Colon-Millin v. Sears Roebuck De Puerto Rico, Inc.
| Decision Date | 19 July 2006 |
| Docket Number | No. 05-1693.,05-1693. |
| Citation | 455 F.3d 30 |
| Court | U.S. Court of Appeals — First Circuit |
| Parties | Nilda COLÓN-MILLÍN, Plaintiff, Appellant, v. SEARS ROEBUCK DE PUERTO RICO, INC.; Luis A. Matos-Colón; Liberty Mutual Insurance Company, Defendants, Appellees. |
Edgardo Colón-Arrarás, with whom Victor J. Quiñones and Goldman Antonetti & Córdova, P.S.C. were on brief, for the appellants.
Francisco E. Colón-Ramírez, with whom Colón, Colón & Martínez, P.S.C. was on brief, for the appellees.
Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
Nilda Colón-Millín ("Colón") filed a tort action against Sears Roebuck of Puerto Rico, Luis Matos-Colón ("Matos"), his wife and their conjugal partnership, and Liberty Mutual Insurance Company,1 asserting that a Sears van, driven by Matos, struck her as she was walking across a street in San Juan, Puerto Rico. Her complaint, filed in federal district court on the basis of diversity jurisdiction, sought damages for pain and suffering, loss of income, and medical bills. After a two-day trial on the issue of liability, the jury returned a verdict for the defendants. Colón then filed a motion for a new trial, arguing that the defendants had ambushed her with allegedly perjured testimony challenging the identity of the police officer who investigated the accident. In support of her claim, Colón submitted the affidavit of a police officer who contradicted the defense witnesses' surprise testimony. Colón also argued that she should get a new trial because the district court erred in providing certain jury instructions and failed to give her an opportunity to state her objections to the jury instructions on the record.
The district court denied the plaintiff's motion, construing it as one based on "newly discovered evidence" and holding that she had not been sufficiently diligent in obtaining the police officer's affidavit or calling him as a witness during the trial. The court also rejected her arguments on the jury instructions.
We affirm on somewhat different grounds. Our review of the record reveals that the defendants did not comply with their obligation under Fed.R.Civ.P. 26(e)(2) to supplement their responses to the plaintiff's written interrogatories. This failure led to trial testimony that understandably surprised the plaintiff. Nevertheless, the plaintiff failed to respond to the surprise at trial in a manner that justifies a new trial. She did not object to the defense witnesses' testimony, and she did not request a continuance in order to respond or seek any other sanction for a discovery violation. Furthermore, the district court did not err in its jury instructions, and the plaintiff had the opportunity to state the grounds of her objections to the jury instructions on the record. We therefore conclude that the district court did not abuse its discretion in denying the plaintiff's motion for a new trial.
We summarize the evidence presented by the witnesses at trial. We then describe the plaintiff's response to the surprise testimony at trial and the discussion of the issue during closing arguments. Finally, we discuss the plaintiff's actions following the close of evidence, including her objections to the district court's jury instructions and her motion for a new trial.
In support of her case, Colón offered her testimony and that of two other witnesses: Officer José Ortiz-Lopez ("Officer Ortiz"), a police officer who arrived at the scene of the accident, and Percival Clouden, who had accompanied Colón to Puerto Rico.
Colón testified that she is a resident of St. Thomas, U.S. Virgin Islands, and was visiting Puerto Rico in February 1999. On the morning of February 25, 1999, she was struck by a Sears van as she crossed Ponce de León Avenue in San Juan. She had begun crossing the street while the van was at a complete stop, but then the van began to accelerate. The van struck her, flinging her onto the pavement. The driver, Matos, got out of the van, apologizing to Colón several times. Matos explained to Colón that he had been reading something for directions and then stepped on the accelerator; by the time he looked up and saw her, it was too late. Shortly after the accident, police arrived at the scene and an officer interviewed Colón. Clouden, who had accompanied Colón to Puerto Rico and was in the vicinity of the accident, then took her to the hospital.
Officer Ortiz testified that he and another police officer, Omar Sein, got to the scene of the accident shortly after it happened. Officer Sein directed traffic. Officer Ortiz interviewed Colón, Matos, and Clouden. He asked them if they knew of any other witnesses, but they did not identify anyone else. According to Officer Ortiz the descriptions of the accident by Colón and Matos were consistent. Matos explained to Officer Ortiz that he had been searching for something and did not notice the plaintiff crossing the street.
Several hours after the accident, Officer Ortiz prepared a police report in which he noted that Matos did not yield the right of way to Colón. According to Officer Ortiz, Matos went to the police station the day after the accident, but did not change his story or mention any other witnesses.
Clouden testified that he had accompanied Colón to Puerto Rico and was with her the day of the accident. He was walking up the street to meet her when the accident occurred. He did not see whether the van hit her, but saw her cross the street and, moments later, saw her lying in the street approximately five feet from the van. He saw the driver of the van speak to Colón. Clouden helped Colón up and out of the street. He recalled seeing a police officer at the scene.
The defendants presented the testimony of Matos; Luis Sierra-Rivera ("Sierra"), a witness to the accident; and Javier Rivera-Montañez ("Rivera"), a Sears Asset Protection Manager.
Matos testified that he had already started to drive forward when Colón ran out in front of his van, at which point he applied the brakes and stopped suddenly. Matos stated that the actual impact of the vehicle on Colón was minimal, but she was startled, lost her balance, and fell. Matos got out of the van and apologized, but never told Colón that he was looking for directions or was otherwise distracted just before the accident.
When Clouden came to help take Colón out of the street, Matos saw Sierra, a co-worker from Sears, who told Matos that he saw what happened and told him that he should contact Sears. Matos called Sears and spoke with Rivera, the Asset Protection Manager, who told Matos to wait for the police to arrive.
Officers Ortiz and Sein arrived at the scene. However, according to Matos, it was Officer Sein, not Officer Ortiz, who interviewed him. Matos informed Officer Sein that Sierra was a witness to the accident. Matos also testified that he met with Officer Sein, not Officer Ortiz, in the police station after the accident.
Rivera testified that Matos contacted him about the accident. As an Asset Protection Manager for Sears, Rivera filled out an accident report for the company after interviewing Matos and Sierra, whom the report identified as a witness to the accident. Rivera also accompanied Matos to the police station on a date after the accident, where he confirmed that he and Matos met with Officer Sein.
Sierra testified that he used to work for the Department of Agriculture, which is located near Ponce de León Avenue, in 1999. He worked there during the early morning hours and then worked part-time for Sears later in the day. On the morning of the accident, Sierra was walking by Ponce de León Avenue on his way to breakfast when he saw the Sears van. He observed the van stop to let some pedestrians cross in front of it. The van then started to move but stopped suddenly as a woman crossed quickly in its path. He said he saw her put her hands on top of the hood, lose her balance, and fall. He then saw Matos, whom he recognized as a Sears coworker, get out of the van and help the woman. Officer Sein arrived and spoke with Sierra. After telling Officer Sein what happened, Sierra left. Sierra was later interviewed by Rivera about the accident.
Plaintiff's counsel did not object to the defense witnesses' testimony regarding Officer Sein. He did not ask the court for a continuance so that he could call Officer Sein as a rebuttal witness, nor did he seek any other sanction for a discovery violation. Instead, during his cross-examinations of Rivera and Sierra, plaintiff's counsel asked both witnesses whether the defendants had called Officer Sein as a witness for the defense, which they had not. Later, during his closing argument, plaintiff's counsel focused on the fact that the defendants did not call Officer Sein as a witness:2
[R]egarding Mr. Matos, he mentioned that he only spoke to Officer Sein, the other policeman that was with Mr. Ortiz at the scene of the accident. The fact is that they knew about Officer Sein's existence since the date of the accident, since 1999. Yet Sears decided not to call him to testify. He did not come here to testify....
Now, why was Mr. Sein not brought? Was Sears afraid that Officer Sein would not corroborate Mr. Matos's version? Were they afraid that Officer Sein would have said that he never spoke with Matos at the scene of the accident[?] Even more important, were they afraid that he could corroborate that Matos stated that he had no witnesses[?] The fact is that Officer Sein did not come to testify.3
At no time during the trial did plaintiff's counsel argue to the district court that the testimony of the defense witnesses...
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