Scott v. Spanjer Bros.

KAUFMAN, Circuit Judge.

This appeal is taken from a judgment in favor of plaintiffs-appellees¹ in an action brought to recover damages for personal injuries sustained through the alleged negligence of the defendants-appellants. The case was tried before Judge Bartels and a jury.²

Appellants, upon several grounds, contend that the appointment of a medical expert to examine and testify on the condition of the infant-plaintiff, Wayne Scott, was erroneous and prejudicial. It is appellants’ contention that the testimony of the court-appointed expert led to an excessive verdict for Wayne, and also caused higher verdicts for the other plaintiffs. We believe that no error was committed in the appointment of the expert or in the admission of his testimony, and therefore we affirm the judgments entered below.

The action involved in this appeal stems from an accident in which Lauretta Scott and her two children, Wayne and Kevin, who were in a baby carriage, were hit by a truck owned by appellant Spanjer Brothers, and operated by appellant Drexler, an employee of Spanjer Brothers. The impact knocked Lauretta to the ground and threw Wayne out of the carriage; Kevin remained in the carriage which was pinned under the truck. The mother and children were subsequently taken to a hospital, where Wayne, with whom we are presently concerned, was treated for abrasions of the scalp. Thereafter Wayne came under the care of the family physician, Dr. Rothenberger, who treated him for various bruises. Since the accident, and as a result of it, Wayne has not been able to sleep well, has developed anxieties, and has suffered from headaches.

Inasmuch as the principal error assigned concerns itself with the appointment of Dr. Lawrence Kaplan as the Court’s expert witness, some background discussion is in order. On March 27, 1961, the case was marked “ready” on the court calendar and assigned to Judge Bartels for trial. That afternoon, the trial judge notified counsel for both sides that since an infant (Wayne) was involved in the action, he believed that he had a “duty” to “protect” the infant’s rights, and therefore he intended to appoint an impartial neuro-psychiatrist to examine that plaintiff ³ “for the purpose of ascertaining the extent of his injuries in order that the jury might know whether those injuries were permanent” (Tr. p. 5). It is clear that the judge first instructed the parties themselves to select an expert of their own choice. They in fact attempted to secure the services of either a Dr. Wexler, a Dr. Reilly, or a Dr. Echlin, all of whom were members of the approved New York Medical Panel.⁴ Apparently none of these men was available to serve with the degree of promptness dictated by the circumstances. As a result, Judge Bartels indicated that he would appoint ex mero motu Dr. Lawrence Kaplan, who was described by appellants’ counsel as having “terrific qualifications” (Tr. p. 8) to examine the infant Wayne and submit a report. Appellants raised various objections to the appointment of Dr. Kaplan. The judge sought to accommodate them by offering to appoint Dr. Wexler, if he would be available promptly, despite the fact that this would entail holding a late trial session so that the doctor could testify. However, the appellants were unsucccessful in their efforts to gain the services of Dr. Wexler, and the trial proceeded with the understanding that Dr. Kaplan would serve.

I.

Appellate courts no longer question the inherent power of a trial court to appoint an expert under proper circumstances, to aid it in the just disposition of a case. Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920); 9 Wigmore, Evidence § 2484, p. 270 (3rd ed. 1940). McCormick points out that: “[c]ases are recorded as early as the 14th Century — before witnesses were heard by juries — of the summoning of experts by the judges to aid them in the determining of scientific issues. The. existence of the judge’s power to call witnesses generally and expert witnesses particularly seems fairly well recognized in this country.” McCormick, Some Observations Upon the Opinion Rule and Expert Testimony, 23 Texas L.Rev. 109, 131 (1945); see also, Rule 28, Fed.R.Crim.P., 18 U.S.C. “The appointment of disinterested expert witnesses by the Court is one of the expedients employed for reforming the defects of the partisan system of providing * * * testimony.” 9 Wigmore, Evidence, supra; see also, 2 Wigmore, Evidence § 563, n. 7 (3rd ed. 1940), which sets forth statutes in various jurisdictions establishing procedures for the use of expert witnesses by the courts.

We believe that the appointment of an impartial medical expert by the court in the exercise of its sound discretion is an equitable and forward-looking technique for promoting the fair trial of a lawsuit. It is now well accepted that the trial judge is not a mere umpire at the trial; indeed, there may be circumstances in which he would have a duty to seek impartial assistance in order to enlighten the jury and himself on issues which have become confused because of partisanship in presentation. In the instant case the judge was confronted with a young infant plaintiff who might have suffered injuries of a serious nature which were difficult to diagnose and explain. We believe that he exercised sound judgment.

II.

The appellants urge that the employment of the expert shortly before the trial and in the absence of any notice from Judge Bartels at a pre-trial conference held several months earlier that he was going to follow this procedure, constituted prejudicial error. If we were able to find that substantial prejudice resulted to the appellants from this action of the trial judge, we would agree that there would be merit to. this contention; but, we do not find that this is. the case.

Appellants overlook the explicit language of Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C., and the philosophy underlying that rule. Rule 16 provides that a pre-trial order “when entered controls the subsequent course of the action, unless modified cut the trial to prevent manifest injustice.” ⁵ (Emphasis supplied.) The trial judge clearly has the authority to amend or modify a pre-trial order if this becomes necessary in the' interest of justice. Nims, PreTrial, p. 159 (1950). To hold otherwise would make a strait-jacket out of a procedural reform which was intended to provide a useful device in the court’s search for truth. Indeed, some of the critics of pre-trial have claimed that it tends to make the proceedings' too rigid and inflexible. While it is true that courts quite properly have been reluctant to allow modification of pre-trial orders where this would work an injustice, see Fernandez v. United Fruit Co., 200 F.2d 414 (2d Cir. 1952); Washington v. General Motors Acceptance Corp., 19 F.R.D. 370 (S.D.Fla.1956), it should be recognized that an unswerving insistence upon every provision of a pretrial order, under certain circumstances, may cause injustice.

Addressing ourselves to the alleged untimeliness of the appointment we note that the appellants did not object to the selection of Dr. Wexler. We fail to see how their complaint of lateness has any persuasiveness when it appears that it was raised only after Dr. Kaplan was substituted for Dr. Wexler. Furthermore, any claim of surprise which appellants press with regard to the doctor’s testimony lacks substance. A representative of the office of appellants’ counsel was present when the infant, Wayne, was examined by Dr. Kaplan (Tr. p. 206). In addition, the “history” testimony given by Dr. Rothenberger upon which Dr. Kaplan based his opinion was ■in evidence before Dr. Kaplan testified.

III.

It is also urged on this appeal that Dr. Kaplan was biased because he allegedly had a great deal of experience as a “plaintiff’s doctor.” Assuming, that this were so, it would not ipso facto support an inference that the doctor would not give an honest opinion in the present case. Moreover, we have made a careful study of the doctor’s testimony, and find that it was open and fair.⁶ The issue really resolves itself to one of credibility. The appellants had an opportunity to cross-examine the doctor and to develop any claim of bias; but, the record indicates that while Dr. Kaplan was examined carefully on the medical aspects of the ease, appellants chose not to ask a single question concerning the doctor’s alleged bias.⁷ Under these circumstances they cannot complain that the jury, whose province it was to determine credibility, may have believed his testimony.

IV.

Appellants seek furthermore to have this Court review the award of damages for excessiveness. In the present case it appears that while the medical expenses were minimal, the verdicts were unquestionably based upon the pain and suffering sustained by the plaintiffs. There is no adequate reason for modification.

Finally, appellants submit that little weight should have been given to the testimony of Dr. Rothenberger. Our short answer to this is that the law is clear that credibility is a question for the trier of fact and in a case such as this, not one upon which this court will pass. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572 (1947) (jury); Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720 (1930) (jury); Nat. Postal Transport Ass’n v. Hudson, 216 F.2d 193, 197 (8th Cir. 1954) (jury); Oil Transport Corp. v. Amboy Towboats, Inc., 193 F.2d 264, 265-266 (2d Cir. 1952) (non-jury).

Affirmed.

1 . Lauretta Scott (mother) $ 5,000.

Wayne Scott (infant) . 15,000.

Kevin Scott (infant) ... 1.500.

John Scott (father) .... 2.500. (Loss of consortium)

Baby carriage......... 50.

Total $24,050.

2 . The action -was originally brought in the Supreme Court of the State of New York, Kings County, but was removed to the United States District Court for the Eastern District of New York on the basis of diversity of citizenship jurisdiction, 28 U.S.C. § 1332, plaintiffs being residents of New York and defendants residents of New. Jersey. . ,

3 . Although there were two children involved in the accident, the judge appointed a doctor to examine Wayne only because he seemed to be the more seriously injured of the two. Wayne was 3% years old at the time of the accident, and was 5 years old when the case was tried.

4 . There is no indication in the record that appellants objected to having any one of these men appear as an expert.

5 . The order entered by Judge Bartels provided that modifications “may be had either on the application of counsel for the parties or on motion of the Court.” Record, p. 575.

6 . The doctor was permitted to present his testimony in narrative form, with each party given an opportunity to examine him. He testified about his examination of the child, and stated that the infant had developed a “terror reaction.” He admitted that his opinion was based primarily on the history as given to him. Thus, the jury was free to disregard the validity of the history and the doctor’s conclusions based on it; apparently they did not. The doctor also testified that the condition “should not be permanent” (Tr. p. 251); clearly this was not unfavorable to the appellants.

7 . Judge Bartels asked the doctor whether he had testified before, and if he had, whether for plaintiffs and/or defendants. By doing so the door was opened for appellants’ counsel to probe into any bias the doctor might have towards defendants in civil actions, but this was not done.