In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2689
L ISA G RIFFIN and M ICHAEL W. G RIFFIN,
Plaintiffs-Appellants,
v.
R OBERT K. F OLEY, M.D.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 05 C 15—Richard L. Young, Judge.
____________
A RGUED F EBRUARY 28, 2008—D ECIDED S EPTEMBER 4, 2008
____________
Before F LAUM, M ANION, and E VANS, Circuit Judges.
M ANION, Circuit Judge. As a result of a car accident, Lisa
Griffin had to undergo back surgery, which Dr. Robert
Foley performed. After complications arose from the
surgery, Lisa and her husband Michael filed this diversity
suit against Foley in the district court alleging medical
malpractice. The case went to trial, and a jury returned
a verdict in favor of Foley. The Griffins appeal, raising
2 No. 07-2689
several challenges to the trial court’s procedural handling
of their case. We affirm.
I.
On June 11, 1994, while traveling through Georgia, the
Griffins’ minivan was struck in the rear by a pickup truck.
As a result of the collision, Lisa Griffin (“Lisa”) sustained
severe injuries, including a burst fracture1 at the L1 verte-
bra. Lisa was flown to Evansville, Indiana, where, on
June 14, 1994, orthopedic surgeon Dr. Robert Foley per-
formed both a laminectomy 2 and a spinal fusion on
her back. During the operation, Foley used an internal
fixation device consisting of rods and hooks to keep Lisa’s
back in place. He then combined the bone he took from
Lisa’s lamina with coralline hydroxyapatite, a bone graft
substitute made of coral reef that goes by the trade
name Pro Osteon. Although the Food and Drug Adminis-
tration had approved Pro Osteon as a bone graft sub-
stitute to fill holes in bone, the FDA had not specifically
1
A burst fracture, or axial compression, is a “fracture of a
vertebra by excessive vertical force, so that pieces of it move
out in horizontal directions, often injuring the spinal cord.”
Dorland’s Illustrated Med. Dictionary 708 (29th ed. 2000).
2
A laminectomy is the surgical removal of one or more pieces
of bone from the lamina, a part of the posterior structure of a
vertebra, in order to relieve the pain caused by pressure on a
nerve being compressed by bones in the spine. Am. Med. Ass’n,
Complete Med. Encyclopedia 768 (2003) (hereinafter “Encyclo-
pedia”).
No. 07-2689 3
approved it for use as a bone graft extender in spinal
fusions. Foley placed the mixture at the fracture site as a
bone graft and completed the surgery.
Foley continued to see Lisa in follow-up visits after the
surgery. While at trial the parties disputed the relative
success of the surgery, it was undisputed that, in October
1994, x-rays of Lisa’s back showed increased kyphosis 3
in her spine, a recognized complication of spinal fusion
surgery. The kyphosis made the rods and hooks from
the fixation device conspicuous underneath her skin, so
on May 16, 1995, Foley performed a second surgery on
Lisa to remove the internal fixation device. However, a
later x-ray taken in March 1996 showed further kyphosis
in Lisa’s spine. At this point, Foley recommended addi-
tional surgery—the parties disputed the nature of the
surgery recommended—which Lisa declined. Later on, the
failure of the back fusion to achieve a union (another
recognized complication of fusion surgery) became evi-
dent. When Foley ought to have been aware of that fact
and how he should have reacted were vigorously con-
tested at trial. As a result of her back, Lisa is now perma-
nently disabled and unable to work.
The Griffins initiated this medical malpractice suit
against Foley on June 11, 1998. Pursuant to Indiana law,4
they first filed a proposed complaint with the Indiana
Department of Insurance alleging that Foley was
3
Kyphosis is an “abnormal and excessive outward curvature
of the vertebrae in the upper spine.” Encyclopedia 764.
4
See Ind. Code § 34-18-8-4.
4 No. 07-2689
negligent because, among other things, he used Pro Osteon
as a bone graft substitute in Lisa’s spine surgery when it
was not FDA-approved for that use and had no
therapeutic benefit as a bone graft substitute in spinal
fusion surgery. The Department of Insurance assembled
a medical review panel to review the case.5 After the case
languished before the panel for over six years, the panel
issued a one-sentence opinion: “The evidence does not
support the conclusion that the defendant failed to meet
the applicable standard of care as charged in the com-
plaint.” 6
The Griffins then took their case to federal court in
January 2005. Trial was scheduled for October 10, 2006, and
the case management plan approved by both parties and
the district court gave the Griffins until April 18, 2006,
and Foley 60 days thereafter, to submit the expert
witness reports required by Federal Rule of Civil Proce-
dure 26.7 On April 18, 2006, the Griffins filed Rule 26
5
See Ind. Code § 34-18-10-1 et seq.
6
Under Indiana law, an opinion by a medical review panelist
is not conclusive of the issue of liability. Ind. Code § 34-18-10-23.
However, that statute also provides that “either party, at the
party’s cost, has the right to call any member of the medical
review panel as a witness. If called, a witness shall appear
and testify.” Id.
7
Federal Rule of Civil Procedure 26(a)(2)(A) requires a party
to “disclose to the other parties the identity of any witness
it may use at trial to present evidence under Federal Rule of
(continued...)
No. 07-2689 5
reports for their experts: Dr. Lawrence Weis, Dr. Robert
Lieberson, Dr. Timothy Lalk, and Professor John Navin.
After the Griffins filed their expert witness reports, Foley
noticed Navin’s deposition for April 28, 2006. Three days
prior to the deposition, the Griffins’ counsel served notice
that he would be videotaping Navin’s deposition for
purposes of trial. 8 In response, Foley filed a motion for a
protective order seeking to preserve the opportunity to
cross-examine Navin for purposes of trial at a later date.
In that motion, Foley asserted that the Griffins’ counsel
had refused to produce Navin at a later date to allow
the defense to cross-examine him for purposes of trial.
The magistrate judge assigned to the case granted
Foley’s motion, stating in its order that Navin must
appear for his previously noticed discovery deposition
7
(...continued)
Evidence 702, 703, or 705.” Along with the disclosure of the
identity of its experts, a party must also submit a written
report, “prepared and signed” by the expert, which contains
(among other things) “a complete statement of all opinions the
[expert] will express and the basis and reasons for them.” Fed.
R. Civ. P. 26(a)(2)(B). “Absent a stipulation or a court order,”
these expert disclosures must be made either 90 days before
trial or, “if the evidence is intended solely to contradict or
rebut evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B),” 30 days after the other party’s
disclosure. Id. 26(a)(2)(C).
8
Federal Rule of Civil Procedure 30(b)(3)(A) allows for audio-
visual recording of a deposition. In addition, Rule 32(a)(4)
allows a party to use the deposition of a witness for any pur-
pose at trial if the court finds that the witness is “unavailable.”
6 No. 07-2689
and that, thereafter, the parties were free to examine or
cross-examine Navin at a later date for purposes of elicit-
ing trial testimony. The order also stated that Foley was
entitled to cross-examine the Griffins’ other experts prior
to trial after taking their discovery depositions. In a later
order expounding on its reasons for granting the
motion, the magistrate judge stated that it was “reasonable
to allow some period of time between discovery of all the
information used by an expert and the preparation of
cross-examination for trial.” 9
Foley then proceeded to take depositions of the Griffins’
retained experts for discovery purposes. The Griffins’
counsel provided notice that the evidentiary depositions
of Navin, Weis, and Lalk would immediately follow
their discovery depositions. When Foley’s counsel was
finished questioning in each of those three depositions, the
Griffins’ counsel conducted a direct examination of the
expert for use at trial. At a later date, Foley conducted a
follow-up deposition with each of those three experts
for purposes of evidentiary cross-examination before
trial. At the beginning of Weis’s follow-up deposition for
cross-examination, the Griffins’ counsel asked additional
questions of Weis intended to supplement his direct
examination, to which Foley’s counsel objected because
the Griffins had already passed the witness.
9
The magistrate judge also noted that there was a dispute as
to whether the Griffins had sufficiently complied with all of
Foley’s discovery requests with respect to the Griffins’ expert
witnesses, a dispute that the magistrate judge was unable to
resolve.
No. 07-2689 7
On June 19, 2006, the defense submitted its Rule 26
expert disclosures, but did not include any Rule 26 reports
from the members of the medical review panel. The
Griffins then filed a motion for sanctions under Fed. R. Civ.
P. 37 based, in part, on the absence of those Rule 26
reports. The magistrate judge concluded in an August 16,
2006, telephone conference that no sanctions were war-
ranted and that there was good cause to extend the dead-
line for expert disclosures, though Foley would have to
file Rule 26 reports from the members of the medical
review panel he wished to call at trial. The magistrate
judge stated that it did not expect those reports to be
completed until “about September 15 or so.” Aware that
allowing the disclosures so close to the October 10 trial
date had the potential to prejudice the Griffins, the magis-
trate judge was quick to remind counsel for the Griffins
that the trial date could be continued if necessary. In a
subsequent written order, the magistrate judge ordered
the defendant to produce disclosures for the medical
review panel “forthwith” while, at the same time, allowing
for the possibility that the trial date would have to be
moved “a short time” should the disclosures not be
immediately forthcoming.
While the motion for sanctions was pending, the
Griffins filed a motion on August 9 to bar testimony by
any defense expert that the use of coral reef as a bone
substitute met the standard of care. On August 25, the
same day the magistrate judge entered his written order on
the Griffins’ motion for sanctions, Foley requested an
extension of time to respond to the Griffins’ August 9
motion to bar expert testimony. Foley stated in that request
8 No. 07-2689
that he could not respond to that motion without first
submitting the Rule 26 expert reports for the medical
review panelists. While Foley admitted that he could
respond to the motion as it related to Dr. Rick Sasso,
his retained expert, he argued that to do so before the
completion of the medical review panelists’ expert reports
would lead to duplicative briefing. The court granted
Foley an extension “up to and including the date the
Court mandates Rule 26 reports be submitted for the
medical review panel members” to respond to the Griffins’
August 9 motion. Foley filed his response on September 27,
but the response did not encompass the members of the
medical review panel. Foley chose not to file Rule 26
reports from members of the medical review panel and
did not call them at trial.
On the same day Foley responded to the August 9
motion, he also filed several motions in limine, including
motions that sought to limit the expert testimony of the
Griffins’ retained experts. The Griffins moved to strike
Foley’s motions to limit expert testimony, but on October
4, 2006, the district court denied that motion and pro-
ceeded to decide all the pending motions in limine, grant-
ing some and denying others. The next day, the Griffins
filed a motion to continue the trial, which the district
court granted. The trial did not begin until April 6, 2007.
Prior to trial, the Griffins’ counsel provided notice of
their intent to utilize the “discovery” portions, that is, the
portions where Foley’s attorney had questioned the Grif-
fins’ experts, of the first depositions of Navin, Lalk, and
Weis at trial. Foley objected to the Griffins’ using that
No. 07-2689 9
testimony at trial, and the court ruled that those “discov-
ery” portions of the first depositions were not admissible
at trial. The court limited the Griffins to the “evidentiary”
portions of the first depositions, that is, to the latter
portion of those depositions where their attorney had
questioned their experts. The district court also ruled that
the questions the Griffins’ counsel asked Weis at the
beginning of the follow-up deposition were not admissible.
At trial, the “evidentiary” portions of those three wit-
nesses’ first depositions were played to the jury, followed
by the second follow-up depositions for cross-examination.
Other than Lieberson, the plaintiffs’ experts did not
otherwise testify at trial.
At the close of the evidence, the district court held an
informal instructions conference. Both parties tendered
proposed instructions. When trial resumed the next day,
the district court stated on the record that the parties had
agreed on a packet of final instructions. The district court
then provided the parties an opportunity to make a record
with respect to those instructions. The Griffins’ counsel
objected to an instruction on the statute of limitations.
The district court denied that objection and asked the
Griffins’ counsel if any further record needed to be made
on the instructions or verdict form. The Griffins’ counsel
replied, “Nothing on that, Your Honor.”
Prior to closing argument, the court read to the
jury—without objection—the jury instructions that had
been agreed upon by the parties. Instructions 20, 21, and 22
of the agreed instructions were very similar to the respec-
10 No. 07-2689
tive Indiana Pattern Jury Instructions,1 0 except that they
used the phrase “orthopaedic surgeon” where the pattern
instructions used “health care provider.” During closing
argument, Foley’s attorney repeated Instruction 22, which
reads: “In deciding whether an orthopaedic surgeon
exercised reasonable care and skill in the treatment of a
patient, you must consider only the expert testimony of
10
Instruction 20 stated:
An orthopaedic surgeon commits an act of malpractice
when the orthopaedic surgeon fails to exercise the degree of
reasonable care and skill in providing health care to a
patient as would a reasonably careful, skillful and prudent
orthopaedic surgeon acting under the same or similar
circumstances, or the failure to do something that the
orthopaedic surgeon should have done under the circum-
stances.
Instruction 21 stated:
Orthopaedic surgeons are allowed wide range in exer-
cising their judgment and discretion. They are not limited
to the most generally used methods of treatment.
When other approved methods of treatment are available,
the orthopaedic surgeon must exercise sound judgment
in choosing the treatment. If an orthopaedic surgeon
exercises sound judgment in selecting from a variety of
approved treatments and uses ordinary care and skill in
treating a patient, then the orthopaedic surgeon is not
responsible for the treatment’s lack of success.
The fact that other methods existed or that another
orthopaedic surgeon would have used a different treat-
ment does not establish malpractice.
No. 07-2689 11
qualified orthopaedic surgeons who are members of the
orthopaedic surgeon’s profession.” He then stated: “Dr.
Lieberson is not an orthopedic surgeon[ ], ladies and
gentlemen.” Counsel for the Griffins immediately objected
and a bench conference ensued. At the conference, the
district court denied the objection, but allowed the Grif-
fins’ attorney to argue during rebuttal that the court
recognized Lieberson (who was a neurosurgeon) as an
expert. After the bench conference concluded and upon
resuming his closing argument, Foley’s counsel stated
that Lieberson’s “testimony cannot be considered when
you’re analyzing whether Dr. Foley met the standard of
care. That is your instruction.” During his rebuttal, the
Griffins’ attorney told the jury the following:
Now, [Foley’s attorney] spent a big time telling you
about Dr. Lieberson, his not being qualified to render
an opinion because of the jury instruction, and you saw
me run up to the bench. That’s a mistake in the jury
instructions. Dr. Lieberson was recognized as an
expert by His Honor. His Honor said he’s qualified to
render opinions in this case. We asked both Dr. Weis
and Dr. Lieberson whether neurological surgeons and
orthopedic surgeons coalesce on the spine. That’s the
testimony here. Use your common sense.
After closing, the Griffins moved to have the instructions
amended to say “spinal surgeons” instead of “orthopaedic
surgeons.” The district court denied that motion, stating
that the “jury understands the Court’s instructions, and the
jury understands that the Court recognized Dr. Lieberson
as an expert and was able to give his opinion in this case.”
12 No. 07-2689
The jury returned a verdict in favor of Foley. The Griffins
moved for judgment as a matter of law or, in the alterna-
tive, for a new trial. The district court denied that motion.
Nineteen days after trial, the Griffins served a subpoena
on Sasso, Foley’s expert who testified at trial. The sub-
poena required that Sasso
1. Produce redacted copies of any and all operative
report(s) for repairing/fusing with internal fixation of
a thoraco-lumbar burst vertebral fracture using coral
reef a/k/a ProOsteon 500 without autologous iliac crest
bone graft in 1994 and/or 2006.
2. Produce redacted copies of any operative report at
any time since the year 1994 wherein a laminectomy
was performed during the course of repairing/fusing
with internal fixation of a thoraco-lumbar burst verte-
bral fracture.
3. Produce redacted copies of any operative report for
repairing/fusing with internal fixation of a thoraco-
lumbar burst fracture in the year 1994 to present
wherein the operative note denotes the use of bone
recovered from a laminectomy as bone graft.
4. Produce any peer reviewed journal article or text-
book that articulates/discusses/recommends the use
of ProOsteon/coral reef in spinal fusions in the years
1994, 1995, 1996, or 1997.
5. Produce any peer reviewed journal article or text-
book that articulates/discusses/recommends the use of
ProOsteon/coral reef without iliac crest autologous
bone graft in thoraco-lumbar spinal fusions.
No. 07-2689 13
6. Produce any peer reviewed journal article or spinal
text that states that iliac crest autograft is not
osteoinductive and contains no live cells when used as
a graft.
Foley filed a motion for a protective order seeking to quash
the subpoena and stop any post-trial discovery. The
Griffins responded that the discovery was necessary
because, among other reasons, they “believe[d]” that Sasso
testified falsely at trial when he stated that “there are
many scientific articles and clinical studies that have been
done looking at hydroxyapatite Pro Osteon to extend
bone grafting in this instance.” The Griffins submitted two
affidavits with their response, one from Dr. Lieberson
claiming that “Sasso’s testimony was likely misleading
and possibly inaccurate”; and the other from Dr. Weis
stating that “either Dr. Sasso’s testimony or my testimony
was inaccurate.”
The district court granted the motion for the protective
order. This appeal followed.
II.
On appeal, the Griffins raise several challenges to the
district court’s management of their case both before,
during, and after trial. First, the Griffins argue that the
district court erred in granting Foley an extension of time
to respond to their August 9, 2006, motion to bar expert
testimony about the use of coral reef meeting the standard
of care. They assert that Foley’s stated reason for the
extension—that he needed to wait until the medical review
14 No. 07-2689
panelists submitted their Rule 26 expert reports before
responding—was a mere pretext because Foley never
produced expert reports for the panelists. The Griffins
further contend that since Foley had Sasso’s Rule 26 report
completed as of June 15, 2006, Foley should have been
able to respond to the Griffins’ motion well before the
August 24 deadline.
We review a district court’s decision to grant an exten-
sion of time for an abuse of discretion. Research Sys. Corp.
v. IPSOS Publicite, 276 F.3d 914, 919 (7th Cir. 2002) (noting
that “[t]he decision concerning whether to grant a con-
tinuance is left to the broad discretion of the district
court”). “District court judges, because of the very nature
of the duties and responsibilities accompanying their
position, possess great authority to manage their caseload.”
Gonzales v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1030
(7th Cir. 1998) (quoting United States v. Reed, 2 F.3d 1441
(7th Cir. 1993)). For that reason, “[m]atters of trial man-
agement are for the district judge; we intervene only
when it is apparent that the judge has acted unreasonably.”
Research Sys., 276 F.3d at 919 (quoting N. Ind. Pub. Serv. Co.
v. Carbon County Coal Co., 799 F.2d 265, 269 (7th Cir. 1986)).
Although Foley later decided not to file expert reports
from the medical review panelists, we assess the reason-
ableness of the district court’s decision to grant the ex-
tension at the time it was made—not in hindsight. See
Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). And
viewing this issue from that vantage point, we find no
abuse of discretion in the district court’s decision to
grant Foley an extension. Extensions of time to respond
No. 07-2689 15
to important motions, like this one (which effectively
sought to prevent Foley from presenting a defense on the
central issue in the case), are routinely granted by district
courts and rarely questioned on appeal. With the expert
reports from the medical review panelists still outstanding,
it would have made little sense to require Foley to respond
to the Griffins’ motion twice, first with respect to Sasso
and later when those expert reports were completed. Such
a piecemeal approach would have been a waste of the
parties’ and the court’s time. Moreover, though the Griffins
incurred some inconvenience from the granting of the
extension, the extension was not prejudicial. The trial did
not commence until April 2007, more than half a year
after Foley’s response was filed. Thus, the Griffins had
ample time to effectively prepare for trial even with the
delay caused by the granting of an extension of time for
Foley to respond.
Next, the Griffins take issue with the district court’s
admission of testimony from defense witnesses con-
cerning the support in the medical literature for the use of
Pro Osteon in a spinal fusion surgery. We review the
district court’s decision to admit or exclude evidence for
an abuse of discretion. Estate of Moreland v. Dieter, 395 F.3d
747, 753 (7th Cir. 2005). “Under the ‘abuse of discretion’
standard of review, the relevant inquiry is not how the
reviewing judges would have ruled if they had been
considering the case in the first place . . . .” Wheeler v. Sims,
951 F.2d 796, 802 (7th Cir. 1992) (quoting Deitchman v. E.R.
Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir. 1984)).
Rather, the district court’s decision is to be overturned
only if no reasonable person would agree with the trial
16 No. 07-2689
court’s ruling. Snipes v. Ill. Dep’t of Corr., 291 F.3d 460, 463
(7th Cir. 2002).
The Griffins object to Dr. Sasso’s testimony at trial that
there were “many scientific articles and clinical studies
that have been done looking at hydroxyapatite Pro Osteon
to extend bone grafting in this instance.” According to the
Griffins, the admission of that testimony was unfair
because they specifically requested the production of
any peer-reviewed scientific articles upon which Sasso
planned to rely in his trial testimony, yet never received
any.
The Griffins admit that they did not object to that
testimony at trial. Yet they attempt to avoid forfeiture by
pointing to the district court’s denial of one of their
motions in limine and claiming that it preserved their
objection pursuant to Fed. R. Evid. 103(a).1 1 The motion
to which they refer stated:
Defendant has listed on his Amended Final Witness
and Exhibit List “medical literature relied upon by
medical experts and/or physicians.” Defendant has
not disclosed any medical literature or treatises
which his medical experts relied upon in formulating
their opinions in this case. . . . Should Defendant use any
undisclosed literature, articles or treatises in his direct (or
re-direct) examination of his experts, the same will . . .
11
That rule states that “[o]nce the court makes a definitive
ruling on the record admitting or excluding evidence, either at
or before trial, a party need not renew an objection or offer
of proof to preserve a claim of error for appeal.”
No. 07-2689 17
effectively deny Plaintiffs a reasonable opportunity
for their counsel to review the materials to confirm
that the “whole article” stands for the proposition
being made with the witness on the stand; or whether
statements contained therein are being taken out of
context so as to mislead the jury. (Had the disclosure
been timely, preparation for such instances could have
been made.) Accordingly, Plaintiffs move to preclude
Defendant from using any literature or treatises in the
direct or re-direct examinations of his experts.
(Emphasis added.) Notably, the motion attempted only
to prevent Foley from introducing any specific medical
article or treatise that was not disclosed before trial in his
case in chief. It did not cover Sasso’s testimony, however,
which concerned only Sasso’s general recollection of the
support in the medical literature for using Pro Osteon as a
bone graft extender and did not discuss any specific
articles.12 That testimony was fully disclosed before trial.1 3
12
Indeed, Sasso admitted during cross-examination that he
did not bring (nor was asked to bring by Foley’s counsel) any
specific article that supported the use of Pro Osteon.
13
The Griffins should have been well aware before trial that
Dr. Sasso was going to testify that his opinion about Pro Osteon
was based on his general recollection of the medical literature,
and not on any specific article. Dr. Sasso’s Rule 26 report stated
that he based his opinions on his “training, experience, and
research interests” and that the use of Pro Osteon as a bone-graft
extender was a “well-recognized” technique. Dr. Sasso further
elaborated in an affidavit supplementing that report: “As for the
(continued...)
18 No. 07-2689
Consequently, the Griffins have failed to preserve their
objection to Sasso’s testimony for appellate review. Fed. R.
Evid. 103(a)(1); see also Jones v. Lincoln Elec. Co., 188 F.3d
709, 727 (7th Cir. 1999) (“When a party fails to timely and
properly object at trial to the admission of evidence, the
party is deemed to have waived the issue on appeal.”).
Furthermore, even if the Griffins’ motion in limine had
preserved their objection, we see no error warranting
reversal in allowing Sasso to testify thus. Sasso did not
refer to any specific medical literature supporting the
use of Pro Osteon in this case. He made one brief reference
to his general understanding of the medical literature in
the passage of his testimony quoted above. Moreover,
Foley’s attorney did not attempt to elicit any more testi-
mony on that subject. And the Griffins’ attorney had more
than ample opportunity during cross-examination to
challenge the basis for Sasso’s statement, just as Foley’s
attorney had the same opportunity after Weis gave what
was essentially an opinion contrary to Sasso’s.1 4 The
Griffins’ substantial rights were therefore not affected by
13
(...continued)
methodology utilized in developing my opinions, my opinions
are based upon my education, training, experience, research,
clinical practice, scientific presentations and understanding of
the literature in the area of orthopaedic surgery.” (Emphasis added.)
14
Weis testified during direct examination to the effect that it
was not an established practice in the medical community to
use Pro Osteon in the manner Foley did. On cross-examination,
Foley’s attorney asked whether Weis had “done any specific
literature review or looked at any specific articles to
develop [his] opinions,” to which Weis responded: “I have not.”
No. 07-2689 19
the admission of Sasso’s testimony. See Fed. R. Civ. P. 61;
see also Wipf v. Kowalski, 519 F.3d 380, 386 (7th Cir. 2008).
The Griffins also object to the district court’s admission
of Foley’s testimony on redirect about two articles, one
from the manufacturer of Pro Osteon and one from an
advertising trade publication, “Orthopedics Today,”
discussing the use of Pro Osteon in spinal fusions. They
provide little argument in their brief, however, explaining
why that testimony was objectionable, other than to
repeat the hearsay and relevancy objections their lawyer
made at trial. In any event, the district court did not abuse
its discretion in admitting that testimony because the
Griffins’ attorney “opened the door” to it. “[W]hen a
party opens the door to evidence that would be otherwise
inadmissible, that party cannot complain on appeal about
the admission of that evidence.” United States v. Gilbertson,
435 F.3d 790, 797 (7th Cir. 2006) (internal citation omitted).
As the district court noted here, counsel for the Griffins
during cross-examination questioned Foley specifically
about the two articles. On redirect, Foley testified that
those two articles, which he had produced for the Grif-
fins’ attorney, did support the use of Pro Osteon in spine
fusions.15 Since that testimony was elicited simply to rebut
the impression that Foley had not provided any informa-
tion on the use of Pro Osteon in spinal fusions, its admis-
sion was proper. Cf. Wipf, 519 F.3d at 386 (finding that
plaintiff “opened the door” to cross-examination on
15
The articles themselves were not entered into evidence
and admitted as exhibits to the jury.
20 No. 07-2689
a scientific article published in 2005 when her attorney
questioned an expert about a previous article by the
same author whose views were updated in the 2005
article).
The Griffins next challenge the district court’s denial of
their motion to strike the motions in limine Foley filed on
September 27, 2006, which sought to limit the Griffins’
expert testimony. According to the Griffins, the deadline
for motions seeking to limit expert testimony at trial in
the case management plan was August 10, 2006. Allowing
Foley to file his motions more than a month and a half
after that date, the Griffins argue, was an abuse of discre-
tion, deprived them of a fair trial, and amounted to “trial
by ambush.” The problem with that argument is that even
if the district court’s action in allowing Foley’s motions to
be filed at so late a date constituted a gross abuse of
discretion, the Griffins cannot show that they were de-
prived of a fair trial—nor that they were subjected to “trial
by ambush”—by that error. The Griffins’ motion to
strike Foley’s motions in limine was denied on October 4,
2006. The very next day, the Griffins filed a motion—which
was granted—to reset the trial date. The trial did not
commence until April 6, 2007, more than six months after
the denial of the Griffins’ motion to strike (and the dis-
trict court’s decisions on Foley’s motions in limine). In
light of that chronology, the Griffins’ claim that they were
somehow “ambushed” at trial due to the late filing of
Foley’s motions in limine has no merit.
Next, the Griffins argue that the district court erred in
refusing to allow them to use the “discovery” portions of
No. 07-2689 21
the first depositions of their experts at trial. They also
challenge the exclusion of the testimony their lawyer
elicited from Weis during the beginning of the follow-up
deposition. As was mentioned above, we review a
district court’s decision to admit or exclude evidence for
an abuse of discretion. Dieter, 395 F.3d at 753.
The Griffins argue that the district court’s distinction
between “evidentiary” and “discovery” depositions is
erroneous. They cite to Tatman v. Collins, 938 F.2d 509 (4th
Cir. 1991). In that case, the plaintiff’s expert became
unavailable due to a scheduling conflict. As a consequence,
the plaintiff sought to introduce the expert’s deposition
testimony at trial. The defendant objected, and the
district court excluded the deposition on the basis that
it was a “discovery” deposition rather than one taken
for use at trial. The Fourth Circuit reversed, stating that
“[t]he Federal Rules of Civil Procedure make no distinc-
tion for use of a deposition at trial between one taken
for discovery purposes and one taken for use at trial.” Id.
at 510.
We acknowledge the Tatman court’s general point that
the rules are silent regarding any distinction between
depositions for discovery purposes and those taken for
the purpose of use at trial. But given the particular cir-
cumstances that arose during discovery in this case,
Tatman does not resolve the issue. In contrast to the
situation in Tatman, the Griffins were well aware of the
unavailability of their experts long before trial. Shortly
before Foley’s first discovery deposition of the Griffins’
experts was scheduled to begin, the Griffins sought to
22 No. 07-2689
include their own deposition of their expert at the
same sitting for use as their evidentiary proof at trial.
Foley’s attorneys objected, asserting that they had not been
given a sufficient opportunity to discover the basis of the
expert testimony by the Griffins’ experts in order to
prepare for cross-examination. The magistrate judge,
responding to that concern, 1 6 ordered that Foley first be
allowed to take depositions of the Griffins’ experts for
discovery purposes, followed at a later date by a deposi-
tion to be used for purposes of trial. In essence, the magis-
trate judge proposed a separate deposition schedule
for each expert purely for the purposes of obtaining
testimony for use at trial. (Though the magistrate judge’s
order contemplated that the second deposition would
be for purposes of evidentiary proof, the Griffins’ attorney
chose to elicit testimony for use at trial immediately after
Foley’s counsel concluded the “discovery” portion of the
experts’ first depositions, instead of at the follow-up
depositions.)
Although the rules are silent about employing such
a procedure, we believe that the magistrate judge’s use
of it in this case was reasonable and within his discre-
tion. Foley legitimately noticed the discovery depositions
to be taken in advance of the evidentiary depositions.
The obvious purpose of discovery is to determine the
16
Although the Griffins claim that the experts’ Rule 26 reports
should have been enough for Foley to prepare his cross-
examination of those experts, we note that in the district
court the adequacy of the Griffins’ Rule 26 disclosures was
vigorously disputed.
No. 07-2689 23
opinions and positions of the opposition’s witnesses and
prepare for cross-examination. Had there not been some
gap in time between the discovery depositions and the
cross-examination of the Griffins’ experts, Foley’s attor-
neys would not have been able to effectively prepare for
cross-examination.
Given the reasonableness of the magistrate judge’s
procedure for allowing the Griffins to obtain their eviden-
tiary proof from their experts before trial, the district
court did not abuse its discretion when, following through
on what the magistrate judge had allowed, it confined
the Griffins at trial to the “evidentiary” portions of the
first depositions. The Griffins had already requested and
been granted a fair opportunity to elicit deposition testi-
mony for use at trial. The Griffins had their chance to ask
Weis any question they wanted during the “evidentiary”
portion of the first depositions. Foley’s counsel’s video-
taped cross-examinations of the Griffins’ experts were
in response to the testimony presented in those
designated evidentiary depositions. To allow the
Griffins to introduce testimony from the experts’ deposi-
tions that was outside the scope of the “evidentiary”
portions would therefore have been unfair to Foley. For
the same reason, the district court did not abuse its dis-
cretion in excluding the testimony elicited by the Griffins’
attorney at the beginning of what was supposed to be
confined to Foley’s cross-examination of Weis.
The Griffins next challenge the inclusion of the phrase
“orthopaedic surgeon” in Instructions 20, 21, and 22. Of
those three, the Griffins primarily focus their arguments
24 No. 07-2689
on Instruction 22, which instructed the jury that “[i]n
deciding whether an orthopaedic surgeon exercised
reasonable care and skill in the treatment of a patient, you
must consider only the expert testimony of qualified
orthopaedic surgeons who are members of the orthopaedic
surgeon’s profession.” The Griffins contend that Instruc-
tion 22’s use of the confining phrase “orthopaedic surgeon”
effectively wiped out the testimony of their expert
Lieberson because he was a neurosurgeon and not an
orthopedic surgeon. As a consequence, the Griffins seek a
new trial.
In response, Foley asserts that the Griffins failed to
timely object under Fed. R. Civ. P. 51. Subsection (b)(2) of
Rule 51 states that the court must give the parties an
opportunity to object on the record before the instruc-
tions and arguments are delivered. Subsection (c)(2) of
Rule 51 states that “[a]n objection is timely if a party
objects at the opportunity provided under Rule 51(b)(2).”
Here, the district court gave the Griffins an opportunity
to record objections to any of the instructions on the
record. They objected to one instruction but failed to
raise any objection to Instruction 22. While the Griffins
argue that the mere tendering of proposed instructions
different from the instructions given is sufficient to pre-
serve the objection, we specifically rejected that argument
in Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994).1 7
17
The Griffins claim that Gordon is questionable authority in
light of the 2003 amendments to Rule 51, but that is not correct.
(continued...)
No. 07-2689 25
Thus, their objection was not properly preserved.
Nevertheless, as a last resort, Rule 51 now allows a
court to remedy an error in the instructions that was not
properly preserved if the error is plain and affects sub-
stantial rights. Fed. R. Civ. P. 51(d)(2); see also Mesman
v. Crane Pro Servs., 512 F.3d 352, 357 (7th Cir. 2008)
(“[W]hile a plain error even in instructions in a civil case
is now a basis for reversal, reversal is not automatic; it is in
the discretion of the reviewing court . . . .” (Internal
citations omitted.)). Assuming that it was error to use
“orthopaedic surgeon” in Instruction 22 when an impor-
tant witness was a neurosurgeon, that error does not merit
a new trial. Although the issue is close, the Griffins have
not shown that the error in instruction affected their
substantial rights. In other words, the Griffins’ case “is not
so strong that we can say that had it not been for an
erroneous instruction [they] would surely have prevailed
at trial.” Mesman, 512 F.3d at 357.
Instruction 22 operated to remove from the jury’s
consideration Lieberson’s testimony with respect to the
17
(...continued)
Though adding plain error review, the 2003 amendments to
Rule 51 actually tightened the window during which an objec-
tion to a jury instruction is proper. The pre-2003 rule allowed
a timely objection at any time “before the jury retires to con-
sider its verdict,” Gordon, 29 F.3d at 298 (quoting Rule 51 as it
was before the 2003 amendments), whereas the rule now
requires a party to object at the opportunity provided by the
court “before the instructions and arguments are delivered.”
Fed. R. Civ. P. 51(b)(2) (2008).
26 No. 07-2689
standard of care. If Lieberson had been the only expert
testifying in favor of the Griffins on the issues sur-
rounding the standard of care, then we might be com-
pelled to reverse.18 But the Griffins’ was not a one-expert
case. Instruction 22 did not leave the Griffins bereft of all
expert testimony on the standard of care because the
jury still had Weis’s testimony before it. Weis gave sub-
stantially the same opinions as Lieberson on the crucial
standard-of-care issues, such as whether Foley ought to
have used bone from Lisa’s iliac crest rather than
laminar bone for a bone graft, whether Foley’s use of Pro
Osteon in Lisa’s surgery violated the standard of care,
and whether Foley met the standard of care in his post-
operative treatment of Lisa.1 9 True, the testimony of
Lieberson and that of Weis were not identical; in fact, in
18
The Griffins were able to argue that the district court qualified
Lieberson as an expert, so the jury would still have con-
sidered his testimony to a certain extent—just not with respect
to whether Foley exercised reasonable care and skill in the
treatment of Lisa.
19
There is one opinion on the standard of care that Lieberson
expressed that was not reiterated by Weis. Lieberson stated
that the laminectomy Foley performed during the surgery was
not necessary. If Instruction 22 erroneously excluded Lieberson’s
testimony, then it would have prevented the jury from con-
sidering that opinion. The exclusion of that opinion from the
jury’s consideration does not warrant reversal, however, because
Foley himself testified during cross-examination that the
laminectomy was not necessary for purposes of decom-
pressing the spinal canal. Given Foley’s admission, Lieberson’s
opinion testimony with respect to the need for a laminectomy
was not essential to the Griffins’ case.
No. 07-2689 27
many instances Lieberson’s opinions were much more
detailed and clearly explained. Lieberson also testified live,
while Weis’s testimony was via videotaped deposition.
Nevertheless, viewing the evidence presented at trial as
a whole, we are unable to conclude that Lieberson’s
testimony, giving substantially the same opinions on the
standard of care as Weis, would have swayed the jury
verdict in the Griffins’ favor had not Instruction 22 ex-
cluded it. Thus, we decline to exercise our discretion to
order a new trial on account of Instruction 22.
Lastly, the Griffins claim that, after trial, the district
court erred in quashing their subpoena seeking post-trial
discovery from Sasso. The Griffins believe that Sasso lied
when he stated at trial that “there are many scientific
articles and clinical studies that have been done looking
at hydroxyapatite Pro Osteon to extend bone grafting.”
They assert that the information subpoenaed was neces-
sary to establish Sasso’s dishonesty.
We review a district court’s decision to limit discovery
for abuse of discretion. Vallone v. CNA Fin. Corp., 375 F.3d
623, 629 (7th Cir. 2004). There was no abuse of discretion
here. The district court had closed discovery long before
the Griffins’ post-trial attempt to subpoena Sasso. The
place to challenge Sasso’s statement was during cross-
examination, not after trial. Post-trial discovery is usually
reserved for when a party becomes aware of new informa-
tion after trial. See Viskase Corp. v. Am. Nat’l Can Co., 261
F.3d 1316, 1324 (Fed. Cir. 2001). Although at least one
court has allowed post-trial discovery where there was
evidence of perjury, see Viskase Corp. v. Am. Nat’l Can Co.,
28 No. 07-2689
979 F. Supp. 697, 699-703 (N.D. Ill. 1997), the Griffins have
not offered any evidence of perjury that would justify post-
trial discovery in this instance. The affidavits of Weis and
Lieberson accompanying the Grifffins’ response to Foley’s
motion for a protective order say only that they believed
Sasso’s testimony to be “inaccurate”; they do not begin to
show that Sasso’s testimony was false, much less perjury.2 0
See Montaño v. City of Chicago, __ F.3d __ , No. 06-2148, slip
op. at 8 (7th Cir. July 23, 2008) (defining perjury as “false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory”). Thus, the district
court did not abuse its discretion by refusing to allow
discovery in response to the Griffins’ unsubstantiated
allegations of false testimony. See H.K. Porter Co. v. Good-
year Tire & Rubber Co., 536 F.2d 1115, 1122 (6th Cir. 1976)
(“The District Judge who presided over this protracted
trial and who considered the evidence offered by Goodyear
in support of its Rule 60(b) motion, did not believe that
any fraud on the Court had been perpetrated on him. As
an experienced trial judge he was in the best position to
20
Indeed, Weis’s statement in his affidavit that during the
“considerable amount of time searching the medical literature”
he spent in preparation for the case he was “unable to establish
any basis upon which Dr. Sasso could reassure the court
regarding the appropriate use of coral hydroxapatite” was
itself misleading, since Weis acknowledged during cross-
examination that he had not done any specific review of the
medical literature with respect to his opinion about the ap-
propriate use of Pro Osteon.
No. 07-2689 29
know. He was also in a good position to evaluate
whether [the proposed discovery] would have made any
difference in his holding . . . .”).
Moreover, the district court was well within its discre-
tion to quash the subpoena as unduly burdensome. See
Fed. R. Civ. P. 45(c)(3)(A)(iv). What the subpoena sought
from Sasso was far more expansive than information
related to his testimony about articles and studies sup-
porting the use of Pro Osteon. For instance, the subpoena
commanded Sasso to produce “redacted copies of any
operative report at any time since the year 1994 wherein
a laminectomy was performed during the course of
repairing/fusing with internal fixation of a thoraco-lumbar
burst vertebral fracture.” It also would have required Sasso
to “[p]roduce redacted copies of any operative report for
repairing/fusing with internal fixation of a thoraco-lumbar
burst fracture in the year 1994 to present wherein the
operative note denotes the use of bone recovered from
a laminectomy as bone graft.” Those far-reaching requests
had nothing to do with whether any articles or studies
supporting the use of Pro Osteon existed. The Griffins’
contention that the district court abused its discretion
in quashing their untimely and overly-broad subpoena
is without merit.
III.
As we have said before, “civil litigants are entitled to a
fair trial, not a perfect one.” Lemons v. Skidmore, 985 F.2d
354, 357 (7th Cir. 1993). In its order denying the Griffins’
motion for a new trial, the district court stated that it was
30 No. 07-2689
satisfied that the Griffins received a fair trial. We echo
that sentiment, and A FFIRM the judgment of the district
court.
9-4-08