RULING ON PLAINTIFF'S MOTION FOR NEW TRIAL

JOAN H. LEFKOW, District Judge

Plaintiff, Amy Halvorsen, has moved for a new trial citing six trial errors that she believes denied her a fair trial. The issues are treated below seriatim. The motion for new trial is denied.

"A federal court sitting in diversity applies federal standards to a motion for new trial." McClain v. Owens-Corning Fiberglas Corp., 139 F.3d 1124, 1126 (7th Cir. 1998), citing Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278-79, 109 S.Ct. 2909, 2921-22, 106 L.Ed.2d 219 (1989). Rule 59 affords trial courts broad discretion in determining the propriety of a new trial, Fort Howard Paper Co., v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir. 1990), although "it is always an abuse of discretion to base a decision on an incorrect view of the law." United States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001). "The court has the power and duty to order a new trial whenever, in its judgment, this action is required in order to prevent injustice." 11 WRIGHT, MILLER KANE, FEDERAL PRACTICE PROCEDURE: CIVIL 2D § 2805 (1995) (citing cases).

I. Defendant's Expert Witness Disclosures.

Plaintiff contends that the court improperly allowed defendant's expert, David Curry, to rely on a report of SGS Testing Company ("SGS material") to support his testimony that even if the subject stairs and friction strips were totally covered over with polyurethane, their coefficient of friction would have exceeded a .5 standard for safety.

Defendant initially served on plaintiff a report in compliance with Rule 26(a)(2)(B) ("the expert's report"), which set out in detail the materials reviewed, the procedures and tests performed, the results, and analysis of the results, and concluded with the expert's two opinions:

1. The coefficient of friction on the subject stairs for both the wooden treads and slip-resistant strips exceeds the requirement of a slip-resistant walking surface.

2. Lack of adequate slip resistance was not a cause of [plaintiff's] accident.

The expert's report did not disclose the SGS material as a basis for either opinion. Nine days prior to the deposition, defendant's counsel supplemented Curry's disclosures by providing plaintiff a copy of the SGS material with the advice that counsel had "forwarded this information to Dr. Curry for consideration." Plaintiff's counsel at the deposition confirmed with the witness that he had considered the SGS material in connection with his work on the case (Curry dep. transcript, Exhibit B to defendant's response, pp. 51-52). Plaintiff's counsel did not inquire further about the SGS material. Plaintiff submits that she purposely avoided eliciting any opinion from Curry about the SGS material because she anticipated that any opinion testimony related to the SGS material would be precluded by Rule 37(c)(1). Defendant never amended the expert's report to incorporate reliance on the SGS material.

Neither party has cited case law addressing the question whether Rule 37(c)(1) precludes an expert from relying at trial on information that was disclosed prior to the expert's deposition but not incorporated into an amended expert report. However, the text of the discovery rules as well as the purposes behind the 1993 amendments, as expressed by the Advisory Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, are fairly straightfoward, likely obviating the need for elaborate judicial interpretation.

With respect to the text of the rules, the affirmative duty on expert witnesses to supplement disclosures with any materially incomplete, incorrect or additional information, extends "both to information contained in the report and to information provided through a deposition of the expert. . . ." Fed.R.Civ.P. 26(e)(1); see Fed.R.Civ.P. 26 Advisory Committee Notes, at 161 (West ed. 2003) ("Revised subdivision (e)(1) requires disclosure of any material changes made in the opinions of an expert from whom a report is required, whether the changes are in the written report or in testimony given at a deposition.") (emphasis added). Rule 37(c)(1) precludes use of undisclosed information at trial if the failure was "without substantial justification" and "unless such failure is harmless." See Musser v. Gentiva Health Services, 356 F.3d 751, 758 (7th Cir. 2004), citing Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) ("The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.").

With respect to policy concerns, the Advisory Committee comments that the 1993 amendments were intended to improve the situation under the former rule where information disclosed "about the `substance' of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness." Fed.R.Civ.P. 26 Advisory Committee Notes, at 161 (West ed. 2003). Thus, "[n]ot only were the disclosure requirements [of Rule 26(a)(2)] made more specific, but revised Rule 37(c)(1) now provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed." Advance and full expert witness disclosure also serves justice because it permits the opponent to take effective countermeasures, such as to attempt to disqualify the expert testimony on grounds set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), retain rebuttal experts, or hold additional depositions to retrieve the information not available to the opponent. Musser, 356 F.3d at 758.

It is readily apparent here that defendant made full disclosure of information. Indeed, defendant fulfilled its responsibilities to serve a proper expert's report and fulfilled its duty to supplement the disclosures with additional information, including the SGS material, not at the last date for pretrial disclosures as mandated by Rule 26(c)(1) but before the expert's deposition. Without non-disclosure of information, no basis for Rule 37 sanctions existed. At most, there was a failure to amend the expert's report to incorporate the SGS material as a basis for Curry's opinions.

Concerning the matter of a duty to amend the report, plaintiff has not demonstrated that the opinions expressed at trial were materially different (as the rule requires) from the expert's report (which this court reexamined in considering the pending motion) because of the SGS material. At most, the SGS material further confirmed Curry's opinion that the coefficient of friction on the stairs for both the wooden treads and slip-resistant strips exceeded the 0.5 standard for a slip-resistant walking surface and that the lack of adequate slip resistance was not a cause of plaintiff's accident. Therefore, the court can find no breach of duty to amend the expert's report.

On plaintiff's part, she does not contend that she was surprised at trial, that she would have sought to disqualify Curry, or that she would have sought information to counter the SGS material. Rather, she professes that she deliberately avoided inquiring at Curry's deposition because she anticipated that the court would grant her motion in limine to preclude any testimony about the SGS material. Thus, she asks the court to grant a new trial primarily because her expectation of a preclusionary ruling failed to pan out. That such an outcome would serve neither the letter nor the full disclosure spirit of the rules, as set out above, is self-evident. Moreover, to the extent plaintiff also complains that the court did not allow her another opportunity to depose Curry after the in limine ruling, a finding of waiver seems to this court perfectly appropriate where the information was disclosed prior to the deposition.

In short, plaintiff has failed to show that the court's ruling was erroneous.

II. Plaintiff's Expert

Plaintiff contends that her expert witness, John Van Ostrand, should have been allowed to testify that (1) once polyurethane is applied to the friction strips on the stairs it will accumulate; (2) application of polyurethane to the strips would reduce the coefficient of friction; and (3) it was unreasonable for defendant not to replace the strips, especially in view of Van Ostrand's knowledge as to their small cost and ease of replacement. Plaintiff also contends that, even if the exclusionary ruling was correct on the merits, she was prejudiced by the court's making the ruling but two days before trial, and after an earlier challenge to the qualifications of the expert had been denied. Specifically, plaintiff represents that she was prejudiced because she relied on the earlier ruling in preparing for trial.

On July 17, 2003, defendant made a motion to bar plaintiff's expert from testifying at trial for a number of reasons, including that the witness's architecture credentials did not qualify him to opine about the slip resistance of stairs and because he had not engaged in any scientific testing of the slip resistance of the subject stairs. Plaintiff argued in response that the motion was late because the deadline for such motion was March 1, 2003. The court granted the motion on July 24, 2003, but left open the possibility that "[i]f I feel this witness's testimony is so lacking in substance that it is insufficient to go to the jury, I will so rule." Transcript of July 24, 2003 hearing at 7.

On November 7, 2003, eliminating any challenge to Von Ostrand's qualifications, defendant filed a motion seeking to bar Von Ostrand from stating opinions about a variety of matters, including two that had been raised in the June 17 motion relating to slip resistance. Defendant again argued that Von Ostrand should be barred from testifying on the subject because he had performed no scientific tests and, certainly, no scientific tests using the industry standard co-efficient of friction test; rather, he was expected to testify merely that he felt friction strips covered with polyurethane and they were slippery. Plaintiff argued that the motion was merely a repeat of the June 17 motion already denied, untimely, as well as unmeritorious. The court ruled, however, as follows:

. . . The court believes Mr. Von Ostrand will be able to assist the jury in determining whether the stairs were reasonably safe in light of applicable codes and customs. On the other hand, he may not testify that the stairs were unsafe because coating the treads with polyurethane would make them slippery, an inference which is merely intuitive for him as it would be to a juror. Unlike defendant's expert, who is able to demonstrate that the coating reduced the friction on similar stairs but did not bring it below an architectural standard, Mr. Van Ostrand's opinion is not moored to the science in which he is trained. The same ruling applies to the use of steel wool on the strips. This motion is granted to this extent and otherwise denied.

Rulings on Motions in Limine 6 (December 2, 2003). The court noted regarding the procedural objections, "The court will not exclude Mr. Von Ostrand's testimony based on any general lack of qualification. Nevertheless, it considers particular issues of relevance and admissibility on the basis that the court has responsibility to keep the case focused on the probative facts and opinions." Id. n. 1.

The court is confident that the ruling on the merits was correct. Plaintiff's expert witness was allowed to testify about construction of stairs, safety standards, and the structural defects of the subject stairs. The exclusion of the slip resistance evidence was not because the witness was not qualified but because he had no evidence that would assist the jury. Although the court's delay in reaching the decision was perplexing for the plaintiff, she does not explain how she would have acted differently had the motion been granted in July rather than December.

III. Adverse Inference Instruction

Plaintiff contends that the court gave an erroneous adverse inference instruction and instead should have instructed the jury that it "should" (as opposed to "may") draw an adverse inference against defendant.

At the jury instruction conference, the court amended plaintiff's preferred Instruction No. 28 as follows:

The court instructs you that the defendant . . . destroyed the non-slip strips which were on the stairs at the time of the plaintiff's fall, even though it knew of the possibility that plaintiff would bring a claim law suit against it and that the strips would be an important piece of evidence for deciding that claim law suit. Therefore, I instruct you that you should may conclude that, if [defendant] had preserved those strips, that evidence would have been favorable to the plaintiff and unfavorable to the defendant. . . .

The effect was to eliminate the suggestion of insurance and to allow the jury to decide whether an adverse inference should be drawn in light of the circumstances surrounding the destruction of the evidence. Defendant argues that plaintiff adopted the court's amendment by submitting a revised instruction as Instruction No. 28 and did not object on the record as required by Rule 51(c)(1). This appears to be true, but even setting aside the failure to make a proper record, the court believes its modification made the proffered instruction more consistent with Illinois Pattern Jury Instruction (IPI) 5.01 (Supp. 2003), which permits but does not direct the jury to draw an adverse inference:

Failure to Produce Evidence or a Witness

If a party to this case has failed to offer evidence within his power to produce, you may infer that the evidence would be adverse to that party if you believe each of the following elements:

1. The evidence was under the control of the party and could have been produced by the exercise of reasonable diligence.

2. The evidence was not equally available to an adverse party.

3. A reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him.

4. No reasonable excuse for the failure has been shown.

[irrelevant alternative language deleted]. Plaintiff has cited no authority for her position that the instruction was erroneous on the basis she challenges it.

IV. Evidence of absence of prior incidents.

Plaintiff contends that the court erred in allowing defendant's witness to testify to the absence of prior incidents of persons slipping on the subject stairs where there was no foundation laid that the witness would have known about any incidents had they occurred. Defendant responds that plaintiff did not make a timely objection to the evidence and furthermore, the foundation was adequate.

Plaintiff, who has the burden here to demonstrate the lack of foundation, has not cited to the record. The court's memory is hardly photographic. Defendant, Mark O'Sullivan, a manager at the relevant time, testified under adverse examination concerning the procedure for notification of a manager after an incident such as a fall in the restaurant. Dena Bachenheimer, called by the defendant, also testified that a procedure was in place. Assuming the veracity of these representations, the testimony was sufficient to show that the defendant would have been notified of previous incidents had they occurred. Plaintiff, in any event, has failed to support this claim of error sufficiently for it to be a credible basis for a new trial.

V. Absence of building code violations

Plaintiff contends that the court erroneously allowed defendant's managers to testify that they knew of no building code violation citations issued to defendant. Plaintiff moved in limine to exclude this evidence and the court reserved ruling pending a determination of whether an adequate foundation could be laid, in particular whether a building inspector would typically check stair safety during an inspection. Defendant did not call a building inspector, however, and the issue did not materialize at trial. Plaintiff does not state that she lodged a contemporaneous objection to any defense witness's testimony about building code violations. Furthermore, as defendant points out, plaintiff's expert witness, Van Ostrand, testified that he knew of no building code violations having been issued regarding the stairs. In light of this, no basis for new trial could exist here.

VI. Shapiro Deposition to Jury

Plaintiff contends that the court erred in refusing to give the deliberating jury a copy of the deposition of defendant's principal, Jeff Shapiro. As plaintiff concedes, excerpts of the deposition were read by plaintiff's counsel to the jury during the trial. Inasmuch as plaintiff did not have a "clean" copy of those excerpts that could have been delivered to the jury, it was not practicable to grant the jury's request. The court is satisfied that the decision to deny the jury's request for an excerpt of trial testimony was well within its discretion.

CONCLUSION AND ORDER