Boardman v. National Medical Enterprises

No. 95-3485
Richard Boardman, Guardian *
Ad Litem for Daniel Clippard, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
National Medical Enterprises, *
Doing Business as Lutheran *
Medical Center, Inc.; and Millar *
Elevator Service Company, *
*
Appellees. *
Submitted: November 20, 1996
Filed: February 11, 1997
Before MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF,1
District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Richard Boardman, guardian ad litem of Daniel Clippard, appeals from
the judgment that the district court2 entered on a verdict rendered against
him in an action for injuries sustained by Mr. Clippard when an elevator
that National Medical Enterprises (NME) owned and serviced suddenly dropped
three stories. Mr. Boardman asserts that the district court erred in
barring his
1
The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa, sitting by designation.
2
The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
expert witness from testifying, in barring him from reading an expert
witness's deposition to the jury, in allowing NME to draw the jury's
attention to Mr. Boardman's lack of witnesses relevant to an issue, and in
precluding Mr. Boardman from drawing the jury's attention to NME's failure
to produce certain witnesses. For the reasons discussed below, we affirm.
I.
The district court refused to allow Mr. Boardman's expert witness,
Joe Stabler, to testify because Mr. Boardman had not lived up to the
requirements of E.D. Mo. Local R. 33, which governed discovery with respect
to expert witnesses (a different version of the local rules is now in
effect; all references in this opinion, however, are to the local rules in
effect at the relevant time). Fed. R. Civ. P. 26(a)(2)(B) and Fed. R.
Civ. P. 26(a)(5) authorize parties to use interrogatories to require
disclosure of the identity of expert witnesses and the subject matter,
facts, and opinions to which the expert witnesses are expected to testify
at trial, together with a summary of the grounds underlying each opinion.
NME sent Mr. Boardman interrogatories seeking disclosure of each of the
matters covered by Fed. R. Civ. P. 26(a)(2)(B), and on January 13, 1994,
Mr. Boardman responded, "Unknown at this time, will timely supplement."
The relevant local rule required any answer or supplemental answer
to an interrogatory to be made not less than sixty days prior to the date
of trial (sixty days prior to trial was December 12, 1994). On
September 10, 1994, Mr. Boardman supplemented his answer by serving notice
on NME that he "may call" Joseph Stabler as an "expert witness to testify
concerning elevator safety, mechanics, operation, maintenance and repair."
Though Mr. Boardman timely provided NME with Mr. Stabler's identity and
with the subject matter upon which Mr. Stabler would testify, he
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failed to identify prior to December 12, 1994, the facts and opinions to
which Mr. Stabler was expected to testify.
E.D. Mo. Local R. 33 nevertheless provided a second window of
opportunity for Mr. Boardman. It stated, "All parties shall have the
right, no less than thirty (30) days prior to trial, to supplement previous
answers to interrogatories by furnishing rebuttal expert witness
information." Mr. Boardman wanted Mr. Stabler to testify at trial that the
elevator engaged in overspeed mode and could not have done so in the
absence of negligence, in rebuttal to certain testimony that NME's experts
offered. Although the local rule afforded Mr. Boardman an extra thirty
days (or until January 13, 1995) to produce the facts and opinions to which
Mr. Stabler was expected to testify as a rebuttal witness, Mr. Boardman
failed to meet this extended deadline. He also failed to provide the
required information after that date.
E.D. Mo. Local R. 33 further provided that if "a party fails to
comply with this Rule, the Court shall prohibit the party's expert from
giving expert testimony." Since Mr. Boardman failed to comply with the
rule, the district court was manifestly authorized to prohibit Mr. Stabler
from testifying, and we detect no error in its having done so.
Mr. Boardman nevertheless argues that Mr. Stabler presented his
rebuttal opinion during NME's October 27, 1994, deposition of Mr. Stabler,
and contends that this satisfied the requirements of the scheduling order.
First of all, we are not altogether satisfied that the opinion that
Mr. Boardman sought to have Mr. Stabler present in rebuttal at trial was
in fact presented during the deposition. Even if it was, Mr. Boardman's
failure to obey the scheduling order is not excused merely because NME
elected to depose Mr. Stabler. For the same reason, we need not address
Mr. Boardman's contention that the district court refused to permit
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him to make an offer of proof outlining the opinions to which Mr. Stabler
would have testified had he been allowed to.
"The power of the trial court to exclude exhibits and witnesses not
disclosed in compliance with its discovery and pretrial orders is
essential" to the judge's control over the case. Admiral Theatre Corp. v.
Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir. 1978). The district
court did not abuse its discretion. The court protected the integrity of
the trial process by shielding NME from unexpected testimony, the
presentation of which would have undermined the goals of discovery and
prejudiced NME. Fed. R. Civ. P. 16(f) and Fed. R. Civ. P. 37(b)(2)(B)
authorize district courts to prohibit noncomplying parties from introducing
evidence, which is what the district court properly did in this case.
II.
Mr. Boardman also appeals from the district court's decision to
prevent him from reading to the jury the deposition testimony of John
Donnelly, a defense expert witness. Mr. Boardman did not adhere to the
requirements of the scheduling order with regard to Mr. Donnelly: He never
designated Mr. Donnelly as an expert witness, and he did not reveal the
subject matter that Mr. Donnelly would discuss or the opinions that he
would present. Mr. Boardman informed NME only that he reserved the right
to read all or portions of the depositions of any witnesses that NME had
listed, a revelation that he did not make until January 27, 1995, well
after the scheduling order deadlines had expired.
E.D. Mo. Local R. 33, Fed. R. Civ. P. 16(f), Fed. R.
Civ. P. 37(b)(2)(B), and Fed. R. Civ. P. 37(d) afford the district court
wide latitude in imposing sanctions for failure to obey discovery orders.
"[T]he court of appeals will not reverse the district court in the absence
of a clear abuse of discretion." Hazen v. Pasley, 768 F.2d 226, 229 (8th
Cir. 1985). "It is
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fundamental that it is within the trial court's discretionary power whether
to allow the testimony of witnesses not listed prior to trial. ... A
ruling by the district court pertaining to this [kind of] matter will be
overturned only if there is a clear abuse of discretion." Blue v. Rose,
786 F.2d 349, 351 (8th Cir. 1986); see also Harris v. Steelweld Equip. Co.,
869 F.2d 396, 399 (8th Cir. 1989), cert. denied, 493 U.S. 817 (1989).
Blue (and Harris) upheld a district court's decision to prevent a
witness from testifying because of counsel's failure to list the witness
as required by a local court rule and the court's scheduling order. "The
rules proscribing discovery are enacted for a reason. Once discovery has
closed in a case, it is the court's discretion whether or not to allow it
to be reopened." Harris, 869 F.2d at 400. The district court thus did not
err in preventing Mr. Boardman from reading the deposition testimony of
John Donnelly to the jury.
III.
In closing argument, NME alluded to the fact that Mr. Boardman had
failed to call any witnesses to establish NME's negligence. Mr. Boardman
objected, arguing that he would have called Mr. Stabler to testify to that
point had the district court not excluded his testimony. On appeal,
Mr. Boardman cites several Missouri cases to the effect that one cannot
highlight opposing counsel's failure to call a witness when, due to one's
own motion, the court has excluded that witness. State law, however, does
not control this issue: Federal law controls the permissible content of
closing argument even in diversity cases, and federal courts give
considerable discretion to the trial court in matters of this sort. Sylla-
Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir. 1995),
cert. denied, 116 S. Ct. 84 (1995); Vanskike v. Union Pac. R.R. Co., 725
F.2d 1146, 1149 (8th Cir. 1984).
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"To constitute reversible error, statements made in oral arguments
must be plainly unwarranted and clearly injurious." Vanskike, 725 F.2d at
1149. In one recent case, we held that an argument similar to the one made
here was not grounds for reversal. Sylla-Sawdon, 47 F.3d at 284-86. We
see no error whatever in permitting defense counsel to point out that
plaintiff lacked witnesses on the issue of negligence, a matter of obvious
relevance and central importance to a determination of the case.
IV.
Finally, Mr. Boardman maintains that the district court erred in
precluding him from arguing an adverse inference from NME's failure to call
three of its employees as witnesses. One employee had entered the elevator
with Mr. Clippard but had departed before the incident; the other two had
pulled Mr. Clippard from the elevator after the incident. Mr. Boardman
contends that there is a general rule that failure of an opposing party to
put on a witness raises a negative inference, and calls our attention to
Johnson v. Richardson, 701 F.2d 753 (8th Cir. 1983). In fact, as NME
points out, that case held that it is the failure to put on a key witness
that raises such an inference. Id. at 757. This means that a party
arguing the negative inference must demonstrate that the witness was
important and possessed relevant information. See Cowens v. Siemens-Elema
AB, 837 F.2d 817, 825 (8th Cir. 1988). Mr. Boardman does not even argue,
and the record does not indicate, that these witnesses had relevant
information to provide at trial.
In addition, in deciding this issue we think it significant which
party had the burden of proof. Drawing an adverse inference from the
failure of a party to put on key witnesses relevant to some issue is most
reasonable when it is the party with the burden of proof on that issue who
fails to do so. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220,
1228 (8th Cir. 1995). Here,
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NME did not have the burden of proof on any issue, and Mr. Boardman's
suggestion that NME failed to produce certain witnesses might confuse the
jury as to who did. We note too that the district court is better situated
to "determine whether prejudice has resulted from a closing argument, and
[we] will not disturb the district court's ruling unless there has been an
abuse of discretion." Vanskike v. ACF Indus., Inc., 665 F.2d 188, 209 (8th
Cir. 1981), cert. denied, 455 U.S. 1000 (1982).
For all of these reasons, we hold that the district court did not
abuse its discretion in limiting Mr. Boardman's closing argument.
V.
The judgment of the district court is affirmed for the reasons
indicated.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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