Gillis v. United States

December 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1496

BEVERLY GILLIS,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Lawrence P. Cohen, Magistrate Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Frank J. Ciano for appellant.

George B. Henderson, II, Assistant United States Attorney,

with whom A. John Pappalardo, United States Attorney, was on

brief for appellee.

BOWNES, Senior Circuit Judge. Plaintiff-appellant,
BOWNES, Senior Circuit Judge.

Beverly Gillis, sued the United States under the Federal Tort

Claims Act, 28 U.S.C. 2671-2680. Summary judgment on

liability was granted to plaintiff without opposition by the

defendant-appellee, United States. After trial, a magistrate

judge found that plaintiff's damages amounted to $12,000.

Dissatisfied with that sum, plaintiff appealed. There are

two issues before us: whether the trial court's finding of

damages was erroneous; and whether the trial court erred in

allowing defendant's expert witness to testify.

I.

It is beyond cavil that findings of fact by the

trial court are subject to the "clearly erroneous" standard

of review. Fed. R. Civ. P. 52(a); Anderson v. Bessemer City,

470 U.S. 564, 573 (1985); American Title Ins. Co. v. East

West Fin. Corp., 959 F.2d 345, 345-46 (1st Cir. 1992);

LoVuolo v. Gunning, 925 F.2d 22, 24-25 (1st Cir. 1991);

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152

(1st Cir. 1990).

We recapitulate the pertinent findings of the trial

court. Plaintiff was injured on May 10, 1988, when the rear

bumper of a mail truck "hooked" the front bumper of the

parked car in which she was sitting. Plaintiff testified

that she felt neck pain at the time. After driving her

brother home and picking up her daughter at school, plaintiff

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went to the hospital, was treated and discharged. Her pain

increased two or three weeks after the accident, and she was

referred to an orthopedic specialist.

In 1978 plaintiff injured her back at work. In

1984 or 1985 she fell down some stairs, injuring her back

again. In 1985 she experienced "severe" neck pain, without

any trauma, and was treated by a chiropractor.

Plaintiff offered the expert testimony of her

neurologist, Dr. Fullerton, via a videotape deposition. Dr.

Fullerton was her last treating physician. He ordered an

electromyogram (EMG) and magnetic resonance imaging (MRI).

Based on these procedures, Dr. Fullerton found that there was

no significant nerve defect, but that there was a slight

herniation of the C-4/C-5 disc. It was Dr. Fullerton's

opinion that the herniation and consequent pain was caused by

the accident involving the mail truck. Dr. Fullerton had not

been informed by plaintiff of the two prior accidents

involving her back or the trauma-absent neck pain she

experienced in 1986.

Defendant's expert witness was Dr. Logigian. He

had examined plaintiff, the EMG, and MRI reports, and was

advised of plaintiff's three prior injuries. It was Dr.

Logigian's opinion that plaintiff's pain was caused by the

herniated disc and the herniation was not caused by the mail

truck accident.

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The magistrate judge credited the testimony of

defendant's expert over that of plaintiff's. That, of

course, was a decision entirely within the court's

discretion.

The trial court stated:

In the circumstances, this court
cannot fairly conclude that all of

plaintiff's medical bills, lost income,
or pain and suffering, [were] caused by

the negligence of the government. To be
sure, as argued by counsel for plaintiff,
a "wrongdoer [is] responsible for the
harmful results of the combined effects

of his wrongful act and a preexisting
disease or condition." McGrath v. G. &

P. Thread Corp., 228 N.E.2d 450, 453

(Mass. 1967). (Emphasis added). That is
a correct statement of the law so far as
it goes. But the corollaries to the rule
also [apply] - i.e., that a wrongdoer is

not liable for damages suffered by a

plaintiff which that plaintiff would have
suffered solely on account of the
preexisting condition, or for damages for
a worsening of that preexisting condition
which was bound to occur even if no
further injury was suffered.

(Footnotes omitted.)

The court pointed out that plaintiff did not try

her case on an "aggravation" theory, "at least [not] by or

through her expert." Our examination of the pleadings

reveals that neither the first nor the amended complaint

states or implies that the accident aggravated an underlying

injury. Count 5 of the amended complaint states:

As a result [of the accident] the
plaintiff sustained serious injury,
suffered pain of body and mind, incurred

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medical bills and has been unable to
perform her usual duties and activities.

The court held:

In short, this court finds and
concludes that, although the accident did
cause some "aggravation" of a preexisting
injury immediately after the injury, the
pain and suffering about which plaintiff
now complains, and most of the medical
bills incurred by plaintiff, was and is
the sole result of either a disc
herniation which preceded the accident in
question, or a condition which would have
occurred even in the absence of that
accident. (Footnote omitted.)

The court then awarded plaintiff $12,000 as damages.

We have fully considered all of plaintiff's

arguments and have read the record carefully. Viewing the

evidence and findings through the lens of the clearly

erroneous standard of review, we find no basis for a

challenge to the trial court's findings and holding.

II.

The next issue is whether the court erred in

allowing defendant's expert to testify at the trial.

Plaintiff's argument is based on a claimed violation of Fed.

R. Civ. P. 26(e)(1),1 which states:

A party is under a duty seasonably to
supplement the response with respect to
any question directly addressed to (A)
the identity and location of persons
having knowledge of discoverable matters,

1. Rule 26(e) has been changed, effective December 1, 1993,
but the change neither affects subsection (1) nor plaintiff's
argument.

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and (B) the identity of each person
expected to be called as an expert
witness at trial, the subject matter on
which the person is expected to testify,
and the substance of the person's
testimony.

Sometime prior to trial, plaintiff submitted an

interrogatory to defendant that requested the following

information: "State the names and addresses of all persons

defendant intends to call as a witness in the trial of the

within matter, and the substance of said testimony."

Appellant's Brief at 19. Two weeks prior to trial, defendant

identified Dr. Logigian as an expert expected to testify.

Plaintiff contends that this interrogatory was not answered

seasonably and therefore the testimony of defendant's expert

should have been excluded. Plaintiff so moved in the trial

court prior to the start of trial.

The question is whether the answer was made

seasonably.2 The facts are not as stark as plaintiff

suggests. The best way to explain the trial court's ruling

is to quote directly from its opinion.

On or about March 25, 1993, plaintiff
filed a motion in limine to preclude the
testimony of Dr. Logigian on the grounds
that he was not listed as a witness by
the government.

Given, however, that no pretrial order
as such, fixing witnesses, was entered by

2. Although the interrogatories and answers thereto were not
part of the record below, we reject defendant's contention
that we, therefore, should not consider this issue.

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this court, and given, as reported in the
motion, that the plaintiff was - and had
been - in possession of Dr. Logigian's
full report in February, this court
denied that motion on March 25, 1993.

When trial began, counsel for
plaintiff was apparently unaware of this
court's action on the motion. The motion
was renewed. At that time, this court
again denied the motion, but made clear
that the court would revisit the matter
if, after direct examination, plaintiff
could establish any prejudice.

Direct examination proceeded, and Dr.
Logigian was adequately and competently
cross-examined by counsel for plaintiff.
The matter was not again brought to the
attention of this court.

App. 187A, n.5.

Immediately prior to the start of trial,

plaintiff's counsel admitted, in reply to a question by the

court, that the report furnished him contained all the

information that an answer to the interrogatory would have

disclosed. And, although arguing that disclosure of the

expert's report came too late for necessary in-depth

preparation for cross-examination, plaintiff's lawyer did not

request a continuance.

It is universally accepted that review of discovery

sanctions must be made in light of the "abuse of discretion"

standard. See National Hockey League v. Metropolitan Hockey

Club, 427 U.S. 639, 642 (1976); Thibeault v. Square D Co.,

960 F.2d 239, 243 (1st Cir. 1992); Freund v. Fleetwood

Enters., Inc., 956 F.2d 354, 359 (1st Cir. 1992). Although

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the usual sanction is preclusion of testimony, we see no

reason not to apply an abuse of discretion standard when

evidence is admitted. And we have done so. In Smith v.

Massachusetts Inst. of Technology, 877 F.2d 1106 (1st Cir.),

cert. denied, 493 U.S. 965 (1989), we held that the trial

court did not abuse its discretion in refusing to strike an

expert's testimony. Id. at 1112. In that case, we pointed

out:

"Courts have looked with disfavor upon
parties who claim surprise and prejudice
but who do not ask for a recess so they
may attempt to counter the opponent
testimony."

Id. at 1111 (quoting Johnson v. H.K. Webster, Inc., 775 F.2d

1, 8 (1st Cir. 1985)). The trial court did not abuse its

discretion by allowing defendant's expert to testify.

Affirmed, costs to appellee.

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