Sadowski v. Bombardier Ltd.
| Decision Date | 22 July 1976 |
| Docket Number | No. 75-1980,75-1980 |
| Citation | 539 F.2d 615 |
| Parties | Pamela Sue Rulo SADOWSKI, Plaintiff-Appellee, v. BOMBARDIER LIMITED, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John J. Albert, Racine, Wis., for defendant-appellant.
James R. Gass, Milwaukee, Wis., for plaintiff-appellee.
Before PELL and SPRECHER, Circuit Judges, and PERRY, Senior District Judge. *
This is an appeal from a judgment in favor of plaintiff-appellee Pamela Sadowski in the amount of $100,000 in an action to recover for personal injuries allegedly sustained as the result of the improper design and manufacture of an Olympic 399 Ski-Doo snowmobile manufactured by defendant-appellant Bombardier, which judgment was entered on May 15, 1975. By order of August 13, 1975, the district court denied Bombardier's Fed.R.Civ.P. 59(a) motion for a new trial and also denied Bombardier's Fed.R.Civ.P. 60 motion for relief from the judgment and for remittitur of the damage award. In Sadowski v. Bombardier Limited, 527 F.2d 1132 (7th Cir. 1975), (Sadowski I ) this court held that the appellant had filed a timely motion for a new trial pursuant to Fed.R.Civ.P. 59(b), tolling the running of time for filing a notice of appeal from the original judgment, and denied the plaintiff-appellee's motion to dismiss the appeal.
This appeal raises several issues regarding an asserted abuse of discretion by the trial court in not utilizing the provisions of Fed.R.Civ.P. 60(b) to relieve Bombardier from the operation of the final judgment. The appeal also raises the issue of trial court error in failing to grant a new trial pursuant to Fed.R.Civ.P. 59 because of the court's refusal to present to the jury special verdict forms and an instruction on contributory negligence.
This diversity action was commenced on October 24, 1972. Over two years later, on January 15, 1975, the court formally entered a pretrial order which incorporated the stipulations and orders made at a pretrial conference held on January 10, 1975. The pretrial order provided that all notifications of expert witnesses were to be in compliance with Fed.R.Civ.P. 26, that plaintiff would finalize the medical damage claim by furnishing to the defendant all the medical reports, that the defendant would have the plaintiff examined by its own doctor by April 1, 1975, or waive its right to do so, and that, except as set forth in the order, no additional discovery in the case would be permitted after March 15, 1975. The parties were to meet not later than the week of April 1, 1975, to prepare the report called for in the standard pretrial order of the court, the plaintiff having the principal burden for the composition of such report, which was to be filed with the court by April 10, 1975, and, if not filed, it was understood that the action would be dismissed for want of prosecution.
The record discloses that the terms of the pretrial order were not followed with exactitude. For instance, the report was not filed until April 15, 1975, some five days later than the date specified in the pretrial order. The parties apparently never met for the purpose of preparing the pretrial report, but they did conduct a pretrial conference on April 29, 1975. This conference occurred almost exactly two weeks after the further pretrial conference date specified in the January 15, 1975, order.
Even though no paragraph of the pretrial order authorized discovery after the cutoff date, the deposition of Dr. George Thuerer was taken on April 30, 1975, apparently by agreement of counsel. The joint participation of the attorneys in discovery not formally authorized by the court order represents but one instance of the considerable disregard for the exact language of the pretrial order. Despite an apparent mutuality of nonobservance of the pretrial time scheduling, 1 the defendant claims error requiring reversal arising from the plaintiff's late delivery of the expert medical reports and her asserted failure to provide the names and addresses of expert witnesses and to state the substance of the facts and opinions to which the purported experts were expected to testify.
The record discloses that the plaintiff-appellee presented the March 1, 1974, report of Dr. William Frackleton to the defendant-appellant on April 15, 1975. Dr. Frackleton's later medical report of February 10, 1975, was furnished to Bombardier's counsel on April 28, 1975, just six days before commencement of the trial. The February 27, 1973, medical report of Dr. George Thuerer was presented to the defendant on April 29, 1975, five days before trial and one day before the tardy deposition of the surgeon.
The pretrial order of January 15th not only required the exchange of the names and addresses of each party's prospective expert witnesses, together with a stipulated narrative statement of each expert's background and experience, but incorporated the requirement of Fed.R.Civ.P. 26 regarding the notifications of expert witnesses. The plaintiff's pretrial report of April 15, 1975, listed only Doctor Stanley Weiss, a metallurgist, and Doctors Thuerer and Frackleton, surgeons, as expert witnesses. The report did list as witnesses two individuals by the names of Fred Gates and Ed Kwaterski, but these prospective witnesses were not identified as experts. The standard pretrial order of the court, a copy of which was attached to the twenty-paragraph special order of January 15, 1975, stated that the court contemplated that other witnesses would not ordinarily be permitted to be called except upon a showing of surprise.
Appellant Bombardier contends that the systematic violation of the pretrial order on the part of the plaintiff-appellee prevented a fair trial. Bombardier argues that it is entitled to Rule 60(b) relief because it was surprised and excusably unprepared to refute the medical testimony presented by appellee Sadowski at trial. The appellant contends that the plaintiff-appellee gained unfair advantage in the presentation of her medical testimony contrary to the intendment of Fed.R.Civ.P. 16.
The gravamen of Bombardier's charge is that it was never given any valid warning that Dr. William Frackleton would opine that there existed a 20.25% permanent total disability. Had it timely received such a warning, Bombardier insists, it would certainly have arranged for an independent medical examination of the plaintiff. The appellant claims that it was first warned that Dr. Frackleton would testify that the plaintiff sustained a "severe residual functional defect" to her forearm only upon receipt of his final report.
Our review of the record confirms that plaintiff's counsel made effective use of Dr. Frackleton's trial testimony regarding the 20.25% total disability. However, Bombardier's contention that it was not aware that there was a severe functional disability associated with plaintiff's arm injury and index finger amputation is not similarly supported. The earliest medical report of Dr. George Thuerer was dated January 28, 1972, and the appellant had obtained that medical report during discovery. Dr. Thuerer states, although in non-mathematical terms, that "this patient has had a very severe injury to her right forearm and there will be considerable permanent disability."
The final report prepared by Dr. Frackleton shortly before trial does not contain any "surprise" information. Its conclusion that the plaintiff had sustained a severe residual function defect is wholly consistent with the earlier January 28, 1972, report of Dr. Thuerer. While Dr. Thuerer's February 27, 1973, report and Dr. Frackleton's February 10, 1975, report contain more detail, they cannot be fairly read as embodying surprising medical conclusions.
Rule 60(b) is not to be invoked to give relief to a party who has chosen a course of action which in retrospect appears unfortunate or where error or miscalculation is traceable really to a lack of care. See 7 Moore, Federal Practice P 60.22(2), at 254-56 (2d ed. 1975). While the plaintiff did not furnish the final report of Dr. Frackleton until April 28, 1975, long after the time for delivery specified in the pretrial order, her inability to obtain and forward the report was before the trial court when it considered appellant's Rule 60(b) motion below. The plaintiff's attorneys had made numerous calls to Dr. Frackleton's office asking for a copy of the February report, and the plaintiff's attorneys forwarded the report to defense counsel at the latest one day after receiving it themselves.
Moreover, Bombardier never objected at trial to the testimony of Dr. Frackleton. On the basis of the appellant's failure to comply with Fed.R.Civ.P. 46 alone, the trial court acted well within its discretion in denying the defendant's post-trial Rule 60(b) motion. In the absence of plainly prejudicial error, which we do not find here, a party may not sit silently by, letting claimed error occur and then seek relief if the result is unfavorable. 9 Wright & Miller, Federal Practice and Procedure § 2472, at 455 (1971). Our examination of the record discloses that there was no objection at the time of Dr. Frackleton's testimony that the defendant was in any way surprised by the severity of the injury or had been denied the opportunity to learn of its severity. Also, we note that in response to a direct inquiry of Bombardier's counsel the doctor testified that the schedule of disability calculations was available not only to physicians but to anyone in Wisconsin or elsewhere.
Bombardier recognizes that a trial court's ruling on Rule 60(b) motions regarding surprise testimony and the noncompliance with the pretrial order will not be disturbed except upon a showing of an abuse of discretion. It urges, however, this...
To continue reading
Request your trial
-
Mashpee Tribe v. New Seabury Corp.
...797 (1st Cir. 1977). The same rule can apply to limit parties to those grounds for objection preserved below. See Sadowski v. Bombardier Ltd., 539 F.2d 615, 624 (7th Cir. 1976); Falkerson v. The New York, New Haven & Hartford RR., 188 F.2d 892, 896 (2d Cir. 1951). We discuss other arguments......
-
Syvock v. Milwaukee Boiler Mfg. Co., Inc.
...to hold the appellee to the pretrial order unless there was a clear abuse of discretion or manifest injustice." Sadowski v. Bombardier, Ltd., 539 F.2d 615, 621 (7th Cir. 1976). Although the expert nature of a surprise witness' testimony may in some cases contribute to a finding of prejudice......
-
Hibma v. Odegaard, s. 84-1137
...as to the nature and scope of the issues to be submitted to the jury in the form of special verdict questions." Sadowski v. Bombardier Limited, 539 F.2d 615, 622 (7th Cir.1976) (citation omitted); see also Worsham v. A.H. Robins Company, 734 F.2d 676, 690 (11th Cir.1984); Central Progressiv......
-
Ashland Oil, Inc. v. Arnett
...Since the decision to hold parties to a formal pretrial order is within the trial court's broad discretion, Sadowski v. Bombardier Ltd., 539 F.2d 615, 618 (7th Cir.1976), the discretion whether to hold a party to a non-binding trial brief must be broader still. When making that decision, th......