                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1423
                                   ___________

Wendy Ferguson Sellers,             *
                                    *
      Plaintiff-Appellee,           *
                                    *
             v.                     *
                                    *
Norman Y. Mineta, Secretary of       *   Appeal from the United States
Transportation,                     *    District Court for the
                                    *    Eastern District of Missouri
             Defendant.             *
                                    *
John Joseph,                        *
                                    *
      Defendant-Appellant.          *
                               ___________

                             Submitted: September 8, 2003

                                  Filed: December 1, 2003
                                   ___________

Before LOKEN, Chief Judge, and McMILLIAN and HANSEN, Circuit Judges.
                               ___________

McMILLIAN, Circuit Judge.

      John Joseph appeals from a final judgment entered in the United States District
Court1 for the Eastern District of Missouri in favor of Wendy Ferguson Sellers, a

      1
       The Honorable Frederick R. Buckles, United States Magistrate Judge for the
Eastern District of Missouri.
former air traffic control specialist with the Federal Aviation Administration (FAA).
See Sellers v. Mineta, No. 4:97CV2260 (E.D. Mo. Dec. 13, 2001) (amended
judgment). Sellers brought this action against the United States Secretary of
Transportation (the Secretary) and Joseph based upon allegations that Joseph sexually
harassed and assaulted her while they were both employed with the FAA. Following
a jury trial, Sellers was awarded compensatory and punitive damages totaling
$215,000 from Joseph, plus additional sums from the Secretary. Now before this
court is Joseph’s appeal from the judgment.2 For reversal, Joseph argues that the
district court: (1) abused its discretion in ruling on several evidentiary issues,
(2) erred in submitting to the jury separate assault and battery claims arising out of
a single set of events, and (3) abused its discretion in denying his post-trial “motion
to order production of work records.” For the reasons stated below, we modify the
judgment and otherwise affirm the judgment against Joseph.

      Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1332,
1367. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

                                    Background

        The following summary of pertinent background facts is based upon the
evidence presented at trial, viewed in a light favorable to the jury’s verdict.




      2
        Both Joseph and the Secretary have appealed. The two appeals have been
separated because Joseph filed a bankruptcy petition which triggered a temporary stay
of his appeal.

                                         -2-
        In September of 1987, Sellers3 began working for the FAA as an air traffic
control specialist at Lambert International Airport in St. Louis, Missouri. In or about
March of 1996, she became the victim of Joseph’s unwanted sexual advances at work.
On May 8, 1996, Joseph unexpectedly showed up at Sellers’s house. She initially
allowed him into the house, but ordered him to leave when he started making sexual
advances. Instead of leaving, Joseph walked down a hallway and into her bedroom.
Sellers followed him and again ordered him to leave. Joseph pinned her down on the
bed, pulled her shirt up and her pants down, exposed his erect penis, and made
physical contact with her body. By this time, Sellers was screaming, and she hit
Joseph on the head. He got off of her, backed away, and then left the house. Sellers
initially did not mention the incident to anyone, including her then-fiancé, Scott
Sellers.

        Joseph continued to harass Sellers, repeatedly telephoning her and leaving
notes in her locker at work. On one occasion, he pinched her on the buttocks in the
workplace. She complained to co-workers, supervisors, and union officials that she
was being sexually harassed, sometimes mentioning Joseph by name. Eventually, an
internal investigation was ordered. FAA supervisor Willie Moore interviewed Joseph
and, at the end of the interview, told Joseph to stay away from Sellers. Afterward, a
letter officially reprimanding Moore for inadequately handling the matter (hereinafter
“the Moore reprimand letter”) was placed in Moore’s personnel file. The Moore
reprimand letter states as one of the grounds for reprimand: “Failure to assess the
proper penalty when the facts are known and disciplinary action is warranted
(including acts of sexual harassment or other types of prohibited discrimination).”
Appellant’s Appendix at 36-37 (Plaintiff’s Trial Exhibit 16).




      3
      At the time of the events in question, Sellers’s name was Wendy Ferguson.
She subsequently married Scott Sellers and changed her name.

                                         -3-
       At trial, over the objections of both Joseph and the Secretary, Sellers was
permitted to introduce the Moore reprimand letter into evidence during her case-in-
chief. Four days after the Moore reprimand letter was introduced, Joseph requested
that the letter be stricken from the record or, alternatively, that a limiting instruction
be given. The district court denied both requests.

       Prior to Joseph’s presentation of evidence, the district court, for scheduling
purposes, requested the names of the witnesses he intended to call. Joseph indicated
that he intended to call, among other witnesses, a co-worker, Valerie Warren. Sellers
objected on the ground that Warren’s name was not on the witness list that Joseph
had submitted to the district court before trial pursuant to the district court’s case
management order and its local rules. The district court sustained Sellers’s objection.

       At the close of all the evidence, the district court submitted to the jury
instructions and verdict forms which included separate instructions and separate
verdict forms for Seller’s assault and battery claims against Joseph related to the
incident that occurred at her house on May 8, 1996. Joseph objected to the
submission of the separate claims, arguing that the two should be merged into one
cause of action. The district court overruled his objection.

      The jury awarded Sellers, among other sums, $50,000 in compensatory
damages and $50,000 in punitive damages on the assault claim and $50,000 in
compensatory damages and $50,000 in punitive damages on the battery claim, both
based upon the May 8, 1996, incident. The jury also awarded Sellers $15,000 in
compensatory damages and $15,000 in punitive damages on a separate battery claim
based upon the incident in which Joseph pinched Sellers on the buttocks in the
workplace. Because Sellers had not specifically asked for punitive damages for the
pinching incident, the district court vacated the corresponding $15,000 punitive
damages award, and entered judgment setting forth total damages awarded to Sellers
from Joseph in the amount of $215,000.

                                           -4-
       After the entry of judgment, Joseph filed a “motion to order production of work
records of plaintiff Wendi Ferguson Sellers for March 5-6, 1996.” On the same day,
Joseph file a motion for judgment as a matter of law or a new trial, pursuant to Fed.
R. Civ. P. 50, asserting, among other grounds for relief, that the district court erred
in submitting both the assault claim and the battery claim arising out of the same
incident, abused its discretion in admitting the Moore reprimand letter into evidence,
and abused its discretion in disallowing the testimony of Valerie Warren; in the same
motion, Joseph argued that “[Sellers’s] work records for March 5-6, 1996, constitute
newly discovered evidence, entitling defendant Joseph to a new trial under [Fed. R.
Civ. P.] 60(b).” Upon review, the district court denied all of Joseph’s post-trial
motions. Sellers v. Mineta, No. 4:97CV2260 (E.D. Mo. Mar. 27, 2001)
(memorandum and order). The district court filed an amended judgment, again
setting forth total damages awarded Sellers from Joseph in the amount of $215,000.
This appeal followed.

                                      Discussion

Evidentiary Rulings

       We begin by addressing Joseph’s challenges to the district court’s evidentiary
rulings. We first consider Joseph’s arguments related to the Moore reprimand letter.
As indicated above, the letter sets forth as one of the reasons for Moore’s reprimand:
“Failure to assess the proper penalty when the facts are known and disciplinary action
is warranted (including acts of sexual harassment or other types of prohibited
discrimination).” Joseph argues that the district court abused its discretion in failing
to exclude this highly prejudicial letter under Fed. R. Evid. 403 and in denying his
request for an instruction to the jury that the letter was relevant only to the claims
against the Secretary. Moreover, he argues, the district court improperly commented
upon the letter when it stated: “Mr. Moore obviously made a finding that there was
a basis for a claim . . . .” Joseph argues that this comment was improper because “Mr.

                                          -5-
Moore’s informal investigation lacked the most fundamental protections provided by
the Administrative Procedure Act, the Due Process clause, and fundamental fairness.”
Brief for Appellant at 52. Joseph also suggests that the letter was improperly
admitted because it was hearsay evidence offered for the truth of the statement that
acts of sexual harassment had occurred.

       We review both the district court’s admission of the Moore reprimand letter
and its denial of Joseph’s request for a limiting instruction for an abuse of discretion.
See, e.g., Beach v. Yellow Freight System, 312 F.3d 391, 397 (8th Cir. 2002)
(admission of evidence reviewed for abuse of discretion); United States v. Kime, 99
F.3d 870, 881 (8th Cir. 1996) (failure to give a requested instruction reviewed for
abuse of discretion), cert. denied, 519 U.S. 1141 (1997). The Moore reprimand letter
was relevant not only to Sellers’s sexual harassment claim against the Secretary, but
also to Sellers’s battery claim against Joseph arising out of the pinching incident that
occurred in the workplace. The Moore reprimand letter was relevant to show, not that
sexual harassment had actually taken place, but that the FAA did not take adequate
steps to respond to the problem and that Sellers found the pinching incident to be
offensive (an issue which Joseph contested at trial). As to the district court’s
comment that Moore “obviously made a finding that there was a basis for a claim,”
we disagree that the jury reasonably could have inferred from it that Moore had
conducted a formal investigation. In any case, the district court instructed the jury
several times that its comments were not evidence and should never be taken as an
indication of what the verdict should be. In sum, we hold that the district court did
not abuse its discretion in admitting the Moore reprimand letter into evidence or in
denying Joseph’s request for a limiting instruction.

      Joseph also argues that the district court abused its discretion in denying him
the opportunity to call Valerie Warren as a witness because he had not included
Warren’s name on his pretrial witness list. Joseph maintains that Warren’s testimony
would have been contrary to Sellers’s testimony that she (Sellers) avoided Joseph

                                          -6-
whenever possible and that she and Joseph did not have an affair. At trial, Joseph’s
attorney asserted: “[Warren’s] testimony will concern [Sellers] seeking John Joseph,
looking for him or calling for him or something like that and perhaps having seen
them together.” Brief for Appellant at 42 (citing Trial Transcript, Vol. VIII, at 149).
Joseph also argues that, even though Warren was not on his pretrial witness list, the
prospect of her testimony could not have surprised Sellers because Warren’s name
was on both Sellers’s and the Secretary’s pretrial witness lists. In any event, Joseph
suggests, the more appropriate remedy would have been to grant a continuance, not
to exclude Warren’s testimony entirely. Brief for Appellant at 43 (citing Black v. J.I.
Case Co., 22 F.3d 568, 573 (5th Cir.), cert. denied, 513 U.S. 1017 (1994)).

        “We review a district court’s exclusion of a witness not named in the pretrial
list of witnesses for a clear abuse of discretion.” Marti v. City of Maplewood, 57
F.3d 680, 683 (8th Cir. 1995). “‘The power of the trial court to exclude exhibits and
witnesses not disclosed in compliance with its discovery and pretrial orders is
essential’ to the judge’s control over the case.” Boardman v. National Medical
Enterprises, 106 F.3d 840, 843 (8th Cir. 1997) (quoting Admiral Theatre Corp. v.
Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir. 1978)). In assessing whether a
clear abuse of discretion has occurred, we may consider a variety of factors,
including, for example, the reason for the failure to list the witness, the possibility of
surprise or prejudice to the party against whom the witness would testify, the extent
to which allowing the witness to testify would disrupt the order and efficiency of the
trial, and the importance of the witness’s testimony. See Marti v. City of Maplewood,
57 F.3d at 683 (setting forth factors in two different tests used by this court).

      In the present case, Joseph provided no justification for failing to include
Warren on his pretrial witness list, nor did he suggest any reason why Sellers should
have expected Warren to testify on his behalf. Had Warren been identified on
Joseph’s witness list, Sellers might have taken additional steps to prepare for her
testimony, including, for example, taking her deposition. Warren’s anticipated

                                           -7-
testimony, as described at trial by Joseph’s attorney (i.e., that Sellers had looked for
Joseph and perhaps that the two had been seen together), even if true, would not
necessarily disprove or even undermine Sellers’s allegations against Joseph. Finally,
as to the suggestion that a continuance would have been appropriate, it does not
appear that Joseph ever asked for a continuance. Even if he had, the district court
could properly have denied the request. The issue arose late in the trial, at a point
where a continuance would undoubtedly have been disruptive to the proceedings and
everyone involved. The district court did not abuse its discretion in refusing to allow
Warren to testify on Joseph’s behalf.

Submission of Assault and Battery Claims

       We next turn to the legal issues involved in the district court’s submission of
both the assault claim and the battery claim arising out of the single confrontation at
Sellers’s house on May 8, 1996. As indicated above, the district court instructed the
jury and provided the jury with a separate verdict form for each of these two claims.
Joseph timely objected to the submission of both claims, and he renewed the
objection in his post-trial motion for judgment as a matter of law or a new trial. The
jury awarded $50,000 compensatory damages and $50,000 punitive damages on each
claim, for a total of $200,000 of damages arising out of the one incident. The district
court upheld the verdict, explaining as follows:

      [T]he undersigned is persuaded by plaintiff’s argument that under
      Missouri law, two causes of action exist for the tort of Assault and the
      tort of Battery, and the Missouri Approved Instructions provide separate
      instructions as to each with identifiable separate elements. Compare
      MAI 23.01 with 23.02 (5th ed. 1996). In the absence of any authority to
      the contrary defendant has failed to dissuade the Court from its previous
      ruling that submitting Assault and Battery to the jury as separate claims
      is not error.

Sellers v. Mineta, slip op. at 5 (Mar. 27, 2001).

                                          -8-
       On appeal, Joseph again argues that the district court erred as a matter of
Missouri law by submitting the two separate assault and battery claims to the jury
where they are based upon the same events of May 8, 1996. He maintains that “the
general principle in Missouri is that only one cause of action exists for a single
transaction.” Brief for Appellant at 41. In support, he cites dozens of cases in which
a single tort claim was submitted to the jury for a single transaction or set of events,
though arguably there could have been two or more claims submitted. See id. at 34-
40, 55-58. Joseph states:

             A search of the cases appearing under the topic “Assault and
      Battery” in the Missouri Digest reveals over fifty civil cases decided in
      the last sixty-five years wherein “assault,” “assault and battery,” or
      “battery” has been submitted to the jury. Not a single case has been
      found where separate counts have been submitted for “assault” and
      “battery” involving the same incident or transaction. Put another way,
      not a single case has been found submitting both MAI 23.01 and MAI
      23.02.

Id. at 39. Joseph thus continues: “To support her verdict, [Sellers] needs to show that
there is some authority in Missouri for submitting both MAI 23.01 and 23.02 for the
same event or transaction.” Id. at 41.

       In response, Sellers emphasizes that assault and battery are distinct causes of
action with different elements of proof, and they do not necessarily rely on the same
set of facts. An assault involves an unlawful attempt to injure another, with the
apparent present ability to carry out that attempt, and circumstances creating a fear
of imminent harm. Battery involves intentional offensive contact. Sellers contends
that, while every battery includes an assault, a plaintiff may recover for a battery and
for a separate assault arising out of the same series of events. In the present case, she
argues, the events of May 8, 1996, occurred as “a series of separate events.” In this
series of separate events, she explains, “[Joseph] engaged in offensive contact with


                                          -9-
plaintiff without her consent, which constituted a battery,” and “he also caused
plaintiff to be in apprehension of further offensive contact or bodily harm,” which
constituted the assault. Brief for Appellee at 12.

       We decide questions of state law de novo. Salve Regina College v. Russell,
499 U.S. 225, 231 (1991). Our responsibility is to determine what the Missouri
Supreme Court’s decision would be in light of that court’s pertinent decisions and
other sources of Missouri law. See, e.g., Union Pacific R.R. v. Reilly Indus., Inc.,
215 F.3d 830, 840 (8th Cir. 2000) (“Our interpretation of [Minnesota] law must
comport with pertinent decisions of the Minnesota Supreme Court, but, if none are
available, we look to related state court precedents, analogous decisions, considered
dicta, and other reliable sources in an effort to determine what the Minnesota
Supreme Court’s decision would be.”).

       We begin by considering whether, under Missouri law, the district court could
submit to the jury both Sellers’s battery claim and her assault claim arising out of the
same events of May 8, 1996. On this question, Stafford v. Muster, 582 S.W.2d 670,
679 (Mo. 1979) (en banc) (Stafford), cited by neither Joseph nor Sellers, is
instructive. In Stafford, the plaintiff alleged several intentional tort claims against
individuals involved in a series of court-related actions taken against her, including
two separate imprisonments for contempt of court, in connection with a custody
dispute over her husband’s child from a previous marriage. The Missouri Supreme
Court noted that the plaintiff’s claims were based upon four separate court-issued
processes, each of which could give rise to a separate intentional tort. Id. at 675. The
court then went on to conclude that each of these court processes gave rise to two
submissible claims: a claim of malicious prosecution and a claim of abuse of process.
See id. at 678-79. By analogy, therefore, we conclude that the Missouri Supreme
Court would permit the submission of both Sellers’s assault claim and her battery
claim based upon the events of May 8, 1996.



                                         -10-
        We next consider the matter of damages. Although we conclude that the
district court did not err in submitting to the jury both assault and battery theories of
liability, that conclusion does not necessarily validate the damages awarded in the
present case. The law in Missouri is that a plaintiff may not recover duplicate
damages for the same harm. See Alexander v. Kansas City Public Service Co., 268
S.W.2d 451, 454 (Mo. Ct. App. 1954) (instruction on damages improperly permitted
jury to award double damages for the same harm); cf. Linkogel v. Baker Protective
Servs., Inc., 626 S.W.2d 380, 388 (Mo. Ct. App. 1981) (where the plaintiff sued
multiple defendants on multiple tort theories, holding that “plaintiff here may advance
all the theories available to him but may only recover one sum as compensatory
damages . . . because the false arrest, the assault and battery and the alleged civil
rights violations all stem from one single occurrence – the arrest of [the plaintiff].
What damages he may have suffered arise from this one incident and he may not
recover multiple damages for them.”). Therefore, to the extent the jury may have
awarded double damages for the same harm based upon its finding that both theories
of liability had been proven, the award was improper.

      As noted above, however, Sellers suggests that the jury’s award in the present
case compensates separate harms flowing from the two separate wrongs in “a series
of separate events.” She contends that she was harmed when Joseph made physical
contact with her without her consent (the battery) and was separately harmed when
he caused her to fear imminent rape (the assault).

       The Missouri Supreme Court’s opinion in Stafford once again provides some
guidance. In that case, notwithstanding the determination that the plaintiff could
assert numerous tort claims arising out of several events (including two temporally
separate imprisonments for contempt of court), the Missouri Supreme Court stated:

            For the guidance of those involved in further proceedings, it
      should be noted that this petition sets forth several claims stemming

                                          -11-
      from a single set of occurrences with a single series of damages. Should
      plaintiff adduce sufficient proof of liability at trial, she may recover but
      once for the injuries she sustained.

582 S.W.2d at 679.

       In light of this statement by the Missouri Supreme Court, we believe that, if
deciding the case at bar, that court would reject Sellers’s present argument and hold
that the award of $50,000 in compensatory damages and $50,000 in punitive damages
for each of Sellers’s assault and battery claims, arising out of the single set of
occurrences with a single series of damages, constituted impermissible double
damages. Consequently, we modify the damages award against Joseph such that
Sellers shall receive $50,000 in compensatory damages and $50,000 in punitive
damages for all of the injuries she sustained as a result of the confrontation in her
home on May 8, 1996. The total amount of damages awarded to Sellers from Joseph
is therefore reduced from $215,000 to $115,000. Accord Wirig v. Kinney Shoe
Corp., 461 N.W.2d 374, 379 (Minn. 1990) (where plaintiff brought statutory sexual
harassment claim and common law battery claim arising out of same conduct,
vacating damages for the battery claim on the ground that “[a]lthough we decide
parallel actions can be maintained, we do not uphold double recovery for the same
harm.”).

Denial of Post-trial “Motion to Order Production of Work Records”

       Finally, we consider Joseph’s argument that the district court abused its
discretion in denying his “motion to order production of work records.” As noted
above, Joseph filed a post-trial motion asking the district court to order the FAA to
produce Sellers’s work records for the dates of March 5-6, 1996. The basis for this
unusual post-trial motion is explained by Joseph as follows. See Brief for Appellant
at 45-48. Prior to trial, Sellers consistently maintained – including in her deposition


                                         -12-
testimony – that Joseph visited her in the air traffic control tower one night during the
week of March 7, 1996, and that the following night Joseph telephoned her while she
was working in the tower and he was at home; according to Sellers, this was how the
sexual harassment began. At trial, however, after learning that Joseph’s telephone
records showed a call from his home to the tower placed shortly after midnight on
March 7, 1996, Sellers testified that tower visit occurred on the night of March 5-6,
1996, not during the week of March 7, 1996. Joseph thus explains:

               If the government’s records show that [Sellers] worked the
       midnight shift of March 5-6, 1996, then she made a simple error ab
       initio, and there are no grounds for a new trial on this issue. On the
       other hand, if these records show that [Sellers] did NOT work on that
       shift, [Sellers’s] whole story, from the beginning, collapses like a house
       of cards.

Id. at 48.

       In the district court, Joseph indirectly relied on Fed. R. Civ. P. 60(b) as
authority for this “motion to order production of work records.” He stated: “Said
records are crucial to a determination of issues raised in defendant Joseph’s motion
for new trial, the contents of which are incorporated by reference herein.”
Appellant’s Appendix at 38 (Joseph’s motion to order production of work records).
In that referenced motion for a new trial, Joseph asserted: “[Sellers’s] work records
for March 5-6, 1996, constitute newly discovered evidence, entitling defendant
Joseph to a new trial under Rule 60(b).” He further asserted: “[Sellers’s] false
testimony that the tower visit occurred in the early morning hours of March 6, 1996,
constituted intrinsic fraud, entitling defendant Joseph to a new trial under Rule
60(b).” Appellee’s Appendix at 25 (Joseph’s motion for new trial or judgment as a
matter of law).




                                          -13-
       In considering Joseph’s Rule 60(b) assertions, the district court appropriately
relied upon Atkinson v. Prudential Property Co., 43 F.3d 367, 371-73 (8th Cir. 1994)
(Atkinson), in which we explained:

             To prevail on a motion under 60(b)(2), the movant must show: (1)
      that the evidence was discovered after trial; (2) that the party exercised
      due diligence to discover the evidence before the end of the trial; (3) that
      the evidence is material and not merely cumulative or impeaching; and
      (4) that a new trial considering the evidence would probably produce a
      different result.

             ....

             To prevail on a motion under Rule 60(b)(3), the movant must
      show, with clear and convincing evidence, that the opposing party
      engaged in a fraud or misrepresentation that prevented the movant from
      fully and fairly presenting its case.

      The district court then went on to hold that Joseph was not entitled to any relief
under Rule 60(b) because, even if the requested records qualified as “newly
discovered evidence,” the evidence would be merely impeaching and Joseph had not
shown that he had exercised due diligence to discover them before the end of the trial;
furthermore, even if the requested records would impeach Sellers’s testimony that she
worked the night shift on March 5-6, 1996, “[Joseph] has failed to show how such
testimony prevented him from fully and fairly presenting his case.” See Sellers v.
Mineta, slip op. at 12 (Mar. 27, 2001).

      On appeal, Joseph again does not cite Rule 60(b) directly. He does, however,
rely upon Rule 60(b)(3) by implication by arguing that: “‘A new trial is properly
granted where a party can: (1) prove by clear and convincing evidence that the verdict
was obtained by fraud, misrepresentation, or other misconduct [and] (2) establish that
the conduct complained of prevented the losing party from fully and fairly presenting


                                         -14-
his case or defense.’” Brief for Appellant at 48 (quoting Wharf v. Burlington
Northern R.R., 60 F.3d 631, 637 (9th Cir. 1995)). Joseph then concludes:

             Before the trial court can decide whether a new trial is warranted
      if plaintiff did not, as she positively swore at the end of the trial, work
      the evening of March 5-6, it needs to know whether this assertion is true
      or false. The truth is only one easily available scrap of paper away. At
      the least, the trial court should inform itself as to whether plaintiff’s
      testimony on this issue is knowingly false.

Brief for Appellant at 49-50.

        Rule 60(b) provides extraordinary relief in exceptional circumstances. The
district court has wide discretion in ruling on a Rule 60(b) motion, and we will
reverse only for a clear abuse of discretion. See Atkinson, 43 F.3d at 371. In the
present case, the district court reasonably denied Joseph’s “motion to order
production of work records” under both Rule 60(b)(2) and 60(b)(3). As the district
court indicated, even if the records showed that Sellers did not work the night of
March 5-6, 1996, the records would be relevant to the claims against Joseph only as
impeachment evidence. Moreover, such evidence would not demonstrate that Sellers
had prevented Joseph from fully and fairly presenting his case. By Joseph’s own
account, Sellers has maintained from the beginning that the tower visit occurred the
night before he telephoned her at work in early March. Joseph had his own phone
records. If, as he now suggests, the tower visit never occurred, it should have been
apparent to him from the beginning that he should look for evidence disproving that
the tower visit occurred on March 5-6, 1996, the night before he placed the March 7th
phone call. Joseph never sought the disputed work records prior to the end of the
trial, even after Sellers specifically testified at trial that the tower visit occurred on
the night of March 5-6, 1996. In sum, we hold that the district court did not abuse its
discretion in denying Joseph’s post-trial motion to order the FAA to produce Sellers’s
work records for the dates of March 5-6, 1996.


                                          -15-
                                      Conclusion

       For the reasons stated, the judgment of the district court is modified so that the
total amount of damages awarded to Sellers from Joseph is reduced from $215,000
to $115,000. The judgment of the district court against Joseph is affirmed in all other
respects.

                  ______________________________________




                                          -16-
