### The Honorable Ronald E. Longstaff, United States Distric t 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 Litemfor 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 MAG ILL 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 rend ered against 2 himin an action for injuries sustained by Mr. Clippard when an elevator that National Medical Enterprises (NME) owned and serviced suddenly droppe d three stor ies. Mr. Boardman asserts that the district court erred i n barring his

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expert witness from testifying, in barring him from reading an exper t witn ess's deposition to the jury, in allowing NME to draw the jury' s attention to Mr. Boardman's lack of witnesses re levant 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 d iscussed below, we affirm.

I. The district court refused to allow Mr. Boardman's expert witness , Joe St abler, to testify because Mr. Boardman had not lived up to th e requirements of E.D. Mo. Local R. 33, which governed discovery with respec t to expert witnesses (a different version of the local rules is now i n effect; all references in this opinion, however, are to the local rules in effect a t 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 requir e disclosure of the identity of expert witnesses and the subject matter , facts, and opinions t o which the expert witnesses are expected to testify at trial, together wi th a summary of the grounds underlying each opinion. NME sent Mr. Boardman interrogatories seeking disclosure of each of th e 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 answe r to an interrogatory t o be made not less than sixty days prior to the date of trial (sixty days prior to trial was December 12, 1994). O n September 10, 1994, Mr. Boardman supplemented hi s answer by serving notice on NME that he "may c all" Joseph Stabler as an "expert witness to testify concerning elevator safety, mechanics, operation , maintenance and repair." Tho ugh Mr. Boardman timely provided NME with Mr. Stabler's identity an d 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 o f opportunit y for Mr. Boardman. It stated, "All parties shall have th e right, no less than thirty (30) days prior to trial, to supplement previou s
answe rs to interrogatories by furnishing rebuttal expert witnes s information." Mr. Boardman wanted Mr. Stabler to testify at trial that th e elevat or engaged in overspeed mode and could not have done so in th e absence of negligence, in rebuttal to certain te stimony that NME's experts offered. Although the local rule afforded Mr. Boardman an extra thirt y days (or until January 13, 1995) to produce the facts and opinions to whic h Mr. Stabler was expected to testify as a rebuttal witness, Mr. Boardma n fai led to meet this extended deadline. He also failed to provide th e required information after that date.

E.D
. Mo. Local R. 33 further provided that if "a party fails t o comply with this Rule, the Court shall prohibit the party's expert fro m giving expert testimony." Since Mr. Boardman failed to comply with th e rule, the district court was manifestly authoriz ed to prohibit Mr. Stabler from testifying, and we detect no error in its having done so.

Mr. Boardman nevertheless argues that Mr. Stabler presented hi s rebuttal opinion during NME's October 27, 1994, deposition of Mr. Stabler, and contends that this satisfied the requirement s of the scheduling order. First of all, we are not altogether satisfied that the opinion tha t 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 failu re to obey the scheduling order is not excused merely because NM E 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 powe r of the trial court to exclude exhibits and witnesses not disclo sed in compliance with its discovery and pretrial orders i s 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 i ts discretion. The court protected the integrity of the tr ial process by shielding NME from unexpected testimony, th e presentation of which would have undermined the goals of discovery an d prejudic ed NME. Fed. R. Civ. P. 16(f) and Fed. R. Civ. P. 37(b)(2)(B ) authorize district courts to prohibit noncomplying parties from introducin g evidence, which is what the district court properly did in this case.

II. Mr. Boardman also appeals from the district court's decision t o prevent hi m from reading to the jury the deposition testimony of Joh n Donnelly, a defense expert witness. Mr. Boardman did not adhere to th e requirements of the scheduling order with regard to Mr. Donnelly: He neve r designate d Mr. Donnelly as an expert witness, and he did not reveal th e subje ct matter that Mr. Donnelly would discuss or the opinions that h e would present. Mr. B oardman 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, wel l 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 impo sing sanctions for failure to obey discovery orders. "[T]he court of appeals will not reverse the dis trict court in the absence of a clear abuse of d iscretion." 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 whethe r 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 loca l court rule and the court's scheduling order. "The rules proscribing dis covery 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 no t
err in preventing Mr. Boardman from reading the deposition testimony o f John Donnelly to the jury.

III. In clos ing argument, NME alluded to the fact that Mr. Boardman ha d failed to call any wi tnesses to establish NME's negligence. Mr. Boardman objected, arguing that he would have called Mr. Stabler to testify to that poin t had the district court not excluded his testimony. On appeal , Mr. Boardman cites several Missouri cases to the effect that one canno t highlight opposing co unsel'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 closin g argument even in diversity cases, and federal courts giv e considerable discretion to the trial court in matters of this sort. Sylla

Sawdon 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).

### -6- "T o constitute reversible error, statements made in oral argument s must be plainly unwarranted and clearly injuriou s." Vanskike , 725 F.2d at 1149. In one recent case, we held that an argument similar to the one mad e here was not grounds for reversal. Sylla-Sawdon , 47 F.3d at 284-86. We
see no err or whatever in permitting defense counsel to point out tha t plaintiff lacked witnesses on the issue of negli gence, a matter of obvious relevance and central importance to a determination of the case.

IV. Finally, Mr. Boardman maintains that the district court erred i n precluding him from arguing an adverse inference from NME's failure to cal l three of its employees as witnesses. One employee had entered the elevato r with Mr. Clippard but had departed before the incident; the other two had pulled Mr. Clippard from the elevator after the incident. Mr. Boardma n contends that there is a general rule that failu re 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 NM E points out, that case held that it is the failure to put on a key witness th at raises such an inference. Id. at 757. This means that a part y arguin g the negative inference must demonstrate that the witness wa s important and possessed relevant information. S ee 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 relevan t information to provide at trial.

In ad dition, in deciding this issue we think it significant whic h par ty had the burden of proof. Drawing an adverse inference from th e 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 n ot have the burden of proof on any issue, and Mr. Boardman' s suggestion that NME f ailed to produce certain witnesses might confuse the jury as to who did. We note too that the district court is better situate d to "determine whether prejudice has resulted from a closing argument, and [we] will not disturb the district court's rulin g unless there has been an abuse of discretion." Vanskike v. ACF Indus., Inc. , 665 F.2d 188, 209 (8t h Cir. 1981), cert. denied , 455 U.S. 1000 (1982).

For all o f these reasons, we hold that the district court did no t abuse its discretion in limiting Mr. Boardman's closing argument.

V. The ju dgment of the district court is affirmed for the reason s indicated.

A true copy.

Attest:

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