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Gorby v. Schneider Tank Lines Inc.

August 16, 1984


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H79-103 -- Allen Sharp, Judge.

Pell and Posner, Circuit Judges, and Weigel, Senior District Judge.*fn*

Author: Pell

PELL, Circuit Judge

Dennis Gorby was severely injured when defendant-appellant's semi-tanker truck collided with his vehicle at an Indiana highway intersection in the late evening of October 5, 1977. Gorby's wife, acting individually and in her capacity as guardian of her husband's person and estate, brought this diversity action seeking compensation for her loss of consortium and for her husband's personal injuries. The case was tried to a jury, which found against appellant and awarded appellee a total of $1,820,000. Appellant now raises four issues on appeal, each of which it claims merits reversal of the judgment. First, appellant maintains the trial judge abused his discretion when he prevented appellant's expert witnesses from identifying one of the sources upon which they relied when they formulated their opinions. Second, appellant argues that the trial judge incorrectly instructed the jury with respect to the duty of a motorist to observe vehicles approaching from a non-preferred street. Third, appellant contends that the trial judge improperly prohibited a lay witness from giving opinion testimony. Fourth and finally, appellant claims the trial judge erred when he instructed the jury on a theory of negligence not specifically mentioned in the case's pretrial order. We consider in turn each issue raised. There is no claim on appeal that the damages are excessive.


At approximately 11:00 p.m. on October 5, 1977, David Welsch, an employee of defendant-appellant Schneider Tank Lines, Inc. (Schneider), drove a semi-tanker truck owned by his employer in the eastbound direction on a segment of U.S. Highway 30 in Lake County, Indiana. Two smaller streets, Utah Street and Stardust Road, intersect Highway 30 perpendicularly on this segment. Utah Street lies approximately 723 feet to the west of Stardust Road. The eastbound portion of Highway 30 has two lanes, an outer lane and a passing lane, plus a right-hand turn lane for Stardust Road. The Schneider truck struck Dennis Gorby's pick-up truck at the intersection of Highway 30 and Stardust Road. Gorby had entered the intersection from Stardust Road and apparently intended to cross the median and drive westbound on Highway 30. There was evidence that at the time of the accident, the Schneider truck was travelling at approximately fifty miles per hour and was engaged in tenth gear. Although Welsch testified he applied his brakes, a state trooper stated at trial that he saw no skid marks on Highway 30 west of the point of impact.

Carl Highlan was travelling westbound on Highway 30 at the time of the accident. He testified that he heard the Schneider truck's horn blow when the truck was at or near the Utah Street intersection. He testified that he saw the Schneider truck then move from the outer lane to the passing lane. Highlan had a passenger in his car, Linda Harper, who also witnessed the accident. An investigator hired by Schneider took Harper's written statement shortly after the accident. In October 1980, Schneider revealed to appellee that it had taken Harper's statement. Appellee sought discovery of the statement, but Schneider refused production, claiming that the statement was prepared in anticipation of litigation and protected under Fed. R. Civ. P. 26(b)(3). In March 1981, District Judge McNagny issued a protective order permitting Schneider to resist production until appellee showed that it had substantial need for the statement and could not obtain equivalent material without undue hardship. Appellee never made such showings and accordingly did not obtain the statement prior to trial. Harper became unavailable approximately one year before the time of trial.

At trial, each party offered the testimony of accident reconstruction experts. On direct examination, appellee's expert, Dr. Moffatt, testified that a truck moving at fifty miles per hour could stop safely over a distance of 255 feet. Since the Utah Street intersection, the point at which Welsch blew the truck's horn, is 723 feet from the point of the accident, Dr. Moffatt stated, Welsch had the "opportunity and means to prevent this accident." On cross-examination, Dr. Moffatt stated that Welsch's decision to change lanes rather than stop was imprudent. Earlier, counsel for appellate had asked Dr. Moffatt whether he had reached his opinions prior to reading Linda Harper's statement. Dr. Moffatt had responded that he had not read the Harper statement.

Appellant's expert, Dr. David Gillespie, testified that Welsch could not have avoided the accident by stopping and that Welsch took all prudent steps to avoid the accident. Dr. Gillespie also stated that he could not understand Gorby's decision to enter the intersection when the Schneider truck was a short distance away. Appellant also offered the testimony of Dr. Romwualdi, an expert who said he agreed with Dr. Gillespie that Welsch did all that was prudent to avoid the accident.

Appellant had planned to ask its experts at trial, Drs. Gillespie and Romwualdi, whether they had read Linda Harper's statement prior to forming their opinions and whether the statement's contents supported their conclusions. Appellant's experts had in fact reviewed the Harper statement in the course of forming their opinions, and appellant hoped that the jury, upon learning that Drs. Gillespie and Romwualdi had used "more and better information" than had Dr. Moffatt, would accord the testimony of the former two witnesses more weight than they would the testimony of appellee's expert. At sidebar, however, the trial judge, Judge Sharp, learned that counsel for appellant had allowed Drs. Gillespie and Romwualdi to examine the Harper statement only after appellee's counsel had finished taking the depositions of those two experts. Judge Sharp was plainly troubled by this tactic and considered it "fundamentally unfair." Counsel for appellant stated that Drs. Gillespie and Romwualdi knew the contents of the statement before they were deposed, and counsel added that it was only the presentation of the Harper document to the experts that was postponed until after the taking of depositions. Judge Sharp responded, "Well, the fact remains that you're now trying to use that statement, that specific statement, and not its substance to bolster up [the] opinion [of appellant's experts]." Judge Sharp continued, "I'm going to rule that the expert cannot refer to [the Harper statement], and it cannot be used to bolster up his opinion, and it cannot be questioned about." Counsel for appellant thereafter admonished Drs. Gillespie and Romwualdi not to refer to the statement in the course of giving their testimony. Counsel stated, "Dr. Gillespie, the Court has asked me to admonish you that in rendering your opinion or, in fact, in any of your testimony here today you are not to refer to the statement of Linda Harper. . . . And you are not to include any of the information in that statement in your opinion." Judge Sharp added directly thereafter:

[You are not to include any information] that's exclusively in that statement. Most of the statement is covered, but there may be two or three little items that are unique to that statement. It's pretty narrow, really. It's basically -- you're basically inhibited from mentioning the Linda Harper statement or stating explicitly that you are relying on it. It's really to keep the name of the Linda Harper statement out. That's all we're concerned about on that.

The jury returned two separate verdicts, one in favor of Dennis Gorby's wife in the amount of $320,000 and one in favor of Dennis Gorby in the amount of $1,500,000. Appellant filed a timely appeal.


A. Appellant's Experts and the Statement of Linda Harper.

Decisions in the course of trial to admit or exclude evidence are "peculiarly within the competence of the district court and will not be reversed on appeal unless they constitute a clear abuse of discretion." Ellis v. City of Chicago, 667 F.2d 606, 611 (7th Cir. 1981); United States v. Micklus, 581 F.2d 612, 617 (7th Cir. 1978). In 1970, the Federal Rules of Civil Procedure were amended to permit considerable discovery of information obtained by experts. See Fed. R. Civ. P. 26(b)(4). Under certain circumstances, a party may even depose an opposing party's expert ...

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