Miksis v. Howard, 96-1896

Citation106 F.3d 754
Decision Date10 February 1997
Docket NumberNo. 96-1896,96-1896
Parties, 46 Fed. R. Evid. Serv. 502 John P. MIKSIS, Plaintiff-Appellee, v. Henry L. HOWARD and Schneider National Carriers, Inc., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Terrance M. Rubino, Wanda E. Jones (argued), Rubino & Jones, Munster, IN, Samuel L. Cappas, Highland, IN, for plaintiff-appellee.

James T. Ferrini (argued), Clausen Miller, P.C., Robert J. Golden, Dowd & Dowd, Chicago, IL, for defendant-appellant.

Before ESCHBACH, FLAUM, and KANNE, Circuit Judges.

ESCHBACH, Circuit Judge.

On June 29, 1992, John Paul Miksis was changing a lightbulb in a traffic light as part of his summer job with Midwestern Electric. In order to reach the light, Miksis was suspended in the bucket of an aerial-lift truck. As he worked, a truck passing through the intersection knocked the bucket, hurling Miksis to the ground. Miksis sustained severe injuries, including brain damage and the loss of control of both legs. Miksis sued the driver of the truck, Henry Howard, and his employer, Schneider National Carriers, Inc. A jury awarded Miksis $10 million in damages. Because the jury found defendants to be 80 percent at fault, the court entered judgment against defendants in the amount of $8 million. Defendants now appeal, claiming the district court made a number of erroneous rulings during discovery and trial, and claiming that the verdict is excessive. The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1); we have jurisdiction under 28 U.S.C. § 1291. We now affirm.

I. Background

At the time of the accident, John Paul Miksis was a 21 year old college football player at Olivet Nazarene University. Immediately after the accident he could not eat or breathe without aid, he was unable to speak or walk, and he was incontinent. Miksis underwent extensive therapy under the supervision of his treating physician Dr. Valerie Ito, the Acting Director of the Brain Trauma Unit at the Rehabilitation Institute of Chicago. During therapy he had to relearn these basic functions and he regained some mobility in his legs and arms. By January 1993, Miksis had improved enough to return home. However, he continued extensive outpatient therapy. Eventually Miksis learned to walk with the aid of a cane and leg braces, but balance is difficult because he has only limited movement in his legs and left arm. Miksis' motor skills, for example, his ability to manipulate objects with his hands, have suffered significantly as a result of the accident.

In addition to his physical limitations, Miksis' brain injury also affected his mental processing. As a result of his injuries, Miksis suffers attentional difficulties making it hard for him to stay focused. Miksis' problem solving skills are impaired and he is less able to adapt to changes in his environment. Additionally, the accident caused deficits in auditory comprehension, memory, and his ability to process information.

Miksis has improved greatly since his near paralysis at the time of the accident. However, he has not, and the doctors predict he never will, return to his former level of physical or cognitive functioning. Dr. Ito has indicated that Miksis will never be able to live completely on his own. He requires supervision and structured activities. To this end, she has recommended Miksis live in a group home or other assisted living situation away from his family. There also is evidence that Miksis is not employable because of the combined effect of his physical and cognitive impairments. Miksis' rehabilitation expert, Robert Voogt, prepared a "life care plan," on which Miksis based his future cost estimates. The plan included several options, including group living situations and the possibility of independent living as recommended by Dr. Ito, as well as the costs of future therapy and the physical aids Miksis will need. The total costs of these plans ranged from $3.4-$4.4 million. In addition, Miksis sought compensation for his pain and suffering and over $800,000 in past medical expenses. The jury awarded $10 million in damages, apportioning $8 million to be paid by defendants.

Defendants now appeal and request a new trial, or, in the alternative, remittitur. A new trial may be granted if the verdict is against the clear weight of the evidence, the damages are excessive or the trial was unfair to the moving party. Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir.1992); Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 636 (7th Cir.1996). The district judge denied defendants' motion for a new trial, which raised a number of the same issues defendants raise here. 1 "[B]ecause the authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court, ... the grant or denial of a motion for a new trial is not subject to review by this court, except upon exceptional circumstances showing a clear abuse of discretion." Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir.1989) (quoting General Foam Fabricators v. Tenneco Chemicals, Inc., 695 F.2d 281, 288 (7th Cir.1982)). See also Allison, 979 F.2d at 1196; Emmel, 95 F.3d at 636. We defer to the district court because of its unique position to view the evidence and the course of the trial. Allison, 979 F.2d at 1196.

II. Discovery
A.

As Miksis underwent the trauma of rehabilitation, the lawyers pursuing the case underwent their own trauma: discovery. The district court, in a pair of September 14, 1994 orders, established a strict discovery schedule:

March 31, 1995: Discovery to be completed.

July 24, 1995: Plaintiff to make requisite expert disclosures.

August 11, 1995: Defendants to complete depositions of plaintiff's experts.

September 1, 1995: Defendants to make requisite expert disclosures.

September 21, 1995: Plaintiff to complete depositions of defendants' experts.

November 6, 1995: Jury trial to begin.

The court's order specifically warned: "Failure to comply with the court's orders ... may result in this court's striking of an expert and/or expert's testimony." Much to defendants' chagrin, the court made good on this threat.

Defendants sought, and received, two extensions of the discovery deadline. On March 31, 1995, the date of the original deadline, defendants moved for an extension until June 30, 1995 in order to take Dr. Ito's deposition. On July 28, 1995, they requested and were granted limited additional discovery regarding Miksis' driver retraining. Not until August 11, 1995 did defendants move to take a medical examination of Miksis pursuant to Federal Rule of Civil Procedure 35. On August 24, 1995, defendants moved to extend the deadline for disclosure of their list of experts and their proposed opinions until October 1, 1995, on the ground that such opinions would not be complete without the medical examination.

Not innocent of undue delay itself, the district court did not rule on either the motion for a medical examination or the motion to extend time until the magistrate judge issued an order denying both on October 30, 1995. On November 3, 1995, 60 days after the original deadline and 30 days past the requested extension, defendants finally made the requisite disclosure of their experts and their proposed opinions. As defendants soon discovered, disclosure three days before trial was too late. The district court granted plaintiff's motion to strike defendants' experts as untimely. Defendants now appeal the denial of both motions and the exclusion of their experts as a sanction for their lack of timeliness.

B.

We review a district court's discovery determinations for abuse of discretion. Gile v. United Airlines, 95 F.3d 492, 495 (7th Cir.1996); Sadowski v. Bombardier Ltd., 539 F.2d 615, 620 (7th Cir.1976). We will not find that the court abused its discretion "unless one or more of the following circumstances is present: (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary." Gile, 95 F.3d at 495. Moreover, there must be a "clear showing" that a discovery limitation "resulted in actual and substantial prejudice" for it to warrant reversal. Id.

1. Denial of Medical Examinations of Plaintiff.

Defendants argue that the denial of a medical examination is in error because they were diligent--they did not have reason to request a medical examination until they were "sandbagged" on July 24, 1995 when they received notice of plaintiff's proposed expert testimony regarding the need for a multi-million dollar life plan.

Defendants' claims that they were sandbagged are belied by the facts. The discovery cut off was March 31, 1995. Defendants knew from day one that plaintiff's medical condition was an issue, yet they failed to request the medical examination until August 11, 1995. The need for a "life plan"--in other words, a prediction of high medical costs for the remainder of plaintiff's life--was clearly foreseeable from the nature of plaintiff's injuries. Plaintiff suffered brain damage causing permanent physical and cognitive impairments. Defendants deposed plaintiff's personal physician a month before this request, and should have discovered then the opinion she expressed at trial (via a November videotaped deposition) that plaintiff will never be able to live wholly on his own. Defendants' protestations of diligence ring hollow.

To the extent defendants were taken by surprise by the "life plan," they have only themselves to blame. According to defendants, they made a conscious decision not to move for a medical examination because they did not think they needed one. However, defendants knew all along that according to the schedule set by the court they would...

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