Ferrara & DiMercurio v. St. Paul Mercury Insurance

United States Court of Appeals
For the First Circuit

No. 00-1137

FERRARA & DIMERCURIO,

Plaintiff, Appellant,

v.

ST. PAUL MERCURY, INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Joseph M. Orlando with whom David S. Smith, Brian S.
McCormick and Orlando & Associates were on brief for appellant.
Richard H. Pettingell with whom Davis, White, Pettingell &
Sullivan, LLC was on brief for appellee.

February 14, 2001
 CAMPBELL, Senior Circuit Judge. For a second time this

case comes to us on appeal. See Ferrara & DiMercurio v. St.

Paul Mercury Ins. Co., 169 F.3d 43 (1st Cir. 1999)(hereinafter

Ferrara I). The facts have not changed.

I. BACKGROUND

On July 3, 1993, the commercial fishing vessel F/V TWO

FRIENDS was destroyed by a fire. Plaintiff-Appellant Ferrara &

DiMercurio (“F&D”), owner of the vessel, sought to recover

insurance under a Hull Policy issued by defendant-appellee St.

Paul Mercury Insurance Company (“St. Paul”). St. Paul denied

coverage after its investigation ended with a determination of

arson, which it understood to be excluded from coverage under

the policy. Thereafter, F&D brought an action in the district

court claiming that St. Paul’s refusal to pay was a breach of

the insurance contract and constituted “bad faith” in violation

of Massachusetts General Laws ch. 93A. After a first trial

ended in a hung jury, a second trial ended with the court

directing a verdict in favor of the plaintiff.

At the time the district court directed a plaintiff’s

verdict, the court accepted that St. Paul would not be liable

could it prove its affirmative defense that the fire was

deliberately set by the insured. But the court ruled that the

evidence put forward was legally insufficient for a jury to find

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that plaintiff had deliberately set its boat on fire. St. Paul

had also asserted that it would be exempt from liability were

the fire found to have been deliberately set by an unknown third

party, relying upon the language of an exclusion for “malicious

acts” found in the so-called Strikes, Riots, and Civil

Commotions (“SR&CC”) clause. However, the court construed that

provision as excluding from coverage only those fires

deliberately set by third parties in the context of civil

unrest, a setting absent here.

On appeal, this court disagreed with the district

court’s rulings, reversing and remanding the case for a third

trial. We held that the SR&CC clause excluded from coverage all

fires (whether or not arising in the context of civil unrest)

that were deliberately set by third parties. See Ferrara I, 169

F.3d at 53. Notwithstanding the clause’s title -- “strikes,

riots and civil commotions” -- we stated:

“Malicious acts” is set forth in the SR&CC
clause as a separate, unmodified exclusion
from coverage....[N]othing in the plain
language and grammar of the clause supports
the district court’s constriction of
excludable “malicious acts” to only those
acts perpetrated within the context of one
or more of the other co-listed events. Nor,
in our view, would an objectively reasonable
insured interpret the “malicious acts”
exclusion so narrowly.

....

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 ...Hence, to limit the phrase,
“malicious acts,” to just those activities
related to the former categories would be to
render the “malicious acts” provision
redundant, an interpretation running counter
to the customary assumption that all words
within a clause serve some purpose....

Here, the malicious acts in question
are arson -- and not, as a practical matter,
arson by the owner or its agents, which are
actions separately excluded from coverage by
law, but the rarer acts of fire-setting by
vandals or other malicious individuals.
Such acts fall within the general category
of intentional third-party violence which
can be said to be a principal overall theme
of the SR&CC clause. The “malicious acts”
category serves the relevant purpose of
excluding destructive acts not public or
tumultuous enough to be considered a riot or
civil commotion. In sum, the SR&CC clause
unambiguously excludes from coverage losses
caused by “malicious acts,” including arson,
whether or not the malicious acts occur in
the context of one or more of the other
events listed in the SR&CC clause. Thus, on
remand, the jury should be permitted to
determine whether the fire on July 3, 1993,
was deliberately set by third parties.
Should the jury answer that question in the
affirmative, St. Paul would not be liable
under the Hull Policy.

Id. at 51-53 (citations and quotation marks omitted).

Having reversed the district court’s holding that arson

by a third party was only a defense when occurring during civil

unrest, this court also reversed the district court’s other

conclusion that the evidence at trial was legally insufficient

to support the insurer’s arson-by-the-insured defense. We

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determined that evidence in the record of motive and opportunity

on the part of F&D to commit arson was such that “reasonable

jurors could determine that [plaintiff] deliberately set fire to

the TWO FRIENDS in order to fraudulently obtain the proceeds of

the insurance policy.” Id. at 56.

The parties returned to district court to prepare for

a third trial, this time before yet a third judge, Judge

Harrington. Based upon their mutual understanding of this

court’s decision in Fer r a r a I, both parties agreed that the

following single question would be submitted to the jury to be

answered “Yes” or “No”: “Do you find that the defendant, St.

Paul Mercury Insurance Company, has established by a

preponderance of the evidence that the fire was of an incendiary

nature or deliberately set?”. This question was apparently

meant to incorporate both holdings of Ferrara I, entitling St.

Paul to the defense of arson by third parties as well as to the

defense of arson-by-the-insured. The jury returned a verdict in

favor of defendant St. Paul, answering “Yes” to the special

verdict. F&D appeals.

Unlike in Ferrara I, when we were faced with, among

other issues, the task of construing somewhat unusual language

in the insurance policy, this time the issues presented are more

commonplace. F&D claims reversible error on the basis of

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certain evidentiary rulings, any one of which, F&D argues,

entitles it to a fourth trial. We disagree. F&D also appeals

from the district court’s denial of plaintiff’s post-trial

motion for sanctions. For the reasons that follow, we affirm

all of the rulings below.

II. LEGAL ANALYSES OF EVIDENTIARY ISSUES

Having recited the facts in our first opinion, we need

not repeat all of them here. For a more complete account, we

refer the reader to Ferrara I, 169 F.3d at 45-49. We report

here only those facts that are relevant to the three evidentiary

issues raised on this appeal. The three evidentiary issues are

as follows1: (A) the propriety of allowing the jury to hear

evidence of the principal shareholders’ alleged motive and

opportunity to burn their own boat; (B) the propriety of

admitting into evidence against F&D the expert testimony of John

Malcolm regarding the cause and origin of the fire; (C) the

effectiveness of the district court’s curative instruction to

the jury to strike and disregard an answer provided on cross-

examination by John Malcolm regarding information that was

1
We state and decide the remaining two issues, non-
evidentiary and less fact-specific, in Part III infra.

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subject to a protective order. We discuss each of these issues

in turn below.

A. Motive and Opportunity Evidence to Burn the F/V TWO FRIENDS

Prior to trial, the district court engaged in an

extended colloquy with both parties over the relevance and

potential prejudice of defendant’s proffer to present evidence

of F&D’s financial hardship, a proffer, defendant argued, that

would tend to prove that F&D had a motive, in addition to the

opportunity, to burn their boat, the F/V TWO FRIENDS. Plaintiff

objected to this evidence on the ground that it was irrelevant.

All parties having agreed that the sole question put to the jury

would be “Do you find that the defendant, St. Paul Mercury

Insurance Company, has established by a preponderance of the

evidence that the fire was of an incendiary nature or

deliberately set?”, plaintiff sought to persuade Judge

Harrington that evidence of either motive or opportunity to

commit arson would be irrelevant to a determination of the

ultimate issue. Then, as now, plaintiff argued that evidence of

motive and opportunity to start a fire aboard the F/V TWO

FRIENDS was irrelevant to the only explicit question to be

answered by the fact-finders: whether or not the fire aboard the

F/V TWO FRIENDS was intentional. As an alternative, plaintiff

argued that the prejudicial effect of evidence that F&D

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shareholders had a motive and opportunity to burn their boat

substantially outweighed its probative value.

At various times during the pre-trial conference, Judge

Harrington pressed plaintiff’s counsel for a persuasive

explanation of why evidence of motive and opportunity was

irrelevant to the ultimate issue of incendiarism. Like Judge

Harrington, we are puzzled by plaintiff’s constricted

interpretation of relevance as defined by Federal Rule of

Evidence 401. Consider the evidence that ultimately came out at

the trial:

The F/V TWO FRIENDS was locked at the time the fire

started. No sign of forced entry into the vessel was found. As

both parties’ experts agreed that the fire began inside the

vessel, St. Paul was faced with the obstacle of explaining, in

order to establish that the fire was deliberately set, how an

arsonist (be it the insured or a third party) gained access to

the vessel. This goes to opportunity.

As it turned out, there were four keys to the F/V TWO

FRIENDS, three in the hands of the insured-owners and one

hanging in a warehouse adjacent to where the boat was moored.

The undisputed testimony was that all four keys were in their

expected places shortly after the fire. The owner of the

warehouse testified that access to the key hanging in the

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warehouse was not closely guarded, however, and that it was

possible that before July 3, 1993, somebody could have illicitly

taken the key from the warehouse and made a copy of it. No

evidence was put before the jury of anyone being seen near the

boat between the hours of 4:30 p.m on July 2, 1993, when Leo

Ferrara locked the boat after a fishing trip, and 2:30 a.m. the

following morning, when the Gloucester Fire Department responded

to the fire.2 After a lengthy investigation that led St. Paul’s

investigators to the conclusion that, due to the burn patterns

inside the vessel, the fire had been deliberately set, St. Paul

set out to investigate why someone who might have access to the

TWO FRIENDS would wish to destroy it. This goes to motive.

Evidence was presented that the plaintiff company F&D,

along with its principle shareholders (various members of the

Ferrara-DiMercurio family), was in dire financial trouble. The

2 Although not placed before the jury, through initial
discovery both parties learned that a Gloucester police officer
had information based on an anonymous source that someone was
seen fleeing the scene of the fire and that the fire had been
deliberately set. When the police officer refused to reveal
his source, the district judge who presided over the first trial
(Judge Tauro) ordered that no evidence of this anonymous tip was
to be admitted in the trial. No jury ever heard anything about
this anonymous informant. The jury in the third trial did
learn, however, through an answer of one of St. Paul’s experts
under cross-examination, that a protective order was in place as
to certain subjects relevant to the initial investigation of the
cause of the fire. Whether what the jury heard as to the
protective order poisoned the trial for the plaintiff is the
subject of Part II.C. infra.

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company, organized as a commercial fishing venture in 1987, was

losing money and was unable to meet its mortgage payments on the

vessel to Gloucester Bank & Trust Company. In fact, F&D had

operated at a loss since its inception. As the company fell

further behind in its payments, the bank threatened to foreclose

not only on the boat mortgage, but on the collateral that was

pledged on the loan for the F/V TWO FRIENDS, such as the

personal homes of the individual shareholders.

Despite successfully negotiating various repayment

plans, F&D continued to have difficulties making timely payments

to the bank. So, in April 1993, in an effort to quell those

financial troubles, F&D and Gloucester Bank & Trust Company

agreed that F&D would attempt to sell the TWO FRIENDS for

$225,000, a sum that was $150,000 less than the price F&D paid

for the vessel in 1987 and significantly less than the

outstanding balance of the debts owing, which totaled more than

$425,000. The jury heard testimony that the boat was insured

for $350,000 under a Hull Policy issued to F&D in 1992 by St.

Paul, a sum which if collected by F&D might have protected the

homes of the Ferraras and DiMercurios from foreclosure.

The standard for admissibility under Federal Rule of

Evidence 401 is a liberal one. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of

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consequence to the determination of the action more probable or

less probable than it would be without that evidence.” We think

the existence of a motive and an opportunity to burn an

undisputedly locked boat from the inside-out tends to make the

disputed issue -- whether the fire aboard the F/V TWO FRIENDS

was an act of arson -- more probable, especially in light of the

conflicting expert testimony as to incendiarism. See Part II.B

infra. Given especially the nisi prius court’s superior vantage

point for discerning relevance and the broad discretion accorded

to it in doing so, see, e.g., United States v. Tierney, 760 F.2d

382, 387 (1st Cir. 1985), we can find no error in Judge

Harrington’s determination of relevance.

Unpersuaded, as are we, by plaintiff’s argument under

Fed. R. Evid. 401, Judge Harrington pushed plaintiff to move

forward, on to the balancing required by Federal Rule of

Evidence 403.3 “As with Rule 401, the district courts have

considerable discretion in calibrating the Rule 403 scales.”

United States v. Griffin, 818 F.2d 97, 101 (1st Cir. 1987).

This is primarily because “Rule 403 balancing is a

3
Federal Rule of Evidence 403 directs district courts to
exclude evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.”

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quintessentially fact-sensitive enterprise and the trial judge

is in the best position to make such factbound assessments.”

Udemba v. Nicoli, ___ F.3d ___,___ (1st Cir. 2001) [No. 00-1246,

slip. op. at 12]. “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.” Id. (citing Freeman v. Package Mach. Co., 865

F.2d 1331, 1340 (1st Cir. 1998)).

After a lengthy discussion, Judge Harrington took the

matter of Rule 403 balancing under advisement. Two weeks later,

on the first day of trial but before jury empaneling began,

Judge Harrington informed counsel that he would allow defendant

to proffer evidence of motive and opportunity as he determined

that “such evidence’s probative value outweighs any prejudice to

the plaintiff.”

Plaintiff’s arguments to the contrary, it is not the

case that Judge Harrington’s decision was arbitrary or unfounded

or that he failed to provide a reasoned decision for admitting

the evidence despite its prejudicial effect. See Brief for the

Appellants at 29. The pre-trial colloquy during which the

district court explained its difficulties with plaintiff’s

position provides ample support for the district court’s ruling

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allowing defendant to put before the jury evidence of

plaintiff’s motive and opportunity to burn its own boat. The

matter of the admissibility of this evidence and its prejudicial

effect was debated at length, with due consideration to the

rulings we made in Ferrara I and the nature of the evidence as

a whole.

Judge Harrington correctly isolated the issue as one

of balancing prejudice against the demonstrably probative value

of the motive and opportunity proffer. As we have said in the

past,

The fact that a piece of evidence hurts a
party’s chances does not mean it should
automatically be excluded. If that were
true, there would be precious little left in
the way of probative evidence in any case.
The question is one of “unfair” prejudice -
- not of prejudice alone.

Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.

1987)(quotation marks omitted). See also Dollar v. Long

Manufacturing, N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)

(“Virtually all evidence is prejudicial or it isn't material.

The prejudice must be 'unfair'."), cert. denied, 435 U.S. 996,

98 S. Ct. 1648, 56 L. Ed. 2d 85 (1978). Although evidence of

motive and opportunity would plainly further defendant’s case at

the plaintiff’s expense, plaintiff failed to show unfair

prejudice. Given this, and the obvious relevance of the

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evidence to the defendant’s affirmative defense, the district

court did not abuse its discretion when it denied F&D’s motion

to exclude.

B. John Malcolm’s Expert Testimony as to Cause and Origin

Much of the two-week trial before Judge Harrington was

a battle between the experts concerning whether the fire was

accidental or of incendiary origin. Defendant’s expert, John

Malcolm, concluded that the fire on the TWO FRIENDS had three

points of origin and was deliberately set. Plaintiff’s expert,

Paul Sullivan, testified that an accidental electrical fire

started in the lower electrical panel and exploded in a so-

called flash-over igniting everything in the super-heated

compartments of the vessel.

Beyond the conflicting expert opinions, the battle also

raged over whether John Malcolm should be allowed to testify as

St. Paul’s cause-and-origin expert. It is on this issue that

F&D appeals. F&D contends that John Malcolm should not have

been permitted to render an expert opinion as to cause and

origin because (1) his opinion was based on unreliable data,

viz, data not collected by him personally and (2) St. Paul

failed to supplement its expert disclosures to include Malcolm’s

testimony regarding cause and origin. Before going into the

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merits of these arguments, we recount the history of Malcolm’s

involvement in this case.

As soon as four days after the fire, St. Paul had hired

Fred O’Donnell as its expert to investigate the origin and cause

of the fire. Fred O’Donnell then hired John Malcolm as an

electrical systems expert to assist him in that investigation.

On July 8, 1993, the two men began their investigation on site

in Gloucester where the boat remained moored.

O’Donnell and Malcolm worked closely with each other.

Malcolm testified that together, sometimes with Malcolm holding

the measuring tape for O’Donnell, the two took measurements of

the vessel in preparation for producing scale drawings to assist

in the investigation and their report. Although Malcolm’s job

for which O’Donnell had retained him was to pay close attention

to the boat’s electrical system, the two men worked in tandem,

often double-checking each other’s observations and analyses by

calling each other over to various burn sites on the vessel to

coordinate their data collection and inquiries.

During the first two trials, O’Donnell and Malcolm both

testified as experts, O’Donnell as to the fire’s cause and

origin and Malcolm as to related but narrower questions

concerning the fire and the boat’s electrical system.

Unfortunately, however, between the first appeal and the third

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trial, O’Donnell died. For the third trial, then, instead of

replacing O’Donnell with an outside cause-and-origin expert,

defendant decided that Malcolm would testify as St. Paul’s only

fire expert, providing opinions on both cause and origin and the

vessel’s electrical system. This decision is the source of

F&D’s objection regarding the admissibility of Malcolm’s

testimony. F&D argued to the district court, as it does to us

now, that Malcolm was not competent to testify as to cause and

origin as his testimony was principally based not on his own

observations but on those made by O’Donnell. F&D also argues

that designating Malcolm as a cause-and-origin expert so close

to trial unduly prejudiced their case against St. Paul. At

least, F&D contends, St. Paul should have supplemented its

interrogatory answers and expert reports to include Malcolm’s

anticipated expanded testimony.

To the extent, if at all, that F&D is complaining that

Malcolm lacked qualifications sufficient for the court to permit

him to testify as a cause-and-origin expert, that complaint is

unavailing. After considering Malcolm’s training and

experience, the district court, acting pursuant to Federal Rule

of Evidence 702, ruled that Malcolm was qualified. That ruling

fell within the broad purview of the trial court’s discretion.

See Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir.

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2000) (“It is well-settled that 'trial judges have broad

discretionary powers in determining the qualification, and thus,

admissibility, of expert witnesses.’”) (citing Richmond Steel

Inc. v. Puerto Rican Am. Ins. Co., 954 F.2d 19, 20 (1st Cir.

1992)). Malcolm’s qualifications as a fire analyst are, in

fact, considerable. He has master and journeyman electrical

licenses from Massachusetts and New Hampshire; he has been

consulting as a fire investigator since 1963; and, in 1991, he

was qualified as a Certified Fire Investigator by the

International Association of Arson Investigators. Malcolm had

been qualified twice before as an expert in this case to render

an opinion regarding the electrical system’s contribution to the

fire aboard the vessel.4 After hearing Malcolm’s testimony

4F&D argues in an aside that Malcolm’s qualifications as a
cause-and-origin expert were rejected by two previous trial
judges and that this is proof that Malcolm should not have been
able to testify as a cause-and-origin expert during the third
trial before Judge Harrington. It is not clear to us, however,
that the two judges presiding in the previous trials believed
that Malcolm lacked qualifications as a cause-and-origin expert.
These judges limited Malcolm’s testimony to electrical systems
in trials where O’Donnell was offered as the defendant’s cause-
and-origin expert. Limiting Malcolm’s role where someone else
was tendered as the cause-and-origin expert expedited the trial
by eliminating duplicative testimony. Neither district judge
determined that Malcolm was not qualified as an expert on cause
and origin should O’Donnell have failed to testify.
Furthermore, the views of prior judges about Malcolm would be
largely irrelevant here. A presiding judge has broad discretion
in his or her determinations regarding expert qualifications.
See Poulin v. Greer, 18 F.3d 979, 984 ( 1st Cir. 1994); cf.
General Elec. v. Joiner, 522 U.S. 136, 142-43, 118 S. Ct. 512,

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regarding his knowledge, skill, experience and training in fire

analysis, Judge Harrington exercised sound discretion in

concluding that Malcolm was qualified to render an expert

opinion on cause and origin as well as on the vessel’s

electrical system. See Richmond Steel, 954 F.2d at 20.

1. Rule 703 Objection

F&D’s next objection, although not crafted as such, is

essentially a Rule 703 objection. F&D claims that Malcolm’s

opinion as to cause and origin was based on unreliable data,

viz, data provided by the late Fred O’Donnell and not that which

was collected through Malcolm’s own personal observation.

A major problem with this argument is that Malcolm

himself had visited the fire scene and examined the evidence

there side by side with O’Donnell. Besides looking at burn

patterns and studying the electrical system, he took

measurements and photographs and wrote his own report. He also

interviewed the vessel’s engineer. Many photographs of evidence

at the scene were entered into evidence by stipulation. Hence,

517, 139 L. Ed.2d 508 (1997) (holding that appeals courts review
trial court decisions to admit or exclude expert testimony under
Daubert on an abuse of discretion standard). Circumstances
change from trial to trial, and admissibility rulings may also
change from judge to judge and trial to trial.

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it is simply not the case that Malcolm’s cause-and-origin

opinion rested mainly upon O’Donnell’s investigations.

To be sure, Malcolm’s opinion coincided with

O’Donnell’s and he testified that he read O’Donnell’s report in

preparation for his expert testimony, along with the report of

the local fire department. But the opinion he rendered was his

own, and, as said, he had first-hand knowledge of the fire scene

and the observable facts there upon which to base that opinion.

Federal Rule of Evidence 703 allows Malcolm to have taken

O’Donnell’s report and opinion into account when forming his own

expert opinion. So long as the basis of Malcolm’s opinion did

not extend beyond facts or data “of a type reasonably relied

upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be

admissible in evidence.” Fed. R. Evid. 703. We think a cause-

and-origin expert like Malcolm could be expected to examine the

report of another expert like O’Donnell as well as the fire

department’s report in the course of forming his own opinion

derived from a variety of sources, including his own first-hand

knowledge of the primary evidence at the fire scene. See

Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 770 (1st

Cir. 1986).

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 This court has said that when an expert relies on the

opinion of another, such reliance goes to the weight, not to the

admissibility of the expert’s opinion. See Forrestal v.

Magendantz, 848 F.2d 303, 306 (1st Cir. 1988). See also Newell

Puerto Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 21 (1st Cir.

1994)(“When the factual underpinning of an expert opinion is

weak, it is a matter affecting the weight and credibility of the

testimony -- a question to be resolved by the jury.”). In the

present case, the jury understood that Malcolm’s observations

coincided with those of the deceased expert hired by defendant

and that, until recently, Malcolm’s only job was to advise and

supplement O’Donnell’s conclusions as to the cause and origin of

the fire with his own opinion concerning the role of the

vessel’s electrical system in the fire. Thus, in weighing and

evaluating Malcolm’s opinion, the jury was able to determine

whether it was in some way weakened by reliance upon

O’Donnell’s.

We find no error in the district court’s ruling that

Malcolm’s opinion as to cause and origin was properly admitted.

2. No Prejudice in Last-Minute Expert Designation

F&D’s next objection to Malcolm’s testimony is that F&D

was prejudiced by Malcolm’s tardy designation as the cause-and-

origin expert. On June 21, 1999, at the first pre-trial

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conference before Judge Harrington following the mandate from

this court, St. Paul informed both F&D and the district court of

its decision to proceed without a replacement for O’Donnell and

with Malcolm as both its cause-and-origin expert and its

electrical systems expert. The trial was set for October 4,

1999, more than three months later. F&D contends that three

months before the trial was too late to be designating a new

expert. Furthermore, F&D contends that had St. Paul wished to

avoid the prejudice of such a tardy expert designation, St. Paul

should have supplemented its answers to interrogatories naming

Malcolm as the substitute expert for the late O’Donnell and

disclosing the content of his expanded testimony.

At a final pre-trial conference on October 1, 1999,

Judge Harrington heard arguments and informed both parties that

as long as defendant could qualify Malcolm as an expert on cause

and origin, his testimony as to cause and origin would be

admitted. Also at that pre-trial conference, Judge Harrington

allowed plaintiff to add an expert to its witness list (Paul

Sullivan) under the condition that defendant be given the

opportunity to depose the additional expert before the trial.

Plaintiff did not request additional time to depose Malcolm,

however, presumably because Malcolm had testified previously as

an electrical expert at both trials and because St. Paul

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represented that Malcolm’s testimony as to cause and origin

would be substantially similar to the late O’Donnell’s testimony

on cause and origin.

We find no merit in F&D’s argument that June 21, 1999

was too late to designate a new expert. F&D itself designated

a replacement expert less than two weeks before trial. However,

F&D rightly objects to St. Paul’s failure to supplement its

interrogatory answers or its expert reports naming Malcolm as

the substitute expert for the late O’Donnell and adding

Malcolm’s expanded testimony pursuant to Rule 26 of the Federal

Rules of Civil Procedure. See Fed. R. Civ. P. 26(e)(1)

(requiring a party to supplement its answers to interrogatories

in order to inform another party of a material change in or

addition to information contained in an expert’s pre-trial

report). As we have stated, “[t]his supplementation requirement

increases the quality and fairness of the trial by narrowing

[the] issues and eliminat[ing] surprise.” Licciardi v. TIG Ins.

Group, 140 F.3d 357, 363 (1st Cir. 1998)(alterations in

original)(quotation marks and citations omitted). The question

here is whether St. Paul’s failure to adhere strictly to the

requirements of Rule 26(e)(1) – failing to substitute Malcolm

for O’Donnell as its cause-and-origin expert in their expert

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disclosures – thwarted the reason for the rule and materially

prejudiced F&D in its efforts to present its case.

A careful review of the record convinces us that F&D

suffered no actual prejudice. First, F&D in fact had notice of

Malcolm’s designation as the cause-and-origin expert as early as

June 1999, more than three months before the trial date. See

Newell Puerto Rico, 20 F.3d at 20. F&D moved neither to

redepose Malcolm (as St. Paul did of F&D’s newly designated

expert Paul Sullivan) nor for a continuance of the trial.

Second, there was no meaningful change in the testimony

presented by St. Paul regarding cause and origin from the first

trial to the third. The only consequential change to which F&D

objects was that O’Donnell’s cause-and-origin testimony was

replaced by similar testimony from Malcolm. Yet not only was

Malcolm’s testimony similar to O’Donnell’s, Malcolm himself was

not an unknown quantity to F&D. He had testified as an expert

witness in the two previous trials and had made clear as early

as in 1995, during deposition testimony and trial testimony,

that he thought the fire was deliberately set with three points

of origin. For this reason, F&D’s contention that the content

of Malcolm’s expert opinion came as a surprise is unpersuasive.

This is not a case in which the expert’s testimony departed from

the general scheme of his opinion or any other expert opinion

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submitted to F&D on behalf of St. Paul’s case. Nor is it a case

in which a party was hindered in its ability to formulate a

response or adequately cross-examine the new expert as to the

foundations for his opinion. See Johnson v. H.K. Webster, Inc.,

775 F.2d 1, 8 (1st Cir. 1985) (stating that among the factors to

consider when assessing a claim of error under Rule 26 is “the

ability of the [opposing party] to formulate a response”). When

asked during oral argument of this appeal whether Malcolm’s

testimony was contrary to or in a material way different from

his opinion as contained in the reports submitted to F&D, F&D’s

counsel conceded that Malcolm did not change his opinion, but

rather he only expanded its scope to include that which was

previously encompassed by O’Donnell’s testimony and reports. As

we can see no material prejudice, we affirm the trial court’s

admission of Malcolm’s testimony. In so doing, we of course do

not condone St. Paul’s failure to adhere to its Rule 26(e)(1)

obligations, a mistake which has needlessly burdened the parties

and this court with an appellate issue.

C. Malcolm’s Reference Under Cross-Examination to Protective

Order

Plaintiff’s third claim of trial error concerns a

purported violation of a protective order into which the parties

entered in 1995. Plaintiff contends that John Malcolm’s

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response to a question on cross-examination was a deliberate

disclosure of information subject to that protective order and

so prejudiced the case against F&D that Judge Harrington abused

his discretion when he failed to grant plaintiff’s motion for a

mistrial. In context of the whole colloquy between plaintiff’s

counsel and Malcolm, Judge Harrington’s instructions to the jury

and Malcolm’s answer to plaintiff’s follow-up question, we find

no prejudice and no trial error. Before we explain, some

background history is necessary.

In 1995, during a pre-trial conference preceding the

first trial, another district judge issued a protective order

that was to follow the parties throughout the case before him

and through any subsequent proceedings. That order prevented

any mention during trial of an alleged anonymous police

informant who, among other things, reported witnessing a man

running away from the F/V TWO FRIENDS just moments before the

fire began. (The order resulted from the refusal of the police

officer to name the informant.) Although the testifying experts

in the case, including John Malcolm, knew of the anonymous

informant and of the protective order, the specter of the

anonymous informant remained out of the jury’s view until, at

least, the incident in question.

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 During the third trial, in an apparent attempt to draw

the jury’s attention to the alleged fact that Malcolm had

limited personal knowledge of the fire scene, plaintiff began

grilling Malcolm on cross-examination as to the source and depth

of his knowledge. Plaintiff asked:

Question: “You didn’t discover in your
investigation of this fire any
witnesses to the fire, did you?”
Malcolm: “Myself, no, because again –“
Question: “Okay, you found no witnesses to
the fire. In fact, the
information you have is that
nobody was on that vessel for a
full ten hours prior to the
Gloucester Fire Department
responding to that fire; isn’t
that right? Isn’t that the
information that you have?”

Aware that there were allegations of such an eyewitness, but

that he was not allowed to say so, Malcolm responded: “Well, I

have some other information that I don’t believe we’re supposed

to talk about.”

An immediate side-bar ensued during which Judge

Harrington, who had no knowledge of the protective order,

learned of its purpose and parameters. Plaintiff moved for a

mistrial. Judge Harrington denied plaintiff’s motion and

solicited suggestions from both counsel about how to correct the

erroneous disclosure. Counsel discussed various ways of

rephrasing the question so that Malcolm would deny any personal

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knowledge of witnesses to the fire. When the side-bar ended,

Judge Harrington instructed the jury that the last question and

the last answer were stricken and were not to be considered

evidence in the case. Plaintiff’s counsel then asked the

following question -- “Mr. Malcolm, you have no personal

knowledge that anyone was on that vessel for ten hours before

the Gloucester Fire Department responded to that fire; is that

correct?” -- to which Malcolm replied, “That’s correct.”

Plaintiff’s counsel continued with the cross-examination and the

matter was left to rest, never to be mentioned again until the

post-trial motion for sanctions.

Our decision to uphold the district court’s ruling

requires only a brief explanation. First, Malcolm’s initial

response to plaintiff’s question did not reveal the existence of

an anonymous informant with information tending to show that the

fire aboard the F/V TWO FRIENDS was an act of arson, an answer

prohibited by the protective order. To the contrary, all

Malcolm’s answer suggested was that he had some other

information about the circumstances surrounding the fire that he

was not permitted to reveal. Whether the information that he

had and that he was required to keep confidential would further

plaintiff’s case or defendant’s case was not clear from

Malcolm’s statement. Furthermore, had Malcolm affirmed, as

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plaintiff desired, that the information he had was that nobody

was on the vessel for a full ten hours prior to the Gloucester

Fire Department responding to that fire, Malcolm would have

been stating a literal untruth. A better phrased question, such

as the one that followed the side-bar, would have side-stepped

any trouble, enabling Malcolm to testify truthfully yet adhere

to the terms of the protective order.5

Second, any remote prejudice that plaintiff could

arguably claim is alleviated by Malcolm’s answer to plaintiff’s

follow-up question and by Judge Harrington’s curative

instructions, striking the first question and answer. Judge

Harrington immediately instructed the jury to strike the first

question and answer, that they were not to consider it as

evidence in the case. See United States v. Sepulveda, 15 F.3d

1161, 1184 (1st Cir. 1993) (stating that “[s]wiftness in

5 Compare the first question,

“Okay, you found no witnesses to the fire. In fact,
the information you have is that nobody was on that
vessel for a full ten hours prior to the Gloucester
Fire Department responding to that fire; isn’t that
right? Isn’t that the information that you have?”

with the second, follow-up question,

“Mr. Malcolm, you have no personal knowledge that
anyone was on that vessel for ten hours before the
Gloucester Fire Department responded to that fire; is
that correct?”.

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judicial response is an important element in alleviating

prejudice once the jury has been exposed to improper

testimony”). It is presumed that the jury will follow such

instructions unless “it appears probable that ... responsible

jurors will not be able to ... and, moreover, that the testimony

will likely be seriously prejudicial to the aggrieved party.”

Id. at 1185. Plaintiff cannot show a likelihood of prejudice as

Malcolm’s response to F&D’s follow-up question, a slightly

different (but better) version of the first question, see note

7 supra, placed before the jury the favorable testimony that F&D

had sought from the original question. The jury heard Malcolm’s

unqualified denial that he had any personal knowledge that

someone had been aboard the F/V TWO FRIENDS between the hours of

4:30 p.m. on July 2nd and 2:30 a.m. on July 3rd of 1993.

In sum, Judge Harrington’s rapid curative instruction

in addition to the follow-up question and answer eliminated any

remote possibility of prejudice. Judge Harrington did not abuse

his discretion in denying defendant’s motion for a mistrial.

See Sepulveda, 15 F.3d at 1184 (standard under which the

appellate court reviews the district court’s granting or denial

of a motion for a mistrial is abuse of discretion).

III. REMAINING ISSUES

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 Plaintiff raises two other issues on appeal, both of

which lack merit. We discuss them briefly below.

A. Plaintiff’s Post-Trial Motion for Sanctions

After the jury returned a verdict for the defendant,

F&D filed a host of post-trial motions, among them a motion for

sanctions based on what it alleges was a “knowing violation of

the [protective order]. It is the plaintiff’s position that this

violation was intentional, and that the statement was made with

the explicit purpose of prejudicing the jury.” When considered

along side of other purported discovery abuses, plaintiff claims

that the district court’s denial of sanctions was an abuse of

discretion.

As we have already determined, Malcolm’s answer was not

unwarranted in response to the question asked. His interrogator

was at least as much at fault as Malcolm in eliciting an answer

that skirted the outer limits of the protective order.

Moreover, F&D suffered little if any prejudice from the

exchange. In the circumstances, and taking into account the

fact that the district judge, who had lived with the case, was

unpersuaded that plaintiff had cleared the high hurdle required

to support a claim of fraud on the court or a motion for

sanctions, we can only affirm the district court’s ruling

denying plaintiff’s motion for sanctions. See Spiller v. U.S.V.

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Laboratories, Inc., 842 F.2d 535, 537 (1st Cir. 1988) (stating

that a party complaining to an appellate tribunal with respect

to trial-level sanctions "bears a heavy burden of demonstrating

that the trial judge was clearly not justified in entering [the]

order"). See also Anderson v. Beatrice Foods Co., 900 F.2d 388,

393 (1st Cir. 1990) (stating that the hard-to-meet standard of

abuse of discretion is a “rule ... anchored in common sense” and

quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082

(1st Cir. 1989) with its explanation that because "[d]istrict

judges live in the trenches....[they] are, by and large, in a

far better position than appellate tribunals to determine the

presence of misconduct and to prescribe concinnous remedies").

We see no abuse of discretion.

B. Plaintiff’s Challenge to Ferrara I

Plaintiff’s remaining challenge to the judgment below

is an assertion that the district court “erred in following the

reasoning of the United States Court of Appeals in the case of

[Ferrara I], in concluding that the defendant need only prove

that the fire in question was incendiary in nature or

deliberately set.” Appellant’s Brief at 10. Citing United

States v. Rivera-Martinez, 931 F.2d 148 (1st Cir. 1991),

plaintiff argues that the district court should have reevaluated

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this court’s reasoning and deviated from the holding of Ferrara

I in order to avoid manifest injustice.

Putting aside the impropriety of asking a district

court to overturn a determination made by this court, we observe

that plaintiff never asked Judge Harrington to deviate from the

holding of Ferrara I. On the contrary, during a pre-trial

colloquy, the parties discussed with the district court the way

to best formulate jury questions and decide issues of

admissibility of evidence in light of the holding of Ferrara I.

The wording of the question put to the jury, “Do you find that

the defendant ... has established by a preponderance of the

evidence that the fire was of an incendiary nature or

deliberately set?”, was stipulated to by both parties, obviating

any possible claim at this time that the question itself

oversimplified Ferrara I’s holding. It is axiomatic that an

issue not presented to the trial court cannot be raised for the

first time on appeal absent plain error. See Hammond v. T.J.

Litle & Co., Inc., 82 F.3d 1166, 1172 (1st Cir. 1996). Nor are

there reasons apparent from the record for abandoning the law of

the case doctrine. See Rivera-Martinez, 931 F.2d at 151 (citing

the “litany of exceptional circumstances sufficient to sidetrack

the law of the case” -- such as “the evidence on a subsequent

trial was substantially different, controlling authority has

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since made a contrary decision of the law applicable to such

issues, or the decision was clearly erroneous and would work a

manifest injustice”).

For all of these reasons, we find no error in the

district court’s rulings. The judgment below is affirmed.

So ordered. Costs to appellee.

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