Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 79 C 562 -- Michael S. Kanne, Judge.
Before CUMMINGS, Chief Judge, and PELL and POSNER, Circuit Judges.
POSNER, Circuit Judge. One day in 1978 Robert Abernathy drove a flatbed truck loaded with logs to a sawmill in Indiana owned by Superior Hardwoods. The logs were fastened to the bed of the truck with four chains. Abernathy released each chain but before he could stow them all in the cab of the truck Superior Hardwoods' forklift began unloading the logs and one tumbled off and hit Abernathy in the back. Abernathy and his wife sued Superior Hardwoods for negligence, basing federal jurisdiction on diversity of citizenship, and got a jury verdict. Superior Hardwoods has appealed, arguing first that there is insufficient evidence that it was negligent and Abernathy free from contributory negligence. Contributory negligence is a complete defense under Indiana tort law, see Koroniotis v. La Porte Transit, Inc., 397 N.E.2d 656, 660 (Ind. App. 1979), which is conceded to govern this case.
The appellant's brief states that "it is a common occurrence for logs to fall from the truck when being unloaded with a forklift, no matter how careful or prudent the operator of the forklift may be," and that there is no evidence that is forklift operator was imprudent or unskillful in the manner in which he removed the logs from Ablernathy's truck. But this takes too narrow a view of what due care requires. Dexterity in carrying out a dangerous procedure is only one way of avoiding accidents. Another is to take precautions. If, as the company itself argues, unloading logs from a flatbed truck is unavoidably dangerous, it should not be attempted until the driver is well clear. Abernathy testified that he had worked out with the operator a system by which the operator would not begin unloading till Abernathy gave him a hand signal, but that on the day of the accident the operator jumped the gun. The operator did not recall such a practice but the jury was entitled to believe Abernathy; the conceded dangerousness of the unloading procedure made his testimony at least plausible. If it did believe him, moreover, it would follow that the defendant was negligent whether or not due care required hand signaling, or some equivalent precaution, in the first place, on the same theory that if a railroad places a watchman at a crossing and the traveling public comes to rely on him to warn of an approaching train the railroad must tell the public before withdrawing the watchman -- "must use reasonable care to see that reliance by members of the . . . public upon its representation of safety is not converted into a trap." Erie R.R. v. Stewart, 40 F.2d 855, 857 (6th Cir. 1930). See also Indian Towing Co. v. United States, 350 U.S. 61, 69, 100 L. Ed. 48, 76 S. Ct. 122 (1955), and for Indiana authority Clyde E. Williams & Associates, Inc. v. Boatman, 176 Ind. App. 430, 375 N.E.2d 1138, 1141 (Ind. App. 1978); Board of Comm'rs of Monroe Cty. v. Hatton, 427 N.E.2d 696, 699 (Ind. App. 1981).
Even if it did not believe Abernathy's story about hand signals the jury could have found that the failure to make sure he was well clear before the unloading began was negligence on the part of Superior Hardwoods, given the admitted danger of an accident if he was not well clear and the trivial burden of making sure he was before beginning to unload. According to Superior Hardwoods, such precautions are not customary in its industry; but compliance with custom is not a defense to negligence. Wiles v. Mahan, 405 N.E.2d 591, 594 (Ind. App. 1980); The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932).
On the question of Abernathy's contributory negligence, Superior Hardwoods points to testimony that the logs on Abernathy's truck had been stowed (presumably by him) improperly. But the evidence was conflicting on the point and its resolution a matter for the jury. The defendant also argues that Abernathy should have heard the noise of the forklift beginning to unload and gotten out of the way. But he testified that the noise of the forklift was drowned out by the general noise of the sawmill, and whether it was or was not was again an issue for the jury -- provided the district judge did not improperly limit the defendant's ability to present evidence of the noise level. That is the next issue we must resolve. The president of Superior Hardwoods made a videotape with his home videotape system showing a forklift unloading logs from a truck at the sawmill. The videotape was not a tape of the accident, of course -- it was made several years later -- or even an attempt to reconstruct the accident. It was an attempt (in the defendant's words) "to fairly and accurately depict the method in which log trucks are routinely unloaded at" its sawmill. The district judge allowed the tape to be shown to the jury but only with the sound turned off. Yet according to the defendant the soundtrack proves that Abernathy should have heard the forklift beginning to unload the logs.
The levels both of background noise and of forklift operating noise were relevant to the defense of contributory negligency, and there is no objection in principle to presenting evidence of noise levels through a sound recording, even one made long after the accident. Cf. Young v. Illinois Central Gulf R.R., 618 F.2d 332, 337-38 (5th Cir. 1980). But to be admissible -- at least as a matter of law, rather than in the trial judge's discretion -- the recording must, of course, meet minimum standards of reliability. E.g., Renfro Hosiery Mills Co. v. National Cash Register Co., 552 F.2d 1061, 1065-66 (4th Cir. 1977); Brandt v. French, 638 F.2d 209, 212 (10th Cir. 1981). This one did not. The microphone was not placed where Abernathy had been standing when he was hit by the log, though it easily could have been; the recording was made by an amateur, using amateur's equipment; and there is no indication that in the courtroom the video recorder's volume control would have been adjusted to produce the same decibel level as the sounds actually recorded.
Although all of these points could have been brought out on cross-examination if the soundtrack had been played to the jury, a district judge is not required to encumber a trial with evidence of slight probative value merely because effective cross-examination might expose its weakness. Fed. R. Evid. 403; see Panter v. Marshall Field & Co., 646 F.2d 271, 296 n. 8 (7th Cir. 1981); Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 566-67 (10th Cir. 1978); 1 Weinstein's Evidence P403 (1982). Juries have a tough enough time deciding cases intelligently even when they are not assailed by evidence of tangential relevance, and federal trials already take up enough time without being prolonged to receive such evidence. Nor can a district judge rely on counsel's self-interest not to offer worthless evidence. A lawyer with a weak case may throw in a lot of evidence just to confuse the jury -- a tactic sometimes called "serving up a muddle." As the federal courts become ever busier, the need for district judges to manage trials with a firm hand becomes ever greater. The district judge in this case is to be commended rather than criticized for not taking the easy way out, which would have been to let in all the minimally relevant nonprivileged evidence either party cared to offer.
The defendant argues that Abernathy's medical witness, Dr. Miller, should not have been allowed to testify about the results of an electromyograph test that he ran on Abernathy, because the defendant's counsel did not have a reasonable opportunity to prepare for cross-examination or introduce rebuttal testimony. The test was performed on May 24, 1982, and the plaintiffs' counsel got an oral report of the results on Friday, May 28. The trial was scheduled to begin the following Tuesday, June 1 (Monday being Memorial Day). A half hour before the scheduled opening of the trial the plaintiffs' counsel told the defendant's counsel that the test had been run and had been positive but that he had not yet received a written report. The defendant's counsel made no objection to proceeding with the trial. He was given an imperfectly legible copy of the test results the next morning and immediately moved the judge to order Dr. Miller, who was to testify that afternoon, not to refer to the test. The judge deferred ruling on the motion until Dr. Miller took the stand and the defendant's counsel had an opportunity to voir dire him concerning the test. Counsel did not avail himself of the opportunity; Miller testified; and counsel then moved for a continuance to allow him to procure rebuttal testimony. The judge refused either to exclude Miller's testimony or to grant a continuance, saying he didn't think Miller's testimony about the test results, which had been brief, had had a significant impact on the jury. If the judge had granted a continuance he would have had to postpone his next trial, which was scheduled to begin on June 7.
We have our doubts about the judge's stated reason for denying the motions, although we recognize that he was in a better position than we are to assess the impact of Dr. Miller's testimony on the jury. Abernathy undoubtedly had been injured badly when the log struck his back but it was unclear how severe the residual effects were at the time of trial, three and a half years after the accident, and what future difficulties he should expect. When Dr. Miller first examined Abernathy, more than a year before giving him the electromyograph test, the only observable symptom of a continuing back problem was that Abernathy's left buttock was thinner than the right (how much thinner the record does not reveal). Miller attributed the asymmetry to the accident's having injured the nerve running into the buttock from the spine. The EMG provided objective corroboration of his diagnosis -- originally based just on visual observation -- and of his testimony that Abernathy was 35-50 percent disabled as a result of the accident.
But in this case as in most cases tried under the Federal Rules of Civil Procedure surprise is a poor reason to exclude expert testimony, or to recess a trial for the purpose of allowing rebuttal testimony to be obtained and thereby break the jury's concentration and throw the trial judge's docket out of gear, when Rule 26(b)(4) makes it so easy to get pretrial discovery of the other side's expert evidence. Cf. Connell v. Steel Haulers, Inc., 455 F.2d 688, 692 (8th Cir. 1972). A personal-injury lawyer as experienced as the defendant's lead counsel in this case should not have been astounded to discover that an EMG -- a standard diagnostic test for back injuries, see 1B Gray, Attorneys' Textbook of Medicine P14.43 (1982); 4 id. P182.42 -- had been run on Abernathy, and should not have been incapable of questioning Dr. Miller about the test without first consulting a medical expert ("I would need to be trained by a doctor as to what that report means before I could cross-examine him"), especially when by his own admission he had encountered EMGs previously in his practice. Counsel took a calculated risk in not retaining a medical expert either to testify or to assist him in cross-examination of the plaintiffs' expert without testifying, see Fed. R. Civ. P. 26(b)(4)(B). A lawyer who undertakes to cross-examine a medical expert without having his own expert at his elbow has only himself to blame if the witness utters some arcanum that the lawyer cannot understand.
Another reason the defendant's counsel should not have been surprised is that when deposed early in May Dr. Miller had indicated he might do an EMG on Abernathy. Counsel could have sought a commitment from the plaintiff's counsel to make the results of any such test available to him well before the trial, but he did not. Although the plaintiffs' counsel would have made life easier for the defendant by asking Dr. Miller to conduct the EMG earlier, it is a fact of life that trial preparations are rarely completed till the eve of trial, and there is no indication that the plaintiffs or their counsel were acting in bad faith. Cf. Perma Research & Development v. Singer Co., 542 F.2d 111, 115 (2d Cir. 1976). The problem of the illegibility of portions of the test report -- again not contended to have been created deliberately -- could have been cleared up quickly if the defendant's counsel had taken up the judge's invitation to question Dr. Miller before he testified.
The defendant also complains about the judge's refusal to allow a private investigator it had hired to testify that to records of Ryder Truck Lines contradicted Abernathy's testimony that Ryder had refused him a job because of his back. The investigator had gone to Ryder's headquarters, had looked through a log of job applicants, and had not found Abernathy's name. The proposed testimony would have been hearsay, and not being within any express hearsay objection would have been admissible only under the catch-all provision of the Federal Rules of Evidence, Rule 804(b)(5), which requires among other things that the evidence be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." The defendant knew almost two years before the trial that Abernathy was claiming to have applied for and been refused a job with Ryder; and even though Ryder's headquarters were more than 100 miles from the place of trial, the defendant could have subpoenaed and copied Ryder's records, deposed their custodian, Fed. R. Civ. P. 30(a), 45(b), (d), and if the custodian was unwilling to testify at trial placed his deposition in evidence, Fed. R. Evid. 804(b)(1), along with properly authenticated copies of the records themselves, Fed. R. Evid. 803(6). Such evidence would have been much more reliable that the private investigator's testimony. The district judge was not obliged to remedy the deficiencies of the defendant's trial preparation. Rule 703 of the Federal Rules of Evidence, heavily relied on by the defendant, is irrelevant. It deals with expert testimony -- testimony based on "specialized knowledge," Fed. R. Evid. 702 -- and such knowledge was not required to understand the list of applicants in Ryder's files.
The last and most difficult issue raised by this appeal is whether the verdict -- $291,309 for the plaintiffs jointly -- was so excessive that the defendant was entitled to a new trial. An initial question is whether this is an issue of state of federal law. If it is "substantive" it is an issue of state law, and if "procedural" an issue of federal law, but these terms are conclusions more than they are criteria. See, e.g., Sibbach v. Wilson & Co., 312 U.S. 1, 16-19, 85 L. Ed. 479, 61 S. Ct. 422 (1940)(Frankfurter, J., dissenting). The majority view is that the issue is procedural. See 11 Wright & Miller, Federal Practice and Procedure § 2802 (1973), and 1982 Pocket Part at pp. 5-6 Galard v. Johnson, 504 F.2d 1198, 1200 n. 1 (7th Cir. 1974), so holds, but is in some tension with a number of Seventh Circuit decisions dealing with the related question (on which see generally Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 342 n. 2 (2d Cir. 1963) (Friendly, J.)) whether in a diversity case the standard for directing a verdict for the defendant because the plaintiff's evidence of liability is insufficient is a question of state or federal law, and holding that it is the former. See, e.g., Wieloch v. Rogers Cartage Co., 290 F.2d 235, 237 (7th Cir. 1961); Moran v. Raymond Corp., 484 F.2d 1008, 1014 (7th Cir. 1973); Kuziw v. Lake Engineering Co., 586 F.2d 33, 35 (7th Cir. 1978). Although the decisions do not explain why state law should govern, do not cite other Seventh Circuit decisions that hold the opposite (also without giving reasons), notable Gudgel v. Southern Shippers, Inc., 387 F.2d 723, 725 (7th Cir. 1967), do not answer the strong criticisms in Wright, law ...