Bobb v. Modern Products, Inc.

• Decision Date: 26 June 1981
• Docket Number: No. 79-3475,79-3475
• Citation: 648 F.2d 1051
• Parties: 8 Fed. R. Evid. Serv. 812 Ted Lewis BOBB, Individually, Plaintiff-Appellant, v. MODERN PRODUCTS, INC., et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1051

648 F.2d 1051

8 Fed. R. Evid. Serv. 812

Ted Lewis BOBB, Individually, Plaintiff-Appellant, v. MODERN PRODUCTS, INC., et al., Defendants-Appellees.

No. 79-3475.

United States Court of Appeals, Fifth Circuit.

Unit B

June 26, 1981.

Bailey & Dawes, John H. Adams, Miami, Fla., for plaintiff-appellant.

Brendan P. O'Sullivan, Tampa, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, MORGAN and HENDERSON, Circuit Judges.

MORGAN, Circuit Judge.

Ted Lewis Bobb, a resident of the Republic of Guyana, sued the American owners and managers of the shrimp trawler, "Sea Knight" for their negligence under the Jones Act, 46 U.S.C. § 688, and for the unseaworthiness of their vessel under general maritime law. The suit arose from an injury to Bobb's left arm which occurred when a whip line snapped on the ship, breaking Bobb's arm and knocking him to the deck. At trial the district judge directed a verdict in favor of all defendants except Modern Products, Inc., and the jury returned a verdict for Bobb in the amount of $6,000.00. The judge reduced this verdict by half because of the jury's additional special finding that Bobb was fifty percent contributorily negligent. The plaintiff raises several issues on appeal: (1) whether the district judge erred in refusing to allow into evidence the deposition of one of the plaintiff's expert witnesses while permitting the defendant to cross-examine from that same doctor's medical report, (2) whether the judge erred in failing to direct a verdict of zero contributory negligence by the plaintiff, and (3) whether the jury's verdict was inadequate and contrary to the evidence. Reversing on the basis of the improper use of a hearsay report in cross-examination, we remand for a new trial.

I.

This maritime saga began aboard the good ship "Sea Knight". Appellant was employed as a seaman on a shrimp trawler owned and operated by Modern Products, Inc. On October 31, 1975, the boat was shrimping in the waters of the Atlantic Ocean near Guyana. While the ship nets were being raised, appellant Bobb, following the suggestion of his fellow crewman, attempted to attach a second whip line to the shrimp bags on the starboard side of the ship. The nets were unusually full, and the first whip line, obviously frayed and worn, did not appear strong enough to withstand the strain of the load. While Bobb was engaged in the task of attempting to attach the second whip line, the first line snapped, striking and breaking his left arm, and throwing him to the deck. Bobb suffered through the pain of the injury for several hours without medication or relief until the boat could return to port to obtain medical attention for him.

After arriving at port, plaintiff was carried to Mercy Hospital in Guyana. The next morning a Dr. Searwar set his arm in a cast, and after approximately two weeks plaintiff was released from the hospital. The case was removed on March 4, 1976, and on April 15, 1976, Dr. Searwar told plaintiff that he was able to return to work. Despite the doctor's suggestion of fitness, however, plaintiff did not return to work as a seaman because of pain he claimed continued to exist in his left arm.

II.

The first issue before this court involves the use by the defendant's counsel on cross-examination of a medical report issued by an expert whose deposition plaintiff was denied the right to utilize at trial. Plaintiff-appellant challenges both the decision by the trial judge disallowing the use by the plaintiff of the doctor's deposition and the subsequent decision by the court permitting the defendant's use of that same doctor's report to cross-examine the plaintiff's expert witness whom the court allowed to testify. Although we find no error in the trial court's refusal to admit the expert's deposition, we find reversible error in the judge's subsequent ruling permitting use by the defendant of that doctor's report, and accordingly we remand for a new trial.

A short time before the pre-trial conference plaintiff learned that Dr. Millheiser, the medical expert he had planned to use as his expert at trial, would be performing surgery in Tampa on the day of the trial and would not be available to testify. Because of Dr. Millheiser's unavailability, plaintiff listed Dr. Punraj Singh in the pre-trial order as his expert witness, although defendant had not previously been notified of Dr. Singh's knowledge of the case. Meanwhile plaintiff's attorney scheduled the deposition of Dr. Millheiser for September 6, 1978, to preserve his testimony for trial in the event he would be permitted to use Dr. Millheiser as an expert witness. Plaintiff notified the defendant's counsel of the deposition on October 31, 1978. Defendant's counsel, however, relying on the court's pre-trial order setting August 1, 1979 (extended to August 31, 1979 by agreement of the parties) as the cut-off date for discovery, failed to attend, and the deposition of Dr. Millheiser was taken without the benefit of cross-examination by defendant's counsel.

At trial defendant's counsel objected to the use of Dr. Singh as an expert witness because of improper discovery practices by the plaintiff. Ruling in favor of defendant's motion to strike Dr. Singh as plaintiff's witness, the judge initially agreed to permit Dr. Millheiser's deposition to be used as plaintiff's expert witness. However, when the judge learned that the deposition was taken on improper notice to the defendant's counsel and without the benefit of cross-examination, the judge disallowed the use of the deposition. The judge permitted Dr. Singh to testify in order to allow the plaintiff at least one expert witness; however, there were procedural problems with both the notice to defendant concerning Dr. Singh and the taking of the deposition of Dr. Millheiser. Despite the judge's attempt to deal fairly with both parties, plaintiff argues that he had an absolute right to introduce the deposition of Dr. Millheiser at trial.

Plaintiff's contention is without merit. Use of a deposition at trial is discretionary with the trial judge, and the judge's decision will not be overturned except for abuse of that discretion. See Reeg v. Shaughnessy, 570 F.2d 309 (10th Cir. 1978); Sims Consolidated, Ltd. v. Irrigation and Power Equipment, Inc., 518 F.2d 413 (10th Cir. 1975). Rule 32(a) of the Federal Rules of Civil Procedure, concerning the use of a deposition, provides in pertinent part that "a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof " The rule implies a principle of fairness requiring that the opposing party have the right or opportunity to be present at the deposition. See Wong Ho v. Dulles, 261 F.2d 456 (9th Cir. 1958); Klein v. Tabatchnick, 459 F.Supp. 707 (S.D.N.Y.1978) (depositions admitted where proper notice and opportunity to cross-examine). In a case such as this one, where problems with discovery existed from the beginning of the case, we cannot say that the trial judge abused his discretion in prohibiting the use of a deposition not subject to cross-examination. Relying on the local rules of the Middle District of Florida requiring ten day notice before the taking of a deposition, ¹ the trial judge concluded that the defendant had short notice and was not able to attend. Apparently, the judge also assumed that the testimony in the deposition was cumulative to the live testimony of Dr. Singh. Cumulative evidence may be excluded in the judge's discretion. Liner v. J. B. Talley and Co., Inc., 618 F.2d 327, 331 (5th Cir. 1980). In this case we hold that the district judge did not err in disallowing the use of a deposition taken at a time when defendant's counsel could not be present. ²

Although we find that the district judge did not err in prohibiting the use of the deposition, we hold that the judge did commit reversible error when he permitted the defendant's counsel to question the plaintiff's expert from the report of the doctor whose deposition was excluded. Wide latitude is usually given to a cross-examiner in his attempts to discredit the witness. However, cross-examination which attempts to impeach by slipping hearsay evidence into the trial will not be permitted, particularly in a case such as this one where the cross-examiner had previously succeeded in keeping out closely related evidence.

Although this case involves no formal introduction of hearsay evidence into the trial, the defendant's counsel used statements from a report not in evidence to attempt to impeach the plaintiff's witness. In Bryan v. John Bean Division of FMC Corp., 566 F.2d 541 (5th Cir. 1978), a cross-examining plaintiff's counsel paraphrased parts of two experts' reports, read from them verbatim, and referred to them in his closing argument. In that case the court held that the evidence was inadmissible under Rule 705 to show the basis of the expert's opinion or for impeachment purposes. In denying inadmissibility for impeachment purposes, the court relied on the earlier case of Box v. Swindle, 306 F.2d 882 (5th Cir. 1962), stating:

In Box v. Swindle, supra, this circuit held that reports of others examined by a testifying expert and conflicting with the testimony of the expert could not be admitted even as impeachment evidence unless the testifying expert based his opinion on the opinion in the examined report or testified directly from the report.

Id. at 546. The rule established in Swindle and applied in Bryan v. John Bean Division of FMC Corp., supra, indicates that the utilization of the expert's report on cross-examination was improper. Plaintiff's witness did not state that he had relied on the report, even though he had admitted that he had seen it. Until defendant established that plaintiff had relied on the report of the other doctor, it was improper for the defendant to read from...