Opinion
No. 8:97CV368.
February 10, 2000.
ORDER
INTRODUCTION
This matter is before the Court on defendants' renewed motion for judgment as a matter of law (Filing No. 226) pursuant to Fed.R.Civ.P. 50(b). This case arises out of a racquetball injury to the plaintiff Mark Sanford's eye which occurred on or about April 11, 1995. The case was submitted to the jury on November 29, 1999, and the jury found for the plaintiff on the following counts: implied warranty of merchantability, implied warranty for a particular purpose; and negligence-safe for intended use. The jury found in favor of the defendants on the claims of breach of express warranty, negligence-failure to warn, and strict liability (charged against defendant UVEX only). The jury returned a verdict in plaintiff Mark Ektelon's favor in the amount of $122,000.00. The jury found against the plaintiff Vicki Sanford on her claim for loss of consortium
Defendants file this motion contending that I made the following errors: (1) that Interrogatory No. 8 is an admission and cannot be contradicted by Dr. Vinger's later expert testimony; (2) that the letter from Mr. Sanford's counsel, trial exhibit No. 1, is an admission that cannot be contradicted by Dr. Vinger's later expert testimony; and (3) that Dr. Vinger's testimony is speculative. I carefully considered each of these requests in either motions in limine or during trial. I have again reviewed the record, the parties' briefs, and the applicable law, and I find that the motion should be denied.
INTERROGATORY NO. 8
Defendants contend that plaintiffs' answer to Interrogatory 8, expounded by defendants, is a "judicial admission" that cannot be contradicted at trial. Defendants again rely on the cases of Whalen v. U.S. West Communications, 570 N.W.2d 531 (Neb. 1997); Schweitzer v. American Nat. Red Cross, 591 N.W.2d 524 (Neb. 1999). I have reviewed both cases and find them not to be applicable to this case. Neither of the cases is analogous to the facts in this case.
In general, in federal court interrogatory responses may be introduced as admissions at trial, but they are not binding admissions in the sense argued by defense counsel. See 7 Moore's Federal Practice 3rd, § 33.160 (1999); Fed.R.Civ.P. 33(b) Advisory Committee Note (1970); Baicker-McKee, Federal Civil Rules Handbook 2000, p. 540 (1999). In addition, the response to Interrogatory No. 8 clearly states that (1) "discovery is just beginning"; and (2) that other experts would testify in the case and would be identified during discovery. Plaintiffs thereafter hired Dr. Vinger as an expert in this case. Both Dr. Vinger and Mr. Sanford were questioned in their depositions about the answer to Interrogatory No. 8. Finally, there was no surprise nor unfair prejudice to the defendants. I find, again, that the response to Interrogatory No. 8 was not a binding judicial admission but simply an evidentiary admission.
TRIAL EXHIBIT 1
Defendants next contend that I erred in not ruling that trial exhibit No. 1 was a binding admission. Trial exhibit No. 1 is a letter that was drafted by an attorney in the firm that represented the plaintiffs. Defendants contended during trial that this exhibit was a binding admission, and plaintiffs contended that it was a part of settlement discussions and should not be admissible in this trial. I carefully reviewed trial exhibit No. 1 and considered the arguments by counsel. I determined that trial exhibit No. 1 was admissible, and I further determined that it had nothing to do with settlement negotiations between the parties.
I have again reviewed trial exhibit No. 1 and find that it is not a binding admission. It was allowed in pursuant to Fed.R.Evid. 801(d)(2) as an admission of a party and left for the jury to decide what weight it should be given. See, e.g., Keller v. United States, 58 F.3d 1194, 1198-99 (7th Cir. 1995) (when a party testifying at trial or during a deposition admits a fact which is adverse to his claim or defense, it is generally preferable to treat the testimony as an evidentiary admission). However, ordinary evidentiary admissions may be controverted at trial and may be explained by the party. John William Strong, McCormick on Evidence § 256 at 141-142 (1999). Where the statements of counsel are not deliberate, clear and unambiguous, the court, particularly where the evidence is conflicting, will leave the matter to the jury. See, MacDonald v. General Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997); Koserkoff v. Chesapeake Ohio Ry. Co., 427 F.2d 1049, 1054 (6th Cir. 1970). In general a party's statements of their theory of the case do not constitute judicial admissions. MacDonald, 110 F.3d at 341 (court reluctant to treat counsel's statements dealing with opinions and legal conclusions as judicial admissions). See also, Glick v. White Motor Co., 458 F.2d 1287, 1291 (3rd Cir. 1972) ("the scope of judicial admissions is restricted to matters of fact which otherwise would require evidentiary proof, and does not include counsel's statement of his conception of the legal theory of a case.").
I again conclude that these statements do not constitute binding judicial admissions but is admissible evidence that could be weighed like any other admission against the interest of the plaintiffs. Exhibit No. 1 clearly expresses plaintiffs' theory of the case and expresses counsel's legal conclusions. This evidence was best suited for jury deliberation.
DR. VINGER'S TESTIMONY
Defendants contend that "plaintiffs' evidence identified only one single, solitary alleged defect in the prism eyewear." The only evidence, according to defendants, was the testimony of Dr. Vinger, which defendants objected to at trial. Defendants argue that Dr. Vinger's testimony at times contradicted Interrogatory No. 8 and trial exhibit No. 1. Defendants contend that this contradiction in evidence makes Dr. Vinger's testimony fail. Further, defendants argue that the testimony was speculative in light of the alleged judicial admissions. Because I have already held that the admissions were not judicial, I find defendants' allegations in this regard to be without merit. There was substantial credible evidence from both Dr. Vinger and Dr. Peter Whitted to support the jury verdict.
THEREFORE, IT IS ORDERED THAT:
Motion for leave to submit plaintiffs' reply brief instanter (Filing No. 234) is hereby granted;
Defendants' renewed motion for judgment as a matter of law (Filing No. 226) should be and hereby is denied.