The Honorable Ronald E. Longstaff, United States District

1

Judge for the Southern District of Iowa, sitting by designation.

 The Honorable Charles A. Shaw, United States District Judge 2

for the Eastern District of Missouri.

 

No. 95-3485

 

Richard Boardman, Guardian *

Ad Litem for Daniel Clippard, *

*

 Appellant, *

* Appeal from the United States

 v. * District Court for the Eastern

 * District of Missouri.

National Medical Enterprises, * 

Doing Business as Lutheran * 

Medical Center, Inc.; and Millar *

Elevator Service Company, *

*

 Appellees. *

 

 Submitted: November 20, 1996

 Filed: February 11, 1997

 

Before MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF,1

District Judge.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Richard Boardman, guardian ad litem of Daniel Clippard, appeals from

the judgment that the district court entered on a verdict rendered against 2

him in an action for injuries sustained by Mr. Clippard when an elevator

that National Medical Enterprises (NME) owned and serviced suddenly dropped

three stories. Mr. Boardman asserts that the district court erred in

barring his
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expert witness from testifying, in barring him from reading an expert

witness's deposition to the jury, in allowing NME to draw the jury's

attention to Mr. Boardman's lack of witnesses relevant to an issue, and in

precluding Mr. Boardman from drawing the jury's attention to NME's failure

to produce certain witnesses. For the reasons discussed below, we affirm.

I.

The district court refused to allow Mr. Boardman's expert witness,

Joe Stabler, to testify because Mr. Boardman had not lived up to the

requirements of E.D. Mo. Local R. 33, which governed discovery with respect

to expert witnesses (a different version of the local rules is now in

effect; all references in this opinion, however, are to the local rules in

effect at the relevant time). Fed. R. Civ. P. 26(a)(2)(B) and Fed. R.

Civ. P. 26(a)(5) authorize parties to use interrogatories to require

disclosure of the identity of expert witnesses and the subject matter,

facts, and opinions to which the expert witnesses are expected to testify

at trial, together with a summary of the grounds underlying each opinion.

NME sent Mr. Boardman interrogatories seeking disclosure of each of the

matters covered by Fed. R. Civ. P. 26(a)(2)(B), and on January 13, 1994,

Mr. Boardman responded, "Unknown at this time, will timely supplement." 

The relevant local rule required any answer or supplemental answer

to an interrogatory to be made not less than sixty days prior to the date

of trial (sixty days prior to trial was December 12, 1994). On

September 10, 1994, Mr. Boardman supplemented his answer by serving notice

on NME that he "may call" Joseph Stabler as an "expert witness to testify

concerning elevator safety, mechanics, operation, maintenance and repair."

Though Mr. Boardman timely provided NME with Mr. Stabler's identity and

with the subject matter upon which Mr. Stabler would testify, he
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failed to identify prior to December 12, 1994, the facts and opinions to

which Mr. Stabler was expected to testify. 

E.D. Mo. Local R. 33 nevertheless provided a second window of

opportunity for Mr. Boardman. It stated, "All parties shall have the

right, no less than thirty (30) days prior to trial, to supplement previous

answers to interrogatories by furnishing rebuttal expert witness

information." Mr. Boardman wanted Mr. Stabler to testify at trial that the

elevator engaged in overspeed mode and could not have done so in the

absence of negligence, in rebuttal to certain testimony that NME's experts

offered. Although the local rule afforded Mr. Boardman an extra thirty

days (or until January 13, 1995) to produce the facts and opinions to which

Mr. Stabler was expected to testify as a rebuttal witness, Mr. Boardman

failed to meet this extended deadline. He also failed to provide the

required information after that date.

E.D. Mo. Local R. 33 further provided that if "a party fails to

comply with this Rule, the Court shall prohibit the party's expert from

giving expert testimony." Since Mr. Boardman failed to comply with the

rule, the district court was manifestly authorized to prohibit Mr. Stabler

from testifying, and we detect no error in its having done so. 

Mr. Boardman nevertheless argues that Mr. Stabler presented his

rebuttal opinion during NME's October 27, 1994, deposition of Mr. Stabler,

and contends that this satisfied the requirements of the scheduling order.

First of all, we are not altogether satisfied that the opinion that

Mr. Boardman sought to have Mr. Stabler present in rebuttal at trial was

in fact presented during the deposition. Even if it was, Mr. Boardman's

failure to obey the scheduling order is not excused merely because NME

elected to depose Mr. Stabler. For the same reason, we need not address

Mr. Boardman's contention that the district court refused to permit
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him to make an offer of proof outlining the opinions to which Mr. Stabler

would have testified had he been allowed to. 

"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. Admiral Theatre Corp. v.

Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir. 1978). The district

court did not abuse its discretion. The court protected the integrity of

the trial process by shielding NME from unexpected testimony, the

presentation of which would have undermined the goals of discovery and

prejudiced NME. Fed. R. Civ. P. 16(f) and Fed. R. Civ. P. 37(b)(2)(B)

authorize district courts to prohibit noncomplying parties from introducing

evidence, which is what the district court properly did in this case. 

II.

Mr. Boardman also appeals from the district court's decision to

prevent him from reading to the jury the deposition testimony of John

Donnelly, a defense expert witness. Mr. Boardman did not adhere to the

requirements of the scheduling order with regard to Mr. Donnelly: He never

designated Mr. Donnelly as an expert witness, and he did not reveal the

subject matter that Mr. Donnelly would discuss or the opinions that he

would present. Mr. Boardman informed NME only that he reserved the right

to read all or portions of the depositions of any witnesses that NME had

listed, a revelation that he did not make until January 27, 1995, well

after the scheduling order deadlines had expired. 

E.D. Mo. Local R. 33, Fed. R. Civ. P. 16(f), Fed. R.

Civ. P. 37(b)(2)(B), and Fed. R. Civ. P. 37(d) afford the district court

wide latitude in imposing sanctions for failure to obey discovery orders.

"[T]he court of appeals will not reverse the district court in the absence

of a clear abuse of discretion." Hazen v. Pasley, 768 F.2d 226, 229 (8th

Cir. 1985). "It is
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fundamental that it is within the trial court's discretionary power whether

to allow the testimony of witnesses not listed prior to trial. ... A

ruling by the district court pertaining to this [kind of] matter will be

overturned only if there is a clear abuse of discretion." Blue v. Rose,

786 F.2d 349, 351 (8th Cir. 1986); see also Harris v. Steelweld Equip. Co.,

869 F.2d 396, 399 (8th Cir. 1989), cert. denied, 493 U.S. 817 (1989). 

Blue (and Harris) upheld a district court's decision to prevent a

witness from testifying because of counsel's failure to list the witness

as required by a local court rule and the court's scheduling order. "The

rules proscribing discovery are enacted for a reason. Once discovery has

closed in a case, it is the court's discretion whether or not to allow it

to be reopened." Harris, 869 F.2d at 400. The district court thus did not

err in preventing Mr. Boardman from reading the deposition testimony of

John Donnelly to the jury.

III.

In closing argument, NME alluded to the fact that Mr. Boardman had

failed to call any witnesses to establish NME's negligence. Mr. Boardman

objected, arguing that he would have called Mr. Stabler to testify to that

point had the district court not excluded his testimony. On appeal,

Mr. Boardman cites several Missouri cases to the effect that one cannot

highlight opposing counsel's failure to call a witness when, due to one's

own motion, the court has excluded that witness. State law, however, does

not control this issue: Federal law controls the permissible content of

closing argument even in diversity cases, and federal courts give

considerable discretion to the trial court in matters of this sort. SyllaSawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir. 1995),

cert. denied, 116 S. Ct. 84 (1995); Vanskike v. Union Pac. R.R. Co., 725

F.2d 1146, 1149 (8th Cir. 1984). 
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"To constitute reversible error, statements made in oral arguments

must be plainly unwarranted and clearly injurious." Vanskike, 725 F.2d at

1149. In one recent case, we held that an argument similar to the one made

here was not grounds for reversal. Sylla-Sawdon, 47 F.3d at 284-86. We

see no error whatever in permitting defense counsel to point out that

plaintiff lacked witnesses on the issue of negligence, a matter of obvious

relevance and central importance to a determination of the case.

IV.

Finally, Mr. Boardman maintains that the district court erred in

precluding him from arguing an adverse inference from NME's failure to call

three of its employees as witnesses. One employee had entered the elevator

with Mr. Clippard but had departed before the incident; the other two had

pulled Mr. Clippard from the elevator after the incident. Mr. Boardman

contends that there is a general rule that failure of an opposing party to

put on a witness raises a negative inference, and calls our attention to

Johnson v. Richardson, 701 F.2d 753 (8th Cir. 1983). In fact, as NME

points out, that case held that it is the failure to put on a key witness

that raises such an inference. Id. at 757. This means that a party

arguing the negative inference must demonstrate that the witness was

important and possessed relevant information. See Cowens v. Siemens-Elema

AB, 837 F.2d 817, 825 (8th Cir. 1988). Mr. Boardman does not even argue,

and the record does not indicate, that these witnesses had relevant

information to provide at trial. 

In addition, in deciding this issue we think it significant which

party had the burden of proof. Drawing an adverse inference from the

failure of a party to put on key witnesses relevant to some issue is most

reasonable when it is the party with the burden of proof on that issue who

fails to do so. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220,

1228 (8th Cir. 1995). Here,
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NME did not have the burden of proof on any issue, and Mr. Boardman's

suggestion that NME failed to produce certain witnesses might confuse the

jury as to who did. We note too that the district court is better situated

to "determine whether prejudice has resulted from a closing argument, and

[we] will not disturb the district court's ruling unless there has been an

abuse of discretion." Vanskike v. ACF Indus., Inc., 665 F.2d 188, 209 (8th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982). 

For all of these reasons, we hold that the district court did not

abuse its discretion in limiting Mr. Boardman's closing argument.

V.

The judgment of the district court is affirmed for the reasons

indicated.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.