USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 94-1258
WILLIAM AND RITA ESPEAIGNNETTE,
Plaintiffs, Appellants,
v.
GENE TIERNEY COMPANY, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Brian L. Lincicome with whom Cozen and O'Connor, Ted Susi, and ___________________ ___________________ ________
Laney and Susi were on brief for appellants. ______________
Roy E. Thompson, Jr. with whom Elizabeth G. Knox and Thompson & _____________________ _________________ __________
Bowie were on brief for appellee. _____
____________________
December 28, 1994
____________________
STAHL, Circuit Judge. Plaintiffs-appellants STAHL, Circuit Judge. _______________
William and Rita Espeaignnette brought this action seeking
damages for the loss of William Espeaignnette's lower right
arm in an accident involving a lumber-mill saw designed and
manufactured by defendant-appellee Gene Tierney, Inc. ("the
Company"). Following a four-day trial, a jury returned a
special verdict in favor of the Company, specifically finding
that the saw was not defectively designed. The district
court entered judgment for the Company and subsequently
denied the Espeaignnettes' post-trial motions. The
Espeaignnettes now appeal, assigning error to several of the
district court's evidentiary rulings. Because we hold that
the district court abused its discretion in excluding
evidence pertaining to subsequent modifications made to the
saw by Espeaignnette's1 employer, we vacate the judgment and
remand for new trial.
I. I. __
Background Background __________
In 1990, Espeaignnette's employer, the Isaacson
Lumber Company ("Isaacson"), purchased a Bottom Arbor Gang
Saw, or "edger," designed and manufactured by the Company.
Isaacson employs the edger to "square" or "edge" slabs of raw
lumber. The edger operates in the following manner: First,
____________________
1. All references in the opinion to "Espeaignnette" refer
solely to William Espeaignnette.
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the operator feeds slabs of raw lumber into the edger along a
roller table, passing the slabs through anti-kick fingers
that prevent the slabs from kicking back towards the operator
as they contact the saw blades. After passing through the
anti-kick fingers, powered infeed rollers grab the slabs and
pull them into the saw blades. As designed and manufactured,
the area surrounding the anti-kick fingers and the infeed
rollers is open and not guarded by any physical covering.
The operator controls the edger from a station
located at one end of the machine. During normal operation,
there is no need for the operator to approach the open space
near the anti-kick fingers and the infeed rollers, except to
inspect or listen for strips of "edged" wood that
occasionally "hang up" in the saw-blade area. When strips
become stuck in this area, the operator must stop the machine
and clear the work surface or risk damaging the saw blades.
Following installation of the machine,
Espeaignnette was trained to operate the edger and
subsequently ran it without incident for a period of two to
three weeks. According to his trial testimony, on October
11, 1990, at approximately 10:30 p.m., Espeaignnette heard a
noise that he thought indicated that a sliver of wood had
become stuck in the saw-blade section of the edger. At this
point, Espeaignnette had been working for sixteen hours, with
only a half-hour lunch break. Espeaignnette testified that
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he walked to the side of the edger, crouched down, and peered
into the blades to investigate. Espeaignnette maintained
that he did not stop the edger while investigating the noise
because to do so would needlessly increase downtime,
explaining that the edger often emitted similar sounds that,
upon investigation, did not require a shutdown.
Espeaignnette testified that while he was crouched
beside the edger, he saw a sliver of wood work free from the
saw-blade area. He then attempted to stand up but, as he did
so, lost his balance and stumbled towards the edger. He
further testified that, as he stumbled, he reached out with
his right hand to balance himself and inadvertently stuck his
hand into the area of the infeed rollers, causing his right
glove to become caught on a roller. As a result, his arm was
crushed, pulled into the saw-blade area, and then severed
below the right elbow.2
Following the accident, Isaacson continued to use
the edger to cut raw lumber. In the summer of 1993,
approximately six months before trial, an Isaacson employee
modified the edger by welding to it a steel plate that
covered the open area by the infeed rollers and the anti-kick
fingers.
____________________
2. The Company maintains that the accident occurred because
Espeaignnette purposely, and not inadvertently, stuck his
hand into the area of the infeed rollers to free a piece of
wood.
-4- 4
Espeaignnette tried this action against the Company
solely on a theory of strict liability, alleging that the
edger was defectively designed and unreasonably dangerous
because of the lack of physical guards covering the infeed-
roller area. As co-plaintiff, Rita Espeaignnette sought
compensation for loss of consortium stemming from the
injuries to her husband.
Prior to trial, the Company moved in limine to __ ______
exclude all evidence pertaining to Isaacson's modification of
the edger, and the Espeaignnettes similarly moved to exclude
evidence about the absence of comparable accidents involving
edgers designed by the Company. The district court
provisionally granted the Company's motion and excluded the
modification evidence pursuant to Fed. R. Evid. 407 as a
subsequent remedial measure, subject, however, to the
condition that the Company not controvert at trial the
feasibility of such a modification.3 The court
____________________
3. Fed. R. Evid. 407 provides:
When, after an event, measures are taken
which, if taken previously, would have
made the event less likely to occur,
evidence of the subsequent measures is
not admissible to prove negligence or
culpable conduct in connection with the
event. This rule does not require the
exclusion of evidence of subsequent
measures when offered for another
purpose, such as proving ownership,
control, or feasibility of precautionary
measures, if controverted, or
impeachment.
-5- 5
provisionally denied the Espeaignnettes' motion and, over
objection, permitted the owner of the Company, Gene Tierney,
to testify about the absence of reports of other accidents
involving similar edgers designed by the Company.
During trial, the Espeaignnettes raised at least
twice the issue of the subsequent-modification evidence. The
district court declined to admit the evidence on each
occurrence. Although eventually finding that the issue of
feasibility had been clearly raised, the district court
nonetheless excluded the evidence pursuant to Fed. R. Evid.
403 because the prejudicial impact of the evidence outweighed
its probative value.4 The Espeaignnettes made an offer of
proof stating, inter alia, that they sought to call the _____ ____
current operator of the edger to testify that he had operated
the edger both before and after its 1993 modification and
that the modification had in no way inhibited the operation
of the machine.
During trial, the district court also denied the
Espeaignnettes' objections to the qualification of a witness
____________________
4. Fed. R. Evid. 403 provides:
Although relevant, evidence may be
excluded 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.
-6- 6
for the Company as an expert in "industrial human factors"
and to that witness's testimony concerning whether it was
possible for Espeaignnette to have fallen into the edger as
he alleged.
Following closing arguments, the district court
submitted the case to the jury as a series of questions on a
special-verdict form. The first question was whether the
edger was "in a defective condition and unreasonably
dangerous." The jury answered this question in the negative
and, in accordance with the instructions on the form and the
district court's oral instructions, proceeded no further.
The jury did not answer the subsequent questions on proximate
cause and assumption of risk. Subsequently, the district
court entered judgment for the Company and denied the
Espeaignnettes' motions for judgment as a matter of law and a
new trial. This appeal followed.
II. II. ___
Discussion Discussion __________
The Espeaignnettes assign error to three
evidentiary rulings. They contend that the district court
erred in (1) excluding under Rule 403 evidence concerning
Isaacson's installation of the fixed metal guard on the
edger, (2) admitting evidence concerning the absence of other
accidents involving similar edgers designed by the Company,
and (3) qualifying a witness for the Company as an expert in
-7- 7
"industrial human factors" and permitting the witness to
testify on that subject. We discuss each argument in turn.
A. Subsequent Modification of the Edger ________________________________________
We begin by noting that a district court has
considerable latitude in determining whether to admit or
exclude evidence under Rule 403. See, e.g., Newell Puerto ___ ____ _____________
Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 21 (1st Cir. ___________ ________________
1994). We review these rulings only for an abuse of
discretion. Daigle v. Maine Medical Ctr., Inc., 14 F.3d 684, ______ ________________________
690 (1st Cir. 1994). "`Only rarely -- and in extraordinarily
compelling circumstances -- will we, from the vista of a cold
appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value
and unfair effect.'" Id. (quoting Freeman v. Package Mach. ___ _______ _____________
Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). ___
Our review, however, is not completely without
bite. See, e.g., Kassel v. Gannett Co., 875 F.2d 935, 951-52 ___ ____ ______ ___________
(1st Cir. 1989). In general, "[a]buse occurs when a material
factor deserving significant weight is ignored, when an
improper factor is relied upon, or when all proper and no
improper factors are assessed, but the court makes a serious
mistake in weighing them." Independent Oil & Chem. Workers ________________________________
of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, ________________ __________________________
929 (1st Cir. 1988).
-8- 8
The Espeaignnettes argue that the district court
abused its discretion in excluding pursuant to Rule 403
evidence regarding Isaacson's modification of the edger.
Primarily, they contend that the district court incorrectly
found that the danger of unfair prejudice outweighed the
probative value of the evidence. The Espeaignnettes argue
that the evidence was vital to establishing their prima facie
case of strict liability under Maine law and that the
district court vastly overestimated the danger of unfair
prejudice. After a careful review of both the applicable law
and the facts and circumstances surrounding this case, we
agree.5
The Espeaignnettes tried their claim against the
Company pursuant solely to Maine's strict liability
statute.6 Under the Maine statute, a plaintiff must prove
____________________
5. Because the district court excluded the evidence at trial
pursuant to Rule 403, its pre-trial ruling excluding the
evidence under Rule 407 as a subsequent remedial measure is
not at issue. Nevertheless, because we are remanding the
case for retrial, we note that circuit precedent clearly
establishes that Rule 407 does not apply to actions taken by
third parties such as Isaacson. Raymond v. Raymond Corp., _______ ______________
938 F.2d 1518, 1524 (1st Cir. 1991).
6. The Maine strict liability statute provides:
One who sells any goods or products in a
defective condition unreasonably
dangerous to the user or consumer or to
his property is subject to liability for
physical harm thereby caused to a person
whom the manufacturer, seller or supplier
might reasonably have expected to use,
consume or be affected by the goods, or
-9- 9
that "the product was defectively designed thereby exposing
the user to an unreasonable risk of harm." Stanley v. _______
Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me. 1983). ___________________________
See also St. Germain v. Husqvarna Corp., 544 A.2d 1283, 1285 ___ ____ ___________ _______________
(Me. 1988). To determine whether a product was defectively
designed, Maine courts apply the "danger-utility" test. St. ___
Germain, 544 A.2d at 1285. Under this test, proof of _______
defective design includes "an examination of the utility of
[the product's] design, the risk of the design and the
feasibility of safer alternatives."7 Stanley, 462 A.2d at _______
____________________
to his property, if the seller is engaged
in the business of selling such a product
and it is expected to and does reach the
user or consumer without significant
change in the condition in which it is
sold. This section applies although the
seller has exercised all possible care in
the preparation and sale of his product
and the user or consumer has not bought
the product from or entered into any
contractual relation with the seller.
Me. Rev. Stat. Ann. tit. 14, 221.
7. In describing the feasibility prong of the danger-utility
test, a leading authority explains that:
[a]n alternative design that was not
utilized is to be considered as feasible
when a reasonable person would conclude
that the (1) magnitude of the danger-in-
fact that could have been avoided by such
alternative design in the (2) utilization
of the scientific technological know-how
reasonably available to the defendant
outweighed the (1) financial costs of
guarding against such avoidable danger,
(2) the impairment of the benefits, and _______________________________
(3) any new danger-in-fact that would
-10- 10
1148. See also Walker v. General Elec. Co., 968 F.2d 116, ___ ____ ______ _________________
119 (1st Cir. 1992).
In this case, the excluded evidence of the Isaacson
modification tends to show that the design and installation
of a physical guard was both possible and practical (i.e.,
placing a physical guard over the opening did not inhibit the
operation of the edger). Moreover, this evidence bears
directly on whether the edger was defectively designed. It
allows the jury to compare the utility and risk of the edger
as actually designed (without the guard) with the utility and
risk of the alternate design (with the guard). Therefore,
because the evidence was crucial to the Espeaignnettes' case,
unless the danger of unfair prejudice substantially
outweighed its probative value, the evidence should not have
been excluded. See Swajian v. General Motors Corp., 916 F.2d ___ _______ ____________________
31, 34-35 (1st Cir. 1990) (reversing exclusion under Rule 403
in products liability action where evidence bore directly on
event in issue); Laney v. Celotex Corp., 901 F.2d 1319, 1320- _____ _____________
21 (6th Cir. 1990) (reversing exclusion under Rule 403 where
____________________
have been created by the alternative
design.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts ______________________________________
99 at 700 (5th ed. 1984) (emphasis supplied). Cf. St. ___ ___
Germain, 544 A.2d at 1285-86 (evidence "that the safety _______
feature would minimally impair the use of the saw" supported
determination that evidence was sufficient to find a
defective condition and that, consequently, the trial court
had erred in directing verdict for manufacturer on strict
liability claim).
-11- 11
evidence "[went] to the fundamental question of the case").
Cf. Joseph W. Cotchett & Arnold B. Elkind, Federal Courtroom ___ _________________
Evidence 93 (3d ed. 1993) ("If the party's case turns upon ________
the introduction of the evidence, [Rule 403] favors the
admission of the evidence.").
The fact that the court permitted the
Espeaignnettes' expert to testify to the possibility of
placing a physical guard on the edger does not diminish the
probative value of the excluded evidence. The Company did
not dispute the fact that it would have been theoretically
possible to have installed a physical guard on the edger, but
it did vigorously dispute whether such a guard would be
practical. The designer of the edger, Gene Tierney, and the
Company's expert witness, Professor Barnett, testified that a
physical guard would unduly inhibit the normal operation of
the edger.8 The excluded evidence tends to show directly
____________________
8. Answering why he chose not to include a physical guard
over the open area of the edger where Espeaignnette was
injured, Tierney testified:
Utility of the machine. I have found,
almost without exception, that where you
have a guard bolted on, hinged, pinned
on, even clipped, they'll take it off
first time and it stays off. Then you
have that whole opening exposed.
Q. You didn't put a guard because you
were afraid someone would take it off?
A. I'm saying you use the utility of
that machine, how long do you anticipate
it would take to take the guard off
-12- 12
____________________
assuming they did put it back? What
would that --
Q. I'm sorry. Go ahead.
A. What would that do to operator stress
when his material is piling up on him.
That's going to make him fight it, so to
speak, to catch up. He's more prone to
error under those conditions. All those
factors are considered.
Professor Barnett testified:
The methodology of trying to get that
thing unjammed is simply horrific, and we
need every aperture available to us.
. . .
Put those guards on the side, if ____________________________________
they're permanently fixed on there, you _________________________________________
have now seriously compromised the _________________________________________
unjamming capability of the machine. If ____________________________________
you don't put them on permanently, then
the task will be we have to remove them
so we can get in there and do the
unjamming on the side. If you remove
them, then the machine is right back to
the one we're looking at in the front of
the room.
(Emphasis supplied). In his opening remarks, the Company's
counsel stated:
One of the reasons, you will learn,
that there is an opening in this very
area is it is mandatory that there be _______________________________
access to do just what [the ______
Espeaignnettes' counsel] indicated, and
that is unjam, unplug what can happen in
there. There is a necessity to look in
that area and to, once the machine is
turned off, reach in and unplug it.
(Emphasis supplied). In addition, the Company's counsel
argued at closing:
This machine had to be designed to keep
this downtime to a minimum.
-13- 13
that a physical guard does not inhibit the operation of the
edger and therefore would have rebutted the testimony of
Tierney and Professor Barnett much more effectively than
hypothetical assertions by the Espeaignnettes' expert
witness.
Not only did the district court incorrectly gauge
the probative value of the testimony, it also overestimated
the danger of unfair prejudice. It is, of course, axiomatic
that "[a]ll evidence is meant to be prejudicial; elsewise,
the proponent would be unlikely to offer it." Daigle, 14 ______
F.3d at 690. The appropriate inquiry under Rule 403,
therefore, is whether the evidence results in "unfair
prejudice." See Swajian, 916 F.2d at 34. "`Unfair ___ _______
____________________
. . .
And I want you to think just for a
moment about some testimony relative to
the jams when the slab goes in and gets
really hung up in those rollers.
(Gesturing) To get that slab out, you're
going to have to go into the area between
the in-feed rollers and the kickback
fingers.
If you open up the machine and go in
this way, you're only getting one end of
it. You're not getting the major jam,
which is where -- the in-feed rollers and
the antikickback fingers. You had to ___________
have access in that area. ________________________
(Emphasis supplied). Cf. Borden, Inc. v. Florida East Coast ___ ____________ __________________
Ry. Co., 772 F.2d 750, 756 (11th Cir. 1985) ("[A] litigant is _______
unduly prejudiced when his opponent is successful in
preventing the admission of evidence on a particularly
crucial issue in dispute, and then points to the absence of
such evidence in closing argument.")
-14- 14
prejudice' . . . means an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an
emotional one." Fed R. Evid. 403 advisory committee's note.
In its final trial ruling, the district court
excluded the evidence, reasoning only that:
the prejudicial impact of that evidence
as it relates to Isaacson correcting the
machine or having the machine corrected,
the prejudicial impact of that evidence
outweighs the probative value of it
because the jury may very well infer from
that activity that that was -- they may
take that evidence as evidence of
negligence or product liability on the
part of the defendant rather than
evidence for which it is intended;
namely, the feasibility of putting that
or making that repair on the machine.
The district court viewed the evidence as
admissible (if at all) only to show feasibility under an
exception to Rule 407. Therefore, in weighing the
prejudicial impact of the evidence, the court examined
whether it would tend to show something more than just
feasibility (e.g. negligence or product liability). As
noted, however, because a third party, and not the Company,
modified the edger, the evidence of the modification was not
subject to exclusion under Rule 407. See supra note 5. ___ _____
Therefore, the fact that the Espeaignnettes' proffered
evidence may have tended to show "negligence or product
liability" rather than just feasibility did not, by itself,
-15- 15
constitute an improper use of the evidence and warrant its
exclusion as unfairly prejudicial under Rule 403.
Moreover, once the analysis is conducted outside
the Rule 407 framework, we do not believe that the excluded
evidence posed any significant risk of unfair prejudice. The
Isaacson modification was not a subsequent design developed
well after the edger was manufactured. Hence, it was not
(arguably) misleading or unfairly prejudicial on the issue of
whether the edger was unreasonably dangerous at the time of
manufacture. See, e.g., Grenada Steel Indus., Inc. v. ___ ____ ____________________________
Alabama Oxygen Co., 695 F.2d 883, 889 (5th Cir. 1983) (design __________________
changes developed after the manufacture of the product in _________
question are irrelevant to the reasonableness of the design
at the time of manufacture). True, Isaacson did not install
a guard on the edger until more than two years after the
accident. The Company, however, does not contend that a
guard could not have been installed at the time of
manufacture or even that the installation was not considered.
Therefore, the Espeaignnettes' proffered evidence would not
have introduced design choices not known or feasible at the
time of manufacture.
Furthermore, the Company's failure in its brief to
illustrate how the excluded evidence would be "unfairly"
prejudicial to its case confirms our conclusion. The Company
argues only that the testimony would have been confusing and
-16- 16
misleading to the jury because the guard installed by
Isaacson was a different type of guard (a permanent guard)
than the guard recommended by the Espeaignnettes' expert (a
removable guard). Though this is a difference, we cannot say
that it is particularly confusing or unfairly prejudicial.
In sum, the proffered evidence posed no significant
risk of unfair prejudice.9
Nevertheless, we remain mindful of the substantial
deference that is properly accorded to a district court's
judgment in "`steadying the Rule 403 seesaw.'" Kassel, 875 ______
F.2d at 952 (quoting Onujiogu, 817 F.2d at 6). The question ________
is not whether we would strike the balance differently in the
first instance, but whether the balance actually struck is so
egregiously one-sided that it requires reversal. Our
decision in Swajian v. General Motors Corp., 916 F.2d 31 (1st _______ ____________________
Cir. 1990), in which we reversed a district court's decision
____________________
9. We also note that in its provisional ruling before trial,
the district court excluded the evidence under Rule 407, but
added, "I am more concerned, frankly, with prejudicial impact
that that kind of evidence would have on the jury;
specifically, that portion of the evidence which indicates
that the same machine, at the same place, in the same
factory, was in fact remedied to prevent this kind of
accident." The district court did not reiterate this
reasoning when it excluded the evidence under Rule 403. In
any event, we are unconvinced that the fact that the evidence
concerned the specific edger involved in the accident evokes
any special degree of unfair prejudice in this case. ______
-17- 17
in a products liability action to exclude evidence pursuant
to Rule 403, informs our analysis on this issue.10
In Swajian, the plaintiff's wife was killed when a _______
truck she had been driving rolled over in an accident. The
plaintiff contended that the truck's rear axle was defective
and had caused the accident. General Motors argued, however,
that driver error was the cause. The district court excluded
evidence that the decedent had been drinking prior to the
accident, finding that the evidence was "unduly inflammatory"
and that its prejudicial impact would far outweigh its
probative value. Id. at 34. ___
On appeal, we reversed, criticizing the district
court for its failure in striking the Rule 403 balance to
distinguish between evidence that is prejudicial and evidence
that is unfairly prejudicial. Id. at 35. Moreover, we ________ ___
stressed that the evidence was highly probative because it
bore directly on the issue of causation. Id. ___
As in Swajian, the evidence excluded here bore _______
directly on an essential element of the plaintiff's prima
____________________
10. Even though Swajian suggests that, there, the district _______
court erred as a matter of law by not making a specific
finding of "unfair prejudice," the opinion is best
interpreted as holding that the district court abused its
discretion in conducting the balancing that Rule 403
requires. This can be deduced from the Swajian panel's _______
review of the district court's balancing of probative value
against prejudicial impact, Swajian, 916 F.2d at 34, which, _______
in turn, supports a conclusion that the district court abused
its discretion in striking the balance in this case.
-18- 18
facie case. Furthermore, as compared to the circumstances of
this case, we think that the risk of unfair prejudice in
Swajian was decidedly more pronounced. In Swajian, a real _______ _______
danger undoubtedly existed that the jury would have taken the
evidence of the decedent's drinking as showing that she was
at fault and not entitled to compensation, regardless of
whether or not the axle failure caused the accident. In
contrast, as we have explained above, the evidence excluded
in this case posed little, if any, risk of unfair prejudice. ______
In sum, we are convinced that the excluded evidence
was highly probative on an essential disputed element in the
case and that the danger of unfair prejudice was extremely
remote. Accordingly, we hold that the district court abused
its discretion in excluding the proffered evidence.11
Our determination that the district court abused
its discretion in striking the Rule 403 balance does not,
however, end our analysis. As with most trial errors, we are
not empowered to notice error in a district court's
evidentiary ruling "unless a substantial right of the party
____________________
11. We further note that the cases on which the Company
relies to support excluding the evidence are clearly
distinguishable. See Harrison v. Sears, Roebuck & Co., 981 ___ ________ ____________________
F.2d 25, 31-32 (1st Cir. 1992) (negligence and breach of
warranty action, evidence offered to impeach only); Raymond, _______
938 F.2d at 1523-24 (feasibility stipulated and design
modification developed after manufacture of product); Grenada _______
Steel, 695 F.2d at 888-89 (feasibility clearly not contested _____
and design changes developed years after manufacture of
product).
-19- 19
is affected." Fed. R. Evid. 103(a); see also Fed. R. Civ. P. ___ ____
61. In determining whether an error affected a party's
substantial right, "[t]he central question is whether this
court can say with fair assurance . . . that the judgment was
not substantially swayed by the error." Lubanski v. Coleco ________ ______
Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991) (internal _____________
quotations omitted).
The exclusion of the proffered testimony cannot be
considered harmless. As noted, the evidence directly
pertains to whether the edger was unreasonably dangerous at
the time of manufacture. Therefore, we cannot say that its
absence did not substantially affect the jury's decision on
this point.
Furthermore, the only issue the jury considered was
whether the edger was unreasonably dangerous. In accord with
the court's instructions, the jury returned a single finding
that the edger was not "in a defective condition and
unreasonably dangerous." The jury did not answer the
subsequent questions on the special-verdict form concerning
proximate cause and assumption of risk. As a result, because
the exclusion of the evidence undermined the jury's sole
finding that the edger was not in a defective condition, it
therefore affected a substantial right of the Espeaignnettes.
B. Absence of other accidents ______________________________
-20- 20
The Espeaignnettes contend that the district court
erred in admitting evidence concerning the lack of similar
accidents involving edgers designed by the Company. The
Espeaignnettes argue that this evidence is irrelevant in a
strict liability action and, in the alternative, that the
Company failed to establish a proper foundation for the
evidence. The Espeaignnettes fail on both grounds.
As an initial matter, we note that both parties
argued this issue before the district court and in their
briefs as though it were controlled by state law. Neither
side discussed the applicability of the Federal Rules of
Evidence. Nevertheless, it is axiomatic that in determining
whether evidence is relevant, and therefore admissible in a ________
diversity action, the Federal Rules of Evidence supply the
appropriate rules of decision. See, e.g., McInnis v. A.M.F., ___ ____ _______ _______
Inc., 765 F.2d 240, 245-46 (1st Cir. 1985); Fed. R. Evid. ____
1101. Normally, the Espeaignnettes' failure to argue the
correct applicable standard would effect a waiver of the
issue. Because we are remanding the issue for retrial,
however, we will proceed to discuss the issue as it arises
under the Federal Rules of Evidence.
Subject to certain limitations, all evidence is
admissible if it is relevant -- i.e., if it tends to make the
existence or nonexistence of a disputed fact "more probable
than it would be without the evidence." Fed. R. Evid. 401,
-21- 21
402. As we have discussed earlier, a district court may
nonetheless exclude relevant evidence if the probative value
of the evidence 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." Fed. R. Evid.
403.
In general, courts have recognized that the absence
of prior accidents may be admissible to show:
(1) absence of the defect or other
condition alleged,
(2) the lack of a causal relationship
between the injury and the defect or
condition charged, [and]
(3) the nonexistence of an unduly
dangerous situation.
Strong, 1 McCormick on Evidence 200 at 850-51. Moreover, ______________________
we recently rejected the argument that evidence of the lack
of prior accidents is irrelevant on the issue of causation in
a products liability case brought on a negligence theory.
Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 30 (1st Cir. ________ _____________________
1992). See also Keller v. United States, No. 94-1136, slip ___ ____ ______ _____________
op. at 27, 30 (1st Cir. Oct. 19, 1994) (noting evidence of
the absence of other accidents as supporting district court's
failure to find design defect or causation in negligence
case).12
____________________
12. The Espeaignnettes argue, however, that even if the
absence of prior accidents would be relevant in a negligence
case, the district court should still have excluded the
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The evidence of the absence of prior accidents is
clearly relevant to several disputed issues in this case.
The fact that the Company had received no reports of similar
accidents tends to disprove causation. That there were no
similar reports of injuries due to inadvertent contact with
the infeed rollers tends to support the Company's contention
that it was not possible for Espeaignnette to have stumbled
accidentally into the open area of the edger as he alleged.
Additionally, the absence of prior accidents is probative and
relevant to whether the edger as designed was unreasonably
dangerous.
The Espeaignnettes alternatively contend that the
Company failed to establish the necessary foundation for
admission of the evidence. A review of the cases reveals,
for the most part, that evidence of the absence of prior
accidents may not be admitted unless the offering party first
establishes that the "lack of accidents was in regard to
products that are substantially identical to the one at issue
and used in settings and circumstances sufficiently similar
to those surrounding the machine at the time of the
____________________
evidence because the issue here turns solely on principles of
strict liability. This argument is not persuasive because
the Maine Supreme Judicial Court has recognized that
negligence and strict liability causes of action both share
the same elements of causation and defective design. See ___
Marois v. Paper Converting Mach. Co., 539 A.2d 621, 623 (Me. ______ __________________________
1988) (causation) and Stanley, 462 A.2d at 1148 (defective ___ _______
design).
-23- 23
accident." Klonowski v. International Armament Corp., 17 _________ _____________________________
F.3d 992, 996 (7th Cir. 1994) (internal quotations omitted).
Whether such preliminary requirements are aimed at preventing
the admission of irrelevant evidence under Rule 402,
excluding relevant evidence that is unfairly prejudicial and
confusing under Rule 403, or both, is unclear. Cf. Fusco v. ___ _____
General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993) _____________________
(foundational requirement of substantial similarity regarding
evidence of similar accidents "now loosely appended to Rule
403"). In any event, the determination of admissibility
turns on the facts and circumstances of each case and is
committed, in the first instance, to the sound discretion of
the district judge. See United States v. Brandon, 17 F.3d ___ _____________ _______
409, 444 (1st Cir.), cert. denied, 115 S. Ct. 80, and cert. _____ ______ ___ _____
denied, 115 S. Ct. 81 (1994); Fed. R. Evid. 104(a). ______
Prior to testifying about the lack of similar
accidents, Tierney testified that, since 1976, his company
had sold eighty-seven edgers using essentially the same open
infeed-roller design. He also testified that as president of
the Company any claims or notices of accidents involving an
edger designed and manufactured by the Company would have
come to his attention. While in different circumstances a
district court might require more to show sufficient
similarity, we think that Tierney's testimony established
that the evidence of the absence of other accidents was
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admissible in this case. Furthermore, we note that the
Espeaignnettes' counsel soundly attacked this testimony
during cross-examination, bringing out that Tierney did not
know whether any of the machines had been modified or if they
had been situated so as to prevent accidental contact with
the infeed rollers.
C. Expert testimony ____________________
The Espeaignnettes' final complaint is that the
district court improperly permitted the Company's expert
witness to testify that it was not physically possible for
Espeaignnette to stumble and fall into the edger as he
contended. Specifically, the Espeaignnettes contend that the
Company's expert lacked sufficient qualifications to testify
as an "industrial human factors" expert in machine design.
They further argue that the subject of the testimony -- how
one reacts during a stumble -- was an improper subject for
expert testimony because it was within the knowledge of the
average juror. We do not agree.
Determinations of whether a witness is sufficiently
qualified to testify as an expert on a given subject and
whether such expert testimony would be helpful to the trier
of fact are committed to the sound discretion of the trial
court. See, e.g., Navarro de Cosme v. Hospital Pavia, 922 ___ ____ _________________ ______________
F.2d 926, 931 (1st Cir. 1991). "[A] trial judge's rulings in
this sphere should be upheld `unless manifestly erroneous.'"
-25- 25
United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. ______________ _________
1993) (quoting Salem v. United States Lines Co., 370 U.S. 31, _____ _______________________
35 (1962)), cert. denied, 114 S. Ct. 2714 (1994); but compare _____ ______ ___ _______
Williams v. Poulos, 11 F.3d 271, 282 (1st Cir. 1993) (stating ________ ______
standard of review is abuse of discretion).
A review of Professor Barnett's vita and testimony
reveals that, although he has little formal education
regarding "industrial human factors," he does have extensive
professional experience in the field. His testimony was not
restricted to how a person reacts during a stumble. Rather
he gave important testimony explaining human interaction with
machines, an issue both important in evaluating the Company's
decision not to place a physical guard on the edger and
relevant to the Company's theory of causation. The district
court did not abuse its discretion in either accepting the
qualifications of Professor Barnett as an expert or admitting
his testimony.
III. III. ____
Conclusion Conclusion __________
For the foregoing reasons, we vacate the judgment
entered below and remand this case to the district court for
a new trial.
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