Hoffman v. Caterpillar, Inc.

Citation368 F.3d 709
Decision Date11 May 2004
Docket NumberNo. 03-1604.,03-1604.
PartiesShirley HOFFMAN, Plaintiff-Appellant, v. CATERPILLAR, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William M. Anderson (argued), Creve Coeur, IL, for Plaintiff-Appellant.

Joseph S. Turner (argued), Seyfarth Shaw, Chicago, IL, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Shirley Hoffman, who is missing her left arm below the elbow, brought this employment discrimination case under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Hoffman alleged that her employer, Caterpillar, Inc., engaged in unlawful disparate treatment by refusing to train her to operate a high-speed document scanner. The case proceeded to trial and on February 6, 2003, the jury returned a verdict for Caterpillar. Hoffman now appeals, challenging myriad rulings, the jury instructions, and the denial of Hoffman's motion to disqualify Judge McDade under 28 U.S.C. § 144. We affirm for the reasons outlined below.

I. History

Hoffman began work in Caterpillar's Optical Services Department ("OSD") in April of 1996. The OSD digitally scans paper and electronic documents for various Caterpillar business units. In 1998, Hoffman requested training on a Fujitsu 3099 document scanner, also know as the "high-speed scanner." Because Hoffman's supervisor, Lynn Cripe, did not believe that a person with only one hand could operate the high-speed scanner at Caterpillar's required production and quality standards, Hoffman's training request was denied. As a result, Hoffman sued Caterpillar, claiming that Caterpillar violated the ADA by engaging in disparate treatment and by failing to accommodate her disability.1

After discovery, the district court granted Caterpillar's summary judgment motion as to each of Hoffman's claims. Upon appeal, we reversed only with respect to the disparate treatment claim and remanded for trial.2 Hoffman v. Caterpillar, Inc., 256 F.3d 568, 570-71 (7th Cir.2001) ("Hoffman I"). Specifically, we held that "[i]n order to recover, Hoffman must show that she is physically capable of running the high-speed scanner, but she is not required to make a separate showing that the denial of training was a materially adverse employment action." Id. at 576. Because running the high-speed scanner was a non-essential job function, see supra note 2, we indicated that Caterpillar's refusal to train Hoffman amounted to illegal disparate treatment in violation of the ADA only if Hoffman was capable of running the machine at Caterpillar's required levels of productivity. Id. at 573, 576.

Upon remand, the district court issued numerous evidentiary pre-trial orders and denied the Plaintiff's motion to disqualify Judge McDade (the presiding judge) under 28 U.S.C. § 144. During trial, the court considered various objections and requests, and took steps to ensure that the trial proceeded efficiently and fairly. Prior to closing arguments, the court ruled upon permissible closing arguments and the jury instructions, and granted a directed verdict for Caterpillar with respect to punitive damages. The jury returned a verdict for Caterpillar. In this appeal, Hoffman contests many of the district court's rulings.

II. Analysis

Hoffman raises numerous issues on appeal, which we address in three groups: evidentiary and trial management rulings; challenges to the impartiality of Judge McDade; and the suitability of punitive damages. To begin, we will consider whether the district court abused its discretion when it: (1) excluded certain portions of expert testimony offered by Hoffman; (2) refused to prohibit Caterpillar from offering argument and evidence about Hoffman's inability to operate the scanner at the required production levels; and (3) refused to give a "missing witness" instruction and relatedly, prohibited Hoffman from asserting, in closing arguments, that an adverse inference may be drawn against Caterpillar because Caterpillar's expert did not testify. Next, we will (1) review de novo the district court's denial of Hoffman's motion to disqualify Judge McDade under 28 U.S.C. § 144; and (2) consider Hoffman's assertion that the judge's actions at trial were so prejudicial as to deprive Hoffman of a fair trial. And finally, we will review de novo the district court's grant of a "directed verdict" (or a judgment as a matter of law) in favor of Caterpillar on the issue of punitive damages.

A. Evidentiary and trial management rulings reviewed for abuse of discretion

1. Expert opinions regarding Hoffman's ability to operate the scanner

Hoffman challenges the district court's rulings which excluded portions of proposed testimony from Hoffman's expert, Steven Lavender. Specifically, on March 28, 2002, after considering the factors enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district court ruled that although neither Hoffman's expert nor Caterpillar's expert would be allowed to offer opinions as to Hoffman's ability to operate the high-speed scanner at mandated production levels both would be allowed to testify generally about whether a one-handed person could operate the machine at established standards. The court reasoned that because neither expert had personally observed Hoffman operating the scanner, such testimony could not be based upon "sufficient facts or data" as required under Rule 702 of the Federal Rules of Evidence.

Following the March 28 order, Hoffman received training on how to operate the scanner and on August 22, 2002, was videotaped operating it for an eight-hour period. On February 3, 2003, the first day of trial, Hoffman asked the district court to revisit its March 28 order prohibiting testimony by Lavender about Hoffman's ability to operate the scanner. The testimony should be allowed, the plaintiff reasoned, because Lavender viewed the videotape, and therefore had a sufficient basis to conclude that Hoffman could operate the machine at established standards. The district court denied Hoffman's request. We review this decision for abuse of discretion. Miksis v. Howard, 106 F.3d 754, 758 (7th Cir.1997); Doe v. Johnson, 52 F.3d 1448, 1458 (7th Cir.1995).

Although Lavender had a sufficient basis (i.e., the videotape) to offer an opinion regarding whether Hoffman could run the machine at set production levels, the district court implied that such testimony could not "assist the trier of fact," as required under Rule 702. The court previously determined that the videotape could be played for the jury and entered into evidence, and consequently,jurors could make a determination for themselves with respect to Hoffman's ability to run the high-speed scanner. Based upon this independent assessment of Hoffman's performance on the scanner, the jury could then draw inferences regarding her ability to meet production levels, and expert testimony would be of no help. The court therefore disallowed the contested portions of Lavender's testimony. We find this reasoning persuasive; the district court did not abuse its discretion.

Moreover, there was an alternative justification for the district court to exclude Lavender's testimony about the plaintiff's ability to operate the machine at set production levels. Hoffman was required to disclose to Caterpillar the basis for all of Lavender's expert opinions. Fed.R.Civ.P. 26(a)(2)(B) ("FRCP") ("[t]he report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor"). The court concluded that Hoffman's failure to amend its prior expert disclosures to include the videotape as a basis for Lavender's opinion violated Rule 26, and the violation was not harmless to Caterpillar. Therefore, the court properly excluded the contested portion of Lavender's testimony under Rule 37(c)(1).

In the instant appeal, Hoffman does not expressly challenge whether there was a violation of Rule 26's disclosure requirements. Instead, Hoffman asserts — without authority — that it would have been a "ludicrous" formality to disclose in writing Lavender's reliance upon the videotape since Caterpillar was aware both of the videotape itself and that Lavender would review it. We recently rejected such arguments, stating that the formal requirements of Rule 26 are not pointless, see Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004), and we again do so here.

Moreover, Hoffman presents nothing more than a bald assertion ("There was no surprise to Caterpillar ...."), in support of her argument that the district court abused its discretion when it concluded that the Rule 26 violation was not harmless. We disagree. Following the August 22, 2002 videotaping, Hoffman gave no indication of an intention to have the district court revisit its March 28 ruling until the first day of trial, on February 3, 2003. Had the district court reversed its March 28 ruling and allowed Hoffman to present expert testimony as to her ability to operate the scanner at required production levels, Caterpillar would have been harmed in three related ways.

First, because the renewed motion was made on the first day of trial, there was not enough time remaining for Caterpillar to depose Lavender on this new basis for his opinion. Relatedly and second, Caterpillar would have been hard-pressed to develop alternate cross-examination strategies (because the obvious approach — attacking Lavender's credibility because he never personally observed the plaintiff operating the machine in question — would be ineffective). And third, Caterpillar would have a distressingly small amount of time to develop expert testimony to counter Lavender's. In fact, Caterpillar indicated that it decided to entirely forego expert testimony in reliance upon the March 28 order, presumably because it felt that...

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