
IEE SANE bo sis bl ie ees Cee oe low ands wes 8
111. Federal District Courts should be encouraged in
their effort to adopt efficient pretrial procedures 11
NE Xs vee b> dea eae eden Rahn Ss AA's 00s 16
APPENDICES:
PUT HRS Re 4D hope Pen eh ae Faeroe ees la
PIE Gie.c 5.4 5055 NEO boob ah iiehe take 1b
PEG hc ai 20 eRe es dk tT ener ans Ic
(iii)
TABLE OF AUTHORITIES
Cases:
Agrashell, Inc. v. Hammonds Products Company
re ee ee GN; FU TSTs vod aes cacasbine
Berger v. Brannan
Se rc eee es Te nek os Keen cance
Case v. Abrams
Sos Oe Tae GE, POs a vc Sie sewed esi wes
Century Ref. Company v. Hall
i ae gh a a GA ere oe
Coffey v. U.S.
SIS FO Oe LUCy POOEI i eo oc i oc caw caess
Compagnie National Air France v.
Port of New York Authority
RAE Ec ee ee, TROD bs 5 0'n oo Cease cannes
Cruz v. U. S. Lines Company
306 F. 20 OGs Cane Cir. 1967)... ccc cite cees
Davis v. Duplantis
ce at of fo Oe Ay | Ree Pern ea
Delava Turbine, Inc. v. West India Industries
rt a ko a | ree rer
Edgar v. Slaughter
eg oe Ry Te | yy) Sr ec
Ely v. Reading Company
ee Ci Te I ls MIP IIIN 6.» ov a's 0's aie’ n eo bans
Fox v. Ford Motor Company
See Fe als UTE, «vn iecs'es vcd duane
Globe Cereal Mills v. Scrivener
240 F. 2d 330 (10th Sed s 6 eGo ko 08
Identiseal Corp. of Wisconsin y.
Positive Identification
Pe se ee CP SOE a ko Se kaha D aN ce dens
Cases continued Page
Jones v. Union Auto Indemnity Association
i £m Shi ot: me | Gee 10, 14
Kozar v. Chesapeake & Ohio Ry. Co.
320 F. Supp. 335, 374 (D.C. Mich. 1970) ......... 14
Link v. Wabash Railroad Company
a EURO 0%, 5-00.44 5 0409 4d meee omen 5,9, 11
Lynn v. Smith
it me bg Le Oe, rn errs 13
Marks & Company v. Diners Club, Inc.
400 F. Supe. $81 (D.C. NY 1975S)... 2. cence: 14
Monod v. Futura, Inc.
415 F. 2d 1170 (10th Cir. 1969)... 2... ee ee 10, 14
Moore v. Sylvania Electrical Products, Inc.
Car ee SU Ps WUMIL soa av cvs wales eQaue’ 13
Myers v. Penney Packwoods Home
Ownership Association
gg Gl pr ee 11
McCargo v. Hendrick
ee. Oe ON ol. PPPOE: win n dnc ms Wa dawe 5,9
National Farmers Organization Inc., v. Oliver
ee ee Pe ie FPR. x os « bain we oa edas 13
Osborne v. Boeing Airplane Company
ee a , A a Ce GAN. WUE 5 so sv cnccuncccnsaes 15
Padovani v. Bruchhausen
293 F. 2d 546, 548-49 (2nd Cir. 1961)............ 9,13
Pan-American Gas Co. v. Reed
ge BR a a.) are 14
Payne v. S. S. Nabob
og Beg ee te. ee 14
Peter Eckrich & Sons, Inc. v.
Selected Meat Company
Ee ae SE CTO GE. URED 5 whoa cw os tcwerces 14
(v)
?%
Cases continued Page
Reedy v. Travelers Insurance Company
500 F. 2d 1117 (Sth Cir. 1974).......... aeere ote 15
Rodriequez v. Ripley Industries, Inc.
DOT Fy ee Fe CUTTER oo hive ce cc cscpenews 15
Sedowski v. Bombadier Ltd.
SOG Ee PEE: BOTIEy cha b ac pewieoceeses 14
Silas v. Sears, Roebuck & Co., Inc.
Be ee ee CETTE + beh siviecs ode de eaus 9
Simonsen v. Parlo Plastics Company
UW, ee OOM BUTE Docs chs cscceccese ees 14
Spellacy v. Southern Pacific Company
ee a ane 13
Stewart v. Meyers
Re Pf a Se Sa 14
Stroud v. B-W Acceptance Corp.
eh ee 3 Fe Y | re 10, 14
Syracuse Broadcasting Corporation v. Newhouse
Be Oc Oe I Gale POTD cv vikiciccs cea sciceace 12, 13
U. S. v. Pirnie
Pe te TA I FOES ack dRo died caweasss 14
Washington Hosp. Center v. Cheeks
eg ee ea RL EIU. 6 6 ao obs 00 Oks eee ote 14
Washington State Bowling Proprietors
Association v. Pacific Line, Inc.
SOO Fe ee AEN, COIs Keen seewueeccbe's 12
Wright Root Beer Co. v. Dr. Pepper Co.
PST. MEE GUT. CIID. cdc ccencarerses 14
(vi)
Statutes
Federal Rules of Civil Procedure Rule 16.........
Wyoming Constitution, Article |, Section 8.........
ee eT ea ar rea da eeat
Miscellaneous
HANDBOOK FOR EFFECTIVE PRETRIAL
ae RS ee ee ee ee ee eee ae
3 J}. MOORE, FEDERAL PRACTICE
Eg Be ee | Re ere
JOURNAL OF SECTION OF LITIGATION, ABA
Val. 6, No. 3, 0. 34 Goring 1960)... cic ec ccc cees
4 JUSTICE SYSTEM JOURNAL
re eo oui dcs see ees ewe eAS
64 VA L REV 467-83 (Ap. 1978).............4-.
(vii)
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
No.
JOHN H. SMITH,
Petitioner
Vv.
FORD MOTOR COMPANY,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
John H. Smith hereby respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The majority and dissenting opinions of the Court of Appeals
(App. A, infra) are reported ai 626 F. 2d 784.
A 1978 decision of the Court of Appeals in a related case
against Ford Motor Company is reported at 575 F. 2d 774.
After a ten day Jury Trial, a verdict of $800,000 was ren-
dered for the Petitioner. Judgment was entered and Notice of
Appeal filed by Ford Motor Company on July 18, 1978. After
consideration for two years, the Court of Appeals reversed and
remanded for new trial on July 17, 1980. A timely Petition for
Rehearing with a Suggestion for Rehearing En Banc was denied
by the Court of Appeals on September 16, 1980. (App, B,
infra).
JURISDICTION
The Judgment of the Court of Appeals was entered on
July 17, 1980. The Petition for Rehearing was denied on
September 16, 1980. Jurisdiction of this Court is premised on
28 U.S.C. 1254(1).
STATUTE INVOLVED
1. Rule 16, Federal Rules of Civil Procedure.
2. Wyoming Constitution, Article |, Section 8.
STATEMENT OF THE CASE
Background — Proceedings
This Petition has resulted from the ruling by the Tenth
Circuit Court of Appeals remanding this case for retrial simply
because the Circuit Court, substituting its discretion for the
District Court, believed that the summary of a witness’ ex-
pected testimony in a pretrial memorandum was insufficient.
This decision was reached in spite of the fact that the presiding
trial judge, the Honorable Clarence A. Brimmer, in the exercise
of his discretion, found that the Defendant was not surprised
and that the pretrial procedures in the district for summarizing
testimony had been followed. Even though the Court of Ap-
peals did not find that Judge Brimmer had abused his dis-
cretion, they substituted their discretion fur his, reversed a
jury verdict of $800,000 and remanded it for a new trial, with
Judge Doyle dissenting.
The case was a products liability case for which both sides
were well prepared. Petitioner John Smith was a passenger in
the front seat of a 1970 Ford Thunderbird which was struck by
a pickup truck outside the town of Dubois, Wyoming on Jan-
uary 29, 1973. Although it was a relatively low-speed accident,
Mr. Smith received serious permanent injuries, and the passen-
gers in the back seat were killed. The injuries to the back seat
passengers and to Mr. Smith had two common aspects. First,
they were all severe. Second, the injuries were to the organs
that lay within the soft abdominal section of their bodies.
Upon investigation, it was learned that the injuries were caused
by the fact that the seat belts had been defectively installed
in the vehicle. Those defects greatly magnified the forces of
collision upon the passengers.
Mr. Smith’s lawsuit against Ford Motor Company was the
second of two trials against Ford. The first case was a wrongful
death action for the passengers in the back seat. It was tried
before a jury in same Federal District Court, and resulted in
a jury verdict against Ford due to the defective seat belt instal-
lation. The case was appealed by Ford to the Tenth Circuit
Court of Appeals, and verdict was sustained. Fox v. Ford Motor
Company, 575 F. 2d 772 (10th Cir. 1978).
Mr. Smith, a surviving husband, filed his lawsuit in the
United States District Court for the District of Wyoming on
July 30, 1976. The attorneys representing both parties were
the same attorneys who had represented the parties in the
companion case, and both cases alleged that the seat belts in
the Ford Thunderbird were defective. Likewise, as in the com-
panion case, the jury rendered its verdict against Ford, in this
case in the amount of $800,000. In total, the attorneys repre-
senting the parties in the two cases spent six years in discovery,
preparation, trials, and appeals. Liability against Ford was
=,
Ae,
established by two separate trial juries. At both trials, the ex-
pert witnesses were essentially the same: the medical expert
for Ford was the same; Plaintiff’s engineering expert was the
same; the seat belt assembly, in part, was asserted to be the
cause of the injuries in both cases.
At Mr. Smith’s trial, his treating physician — Dr. James
Freston — testified as to the treatment he afforded Mr. Smith as
well as to the prognosis that he foresaw for Mr. Smith. Dr.
Freston was a department head at the University of Utah
School of Medicine, and Mr. Smith’s doctor in Montana had re-
ferred him to Dr. Freston’s care. He was not a so-called “hired
expert” but was, instead, a specialist who had been sought out
by Mr. Smith’s own doctors. Dr. Freston first saw Mr. Smith in
January of 1978, and when Mr. Smith’s counsel first learned
of that referral they notified counsel for Ford. This notification
coincided with the scheduled pretrial conference in the case on
January 24, 1978 and Dr. Freston was listed by Plaintiff in that
memorandum as an expert witness to testify and his involve-
ment in the treatment of Mr. Smith was explained in some
detail on the record at the pretrial. Ford was advised that Dr.
Freston had just become the treating physician and that he had
scheduled surgery for the very week the pretrial was held. Even
in light of this advice Ford chose not to depose Dr. Freston,
even though they had two and one half months in which to do
so. The trial commenced March 29, 1978, and the verdict
against Ford was rendered April 11, 1978.
At the trial, Dr. Freston was called pursuant to his pretrial
designation. As part of his diagnosis he was asked if he had an
opinion as to what caused the injuries to Mr. Smith. He gave
his opinion that the injuries were caused by the accident. When
asked for more details, Ford objected, claiming surprise that the
treating physician in a products liability case concerning seat
belts might testify that the injuries were caused by the seat belt.
The trial court, in the sound exercise of its discretion, found no
factual basis for the claim of surprise, overruled the objection,
and allowed the testimony. Dr. Freston then testified that the
injuries to Mr. Smith were caused by the seat belt. He did not
testify as to whether the seat belts were defective! ; he merely
gave his medical opinion that the seat belts caused the abdom-
inal injuries.
The Court of Appeals, over a very strong dissent, ruled that
the opinion should not have been allowed. Mr. Smith requested
a rehearing with a suggestion for an en banc panel, pointing out
that the Court of Appeals had substituted its own discretion for
that of the trial court’s even though it had not found that the
trial court abused its discretion. The ruling by the Court of
Appeals which substituted its discretion for that of the trial
court’s on pretrial procedure is contrary to this Court’s holding
in Link v. Wabash Railroad Company, 370 U.S. 626 (1942) and
contrary to the decisions reached by other Circuit Courts.
McCargo v. Hendrick, 545 F. 2d 393 (4th Cir. 1976), and
Davis v. Duplantis, 448 F. 2d 918 (Sth Cir. 1971). The Court of
Appeals denied the petition for rehearing.
This accident occurred January 29, 1973. An earlier trial
on basically the same facts had already occurred. This case has
been pending in the District of Wyoming since July 30, 1976,
and it has been the subject of pretrial conferences, many
depositions, a ten-day jury trial, and an_appeal to the Tenth
Circuit that took over two years from trial to appeallate de-
cision. Now, because of a listing in a pretrial memorandum that
the Court of Appeals found to be insufficient (although the trial
court found to be in compliance with the pretrial procedure),
the case was scheduled to return to the docket of the District
Court for still another pretrial conference and yet another trial.
The new pretrial conference will not be a standard pretrial, but
will, instead, be ai elaborate, time-consuming “mini trial’. This
result, quite simply, is a manifest injustice to Mr. Smith, which
will further exacerbate the already mounting logjam of pending
cases.
1. It should be noted that the Court of Appeals in their opinion mis-
quoted Dr. Freston on having said the seat belts were defective and
emphasized said statement by underlining the word ‘defective’. This
testimony did not occur and is not in the Record.
REASON FOR GRANTING THE WRIT
|. Justice Delayed:
In criminal cases this Court by decision and by rule has
always insisted on the right of a person to speedy trial. This
right comes from the Sixth Amendment of the United States
Constitution. The reasoning and rationale for speedy trials in
criminal cases is obvious, meritorious and need not be set forth
herein.
The reasoning and rationale for speedy trials, and the speedy
administration of justice, in civil cases is as obvious and meri-
torious. Civil cases, which are generally not timely investigated,
must be reconsiructed and the passage of time is generally the
worst enemy of injured plaintiffs even in the best of cases. The
difficulty in meeting the burden of proof imposed upon a
plaintiff in a civil case which occurred on January 29, 1973
and which is sent back for a new trial in September of 1980 is
quite apparent. The appeal in this case took over two years.
If the Tenth Circuit’s opinion is allowed to stand and the case
goes back for a new trial it is likely that it will be almost ten
years from injury to trial. This time span is clearly unconscion-
able, may cause plaintiff to lose his very case, and should not be
permitted.
Heretofore, to our knowledge, no citizen has raised the
question of a constitutional right to speedy trial in a civil case.
But the Constitution of the State of Wyoming in Article 1,
Section 8, states in part:
“All Courts shall be open and every person for an injury done
to person, reputation or property shall have justice adminis-
tered without sale, denial or delay”. (our emphasis!
Therefore, John Smith has such a constitutional right, and
the Federal Courts must give full faith and credit to this sub-
stantive right. The Federal Constitution has not preempted this
right, it is a right reserved for the people and for the states. The
State of Wyoming has chosen to give this right to Wyoming
people involved in civil disputes. Moreover, while all states may
not have guaranteed such a right to their citizens, it is a right
of such magnitude that this Court should declare the same for
all citizens of all states.
The Circuit Court violated the constitutional right of the
Petitioner, denied him equal protection and the delay will
result in a denial of due process. If a retrial is required, it will
be next to impossible for Petitioner to meet his burden of
proof. This is not because Petitioner’s case has no merit since
the facts of this case have resulted in two Plaintiffs’ verdicts.
This impossibility is due to the unnecessary and unjustified
delay of the Court System itself.
By granting the Petitioner’s Writ, this Court may be heard
throughout the judicial system on this important issue con-
cerning the speedy administration of justice in civil cases.
Drastic remedies for this illness have been suggested in congress.
Yet, this Court is in a unique position to remedy this serious
illness in its own domain. Congress may act and promulgate
procedures which are unworkable and which may well cripple
our system of justice. But this Court can, if it will, cure this
“cancer”. This case »rovides a look at the whole seriously ill
patient. We ask th. Court to take this patient, cure him, and
set forth guidelines that will tend to cure the illness of delayed
justice.
How do cure this illness? We are not presumptious enough
to say. We don’t know. The spokesmen of this Court, as well
as other scholars, have voiced remedies for the backlog, for the
congestion, for the inefficiency. This case provides a forum
from which these remedies can become realities. Guidelines
that will provide confidence and assurance in the District and
Appellate Courts can flow from a decision in this case. If the
Writ is granted: this Court can reassure the Trial Courts that
they have discretion in pretrial matters; set forth uniform
guidelines that will expedite the cases; set forth suggested time
tables that trial courts can utilize to stimulate counsel into ad-
vancing their cases expediently; set forth guidelines for Appel-
late Courts that not only stimulate counsel but stimulate the
hearing and decision making process and even expedite judicial
case loads. We ask the Court to write a prescription that will
cure this illness, that is not only result oriented but also that is
workable and reasonable. This case provides an opportunit;
for this Court to utilize its supervisory powers in a time of
need.
1. Pretrial procedure should not be transformed into a sys-
tem of “mini trials” that directly contribute to the delay
and “‘log-jammed” dockets in the Federal District Courts:
A significant amount of criticism has been directed at com-
plex pretrial procedures in Federal Courts. Central to this
criticism has been the delay created by the complex procedures.
The creation of “mini trials” under the guise of Rule 16 for
pretrial conferences has been a major manifestation of those
complex procedures. The criticism has emanated from the
judiciary as well as from the bar. See, for instance, Pretrial
Conference: A critical examination of local rules adopted by
federal district courts, 64 VA L REV 467-83 (Ap. 1978);
Pretrial Orders and McCargo v.. ilendrick: effective manage-
ment or unproductive formalism?, 4 JUSTICE SYSTEM JOUR-
NAL 245-59 (Winter 1978): Local Pretrial Rules in Federal
Courts, JOURNAL OF SECTION OF LITIGATION, ABA,
Vol. 6, No. 3, p. 34 (Spring 1980).
In the present case, the Court of Appeals eliminated the
pretrial procedure that had been established by the presiding
judge of the District Court. The procedure that had been
established by that Court was simple and concise under Rule
16, and the procedure contributed to the fact that this Federal
District has a docket that has traditionally been the most cur-
rent docket in the nation. Rather than encouraging this record,
the Court of Appeals has now mandated on its own a pretrial
procedure that is elaborate, detailed and complex. Designations
must now be so specific that a witness will not be permitted to
testify unless the actual facts and statements are explicitly
mentioned in the pretrial memorandum. This procedure greatly
expounds the length of the memoranda as well as the length
of the hearing, and it serves as a trap on appeal if a witness’
precise testimony has not been detailed in the pretrial memo-
randum.
The “mini trial” concept has been rejected by the Courts in
the Second, Fourth, Fifth, Seventh, and Eighth Circuits for the
reasons that ‘‘mini trials” are at odds with the concept of Rule
16 and at odds with the expeditious progress of cases within
the federal system. Padovani v. Bruchhausen, 293 F. 2d 546,
548-49 (2nd Cir. 1961); McCargo v. Hendrick, 545 F. 2d 393
(4th Cir. 1976); Silas v. Sears, Roebuck & Co., Inc. 586 F. 2d
382 (Sth Cir. 1978); Identiseal corp of Wisconsin v. Positive
Identification, 560 F. 2d 298 (7th Cir. 1977); Edgar v. Slaugh-
ter, 548 F. 2d 770 (8th Cir. 1977).
After this Court confirmed the discretion of the trial courts
in pretrial matters in Link v. Wabash Railroad Co., supra, some
districts began to create distinct and exceedingly complex
pretrial conference procedures. Thus, dual proceedings or
“mini trials’ began to evolve with severe sanctions for non-
compliance. In 1976 the Fourth Circuit in McCargo, supra,
struck down the “mini trial’? concept, thereby adding to the
precedent established by the Second Circuit in Padovani, supra.
The other circuits followed.
The Court in McCargo expressed the problems created by
“mini trials” very aptly:
“Good pretrial practice has also been described. It is always
simple. Professor Moore, for example, states that ‘ (t)he
chief purposes of the pretrial conference are. .. , to lessen
surprise at trial and the risk of prejudicial error, to conclude
stipulations on matters of evidence, and to promote settle-
ments. ’ 3 J. MOORE, FEDERAL PRACTICE §16.02, at
1106 (2d ed. 1974). The HANDBOOK FOR EFFECTIVE
PRETRIAL PROCEDURE, adopted by the Judicial Con-
ference of the United States in 1964, identifies the purpose
of pretrial procedure as being the ‘strip(ping of) each case to
its essential.’ The HANDBOOK states that this goal is a-
chieved by stipulating undisputed matters, specifying issues
with particularity, and formulating an efficient trial plan
so as to avoid technical objections and the introduction of
unnecessary evidence. 37 F.R.D. 255, 272 (1965). Local
Rule 2.08 is a distortion of such purposes. Simplicity has
been forgotten. The theory seems to be that if two pages are
good, four must be better, and ten or thirteen or twenty-one
may prevent a trial altogether, as happened here. . . .In fact,
it contemplates that the district judge himself will dictate
the pretrial order. Of course, the court may seek the aid of
counsel in preparing the order, .. .
Ours is an adversary system of justice. Local Rule 2.08
is inquisitorial in tone and purpose. In our system lawyers
worry about the whereabouts of witnesses. The court does
not. Lawyers worry about proof. The court does not — ex-
cept in the rare case of collusion. Lawyers get the case ready
for trial. The court does not. Local Rule 2.08 subordinates
the role of the lawyer to that of the administering magistrate,
reducing counsel to the role of clerical assistants who are to
anticipate imaginatively what other matters ought to be em-
braced within an endless pretrial order.”
Prior to the present case, the Tenth Circuit had decided a
number of cases that indicated a respect for the trial court’s
discretion in pretrial matters, as well as indicating a disdain for
complex and technical pretrial procedures. Berger v. Brannan,
197 F. 2d 241 (10th Cir. 1941); Jones v. Union Auto Indem-
nity Association, 287 F. 2d 27 (10th Cir. 1961); Monod »y.
Futura, Inc., 415 F. 2d 1170 (10th Cir. 1969); Case v. Abrams,
352 F. 2d 193 (10th Cir. 1965); Coffey v. U.S., 333 F. 2d 945
(10th Cir. 1964); Globe Cereal Miils v. Scrivener, 240 F. 2d 330
(10th Cir. 1956); Stroud v. B-W Acceptance Corp., 372 F. 2d
185 (10th Cir. 1967).
When presented with the instant case, however, the Tenth
Circuit overruled its earlier decisions concerning pretrial pro-
cedures and invokes the ‘‘mini trial’’ system as the rule of this
Circuit. In so doing, the Tenth Circuit Court of Appeals has
broken sharply with the developing precedent in other Circuits
at a time when the judiciary and the bar alike are becoming
more sensitive to the need for more efficient procedures in
federal courts.
The need for this Court to exercise its supervisory powers to
define the parameters of Rule 16 procedures is manifest.
The elimination of “Circuit directed mini trials’’ will expedite
the movement of cases to trial. This petition provides an ap-
propriate and timely mechanism to achieve the needed redefi-
10
nition of these procedures to eliminate the conflict that pre-
sently exists in the circuit courts. Such a ruling would not only
provide justice for the petitioner in this case, but it would also
be a positive step in the direction of achieving a more e/ficient
system of justice that would be less prone to delay and un-
necessary “‘logjams’’. In short, a decision in this case could
serve to facilitate the easy and rapid flow of cases through
the federal courts.
l11. Federal District Courts should be encouraged in their
effort to adopt efficient pretrial procedures.
Since this Court’s decision in Link, supra, it has been the
policy within the federal system that district courts are to be
afforded wide discretion in enforcing their pretrial procedures.
When a district court has adopted a simple and workable pre-
trial procedure, that procedure should not be lightly supplanted
by the Court of Appeals. In the present case, Judge Brimmer
had established efficient procedures and these procedures were
significant in developing a docket that stands as the most
efficient and most up to date in the nation.
The interpretations of Rule 16 procedures have resulted in
various guidelines that control appellate review by the Circuit
Courts. These general guidelines can be summarized as follows:
1) The trial court has discretion to enforce and control the
enforcement of its pretrial orders. Link v. Wabash Rail-
road Co., supra.
2) The trial court ruling regarding whether the evidence
presented conforms with the pretrial order will not be
disturbed on appeal absent a clear abuse of discretion.
Myers v. Penney Packwoods Home Ownership Associ-
ation, 559 F. 2d 894 (3rd Cir. 1977).
3) Appellate Courts will not interfere with the rulings of
the district court absent a clear abuse of discretion. Ely
v. Reading Company, 424 F. 2d 758 (3rd Cir. 1970).
4) To make pretrial procedure effective appellate inter-
11
ference with the trial court’s discretion must be kept
to a minimum. Syracuse Broadcasting Corporation vy.
Newhouse, 295 F. 2d 269 (2nd Cir. 1961).
5) Pretrial statements should be interpreted liberally to
save the cause of action and to avoid the burden on the
dockets that is caused by a new trial. Washington State
Bowling Proprietors Association v. Pacific Line, Inc.,
356 F. 2d 371 (10th Cir. 1966).
It is submitted that the ruling by the Tenth Circuit in the
present case is at odds with every one of the above rules, and
the result has been to inflict a manifest injustice upon the
petitioner as well as the trial court. It is important to emphasize
that in overturning the verdict in this case, the Circuit Court not
only disregarded the specific findings of the trial court con-
cerning absence of surprise and compliance with the pretrial
procedure, but the Circuit Court made no attempt to make,
nor did it make, a finding that the District Court had abused
its discretion. Moreover, the background of this case, as earlier
discussed, substantiates Judge Brimmer’s finding of an absence
of surprise. After six years of involvement with this particular
accident, counsel for all parties have become very familiar with
the issues presented. Ford Motor Company was very well pre-
pared on the issue of causation, having listed and provided at
trial medical and engineering experts to testify concerning
causation. In this regard, Judge Brimmer’s finding that phy-
sicians have been permitted traditionally to testify whether a
particular injury was caused by a particular trauma is telling.
If this precedent-setting opinion is permitted to stand, it
will deprive the United States Supreme Court of its rule making
power in that it creates an intricate, unwielding maze out of
the efficient procedures established by this Court in Rule 16.
Further,the ruling by the Tenth Circuit removes the discretion
of the district courts to formulate and enforce single and
effective pretrial procedures. District courts will be straight-
jacketed by a complex pretrial procedure that was not intended
by Rule 16, and they will be precluded from removing that
jacket even if its own discretion indicates that full compliance
has been made with its pretrial procedures. This opinion will
12
have a chilling effect on district courts who will be reluctant
to exercise their discretion to prevent manifest injustice and to
supervise pretrial matters for fear of being second guessed by
the Circuit Courts. This opinion which is in conflict with the
other circuits deprives the district courts of any stable guide-
lines and clearly causes a manifest injustice to petitioner Smith.
The broad discretion afforded to triai courts in pretrial
matters has always been recognized, yet the ruling by the
Tenth Circuit seeks to preclude the exercise of that discretion.
Courts throughout the nation — including the Tenth Circuit
Court of Appeals prior to this case — have given repeated
recognition to this important principle:
1) The pretrial conference is not intended to serve as a
substitute for trial. Lynn v. Smith, 281 F. 2d 501 (3rd
Cir. 1960); Syracuse Broadcasting Corporation v. New-
house, 295 F. 2d 269 (2nd Cir. 1961); Berger v. Brannan,
supra, 172 F. 2d 241 (10th Cir. 1949), cert. den. 337
U.S. 941.
2) Efficient pretrial procedures can be maximized by
keeping appellate interference to a minimum. Spellacy
v. Southern Pacific Company, 428 F. 2d 619 (9th Cir.
1970); Ely v. Reading Co., 424 F. 2d 758 (3rd Cir.
1970); Cruz v. U.S. Lines Company, 386 F. 2d 803
(2d Cir. 1967); Syracuse Broadcasting Corporation vy.
Newhouse, supra, Padovani v. Bruchhausen, 293 F. 2d
546 (2nd Cir. 1961); National Farmers Organization
Inc.v. Oliver, 530 F. 2d 815 (8th Cir. 1976); Davis v.
Duplantis, 448 F. 2d 918 (Sth Cir. 1971); Moore v.
Sylvania Electrical Products, Inc. 454 F. 2d 81 (3rd
Cir. 1972).
3) Courts have permitted the introduction of evidence in
situations which do not compare with the present case,
such as where the evidence was not even disclosed during
pretrial. See, e.g., Moore v. Sylvania Electrical Products,
Inc., 454 F. 2d 81, 84 (3rd Cir. 1972).
4) Courts have even permitted witnesses to testify who
13
e%
5)
6)
were not listed in the pretrial memorandum. Payne ».
S. S. Nabob, 302 F. 2d 803 (3rd Cir. 1962); Kozar y.
Chesapeake & Ohio Ry. Co., 320 F. Supp. 335, 374
(D.C. Mich. 1970); U.S. v. Pirnie, 472 F. 2d 712 (8th Cir.
1973); Simonsen v. Parlo Plastics Company, 551 F. 2d
469 (1st Cir. 1977).
(See also the Tenth Circuit decision that permitted a
witness to testify who was not listed in the pretrial
memoranda, the Court basing its decision on the techni-
cality that an order from the pretrial conference had not
been filed. Jones v. Union Auto Indemnity Association,
287 F. 2d 27 (10th Cir. 1961). The previous approach
to pretrial matters by the Tenth Circuit was also reflected
in the case of Stroud v. B-W Acceptance Corporation,
372 F. 2d 185 (10th Cir. 1967) where the Court upheld
the Trial Court’s allowance of a witness to testify even
though the witness was endorsed.).
While pretrial orders have a binding effect, they are not
pointlessly adhered to at trial. The application of pre-
clusion is always viewed as a matter of judicial discretion.
Monod vy. Futura, Inc., supra; Case v. Abrams, supra;
Coffey v. U.S., supra; Globe Cereal Mills v. Scrivener,
supra.
In the absence of a finding of an abuse of judicial dis-
cretion, it is not error for a Court to permit the intro-
duction of evidence or to hear witnesses not listed in
accordance with the Court’s order. Wright Root Beer
Co. v. Dr. Pepper Co., 414 F. 2d 887 (Sth Cir. 1969);
Washington Hosp. Center v. Cheeks, 394 F. 2d 964
(C.A. 1968); Stewart v. Meyers, 353 F. 2d 691 (7th Cir.
1965); Coffey v. U.S., supra; Pan-American Gas. Co.
v. Reed, 240 F. 2d 336 (Sth Cir. 1957); Sedowski v.
Bombadier Ltd., supra; Peter Eckrich & Sons, Inc. v.
Selected Meat Company, 512 F. 2d 1158 (7th Cir. 1975);
Delava Turbine Inc. v. West India Industries, supra;
Agrashell Inc. v. Hammonds Products Company, 479 F.
2d 269 (8th Cir.1973); Marks & Company v. Diners
Club, Inc., 400 F. Supp 581 (D.C. NY 1975); and Davis
v. Duplantis, supra.
14
7) The pretrial order is to be liberally-construed so that
it covers any of the legal or factual theories that might
be embraced by its language. Century Ref. Company v.
Hall, 316 F. 2d 15 (10th Cir. 1963); Compagnie National
Air France v. Port of New York Authority, 427 F. 2d
951 (2nd Cir. 1970); Osborne v. Boeing Airplane Com-
pany, 309 F. 2d 99 (9th Cir. 1962); Rodriequez vy.
Ripley Industries, Inc., 507 F. 2d 782 (1st Cir.1974);
Reedy v. Travelers Insurance Company, 500 F. 2d 1117
(Sth Cir. 1974).
15
CONCLUSION
Should the Tenth Circuit be permitted, in the absence of a
finding of abuse, to substitute its discretion for that of the
trial court contrary to Link v. Wabash and in direct conflict
with the other circuits? Should the Tenth Circuit be permitted
to remand a products liability case, in which Petitioner was
injured in January of 1973 in which two juries have found a
defective product, and in which the Circuit Court had the
appeal for over two years, when the Petitioner has a State
constitutional right to the speedy administration of justice?
Is the Circuit’s mandated use of mini trials in the pretrial
procedures a violation of Rule 16? Should this Court grant this
Writ and by this case formulate supervisory guidelines for pre-
trial matters and the speedy administration of justice.
We respectfully submit that this Writ provides this Court with
the mechanism to remedy a critical problem in the Federal
System that mandates the uniformity that only this Court can
direct. Granting of this Writ will prevent a manifest injustice to
this Petitioner.
We respectfully request that this Writ be granted.
DATED this 12th day of December, 1980.
CAR lea 7
hn R. Hursh
Central Wyoming Law Associates, P.C.
195-107 Sout 6th East
G. L. Spence and
Edward P. Moriarit
Spence, Moriarity & Schuster
Post Office Box 554
Jackson, Wyoming 83001
Counsel for Petitioner
16
APPENDIX A
Opinion of Court of Appeals
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN H. SMITH,
Plaintiff-Appellee,
v. No. 78-1636
FORD MOTOR COMPANY,
mr rr ee ee ee
Defendant-Appellant.
Appeal From the United States District Court
For the District of Wyoming |
(D.C. No. C76-137B)
Edward P. Moriarity of Spence, Moriarity & Schuster, Jackson,
Wyoming (G. L. Spence and Robert P. Schuster of Spence,
Moriarity & Schuster, and John R. Hursh, Central Wyoming
Law Associates, Riverton, Wyoming, with him on the brief),
for Plaintiff-Appellee.
Gordon G. Greiner of Holland & Hart, Denver, Colorado (G. G.
Greenlee of Murane & Bostwick, Casper, Wyoming, with him
on the brief), for Defendant-Appellant.
Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.
BARRETT, Circuit Judge.
rt
7%
The basic controversy in this case has been previously before
this Court, and our opinion is reported in Fox v. Ford Motor
Company, 575 F. 2d 774 (10th Cir. 1978). Both the prior case
and the present one arose from an automobile collision which
occurred on January 29, 1973. The plaintiff, John H. Smith,
was riding as a front-seat passenger in a 1970 Ford, four-door
Thunderbird. Driving the car in which the plaintiff was riding
was Mr. Fox, who was a plaintiff in the prior case, and who ob-
tained a judgment for a loss as a result of the death of his wife.
Their wives were passengers in the back seat of this car and both
were killed.
John H. Smith, plaintiff herein, filed this action on July 30,
1976. He alleged that he suffered personal injuries as a result of
defective safety belts and seats; that the defective conditions
were the result of negligence in the design, installation, con-
struction, inspection and testing of the seat belts, the seat
tracks, dashboard and windshield. There were claims which
alleged strict liability and breach of warranty as well.
The January 29 headon collision resulted from a pickup
truck crossing the center line into the plaintiffs’ lane on the op-
posite side of the highway. The Smiths and the Foxes had been
driving in an opposite direction and so the almost headon im-
pact was a heavy one. Even though neither vehicle was moving
at high speeds, the vehicular damage and the personal injuries
were of great magnitude. The approximate speed of each vehi-
cle was 25 to 45 miles per hour just before the impact.
The main action against Ford is based upon the alleged neg-
ligent design of the seats and the seat belts, together with the
subsequent negligence in failing to correct some of these con-
ditions after having discovered the defects. All of the passengers
wore lap seat belts. The Messrs. Fox and Smith had shoulder
belts available, but they were not using them. Smith’s injuries
were more severe than those of Fox. There is, of course, no con-
tention that any defect in the vehicle itself caused the headon
collision. The contention is that the injuries of Smith were
greatly aggravated due to the defects in design of the lap belt
and the manner in which it was anchored so that it could not
protect passengers in a heavy impact.
2a
Plaintiff Smith, whose case is before us, incurred very serious
permanent internal injuries. Included were injuries to his spleen
and pancreas, as well as to his intestines and face. The spleen
had to be removed as a result of the injuries incurred, and sub-
sequently a pancreatic condition developed. Smith’s complaint
was that he had suffered a great amount of pain and would suf-
fer future consequences which allegedly included impairment of
his eating ability, diarrhea, possible diabetes and future surgery
from the pancreatitis. Also alleged was the risk of blindness,
stroke, cancer, heart disease, impotency and amputation. From
the removal of the spleen it was alleged that phlebitis, pneu-
monia, clotting, pulmonary infarctions and susceptibility to in-
fection had occurred.
The cause was tried to a jury, and following a 10-day trial, a
verdict in the amount of $800,000 was returned. Ford seeks
review and reversal of the judgment based upon this verdict.
Motions for judgment notwithstanding the verdict, for new
trial, and remittitur were filed and denied. Various issues are
raised on appeal. However, our determination that the District
Court erred in receiving the testimony of a crucial expert wit-
ness is despositive.
I.
Ford strenuosly asserts that the District Court abused its
discretion in allowing Dr. James W. Freston to testify, over ob-
jection, that Smith’s internal injuries were significantly en-
hanced as a proximate result of the usireasonably dangerous
passenger restraint system employed in the Fox vehicle. Ford
contends that Smith’s failure to disclose the substance of such
testimony (1) violated the Court’s pretrial order; (2) violated
Smith’s duty to provide supplemental responses to interrogator-
ies pursuant to Rule 26 (e), Fed. Rules Civ. Proc., 28 U.S.C.A.;
and, (3) prejudiced Ford’s ability to counter such evidence.
As noted earlier, Smith’s theory of liability was tied to Ford’s
alleged breach of its duty to “design and construct automobiles
in a reasonable and prudent manner so that failures of the parts
of the automobile will not cause [enhanced personal] injuries
to the occupants when a collision occurs.’’ Chrysler Corp. v.
Todorovich, 580 P. 2d 1123, 1129-1130 (Wyo. 1978). Proof of
3a
liability under such a theory requires the plaintiff to establish
that the defective nature of the passenger restraint system
proximately caused “damage or injury...over. and above the
damage or injury that probably would have occurred as a result
of the impact or collision absent the defective design.”’ Larsen v.
General Motors Corp., 391 F. 2d 495, 503 (8th Cir. 1968); Fox
vy. Ford Motor Co., supra. Almost invariably, such proof entails
the presentation of expert testimony. See Randolph V. Col--
lectramatic, Inc., 590 F. 2d 844 (10th Cir. 1979).
Pretrial Background
During the discovery phase of the case, Ford propounded a
series of interrogatories requesting, among other things, the
following information:
23. For each expert witness, including physicians, which
you may call at the trial of this matter, state:
(a) His name and address;
(b) A brief description of his testimony;
(c) Any opinions which he may be called upon to give;
(d) The facts upon which he will base such opinions.
[R., Vol. I, p. 13].
In response, plaintiff identified Dr. Brohm, Dr. Ferris, Dr.
Gullickson, Dr. Axthelm and Professor Crawford as expert
witnesses, described the opinions of each and set forth the basis
for those opinions. In addition, Smith responded:
As the case develops, and detailed examination continues,
further testimony may be required and the essence of same
will be provided as required by the Rules of Civil Pro-
cedure.
[R., Vol. I, p. 19].
Plaintiff did indeed supplement this interrogatory with ad-
ditional information about Professor Crawford, but failed at
any time to mention Dr. Freston.
The first notice of plaintiff’s intention to call Dr. Freston as
an expert witness at trial occurred on January 24, 1978--less
than two and one-half months before trial. Plaintiff’s supple-
mental pretrial submission, filed that date, contained the fol-
lowing:
4a
The Plaintiff, as of the date of the Supplemental Pretrial Sub-
mission, intends to cail the following witnesses:
*
8. Dr. Freston, University Hospital, Salt Lake City, Utah,
will testify as to his medical treatment of the Plaintiff, as well
as to his prognosis.
[App., Vol. |, pp. 71-72].
This identification was in response to an earlier court order
that “‘the parties may call additional witnesses...on the con-
dition that at least five (5) days prior to the supplemental pre-
trial conference they furnish opposing counsel with the names
and addresses of the additional witnesses, together with a brief
summary of the testimony they are expected to give.’ [App.,
Vol. |, p. 61].
At the supplemental pretrial conference, held January 27,
1978, the parties were given until March 6, 1978, to designate
additional witnesses expected to be called at trial. Although
plaintiff earlier anticipated no need to call additional wit-
nesses[App., Vol. |, p. 72], he subsequently designated four-
teen other witnesses for use at trial. | App., Vol |, pp. 114-
116]. Among these witnesses were Drs. Volk and Gainsford of
Salt Lake City, Utah, ‘‘listed in the medical records of the plain-
tiff.”” [App., Vol. |, p. 114]. Ford also designated three addi-
tional witnesses. Both parties’ motions to strike the testimony
of certain of the recently named individuals on the grounds of
inadequate time to conduct discovery prior to trial were denied
by the Court on March 15, 1978. [App., Vol. 1, p. 136]. Ford
did not move to strike the testimony of Drs. Volk and Gains-
ford.
Ford earlier deposed several other doctors designated by
Smith as experts likely to be called at trial--including Drs.
Brohm and Gullickson. Both of these physicians were desig-
nated in plaintiff’s supplemental pretrial submission as experts
who would testify about medical care given to the plaintiff,
as well as his prognosis. Each of these witnesses was specif-
ically asked in deposition whether he had any opinion regarding
Sa
the relationship of plaintiff’s injuries and the alleged defic-
ient design or manufacture of the aucomobile. Each was also
asked whether he had made a study of the seat belt syndrome
or read any literature in the area. Each replied in the negative
to these questions. [Gullickson dep., R., Vol. XVIII, pp. 21-22;
Brohm dep., R., Vol. XXI, pp. 12-15]. Dr.Freston was not de-
posed.
Trial Background
On March 29, 1978, plaintiff called his first witness, Dr.
James W. Freston. Freston testified that he was currently
employed as a Professor of Medicine and Clinical Pharma-
cology, and as Chairman of the Department of Gastroenter-
ology at the University of Utah. Dr. Freston holds both an M.D.
and Ph. D. in medicine, and has compiled a list of impressive
credentials, including the authorship of some sixty-two articles
in his field. At one point in his testimony, he described himself
as a ‘“‘specialist’s specialist” in the area of gastroenterology.
Early in his testimony, Dr. Freston reviewed, in detail, the
history of plaintiff’s injuries and subsequent medical treatment
using various visual aids. From this, the doctor moved to spe-
cifically deal with the injuries to Smith’s pancreas, which he.
identified as resulting from the automobile accident, [App.,
Vol. |, pp. 245, 260-261] as well as his prognosis. No defense
objection was interposed as to Dr. Freston’s opinion that the
injuries complained of arose out of the collision between the
two vehicles. Objections were interposed, however, when
plaintiff’s counsel attempted to elicit testimony establishing
the existence of conditions consistent with seat belt injuries.
A hearing on the objections was held in chambers. Counsel
for Ford claimed prejudicial suprise at Smith’s attempt to e-
licit testimony establishing proximate causation between the
lap belts employed and nature of the injuries—an area Ford
claimed was clearly outside the scope of plaintiff's descrip-
tion of Dr. Freston’s proposed testimony.! The Court ruled
1. The colloquy itself is enlightening and we feel sharpens the issues in-
volved. Its length, however, requires that we frame it in the form of
an appendix to this opinion.
6a
that the testimony sought was proper on three grounds: (1)
that the custom of Wyoming practice has been to describe in
extremely narrow terms the substance of proposed witnesses’
testimony proir to trial; (2) that the claim of surprise was un-
justified because ‘‘we have gone into this question as to the
causal condition with doctors always.” [App., Vol. Il, p. 267] ;
and, (3) that Ford’s failure to object to Dr. Freston’s testimony
that the injury resulted from the accident waived its right to
object as to relationship between those injuries and the lap belts
employed.
The continuation of plaintiff's direct examination of Dr.
Freston crystalized the connection between Smith’s intra-
abdominal injuries and the passenger restraint system. Dr.
Freston stated that his examination of over one hundred intra-
abdominal injuries which occurred during traffic accidents,
some showing physical evidence of seat-belt injury, formed the
basis for his opinion that bruises or injury high in the abdomen,
such as to the pancreas, result from seat belts which fail to pro-
perly function. Where bruises are localized in the hip area, this
evidences seat belts which are non-defective. With specific refer-
ence to Smith’s injuries, Dr. Freston testified:
Q [Mr. Spence] All right. Now, when you find an injury as
high as the pancreas, what does that mean to you?
A [Dr. Freston] Well, something unusual has happened;
something out of the ordinary.
Q With respect to the functioning of the seat belt?
A Yes.
*
Q What do you find in that regard?
Al find that if the seat belt isn’t functioning properly
and is over the abdomen rather than over the hips, the
injuries tend to occur higher. And we start to see rupture
of the spleen and we start to see injuries to the pancreas.
7a
_
Q Do you have ari opinion based upon reasonable medical
probability as to the causal — as to what caused the
injuries [to the] spleen and to the pancreas in the case at
hand?
MR. GREENLEE: [objection]
THE COURT: [overruled]
A Yes, | have an opinion.
Q (By Mr. Spence) Would you state to the jury what your
opinion is?
A Yes. My opinion is that the probability is overwhelming
that the injury to the pancreas resulted from the auto-
mobile accident.
And specifically, the evidence is good that the seat belt
was involved in that injury.
And if | may —I’m sensitive to Mr. Greenlee’s objection —
we are quite capable of diagnosing events today that start-
' ed five years ago. That’s a matter of routine in medicine.
Q Thank you very much. Now, | want to ask you another
question. There has been a contention made in this case
that the injuries in this case were a result of upward
pressure on [t]he organs in the accident, which upward
pressure of the organs internally for those organs on other
organs and caused the injury to the spleen and to the
pancreas.
Do you have an opinion based upon reasonable medical
certainty as to that contention?
A Yes.
Q Would you tell the jury what it is and the basis for your
opinion?
8a
opinion or conclusion must permit reasonably accurate con-
clusions as distinquished from mere guess or conjecture. 20
Am.jur., Evidence, §§ 788, et seq.
The inherent problems in forcing the propounding party to
supply such “material” facts often led to awkward results. For
example, in United States v. Sessin, supra, at p. 669 the follow-
ing issue arose:
A hypothetical question was propounded to a physician,
upon the basis of which the witness was asked for his opinion
as to the bodily ailments which afflicted plaintiff on January
1, 1919, as to the prognosis thereof, and as to whether one so
afflicted was physically incapacitated to work. The question
took half an hour to propound; it was necessarily long be-
cause plaintiff's medical history was long. It was objected
that a few of the multitudinous statements of the hypothesis
lacked meticulous accuracy. Two supposedly defective state-
ments are pressed as grounds for reversal. One is that the
question assumed that the wound had been cleaned out once
a year. The proof was that there were twenty-three such oper-
ations over a period of seventeen years, and that plaintiff did
not remember the date of the last operation although it was a
good many years after he left the hospital. The other defect
is that the hypothesis referred to an abscess in the abdomen
as tubercular. That there was an abdominal abscess is not dis-
puted; the proof showed a tuberculosis of the lung and leg
bone at the time. No other cause for the abdominal abscess
being shown, it is not an unfair inference that it was tubercu-
lar, occurring as it did between two foci of tubercular infec-
tion. [Emphasis supplied].
Although we there affirmed the trial court’s decision admitting
the opinion evidence, the practical difficulties are illustrated.
At the same time, the heavy burden placed on the examiner
to articulate foundational facts under the hypothetical question
rule, often resulted in a denial of pretrial discovery to the cross-
examiner concerning the expert and his proposed testimony.
Prior to the enactment of the 1970 amendments to the Federal
Rules of Civil Procedure, 28 U.S.C.A., no provision was made in
9a
rs
*
testimony, however, dealt exclusively with the engineering and
physics aspects of the collision forces. It did not relate those
movements to medical injury.5
Ford’s expert witness, Donald F. Hueke—a professor at the
University of Michigan Medical School, and a recognized au-
thority in the field of automotive injury—refuted in large part
Dr. Freston’s causation testimony, specifically addressing Dr.
Freston’s interpretation of the Garrett and Braunstein study.
A.
The Interface Between Pretrial Discovery
And the Presentation of Expert Testimony
Traditionally, the presentation of expert testimony involv-
ing opinion evidence required the establishment of certain foun-
dational facts prior to the expression of the opinion. See,
J. Wigmore, Evidence § 672, at pp. 792—793 (3rd Ed. 1940).
The use of hypothetical questions provided the normal vehicle
for the elicitation of such evidence. Although this Court treated
the foundational requirements for opinion evidence liberally,
United States v. Sessin, 84 F.2d 667 (10th Cir. 1936), New
York Live Ins. Co. v. Doerksen, 75 F.2d 96 (10th Cir. 1935),
other courts strictly enforced the requirements. Harris v. Smith,
372 F.2d 806 (8th Cir. 1967); Kale v. Douthitt, 274 F.2d 476
(4th Cir. 1960). In Kale v. Douthitt, supra, at p. 482, the Court
Stated:
Generally, a hypothetical question must assume all facts
disclosed by the evidence material to the theory of the case
as viewed from the side propounding the question. A ques-
tion which assumes any material fact not supported by the
evidence is inadmissible. A question which omits any material
fact essential to the formation of a rational opinion is like-
wise incompetent. The facts upon which the expert bases his
5. This testimony was presented primarily through Professor Richard H.
Crawford, who specifically acknowledged that he was not qualified to
discuss the relationship between the load forces and the injury from a
medical standpoint.
10a
MR. GREENLEE: [objection]
THE COURT: [overruled ]
A Well, my opinion is that it’s highly improbable.
[App., Vol. Il, pp. 272-276]. [Emphasis supplied] .
This testimony was presented in a graphic, persuasive man-
ner. Following the statement of his opinion, Dr. Freston punc-
tuated his point with empirical studies2 and the use of a man-
nequin showing the various intra-abdominal organs.
At the completion of Dr. Freston’s direct examination,
counsel for Ford was granted a ten minute recess to prepare for
his cross-examination of the witness.3 Ford did briefly cross-
examine Dr. Freston concerning the seat belt syndrome.
After Dr. Freston was excused as a witness, Ford requested
plaintiff’s counsel to provide him with a copy of Garrett and
Braunstein. Following plaintiff’s refusal, the District Court
ordered production. [App., Vol. Il, pp. 316-321] .4
Smith also produced evidence showing the motion and stress
areas of the human body in relation to passenger restraint sys-
tems such as that employed here at the time of collision. Such
2. Garrett and Braunstein, The Seat Belt Syndrome, delivered before the
Twenty-First Annual Session of the American Association for the Sur-
gery of Trauma, Chicago, Illinois, September 28—30, 1961. [Herein-
after cited as Garrett and Braunstein]. A reprint of the study is avail-
able through the Highway Safety Research Institute at the University
of Michigan, Ann Arbor, Michigan.
3. The recess was granted at 4:43 p.m. and trial resumed at 4:54 p.m.
Dr. Freston was scheduled to leave Casper, Wyoming, at 9:15 a.m. the
next morning.
4 Ford asserts that ‘“‘[d]espite the Court order, plaintiff's counsel never
produced the article.”’ [Brief of Appellant at p. 35, n. 2]. Inasmuch as
Smith has not expressly conceded this statement, we cannot consider
it in deciding whether prejudicial error occurred. See Braden v. Univer-
sity of Pittsburg, 477 F.2d 1, 6 (3d Cir. 1973).
lla
the Federal Rules with respect to the discovery of experts or
the nature of their information. Judicial treatment of the issues
surrounding the discovery of such information varied, with the
result that most pre-1970 decisions denied discovery in its en-
tirety or limited it to extremely narrow areas. See, Long, Dis-
covery and Experts Under the Federal Rules of Civil Procedure,
38 F.R.D. 111, at p. 112 (1965); Winner, Procedural Methods
to Attain Discovery, 28 F.R.D. 97 (1960). Some of the earlier
cases treated experts as agents of the attorney under the attor-
ney-client privilege and denied discovery on that basis. See, e.g.,
Schuyler v. United Airlines, Inc., 10 F.R.D. 111 (M.D. Pa. 1950);
Cold Metal Process Co. v. Aluminum Co., 7 F.R.D. 684 (D. Mass.
1947). A second approach, patterned after the qualified work
product privilege developed in Hickman v. Taylor, 329 U.S.
495 (1947), immunized discovery unless the opponent could
show a substantial, particuierized need for the information. See,
Carpenter—Trant Drilling Co. v. Magnolia Petroleum Corp.,
23 F.R.D. 257 (D. Neb 1959). Other courts refused discovery
simply on the basis of the expert’s status. See, e.g., American
Oil Co. v. Pennsylvania Petroleum Products Co., 23 F.R.D. 680
(D.R.1. 1959). Still other opinions developed a doctrine of “un-
fairness” holding discovery unavailable if the result was that one
party would be taking unreasonable advantage of an opponent’s
diligence or financial resources in obtaining expert testimony.
See, e.g., United States v. 23.76 Acres of Land, 32 F.R.D. 593
(D. Md. 1963).
The drafters of the 1970 amendments to the Federal Rules
of Civil procedure sought to resolve this inharmonious state of
affairs by providing a uniform, orderly scheme of discovery.
That scheme of discovery is now embodied in Fed. Rules Civ.
Proc., rule 26, 28 U.S.C.A. [hereinafter cited as rule 26]. Rule
26 liberalized discovery, adopting the doctrine of “unfairness”’
as its guide. Under rule 26(4 (A) (i),
(A) (i) A party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to state the sub-
ject matter on which the expert is expected to testify, and
to state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds
12a
for each opinion. (ii) Upon motion, the court may order
further discovery by other means, subject to such restric-
tions as to scope and such provisions, pursuant to subdivision
(b) (4) (C) of this rule, concerning fees and expenses as the
court may deem appropriate.
[Emphasis supplied] .
The Advisory Committee on Civil Rules, which promulgated
the original draft, published an accompanying text explaining
the intent of the drafters and the basis for the new provisions:
In cases of this character [involving expert testimony], a
prohibition against discovery of information held by expert
witnesses produces in acute form the very evils that discovery
has been created to prevent. Effective cross-examination of
and expert witness requires advance preparation. The lawyer
even with the help of his own experts frequently cannot an-
ticipate the particular approach his adversary’s expert will
take or the data on which he will base his judgment on the
stand. McGlothlin, Some Practical Problems in Proof of
Economic, Scientific, and Technical Facts, 23 F.R.D. 467,
478 (1958). A California study of discovery and pretrial in
condemnation cases notes that the only substitute for dis-
covery of experts’ valuation materials is “lengthy — and often
fruitless — cross-examination during trial,’’ and recommends
pretrial exchange of such material. Calif. Law Rev. Comm'n,
Discovery in Eminent Domain Proceedings 707—710 (Jan.
1963). Similarly, effective rebuttal requires advance know-
ledge of the line of testimony of the other side. If the latter
is foreclosed by a rule against discovery, then the narrowing
of issues and elimination of surprise which discovery normal-
ly produces are frustrated.
Advisory Committee Notes, rule 26, Fed. Rules Civ. Proc.,
28 U.S.C.A. [Emphasis supplied] .
This liberalization in the discovery area also resulted in liber-
alization in other areas. The increased availability of discovery
concerning expert witnesses and the facts upon which they
based their opinions, prompted reexamination of the hypo-
13a
mr
>
thetical question requirement and other traditional founda-
tional basis that were necessary prior to the introduction of o-
pinion evidence. Criticism surrounding these areas mounted:
The hypothetical question has been the target of a great deal
of criticism as encouraging partisan bias, affording an oppor-
tunity for summing up in the middle of the case, and as com-
plex and time consuming. Ladd, Expert Testimony, 5 Vand.
L. Rev. 414, 426-427 (1952).
Advisory Committee Notes, rule 705, Fed. Rules Evid., 28
U.S.C.A.
* * *
[1] t is a failure in practice and an obstruction to the adminis-
tration of justice. If we require that it recite all the relevant
facts, it becomes intolerably wordy. If we allow, as most
courts do, the interrogating counsel to select such of the ma-
terial facts as he sees fit, we tempt him to shape a one-sided
hypothesis. [Footnotes omitted]. C. McCormick, Evidence
§ 16 at p. 36 (2d ed. E. Cleary 1972).
It was in response to this criticism that Federal Rules of Evi-
dence 703 and 705, 28 U.S.C.A. were enacted. Rule 705, elim-
inating the need for hypothetical questions, allows an expert
witness to “testify in terms of opinion or inference and give his
reasons therefore without prior disclosure of the underlying facts
or data, unless the court requires otherwise.’ Cross-examination
may, however, be used to ferret out such underlying facts. Rule
703 specifies that the underlying facts or data need not be ad-
missible in evidence if “of a type reasonably relied upon by ex-
perts in the particular field in forming opinions or inferences
upon the subject.” See also: Bryan v. John Bean Division of
FMC Corp., 566 F. 2d 541 (Sth Cir. 1978). The combined ef-
fect of these new rules is to ‘place the full burden of explo-
ration of the facts and assumptions underlying the testimony of
an expert witness squarely on the shoulders of opposing coun-
sel’s cross-examination. As stated in the Advisory Committee
Note to Rule 705, and highlighted by the elimination of the
foundation often provided by the hypothetical question, “‘ad-
vance knowledge through pretrial discovery of an expert wit-
14a
ness's basis for his opinion is essential for effective cross-exam-
ination.” Graham Discovery of Experts Under Rule 26 (b) (4)
of the Federal Rules of Civil Procedure: Part One, An Analyti-
cal Study, 1976 U. 111.L.F. 895, 897 [hereinafter cited as Gra-
ham, Part One].
The Advisory Committee on the proposed Federal Rules of
Evidence, recognizing the need for such pretrial disclosure, con-
sidered the provisions of rule 26, Fed. Rules Civ. Proc., 28 U.S.
C.A. sufficient:
If the objection is made that leaving it to the cross-examiner
to bring out the supporting data is essentially unfair, the an-
swer is that he is under no compulsion to bring out any facts
or data except those unfavorable to the opinion. The answer
assumes that the cross-examiner has the advance knowledge
which is essential for effective cross-examination. This ad-
vance knowledge has been afforded, though imperfectly, by
the traditional foundation requirement. Rule 26(b) (4) of the
Rules of Civil Procedure, as revised, provides for substantial
discovery in this area, obviating in large measure the obstacles
which have been raised in some instances to discovery of
findings, underlying data, and even the identity of the ex-
perts. Friedenthal, Discovery and Use of an Adverse Party’s
Expert Information, 14 Stan. L. Rev. 455 (1962).
Advisory Committee Notes, rule 705, Fed. Rules Evid., 28
U.S.C.A. [Emphasis supplied].
Professor Friedenthal has also recognized the critical nature
of such pretrial discovery:
It is fundamental that opportunity be had for full cross-ex-
amination, and this cannot be done properly in many cases
without resort to pretiral discovery, particularly when expert
witnesses are involved. Unlike two eye-witnesses who dis-
agree, two experts who disagree are not necessarily basing
their testimony on their views of the same objective features.
Instead they may rely on entirely separate data, since the
theoretical bases underlying their respective approaches may
differ radically. Before an attorney can even hope to deal on
cross-examination with an unfavorable expert opinion he
must have some idea of the bases of that opinion and the
15a
|
data relied upon. If the attorney is required to await exami-
nation at trial to get this information, he often will have too
little time to recognize and expose vulnerable spots in the
testimony. He may need advice of his own experts to do so
and indeed, in certain cases, his experts might require time to
make further inspections and analyses of their own.
The need for pretrial discovery regarding expert witnesses
is further evidenced by the ever-increasing dissatisfaction
with the honesty and reliability of expert testimony... .
Friedenthal, Discovery and Use of an Adverse Party's Expert
Information, 14 Stan. L. Rev. 455, 485 (1962) | Footnote o-
mitted]. [Emphasis supplied] .
This liberalization is further illustrated by the provisions of
rule 26(e), Fed. Rules Civ. Proc., 28 U.S.C.A. Under rule 26(e)
a party is under a duty to seasonably supplement his response
only in three situations, one of which includes information con-
cerning ‘the identity of each person expected to be called as
an expert witness at trial, the subject matter on which he is ex-
pected to testify, and the substance of his testimony.”
The failure of a party to comply with discovery requests
under rule 26 has led to findings of prejudice resulting in the ex-
clusion of the proffered evidence. Coleco Industries, Inc. vy.
Berman, 567 F. 2d 569 (3d Cir. 1977), cert. denied, 439 U.S.
830 (1978); Tabatchnick v. G. D. Searle & Co., 67 F.R.D. 49
(D.N.}. 1975). Similiarly, although district courts enjoy wide
discretion in handling discovery and pretrial matters, Phil
Crowley Steel Corp. v. Macomber, Inc., 601 F. 2d 342 (8th Cir.
1979), reversible error has been found in allowing testimony
without such discovery where there has been a ‘gross abuse of
discretion resulting in fundamental unfairness in the trial of the
case.”” Voegeli v. Lewis, 568 F. 2d 89, 96 (8th Cir. 1977); She-
lak v. White Motor Co., 581 F. 2d 1155 (Sth Cir. 1978); Weiss
v. Chrysler Motors Corp., 515 F. 2d 449 (2d Cir. 1975).
The Pretrial Order
We have previously observed that Smith failed to provide any
16a
information, in the form of interrogaroty responses, about Dr.
Freston or his proposed testimony as required by rule 26(e),
Fed. Rules Civ. Proc., 28 U.S.C.A. This duty to provide re-
sponses concerning expert witnesses continues through trial.
Weiss v. Chrysler Motors Corporation, supra. \f we were faced
solely with the plaintiff’s failure to provide such information,
we would be compelled to reverse the District Court’s admission
of such evidence. Weiss v. Chrysler Motors Corporation, supra.
Smith contends, however, that his duty to supplement was
fulfilled by the description of Dr. Freston’s proposed testimony
provided in his supplemental pretrial submission. Smith asserts
that this, combined with the alleged Wyoming custom and prac-
tice of allowing treating physicians to testify concerning cau-
sation of injuries militates against any finding of prejudice to
Ford. Any surprise which may have occurred, argues Smith, was
avoidable, had Ford simply taken the deposition of Dr. Freston.
Rule 16, Fed. Rules Civ. Proc., 28 U.S.C.A., authorizes the
district courts to hold pretrial conferences designed to aid in
the disposition of cases, and enter orders subsequent thereto
which “control . . . the subsequent course of the action, unless
modified at trial to prevent manifest injustice.” The office [of
the pretrial order] as a procedural tool [is] to insure the eco-
nomical and efficient trial of every case on its merits without
chance or surprise.”” [Emphasis supplied]. Case v. Abrams, 352
F.2d 193, 195 (10th Cir. 1965). It ‘measures the dimensions
of the lawsuit, both in the trial court and on appeal.” American
Home Assur. Co. v. Cessna Aircraft Co., 551 F.2d 804, 806
(10th Cir. 1977), quoting, Hodgson v. Humphries, 454 F.2d
1279, 1281 (10th Cir. 1972). The “amendment of a pretrial
order formulating issues [or designating witnesses and their
proposed testimony] will be permitted during trial only if nec-
essary to prevent manifest injustice.” [Emphasis supplied].
Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th Cir.
1978). The burden of establishing such manifest injustice falls
squarely on the moving party. Seneca Nursing Home v. Secre-
tary, 604 F.2d 1309 (10th Cir. 1979). When there exists a
properly drawn, detailed pretrial order, a trial court’s determi-
nation that certain facts or issues must [or should not] be
17a
excluded from trial on the basis of a pretrial order may be
reversed only if there is an abuse of discretion. See James vy.
Newspaper Agency Corp., 591 F2d 579, 583 (10th Cir. 1979)
(pretrial order specifying the witnesses to be called may be used
to bar the calling of unlisted witnesses).” Trujillo v. Uniroyal
Corp., 608 F.2d 815, 817-818 (10th Cir. 1979).
Pursuant to rule 83, Fed. Rules Civ. Proc., 28 U.S.C.A., the
District Court of Wyoming, as well as many other district
courts, has adopted rules implementing the pretrial conference
procedure broadly covered by rule 16, Fed. Rules Civ. Proc., 28
U.S.C.A. Rule 8, Rules of the United States District Court for
the District of Wyoming [hereinafter cited as local rules] , deals
exclusively with pretrial procedure. Rule 8(a) of the local rules
deals with “pre-trial scheduling conferences” and provides that
the parties shall:
(2) Exchange a list of all witnesses to be called at the trial,
together with a brief summary of their proposed testimony.
No testimony shall be received at the trial unless it be conso-
nant with such summary and from a witness so designated,
except for purposes of rebuttal or by order of the court upon
the showing of good cause why the name of the witness and
the summary of his testimony was not disclosed at said pre-
trial conference. Generalized summaries are not acceptable.
Additional witnesses and summaries of testimony shall be
submitted by each party to the opposing party as their names
and addresses are ascertained, and at the final pre-trial con-
ference. [Emphasis supplied] .
Rule 8(e) (1) also requires the parties, in connection with the
final pretrial conference, to submit 4 memorandum with a “‘list
of the names and addresses of the witnesses whom the parties
intend to call to testify at the trial, together with a brief sum-
mary of the testimony intended to be elicited from each witness
in the trial . . .”” The language of Rule 8(e) (3) spells out the
sanctions for counsel’s failure to comply with the rule: “Except
for impeachment or rebuttal purposes and absent good cause
shown, no. . . witness [shall] be permitted to testify unless his
name and address appear on the witness list, together with a
summary of his testimony as required by this order.”
18a
Rule 8 also advises counsel who draft pretrial orders to
follow Appendix D to the Rules. Appendix D is a form of pre-
trial order which includes the following pertinent language:
This pre-trial order has been formulated after conference
at which counsel for the respective parties have appeared.
Reasonable opportunity has been afforded counsel for cor-
rections or additions prior to signing by the Court. Hereafter,
this order will control the course of the trial and may not be
amended except by consent of the parties and the Court,
or by order of the Court to prevent manifest injustice. .. .6
Such local rules of practice, as adopted by the district court,
“have the force and effect of law, and are binding upon the
parties and the court which promulgated them until they are
changed in appropriate manner.’’ Woods Construction Co. v.
Atlas Chemical Industries, Inc., 337 F.2d 888, 890 (10th Cir.
1964). Considerable deference is accorded to the district
courts’ interpretation and application of their own rules of prac-
tice and procedure. Martinez v. Thrifty Drug and Discount Co.,
593 F.2d 992 (10th Cir. 1978); Lance, Inc. v. Dewco Services,
Inc., 422 F.2d 778 (9th Cir. 1970). Where, however, we are
“convinced that the district court has misconstrued its own
rules”, reversal may be warranted. Wright and Miller, Federal
Practice and Procedure, Civil § 3153. See also, Golgrove v.
Battin, 413 U.S. 149, 161 n. 18 (1973).
A comparison of the description of Dr. Freston’s testimony
in plaintiff’s pretrial memorandum, with Dr. Huelke’s testimony
in Ford’s pretrial memorandum, is instructive. Ford described
its witnesses as follows on July 21, 1977:
Defendant does not anticipate that it will call witnesses
other than a Ford engineer (either Everett Kennedy and/or
Louis Tubben) and Dr. Donald Huelke. . .. Dr. Huelke is
expected to testify to anticipated injuries to be expected
from an accident of the type in question and compare the
6. This language does not appear in the final pretrial order entered in this
case.
19a
same to the injuries in fact sustained by the plaintiff. In con-
nection therewith, Dr. Huelke may be asked to testify as to
the speed of the vehicles involved, the force of the crash,
the movement of the body of the plaintiff during the crash,
and the like. Ford is advised that plaintiff intends to call Mr.
Richard Crawford of Ponderosa Associates, and depending
upon the nature of his testimony may call an accident re-
construction expert.
[App., Vol. I, at p. 22].
Despite the rather specific statement that Dr. Huelke would
testify as to the relationship between the accident and plain-
tiff’s injuries, plaintiff described his last four witnesses on Jan-
uary 24, 1978, as follows:
5.Dr. William Brohm, Riverton, Wyoming, will testify as to
the medical care given to the Plaintiff and as to his current
condition, as well as his prognosis. (This witness has been
deposed.)
6. Dr. Donald Gullickson, Lander, Wyoming, will testify as to
subsequent medical care rendered to the Plaintiff, as well
as to his prognosis.
7. Professor Richard Crawford, Louisville, Colorado, will
testify as to the design defects and failures of the right seat
and the right seat compartment of the vehicle in question.
8. Dr. Freston, University Hospital, Salt Lake City Utah, will
testify as to his medical treatment of the Plaintiff, as well
as to his prognosis.
[App., Vol. |, at p. 72].
There is no question, in our view, that the description of Dr.
Freston’s testimony in the supplemental pretrial submission,
later incorporated in the final pretrial order [R., Vol. 1, p. 112],
related solely to plaintiff’s injuries and prognosis and not to the
causal relationship between those injuries and defective lap
belts.
20a
In Meyers v. Pennypack Woods Home Ownership Ass'n.,
559 F.2d 894, 904-905 (3rd Cir. 1977), the court enunciated
a series of factors which should be considered in determining
whether a district court has abused its discretion in excluding,
or in our case allowing, testimony not specified in the pretrial
order: ‘‘(1) the prejudice or surprise in fact of the party against
whom the excluded witnesses would have testified, (2) the abil-
ity of that party to cure the prejudice, (3) the extent to which
waiver of the rule against calling unlisted witnesses would dis-
rupt the orderly and efficient trial of the case or of other cases
in court, and (4) bad faith or willfulness in failing to comply
with the court’s order.’’ We address each of these factors sepa-
rately.
1. Prejudice or Surprise in Fact.
In our opinion, it is noteworthy that Dr. Freston” testimony
is described almost identically to that of Dr. Gullickson and Dr.
Brohm. Each of these latter witnesses was deposed by Ford and
each was specifically asked whether he had any opinion regard-
ing the relationship of plaintiff’s injuries and the alleged defi-
cient design or manufacture of the automobile. Each was also
asked whether he had made a study of the seat belt syndrome
or read any literature in the area. Each replied in the negative
to these questions. [Gullickson dep., R., Vol. XVIII, at pp.
21-22; Brohm dep., R., Vol XXI, at pp. 12-15]. Ford knew
these doctors were experts only in their fields of medicine.
Thus, the addition of Dr. Freston to the list of witnesses, with
the same general description of his testimony, could only have
misled Ford into believing that his testimony would relate sole-
ly to plaintiff’s injuries and not to their relationship to a defec-
tive seat belt. Assuming that the pre-trial order was not designed
to be misleading, the fact remains that such was its effect,’ and
that it prejudiced Ford in the preparation of its defense. See
Ante at pp. 19-20.
Our view is not altered by Smith’s contention that Wyoming
7. Perhaps this explains why Ford excluded Drs. Volk and Gainsford
from their motion to strike recently named witnesses made on the basis
of inadequate time for discovery prior to trial.
21a
custom and practice routinely allows treating physicians to tes-
tify as to the causation of injuries. We discern no major variance
between Wyoming practice and this Court’s decisions concern-
ing the admissibility of evidence not properly disclosed to the
opposing party either in pretrial proceedings or in response to
properly framed discovery requests. See Western Fire Insurance
Co. v. Tim Force Tin Shop, Inc., 599 P.2d 540 (Wyo. 1979);
Crysler Corp. v. Todorovich, supra; Ford Motor Co. v. Kuh-
bacher, 518 P.2d 1255 (Wyo. 1974.) In any event, the custom
and practice in Wyoming is irrelevant. The Federal Rules of
Civil Procedure control this diversity action even where there
exists a conflict. Hanna v. Plumer, 380 U.S. 460 (1965). See
also, Walker v. Armco Steel Corp., —— U.S. ——., 48 J.S.L.W.
4625 (June 2, 1980). These rules, of course, were designed to
make pretrial and discovery uniform across the country and to
prevent ‘‘trial by ambush”.
Parallel arguments that such custom and practice obviates a
finding of surprise and therefore prejudice are also unpersuasive.
First, we find nothing in the record countering Ford’s claim of
surprise and prejudice. Second, Ford was entitled to rely on the
summary of testimony provided in the supplemental pretrial
submission. The fact that Wyoming practice imputes such con-
structive knowledge, if indeed such is the practice, is not suf-
ficient.
Even if plaintiff [or defendant in this case] had reason to
believe that such testimony would be presented . . ., which is
at best sharply disputed, that would not justify the failure. . .
to respond truthfully and completely to a properly framed
interragatory. ‘It is no objection to interrogatories . . . that
the information sought is within the knowledge of the inter-
rogating party.‘‘Bowles v. Safeway Safeway Stores, 4 F.R.D.
469, 470 (W.D.Mo. 1945); Grand Opera Co. v. Twentieth
Century-Fox Film Corp., 21 F.R.D. 39, 40 (E.D.111. 1957).
“A distinction should not be drawn between facts with or
without the knowledge of the examining party.”” 4 Moore’s
Federal Practice para. 26.59 at 26-219 (2d Ed. 1974).
Consequently, to characterize the issue here as being deter-
mined by a lack of “surprise” distorts the essential problem.
22a
The policy which prompted amendment to Rule 26(b) (4)
of the Federal Rules of Civil Procedure to allow more liberal
discovery of potential expert testimony was not merely for
convenience of the court and the parties, but was intended to
make the task of the trier of fact more manageable by means
of an orderly presentation of complex issues of fact. “Mu-
tual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation.” Hickman v. Taylor,
329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947).
See generally F.R. Civ. P. 26 (b) (4), Advisory Committee
Notes to 1970 Amendments.
In this case the expert testimony was crucial. As Judge
Bartels has well put it: ‘Realistically speaking, the resolution
of the entire case depends upon [medical] and expert testi-
mony and opinion. The necessities of such a case transcend
the usual limitations which may otherwise be imposed upon
discovery proceedings. “United States v. Nysco Laborator-
ies, Inc., 26 F.R.D. 159, 162 (E.D.N.Y. 1960).
Weiss v. Chrysler Motors Corp., supra, at pp. 456-457. [Em-
phasis supplied].
See also, Coleco Industries, Inc. v. Berman, supra, (evidence of
accounting study not disclosed to opposing party in pretrial
properly excluded); Voegeli v. Lewis, supra, (expert witness’
change of opinion was not admissible where it was not disclosed
in advance of trial‘; Tabatchnick v. G. D. Searle, supra, (testi-
mony of proposed new expert excluded where opponent was
unfairly prejudiced).
The critical nature of Dr. Freston’s testimony convinces us
that Ford was prejudiced in the presentation of its case. Dr.
Freston not only testified that plaintiff’s injuries were caused
by the seat belts; he also testified that in his opinion, based on
the article he had read, the injuries were caused by a defective
seat belt. [App., Vol. Il, at pp. 271-274]. A review of the arti-
cle on which Dr. Freston based his opinion [Appellee’s br.,
App. |], makes it abundantly plain that no inference about
injuries from defective seat belts, as opposed to properly func-
tioning seat belts, can be drawn because the study did not have
23a
that type of information unless the belt actually broke or was
torn by the force of the accident, which did not occur here.
This is in contrast to Dr. Freston’s testimony that the study
examined only users of properly functioning seat belts and that
based on data derived therefrom, the odds of pancreatic injury
are only “about one in a thousand”. [App., Vol. Il, pp. 311-
312]. Thus, Dr. Freston left the impression with the jury that
Smith’s seat belt was not functioning properly.
If Ford had been apprised in advance of Dr. Freston’s testi-
mony, it could have taken his deposition, discovered the article,
and been well prepared at trial to cross-examine him about his
conclusions.
2. Ability to Cure.
The challenged testimony provided crucial, non-cumulative
evidence on the question of whether a defective seat belt aggra-
vated or enhanced the plaintiff’s injuries. This, of course, sup-
plied the proof of a key element of Smith’s theory of recovery.
Larsen v. General Motors Corp., supra; Fox v. Ford Motor Co.,
supra. Without it Ford would possibly have been entitled to a
directed verdict. The evidence was elicited from the first witness
to appear before the jury—magnifying its impact. Dr. Freston
was scheduled for examination only on the day he appeared.
Counsel for Smith completed his direct examination at 4:43
p.m. Ford requested and was allowed only eleven minutes to
prepare for cross-examination. The Garrett and Braunstein
article was not available for his use prior to cross-examination.
We have previously observed that the Federal Rules of Evi-
dence contemplate that the ‘‘full Surden of exploration of the
facts and assumptions underlying the testimony of an expert
witness [falls] squarely on the shoulders of opposing counsel’s
cross-examination.”’ Graham, Part One at p. 897. “Before an at-
torney can even hope to deal on cross-examination with un-
favorable expert opinion he must have some idea of the basis of
that opinion and the data relied upon. If the attorney is re-
quired to await examination at trial to get this information, he
often will have too little time to recognize and expose vul-
nerable spots in the testimony.” Fridenthal, at p. 486. Finally,
proper impeachment or rebuttal may have required advance
24a
knowledge so that Ford’s own experts could have been con-
sulted.8
Dr. Freston’s scheduled departure the following day com-
bined with the challenged testimony’s revelation in the midst of
trial significantly impaired Ford’s ability to cure the prejudice.
This was magnified by Dr. Freston’s use of an empirical study
not disclosed in advance of trial. Ford, of course, could have
asked for a continuance in which to prepare, but given Dr.
Freston’s appointment the following day in Detroit and the
nature of the testimony, adjournment may well have consti-
tuted a significant disruption in the trial of the case.9
For these reasons, we hold that Ford’s ability to cure the
prejudice was significantly impaired.
3. Disruption of the Trial Process.
Dr. Freston’s testimony was revealed in the midst of trial.
An adjournment for depositions, when considered in light of
the subject matter of the testimony and Dr. Freston’s other
scheduled appointments, would have resulted in a significant
disruption of trial. Proper rebuttal and impeachment undoubt-
edly would have required the consultation of other experts
and, perhaps, the enlistment of new personnel or empirical
data. A short continuance, such as that allowed, wnile not dis-
ruptive, was inadequate. The crucial nature of the testimony
8. Dr. Huelke did address Dr. Freston’s interpretation of Garrett and
Braunstein. We believe however that such rebuttal did not ameliorate
the prejudice presented as effectively as direct impeachment through
cross-examination could have.
9. We reject any suggestion that prejudice did not occur or that it could
have been cured on the grounds that “even if [defendant’s ] counsel
[was] surprised by who gave the testimony, he should not have been
surprised by its substance.” DeMarines v. KLM Royal Dutch Airlines,
580 F. 2d 1193, 1202 (3d Cir. 1978). It simply was not the responsibi-
lity of Ford to second guess Smith’s witnesses’ descriptions in his sup-
plemental pretrial submission. On this basis, and the similarity between
the description of Dr. Freston’s testimony and other witnesses already
deposed, we cannot hold that Ford had a duty to “police” or “‘double-
check” Smith’s pretrial witnesses’ description, on which Ford had every
right to rely.
25a
required more. See, Coleco Industries, Inc. v. Berman, supra,
at 576-577 n. 14; Voegeli v. Lewis, supra.
4. Bad Faith or Willfulness
Although there was an allegation of bad faith and willful-
ness imputed to counsel for Smith, [App. A, p. 4], we can-
not consider it inasmuch as the trial court did not make find-
ings in this regard. See, Ager v. Jane C. Stormont Hospital,
__F. 2d __ , (10th Cir. No. 79-2228 June 2, 1980). Fur-
thermore, we do not deem remand for consideration of this
point necessary. As stated in Coleco Industries, Inc. v. Berman,
supra, at pp. 576-577 n. 14 “Here, as in Meyers [Meyers v.
Pennypack Woods Home Ownership Ass’n., supra], there was
no explicit finding of willfulness or bad faith. Nonetheless,
unlike Meyers, no explanation was proffered for the failure to
inform defense counsel of the [nature of the challenged test-
imony] prior to trial.”
Despite our analysis, we seriously question whether bad
faith or willfulness has an application to this issue While it
may prove aggravated circumstances, this would not necessar-
ily create greater prejudical impact than a negligent act not
in conformance with pretrial procedure. The issue, on appeal,
must be analyzed from the point of view of the prejudiced
party, not vice versa.
C.
Conslusion
Balancing these factors against the wide discretion accorded
the district court in both the discovery and pretrial area, we
hold that Ford suffered such prejudice as requires the case
to be reversed and remanded for new trial.
REVERSED AND REMANDED.
26a
APPENDIX A
THE COURT:
What is your objection, Mr. Greenlee?
MR. GREENLEE:
Your Honor, it seems that Gerry never fails to come up with
a surprise, and he has done it again.
Dr. Freston first saw Mr. Smith in January of this year. He
was first listed in the Supplemental Pretrial Memorandum of
the plaintiff’s. In that Supplemental Pretrial Memorandum,
and in this list of witnesses, they tell me in January, less
than two months to the trial, Dr. Freston, University Hospi-
tal, Salt Lake City, Utah, will testify as to his medical treat-
ment of the plaintiff, to which | have no objection, as well
as to his prognosis, to which | have no objection.
Now, they are now inquiring into the causes behind his
injury, and they are doing it in such a way that the witness
is going to say, ‘Yes, | have made a study of seat-belt injuries
and these injuries are inconsistent with, ” or ‘consistent
with” — I’m not sure what he’s going to say because they
haven’t defined —
THE COURT:
Did you take a discovery deposition?
MR. GREENLEE:
No, sir, there wasn’t time. You know, we are a month and a
half away from trial, they tell me all he’s going to testify to
is how he has treated the plaintiff and how he is going to
treat him in the future.
That, you know, we admit Mr. Smith was injured. There is
no question about that. | don't have any problem and you
haven’t heard one objection from me on this witness until
this point in time. | certainly would have —
27a
THE COURT:
| think you admitted he was injured in the accident, didn’t
you?
MR. GREENLEE:
Yes. Yes, he was. But now they are trying to pinpoint, you
see, those injuries. Now that’s unfair.
THE COURT:
Do you contend that pancreatitis occurred in some other
region?
MR. GREENLEE:
The pancreatitis occurred because the various organs in the
abdominal cavity were injured when Smith was violently
thrown forward, the the inertial forces created by that
accident caused those organs to rip and tear loose and to
bang into each other in the abdominal wall and whatnot.
They were not caused, we contend, by direct application of
force from the seat belt, which is where the plaintiff wants
to go with this witness.
THE COURT:
What is the basis of your objection, Greg? Is it because you
are claiming the doctor is speculating?
MR. GREENLEE:
Well, that’s one. The first objection is, their listing of this
doctor had nothing to do with what they are now calling
him to testify to, to wit, the causes of the injury. That’s
not in here.
They simply talk about treatment, past treatment and
future treatment. And so it’s a surprise to me.
| haven’t had a chance to prepare, | haven’t had a chance
to take a deposition. | didn’t take a deposition because there
was no indication here that he would be so called to testify.
Second of all —
28a
THE COURT:
Let me say this. He did just testify that the overwhelming
weight of the facts — | think is the way he pharased it —
was that the injuries resulted from the accident.
MR. GREENLEE:
| don’t have any problem with that. | do not dispute that
the pancreatic problems arose from the accident.
But now they want him to go further and say what specif-
ically in that accident caused that injury. And that | object
to because | have had no opportunity to prepare, I’m sur-
prised, and, furthermore, in the five-year period the doctor
is speculating.
THE COURT:
Is that the bulk of your objection?
MR. GREENLEE:
That’s the bulk of it.
THE COURT:
Gerry?
MR. SPENCE:
Judge, he says he’s surprised. | guess I’m more surprised than
he is because | have never been into a court of law in my
life but what the medical doctor was asked to give a causal
opinion as to the cause of the injury.
That goes without saying. Medical doctors have to give some
testimony.
You know, if you don’t they would say, “This man isn’t
qualified” — as soon as they put Crawford on they will say,
“Well, he isn’t a doctor,’’ and ask him what he thinks caused
the injuries. You watch and see what kind of an objection
we get there.
| do admit that we are out of order, and | do tell you we will
tie it in with other evidence. But he is here and we have the
29a
intent of having him testify as to his opinion based upon
reasonable medical probability as to the cause of these inju-
ries and the mechanism involved.
THE COURT:
With regard to the surprise: I’m going to allow the witness
to testify on this. | think that what you are really saying,
Greg, is that under our system of telling each other what
a witness is going to testify to is a bad system, and | agree
to that.
Ever since the Federal Rules were adopted in this state, we
have basically, in listing witnesses in pretrial memoranda,
have said as little as we could about what they would really
testify to.
* * *
But | agree, you are basically right. We should do it better.
We haven’t. It hasn’t been our custom.
I’m going to try to make it better, but we haven’t objected
here. So | don’t see where we can really truthfully claim
surprise here, because, as Mr. Spence says, | do think that
we have gone into this question as to the causal condition
with doctors always.
Now, as to your second objection on foundation, I’m not
sure yet, | haven’t heard all the foundation, | don’t know
whether — | can’t say whether Dr. Freston is speculating or
not. The foundation isn’t complete. So | can’t rule on that.
MR. MORIARITY:
Greg can cross-examine on that point.
MR. SPENCE:
He has the right to voir dire.
MR. GREENLEE:
| have not had the opportunity to examine him before.
You know, it’s extremely scary when you get a witness that
you’ve never ever talked to.
30a
| shook his hand for the first time in this courtroom after
lunch.
MR. SPENCE:
| have never seen any of yours.
MR. GREENLEE:
But their depositions were taken by your people.
MR. SPENCE:
Some of them were and some weren’t.
MR. GREENLEE:
It seems to me that this is a critical issue to the defendant’s
defense. Now, certain'y | can get up there and ask him,
“Doctor, what about these seat-belt injuries and whatnot,”
but all I’m doing there is compounding the problem that |
already have.
Your Honor, | try to be fair with listing what my people
are going to say and try to include those areas, all of those
areas that they are expected to be called upon to testify to.
That was not done in this case.
i submit to you that it was an intentional —
MR. SPENCE:
Oh, Greg, don’t say that.
MR. GREENLEE:
— an intentional withholding of information from me on
which | would have reacted entirely differently had they said
“and the causes of his injuries.”’
THE COURT:
Basically, you see, I’m ruling that the tail goes with the hide.
You let without objection in the doctor’s testimony it was
attributable to the accident.
“What is the cause of his pancreatitis?”
“The accident was.”
31a
All right. You’ve got that in and there’s no objection. Now
here is a refinement of that and | just basically think that
that’s what it is, is a refinement of it. That’s why | say it’s
something that maybe we’re at fault in not requiring that
pretrial memoranda in greater detail.
But basicaliy | think that has not been the Wyoming prac-
tice, and | think we will have to live with it, at least in this
case. Gentlemen, let’s move.
No. 78-1636 — JOHN H. SMITH v. FORD MOTOR COMPANY
DOYLE, Circuit Judge, dissenting.
The sole issue which is relied on by the majority for reversal
is whether an alleged trial error consisting of the giving of an
incomplete or general statement as to the testimony of a
proposed expert witness, in conjunction with the naming of the
witness in the plaintiff’s pretrial statement, can justify the
reversal of a judgment rendered following a lengthy and dif-
ficult trial and the award of a highly substantial verdict. There
is not the slightest contention that the evidence is insufficient
or that the claim is ill founded. Nor does it appear that the de-
fendant made any effort by deposition or other means to obtain
a detailed statement of the proposed testimony of the expert.
Some preliminary elements need to be delineated:
A.
JUSTICE DELAYED
These injuries occurred in 1973. There was a prior trial
involving the wrongful deaths of the wives of the plaintiff
Smith and the driver of the automobile in question, Mr. Fox.
Here, we are well into the year 1980, and the end is not is sight.
At the new trial there would not be any great difference, if
any, in the facts. At the retrial either the testimony of Dr.
Freston in person or his former testimony given at the trial
below will be offered. It boils down, then, to whether or not
the plaintiff is to be punished to this extent because of the
action of his lawyer in not detailing the projected testimony of
32a
Dr. Freston rather than merely describing it in general terms.
Note also that this is not a case in which there was a failure to
endorse the name of a witness, as a result of which surprise
was claimed by Ford at the trial. We expect to show that
there was no surprise in fact, conceding that the statement was
not full and complete.
B.
SURPRISE IN FACT IS NOT DEMONSTRATED
Ford maintains that it had only 1-1/2 months to prepare
itself, and thus its failure to take a deposition should not be
counted against it. This is incorrect. The witness in question,
Dr. James W. Freston, was in fact endorsed not quite 2-1/2
months prior to the trial in late March. This notice was given
at a supplemental pretrial conference held on January 24, 1978.
Does the time span of not quite 2-1/2 months prior to trial
constitute a justification for failing to probe the details of
Dr. Freston’s testimony? Counsel for Ford were aware of the
fact that the plaintiff, Mr. Smith, was, at that very time, being
treated by Dr. Freston and was in personal contact with Dr.
Freston. Certainly, this was worthy of some inquiry. But,
counsel for Ford made no move, formal or otherwise, to ascer-
tain the details. Granted, the notice was cryptic and conclusory.
This raises the question whether it is permissible in an adversary
proceeding such as this for the attorney for the defendant to
ignore a notice which gives the name and general nature of the
testimony of an expert and to run the risk incident to not
making inquiry as to the details of the testimony, notwith-
Standing that a mere demand submitted to the judge would have
compelled the plaintiff’s lawyer to reveal in every detail the
proposed testimony of the expert. Thus, it would not have
been necessary for Ford to take a deposition. Certainly, it was
hazardous in a case of this magnitude for Ford’s counsel to elect
to run the risk of having to cope with damaging testimony for
which no specific preparation had been made (so it is claimed).
Of course, there had been preparation. Ford had brought in an
expert from the University of Michigan Medical School, Dr.
Huelke, who was fully prepared to refute any testimony dealing
with the seat belt as a cause. Perhaps this latter fact accounts
for Ford’s decision not to pursue the deposition.
The doubling of the damage demand by counsel for Smith to
33a
one million dollars, which took place virtually simultaneously
with the listing of the witness, gave added notice to Ford that
plaintiff did not believe that there existed a void in the testi-
mony.
Accordingly, we have a setting in which a case had been
carefully prepared over a long period of time and which was in
the last weeks of preparation. The issues were fully understood.
Ford knew about the problem of cause as applied to the seat
belt because the main deficiency relied on by the defendant
was this specific element. Also, Ford was prepared to meet
this issue. The fact that Ford was ready detracts from the claim
of Ford that it was surprised.
The witness who was endorsed, Dr. Freston, was not any
ordinary internist. He was an expert in the particular field
and in this particular part of internal medicine. He had not
only an M.D. degree, but a Ph. D. as well, and he was Chairman
of an important department of the University of Utah Medical
School. Surely none of this was ignored by Ford.
c..
THE IMPORTANCE OF THE TRIAL COURT’S FINDING
A third factor which is entitled to be weighed is the finding
of the trial court that surprise did not exist. In view of the
specialty of Dr. Freston and the peculiarly serious injuries of
Smith, including extensive injuries to the pancreas, which
could be fatal, and removal of the spleen, there was good
reason for counsel to be generally aware of the foregoing
testimony and to expect testimony as to causation. This issue
was anticipated of each of the other medical witnesses who
were deposed.
D.
FORD’S ELECTION NOT TO OBJECT WHEN DR FRESTON
WAS ASKED A GENERAL QUESTION ABOUT
PROXIMATE CAUSE
A timely objection to the testimony of this witness was not
given. Counsel waited until Dr. Freston had testified to one
phase of proximate cause, that which had to do the the auto-
mobile coilision as a cause of the injuries which were the
34a
subject of the lawsuit. Objection was not made until the ques-
tion of cause as it related to the seat belt was introduced.
Only then did counsel for Ford claim surprise. The trial court
considered this a waiver of objection.
E.
SURPRISE WAS NOT ESTABLISHED
Finally, the trial court had lived with this case and the pre-
decessor. Having worked closely with the lawyers, the judge
was in a good position to make a finding on the existence or
nonexistence of surprise. Not a scintilla of evidence on the
subject of surprise was offered by Ford. No detailed inquiry
was conducted, no witness was presented, and so the reversal
rests on an analysis by the majority of the circumstances
surrounding this incident to the extent that they are able to
squeeze favorable inferences from the basic facts, plus the mere
claim that was made by counsel. This isn’t much.
The circumstances at the trial do not bespeak surprise.
Not only was it brought out that Dr. Donald F. Huelke, Ford’s
expert witness, was fully prepared on the general subject of
seat belt cause, he was also ready to refute the testimony of
Dr. Freston that the position of the seat belt produced the
serious internal injuries. Dr. Huelke was even familiar with
the Garrett and Braunstein article (the literature on which Dr.
Freston relied).
The case of Tupman Thurlow Co. v. S.S. Cap Castillo, 490
F. 2d 302 (2d Cir. 1974), considered whether the party claim-
ing surprise was prepared to cope with the evidence to which
objection was made, which fact was considered pertinent in
deciding whether in fact there was surprise.
* kek KK
The preliminary facts which are stated raise a question as to
why Ford refrained from deposing Dr. Freston, and whether
Ford should be allowed to refrain from making any effort to
ascertain the details of the testimony of an expert who is
listed and to rely entirely on the initiative of the plaintiff in
bringing each and every detail to its attention. Ford would
35a
say that it was so misled by the statement that it did not con-
sider it necessary to act. This ignores the complexity of the
case, for example, the fact that the causation issue was fore-
most in the minds of both lawyers. A distinguished physician
was named and thorough preparation required every possibility
to be examined. Is it unnecessary for the adversary party to
take obvious steps to protect its position? Neither side should,
consistent with the spirit of the rules, be allowed to sit back
and fail to take obvious action to ascertain facts. To fail to do
sO suggests an attempt to use the rules for the object of devel-
oping an error. The trial court was of the view that neither side
was genuinely surprised, that each was trying to outmaneuver
the other. If this was the case, there should not be a reversal
because this punishes the innocent litigant.
The important guide to the duty to supplement requests for
discovery is subsection (e) of Rule 26, an amendment which
was added in 1970. It states that ‘A party who has responded
to a request for discovery with a response that was complete
when made is under no duty to supplement his response”
except in two instances: 1) where the question is addressed to
the identity and location of persons having knowledge of dis-
coverable materials; 2) the identity of persons who expect to be
called as an expert witness at trial, the subject matter on which
he is expected to testify, and the substance of his testimony.!
Professor James Moore in his Treatise, Moore’s Federal
Practice Section 26.81, explains the purpose of the amend-
ments:
Subdivision (e) of Rule 26 was added in 1970 to end the un-
certainty that had developed over the duty to supplement.
This provision imposes directly the duty to supplement
1. The text of Rule 26 (e) (1) is as follows:
1. A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to (A) the identity and lo-
cation of persons having knowledge of discoverable matters, and (B) the
identity of each person expected to be called as an expert witness at
trial, the subject matter in which he is expected to testify, and the sub-
stance of his testimony.
36a
answers to interrogatories seeking the identity and location
of persons having knowledge of any discoverable matter,
and answers to interrogatories seeking the identity of persons
expected to be called as expert witnesses at the trial and the
substance of their expected testimony. Further, when a
party who has answered interrogatories discovers that the
answers were incorrect when given, he has a duty to amend
them to conform to the truth.
Along the lines suggested by Judge Ellis in Gorsha [v. Com-
mercial Transport Cpr., 38 F.R.D. 188 (E. D. La. 1965)],
the subdivision also provides that under circumstances in
which failure to provide subsequent information would be
“in substance in a knowing concealment”’ there is a duty to
supplement the answer though it was correct when made.
Flexibility is provided by a provision in subdivision (e) (3)
that the duty to supplement answers may be imposed by the
court or by agreement of the parties. Of course the parties
are free to serve new interrogatories requesting supplemen-
tation of the answers to the earlier set. (Emphasis supplied.)
Does the majority opinion impose an absolute and exclusive
duty on a party to supplement answers to interrogatories or
to amend them? It does this and more. The failure to detail
the testimony, according to the majority, can be likened to an
offense Malum in se. It calls for imposition of the extreme
penalty regardless of whether surprise, prejudice or willfulness
is established.
The First Circuit in Simonsen v. Barlo Plastics Co., Inc.,
551 F. 2d 469 (1st Cir. 1977), considered the consequence of
plaintiff’s failure to disclose the complete substance of an
expert witness’s testimony. It held that the consequence was
within the trial court’s discretion. The plaintiff in Simonsen
had not given notice that his expert would testify to permanent
unemployability of the plaintiff. The defense sought a recess
in order to find a vocational rehabilitation expert. The trial
court denied the motion seeking delay and the First Circuit
affirmed. The court said:
PSCo argues that it should not be bound by the pretrial
37a
order as it was surprised by testimony of plaintiff’s expert,
Arthur Kenison, that Simonsen might be permanently un-
employable .... At the time the list of expert witnesses was
filed, Simonsen is said to have been working on and off as
a truck driver so that PSCo had no reason to anticipate any
need for testimony about vocational rehabilitation. However,
PSCo was informed over five months prior to trial that
Kenison would be testifying as an expert and, through dis-
covery, could have ascertained the substance of his testimony
. . . .Moreover the complaint had alleged permanent disa-
bility. Clearly the court did not abuse its discretion in refus-
ing to hold up the progress of the trial for the testimony of
the unlisted and as yet unlocated expert. (Emphasis sup-
plied.)
551 F. 2d at 471.
Simonsen thus places the burden on the defendant to take
the initiative by deposing the witness—just the opposite of the
position taken by the majority here.
The situation is far different where the expert witness is
unknown and an effort is being made to call him after having
failed to name him. See Davis v. Duplantis, 448 F. 2d 918
(Sth Cir. 1971). But in that case the trial judge allowed the
expert to testify notwithstanding failure to list his name as a
witness in accordance with the pretrial order. The Fifth Circuit
upheld the ruling, noting the severity of the sanction which
denies the testimony. Thus, the court weighed the consequences
of precluding the calling of the witness against the magnitude
of the violation of the rule and decided that the discretion of
the trial court should be upheld. The Fifth Circuit was also
persuaded by the fact that the plaintiff’s counsel knew that the
doctor was a potential witness since he had been furnished a
report before the trial and had had an opportunity at that time
to depose him.
The Seventh Circuit has also had occasion to rule on the
subject of failure to name the witnesses where knowledge of
expertise was not discovered until time to the trial. See Sa-
dowski v. Bombardier Ltd., 539 F. 2d 615 (7th Cir. 1976). The
38a
witnesses in that case had been listed in the pretrial order,
but had not been listed as experts. The court noted that the
question was a close one, but observed that the testimony
became significant during the trial and this tended to excuse the
lateness of their being treated as experts. Again, the exercise
of the trial court’s descretion was upheld.
This court had occasion to consider the admissibility of
material which had not been disclosed in a supplement to a
response given in answer to an interrogatory required by Rule
26 (e) in Price v. Lake Sales Supply R.M., Ins., 510 F. 2d 388
(10th Cir. 1974). We stated:
It is quite true that parties are under a continuing duty to
supplement their responses. See 4 J. Moore, Moore’s Federal
Practice [Section] 26.81 (1970). Rule 26 clearly requires
this. There is no indication, however, that the trial court
believed that this failure to amend was a knowing conceal-
ment. In any event, it is questionable whether exclusion is
the only proper penalty for failing to comply with require-
ment. Surely the trial judge has some discretion in selecting
the sanctions and it does not appear that the court abused its
discretion in this instance.
510 F. 2d at 395. We thus recognized in that case the impor-
tance of the fact that there was a lack of evidence showing a
knowing concealment. It was also recognized that the use of the
exclusion sanction was questionable and that the trial judge
should have some discretion in selecting sanctions and that in
that instance there was no reason to conclude that there had
been an abuse of trial court discretion.
The majority opinion cites, among other cases, the Fifth
Circuit’s decision in Shelak v. White Motor Co., 581 F. 2d 1155
(Sth Cir. 1978). In that case the trial court’s discretion was
determined to have been improperly exercised in allowing the
testimony of plaintiff’s expert witness, which testimony con-
nected the plaintiff’s back injuries to an accident on a defective
step and also connected a heart attack to the same accident.
The evidence of the causal connection of the heart attack
39a
arose on the date of the jury selection. It is understandable that
the testimony in the Shelak case, considering the date on
which it arose, and the nature of it, justified the trial court’s
decision that it should be rejected. However, even in that ex-
treme situation, there was a divided court. Judge Rubin dis-
sented on the ground that the trial court’s discretion in allowing
the evidence should have been upheld. In the Shelak case the
trial court had also allowed a witness to testify who had not
been named. The Fifth Circuit ruled that receipt of this evi-
dence was not reversible error because it did not appear that
there was surprise and thus prejudice. See 581 F. 2d at 1159.
Thus, the Shelak case is at odds with the proposed opinion in
this case, which holds that it was error for the trial court to al-
low Dr. Freston to testify even in a situation in which surprise
was far from clear.
Weiss v. Chrysler Motors Corporation, 515 F. 2d 449 (2d Cir.
1975), is relied on by the majority as upholding the right of a
reviewing court to void the exercise by the trial court of dis-
cretion on a matter such as is presented. It is to be noted,
however, that the Weiss case involved broad and generai notice
as to what the witness was going to testify to. Actually, the
Second Circuit in the Weiss case ruled that this was not re-
versible error. The case was reversed for error in refusing to
admit proffered evidence in rebuttal, which evidence was ad-
missible as a matter of right and which did not become per-
tinent until the rebuttal. 515 F. 2d at 458, 459.
The majority opinion also relied on the case of Voegeli v.
Lewis, 568 F. 2d 89, 96 (8th Cir. 1977), a malpractice case in
which one of the expert witnesses for the defense changed his
testimony between the time of his deposition and the time of
trial. Tie defense had demanded through interrogatories the
nature of the testimony which was being offered. The answers
were inadequate and the court granted a motion to compel
answers, but, again, the answer was inadequate and misleading.
A second set of interrogatories was denied enforcement by the
court. Also, the court allowed the defendant to call another
expert witness, although, previously, counsel for the defendant
had indicated that he would not be called, as a result of which
there had not been voir dire examination of the jury concerning
40a
the witness. The Court of Appeals for the Eighth Circuit re-
versed the case and remanded it to the trial court, saying
that there had been an abuse of discretion by that court grow-
ing out of the trial court’s having failed to enforce its original
order compelling answers to interrogatories in the case of one
of the experts who changed his testimony. The court said, in
addition, that the plaintiff was deprived of the opportunity to
voir dire with respect to the other expert. Voegeli is so complex
and different from the case at bar that it is not an effective au-
thority in this case, which is limited to an objection to allegedly
Surprise expert testimony, the substance of which was claimed
to have produced surprise.
There is one other complaint by the majority and that is
that Ford was allowed only 10 minutes to prepare cross-exami-
nation. The majority does not mention the fact that the 10 min-
utes was all that was requested. Moore’s Federal Practice para-
graph 59.08[2] states that the surprised party should move for
a continuance at the time of the surprise or otherwise he will
be considered as having waived his objection. The cases cited by
Moore are Jackson v. MFA Mut. Ins. Co., 169 F. Supp. 638
(W.D. Ark. 1959); Campbell v. District of Columbia, 153 F.
Supp. 730 (D.D.C. 1957), aff'd 254 F. 2d 357 (D.C. Cir. 1958);
Dow v. Carnegie-Illinois Steel Corp., 70 F. Supp. 1016, 1019
(W.D. Pa. 1947), rev’d on other grounds, 165 F. 2d 777 (3rd
Cir. 1947); Beardsley v. Howard & Bullough American Mach.
Co., 176 F. 619 (C.C. D.R.I. 1910). Cf. Tabatchnick v. G.D.
Searle, 67 F.R.D. 49 (D.N.J. 1975).
In summary:
The finding of the trial judge that surprise was nonexistent
is of high importance of these reasons:
1) The cases show that actual existence of surprise is essen-
tial. Also necessary is, of course, prejudice.
2) Constructive surprise, as discussed in the majority opinion,
without more, surely is not enough. Surprise implied in
law will not suffice. The surprise must be real.
3) The evidence of surprise is meager. There exists, of course,
the claim made in open court by Ford’s counsel, but this is
4la
not evidence. It is merely an allegation. If, indeed, this sea-
soned and experienced trial lawyer was surprised, that in-
deed would be surprising given the exposure that he has
had in this case. In fact, both sides have lived with the case
for many years and they were sensitive to the issue of seat
belt cause alleged by plaintiff and defended by Ford. Both
sides knew that plaintiff had to come forward with evi-
dence establishing that the seat belt caused the harm. Fur-
thermore, the conduct of counsel for Ford during the trial
showed that he was alert to the issue and indeed apprehen-
sive about the special testimony of Dr. Freston on the sub-
ject, for he was quick to distinguish between general causa-
tion and the specific causation involved here.
In the face of the foregoing, how can the majority demon-
strate the plain error necessary to a substitution of its judgment
for that of the trial court?
We mention one final point. The Rules of Civil Procedure do
not allow counsel on one side to depend on his opponent for
every item of evidence that the opponent is going to offer. The
Rules contemplate the identification of witnesses and subject
matter so as to permit the adversary to take depositions or to
seek interrogatories or move for a more detailed statement as to
what the evidence is going to be, but all of these avenues are
open and to place all of the burden on the plaintiff to the
detriment of his client is, to say the least, grossly unjust.
In closing, there is no gainsaying that the sanction imposed
was excessive considering the circumstances, including the
length and difficulty of the trial and the fact that there is no
real issue as to Ford’s liability.
This was a well conducted trial, as lengthy and complex
trial go. Unfortunately, it is impossible to have a perfect trial,
human fallibility being considered. This is especially true from
the standpoint of technical perfection. This does not mean that
perfection should not be sought after, but there is not an indi-
cation that this goal was ever abandoned in the present case.
For all of these reasons, | respectfully disagree with the
reasoning and conclusion of the majority opinion.
42a
APPENDIX B
Order Denying Petition for Rehearing
in Court of Appeals
SEPTEMBER TERM — September 16, 1980
Before Honorable Oliver Seth, Chief Judge, Honorable William
}. Holloway, Jr., Honorable Robert H. McWilliams, Honorable
James E. Barrett, Honorable William E. Doyle, Honorable Mon-
roe G. McKay, Honorable James K. Logan and Honorable Step-
hanie K. Seymour, Circuit Judges.
JOHN H. SMITH,
Plaintiff-Appellee, No. 78—1636
)
)
)
)
vs. )
)
FORD MOTOR COMPANY, )
)
)
Defendant-Appellant.
This matter comes on for consideration of the petition of
appellee for rehearing with suggestion for rehearing in banc.
Upon consideration whereof, it is ordered:
1. The petition for rehearing is denied by the panel that
rendered the decision sought to be reheard. Judge
Doyle voted to grant rehearing.
2. The suggestion for rehearing having been transmitted
to the members of the panel and to the judges of the
Court who are in regular active service and a vote hav-
ing been taken, the suggestion for rehearing in banc is
denied. Judge Doyle voted to grant rehearing in banc.
/s/
HOWARD K. PHILLIPS, Clerk
APPENDIX C
Petit:on for Rehearing
in Court of Appeals
Without Exhibits
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN H. SMITH,
Plaintiff-Appellee,
)
)
)
)
VS. ) No. 78-1636
)
FORD MOTOR COMPANY, )
)
)
Defendant-Appellant.
PETITION OF PLAINTIFF-APPELLEE, JOHN H. SMITH
FOR A REHEARING WITH SUGGESTION
OF REHEARING EN BANC
EDWARD P. MORIARITY
Spence, Moriarity & Schuster
Post Office Box 554
Jackson, Wyoming 83001
JOHN R. HURSH
Central Wyoming Law Associates, P C
105—107 South 6th East
Riverton, Wyoming 82501
Attorneys for Plaintiff-Appellee
July, 1980
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN H. SMITH, )
Plaintiff-Appellee, !
vs. ) No. 78-1636
FORD MOTOR COMPANY, :
Defendant-Appellant. |
PETITION OF PLAINTIFF-APPELLEE, JOHN H. SMITH
FOR A REHEARING WITH SUGGESTION
OF REHEARING EN BANC
The Plaintiff-Appellee, John H. Smith, respectfully petitions
this Court for a rehearing with suggestion of rehearing en banc.
Reasons Why The Petition for Rehearing
Should Be Granted And Why The
Rehearing Should Be En Banc
This Petition for Rehearing en banc should be granted for
the following reasons:
(1) A sharply divided panel of this Court has substituted its
discretion for that of the trial judge by completely mis-
apprehending and desregarding the Record by finding
nothing in the Record countering Ford’s claim of sur-
prise and prejudice, (Opinion p. 28), when in fact Judge
Brimmer made a specific factual finding of no surprise.
(App. p. 267).
(2) The majority completely misapprehended and disre-
garded the Record in finding that Dr. Freston testified
that the injury was caused by a defective seat belt.
(3) The majority allows Ford’s Appellate Counsel to appeal
on premises not properly raised at the trial level, deny-
ing Appellee due process. This action permitted the ma-
jority to make erroneous factual findings.
(4) The far-reaching ramifications of the majority ruling
upon the pretrial practice and discretion of the trial
judges in this Circuit must be examined en banc as it is
a direct departure from prior rulings of this Circuit and
the Fifth, Seventh and Eighth Circuits, as well as the
Supreme Court.
From the foregoing, it is urged that this case be reheard en
banc under Rule 35 (a), R.R.App.P.
ARGUMENT
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
AND THE MAJORITY’S FINDING WAS BASED UPON AN
ERRONEOUS PREMISE:
(1) One of the best protected rules of Appellate Procedure
is that the discretion of a trial court judge will not be
disturbed absent clear and convincing evidence of an
abuse. Bosse v. Ideco Division of Dresser Industries, 412
F. 2d 567 (10th Cir. 1969). The majority, at Page 28 of
the Opinion concluded, “We find nothing in the Record
countering Ford’s claim of surprise and prejudice”. This
finding is contrary to the Record. The issue was argued
in Chambers (A-262-269). There are no facts in the
Record to support Ford’s Claim of surprise or prejudice.
The Record, however, does disclose Judge Brimmer’s
finding: ‘I’m going to try to make it better, but we
haven’t objected here. So | don’t see where we can really
truthfully claim surprise here, because, as Mr. Spence
says, | do think we have gone into this question as to
causal condition with doctors always.” (A-267).
2c
Three points are made by Judge Brimmer:
(1) No objection to how information was listed in the
pretrial;
(2) No surprise;
(3) The doctors always testify to causation.
There is absolutely no abuse of discretion by Judge
Brimmer. He knew his case, the attorneys, the atmo-
sphere, and the applicable rules of practice and pro-
cedure. Considerable defference should be accorded his
interpretation and application of these rules, Martinez
v. Thrifty Drug and Discount Company, 593 F. 2d 992
(10th Cir. 1978).
(2) There is absolutely no evidence Judge Brimmer mis-
construed his rules. It is submitted that Judge Brimmer
would have abused his discretion had he granted the
relief requested based upon the Record before him at
that time. There were no objections made prior to trial
that would have put the parties on notice and which,
if made, would have permitted the Court to make rulings
that would not have prejudiced one side or the other.
The rules require a record be made at the time so the
court ard counsel are given an opportunity to correct the
problem if one exists. To permit Appellate Counsel to
succeed without a proper timely record amounts to
appeal by ambush — not only of opposing counsel but
of the trial judge as well. Prior to trial there were no re-
quests for updated interrogatories; no request for more
information on the witnesses (even though Plaintiff’s
counsel had offered said information, see A-131 at-
tached); no objection to the procedure used at the pre-
trial, no request for additional information at the pretrial
(A-78-106); and no deposition was taken, with the excuse
given to the Court on the Record that Ford didn’t take
the time. Trial courts in the heat of battle are called upon
to make rulings based on the record and facts and repre-
sentations of counsel at that time. Based upon the repre-
sentations and facts at the time, it is clear that Judge
Brimmer did not abuse his discretion. The Record did
contain matters countering Ford’s claim of surprise and
3c
prejudice and contained the trial court’s finding of no
surprise. The majority erred in its findings based upon
an erroneous premise and, therefore, a rehearing should
be granted.
Misapprehension of the Record re Causation:
1. The majority, at Page 29, states that Dr. Freston testified,
“*, . the injuries were caused by a defective seat belt”’.
They went on to say at Page 30, “The challenged testi-
mony provided crucial, non-cumulative evidence on the
question of whether a defective seat belt aggravated or
enhanced Mr. Smith’s injuries. The majority placed so
much reliance on defective that it was underscored in the
Opinion. NOWHERE JIN THE RECORD DOES DR.
FRESTON TESTIFY THAT THE INJURY WAS CAUS.-
ED BY A DEFECTIVE SEAT BELT. It was never there.
2. Dr. Freston’s testimony was clear and concise:
“The evidence is good that the seat belt was involved in
that injury.” (App. Vol. Il p. 273). There is absolutely no
reference anywhere in the Record where L'r. Freston says
a defective seat belt caused the injury. He simply, as a
part of his diagnosis, isolated the cause of the trauma.
3. The issue of the seat belt being defective was addressed
directly in the testimony of Professor Crawford. This
expert engineer testified that the defective seat belt,
as well as the whole defective passenger restraint system,
caused the injury. An example of where the defective
seat belt testimony derives comes from Crawford’s testi-
mony at p. 559:
“Q. Do you have an opinion as to the effectiveness of the
seat belt attachment design in providing reasonable
protection to the passengers, from the seat belt, in
25 to 35 mile per hour crashes of the kind involved
in this case?
A. Yes, sir, | do.
Q. What is your opinion:
4c
A. The seat belt location is not at 45 degrees and it tends
to cause injury to an individual wearing it in crashes
of this nature.” (App. Vol. III, p. 559) See also: pp.
469, 502-511, 559 to 572 of the Appendix for the
other opinions re causation.
4. A careful review of the Record clearly shows that causa-
tion was per Professor Crawford and that Dr. Freston did
not render an opinion that the seat belt was defective,
thus, the majority premised its opinion on a misapprehen-
sion of the Record.
The New Pretrial Practice:
1. Ford’s trial counsel, by letter to the Court on January 5,
1978, suggested the exact procedure that he wanted
to follow for final discovery and listing of witnesses.
Judge Brimmer exercised his discretion and adopted
Ford’s plan. (The letter is attached). Dr. Freston was
listed in the manner Ford requested. His medical records
were given to Ford which spoke of “seat belt trauma”.
Plaintiff’s counsel offered to meet with Ford’s counsel
and discuss any problem areas in testimony (App. p. 131
attached). Ford did not respond nor depose Dr. Freston
who was the treating physician and not a hired expert as
was Ford’s Dr. Huelke. The trial court found that the
parties had cooperated well and no objections to the pro-
cedure by Ford or discovery motions were pending when
the trial began.
2. The majority now says this was bad practice and com-
pletely rewrites the pretrial practice for this Circuit. The
trial judge’s discretion in controlling discovery and struc-
turing the pretrial is wiped out. The majority here now
dictates mini-trials which in a complex case such as this
could last for days.
3. The majority found the Wyoming practice is in accord
with its rationale and cites Ford Motor Co. v. Kuhbacher,
518 P.2d 1255 (Wyo. 1974). Even a cursory reading of
Kuhbacher shows that the majority misread the case.
In that case, the Wyoming Supreme Court allowed a wit-
5c
ness to testify who was not even named. (The relevant
portion of the Opinion is attached). No new pretrial pro-
cedure was retroactively applied to the Plaintiff in Kuh-
bacher. (The Defendant incidentally was Ford Motor Co.,
Appellant).
The majority here usurps the trial judge’s discretion con-
cerning pretrial discovery which is not in accord with the
Supreme Court or the other circuits. The new interpre-
tation of Rule 16 will cause pretrial conferences to be-
come trials on paper instead of in the courtroom. This is
contrary to Link v. Wabash Railroad Co., 370 U.S. 626
(1962); McCargo v. Hendrick, 545 F.2d 393 (4th Cir.
1976); Davis v. Duplantis, 448 F.2d 918 (5th Cir. 1971).
The majority directs a new maze of complex and detailed
pretrial procedures. The remedial sanctions against J udge
Brimmer are applied retroactively and Mr. Smith suffers.
The Wyoming procedure has never been criticized before
and even Ford’s trial counsel made no objection. In fact,
by letter, Ford’s trial counsel invoked the very custom
and practice Ford’s appellate counsel succeeds in over-
turning. The District of Wyoming prides itself and its
Docket has been nationally recognized for its speed and
efficiency. This decision ends that. This Court’s own pre-
cedent is even overruled. Martinez v. Thrifty Drug and
Discount Co., 593 F.2d 992 (10th Cir. 1978). See e.g.
Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (Sth
Cir. 1978); Identi Seal Corp. of Wisconsin y. Positive
Identification, 560 F.2d 298 (7th Cir. 1977). (A perti-
nent article appearing in the 1980 Edition of Litigation is
also attached.)
SUMMARY
This precedent-setting Opinion which is in conflict with rul-
ings in four other circuits will have far-reaching ramifications on
a trial judge’s discretion as well as on pretrial practices. The
critical factors relied on by the majority for reversal, i.e. Dr.
Freston saying the seat belt was defective and there being noth-
ing in the Record countering Ford’s allegations of surprise and
6c
prejudice are both incorrect. The Appellant was allowed to lay
silent, not required to make a record, and did not afford the
trial court an opportunity to correct an alieged error. The
majority ruling changes the guidelines of appellate procedure
and without notice changes the existing accepted procedures of
pretrial practice in the District of Wyoming after the fact. This
adds up to appeal by ambush which is resulting in a prejudicial
ruling against an innocent Wyoming victim of a defective cor-
porate product. A reversal not only makes bad law, but requires
a new trial of a case over eight years old because defense coun-
sel chose not to take a deposition and now claims surprise.
Since justice delayed is justice denied and as this matter
has been on appeal for two years, a careful review of this dan-
gerous precedent-setting reversal by a sharply divided court is
only just and proper.
CONCLUSION
The Petition for a Rehearing en banc should be granted.
DATED this 31st day of July, 1980.
Respectfully submitted,
Edward P. Moriarity
Spence, Moriarity & Schuster
Post Office Box 554
Jackson, Wyoming 83001
John R. Hursh
Central Wyoming Law Associates, P. C.
105—107 South 6th East
Riverton, Wyoming 82501
Counsel for John H. Smith
Plaintiff-Appellee
Tc
CERTIFICATE OF SERVICE
| hereby certify that on this 31 day of July, 1980, I did serve
the foregoing Petition of John H. Smith for a Rehearing with
Suggestion of Rehearing en banc by mailing two copies, first-
class postage prepaid, to the following:
Mr. G. G. Greenlee
Murane & Bostwick
500 Wyoming Building
Casper, Wyoming 82601
Mr. Gordon G. Greiner
Holland & Hart
Post Office Box 8749
Denver, Colorado 80201
John R. Hursh
CENTRAL WYOMING LAW ASSOCIATES, P. C.
105—107 South 6th East
Riverton, Wyoming 82501
of Counsel for John H. Smith
Plaintiff-Appellee
8c
Misapprehension of the Record:
(1) The majority opinion reads:
“The critical nature of Dr. Freston’s testimony convinces
us that Ford was prejudiced in the presentation of its case
Dr. Freston not only testified that Plaintiff’s injuries were
caused by the seat belt; he also testified that in his opinion,
based on the article he had read, the injuries were caused by a
defective seat belt.” (Opinion p. 29)
(2) Dr. Freson did not so testify. The Record shows the fol-
lowing exact testimony.
“Q. Do you have an opinion based upon reasonable medi-
cal probability as to the cause. . . as to what caused
the injuries (to the) spleen and to the pancreas in the
case at hand?
Mr. Greenlee: (Objection)
The Court: (Overruled)
A. Yes, | have an opinion.
Q. (By Mr. Spence) Would you state to the jury what
your opinion is?
A. Yes, my opinion is that the probability is overwhelm-
ing that the injury to the pancreas resulted from the
automobile accident.
And specifically, the evidence is good that the seat
belt was involved in that injury.”
(App. Vol. Il, p. 273-274)
Attachment No. 1
9c
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.