Salgado by Salgado v. General Motors Corp.

• Decision Date: 23 July 1998
• Docket Number: No. 97-2590,97-2590
• Citation: 150 F.3d 735
• Parties: Samantha SALGADO, a minor by her father and next friend Edwin SALGADO, and Edwin Salgado, individually, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 735

150 F.3d 735

41 Fed.R.Serv.3d 336

Samantha SALGADO, a minor by her father and next friend Edwin SALGADO, and Edwin Salgado, individually Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Defendant-Appellee.

No. 97-2590.

United States Court of Appeals Seventh Circuit.

Argued Jan. 15, 1998.

Decided July 23, 1998.

Michael J. Frost and David P. Schippers (argued), Schippers & Bailey, Chicago, IL, for Plaintiffs-Appellants.

Jennifer A. Kenedy (argued), Lord, Bissell & Brook, Chicago, IL, and Evan A. Burkholder, McGuire, Woods, Battle & Boothe, Richmond, VA, for Defendant-Appellee.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This is an action by a passenger injured in an automobile accident and her father, Samantha and Edwin Salgado ("Salgado"), against the manufacturer of the vehicle, General Motors Corporation ("GM"). The district court held that Salgado had failed to comply with the court's deadline for the submission of the reports of expert witnesses and therefore barred the testimony of those witnesses at the trial. Because this action left Salgado without a case, the district court also granted summary judgment in favor of GM. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

On February 7, 1991, Edith Salgado, despite the flashing warning signs, drove her 1980 Buick Riviera around several stopped cars and the closed crossing gate into the path of an oncoming commuter train. The resulting collision caused the front right passenger seat to move backwards and to strike the child safety seat holding her seven month-old daughter Samantha. Samantha suffered serious head injuries from the impact with the seat.

On February 8, 1993, Samantha, by her father, Edwin Salgado, and Edwin individually, filed suit in Cook County Circuit Court against GM, the manufacturer of the car. ¹ The suit claimed that a defect in the passenger seat of the Buick had caused it to fall back on impact, to hit Samantha and to cause her injuries. GM timely removed the case to federal court on the ground of diversity of citizenship of the parties.

Initially, the court ordered discovery to be completed by October 24, 1995. Salgado filed a motion for an extension on that date and was granted until January 24, 1996, an additional three months, to complete discovery. At a status hearing on January 25, 1996, one day after the discovery was to be completed, Salgado requested, and was granted, a second extension for the completion of discovery, until April 12, 1996. In requesting this extension, Salgado specifically asked for time to complete the expert witness reports of Dr. Anthony Sances, Jr. and Mr. John M. Stilson. Such expert witness reports are required pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.

In granting this second extension, the district court made clear that April 12th was the "final cut off" date, and that, unless the reports were turned in by the 12th, the case would get "dunked" and the plaintiffs would "lose." ² The court then set the next status hearing for April 16, 1996. Despite the warning by the court, Salgado's counsel failed to file the reports by the further extended due date of April 12, 1996. Instead, the reports were submitted on Monday, April 15, the next business day following the deadline.

B. Ruling of the District Court

After reviewing the history of the discovery timetable that we have just set forth, the district court noted that the expert witness reports had not been filed on time and that the reports that were filed were markedly deficient. The court characterized Dr. Sances' report as "conclusory" in nature and therefore "insufficient" under Rule 26(a). R.75 at 5. It characterized Mr. Stilson's report in the same way, noting that the report was devoid of any factual basis for its conclusory opinions. The court further noted that Mr. Stilson had admitted that his report lacked a detailed discussion because he had not been provided with discovery materials. Moreover, although the document did provide an index to the materials that Mr. Stilson had reviewed, the index was not keyed to the various opinions that he had expressed.

The district court also addressed the explanation that Salgado's counsel offered: He asserted that the reports were cursory because he and opposing counsel had an understanding that the reports would be "preliminary" in nature. In dealing with this explanation by Salgado's counsel, the district court noted that opposing counsel had, at the court's request, filed an affidavit stating that he had never waived, implicitly or explicitly, the requirements of Rule 26; moreover, he had never agreed to accept preliminary reports that were less detailed than those required by Rule 26. The court also pointed out that, although opposing counsel had made himself available for a deposition on this matter, counsel for Salgado had never deposed him. Accordingly, the court found that it was not the custom or practice of defense counsel to waive the requirements of Rule 26 in cases with Salgado's counsel. The court found, moreover, that there was no evidence of such an agreement in this particular case. Nor was the court willing to characterize the deficiency as harmless because defense counsel had handled similar cases and therefore must understand the substance of the plaintiffs' witnesses' reports. The court cannot, it concluded, impute to defense counsel what counsel might or might not know about the opinions of the plaintiffs' experts.

More importantly, continued the court, the position of Salgado's counsel with respect to the preliminary character of the reports "essentially nullifies the requirements of Rule 26." R.75 at 9. In the court's view, Rule 26 requires a full statement of an expert's "opinions and the basis for those opinions irrespective of the particular case or defendant." Id. at 10. Accordingly, the district court determined that the reports were untimely and did not comply with the requirements of Rule 26(a). Because the court found no substantial justification for the plaintiff's failure to comply with Rule 26(a), it granted GM's motion to bar the testimony of both experts.

The court also denied Salgado's motion to file a supplemental report to the earlier report of Mr. Stilson. The court noted that Salgado had had custody of the crash vehicle for three years and that a disassembly and laser mapping of the vehicle had taken place on April 13, 1995, a year before the filing of the report. Although Mr. Stilson had inspected the vehicle in April of 1995, it took him a year to file a preliminary report. Furthermore, noted the court, although Mr. Stilson had attempted to justify the preliminary nature of his submission on the ground that he lacked discovery materials, there was no dispute among the parties that GM had not been served with requests for discovery. The court found "troubling" that Mr. Stilson could now tender a report containing the basis and reasons for his previously-expressed opinions even though he still lacked the discovery materials that he had considered so essential to arriving at those reasons. "[W]e can only conclude," said the court, "that plaintiffs are now attempting to supplement Mr. Stilson's preliminary report with information readily available prior to the court-ordered discovery deadlines." R.75 at 11.

The court subsequently granted GM's motion for summary judgment. The exclusion of the experts' testimony left Salgado without a case.

II DISCUSSION

1.

This case comes to us from the grant of a motion for summary judgment. The standard of appellate review from such a disposition in the district court is de novo. See Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 722 (7th Cir.), petition for cert. filed, 67 USLW 3082 (U.S. July 2, 1998) (No. 98-66); Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1140 (7th Cir.1998). Here, however, the disposition of the motion for summary judgment was entirely dependent on the district court's earlier ruling on the motion to exclude Salgado's expert witnesses for noncompliance with Rule 26(a). This ruling is reviewed under the abuse of discretion standard. See Cummins v. Lyle Indus., 93 F.3d 362, 367 (7th Cir.1996); Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir.1995); Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 283-84 (7th Cir.1988). Under this standard, we shall affirm the judgment of the district court whenever we believe that the district court chose an option that was among those from which we might expect a district court reasonably to choose. See United States v. Allison, 120 F.3d 71, 74 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 455, 139 L.Ed.2d 389 (1997). ³ As our case law makes very clear, however, this standard is not without teeth. See Cunningham v. Waters Tan & Co., 65 F.3d 1351, 1360 (7th Cir.1995); Land v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Health & Welfare Fund, 25 F.3d 509, 515 (7th Cir.1994); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989) (en banc); In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988). In applying this standard, we scrutinize the district court's determination to ensure that it invoked the correct legal standards and that its findings of fact are not clearly erroneous. ⁴

2.

Our use of the deferential standard to review a sanction imposed under Federal Rule of Civil Procedure 37 is a function of the appropriate division of capacity, and therefore responsibility, between the trial and appellate courts. ⁵ It does not denigrate the importance of the decision. Depriving the parties of a merits disposition is serious business. As we wrote in Schilling v. Walworth County Park and Planning Commission, 805 F.2d 272 (7th Cir.1986):

The sanction of dismissal with prejudice must be infrequently resorted to by district...