While at work Robert Hill fell from a loading dock onto railroad tracks crushing his face and jaw. He was rushed to a hospital where one day later he suffered respiratory arrest. Further complications, including lack of oxygen to Hill’s brain during the respiratory arrest, produced a coma and he eventually died. Hill’s widow sued claiming medical malpractice. The defendants asserted Hill’s respiratory arrest and death were due to preexisting blocked arteries. A jury found for the defense, and Mrs. Hill appeals, claiming error on a number of evidentiary and other rulings. We affirm the district court’s decision on the merits and sanction Mrs. Hill’s counsel for failing to include the district court’s orders in the appendix as required under Rule 30.
I.
While at work at Bethlehem Steel in northwest Indiana in May 1990, Robert Hill fell eight feet from a loading dock onto railroad tracks. An ambulance transported him to the emergency room at Porter Memorial Hospital. Hill had suffered a serious head injury and fractured nearly every bone in his face. He was in much pain. At times he exhibited agitated, confused, and restless behavior; at others he cooperated with directions from medical personnel. This behavior was consonant with a low level of oxygen in the blood. Hospital personnel gave Hill a sedative and a pain killer. He exhibited no respiratory problems and his blood gases, including oxygen, eventually climbed within acceptable ranges. A CT scan of his head was normal.
The next night Hill went into respiratory arrest. Oxygen was forced into his lungs and doctors made several unsuccessful attempts to place a breathing tube down his throat. After 19 minutes the doctors finally intubated Hill, and his heartbeat, pulse, and blood pressure were restored. Nevertheless, as a result of the respiratory arrest Hill had suffered brain damage, leaving him comatose.
A test administered after the respiratory arrest showed blockage in the blood flow to
After eleven weeks Hill was discharged from the hospital. He remained in a coma until he died in January 1991, eight months after the accident. Hill’s wife, personal representative for his estate and a registered nurse, blamed her husband’s suffering and death on the hospital, his treating physicians, hospital personnel, and a related clinic. As required by Indiana law, Mrs. Hill presented her medical malpractice claim to a medical review panel which unanimously found that the defendants met the applicable standard of care in treating Hill. She then pursued her claim in federal court alleging medical malpractice in the treatment and care of her husband. By consent of the parties and pursuant to Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c), the case was referred to a magistrate judge who conducted an eleven-day trial. One of Mrs. Hill’s expert witnesses opined that Hill’s respiratory arrest resulted not from brain stem stroke, but from hypoxia, or lack of tissue oxygenation. Mrs. Hill claimed that medications prescribed for her husband suppressed his respiratory drive, leading to oxygen deprivation, cessation of breathing, a coma, and eventually death. Mrs. Hill also claimed that the defendants failed to monitor her husband and to recognize his condition and that the resuscitation effort during and after the respiratory arrest was substandard. A jury rendered a general verdict for the defendants.
II.
On appeal Mrs. Hill raises a myriad of arguments.
We review the magistrate judge’s evidentiary rulings for abuse of discretion. Richardson v. Consolidated Rail Corp.,
A. Violation of Witness Separation Order
Before trial the magistrate judge issued a witness separation order pursuant to Fed.R.Evid. 615, which provides that the court shall order witnesses excluded from trial so they cannot hear the testimony of other witnesses. During trial, part of the testimony of Dr. Kelly (a neuroradiologist), one of Mrs. Hill’s expert witnesses, was transcribed and presented for review to Drs. Rosen (an internist) and Geremia (a neuroradiologist), expert witnesses retained by the defense. Dr. Kelly testified about a study performed on Hill a week after the accident which assessed the blood supply to certain portions of Hill’s brain. Dr. Kelly had never been deposed, and testified during Mrs. Hill’s
Although a witness called by the plaintiff, Dr. Kelly’s trial testimony cut against Mrs. Hill’s trial theory that pre-existing arterial blockages had no relationship to Hill’s respiratory arrest. Upon realizing that before testifying Drs. Rosen and Geremia had read the trial transcript of Dr. Kelly’s testimony, Mrs. Hill’s counsel moved that their testimony be stricken, arguing that Drs. Rosen and Geremia “tailored” their expert opinions based on Dr. Kelly’s testimony. In the alternative, Mrs. Hill’s counsel requested that the jury be instructed concerning the credibility of an expert witness who had reviewed another witness’ trial testimony.
The magistrate judge refused to strike the doctors’ testimony. He found no evidence that the doctors had tailored their opinions based on Dr. Kelly’s testimony. As a cautionary measure the magistrate judge granted Hill’s counsel’s alternative request and instructed the jury on evaluating the credibility of a witness alleged to have violated the separation order. He also said that Hill’s counsel could have the defense’s expert testimony transcribed and given to plaintiffs expert rebuttal witnesses.
We scrutinize for abuse of discretion the district court’s decision to permit the expert testimony of Drs. Rosen and Geremia notwithstanding that they had read the trial testimony of Dr. Kelly. Federal Rule of Evidence 703 expressly states that an expert can base his opinion on the facts and data learned from attending the trial and listening to testimony. This is precisely the conduct of which Mrs. Hill complains. See, e.g., United, States v. Crabtree,
If witnesses fashion their testimony based upon another witness’ testimony, Rule 615 is violated. See United States v. Jackson,
Moreover, faced with this motion the magistrate judge took the extra measures of: (1) allowing each side’s expert witnesses to consult the others’ trial testimony; and (2) instructing the jury on expert witness credibility in response to any Rule 615 violation. The instruction advised the jury that it could consider a witness’ review of trial testimony in evaluating that witness’ testimony. This instruction was sufficient to correct the risk of unfairness.
B. Exclusion of Two of Mrs. Hill’s Expert Witnesses
At a June 24, 1994 scheduling conference, upon agreement of the parties and pursuant to a Fed.R.Civ.P. 16 order entered by the district court, Mrs. Hill was to identify her expert witnesses and provide expert reports to the defendants by August 31, 1994. Mrs. Hill identified one of her expert witnesses, Dr. Rader, on August 25, 1994, within the required time period. But she waited until October 14,1994, 45 days after her disclosure deadline, to identify her second expert witness, Dr. Cranberg. She did not provide Dr. Cranberg’s report until November 18, 1994, 80 days after her disclosure deadline. Mrs. Hill identified Dr. Rothenberg as another of her expert witnesses on November 12, 1994, 74 days late. She did not even identify him as a testifying expert and provide his report until January 17, 1995, 139 days after her deadline. Upon the defendants’ motion, the district court struck Drs. Cranberg and Rothenberg as expert witnesses because their late disclosure violated the scheduling order.
“When one party fails to comply with a court’s pre-hearing order without justifiable excuse, thus frustrating the purposes of the pre-hearing order, the court is certainly within its authority to prohibit that party from introducing witnesses or evidence as a sanction.” In re Maurice,
Further, considering statements in their depositions, it appears that the trial testimony of Drs. Cranberg and Rothenberg would have been largely, if not totally, cumulative of Mrs. Hill’s other experts. In her appellate brief, Mrs. Hill acknowledges that the opinions of Drs. Cranberg and Rothenberg concur with the testimony of two of her other expert witnesses, Drs. Rader and Schmidt. Without showing how the testimony of these doctors was going to differ from that presented by Mrs. Hill’s expert witnesses who did testify, she has not demonstrated the necessary prejudice for us to reverse the magistrate judge’s decision to exclude their testimony. Such a decision was within his sound discretion, to which we defer here. Mankey v. Bennett,
Mrs. Hill also claims prejudice from an alleged procedural error in the exclusion of these witnesses. She argues that because the magistrate judge did not give her a hearing on the motion to strike before issuing his ruling she was not afforded due process. But Fed.R.Civ.P. 78 expressly provides that a court may determine motions without an oral hearing. Northern District of Indiana Local Rule 7.5 grants to the district court complete discretion whether an oral argument should take place on a motion. Mrs. Hill filed a written submission on this issue which the magistrate judge considered. He did not abuse his discretion by ruling on the motion with such a record. See, e.g., Mann v. Conlin,
Mrs. Hill also raised other arguments to support her claim of reversal. Apparently in response to the striking of the testimony of Drs. Cranberg and Rothenberg, Mrs. Hill moved to strike the testimony of certain defense expert witnesses. She also moved to
III.
We turn now to an important matter of legal practice before this court. Circuit Rule 30 requires that a party’s appendix contain any relevant portion of the district court’s findings, opinions, or orders that the appellant refers to as part of the appeal. Ready access to essential parts of the record is absolutely necessary to accurately and expeditiously assess and resolve any case. By omitting key documents, Mrs. Hill’s appendix was entirely inadequate.
In this appeal, Mrs. Hill challenges many of the magistrate judge’s evidentiary rulings. Pursuant to Circuit Rule 30(e), her counsel certified that all materials required by subsections (a) and (b) of that rule were included in the appendix. This certification was false. Mrs. Hill’s appendix did not include complete copies of district court orders: (1) granting defendants’ motion to strike the expert testimony of Drs. Cranberg and Rothenberg; (2) denying plaintiff’s motion to reconsider this order; (3) denying plaintiff’s motion to strike and bar contentions, witnesses, and exhibits of defendants Zelaya, Swarner, and Whetsel; (4) denying in part plaintiff’s motion to strike additional contentions, witnesses, and exhibits of defendants; (5) denying plaintiff’s motion to bar expert testimony of Drs. Rosen, Fahey, and Geremia; and (6) denying plaintiff’s motion to bar all treating physicians and staff from providing expert testimony. The appendix excluded key pages from some of the magistrate judge’s orders (sometimes in-eluding only the first page of the order) and totally excluded other relevant rulings. Importantly, the appendix did not include the transcript pages at which the magistrate judge explained the reasoning for his rulings, as required by Circuit Rule 30(a). These are the precise orders and rulings that are the subject of Mrs. Hill’s appeal.
In its response brief, the hospital pointed out these errors and called for this court to summarily affirm the district court’s judgment as we did in Mortell v. Mortell Co.,
On March 20,1996, this court ordered Mrs. Hill to show cause why the district court’s judgment should not be summarily affirmed as a sanction for filing a false Rule 30(c) certification. Mrs. Hill’s counsel apologized and stated that they did not intend to omit the magistrate judge’s various orders and rulings. They also pleaded ignorance, let slip that this was the first appeal they had initiated in this court, and attached the missing documents. When questioned at oral argument about the deficient appendix, Mrs. Hill’s counsel offered no convincing explanation for the false certification under Rule 30, partial inclusion of certain documents, and total exclusion of others.
We have repeatedly stated that Circuit Rule 30 mandates parties provide us with a district court’s reasoning for its decision. United States v. Gomez,
This is not a new rule. “For more than 35 years, this court has declined to entertain appeals when the appellant does not file a required appendix.” Urso v. United States,
We are especially struck that Mrs. Hill’s counsel did not reply when opposing counsel pointed out the deficient appendix. Only an order to show cause focused their attention on this obvious problem. Counsel paying attention to the prosecution of an appeal, as they should, would never ignore a request from opposing counsel for summary affirmance. Cf. United States v. Smith,
The serious nature of Mrs. Hill’s counsel’s conduct makes this case a candidate for summary affirmance under Mortell. This and other courts have failed to entertain an appeal, or summarily affirmed a district court’s decision, on solely this ground. See Guentchev v. I.N.S.,
This court recently considered this issue in Guentchev. Counsel for a resident alien petitioned for judicial review of a Board of Immigration Appeals’ decision denying his claim for asylum. Id. at 1037. We explained in that case in detail how even if Circuit Rule 30(a), which requires in an appendix “any relevant portions of the ... findings or opinion,” is misunderstood, subsection (b) of the rule directs counsel to include copies of any opinions or orders or findings of fact and conclusions of law rendered by the administrative law judge in the case. Id. at 1038-39. Because the appellant in Guentchev did not include the immigration judge’s opinion in the appendix to his brief, we issued an order
As Circuit Rule 30(b)(3) directed appellant’s counsel in Guentchev to include the immigration law judge’s opinion, so Rule 30(b)(2) mandated that Mrs. Hill’s counsel include “[cjopies of any opinions or orders in the case rendered by magistrate judges or bankruptcy judges that address the issues sought to be raised.” Mrs. Hill’s counsel failed to do so with no satisfactory explanation. We have already ordered her counsel to show cause and found the response lacking. Because we will affirm on the merits, vitiating the teeth of summary affirmance, and because the attorneys rather than their client deserve a reprimand for this transgression, discipline of a monetary fine is better tailored to the nature of the violation. Considering counsel’s unexcusable omission of necessary documents, the impact of the deficient appendix on this court’s work, as well as the ostrich-like approach to the violation, pursuant to Fed. R.App. P. 46(c) we fine attorneys for plaintiff-appellant $1,000 payable to the court for violation of Fed. R.App. P. 30 and Circuit Rule 30.
For the above-mentioned reasons, the district court’s judgment is affirmed and sanctions are assessed as discussed above.
AFFIRMED WITH SANCTIONS.
Notes
. The district court properly had diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332, as Mrs. Hill is an Illinois citizen, the defendants are all Indiana citizens, and the amount in controversy exceeds $50,000. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
. The statement of facts in Mrs. Hill's principal brief is improperly argumentative as it treats contested testimony of her witnesses as "facts.” This violates both Circuit Rule 28(d)(1) and our admonition in Avitia v. Metropolitan Club of Chicago, Inc.,
. Mrs. Hill argues that Dr. Fahey, another expert witness for the defense, also reviewed portions of Dr. Kelly's trial transcript and altered his trial testimony. There is no evidence in the record, however, that Dr. Fahey ever read Dr. Kelly's trial transcript.
. This case is factually distinguishable from GCIU Employer Retirement Fund v. Chicago Tribune,