Mawby v. U.S.

Decision Date26 July 1993
Docket NumberNo. 92-3882,92-3882
Citation999 F.2d 1252
PartiesJanice MAWBY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Robert C. Ozer, Denver, CO, argued, for plaintiff-appellant.

Gay L. Tedder, Asst. U.S. Atty., Kansas City, MO, argued, for defendant-appellee.

Before WOLLMAN and LOKEN, Circuit Judges, and BOGUE, * Senior District Judge.

BOGUE, Senior District Judge.

Janice Mawby appeals from a final judgment entered in favor of the United States in the district court after a bench trial in this action brought under the Federal Tort Claims Act (28 U.S.C. §§ 1346, et seq.). Because appellant was denied an opportunity to rebut last-minute evidence put on by the government, we reverse the judgment and remand the matter to the district court.

Appellant was on the premises of the United States Post Office at Excelsior Springs, Missouri on the morning of December 11, 1989 when she slipped and fell on a sidewalk. She suffered a fractured ankle as a result of the fall.

A bench trial was held on August 6, 1992. According to appellant's testimony and that of three witnesses she called, there was an accumulation of ice on the sidewalk where she had fallen. Three postal employees who testified had no specific recollection as to whether or how much ice was on the sidewalk at the time.

The next witness called by appellee was a meteorologist, Mr. Thomas Townsend, who brought Excelsior Springs' climatological records for December 1 through December 11, 1989 (the period preceding the accident date). He testified at some length about interpreting the records--which show that on December 6, eight-hundredths of an inch of precipitation fell, and on December 10, one-tenth of an inch fell. High temperatures were above freezing (sometimes well above) all but one day between the first and tenth; and the high temperature dipped to 16 degrees on December 11.

During pretrial discovery, appellant had asked whether appellee had or knew of any "measurements, surveys, or other descriptive documentary evidence concerning the ... scene of the accident in question." Plaintiff's Interrogatories, No. 7, January 8, 1992. An accompanying request for production (No. 4) sought copies of materials listed in response to interrogatory No. 7. Interrogatory No. 10 sought the identity of "all witnesses having knowledge of ... facts bearing on the question of liability (but who were not actual eye witnesses to the incident)." Interrogatory No. 18 asked for the identity and a synopsis of the expected testimony of each expert to be called by appellee. Appellee did not list Mr. Townsend or the weather records--either in its original response to the discovery requests or by supplementation.

Counsel for appellant maintains that his first notice of this testimony and documentation came when appellee's pretrial witness and exhibit lists were telefaxed to his hotel the night before trial. The pretrial materials had been timely filed and served by mail a week before trial (pursuant to an extension which had been granted to appellee); however, he claims he did not receive them. He objected to the testimony and exhibits, and requested that if they were received he be afforded a recess to prepare rebuttal.

The court agreed that appellee should have disclosed Townsend's evidence sooner, assured counsel for appellant that he would be given an opportunity to rebut the evidence, then received the testimony and exhibits. However, after hearing the testimony and that of appellee's final witness, and without giving appellant the promised opportunity for rebuttal, the trial judge announced that he was prepared to rule on the case. He discredited the testimony of appellant's witnesses about the ice accumulation solely on the basis of the records and testimony elicited from Townsend, and announced that he would rule for the defendant.

On November 10, 1992, the district court entered its memorandum opinion and order granting judgment to defendant-appellee. Again, the Court relied heavily on the testimony and records elicited from Townsend to reach its conclusions, finding that because of this evidence the testimony of plaintiff's witnesses regarding the amount of ice present on the sidewalk was not credible.

On appeal, Mawby contends that the meteorologist's testimony and records should have been excluded at trial because appellee's nondisclosure violated discovery rules, the Court's pretrial order, and the Federal Rules of Civil Procedure regarding disclosure of witnesses. Alternatively, she argues that after allowing the evidence, the court should have given the promised recess so that she could prepare rebuttal.

We review a trial court's evidentiary rulings under an abuse of discretion standard. See, e.g., Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir.1989). We have said that "[u]se of an undisclosed witness should seldom be barred unless bad faith is involved." Id. Under the present circumstances we do not find that the trial court abused its broad discretion by allowing the disputed evidence. There is no evidence, nor even an assertion, that appellee's failure to timely disclose the meteorologist and climatological data was done in bad faith.

Notwithstanding our finding that it was not reversible error to allow the evidence, we hold that the trial court abused its discretion by not affording appellant an opportunity to rebut the evidence. Although not done in bad faith, it is clear that appellee's failure to disclose the disputed evidence violated both the letter and spirit of the federal rules, which require supplementation of discovery responses regarding "(A) the identity and location of persons having knowledge of discoverable matters and (B) the identity of each person expected to be called as an expert witness at trial." Fed.R.Civ.P. 26(e)(1)(A) & (B). As the custodian of weather records with unquestionable relevance to the issues in this action, Townsend falls...

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    ...be barred unless bad faith is involved." Bergfeld v. Unimin Corp. , 319 F.3d 350, 355 (8th Cir. 2003) (citing Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993) and Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989) ). The Court will address each disputed affidav......
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    ... ... Bergfeld v. Unimin Corp. , 319 F.3d 350, 355 (8th ... Cir. 2003) (citing Mawby v. United States, 999 F.2d ... 1252, 1254 (8th Cir. 1993) and Mills v. Des Arc ... Convalescent Home, 872 F.2d 823, 826 (8th Cir ... ...
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    ...F.3d 862, 865 (8th Cir.1999)[emphasis in original], quoting Voegeli v. Lewis, 568 F.2d 89, 97 (8th Cir.1977), and Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir.1993), quoting, in turn, Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir.1968). Allowing Dr. Duus' testimony wou......
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