Geiserman v. MacDonald

• Decision Date: 07 February 1990
• Docket Number: No. 89-1015,89-1015
• Citation: 893 F.2d 787
• Parties: Robert GEISERMAN, Plaintiff-Appellant, v. John H. MacDONALD, et al., Defendants. A.B. & A.B. & Associates, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 787

893 F.2d 787

15 Fed.R.Serv.3d 799

Robert GEISERMAN, Plaintiff-Appellant, v. John H. MacDONALD, et al., Defendants A.B. & A.B. & Associates, Defendants-Appellees.

No. 89-1015.

United States Court of Appeals Fifth Circuit.

Feb. 7, 1990.

Gary B. Sack, Andrew C. Hall, Richard F. O'Brien, Hall, Poller & O'Brien, Miami, Fla., for plaintiff-appellant.

Paul M. Koning, Robert H. Mow, Jr., Hughes & Luce, Dallas, Tex., for Turner and Turner & Assoc.

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

Before GEE, JONES, and SMITH, Circuit Judges:

EDITH H. JONES, Circuit Judge:

I.

FACTS

Plaintiff-appellant, Robert Geiserman, filed suit against some business partners and the attorney who had represented them in a real estate venture. Geiserman alleged that an attorney, A.B., and his firm, A.B. and Associates (referred to as Attorney), represented the venture and the venture partners while contemporaneously representing an adverse party. The district court struck Geiserman's late-filed designation of an expert witness, refused to permit his untimely answers to interrogatories and granted summary judgment to appellee Attorney and his firm. ¹ We hold that the court's insistence upon enforcing discovery timetables was proper, and we affirm.

A. Geiserman's Allegations

In his complaint, Geiserman stated that he and other venture partners intended to develop a shopping center. The venture entered into a lease agreement with Racquetball Resorts International, which was controlled by Finley, one of the venture partners. When Finley decided to sell his interests in Racquetball Resorts, he wanted to renegotiate the lease terms to make Racquetball Resorts more attractive to prospective purchasers. Geiserman alleged that Attorney and the other venture partners conspired to modify the lease terms to the venture's detriment. Geiserman also contended that Attorney represented Finley's individual interests, Racquetball Resorts' interests and the joint venture's interest simultaneously and adversely to the joint venture.

From these allegations, Geiserman concocted causes of action for legal malpractice and breach of fiduciary duty against Attorney and his firm.

B. Proceedings in the District Court

The case was filed in June 1987. Pursuant to a scheduling order dated January 19, 1988, the case was to proceed along the following schedule: the trial was set for December 5, 1988; discovery was to be completed by October 3, 1988; the plaintiff was to "file a written designation of its expert witnesses at least 90 days before trial", and the defendants were to designate their expert witnesses at least 75 days before trial.

Geiserman missed, without timely explanation, two deadlines for identifying his expert witnesses. On July 28, 1988, Attorney inquired in interrogatories as to the identity of Geiserman's expert witnesses. These interrogatories were not answered by the August 29, 1988 deadline. ² Moreover, Geiserman's motion for an enlargement of time to respond to the interrogatories, filed September 1, was denied because he failed to show good cause for the extension. The court denied a subsequent request for extension, which was filed on September 26, the following day.

Second, Geiserman did not designate any expert witnesses by the September 6 deadline imposed by the court's scheduling order and also required by Local Rule 8.1(c). ³ Without leave of court, however, on September 22, Geiserman attempted to designate two expert witnesses. This designation was later amended because the attorney expert witness declined to participate.

Responding to Geiserman's delays in the face of the impending discovery deadline, Attorney filed several motions: one to dismiss or alternatively to preclude evidence as a sanction for failure to answer the interrogatories and for summary judgment; and a motion to strike Geiserman's untimely expert witness designation.

On November 3, the court ruled on the various pending motions. The court granted Attorney's motion to strike Geiserman's expert witness designations and denied Attorney's motion to dismiss as a sanction. The court initially denied Attorney's motion for summary judgment based on Geiserman's contention that some of his claims against Attorney could proceed without expert testimony. Upon a later motion for reconsideration, however, the court found that Geiserman failed to support his malpractice claim with sufficient summary judgment evidence, expert or otherwise, to avoid summary judgment. ⁴

Geiserman raises several objections on appeal. First, Geiserman contends that the court improperly struck his expert witness designations. Geiserman also argues that the court erred in disregarding evidence that he offered in opposition to the summary judgment. Finally, Geiserman contends that the court erred in granting summary judgment against him.

II.

ENFORCEMENT OF DISCOVERY ORDERS

Without disputing that he missed two deadlines for designating expert witnesses, ⁵ as recited above, Geiserman complains that the district court improperly prevented him from presenting expert testimony to support his claims of legal malpractice against Attorney.

The court's order striking the late expert witness designation and precluding any expert witness testimony involves both the enforcement of a scheduling order and the enforcement of local rules. We review either type of order under the abuse of discretion standard. See Bradley v. United States, 866 F.2d 120, 124 (5th Cir.1989) (amendment of pretrial order); Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1157-58 (5th Cir.1985) (refusal to allow expert testimony because of late designation).

Rule 16(b) of the Federal Rules of Civil Procedure authorizes the district court to control and expedite pretrial discovery through a scheduling order. Consistent with the authority vested in the trial court by rule 16, our court gives the trial court "broad discretion to preserve the integrity and purpose of the pretrial order." Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.1979) (affirmed refusal to modify pre-trial order); see also Fed.R.Civ.P. 16(b), Advisory Committee Note (trial court may modify scheduling order for good cause). Moreover, a trial court's decision to exclude evidence as a means of enforcing a pretrial order "must not be disturbed" absent a clear abuse of discretion. See Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971); Fed.R.Civ.P. 16(f) We review the court's exercise of discretion to exclude evidence that was not properly designated by considering the following four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Bradley, 866 F.2d at 125 (citing Murphy v. Magnolia Electric Power Ass'n, 639 F.2d 232, 235 (5th Cir.1981)). Preliminarily, we note that in excluding the evidence, the court was merely enforcing the deadlines plainly set out in the court order and local rule for designating witnesses.

(court may sanction party's failure to comply with scheduling order by excluding evidence).

The reasons offered by Geiserman for his failure to timely designate are weak, at best. He asserts that the pretrial order did not specify a deadline date for designation. This is incredible, because the scheduling order and local rule 8.1(c) plainly impose a deadline to designate his expert witnesses at least 90 days before trial. One does not require a legal degree to count back 90 days from the scheduled trial date of December 5, which the pretrial order contained. The second excuse, that the omission resulted from a scheduling mistake in counsel's office, is not the type of satisfactory explanation for which relief may be granted. See Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1158 (5th Cir.1985) (plaintiff should have been aware of need for expert testimony and claim of last minute need is meritless).

The next factor for our consideration involves the relative importance of the excluded testimony. In his response to Attorney's motion to exclude expert testimony, Geiserman stated that expert testimony would be useful to assist the jury in determining complex issues, but he also stated that some of his claims of malpractice could be proven without expert testimony. Subsequently, however, he stated that expert testimony was essential "for complete proof of the majority of the malpractice claims against the [Attorney Defendants". While expert testimony is necessary to establish the standard of care and possible breach in most legal malpractice cases, such testimony is not critical if the allegation of negligence is apparent to a lay person or established as a matter of law. ⁶ We shall assume arguendo that expert testimony was significant to Geiserman's case--so much the more reason to be sure its introduction was properly grounded.

Geiserman argues that a delay of a couple weeks in designating the expert witness would not have caused any prejudice to Attorney. Such delay, however, would have disrupted the court's discovery schedule and the opponent's preparation. Attorney stated that his own trial strategy was affected by Geiserman's extensive delay in answering interrogatories and similar delay in designating any expert witness. Attorney explained that he chose and designated his own expert witness in "reliance on Plaintiff's apparent decision to forgo expert testimony." ⁷ Attorney also argued that he would be unable to prepare for and take the depositions of Geiserman's proposed experts before the discovery deadline of October 3. Turner also mentioned the expense that would result from an extended discovery schedule for Geiserman's failure to adhere to deadlines. Although Attorney might not suffer the degree of unfair surprise associated with the last-second designation of an unscheduled witness, see Bradley, 866 F.2d...