Hochen Ex Rel. Estate of Hochen v. Bobst Group, Inc.

United States Court of Appeals
For the First Circuit

No. 00-1841

ISMAR HOCHEN, AS ADMINISTRATOR OF THE ESTATE OF ISMAEL HOCHEN;
RICHARD DUFAULT; CHRISTINE DUFAULT, INDIVIDUALLY AND AS MOTHER AND
NEXT FRIEND OF RICHARD DUFAULT, JR.; LEAH DUFAULT,

Plaintiffs, Appellants,

v.

BOBST GROUP, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Janet H. Pumphrey for appellants.
John J. St. Andre, St. Andre Law Offices, Michael K. Gillis,
Gillis & Bikofsky, PC, Matthew P. McCue, and Mirick, O'Connell,
DeMallie & Lougee, LLP, on brief for Massachusetts Academy of Trial
Attorneys, amicus curiae.
Kevin G. Kenneally, with whom John A. Donovan, Jr. and Donovan
Hatem LLP, were on brief, for appellee.
 May 16, 2002

STAHL, Senior Circuit Judge. Plaintiffs-appellants Ismael

Hochen ("Hochen") and Richard Dufault ("Dufault") were injured on

August 2, 1994, as a result of an explosion in a printing press at

their place of employment, Avery Dennison Corporation ("Avery").1

Hochen and Dufault subsequently brought suit against defendant-

appellee, the Bobst Group, Inc. ("Bobst"),2 claiming liability for

negligence, failure to warn, and breach of warranty, in connection with

Bobst's activities related to the printing press in 1971 and 1972 and

in 1994. In separate rulings, the district court granted Bobst's

motions for (1) partial summary judgment on all claims arising out of

its activities in 1971 and 1972; (2) partial summary judgment on the

breach of warranty and failure to warn claims arising out of Bobst's

activities in 1994; and (3) judgment as a matter of law on the

remaining negligence claims. Appellants now ask us to review the first

1
Ismael Hochen has died since the commencement of this
lawsuit and Ismar Hochen, the administrator of his estate, has
been substituted as plaintiff-appellant. The remaining three
plaintiffs are the wife and children of Dufault.
2The suit was originally filed by Ismael Hochen in Middlesex
Superior Court in March 1996. In April 1996, the complaint was
amended to add the Dufault family. In June 1996, Bobst removed
the case to federal court pursuant to 28 U.S.C. §§ 1332 and
1446.

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and third rulings as well as the district court's decision to exclude

testimony by their expert witness. We affirm.

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 I. BACKGROUND

In 1971 and 1972, Bobst designed and constructed the press

in question, Press 8 (the "press"), following Avery's custom

specifications and requirements, and installed it at Avery's facilities

in Framingham, Massachusetts. The press, which printed labels for a

variety of products, weighed 38 tons, was approximately 85 feet in

length, and was affixed to the plant's floor, ceiling, walls and

various utility systems. It operated in the following way: A spool of

paper -- the "web"-- after entering through an "infeed," was pulled

through a number of print stations, and rewound after passing through

an "outfeed." The outfeed pulled the web through and the infeed

followed. In the process, the paper was inked and then moved through

a gas powered dryer before reaching the outfeed. Highly flammable

solvents were used to keep the printing ink liquid.

In 1994 Avery undertook a project to upgrade the press.

Although Avery decided to conduct the upgrade with in-house employees,

it requested that Bobst send field technicians to the plant for several

days to work on the installation of two used pieces of equipment, an S-

1480 Registron control system (the "S-1480") and an R-820 infeed

electronic system (the "R-820 infeed"). The S-1480 was an electronic

registration device that helped identify the relative position to each

other of successive colors being printed on a label and adjusted the

print cylinders to ensure their proper alignment. The R-820 infeed

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electronic system was a part of the infeed that, along with a companion

R-820 outfeed system, controlled the tension of the paper web as it

passed through the press. For the press to operate correctly, the same

tension of the web had to be maintained throughout the entire printing

process. Tachometers on the press measured web speed and sent voltage

signals that allowed different parts of the press to operate in a

synchronized fashion. Bobst technicians installed one tachometer as

part of a component of the S-1480 called an auto-sequencer. The

parties disagree as to whether Bobst had a duty to synchronize the

voltage signal of this tachometer with the voltage signals of other

devices on the press -- and specifically with the voltage signal from

a tachometer in the outfeed unit -- and as to whether the auto-

sequencer was intended to be operational at all at the time of the

installation.

The Bobst technicians worked at Avery from approximately

June 26, 1994 to July 3, 1994. The parties strongly contest how

Bobst's services during this period should be characterized.

Appellants argue that Bobst was hired to install, start up, and debug

the S-1480 and R-820 infeed because they were the "experts" on these

devices. Bobst counters that its field technicians were hired only to

fill in a labor shortage arising out of vacations taken by Avery's own

employees and that Avery intended to complete the work with its own

electricians and tradesmen. In any case, the record indicates that

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Avery discharged Bobst's technicians shortly before the 4th of July

weekend, at a time when the press was not operational, telling them

that they would be called back if needed.

On August 2, 1994, an explosion in the press injured Hochen

and Dufault. Appellants brought suit against Bobst, alleging that

Bobst was liable for negligence, failure to warn, and breach of

warranty in connection with its activities involving the design and

installation of the press in 1971 and 1972 and involving the upgrade in

1994. With regard to the 1994 upgrade, appellants' theory was

essentially that Bobst failed to correct voltage problems with the

press's tachometers, leading to problems with web tension. Avery

employees testified that, on the day of the explosion, the web had so

much slack that it was dipping into one of the ink pans before shooting

into the dryers and appellants argued that the flammable solvents in

the ink caused the explosion in the dryer. However, the record

evidence indicates that there were other problems with the press on the

day of the explosion, including the fact that fan blades in the exhaust

fan above the print unit where the explosion occurred had been

installed backwards by Avery employees, preventing solvents from being

exhausted out of the dryer.

On December 5, 1997, the district court granted Bobst's

motion for partial summary judgment on all claims arising out of any

deficiency or neglect by Bobst in the design, construction, or

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installation of the press in 1971 and 1972, holding that these claims

were barred by Massachusetts's six-year statute of repose, Mass. Gen.

L. ch. 260 § 2B, concerning improvements to real estate. Hochen v.

Bobst Group, Inc., No. 96-11214-DPW, R. Doc. 56 (D. Mass. Dec. 5,

1997). The parties thereafter consented to proceed before a

magistrate judge for trial and entry of judgment pursuant to 28

U.S.C. § 636(c). On May 10, 2000, the magistrate judge further

entered summary judgment in favor of Bobst on the breach of warranty

and failure to warn claims related to Bobst's activities in 1994.

Hochen v. Bobst Group, Inc., No. 96-11214-RBC, R. Doc. 234 (D. Mass.

May 10, 2000).

The negligence claims relating to the 1994 upgrade -- the

only claims to survive the two summary judgment motions -- went to

trial before a jury in May 2000. On May 19, 2000, in a bench ruling,

the magistrate judge excluded the testimony of appellants' expert

witness, Daniel Harwood, on these claims and granted Bobst's motion for

judgment as a matter of law on the issue of negligence, thereby

disposing of the case. Hochen v. Bobst Group, Inc., No. 96-11214-RBC,

R. Doc. 264 (D. Mass. May 19, 2000).

Here, appellants ask us to review three of the district

court's rulings: (1) the order granting summary judgment to Bobst on

claims held to be barred by the statute of repose; (2) the ruling

excluding testimony by appellants' expert witness; and (3) the ruling

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granting Bobst's motion for judgment as a matter of law on the

negligence claims. Appellants do not appeal the summary judgment

ruling in favor of Bobst on the breach of warranty and failure to warn

claims related to Bobst's activities in 1994. We affirm the exclusion

of the expert witness testimony and the grant of judgment as a matter

of law on the 1994 negligence claims. We also affirm the district

court's 1997 grant of summary judgment in favor of Bobst on the claims

arising out of Bobst's activities in 1971 and 1972, but on grounds

other than the statute of repose.

II. CLAIMS ARISING OUT OF 1971-1972 ACTIVITIES

On appeal, Bobst contends that the statute of repose question

is moot.3 Bobst argues that, even if we were to find that the statute

of repose does not bar appellants' claims arising out of the design,

manufacture, and installation of the press in 1971 and 1972, the claims

must fail because appellants never designated any relevant expert

opinion testimony. Such designation is required under Rule 26(a)(2) of

the Federal Rules of Civil Procedure. Without the qualified expert

opinion testimony, Bobst argues, appellants could not submit their

claims to the jury, even if we were to remand the case for retrial as

to their 1971 and 1972 claims.

3
Appellants had previously filed a motion to certify the
statute of repose question to the Supreme Judicial Court of
Massachusetts. We note that, because we do not reach the
statute of repose question, appellants' motion is moot.

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 After a review of the record, we agree with Bobst that

appellants failed to designate any expert testimony on any purported

design defects, manufacturing defects, or breaches of warranties in the

original design, manufacture or construction of the printing press or

its components. A fair reading of the reports filed by Harwood is that

they speak only to alleged negligence, failure to warn, or breach of

warranty claims stemming from Bobst's role in the upgrade of the press

in 1994.4 Despite their protestations to the contrary, neither in their

briefs nor in oral argument have appellants pointed us to any sections

of the filed expert reports that could be characterized as raising an

issue related to the 1971-1972 design, construction, and installation

of the press.

Although, under Massachusetts law, expert testimony may

not be required in cases where the jury can find a design or

manufacturing defect based on the testimony of the injured or of

co-workers, here the nature of the defect or breach of warranty

and its causal relation to the accident were complex and thus

appropriately the subject of expert testimony. See Gofredo v.

Mercedes-Benz Truck Co., 520 N.E.2d 1315, 1318-19 (Mass. 1988).

We accordingly hold that appellants cannot succeed on their claims of

4
As we have mentioned supra and delineate further in section
III, the magistrate judge correctly excluded Harwood's expert
testimony on the upgrade-related claims, so that ultimately
appellants have presented no admissible expert testimony on any
of their claims.

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alleged deficiency, neglect or breach in the design, manufacture, and

installation of the press in 1971 and 1972 and decline to reach the

issue of the statute of repose.5

III. NEGLIGENCE CLAIMS ARISING OUT OF 1994 ACTIVITIES

In order to succeed on a claim of negligence at trial,

appellants were required to establish that (1) Bobst owed them a duty

of care, (2) Bobst breached that duty, and (3) Bobst's breach of the

duty caused the injury to appellants. See Davis v. Westwood Group, 652

5We note that we may rule on the sufficiency of appellants'
expert testimony at the appeals stage and need not give
appellants the opportunity to cure the deficiency in the expert
reports by remanding to the district court. In Weisgram v.
Marley Co., 528 U.S. 440 (2000), the Supreme Court held that an
appeals court could enter judgment as a matter of law for a
verdict loser on appeal, where the verdict winner's evidence
became insufficient after the court of appeals determined that
certain evidence should not have been admitted. The Court found
"unconvincing [plaintiff's] fears that allowing courts of
appeals to direct the entry of judgment for defendants will
punish plaintiffs who could have shored up their cases by other
means had they known their expert testimony would be found
inadmissible." Id. at 455-56. The Court pointed out that the
plaintiff had been "on notice every step of the way" that
defendant was challenging his experts, but that plaintiff had
made no attempt to cure the deficiency. Id. at 456. Although
the procedural posture of this case is different -- the trial
court never ruled on the sufficiency of the plaintiffs' expert
testimony as to the product defect claims -- we believe that the
same principle holds here. Appellants had been put on notice by
Bobst as to challenges to their expert in several objections and
oppositions filed by Bobst to Harwood's qualifications and
testimony. We therefore see no unfairness to appellants in our
current ruling. Additionally, appellants conceded at oral
argument that we need not reach the statute of repose question
if the expert opinion on the claims in question was determined
to be inadequate.

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N.E.2d 567, 569 (Mass. 1995). The dispute between the parties has

centered on whether Bobst had a duty to synchronize the voltages of the

various components of the press and, if so, whether Bobst's failure to

do so was the cause of the explosion that injured appellants.

Appellants ask us now to find first that the magistrate judge abused

his discretion in excluding testimony by their expert witness, which

was directed to the issues of duty and causation. Second, appellants

argue that, even without the expert testimony, they had made out a

prima facie case of negligence that should have been submitted to the

jury.

A. Exclusion of Expert Testimony

At trial, appellants offered testimony by Harwood to support

their claims of negligence by Bobst in its activities relating to the

1994 upgrade of the press. Harwood's testimony would have addressed,

first, the scope of the work assigned to Bobst by Avery, and, second,

the cause of the explosion in the gas dryer. On the first issue, the

magistrate judge held that Harwood's testimony as to what the Bobst

technicians' work orders meant was irrelevant because the terms should

be interpreted from the perspective of a field technician and not from

the perspective of an engineer. As to the second issue, the magistrate

judge held that Harwood's testimony with respect to the press was not

reliable because "the testimony is not based on a sufficient knowledge

of the machine."

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 Rule 702 of the Federal Rules of Evidence assigns to the

trial judge the responsibility for ensuring that an expert's testimony

as to scientific, technical, or other specialized knowledge "both rests

on a reliable foundation and is relevant to the task at hand." Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see also Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (holding that

Daubert applies to expert testimony as to technical and other

specialized knowledge in addition to scientific knowledge). "The

ultimate purpose of the Daubert inquiry is to determine whether the

testimony of the expert would be helpful to the jury in resolving a

fact in issue." Cipollone v. Yale Indus. Prod., Inc., 202 F.3d 376,

380 (1st Cir. 2000). We accord the trial court broad deference in its

determination as to the reliability and relevance of expert testimony,

reviewing the determination only for abuse of discretion. See Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997); Diefenbach v. Sheridan

Transp., 229 F.3d 27, 29 (1st Cir. 2000). Appellants nevertheless urge

us to find that the magistrate judge abused his discretion in excluding

Harwood's testimony. We decline to do so. First, a review of the

extensive voir dire hearings held by the magistrate judge establishes

that Harwood showed little knowledge in the fields of fires and

explosions. Second, although we are mindful of appellants' position

that Harwood's expertise in electronic controls, and not in explosions,

constituted his essential contribution to explicating this industrial

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accident, the voir dire hearing transcript is replete with substantial

challenges to Harwood's knowledge of the electronic controls of the

specific press in question here. In this context, we cannot say that

the magistrate judge abused his discretion in excluding Harwood's

testimony as to causation.6 Finally, on the question of the proper

perspective from which the work orders were to be interpreted, where

the record indicates that the work on the R-820 and the S-1480 was

assigned by Avery employees with backgrounds as electricians or in

electronics, carried out by Bobst employees with similar training and

experience, and approved by the same Avery employees, testimony by an

engineer as to the meaning of the terms would have been of questionable

"relevan[ce] to the task at hand." Daubert, 509 U.S. at 597. Again,

we cannot say that the magistrate judge's decision to exclude Harwood's

testimony on this issue was an abuse of discretion. We therefore

affirm the magistrate judge's ruling.

B. Grant of Judgment as a Matter of Law

6Appellants have argued that the magistrate judge's findings
on this point were inconsistent and contradictory, in that the
magistrate judge stated that he was not finding that Harwood
"was unqualified to have obtained the necessary knowledge and to
give opinion testimony about the machine," but rather that
Harwood had not demonstrated that "he had gained the requisite
degree of knowledge and familiarity with the machine so as to be
able to render reliable testimony." We see no inconsistency in
this statement. The magistrate judge reasonably determined
that, although Harwood could have acquired the familiarity with
the press necessary to make his testimony admissible, the voir
dire hearing demonstrated that he had failed to do so.

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 The third ruling appellants contest is the grant in favor of

Bobst of judgment as a matter of law, pursuant to Rule 50(a) of the

Federal Rules of Civil Procedure, on the negligence claims arising out

of Bobst's work on the press in 1994. Appellants argue that, even

without the expert testimony, they made out a prima facie case of

negligence that should have been submitted to the jury.7 The magistrate

judge found that the appellants had failed to introduce sufficient

evidence as to the duty and causation elements of their negligence

claim. The magistrate judge ruled that the jury could find that a

proximate cause of the explosion was the web slack, leading to the ink-

drenched web entering the dryer. However, the magistrate judge found

(1) that appellants had failed to prove that Bobst had an obligation to

correct any voltage problems the press may have had and (2) that, even

if Bobst had an obligation to correct any problems, appellants offered

no evidence that the un-synchronized voltage was a proximate cause of

the web slack.

We review the grant of a motion for judgment as a matter of

law de novo. See Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 25 (1st

Cir. 1998). Applying the same standard as the district court, we

examine the evidence and all fair inferences in the light most

7
We note that the magistrate judge does not appear to have
relied on the exclusion of the expert testimony in determining
that Bobst was entitled to judgment as a matter of law. The
magistrate judge's discussion of the expert testimony follows
his discussion of the motion for judgment as a matter of law.

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favorable to the non-movant and determine whether the non-movant has

offered "more than a mere scintilla of evidence," warranting the

submission of the issue to the jury. Katz v. City Metal Co., Inc., 87

F.3d 26, 28 (1st Cir. 1996) (internal quotations omitted). We "'may

not consider the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of the evidence.'" Id. (quoting

Richmond Steel, Inc. v. Puerto Rican Am. Ins. Co., 954 F.2d 19, 22 (1st

Cir. 1992)). We will affirm the district court only if, "applying

these standards, the evidence does not permit a reasonable jury to find

in favor of" appellants. Brennan, 150 F.3d at 26.

On the question of duty, appellants urge us to find that the

magistrate judge took too narrow a view of Bobst's role in the upgrade

of the press. The magistrate judge found insufficient evidence that

Bobst had any obligation to work on the tachometer in the outfeed,

which, in the state in which it had been left, allegedly would have

sent a voltage signal to devices in the S-1480 and/or R-820 infeed that

was inconsistent with the signals generated by those devices.

Appellants' argument is essentially that, whether or not Bobst had an

obligation to work on other tachometers within the press, they "had a

duty to install the S-1480 and R-820 infeed onto Press 8 and to check

out, debug, and start-up the press" and "[i]n so doing, they needed to

ensure that all the components of the press worked together

electronically." Appellants point out that Bobst had been provided

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with the electronic drawings that came with the used equipment and

contend that Bobst should have been alerted to a potential problem

concerning the compatibility of the S-1480 and R-820 electronics with

the rest of the press.

We find that appellants have not produced "more than a mere

scintilla of evidence" in support of their theory of duty and that they

therefore cannot withstand a motion for judgment as a matter of law.8

First, the record does not support the argument that Bobst had an

obligation to synchronize the electronic controls of the press.

Appellants have directed us to several segments in the depositions and

trial testimony that allegedly support the position that Bobst had an

obligation to ensure that the electronic systems, as a whole, were

compatible. Much of the cited testimony, however, simply stands for

the proposition that, in order for the press to run properly, the

electronics on the various devices had to be synchronized, and not for

the proposition that Bobst was the party with the obligation to ensure

that these electronics were synchronized. Even where the testimony

suggests that Bobst may have had an obligation to check out the

8We reject up-front appellants' argument that, because the
same magistrate judge stated in a ruling in a related proceeding
that appellants had "at best a 50-50" chance of succeeding in
their case against Bobst, Hochen v. Bobst Group, Inc., 198
F.R.D. 11, 18 (D. Mass. 2000), appellants must have had more
than "a mere scintilla" of evidence in their favor. That
comment is taken out of context in that it presupposes that
appellants could have actually proven everything they alleged.

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electronics on the S-14809 and the R-820 infeed, we find nothing that

could be considered "more than a mere scintilla of evidence" to the

effect that Bobst was required to synchronize the voltage signals on

these systems with voltage signals coming from other devices on the

press.10

Second, even acknowledging that the record of depositions and

testimony is voluminous and the issue at hand complex, so that "more

than a mere scintilla of evidence" suggesting appellants' theory of

9
We note again here that the parties additionally disagree
as to whether the auto-sequencer on the S-1480 was intended to
be operational at all.
10
For example, appellants urge us to read testimony by John
William Guertson, Avery's research and development manager at
the time of the accident, to say that "Bobst was hired to
install the S-1480 electronic system and the electronic system
for the R-820 infeed and that, when they left, presumably, they
had checked out those electronic systems." While Guertson does
testify to the effect that Bobst had checked out the electronic
systems for the R-820 and the S-1480, the testimony continues as
follows:

Q. Is it your testimony that you don't know whether or
not Bobst checked out the electronic system on the
outfeed R-820 rewind?
A. Right.
* * *
Q. But if Bobst came in to do the infeed, is it your
belief that Bobst also, while they were there, would
have also done the outfeed?
A. No, I don't think so.

Hochen v. Bobst Group, Inc., No. 96-11214-RBC, Transcript, vol.
II at 56 (D. Mass. May 16, 2000).

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duty could conceivably be uncovered,11 we find that any duty Bobst may

have had as to the electronics of the system ended when Avery

discharged the Bobst technicians on July 3 . We are not persuaded by

appellants' argument that Bobst should have noticed the voltage problem

and worked to correct it from the beginning of its work, so that it

makes no difference that Bobst may have been terminated before the

completion of the work. To the contrary -- and regardless of how the

parties may have understood the terms "debug" and "start-up" in the

Bobst work orders -- the record cannot be read to support any position

other than that, when the Bobst technicians were discharged on July 3 ,

Avery recognized that the work on the press was not complete, that the

press was not ready to be used, and that Avery would be responsible for

making sure the press functioned as a whole.12

11
Appellants argue that the magistrate judge failed to read
certain deposition testimony and that therefore they were not
"fully heard" as required before the court may grant a motion
for judgment as a matter of law against a party. Fed. R. Civ.
P. 50(a)(1). We have reviewed the sections to which appellants
direct us in those depositions allegedly not read by the
magistrate judge and find no evidence in them that amounts to
"more than a mere scintilla of evidence" in favor of appellants'
theory of duty.
12
Gary W. Guidi, the Avery maintenance supervisor to the
press at the time of the explosion, testified as follows:

Q. At some point did you release the Bobst workers?
A. Yeah. I mean, July 4th is -- we kind of called it
a day and figured we'd come back and start reducing
things to practice and finish up whatever needed to be
done.
Q. So, on July 3rd, when Mr. Verhoeven [a Bobst

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 Because we agree with the magistrate judge that appellants

have not presented "more than a mere scintilla of evidence" in support

of a duty on the part of Bobst to synchronize the voltage signals

coming from the various devices on the press, we need not reach the

question of whether they presented sufficient evidence on the question

of causation.13 We affirm the grant of judgment as a matter of law on

the negligence claims against Bobst arising out of its role in the 1994

upgrade.

IV. CONCLUSION

technician] left, that was with your blessing; right?
A. That's correct.
* * *
Q. And I just want to determine what the status was of
the electronic work at the end of July 3rd, when Mr.
Verhoeven left. Was it completed?
A. I would say, you know, the terminations were done.
The equipment was at a point where it could be reduced
to practice. Find out any -- you could reduce to
practice, find any other issues that may crop up, and
you know, see what happened from that point. It
wasn't to the point where you could say this press is
finished and let's run this press.

Hochen v. Bobst Group, Inc., No. 96-11214-RBC, Transcript, vol.
IV at 51-52 (D. Mass. May 18, 2000).
13
We note that, as with the design defect claims arising out
of Bobst's activities in 1971 and 1972, the alleged causal
relationship between Bobst's activities in 1994 and the accident
is complex and thus appropriately the subject of expert
testimony. Gofredo, 520 N.E.2d at 1318-19. In the absence of
Harwood's excluded testimony, appellants have not presented any
expert evidence on this issue.

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 For the reasons stated above, we affirm (1) the grant of

summary judgment in favor of Bobst on all claims arising out of its

activities in 1971 and 1972; (2) the ruling excluding testimony by

appellants' expert witness; and (3) the grant of judgment as a matter

of law in favor of Bobst on the remaining negligence claims.

Costs to appellee.

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