John Varhol v. National Railroad Passenger Corporation, D/B/A Amtrak

PER CURIAM.

John Varhol appeals from a jury verdict that awarded him what he considers to be grossly inadequate damages. Not surprisingly, Varhol’s main contention on appeal is that the damage award was too low. Preserving that issue for appeal, however, required Varhol to file a timely new trial motion in the district court. Hahn v. Becker, 588 F.2d 768, 772 (7th Cir.1979). Unfortunately Varhol served his new trial motion well after the ten-day limit Fed.R.Civ.P. 59 allows. Whether Varhol’s motion was timely, and thus whether Varhol has preserved his damages issue for appeal, depends on the status of Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), which held that in certain “unique circumstances” a district court may dispose of an otherwise untimely new trial motion on the merits.

The case was originally argued before a three-judge panel. The full court plus Senior Judge Eschbach reheard the case en banc to consider whether to overrule Eady. The court as constituted is evenly divided. Six judges (Judges Cummings, Posner, Coffey, Easterbrook, Manion, and Eschbach) voted to overrule Eady. Six judges (Chief Judge Bauer and Judges Wood, Cudahy, Flaum, Ripple, and Kanne) voted not to overrule Eady. Since a majority of the court as constituted did not vote to overrule Eady, it remains as the law of this circuit.

Despite not overruling Eady, the court unanimously voted to affirm the district court on all issues, including damages. Those judges who voted to overrule Eady would affirm the amount of damages on procedural grounds, not reaching the issue on the merits because of Varhol’s failure to file a timely new trial motion. Those judges who voted not to overrule Eady would hold on the merits that the district court did not abuse its discretion by not awarding Varhol a new trial on damages.

The court’s opinion discusses those issues on which all judges have agreed. The question of whether to overrule Eady is discussed in separate concurring opinions.^*

I.

John Varhol worked as a chief of on-board services for the National Railroad Passenger Corporation (more commonly known as Amtrak, the name by which we will refer to it). Varhol’s job required him to ride on Amtrak’s trains during their scheduled runs. On November 12, 1983, the.train on which Varhol was working derailed near Jefferson, Texas. The car in which Varhol had been riding remained upright, but Varhol was thrown to his hands and .knees. He picked himself up, checked various cars, and went outside to help remove passengers from the train. A short time after the accident, while still helping to remove passengers, Varhol slipped on some rocks near the track, again falling on his hands and knees. Varhol rode a train home to Chicago the next day, working along the way; he never worked again (for Amtrak and as far as we know for anyone else).

According to Varhol, the derailment caused him severe injuries that prevented him from returning to work, and caused him great pain and suffering. Varhol sued Amtrak under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60. Amtrak admitted that its negligence caused the derailment, so the only issue at trial was damages. The problem' for Va-rhol in proving damages was that he had had Multiple Sclerosis (MS) for¹ ten to twenty years before the derailment. Varhol claimed that the derailment had made his MS worse; Amtrak contended that Va-rhol’s condition after the derailment resulted from the natural progression of his MS, and that the derailment had nothing to do with exacerbating his MS. Varhol alleged that he suffered injuries apart from the exacerbation of his MS, but the evidence was such that a reasonable jury could have believed that other than a few scrapes and bruises he received in his falls, the bulk of Varhol’s damages (for example, his physical ills and inability to return to work) were caused by his MS. Thus, the central issue at trial was whether, and to what extent, the derailment exacerbated Varhol’s MS.

After both sides presented conflicting testimony on the medical issues, the trial judge submitted the case to the jury. Among the instructions the judge gave was a series of interrogatories concerning the extent to which the derailment aggravated Varhol’s MS. Those interrogatories required the jury to determine, if it could, “what percentage of [Varhoi's] present condition was caused by the injuries he suffered as a result of the train derailment ...,” and then asked the jury if it took that “percentage into consideration in reducing the amount of damages that you have awarded” to Varhol. The jury found that the derailment caused one percent of Va-rhol’s condition, and awarded him $237.00 in damages.

After the jury announced its verdict, the district judge told Varhol’s lawyers that they could take twenty-one days to file any post-trial motions, including a motion for a new trial. Twenty-one days later, Varhol filed his motion for new trial. Not surprisingly, Varhol’s motion contended that a new trial was necessary because the jury’s verdict was grossly inadequate. Varhol also challenged the trial judge’s decision to submit the special interrogatories on aggravation to the jury, and the judge’s decision not to admit his medical bills into evidence. The trial judge denied Varhol's motion. Varhol appeals both the denial of his motion and the underlying judgment.

II.

The sequence of events in the district court raises a question as to our appellate jurisdiction. Varhol did not file his notice of appeal until after the district court denied his new trial motion — fifty-nine days after the clerk entered judgment on the jury’s verdict. See Fed.R.Civ.P. 58. Amtrak is not an agency of the United States, so Fed.R.App.P. 4(a) required Va-rhol to file his notice of appeal “within 30 days after the date of the entry of judgment.” The Supreme Court and this court have repeatedly emphasized that a timely notice of appeal is “mandatory and jurisdictional.” E.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam); Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 908-09 (7th Cir.1989); cf., Sonicraft, Inc. v. NLRB, 814 F.2d 385 (7th Cir.1987). This means what it says: if an appellant does not file his notice of appeal on time, we cannot hear his appeal.

If a party files a timely motion for a new trial under Fed.R.Civ.P. 59(a), the time for filing a notice of appeal from the underlying judgment does not begin to run until the district court enters judgment denying the motion. Fed.R.App.P. 4(a)(4). But Varhol’s new trial motion was not timely, even though he filed his motion within the twenty-one days the district court gave him. Rule 59(b) provides that “[a] motion for a new trial shall be served not later than 10 days after the entry of the judgment.” Rule 6(b) provides that a district court may not extend the time for filing any Rule 59 motion. Since the trial judge could not extend the time to file the new trial motion, Varhol’s new trial motion was untimely and, according to Rule 4(a)(4), should not have tolled the time for filing his notice of appeal.

There is, however, a narrow exception to the general rule prohibiting an untimely appeal. This exception, known as the “unique circumstances” doctrine, originated in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). In Harris, the district court, acting before the 30-day appeal period had ended, granted the losing party's motion under then-Fed.R.Civ.P. 73(a) to extend the time to file its notice of appeal. (Fed.R.App.P. 4(a)(5) now provides for motions to extend the time to file a notice of appeal; we will discuss Rule 4(a)(5) in more detail below.) This court dismissed the appeal, finding that the circumstances the district court relied upon to grant the extension did not constitute “excusable neglect,” as the rule required. The Supreme Court reversed, holding that if a party relies on a district court’s extension of time to file a notice of appeal, and delays an appeal, the court of appeals should not dismiss the appeal because it disagrees with the district court’s finding of excusable neglect. Id. at 217, 83 S.Ct. at 285. If the decision to grant an extension is open to second-guessing by the appellate court, the only way a party could protect itself would be to file an appeal within thirty days of the judgment; but the extension of time was supposed to allow the party to defer the decision to appeal. The Supreme Court reasoned that this obvious dilemma presented such “unique circumstances” that this court should not have disturbed the district court’s decision to grant the extension. Id.

The Court extended the “unique circumstances” doctrine in Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). In Thompson, a party served a motion for a new trial twelve days after entry of judgment. The district court assured the party that his motion was timely, and went on to decide the motion on the merits. By the time the district court decided the motion, the time to appeal the underlying judgment had run. The party filed a late appeal, which this court dismissed. The Supreme Court relied on Harris to again reverse, holding that when a party performs “an act which, if properly done, postponed the deadline for filing an appeal,” and the party relied on the district court’s conclusion that .the act had been properly done, the appeal is timely if filed within the mistaken new deadline. Id. at 387, 84 S.Ct. at 398-99. Later in the same term, the Court relied on Thompson to summarily reverse another court of appeals’ dismissal of an untimely appeal. Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964).

This court has applied the unique circumstances doctrine a number of times; indeed, we have remarked that the doctrine is “particularly well established” in this circuit. Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 182 (7th Cir.1984). For cases invoking the doctrine to save otherwise untimely appeals, see, e.g., id. at 182-83, Textor v. Board of Regents, 711 F.2d 1387, 1390-91 (7th Cir.1983), and the cases Textor cites. The unique circumstances doctrine as applied in Thompson has been criticized and its continuing vitality questioned. See Parke-Chapley, 865 F.2d at 913 n. 6; Sonicraft v. NLRB, 814 F.2d 385, 387 (7th Cir.1987); Smith v. Evans, 853 F.2d 155, 160-61 (3d Cir.1988); see also Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388-89, 101 L.Ed.2d 245 (1988) (Justice Scalia, joined by Chief Justice Rehnquist, and Justices O’Connor and Kennedy, dissenting). But we are bound to follow Thompson unless we are “almost certain that the [Supreme Court] would repudiate” it if given the chance. See Olson v. Paine, Weber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir.1986). Despite the questions as to Thompson’s continuing vitality, we will not speculate as to Thompson’s demise. Such speculation would be especially inappropriate given that the very term after Lack, a unanimous Court rejected a unique circumstances argument by distinguishing rather than overruling Thompson. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 992-93, 103 L.Ed.2d 146 (1989). While this is not conclusive proof that a Court majority would not overrule Thompson if necessary to decide a case, the fact that the Court in Osterneck chose not to overrule Thompson makes it overly bold for us to repudiate Thompson. Therefore, until the Supreme Court says otherwise, Thompson and the unique circumstances doctrine it pronounced remain good law, and we will continue to follow it, as we must. Cf. Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362-65 (3d Cir.1990).

That Thompson is still good law does not necessarily mean that it applies in this case. In Ostemeck, the Supreme Court held that the unique circumstances doctrine will excuse an untimely notice of appeal when “a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done.” 109 S.Ct. at 993. In Green v. Bisby, 869 F.2d 1070 (7th Cir.1989), we held, based on Oster-neck, that the unique circumstances doctrine did not save an untimely notice of appeal where the court entered a minute order extending the time to file a Rule 59 motion and the appellant, apparently relying on that order, filed an untimely Rule 59 motion. Id. at 1072. We reasoned in Green that the unique circumstances doctrine did not apply because the entry of the minute order was “not an act of affirmative representation by a judicial officer [that the act was properly done] as contemplated by Ostemeck." Id.

It is difficult to distinguish this case from Green. It is true that in this case, the district court told Varhol in open court he could have 21 days to file any Rule 59 motions. But it hardly seems that reliance on a judge’s spoken order in open court is any more reasonable than reliance on the court’s written orders. It is also true that in Green a magistrate rather than the district court judge who ultimately decided the case entered the order extending the time to file the Rule 59 motion. See id. But a magistrate is a judicial officer, and there is nothing in Green to suggest that the magistrate was not properly empowered under 28 U.S.C. § 636(b) to consider matters relating to post-trial motions.

We do not have to decide whether Green controls this case, however, because there is an alternative basis for appellate jurisdiction. After the thirty days for appeal had run, Varhol recognized his jurisdictional problem and filed a timely motion under Fed.R.App.P. 4(a)(5) to extend the time to appeal. Rule 4(a)(5) allows such extensions after the original thirty-day period has ended if the court finds that the failure to file a timely notice of appeal resulted from “excusable neglect.” See Lorenzen v. Employees Retirement Plan of Sperry & Hutchinson, 896 F.2d 228, 231-32 (7th Cir.1990); Parke-Chapley, 865 F.2d at 909-11; Redfield v. Continental Cas. Co., 818 F.2d 596, 601 (7th Cir.1987). The trial judge found that Varhol’s failure to file a timely notice of appeal resulted from his reliance on the extension of time to file the new trial motion and the consideration of that motion on the merits. The judge found this to be excusable neglect, and granted Varhol more time to file his notice of appeal.

One might reasonably wonder how Varhol’s reliance could be “excusable.” After all, Rules 59 and 6(b), and Fed.R. App.P. 4(a)(4) lead clearly to the conclusion that an untimely Rule 59 motion will not toll the time to appeal no matter what the district court may say or do. Surely a lawyer practicing in federal court ought to know the federal rules. Cf. United States v. Beacon Bay Enterprises Inc., 840 F.2d 921 (Temp.Emer.Ct.App.1988). Attorney unfamiliarity with or misunderstanding of the federal rules, except in rare instances, is generally not excusable neglect under Rule 4(a)(5). See Parke-Chapley, 865 F.2d at 912-13.

Still, the trial judge did find excusable neglect in this case, and we generally give deference to that finding. See Redfield, 818 F.2d at 602; see also Lorenzen, 896 F.2d at 232-33. Amtrak has not challenged that finding. Moreover, this court relied on the fact that the district court had granted Varhol’s Rule 4(a)(5) motion in denying Amtrak’s motion to dismiss this appeal. Varhol v. National Railroad Passenger Corp., No. 88-2207, (7th Cir. Aug. 8, 1988) (unpublished order). And despite the rules’ clarity, it is at least arguable that reliance on a trial judge’s extension of time to file a Rule 59 motion and subsequent consideration of that motion on the merits could constitute excusable neglect: it is understandable that litigants would put great stock in what federal judges say about procedural matters (even if what the federal judges say may turn out to be wrong). The circumstances in this case are similar to those in Feeder Line Towing Serv., Inc. v. Toledo, Peoria & Western RR Co., 539 F.2d 1107 (7th Cir.1976). In Feeder Line, an appellant in an admiralty case did not file its notice of appeal within Rule 4(a)’s thirty-day limit. The appellant’s counsel thought that 28 U.S.C. § 2107, which provided a sixty-day appeal period in admiralty cases, controlled; counsel failed to recognize that under 28 U.S.C. § 2072, Rule 4(a)’s thirty-day limit, which was inconsistent with § 2107’s sixty-day limit, controlled. Id. at 1108. The district court found that this was excusable neglect, and granted an extension of time to file a notice of appeal. We upheld this determination because counsel's error was not the result of irresponsibility but a good faith, though erroneous, interpretation of two provisions of law. Id. at 1109. This was so even though § 2072 states, on its face, that “[a]ll laws in conflict with [the federal]. rules shall be of no further force or effect after such rules have taken effect.”

The real question here is not whether we would have found Varhol’s reliance to be excusable neglect but rather whether we should second-guess the trial judge’s decision that it was. In this case, we think not. We are not saying that we will not overturn a district court’s finding of excusable neglect where the party’s excuse is so far afield (for example, counsel simply forgetting on day thirty to file the notice) that granting the extension would be a patent abuse of discretion. (Compare the discussion in Lorenzen, 896 F.2d at 232-33, concerning the types of mistakes that may warrant lenity under Rule 4(a)(5).) Allowing extension on frivolous grounds would turn Rule 4(a)(5) into a device to convert automatically the thirty-day appeal period into a sixty-day period, something the rule was not meant to be. See In re O.P.M. Leasing Services, 769 F.2d 911, 917 (2d Cir.1985) (Friendly, J.). Nor are we saying that the district court would have abused its discretion if it had found that Varhol’s reliance was not excusable neglect. See Lorenzen, 896 F.2d at 233. But because it is at least arguable that Varhol’s actions could constitute excusable neglect, Amtrak has not challenged the district court’s finding that it was, and an earlier ruling of this court has implicitly approved that finding, we will not second-guess the district court’s finding of excusable neglect in this case. Since the district court did not abuse its discretion in granting Varhol an extension of time to file his appeal, and Varhol filed his appeal within the extended time granted, we have jurisdiction over this appeal even if Thompson’s unique circumstances doctrine does not apply here.

III.

On the merits, Varhol raises several issues besides the amount of damages. Varhol first complains that it was error for the district court to submit to the jury the special interrogatories concerning aggravation of his preexisting MS. As we have noted, those interrogatories essentially told the jury to determine what portion of Varhol’s condition, as it existed at the time of trial, resulted from the derailment, and, if it could determine that portion, to take it into account in determining damages. Varhol complains that the interrogatory was inconsistent with the aggravation instruction the court gave the jury (which was, with slight modifications, a Fifth Circuit pattern instruction); according to Varhol, that instruction did not allow the jury to apportion damages for the aggravation of his MS between aggravation caused and not caused by the derailment. Varhol also complains that the interrogatory failed to instruct the jury that it could award damages resulting from the derailment (for example, pain and suffering from his injuries suffered in the derailment, emotional distress from the derailment, and the effects of a head injury he allegedly suffered in the derailment) separately from the aggravation of his MS. As a result of this omission, Varhol claims that the interrogatory unduly focused the jury's attention on aggravation, and confused the jury by essentially instructing the jurors that damages from aggravation of the MS were the only damages they could award.

District courts have broad discretion under Fed.R.Civ.P. 49(b) to submit special interrogatories to juries. See Elston v. Morgan, 440 F.2d 47, 49 (7th Cir.1971). We find no abuse of discretion here. Varhol’s contention that the aggravation instruction did not allow apportionment is hollow. That instruction read, in part: “If you find that there was such an aggravation, you should determine what portion of plaintiffs present condition resulted from the aggravation and make allowance in your verdict only for the aggravation.” This clearly told the jury that it was to award damages to Varhol for his MS condition only to the extent his condition was aggravated by the derailment; in short, it told the jury to apportion. The special interrogatories led the jury, in an orderly way, through this apportionment process, and allowed the court and parties to decipher the jury’s thinking on that issue. ■

Varhol's arguments about juror confusion and overemphasis on aggravation damages are equally unconvincing. Nothing in the special interrogatory told the jurors that aggravation was the only damage component they could award and the trial judge fully instructed the jury on every element of damages Varhol claimed. The district court also instructed the jury to follow all his instructions, and not to single any out as more important than the others. Moreover, at the instruction conference the judge directed Varhol’s lawyers to draft the interrogatories. If his lawyers were concerned about the interrogatories possibly disregarding other damages, they should have drafted the interrogatories to get around that problem. But the interrogatories, as Varhol’s counsel submitted them, did not include any warning to the jurors not to disregard other damages, and Varhol’s lawyers did not mention this possible problem to the judge. At all events, we think the instructions as a whole fully and fairly informed the jury about Varhol’s damage theories. If any problem did exist with jury confusion or overemphasis on aggravation, however, Va-rhol’s lawyers took no steps to avoid these problems at trial, so he cannot complain about them on appeal.

Varhol next raises a series of alleged errors by the trial judge in admitting and refusing to admit certain evidence. Varhol first contends that the judge erred by refusing to admit Varhol’s bills for medical expenses incurred before trial. All these bills had been paid by Travelers Insurance Group Policy GA-23000, a policy for which Amtrak, not Varhol, paid the premiums. The trial judge found that because the bills had been paid by this policy, Varhol could not recover those expenses; therefore, the judge ruled that evidence of the amounts was inadmissible because the amounts were irrelevant and because of the possibility that the jury might misuse the amounts in calculating damages (for example, by deciding that trebling the bills would be a good way to fix damages).

Varhol does not contend that he was entitled to collect the medical expenses paid by the Travelers’ policy, so we assume, without deciding, that he was not.¹ Varhol insists only that even if he could not recover the paid medical expenses, the district court should have admitted the bills, amounts and all, because they were necessary to assess the full extent of his injuries.

■ The district court did not abuse its discretion in refusing to admit the bills. We agree that since Varhol could not recover the expenses reflected in those bills, the amounts .of those expenses bore little, if any, relevance to this case. See Francis v. National R.R. Passenger Corp., 661 F.Supp. 244, 245 (D.Md.1987). Even if the amounts were somehow relevant, the district court did not abuse its discretion in finding the possibility of jury confusion, misuse, and double-recovery outweighed the bills’ probative value. Fed.R.Evid. 403. This is especially so since several witnesses, lay and expert, testified concerning the extent of Varhol’s injuries.

Varhol next contends that the district court erred by refusing to admit his tendered Exhibit 23. Exhibit 23 was a 1971 letter from a doctor at the Mayo Clinic to Varhol. During discovery, Varhol had given Amtrak a number of documents from the Mayo Clinic; by mistake, he did not include Exhibit 23 among them. When Varhol tried to introduce the letter, Amtrak objected, claiming surprise because it had nevér seen the letter. The district court excluded the letter for this reason. Varhol offers no authority for his argument that the court should have admitted the letter, so we could hold that he has waived this issue. See Fed.R.App.P. 28(a)(4); Beard v. Whitley County REMC, 840 F.2d 405, 408 (7th Cir.1988). But in any event, we see no abuse of discretion in refusing to admit a document that a party never submitted to his opponent before trial (even if by mistake), despite a discovery request by the opponent.

Varhol’s third alleged evidentiary error was the district court’s decision to allow Robert. Fitzgerald, an Amtrak employee, to testify in Amtrak’s case about matters beyond authenticating documents. Varhol claims he was surprised by Fitzgerald’s testimony because Amtrak did not list Fitzgerald in the pretrial order; instead, Amtrak stated only that it would call a “Representative of National Railroad Passenger Corp.” Again, Varhol has cited no authority to support his argument. But, in any event, Varhol’s claim of surprise rings false. While Fitzgerald did not merely authenticate records, all his testimony concerned records that Amtrak had given Va-rhol in discovery. Moreover, Varhol himself had called Fitzgerald as a witness for the same reason Amtrak did — to authenticate and explain Varhol’s employment records. We find no abuse of discretion in allowing Fitzgerald to do the same thing for Amtrak.

Varhol’s final evidentiary challenge is his most substantial. Over Varhol’s objection, the trial judge allowed Amtrak to cross-examine Varhol about a suspension from work he had received for purchasing stolen train tickets from his boss. The district court allowed the cross-examination under Fed.R.Evid. 608(b), which allows a questioner cross-examining a witness to attack the witness’s credibility by inquiring into specific instances of misconduct by the witness that are “probative of truthfulness or untruthfulness.”

Amtrak’s counsel asked Varhol the' following questions during cross-examination:

Q. Mr. Varhol, were you not suspended for 45 days on March 13, 1981?

A.- Yes, I was.

Q. For the purchase and use of stolen Burlington Northern commuter tickets ...?

A. Yes.

Q. And did you not admit to your guilt, agree to the suspension, and make restitution for the stolen tickets you had purchased and used?

A. Yes.

Although Varhol testified on redirect that he did not know the tickets were stolen when he bought them, we think the questions and answers about the incident fairly raise the inference that Varhol knowingly bought and used stolen tickets. The fact that Varhol admitted “guilt” and paid restitution so indicates: why admit guilt or pay restitution if you are not guilty of anything? The jury did not have to draw this inference (and for all we know, it may not have), but it could have. The question, therefore, is whether Varhol’s alleged conduct — buying and using stolen tickets— was probative of Varhol’s “character for truthfulness or untruthfulness.”

Varhol insists that Rule 608(b) only allows questioning about acts that involve fraud or deceit — for example, perjury, subornation of perjury, false statement, embezzlement, and false pretenses. See United States v. Amahia, 825 F.2d 177, 181 (8th Cir.1987). Our own cases, however, do not use language that cabins cross-examination under Rule 608(b) in this way. See, e.g., United States v. Holt, 817 F.2d 1264, 1272-73 (7th Cir.1987); Simmons, Inc. v. Pinkerton’s, Inc., 762 F.2d 591, 605 (7th Cir.1985); United States v. Covelli, 738 F.2d 847, 856 (7th Cir.1984). But the fact that none of these cases has specifically limited Rule 608(b) questioning to acts that involve fraud or deceit is not very helpful to us here because these cases all involved questioning about acts that involved some element of deceit or false statement.

The reason for allowing cross-examination under Rule 608(b) is to allow a party to attempt to cast doubt on a witness’s reliability for telling the truth. Acts involving fraud or deceit clearly raise such doubt, while certain acts, such as murder, assault, or battery normally do not. But stealing and receiving stolen goods fall into a gray area. Stealing does not necessarily involve false statements or deceit, so it does not necessarily go directly to a witness’s propensity to lie. But people generally regard acts such as stealing (and receiving and using stolen property) as acts that “reflect[] adversely on a man's honesty and integrity.” Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967) (Burger, J.). In addition, such acts

“do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunctions against stealing another’s property ... it is hard to see why he would hesitate .to-obtain an advantage for himself or [a] friend in trial by giving false testimony.”

David W. Louisell and Christopher B. Mueller, 3 Federal Evidence § 305, at 226 (1979) (quoting Ladd, Credibility Tests — Current Trends, 89 U.Pa.L.Rev. 166, 180 (1940)). As a practical matter, it is difficult to distinguish between untruthfulness • and dishonesty. See id.

The question whether to allow questioning about acts such as receiving and using stolen property under Rule 608(b) is a close one. But we think that the connection between such acts and honesty and integrity, and between honesty and integrity and credibility, is sufficient to allow admission, subject to the district court judge’s sound exercise of discretion. In this case, Va-rhol’s credibility was a key issue. The stolen ticket evidence did arguably reflect upon his honesty, and Varhol’s counsel had the opportunity to minimize any adverse inference on redirect examination. Therefore, we do not think it was an abuse of discretion to allow Amtrak to attack Va-rhol’s credibility by cross-examining Varhol about the stolen tickets.

There is one further complication here, though: the trial judge never told the jury that it was to consider the evidence about the stolen tickets only in determining Varhol’s credibility. Varhol insists that we must reverse because of the district court’s failure to give a limiting instruction. Varhol, however, has not preserved this issue. At the time Amtrak asked the questions, Varhol’s lawyers stood silent and mentioned nothing about a limiting instruction. In fact, at a sidebar immediately before Amtrak asked the questions (a particularly appropriate time to remind the judge about a limiting instruction), Varhol's counsel did not mention a limiting instruction.

It is true, as Varhol notes, that his counsel did ask the district judge several times during trial for a limiting instruction, and that the judge stated that he would give one. But all these requests came during arguments on Varhol’s motion in limine, long before Amtrak actually asked the questions. We do not know the reason for Varhol’s counsel’s failure to speak up at the moment of truth: it could have been a tactical decision not to draw any more attention to the issue; it also could have been an oversight. Whatever the reason, counsel’s failure to speak up when the judge let the questioning in without giving a limiting instruction has waived the issue. If Varhol wanted a limiting instruction, he should have reminded the judge at the proper time to give one.

IV.

For the reasons stated above, we affirm the district court’s judgment.

Affirmed.

* The Illinois State Bar Association and Appellate Lawyers Association, the Federal Bar Association, the Wisconsin Porcelain Retirement Participants, the Chicago Council of Lawyers, and the Seventh Circuit Bar Association filed briefs as amici curiae on the question of whether to overrule Eady. We thank these groups for their participation in this case.

1 . Section 5 of FELA, 45 U.S.C. § 55, provides that an employer "may set off ... any sum it has contributed or paid to any insurance, ... that may have been paid to the injured employee ... on account of the injury.... ” Despite the language "any sum it has contributed or paid to any insurance” (emphasis added), most courts have followed the lead of Judge Friendly’s concurrence in Blake v. Delaware & Hudson Ry. Co., 484 F.2d 204, 207 (2d Cir.1973) and have held that an employer is entitled to set off the entire amount of benefits paid by a policy it pays for if the collective bargaining agreement between the employer and the employee's union expressly provides that the purpose of the policy is to indemnify the employer against FELA liability rather than serve as a wage equivalent for the employees. See, e.g., Folkestad v. Burlington Northern, Inc., 813 F.2d 1377, 1382-83 (9th Cir.1987); Mead v. National R.R. Passenger Corp., 676 F.Supp. 92, 94-95 (D.Md.1987). The relevant collective bargaining agreement in this case provides that the policy is not a wage equivalent. Thus, under Judge Friendly’s reasoning, setoff would have been proper. Compare Mead, supra, which found setoff proper for Amtrak under the same policy.