Terry Jones, Plaintiff-Appellant, v. Lincoln Electric Co., Hobart Brothers Inc., Westinghouse Electric Corp., Airco/The BOC Group, Inc., and Teledyne Industries, Inc., Defendants-Appellees, and Dr. Thomas W. Eager, Respondent-Appellee.
Nos. 96-1376, 97-1938, 98-1487
United States Court of Appeals, Seventh Circuit
Argued November 2, 1998; Decided July 29, 1999
Rehearing Denied August 19, 1999
Before Cummings,* Bauer, and Kanne, Circuit Judges.
Kanne, Circuit Judge.
OPINION
We have consolidated for decision three appeals arising from Terry Jones‘s product liability suit against Hobart Brothers Company, Lincoln Electric Company, Airco/The BOC Group, Westinghouse Electric Corporation, Inco Alloys International, Incorporated, and Teledyne, Incorporated, (collectively, “Defendants“), all of whom are various manufacturers and distributors of welding rods. Jones sought to hold Defendants liable for neurological injuries he allegedly sustained as a result of his exposure to manganese present in fumes emitted from Defendants’ welding rods that he used during the course of his employment as a welder. Jones claimed that Defendants were negligent in the manufacture and distribution of the welding rods because they either knew or should have known of the dangers and hazards associated with the breathing of manganese in welding fumes and that Defendants failed to take reasonable precautions against and failed to provide adequate warnings of the potential harm posed by these fumes. Jones also claimed that Defendants’ welding rods were unreasonably dangerous, and therefore Defendants were strictly liable for his injuries, because they failed to properly warn him of the risks associated with the use of their rods.
Defendants denied that Jones‘s neurological condition was caused by his exposure to welding rod fumes, maintaining instead that Jones suffered from idiopathic Parkinson‘s disease--a disease unrelated to manganese overexposure. Defendants also denied the remaining allegations made by Jones. The case was tried to a jury and the jury returned a verdict in favor of Defendants and against Jones on all counts.1
Jones filed a timely motion for a new trial under
A little more than eleven months after the jury verdict, and while Jones‘s first appeal was still pending, Jones filed two additional post-trial motions: a motion for relief from final judgment pursuant to
For the reasons set forth in the following opinion, we affirm the orders and decisions of the district court.
I. History
Terry Jones worked as a journeyman electrician and welder for approximately twenty-eight years, beginning in 1964 and ending in 1992, when his neurological disorder progressed to the point that he could no longer effectively weld. Over the course of his welding career, Jones worked for a number of companies at several different job sites, with most of his work taking place inside large steel mills. Jones estimated that, on average, he spent half of his work day performing electrical tasks and the other half welding.
Jones welded using a method commonly known as “arc welding.” This process of welding utilizes a consumable steel welding rod connected through a rod holder by a wire to one pole of an electric power supply. Another wire extends from the opposite pole of the power supply to the two pieces of the base metal to be welded together. When the welding rod is brought into contact with the intersection of the two pieces of metal to be joined, the electrical circuit is completed creating an electric “arc” between the tip of the welding rod and the pieces of metal. The electricity flows through the arc producing the very bright light commonly associated with welding and generating tremendous heat sufficient to melt the tip of the steel welding rod. The melting metal from the welding rod drips off the end of the rod and falls into or across the joint to be welded. At the same time, the heat generated by the arc melts some of the base metal of the area of joint as well, forming a pool of liquid steel. As the welder moves the welding rod along the joint, the earlier combination of weld metal and base metal cools and solidifies, leaving a weld.
Throughout his welding career, Jones used welding rods manufactured and or distributed by Defendants. The welding rods typically used by Jones were made of mild steel, which consists predominantly of iron, but also contains a small amount of manganese, among other elements and compounds. Manganese is a naturally occurring element and is an essential ingredient to the proper manufacture of steel because it prevents steel from cracking and falling apart when it is manufactured.
Manganese is not only critical to the production of steel, but it is also essential for human life. The human body needs a certain amount of manganese in order to function properly especially in relation to carrying out its chemical functions. Too much manganese within the body, however, can be toxic, causing injury to the brain or the rest of the nervous system and can lead to the onset of a form of Parkinsonism. Parkinsonism is a medical term used to describe a disease typified by a group of signs and symptoms similar to that seen in Parkinson‘s disease, a neurological disorder that is characterized by the causing of abnormal or slow bodily movements. According to the medical testimony introduced at trial, a person suffering from a form of Parkinsonism will typically exhibit some or all of four general symptoms that are common to Parkinson‘s disease. The first symptom is a resting tremor, meaning an abnormal shaking movement of a person‘s body part while the person is at rest. The second symptom is rigidity, meaning a stiffness or resistance to movement in the limbs. When a physician tries to move the patient‘s arms or legs, the physician can feel a resistance to the movement. The third symptom is called bradykinesia or slowness of movement. A patient will experience slowness or difficulty in carrying out and initiating all kinds of movements. The fourth symptom usually common to Parkinsonism is a difficulty in maintaining one‘s balance or the loss of postural reflexes.
Although there are several different forms or types of Parkinsonism, the two types relevant to this case are idiopathic Parkinson‘s disease and manganese-induced Parkinsonism or “manganism.” Although occasionally described at trial as a type of Parkinsonism, idiopathic Parkinson‘s disease is basically Parkinson‘s disease without a known cause. A person suffering from this disease will exhibit most, if not all, of the general Parkinsonian symptoms described above as the disease progresses. Manganism, by contrast, is a medical term used to describe a neurological disease similar to idiopathic Parkinson‘s disease that is caused by overexposure to manganese. The two are distinct medical conditions with manganism usually marked by the absence of some of the above-mentioned general symptoms and the presence of other “atypical” features normally not found in patients suffering from idiopathic Parkinson‘s disease. Idiopathic Parkinson‘s disease afflicts approximately one to two percent of the population over the age of fifty, although some patients begin to develop the disease under fifty years of age. Manganism, on the other hand, is quite rare with only a few documented cases in the United States. Jones believes that he suffers from manganism and that he developed this disease through his exposure to manganese contained in welding fumes given off by Defendants’ welding rods.
Jones first began to manifest symptoms of a neurological injury in 1987, when, at the age of forty-seven, he noticed that his left hand had begun to shake involuntarily. Soon thereafter, Jones went to see a neurologist, Dr. Young Il Ro, who operated a private medical practice in Chicago Heights, Illinois. Jones specifically complained to Dr. Ro that he was experiencing a tremor and a loss of dexterity in his left hand and that he felt cracks in his left shoulder. Jones indicated that he had been experiencing these problems for about eight months and that they were causing him difficulty at work. During the course of his examination, Dr. Ro also noticed that Jones exhibited some muscle stiffness in his upper left arm and face. Although Dr. Ro found that Jones appeared to exhibit signs of a minor atypical tremor, he diagnosed Jones as suffering from idiopathic Parkinson‘s disease. At that time, Dr. Ro prescribed sinemet, a medication commonly given to patients suffering from idiopathic Parkinson‘s disease. Dr. Ro met with Jones two months later, and Jones indicated that the medication made him feel better.
In 1988, Jones was referred to Dr. Kathleen Shannon, another neurologist, by a colleague who believed that Jones might be a good candidate for a study being conducted that sought to determine whether a certain drug would be effective in slowing down the progression of idiopathic Parkinson‘s disease. Dr. Shannon‘s role in that study was to evaluate potential candidates to ensure that they had idiopathic Parkinson‘s disease. In explaining how she evaluated whether a patient suffered from idiopathic Parkinson‘s disease as opposed to some other form of Parkinsonism, Dr. Shannon testified that she would first determine whether the patient had at least two of the general Parkinsonian symptoms-- that is, the typical features associated with idiopathic Parkinson‘s disease. Then she would look to ensure that the patient did suffer from an “atypical” Parkinsonism, a disorder, like manganism, by examining the patient for atypical symptoms commonly associated with those atypical disorders but not idiopathic Parkinson‘s disease.
In the course of her neurological examination of Jones, Dr. Shannon observed that Jones exhibited a number of the general symptoms typical of idiopathic Parkinson‘s disease. He had a mild resting tremor in his hand, some rigidity in his neck, arms, and left leg, and slowness of movement in his left side. Significantly, Dr. Shannon found no atypical features. Based on her examination of Jones and her evaluation of his medical history,2 Dr. Shannon diagnosed him with idiopathic Parkinson‘s disease and enrolled him in the study. Dr. Shannon examined Jones on several subsequent occasions during the course of the study and her diagnosis remained unchanged.
In the Spring of 1989, Jones saw yet another neurologist, Dr. Leslie Galen, Jones‘s treating physician in Las Vegas, Nevada.3 Dr. Galen examined Jones several times during a period of approximately four years. Dr. Galen also prescribed anti-Parkinson‘s disease medications, including sinemet. In treating Jones, Dr. Galen noticed that these medications initially improved Jones‘s overall condition, although he still had a resting tremor in his left hand, and that, during the course of Dr. Galen‘s treatment of Jones, he noticed no significant negative change in Jones‘s symptoms. Although unaware of Jones‘s prior exposure to manganese, Dr. Galen also concluded that Jones suffered from idiopathic Parkinson‘s disease based on his examination of Jones and Jones‘s response to treatment.
In 1992, Jones filed the instant suit against Defendants, alleging that the manganese contained in the fumes generated by their welding rods caused his neurological injuries. Jones asserted claims of negligence and strict liability, alleging that Defendants knowingly manufactured and sold welding rods containing manganese even though they knew of the dangers and hazards associated with manganese in welding fumes. Despite this knowledge, Jones submitted that Defendants failed to take reasonable precautions against the readily foreseeable harm that would be caused by their products and failed to provide adequate warnings and instructions on how to safely use their allegedly toxic welding rods.
The central issue at trial, however, was whether Jones suffered from manganism or idiopathic Parkinson‘s disease. Defendants vigorously contested Jones‘s assertion that he suffered from manganism brought on by exposure to their welding rods. In support of their theory that Jones suffered from idiopathic Parkinson‘s disease that was causally unrelated to any manganese exposure from their products, Defendants introduced testimony from Jones‘s treating physicians, all of whom had diagnosed him with idiopathic Parkinson‘s disease, and the testimony from a paid medical expert, Dr. Charles Olanow,4 who concurred with their assessment based upon his own examination of Jones and a review of Jones‘s medical and work history.
In addition to a patient‘s response to medication, the particular symptoms exhibited by the patient are often a strong indicator as to whether that patient has idiopathic Parkinson‘s disease or manganism. Although idiopathic Parkinson‘s disease and manganism often share some of the four general symptoms associated with Parkinsonism, Dr. Olanow testified that certain symptoms are more commonly attributed to one or the other disease. Dr. Olanow identified those symptoms strongly indicative of idiopathic Parkinson‘s disease as including the presence of a resting tremor, rigidity, asymmetry (meaning that the tremors begin on one side of the body rather than both), and slowness. Patients suffering from manganism, on the other hand, are usually found not to have a resting tremor. Instead, manganism tends to manifest certain “atypical” features not normally found in idiopathic Parkinson‘s disease, such as speech and prominent early gait disturbances, and myoclonic syndrome, which is an involuntary muscle contraction that can lead to difficulty in walking and a facial grimace.
Dr. Olanow examined Jones in July 1993. Dr. Olanow indicated that during the course of the examination, Jones told him about the progression of his injuries, beginning with the resting tremor in his left hand and leading to impaired coordination and stiffness on his left side. Jones also informed Dr. Olanow that he had been taking sinemet and that he believed the medication had helped him substantially. When conducting the neurological part of the examination, Dr. Olanow observed that Jones‘s speech was slightly reduced, his face had a staring quality to it with a decreased amount of blinking, he had a resting tremor in his left hand, and he exhibited signs of stiffness and reduced movements on the left side of his body. Dr. Olanow also observed that Jones walked quite well, although he had reduced arm swing on his left side, he had relatively normal postural stability, and that overall his movements were quite “slow“--all observations that were consistent with a finding of idiopathic Parkinson‘s disease. Dr. Olanow also noticed that Jones‘s Parkinsonian symptoms became more pronounced over the course of the examination, which indicated that the dopamine replacement medication had begun to lose its effectiveness, causing his Parkinsonian features to become more prominent. Dr. Olanow found no evidence of myoclonism or any noticeable presence of any other “atypical” feature that would suggest manganese intoxication. Based on these observations, Dr. Olanow concluded that Jones suffered from idiopathic Parkinson‘s disease.
In support of his theory that he actually suffered from manganism, not idiopathic Parkinson‘s disease, and that the manganese exposure from Defendant‘s welding rods caused his neurological injuries, Jones relied on the testimony of his paid expert medical witness, Dr. Harold Klawans.5 Dr. Klawans testified that it is not possible to determine whether a patient suffers from idiopathic Parkinson‘s disease or manganism by looking solely at the patient‘s clinical symptoms. Instead, Dr. Klawans believed the foremost and determinative factor in assessing whether a patient suffers from idiopathic Parkinson disease or manganism is the patient‘s history--whether the patient has a history of manganese exposure.
Dr. Klawans testified that a welder, like Jones, who is exposed to welding fumes containing manganese and breathes in those fumes, is at risk of developing manganism because the manganese from the welding fumes is absorbed by the lungs when the welder inhales the fumes. The manganese then crosses from the lung into the bloodstream with some of the manganese making its way up into the brain where it causes neurological damage. Once in the brain, Dr. Klawans testified that manganese can damage cells in a number of areas including not only those areas typically damaged by manganism, namely the striatum and the globus pallidus, but also the substantia nigra, the area Defendants’ expert identified as usually being affected only by idiopathic Parkinson‘s disease. Thus, Dr. Klawans suggested that both diseases could cause a loss of dopamine in the brain and, therefore, a patient with manganism could respond favorably to dopamine replacement therapy. For that reason, Dr. Klawans also testified that he would prescribe sinemet or a similar dopamine replacement medication to a patient suffering from manganism.
On cross examination, however, Dr. Klawans acknowledged that the two diseases tend to affect different parts of the brain, with idiopathic Parkinson‘s disease typically damaging the substantia nigra thereby causing the general signs and symptoms common to that disease. Dr. Klawans also agreed that manganese more often damages the globus pallidus and striatum than it does the substantia nigra, with the result being that patients with manganism usually will respond less well to dopamine replacement therapy than patients suffering from idiopathic Parkinson‘s disease. In addition, while Dr. Klawans testified that a patient afflicted with manganism could exhibit some or all of the symptoms commonly seen in a patient suffering from idiopathic Parkinson‘s disease, he acknowledged that certain other symptoms, the “atypical” features described above, more often appear in patients suffering from manganism.
Despite diagnosing Jones with manganism, Dr. Klawans observed that Jones exhibited all of the symptoms common to idiopathic Parkinson‘s disease: the resting tremor; impaired postural balances; stiffness and rigidity; bradykinesia; an absence of any prominent gait-disturbance; a favorable response to dopamine replacement therapy; and normal progression of the disease. In fact, with the exception of myoclonus, every sign and symptom Dr. Klawans found was consistent with a finding that Jones suffered from idiopathic Parkinson‘s disease and Dr. Klawans acknowledged that his diagnosis of manganism was premised entirely on the presence of myoclonus and Jones‘s work history. With respect to Jones‘s work history and prior exposure to manganese, Dr. Klawans‘s testimony revealed that he knew little more than that Jones had been exposed to manganese during the course of his career as a welder--he indicated that he did not know the percent of manganese in the welding rods used by Jones, the permissible exposure limit for manganese, any details of the environments in which he welded, or the amount of manganese required in welding fumes to afflict a person with manganism.
Although the bulk of the trial focused on the issue of whether Jones actually suffered from manganism, the parties also contested whether manganese, in the form it takes in the mild steel welding fumes generated by Defendants’ welding rods, could cause the type of neurological injuries claimed by Jones. Jones asserted that the welding fumes emitted by the burning of Defendants’ welding rods caused him to develop manganism. In support of that theory, Jones offered the testimony Dr. Klawans who testified that medical research showed that manganese contained in welding fumes could lead to the onset of manganism in welders and that it was his opinion that Jones developed manganism as a result of his exposure to the manganese generated by Defendants’ welding rods.
Defendants offered contrary evidence suggesting Jones‘s manganese exposure from their welding rods was too insignificant to actually cause manganism. Dr. Thomas Eager, a professor of materials engineering and the head of the Department of Material Science and Engineering at the Massachusetts Institute of Technology, testified for the Defendants as an expert witness in metallurgy. Dr. Eager provided testimony at trial on a number of subjects, including the history and uses of welding, a description of how the welding process works and how welding fumes are generated, the chemical composition of welding fumes, proper ventilation during welding, and an estimate of how long a person who is welding is actually exposed to welding fumes. Dr. Eager has an extensive background in welding and testified that it was his expert opinion that Jones‘s manganese exposure from welding with Defendants’ welding rods would have been less than the industry recommended maximum manganese exposure levels (“threshold limit values“) given the work environments in which Jones worked, the type of welding he engaged in, the form of the manganese in the welding fumes, and the amount of time he actually spent welding.
On appeal, Jones argues that the district court improperly admitted portions of Dr. Eager‘s testimony, and as a result, he is entitled to a new trial. Specifically, Jones challenges the admission of Dr. Eager‘s testimony regarding (1) his role in research studying the effects of welding fumes on the lungs of animals and the results of that research (“Joint Research“) and (2) an epidemiological study of welders at Caterpillar (“Caterpillar Study“).
With respect to Dr. Eager‘s testimony regarding the Joint Research, Dr. Eager testified that the form of the manganese in the welding fumes is different in chemical composition than naturally occurring manganese. The manganese takes on this different form by combining with other elements given off by the melting of the mild steel and, according to Dr. Eager, this causes the manganese contained in welding fumes to have a different reactivity with the lungs than pure manganese. Defense counsel then asked Dr. Eager whether he believed this would have an impact on the body‘s ability to absorb the manganese. At this point, Jones objected on the basis that this line of questioning sought testimony from Dr. Eager that was outside his expertise as a metallurgist. The district court sustained the objection subject to defense counsel laying a proper foundation.
In an attempt to lay a foundation for this testimony, Dr. Eager testified, over several objections, that he conducted “joint research” studying the effect of welding fumes in the lungs of laboratory animals with Dr. Joseph Brain, a professor at the Harvard University School of Public Health, and Dr. Gael Ulrich, a professor of chemical engineering at the University of New Hampshire. Dr. Eager indicated that he worked with Dr. Brain for the last three to four years, that they had discussed their research activities with each other, and that they had published papers together and reached certain conclusions from their Joint Research. After this testimony was elicited, defense counsel asked Dr. Eager about the conclusions the Joint Research reached regarding the form of the manganese in the welding fumes and the ability of the body to absorb manganese in that form. Jones again objected, arguing that each of the professors brought their own expertise to the research and that Dr. Eager sought to testify about medical matters that were outside his expertise. Jones complained that the medical expert, Dr. Brain, was not present to discuss the conclusions reached regarding the body‘s ability to absorb manganese and the basis for those conclusions. The district court overruled Jones‘s objection, concluding that the professors discussed their joint research and, in essence, taught one another their particular areas of expertise. On that basis, the district court concluded that Dr. Eager was qualified to testify as to the conclusions reached by the Joint Research.
Dr. Eager then proceeded to testify that the Joint Research concluded that there was no difference between placing welding fumes or saline solution or non-toxic iron oxide into the animal‘s lungs. Defense counsel then asked Dr. Eager whether their research led to any conclusions regarding the toxicity of manganese in welding fumes. Jones again objected on the ground that the question called for testimony beyond Dr. Eager‘s expertise. After Dr. Eager explained that the conclusions were drawn by all three professors after discussing the various disciplines involved in reaching the conclusions, the district court allowed Dr. Eager to proceed and he testified that there was no measurable effect of welding fumes containing manganese on the lungs.
At the close of Dr. Eager‘s testimony, which concluded the testimony for the day, Jones made an oral motion to strike Dr. Eager‘s testimony regarding the Joint Research on the ground it was outside his expertise and Dr. Eager‘s testimony regarding the Caterpillar Study on the ground that it was not disclosed to Jones prior to trial in accordance with
The jury returned a verdict in favor of Defendants on all counts alleged in the complaint. Jones then filed his first appeal, arguing that the district court erred in overruling his objections to the admission of Dr. Eager‘s testimony regarding both the Caterpillar Study and the Joint Research. In addition, Jones argues that the district court erred in overruling his objections to defense counsel‘s improper closing argument. Jones alleges that defense counsel improperly argued during his closing statement that Jones and his attorneys were trying to “trick the jury” into finding in favor of Jones.
While that appeal was pending, Jones claimed that he uncovered “new” evidence which shows that Dr. Eager‘s testimony with regard to the Joint Research and the Caterpillar Study was false. Specifically, Jones alleged that Dr. Eager testified falsely with respect to the facts that formed the basis for the district court‘s ruling that he had the necessary qualifications to provide testimony on the toxicity of manganese in welding fumes and the ability of the body to absorb manganese in that form, the conclusions reached by the Joint Research, and the conclusions reached by the Caterpillar Study. Based on this allegedly false testimony, Jones moved for a new trial pursuant to
The district court denied Jones‘s motion to hold Dr. Eager in contempt because Jones failed to show that Dr. Eager‘s allegedly false testimony obstructed the court‘s authority to conduct orderly proceedings. Without reaching the issue of whether Dr. Eager‘s testimony was false, the court concluded that the nature and purpose of civil contempt did not warrant applying the contempt power to a witness who merely provided false testimony absent some showing that the false testimony obstructed the court‘s ability to conduct the trial. Jones‘s second appeal is from that order.
The district court denied Jones‘s Rule 60(b)(2) motion concluding that: (1) certain portions of the “newly discovered” evidence could have been discovered in time to move for a new trial under
II. Analysis
A. Jones Is Not Entitled To A New Trial On The Ground That The District Court Erred In Overruling His Objections To Certain Portions of Dr. Eager‘s Testimony
We first address Jones‘s arguments that the district court erred in overruling his objections to the portions of Dr. Eager‘s testimony regarding the Joint Research and the Caterpillar Study. In order to convince us that a new trial is warranted based on the admission of this testimony, Jones must satisfy three conditions. First, for those portions of the challenged testimony for which the district court ruled that Jones‘s objection was untimely and, therefore, waived, Jones must show that he objected in a timely and proper manner before the district court. See United States v. Krankel, 164 F.3d 1046, 1052 (7th Cir. 1998). Second, he must show that the district court abused its discretion in admitting the challenged testimony. See General Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 517 (1997). Third, he must show that any error made by the district court in admitting the evidence was more than harmless error by showing that the exclusion of this evidence probably would have produced a different outcome in the case. See Chapman v. California, 386 U.S. 18, 22-24 (1967).
1. Dr. Eager‘s Testimony Regarding the Joint Research
Jones argues that the district court erred in permitting Dr. Eager to testify regarding the ability of the body to absorb manganese from welding fumes generated by mild steel welding rods, the toxicity of manganese contained in welding fumes, and the results of the Joint Research concerning the effect of manganese from welding fumes on lungs of animals, because Dr. Eager was not qualified under
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The challenged testimony offered by Dr. Eager regarding the Joint Research concerns matters that are most aptly classified as medical or biological in nature given that Dr. Eager was asked to testify as to the toxicity of manganese in manganese fumes and the lung‘s ability to absorb manganese from those fumes. However, Dr. Eager‘s formal education and experience lie in the field of material science and metallurgy and he was offered as an expert in metallurgy at trial. He has a Bachelor of Science degree in Metallurgy and Material Science from MIT and a Doctorate in Metallurgy from the same institution. While Dr. Eager undoubtedly is a very intelligent individual, he is not a medical doctor nor is there any indication in the record that suggests that he has any experience in assessing the toxicology or other health effects of manganese on the body aside from his participation in the Joint Research with Dr. Brain. Indeed, Dr. Eager acknowledged on cross-examination that he was not a toxicologist and that toxicology and how certain substances are absorbed into the body were areas that were outside of his expertise. It stands to reason then that the underlying basis for the medical conclusions to which Dr. Eager testified was derived primarily, if not completely, from Dr. Brain‘s expertise and that these conclusions were rooted in medical knowledge and training which Dr. Eager did not have. As such, we believe that Dr. Eager lacked sufficient expertise to testify about the conclusions reached by the Joint Research, and, therefore, the district court should have barred him from testifying on these matters. See, e.g., United States v. Hirschberg, 988 F.2d 1509, 1514 (7th Cir. 1993) (“Expert opinion is gained from a ‘special skill, knowledge, or experience,’ and is a reasoned decision drawn from the witness’ expertise.” (quoting United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991))); United States v. Kladouris, 964 F.2d 658, 670 (7th Cir. 1992) (affirming district court‘s ruling that a proffered witness‘s lack of training in chemistry prevented him from testifying as an expert on the significance of the presence of chemicals at the scene of the fire). Furthermore, to the extent that Dr. Eager was merely conveying Dr. Brain‘s conclusions with respect to the Joint Research, Dr. Brain, not Dr. Eager, would be the proper person to testify about those findings.7
Moreover, while it is true that
First, the dispositive issue at trial was whether Jones suffered from idiopathic Parkinson‘s disease, which the medical evidence at trial showed to be causally unrelated to gross manganese exposure, or manganism. Jones‘s theory of the case was that he suffered from manganism and that the manganese contained in welding fumes emitted from Defendants’ welding rods led to the onset of his manganism. The testimony with which Jones takes issue relates to whether the manganese content of welding fumes is sufficient to cause manganism. However, in order to prevail at trial, Jones had to prove, first and foremost, that he actually suffered from manganism. Evidence that clearly shows that Jones did not suffer from manganism in the first place substantially diminishes the relative importance of testimony regarding whether welding fumes emitted from Defendants’ products could have caused Jones to develop that disorder.
The overwhelming medical evidence at trial indicated that Jones suffers from idiopathic Parkinson‘s disease rather than manganism. Both Defendants’ medical expert, Dr. Olanow, and all of Jones‘s own treating physicians diagnosed Jones with idiopathic Parkinson‘s disease. Although a diagnosis of idiopathic Parkinson‘s disease, by definition, means Parkinson‘s disease without a known cause, the testimony of Dr. Olanow and Jones‘s treating physicians either expressly or implicitly ruled out manganese exposure as the originating cause of Jones‘s neurological injury. Both Dr. Olanow and Dr. Shannon explained that manganism and idiopathic Parkinson‘s disease are distinct medical conditions that generally affect different parts of the brain. While the two conditions may have similar symptoms, the medical testimony introduced by both Defendants and Jones clearly showed that each disorder also has unique symptoms. Dr. Olanow and the treating physicians testified that Jones exhibited those symptoms consistent with idiopathic Parkinson‘s disease and that there was a noticeable absence of “atypical” features suggesting that Jones suffered from manganism. They also testified that Jones responded favorably to dopamine replacement medication--another indicator that Jones was afflicted with idiopathic Parkinson‘s disease rather than manganism. Only Jones‘s paid medical expert, Dr. Klawans, reached the conclusion that Jones suffered from manganism and his testimony was substantially undermined during cross-examination when he acknowledged that manganism and idiopathic Parkinson‘s disease are distinct medical conditions, that the two disorders usually tend to damage different parts of the brain, that most patients with idiopathic Parkinson‘s disease respond favorably to dopamine replacement therapy while patients with manganism generally do not, and that patients suffering from manganism usually experience certain symptoms, such as myoclonus, that are not commonly seen in patients who suffer from idiopathic Parkinson‘s disease. Although Dr. Klawans concluded that Jones suffered from manganism, he testified that Jones had responded favorably to dopamine replacement therapy, that Jones had resting tremors, and that Jones exhibited no signs of prominent, early gait disturbance--all factors that would indicate that Jones suffered from idiopathic Parkinson‘s disease rather than manganism. Indeed, Dr. Klawans indicated that he based his diagnosis of manganism primarily on Jones‘s work history and the presence of myoclonus. However, none of the other physicians who examined Jones testified that he had myoclonus and Dr. Klawans acknowledged that dopamine-replacement therapy, which Jones had been undergoing for four years by the time Dr. Klawans examined him, could account for the presence of myoclonus in Jones. When all of this medical evidence is taken into account and viewed in its proper light, we cannot accept Jones‘s implicit contention that the jury resolved the issue of whether he suffered from manganism in his favor and returned a verdict for Defendants only because it believed Dr. Eager‘s testimony that the manganese contained in welding fumes emitted from Defendants’ welding rods did not have an appreciably negative health effect on animal lungs.
Third, Jones introduced a number of studies and other documentary materials into evidence that suggested that manganese in welding fumes could lead to the onset of manganism and other health problems in welders. In addition, Jones‘s medical expert testified that, in his opinion, welding fumes containing manganese could cause manganism in welders by allowing manganese to enter into the lungs when the welder breathes in these fumes. Manganese may then be absorbed into the bloodstream and make its way into the brain where it may cause neurological damage. Thus, even if the jury accepted Dr. Eager‘s testimony as reliable, Jones introduced evidence to challenge those conclusions. In fact, we believe the jury likely placed little weight on Dr. Eager‘s testimony given that Defendants placed warnings on their products that breathing welding fumes could be hazardous to the welder‘s health.
For these reasons, we conclude that any error by the district court in allowing Dr. Eager to testify as to the conclusions reached by the Joint Research was harmless.
2. Dr. Eager‘s Testimony Regarding the Caterpillar Study
Jones next argues that the district court erred in permitting Dr. Eager to testify about the conclusions reached by the Caterpillar Study with respect to the health effects of welding on welders because Defendants failed to disclose that Dr. Eager would be relying on that study at trial. Because Jones did not object to this testimony until the close of Dr. Eager‘s testimony, the district court considered the objection waived, concluding that a
To preserve an issue for appeal,
We note at the outset of our analysis that this is not the usual situation in which there is a total absence of an objection below or in which the movant raises an objection on appeal on a ground different from that presented to the district court--both of which normally would constitute a waiver on appeal. See e.g., Williams v. Jader Fuel Co., 944 F.2d 1388, 1405 (7th Cir. 1991); United States v. Field, 875 F.2d 130, 134 (7th Cir. 1989). Jones objected to the admission of Dr. Eager‘s testimony regarding the Caterpillar Study before the district court on the ground he now asserts on appeal. The difficulty lies, however, in the fact that Jones did not lodge this objection until the close of Dr. Eager‘s testimony, which is when Jones professes he first became aware that Defendants had not disclosed that Dr. Eager would rely on this study at trial, rather than at the exact time that the testimony was introduced and admitted into evidence.
We are not entirely convinced that Jones should be deemed to have waived this issue on appeal. Contrary to Defendants’ assertion, we do not believe it to always be the case that an objection has to be perfectly contemporaneous with the challenged testimony in order to satisfy
Once it has been determined that a particular objection was timely, a litigant must then show that the district court abused its discretion in so ruling and that any error by the district court in admitting this evidence was more than harmless. We review a district court‘s decision to admit or exclude evidence under
Defendants failed to disclose to Jones that Dr. Eager would be relying on the Caterpillar Study at trial. As a general rule, if a party fails to disclose information in accordance with
Because its ruling to allow Dr. Eager to testify regarding the Caterpillar Study was premised upon its conclusion that Jones had waived his
Dr. Eager testified that the Caterpillar Study showed that welders did not experience any more diseases or health effects than non-welders working at Caterpillar. This testimony is more or less cumulative of his testimony regarding the Joint Research because both portions of his testimony conveyed the message to the jury that the manganese content in welding fumes generated by mild steel welding rods is too insignificant to cause manganism in welders. Accordingly, we conclude that the admission of Dr. Eager‘s testimony concerning the Caterpillar Study is harmless error for essentially the same reasons we found that the court‘s admission of Dr. Eager‘s testimony regarding the Joint Research was harmless: (1) the overwhelming medical evidence at trial strongly supported a finding that Jones suffered from idiopathic Parkinson‘s disease rather than manganism; (2) Dr. Eager was not qualified to testify as to the health effects of breathing welding fumes and the Defendants established this fact during cross-examination; and (3) Jones introduced a substantial amount of evidence to show that manganese in welding fumes could lead to the onset of manganism and other health problems in welders. Furthermore, we note that Dr. Eager‘s testimony regarding the Caterpillar Study, which itself was never introduced into evidence, was of a very limited scope as it consisted of a single question and answer.
In sum, we conclude that any error by the district court in allowing Dr. Eager to testify both about the Joint Research and the Caterpillar Study was harmless error. Accordingly, Jones is not entitled to a new trial based on either of these grounds.
B.
Jones argues that he is entitled to a new trial because defense counsel‘s closing argument went beyond the bounds of acceptable advocacy. During closing argument, defense counsel strenuously argued that the medical evidence introduced at trial showed that Jones suffered from idiopathic Parkinson‘s disease rather than manganism. After summarizing the various medical opinions of the neurologists offered at trial, defense counsel pointed out that all of them, except for Jones‘s paid medical expert, had diagnosed Jones with idiopathic Parkinson‘s disease, and defense counsel urged the jury not to lose sight of this evidence when it determined the issue of causation. With respect to that issue, defense counsel argued that, in order to hold Defendants liable for Jones‘s injuries, the jury must first determine whether Jones proved that he in fact suffers from manganism before it turns to the issue of whether his neurological condition could be caused by the manganese contained in Defendants’ welding rods.
Defense counsel: * * * They can talk about documents until the cows come home. That‘s their strategy. See if they can distract you and me, somehow get someone upset or mad and then we‘ll forget. We can‘t get to first base. We can‘t solve the fundamental medical issue, without which none of the rest matters. If you conclude that the condition of Terry Jones is idiopathic Parkinson‘s disease, that‘s it—that‘s it. Why was the lawsuit even brought? Let‘s go out and say it. I have to say what‘s on my mind, and I hope I don‘t offend anyone. That‘s my style. Why was it brought? Before you bring in the Defendants to the court and incur this expense, and take up your time, don‘t you talk to the doctors, and say, “What has Plaintiff got?” If they all tell you “idiopathic Parkinson‘s disease“, do you file a lawsuit. Well, maybe you do. But let me tell you why you do. They say, “Look, they‘re big companies“—
Defense counsel: So, what you have on the exposure—whether or not it‘s over the [threshold limit value]—is clear, from the people who took the stand. [Jones‘s expert] says—it was never asked, and whenever he tested, it was below. Eager says, “It‘s below.“, and never challenged. So, where do you go, if you‘re them, and you‘ve got this serious, serious problem. Documents. “Maybe I can get the jury upset enough, from things in the past, that they won‘t know what happened.” It‘s the old trick-pack theory. Don‘t go for the bait.
The evidence was discovered following trial; Due diligence on the part of the movant to discover the new evidence is shown or may be inferred; The evidence is not merely cumulative or impeaching; - The evidence is material; and
The evidence is such that a new trial would probably produce a new result.
An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is . . . the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted—a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty.
it would follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in court would be gravely imperiled.
All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses. It is in this sense, doubtless, that this Court spoke when it decided that perjury alone does not constitute an “obstruction” which justifies exertion of the contempt power and that there “must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty.”