687 F.2d 108 (5th Cir. 1982), 82-2021, Conway v. Chemical Leaman Tank Lines, Inc.

Docket Nº:82-2021.
Citation:687 F.2d 108
Party Name:Ruby CONWAY, et al., Plaintiffs-Appellees, v. CHEMICAL LEAMAN TANK LINES, INC., Defendant-Appellant.
Case Date:September 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 108

687 F.2d 108 (5th Cir. 1982)

Ruby CONWAY, et al., Plaintiffs-Appellees,

v.

CHEMICAL LEAMAN TANK LINES, INC., Defendant-Appellant.

No. 82-2021.

United States Court of Appeals, Fifth Circuit

September 27, 1982

Page 109

Dale Dowell, Beaumont, Tex., for defendant-appellant.

Harold Peterson, Beaumont, Tex., for plaintiffs-appellees.

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

Before THORNBERRY, JOHNSON and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

This is the fourth time this diversity action has been before this Court on appeal. This case has been tried before a jury on three different occasions: in June 1974, in January 1977, and in June 1977. The issue in the instant appeal is whether the district court abused its discretion in granting a new trial because the defendant, Chemical Leaman Tank Lines, Inc. (Chemical Leaman), introduced a surprise expert witness in the second trial. We hold that the district court did not abuse its discretion.

I. Background

This tort action arose when two heavy tank trucks sideswiped each other near the centerline of a highway in Liberty County, Texas at approximately 4:00 a. m. on September 14, 1972. The westbound truck, owned by Dixie Transport of Texas, Inc. (Dixie Transport), lost its left front tire at impact, veered off the road to the left, and overturned, killing its driver, Robert Eugene Conway. Conway's widow, sons, and Dixie Transport brought this action against Chemical Leaman, owner of the eastbound truck involved in the collision. The essence of plaintiffs' contention is that the Chemical Leaman truck negligently crossed over the centerline of the highway, striking the oncoming Dixie Transport truck driven by Conway.

The only living eyewitness to the collision was Chemical Leaman's driver, John Johnson, who testified that Conway suddenly turned onto Johnson's side of the road when the vehicles were about a truck-length apart, both traveling about fifty miles per hour. Crucial to Johnson's credibility before the jury was the expert witness testimony concerning the various marks made by the trucks at the site of the collision. The expert witness testimony involved the tire marks in Dixie Transport's (Conway's) westbound lane, in Chemical Leaman's (Johnson's) eastbound lane, the gouge marks, and the physical dimensions of the trucks and the road.

At the first jury trial in 1974, Dixie Transport's safety director and an accident reconstruction expert testified that the tire marks were skid marks which indicated that Conway was properly in his right hand lane just before the collision, while Johnson's left wheels were over the centerline in Conway's lane. Expert witnesses for the defendant, Charles Ruble and Dr. William Tonn, testified, however, that it was Conway's

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truck which was driven on the wrong side of the roadway at the time of the collision, while Johnson's truck was in its proper lane. After hearing this testimony, the jury returned its verdict which was favorable to the plaintiffs. On appeal, this Court reversed and remanded on the grounds that the district court failed to admit certain impeachment evidence. Conway v. Chemical Leaman, Inc., (Conway I), 525 F.2d 927 (5th Cir.), modified on petition for rehearing, 540 F.2d 837 (5th Cir. 1976).

At the second jury trial in January of 1977, the plaintiffs' witnesses again testified that tire marks indicated Chemical Leaman's truck had crossed the centerline and caused the collision. After the plaintiffs had rested their case, the defendant's counsel failed to call to the stand the two expert witnesses it had called in the previous trial, Ruble and Tonn. Instead, Chemical Leaman's safety director, Arnold Hay, was called to testify.

Hay had been designated as the representative for Chemical Leaman at the beginning of the first trial and occupied that position throughout all of that proceeding. Hay's name was not placed on the list of witnesses in the court's pre-trial order and such order specifically required notification of any further witnesses to the other party five days prior to trial. Further, and still at the first trial, Hay was not sworn in at the time of the swearing of witnesses. Hay sat at the defendant's counsel table as the representative of Chemical Leaman, assisting defendant's counsel throughout the entire trial.

When the second trial began, Hay again took his position as the representative of Chemical Leaman at the defendant's counsel table. Again, he was not listed as a witness. Again, he was not sworn to testify. No indication of any kind was given to the court or to opposing counsel that Hay would testify or be a witness at the second...

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