Boone v. Moore, 92-1176
| Decision Date | 02 December 1992 |
| Docket Number | No. 92-1176,92-1176 |
| Citation | 980 F.2d 539 |
| Parties | 37 Fed. R. Evid. Serv. 84 James BOONE, also known as Eddie Boone, Appellant, v. Dick D. MOORE, Director of Corrections Department; Ernest L. Cowles, Ph. D., Division Director, Appellees, John Doe, Defendant, Dorothy Yount; Nicki Cole Nicks; Suzanne Donaldson; Sheila Kaye Morrison, all in their ind. capacities and in their official capacities as employees for the State of MO, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Susan Nell Rowe, St. Louis, Mo., argued, for appellant.
Christine A. Alsop, Asst. Atty. Gen., Jefferson City, Mo., argued, for appellees.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and LOKEN, Circuit Judge.
James Ray Boone brought this § 1983 action, alleging he was deprived of medical treatment while incarcerated at the Missouri Training Center for Men (MTCM). A jury returned a verdict in favor of the defendants. Boone appeals, asserting the trial court erred in admitting the testimony of an expert witness. We affirm.
Boone was incarcerated at MTCM between September 1985 and April 1986. He was first placed in protective custody, then general population, and finally a special management unit. Defendant Nicki Cole Nicks was Boone's caseworker while he was in general population.
During the six months he was at MTCM, Boone sought and received medical treatment on numerous occasions. Boone was seen and/or provided medication from defendant Sheila Morrison, an evening shift medical assistant, defendant Suzanne Donaldson, an evening shift nurse, and defendant Dorothy Yount, the Health Care Supervisor, who worked during the day. During the times relevant to this action, defendant Ernest Cowles, Ph.D., was the Director of the Classification and Treatment division and handled the medical grievance appeals from MTCM. Defendant Moore was the Director of the Missouri Department of Corrections.
Boone stayed at MTCM for six months, after which he was transferred to the federal prison at Terre Haute, Indiana, where he was treated by Dr. Jordan Burkey, an ear, throat and nose specialist. As part of his treatment, Dr. Burkey referred Boone to Steven Angell, an audiologist, who tested his hearing. Mr. Angell prepared a report, indicating Boone was feigning much of his hearing loss. Although Dr. Burkey believed that much of Boone's problem derived from his sinus area, he did ultimately perform surgery on his nose, sinus and ear areas.
Boone brought suit against defendants Moore, Yount, Cowles, Nicks, Donaldson and Morrison (the defendants), alleging they violated his eighth amendment right of prohibition against cruel and unusual punishment. He asserts that during his six-month stay at MTCM, he notified the defendants on numerous occasions of bleeding and pain in his right ear and that they repeatedly refused his requests for treatment. He claims he subsequently filed several grievances with defendants Moore and Cowles, all of which were either denied or ignored.
The case was tried before a jury, which, on December 12, 1991, returned a verdict for the defendants. Boone files this appeal.
Boone first argues the district court erred in allowing Dr. Burkey to testify because the defendants failed to properly identify him in response to one of Boone's interrogatories.
Early on in this litigation and in accordance with Fed.R.Civ.P. 26(b)(4)(A)(i), Boone sent the defendants the following interrogatory:
State the name, address, telephone number, and occupation of each person whom you expect to call as an expert witness at the trial of this cause and state the general nature of the subject matter on which each expert is expected to testify.
App. at 71. On October 30, 1989, Moore and Cowles responded, stating:
At the present time the defendants have not decided whether they will call an expert witness to testify in the matter. The specific information sought in this interrogatory will be provided to the plaintiff if, and when, the defendants decide which expert witnesses they will call.
Although the defendants never supplemented their response to Boone's interrogatory, defendants' counsel did tell Boone's counsel at a deposition of Boone's expert three weeks before trial that he intended to call Dr. Burkey as both a fact and expert witness. At the pretrial hearing, ten days before trial, the defendants submitted their witness list, which included Dr. Burkey's name. Boone filed a motion in limine to exclude Dr. Burkey's testimony on the grounds his disclosure was untimely. The motion was denied. 1
Boone argues that as a result of the defendants' failure to properly identify Dr. Burkey, he had insufficient time to properly prepare for his testimony. He contends the district court, under Local Rule 33 of the United States District Court for the Eastern District of Missouri, had no discretion to admit Dr. Burkey's testimony; that the defendants' failure to comply with the rule barred Dr. Burkey's expert testimony. 2
The defendants argue the district court properly admitted the testimony. They contend even if the district court did err in allowing the testimony, the error was harmless because the jury could have inferred Dr. Burkey's expert testimony from his fact witness testimony and the other evidence supporting the jury's verdict. They assert that, in any event, Boone fails to explain how he was prejudiced by notice of the testimony three weeks before trial.
We will not disturb the district court's decision to allow Dr. Burkey to give expert testimony unless there is present a gross abuse of discretion, which resulted in fundamental unfairness at the trial. Wilson v. Beloit Corp., 921 F.2d 765, 768-69 (8th Cir.1990).
In Patterson v. F.W. Woolworth Co., 786 F.2d 874, 879 (8th Cir.1986), we stated the factors courts should consider in determining "whether to exclude the testimony of a witness not made known in a manner complying with a pretrial order...." Those factors are: (1) the reason the party fails to name the witness; (2) the importance of the testimony; (3) the amount of time the opposing party needs to properly prepare for the testimony; and (4) whether a continuance would in some way be useful. Id. (applying Murphy v. Magnolia Electric Power Ass'n, 639 F.2d 232, 235 (5th Cir.1981)).
The defendants refer us to Patterson, but fail to tell us any reason for waiting as long as they did in...
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