Duffy v. Clippinger, s. 88-1236

• Decision Date: 19 October 1988
• Docket Number: 88-1290 and 88-1237,Nos. 88-1236,s. 88-1236
• Citation: 857 F.2d 877
• Parties: Mary T. DUFFY, Individually and as Administratrix of the Estate of Brendan M. Duffy, Plaintiff, Appellant, v. Donald E. CLIPPINGER and William Y. Ross, Defendants, Appellees (Two Cases). Appeal of William Y. ROSS, Defendant.
• Court: U.S. Court of Appeals — First Circuit

Page 877

857 F.2d 877

Mary T. DUFFY, Individually and as Administratrix of the Estate of Brendan M. Duffy, Plaintiff, Appellant, v. Donald E. CLIPPINGER and William Y. Ross, Defendants,

Appellees (Two Cases).

Appeal of William Y. ROSS, Defendant.

Nos. 88-1236, 88-1290 and 88-1237.

United States Court of Appeals, First Circuit.

Submitted Sept. 1, 1988.

Decided Sept. 21, 1988.

Rehearing and Rehearing En Banc Denied Oct. 19, 1988.

John B. Johnson, John C. Corrigan, Jr., and Corrigan & Johnson, Boston, Mass., on brief for Mary T. Duffy.

Gerald F. Blair and Avery, Dooley, Post & Avery, Belmont, Mass., on briefs for William Y. Ross.

Armand Fernandes, Jr., and Law Office of Armand Fernandes, Jr., New Bedford, Mass., on brief for Sea View Hotel, Inc.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

This appeal raises the question whether the district court was within its discretion when it denied plaintiff's motion for a new trial, after a jury trial at which a late-discovered witness was not allowed to testify. In the special circumstances of this case, we hold that the district court abused its discretion and that a new trial should be held.

This was a diversity action for negligence. A car driven by William Ross struck and killed an intoxicated pedestrian, Brendan Duffy, on Martha's Vineyard. The plaintiff, Duffy's widow, sued Ross for wrongful death, claiming that he was driving negligently. She also sued the Sea View Hotel ("the Hotel"), alleging that its bar had continued to serve drinks to Duffy even when he was intoxicated, thus rendering him less able to protect himself from the oncoming car. ¹

Several days before the trial began, the Hotel's attorney located a previously undiscovered eyewitness to the accident, Peter Caines. At the court's request, Caines was deposed, this not occurring until the afternoon following the second day of the four-day trial. In his deposition testimony, Caines provided a strikingly different account of the accident than that provided by defendant Ross. Where Ross had testified that he was driving at the 20 mile per hour speed limit, Caines estimated that Ross was driving at twice that speed. And where Ross had testified that Duffy fell backward from the side of the road into the path of Ross's car, Caines reported that Duffy was standing near the middle of the road when he was struck.

On the third day of the trial, Ross's attorney objected strenuously to permitting Caines to testify, protesting that Ross had been unfairly surprised and that his trial strategy--now that plaintiff had presented two days of testimony--would be undone. The court agreed that allowing Caines to testify might unfairly prejudice Ross, "in the sense ... not that this witness is against him but unfairly in the sense that he might very well have conducted a different cross-examination of the witnesses that he did cross-examine." In a lobby conference, the Hotel's lawyer suggested that the trial proceed without Caines's testimony, with the understanding that the court would later entertain a motion for a new trial by plaintiff or by the Hotel, if they deemed that to be necessary. Plaintiff agreed with that alternative, and it was adopted by the court. Ross's attorney did not object to this arrangement.

After the four-day trial, the jury returned a verdict assessing damages at $614,000, and finding the following distribution of fault: the Hotel, 60 percent; the decedent Duffy, 40 percent; and the driver Ross, 0 percent. While the jury was deliberating, plaintiff entered into a settlement with the Hotel for approximately $39,000.

Following the verdict, plaintiff moved for a new trial, on account of the exclusion of Caines's testimony. After briefing and a hearing, the district court denied the motion, primarily on the ground that Caines's testimony "is cumulative and that it would not likely effect a different verdict." Plaintiff's motion to reconsider this ruling was also denied. Plaintiff now appeals from these rulings.

A motion for a new trial is addressed to the district court's discretion. The district court's ruling should not be overturned unless the court of appeals finds an abuse of that discretion. Conrad v. Graf Brothers, Inc., 412 F.2d 135, 139 (1st Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969); Kargman v. Sullivan, 582 F.2d 131, 135 (1st Cir.1978).

In order to grant a motion for a new trial on the basis of newly discovered evidence, the following elements must be present:

1) The evidence has been discovered since the trial;

2) The evidence could not by due diligence have been discovered earlier by the movant;

3) The evidence is not merely cumulative or impeaching; and

4) The evidence is of such nature that it would probably change the result if a new trial is granted. Lloyd v. Gill, 406 F.2d 585, 587 (5th Cir.1969). See also Conrad v. Graf Brothers, Inc., 412 F.2d at 139 n. 5 (citing Johnson v. United States, 32 F.2d 127, 130 (8th Cir.1929)). ²

We examine in turn each of these four elements.

1) The Evidence Must Have Been Discovered Since Trial.

Defendant driver Ross argues that the new evidence in this case was discovered before or during, not after trial, and so there is no basis for a new trial. This argument might well be dispositive if Ross had not opposed allowing the witness to testify at the first trial, then still in progress, and had not failed to object to the court's proposed course that "we continue with the trial without the new witness's testimony, and that I would then entertain a motion for a new trial...." In light of Ross's acquiescence in this procedure--created as a mechanism to allow the court to oblige Ross in his claim of unfair surprise, and yet preserve for plaintiff her right to have the value of this witness ultimately assessed--we must decline to rely on this element.

2) The Evidence Could Not By Due Diligence Have Been Discovered Earlier by The Movant.

The new witness was discovered not by the present movant (plaintiff Duffy), but by the defendant Hotel. There is no serious question about the Hotel's diligence. At trial, the district court specifically found that "counsel had been diligent, and it was just a fluke that this witness was found late in the game." That the witness was discovered by the Hotel and not by the movant (plaintiff) does not, without more, show that plaintiff was not diligent in her search for witnesses or that she could have found Caines any sooner than did the Hotel.

3) The Evidence Is Not Merely Cumulative Or Impeaching.

Although the district court found Caines's testimony to be merely "cumulative," this judgment is not borne out by the record. There were three eyewitness accounts of the accident presented to the jury: those of William Ross (the defendant driver), Bernard Wagner (a friend of the decedent, who had traveled to Martha's Vineyard with him), and Peter Erickson. The crucial parts of their testimony, as it related to Ross's culpability, concerned the speed at which Ross's car was traveling and the location and movement of the decedent on the road just before he was struck. Also of relevance are the vantage point, observation time, and, in some instances, degree of sobriety of the eyewitnesses at the time they made their observations. The following is a synopsis of the crucial parts of their testimony:

A. William Ross, the defendant driver, testified that he was driving at the speed limit, 20 miles per hour. He said that Duffy, the decedent, fell backwards from the side of the road into the path of Ross's car. There was only a split second between the time that Ross saw Duffy and the impact.

B. Bernard Wagner, Duffy's companion, was not available at the trial and testified by deposition. Wagner had been drinking with Duffy for many hours--as many as 15 beers and six or seven shots of Jack Daniels and Sambuca--and admitted that he (Wagner) was "tipsy" and "groggy" at the time he observed the accident. He testified that Duffy walked into the middle of Sea View Avenue and was hit as he...