August 21, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2164
UNITED STATES FIDELITY & GUARANTY COMPANY, ET AL.,
Plaintiffs, Appellants,
v.
BAKER MATERIAL HANDLING CORPORATION,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court, issued August 9, 1995, is amended as
follows:
Cover sheet: "David A. Berry" in place of "David W. Berry"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2164
UNITED STATES FIDELITY & GUARANTY COMPANY, et al.,
Plaintiffs, Appellants,
v.
BAKER MATERIAL HANDLING CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Selya and Cyr, Circuit Judges,
and Schwarzer,* Senior U.S. District Judge.
Michael J. McCormack, with whom Marc LaCasse and McCormack &
Epstein were on brief for appellants.
David W. Barry, with whom William L. Boesch and Sugarman, Rogers,
Barshak & Cohen, P.C. were on brief for appellee.
August 9, 1995
*Of the Northern District of California, sitting by designation.
CYR, Circuit Judge. Plaintiffs United States Fidelity
CYR, Circuit Judge.
& Guaranty Company ("USF&G")1 and Jennifer Chapman, administra-
trix of the estate of Russell M. Chapman, Jr. ("Chapman"),
challenge district court rulings precluding their introduction of
certain evidence at trial and denying their motion for new trial
or relief from judgment in a wrongful death action against
defendant-appellee Baker Material Handling Corporation ("Baker").
We affirm.
I
I
BACKGROUND
BACKGROUND
On January 5, 1990, Chapman sustained fatal injuries in
a phenomenon known as "rack underride" when he was crushed
between a warehouse shelf and the back of the 1979 Baker Moto-
Truck model XTR forklift ("XTR") which he was operating. The XTR
was discontinued later in 1990 and replaced by the Baker Reach
Truck forklift ("BRT"), first manufactured in 1987. Unlike its
predecessor, the BRT-design repositioned the steering controls
and incorporated vertical rear posts to protect the operator.
Following Chapman's death, USF&G and Jennifer Chapman
("appellants") brought suit in Massachusetts Superior Court,
claiming that 1) Baker had breached its duty to warn Chapman's
employer of the danger of "rack underride"; and (2) the lack of
vertical rear posts in the XTR (i) violated the implied warranty
of merchantability and (ii) rendered the XTR-design unreasonably
1USF&G is the workers' compensation insurance carrier for
Chapman's employer.
3
dangerous. Following the removal of the action to federal court,
see 28 U.S.C. 1332, 1441(a), Baker responded in the negative
to interrogatories designed to disclose whether it had ever been
sued for damages arising out of a similar XTR incident and
whether it had ever modified an XTR forklift by installing
vertical rear posts. Approximately two years later, shortly
before trial, Baker again responded in the negative to similar
supplemental interrogatories.
As Baker now concedes, its responses were materially
incorrect. It had installed vertical rear posts in two XTRs for
Boston Edison in 1987, and later that year sold Boston Edison two
new XTRs with vertical rear posts. And, for good measure, Baker
had been sued in 1985 based on a similar XTR "rack underride"
claim which settled in 1989. See DeMarzo v. Baker Material
Handling Corp, No. 477122 (Orange Cty. Sup. Ct. filed Dec. 20,
1985) ("DeMarzo").
Baker filed a motion in limine to preclude evidence of
its incorporation of vertical rear posts in the BRT-design,
asserting lack of relevance and undue prejudice, see Fed. R.
Evid. 402, 403. It contended that incorporating posts in the
earlier XTR-design would have impeded steering, as well as safe
egress by the operator in the event of a crash or rollover. On
the other hand, its repositioning of the steering controls in the
BRT-design had alleviated the operational impediment and hazard
associated with incorporating posts in its XTR-design. Conse-
quently, urged Baker, the BRT-design would be irrelevant to the
4
determination whether the absence of vertical rear posts in the
XTR-design created an unreasonably dangerous condition. The
motion in limine was granted on the eve of trial.
At trial, Baker incorrectly represented in its opening
statement that the evidence would show that the XTR had never
been involved in a "rack underride" accident and that Baker had
never installed vertical rear posts in an XTR. Although appel-
lants had already learned about the 1985 DeMarzo XTR litigation
and Baker's undisclosed XTR modifications, they neither alerted
the district court nor mentioned these matters in their opening
statement.
During trial, appellants elicited from Manfred Baumann,
Baker's vice-president for engineering and the officer in charge
of litigation, that company files contained no record of any
prior "rack underride" incident involving the XTR forklift and
that Baker had never installed vertical rear posts in an XTR,
though it was in fact feasible to do so. Whereupon appellants
confronted Baumann with depositions taken in the DeMarzo litiga-
tion, and with Boston Edison records, indicating that Baumann's
testimony on both points was inaccurate, as Baumann was forced to
concede.2
2According to Baumann, the DeMarzo litigation file had not
been entered on the master-file list until after Baker responded
to the initial interrogatories, and the information relating to
the XTR modifications made by Baker at the request of Boston
Edison had been placed in the Boston Edison client sales file,
rather than the XTR file. He testified that there were more than
100,000 client sales files, and that it was not until he had been
told of the modifications to the Boston Edison XTRs that he had
searched its client sales file. Further, Baumann admitted that
5
Notwithstanding their denudation of Baker's discovery
lapses, appellants elected not to request sanctions or a continu-
ance to pursue further discovery, choosing instead to capitalize
on Baker's "cover-up" in their closing argument. Apparently
unimpressed, the jury found for Baker on all three theories of
liability; judgment entered; and appellants moved for a new
trial, see Fed. R. Civ. P. 59(a), or for relief from judgment,
id. 60(b)(3), alleging prejudice from the order precluding their
BRT-design evidence and from Baker's responses to interrogato-
ries.
On appeal, appellants attack the district court judg-
ment, asserting reversible error in the ruling precluding their
BRT-design evidence. Their discovery abuse claim forms the basis
for the appeal from the denial of their postjudgment motion.
Appellants speculate that they were unfairly prejudiced by the
inaccurate responses to interrogatories, notwithstanding their
decision not to request Rule 37 relief, since it is impossible to
determine what would have been disclosed in full discovery.
II
II
DISCUSSION
DISCUSSION
A. Appeal from the Judgment
A. Appeal from the Judgment
The district court order precluding the BRT-design
evidence is reviewed for abuse of discretion. Espeaignnette v.
Baker's responses to the initial interrogatories had been inaccu-
rate and that he had not reexamined the Baker litigation files
before responding to the supplemental interrogatories.
6
Gene Tierney Co., Inc., 43 F.3d 1, 5 (1st Cir. 1994) ("'Only
rarely -- and in extraordinarily compelling circumstances -- will
we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect.'" Freeman v. Package Mach.
Co., 865 F.2d 1331, 1340 (1st Cir. 1988). Notwithstanding this
deferential standard of review, the Espeaignnette panel reversed
a similar ruling, Espeaignnette, 43 F.3d at 8-9, where the issue
was whether a lawn-edger design, which made no provision for a
protective guard over the cutting blade, was unreasonably danger-
ous. Id. at 4. The defendant-manufacturer conceded that it
would be feasible to attach a protective guard, but maintained
that normal operation of the edger would be impeded. Id. at 6.
The district court precluded evidence that a third party had made
a business of attaching protective guards to the identical lawn
edger model, even though the evidence showed that the modifica-
tion at issue was "both possible and practical". Id. The
Espeaignnette panel reversed on the ground that the proffered
modification evidence was highly probative and entailed no unfair
prejudice because, if credited, it directly controverted the
defendant-manufacturer's claim that the proposed modification
would impede normal edger functioning. Id. at 6-8.
The superficial similarities between Espeaignnette and
the instant case are outweighed by more fundamental dissimilari-
ties. First, both cases implicate Rule 403 rather than Rule 407,
though for different reasons. Espeaignnette noted that Rule 407
7
has no application to third-party modifications, id. at 7; see
also Raymond v. Raymond Corp., 938 F.2d 1518, 1524-25 (1st Cir.
1991) (Rule 407 applies only to subsequent remedial measures by
manufacturer, not by third parties), whereas Rule 407 does not
apply to the instant case because the BRT-design modification
preceded Chapman's accident. See id. at 1523-24 (Rule 407 does
not apply to design modifications made prior to accident in
litigation) (upholding exclusion under Rule 403). Second, the
modification in Espeaignnette had been performed on an edger
identical to the one which injured the plaintiff, Espeaignnette,
43 F.3d at 6, whereas the modification in the instant case was
made to the BRT-design, which was substantially dissimilar to the
XTR which injured Chapman. See also infra p. 8.
The district court found that the BRT was not suffi-
ciently similar to the XTR, a finding we review only for clear
error. Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14,
16 (1st Cir. 1994) (findings of fact integral to evidentiary
rulings are reviewed for clear error). Its finding is amply
supported. Appellants' own expert testified that vertical rear
posts could not practicably be incorporated in the XTR unless it
underwent major redesign. Whereas the record revealed that the
BRT-design could accommodate vertical rear posts precisely
because its steering controls had been repositioned in the
operator's cabin so that the posts would not interfere with
steering.
The Raymond case, supra, provides sturdy support for
8
the district court ruling.3 It involved a claim that a side-
loader design was defective for lack of vertical rear posts.
Raymond, 938 F.2d at 1522. The decedent had been fatally injured
by a beam which penetrated the sideloader operator's cabin, id.
at 1520, and the district court excluded evidence that rear posts
were included in a later design that predated the accident. Id.
at 1522-23. We upheld the exclusionary ruling, with the follow-
ing explanation: "the introduction of evidence of pre-accident
design modifications not made effective until after the manufac-
ture of the allegedly defective product may reasonably be found
unfairly prejudicial to the defendant and misleading to the jury
for determining the question whether the product was unreasonably
dangerous at the time of manufacture and sale." Id. at 1524. The
Raymond logic is no less apt in this case.
Finally, the evidence excluded in the instant case was
by no means the most probative available on the ultimate jury
issue; viz., whether the XTR-design should have included vertical
rear posts. Whereas the best evidence relating to the safety and
practicality considerations involved in Espeaignnette had been
that a third party was making a business of incorporating a
protective guard on the identical edger, the best evidence that
the XTR could accommodate vertical rear posts was the uncontro-
verted proof presented to the jury that Baker in fact had
3Although Raymond involved New Hampshire law, 938 F.2d at
1520, we recently held that its logic applies as well to "design
defect" and "failure to warn" claims under Massachusetts law.
Cameron, 43 F.3d at 18.
9
installed posts in the XTRs it modified at Boston Edison's
request. The evidence that posts had been installed in XTRs
diminished not only the need to establish their incorporation in
the noncomparable BRT-design, but any unfair prejudice from its
exclusion. Thus, the district court did not abuse its discretion
in concluding that the required Rule 403 balancing tipped deci-
sively in favor of preclusion. Espeaignnette, 43 F.3d at 6
(centrality of disputed evidence to party's claim is strong
factor in Rule 403 balancing test) (collecting cases).
B. Appeal from the Denial of Postjudgment Relief
B. Appeal from the Denial of Postjudgment Relief
We review orders disallowing postjudgment relief
under rules 59 and 60(b)(3) for abuse of discretion. Perdoni
Bros., Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 n.5 (1st Cir.
1995) (Rule 59); Fernandez v. Leonard, 963 F.2d 459, 468 (1st
Cir. 1992) (Rule 59 and Rule 60(b)(3)); United States v. Parcel
of Land & Res. at 18 Oakwood Street, 958 F.2d 1, 5 (1st Cir.
1992) (Rule 60(b)(3)). The district court rulings that Baker's
inaccurate responses to interrogatories neither constituted fraud
nor resulted in substantial interference with the preparation and
presentation of appellants' case are reviewed for clear error.
Anderson v. Beatrice Foods, Co., 900 F.2d 388, 392 (1st Cir.),
cert. denied, 498 U.S. 891 (1990).
Appellants argue that the district court abused its
discretion by not affording them postjudgment relief based on
Baker's slipshod and misleading responses to interrogatories,
10
which denied them a fair trial.4 Among the available forms of
relief from prejudice occasioned by discovery violations are
curative measures such as continuances and stays pending compli-
ance, orders tailored to effect issue preclusion, contempt
orders, and default judgments. See R.W. Int'l Corp. v. Welch
Foods, Inc., 937 F.2d 11, 15-20 (1st Cir. 1991) (discussing
grounds for Rule 37 sanctions); Fed. R. Civ. P. 37(b)(2),(3).
Appellants' claim fails, nonetheless, as they opted to
proceed rather than request relief under Rule 37, presumably
because the information Baker did not disclose had become known
to appellants before or during trial. Moreover, though their
gambit proved unsuccessful, there was both method potential
advantage in their stratagem and little to lose. Since there
is even now no concrete suggestion that further discovery would
have benefited them, their prospects for obtaining Rule 37 relief
appear all along to have been minimal compared with the potential
jury impact their "cover-up" claim might reasonably have been
expected to occasion. Thus, appellants' decision to use
their hole card in an abortive gambit with the jury plainly
waived any claim that their decision to forego Rule 37 relief
rendered the trial unfair. The appropriate remedy for parties
4Appellants rely on Anderson v. Cryovac, Inc., 862 F.2d 910,
923 (1st Cir. 1988), for their contention that a district court
may grant relief from judgment and a new trial even if the
failure to provide requested discovery was inadvertent. Follow-
ing our remand in Cryovac, the district court denied relief from
judgment under Rule 60(b) notwithstanding its finding of deliber-
ate discovery abuse. We nevertheless upheld its ruling. Beatri-
ce Foods Co., 900 F.2d at 391-92.
11
who uncover discovery violations is "not to seek reversal after
an unfavorable verdict but a request for continuance at the time
the surprise occurs." Szeliga v. General Motors Corp., 728 F.2d
566, 568 (1st Cir. 1984); see United States v. Diaz-Villafane,
874 F.2d 43, 47 (1st Cir.) (criminal case), cert. denied, 493
U.S. 862 (1989). Here, of course, there appears to have been no
genuine surprise. Nor can appellants plausibly suggest that the
district court abused its discretion by declining their post-
judgment motion for relief from the unwelcome consequences of
their calculated decision. Ojeda-Toro v. Rivera-Mendez, 853 F.2d
25, 29 (1st Cir. 1988) ("[A] party may not prevail on a Rule
60(b)(3) motion . . . where [it] has access to disputed informa-
tion or has knowledge of inaccuracies in an opponent's represen-
tations at the time of the alleged misconduct.") (collecting
cases).
III
III
CONCLUSION
CONCLUSION
As the district court did not abuse its discretion in
precluding the dissimilar BRT-design evidence nor in denying
postjudgment relief under Rules 59 and 60(b)(3), its judgment is
affirmed.
12