Full opinion text
MEMORANDUM OPINION FINCH, District Judge. Before the Court is defendant Esso’s Motion for a New Trial, Judgment as a Matter of Law, or, in the Alternative, Remittitur. Plaintiff has filed a response to this motion and defendant has filed a reply to that response. Both parties filed supplemental memoranda with the Court following the completion of the trial transcript. On January 26, 1995, the Court heard oral argument on the motion. A week after argument, the defendant sent a six-page letter to the Court elaborating on its oral arguments and enclosing an voluminous “appendix” of case law on the subject of remittitur. On plaintiff’s motion, the Court entered an order to strike these additional materials since they were filed contrary to the law of this jurisdiction. Attorneys Lee J. Rohn, and Renee D. Dowling represented the plaintiff at trial and during these post-trial motions. Attorney Warren B. Cole represented both defendants— Joseph Rene (“Mr. Rene”) and Esso Virgin Islands, Inc. (“Esso”) at trial. On October 5, 1994, after the trial had been completed, Attorney Douglas L. Capdeville filed an appearance in the case on behalf of Esso only and as co-counsel to Mr. Cole. For the reasons stated below, defendant’s motion is denied. Factual and Procedural Background On December 12,1990, an automobile accident occurred involving a car driven by Mr Rene, an employee of Esso, and plaintiff, Mr. Antonio Williams (“Mr. Williams”). The ear that Mr. Rene was driving at the time of the accident was owned by Esso. On August 12, 1991, plaintiff filed a complaint asserting negligence on the part of both Mr. Rene and Esso and requesting damages. On September 19, 1994, the case went to trial before a jury. In his case in chief, plaintiff alleged that due to the accident he sustained severe injury to his back, suffered excruciating pain, and ultimately became permanently disabled. Plaintiffs medical experts diagnosed his injuries as including two bulging discs, one of which may be herniated, and pressure on his spinal nerves causing nerve damage and pain in his legs. Plaintiff further alleged that the pain caused by his back injury forced him to cease many recreational activities, resulted in anxiety about his ability to care for and support his ten (10) children, and caused difficulties in sexual relations. Evidence was also produced that plaintiff is reliant upon pain medication and that he suffers from severe depression and has considered suicide. During the trial plaintiff presented twenty witnesses. Among these were expert witnesses including a doctor specializing in neurology and internal medicine, a doctor specializing in physical medicine and rehabilitation, a psychiatrist, a psychologist specializing in vocational rehabilitation and pain management, and an economist. In addition, the plaintiff himself testified, as well as many fact witnesses who testified about the accident, Mr.'Williams’ current mental and physical condition and Esso’s practices regarding the use of company ears. During defendants’ opening statement and ease in chief, defendants’ attorney asserted that neither Mr. Rene, nor Esso was responsible for the accident. He urged that some other force (either the plaintiff’s own negligence or a stalled vehicle on the road) was to blame for the accident, and argued that Mr. Rene was not in the course and scope of his employment at the time of the accident. Defendants’ attorney also suggested that plaintiff had serious pre-existing injuries to his back and that he had not been wearing a seat-belt when the accident occurred. Unfortunately for the defendants, they were not able to persuade the jury of any of these assertions at trial. Defendants presented six witnesses during trial. These included one expert who specialized in the design of the type of car the plaintiff had been driving at the time of the accident. Defendants also presented fact witnesses including the Director of Human Resources at the Virgin Islands Water and Power Authority (“WAPA”) where Mr. Williams was employed, Mr. Rene, and two witnesses who testified about an abandoned vehicle which had been sighted several hours before the accident at or near the scene of the accident. The sixth defense witness, as will be discussed in greater detail below, was one of plaintiff’s expert witnesses whom the defendants recalled and questioned briefly during their ease in chief. Immediately before, and during, the trial, both parties filed various and numerous motions with the Court including motions for summary judgment, motions in limine to restrict and bar testimony by various experts and lay people, motions for directed verdict and a motion for a mistrial (filed by defendant.) After seven days of trial, plaintiff moved to dismiss its case against Mr. Rene, and then the jury was charged and returned a verdict for the plaintiff in the amount of $4,500,000 (four million, five hundred thousand dollars.) The motion that is the subject of this opinion was then filed. On January 26, 1995 the Court heard oral argument on the motion. At this hearing, both plaintiff and defendant spoke only to the issues of respondeat superior and remittitur (issues II and IX in the discussion that follows) and relied on their prior submissions for their other arguments. Discussion I. Conduct and Preparation of the Defense Before addressing the specific legal issues raised in the defendant’s motion, the Court is compelled to comment on the conduct of the defense attorney during trial. Most importantly, the Court is dismayed — but obligated — to note the lack of consideration the defendants’ legal team has given to the representation needs of Mr. Rene during this case. At trial, one attorney, Mr. Cole, represented both Esso and its employee, Mr. Rene. Despite his obligation to represent both of his clients loyally and zealously, this attorney has pursued a strategy in which the representation of Mr. Rene appears to have been sacrificed for the representation of Esso. While the question of the ethical conduct of the attorneys for the defense in this matter has not been formally challenged by either party, the Court is distressed by what appears to be undue attention given to the defense of Esso at the expense of Mr. Rene. At oral argument, on January 26, 1995, current counsel for Esso, Mr. Capdeville, assured the Court that if a new trial were to be granted, Mr. Rene would have separate counsel. That is all very well, but it is also all very late. It does nothing to change the fact that Mr. Rene may have received less than the representation he deserved at trial. Nor does it change the fact that Esso’s counsel may have benefited from confidential communications with Mr. Rene as well as from the opportunity to prepare him for trial. Finally, Mr. Capdeville’s assurance does nothing to change the fact that in filing the instant motion for a new trial, Mr. Cole appears to have pursued a strategy in direct conflict with the interests of his client, Mr. Rene. Just before closing arguments, Mr. Rene was dismissed as a defendant on the motion of plaintiff’s attorney and the jury returned a verdict to be paid entirely by Esso. If the story had ended at this point, it would seem that little or no damage had been done to Mr. Rene by the questionable representation arrangement. Now, however, Esso is seeking a new trial and in the process Esso’s lawyers — including Mr. Cole — are energetically pursuing a strategy that could potentially re-expose Mr. Rene to liability for an extremely high damage award. In its post-trial motions, defendant Esso has pursued a strategy of attempting to disprove its own liability while characterizing Mr. Rene as a violator of Esso policy regarding the use of company vehicles. This course of events has done nothing to convince the Court that a new trial should be granted — but it has done a great deal to call into question the conduct of the attorneys representing Esso. Apart from ethical concerns, the Court has also been deeply troubled by the fact that the defendants have apparently waited until the post-trial motions to actually try their case. In numerous ways, the actions of the defendants’ counsel have led to a situation in which the jury had the evidence upon which to grant an enormous damage award — and the Court has no real choice but to deny the defendant’s post-trial motion. Again and again, the defendants were confronted with overwhelming evidence against them from plaintiff — and again and again, defendants did not counter that evidence with evidence of their own. The Court got the impression that the attorney for the defendants was simply not prepared to try the case, yet despite this, the defense attorney made no effort to postpone the trial. It now appears to the Court that defendant Esso was merely treating the trial as some sort of dress rehearsal for post-trial motions and perhaps appeal. Only now that Esso is faced with such a huge jury award, is it ready to mount the defense it should have presented at trial. While the Court has given very serious consideration to each of the grounds upon which defendant has moved for a new trial, the Court has not been swayed by the attempts of defendant Esso’s counsel to re-write the history of the trial by misrepresenting the trial record. If there existed appropriate grounds on which to order a new trial or remittitur, the Court would do so. Such grounds do not exist, however, and the reason is simple: the plaintiff proved his damages at trial; the evidence of plaintiffs injuries and losses is overwhelming and, in most instances, utterly unrefuted. There is no question in the Court’s mind that the defense could have done a great deal more to counter the mass of evidence presented. Nevertheless, the defense did little and the jury was left with only plaintiffs mass of evidence. The actions of defense counsel have led to the result of a very large jury verdict based on essentially unrefuted, competent evidence which supports the award, enormous though it is. II: The defendant moves for a new trial under Federal Rule of Civil Procedure 59(a) on the issue of whether Mr. Rene was acting in the course and scope of employment at the time of the accident. This issue constitutes the main thrust of defendant’s initial motion, its reply brief, and much of its oral argument. Defendant’s arguments fall into two categories: 1) that the presumption created by the fact that Mr. Rene was an Esso employee driving an Esso vehicle was rebutted by inferences which may be drawn from evidence evoked at trial; and 2) that under the applicable law of agency, there was no showing that Rene was in the course and scope of his employment. For these reasons, Esso argues that the Court erred in refusing to submit the issue to the jury. A. Rule 59 — Motion for a New Trial Almost every objection raised by the defendant in its motion is set forth as grounds for a new trial and thus some discussion of the rule is warranted. Fed.R.CivJP. 59 “gives the trial judge ample power to prevent what he considers to be a miscarriage of justice. It is his right and indeed his duty, to order a new trial if he deems it in the interest of justice to do so.” 11 Charles A. Wright & Arthur R. Miller, Federal Practice AND PROCEDURE: CIVIL § 2801 (1973) at 31 (Footnotes omitted.) The rule was written to allow all the grounds for a new trial that had been available at common law. While the grounds upon which a new trial may be granted are virtually limitless, there are clear constraints on a trial judge’s discretion to order a new trial. In this circuit, the landmark case on the subject of a trial judge’s discretion under Fed.R.Civ.P. 59 is Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.1960), cert. denied 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). In Lind the U.S. Court of Appeals for the Third Circuit struggled with the various issues involved in a motion for a new trial, reviewed the standards that had been applied in other jurisdictions, and set forth the law for this circuit. As later U.S. Court of Appeals for the Third Circuit cases have interpreted Lind, it has come to stand for the proposition that a trial judge’s discretion to grant a motion for a new trial depends on the grounds asserted in the motion. In cases involving an injustice resulting from an action of the trial judge, the trial judge has broad discretion to order a new trial. Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir.1963); Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir.1993). On the other hand, in cases where the claim is that the jury decision is against the weight of the evidence, the trial judge has the least discretion in ordering a new trial. Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir.1991); Klein v. Hollings, 992 F.2d at 1289-1290. Defendant’s brief contains requests for a new trial based on several different grounds falling into both of these categories. B. Respondeat Superior Under the Lind scheme, this Court has broad discretion to grant a new trial if it finds that it’s decision to grant a directed verdict on the issue of respondeat superior was made in error. The case law in this circuit establishes that in ruling on a motion for directed verdict under Fed.R.Civ.P. 50, “the court must view the evidence in the light most favorable to the non-moving party and draw all favorable inferences in its favor.” Andrews v. Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). A motion for directed verdict brought by the party with the burden of production (as here) requires a slightly different examination by the trial judge. In Mihalchak v. American Dredging Co., 266 F.2d 875 (3d Cir.1959) cert. denied 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 157 (1959) the U.S. Court of Appeals for the Third Circuit addressed exactly this issue: Yet though a motion for directed verdict in favor of the proponent of an issue is cast in the same form as when made by the defending party, it requires the judge to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding. The ultimate conclusion that there is no genuine issue of fact depends not on a failure to prove at least enough so that the controverted fact can be inferred, but rather depends on making impossible any other equally strong inferences once the fact in issue is at least inferable. Id. at 877 (footnotes omitted.) Defendant has repeatedly asserted that Mr. Rene was not in the course and scope of his employment at the time of the accident. The Court denied defendants’ summary judgment motion on this question prior to trial stating that it was possible that evidence yet to be presented might warrant submission of the issue to a jury. However, at the close of all the evidence, the Court granted plaintiff’s motion for directed verdict on this question and defendant now moves for a new trial on the basis that the Court’s directed verdict was granted in error. As will be discussed in greater detail below, despite defendant’s assertions, there was insufficient evidence presented at trial supporting defendant’s position to warrant submitting the question of respondeat superi- or to the jury. Defendant now attempts to twist the testimony of plaintiffs witnesses to serve its needs. Defendant’s attempts seriously misrepresent the trial record. Under Virgin Islands law a presumption is created that an employee is in the course and scope of his employment when driving a vehicle owned by his or her employer. For the reasons that follow, that presumption — established by defendant’s own concessions in opening argument (Tr., vol. I at 86) — and by real and testimonial evidence — was never rebutted at trial. Artful efforts to recreate the trial record do not now save defendant from a directed verdict that was properly granted. A review of the law of respondeat superior and a review of the evidence presented at trial are both necessary to explicate the Court’s ruling on this question. Both parties correctly identify Pacheco v. United States 409 F.2d 1234 (3d Cir.1969) as the key case in this jurisdiction on the question of course and scope of employment. Pacheco holds that once it is established that (1) the vehicle in question was owned by the defendant (Esso) and (2) was driven by an employee of the defendant (Mr. Rene) a presumption arises that the employee was in the course and scope of his employment. The Pacheco case states clearly that once the presumption has been established, it has continuing existence and the burden of establishing the non-existence of the presumed fact is on the [defendant]. This is expressly established by 5 V.I.Code § 812, based on Rule 14 of the Uniform Rules of Evidence, which prescribes that, “(a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the non-existence of the presumed fact is upon the party against whom the presumption operates.” Id. at 1238. Defendant admits that such a presumption was established and that Esso has the burden of proof to rebut the presumption. Defendant argues, however, that the presumption was rebutted by evidence at trial. Specifically, defendant alleges in its brief that the evidence at trial showed: 1. The vehicle in question had not been assigned to or designated by Esso for the use of Mr. Rene. It had been designated for the use of the Esso Field Sales Representative, a position then occupied by Ms. Helen Sia. 2. Esso had not entrusted the vehicle to Mr. Rene. It had been “loaned” to Mr. Rene by Ms. Sia contrary to Esso policy. 3. Ms. Sia was not Mr. Rene’s supervisor. Her act of ‘loaning’ the vehicle to Mr. Rene was not the act of a person with supervisory authority over Mr. Rene. 4. Ms. Sia had ‘loaned’ the vehicle to Mr. Rene solely for his personal convenience because his own vehicle was not working. 5. The accident occurred when Mr. Rene was en route from his home to Ms. Sia’s house for the purpose of returning the vehicle to her. 6. Mr. Rene did not file a Workman’s Compensation claim for this accident, despite having sustained serious injury. Esso Memorandum of Law in Support of a New Trial, etc., at 2-3. A: No. The problems with defendant’s list of “evidence” are that: (1) it attempts to represent things that are simply not part of the trial record, (2) those facts actually presented by Esso at trial were either irrelevant or insufficient to rebut the presumption and (3) the defendant’s list ignores the overwhelming evidence — which was presented at trial — tending to prove that Mr. Rene was in the course and scope of employment when the accident occurred. In terms of defendant’s specific assertions, the record shows the following: first, not one iota of evidence was presented by defendant at trial to prove that Mr. Rene’s use of the company vehicle was prohibited by either company policy or company practice. Quite the contrary, the evidence suggests that his use of the car was authorized by Esso. Both Ms. Sia and Mr. Rene testified that neither of them were disciplined in the aftermath of the accident, nor were either of them asked to pay for the damages to the vehicle. Moreover, Mr. Rene testified that he has continued, since the accident, to use company cars quite frequently with the knowledge of Esso. (Tr., vol. IV at 121-122.) It is true that defendant’s counsel have repeatedly asserted that Mr. Rene’s use of the car was contrary to company policy — but, as the Court instructed the jury, the assertions of counsel are not evidence. Second, while it is uncontroverted that Ms. Sia’s company car was not “entrusted” to Mr. Rene, it is also uncontroverted that employees such as Mr. Rene were regularly asked to use Ms. Sia’s ear (and other Esso vehicles) to give rides to Ms. Sia (and other Esso employees.) Several Esso employees testified that they believed that providing such transportation was part of their job and that they were required to do so when requested. (See, e.g. Tr., vol. I at 124-125, 127-128, 129-130, 130-132.) Third, it is not clear what relevance, if any, Ms. Sia’s supervisory status over Mr. Rene bears on the question of whether or not he was in the course and scope of his employmént at the time of the accident. Fourth, the evidence presented at trial did not suggest that Ms. Sia provided her car to Mr. Rene “solely” for his personal convenience. The evidence presented at trial suggested that the car was loaned to Mr. Rene for several reasons: 1) his own car was not working, 2) he needed a way to get to work the next day and 3) Ms. Sia wanted somebody to take her to a meeting at the airport on the following day. Fifth, while it is true that evidence showed that the accident occurred when Mr. Rene was en route to Ms. Sia’s house, the evidence further shows that Mr. Rene was going there to pick up Ms. Sia so that he could take her to a meeting at the airport and then take himself to work, all for the benefit of Esso. Sixth, the relevance, if any, of Mr. Rene’s failure to present a Workman’s Compensation form for this accident has never been established by defendant. The propositions outlined by defendants are either irrelevant or not established at trial by evidence or reasonable inference. As such, none of these contentions may be said to have rebutted the presumption established by the fact that Mr. Rene was an Esso employee driving and Esso-owned vehicle. Quite to the contrary, the overwhelming evidence presented tended to show that the prevailing company practice was to approve the use of company vehicles to ferry employees to and from work when their cars were broken, (see, e.g., Tr., vol. I at 109, 114, 124-125, 127, 131, 136) or to take Ms. Sia (or others) to the airport or elsewhere for various reasons. (See, e.g., Tr., vol. I at 114-117, 127-128.) Next, defendant attempts to characterize Mr. Rene’s use of the company vehicle as falling within an exception to the course and scope presumption by stating that Mr. Rene was simply going to work and, therefore, should not be considered in the course of his employment. This argument also rings hollow. In Charles v. Mitchell and HOVIC, 21 V.I. 478 (D.C.V.I.1985), a case relied on by defendants, this Court noted that [f]irst, when a servant is supplied a company vehicle in order to go to and from work, the mere fact that the employer supplies a vehicle does not establish that those who avail themselves to use of the vehicle are within the scope of employment, especially if the use is merely casual. Here the use of the vehicle was not only casual but in direct violation of an express company policy, a policy which Mitchell admits he was aware of. Second, when a master allows an employee to use an instrumentality such as an automobile, the master is liable “only when the instrumentality is being used by the servant for the purpose of advancing the employer’s business or interests as distinguished from the private affairs of the servant.” It is unrebutted that at the time of the alleged incident Mitchell was running a personal errand an not engaged in any activity to advance HOVIC’s interest. Id. at 482-483 (citations omitted.) The overwhelming evidence in this case suggests that Mr. Rene was en route to work and performing a specific task for Esso, i.e. picking up Ms. Sia and driving her to the airport. There is no evidence that he was on a personal errand. Moreover, while it is true that Esso had not specifically entrusted a ear to Mr. Rene for the purpose of going back and forth to work, several witnesses testified that they believed that Esso would allow the use of company cars — and had done so — for the purpose of coming to work when an employee’s personal vehicle was broken. In fact, Ms. Sia testified that Mr. Rene had utilized a different company' vehicle for exactly this purpose on at least two other occasions. (Tr., vol. I at 108-109.) Finally, there is simply no evidence that Mr. Rene was acting contrary to company policy. Defendant also cites an opinion from the Territorial Court of the Virgin Islands, McFarlane v. Jones Masonry, 25 V.I. 43 (Terr.Ct.1990) as support for their argument that Mr. Rene falls into the exception established by the going and coming rule. That opinion stated: There is an exception to the general [going and coming] rule, however. If the employee’s conduct is necessarily incidental to his employment and is actuated, at least in part, by a purpose to further the master’s business, an inference could be drawn that the employee’s conduct occurred within the scope of his employment. Id. at 46-47 (citations omitted).- In this case, Mr. Rene’s conduct was clearly incidental to his employment since he was attempting to get to work despite his own ear troubles and was assisting Ms. Sia in reaching her meeting at the airport. After alleging that the Pacheco presumption was rebutted, defendant Esso then attempts to move quickly to the Restatement (2d) of Agency, §§ 228 and 229 where it apparently finds more support for its assertions. The problem is that defendant moves too quickly. The Pacheco court itself noted the Restatement, stating: “[t]he Restatement of Agency, Second, §§ 228, 233, establishes general rules defining an agent’s scope of employment, but they are not relevant to the specific problem, before us. What is involved here is the existence and effect of a so-called presumption, a subject which has raised unending controversy among scholars and commentators. 409 F.2d at 1236. (Emphasis added.) The fact is that Pacheco states that when a plaintiff has proven that the vehicle operated in the accident is owned by the defendant, and the driver of that vehicle is an employee of the defendant, then the fact that the employee is in the course and scope of his employment is presumed until such time as the defendant offers evidence sufficient to rebut the presumption. In the instant case, no such evidence was offered at trial. III: Defendant argues that judgment as a matter of law should be granted in its favor because plaintiff failed to show that Rene was acting in the course and scope of his employment. For all of the reasons stated in the proceeding section, this argument has no merit. IV: Defendant argues that it should be granted a new trial so that the jury may consider the negligence of the third party who abandoned the vehicle on the highway. The Court denied defendant’s request to submit this issue to the jury on the grounds that there was no evidence in the record to support a finding that a third party had been negligent. While both plaintiff and defendant rehashed this issue in their post-trial submissions to the Court, the issue was thoroughly briefed at trial and the parties’ substantive arguments are found in those pre-verdict briefs. The crux of defendant’s argument is that Virgin Islands law makes it a public nuisance to abandon a vehicle in the roadway and a traffic violation to park illegally. Therefore, Esso argues, the third party who was the driver of the truck was negligent per se. However, as plaintiff points out, defendant did not go far enough in its presentation of proof. In Baumann v. Canton 7 V.I. 60 (D.V.I.1968) this Court stated that the mere fact that an automobile which is involved in an accident is being operated in violation of a regulation does not render the driver of the vehicle guilty of negligence as a matter of law if there are any facts which will excuse his conduct. Id. at 69. In the case at bar, evidence was presented that the driver of the abandoned vehicle flagged down an emergency medical vehicle and asked the' driver, Mr. Steven Hulett, for a ride. Mr. Hulett declined to give the man a ride, but did inform him that he would contact the proper authorities and have the car removed from the roadway. Mr. Hulett then testified that he did in fact call the authorities and reported the location of the car. Therefore, the record suggests that the driver of the third car had taken proper steps before the accident to remove the hazard caused by the vehicle. Far from proving the negligence of the owner/driver of the abandoned automobile, the record shows that the driver took the steps required of him. Even evidence that the operator of the abandoned vehicle acted negligently would not have been enough. The defendant’s evidence would have to have shown that the operator’s negligence was the proximate cause of Mr. Williams injuries — a proposition for which there is no evidence in this record. In fact, the record contains substantial evidence to the contrary, showing that the proximate cause of the accident was Mr. Rene’s breach of his duty to operate his vehicle with reasonable care. In a video-taped deposition shown to the jury, police officer Keith Williams stated that the cause of the accident was Mr. Rene’s failure to keep a look out and failure to operate his own vehicle with due care. In sum, there simply was no evidence presented by either party of the negligence by the phantom operator of the third vehicle. If anything, the evidence on the record relating to the abandoned vehicle tends to reaffirm, not weaken, plaintiffs contention that it was Mr. Rene’s negligence which caused the accident. V: Defendants argue that Dr. Pedersen was improperly excluded as a witness and that a new trial should be granted so that he may testify. Before taking any evidence, during voir dire, the Court ruled at a sidebar conference that defendant would not be permitted to offer Dr. Walter Pedersen as a witness at trial. Defendant now argues that this ruling constituted an abuse of discretion by the Court warranting a new trial. Plaintiff, not surprisingly, disagrees. Defendant’s submissions to the Court indicate that Dr. Pedersen was one of plaintiffs treating physicians in the periods prior to and immediately following the accident. Plaintiff does not deny that Dr. Pedersen was a treating physician, but also claims that Dr. Pedersen was retained by his counsel, Ms. Dowling, as an expert consultant who was not expected to be called as a witness. Apparently, early on in the litigation, Dowling requested a medical report from Dr. Pedersen and paid a fee for this report. A. Testimony of Dr. Pedersen: Because he contends that Dr. Pedersen was a consulting expert, plaintiff argues that discovery of facts known by Dr. Pedersen may only be had “upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Fed.R.Civ.P. 26(b)(4)(B). Defendant does not claim that it ever attempted to make such a showing. Instead, Esso contacted and interviewed Dr. Pedersen without even notifying plaintiff. The case presented by plaintiff, to support his argument, is Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984). In this case the U.S. Court of Appeals for the 10th Circuit upheld the decision of a trial judge denying defendant’s request to present testimony by a medical expert who had previously been retained by plaintiffs. The important difference between that case and this one is that it appears from the opinion that the doctor in Durflinger was not the plaintiffs treating physician and, therefore, presumably did not have knowledge of the ease prior to his involvement in the trial preparation stage. Despite the fact that Fed.R.CivP. 26(b)(4)(B) is inapposite, the Court’s ruling finds support in Virgin Islands law. While there is no Appellate Division case on point, both the Territorial Court and this Court have adopted the same specific procedures for contacting an opposing party’s treating physician with an eye toward safeguarding the confidences inherent in a doctor-patient relationship. In Chase v. People’s Drug Store, 24 V.I. 188, 185, 187 (Terr.Ct.1989) the Territorial Court of the Virgin Islands confronted a case with similar facts. In that situation Territorial Court Judge Petersen ordered the parties to follow the procedure laid out in Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857 (1985). In Stempler, a medical malpractice case, the plaintiff attempted to bar all contact between the defendant doctor and plaintiffs other treating physicians. The court, however, held that ex parte communications would be permitted (and forced plaintiff to comply) but imposed certain conditions on those contacts. The court required that (1) plaintiffs counsel receive reasonable notice of the time and place of the ex parte contact, (2) that plaintiffs treating physician be notified of the anticipated scope of the interview, and (3) that it be communicated with clarity to plaintiffs treating physician that his or her participation in the ex parte interview is entirely voluntary. Id. 495 A.2d at 864. Defendants argue that their contacts with Dr. Pedersen were proper because they had obtained a broadly-worded release from Mr. Williams which they claim allowed them to have unfettered ex parte communication with Mr. Williams’ doctors. However, this argument fails since a very similar authorization had also been provided by the plaintiff in Trantham, Ricker v. Mok, Civ. No. 324/1987, Dist.Ct.Div. of St. Croix, 1989 WL 428607 (Order of Magistrate Judge Resnick, July 11, 1989) and this court still required the parties to follow the procedures set out in Stempler. Based on the clear mandate of local law, defendant’s ex parte contacts with Dr. Pedersen were inappropriate. This Court’s decision to sanction defendant by not allowing Dr. Pedersen to testify would have been appropriate on those grounds alone — but other circumstances surrounding the defendant’s handling of this witness essentially required the Court to bar his testimony. First of all, at the time of the Court’s ruling it had become clear, both in discussions at side bar, and in defendant’s submissions to the Court, that defendant’s counsel intended to attempt to elicit expert opinions from Dr. Pedersen — despite the fact that Dr. Pedersen had not been included in the pre-trial scheduling order as an expert, nor had Dr. Pedersen provided a report of his opinions to plaintiffs counsel as required by Fed.R.Civ.P. 26(b)(4)(B). (Tr., vol. I at 23-24.) The need for this sanction becomes all the more clear when one considers that Magistrate Judge Resnick had actually restricted the time during which plaintiff could depose Dr. Pedersen to thirty minutes relying on Mr. Cole’s representations that Dr. Pedersen would only be called as a fact witness. A final compounding consideration in the Court’s decision on this point is the fact that defendant’s attorney knew better than to make ex parte communications with a plaintiffs treating physician without following the procedures in Stempler. The fact is that Mr. Cole was counsel in one of the eases of this Court (James v. General Offshore Corp., Civ. No. 1989/271, Dist.Ct.Division of St. Croix, (Order of Magistrate Judge Resnick, July 10, 1992)) in which the defendant was required to provide notice prior to ex parte contact with plaintiffs physician according to the procedure laid out in Stempler. B. Dr. Pedersen’s Records: Finally, defendants also complain that Dr. Pedersen’s records were not admitted. They seem to lump this into the same sanction as above. The contention of the defendant on this point is not accurate, however. The Court did exclude testimony by Dr. Pedersen, however, the Court did not make a blanket ruling as to whether or not Dr. Pedersen’s records would be admitted into evidence. Instead, the Court dealt with the records as they came up at trial on a case by case basis. The real problem was that defendants repeatedly attempted to move the records, which had not been authenticated, into evidence diaring plaintiffs case in chief. For this reason, in accordance with the its responsibility under Fed.R.Evid. 611(a), the Court initially sustained plaintiffs objections when defendants attempted to admit the records during their questioning Dr. Nelson. (See, Tr., vol. I at 169-172.) Nevertheless, the Court did ultimately allow Mr. Cole to cross-examine Dr. Payne thoroughly about the records (See, Tr., vol. II at 45) in accordance with Fed.R.Evid. 705. Moreover, because of the issue involving Dr. Montilla’s records (discussed under issue VII, below), Dr. Nelson returned later in the trial — during the presentation of defendants’ case — and yet Mr. Cole made no effort to question Dr. Nelson with respect to the various medical records at that time. In fact, defendants never made any attempt during their own case in chief to authenticate Dr. Pedersen’s records so that the same might be properly-admitted into evidence. The fact is that defendants never properly authenticated the records in question and never attempted to introduce the records in the proper order of proof. Despite this, the Court allowed the defendant to use the records in cross-examining the plaintiffs expert witnesses who had had access to these records when formulating their expert opinions. (See, Tr., vol. II at 34-35.) For all of these reasons the Court’s rulings were proper and there was no prejudice to defendant due to any of the Court’s rulings regarding Dr. Pedersen’s records. VI: Defendant argues that plaintiffs personnel records were improperly excluded and that a new trial should be granted to afford the jury the chance to examine these records. The documents in question (exhibits D-7 and D-17) are discussed at several places in the record (See, Tr., vol. IV at 93-96, 156-157) and consist of two worker’s compensation forms filled out by Veronica Frorup, a Personnel Assistant at WAPA. The forms specify that Mr. Williams injured his back once in 1981 and once in 1983 while at work. In their submissions to the Court, each party states a different view of the reason the records were excluded. The defendant contends (1) that plaintiff stipulated at trial that the documents were in Mr. Williams’ personnel file and that they met the requirements of Fed.R.Evid. 803(6); (2) that the reason that the records were not authenticated was that the Court refused to allow Ms. Frorup to testify at trial as to the authenticity of the records; and (3) that the Court did not allow Ms. Frorup to testify out of a belief that the records had to be authenticated by an employee of the Department of Labor (“DOL”). Plaintiff, on the other hand, argues (1) that the stipulation did not include an agreement that the documents were admissible under Fed.R.Evid. 803(6); (2) that he did not object on the grounds that a witness from worker’s compensation (DOL) had failed to testify; and (3) that Ms. Frorup did not testify .because she had not been listed as a witness for the defendant in the final pre-trial order. What actually occurred at trial is as follows: plaintiff did stipulate that the record was in his WAPA personnel file and that it was authentic (Tr., vol. IV at 94). Plaintiff did not stipulate that the record was admissible under Fed.R.Evid. 803(6). Moreover, plaintiff made no argument about whether or not Ms. Frorup was included on the final pretrial order. Although Ms. Frorup’s name was not included in the order, “Custodian of Personnel Records, V.I. WAPA” was so listed (Fin. Pre-Trial Ord. at 13.) In addition, defendants had named as a potential witness the “Custodian of Worker’s Compensation Records and/or other representative of Dept, of Labor, Worker’s Comp. Div.” Id. Despite this, defendants never called a representative of DOL during trial. Ms. Frorup did not take the stand because plaintiff had already stipulated that the record was authentic. (Tr., vol. IV at 94) The Court’s refusal to admit plaintiffs personnel records was based on the hearsay rules. While defendants never actually clearly stated the purpose for which they wanted these records admitted, the Court inferred that defendant’s trial counsel moved the exhibits because he wanted to prove that Mr. Williams had received a back injury serious enough to cause him to miss work and receive worker’s compensation. Unfortunately for defendant, the forms found in plaintiffs WAPA personnel files were hearsay under Fed.R.Evid. 801(d) and could not be used to “prove the truth of the matter asserted,” that is, that Mr. Williams had received worker’s compensation for a debilitating injury. Moreover, the proffered forms lacked any probative value on this issue since they only showed that a claim form had been filled out by WAPA — not that the claim was submitted to DOL, not that the claim was ever approved by DOL, not that Mr. Williams ever received worker’s compensation, nor even that theses injuries were serious back injuries. Only a representative of DOL could have testified as to whether or not plaintiffs claim was actually approved and he received worker’s compensation payments for these prior injuries to his back. For this reason, the only documents which would have been admissible under Fed. R.Evid. 803(6) — to prove that Mr. Williams’s received worker’s compensation for an earlier debilitating work-related injury — were records in DOL’s files. Defendants did not attempt to admit any such records, nor did they attempt to call any authentication witness from DOL. Finally, all of this is irrelevant to this motion for a new trial, since defendants suffered no prejudice even if the records were improperly excluded. During counsel’s cross-examination of Mr. Williams, the plaintiff admitted that he had injured his back in 1981 and 1983 and that each time the injury was severe enough to keep him out of work for a substantial period of time. (See, Tr., vol. Ill at 58-59, 62-63.) This testimony is far more probative of the fact that plaintiff had previously injured his back than the WAPA records would have been and therefore the exclusion of exhibits D-7 and D-17 was harmless at the very worst. VII: Esso argues that it is entitled to a new trial based on plaintiff’s failure to provide discovery, specifically information regarding plaintiff’s visit to Dr. Montilla. The Court entered a fairly extensive order on this issue during the course of the trial in response to defendants’ motion for a mistrial. Despite this, defendant nevertheless again raises this issue in its post-trial motion. The issue arose at trial because defendants argued that plaintiff had not delivered to them a particular x-ray report in a timely fashion, and that plaintiff had provided incomplete answers to pre-trial interrogatories. Defendants farther argued that these actions constituted prejudice to the defendants sufficient to require a mistrial. At a hearing on this issue on September 23, 1994 at the close of plaintiffs ease, defendants argued that, had they known about plaintiffs visit to Dr. Montilla on September 14 or 15, 1994, when such information was also known to the plaintiff, instead of on September 20, 1994 when defendants actually obtained the information, they might have conducted their case differently. Without holding that defendants had actually been prejudiced by their delayed knowledge about Dr. Montilla, the Court found that it was possible that prejudice may have occurred and ordered certain remedial measures. These measures included: allowing defendants to re-cross-examine Drs. Payne and Nelson using the x-ray report, allowing the admission of the x-ray report, and allowing defendants to bring Dr. Montilla as a witness despite the fact that he had not been included in defendant’s list of witnesses in the pre-trial order. At this stage, defendant makes three arguments: 1) an evidentiary hearing should have been held concerning the failure to provide discovery; 2) plaintiffs failure to provide certain discovery deprived Esso of a “reasonable opportunity to prepare and present its case;” and 3) a new trial is warranted because the issue of causation is “central to the case.” The Court will examine each of these contentions in order. A. Is the Court’s failure to conduct an evidentiary hearing grounds for a new trial? Since there is no requirement that the Court hold an evidentiary hearing regarding the untimely delivery of the x-ray report, the Court’s failure to do so provides no ground for a new trial. The cases relied on by defendant are simply inapposite and/or not controlling in this jurisdiction. Despite the fact that it was not required, this Court did hold a relatively lengthy hearing, outside the presence of the jury, received affidavits from counsel for both parties, and determined that no additional evidentiary 'hearing — and resulting delay in the trial — was needed. (See, Tr., vol. IV at 18-51) After hearing the litigants’ arguments, and reading the submissions of the parties, the Court denied the motion for a mistrial. The Court was, and is, satisfied that there was no deliberate misconduct involved in the delayed delivery of the x-ray report and that the remedial measures taken by the Court (discussed below) cured any prejudice that may have resulted from the delayed disclosure of the plaintiff’s visit to Dr. Montilla. B. Did plaintiff’s failure to disclose his visit to Dr. Montilla cause prejudice? Both plaintiff and defendants cite Seaboldt v. Pennsylvania R. Co., 290 F.2d 296 (3d Cir.1961) as support for their arguments. While the Court has acknowledged that that ease bears some striking factual similarities to the instant case, it does not provide authority for the grant of a mistrial. In Seaboldt, also a personal injury case, counsel for plaintiff told the counsel for defendant that he did not know the name or whereabouts of a chiropractor who had treated the plaintiff prior to the accident. Sometime during the trial it became clear that the counsel for the plaintiff did indeed know the name and whereabouts of the chiropractor. As a result, the trial judge reopened the case and heard testimony from the chiropractor. On appeal, the U.S. Court of Appeals for the Third Circuit found that the actions of the trial judge had not adequately cured the prejudice that might have occurred in the trial court. In granting a new trial, the court stated: It is true that we cannot say for a certainty that previous knowledge of this chiropractor’s identity and what he was going to say would have changed the case from a verdict for the plaintiff to one for the defendant or have changed the amount of the verdict. But it would have made a difference in Railroad counsel’s approach to the testimony of several witnesses. Among these would have been the testimony of the plaintiff himself and that of his wife. The plaintiffs case on the subject of damages was that he suffered this severe injury to his back as a result of the accident which, in turn, was the fault of the Railroad. The chiropractor gave testimony that he had treated the plaintiff previously for a “chronic” back ailment. Cross-examination of both the plaintiff and his wife could have gone much further than it did into this question. There was also the question of the evidence of Dr. Scott, a neuro-surgeon who appeared as a witness for the plaintiff____ [H]ad Railroad’s counsel been in the possession of what the chiropractor had to say, it could well be that questions put to the surgeon based on what the chiropractor had said could have had some effect upon Dr. Scott’s approach to the medical problem. Id. at 299. While Seaboldt is instructive, there are important distinctions in the case at bar. First, in Seaboldt the plaintiffs counsel apparently knew the name and whereabouts of the chiropractor and willfully withheld it from the defendant until the very end of trial, despite inquiries from defendant’s counsel. Nothing so nefarious occurred here, rather, Mr. Williams’ attorney apparently attempted to provide the relevant information to the defendants on September 16,1994 (the Friday before trial) and within twenty-four (24) to forty-eight (48) hours of receiving it herself. While the document in question was inadvertently not provided to defendants until September 20, 1994 (the second day of trial), the Court found that this delay in transmitting the information was neither willful nor intentional. A second, and most important, difference between Seaboldt and the instant case is that, here the defendants had not even begun to present their case when the evidence was discovered, and defendants still had the opportunity to cure whatever prejudice might otherwise have occurred. At the hearing September 23, 1994, defendants argued that they would have done several things differently had they known of Dr. Montilla when plaintiff first remembered the fact that he had visited Dr. Montilla. Defendants stated that they would have been able to cross-examine Drs. Payne and Nelson using the information gleaned from Dr. Montilla and that they might have desired to present testimony by Dr. Montilla himself. The Court’s order, entered following the hearing, gave defendant the opportunity to cure any prejudice: For all of these reasons, the Court will deny the motion for a mistrial. However, the Court will allow plaintiff witnesses, Drs. Payne and Nelson, to be recalled so that defendants have the opportunity to cross-examine these witnesses using the documents and information they have gleaned from the fact that Dr. Montilla apparently examined the plaintiff in April of 1990. In addition, should defendant desire to call Dr. Montilla as a witness the Court will allow it. Also, the Court urges the defendants to make the information about Dr. Montilla’s examination of the plaintiff available to their experts in order that they may give the most complete testimony possible. Finally, the Court will allow the defendant to place into evidence Dr. Montilla’s other medical records pertaining to his examination Mr. Williams. Williams v. Rene and Esso, No. 1991-231 (D.V.I. filed Sept. 26, 1994) (Ord. denying Defs.’ Motion for a Mistrial) at 5. Defendants’ conduct in the wake of this order makes it clear that no prejudice occurred. First, defendants did not move the untimely-produced records into evidence. Second, defendants did not even attempt to call Dr. Montilla as a witness. Third, after requiring plaintiff to fly Dr. Nelson back to St. Croix from St. Thomas, defendants’ counsel failed to ask the doctor any probative questions related to the x-ray report. Finally, while Dr. Payne was not able to return to the trial to be reexamined by defendants’ counsel, this was not prejudicial to defendants since defense counsel actually discovered Dr. Montilla’s x-ray report during defendants’ initial re-cross of Dr. Payne. This exchange then occurred: Q Doctor, yesterday when Dr. Nelson testified, he told us that Mr. Williams had related to him that he had had a lumbosaeral spine X-ray a few months prior to this accident. Now, were you ever given a lumbosacral spine X-ray taken a few months after (sic) the accidents? A Yes. Q You were? A Yes. Q When were you given that X-ray? A I don’t know. I suppose with the pile of information that came. I’ve had information mailed to me along the way. Q Do you have a lumbosacral spine X-ray that was taken between 1986 and the accident in 1990? A I would have to look for it. It was taken April 27 of ’90. (Tr., vol. II, at 67). Notably, even after learning of the x-ray from Dr. Payne, defendants’ counsel asked no further questions about it, nor did he press the doctor to give any opinion as to whether this piece of evidence had any effect on her assessment of the cause of Mr. Williams’ injuries. Also notable is plaintiffs counsel’s exchange with Dr. Payne on redirect: Q From all the documents and all the medical records, including all the ones that Attorney Cole just asked you about, is there any evidence in any of those records in any of those reports that he had an injury to his disk such as a bulging disk prior to this injury? A No. Q Is there any evidence in any of those records of any radiculapathy or any nerve damage? A No, there wasn’t. Q And if Mr. Williams had had a bulging disk prior to this injury, would he have had nerve damage? A Yes. Q And would that nerve damage been evident by any of the examinations taken prior to this injury? A It should have been, yes. (Tr., vol. II at 71) Defendant’s protestations notwithstanding, there is simply no evidence that plaintiffs failure to timely remember his visit to Dr. Montilla and the related failure to timely provide defendants with Dr. Montilla’s x-ray report prejudiced the defendants. As has been demonstrated, the Court took strong and immediate measures to cure whatever prejudice might have occurred by allowing defendants several opportunities to make use of the lately discovered records and information. Having chosen not to utilize the evidence nor any of the information gained from it in its case in chief, defendant cannot now claim prejudice. C. Does the late production of this information necessitate a new trial on the issue of causation? Plaintiffs untimely recollection of his visit to Dr. Montilla and the untimely production of Dr. Montilla’s x-ray report in no way necessitate a new trial. First of all, despite his allegations that the x-ray report might go to the issue of causation, and the Court’s express order that the record would be admitted, Counsel for defendants never moved the record into evidence despite ample opportunity to do so. (Tr., vol. IV at 153-158.) In addition, as was stated above, when Dr. Nelson was re-called at the request of defendants, counsel failed to ask any causation-related questions pertaining to the untimely-produced x-ray report. (Tr., vol. IV at 151-153.) Moreover, when plaintiff called Dr. Nelson as a rebuttal witness the following exchange took place: Q Doctor, you’re still under oath. Doctor, did you review the x-ray report of Dr. Montilla? A Yes. Q And what did it show? A It showed some mild arthritis in the lower back. Q Was there anything that the X-ray report showed in April of 1990 — was there any indication whatsoever that Mr. Williams was suffering from a disk condition? A No. Q And knowing what you know about Mr. Williams, would you have expected mild arthritis in his back? A Yes. (Tr., vol. IV at 158-159.) Finally, although Dr. Payne was unable to return to St. Croix in order to be re-cross-examined with respect to the x-ray report, defendants were able to question Dr. Payne with the x-ray report on their first cross-examination, and the record shows that Dr. Payne had considered the x-ray before rendering her opinion at trial. In addition, during Ms. Rohn’s direct examination of Dr. Payne, the following exchange took place: Q You reviewed those doctor’s records? [Note: Counsel here is referring to all of the medical records received by Dr. Payne, not merely Dr. Montilla’s X-ray.] A Yes. Q Was there anything in those records to lead you to believe that there was the slightest bit of possibility that Mr. Williams’ injury occurred anywhere besides in December of 1990? A No. He never had neurological symptoms at the time of our findings. (Tr., vol. II at 33-34.) For all of these reasons, and especially because defendants never moved the offending x-ray report into evidence, defendant’s arguments that this lately-produced document was critical to the issue of causation must be considered facetious. VIII: Defendant argues that plaintiffs counsel improperly suggested an ultimate figure for the jury to award in this case. Defendant relies on the case of Waldorf v. Shuta 896 F.2d 723, 743-744 (3d Cir.1990) in arguing that plaintiff’s counsel impermissibly influenced the jury with regard to the amount of damages that should be awarded. Again, defendant’s arguments miss the mark. In Waldorf the plaintiff claimed that he intended, prior to the accident, to become a lawyer and that therefore his lost future earnings should be calculated as if he had actually become a lawyer. The evidence that Mr. Waldorf was likely to become a lawyer was sparse, however. As the court wrote, Mr. Waldorf was a 24-year old high school drop-out who had obtained his high school equivalency diploma in the military. He had worked as a paralegal in the military, but had been unable to find employment as a paralegal in civilian life; he had entered and dropped out of the New York Police Academy; he had been refused admission to a four-year degree program and had completed one year of a two-year Associate Degree Program at the College of Staten Island. At the time of the accident, he was taking six courses, three of which were photography, tennis and acting. While there is no reason to doubt Waldorf’s aspiration to become a lawyer, no credible evidence had been presented that he had the ability to become a lawyer. 896 F.2d at 742-743. Despite the lack of foundation, the trial court in Waldorf allowed evidence to be presented to the jury that Mr. Waldorfs future earnings would have been approximately $3.8 million had he become a lawyer. In his closing argument, Mr. Waldorf s counsel stated You heard the testimony. You saw the man____ And if you find that, you find the final figure, his loss of $3,799,000 will make it whole. It doesn’t make him whole. You want to know the truth: That’s peanuts. That’s peanuts for the price that should be paid for what this man went through. So you take the $3 million. That’s just the beginning. That’s peanuts, because the real loss is not monetary, ... What kind of money can pay him back? $3,799,- 000? That’s peanuts. That’s a small part of what he should he paid for the. kind of injuries that he’s received, for the pain and suffering____ 896 F.2d at 744 (italics and omissions in the original.) The U.S. Court of Appeals for the Third Circuit found that this closing argument constituted a request for a specific dollar amount for pain and suffering. Id. at 744. Referring to the above cited argument by counsel, the court wrote: Does the above scenario represent an argument by plaintiffs counsel for a specific amount of damages for pain and suffering? We think it does. It constitutes a plea for, at a minimum, an award of $3,799,000 for the elements of pain and suffering. As to the intended impact of counsel’s proposed mere “peanuts” multiplier factor, it is unclear how high a multiplier he was suggesting. But any jury would have to think that counsel was urging that the $3,799,000 should be doubled, tripled quadrupled or enhanced even more. Id. at 744. It is clear from this passage that the Waldorf court was primarily concerned with the problem of counsel suggesting a specific number for non-economic, pain and suffering damages. They found that Mr. Waldorf s counsel’s use of a future earnings amount which was not supported by the evidence, and his statement that that number constituted “peanuts” compared to what Mr. Waldorf really deserved, was actually an impermissible suggestion of a specific number for pain and suffering. Nothing like this occurred in the case at bar. First of all, there has been no allegation by defendant that Dr. Pettingell, plaintiffs economist, impermissibly inflated his estimate of Mr. Williams’ future earnings. Second, counsel, in the portion of her closing arguments relating to damages kept her discussion of economic and non-economic damages completely separate. When she was talking about economic damages, she simply re-capped Dr. Pettingell’s testimony which was both compelling and essentially unrefuted by the defendant. (Tr., vol. V at 42-44.) After she had reviewed the substance of Dr. Pettingell’s testimony, she then shifted into a discussion of non-economic damages in which she included pain and suffering, mental anguish and loss of enjoyment of life. Throughout h