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Duquesne Light Co. v. Westinghouse Elec. Corp.

September 12, 1995

DUQUESNE LIGHT COMPANY, THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, THE TOLEDO EDISON COMPANY, OHIO EDISON COMPANY, AND PENNSYLVANIA POWER COMPANY, APPELLANTS

v.

WESTINGHOUSE ELECTRIC CORPORATION



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 91-720)

BEFORE: GREENBERG, COWEN and SAROKIN, Circuit Judges

GREENBERG, Circuit Judge.

Argued August 25, 1995

(Filed: September 12, 1995)

OPINION OF THE COURT

The plaintiffs appeal from judgments entered against them on all counts of their complaint. The district court granted the defendant summary judgment on certain of the plaintiffs' counts and dismissed others by granting defendant's motion made pursuant to Fed. R. Civ. P. 50(a) at the close of plaintiffs' case. On the one remaining claim, the jury returned a verdict in favor of the defendant. Because we find no merit in the myriad of issues the plaintiffs raise, we will affirm the judgment and orders of the district court.

I. INTRODUCTION

The plaintiffs -- Duquesne Light Company, The Cleveland Electric Illuminating Company, The Toledo Edison Company, Ohio Edison Company, and the Pennsylvania Power Company -- together constructed and own the Beaver Valley Nuclear Power Station, a two-unit nuclear energy generating facility located near Pittsburgh Pennsylvania. Duquesne points out that it had primary responsibility for supervising the construction of the plant, and it now "operates the plant on behalf of the co-owners." Br. at 5 n.2. We therefore will refer to the plaintiffs singularly as Duquesne.

In the 1960's, Duquesne issued a request for proposals and bid specifications for equipment to be used at the plant. Westinghouse submitted a proposal, and, after negotiations, entered into a contract with Duquesne under which it agreed to supply Nuclear Steam Supply Systems (NSSS) for the Beaver Valley units. It is beyond doubt that during these negotiations the parties had sophisticated technical, commercial, and legal advice. The parties executed the contracts for the units respectively on October 3, 1967, and January 5, 1972. Each NSSS contains a nuclear reactor, three steam generators, and a number of other components that together convert heat from nuclear fission into steam. The steam generators for the first unit were installed in 1972; those for the second unit were installed in 1981. The units began commercial operations in, respectively, April 1977 and November 1987. Duquesne contends that when it negotiated the contracts, it sought steam generators that would last approximately 40 years and it points to facts that tend to support that contention. For instance the method of installing the NSSS equipment makes removing or replacing the steam generators extremely difficult.

In the 1980s, Duquesne discovered corrosion and cracking in the generators' "U"-shaped Inconel-made tubes through which radioactive water is pumped from the reactor vessel to the steam generators. Such corrosion and cracking affect both the plant's power output and safety. Duquesne engaged experts to examine the rapid deterioration who concluded, among other things, that the tube material -- Inconel 600 -- made the equipment unusually susceptible to corrosion. Duquesne ultimately determined that it would have to replace the steam generators.

On April 30, 1991, Duquesne filed this action against Westinghouse alleging breach of contract, breach of warranty, breach of the Uniform Commercial Code duty of good faith, fraud, negligent misrepresentation, and violations of the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. Section(s) 1962(b) and (c). On December 1, 1993, Westinghouse filed a motion for summary judgment on all counts of the complaint. The district court referred the motion to a magistrate judge who issued a thorough and detailed report and recommendation on July 18, 1994. In an order dated August 29, 1994, the district court adopted (with modifications) the magistrate judge's report and recommendation, and granted Westinghouse summary judgment on Duquesne's negligent misrepresentation claim and on its claim under 18 U.S.C. 1962(b). The court denied the motion in all other respects, *fn1 and rejected Westinghouse's argument that the various statutes of limitations and repose precluded Duquesne's claims.

The case proceeded to trial on September 12, 1994. At the close of Duquesne's case Westinghouse moved for judgment as a matter of law, and on October 24 the district court in a bench opinion granted that motion in most respects. It dismissed Duquesne's claims of breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, and violations of RICO. It also dismissed Duquesne's claim for punitive damages. The court permitted Duquesne's fraud claim, however, to go to the jury. On December 6, 1994, the jury returned a verdict in favor of Westinghouse on that claim. The court entered judgment on December 7, and Duquesne timely filed a notice of appeal. *fn2 We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291. Because of the RICO claim, the district court exercised subject matter jurisdiction under 18 U.S.C. Section(s) 1964(c) and 28 U.S.C. Section(s) 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. Section(s) 1367(a). *fn3

II. DISCUSSION

A. The Verdict

1. The Trial Time Limitations

We begin with Duquesne's attack on the jury verdict, since the jury's findings impact on our analysis of the other claims. Duquesne's primary argument challenging the verdict involves the district court's allocation of trial time. During a pretrial conference, the parties and the court agreed to limit each side's time to 140 hours, to include the sum of that party's case, its cross-examination of the opposing party's witnesses, and its opening and closing arguments. App. 87. But on the 12th day of trial the court, frustrated with what it perceived as duplication of evidence, and concerned that the complicated technical testimony was confusing the jury, concluded that "all the business I have given you about 141 hours is off now." App. 823. *fn4 The court ruled that each side would receive 22 days to present its case. And since Duquesne already had used up 11 days, the court allowed it only an additional 11. App. 827-28. Furthermore, a "day" did not necessarily entail an entire day. Rather, as long as some testimony was heard on a given day, it counted as a full day. Duquesne argues that because it had budgeted its trial time during the first 11 days based on the 140 hour schedule, "[t]he district court's unilateral change in the basic trial rules caused irreparable prejudice" to its case. Br. at 34. We review a district court's decisions in its management of a trial for abuse of discretion. See Reed v. Philadelphia, Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991) ("In matters of trial procedure such as that involved here, the trial judge is entrusted with wide discretion because he [or she] is in a far better position than we to appraise the effect" of a particular procedure on the parties.).

Although the procedural rules governing federal civil litigation do not explicitly authorize a district court to set time limits for a trial, a district court has inherent power "to control cases before it," provided it exercises the power "'in a manner that is in harmony with the Federal Rules of Civil Procedure.'" G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (en banc) (quoting Landau & Cleary, Ltd. v. Hribar Trucking, Inc., 867 F.2d 996, 1002 (7th Cir. 1989)). The rules repeatedly embody the principle that trials should be both fair and efficient. Thus, the Federal Rules of Civil Procedure "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P. 1. Similarly, the Federal Rules of Evidence "shall be construed to secure . . . elimination of unjustifiable expense and delay." Fed. R. Evid. 102. More particularly, Fed. R. Evid. 403 allows judges to exclude even relevant evidence because of "considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Numerous courts have inferred from these provisions a court's authority to set time limits. See, e.g., MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1171 (7th Cir.) (setting a period of time for the trial is "not, per se, an abuse of discretion"), cert. denied, 464 U.S. 891, 104 S.Ct. 234 (1983); Harris v. Marsh, 679 F. Supp. 1204, 1235 & n.42 (E.D.N.C. 1987) (allowing each side a total block of hours for direct and cross examination), rev'd in part on other grounds, 914 F.2d 525 (4th Cir. 1990), cert. denied, 499 U.S. 959, 111 S.Ct. 1580 (1991); United States v. Reaves, 636 F. Supp. 1575, 1580 (E.D. Ky. 1986); SCM Corp. v. Xerox Corp., 77 F.R.D. 10, 13 (D. Conn. 1977). We similarly believe that courts have discretion to impose limits on a party's trial presentation without the necessity of ruling specifically on "each particular item of evidence offered." SCM Corp., Id. at 13. After all, "'it has never been supposed that a party has an absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by [its] own judgment and whim.'" MCI Communications, 708 F.2d at 1171 (quoting 6 Wigmore, Evidence Section(s) 1907 (Chadbourne Rev. 1976)). Indeed, some district judges have found that the imposition of time limits increases the efficiency of the trial from everybody's perspective. As one court has explained:

'It requires counsel to exercise a discipline of economy choosing between what is important and what is less so. It reduces the incidence of the judge interfering in strategic decisions. It gives a cleaner, crisper, better-tried case. It gives a much lower cost to the clients. Finally, it will save months of our lives.' United States v. Reaves, 636 F. Supp. at 1580 (quoting Leval, From the Bench, Litigation, at 8 (1985)).

However, because by their very nature such procedures can result in courts dispensing with the general practice to evaluate each piece of offered evidence individually, district courts should not exercise this discretion as a matter of course. As one court has put it, witnesses should not be excluded "on the basis of mere numbers." MCI Communications, 708 F.2d at 1171. Rather, a district court should impose time limits only when necessary, after making an informed analysis based on a review of the parties' proposed witness lists and proffered testimony, as well as their estimates of trial time. And, the court must ensure that it allocates trial time evenhandedly. But still the courts need not allow parties excessive time so as to turn a trial into a circus. After all, a court's resources are finite and a court must dispose of much litigation. In short, the litigants in a particular case do not own the court.

The district court's action in this case differs from that taken in the cases we cite above because here the court granted each party a specific allotment of time, but halfway through Duquesne's case rescinded some of the grant. As a general matter, "it is the task of counsel, not the Court, to make the selection of materials most appropriate for introduction into evidence." SCM Corp., 77 F.R.D. at 12-13. Thus, while courts certainly should have flexibility in reassessing imposed time limits, they ordinarily should allow a party to fill its allotment with whatever evidence that party deems appropriate, subject, of course, to rules of admissibility independent of the overall time limitation for the case being tried. As a corollary, an allocation of trial time relied upon by the parties should not be taken away easily and without warning.

SCM Corp. provides a good illustration of when mid-trial imposition of time limits is appropriate. There, the court "repeatedly brought to the attention of plaintiff's counsel a concern that the pace of the trial seemed unlikely to comport with the original estimates." 77 F.R.D. at 13. The court sought witness lists, requested plaintiff's counsel to re-estimate the time he needed, "cautioned counsel that some more rigorous action would have to be taken to keep the trial within manageable limits and urged a reconsideration of the amount of material to be introduced and the presentation of a less ambitious schedule." Id. at 13. When the court's numerous efforts proved unavailing, it sua sponte imposed constraints upon the parties' trial time. But even then the court allotted plaintiff "50% more than the top range of counsel's [original] estimate." Id. at 15. In other words, while the court issued a time constraint order mid-trial, it still allowed the parties the only allocation of time upon which they reasonably could have relied.

Here, however, the district court neither requested nor reviewed any proffered materials prior to issuing its mid-trial order. While Westinghouse contends that the court repeatedly warned Duquesne of its cumulative presentation, it refers us only to a series of isolated instances over 11 days of testimony in which the court sustained objections because testimony was repetitive or because a question was asked and answered. See, e.g., app. 401 ("We have been through that before and we are not going to go through it again."); app. 649-50 ("We have been over this a number of times."); app. 666 ("We have been over this with another witness. We are not going to repeat it again."); app. 705-06 (sustaining "asked and answered" objection); app. 727 ("We have been over this."); app. 762 ("You have already asked him that."); app. 782 (sustaining "asked and answered" objection); id. at 794 (same). Thus, unlike in SCM Corp., the court here gave Duquesne little indication of the consequences of its trial behavior.

Further still, the method by which the district court calculated a party's time is puzzling. Westinghouse's cross-examination of Duquesne's witnesses counted against Duquesne's time, and vice versa. Therefore, Duquesne contends that the court's order, rather than promoting efficiency at trial, made it difficult for the parties to "control the clock and accurately budget their time." Br. at 34 n.28. Finally, Duquesne almost certainly planned its trial strategy based on the initial 140 hour allotment, and when the court took its action well into its case, Duquesne had little opportunity to reassess its plans. Westinghouse, on the other hand, had a full 11 days, ...


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