*3 LUMBARD, Before FRIENDLY GURFEIN, Judges. Circuit GURFEIN, Judge: Circuit Lillian On November Impe- Chrysler driving a 1960 Weiss enough and was to cause failure of the Sedan along rial Route 123 Connecti- Chrysler device. contended that injuries when she serious cut sustained the fracture the result upon hitting a On June tree. during the plain- accident itself. The began against
she action the defend- tiff’s was that fracture of the Corp. ants Motors Pitman arm was a Corp. (hereinafter, “Chrysler”), two-stage stud sounding frac- ture, the first products of which had been liability negligence. caused York; fatigue improper due design New Mrs. Weiss is a citizen of construction. Plaintiff citizens Mich- contended that defendants fatigue igan. progressed fracture diversity Jurisdiction is based on second, sudden citizenship. jury A trial was the time of held be- Griesa, sought the accident. Chrysler explain P. Honorable Thomas fore U.S. D.J., accident upon simple ground 1973 to February March *4 the went off the 1973. The returned a verdict road because was she Chrysler, speeding and lost appeals for and the control of the through car her judgment. ground negligence, that The own ap- from not be- cause of steering relates to the failure. peal primarily trial court’s rulings in the connection with admissibil- During pre-trial discovery there awas ity by evidence and the ex- by concession metallurgist, a by clusion of plain- evidence offered the Gregory, Donald that the Pitman arm tiff. stud showed two successive fractures. It contention that plaintiff’s was the Chrysler sought At trial appel refute driving on Connecticut she was while theory lant’s that the first stage fracture accident, of the day 123 on the she Route by was due to fatigue, contending that suddenly steering the wheel found that both fractures occurred after the car shortly that there- respond, did after, went off the road—the first stage sharply turned the front wheels by caused impact a one stump inch right. off the road and the She went before the car a ditch hit that was four of about 69 the tree at a distance into feet wide deep, and two feet and the plaintiff’s from the The theo- road. feet stage second occurring when the car hit by was caused a was that the accident ry a tree. There was a dent on the rim steering mechanism of the defect right the front wheel. It Chrys became she con- specifically, automobile. More ler’s theory that it was the load force of steering that malfunction tended the stump on wheel rim that part the result of the was of failure had been sufficient to cause the first assembly a steering called “Pit- vehicle fracture fatigue.1 rather than stud,” allegedly de- man which The plaintiff thus relied on fatigue as car at the time the was manufac- fective causing the stage first of fracture ulti tured. mately sufficient to cause the steering failure before the Pit- the car left The evidence indicated road. The defendant, hand, been frac- arm stud had indeed on other man relied upon impact the frac- with the causing Weiss as contended tured. stage first fracture,2 had the accident occurred before thus es ture part failure of a as theory during vehicle known 1. abandoned another Stud, asserting part Pitman stage Arm discovery fracture pre-trial first that the stages. stage failed two The first was occa- may months before the three have occurred defect, fracture, by product fatigue sioned a during between collision a minor accident ordinary ultimately progressed under and a car owned plaintiff-appellant’s car second, driving sudden and separate stress com- cause of action A Elfers. Frederick plete time of the De- fracture at the accident. against before submis- Elfers was discontinued two- however fendants contended jury. sion part fracture of this occasioned by Chrys- appeal is summarized issue on impacts which followed series contended “Plaintiff brief as follows: ler’s extremely high to her loss of control due rate caused failure tablishing argues expert car left the be She road Sylvester Mazur, any fracture employee fore whatever. The de an of TRW therefore, (the rely, stud), could on manufacturer speed sup- fendant ing the. port leaving theory, as the sole cause for car’s of that should have been stricken from the the road. The dissent somehow comes defendant’s case be- cause the upon defendants had a third failed dis- concedes stress,” close the “Chrysler did not their namely, answers happened plaintiff’s interrogatories. the first fracture before the left the road and the car second after- Appellant’s second contention relates wards.3 See the question” “threshold exclusionary an ruling made as the charge the court’s in footnote 8. plaintiff attempted to dispute Mazur’s theory on course, rebuttal case. The plain not be Speeding, tiff expert offered the were steer- of Pro the accident there cause of fessor Dennis University Rader Yale through part. ing a defective failure to rebut Mazur’s testimony that the dent discus- this sense much of the dissent’s on the wheel rim had resulted suf speeding the vital issue sion of elides ficient force to have caused the Speeding does first jury to decide. defect, Judge Pitman arm stud. product Grie- out rule Though Judge permitted Griesa Dr. Rad- charged. expert To rule out testimo- sa er to testify subjects, about hardly other he “harmless ny product defect refused to assumes, allow to testify we him an error,” since as the dissent *5 experiment which performed he say jury that did not decide cannot the had testified, Mazur which was prod- designed of proof whole case on lack the to show the that defect, amount of reaching appellant’s force on never uct contributory negligence. impact required to dent the rim right
Weiss’ front wheel was of an order I magnitude of one-fourth of the force that would have required been to a cause respect surprise with claims Appellant first fracture of the if stud it were testimony that expert appellee’s to the sound.4 first the stump the caused with impact judge’s The trial main ground for re- In stud. of the Pitman arm permit fusal to ap- Rader’s rebuttal surprise, testimo- argument of of its support ny was subject that the right to matter had been she had that contends pellant plaintiff’s broached on case, direct that sub- interrogatories to answers receive opinion testimony Rader’s of dis- should have the course Chrysler in to mitted time, been introduced that no- and that it her given have covery, improper was rebuttal. He bring that noted intended Chrysler tice that during the cross with the -examination of one of testimony that expert witnesses, plaintiff’s fracture. Alfred L. Mose- the first caused stump speed country on a Connecticut portion road whose charge not withdraw this even topographical configuration though Chrysler would cause a ve- disavowing was the conten- go speed.” tion, hicle to out of control at such probably any he felt further in- added). (Emphasis only jury. any struction would confuse the In event, on which relied charged Judge Griesa heavily most was that both cracks had oc- could stage fracture first contended curred after the car left the road. This is colli- earlier result as occurred enough to make the exclusion of Contrary infer- to an Elfers car. with sion prejudicial vague error even there was some note 3 might from be drawn ence hinting theory. of another Chrysler’s counsel dissenting opinion, was it dissenting opinion ground 4. The charge on notes that Rader objected Dr. to that who testify permitted to He on other the case. matters. We their was not con- at a Corporation loss understand how this does cures the “Chrysler stated: letting testify error in not him the Pitman the crucial arose condition tend Judge No 38). issue. one contends that (p. Final- Griesa Elfers accident.” from stud prejudiced against appellant. however, did Judge discussion, Griesa ly, after Moseley ley, purportedly admitted that Chrysler further urges that the motion the right the sudden front no made proper offer of proof at the hitting pull wheel exerted time the rebuttal testimony was exclud- supported urges that, link which ed. It any event, pro- fitting posed rod for the left front wheel tie testimony of Professor Rader generated the forces would not have been in direct contradic- —sufficient separate the tie rod stud—would also tion testimony, Mazur’s that his meth- a “failure” of the be sufficient cause ods of measurement were different from Pitman stud. those of Mazur and hence not proper rebuttal, and that its admission would respect appellant sharp takes have unnecessarily prolonged a long trial meaning with the of that testimo- issue by inviting Finally, sur-rebuttal. Chrys- essentially ny. contends that when She ler makes the contention that its case stud, Moseley spoke of a “failure” of strong that, was so even had Rader been speaking generally he was and was in- permitted to testify expected, a ver- cluding frac- only possibility dict for the could not have been ture, also separation but of the stud sustained on a motion to set aside the kind of housing “failure” —a verdict. require which would far less force than allegedly necessary precipitate an II actual fracture of the car. stud Weiss’ may, appellant that as it Be contends We have reviewed the matter eliciting matter helpful to of. particular care in view of our reluc the defendant on cross -examination of tance to upset verdict, a jury to trench witness, as distinct from its upon discretion, court’s and to examination, being proffered on direct protract litigation concerning an acci ground for no the exclusion of rebuttal dent that happened more than a decade contrary by propo- ago. Nevertheless, we feel constrained nent. to hold that the plaintiff improperly 1) appellant contends that the *6 and prejudicially foreclosed proving “surprised” by the Mazur testi- her case on the crucial issue of her claim mony concerning the the impact with against Chrysler by the rulings adverted stump, because it had been the to above. theory subject the expert and of testimo- presented ny in an earlier in action the 1. The failure of discovery. arising York State New court out of the The initial question is whether same accident with which plaintiff the fair received notice of the 2) counsel familiar and that the in- theory which Chrysler ultimately pressed terrogatory, the answer to which failed explain to two-stage the fracture of the to disclose proposed Professor Mazur’s Pitman arm stud. We conclude that testimony, type directed to that Chrysler’s properly failure respond to to and was therefore not plaintiff’s interrogatories plaintiff denied spite for in of the Judge’s called district such fair notice. keep interrogátories to the up-to- order Two sets expert interrogatories testimony developed. date as were sub mitted to that, Chrysler also contends since the were broad enough to require Chrysler question divulge was elicited in the to theory like that Moseley, plain- ultimately first instance from Mazur trial, at witness, disclosed and the responses giv tiff’s should have struc- en fell far short giving bring appellant any her case so as tured to Professor indication of the expert testimony into involved Rader’s its direct in Ma- expert zur’s testimony.5 waiting case rather than Two motions rebuttal. Following alleged “45. failure of interrogatories 5. These entire and ques- and the stud on the occasion in response are as follows: thy, Esq., attorney Upon for Lillian Weiss. belief, information 1964, tests, and 14, Mr. Turnbull utilized on November were tion microscope an etching chemicals, electron inspections or made defend- examinations ant, and arrived at behalf, his attempt of an conclusion in an load or in defendant’s induced failure to the Pitman arm stud result- the failure. determine cause of ing happening from the so, study, of the accident. for each If state: “46. (a) “Also, September, 1968, Gregory, description Donald its metallurgical engineer many years (b) performed with the time and date it was experience analysis, employed failure (c) place performed .by it was Chrysler Corporation performed address, name, (d) telephone a visual number microscopic title, capacity person job examination means of who micro- and performed scope under the authorization of John H. Dud- ley portion of the same (e) of the fracture face the nature and substance of all informa- stud, the Pitman arm person and arrived at was made available to the tion which conclu- sion similar to that of conducting study respect Thomas B. the item Turnbull.” circumstances of its failure and the response 50, In to No. there was included experience (f) of the the nature and extent Mazur, “Sylvester Engineer, Products em- person conducted in such work of the who ployed by T.R.W., Inc., previously who was study interpreted the results deposed by plaintiff.” name, address, (g) telephone number response 52, response Nos. 51 and capacity person job title or who regarding Mazur was: performance its authorized “Sylvester testify, expected, Mazur will it is any equipment (h) description used regarding manufacturing techniques, pro- microscope, etching (stereo-binocular chemi- inspections by employer, cedures and cals, etc.) Thompson Wolldridge, capacity Ramow in its (i) description procedure of the used as manufacturer of the Pitman arm stud and (j) arising results and the conclusions components suspension. related of the. More therefrom.” specific information as to Mr. Mazur’s antici- 24, (Interrogatories 1970). April submitted pated testimony present is not known at the Interrogatories Further submitted November time, although it is noted that he will also 24, 1970 included: testify regarding depo- matters covered in the Identify person each whom the de- “50. Sylvester Mazur, sition of conducted Chrysler expect expert as an fendants to call 17, February in the within action on trial, setting forth: . [de- witness 1970.” scription expert witness] Supplemental Interrogatories submitted Oc- person each such named in “51. As to re- tober 1972: Interrogatory sponse to No. 50 state the sub- “3.a. State all the causes which contributed expert expected ject matter on which [is] causing 14, 1964; the accident of November testify. b. Do defendants contend that the person “52. As to each such named in re- Chrysler automobile here involved sustained Interrogatory sponse state the No. sub- any damage August in the accident of opinions stance of the facts and as to which any way happening contributed to the expert testify expected each such and set 14, 1964, of the accident of November and if summary grounds opin- for each forth so, how? ion.” Response portions c. Set forth in detail what *7 12,' May submitted 1971: Chrysler damaged vehicle here involved were September, 1968 an electron micro- “46. 3, 1964, August on damage what the nature of that scopic portion examination of the fracture was, damage how such affected the of the Pitman stud was conducted force vehicle, operation when, of the how and to Turnbull, by Mr. Thomas B. an Electron Mi- damage such whom or malfunction first be- Inc., croscopist employed by Ernest P. Fullam any Chrysler, came to [sic] defendants York, Schenactady, New which examination precise damage, the ner, location of such the man- Dudley was authorized ney, employed by John H. an attor- any, damage if in which such contributed Chrysler Corporation, P.O. happening 14, of the November 1964 1919, Detroit, Michigan. The address and Box accident, and set forth all the facts which dem- telephone number of Mr. Turnbull is now damage onstrate that sustained Upon and belief known. information he is an Chrysler 3, August automobile on 1964 con- many years expert of field electron causing tributed to the accident of November microscopy. The information available to him 14, identify 1964 and all documents and the portion of the fracture face of consisted present custody location and of all documents alleged Pitman arm stud to have come Chrysler believed defendants to be relevant subject the vehicle which is the matter of from to such contention.” belief, litigation, upon information and this Response submitted November 1972: photograph, having previ- items also one these respond “3. The defendants (a) Objection as follows: ously been obtained from Herman J. McCar- 456 were made to strike answers is central to the case. Now we know respond for failure to interroga to these Chrysler piece knows that and, although tories both motions were was fractured before the accident. denied, the transcript of a hearing on “The Court: What you doing are is the second of these motions on February forcing analyze them to the case and 7, 1973, entirely makes it clear that dis analyze to prior existence of frac- theory closure of such a should have Maybe tures. is, what should be done only theory been made. The apparent at they this, won’t they disclose should time, Chrysler on which might de precluded be putting any from evi- pend, was stage the first dence on the trial as to fractures.” had occurred in a collision. Plain prior 63-64). (App. pp. fairly tiff Chrysler assumed that could We think it clear that the face deny was, that the stud failure in Interrogatory 46 coupled with the tri deed, a -stage fracture because of an two judge’s general al warning that Chrysler admission to that deposition effect in the might “precluded be putting in any metallurgist Gregory. How evidence on the trial as to fractures” ever, Chrysler’s responses to Interrogato clearly required Chrysler divulge Ma- 3(b), 3(c), 45, ries gave and 46 no indica theory zur’s as a response Interrogato tion Chrysler’s experts had made ry No. 46 as well as No. 52. Chrysler’s any tests to any substantiate theory on argument that its failure to respond so might which it rely Nor, at trial. justified can now be after the fact be response Interrogatories 50-52, “plaintiff cause never complained of de theory, Mazur’s experiment or an sup fendant’s answer to interrogatory # 46” it, port even hinted at. It was the lack (Brief p. 54) disingenuous. Even if response such and the fear that some plaintiff had reason to believe that such undisclosed sprung presented would be because of prompted trial which appellant’s motion arguments previous similar state court to strike. While particular thrust of litigation, which is at best sharply dis appellant’s argument at the hearing on puted, that justify would not the failure the motion to strike possible was over respond truthfully and use of an earlier accident explain completely properly to a framed inter stage
first fracture, there is no doubt rogatory. “It is objection no to interrog general more concern of both . . . atories the information appellant’s counsel and the trial judge sought is within knowledge was that had disclosed interrogating party.” Bowles v. Safe explain first frac Stores, way 4 (W.D.Mo. F.R.D. ture: 1945); Opera Grand Co. v. Twentieth
[Appellant’s “ Century-Fox Film Corp., counsel]: F.R.D. (E.D.Ill.1957). “A distinction should not they . I can’t believe be drawn between facts with or without going to come in with no informa- knowledge of the examining party.” prior facts on fractures. and no tion 4 Moore’s Federal ¶ Practice 26.59 at 26— experts have ana- clear that their It is (2d 1974). Ed. regard. They know lyzed it in this fractures; there is no were Consequently, there to characterize the issue *8 question Perhaps it. question being about here as determined a lack of is there was “surprise” be resolved whether to distorts the essential problem. fatigue, but this impact prior or prior policy The prompted which amendment (c) Upon damages information and belief the present (b) time make at the prior The defendants in as sustained the accident are reflected another, contention, way with re- one or appropriate repair no records.” plain- it is the gard accident since to the in this a casual connection who claims tiff regard.
457
nearly
years
nine
the acci-
reached
after
26(b)(4)
Rule
of
to
Federal Rules
dent,
justification
there is no
for dis-
Procedure to allow more liberal dis-'
Civil
covery
incomplete prior
to be
to trial
potential expert
covery
testimony
of
testimony
expert
data for
has
because
merely
of
for convenience
the court
compiled,
we
to give
not been
refuse
parties,
to
and the
but was intended
26(e)
interpretation
an
to Rule
that
the task of the
of
more
make
trier
fact
justifica-
provide
such
tactical
manageable by
orderly pre-
means of an
tion.
complex
fact.
sentation
issues of
knowledge
“Mutual
of all the relevant
dissent,
The
respectfully suggest,
we
gathered by both parties
facts
is essen-
point.
interfering
the
We are not
misses
proper litigation.”
tial
v.
to
Hickman
judge’s
by reversing
with the
discretion
495,
385,
507,
Taylor, 329 U.S.
67 S.Ct.
on
The point
him
this error.
of this
392,
(1947).
L.Ed.
generally
91
451
See
of failure to
the
discussion
answer
inter-
26(b)(4), Advisory
F.R.Civ.P.
Committee
rogatories properly
simply
empha-
is
to
Notes to 1970 Amendments.
appellant
size that
was under no warn-
ing to
in
put
her evidence that
the
testimony was
expert
case the
In this
stump impact could not have caused the
put
has well
Judge Bartels
As
crucial.
case,
first fracture in
direct
her
the resolution
“Realistically speaking,
it:
appellee
the
had hidden its
be—to
upon
depends
[medical]
entire case
only
sprung
plaintiff had
rested.
opinion.
expert
Having
appellant
that
transcend
concluded
case
such
necessities
unjustifiably
discovery
Chrys-
denied
may otherwise
limitations
usual
theory,
ler’s fracture
we
to
proceedings.”
turn
the rul-
upon discovery
imposed
Laboratories,
ings of
trial
court which made that
Nysco
v.
States
United
appellant’s right
fact critical to
to
159,
(E.D.N.Y.1960).
a fair
Inc.,
162
F.R.D.
26
presentation
jury.
its ease to the
was defeated
policy
think
We
litigation
reason
in this
Appellant’s
2. Exclusion of
Rebuttal
po-
its
to disclose
failure
Evidence
explain the
expert testimony
tential
In the
case the
defendant's
ex
two-stage
fractures
first of
pert
gave
opinion
Mazur
cause
arm stud.
Pitman
two-stage
on
fracture based
a test
had not
an
been disclosed
lead us
Similar considerations
interrogatory.
upon
Based
swers to
reject
its
Chrysler’s arguments
test,
gave
Mazur
it as his opinion
duty
respond
interrogatories
the force of
on the rim of
concerning
expert
ended
right wheel
hitting
tree
began
trial
because the tests
when the
stump had been sufficient
to fracture
complet
which was based were
on
stud,
accounting
the Pitman arm
thus
begun.
ed until after the trial had
Even
rebuttal,
the first
fracture. On
wrong
appellant
contending,
if
prove by
expert,
offered to
its
contrary,
were
crucial tests
Rader,
actual experiment,
completed
trial, Chrys
actually
before
required to cause a
force
dent
the rim
obligation
re
supplement
ler’s
to be
less
was shown
far
than that nec
sponse
“subject
interrogatories
essary
fracture that
This prof
stud.
expert
testi
matter”
“substance” of
testimony was
fered
excluded.
mony
continuing obligation.
was a
Rule
judge
While a trial
has discretion to
26(e)(1)(B).
Products
See Diversified
exclude rebuttal evidence which would
Co.,
3,
Corp.
5
Sports
Center
42 F.R.D.
been
evi
admissible
offered as
(D.Md.1967). Nothing in either Rule
chief,
Hall,
see French v.
dence
26(e)
judge’s
direction to the
(1886);
value Friend proffered of v. 102 F.2d evidence 155 potentially 1939). high (7 Cir. and evidence, though where such admissible chief, on the case in was un necessary for the to establish in But we also believe that Rader’s testi prima facie case. mony Throckmorton v. was not necessarily part plain of Holt, 552, 563-65, 180 U.S. 21 S.Ct. tiff’s case in chief. presented Plaintiff 45 (1901); L.Ed. Hall, French v. prima su facie case that the steering mech ; pra Wehr, Zurich v. 163 F.2d anism was defective. Her own testimo (3 1947). Cir. See National ny Securities failed, steering finding Corp. Heinbokel, (3 F.2d 266 Cir. of a twice-fractured Pitman arm stud 1946). We believe that the proffered the accident, and the testimony of testimony Rader, of might even experts if it her the first fatigue frac part plaintiff’s been of case in ture could have been by followed a final chief, merely was not complete cumulative fracture before the car left the should have been admitted' in the exer road satisfied her go burden to forward. judicial cise of sound discretion. Smith She had made prima her facie case.7 the accident scene steering failure occurred on the follows: wheel in the driver’s hands nism that the tured, gan to occur. (a) Gordon, cause the terial. required certainty, vehicle that a ing clear to it—but am I correct that it is ion within a reasonable that it could no (b) Moseley occur es, applied began to occur? was a cation, repeated application, driver with the growth when the cross-section of the over a considerable Pitman arm so reduced “A. Yes. “A. Yes. “Q. The moment before the “Q. “A. Yes.” “Q. So “[A] “I believe that the sudden stresses which are far section of the front-wheels.” on below, during consequence of s(s fatigue When the accident led him to believe that No unusual of one it, Moseley, pin fatigue stopped connecting it, began Mr. produce no testified that his pin, [*] went into sometime before this accident ordinary (App. sudden failure crack the final Yale control which had been weakened pitman crack to to occur: pin longer [*] pitman two ordinary failure in growth (App. p. 582) metallurgist, events p. 635) grows period took the final use? over the fatigue failure, sudden [*] degree arm we will sustain the forces continue place, leaving below the under the of these cracks operation of time of small steering pin -just analysis the sound [*] pin "cracks; failure pin road, failure accident — the remain- required steering come testified your opin- had been scientific [*] mecha- it frac- stress- before failure of the grow. stress of the appli- could to be back ma- be- 7. Because ject, Rader’s al, the basis Gordon’s fatigue We note describes Pitman the trial tion to had mation spond to raised to strike timony driving on a road new trial “precluded stud’s describes wheel; is that correct? p. you the pin travel level man tion cant (c) This is we “A. That’s That’s “A. “A. “A. “Q. “Q. “Q. judge 1160). which included as a vehicle went out connecting need not reach the say on the road.” diameter. arm increase country strike stud, of Rader. At rebuttal you correct it with and, therefore, been that at a as to ****** That is That is My findings We are It could be the extra interrogatories, of our properly that that possibility failed while the vehicle was in mo- generally respect and its problem weakness of Mazur’s served with fractures.” disclosure road extended right. enough testimony requires holding your correct.” putting hearing going Thereafter like Route load on the Pitman stress denied answer changes very significant.” (App. load-bearing steering (App. corroborated will have become moot opinion? App. pp. Interrogatory down a that the to make question we hit a throught ground on a Pitman stud in the trial at the first (App. p. 64). control my opinion appellant’s any updated Chrysler might be (App. p. p. for failure to re- fatigue-fractured on 123: link 357). preclusion cross, straight on this sub- evidence on 1089-95, whether the because the direction few abilities, any 44% to the judge a new tri- 334) that the the trial. applica- No. 46. bumps; motion is that signifi- Rader infor- On stud? had tes- pit- on he
459 testimony on expert Wigmore the- words of have tendered his matters “[F]or not cor- case is properly rebuttal, subject until the in her direct evidential the proponent right put the has a them in rect. time, at that they subject are not Moseley It is true that was asked discretionary the exclusion of the trial on question cross-examination about . court matters of true rebuttal the dent in possible connection between before, not have put could been in and to rim and the fracture of the stud. exclude them deny now would be to testimony did make his in re- That their sole opportunity them for admis plaintiff’s of sponse part direct case. Wigmore, p. sion.” Evidence 1873 at § Moreover, Moseley’s response to that (3d 1940) (emphasis original). ed. equivocal (his attempted was question mean, That does not of cut explanation Chrysler’s was off course, every that in case where evidence counsel). significance Its to the case improperly excluded on rebuttal there
is apparent was not the time because' at contrary be a new trial. On must ulti- questions with a approach we must such develop was mately Mazur’s liberality. is problem The here rational We plaintiff. still unknown to the the issue was crucial.8 The Wigmore choose to follow the rule that evidence, entitled hear the rebuttal evidence should have been duty go or plaintiff had no cause admitted, though appellant even in chief negative in its case forward redirect, question on Mose- permitted, opinion negating Mazur the defense response ley on his in the cross-examina- cause of the accident the defect in as the tion. plaintiff Pitman arm stud. “The required was not to offer evidence proponent has found “[W]here positively every possible excluded other necessary desirable, by reason of Rosenberg cause of accident.” opponent’s examination, cross part- Schwartz, 162, 166, 183 N.E. 260 N.Y. ly anticipate case rebuttal noted, (1932). we have con As going during chief,— to it his case in trary suggests, to what the dissent example, on a re-direct examina- Chrysler’s proof tion; here he may up take the same establishing a “third al not directed subject again during the rebuttal.” one ternative —that J. Wigmore, VI supra, at 517 § leaving to the car’s occurred (3d 1940) ed. (emphasis original). the second roadway afterwards.” the exclu we have found that Since the defend was critical be sion of Rader’s argument cross-ex issue of its relevance to the central cause was elicited ant’s Moseley, case, er exclusion is manifest expert, plaintiff’s amination therefore, should, in this bat- testimony excluded ror. The major part of the evidence at “The charged under the on the issues The court question, and 1 has been devoted to this warranty part as follows: claim in breach (Emphasis attempt to restate it.” won’t question, ba- the first and threshold “The added). you is whether question must decided sic charged further: He proved in the November plaintiff has version, you Chrysler’s or if “If believe plaintiff’s road left the car accident you version about frac- find steering be more To defect. because upon impact the road after the car left ture pin fracture on precise, this Pitman arm did likely just as version about control, causing go out of the car to the road road, is, if the failure on the go out of control the car or did evenly question, balanced on scales frac- with the speed conditions road and/or her burden has not sustained then occurring one the Pitman ture question.” proof on this threshold em- impacts on the received or more bankment? *11 tie of experts might accident which resulted in the death of have changed the verdict.9 injuries her and in serious to brother passengers herself and the other three Reversed and remanded for a new tri- autqmo- car. The front end of the al. completely bile was demolished as a re agreed by sult of the accident.2 It was LUMBARD, (dissent- Judge Circuit parties both that the stud had fractured ing): stages. alleged in two Miss Weiss that I dissent. stages both occurred while she was driv inappropriate I think that it is most ing the car and the fracture that caused month-long jury another require roadway car to leave the and crash automobile simply this accident case be- into a tree. judge cause the trial refused to allow Chrysler that the car left claimed five minutes worth of rebuttal Miss Weiss lost control roadway because only marginally which at best was rele- that the fractures occurred aft of it and vant to the case. Because the facts are roadway left the when the car er the car briefly only sketched in the majority stump; edge drainage struck opinion, I will outline them in some de- was, ditch, There tree. tail here. course, alternative —one third prior could have occurred case,1 the fracture diversity In this Miss Weiss roadway leaving car’s claimed manufacturing that a defect in a jury If the believed stud, second afterwards. part Pitman of her 1960 alternative, verdict would this third its Chrysler Imperial’s steering gear, was Chrysler.3 been in favor of responsible this serious automobile appellee’s there was an contention that charged jury On Judge any event Griesa proof, trial court said offer of insufficient “Chrysler that the of Pro- contends “your proof.” The offer Gordon, it understood among things, other shows fessor proposed argument rebut- Rader’s equally related fatigue it is if there was a crack even possible his method of tal was inadmissible Elfers that the arose from this crack specious. was unlike Mazur’s measurement August.” accident experiment relevance was of obvious Rader’s to the the man given response instruction was This force of that the conclusion Mazur Chrysler’s Request Charge 6 which Number stump impact the Pit- fractured could have you, jury, jury that the be told: “If asked stud. just any de- that it is as reasonable find conclusion, unnecessary it is In of our view the accident in the vehicle was caused fect appellant’s of error. other claim you to consider August, find for must 196[4] of Chrysler.” may Chrysler not have While Weiss, resident, brought a New York 1. Miss jury that the told that it contended wanted against court action in New York federal this these out-of-state accident, there cracked to this stud was is no defendants over two and a jury question to be it wanted the passing years accident. I note in rationale for half after the found that there was told that if the allowing this that there is little crack, prior Chrysler verdict should still be for diversity brought type in feder- action to be that the fracture was if it also found Friendly, Federal See H. Jurisdiction: al court. A General View completed left the road. until the car (1973). 147-48 Moreover, before a state this attempt repair car. In 2. No was made to rejecting In in a related action. court claim made fact, shortly after accident Miss Weiss al- here, judge the state stated: Later, junked. the auto lowed quite from the evidence was clear I think (includ- steering linkages permitted all of the that in this bolt Gordon O’Connell both part stud) ing of the Pitman arm to be thrown pin a fracture which in their there was make a limit- While was able to out. ed examination impact up opinion had come before the remaining portion, against the tree. stud, portion had been lost (an expert that Miss Weiss [Mr. O’Connell time of trial. trial, she would call at the federal indicated but crack, call)] whom she did not said that the say majority 3. The cannot did crack could have come the initial argue closing third alternative. The one of three different sources. arguments of counsel are not record. apt humps were fast over the going too framed, With the basic issues thus .'itis cars. of their lose control to turn to the evidence before instructive tendency of testimony that the offered Weiss, According she jury. to Miss type bump going over this car traveling north had been on tree-lined right. veer to the would be Canaan, through New Con- route necticut, ap- on November Bunge day on the Robert testified that (the proximately per speed 40 miles hour proceeding of the accident he was south *12 limit), suddenly “snap” when she felt a He that he saw the 123. stated on route “steering spun wheel the and [her] on, road, car swerve off the back Weiss although that the hand.” She testified road, on, finally the and off the off back left, right, turned to the to the wheel into- a tree. He stated that he re- road respond right, to the the car did not and that the left be- membered car swerved right, off continued to veer to the and he was afraid it hit his auto cause road, According into a tree. the coming kept if it into the left lane. roadway Weiss the car was bn the Miss from the tree when the and 50 to feet Maraniss, Herman passenger a in the steering mechanism failed. back seat of the auto, Weiss testified that he had commented about the exces- not that she did Miss Weiss testified sive speed at which Miss Weiss was driv- any “bumps” in the going over recall ing the car three times during the trip accident, immediately prior road from New York City while on by had not asked one of that she been —once route’ 123. He also stated that Miss down, passengers to slow Weiss told him that she get wanted to saying she could not recall she her estate as quickly possible so that up make time lost because of wanted to their late start from New York would late start. deprive her brother of a chance to sit important respects, In several Miss sun. Mr. Maraniss’ testimony was disputed Weiss’ view of the accident was basically corroborated another passen- Emmy witnesses. Lou Salembi- by other ger, Modeste Hillary, Miss Weiss’ maid of the acci- day er testified that on the at the time of the accident. going northerly dent she was on route approximately per 45 miles hour. Weiss had to establish that Miss car, going stated that the Weiss She left the road because the car fast,, passed her car and another quite failed and not because she mechanism a half approximately a müe and car speeding while control of the car lost accident, the scene of the and that The bumpy stretch of the road. over hill, where there was this occurred'on witness- of these on-the-scene testimony indicating passing line a solid end of this es, came towards the improper. trial, quite Miss damaging long gave ample rea- jury It case. this Weiss’ Mrs. also testified that Salembier automobile that the Weiss to believe very son particular section of route 123 had Weiss lost roadway because Miss left the humps private in it where noticeable hump, over a passed it when it control of driveways highway4 intersected with the especially high speed, rate of at a going persons that she had observed that delivered of the state court was This decision trans- from the come have It could Chrysler put before wit- from the bench terrain; (2) have by rough it could mitted accident, being nesses on the stand. as well as from a come by the permanent [manu- crack occasioned a facturing 123 was built process]. humps route exist The portion crown, e., center i. with driveways higher sides. than the road I am of the facts a finder- [A]s join at the the road the road section in this speculate going sit here hump crown, causing thus level original possible of the causes three road. the sides pavement on beginning of responsible for the crack the bolt. complete severance since other evidence Moseley, plain showed the car Mr. roadway. left roadway shortly passing left at the testified expert cadologist,6 tiff’s hump. over a if the fracture trial7 state-court the car complete when was not the stud reversing in Chrys verdict affect stump, impact would hit the favor, ler’s the majority but makes two the stud. arguments.5 First, majority takes Moreover, statement, opening pains great show Miss Weiss was Chrysler’s counsel stated: surprised Sylvester Mazur, Chrysler’s experts, one of who will show you only now not [W]e the cause of the said that the force which dented the was, you accident right wheel of the car Would been will, operation vehicle sufficient to fracture a sound Pitman Miss Weiss but that the reason that agreed stud. Since was that the the bolt broke happened was what wheel, tree dented the Mazur’s when the vehicle went off the road. was that car’s collision * * * * * * the stump could have broken the *13 In that 69 feet on the embankment Although stud. does explicitly it not so something times, on tilt hold, at appar- majority suggest seems to that ently the vehicle hit initially a tree testimony Mazur’s should have been stump, which dragged the by underneath stricken judge trial portion of the car. The Chrysler vehicle then did not reveal to Miss Weiss drainage went over a trial, ditch prior which the as it by updat should have police estimate, you photo- and will ing see its answers to her interrogatories, it, graphs of being approximately argue that it two that stump deep feet and four feet played a wide. role in fracturing the stud. Then the end of the story was the disagree I majority’s with the sugges- impact of this against vehicle a tree A judge tion. district given should be approximately two feet in diameter. great leeway deciding how enforce pretrial his orders. This area is one Indeed, in the direct examination of Mr. appellate where courts not should inter- Moseley, plaintiff’s first expert, Miss vene absent the most compelling circum- attorney Weiss’ was careful to elicit stances, such present as here. from him on two opinion occasions his My view of the breadth of the district the steering prior failure occurred court’s is supported discretion by the impact to the car’s against stump, majority fact that and Miss Weiss suggests which that her counsel was ful- cite no cases where an appellate court ly aware of Chrysler’s theory. has reversed a decision of a trial court in below, As noted this area. the cross-examination redirect, testimony any event, Moseley Miss cannot con- Weiss claim cerning the stump many filled surprised pages that she was at Mazur’s testi above, 3, record. As mony. noted see note Chrysler’s basic defense had al ways (or judge. before state been that the fractures at least say To them) “had one of hidden the- had occurred after car month-long raised here was involved significant in a in a second state- it is I think ap- court action against which to her on brother’s trial, so little estate plaintiff found Chrysler, among trial, Judge treat- Griesa others. Thoughout The actions were peal. point together fairly, against tried very almost to the claim ed being rulings. was dismissed. Since Miss over-generous in his Weiss was not a party specific involving suit the claim cadology, is a cadologist which studies A6. against Chrysler, is she not bound Moseley describe Mr. invented word though state-court decision even her case study causes. of accident profession —the against Chrysler virtually is to that identical a state-court defendant her brother’s Weiss was estate. 7. Miss The claim passengers of the auto. by the suit
463
only
Hall,
sprung
testimony.
French v.
ory
See
U.S.
—to
457)
simply
is
(Opinion
(1886);
rested”'
S.Ct.
had
L.Ed. 375
was Chrysier
If indeed this
s Casey
Co.,
true.
Shipping
Seas
178 F.2d
suggested by
majori-
theory,
(2d
First,
only
1949).
Cir.
majority
pri-
well known to Miss Weiss
it was
ty,
opinion is in error when it states that
of her case.
the close
or
became
“[i]t
stump
the load force of the
that Miss Weiss was not
I conclude
the wheel rim that
had been suffi-
by Chrysler’s defense of this
surprised
Opin-
cient to cause the first fracture.”
case,
judge
that the trial
acted well
There
nothing
ion at 452.
in the extent
his discretion
within
to show that
adopted
record
pretrial
he enforced his
orders.
theory.
specific
Mazur also
testified
claim,
second
Miss Weiss’
is the
ditch
both the
and the
tree could
majority opinion,
is that the
basis
fractured
sound Pitman arm
stud.
committed reversible
court
error
trial
unrefuted,
two claims
these
were
Since
it refused to allow her
when
rebuttal
Moseley
questioned
had
the effect
while
Rader,
testify
Dr.
expert,
as to the
impact,
it is more likely
necessary
dent the
auto’s wheel
force
Chrysler would stress the
claim that
whether that force could
fracture a
stage
the first
the ditch caused
disagree.
Pitman arm stud.8 I
sound
the first
had oc-
decision
court’s
was not an
leaving
to the car’s
curred
of its discretion.
abuse
Thus,
roadway.
Rader’s
I must
take
the outset
issue with
At
issue in the case.
not on a crucial
majority’s suggestion
Wigmore
Second,
Rader’s
was of
*14
supports
view
had a
importance because it dealt
questionable
to have this evidence
right
admitted.
necessary
the force
to fracture a
with
at 458 & 459.
I think
Opinion
that this
However, it
stud.
was conceded
sound
Wigmore’s position. Wigmore
distorts
stages.
the fracture occurred in two
referring to evidence not properly
was
was not whether
the impact
The issue
case;
plaintiff’s
in a
direct
admissible
stump could
fracture a sound
with
testimony would have
prop-
been
Rader’s
stud, but
rather
Pitman arm
whether
Moreover in a footnote to the
er.
sen-
complete
impact could
the fracture
he talks
proponents’
where
tence
cause the first
the stud or
of
to have evidence come in
“right”
as re-
e.,
(i.
stud).
crack the
It is
the fracture
states,
he
“Whether an
buttal
error in
prepared
that Rader was
to
claimed
not
respect
should be an adequate
this
testify on this issue.
a new trial
is a
for
ground
different
Finally, I think that
there was a solid
and of course a rational
question,
liberal-
decision,
Judge
for
Griesa’s
basis
seldom
ity would
find here such a
careful review of the
reached
he
Wigmore,
J.
Evidence
ground.”
§
transcript
(3d
1940).
n. 4
ed.
He
at 517
concludes
Moseley.
Mr.
On direct exami-
expert,
remarking
section of
treatise
this
nation, plaintiff’s attorney twice asked
general,
such discretionary
“[i]n
Moseley
whether the
failure
Mr.
liberally
with,
should be
dealt
variations
striking
to the car’s
occurred
nothing can be more irrational or
cross-examination the discus-
stump. On
unjust
apply
judicial
to
more
than
Chrysler’s counsel
between
and Mr.
sion
a new trial
to errors
of trivial
lash
respect to the
Moseley
stump
with
cover-
Id. at 517.
importance.”
pages
of the transcript.
more than
ed
415—439.
Appendix
key por-
Judge
See
was
it
convinced
amI
interchange is as
follows:
tion of
Rader’s
to exclude
discretion
Griesa’s
Indeed,
testimony filled al-
other matters.
noting
It
is worth
that Dr. Rader was al-
day.
entire
most an
testify
many
lowed
as a rebuttal witness on
Q:
.
If the forces that
testimony,
he
er’s
would have to choose
generated throughout
linkage are
possibly prejudicing
between
Chrysler in
separate
stud,
the tie rod
sufficient
this matter
further delaying the end
would those forces be sufficient
already
too lengthy
of this
trial.
cause
failure
the Pitman stud?
unwilling
I am
circumstances
In these
say
I
yes,
A: I would
but would like
judgment
require a
to reverse
this,
qualify
what I mean
if I
evidence was not
Dr. Rader’s
trial.
new
may.
to the central issue
or critical
crucial
Appendix at 439. I don’t think that in
surely
exclusion was
not
Its
case.
preceding
light
pages
of cross-
Judge
Griesa’s
error. Even
manifest
exchange
examination
this
could be
erroneous,
I
do
was
ruling
general
characterized as one
question
testimony of
concede,
view of the
“possible
about
connection between the
the accident that Miss
witnesses to
three
in the rim
dent
fracture of the
beyond
speed
at a
far
driving
was
Weiss
Opinion
stud.” See
at 459.
clear that
it seems
prudent,
what
strong that
case was so
the defendant’s
Moseley
given
Moreover
a chance
said, beyond a reasonable
it can be
explain
qualify
his answer on re-
of the testimo-
doubt, that
admission
examination,
direct
see Appendix at 515-
was excluded
Rader which
ny
Dr.
519-528,
where he
at length
testified
made
difference
not have
why
he did not think that
jury. Thus its exclu-
the verdict
stud
Pitman arm
was completely frac-
error. Fed.R.Civ.P.
harmless
by the
sion
61;
stump.
tured
From these pas-
Hoffman,
U.S.
sages
Palmer
is clear
that the
be-
connection
477, 482,
(1943)
ened, Pitman arm stud.
Chrysler has prevailed twice against by the Weiss family
claims that a failure Pitman arm stud caused this acci- dent; it should not required be go
through another trial on this issue. The
delays in the trials of important more already
civil cases are so great largely— of the greatly increased number trials, criminal precedence take
over civil cases under Plans for Prompt
Disposition of Criminal Cases—that me to
seems to gross waste of our judicial manpower
limited to require the court to retry
district this diversity case
involving an accident place took years ago.
over ten
While no member of panel may
have made the same decision as Judge
Griesa did in the circumstances of this
case, I see no reason to hold that his
ruling on the admission of Dr. Rader’s
proffered testimony was such an abuse
of his discretion that is enti- yet tled to try. another
I would affirm judgment for the
defendant. SPERLING,
Anton E. Appellant,
UNITED STATES of America et
al., Appellees.
No. 74-1533.
United States Court of Appeals,
Third Circuit.
Argued Jan. 1975. April 18,
Decided 1975.
As May 2, Amended