Gorby v. Schneider Tank Lines, Inc.

741 F.2d 1015 (7th Cir. 1984)

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Nature of the Case

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Facts

Welsch, an employee of D, drove a semi-tanker truck owned by D. D's truck struck Dennis Gorby's (P) pick-up truck. P had entered the intersection. There was evidence that at the time of the accident, that D's truck was traveling at fifty miles per hour and was engaged in tenth gear. Welsch testified he applied his brakes. A state trooper stated that he saw no skid marks west of the point of impact. Carl Highlan was traveling westbound at the time of the accident. He testified that he heard D's horn blow when the truck was at or near the intersection. He testified that he saw the D truck then move from the outer lane to the passing lane. Linda Harper, a passenger in the Highlan car, also witnessed the accident. An investigator took Harper's written statement. D revealed to P that it had taken Harper's statement but did so months later. P sought discovery of the statement, but D refused production, claiming that the statement was prepared in anticipation of litigation and protected under Fed. R. Civ. P. 26(b)(3). The district court permitted D to resist production until P showed that it had substantial need for the statement and could not obtain equivalent material without undue hardship. Harper became unavailable approximately one year before the time of trial. At trial, a battle of the experts ensued. P offered the testimony of Carl Highlan, an eyewitness to the accident. On cross-examination, counsel for D tried to lay a foundation for Highlan's opinion testimony. Highlan was a licensed driver for twenty-nine years, that he drove approximately 19,000 miles per year, and that visibility was good on the night of the accident. Highlan had no experience driving semi-trucks. D then asked Highlan: 'Do you have an opinion as to whether or not the driver of the semi-truck [Welsch] did everything he could to avoid this accident?' P's counsel objected. Highlan laid the blame in P. D argued that Highlan's answers were admissible as lay opinion testimony, but Judge Sharp disagreed and ruled that Highlan could not give the proposed testimony. D lost the verdict and appealed in part on the exclusion of Highlan's testimony.