The opinion of the court was delivered by: HUYETT
Before us is the question of the amount of damages to be awarded plaintiff Elizabeth A. Duncan in this legal malpractice action. The issue of liability was previously resolved against defendant when he defaulted and we entered judgment for plaintiff pursuant to Fed. R. Civ. P. 55(b)(2). The complaint on which defendant defaulted charged that, as plaintiff's then attorney and handling for her a personal injury suit arising out of a 1965 rear-end collision, defendant performed his duties so negligently that the Philadelphia Court of Common Pleas entered a nol pros against plaintiff for persistent failure to answer interrogatories.
We had thought throughout the holding of the damage trial on October 10, 1975, and until defendant filed his post-trial proposed findings of fact and conclusions of law that the only task confronting us was the proper evaluation of opinion testimony offered by plaintiff's expert and defendant's expert, the only two witnesses appearing at trial. We based this belief upon information the parties communicated to us in pretrial conference and, especially, upon a formal stipulation entered into by the parties and made part of the record (Doc. #14) and an elaborate set of 110 admissions made by defendant, admitted into evidence at trial without objection from defendant's counsel (N.T. 5), and incorporated into the trial transcript (N.T. 5-29). The salient portions of the record stipulation read:
1. No issue exists as to defendant's liability as same has expressly been admitted for the purpose of assessment of damages.
5. The parties shall not be permitted to introduce any other evidence concerning the damages sustained by Elizabeth A. Duncan other than the medical bills and reports dated in or referred to in Plaintiff's Request for Admissions, filed March 27, 1975.
6. Elizabeth A. Duncan is not required to testify in this matter, the Court taking judicial notice that the injuries sustained, as evidenced by the aforesaid Request for Admissions, continue and presently affect plaintiff.
The 110 admissions consist, generally, of lists of treatment, medical bills, and diagnostic statements, all of which defendant admits were "a necessary and a direct result of [plaintiff's] injuries suffered in the accident of November 11, 1965,"
the accident which precipitated the state court suit and, because of defendant's mismanagement, eventually precipitated this lawsuit.
Contrary to our expectations, however, and, more importantly, contrary to what we find to be a clear agreement of counsel, contained in the stipulation, to limit the damage issue to a battle of experts over the amount plaintiff would have recovered in settlement or from a Common Pleas jury verdict had not her state suit been dismissed, defendant in his posttrial proposed findings of fact and conclusions of law raises for the first time certain factual and legal contentions. Plaintiff has filed a motion to strike these contentions pursuant to Fed. R. Civ. P. 12(f). We need not consider the appropriateness of approaching the problem through a motion to strike, however, since, for the following reasons, we reject the legal and factual contentions defendant raises in Proposed Findings of Fact ##2, 5, 6, 7, 9, 12, 15, and 17 and in Proposed Conclusions of Law ##III and IV.
Before we examine them separately, we note at the start that a general reason for our rejecting these particular contentions of defendant is that they are all raised for the first time post trial. Especially in view of the sorry history of this action, we feel that any claim defendant has to our consideration and possible acceptance of his lately-raised contentions is far outweighed by our duty to protect plaintiff from unfair surprise and prejudice and by our interest in the orderly administration of justice. On August 8, 1974, plaintiff filed her complaint in this action together with a single interrogatory addressed to defendant. Neither was ever responded to. Plaintiff eventually filed for default, and on December 6, 1974, we entered judgment pursuant to Fed. R. Civ. P. 55(b) (2). On March 27, 1975, plaintiff filed requests for admissions to which defendant never responded. Attorney for defendant did not enter an appearance until October 8, 1975, two days before trial. On October 10, 1975, trial was held; defendant did not attend. The only paper filed in this action by defendant besides counsel's entry of appearance is the proposed findings of fact and conclusions of law, some of which are under discussion here, filed post trial on November 11, 1975. Under these circumstances we believe that defendant's conduct throughout this litigation would alone justify our refusal to adopt his proposed findings and conclusions.
Our decision to reject these contentions rests on additional grounds, however. Defendant's Proposed Findings of Fact ##2, 5, 6, 7, 9, 12, 15, and 17 would have us determine that plaintiff has not shouldered her burden of proving that all of her various medical expenses, totaling approximately $10,000, are related to her 1965 accident and that the back injuries resulting from the accident were diagnosed as severe, painful, and permanent. We cannot so find. Any suggestion that the various medical expenses are unrelated to plaintiff's accident is refuted by the 110 admissions admitted without objection at trial and read into the record. These same admissions, especially ##7-9, 55-58, and 61-65, refute any suggestion that plaintiff's injuries were not diagnosed as serious and painful. Finally, any suggestion that plaintiff's injuries are not permanent is refuted by stipulation #6 which reads:
Elizabeth A. Duncan is not required to testify in this matter, the Court taking judicial notice that the injuries sustained, as evidenced by the foresaid Request for ...