Shelak v. White Motor Co.

JAMES C. HILL, Circuit Judge: In the case on appeal, the plaintiff-appel-lee John Shelak was injured when a step on his truck broke beneath his weight. The plaintiff brought this diversity action against the seller of the truck, White Motor Co.,1 on the theory of strict tort liability. The plaintiff alleged that the step that broke and caused his injuries was defectively designed. After a trial, the jury awarded the plaintiff $125,000. On this appeal, the defendant makes several assignments of error, one of which we find necessitates reversal of the district court judgment and remand for a new trial on the issue of damages. The defendant’s other assignments of error are meritless. We first address the error that necessitates reversal and remand. In order to do so a brief recapitulation of some of the facts, chronologically, is in order. The broken step incident giving rise to the litigation occurred on June 8,1972. Mr. Shelak received attention for back pain. On or about June 13, 1972, he suffered a heart attack. The present litigation was commenced by the filing of Mr. Shelak’s complaint in the district court on June 4, 1974, about two years after the accident and the heart attack. During these two years, Mr. Shelak consulted approximately eleven doctors for a variety of medical problems, including pain in his back, leg, chest, neck, and arm. Furthermore, Mr. Shelak was involved in a truck accident on July 7, 1973, after which he complained of and was treated for shoulder and knee pain. The defendant was, therefore, confronted with a claim of bodily injury brought on behalf of a plaintiff with a medical history of multiple physical problems. Further, under “notice” pleading provided for in the Federal Rules of Civil Procedure, see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), the plaintiff need not have set out in the complaint specifically which of his ailments were claimed to have resulted from the broken step mishap.2 Therefore, more than a year before trial, the defendant addressed an interrogatory to the plaintiff requiring that the plaintiff respond by stating all “parts of the plaintiff’s body” that the plaintiff claimed to have been injured as a result of the accident. To this inquiry, the plaintiff answered, “Plaintiff’s low back including the muscles, tissues, ligaments, nerves and supportive structure thereof. Plaintiff sustained a ruptured disc.” Neither the complaint nor plaintiff’s responses to discovery revealed any assertion that the plaintiff’s heart attack was causally connected in any way to the truck step incident. No supplemental answers were ever made to the interrogatories during the year between their having been answered and the trial. See Fed.R.Civ.P. 26(e)(2)(B). The parties and counsel were, nearly two years after the commencement of the case — 1158 — (and nearly four years after the accident), called to the Court to select a jury and try the case.3 The plaintiff then asserted, and the defendant then confronted, a back injury case. The following occurred on the day of selection of a jury. The jury was sworn and excused, the taking of evidence to begin on the third day following. A pre-trial order was filed in which plaintiff’s contentions were said to be that the accident had caused “serious injuries to his back and nervous system and further was a producing cause of damage to his cardio vascular system, and body generally.” (emphasis added). During the night before the parties were to appear for the commencement of presenting evidence, plaintiff took the testimony of a physician whose name had not been furnished through discovery channels, although defendant’s interrogatories had sought names of expert witnesses.4 See Fed.R.Civ.P. 26(b)(4)(A)(i), (e)(1)(B). It was revealed that this medical expert had first examined the plaintiff on the day of jury selection. The physician testified to his medical opinion that the accident was a producing cause of plaintiff’s heart attack. On the next morning, when the parties and counsel appeared to present their evidence before the Court and the jury selected three days earlier, the defense counsel made two motions which appear to have been alternative motions. He moved, under the circumstances, to withdraw the defense announcement of ready, which, if granted, would have had the effect of a continuance. He moved, further or alternatively, that the expert testimony be excluded. Defendant asserted that it was unprepared to defend against the heart attack case which had been revealed only after the jury had been chosen; that the plaintiff had been attended by an internist following his heart attack nearly four years earlier but that defendant had no opportunity to produce that witness by deposition or otherwise; and that, at the time of jury selection, defense counsel had been unaware of the heart attack contention so that he had been unable to question prospective jurors concerning any experience any of them may have had with or knowledge of heart problems. The trial court denied both motions 5 and the case, thus formed, proceeded to trial and to the verdict and judgment against defendant from which this appeal is taken. — 1159 — There are other exceptions taken in the appeal. One merits mention, at this point. The defendant’s interrogatories had, as mentioned, sought discovery of plaintiff’s experts. These were to include experts whose opinions might relate to the design, maintenance, etc. of the step on the truck which failed, precipitating plaintiff’s fall. Here, again, plaintiff called an expert witness on this subject whose name had not been revealed in responding to defendant’s interrogatories. Without commending lack of candor in discovery, we find that this surprise does not amount to reversible error. It does not appear that defendant was prejudicially surprised, in fact. Defense counsel acknowledged at trial and in oral argument that, outside the record, he had learned several weeks before trial that the expert witness would likely be called. The record indicates that defendant was prepared to meet the contentions of plaintiff’s, design expert. The failure of the plaintiff candidly to reveal his claim of injury precipitating a heart attack goes to the question of damages. Plaintiff’s disregard for the federal rules of discovery in this area created a “trial by ambush” which those rules are designed to prevent. The rules are designed to narrow and clarify the issues and to give the parties mutual knowledge of all relevant facts, thereby preventing surprise. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In view of the delay between the time the complaint was filed and the trial, the plaintiff’s argument that he was unable earlier to find a doctor who could connect the heart attack with the accident is not persuasive. It must be assumed that plaintiff’s counsel had applied himself diligently to his client’s cause for almost two years and was yet unable to find, until the jury selection day, any qualified physician of the medical opinion that the incident caused the plaintiff’s heart attack. Plaintiff’s counsel had, presumably, conscientiously stated the plaintiff’s contentions, theretofore developed, in interrogatory answers and made no mention of such a claim. His unceasing search, right up to trial, may be commendable. Nevertheless, if discovery has any purpose, plaintiff’s opponent was entitled, upon the unveiling of the heart attack contention, to a reasonable opportunity to prepare to defend against it.6 If the trial judge was not disposed to deny the plaintiff the right to assert this eleventh hour contention, the only reasonable solution would have been to grant a sufficient delay to permit the defendant his right to prepare. Of course, it may well be possible in many cases for able counsel on an overnight basis to prepare and defend against last-minute claims by his adversary. Certainly, that sort of emergency litigation which could, degenerate into “quick-draw hip-shooting” is precisely what the discovery rules were designed to prevent. Under a holding approving the initial presentation of a principal claim and theory of recovery at the eleventh hour, as we find in this case, the discovery rules would serve as no inducement to a candid and orderly revelation of the claims, defenses, and facts upon which the issues would ultimately be presented. To be sure, the defendant was well aware of the fact that the plaintiff had suffered a heart attack, but there was no forewarning that the heart attack would serve as the foundation for one of the key issues at trial. The question the defendant had properly propounded by interrogatory to the plaintiff was designed to determine whether or not the plaintiff was proceeding in court under a claim that the heart attack was eauséd by the broken step incident. — 1160 — The answer given in discovery was that no such contention was made. At the eleventh hour, it was revealed that the heart attack was, indeed, a principal claim. The plaintiff’s only possible excuse for waiting until the last minute to notify the defendant of the claimed connection between the heart attack and the step accident would be that defense counsel ought to have guessed or surmised that his opponent had not been frank and candid in stating the plaintiff’s contentions and that his opponent, in defiance of the letter and spirit of the discovery rules, hoped and expected to present a different case at trial than the one he had revealed during discovery. There was a day when litigants learned their opponents’ contentions during trial. That day is said to have ended. Schlagen-hauf v. Holder, 379 U.S. 104, 114-115, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Burns v. Thiokol Chemical Corp., 483 F.2d 300, 304-05 (5th Cir. 1973). Affirmance of this case would authorize its return. The case must be, and is, reversed and remanded for a new trial limited to the question of damages. See Dollar v. Long Manufacturing, N.C., Inc., 561 F.2d 613, 615-18 (5th Cir. 1977); Davis v. Marathon Oil Co., 528 F.2d 395, 403-04 (6th Cir. 1975); Tabatchnick v. G.D. Searle & Co., 67 F.R.D. 49, 52-55 (D.N.J. 1975); Newsum v. Pennsylvania Railroad Co., 97 F.Supp. 500, 502 (S.D.N.Y.1951). Because the defendant was not prejudiced by the engineering expert’s testimony and because the physician’s testimony related solely to the plaintiff’s injuries, we have determined that the interests of justice and judicial economy will be served best by reversing and remanding this case for retrial solely on the issue of damages. Fed.R. Civ.P. 59(a); Parker v. Wideman, 380 F.2d 433, 437 (5th Cir. 1967); Atkinson v. Dixie Greyhound Lines, 143 F.2d 477, 479 (5th Cir. 1944). We may briefly dispose of the defendant’s other assignments of error. The defendant argues for the first time on this appeal that the district court should have applied Ohio law rather than Texas law. The law is settled in this court that parties generally are bound by the theory of law they argue in the district court, absent some “manifest injustice.” Empire Life Insurance Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972); Glona v. American Guarantee & Liability Insurance Co., 379 F.2d 545, 546 (5th Cir. 1967). No such injustice exists in the case on appeal. The defendant argues that the district court erred in failing to direct a verdict because there was insufficient evidence to support a finding that there was a defect in the design and construction of the step that caused the plaintiff’s injuries or to support a finding that the step had not been altered, changed, or misused. A motion for a directed verdict should be granted only “[i]f the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). A review of the record reveals that this standard was not satisfied. Similarly, the defendant’s argument that there was insufficient evidence to support the jury’s finding of defective construction or design is meritless. The defendant next argues that, because it merely sold the truck with the defective step, it is not strictly liable in tort for injuries caused by the product’s defective design. This argument clearly is without support in the law. The Texas courts have adopted § 402A of the Second Restatement of Torts. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). Comment a to § 402A expressly states that the section imposes strict liability on sellers. Additionally, courts applying Texas law have imposed strict liability on sellers for design defects. E. g., Simien v. S.S. Kresge Co., 566 F.2d 551 (5th Cir. 1978). Finally, the defendant argues that the district court improperly instructed the jury concerning the law of defective design by indicating to the jury that defective design can be established merely by showing that a different, safer design existed. — 1161 — It is settled law that, “In reviewing the trial court’s instructions to the jury, we must consider the charge as a whole, in connection with the contentions made by the parties in the trial court, and from the standpoint of the jury. If the charge in general correctly instructs, then even though a portion is technically imperfect, no harmful error is committed.” Troutman v. Southern Railway Co., 441 F.2d 586, 590 (5th Cir. 1971) and cases cited therein. Applying this test, we find that the court’s jury instructions correctly stated the law. REVERSED in part and REMANDED. Footnotes [1] Transport Indemnity Co., the intervenor in the case on appeal, is the worker’s compensation insurance carrier for the company that employed the plaintiff at the time of his accident. [2] The complaint alleged, “That the fall caused the complainant to sustain serious injuries to his back and nervous system.” [3] As of the date of this writing, some six years have elapsed since the plaintiff was injured. Since the case is remanded for further proceedings, the point in time when the plaintiff’s estate will finally be compensated for plaintiff’s injuries is unpredictable. Those who are interested in the plight of litigants in non-priority cases before the federal courts, see note 5 infra, need look no further than this case for an understanding of the problem. [4] The record is unclear as to when exactly the defendant was given verbal notice by the plaintiff concerning the name of this medical expert. Although the attorneys argued about the correct date in the presence of the trial court, no clear resolution presented itself, and the waters were further muddied at oral argument. Counsel for the defendant asserted that he was not aware of the physician’s identity until the day of jury selection. Counsel for the plaintiff, in turn, claimed that he told opposing counsel the physician’s name two or three days prior to jury selection. This Court sought to go outside the record through correspondence with counsel in order to determine whether the defendant was, in fact, prejudicially surprised by the testimony of the plaintiff’s medical expert. The discrepancy was never resolved, but it is clear that, at most, the defendant had no more than five or six days, two of which fell on a weekend, to prepare to defend against the physician’s testimony supporting the plaintiffs heart attack contention. [5] We recognize the problem confronting the trial judge when he heard the defendant’s motion. Due to the Speedy Trial Act, 18 U.S.C. § 3161 et seq., giving criminal cases preference in order of cases called, and the forty-odd other special priorities mandated by Congress, a civil case in the federal court system may not come to trial for many months or even years after it is filed. Here, the trial judge finally found a chance to try a civil case, and that case was apparently founded on a bona fide claim. He was, understandably, reluctant to suppress the heart attack evidence and thereby deny the plaintiff the chance to prove that portion of his claim. On the other hand, granting a continuance to allow the defendant time to prepare to meet the newly revealed contentions would postpone the plaintiff’s relief to an indeterminable point in the future, given the present case load and priorities in the federal court system. Two continuances, one on the plaintiff’s motion in March of 1975 relating to extension of dis — 1159 — covery and another on a joint motion in November of 1975 relating to postponement of the trial date, had already prolonged the plaintiffs wait. Nevertheless, either a continuance or suppression of the evidence was required. [6] Defense counsel’s unsuccessful effort to effect the emergency preparation expected of trial counsel was called to the attention of the trial court. The trial judge was advised that attempts had been made in the short amount of time between the revelation of the heart attack contention and the trial to obtain the presence of the physician who had treated the plaintiff for his heart attack, but that the expert could not be produced on such short notice.