John H. Smith v. Ford Motor Company

wеre were injuries using them. Smith’s BARRETT, Before DOYLE and SEY- is, more There severe than those of Fox. MOUR, Judges. Circuit course, in no contention that defect headon collision. vehicle itself caused the BARRETT, Judge. Circuit injuries of The contention is that the Smith basic in this case has controversy due to the defects greatly aggravated were Court, previously been before this our and in and the manner design lap of the belt reported in Fox v. Ford Motor it could not which it was anchored so that Company, 575 F.2d 774 heavy impact. protect passengers in a Both prior case present one us, Smith, case is before Plaintiff whose arose from an collision which automobile internal very permanent incurred serious January plain occurred on 1973. The injuries to his injuries. Included were tiff, Smith, riding as a front- John H. was intes- pancreas., as well as to his spleen and Ford, four-door passenger seat in a 1970 re- and had to be spleen tines face. The Driving the car which Thunderbird. incurred, injuries moved a result of the Fox, plaintiff was Mr. who was riding was subsequently pancreatic de- and condition case, who obtain plaintiff prior in the he veloped. was that complaint Smith’s judgment ed a for a loss as a result pain great amount had suffered a pas wives were death of his wife. Their al- consequences which would suffer future both sengers of this car and in the back seat eating impairment of legedly included were killed. diarrhea, and fu- possible diabetes ability, Smith, herein, filed this John H. Also pancrеatitis. ture from the surgery 30,1976. alleged He that he stroke, action on July blindness, alleged the risk of was ampu- as a result of personal injuries cancer, disease, impotency suffered heart seats; spleen defective removal of safety belts and tation. From the clot- pneumonia, defective neg- alleged phlebitis, result of conditions were the susceptibili- installation, ting, pulmonary infarctions ligence design, in the construc- ty to infection had occurred. tion, testing inspection and of the seat jury, Background tried to a follow- cause was Pretrial trial, in the a verdict amount 10-day ing a case, During phase discovery Ford $800,000 returned. seeks re- interrogatories propounded Ford a series of judgment based and reversal view the follow- requesting, among things, other judgment for Motions upon this verdict. ing information: verdict, trial, notwithstanding the new witness, expert including 23. For each denied. Vari- were filed and and remittitur at the trial physicians, you may call However, appeal. issues are raised ous matter, of this state: District determination that Court our address; (a) His name and testimony of receiving a crucial erred (b) A description brief of his testimo- dispositive. witness is ny;

(c) Any opinions may be which he I. upon give; called (d) The upon facts will base strenuously asserts that the District which he opinions. such abused allowing Court its discretion in Dr. objection, over testify,

James W. Freston to I, p. [R., Vol. 13]. signifi- that Smith’s internal response, plaintiff Dr. In identified cantly proximate enhanced as a result of Brohm, Gullickson, Ferris, Dr. Dr. Ax- passenger re- unreasonably dangerous thelm and Professor Crawford system Fox employed straint vehicle. witnesses, opinions each described Ford contends that failure to dis- Smith’s opinions. and set forth the for those basis (1) close substance of such addition, responded: In order; (2) pretrial violated the Court’s vio- develops, the case and detailed ex- As duty provide supplemental lated Smith’s to continues, testimony amination further responses pursuant to interrogatories to required of may be same and the essence 26(e), Civ.Proc., U.S.C.A.; Rule Fed.Rules provided required will be as Rules by the and, (3) prejudiced ability to Ford’s counter of Civil Procedure. such evidence. I, [R., p. 19], Vol. this in- Plaintiff did supplement indeed earlier, As noted theory of Smith’s with information terrogatory additional liability was alleged tied to breach of Ford’s Crawford, but failed about Professor duty its to “design and automo construct time to mention Dr. Freston. in biles a prudent reasonable and manner so that failures will under establish that passenger caused 1129-1130 proof entails and above the damage impact or collision absent the defective de- bly would have sign.” Larsen v. Motor F.2d Chrysler Corp. Todorovich, 495, such theory Co., occupants “damage cause (Wyo.1978). supra. restraint (8th v. [enhanced occurred as a presentation or General when a collision occurs.” defective Almost parts requires injury system 1968); Fox v. Ford Proof injury of personal] Motors invariably, . nature of the 580 P.2d result of the proximately of plaintiff automobile . Corp., liability injuries . proba- 1123, such over tes- filed that than two and one-half months before call trial occurred on Plaintiff’s plemental Pretrial [App., well medical call the The first notice of Salt 8. Dr. ^[*] Plaintiff, Lake Dr. Vol. Freston as an to his following supplemental pretrial treatment of the date, City, ^[*] Freston, University I, pp. prognosis. as of the date of Utah, contained the ^[*] January 71-72]. witnesses: Submission, plaintiff’s will ^[*] testify 24, 1978—less Plaintiff, as intention ^[*] submission, witness at following: intends to Hospital, as to his trial. ^[*] Sup- to timony. This to an Randolph Collectramatic, response See identification was in Inc., parties F.2d 844 earlier court order that “the call ... on the additional witnesses Background Trial (5) five days prior condition that at least 29, On 1978, plaintiff March called his supplemental pretrial they conference witness, first Dr. James W. Freston. Fre- opposing furnish counsel the names ston testified that he was currently em- witnesses, and addresses of the additional ployed as Professor of Medicine and Clini- together summary with a brief of the testi- cal Pharmacology, and as Chairman of the mony they expected give.” [App., Department of Gastroenterology at I, p. Vol. 61]. University Utah. Dr. Freston holds both supplemental conference, At the medicine, an M.D. and Ph.D. in and has 1978, held January 27, the parties were compiled credentials, list impressive 6, 1978, given until March to designate ad including authorship sixty-two some ditional expected witnesses be called articles his point in field. At in one trial. Although plaintiff earlier anticipated he testimony, “spe- described himself as a no need to [App., call additional witnesses gastroen- cialist’s specialist” the area I, Vol. p. 72], subsequently designated he terology. fourteen other witnesses for use at trial. I,

[App., Vol. pp. these Among 114-116]. Early in his testimony, Freston re- witnesses were Drs. Volk and Gainsford viewed, detail, history Utah, Salt Lake City, “listed the medical injuries subsequent medical treatment records of the called may be [who] using this, various visual aids. From to testify they as to role played doctor moved to with the specifically deal care plaintiff.” [App., treatment pancreas, to Smith’s which he iden- I,Vol. p. three designated Ford also 114]. tified as acci- resulting from the automobile parties’ additional Both witnesses. motions dent, I, as well [App., pp. Vol. 260-261] to strike testimony of certain of the prognosis. No defense recently grounds named on individuals interposed as to Dr. Freston’s of inadequate pri discovery time conduct injuries complained of arose out of the or to trial were denied Court Objec- collision the two vehicles. between I, March [App., p. Vol. 136]. however, plain- interposed, tions when Ford did not move strike the of Drs. Volk attempted and Gainsford. tiff’s to elicit counsel con- establishing the existence of conditions deposed earlier several other doctors injuries. sistent seat belt with designated experts аs to be likely called including Drs. Brohm trial — hearing A was held in objections on the Gullickson. physicians Both of these preju- chambers. Counsel for Ford claimed designated pre- in plaintiff’s supplemental attempt elicit dicial surprise Smith’s testi- experts submission who would establishing causation testimony proximate fy given plaintiff, about medical to the care lap employed between the belts nature as well as his of these prognosis. Each injuries of the was area Ford claimed —an deposi- witnesses was asked in specifically scope plaintiff’s of de- clearly outside the tion whether any opinion regarding he had scription proposed testimo- of Dr. Freston’s the relationship plaintiff’s injuries and Court ruled that ny.1 the alleged design deficient or manufacture (1) sought grounds: proper was on three of the Each was also asked automobile. practice has Wyoming that the custom of whether he seat study had made a of the terms extremely been to narrow describe belt syndrome or read literature in testi- witnesses’ proposed substance area. Each replied negative to these trial; (2) the claim mony prior that questions. R., XVIII, dep., Vol. [Gullickson “we have 21-22; XXI, surprise unjustified because pp. R., was dep., pp. Brohm Vol. gone causal deposed. Freston into this as to 12-15]. ever, requires colloquy enlightening 1. The that we frame it in form of an itself is feel we sharpens length, appendix opinion. the issues involved. how- Its condition injury сonnection between Smith’s right II, p. 267]; object those amination tem. nal tion of injuries which occurred dents; opinion abdomen, seat-belt from seat belts which fail tion. Where area, non-defective. With Smith’s The continuation you as, usual juries the ordinary. the seat belt? domen rather functioning to see injuries A [Dr. Freston] A Yes. Q A Q Q what does that mean to injuries Dr. Freston stated this evidences ^[*] resulted find to Dr. some With [Mr. injuries, Dr. Freston over one hundred What do that bruises or I find tend to occur has object as to rupture injury, such as to of Dr. Freston an and, (3) that Ford’s ^[*] Spence] showing physical evidence bruises are localized happened; Freston’s respect ‍‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​​‌‌​​​‌​​​​​‌‌​​‌​‌‌​​‌‍injury doctors properly and is over from the than over the formed you ^[*] passenger All if the seat belt seat belts which to the higher. And we start relationship between always.” specific Well, something un- find in that lap spleen testimony that during traffic acci- high accident waived its injury high in the right. something out of that his examina- ^[*] the basis pancreas, belts intra-abdominal crystalized the functioning properly as the testified: intra-abdomi- restraint you? reference to and we hips, ^[*] Now, [App., employed. direct ex- failure to in the regard? pancre- the ab- for his the in- result func- when ^[*] start Vol. isn’t sys- hip bility bile accident. injury. Greenlee’s ed five routine in medicine. ble of has been a contention spleen accident, organs internally for want to er reasonable medical contention? improbable and the basis for supplied]. [App., And if A THE COURT: And specifically, the evidence A Q Q A Yes. Q MR. GREENLEE: THE COURT: [overruled] Do you upward pressure organs jury pancreas (By Yes. Thank Yes, is Would Well, diagnosing and to the Vol. ask overwhelming years injuries what seat belt which upward Mr. I I have an have an My opinion my opinion II, you you . you resulted Spence) your opinion ago. caused pp. another in this case were a —I’m events [overruled] tell the your opinion? pancreas. very much. on [t]he was involved 272-276]. are—we certainty those That’s a opinion. [objection] Would from made in this case that is that is that sensitive today that start- question. pressure jury what it organs injury to the is? organs the automo- you state to based quite capa- as to that matter of [Emphasis it’s injury Now, in that on oth- to Mr. proba- highly There result good upon I pancreas. to see graph- in a presented This reasonable causal —as to what caused the] Q ^[*] spleen Do you ^[*] medical and to the have an ^[*] probability opinion ^[*] pancreas the ^[*] based as to the ^[*] upon [to ment of intra-abdominal ic, use of a persuasive manner. point mannequin showing the various opinion, empirical organs. Dr. Freston Following the state- studies2 punctuated case at hand? direct of Dr. Freston’s completion At the granted Ford was [objection] examination, for counsel

MR. GREENLEE: study reprint Braunstein, the Syn- A of and Braunstein]. 2. Garrett The Seat Belt drome, Safety through Highway Twenty-First Research Annu- available delivered before the University Michigan, Ann at the of Institute al Session of the American Association for the Arbor, Michigan. Illinois, Surgery Trauma, Septem- Chicago, 28-30, ber cited as Garrett 1961. [Hereinafter for his crоss- prepare recess to Sessin, a ten minute ly, United v. States 84 F.2d 667 Ford did the witness.3 examination (10th 1936), New York Life Ins. v. Cir. Co. Dr. Freston concern- briefly cross-examine Doerksen, (10th 1935), 75 F.2d 96 Cir. other syndrome. belt ing the seat courts strictly requirements. enforced the Smith, (8th Harris v. 372 F.2d 806 Cir. After Dr. Freston was excused as a 1967); Douthitt, Kale v. F.2d 476 witness, requested plaintiff’s counsel Douthitt, 1960). supra, p. In Kale v. at him provide copy to with a of Garrett and 482, the Court stated: Following refusal, plaintiff’s Braunstein. the District Court production. ordered question Generally, hypothetical must II, [App., pp. Vol. 316-321].4. assume all facts disclosed the evidence theory material to the as case produced also showing evidence viewed propounding from side the motion and stress human areas of the question. question which assumes body passenger sys- in relation to restraint supported by material fact not the evi- tems as employed such here at dence is A question inadmissible. which however, time of testimony, collision. Such omits any material fact essential dealt exclusively with engineering opinion formation of rational likewise aspects physics of the collision forces. It incompetent. upon The facts did not relate those medical movements to expert opinion bases his or conclusion injury.5 permit must reasonably accurate conclu- witness, Ford’s F. Donald sions as distinguished from guess mere professor Hueke —a University at conjecture. Am.Jur., Evidence, Michigan School, recognized Medicаl and a 788, et seq. §§ inju- authority field of automotive ry in large part cau- Dr. Freston’s —refuted problems forcing pro- inherent testimony, addressing sation specifically Dr. pounding party supply such “material” interpretation Freston’s the Garrett often, facts led to For awkward results. study. Braunstein Sessin, example, supra, v. United States p. following at 669 the issue arose: A. A hypothetical question propound- was The Interface Discovery Between Pretrial ed to physician, upon of which basis And the Presentation of opinion witness was asked for his Expert Testimony bodily ailments which afflicted 1, 1919, January Traditionally, presentation thereof, prognosis one and as to whether testimony involving opinion evidence re- so physically incapacitated was quired afflicted the establishment of certain founda- work. The half an hour prior tional took expression facts propound; be- See, necessarily long opinion. Wigmore, J. Evidence § (3d long. at cause pp. 1940). history Ed. use of 792-793 medical hypothetical questions provided It was objected the normal of the multitu- that a few dinous vehicle for the elicitation of such evidence. statements hypothesis Although this Court treated the foundation- lacked accuracy. suppos- Two meticulous requirements al liberal- evidence edly pressed as defective statements are prejudicial granted p. er error occurred. See Braden The recess was and trial 4:43 m. University p. Pittsburg, (3d at 4:54 m. sched- resumed Dr. Freston was F.2d Casper, Wyoming, uled leave 9:15 a. m. morning. the next presented primarily 5. This Crawford, order, through specifically acknowledged qualified “[d]espite Professor who 4. Ford asserts that Richard H. the Court plaintiffs produced counsel never article.” that he was the Appellant 35, relationship p. the to discuss [Brief n. Inasmuch as between 2]. injury expressly the Smith has not this state- the load and from a medical conceded forces ment, deciding standpoint. we cannot consider it in wheth-

792 is that the

grounds reversal. One privilege developed in Hickman v. Taylor, the wound had question assumed 495, 385, 329 U.S. 67 91 L.Ed. 451 S.Ct. proof year. (1947), cleaned out once a been discovery op- immunized unless the twenty-three was that such ponent substantial, there were particular- could show a operations period over a of seventeen See, ized need for Carpen- the information. years, did not remem- ter-Trant Drilling Magnolia Co. v. Petrole- al- operation ber the date of the last Corp., um 23 (D.Neb.1959). F.R.D. 257 Oth- after he though good many years it was a er courts refused simply on the discovery defect is that hospital. left the The other basis See, expert’s g., the status. e. referred to an abscess hypothesis Pennsylvania American Petrole- Oil Co. That there the abdomen as tubercular. Co., (D.R.I.1959). um Products 23 F.R.D. 680 disputed; is not was an abdominal abscess opinions developed Still other a doctrine of a tuberculosis proof showed holding discovery “unfairness” unavailable lung leg bone at the time. No other if the party result was that one would be being abscess cause for the abdominal taking advantage oppo- unreasonable of an shown, it inference that is not an unfair nent’s diligence or financial resources tubercular, occurring it was as it did be- See, obtaining expert testimony. g., e. tween, two foci of tubercular infection. Land, United States v. 23.76 Acres of 32 [Emphasis supplied]. (D.Md.1963). F.R.D. 593 Although we there affirmed The drafters of the 1970 amendments to admitting court’s decision evi- sought the Federal Rules of Civil Procedure dence, practical difficulties are illustrat- to resolve this inharmonious state of affairs ed. uniform, providing a orderly scheme of time, heavy At the same burden discovery. discovery That scheme of is now placed on the examiner to articulate foun Civ.Proc., embodied in rule 28 Fed.Rules hypothetical ques dational facts under the U.S.C.A. cited as rule [hereinafter 26]. rule, pre tion often resulted in a denial of discovery, Rule adopting liberalized trial discovery to the cross-examiner con guide. doctrine of “unfairness” as its Un- cerning expert and his proposed testi der rule 26(b)(4)(A)(i), mony. Prior to the enactment of the 1970 (A)(i) A party through interroga- may amendments to the Federal Rules of Civil tories require party identify any other Procedure, 28 U.S.C.A., provision no person party each ex- whom the other made in respect the Federal Rules with pects trial, expert to call witness at as an the discovery еxperts or the nature of to state subject matter on which the their information. Judicial treatment of expected testify, and to state surrounding issües the discovery of such opinions substance of the facts and varied, information with the result which the expected testify pre-1970 most discovery decisions denied a summary grounds for each its entirety extremely or limited it to nar (ii) opinion, Upon motion, may the court See, row areas. Long, Discovery and Ex means, order discovery further by other perts Under the Federal Rules of Civil Pro subject to such scope restrictions as to cedure, (1965); p. F.R.D. provisions, such pursuant to subdivi- Winner, Procedural Methods to Attain Dis (b)(4)(C) rule, sion of this concerning fees covery, (1960). 28 F.R.D. 97 Some expenses ap- as the court deem earlier agents cases experts treated propriate. the attorney under attorney-client privi [Emphasis supplied]. lege and denied discovery on that basis. See, Rules, g., Airlines, ‍‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​​‌‌​​​‌​​​​​‌‌​​‌​‌‌​​‌‍Inc., e. Schuyler Advisory v. United Committee on Civil draft, pub- which promulgated original F.R.D. (M.D.Pa.1950); Cold Metal Co., explaining Process lished an accompanying Co. v. text Aluminum 7 F.R.D. 684 (D.Mass.1947). for the intent of the the basis approach, pat second drafters and terned after qualified product provisions: work new In cases of this character [involving Notes, Advisory 705, Committee rule Fed. expert against testimony], prohibition Evid., Rules 28 U.S.C.A.

prevent discovery evils an of his own versary’s expert will take or the data on ticipate aration. The ten triаl,” of stand. which he will witnesses valuation materials is lems in Proof of Advisory Committee knowledge of Technical rule frustrated. ing of ly, Proceedings 707-710 Comm’n Discovery in Eminent Domain Rules supplied]. other side. If which California expert effective rebuttal such material. fruitless —cross-examination against substitute for Civ.Proc., issues and elimination of discovery normally produces condemnation cases McGlothlin, produces Facts, of information held Effective cross-examination of witness discovery recommends experts frequently particular discovery, then the narrow study the line of lawyer the latter base his 23 F.R.D. Economic, Scientific, 28 U.S.C.A. requires of discovery Some has been (Jan.1963). Notes, acute even with the discovery Calif. “lengthy requires pretrial judgment approach his is foreclosed Practical Prob 467, 478 (1958). advance notes that the form the rule of Law Rev. cannot an created by expert [Emphasis —and exchange 26, advance experts’ Similar surprise on the during prep very help Fed. pre ad of that Federal Rules of Evidence 703 and terms nating the allows an expert reasons therefor without court tion may, sonably these be admissible in ular upon such underlying Bean underlying omitted]. rial facts, gating counsel to select such of the mate- tion we we [I]t shape a exploration U.S.C.A. underlying facts field in p. allow, require is a new rules is to ^[******] Division requires facts as of to the relied underlying It was in subject.” opinion failure in one-sided (2d however, becomes need for were enacted. Rule as most courts forming opinions C. administration upon by ed. E. he sees of the facts of otherwise.” Cross-examina McCormick, evidence if “of a facts. Rule 703 or inference and FMC The combined it recite all the relevant response practice witness to See also: hypothesis. intolerably wordy. hypothetical questions, facts or be used to ferret out Cleary “place fit, experts Corp., prior data, we to this criticism do, and an obstruc- 1972). Evidence an data of Bryan tempt or inferences 566 F.2d 541 disclosure of assumptions the interro- justice. full burden “testify unless the [Footnotes 705, effect of type need not specifies give v. John him to partic elimi 16§ rea 705, wit If If opposing squarely ness on the shoulders This discovery liberalization in the area As stated in counsel’s cross-examination. also resulted in liberalization in other areas. 705, Rule Note to Advisory Committee availability increased con- discovery highlighted by the elimination cerning expert upon witnesses and the facts hypotheti provided by foundation often opinions, prompted their they based through question, knowledge cal ‘advance reexamination of hypothetical witness’s pretrial discovery an requirement traditional founda- and other for effec opinion basis for his essential prior tional basis necessary that were ” Graham, Dis tive cross-examination.’ introduction of Criticism evidence. covery Experts 26(b)(4) Under Rulе surrounding these areas mounted: Procedure: Part Federal Rules of Civil The hypothetical question has been» the One, Study, 1976 U.Ill.L.F. Analytical An target great of a deal of criticism Graham, Part cited as [hereinafter encouraging bias, partisan affording an One]. opportunity summing up in the mid- case, proposed dle of the on the complex Advisory and as and time Committee Ladd, Evidence, consuming. recognizing the Expert Testimony, 5 Federal Rules of disclosure, (1952). considered Vand.L.Rev. 426-427 need for such 794 26, FecLRules Civ. experts might require rule time to make fur- provisions

Proc., inspections sufficient: ther analyses of their 28 U.S.C.A. leaving it own. made that objection is

If the bring out the to to the cross-examiner regard- discovery pretrial need for unfair, essentially supporting data ing expert is further evidenced witnesses compulsion is under no answer is that he by the ever-increasing dissatisfaction except or data bring any to out facts reliability expert with the honesty and opinion. The those unfavorable testimony. . the cross-examiner answer assumes that Friedenthal, Discovery and of an Ad- Use which is es- knowledge has the advance Information, Party’s Expert verse 14 effective cross-examination. sential 455, (1962) 485 Stan.L.Rev. [Footnote knowledge has been afford- This advance omitted], supplied]. [Emphasis ed, by the traditional imperfectly, though is further illustrated This liberalization 26(b)(4) Rule requirement. foundation 26(e), of rule Fed.Rules provisions Procedure, revised, the Rules of Civil 26(e) a Civ.Proc., Under rule 28 U.S.C.A. in this provides discovery for substantial supple- party seasonably duty is under a to area, large measure the ob- obviating in situations, in three response only ment his raised in some stacles which have been concern- one of information which includes findings, under- discovery instances expected to ing identity person “the of each data, identity even the lying trial, the be called as an witness Friedenthal, Discovery and Use experts. subject expected he is matter on which Informa- Party’s Expert of an Adverse testimony.” testify, and the substance of his tion, (1962). 14 455 Stan.L.Rev. Notes, 705, Fed. rule Advisory Committee comply party The failure of a sup- Evid., [Emphasis Rules 28 U.S.C.A. 26 has with rule discovery requests under plied]. resulting in the findings prejudice led to recognized also Friedenthal has Professor Coleco proffered exclusion of the evidence. dis- pretrial nature of such the critical Berman, (3d Industries, 567 F.2d 569 Inc. v. covery: 830, denied, 99 1977), 439 U.S. Cir. cert. opportunity It be had is fundamental (1978); 124 Tabatch S.Ct. 58 L.Ed.2d cross-examination, for full and this can- Co., 67 F.R.D. 49 nick D. & v. G. Searle many cases with- properly not be done although district (D.N.J.1975). Similarly, discovery, particu- pretrial out resort handling enjoy courts wide discretion are involved. larly when witnesses matters, Phil Crow discovery pretrial disagree, who eye-witnesses Unlike two Macomber, Inc., F.2d 601 v. ley Corp. Steel disagree two who are not neces- experts been 1979), error has (8th 342 reversible Cir. basing their on their sarily such testimony without allowing found In- objective views of the samе features. “gross has been a discovery where there entirely separate they may rely stead on resulting in fundamen abuse of discretion data, underly- since the theoretical bases of the case.” tal unfairness in the trial approaches may dif- ing respective their Lewis, (8th Voegeli v. Cir. 568 F.2d attorney can radically. fer Before an 1977); v. Co., F.2d Shelak White Motor hope even to deal cross-examination Mo (5th 1978); Chrysler Weiss Cir. expert opinion he with an unfavorable 1975). (2d Corp., tors 515 F.2d 449 must have idea of the bases of that some upon. the data relied If the B. required to await examination attorney information, get trial to he often The Pretrial Order will have too little recognize time to observed previously We have expose testimony. spots vulnerable information, in provide He failed experts need advice of his own responses, about cases, indeed, interrogatory do so and the form of in certain proposed or his Freston F.2d 1309 testimony as When there required 26(e), Civ.Proc., drawn, rule Fed.Rules “properly exists a detailed order, provide This duty responses U.S.C.A. a trial court’s determination that cer- concerning expert witnesses tain continues facts or issues must should be [or not] through trial. Weiss v. Chrysler Motors excluded from trial on the basis of pre- Corporation, supra. If we trial order may solely faced reversed if there is an abuse of provide failure to such discretion. See James v. News- information, we comрelled paper would be to re- Agency Corp., 579, (10th 591 F.2d 583 verse the 1979) District Court’s of such admission Cir. (pretrial specifying order the wit- Chrysler evidence. Weiss v. nesses to Corpo- Motors be called may be used to the bar ration, supra. calling witnesses).” of unlisted Trujillo v. Uniroyal 815, (10th 608 Corp., F.2d 817-818 contends, however, duty that his to 1979). Cir. supplement was by description fulfilled the of Dr. provid- Freston’s proposed testimony 83, Civ.Proc., Pursuant to rule Fed.Rules supplemental ed in his pretrial U.S.C.A., submission. 28 District Court of Wyoming, the Smith asserts this, courts, combined with the as well many as has other district alleged adopted Wyoming practice implementing pretrial custom of rules the allowing treating physicians testify broadly to con- conference procedure by covered 16, cerning injuries Civ.Proc., causation of militates rule 28 Fed.Rules U.S.C.A. against 8, any finding prejudice of Rule to Ford. Rules of the District United States Any surprise occurred, which may Wyoming have ar- Court for the District of [herein- gues Smith, avoidable, had after simply rules], exclusively cited as local deals taken deposition pretrial procedure. 8(a) the with of Freston. Rule of the local “pre-trial scheduling rules deals with 16, Civ.Proc., Rule Fed.Rules 28 provides conferences” and parties U.S.C.A., authorizes the district to courts shall: pretrial hold designed conferences to aid in (2) Exchange a list all witnesses to of cases, the disposition of and enter orders trial, together be called at with a subsequent thereto which “control . summary proposed brief of their testimo- action, the subsequent course of the unless ny. testimony No be received at the shall modified trial to prevent injus manifest trial it with such unless be consonant tice.” pretrial “The office as [of order] designat- so summary and from a witness procedural a tool insure the economi [is] ed, by of rebuttal or except purposes for cal and on every efficient trial of case its showing order upon of the court merits without or surprise.” chance [Em good of the witness why cause the name phasis Abrams, supplied]. Case v. F.2d 352 summary testimony of his 193, (10th 1965). 195 Cir. It “measures the pre-trial disclosed at said conference. lawsuit, dimensions both in the trial accepta- summaries are not Generalized appeal.” court and on American Home As ble. and summaries Additional witnesses Co., sur. 804, Co. v. Cessna Aircraft 551 F.2d each shall be submitted (10th 806 1977), Hodgson quoting, Cir. party their party opposing 1279, Humphries, (10th 454 F.2d ascertained, names and addresses are 1972). pretrial The “amendment of a order pre-trial at the final conference. [Em- formulating designating issues witness [or phasis supplied]. es and will proposed testimony] their be permitted 8(e)(1) requires Rule also during necessary if parties, prevent injustice.” [Emphasis manifest pretrial connection with the confer- final ence, “list supplied]. Allison, Keen with a v. Detroit Diesel submit memorandum F.2d witnesses names and addresses testify burden whom call parties intend to establishing injus such manifest summary trial, together with a brief tice falls squarely moving party. on be from intended to elicited Nursing v. Secretary, Seneca Home ” . . pretrial memorandum, . witness in the trial in Ford’s is instruc- each out the 8(e)(3) spells sanc- fol- of Rule tive. Ford described its witnesses language comply with for failure to tions counsel’s lows July 1977: or re- “Except impeachment rule: anticipate Defendant does not good cause absent purposes and buttal engi- will call a Ford witnesses other than shown, per- be no . witness [shall] (either Kennedy and/or neer Everett name and ad- testify unless mitted Huelke. Tubben) Donald Louis and Dr. list, together appear on the witness dress testi- expected Dr. Huelke is testimony as re- summary of his anticipated injuries expected to be fy by this order.” quired an type from accident of the draft 8 also advises who compare Rule counsel the same to the D to Appendix pretrial orders to follow plaintiff. fact sustained In con- Appendix D is form Rules. therewith, nection Dr. Huelke following perti- which includes the order testify speed asked to as to the language: nent involved, crash, vehicles the force of formulat- pre-trial This order has been plaintiff body the movement of the of the after counsel for crash, ed conference at which during the and the like. Ford is appeared. respective parties have call plaintiff advised that intends to Mr. been afford- opportunity Reasonable has Associ- Richard Crawford of Ponderosa or additions ed counsel for cоrrections ates, nature of depending upon and Hereafter, prior signing by the Court. recon- testimony may call an accident order will course of the control the expert. struction except by trial and amended may not be I, p. Vol. [App., 22]. Court, or parties consent Despite specific rather statement prevent order of the manifest Court would relation- testify Dr. Huelke as to the 6 injustice. . . . plaintiff’s ship between accident and practice, as local rules Such injuries, described his last four court, “have the adopted by the district 24, 1978, follows: January witnesses as law, binding force and effect of and are Riverton, Brohm, Wyo- 5. Dr. William parties pro upon and the court ming, will care medical testify as to the mulgated changed they them until in given his cur- to the Plaintiff and as to appropriate manner.” Woods Construction condition, prognosis. rent as well as his Industries, Inc., v. Co. Atlas Chemical (This deposed.) witness has been (10th 1964). F.2d Considerable Cir. Lander, Gullickson, Wy- 6. Dr. Donald deference is district courts’ accorded to the medi- oming, testify subsequent will as to interpretation and of their own application Plaintiff, cal as well care rendered to the of practice rules Martinez procedure. prognosis. as to his Co., Thrifty v. Drug and Discount F.2d Crawford, 7. Professor Richard Louis- (10th 1978); Lance, Cir. Inc. v. Dewco ville, Colorado, testify will the de- Services, Inc., 422 F.2d 778 sign right seat defects and failures Where, however, we are “convinced that right compartment seat thе district court has misconstrued its own question. in vehicle rules”, Wright reversal be warranted. Freston, Hospital, University 8. Miller, Procedure, Federal Practice and Utah, City, testify Lake as to his Salt will also, Battin, Civil 3153. v. Golgrove § See Plaintiff, treatment of the medical 149, 161 18, 93 2448, 2455 413 U.S. n. n. S.Ct. prognosis. well as 18, 37 (1973). L.Ed.2d 522 I, [App., p. Vol. 72]. comparison description of Dr. view, ‍‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​​‌‌​​​‌​​​​​‌‌​​‌​‌‌​​‌‍that the question, is no Freston’s There in our testimony pretrial plaintiff’s in in memorandum, of Dr. Freston’s description with Dr. Huelke’s language 6. This appear in the final does not pretrial order entered this case. pretrial submission, supplemental later trial order was designed not to be mislead- [R., pretrial in the final order incorporated ing, the fact remains that such was its I, 112], p. solely Vol. effect,7 related and that in the prejudiced Ford injuries and preparation and not prognosis causal of its defense. See p. Ante at

relationship injuries and de- between those lap

fective belts. Our view is altered not Smith’s Pennypack In v. Meyers Woods Home contention Wyoming prac custom and Ass’n., (3d Ownership 559 F.2d 904-905 tice routinely treating physicians allows 1977), court enunciated series testify as to injuries. the causation of We factors which be considered in deter- should discern no major Wyo variance between mining whether a district court has abused ming practice and this Court’s decisions its excluding, discretion in or in our case concerning admissibility of evidence not allowing, testimony specified pre- properly opposing party disclosed to the ei “(1) trial order: prejudice surprise thеr in proceedings response or in against fact the party whom the exclud- to properly discovery requests. framed See testified, ed (2) witnesses would have the Western Fire Insurance Co. v. Tim Force ability party prejudice, of that to cure the Inc., Shop, Tin (Wyo.1979); 599 P.2d 540 (3) the extent to which of the rule Todorovich, waiver Chrysler Corp. supra; against calling unlisted witnesses would dis- Kuhbacher, Motor Co. v. 518 P.2d 1255 rupt the orderly (Wyo.1974). event, trial of the efficient In any the custom and practice case or court, (4) of other Wyoming cases in is irrelevant. bad faith or Federal Rules of Civil Procedure control failing willfulness in to comply diversity this with the court’s action order.” We even where there exists address each Plumer, 460, of conflict. these factors separately. Hanna v. 380 U.S. 1136, 14 also, 85 S.Ct. (1965). 8 L.Ed.2d See Prejudice 1. - or Surprise in Fact. Walker v. Armco Corp., Steel U.S. -, 1978, 100 (1980). S.Ct. 659 64 L.Ed.2d opinion, In our it is noteworthy that Dr. rules, course, designed These of to were Freston’s testimony is described almost pretrial make discovery uniform across identically to that of Dr. Gullickson and Dr. country prevent by the “trial am and to Brohm. Each of these latter witnesses was bush”. deposed by Ford and each specifically asked whether he any opinion regard- had arguments Parallel such custom and that ing relationship the plaintiff’s injuries practice surprise of finding of obviates a alleged design deficient or manu- unpersuasive. also prejudice therefore are facture of the First, automobile. Each was also nothing we find in the record coun- asked tering whether he study surprise preju- had made a Ford’s claim of Second, syndrome rely seat belt literature in to on read dice. Ford was entitled replied summary testimony provided of negative area. Each to supplemental The fact questions. dep., R., these submission. Vol. [Gullickson practice imputes such con- XVIII, 21-22; Wyoming that R., pp. dep., at Brohm Vol. knowledge, if is the XXI, structive indeed such at pp. Ford knew these doc- 12-15]. practice, not sufficient. only tors were experts in their fields of Thus, medicine. of the addition Dr. Freston Even if defendant in this [or witnesses, of to gen- list with the same had reason believe that such tes- case] ., description only eral of his testimony, timony could . . presented would be believing disputed, have misled at that sharply Ford into that his which is best solely plaintiff’s would relate . justify would not the failure injuries relationship to a respond completely and not to their to a truthfully defective Assuming pre- interrogatory. seat belt. that the “It no properly framed Perhaps explains why recently on basis of Ford excluded Drs. witnesses made named prior inadequate discovery Volk and Gainsford from their motion strike time for to trial. testi- nature of Dr. Freston’s The critical interrogatories . . sought is within the preju- information us that Ford was mony

that convinces party.” interrogating knowledge of the case. Dr. presentation of its diced Stores, 469, 4 F.R.D. Safeway Bowles v. that only Freston not testified Co. v. (W.D.Mo.1945); Opera Grand belts; he by the seat injuries were caused Corp., 21 Film Century-Fox Twentieth opinion, based also testified 39, (E.D.Ill.1957). “A distinc F.R.D. read, injuries he had the article between facts tion not be drawn should [App., belt. Vol. defective seat by caused of knowledge without with or article II, review of the pp. 271-274]. 4 Moore’s Federal examining party.” [Ap- on which Dr. Freston based (2d 26-219 Ed. para. Practice 26.59 br., abundantly pellee’s App. I], makes from plain about that no inference issue characterize Consequently, to defective belts, opposed properly seat lack of by a being here determined belts, be- can be drawn functioning seat problem. the essential “surprise" distorts type have study cause not amendment did prompted policy 26(b)(4) the Federal Rules of actually broke Rule unless the belt information more liberal dis Civil Procedure to allow accident, or was torn the force testimony was potential expert covery is in con- here. This which did not occur merely the court convenience testimony that trast to Dr. Freston’s was intended to parties, but properly func- study only users examined fact more of the trier of make the task tioning that based on data belts and seat pre orderly of an manageable means therefrom, pancreatic derived odds of of fact. “Mu complex issues sentation in a thousand”. one injury “about knowledge the relevant facts tual of all Thus, Dr. II, Fre- [App., pp. Vol. 311-312]. gathered parties is essential by bоth jury impression ston left Taylor, proper litigation.” Hickman functioning prop- seat belt was not Smith’s 495, 507, 67 S.Ct. U.S. erly. generally F.R. (1947). L.Ed. 451 See 26(b)(4), Advisory Committee Civ.P. in advance apprised If Ford had been Notes to 1970 Amendments. it could have taken testimony, Dr. Freston’s testimony expert In case the was this article, deposition, the and discovered put has well it: Judge As Bartels crucial. to cross-examine been trial prepared well at the of speaking, resolution “Realistically him about his conclusions. depends upon entire case [medical] opinion. and expert testimony Ability 2. to Cure. of a case necessities such transcend may usual otherwise limitations which testimony provided cru- challenged imposed discovery proceedings.” upon ques- cial, non-cumulative evidence Laboratories, Inc., v. Nysco United States aggra- belt of seat tion whether defective (E.D.N.Y.1960). 26 F.R.D. injuries. vated or enhanced the at, Corp., supra, Chrysler Weiss v. Motors This, course, proof of a key supplied of pp. supplied]. [Emphasis 456-457. recovery. theory of element of Smith’s Berman, Industries, also, Inc. v. See Coleco Fox Corp., supra; Larsen v. Motors General study supra, (evidence accounting not of Co., it Ford supra. Motor Without v. Ford in pretrial prop- opposing party disclosed to been entitled to a di- possibly would have Lewis, supra, erly excluded); v. Voegeli elicited rected verdict. was The evidence opinion was not (expert changе of witness’ appear before from the first witness disclosed in where was not admissible Freston jury magnifying Dr. impact. its — trial); v. G. D. advance of Tabatchnick on the only for examination scheduled Searle, supra, (testimony proposed new com- for appeared. he day Counsel expert opponent was un- excluded where p. m. at 4:43 fairly pleted his direct examination prejudiced). and was allowed eleven requested Disruption 3. of the Trial Process. for prepare minutes to cross-examination. Dr. testimony Freston’s was revealed in and Braunstein article was The Garrett the midst of trial. adjournment An use prior for his to cross-examina- available depositions, light when considered in tion. subject matter of Dr. Freston’s appointments, other scheduled We have observed that previously would have significant resulted in a disrup- contemplate Federal Rules of Evidence tion of Proper trial. impeach- rebuttal and “full of exploration burden of the facts ment undoubtedly required would have assumptions underlying consultation and, experts perhaps, other squarely an witness on the [falls] empiri- enlistment of new personnel opposing shoulders of counsel’s cross-exami- continuance, cal data. short such as that Graham, p. One nation.” Part at 897. “Be- allowed, disruptive, while not was inade- hope fore an can even to deal on attorney quate. The the testimony crucial nature of cross-examination with unfavorable See, Industries, required more. Coleco Inc. opinion he must have idea of the basis some Berman, 14; v. supra, Voegeli at 576-577 n. upon. and the data relied If Lewis, supra. v. attorney required to await examina- information, get tion at trial this he 4. Bad Faith or Willfulness. recognize often will have too little time to allegation was an Although there expose spots vulnerable in the testimo- of bad imputed faith willfulness Friedenthal, ny.” prop- p. Finally, Smith, A, [App. p. 4], counsel for we cannot impeachment or may er rebuttal have re- consider it inasmuch court did quired knowledge advance so that Ford’s findings regard. See, not make in this own experts could have been consulted.8

Ager v. Jane Hospital, C. Stormont Dr. departure Freston’s scheduled 1980). Furthermore, F.2d 496 we following day combined with the chal do not deem remand for consideration lenged testimony’s revelation midst point necessary. As stated in Coleco significantly of trial impaired ability Ford’s Industries, Berman, supra, pp. Inc. prejudice. magnified to cure the This was “Here, Meyers [Meyers 576-577 n. empirical Dr. use study Freston’s of an Ownership v. Pennypack Woods Home Ford, not disclosed in advance of trial. of Ass’n., explicit finding no supra], there was course, could have asked for a continuance Nonetheless, of willfulness faith. or bad prepare, given in which but Freston’s prof Meyers, explanation unlike no appointment following day in Detroit fered for the failure inform defense adjourn testimony, nature of the challenged counsel [nature ment well have signifi constituted a testimony] prior to trial.” disruption cant the trial the case.9 our Despite analysis, ques- we seriously or faith reasons, For tion whether bad willfulness has an these we hold that Ford’s ability application to cure the prejudice significant- was this issue. While it ly impaired. circumstances, prove aggravated this would Royal 8. Dr. interpre- Huelke did DeMarines v. KLM Dutch Air- address Dr. Freston’s stance.” lines, tation of (3d Garrett and Braunstein. We believe 580 F.2d It however simply that such did not ameliorate responsibility rebuttal was not the of Ford to prejudice presented effectively guess as direct descriptions second Smith’s witnesses’ impeachment through supplemental cross-examination could pretrial On submission. have. basis, similarity descrip- between the tion Dr. Freston’s and other wit- reject any suggestion prejudice 9. We that did already deposed, we nesses Ford had cannot hold that not occur or that it could have been cured on duty “police” a “doublecheck” grounds “even that if counsel [defendant’s] description, pretrial Smith’s witnesses’ surprised gave testimony, who [was] he rely. every right to which Ford had surprised by should not been have its sub- know, That, we admit Mr. you Smith was greater prejudicial create necessarily not I that. injured. in conform- There is no about act not negligent impact than issue, haven’t any problem, you The on don’t have and procedure. pretrial ance with this witness point objection from the from me on analyzed heard one appeal, must certainly would party, point not vice versa. in time. I until this prejudiced view of have— C. he you admitted THE I think COURT: accident, you? didn’t injured was Conclusion Balancing against Yes, these factors he was. Yes. MR. GREENLEE: court the district pinpoint, you discretion accorded wide they trying But now are area, we discovery see, in both unfair. Now that’s injuries. those prejudice as suffered such hold that Ford pan- youDo contend THE COURT: re requires the case to be reversed region? in some other creatitis occurred for new trial. manded oc- pancreatitis MR. GREENLEE: REVERSED AND REMANDED. organs in the curred because the various injured when Smith cavity abdominal were APPENDIX forward, inertial violently was thrown objection, your THE What COURT: those accident caused by that forces created Mr. Greenlee? bang loose and to tear organs rip Honor, it seems Your MR. GREENLEE: wall and abdominal into each other in the up with to come Gerry never fails whatnot. again. he has done surprise, and contend, by caused, we They in Janu- Mr. Dr. Freston first saw the seat force from application direct first listed in the ary year. of this He wants to belt, is where the of the Memorandum Supplemental Pretrial go with this witness. Pretrial Supplemental plaintiff’s. In that of your basis THE is the What COURT: witnesses, Memorandum, in this list of you objection, Greg? Is it because January, less than two they tell me in speculating? claiming the doctor is trial, Freston, University months to the Utah, Hospital, testify will City, Well, Salt Lakе that’s one. MR. GREENLEE: plaintiff, as to his medical treatment is, listing of this doctor their first objection, as well as to to which I have no now they are do with what nothing had objection. prognosis, to which I have no wit, to, the causes calling testify him to in here. That’s not injury. into the Now, inquiring they are now doing they are injury, causes behind his treatment, past They simply talk about going to the witness is way it in such a so And treatment. treatment and future “Yes, seat-belt study I have made a say, surprise to me. it’s a injuries are inconsistent injuries and these prepare, I had a chance to I haven’t with,” not sure or “consistent with”—I’m deposition. a chance to take a haven’t had they haven’t going say what he’s because there deposition because I didn’t take defined— so no would be he indication here that discovery take a you THE COURT: Did testify. called to deposition? of all— Second No, sir, there wasn’t MR. GREENLEE: He did this. say THE COURT: Let me know, a time. You we are a month and weight overwhelming just testify that the trial, half me all he’s away they from tell phrased way he of the facts—I think is the going to he has treated the testify to is how from resulted injuries that the it—was him in going and how he is to treat accident. future. prob- I don t have any agree, you MR. GREENLEE: But I are basically right. We should do it better. We It hasn’t dispute do not that the haven’t. lem with that. I been our custom. problems arose from the acci- pancreatic dent. I’m going try better, to to make but we it objected haven’t here. So I don’t see where they go But now want him to further and really here, we can truthfully surprise claim say specifically what in that accident caused because, as Spence says, Mr. I do think that object that I I injury. that And to because gone we have into had no to I’m opportunity prepare, have causal condition with always. doctors furthermore, and, surprised, in the five-year Now, as your objection second on foun- period speculating. the doctor is dation, I’m not sure yet, I haven’t heard all THE your COURT: Is that bulk of foundation, I don’t know whether—I objection? say can’t speculating whether Dr. Freston is or not. The complete. foundation isn’t So MR. GREENLEE: That’s the bulk of it. I can’t rule that. on THE Gerry? COURT: Greg MR. can cross-exam- MORIARITY: Judge, MR. he he’s sur- says SPENCE: ine on point. that prised. guess I I’m than he surprised more right to MR. SPENCE: He has the voir is because I a have never been into court dire. law in my life but what the medical doctor I MR. GREENLEE: have not had the give was asked to as to the causal opportunity to examine him before. You cause of the injury. know, get it’s extremely scary you when goes That doc- saying. without Medical to. you’ve witness never ever talked give tors have to testimony. some I his hand in this shook for the first time know, if you they say, You don’t would courtroom after lunch. “This man isn’t qualified” they soon as —as MR. seen I have never SPENCE: put “Well, they say, Crawford on will he yours. doctor,” isn’t a ask him what he thinks depositions But their MR. GREENLEE: injuries. caused the see You watch and your were people. taken get what kind of an we there. of them MR. SPENCE: Some order, I do admit that we out of I are some weren’t. do it you tell we will tie in with other me that MR. It seems to GREENLEE: evidence. But he here and we have the defendant’s this is critical issue to the intent of having testify opin- him get up there Now, certainly I can defense. ion upon probabil- based reasonable medical “Doctor, him, about these and ask what ity injuries as to the cause of these not,” but all I’m seat-belt and what mechanism involved. problem doing compounding there is that I have. already regard THE to the sur- COURT: With prise, going I’m allow witness Honor, listing I to be try Your fair testify you I think what are this. say try to my people going what are really saying, Greg, sys- areas, is that under our include those all those areas upon to telling they expected tem of to be called testi- each other what a witness is fy to. That was in this case. going not done testify system, is a and I bad agree to that. I you submit to an intention- that was al— adopt-

Ever since the Federal Rules were state, listing ed in this have basically, we On, Greg, say don’t that. MR. SPENCE: memoranda, witnesses in have said with- MR. —an intentional GREENLEE: as little as we they could about what would me on which I from holding information really testify to. differently had entirely would have reacted ^[******] they said “and the causes of injuries.” see, you I’m rul- Basically, testimony THE retrial either the of Dr. COURT: Freston goes with the hide. You ing person testimony given that the tail in or his former at in the doctor’s testi- trial let without below will be offered. It boils down, then, plaintiff to the accident. to whether or not the mony it was attributable punished is to be because of to this extent “What pancreatitis?” the cause of detailing the action of his in not lawyer “The accident was.” projected testimony of Dr. Freston rather that in right. got All You’ve and there’s merely describing general than it in terms. is a objection. no here refinement of Now Note also in which that this is not a case basically think that just that and I that’s there was to endorse the name of a failure is, of it. That’s why what it is a refinement witness, surprise as a of which was result something maybe I that we’re at say it’s by expect claimed We at the trial. requiring memo- fault in not fact, surprise show that there was in no greater in detail. randa conceding that the statement was not full and complete. basically But I think that has not been Wyoming practice, I think we will B. it, to live with least in this case. have Gentlemen, let’s move. SURPRISE IN FACT NOT IS DEMONSTRATED DOYLE, Judge, WILLIAM dis- E. Circuit Ford maintains that it had IV2 senting. itself, its prepare months to and thus fail- issue which is relied on sole deposition ure to take a should not be coun- alleged for reversal is whether an majority against ted it. This is incorrect. The wit- giving consisting trial error of the of an Freston, question, ness in Dr. James W. incomplete general or statement as to the in fact quite prior endorsed not months 2V2 witness, in proposed of a to the trial in notice was late March. This conjunction naming of witness with the pretrial conference given supplemental at a statement, jus- plaintiff’s pretrial can held on Does the time January tify judgment rendered reversal prior months to trial span quite of not 2Vt following difficult trial and lengthy failing to justification constitute a verdict. highly award of a substantial probe the Freston’s testimo- details of Dr. slightest There is contention that not the of the ny? Counsel for Ford were aware the evidence or that the claim is insufficient Smith, was, fact Mr. plaintiff, that the is ill appear founded. Nor does it time, Fre- very being treated or by deposition defendant made effort with Dr. personal ston and contact other means to obtain a detailed statement worthy Certainly, Freston. this was of the proposed testimony expert. But, made inquiry. some counsel for Ford move, otherwise, no formal to ascertain preliminary Some elements need to be Granted, cryptic the details. the notice was delineated: and conclusory. This raises the adversary permissible whether it is in an A. proceeding such attorney for as this for the DELAYED JUSTICE ignore defendant a notice gives There general These occurred in 1973. the name and nature of the risk prior involving wrongful was a of an and to run to the making inquiry incident to not deaths of the wives of the notwithstanding testimony, details of the ques- the driver of the automobile tion, judge Here, Mr. well that a mere demand submitted Fox. we are into lawyer year 1980, compelled would sight. not in At have and the end is testi- proposed new to reveal in any great every trial there would not be detail the Thus, difference, would not mony expert. any, if in the facts. At the necessary fatal, have been for to Ford take a of spleen, removal the there was deposition. good it hazardous in a Certainly, was reason for generally counsel to be magnitude case of this for Ford’s counsel to of aware the foregoing testimony and to having cope elect to run of with expect the risk testimony as to causation. This is- damaging testimony specific for which no sue was anticipated of of the other each (so preparation is had been made it medical deposed. witnesses who were claimed). course, prepa- Of there had been brought

ration. Ford had in an D. from Michigan the of University Medical School, Huelke, FORD’S who ELECTION NOT fully prepared was OBJECT TO WHEN to refute the DR. any dealing with WAS FRESTON ASKED QUESTION seat A Perhaps belt a cause. GENERAL this latter ABOUT fact accounts for Ford’s pur- decision not to PROXIMATE CAUSE deposition. sue the A timely objection to the of this given. witness was not Counsel waited doubling damage by demand until Dr. Freston had testified to one phase for dollars, counsel to one million of proximate cause, that which which had to do place simultaneously took virtually with the automobile of collision as cause listing witness, with of gave the the added the injuries subject which were notice to Ford that plaintiff did not believe lawsuit. Objection was not made until the there existed testimony. a void in the question of cause to the seat related Accordingly, setting we have a in which a belt was introduced. then did counsel Only case had been carefully prepared over surprise. Ford cоurt claim The trial long period of time and in the which was considered objection. this waiver of last weeks of preparation. The issues were fully understood. Ford knew about E. problem of applied cause as to the seat belt because main relied on deficiency SURPRISE NOT WAS ESTABLISHED specific Also, defendant was this element. Finally, court this the trial had lived with prepared was this issue. The meet predecessor. case and the Having worked ready fact that Ford was detracts from the judge closely lawyers, was in a claim of Ford that surprised. it was good position finding on the make a endorsed, The witness who was Dr. Fre- surprise. existence of Not or nonexistence ston, was not ordinary internist. He subject a scintilla on the of evidence was particular an field surprise by Ford. No detailed was offered particular part of internal medicine. conducted, inquiry was no witness was He had not an M.D. degree, but a an presented, so reversal rests on well, Ph.D. as and he was Chairman of an analysis by majority of the circumstanc- important department University es surrounding to the extent this incident Surely Utah Medical School. none of this in- they squeeze are able favorable ignored was by Ford. facts, the mere plus ferences from the basic claim This isn’t that was counsel. made

C. much. THE IMPORTANCE OF THE TRIAL do not The circumstances COURT’S FINDING brought bespeak surprise. only was it Not Huelke, ex- third factor out F. Ford’s be that Dr. Donald is entitled to weighed finding witness, fully prepared is the on pert оf the trial court was cause, surprise general did not In seat belt he subject exist. view of testimony of Dr. ready of Dr. specialty peculiarly Freston and the also to refute belt injuries Smith, of the ‍‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​​‌‌​​​‌​​​​​‌‌​​‌​‌‌​​‌‍seat including position serious exten- Freston that injuries. Dr. sive internal produced the serious pancreas, which could supplement with the Garrett no duty even familiar made under Huelke (the 1) article literature where and Braunstein in two instances: response” except relied). Freston identity which Dr. addressed knowledge of having location persons v. S. S. Tupman Thurlow Co. The case materials; 2) identify discoverable each Castillo, (2d 1974), 490 F.2d 302 Cap person expects who be as an to called claiming sur- party the whether considered subject trial, matter expert at the witness cope the evi- to with prise prepared was testify, and the made, expected on which to he was which to which dence deciding testimony.1 in his pertinent substance of fact was considered surprise. was there whether in fact Treatise, in his Moore Professor James ****** 26.81, ex- Section Moore’s Federal Practice which are stated The facts preliminary the amendments: plains purpose the refrained why Ford raise as to a in (e) 26 was added Subdivision of Rule Freston, whether from deposing de- uncertainty that had 1970 to end the from to refrain be allowed should veloped duty supplement. to over the the details to ascertain making any effort directly duty provision imposes This the is listed expert who of the anof interrogatories to to supplement answers of the on the initiative rely entirely to per- location of seeking identity the every detail bringing in each any discover- knowledge of having sons that it was say to its would attention. Ford interrogato- matter, to able and answers so the that it did not misled statement persons ex- seeking identity ries the ignores consider act. This necessary to pected expert be called witnesses to case, example, the for the complexity of the ex- the trial and the substance of their issue was foremost fact that the causation Further, testimony. party a pected when lawyers. A distin- in the minds of both interrogatories dis- who has answered thorough guished was named and physician covers incorrect that the answers every possibility to be preparation required he has given, when a duty them to amend adver- unnecessary Is it for the examined. to conform to the truth. protect sary steps to to party take obvious Ellis Along by Judge the lines suggested should, consistent position? its Neither side Cpr., Transport in Commercial Gorsha [v. rules, to with be allowed sit spirit the the (E.D.La.1965)], the subdivi- 38 F.R.D. 188 back to action to and fail take obvious circumstanc- provides sion also that under suggests to do an ascertain facts. To fail so subsequent provide es in which failure to object attempt to use the rules for the a “in substance information would be an The trial was of developing error. court duty a to knowing there is concealment" the genuinely view that side neither was though cor- supplement it was the answer surprised, trying to outma- each rect when made. case, neuver the other. If was the this there because this should not be a reversal provision in Flexibility provided by punishes litigant. the innocent (e)(3) duty supple- subdivision to imposed by be ment answers duty sup- to important guide to agreement parties. of the court Of plement discovery requests is subsection for parties free to new course the serve (e) of Rule which was an amendment supplementa- interrogatories requesting party added in 1970. It that “A who states tion of the answers to set. the earlier has responded request discovery to a (Emphasis supplied.) response complete with when matters, (B) identity 26(e)(1) of discoverable 1. The text of is as follows: Rule person expected an to be of each called seasonably (1) party duty is under a trial, subject matter witness supplement response respect testify, expected to sub- he is which question directly (A) addressed the identi- testimony. stance of ty persons having knowledge and location of opinion impose an ab- majority being Does the made to call him having after failed duty on party and exclusive solute Duplantis, name him. Davis v. See interrogatories or to F.2d supplement answers But that case them? It does and more. amend trial judge allowed the to testify according to detail the testimony, nоtwithstanding failure list his failure to name as a can likened to an offense witness in majority, accordance with or- imposition in se. calls for Malum It der. The Fifth upheld ruling, Circuit regardless extreme of whether sur- penalty noting the sanction severity of the prejudice Thus, or willfulness is prise, established. denies the testimony. court weighed consequences precluding Bario The First Circuit Simonsen calling against magni- witness Co., Inc., (1st 551 F.2d 469 Plastics tude of violation the rule and decided 1977), consequence plain- considered that the discretion of the trial court should complete tiff’s sub- failure to disclose upheld. be The Fifth was also per- Circuit testimony. stance an witness’s It expert plaintiff’s by suaded the fact that the coun- consequence held the that the within potential sel that was a knew the doctor in The Si- court’s discretion. witness since he had furnished a re- been expert monsen notice that his given had not port oppor- trial and had had an before the unemployability would testify permanent him. tunity depose at that time to plaintiff. sought of the The defense re- cess in order a vocational rehabilita- to find The Circuit has also had occasion Seventh tion expert. The trial court denied subject to rule of failure name on motion seeking delay and the First Circuit expertise knowledge witnesses where affirmed. The court said: was not discovered until of the trial. time it should argues Ltd.,

PSCo that not be bound v. 539 F.2d See Sadowski Bombardier surprised by pretrial order as it was (7th in Cir. The witnesses that plaintiff’s expert, Arthur testimony order, case had been listed in the Kenison, might perma- that Simonsen experts. but had not been listed as nently unemployable. ... At that court noted close was a time expert the list of witnesses was one, testimony but be- observed that filed, said to have work- Simonsen is been trial and this during came significant ing on and off as a truck driver so that being of their tended to excuse the lateness anticipate any PSCo had no reason to experts. exercise of Again, treated as need testimony for about vocational reha- upheld. the trial court’s discretion was However, bilitation. was informed PSCo to consider the This court had occasion prior over five to trial that Keni- months which had admissibility of material not and, testifying son expert would be as an supplement response been in a to a disclosed through discovery, could have ascertained given interrogatory in answer to an re- testimony. substance of his . 26(e) v. Lake quired Rule in Price Sales complaint per- Moreover the alleged had R.M., Inc., (10th Cir. Supply 510 F.2d disability. manent did Clearly the court 1974). We stated: refusing not abuse in its discretion parties are under a quite It is true that up hold of the trial for the progress continuing duty supplement their re- unlo- testimony yet of the unlisted and as Moore, 4 J. Moore’sFederal sponses. See expert. (Emphasis supplied.) cated (1970). Practice Rule 26 26.81 [Section] 551 F.2d at 471. is no indica- requires this. There clearly Simonsen thus the burden рlaces however, tion, that be- the trial court by deposing defendant the initiative to take was a lieved that to amend tnis failure posi- of the just opposite witness— event, it is knowing concealment. In tion taken by majority here. is the questionable whether exclusion failing comply penalty far where the for only proper situation is different expert Surely the trial requirement. witness and an effort is with the is unknown selecting in discretion some court of discretion on a

judge has matter such as is appear however, not presented. noted, it does that the It is to be sanctions the Weiss case general its discretion in this involved broad and in- court abused notice as to going what the witness was stance. testify Actually, to. the Second Circuit in recognized 395. We thus F.2d at in the Weiss case ruled that this was not re- importance fact that case the versible error. for The case was reversed a lack of evidence showing there was refusing error in proffered admit evi- It was knowing recog- concealment. also in rebuttal, dence which evidence was ad- nized that the use exclusion sanction right missible as a matter which did questionable judge and that the trial pertinent become until the rebuttal. selecting should have some discretion in 515 F.2d at sanctions instance and that there The majority opinion also relied on the was no reason to conclude that there had Lewis, Voegeli case of 568 F.2d been an abuse of trial court discretiоn. (8th 1977), malpractice case which cites, The majority opinion among other one of the witnesses the defense cases, the Fifth Circuit’s decision Shelak changed testimony between the time of Co., v. White Motor 581 F.2d 1155 deposition and the time of trial. The 1978). In that case the trial court’s discre- through interrogato- defense had demanded tion was improper- determined to have been ries the nature of the which was ly exercised in allowing the testimony of being The answers were inade- offered. witness, quate granted and the court a motion to answers, but, connected compel back again, to an the answer was inadequate misleading. step accident on a and also con- second set defective interrogatories by denied enforcement nected a heart attack to the same accident. Also, the court. The the de- evidence of the causal connection of the court allowed witness, fendant al- call another heart attack jury arose on the date of the though, previously, counsel for the defend- selection. It is understandable that the tes- ant had indicated that he would not be case, timony in the considering Shelak called, as a result of which there had not arose, it, date on which it and the nature of been jury voir con- dire examination justified the trial court’s decision that it cerning Appeals the witness. The Court of However, rejected. should be even in that Eighth for the Circuit reversed the case and situation, extreme there was a divided court, saying remanded it to that the trial Judge court. Rubin dissented on the there by had been an abuse of discretion ground that the trial court’s discretion in that growing court out of the trial court’s allowing the up- evidence should have been having original failed to order enforce its held. In the Shelak case the trial court had compelling interrogatories answers to also allowed a witness testify who had experts changed case of one of the who his not been named. The Fifth ruled Circuit said, addition, testimony. The court that receipt that of this evidence was not revers- deprived opportuni- ible error appear because it did not that ty to voir dire other respect surprise there was prejudice. and thus See expert. Voegeli complex is so and different 581 Thus, F.2d at 1159. case is Shelak from the case at bar that it is not an at odds proposed opinion with the in this case, effective authority in this which is case, which holds that for it was error limited allegedly surprise to an trial court to allow testify Dr. Freston to of which testimony, the substance even in a surprise situation in which was was produced surprise. claimed to have far from clear. complaint by There is the ma- one other Weiss v. Chrysler Corporation, Motors 515 jority and was allowed is that Ford (2d 1975), F.2d 449 by is relied on prepare 10 cross-examina- minutes to majority upholding right of a review- tion. The majority does not mention the ing court to void the exercise the trial fact that the 10 minutes was all that was

807 Federal requested. para Moore’s Practice point. We mention one final The Rules surprised states that the graph par of Civil Procedure do not allow 59.08[2] counsel on for ty move a continuance at should one side depend opponent on his surprise or be time of the otherwise he will every item of opponent evidence that the is having objection. considered as waived going to contemplate offer. The Rules The cases cited Moore are Jackson identification of and subject witnesses mat- Co., (W.D. F.Supp. MFA Mut. Ins. 169 638 permit ter so as to adversary to take Ark.1959); Campbell v. District of Colum depositions or to seek interrogatories or bia, F.Supp. (D.D.C.1957), aff’d 254 move for a more detailed statement as to (D.C.Cir.1958); Camegie F.2d 357 Dow v. be, what going the evidence is but all of Corp., F.Supp. lllinois Steel 1019 these open place avenues are and to all of (W.D.Pa.1947), grounds, rev’d on other 165 the burden on the plaintiff to the detriment (3rd 1947); Beardsley F.2d v. How is, least, to say grossly client Co., Bullough ard 176 F. & American Mach. unjust. (C.C.D.R.I.1910). v. G. Cf. Tabatchnick In closing, gainsaying there is that the no Searle, (D.N.J.1975). D. 67 F.R.D. 49 considering imposed sanction was excessive In summary: circumstances, length including the finding judge of the trial that sur- difficulty of the trial and the fact prise was nonexistent is high importance liability. there is no real issue as Ford’s for these reasons: trial, as This was a well conducted 1) The existenсe cases show that actual go. lengthy complex trials Unfortu- is, surprise is necessary essential. Also nately, perfect impossible is to have a course, prejudice. trial, being human considered. fallibility 2) surprise, Constructive as discussed standpoint This is true especially from the more, surely majority opinion, without perfection. of technical does not mean This Surprise implied not in law will enough. after, perfection sought should not suffice. must be real. surprise but this goal there is not an indication that present was ever abandoned case. 3) surprise meager. The evidence of exists, course, There the claim made in reasons, all I respectfully For of these open counsel, court Ford’s but is not disagree reasoning and with the conclusion If, allegation. evidence. It an merely majority opinion. indeed, experienced this seasoned and lawyer surprised, that indeed would

surprising exposure he has given fact,

had in this case. In both sides have they

lived with many years the case for sensitive the issue seat-belt- alleged by plaintiff cause and defended MARTINEZ, Frank X. Ford. Both knew that sides had Petitioner-Appellant, establishing come forward with evidence the seat belt caused the harm. Fur- thermore, conduct counsel for Ford ROMERO, Respondent-Appellee. Levi during the trial showed that he was ‍‌‌​​​‌‌​‌‌​​‌‌​‌​‌‌​​‌‌‌​​‌‌​​​‌​​​​​‌‌​​‌​‌‌​​‌‍alert No. 79-1467. the issue and apprehensive indeed about the special Dr. Freston on the Appeals, States Court of United subject, for he quick distinguish Tenth Circuit. general specific between causation and the Submitted 1979. June causation involved here. Decided July In foregoing, the face how can the majority plain demonstrate the error neces-

sary judgment of its substitution

that of the trial court?

Case Details

Case Name: John H. Smith v. Ford Motor Company

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 16, 1980

Citation: 626 F.2d 784

Docket Number: 78-1636

Court Abbreviation: 10th Cir.