OPINION
Dr. Martin Trepel asks us to review, for a second time, damages assessed against Roadway Express, Inc. (“Roadway”) for breaking his unique wooden snake carving. In Trepel v. Roadway Express, Inc.,
Because nothing in this record supports remand for another trial on damages, we AFFIRM the jury award and judgment of the district court.
I. BACKGROUND
This dispute began with the purchase of a wooden snake. Mourtala Diop, a New York art dealer specializing in African art, offered to sell Trepel a carved wooden snake, known as- a “Baga serpent.” Trepel initially refused, but following numerous entreaties by the dealer, finally agreed to buy the snake for $15,000. Trepel I,
The dealer made arrangements with a shipping company to have the snake transported by Roadway for delivery to Trepel’s business residence. The snake arrived broken into three pieces. Id. Trepеl then commenced a number of separate lawsuits, including one against Roadway. Id.
That case was tried before a jury in federal court in the summer of 1997 (the “1997 trial”). Key to the lawsuit was the pre-breakage value of the snake. Trepel argued that it was an extremely rare cere
The district court ruled that the Dinhofer recоrdings were inadmissible hearsay. The court also redacted any mention of Dinhofer’s statement from the experts’ reports, and would not permit the experts to make reference to Dinhofer’s statement when asked how they arrived at their appraisal amounts. Id. The jury returned a verdict and award of $80,000 for Trepel, and both sides appealed. Id. at 711.
In Trepel I, we affirmed the district court judgment in most particulars. However, we also concluded that Trepel’s experts should have been permitted to refer to the recorded Dinhofer statements as a basis for their estimates. Id. at 717; see also Fed.R.Evid. 708. We thus vacated the damage award and remanded to the district court for a trial on the damages issue only. Trepel I,
That second jury trial commenced in district court on February 14, 2000 (the “2000 trial”). At the trial, Trepel introduced nearly half a dozen art and wood experts to attest to the high value of the carving. Three days later, the jury returned a verdict for Trepel and awarded him $155,000 in damages. Trepel moved for a new trial, alleging numerous prejudicial errors in the conduct of the case. That motion was denied; Trepel now appeals.
II. DISCUSSION
Trepel alleges that the 2000 trial on the damages issue was riddled with error. First, he argues that the district court imposed a stringent time limit for the parties to present their cases, refused to allow more time, and then made a timekeeping error that severely impaired his ability to cross-examine defense witnesses. Second, he alleges that the district court exceeded the mandate on remand when it permitted Roadway to litigate the issue of the authenticity of the carving. Finally, he alleges that the district court committed various prejudicial procedural and evi-dentiary rulings that included: (1) rendering inconsistent dispositions respecting the testimony of defense witness Helene LeLoup; (2) allowing witness Shelley Din-hofer to volunteer a prejudicial “statement for the record” and disallowing portions of the recorded telеphone call to be read into evidence; (3) adding Roadway’s “wood science” expert at the last minute; (4) permitting Roadway to introduce expert opinion of carbon-14 testing of the carving; and (5) permitting the $15,000 purchase price to be introduced without foundation.
A. Time Limit and Timekeeping Errors
Prior to trial, the district judge ordered that each side would have ten hours (600 minutes) to present its case. Trepеl argues that this time limit was unreasonable from the beginning, considering that the 1997 trial had required twelve days. He also argues that, as plaintiff, he should have had more time to set the “foundation” for his argument.
1. Standard of Review
We review a district court’s scheduling decision for abuse of discretion. Sutkiew-icz v. Monroe County Sheriff,
2. Analysis
Trepel’s argument is impassioned but unpersuasive. Although Trepel cites dicta from three cases disfavoring time limits, see Monotype Corp. v. Int’l Typeface Corp.,
The district court’s time limit was reasonable. The district court was not mandated to retry thе entire case, only the issue of damages. Trepel I,
Neither will we reverse because the distriсt court gave equal time to both parties. Trepel may have had the burden to lay the evidentiary “foundation” for his argument, but this burden alone is no cause to find equal time between the parties per se unreasonable. See Sutkiewicz,
Trepel also argues that the distriсt court erroneously informed him that he had used 555 minutes of time, when, in fact, he had only used 511 minutes. Trepel alleges that he learned that he had forty-four minutes remaining only after the close of all evidence, and that this error caused irreparable prejudice to his case. We do not agree. At the final tally, Trepel spent over an hour more on his presentation than did Roadway. Further, Trepel’s evidence at trial was largely cumulative. Hence, even if there was a timekeeping error, it was far from “irreparably prejudicial.” See Gen. Signal Corp. v. MCI Telecomm. Corp.,
B. Mandate Rule
Trepel argues that the district court erred by permitting Roadway to litigate the issue of authenticity. Although it is lumped in with briefing on evidentiary errors, Trepel’s argument boils down to an allegation that the trial court exceeded this Court’s remand for trial on the “damages issue only.” See Trepel I,
1. Standard of Review
“In deciding whether the District Court properly followed our directions on remand, we consider whether it properly interpreted our mandate, whether it fully carried out required procedures, and whether its factual findings were clearly erroneous.” Hawkes v. IRS,
Trepel points to language in both the 1997 trial judgment and in our decision in Trepel I to support his claim that the authenticity issue was “expressly or impliedly” decided. Cf Jones,
While we retain plenary authority to review the district court’s implementation of the mandate, the interpretation of that mandate is directed to a “court’s common sense.” See Owens Coming v. Nat’l Union Fire Ins. Co.,
Further, we find nothing in prior decisions that precluded litigation over authenticity. We find Judge Bell’s discussion of authenticity in the 1997 case to be dicta — a speculation on what may have justified the jury award. As dicta, it is not binding on remаnd. See Hanover Ins. Co. v. Am. Eng’g Co.,
C. Procedural and Evidentiary Errors
Trepel alleges that a series of procedural and evidentiary еrrors required the district court to grant him a new trial.
1. Standard of Review
We review the denial of a new trial for an abuse of discretion. Cathey v. Johns-Manville Sales Corp.,
2. Analysis
Admission of Helen LeLoup’s Deposition
Trepel argues that the district court erred by permitting certain portions of defense witness Helen LeLoup’s videotaped deposition to bе admitted into evidence.
LeLoup is a Parisian art dealer whom Trepel alleges he had previously consulted in this case. Upon notice that Roadway planned to depose her, Trepel filed an emergency motion for a protective order under Fed.R.Civ.P. 26(c), claiming that LeLoup was a non-testifying expert witness for Trepel. This motion was referred to a magistratе judge and granted. Both parties agree that the order protecting LeLoup from deposition did not include testimony she could offer as a “fact witness.”
Trepel alleges on appeal that the court allowed the testimony of his non-testifying expеrt and allowed her expert opinion to be introduced under the guise of lay testimony. Certainly, expert witnesses retained in anticipation of litigation, but not expected to testify, are protected from discovery under Fed.R.Civ.P. 26(b)(4)(B). The privilege may only be breached by a showing of exceptional circumstances. See USM Corp. v. Am. Aerosols, Inc.,
Even if we concluded that her testimony crossed the line into impermissible “expert opinion,” the testimony was countered by the numerous expert witnesses Trepel was permitted to introduce to establish value. See Slayton v. Ohio Dep’t of Youth Servs.,
The parties deposed Shelley Dinhofer, owner of another Baga serpent, for admission into evidence. Dinhofer was the art collector whom Trepel had secretly recorded prior to the 1997 trial. Trepel asserts the court committed two errors with respect the Dinhofer depositiоn. The first is the admission of a “statement for the record” in the deposition, in which Dinhofer expressed her outrage that she had been surreptitiously recorded by Trepel. The second is the court’s ruling that the transcript of the recorded telephone conversation was inadmissible hearsay.
Prior to trial, the parties designated portions of the Dinhofer deposition to be read tо the jury. Trepel did not clearly object to Dinhofer’s “statement for the record” during the deposition; therefore, we find this objection to have been waived. Fed.R.CivJP. 32(d)(3)(B).
Trepel also argues that, because Roadway had designated certain portions of the telephone transcript to be used as evidence, he should have been able to place other contemporaneous portions into evidence under the rule of completeness. See Fed.R.Evid. 106. At trial, however, Trepel sought to admit the entire transcript, rather than relevant portions of it, as evidence of Dinhofer’s “true statement.” A district court is not obliged to admit the entire document under Rule 106. See Paul Arpin Van Lines, Inc. v. Universal Transp. Servs., Inc.,
Wood Science Expert Dr. Eugene Wengert
Trepel argues that he was unfairly surprised by the last-minute addition of Roadway’s “wood science” expert, a violation of Fed.R.Civ.P. 26. Trepel argues that Roadway initially stated that it would not call a wood expert, and that the district court had ruled that no expert witnesses would be permitted to testify who had not testified prior to Trepel I. Nevertheless, Roadway filed a motion seeking leave to call Dr. Eugene Wengert as a defense expert. The trial court postponed its final ruling, but did order that Dr. Wengert be available for deposition. Trepel’s counsel objected on the grounds that he had no time to prepare given the late announcement of this witness. Trepel argues that the court then prejudiced his case when it finally permitted Dr. Wengert to testify after the trial had begun.
Rule 26 is designed in part to eliminate unfair surprise. Licciardi v. TIG Ins. Group,
It does appear that Roadway аdded Dr. Wengert as a witness late in the proceedings and failed to offer a reasonable basis for the delay. Nevertheless, we do not find the late introduction of Dr. Wengert prejudicial to Trepel. Trepel was permitted to introduce two experts, Dr. Robert Koestler and Dr. Dennis Stevenson, to testify about how insect infestation and wood marks indicate the age of the carving. Having introduced this evidence, it was only logical that Trepel should expect his experts’ conclusions to be challenged by Roadway. Dr. Wengert’s testimony did not introduce any new theory, but critiqued the evidence that Trepel’s wood science experts had used to determine the snake’s quality and age. Further, although Trepel complains that he was not given adequate time to prepare for or depose Wengert, he did not seek a continuance in which to prepare. Hence, we do not find any reversible error in this case. See United States v. Midwest Suspension & Brake,
Carbon-H Testing Argument
Prior to trial, the magistrate judge denied Roadway’s motion to compel plaintiff to produce the snake for carbon-14 testing.
Trepel argues that the court prejudiced his case by permitting Roadway’s experts to insinuate that Trepel did not conduct a carbon-14 test because he knew it would disprove his case. He argues that he should have beеn allowed to testify as to what two non-testifying expert witnesses told him — that carbon-14 testing is
We do not find any error. The point that Trepel continually makes in his brief, that carbon-14 testing is inaccurate in relatively new items, was clearly and adequately presented by Trepel’s witness, Dr. Koestler. Any additional testimony that Trepel would have introduced by way of hearsay would have been duplicative. Dr. Koestler’s testimony provided a sufficient basis for the jury to believe or discount the reason why Trepel did not conduct carbon-14 tests. There was no error.
The $15,000 Purchase Price
Trepel argues that he was prejudiced because the $15,000 purchase price was introduced without evidence that the price reflected “fair market value.” He argues that he should have been able to testify about Diop’s desperation to sell the snake.
We reject Trepel’s argument. Trepel himself put the purchase price of the snake into evidence on direct examination. Further, purchase price is probative of value. See, e.g., Estate of Kaplin v. Comm’r,
It was Trepel’s burden to establish the fair market value of the snake by admissible evidеnce. Trepel had an opportunity to elicit evidence that Diop had operated under compulsion by cross-examining Roadway’s experts, but failed to get such evidence. He has given no plausible argument to support a bare admission of Diop’s out-of-court statements, Trepel I,
III. CONCLUSION
For the foregoing reasons, we AFFIRM the jury аward and judgment of the district court.
Notes
. Trepel I should not be confused with Trepel v. Roadway Express, Inc.,
. Carbon-14 is a radioactive isotope of the carbon atom. Because it decays at a uniform rate, scientists can estimate the age of an object by extrapolating from the carbon-14 isotopes remaining in the object. See Janet Kalt-O’Bannon, Comment, Scientific Dating and the Law: Establishing the Age of Old Objects for Legal Purposes, 63 UMKC L. Rev. 93, 101-07 (1994).