41 F.3d 182 (4th Cir. 1994), 93-2358, Bristol Steel & Iron Works v. Bethlehem Steel Corp.

Docket Nº:93-2358.
Citation:41 F.3d 182
Party Name:BRISTOL STEEL & IRON WORKS, INCORPORATED, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.
Case Date:December 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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41 F.3d 182 (4th Cir. 1994)

BRISTOL STEEL & IRON WORKS, INCORPORATED, Plaintiff-Appellant,

v.

BETHLEHEM STEEL CORPORATION, Defendant-Appellee.

No. 93-2358.

United States Court of Appeals, Fourth Circuit

December 5, 1994

Argued Nov. 2, 1994.

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[Copyrighted Material Omitted]

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ARGUED: William Wilson Lanigan, Somerville, NJ, for appellant. Heman A. Marshall, III, Michael F. Urbanski, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, for appellee. ON BRIEF: Frank K. Friedman, Francis H. Casola, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA, Edith G. Laver, Law Dept., Bethlehem Steel Corp., Bethlehem, PA, for appellee.

Before HALL and HAMILTON, Circuit Judges, and MacKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge HALL and Senior Judge MacKENZIE joined.

OPINION

HAMILTON, Circuit Judge:

Bristol Steel & Iron Works, Incorporated (Bristol) brought an antitrust claim of price discrimination against Bethlehem Steel Corporation (Bethlehem), contending that Bethlehem charged Bristol higher prices for steel goods. See 15 U.S.C.A. Sec. 13(a) (West 1973). After eight days of trial, a jury returned a verdict in favor of Bethlehem. Subsequently, Bristol moved the district court for a new trial pursuant to Fed.R.Civ.P. 59(a). The district court denied the motion, and Bristol appealed. Finding no error, we affirm.

I.

Bristol purchased raw steel from Bethlehem and then fabricated the steel in suitable forms for incorporating into buildings and bridges. Eventually, Bristol concluded that Bethlehem impermissibly charged Bristol higher prices for steel. Bristol therefore instituted suit against Bethlehem, asserting a claim of price discrimination pursuant to 15 U.S.C.A. Sec. 13(a) (West 1973), which provides in pertinent part:

It shall be unlawful for any person engaged in commerce ... to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale ... and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them....

The gravamen of the complaint is that Bethlehem charged Bristol higher prices for steel shapes and plates than it did other steel fabricators. After a lengthy discovery period extending approximately five years, the case proceeded to trial.

In order to establish its claim of price discrimination, Bristol introduced summaries in chart form of the steel purchase invoices, rather than the invoices themselves, to prove that Bristol was charged higher prices. The Federal Rules of Evidence specifically provide that summaries of prolific evidence may be introduced rather than the underlying evidence. See Fed.R.Evid. 1006. Despite the fact that the invoices proper were readily

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available, Bristol never moved to admit them into evidence. According to Bristol, these summaries tended to demonstrate that Bethlehem sold the same grade and quality of the same material to different steel fabricators at different prices.

In presenting its case-in-chief, Bethlehem, over Bristol's objection, called William Davis (Davis) and Patrick Loftus (Loftus) as witnesses. Bristol objected to the testimony of Davis and Loftus because they were not revealed as witnesses prior to trial. Bethlehem responded that in the five years in which discovery had been conducted, Bristol never once, by court order or interrogatory, requested a witness list. The district court permitted Davis and Loftus to testify, premising its ruling on two grounds. One, no pretrial order governing management of this action was entered pursuant to Fed.R.Civ.P. 16; thus, there was no mechanism in place to preclude their testimony. Two, despite the fact that discovery lasted approximately five years, Bristol never requested that Bethlehem provide a witness list, nor did Bristol seek an order requiring the exchange of witness lists. Because Bristol never attempted to discover Bethlehem's witnesses, the district court held that Bristol could not now complain. Davis and Loftus contributed to Bethlehem's establishing the affirmative defense of meeting competition pursuant to 15 U.S.C.A. Sec. 13(b) (West 1973), which provides in pertinent part:

[N]othing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of the services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.

In addition to the testimony of Davis and Loftus, Bethlehem presented other evidence tending to establish its good faith effort to meet competition as an affirmative defense.

At no point during the trial did Bristol ever move for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. In fact, Bristol explained that it expressly declined to make such a motion. The district court then provided the parties with copies of its proposed jury charge, which included a special verdict form.

The special verdict form was comprised of eight questions. Questions one through six related to the six elements Bristol had to prove to establish its claim of price discrimination and provided the jury with the option of answering each question "yes" or "no" with respect to whether each particular element had been satisfied. At the end of these six questions, in all capital letters, the special verdict form recited that if the jury answered "no" to any of these six questions, it had rendered a verdict for Bethlehem and should not proceed to question seven, but if the jury had answered "yes" to all of these questions, it should proceed to question seven. Question seven asked whether Bethlehem had established the affirmative defense of meeting competition. After question seven, the special verdict form stated, again in all capital letters, that if the jury answered "yes" to question seven it should proceed no further because it had returned a verdict in favor of Bethlehem. Question eight asked the jury to calculate damages.

Immediately after being charged, the jury commenced deliberating and returned the next day to continue deliberations. On the second day of deliberations, the jury sent a note to the district court, stating: "We are deadlocked on # 3. What is the proof required to establish a sale? [D]o we need two invoices?" (J.A. 531). Bristol invited the district court to submit the invoices to the jury, but the district court declined the invitation, explaining that since the invoices were not in evidence, they could not be submitted to the jury. The district court responded to the jury by explaining that summaries had been introduced instead of the actual invoices. (J.A. 428).

Subsequently, the jury sent another note to the district court, again stating that it was deadlocked on question three. The district court instructed the jury that if it was deadlocked on question three, it should consider the other questions because it might be able to render a verdict even if question three was not resolved. In rendering its instructions, the district court explained that even if the jury could not agree on question three, a

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verdict for Bristol required that all six questions be answered affirmatively. Additionally, the district court explained that if the jury affirmatively answered question seven, a complete verdict had been reached, regardless of any deadlock with respect to question three. (J.A. 434-36). Thus, the jury was merely instructed to continue deliberating and to attempt to answer the other special verdict questions. Conspicuously, the district court...

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