USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1182
ALLISON WILLIAMS,
Plaintiff, Appellant,
v.
MONARCH MACHINE TOOL COMPANY, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Joseph M. Orlando with whom Brian S. McCormick and Orlando &
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Associates were on brief for appellant.
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Terrance J. Hamilton with whom Casner & Edwards was on brief for
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appellee.
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June 9, 1994
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BOUDIN, Circuit Judge. On March 23, 1988, Allison
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Williams, plaintiff in the district court and appellant here,
was injured when he was struck by a "toolholder" that came
loose from a vertical milling machine. At the time, Williams
was working in Massachusetts for R&K Precision Tool Company
("R&K"). The vertical milling machine, owned by R&K, had
been made in 1978 by Monarch Machine Tool Company
("Monarch"), the defendant-appellee in this case.
The machine in question was a computer assisted
machining center that performs various functions such as
milling, boring and fly cutting. At the time of the
accident, the machine was being operated by a co-worker of
Williams who had attached to the machine a fly cutter that
had been made "in-house" by R&K. The fly cutter is a disk
into which a toolholder and attached tool can be inserted.
The fly cutter then rotates on the spindle of the vertical
milling machine and the rotating tool can be used to cut or
shave a piece of metal.
In this instance, the co-worker who was operating the
vertical milling machine had been requested by his foreman to
machine a piece of aluminum into a specific configuration.
After a few seconds of operation, in which the spindle
rotated at 2500 rpms, the toolholder came loose from the set
screws holding it to the fly cutter, and the toolholder
struckWilliamswho wasstanding nearby.He wasseriously injured.
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Williams brought suit in the district court against
Monarch. His complaint, claiming negligence and breach of
warranty, rested on two notions as to what Monarch had done
wrong. First, Williams contended that Monarch should have
provided shielding to contain ejected projectiles, a danger
that Williams said was known to Monarch. Second, the
complaint said that Monarch should have warned users of the
risk of such ejections so that in-house measures could be
taken; in this connection, Williams contended that Monarch
had an ongoing duty to warn prior purchasers of new shielding
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equipment developed after the machine's manufacture late in
1978 but before the accident in 1988.
The trial took place in January 1993. At trial, there
was expert evidence on both sides on issues of shielding,
warning and causation. There was also evidence concerning
proper use of the vertical milling machine and the industry
standards bearing on the respective responsibilities of
manufacturers and users in providing guards and shields.
Answering specific interrogatories, the jury found against
Williams, and for Monarch, on each of the claims against
Monarch.
Following the jury verdict, Williams moved for a new
trial asserting as grounds the two issues now raised on this
appeal. One is Williams' claim that the district court
wrongly admitted testimony from a second expert witness, who
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was belatedly produced by Monarch and who testified at trial;
and the other is that an instruction requested by Williams,
affirming the manufacturer's ongoing duty to warn even after
a machine is sold, should have been given. The district
court denied the motion, and Williams appealed. We affirm.
The events relating to the second expert can be briefly
summarized. As is common in cases where experts are
anticipated, interrogatories under Fed. R. Civ. P. 26 were
employed by the parties to identify experts and their
expected testimony. After successive extensions, Monarch on
October 16, 1991, identified its expert as David Lundeen, a
vice president of Monarch, and described the substance of his
testimony. Williams' answers identified his own expert.
Thereafter, Lundeen was deposed by Williams.
At a March 26, 1992, pretrial conference, the district
court set January 4, 1993, as a firm trial date. The court
also ordered the parties to make certain filings during the
four weeks preceding the trial date, including the listing of
the names of all witnesses, lay and expert. On December 4,
1992, a month before the scheduled trial, Monarch filed
"further supplemental answers" in response to Williams' prior
"expert" interrogatories identifying for the first time Ralph
Barnett as an additional expert witness.1
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1The December 4 filing also identified another
previously unnamed expert for the defense. However, this
third expert was never proffered at trial and need not be
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On December 28, 1992, Williams filed a motion in limine
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to exclude Barnett's testimony on the ground that Barnett's
late appearance would prejudice Williams. At a hearing on
January 11, 1993, immediately before the start of trial, the
district court heard argument on the in limine motion and
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offered to postpone the trial for a week and permit Barnett's
deposition to be taken. When Williams' counsel said that
this would not cure the prejudice, the court proceeded with
the trial immediately. Later, the court approved the taking
of Barnett's deposition during a recess of trial on January
13, 1993, the day before Williams' own expert was scheduled
to testify.
On appeal, Williams argues that the district court
abused its authority by refusing to exclude Barnett's
testimony. Williams contends that Barnett did not merely
repeat Lundeen's opinions but added new theories of his own.
Williams brushes aside the proffered one-week extension as
wholly inadequate to allow the counsel to depose Barnett, to
develop adequate rebuttal information, and to allow Williams'
own expert the time to adjust his own testimony to answer the
new theories. Monarch, in turn, belittles the importance of
Barnett's testimony and argues that his late appearances
violated no rule or order.
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discussed further.
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In our view, the last-minute appearance of new expert
witnesses, or substantial expansion of previously disclosed
expert testimony, has become a troublesome feature of civil
litigation. Such last-minute expert testimony is often
improvisation rather than ambush, but it can still undermine
trial preparations carefully made by an adversary over many
months or even years. For this reason, some district judges
enter pre-trial orders setting explicit deadlines for the
naming of experts and then allow new ones to be named after
those deadlines only for good cause shown. Cf. Local R. 26.4
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(D. Mass.).
Rule 26 interrogatories do not have quite the same
effect. Formally, the answers reflect counsel's good-faith
expectation as to the experts to be offered, and the rules
themselves (as phrased in 1992) underscored this
qualification by imposing a duty "seasonally to supplement" a
prior answer identifying an expert or revealing the substance
of expert testimony. See former Fed. R. Civ. P. 26(e)(1)(B).
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Of course, it would violate this duty to name belatedly an
expert who had been retained by the naming party at a
substantially earlier time. Here, however, Monarch says that
it named Barnett shortly after determining to use him, and
there is no evidence to the contrary.
Our situation falls somewhat in between an outright
requirement that experts be named no later than a specified
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date and the ordinary use of Rule 26 interrogatories. Here,
the original scheduling order from the magistrate judge,
extended several times, directed that "full and complete
answers" to expert interrogatories be furnished by listed
dates and set still later dates for the completion of all
discovery. It may well have been the intention of the
magistrate judge that this be read as an outright cut-off for
the naming of experts even though the order is not framed in
quite these terms.
When on the day of trial the parties presented their
positions to the district court, the matter was blurred.
Williams did not explain his position with exactness, while
Monarch argued (untenably) that, even if a prior deadline had
been set, it was relaxed implicitly by the district court's
routine order saying that all witnesses be listed a month or
so before trial. Without resolving the dispute, the district
court said that it would not bar important expert testimony
in a case with a large ad damnum when a continuance would
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remedy the problem. However the magistrate judge's order is
read, the district court was free to alter previous
deadlines.
Conversely, even if the magistrate judge's order left
open the ordinary supplementation option, this court has held
that trial judges have inherent discretionary authority to
exclude expert evidence where Rule 26 interrogatories have
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been employed and where the court finds that the
supplementation was not seasonable. This is so even though
the late-named expert was disclosed as soon as he or she had
been retained. Fusco v. General Motors Corp., 11 F.3d 259,
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265-66 (1st Cir. 1993); Thibeault v. Square D Co., 960 F.2d
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239, 245 (1st Cir. 1992). If the district court in this case
had decided to preclude Barnett's testimony as not
"seasonably" disclosed, such a decision would likely have
been sustained.
But the broad discretion of trial judges to manage
scheduling, discovery and sanctions cuts both ways. Through
no one's fault, evidence is sometimes obtained belatedly when
a gap in proof is perceived or a new source is uncovered.
Discovery aims only to mitigate surprise, for nothing can
eliminate it entirely from trial practice. Interrogatory
answers are supplemented in widely varying circumstances, so
that great deference must be afforded to the judge on the
spot in devising the proper remedy. See, e.g., Nickerson v.
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G.D. Searle & Co., 900 F.2d 412 (1st Cir. 1990).
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Here, the trial court did offer a week's delay and a
good deal can be done in a week. We appreciate that counsel
who accepts a half measure under protest may preserve the
claim of error but greatly reduces the likelihood of success
in any later appeal. Yet, settling a case prepared for trial
requires compromises, and it is generally right to insist
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that counsel take the best deal offered under protest, do the
best job possible and then (if the verdict goes the other
way) argue to the appeals court that what was allowed was not
enough. At least then there is a concrete record to show
what could be done in the time allowed.2
We do not suggest that Williams waived his right to
appeal by rejecting the district court's proposals. If
Williams' trial counsel thought that a week was close to
useless and had other reasons to move swiftly to trial,
nothing prevents Williams from arguing now on appeal that
preclusion of the testimony was the only permissible remedy.
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But by rejecting the proffered half-measure, Williams
inclines a reviewing court to resolve any legitimate doubts
about whether a week might have been enough in favor of the
district judge's view that it would have been sufficient.
In this case we have reviewed the interrogatory answers
as originally directed to Lundeen's proposed testimony and
compared them to testimony actually given by Barnett at
trial. There is no value in repeating details here; it is
enough to say that Williams is right in urging that there
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2In fact, the district court initially offered Williams
a continuance without limiting the offer to a week and only
specified the one-week delay when Williams did not state a
figure of his own, assertedly fearing a long delay in getting
the plaintiff's case to trial. There is little to suggest
that the district court would not have entertained a request
for a longer continuance, especially if based on a more
substantial effort by counsel to do the best he could during
the original week.
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were substantial differences--not so much contradictions as
new theories--that required new lines of questioning by
Williams' counsel and new rebuttal from Williams' own expert.
What we cannot say is that the district court abused its
discretion in thinking that an extra week was enough to allow
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Williams to adjust his position.
Williams points to the many demands on counsel in the
weeks before a scheduled trial, but what was offered was an
extra week to be derived by postponing the trial. Almost all
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of this time was presumably available for the task of
deposing Barnett, gathering material about him and his
testimony and preparing Williams' own expert on any new
subject matter. Indeed, had Williams' counsel made the
effort, he would have been better placed at the end of the
week to argue that still more time was required. Under all
the circumstances, we do not find that the district court
abused its discretion in refusing to exclude Barnett's
testimony.
Williams' brief twice suggests that the district court
withdrew its original offer of a week's extension because
Williams refused to accept it as adequate to avoid prejudice
from the late disclosure. Without generalizing too broadly,
we agree that it would be a matter of some concern if a
district court refused to provide a limited postponement
unless the party offered it waived the party's claim that a
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longer extension was required. In this instance, however, we
do not read the record to establish such retaliation.
We think that the district judge may reasonably have
gained the impression (based on the colloquy with Williams'
counsel) that Williams was not in fact interested in a
continuance in order to cure the surprise, but only in
preserving for appeal the position that the failure to
exclude Barnett's testimony was error. In all events, when
the district court finally announced its intention to proceed
with trial at once, there was no further response from
Williams' counsel. This would be a different case if at that
point Williams had said that he did want a week's continuance
and was merely refusing to waive his right to appeal.
Williams' second and quite separate claim of error is
directed at the district court's refusal to give the
following requested instruction:
The need to exercise reasonable care to
prevent injuries to foreseeable users of
a product included a duty at least to
inform user (sic) of a product [of]
safety improvement of equipment which
would lessen the risk of injury that has
developed after the sale of the product,
but before the injury occurs.
In requesting this instruction, which the district court
declined to give, Williams' trial counsel relied upon doCanto
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v. Amtek Inc., 328 N.E.2d 873 (Mass. 1975), and H.P. Hood &
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Sons, Inc. v. Ford Motor Co., 345 N.E.2d 683 (Mass. 1976).
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It is Williams' position that the vertical milling
machine in question, made in 1978, should have been equipped
with an optional chip guard of a type that Monarch later came
to use for most of its machines; that by the late 1980's, 85
to 90 percent of newly produced Monarch machines were sold
with these enclosures; and that Monarch was aware of the
unguarded R&K machine and serviced it from time to time but
did not give R&K warning of the guards after the sale of the
machine but prior to the accident in 1988.
Williams does not claim that the instructions actually
given were faulty in defining Monarch's duty at the time it
made and sold the machine in question. Rather, Williams
argues that a manufacturer who has discharged all duties at
the time the product was produced and sold will still be
liable if it fails unreasonably to advise a prior purchaser
of the product of new, safety enhancing improvements made
after the sale. We can find no indication that such a rule
has been adopted in Massachusetts, whose law governs in this
case.
In doCanto, the decision principally relied on in
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Williams' brief, the Massachusetts Supreme Judicial Court
sustained the admissibility of evidence showing improvements
made after the sale of the product but before the accident;
but the court did not adopt the view "that there was a
continuing duty to warn purchasers of safety improvements
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[later] made to a machine which was reasonably safe at sale."
328 N.E.2d at 877. Rather, the court found that the evidence
was pertinent to issues of liability at the time of sale
(e.g., feasibility, knowledge of risk). Id. The court
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implied that the manufacturer would have been entitled to a
limiting instruction on the permissible use of the evidence.
Id.
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The doCanto decision goes no further than to say that a
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duty to warn of post-sale safety improvements "may" exist
where the machine as originally sold was of "negligent
design." 328 N.E.2d at 877. This dictum, even if "does"
were substituted for "may," would do Williams no good because
in this case the jury's answers showed that it did not find
that the machine as originally sold had been negligently
designed. Indeed, in Hayes v. Ariens Co., 462 N.E.2d 273
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(Mass. 1984), the court said: "We did not say in doCanto,
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and we have never said, that a manufacturer has a duty to
advise purchasers about post-sale safety improvements that
have been made to a machine that was reasonably safe at the
time of sale."3
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3The Hood case, also relied upon by Williams, is even
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less helpful to Williams. Hood did involve in part a federal
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statute governing motor vehicle defects, see 345 N.E.2d at
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687, and the statute does address post-sale duties, see 15
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U.S.C. 1402; but there is no claim that this federal
statute in any way governs vertical milling machines.
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Some courts have adopted the view that there are broad
post-sale duties to warn, e.g., Kozlowski v. John E. Smith &
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Sons Co., 275 N.W.2d 1915 (Wis. 1979), and there is some
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academic support for this extension. E.g., Note, 33 Stan. L.
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Rev. 1087 (1981). Yet, there is no suggestion that this
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expanded duty is the prevailing view, still less that
Massachusetts has adopted any such expansion. "We have
warned, time and again, that litigants who reject a state
forum in order to bring suit in federal diversity
jurisdictions cannot expect that new trails will be blazed."
Ryan v. Royal Ins. Co. of America, 916 F.2d 731, 744 (1st
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Cir. 1990) (citations omitted).
Finally, if manufacturers were held in some situations
to have a duty to search out prior customers and tell them of
new improvements of products reasonably safe when sold one
would expect that a duty potentially so far reaching would be
qualified by other considerations and limitations (e.g., the
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feasibility of conveying warnings to prior purchasers, the
severity of the hazard, an imbalance between the parties as
to knowledge). The broad language of the instruction
proffered by Williams in the trial court contains no such
restrictions. In our view, this makes it even more unlikely
that the instruction as framed represents the present state
of Massachusetts law.
Affirmed.
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