
USCA1 Opinion

	




          December 23, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                          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                                         -2-                                          2            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.                                         -3-                                          3                      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                                         -4-                                          4                      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.                                         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.                                         -5-                                          5                      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.                                         -6-                                          6                      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            _____________                                         -7-                                          7            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.                      Affirmed, costs to appellee.                      ____________________________                                         -8-                                          8
