author: POSNER, Chief Judge.

text:
    Sara Lee BRAUN, individually and as executor of the estate of Norman Braun, deceased, Plaintiff-Appellant, v. LORILLARD INCORPORATED and Hollingsworth & Vose Company, Defendants-Appellees.
    No. 95-4094.
    United States Court of Appeals, Seventh Circuit.
    Argued April 8, 1996.
    Decided May 17, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied June 14, 1996.

      Rick M. Schoenfield (argued), Daniel Swartzman, Kimberlee Massin, Schoenfield & Swartzman, Chicago, IL, Daniel G. Childs, Thomas Johnson, Johnson & Childs, Philadelphia, PA, for Sara L. Braun.
    Mark J. Evans, David K. Hardy, William S. Ohlemeyer, Roger Geary (argued), Shook, Hardy & Bacon, Kansas City, MO, Gary M. Elden, George R. Dougherty, Grippo & El-den, Chicago, IL, for Lorillard Inc.
    Stanley V. Boychuck, David E. Kawala, Swanson, Martin & Bell, Chicago, IL, Lori J. Polacheck, Stephen J. Brake, Andrew J. McFlaney (argued), Daniel R. Harris, Nutter, McClennen & Fish, Boston, MA, for Hollingsworth & Vose Co.
    Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.
   POSNER, Chief Judge.

Concerns with the abuse of the litigation process are being voiced ever more loudly. There are grounds for these concerns, but at least with respect to the federal courts of this circuit the concerns are exaggerated. Most of the district judges and other front-line federal judicial officers in this circuit exercise firm control over the conduct of litigation in a generally successful effort to prevent litigation from getting out of hand in point of delay or expense, or from being degraded by “junk science,” appeals to prejudice, runaway jury verdicts, and other justly reprobated abuses of the legal process. In this case a disappointed personal-injury plaintiff argues that the district judge exercised too firm a control over the proceedings. Let us see.

In the 1950s the Lorillard tobacco company sold Kent cigarettes with a filter that contained crocidolite asbestos, the most toxic form of asbestos. (Chrysotile asbestos, the most common form of asbestos, is much less toxic.) This was the famous “micronite” filter, one of those forgotten 1950s icons like 3-D movie glasses and chicken á la king. The filter had been manufactured by Hollings-worth & Vose. Norman Braun smoked these cigarettes and many years later developed mesothelioma, a form of cancer that is most commonly caused by exposure to crocidolite asbestos. He died of the disease at the age of 63 during the course of this suit, a diversity suit that seeks to affix tort liability on Lorillard and Hollingsworth & Vose by means of the common law doctrines of strict products liability, negligence, and recklessness. The applicable substantive law is that of Pennsylvania but nothing turns on this; the only issues raised by the appeal are procedural.

The case went to trial. The main defense was that the asbestos fibers in the micronite filter would not have been released from the filter in' the course of smoking and therefore could not have caused Mr. Braun’s mesotheli-oma. Not all cases of mesothelioma are due to exposure to crocidolite asbestos, though most are. And even if Braun’s ease was due to such exposure, he may have been exposed to crocidolite asbestos from sources other than the Kent micronite filter.

The trial lasted three weeks and featured an impressive parade of expert witnesses. The jury deliberated, and returned a-verdict for the defendants. The plaintiffs appeal does not question the sufficiency of the evidence to support the verdict but does challenge a number of the district judge’s eviden-tiary rulings. It should be unnecessary to point out that the verdict was not a determination that cigarettes are harmless to human health or even that Kent’s .micronite filter was incapable of causing mesothelioma. It was merely a determination that the plaintiff had failed to prove that the filter had caused her decedent’s mesothelioma.

The most consequential of the evidentiary rulings challenged by the plaintiffs appeal is the exclusion of testimony by David Schwartz, an expert witness called by the plaintiff, that lung tissue obtained in the autopsy of Mr. Braun contained crocidolite asbestos fibers. Dr. Schwartz is a professor of biochemistry and the president of a consulting firm that does environmental testing with particular emphasis on testing for the presence of asbestos, including crocidolite asbestos. He directed his lab assistant to subject a section of Braun’s lung tissue to “high temperature ashing,” in which the substance being tested for the presence of asbestos fibers is, in effect, boiled away by the application of heat, leaving the asbestos (if any), since asbestos is highly heat resistant. The assistant did a speetrographic analysis of the residue. According to his oral report to Schwartz, the analysis revealed the presence of crocidolite asbestos fibers.

This was the only evidence that such fibers were present in Braun’s lungs, although there was expert testimony that the absence of such fibers when he died was not inconsistent with their having been there earlier and caused Braun’s mesothelioma. The judge would not let Schwartz’s testimony concerning the presence of the fibers go to the jury. Although Schwartz is an acknowledged expert on the testing of bufiding materials for asbestos, he had never before conducted a test on human or animal tissue. Nor, so far as appears, has high temperature ashing ever been used by anyone else to test for the presence of asbestos fibers in tissue. The standard methods of testing for such presence go by the names of “bleach digestion” and “low temperature plasma ashing.” The plaintiff’s lawyers had hired recognized experts in the detection of asbestos in tissue, and those experts had conducted tests of tissue from Braun’s lungs using the standard methods, and had found nothing. The lawyers then turned to Dr. Schwartz and asked him to do something different, and he obliged. At his deposition, and later at the voir dire to determine whether he should be allowed to give opinion evidence, he testified that high temperature ashing is as usable on tissue as on bricks. He acknowledged, the possibility that the method might “break fibers and hence spuriously increase their number,” and, more serious still, might alter the chemistry of the sample. ' The altered chemistry might affect the spectrographic profile of any fibers found in the residue— might alter the “appearance” of the fibers so that it was impossible to tell whether they were crocidolite fibers or some other type of asbestos fiber. But he testified that his method was far more likely to produce a false negative than a false positive, though in fact it was the only method used on Mr. Braun’s lung tissues that produced a positive test result.

The plaintiff complains that the district judge excluded Dr. Schwartz’s evidence merely because he did not use one of the generally accepted methods of testing for the presence of crocidolite asbestos in human tissues. The Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), that the opinion evidence of reputable scientists is admissible in evidence in a federal trial even if the particular methods they used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. But that is only part of the holding of Daubert. The other part is that the district court is responsible for making sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir.1996); Bammerlin v. Navistar Int’l Transportation Corp., 30 F.3d 898, 901 (7th Cir.1994). The scientific witness who decides to depart from the canonical methods must have grounds for doing so that are consistent with the methods and usages of his scientific community.

The district judge did remark at one point that Daubert requires that the expert’s method be one “customarily relied upon by the relevant scientific community,” which is incorrect. But she did not rest her decision to exclude his testimony on that ground. Her ground was that Schwartz had testified “that he really didn’t have any knowledge of the methodology that should be employed, and he still doesn’t have any information regarding the methodology that should be employed with respect to lung tissue. It seems to me that this witness knows absolutely nothing about analyzing lung tissue and [for?] asbestos fibers.” The plaintiffs’ lawyers committed a serious violation of 7th Cir.R. 30(c) by falsely certifying that all materials required by Rule 30 to be included in the appellant’s appendix had been included, while leaving out the part of the trial transcript that contains the principal ground for Judge Manning’s ruling that Dr. Schwartz could not give an opinion on the presence of asbestos fibers in Braun’s lung tissues. By including in their appendix only the passage in which the judge misdescribed the holding of Daubert, the lawyers gave the impression that this misdescription was thé entire basis for the judge’s ruling. A false Rule 30(c) certification is grounds for dismissing an appeal, Mortell v. Mortell Co., 887 F.2d 1322, 1327 (7th Cir.1989); Urso v. United States, 72 F.3d 59, 61-62 (7th Cir.1995), though it will not be necessary for us to decide whether it would be an appropriate sanction in this case.

Dr. Schwartz had never tested human or animal tissues for the presence of asbestos fibers (or, so far as appears, for anything else) before being hired by the plaintiffs lawyer. And he did not bother to familiarize himself with the standard methods for conducting such tests or to consult with scientists who are the experts in analyzing tissue. It was after he acknowledged this surprising lack of preparation, and the fact that the suggestion for using his method on human tissues had come from lawyers rather than anyone (himself included) ■ in the scientific community, and that he spends 99.9 percent of his time engaged in administrative and marketing activities for his consulting firm (we suppose he meant of his consulting time, since he is also a professor), and that he could not name anyone who has done work analyzing tissues for the presence of asbestos fibers, that Judge Manning, reversing her earlier ruling, decided to exclude his testimony concerning the presence of crocidolite asbestos fibers in Braun’s lungs. Suppose that a scientist engaged in a research project rather than in a lawsuit had come to Schwartz with a section of lung tissue that he wanted tested for asbestos fibers. Would Schwartz, having no previous experience with the testing of tissue, have offered to use the method that he uses for testing ceiling tiles, without first acquainting himself with the accepted methods for testing human tissues and consulting with the users of those methods for advice on whether his method was as good (or better), or, contrariwise, might produce misleading speetrographie images?

Nowhere in Daubert did the Court suggest that failure to adhere to the customary methods for conducting a particular kind of scientific inquiry is irrelevant to the admissibility of a scientist’s testimony. On the contrary, the Court made clear that it is relevant. 509 U.S. at 591-95, 113 S.Ct. at 2796-97. A judge or jury is not equipped to evaluate scientific innovations. If, therefore, an expert proposes to depart from the generally accepted methodology of his field and embark upon a sea of scientific uncertainty, the court may appropriately insist that he ground his departure in demonstrable and scrupulous adherence to the scientist’s creed of meticulous and objective inquiry. To forsake the accepted methods without even inquiring why they are the accepted methods— in this case, why specialists in testing human tissues for asbestos fibers have never used the familiar high temperature ashing method—and without even knowing what the accepted methods are, strikes us, as it struck Judge Manning, as irresponsible.

Consider: A litigant’s lawyers approach a scientist and tell him that the accepted methods of testing for asbestos fibers in human tissues have come up negative. They ask him to use a different method and he without pause offers to use one that is designed for use on building materials and has never been used on human or animal tissues. Not even knowing what the accepted methods of testing for the presence of asbestos in tissue are, let alone ever having conducted such a test, the scientist agrees to perform the test by his method, using a lab assistant (which is fine) but relying on the lab assistant’s purely oral report, which is not fine given the novelty of the procedure. He speculates that his method is perfectly transferable from budding materials to human tissues. Since he has never done any testing of those tissues, his speculations lack the authority of science. These are the symptoms of forensic science, an oxymoron. The plaintiffs’ lawyers could have called one of the recognized experts in the testing of human tissues to validate Dr. Schwartz’s novel methodology—the ones they had hired, for example—but they did not.

Modern science is highly specialized. An expert in the detection of asbestos in budding materials cannot be assumed to be an expert in the detection of asbestos in human tissues even though, as the plaintiff reminds us, many budding materials, most obviously wood, are, like human and animal tissues, organic rather than inorganic substances. The fact that the plaintiffs’ lawyer turned to this nonexpert, having already consulted experts without obtaining any useful evidence, is suggestive of the abuse, or one of the abuses, at which Daubert and its seque-lae are aimed. That abuse is the hiring of reputable scientists, impressively credentialed, to testify for a fee to propositions that they have not arrived at through the methods that they use when they are doing their regular professional work rather than being paid to give an opinion helpful to one side in a lawsuit.

So we think the district judge was entitled to screen out Dr. Schwartz’s testimony concerning the presence of crocidolite asbestos in Braun’s lungs, and we move on to the next question, which concerns the defendants’ request, granted by the judge, for the negative test results of the plaintiffs nontes-tifying experts. Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure forbids the judge to order disclosure in pretrial discovery of the facts found or opinions formulated by an opponent’s nontestifying experts except (so far as relevant to this ease) “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” The underlying rule, that of nondisclosure, invites shopping for favorable expert witnesses and facilitates the concealment of negative test results. That is neither here nor there; the exception is a narrow one. But Judge Manning thought it applicable here.

' When the defendants learned that the plaintiffs experts were going to test Braun’s lung tissues for the presence of crocidolite asbestos, they were concerned because the tests would destroy the tissues tested and they wanted to conduct their own tests. The plaintiffs lawyers assured them that the destruction of the tissues would not hurt the defense. Amy asbestos fibers would be uniformly distributed throughout the lung tissues, so that tests conducted by the defendants’ experts on the sections of tissues that they, had received from the autopsy would be tests of a reliable sample of the tissues as a whole. Later the plaintiffs’ lawyers changed their tune. No longer did they suggest that crocidolite fibers if present would be uniformly distributed, for they wanted to protect themselves from an inference that negative test results on the tissue samples tested by the defendant’s experts (who found no crocidolite fibers) would imply the absence of fibers throughout Braun’s lungs. The change of position hampered the defense, which could not conduct its own tests on tissues that had been destroyed in the course of the plaintiff’s tests. The only way the defense could find out whether there were crocidolite asbestos fibers in the tissues that the plaintiff’s experts had tested was to get the test results. The condition for the exception in Rule 26(b)(4)(B) thus was satisfied, and we move to the next issue.

The plaintiff wanted to call as a witness a Richard McHenry, who had worked many years earlier for a company that manufactured cigarette filters. The plaintiff expected McHenry to testify that Lorillard had approached his company because of concerns about the danger from the asbestos in the Kent filters manufactured by Hollingsworth & Vose. McHenry was not, however, disclosed in the final pretrial order; and therefore under a standing order of the district judge he could not be called as a witness “absent good cause shown” for the omission of his name from the pretrial order. Cf. Fed.R.Civ.P. 26(a)(3), 37(c). The plaintiff’s lawyers knew about McHenry — knew that he had been associated with a company approached by Lorillard regarding the possibility of replacing the asbestos filter. His name and a brief sketch of his relation to the filter issue appeared in several documents that the lawyers had had for more than a year. They just faffed to look for him until nearly the eve of trial. There is no indication that he would have been tough to find any earlier, like the witness in Griman v. Makousky, 76 F.3d 151 (7th Cir.1996), where, nevertheless, we upheld the district judge’s order excluding the witness’s deposition because the plaintiff had faffed to make a diligent effort to produce him for the trial. Braun’s lawyers had a business address for McHenry, albeit an old one, in Philadelphia. They could have called directory assistance for Philadelphia to get his current phone number. They did not, but eventually someone gave them his number and they interviewed him.

The trial had already begun in Griman when the plaintiff sought to introduce the deposition of the missing witness; but, given the deposition, at least there was no surprise to the defendants. In the present case the plaintiffs’ lawyers announced their intention to call the witness ten days before the trial. This limited the surprise, but it still would have complicated the defendants’ preparations for trial, maybe seriously, to have to depose him and perhaps look around for a witness to counter his testimony. The judge did not abuse her discretion in deciding that because of the lack of diligence in locating McHenry in time to list him in the pretrial order, the plaintiff could not add him later. Braun’s lawyers, being specialists in litigation against cigarette companies, had no compelling excuse for failing to locate so promising a potential witness for their side as they now consider McHenry to be.

Having failed to get him approved as a witness in the plaintiffs case in chief, the lawyers tried to call him as a rebuttal witness, and were again rebuffed. The standing order’s requirement of good cause, as they point out, does not apply to rebuttal witnesses — unless they are “presently identifiable.” McHenry was. What is more, McHenry was not a proper rebuttal witness. The plaintiff who knows that the defendant means to contest an issue that is germane to the prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as part of his case in chief. Bronk v. Ineichen, 54 F.3d 425, 432 (7th Cir.1995); Gossett v. Weyerhaeuser Co., 856 F.2d 1154, 1156-57 (8th Cir.1988). Otherwise the plaintiff could reverse the order of proof, in effect requiring the defendants to put in their evidence before the plaintiff put in his.

The next issue concerns hearsay. In 1954 Lorillard had hired Althea Revere, who died in 1987, to examine Rents under an electron microscope. There is no documentary record of the results of her study. The plaintiff sought to call as witnesses Revere’s son, and a journalist who had interviewed her in 1980, to testify that she had told them that she had reported to Lorillard that the Kent filters leaked asbestos into the cigarette smoke and that this made the smoke more dangerous than it would have been without a filter. (If the added protection from the filter offset the added danger from the asbestos in the filter, and a filter not containing asbestos would not have been as effective, the plaintiff might not have a claim. But we needn’t get into that.) This testimony would have been hearsay, and would not have fallen within any of the specific exceptions to the hearsay rule. It would have been admissible if at all only under the catch-all exception, which requires that the judge be satisfied that the hearsay is as reliable as hearsay falling within the specific exceptions. Fed.R.Evid. 804(b)(5); see also Rule 803(24).

The district judge did not abuse her discretion in excluding these witnesses as purveyors of unreliable hearsay. The conversations with Althea Revere had occurred many years after she had done the work for Lorillard on the Kent filters. Her son had been only 14 in 1954, and he based his testimony about what his mother had told him on conversations that he had with her primarily in the 1960s and 1970s. The journalist interviewed her in 1980. These witnesses were not vague, but neither were they sufficiently precise and knowledgeable to enable a proper evaluation of the significance of the mother’s out-of-court statements (or so at least the district judge could find). Whom had she spoken to at Lorillard? How definite had she been? What kind of supporting evidence had she provided? What had been the response to her report? There is no indication that the witnesses knew the answers to these questions.

The dangers of this sort of hearsay are obvious. A witness testifies to what he or she was told many years ago about events that had taken place many years before that by someone who is now deceased and left no documentary record. There is no way, given the remoteness of the events testified to, for the opposing party to verify the accuracy of the testimony or of the out-of-court statement that the testimony reports. Yet because memories fade and play tricks, see, e.g., Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir.1990), the reliability of the statement cannot be taken for granted. Maybe Carl Sandburg went too far when he called the past “a bucket of ashes” (a metaphor appropriate, however, to a case about cigarettes), but we must not ascribe to courts a superhuman capacity to reconstruct the past.

Another unexceptionable ruling was to allow the chief executive officer of Lorillard to testify as an expert witness on the question whether it was likely that the micronite filter actually released asbestos fibers into the smoker’s mouth and lungs, either directly or in the smoke. A litigant, or a litigant’s CEO, or sole stockholder, or mother, or daughter is not, by reason of. his or her or its relation to the litigant, disquali-fled as an expert witness. We have had a case in which the plaintiff was his own expert witness. We pointed out that there was no impropriety in this; he was qualified to give an expert opinion on the matters in suit. Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th Cir.1988).

Alexander Spears III, the chief executive officer of Lorillard, has a Ph.D. in organic chemistry, has published a number of scientific articles, and was for many years Loril-lard’s director of research. In that capacity he studied the design and construction of cigarette filters and participated in the development of such filters. He has also been involved in the development of smoking inhalation machines and in animal studies of smoke inhalation. In preparation for testifying at the Braun trial he studied the literature concerning the micronite filter and the experiments conducted by the plaintiff’s experts. This study and his scientific background qualified him to offer an opinion on whether the micronite filter was likely to have released asbestos fibers in the course of smoking.

Of course Dr. Spears could hardly be thought a disinterested expert witness. No more could Dr. Tagatz. No more, for that matter, can an expert witness who, though unrelated to any of the litigants, is testifying in exchange for a handsome fee. Id. at 1042. The jury was not kept in the dark concerning Dr. Spears’ relation to Loril-lard. He admitted under cross-examination that part of his job as the chief executive officer of Lorillard was to represent the company as a witness in lawsuits. In light of this admission, and of his relation to the defendant with or without the admission, the jury is likely to have discounted his testimony heavily, making the judge’s ruling harmless error if it was error at all; we do not think it was error.

The last evidentiary ruling that is challenged, and the only one that we think can plausibly be described as an abuse of discretion, concerns testimony by one of the plaintiffs experts, Dr. David Cugell. Dr. Cugell testified that because asbestos fibers disappear from living tissue at a rate of 15 percent a year, the absence of fibers in the lung tissues obtained at Mr. Braun’s autopsy did not prove that his mesothelioma was not due to asbestos. On cross-examination Cugell was asked whether another acknowledged expert on asbestos diseases, Dr. Andrew Churg, thinks it necessary to find asbestos in a patient’s lungs before mesothelioma caused by asbestos can be diagnosed and holds other opinions that would further undermine the inference that the micronite filter caused Mr. Braun’s mesothelioma. The lawyer read passages from Dr. Churg’s scientific writings that seemed to support the line the lawyer took in the cross-examination, for example by indicating that asbestos fibers, including the carcinogenic variety such as crocidolite, are present in the lungs of most people, only a tiny fraction of whom develop mesothelioma. Andrew Churg, “Mineral Analysis of the Lung Parenchyma,” in 2 The Lung: Scientific Foundations 1869, 1875 (Ronald G. Crystal et al. eds.1991).

On redirect examination the plaintiffs lawyer tried to ask Dr. Cugell whether Churg had opined that smoking Kents with the micronite filter could cause mesothelio-ma. The judge sustained the defendant’s objection to the question when it turned out that Churg had expressed this opinion in testimony in another lawsuit. The judge thought it unscientific of Cugell to rely on testimony in forming his own opinion about the causality of mesothelioma. Maybe so. But the issue here is not Daubert. It is the proper scope of redirect examination. The cross-examination of Cugell had conveyed the impression that Dr. Churg believed, contrary to Cugell, that the Kent filter could not cause mesothelioma. In fact he believed the opposite, and it was proper to demonstrate this in the redirect examination of the witness whose testimony had been called into question by the misleading cross-examination. United States v. Gant, 17 F.3d 935, 942 (7th Cir.1994); United States v. Martinez, 988 F.2d 685, 702 (7th Cir.1993); In re Air Disaster at Lockerbie, 37 F.3d 804, 817 (2d Cir.1994).

But the error was harmless. Dr. Cugell was permitted on redirect examination to testify that he had based his opinion, which was favorable to the plaintiffs theory of causation, in part on statements by the very Dr. Churg whom the defendants had tried to show supported their views. Cugell was not, it is true, permitted to identify the statement that Churg had made in the other lawsuit — that he believes that the Kent filter could cause mesothelioma. To permit Dr. Cugell to have repeated Churg’s testimony might well have been overkill, without a collateral inquiry, which might have confused the jury and would certainly have protracted the trial, into the scientific basis of that testimony.'

We find no basis for upsetting the jury’s verdict, and the judgment for the defendants is therefore

Affirmed.


source: Caselaw Access Project

author: EASTERBROOK, Circuit Judge.

license: Public Domain

text:
    Joseph LERRO and John Duty, Plaintiffs-Appellants, v. The QUAKER OATS COMPANY, Snapple Beverage Corporation, and Thomas H. Lee, Defendants-Appellees.
    Nos. 95-3495, 95-3496.
    United States Court of Appeals, Seventh Circuit.
    Argued March 29, 1996.
    Decided May 17, 1996.
    Mark C. Gardy, Arthur N. Abbey (argued), Abbey & Ellis, New York City, Richard S. Schiffrin, Michael D. Craig, Schiffrin & Craig, Buffalo Grove, IL, for John Duty, Joseph Lerro.
    Jerold S. Solovy, Douglas A. Graham, Jenner & Block, Chicago, IL, Dennis J. Block (argued), Paul J. Collins, Weil, Gotshal & Manges, New York City, for Quaker Oats Co., Loop Acquisition Corp.
    Before EASTERBROOK, ROVNER, and DIANE P. WOOD, Circuit Judges.
   EASTERBROOK, Circuit Judge.

The Quaker Oats Company acquired Snapple Beverage Corporation for $1.7 billion in 1994. A merger agreement was signed on November 1, 1994, and a tender offer was announced to the public on November 4. Quaker Oats offered $14 in cash for each share of Snapple stock; the merger agreement contemplated the same payment per share. Investors who thought $14 too low could refuse to tender, vote against the merger, and demand appraisal under § 262 of the Delaware Corporation Law. Nonetheless, the success of the transaction was assured by the support of Thomas H. Lee, who controlled at least 35 percent of Snapple’s shares (this is plaintiffs’ figure; the tender offer documents say that he controlled 47 percent). Lee not only promised to tender his shares but also gave Quaker Oats an option to purchase them even if the tender offer failed. When the offer closed, 96.5 percent of Snapple’s stock had been tendered. Quaker Oats immediately effected a short-form merger under Delaware law between Snapple and LOOP Acquisition Corporation, which had been created for this purpose. Later LOOP changed its name to Snapple Beverage Corporation, which is today a wholly-owned subsidiary of Quaker Oats.

I

One part of the offering document intrigued investors Joseph Lerro and John Duty:

At the insistence of Parent [Quaker Oats] and to induce Parent to enter into the Merger Agreement, a number of agreements relating to employment, non-competition, consulting and other matters were entered into and are described in the Schedule 14D-9. Additionally, the Company [Snapple] and Stokley-Van Camp, Inc., a subsidiary of Parent entered into a new Distribution Agreement (the “Distributor Agreement”) with Select Beverages, Inc. (“Select”) for the distribution of their respective products. A majority of the common stock of Select is held by affiliates of THL [Thomas H. Lee Company] and 20 percent of such common stock is held by the Company. The Distributor Agreement grants to Select the exclusive right to distribute in certain areas of Indiana, Illinois (including Chicago) and Wisconsin, certain sizes of Snapple and Gatorade in certain channels. The Agreement commences upon consummation of the Offer and is perpetual, and is subject to termination if Select fails to satisfy certain tests for increasing distribution penetration and available visicoolers. The effect of the Distribution Agreement will be to cause Select to lose some Snapple sales and to gain some Gatorade sales.

Lerro and Duty filed separate actions under § 14(d) of the Securities Exchange Act of 1934, as added by the Williams Act of 1968, 15 U.S.C. § 78n(d), contending that the Distributor Agreement provided Lee with extra compensation for his shares, in violation of § 14(d)(7) and the SEC’s Rule 14d-10(a)(2), 17 C.F.R. § 240.14d-10(a)(2). Section 14(d)(7) provides that when a bidder “varies the terms of a tender offer ... before the expiration thereof by increasing the consideration offered to holders of such securities,” it must apply the increase to all shares acquired under the offer. The Distributor Agreement, which was in place from the start, is hard to characterize as an “increase” in compensation. Rule 14d-10(a)(2), adopted in 1986, is broader. It forbids any tender offer that does not satisfy this condition:

The consideration paid to any security holder pursuant to the tender offer is the highest consideration paid to any other security holder during such tender offer.

According to Lerro and Duty, profits anticipated under the Distributor Agreement are consideration Lee received in his role as a security holder, which per Rule 14d-10(a)(2) must be paid to everyone else who tendered into the offer.

Quaker Oats believes that the Distributor Agreement is a substitute for Select’s existing contractual rights (it had perpetual distribution rights for some Snapple products) rather than compensation for anyone’s shares. Moreover, Quaker Oats submits, the valuation of such a contract as of November 1994 would be next to impossible, because Select’s profits depended on how fast it could increase beverage sales — indeed, on whether it could avoid termination under the “tests for increasing distribution penetration and available visicoolers”. Lee was not required by the Internal Revenue Code to treat the present value of the flow of future profits as a capital gain realized in November 1994 from the sale of stock, and one may doubt whether it would be sound to try to capitalize those profits for other purposes. There is also some question whether Rule 14d-10(a)(2) creates a private right of action for damages. Compare Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977), with Epstein v. MCA, Inc., 50 F.3d 644, 649-52 (9th Cir.1995), reversed on other grounds under the name Matsushita Electric Industrial Co. v. Epstein, — U.S. —, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996).

Instead of deciding the ease on. any of these grounds-some of which might have required factual development-the district judge assumed that the Distributor Agreement compensated Lee for his shares in Snapple but dismissed the suit anyway under Fed. R.Civ.P. 12(b)(6). Plaintiffs could not state a claim, the judge concluded, because the Distributor Agreement had been signed before the tender offer began and therefore fell outside Rule 14d-10(a)(2), which requires only that the bidder pay every tendering investor the “highest consideration paid to any other security holder during such tender offer” (emphasis added). If Quaker Oats had purchased all of Lee’s shares for $20 apiece on November 1, the district judge believed, it still could have offered $14 to the remaining investors. Treating the Distributor Agreement as a premium for each of Lee’s shares is the same as a higher cash price in advance, the court thought. A holding that the offer did not “commence” until after November 1 polished off the ease. (Delaware law permits unequal division of the gains from transactions in corporate control, and plaintiffs therefore did not present any state-law ground for laying claim to a portion of the value of the Distributor Agreement. See Weinberger v. UOP, Inc., 457 A.2d 701 (Del.1983); Fins v. Pearlman, 424 A.2d 305 (Del.1980).)

II

Before we tackle the seeurities-law issues, we address the district court’s alternative ground of decision: that plaintiffs forfeited all of their arguments by failing to object within 10 days after a magistrate judge recommended dismissal of the complaint. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir.1986). The magistrate judge filed his report and recommendation on August 2, 1995, and served it on the parties the same day. Plaintiffs filed their objections on August 18. The district judge held that plaintiffs had only until August 15. The dispositive question is whether the additional time when service is by mail (as the magistrate judge’s report was served), see Fed.R.Civ.P. 6(d), is added before or after the application of Fed.R.Civ.P. 6(a). Perhaps we could duck this question, because, in addition to finding the plaintiffs’ objections untimely, the district judge decided the case on the merits — as he had every right to do, for this time limit is not jurisdictional. Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir.1994). But because the question has divided the judges of the district court and has a potential to trip up lawyers in other cases — where district judges may not-be so forgiving — we think it prudent to address the question now.

“Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b). Because Rule 72(b) requires the magistrate judge to “serve,” rather than just to “file;” the recommendation, Fed.R.Civ.P. 6(e) comes into play: “Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period alter the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.” Contrast Lorenz v. Valley Forge Insurance Co., 23 F.3d 1259 (7th Cir.1994) (when judicial action is complete on filing, Rule 6(e) does not apply). The magistrate judge’s report was served by mail. Then there is Fed.R.Civ.P. 6(a), part of which says: ‘When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” How do these three rules fit together?

The district judge began with the 10 days provided by Rule 72(b) and added 3 days under Rule 6(e). Because the total is 13, the judge concluded that Rule 6(a) does not apply. A competing way to count applies Rule 6(a) before Rule 6(e). The 10 days provided by Rule 72(b) are fewer than 11, so Rule 6(a) excludes weekends and holidays. That turns 10 days into 14 (two weekends and no holidays during the period in question), plus 3 for service by mail, for a total of 17 calendar days. Service occurred on August 2, 1995, making the objections due on August 19, a Saturday. Another part of Rule 6(a) allows parties to file the next day the court is open — here, on Monday, August 21. Plaintiffs filed on Friday, August 18, timely if this method of counting is right.

Neither Rule 6 nor the committee note explaining its rationale discusses whether to apply Rule 6(a) before or after Rule 6(e). The text could support either approach. Weekends are excluded, under Rule 6(a), “[w]hen the period of time prescribed or allowed is less than 11 days”. But what is “the period of time”? The district judge thought that “the period of time” is the sum of all allowable periods; but one could as easily say that the period of time is the one that would govern in the absence of Rule 6 (here, 10 days under Rule 72(b) to file objections) rather than the total time allowed by the interplay of rules. Referring to the specific rule rather than to the rule plus extensions is simpler; it is also more sensible. See Charles Alan Wright & Arthur R. Miller, 4A Federal Practice and Procedure § 1171 at 516-21 (1987).

Rule 6(e) is designed to give a litigant approximately the same effective time to respond whether papers are served by hand or by mail. If service is by hand, then the time to respond starts immediately; if service is by mail, the party receives three extra days as an approximation of the time required for mail delivery, and on average should have the same number of days to act as he would have had following service in hand. We know from Rules 72(b) and 6(a) that, if the magistrate judge had passed his decision over the bench to counsel, plaintiffs would have had 14 calendar days to file objections. It would be queer if service by mail, which delays actual knowledge of the decision, would'reduce the time to object. Yet that is the effect of adding time under Rule 6(e) first; the time would fall from 14 calendar days for personal service to 13 calendar days for service by mail. And because mail delivery takes time (plaintiffs say that it took five days), the time available to act can be curtailed substantially — here, to eight calendar days. Interactions within a complex set of rules sometimes can have unexpected and unwelcome effects, but we should not create them when the text readily can bear another meaning. The only way to carry out Rule 6(e)’s function of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first. The objection to the magistrate judge’s report therefore is timely.

Ill

The district court’s analysis of the merits depends on its conclusion that, so far as the Williams Act and Rule 14d-10(a)(2) are concerned, Quaker Oats could have bought Lee’s shares at $20 (or $50) apiece the day before commencing the tender offer, without objection from other investors. Is that true? Certainly it is consistent with the language of the rule, which gives every investor whose shares are acquired as part of the offer “the highest consideration paid to any other security holder during such tender offer” (emphasis added). Everyone who tenders receives the highest price paid “during the tender. offer” — not, as plaintiffs would have it, that the minimum price “during the tender offer” is set by a price paid at some other tíme. Before the offer is not “during” the offer. Many cases, such as Gustafson v. Alloyd Co., — U.S.-, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), and Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N.A, — U.S. -, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), tell us to respect the language of the securities statutes and regulations. The difference between “during” and “before” (or “after”) is not just linguistic. It is essential to permit everyone to participate in the markets near the time of a tender offer. Bidders are forbidden to buy or sell on the open market or via negotiated transactions during an offer, see Rule 10b-13(a), but they are free to transact until an offer begins, or immediately after it ends. Several courts accordingly have held that these transactions do not establish a floor under the price to be paid for shares tendered into the offer. Kramer v. Time Warner Inc., 937 F.2d 767, 778-79 (2d Cir.1991); Hanson Trust PLC v. SCM Corp., 774 F.2d 47 (2d Cir.1985); Kahn v. Virginia Retirement System, 783 F.Supp. 266, 269-70 (E.D.Va.1992), affirmed on other grounds, 13 F.3d 110 (4th Cir.1993); Priddy v. Edelman, 679 F.Supp. 1425, 1431-32 (E.D.Mich.1988), affirmed on other grounds, 883, F.2d 438, 446 (6th Cir.1989).

Purchases near in time to a tender offer, but outside it, may be essential to transactions that all investors find beneficial. Controlling shareholders often receive indirect or non-monetary benefits and are unwilling to part with their stock (and hence with control) for a price that outside investors find attractive. At the same time,' potential bidders may be unable to profit by paying everyone the price essential to separate the insiders from their shares. Suppose a firm’s stock is trading for $20, insiders who hold 30 percent of the firm would not sell for less than $30, and a potential bidder values the entire firm at $25 per share. An offer of $25 for all stock would not attract the insiders’ shares; and as a practical matter (if not a legal matter under some states’ laws), failure to attract the control bloc would doom the offer. The transaction would be feasible, however, if the- acquiror could pay $30 to the control group before the bid commences and acquire the rest of the stock at $22 per share, for an average price of $24.40. Everyone is better off: the public investors prefer $22 to $20; the control group is happy; the bidder anticipates a profit of 60$ per share. Treating the Williams Act as a mandate for an identical price across the board — as opposed to an identical price for all shares acquired in the offer — would make all investors worse off.

Just as those who sell for $15 today cannot complain if their trading partner pays $20 to someone else tomorrow, those who sell in the market a day before the offer starts are not entitled to the higher price paid to those who wait (nor are those who sell in the offer entitled to a higher price paid before or after its duration); the point of Rules 10b-13,14d-10, and their cousins is to demark clearly the periods during which the special Williams Act rules apply. Once the offer begins, professional investors and amateurs receive the same price. That is the objective of § 14(d)(7) and Rule 14d-10. Persons who make tender offers do not lose their ability to participate as investors for undefined periods “near” the time of the offer. With millions or even billions of dollars at stake, precise definition of the blackout period is essential, and the SEC has accordingly consistently differentiated actions “during” an offer from those dose to the offer’s beginning or end. The line is arbitrary, to be sure; it invites transactions that use the rules for personal advantage (“tax planning” is a respected specialty of the bar, while “tax evasion” is a felony); but some line is essential, and it had best be a bright one.

Against this conclusion, which rests on both the language and the function of the rules, plaintiffs set Field v. Trump, 850 F.2d 938 (2d Cir.1988), and Epstein v. MCA, supra. Field applies a step-transaction approach to include within a tender offer a transaction that occurred between two offers. The bidder commenced an offer, dropped it for a day, and then made a second offer. During the single day in which no offer was formally outstanding, the bidder acquired one family’s stock at a price exceeding that paid to other investors in the second, completed tender offer. The second circuit held that the first and second offers should be integrated with the intervening day’s purchases to form a single transaction; understood in this way, the purchase in the middle was an increase in compensation covered by § 14(d)(7). “Integration” of purchases or sales in this fashion is standard fare under the securities laws, which apply to whole “offers” or “offerings” and therefore require courts to establish whether a particular course of conduct is an “offering.” Trump did not suggest that its conclusion — that purchases between two offers were during a single integrated offer — required a modification of Hanson Trust, which concluded that “street sweep” purchases within hours after the end of a tender offer are not subject to the Williams Act rules. Kramer, which the second circuit decided after Field, holds that a transaction similar to the one between Lee and Quaker Oats does not offend Rule 14d-10.

Epstein does not present an integration or step-transaction problem. Matsushita wanted to acquire MCA and was willing to pay $71 per share. Two of MCA’s largest investors had substantial blocks of stock with a basis of 3? per share. Taxes on the recognition of $70.97 per share made the offer unattractive to them. Matsushita offered these two investors a special deal, under which shares would be exchanged (without recognition of gain) rather than purchased. A subsidiary of Matsushita swapped its own preferred stock for the common stock of MCA. Problems under Rule 14d-10 arose because Matsushita funded the subsidiary at 106 percent of the price paid in the tender offer— and because the exchange did not occur until the tender offer had succeeded. Until then, both sides were free to back out. Epstein lacks precedential value; the Supreme Court vacated the judgment after concluding that the ninth circuit should not have reached the merits in light of a prior settlement of class litigation in Delaware. Whatever persuasive force the opinion retains does not assist our plaintiffs, because Epstein simply does not address the proper treatment of a transaction completed before a tender offer begins— except in dictum that favors Quaker Oats. “If, in advance of the tender offer, [the investor] had become unconditionally obligated to exchange his MCA shares, the transaction would not have violated Rule 14d-10, even if Matsushita believed that acquiring [the] shares' was a first step in acquiring MCA.” 50 F.3d at 656-57. On this understanding, neither the second nor the ninth circuit would see a problem in the transaction by which Quaker Oats acquired Snapple.

Of course, all of this assumes that the transaction between Stokley-Van Camp and THL (and therefore between Quaker Oats and Lee) really did precede the commencement of the tender offer. Plaintiffs’ complaint alleges, and we therefore assume, that the Distributor Agreement was integral to the transaction, in the sense that Quaker Oats would not have launched the bid unless it knew that Lee was satisfied with the terms. The Distributor Agreement was signed on November 1, but its effect depended on the merger and obviously was bound up with the tender offer too (Lee promised to tender his shares and gave Quaker Oats an option on them). Nonetheless, this does not establish that Quaker Oats paid Lee more than $14 per share “during” the tender offer. The agreements were signed before the offer began, and were effective with a merger that occurred later. Kramer rejects, rightly we think, any argument that a follow-up merger should be integrated with a tender offer. They are different transactions, under different bodies of law (federal law regulates the tender offer and state law the merger). Accepting plaintiffs’ request to treat the tender offer and the merger as a single step would imperil countless ordinary transactions— from two-tier tender offer and merger sequences (with different prices, or different forms of securities, offered in the two tiers) to simple employment agreements under which the surviving entity promises to employ managers for stated terms or give severance pay. Suppose a firm’s CEO, who is also a shareholder, negotiates a deal under which his contract will be extended for two years after an acquisition. Must a court attempt to determine how much in advance of two years the CEO would have been eased out, but for the agreement? On plaintiffs’ view the difference is a “premium” for the CEO’s shares, payable to all other investors too. Yet none of the regulations implementing the Williams Act requires managerial salary, or Golden Parachute payments, to be imputed to stock and offered to non-managers as well.

Doubtless there are limits to the use of a follow-up merger as a means to deliver extra compensation. Suppose Quaker Oats had promised Lee $14 for each share he tendered during the offer, plus another $6 for each of these shares one month later. Just as tax law requires “boot” to be treated as a gain received from the sale of stock, securities law treats “boot” as a payment during the tender offer. But as we have already mentioned, the Internal Revenue Code does not require Lee to treat the present value of THL’s profits as part of the price realized on the exchange of Lee’s shares in Snapple, and we see no reason to devise a broader attribution doctrine under the securities laws. Plaintiffs have not alleged that Lee and Quaker Oats devised a boot transaction, and we therefore need not decide how such deals should be treated under Rule 14d-10. Plaintiffs’ own complaint alleges that Lee controlled enough shares to ensure the success of Quaker’s bid, so the “success and merger” contingency in the Distributor Agreement was theoretical only.

Because transactions before or after a tender offer are outside the scope of Rule 14d-10, we must decide whether the transactions at issue preceded the tender offer. Rule 14d-2(a) addresses this directly:

A tender offer shall commence for the purposes of section 14(d) of the Act and the rules promulgated thereunder at 12:01 A.M. on the date when the first of the following events occurs:
(1) The long form publication of the tender offer is first published by the bidder pursuant to Rule 14d-4 (a)(1);
(2) The summary advertisement of the tender offer is first published by the bidder pursuant to Rule 14d-4 (a)(2);
(3) The summary advertisement or the long form publication of the tender offer is first published by the bidder pursuant to Rule 14d-4(a)(3);
(4) Definitive copies of a tender offer, in which the consideration offered by the bidder consists of securities registered pursuant to the Securities Act of 1933, are first published or sent or given by the bidder to security holders; or
(5) The tender offer is first published or sent or given to security holders by the bidder by any means not otherwise referred to in paragraphs (a)(1) through (4) of this rule.

The Merger Agreement and Distributor Agreement were signed on November 1, 1994. News of an impending bid first reached the public, via the Dow Jones News Wire, on November 2, and the tender offer was formally announced on November 4, commencing it on that date.

Not so, plaintiffs insist. They believe that the offer commenced even before November 1 under Rule 14d-2(a)(5), because it was “given” to Lee and other Snapple insiders before then. How could they negotiate the agreements and promise to tender their shares, plaintiffs ask, if an offer had not been extended? Plaintiffs read “security holders” in Rule 14d-2(a)(5) to mean any security holder, rather than investors in general; on plaintiffs’ understanding, a tender offer “commences” as soon as a potential bidder opens negotiation with a potential target’s management. Yet no case or administrative interpretation supports that understanding. Rule 14d-2 contemplates general publication or notice, as the SEC’s explanation confirms. 44 Fed.Reg. 70340 (Dec. 6,1979). Under the rule, “the tender offer” means the definitive announcement, not negotiations looking toward an offer. No one supposes that a public offer of securities begins, for purposes of § 5 of the 1933 Act, when a firm and its investment bank open private conversations; why should a tender offer be treated differently? The language “first published or sent or given to security holders” comes from § 14(d)(1) of the Act, and Rule 14d-4(a) elaborates by defining this event as the transmission of the forms required by statute and regulation; that step necessarily follows rather than precedes negotiations.

Treating private negotiations as the “commencement” of a tender offer would have effects far beyond requiring Quaker Oats to pay a little more than $14 per share to Snapple’s public investors. For starters, it would forbid outright the kind of bargain that Quaker and Snapple’s managers reached. Under Rule 10b-13(a), once a tender offer begins, the bidder cannot acquire shares (or options) in negotiated transactions. Inability to reach a modus vivendi would make bids less attractive, reduce the prices bidders are willing to pay, or both — to the detriment of the investors Congress set out to protect. If the offer commences when negotiations open, then potential bidders must get out of the public markets too. And that is not all. The Williams Act and the accompanying regulations are crammed with timetables measured from the commencement of the bid. As soon as an offer commences, the bidder must file and transmit to investors several complex forms and schedules. See Rules 14d-3, 14d-6. This can hardly be done at the outset of negotiations, yet on plaintiffs’ view the entire offer was unlawful because it was commenced long before the required forms were disseminated. Under Rule 14e-l(a), a tender offer must be held open for 20 days from the time it is “first published or sent or given to security holders”. This period is designed to afford even amateur investors time to read the documents, decide what to do, and tender their shares. But if plaintiffs are right, and the offer is “first published or sent or given to security holders” when private negotiations begin, then the 20 days may be up before the public announcement, and the “Saturday night special” offer — open only to the cognoscenti — would again be lawful. Similarly, the times for withdrawal, proration rights, and so on, run from commencement of the offer and would be disrupted if not nullified by a conclusion that a private negotiation marks the commencement. It would defeat the purposes of the Williams Act and the SEC’s regulations to close the proration pool before the public learns of the offer. It would wreak havoc to say that the operation of all of the clocks cannot be known until, years after the events, a judge declares when negotiations became sufficiently serious to mark the commencement of the offer. Everything depends on making the times start from a public announcement — and on making that time as clear as humanly possible. That is the function of Rule 14d-2.

Plaintiffs remind us that neither the Williams Act nor the SEC’s regulations defines “tender offer.” That term has been frustratingly difficult to encapsulate. Compare Hanson Trust with SEC v. Carter Hawley Hale Stores, Inc., 760 F.2d 945 (9th Cir.1985). True enough, but our case is about “when” rather than “what.” Quaker Oats made a traditional tender offer. The commencement date for such an offer is rigorously defined. This offer commenced at 12:01 A.M. on November 4,1994. There are no facts to find or inferences to draw in the district court; plaintiffs concede that the public announcement by the bidder occurred on that date. From this conclusion everything else follows, and the judgment is

Affirmed.


text:
    Ronald G. BRYANT, Plaintiff-Appellant, v. David MADIGAN, Nancy Griffin, and Dorothy Mulcahey, Defendants-Appellees.
    No. 95-2349.
    United States Court of Appeals, Seventh Circuit.
    Submitted March 14, 1996.
    Decided May 17, 1996.

      Ronald G. Bryant (submitted), Urbana, IL, pro se.
    Loma K. Geiler, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, Champaign, IL, James C. Dedman, Office of the State’s Attorney of Champaign County, Urbana, IL, for David Madigan, Nancy Griffin, Dorothy Mulcahey.
    Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.
   POSNER, Chief Judge.

Bryant, an Illinois state prisoner, brought this damages suit against his keepers, complaining that they had refused his request for guardrails for his bed and that as a result he had broken his leg when a severe leg spasm caused him to fall out of bed. (Bryant is a paraplegic, and leg spasms are a symptom of his condition.) He also complains that after the operation to fix his leg he was denied pain medication. He claims that the defendants’ conduct violated both, the . Eighth Amendment and the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq. The district judge granted summary judgment for the defendants. In reliance on an affidavit and deposition by medical practitioners he concluded that the defendants had not been deliberately indifferent to Bryant’s medical needs. And he held that the disabilities act is inapplicable to Bryant’s claim.

In basing his decision on the affidavit and deposition when he did, the district judge jumped the gun, in violation of the rule of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), that an unrepresented party must be notified of the consequences of failing to respond to evidence presented in support of his opponent’s motion for summary judgment with evidence of his own; must be told, in short, that he cannot rest on his pleadings. After the defendants submitted their evidence, the judge “granted [the parties] an additional fourteen days to submit any further materials permitted by Fed.R.Civ.P. 56,” but did not say anything about the consequences for Bryant if he failed to take up this invitation. We cannot say that the error was harmless, and we must therefore remand Bryant’s Eighth Amendment claim to the district court.

The second question presented by the appeal is the applicability of the disabilities act to correctional facilities. The question has divided the circuits. See Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995), which discusses the eases interpreting the Americans With Disabilities Act and the materially identical Rehabilitation Act, 29 U.S.C. § 794. Title II of the ADA, the title that concerns public services, provides that “no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” 42 U.S.C. § 12131. The term “public entity” is defined to include any instrumentality of state or local government. § 12131(1). There is no express exclusion of jails and prisons. A total exclusion would mean that the states had no duty to avoid discriminating against, and no duty to accommodate the reasonable needs of, persons who wanted to work as correctional officers, lawyers who had clients in jail or prison whom they wanted to visit, or, as in Pack v. Arkansas Valley Correctional Facility, 894 P.2d 84, 39 (Colo.App.1995), other visitors.

Even if such persons are protected, however, which we need not decide (for Congress may not have wanted to burden the states with the potentially enormous costs of making their prisons fully accessible to disabled visitors and employees), it would not necessarily follow that prisons or jails that offer educational or vocational programs for prisoners must redesign their programs to accommodate the needs of disabled prisoners. It is very far from clear that prisoners should be considered “qualified individual[s]” within the meaning of the Act. Could Congress really have intended disabled prisoners to be mainstreamed into an already highly restricted prison society? Most rights of free Americans, including constitutional rights such as the right to free speech, to the free exercise of religion, and to marry, are curtailed when asserted by prisoners; and there are formidable practical objections to burdening prisons with having to comply with the onerous requirements of the Act, especially when we reflect that alcoholism and other forms of addiction are disabilities within the meaning of the Act and afflict a substantial proportion of the prison population. Although there is authority that prisoners employed in the prison may be protected by Title VII of the Civil Rights Act of 1964, Baker v. McNeil Island Corrections Center, 859 F.2d 124, 128 (9th Cir.1988), there is contrary authority, Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991); and arguments that prisoners employed within the prison (as distinct from prisoners on work release) are protected by the Fair Labor Standards Act and thus entitled to the federal minimum wage have been uniformly rejected. E.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir.1992); Morgan v. MacDonald, 41 F.3d 1291 (9th Cir.1994); McMaster v. Minnesota, 30 F.3d 976 (8th Cir.1994); Henthorn v. Department of the Navy, 29 F.3d 682 (D.C.Cir.1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir.1993) (en banc). Judge-made exceptions, see id. at 1392, to laws of general applicability are justified to avoid absurdity. Cf. Reich v. Great Lakes Indian Fish & Wildlife Comm’n, 4 F.3d 490 (7th Cir.1993). And an exception to the Americans With Disabilities Act for prisoners, though not express, may have textual foundation in the term “qualified individual.”

Even if there were (as we doubt) some domain of applicability of the Act to prisoners, the Act would not be violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners. No discrimination is alleged; Bryant was not treated worse because he was disabled. His complaint is that he was not given special accommodation. Unlike the prisoner plaintiffs in Love v. McBride, 896 F.Supp. 808 (N.D.Ind.1995), or Donnell v. Illinois State Bd. of Education, 829 F.Supp. 1016, 1020 (N.D.Ill.1993), he is not complaining of being excluded from some prison service, program, or activity, for example an exercise program that his paraplegia would prevent him from taking part in without some modification of the program. He is complaining about incompetent treatment of his paraplegia. The ADA does not create a remedy for medical malpractice.

Standards of medical care are not irrelevant to the statute. Disabled people often cannot participate in programs and activities unless special attention is given to their medical needs. But incarceration, which requires the provision of a place to sleep, is not a “program” or “activity.” Sleeping in one’s cell is not a “program” or “activity.” Even apart from the prison setting it would be extremely odd to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the Americans With Disabilities Act, whereas a sick or injured but not disabled person — a person suffering from an acute viral infection, perhaps, or who has broken his leg, or who has a hernia or an inflamed gall bladder — must be content with the remedy that the state law of medical malpractice provides. Moreover, the courts have labored mightily to prevent the transformation of the Eighth Amendment’s cruel and unusual punishments clause into a medical malpractice statute for prisoners. We would be exceedingly surprised to discover that Congress had made an end run around these decisions in the Americans With Disabilities Act.

In light of our conclusion that Bryant failed to state a claim under the ADA, we need not decide whether he named the proper parties as defendants to that claim.

We have not considered the possible bearing on this suit of the new Prison Litigation Reform Act, enacted on April 26, 1996, as part of the federal omnibus fiscal year 1996 appropriations measure. That will be a matter for the district court to consider on remand.

The judgment dismissing Bryant’s suit is ;

Affirmed in Part and Reversed in Part.


author: FLAUM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Riley D. FUNCHES, Defendant-Appellant.
    No. 94-1419.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 8, 1995.
    Decided May 20, 1996.

      William J. Liscomb (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
    Elizabeth Cavendish-Sosinski (argued), Madison, WI, for Defendant-Appellant.
    Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
   FLAUM, Circuit Judge.

Riley D. Funches was convicted by a jury of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). Specifically, Funches was convicted of robbing a Bank One Branch and an Equitable Bank Branch, both located in Milwaukee, Wisconsin. Funches was identified prior to trial and in court by a teller from each bank. On appeal, Funches challenges, on due process grounds,- the admissibility of the in-court identifications, claiming they stemmed from out-of-court identification procedures that were suggestive and unreliable. We affirm the convictions on both counts.

I.

On August 30, 1993, the Equitable Bank, located at 219 E. Wisconsin Avenue in Milwaukee, was robbed of $912. The robber walked up to Cherita Graham’s teller window and demanded that she put money in a bag.' Sitting six to seven feet behind Graham, with an unblocked view of the robber, was teller trainee Paula Holley. Graham testified at trial that, as she emptied her drawer, she concentrated on the robber “the whole time,” focusing on his facial features, as she had been trained to do. Immediately after the robbery both witnesses filled out physical description forms describing the robber. Graham described the robber as 5’6” — 5’9” tall, 160-170 pounds, slender, with a small build and a dark complexion. Holley described the person as 5’6” — 5’9” tall, 150-160 pounds, slender, with a medium build and a medium complexion. Four days later, on September 3, 1993, both Graham and Holley were asked to view a line-up, in which Funches was not a subject. Teller Holley positively identified a person in this line-up as the robber. Graham, on the other hand, did not identify anyone during this line-up.

Eight days after the Equitable robbery, on September 7, 1993, the Bank One Branch at 69th and Capitol in Milwaukee was robbed of $6,888. At about 12:30 p.m. that day, teller Jacqueline Haley was standing at her station looking out of the front of the bank, which is made entirely of glass. She saw an individual walk past the glass, enter the bank, and then place a surgical-type mask over his face. Haley testified that she had a clear view of the person’s face before he put the mask on. The individual walked up to her window, pulled out what looked like a black pistol, and said “clear it now.” After the robber had stuffed all of the money from Haley’s window into a bag, he moved to the next window, where teller Diane Hawkinson was working. Hawkinson also emptied her teller drawer. Five hundred of the dollars taken from Haley’s window was “bait money,” i.e., the serial numbers of these bills had been previously recorded. When the police arrived, both Haley and Hawkinson- were asked to fill out forms describing the assailant. Hawkinson admitted that she did not get a good view of the robber’s face, although she did recall that he was wearing an LSU baseball cap.

Minutes after the Bank One robbeiy, an off-duty police officer who lived near the bank, Sergeant John Hogan, observed an individual wearing an LSU baseball cap picking up money off the street in front of his house. The person walked toward Hogan, coming within 20 feet of him. Feeling the person was acting suspiciously, Hogan made “mental notes” of the person’s description. Hogan then went to the scene of the Bank One robbery and told the officers there what he had observed. The officers were also informed at the time that a person connected with the robbery was at the nearby Economy Inn. Upon arriving at the hotel, the officers were told that the suspect and a female companion had recently left by cab. A search of the room rented by the suspects revealed a jacket, shoes, and a baseball cap, which were later identified by teller Haley as the clothing worn by the robber. The officers also found an identification card bearing the name of defendant Funches and a card identifying Funches’ girlfriend, Angenell Fulton. The room was apparently rented under Fulton’s name.

One of the addresses recovered at the motel room, led the police to Funches’ mother’s house. Funches and Fulton arrived at the house shortly after the police and were promptly arrested. A search of Fulton’s purse yielded $4,060 in cash. Five hundred of this money was banded together in a Bank One wrapper, and the serial numbers on the bills matched those of the bait money taken earlier that day. Another $1,956 was recovered from Fulton’s person, for a total of $6,016. Within an hour of the arrests, and approximately three hours and forty minutes after the robbery, the police brought Funch-es back to the Bank One for a show-up procedure. The officers conducting the show-up told the two tellers that “this is a procedure that is normally conducted. Sometimes the police have the suspect, sometimes they have someone who is totally not involved.” After viewing Funches through the glass front of the bank, Haley identified Funches as the robber. Hawkinson was unable to make an identification.

The following day, on September 8, 1993, another lineup was conducted for the Equitable Bank tellers and for Sergeant Hogan. This time Funches was one of the participants. Detective Jack Nehmer conducted the line-up and testified at trial as to the procedures he used. Nehmer first determined how old Funches was, how much he weighed, and how tall he was. He also examined Funches’ general appearance before going to the city jail to find other subjects with similar measurements and characteristics. Based on the ages, heights, and weights reported by the line-up participants (the subjects were never measured or weighed), Funches was the oldest, the shortest, and weighed the least. According to Funches, he stood 5’5” tall and weighed 130 pounds. The other participants reportedly ranged in height from 5’8” to 5’10” and weighed between 150 to 175 pounds. Funch-es was also the only suspect wearing a dark green t-shirt rather than a county jail issued white t-shirt under his jumper, which they all wore.

Viewing this line-up, Equitable Bank teller Graham positively identified Funches as the robber. She based her identification on his appearance and his voice, which she heard during the line-up when Funches repeated the words of the robber. Teller Holley was unable to make a positive identification but wrote “Number 2 [Funches] looks like the suspect, but I’m not sure.” Sergeant Hogan also identified Funches from the line-up as the man he had seen picking up money minutes after the Bank One robbery. He based his identification on Funches’ facial features, height, build, complexion, mannerisms, and walk.

Prior to trial Funches moved to suppress the identification of teller Graham, arguing the September 8, 1993 lineup was unduly suggestive. Funches pointed to the physical dissimilarities among the participants in support of his motion. The district court denied Funches’ motion, finding the dissimilarities “insignificant,” and further that, even if the line-up was suggestive, Funches had not shown there was a substantial likelihood of misidentification. At trial, then, Graham identified Funches in open court as the Equitable robber and testified to her identification at the line-up. In addition, both Graham and Holley identified a photograph of the robber taken by the bank surveillance camera as the Equitable robbery occurred. Sylvia Tolar, Angenell Fulton’s sister, identified the person in the photograph as Funches, whom she had known for 14 years.

As to the Bank One robbery, teller Haley, without objection, identified Funches in court and testified about her identification during the show-up procedure. Sergeant Hogan also identified Funches at trial as the man in the LSU cap he had seen picking up money on the street. Hogan additionally testified as to how he identified Funches in the September 8,1993 line-up. The government also presented evidence that clothing found in a hotel room rented by Fulton, Funches’ girlfriend, was identified by Haley as that of the robber, that identification cards for Fulton and Funches were found in the same hotel room, and that when Funches was arrested, Fulton was carrying over $6,000 in cash, $500 of which was bait money from Bank One that was banded together with a Bank One wrapper. The jury convicted Funches of both counts of bank robbery.

II.

Funches maintains on appeal that the trial court clearly erred in denying his motion to suppress the identifications of Cherita Graham, claiming that both the in-court and out-of-court identifications stemmed from an unduly suggestive and unreliable line-up procedure. Funches also contends that it was plain error to allow Jacqueline Haley to identify Funches in court as the Bank One robber, as her identification resulted from a suggestive and unreliable show-up procedure. The admission of these tainted identifications, Funches argues, violated his right to due pi’ocess.

A.

We review the district court’s decision to allow the identification testimony of Equitable teller Graham (stemming from the September 8, 1993 line-up) for clear error only. United States v. Donaldson, 978 F.2d 381, 387 (7th Cir.1992). In evaluating a challenge to identification testimony, we engage in a two-step inquiry. The defendant must first establish that the identification procedure employed was unreasonably suggestive. United States v. Larkin, 978 F.2d 964, 970 (7th Cir.1992), cert. denied, 507 U.S. 935, 113 S.Ct. 1323, 122 L.Ed.2d 709 (1993); Donaldson, 978 F.2d at 385; Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). If the defendant succeeds, the court must determine “whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedures.” Kubat, 867 F.2d at 357; see also Donaldson, 978 F.2d at 385; United States v. Sleet, 54 F.3d 303, 309-10 (7th Cir.1995). “The primary evil to be avoided,” in the words of the Supreme Court, “is a very substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); see also Donaldson, 978 F.2d at 385; Sleet, 54 F.3d at 309.

Funches contends that in the September 8, 1993 line-up, he was the oldest, the shortest, and weighed the least of the five participants. Based on the heights and weights reported by the participants themselves, Funches was 3-5 inches shorter and 20-45 pounds lighter than the other participants. He also claims that attention was drawn to him because he was the only suspect wearing a green t-shirt under his jumper and additionally that he was the only one that could be described as having both a slight build and a dark complexion, which is how Graham described the robber. Funches argues that all of these factors, in combination, created an unreasonably suggestive line-up. Upon reviewing photographs of the lineup, the district court found the differences Funches relied upon “insignificant.” Our independent assessment of the line-up photographs leads us to the same conclusion.

Regardless of their reported heights, it is clear from the pictures of the line-up that at least two of the other suspects were very close in height to Funches, while the others were not appreciably taller. Only two of the participants appear to be somewhat heavier than Funches, with bigger builds, yet the differences are not overly conspicuous, particularly since the suspects were presented in very baggy clothing. Skin color is a matter of degree, and the differences in coloring between the persons in the picture appear to be minimal. Further, such a small portion of the participants’ t-shirts are even visible under the jumpers that Funches’ green t-shirt does not draw any undue attention to him. Finally, the heights and weights of the other participants are within or extremely close to the range of measurements tellers Graham and Holley used in describing the robber immediately after the incident, making their selection all the more reasonable. One cannot expect a line-up to consist of five persons with identical measurements and counte--nances. We conclude that the participants in this line-up had descriptive features within a reasonable range of similarity to each other, especially in light of the tellers’ prior descriptions. The differences between the suspects “would hardly suggest to an identifying witness that [Funches] was more likely to be the culprit.” United States v. Bautista, 23 F.3d 726, 731 (2d Cir.), cert. denied, — U.S.-, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Of course, at some point the dissimilarities among the participants in a line-up may cross the line to suggestiveness. See, e.g., Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). This, however, is not such a case. Thus the district court did not clearly err in allowing the identification testimony of Graham, and her testimony did not deprive Funches of a fair trial.

B.

Funches did not object prior to trial or at trial to the identification testimony of Jacqueline Haley; thus we review its admission for plain error only. United States v. Wagner, 996 F.2d 906, 916 (7th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 720, 126 L.Ed.2d 685 (1994). Under this standard, Funches must not only prove that the admission of the testimony was error, but also that reversal is required to prevent a “miscarriage of justice.” United States v. Olano, 507 U.S. 725, 736-37, 113 S.Ct. 1770, 1778-80, 123 L.Ed.2d 508 (1993). We employ the same two-step inquiry described above to determine whether Haley’s identification testimony should have been excluded.

Funches asserts that the police show-up procedure used to obtain Haley’s identification was unduly suggestive. A show-up “occurs when only one suspect is presented to the witness.” Armstrong v. Young, 34 F.3d 421, 427 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1369, 131 L.Ed.2d 224 (1995); United States v. Clark, 989 F.2d 1490, 1495 (7th Cir.1993). Funches was brought back to the bank almost 4 hours after the robbery, via a police squad car, and was shown to Haley standing in the same place where the robber stood. Show-up procedures have been widely condemned because of their potential to render unreliable, mistaken identifications. See Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972-73, 18 L.Ed.2d 1199 (1967) (“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.”). A show-up is inherently suggestive because the witness is likely to be influenced by the fact that the police appear to believe the person brought in is guilty, since presumably the police would not bring in someone that they did not suspect had committed the crime. See United States v. Watson, 587 F.2d 365, 367 (7th Cir.1978) (recognizing inherent suggestiveness of show-ups), cert. denied, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979); United States v. Watkins, 741 F.2d 692, 694 (5th Cir.1984) (same); Allen v. Estelle, 568 F.2d 1108, 1112 n. 7 (5th Cir.1978) (collecting cases).

We have noted, however, that show-ups may be appropriate in certain situations. Clark, 989 F.2d at 1495; Armstrong, 34 F.3d at 427. Where exigent circumstances exist, such as where the identifying witness may not survive until a line-up can be arranged, a show-up may be a proper. See, e.g., Stovall, 388 U.S. at 302, 87 S.Ct. at 1972-73 (“[T]he record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.”). We have also recognized that immediate show-ups can serve other important interests. For example, show-ups “allow identification before the suspect has altered his appearance and while the witness’ memory is fresh, and permit the quick release of innocent persons.” Sleet, 54 F.3d at 309 (quoting Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir.1987)); see also Bautista, 23 F.3d at 730; Frank v. Blackburn, 605 F.2d 910, 912 (5th Cir.1979), modified on other grounds, 646 F.2d 902, cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981). In our view, such considerations will justify a show-up in a limited number of circumstances, such as where the police apprehend a person immediately after the crime and in close proximity to the scene. See, e.g., Sleet, 54 F.3d at 308-09 (suspect stopped fleeing crime scene shown to witness minutes after crime); United States v. Watson, 76 F.3d 4, 6 (1st Cir.1996) (same). It is always advisable, however, that show-ups be employed with restraint to avoid the suggestiveness inherent in such confrontations.

In this case, a strong argument can be made that the show-up was impermissibly suggestive. Exigent circumstances did not exist — there was no danger of losing a key witness and no reason a line-up could not be arranged. In fact, a line-up for Sergeant Hogan and the Equitable Bank tellers was conducted the very next day. Further, we do not believe that other interests warranted the inherently suggestive procedure in this case. Finally, we do not think that informing Haley that Funches may be someone totally uninvolved reduces the suggestiveness in any meaningful way. A witness can easily reason that the police would not take the time and effort to rush a suspect over that they thought was not involved. We need not conclusively decide the issue, however, because even if the show-up was unduly suggestive, the totality of the circumstances convinces us that Haley’s identification was nonetheless reliable. See Armstrong, 34 F.3d at 428; Clark, 989 F.2d at 1495; United States v. Myers, 892 F.2d 642, 646 (7th Cir.1990).

The Supreme Court has identified several factors that bear on the reliability of identifications: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972); Sleet, 54 F.3d at 310. Haley had a clear view of the robber’s entire face while he walked past the front of the building and into the bank in the middle of the day. The robber was only about 20 feet from her when he put the mask on, and he was standing directly across from her while she cleared her drawer. Haley testified that her attention was drawn to the man as he walked past the front of the bank because of the surgical mask he had around his neck. Haley’s description of the robber, given minutes after the crime, was very accurate. Haley described the robber as 5 feet 4 inches, 125 pounds; Funches is 5 feet 5 inches, 130 pounds. She was “certain” that Funches was the robber when the police performed the show-up at the bank only 4 horn’s after the robbery. Thus, all five factors indicate that Haley’s identification was reliable despite the possible suggestiveness.

Moreover, even if we were to conclude that the show-up was impermissibly suggestive and unreliable, Funches cannot show that admitting the identification testimony resulted in a “miscarriage of justice.” United States v. Olano, 507 U.S. 725, 736-37, 113 S.Ct. 1770, 1778-80, 123 L.Ed.2d 508 (1993); United States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988). Haley’s identification was corroborated by more than substantial evidence. Sergeant Hogan identified Funches as the man he saw picking up money minutes after the robbery. Clothing identified as that of the robber was found in a room rented by Funches’ girlfriend and in which Funches’ identification card was found. And most importantly, Funches was arrested with his girlfriend, who was carrying over $6,000 in cash, $500 of which was the bait money from teller Haley’s drawer. Therefore, no plain error exists, as Funches guilt “was so clear that he would certainly have been convicted” even if the identification was not admitted. Kerley, 838 F.2d at 937; United States v. Baker, 78 F.3d 1241, 1246-47 (7th Cir.1996).

For all of the foregoing reasons, Funches’ convictions are Affirmed.

      . Graham described the robber as being 5 feet 6 inches—5 feet 9 inches tall and between 150 and 170 pounds. Holley described the robber as being 5 feet 6 inches—5 feet 9 inches tall and 150-160 pounds. The other line-up participants were all reportedly 5 feet 8 inches—5 feet 10 inches tall and weighed 150-175 pounds.

      . We also note that Graham’s identification was based not only on Funches’ appearance, but also on his voice, which of course was not affected by the make-up of the line-up.

      . A show-up was not necessary for appearance purposes, as Funches had already altered his clothing by the time of the arrest and the police could prevent him from changing his appearance further once he was in custody. Also, the police found Funches with over $6,000, including the bait money from Bank One, and had placed him under arrest, so it is unlikely he would have been quickly released as innocent even if Haley had not been able to identify him. Further, the tellers were asked to describe the robber just minutes after the crime, so their freshest recollections were recorded. Finally, the show-up was conducted almost four hours after the crime, and Funches was not in the vicinity of the bank when he was arrested.