Shelak v. White Motor Co.

Decision Date10 October 1978
Docket NumberNo. 76-2518,76-2518
Citation581 F.2d 1155
PartiesJohn SHELAK (Norma Jean Shelak, Personal Representative of the Estate of John Shelak, substituted in the place and stead of John Shelak, Deceased), Plaintiff-Appellee, v. WHITE MOTOR COMPANY, Defendant-Appellant, Transport Indemnity Company, Intervenor-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Thomas G. Nash, Jr., Dallas, Tex., for defendant-appellant.

Frank L. Branson, Dallas, Tex., for J. Shelak.

H. C. McCracken, Jr., Carrollton, Tex., W. James Kronzer, James Edward Robinson, Houston, Tex., for Transport, etc.

Appeal from the United States District Court for the Eastern District of Texas.

Before HILL, RUBIN and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In the case on appeal, the plaintiff-appellee John Shelak was injured when a step on his truck broke beneath his weight. The plaintiff brought this diversity action against the seller of the truck, White Motor Co., 1 on the theory of strict tort liability. The plaintiff alleged that the step that broke and caused his injuries was defectively designed. After a trial, the jury awarded the plaintiff $125,000. On this appeal, the defendant makes several assignments of error, one of which we find necessitates reversal of the district court judgment and remand for a new trial on the issue of damages. The defendant's other assignments of error are meritless.

We first address the error that necessitates reversal and remand. In order to do so a brief recapitulation of some of the facts, chronologically, is in order.

The broken step incident giving rise to the litigation occurred on June 8, 1972. Mr. Shelak received attention for back pain. On or about June 13, 1972, he suffered a heart attack.

The present litigation was commenced by the filing of Mr. Shelak's complaint in the district court on June 4, 1974, about two years after the accident and the heart attack. During these two years, Mr. Shelak consulted approximately eleven doctors for a variety of medical problems, including pain in his back, leg, chest, neck, and arm. Furthermore, Mr. Shelak was involved in a truck accident on July 7, 1973, after which he complained of and was treated for shoulder and knee pain. The defendant was, therefore, confronted with a claim of bodily injury brought on behalf of a plaintiff with a medical history of multiple physical problems. Further, under "notice" pleading provided for in the Federal Rules of Civil Procedure, See Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the plaintiff need not have set out in the complaint specifically which of his ailments were claimed to have resulted from the broken step mishap. 2 Therefore, more than a year before trial, the defendant addressed an interrogatory to the plaintiff requiring that the plaintiff respond by stating all "parts of the plaintiff's body" that the plaintiff claimed to have been injured as a result of the accident. To this inquiry, the plaintiff answered, "Plaintiff's low back including the muscles, tissues, ligaments, nerves and supportive structure thereof. Plaintiff sustained a ruptured disc." Neither the complaint nor plaintiff's responses to discovery revealed any assertion that the plaintiff's heart attack was causally connected in any way to the truck step incident. No supplemental answers were ever made to the interrogatories during the year between their having been answered and the trial. See Fed.R.Civ.P. 26(e)(2)(B).

The parties and counsel were, nearly two years after the commencement of the case (and nearly four years after the accident), called to the Court to select a jury and try the case. 3 The plaintiff then asserted, and the defendant then confronted, a back injury case.

The following occurred on the day of selection of a jury.

The jury was sworn and excused, the taking of evidence to begin on the third day following. A pre-trial order was filed in which plaintiff's contentions were said to be that the accident had caused "serious injuries to his back and nervous system and further was A producing cause of damage to his cardio vascular system, and body generally." (emphasis added).

During the night before the parties were to appear for the commencement of presenting evidence, plaintiff took the testimony of a physician whose name had not been furnished through discovery channels, although defendant's interrogatories had sought names of expert witnesses. 4 See Fed.R.Civ.P. 26(b)(4)(A)(i), (e)(1)(B). It was revealed that this medical expert had first examined the plaintiff on the day of jury selection. The physician testified to his medical opinion that the accident was a producing cause of plaintiff's heart attack.

On the next morning, when the parties and counsel appeared to present their evidence before the Court and the jury selected three days earlier, the defense counsel made two motions which appear to have been alternative motions. He moved, under the circumstances, to withdraw the defense announcement of ready, which, if granted, would have had the effect of a continuance. He moved, further or alternatively, that the expert testimony be excluded. Defendant asserted that it was unprepared to defend against the heart attack case which had been revealed only after the jury had been chosen; that the plaintiff had been attended by an internist following his heart attack nearly four years earlier but that defendant had no opportunity to produce that witness by deposition or otherwise; and that, at the time of jury selection, defense counsel had been unaware of the heart attack contention so that he had been unable to question prospective jurors concerning any experience any of them may have had with or knowledge of heart problems.

The trial court denied both motions 5 and the case, thus formed, proceeded to trial and to the verdict and judgment against defendant from which this appeal is taken.

There are other exceptions taken in the appeal. One merits mention, at this point. The defendant's interrogatories had, as mentioned, sought discovery of plaintiff's experts. These were to include experts whose opinions might relate to the design, maintenance, etc. of the step on the truck which failed, precipitating plaintiff's fall. Here, again, plaintiff called an expert witness on this subject whose name had not been revealed in responding to defendant's interrogatories. Without commending lack of candor in discovery, we find that this surprise does not amount to reversible error. It does not appear that defendant was prejudicially surprised, in fact. Defense counsel acknowledged at trial and in oral argument that, outside the record, he had learned several weeks before trial that the expert witness would likely be called. The record indicates that defendant was prepared to meet the contentions of plaintiff's design expert.

The failure of the plaintiff candidly to reveal his claim of injury precipitating a heart attack goes to the question of damages. Plaintiff's disregard for the federal rules of discovery in this area created a "trial by ambush" which those rules are designed to prevent. The rules are designed to narrow and clarify the issues and to give the parties mutual knowledge of all relevant facts, thereby preventing surprise. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In view of the delay between the time the complaint was filed and the trial, the plaintiff's argument that he was unable earlier to find a doctor who could connect the heart attack with the accident is not persuasive. It must be assumed that plaintiff's counsel had applied himself diligently to his client's cause for almost two years and was yet unable to find, until the jury selection day, any qualified physician of the medical opinion that the incident caused the plaintiff's heart attack. Plaintiff's counsel had, presumably, conscientiously stated the plaintiff's contentions, theretofore developed, in interrogatory answers and made no mention of such a claim. His unceasing search, right up to trial, may be commendable. Nevertheless, if discovery has any purpose, plaintiff's opponent was entitled, upon the unveiling of the heart attack contention, to a reasonable opportunity to prepare to defend against it. 6 If the trial judge was not disposed to deny the plaintiff the right to assert this eleventh hour contention, the only reasonable solution would have been to grant a sufficient delay to permit the defendant his right to prepare.

Of course, it may well be possible in many cases for able counsel on an overnight basis to prepare and defend against last-minute claims by his adversary. Certainly, that sort of emergency litigation which could degenerate into "quick-draw hip-shooting" is precisely what the discovery rules were designed to prevent. Under a holding approving the initial presentation of a principal claim and theory of recovery at the eleventh hour, as we find in this case, the discovery rules would serve as no inducement to a candid and orderly revelation of the claims, defenses, and facts upon which the issues would ultimately be presented. To be sure, the defendant was well aware of the fact that the plaintiff had suffered a heart attack, but there was no forewarning that the heart attack would serve as the foundation for one of the key issues at trial. The question the defendant had properly propounded by interrogatory to the plaintiff was designed to determine whether or not the plaintiff was proceeding in court under a claim that the heart attack was caused by the broken step incident. The answer given in discovery was that no such contention was made. At the eleventh hour, it was revealed that the heart attack was, indeed, a principal claim. The plaintiff's only possible excuse for waiting until the last minute to notify the defendant of the claimed connection between the heart attack and the step accident would be that defense counsel ought to have guessed or...

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