May 25, 1993
[SYSTEM'S NOTE: Opinion dated 3/12/93 was vacated and this is
the reissued opinion.]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1836
AGUSTINA PEREZ-PEREZ,
Plaintiff, Appellee,
v.
POPULAR LEASING RENTAL, INC., ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Skinner,* Senior District Judge.
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Harry A. Ezratty for appellants.
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Arnoldo E. Granados with whom Ortiz Toro & Ortiz Brunet was on
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brief for appellee.
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May 25, 1993
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* Of the District of Massachusetts, sitting by designation.
SKINNER, Senior District Judge.
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Plaintiff-appellee Agustina Perez-Perez ("Perez-
Perez") brought this action seeking damages for emotional
distress sustained as a result of the death of her forty-
nine year-old sister, Maria Perez-Perez ("Maria"). Perez-
Perez alleged that while defendant-appellant Oscar
Betancourt Mateo ("Betancourt") was driving a car leased
from defendant-appellant Popular Leasing Rental, Inc.
("Popular"), Betancourt negligently struck and killed Maria
on November 27, 1990, as she was walking along the side of
Route 849 in Puerto Rico. A jury returned a verdict in
Perez-Perez's favor in the amount of $275,000. Betancourt
and Popular appeal from the judgment entered on the verdict
by the United States district court of Puerto Rico, Judge
Fuste, and from an order denying defendants' "Motion For
Alternative Relief." Defendants claim that relief from
judgment is necessary because (1) the trial testimony was
poisoned by perjury, (2) plaintiff's counsel unfairly
surprised the defendants by introducing previously
undisclosed expert medical testimony concerning Betancourt's
eyesight, and (3) the verdict was excessive. Before
considering these issues, however, we first address
plaintiff's contention that this court lacks appellate
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jurisdiction because the notice of appeal and the "Motion
for Alternative Relief" were untimely filed. We find that
we have appellate jurisdiction to consider defendants'
direct appeal from the district court judgment, as well as
jurisdiction to consider the district court's denial of
defendants' post trial motion. Because we find that the
district court incorrectly admitted the testimony of the
plaintiff's medical expert, we reverse and remand for a new
trial.
I. Appellate Jurisdiction
Fed. R. App. P. 4(a) requires any party appealing from
a judgment of the district court to file a notice of appeal
within 30 days of the entry of the judgment. Timely filing
of a notice of appeal is "mandatory and jurisdictional."
Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264
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(1978). In this case, there is no dispute that the
defendants timely filed a notice of appeal from the district
court's order denying the motion for alternative relief. In
contrast, the parties dispute whether timely appeal was
taken from the district court's judgment entered against
defendants on April 22, 1992. A notice of appeal was not
filed until June 26, 1992, more than two months later.
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If a motion to alter or amend judgment pursuant to Fed.
R. Civ. P. 59 is timely filed with the district court, the
time for appeal runs from the entry of the order denying
such motion. Fed. R. App. P. 4(a)(4). Defendants invoke
the tolling provisions of this rule by describing their
"Motion for Alternative Relief" as one timely brought under
Rule 59(e). The motion was filed with the district court on
April 30, 1992, but not served on Perez-Perez until May 4,
1992. The timeliness of a Rule 59 motion to amend judgment
is determined by the date it is served, not by the date it
is filed. Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st
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Cir. 1988). Though it might appear that the motion was not
filed within the requisite 10-day period, Fed. R. Civ. P.
6(a) provides that the intermediate Saturdays and Sundays be
excluded from the 10-day count. Accordingly, we find that
the motion was served on the plaintiff within ten days of
the entry of judgment. This, however, does not end our
inquiry.
Our jurisdiction over the appeal from judgment (as
opposed to the appeal from the denial of the motion itself)
depends on whether we characterize the "Motion For
Alternative Relief" as one brought under Rule 59(e) or Fed.
R. Civ. P. 60(b). A motion for relief from judgment under
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Rule 60(b), unlike a motion to amend a judgment under Rule
59(e), does not toll the 30-day appeal period. Browder, 434
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U.S. at 263 n.7; Lopez v. Corporacion Azucarera de Puerto
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Rico, 938 F.2d 1510, 1513 (1st Cir. 1991). Our inquiry into
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the character of the motion is a functional one:
"nomenclature should not be exalted over substance."
Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st
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Cir. 1988) (quoting Lyell Theatre Corp. v. Loews Corp., 682
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F.2d 37, 41 (2nd Cir. 1982)); 7 Moore's Federal Practice
60.30[1] (1992). The caption "Motion for Alternative
Relief," does not describe a motion under either Rule 59 or
Rule 60. One of the claims for relief, remittitur of an
excessive verdict, is a classic Rule 59 claim. The other
claims, surprise and misconduct, are specifically referred
to in Rule 60(b), and the defendants appear to rely on Rule
60(b)(1) in their memorandum to the district court.1
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1 The district court entered the following order denying the
defendants' motion on June 12, 1992:
This final order will start the counting of
the term for appeal by defendants.
The court now denies [defendants'] April 30
motion for relief against the verdict (JNOV) [sic]
and for new trial or remittitur.
IT IS SO ORDERED.
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Rule 59 provides that a new trial may be granted in a
jury action for any reason for which new trials were granted
at common law. The rule creates the opportunity to correct
a broad panoply of errors, in order to prevent injustice.
11 Wright & Miller, Federal Practice and Procedure: Civil
2803, 2805 (1973). In an early case under Rule 59, the
Supreme Court described the breadth of the rule:
The motion for a new trial may invoke the
discretion of the court in so far as it is
bottomed on the claim that the verdict is against
the weight of the evidence, that the damages are
excessive, or, that, for other reasons, the trial
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was not fair to the party moving; and may raise
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questions of law arising out of substantial errors
in admission or rejection of evidence or
instructions to the jury.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)
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(emphasis supplied). It would appear in general that the
grounds for relief from judgment under Rule 60(b) may also
be grounds for a new trial under Rule 59, if the motion is
timely made. 11 Wright & Miller, supra, 2805-2810. In
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Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108,
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112 (5th Cir. 1982), the court held that the grant of a new
trial under Rule 59 was warranted when a party called a
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If the defendants' motion did not in fact qualify as a
motion under Rule 59, the district court had no power to
extend the time for filing an appeal, which is
jurisdictional. Browder, 434 U.S. at 264.
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previously unidentified expert witness to testify without
any forewarning, resulting in a favorable verdict for that
party. This is precisely one of the instances of misconduct
of which the defendants complain in their motion in this
case.
The interrelation of Rules 59 and 60 was described by
the court in Van Skiver v. United States, 952 F.2d 1241
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(10th Cir. 1991), cert. denied, 113 S. Ct. 89 (1992), as
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follows:
[T]he rules allow a litigant subject to an adverse
judgment to file either a motion to alter or amend
the judgment under Fed.R.Civ.P. 59(e) or a motion
seeking relief from judgment pursuant to
Fed.R.Civ.P. 60(b). These two rules are distinct;
they serve different purposes and produce
different consequences. Which rule applies to a
motion depends essentially on the time a motion is
served. If a motion is served within ten days of
the rendition of judgment, the motion will
ordinarily fall under Rule 59(e). If the motion
is served after that time it falls under Rule
60(b).
Van Skiver, 952 F.2d at 1243 (citations omitted). In other
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words, the litigant who gets his motion in on time enjoys
the full menu of grounds for relief provided by Rule 59; if
not, he is confined to the six specific grounds of relief
found in Rule 60(b).
It is not quite that simple, however, because of
additional restraints which the courts have imposed on
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motions brought under each rule. Motions under Rule 59 must
raise matters that were brought to the attention of the
district judge during the trial, unless the alleged error
was fundamental. 11 Wright & Miller, supra, 2805; Harley-
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Davidson Motor Co. v. Bank of New England-Old Colony, N.A.,
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897 F.2d 611, 616 (1st Cir. 1990). Conversely, motions
under Rule 60(b) must raise issues which were not available
to the moving party within the appeal period, barring
exceptional circumstances. Silk v. Sandoval, 435 F.2d 1266
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(1st Cir.), cert. denied, 402 U.S. 1012 (1971); Mitchell v.
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Hobbs, 951 F.2d 417 (1st Cir. 1991). The relatively open
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ended time limits of Rule 60(b) can not be used to
circumvent the time limitations on appeal.
A further question is raised by our opinion in
Echevarria-Gonzalez v. Gonzalez-Chapel, in which we held
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that a motion which invoked Rule 60(b) and relied on the
rhetoric of Rule 60(b) to support it, would not be construed
as a motion under Rule 59 for purposes of tolling the appeal
period, even though filed within ten days of the judgment,
as required by Rule 59. Echevarria, 849 F.2d at 26. The
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critical fact in Echevarria, however, was that the motion
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sought relief from a default judgment. Under Fed. R. Civ.
P. 55, the only means of setting aside a default judgment is
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by motion under Rule 60(b); the motion was either a Rule
60(b) or nothing.
A more general rule is exemplified by our opinion in
Lopez v. Corporacion, in which we held that a timely filed
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motion could be treated as filed under Rule 59 even though
it was titled "Motion for Relief From Judgment" and
ostensibly filed pursuant to Rule 60(b). Lopez, 938 F.2d at
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1513. We quoted with approval the statement in a leading
text:
[A] motion, though characterized as one under Rule
60(b), which is filed within ten days of the entry
of judgment and questions the correctness of the
judgment, will be considered a functional Rule 59
motion and will postpone the time to appeal until
entry of the order disposing of it.
Id. at 1513-14 (quoting 9 Moore's Federal Practice
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204.12[1]). We distinguished Echevarria on the ground that
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the movant in Echevarria sought relief from a default
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judgment and relied on cases construing Rule 60(b), and
neither was true of the motion in Lopez. Id. at 1514.
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In our present case, the defendants have not
characterized their motion one way or the other. In the
supporting memorandum filed in the district court, the only
rule reference is to Rule 60(b), but is a casual, rather
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than an exclusive, one.2 They have, however, relied
heavily on a case decided under Rule 60(b), Anderson v.
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Cryovac, Inc., 862 F.2d 910, 924 (1st Cir. 1988). But as we
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hold infra, the propositions for which that case is cited is
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equally applicable to a timely filed motion under Rule 59.
We find the state of the record in this case to be
closer to Lopez than to Echevarria, which we view as
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specifically exemplary of the special rule affecting default
judgments. Accordingly, we rule that the defendants'
motion, having been filed within the ten-day period as
computed under Rule 6(a), may be construed as a motion under
Rule 59, the filing of which postpones the time for filing
an appeal until 30 days after the motion's determination.
The subsequent timely filing of the appeal established our
appellate jurisdiction.
II. Grounds for the Motion
Defendants' motion argued two grounds for setting aside
the jury verdict. First, defendants alleged the trial was a
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2 "Defendants contend - among other things - that a certain
happening at trial constituted conduct violative of Rule
60(b)(3) of the Federal Rules of Civil Procedure, thus
paving the way for relief from judgment. In the same vein
the conduct complained of, in addition to other conduct, ran
afoul of section (b)(1) of the same Rule."
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fraud on the court, claiming that a witness offered perjured
testimony with the assistance of opposing counsel. Second,
defendants argued they were unfairly surprised at trial
because the court allowed the plaintiff to offer the
testimony of a previously undisclosed medical expert.
Ordering the presentation of witnesses and the granting of a
new trial are both matters committed to the discretion of
the trial court, and may be reversed only for abuse of
discretion. See Fed. R. Evid. 611; CVD, Inc. v. Raytheon
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Co., 769 F.2d 842, 848 (1st Cir. 1985), cert. denied, 475
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U.S. 1016 (1986).
A. Fraud on the Court
Defendants must clear a high hurdle in order to set
aside the verdict based on their allegations of fraud. The
moving party must demonstrate fraud by clear and convincing
evidence and must show that the fraud foreclosed full and
fair preparation or presentation of its case. We have
explained that fraud on the court occurs,
where it can be demonstrated, clearly and
convincingly, that a party has sentiently set in
motion some unconscionable scheme calculated to
interfere with the judicial system's ability
impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the
presentation of the opposing party's claim or
defense.
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Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.
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1989).
When considered against these standards, it is clear to
us that the district court properly denied so much of
defendants' motion as was based on speculative and
unsubstantiated allegations of perjury. Defendants'
argument centers on the trial testimony given by Luis Rafael
Villanueva Gaetan ("Rafi"), the only eye witness to the
accident. During trial, Rafi testified that as he was
walking down Route 849 he passed Maria, who was standing on
the shoulder of the road. A short time later he heard a
"blow" and turned to see Maria's body falling to the ground.
Rafi explained that Betancourt's car was passing just in
front of Maria's location at the time her body was falling
to the pavement. After the car stopped a short distance
down the road, Rafi said that he ran to the car and
informed the driver, who was then inspecting the front of
his car, that he had struck a pedestrian. According to
Rafi, the driver looked in the direction of Maria's body,
then returned to his car and drove off. Rafi identified
Betancourt as the driver of the car.
On cross-examination, Rafi admitted that some of the
detail of his trial testimony was absent from two prior
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sworn statements given by him. Defense counsel highlighted
two significant additions to Rafi's initial sworn
statements. First, while Rafi testified at trial that he
saw Maria's body falling to the pavement, his prior
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statements implied that her body was already on the pavement
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by the time he turned towards the sound of the blow.
Second, his trial testimony placed Betancourt's car just in
front of Maria at the time of the blow, while his initial
statements do not mention the precise location of the car,
other than the fact that it came to a stop down the road.
Taking these inconsistencies and adding to them Rafi's
admission that he had visited opposing counsel's office to
prepare his trial testimony, defendants charge that opposing
counsel and Rafi conspired to present perjured testimony.
The judge properly concluded that defendants failed to
present clear and convincing evidence that Rafi committed
perjury or that opposing counsel encouraged, secured, or
knowingly assisted the allegedly perjured testimony. We
note that one purpose of cross-examination is to give
counsel the opportunity to root out the type of
inconsistencies, omissions, and exaggerations alleged here.
On cross-examination, defendants raised before the jury the
same facts that are now alleged on appeal to constitute
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fraud on the court. The significance of the inconsistencies
in Rafi's testimony, as well as his credibility and
sincerity, was for the jury to decide and we see no reason
to disturb its findings or the district court's order
denying relief from the verdict on this ground.
B. Undisclosed expert testimony
Defendants also seek a new trial because the district
court abused its discretion when it permitted the plaintiff
to introduce the testimony of a previously undisclosed
medical expert, Dr. Walter Kleis, who testified that
Betancourt's eyesight was severely impaired by glaucoma.
Dr. Kleis testified that Betancourt's visual impairment was
so severe that it could cause him to miss a pedestrian
walking along the road under conditions similar to those on
the evening of the accident.
Up to the time of Dr. Kleis' testimony, plaintiff had
pursued the case under the theory that Betancourt was
driving with "utter disrespect toward human life" and that
"the accident was due only and exclusively to the negligence
of defendants [sic] for not driving safely." Plaintiff
reaffirmed this as the exclusive theory of the case in the
initial pretrial order and two amended pretrial orders. At
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no time did plaintiff suggest that Betancourt's eyesight
would be raised as an issue at trial, nor did plaintiff
identify any medical experts who were to be called at trial.
Plaintiff, nonetheless, argued to the district court that
Dr. Kleis' testimony should be permitted as "rebuttal"
evidence to address an issue raised by Betancourt's direct
examination. Betancourt's entire direct testimony on the
issue follows:
Q Now, I note that you wear glasses.
A Yes.
Q Would you tell us, please, what the purpose of
those glasses are [sic].
A The purpose of the glasses is to improve my vision
to make it better. But I can drive without
glasses. I can see without glasses if I want to.
Plaintiff's counsel made Betancourt's eyesight a
central issue on cross-examination (more than a third of the
record testimony is devoted to cross-examination on this
issue). Counsel's examination explored the physical
condition of Betancourt's eyes, namely the presence of
glaucoma; his on-going medical treatment for this condition,
including daily use of eye drops and recent laser treatment
of one eye; and the effect of this condition and these
treatments on his peripheral vision, his ability to
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distinguish objects at a distance, and his ability to see in
the dark.
During Betancourt's cross-examination, plaintiff asked
the court for permission to present Dr. Kleis as a rebuttal
witness. Counsel stated that Dr. Kleis would testify that
based on his review of Betancourt's medical records,
Betancourt suffered from "all kinds of problems in terms of
centralized and focusing vision," particularly after sunset,
and that he should not have been driving a car at night.
The court initially denied plaintiff's request, reasoning
that the pretrial order made no mention of a medical expert
and that the proffered testimony raised an entirely new and
inconsistent theory of the case. The judge later decided to
hear the testimony of Dr. Kleis outside the presence of the
jury. At that time, the court learned that plaintiff's
counsel had first contacted Dr. Kleis around the beginning
of January 1992 at which time counsel told Dr. Kleis that it
was likely that he would testify at trial. Plaintiff made
no similar representation to the court or to defense counsel
at any time prior to trial in April 1992, despite twice
seeking to amend the pretrial order to reflect changes in
witnesses and other evidence. The court addressed
plaintiff's counsel, concluding that he would permit Dr.
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Kleis to testify before the jury "as an act of justice to
your client, not to you. You did wrong."
Dr. Kleis testified for the jury that Betancourt
suffered from glaucoma, a medical condition of the eyes that
reduces an individual's peripheral vision, especially at
night. He stated that the eye drops used to treat
Betancourt's glaucoma made his pupils very small, which
further reduced his visual capacity. In addition, he
testified that Betancourt suffered from myopia, a condition
that impaired his ability to see objects at a distance. Dr.
Kleis explained that taken together, these conditions would
make it difficult for Betancourt to see and perceive objects
at the periphery of his vision. Responding to a
hypothetical question, Dr. Kleis concluded that under the
lighting and driving conditions on the night of the accident
there was a possibility that Betancourt did not see the
victim on the side of the road. Finally, Dr. Kleis
testified that Betancourt had undergone laser surgery on his
left eye shortly after the accident.
In this case, the trial court's own findings compel the
conclusion that the defendant was unfairly surprised and
that plaintiff's counsel engaged in misconduct. Though we
believe that the judge abused his discretion with regard to
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his ultimate decision to admit Dr. Kleis' testimony, his
initial reaction was correct and we defer to the judge's
well-considered findings of fact. The judge made several
germane findings on the record. The judge concluded that
(1) Dr. Kleis' testimony was not proper rebuttal evidence of
an issue put into dispute on direct examination;3 (2)
plaintiff's counsel "knew for a long time" that Betancourt
suffered from glaucoma and that "at least since January []
had Dr. Kleis available to testify;" (3) there was "no
excuse as to why [counsel] kept [Dr. Kleis' testimony] under
[his] sleeve until this moment;" and (4) the proffered
testimony changed the theory of the case from a charge that
Betancourt drove recklessly to an allegation that Betancourt
was "driving like normal people do, and that because of an
eyesight problem he had the accident." In spite of these
findings, the judge ultimately decided to admit Dr. Kleis'
testimony as an "act of justice" to the plaintiff, noting
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3 Plaintiff contends that Dr. Kleis' testimony was
admissible under the terms of the pretrial order which
expressly reserved to the parties a right to call
undisclosed rebuttal witness. The judge determined that Dr.
Kleis was not a proper rebuttal witness. This determination
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is within the sound discretion of the trial judge, Lubanski
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v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. 1991), and
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we are in full agreement with it.
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that the situation was totally beyond plaintiff's control.4
In this case, Dr. Kleis' testimony and counsel's
extensive cross-examination of Betancourt on his visual
impairment, introduced a novel theory of liability to this
case. Defense counsel was denied the opportunity to design
an intelligent litigation strategy to address the charge of
visual impairment and to effectively cross-examine Dr. Kleis
in a highly specialized field of medicine. Without time to
review Dr. Kleis' records or to gain sufficient medical
knowledge and without a chance to investigate Betancourt's
physical condition, speak to his primary care physician, or
arrange for a rebuttal expert, defense counsel was precluded
from effectively addressing the charge.
We have no doubt that this state of the record exactly
comports with the definition of unfair surprise succinctly
set out by the Court of Appeals of the Fifth Circuit:
It is well settled that Rule 59 provides a means
of relief in cases in which a party has been
unfairly made the victim of surprise. The
surprise, however, must be "inconsistent with
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4 We are aware of the difficulty of excluding highly
relevant and perhaps dispositive testimony which apparent
substantive justice requires should be considered by the
jury. Apparent substantive justice may be illusory,
however, if the purportedly dispositive evidence is not
subject to fair testing in an even handed process.
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substantial justice" in order to justify a grant
of a new trial. The district court is therefore
entitled to grant a new trial only if the
admission of the surprise testimony actually
prejudiced the [moving party's] case. This Court
has limited reversible error from unfair surprise
to situations where a completely new issue is
suddenly raised or a previously unidentified
expert witness is suddenly called to testify.
Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d at 111-
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12 (footnote and citations omitted). Furthermore, the
district judge made a specific finding that plaintiff's
counsel had been guilty of misconduct. On the facts of this
case, the criteria for misconduct which we imposed under
Rule 60(b) in Anderson v. Cryovac, 862 F.2d at 923-26, apply
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equally to this motion under Rule 59. Reversal of the
judgment and a remand for a new trial is warranted under
either analysis.
We need not address defendants' claim that the jury
award was excessive, since in any case there must be a new
trial. The judgment is reversed and the case remanded to
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the district court for a new trial.
Costs awarded to appellants.
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