MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR A NEW TRIAL
This motion would squarely challenge the limits of the ability of a trial court to impose and enforce time limits on the presentation of a civil case but for one important omission: defendant failed to seasonably raise the issue before or during the trial. See Bryant v. Consolidated Rail Corp.,
The case was reasonably straightforward in that liability was not seriously in doubt (defendant’s protestations notwithstanding). Edmond Matton, a veteran City of Beverly police patrolman, was struck on the head by the bucket of an aerial lift while directing traffic at a White Mountain Cable Construction Corporation worksite. The accident was witnessed by a passerby who testified that the bucket “came out of the blue” and hit the plaintiff unawares. Liability was virtually conceded by the operator of the lift who testified that he had neglected to look before literally lowering the boom on the hapless officer.
The viable issues to be tried were the extent of the plaintiffs injuries and damages. Because of the accident, the plaintiff was involuntarily retired from the Beverly police force on a disability pension much less attractive than the one he would have received at normal retirement.
As is its custom in civil cases, the court issued a pretrial order on March 31, 1999,
In the motion for a new trial, defendant’s counsel claims that he was prevented from presenting two medical witnesses who would have testified “that [pjlaintiff did not have the injuries he claimed to have, that he was malingering, and that he was making his subjective complaints only for secondary gain.” Defendant’s Memorandum at 5. Counsel maintains that his inability to call these witnesses was devastating to his case.
Here no egregious unfairness occurred. The testimony of defendant’s two medical experts, while perhaps of greater potential import to the jury than counsel’s often inept cross-examination and pointless videotapes, would have simply embroidered further a theme (malingering) that counsel had ineffectually pursued throughout the trial. Ineffectual because the suggestion of malingering was beside the point. Whether plaintiff was exaggerating his injuries or not, the fact remained that he had been involuntarily retired because of the accident from a job to which he was deeply attached.
The cases cited by defendant by and large offer cold comfort to its cause. In Kelley v. Airborne Freight Corp.,
More to the point, in Duquesne Light Co. v. Westinghouse Electric Corp.,
Most on point is McKnight v. General Motors Corp.,
Although the court eventually imposed a rigid limit on time, its actions, when viewed in the context of the entire trial, were reasonable. Even if the court did not explicitly state its policy of charging break time to the parties, it regularly kept both sides informed of the time remaining throughout the trial. The parties’ fre
Most significantly, the record reveals that GSX, not the court, was primarily responsible for its inability to present its case within the time limits. GSX used the vast majority of its time during its case in chief, introducing duplicative evidence and taking a leisurely approach to its presentation. ...
GSX’s counsel also failed to heed at least five specific warnings by the district court to save sufficient time for cross-examination during MCI’s case;....
In addition, allocation of additional time to GSX would have been unfair to MCI. At the time of GSX’s request for additional time, MCI represented to the court that it had reluctantly condensed its cross-examination of GSX’s witnesses in order to save enough time for its case-in-chief. Just as GSX has argued before this court regarding MCI’s witnesses, MCI asserted that several of the GSX witnesses had misehar-acterized the facts, but that it was unable to impeach them thoroughly within the allotted time. Thus, to grant GSX additional time would reward its inefficient use of time and penalize MCI for managing its time.
The placing of reasonable time limits on the duration of a trial is implicitly authorized by Rule 611 of the Federal Rules of Evidence and explicitly by Local Rule 43.1 of the District Court. See also Borges v. Our Lady of the Sea Corp.,
I recognize that for the judge the operative words are “reasonable” and “flexible.” There will often circumstances in which additional time will be requested and circumstances in which it should be granted.
For the foregoing reasons, defendant’s Motion for a New Trial is DENIED.
SO ORDERED.
Notes
. Plaintiff's disability pension is pegged to a patrolman’s base salary ($40,800 at the time of trial) and carries a cap on outside earnings of $14,000. Plaintiff is also obligated to reimburse the City of Beverly the sum of $127,589, representing the injured on duty pay and medicals that he received before being placed on disability. (By agreement of the parties, plaintiff's obligation to repay the City from any judgment was explained to the jury). By contrast, with overtime and detail work, plaintiff was earning approximately $70,000 a year at the time of the accident and, according to the City’s Human Resources Director, could have expected to earn well in excess of $100,000 annually before retiring at age 65. A normal retirement pension would have been pegged at 80% of plaintiff's three best earning years with no cap on outside earnings. As plaintiff points out, the bulk of the jury’s $850,000 award can be explained as compensation for lost earnings (and the cost of repaying the City’s liens). See Ballin Aff., 1112.
. Defendant’s theory was that the plaintiff was negligent in failing to keep an eye on the movements of the boom. The jury was warranted in concluding that a detail officer’s attention is expected to be focused on pedestrians and oncoming traffic and not on work activity at the site.
. The suggestion of malingering was based on surveillance videotapes depicting the plaintiff going about his normal daily activity (visiting the post office, going to and from a gym, working on his car, etc.). The tapes, which were shown to the jury at tedious length, disclosed nothing that was inconsistent with plaintiff’s testimony that his physical health was better today than before the accident.
. The trial was originally scheduled to begin May 3, 1999, but was continued at defendant's request after one of its expert witnesses unexpectedly died.
. The jury did not sit on September 20, 1999, because of Yom Kippur and instead sat for a fall day on Wednesday, September 22, 1999. The jury also deliberated most of a day before returning the verdict.
. Prior to the trial, the court had ruled that it would admit expert reports into evidence if the expert was offered for cross-examination. In the hour he had remaining, counsel could have exercised the option of simply calling his experts to the stand in order to offer their curricula vitae and expert reports. Or counsel could have asked for additional time to make a more complete presentation.
. While it is true that counsel "need not engage in herculean efforts to continually object and attempt to offer ... evidence at trial" in defiance of an unyielding court, Defendant’s Memorandum at 13 n. 1, this does not excuse counsel’s failure to make any objection at all. See Johnson v. Ashby,
. Defendant’s counsel somewhat inconsistently brought out the fact several times on cross-examination that plaintiff had bitterly contested the City’s decision to force him into retirement.
. Despite the squandering of his time, defendant's counsel had an hour remaining when plaintiff rested. Instead of calling either or both of his experts (who were in the courtroom waiting to testify) and offering their reports into evidence (as permitted by the court's pretrial ruling) counsel inexplicably called a visibly hostile neurologist (Dr. Albert Fullerton) who had been one of the independent physicians who had examined plaintiff for the Beverly Retirement Board. Dr. Fullerton did testify that he believed plaintiff's symptoms to be inconsistent with a brain injury but to little else of assistance to defendant’s case. Defendant complains that the court erroneously overruled counsel's objection to plaintiff's suggestion in closing argument that the jury could infer from defendant's failure to call the expert witnesses that their testimony would not have been helpful to defendant’s case. The argument might have been better phrased, but the suggested inference was in the bounds of plausibility. Moreover, the court instructed the jury repeatedly that arguments by counsel could not be given any evidentiary weight.
. The district court also rather oddly charged plaintiff with the time defendant spent cross-examining plaintiff’s witnesses.
. Defendant’s remaining two cases add little. In United States v. Vest,
. The first case in which I issued time limits was a criminal tax fraud case involving a labyrinth of transactions, both fictitious and genuine. The prosecutor had given me an estimate of four weeks for her case-in-chief. It soon became obvious that she would never meet that goal. So I imposed a time limit based on her original estimate.
Once the time limit was imposed, she moved along briskly and finished two hours early. Even more importantly, her case became clearer because she had to talk about the forest rather than each tree, or even each leaf.
Hon. William 0. Bertelsman, “Judges Should Set Time Limits on Trials for the Public's Sake,” American Bar Ass'n Journal, October 1994, at 116.
. My experience in almost eveiy other case has been that the parties rarely use the allotted time, perhaps because of lawyers’ precautionary tendency to over-estimate the length of the trial.
. Counsel accurately relates the court’s policy of discouraging sidebar conferences. However, he implies (falsely) that he was never given the opportunity to make a request for additional time. Counsel neglects to mention that the court made itself available before and after each trial session and during all breaks to hear matters of concern to counsel on the record. Defendant’s counsel also states that the court forbade any request for an extension of time. Defendant’s Memorandum, at 13. This is blatantly untrue.