USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1345
ROBERT J. SACRAMONA,
Plaintiff, Appellant,
v.
BRIDGESTONE/FIRESTONE, INC.,
and THE BUDD COMPANY,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
____________________
Michael K. Gillis with whom Gillis & Bikofsky, P.C. was on briefs __________________ _______________________
for appellant.
Francis H. Fox with whom John R. Skelton and Bingham, Dana & _______________ _________________ ________________
Gould LLP were on brief for appellee Bridgestone/Firestone, Inc. _________
Edward M. Kay with whom Michael W. Duffy, P. Scott Ritchie, ______________ __________________ __________________
Clausen Miller, P.C., Robert M. Spence, Assistant General Counsel, _____________________ _________________
Mark R. Karsner and Karsner & Meehan, P.C. were on brief for appellee _______________ _______________________
The Budd Company.
________________
February 13, 1997
________________
BOUDIN, Circuit Judge. Robert Sacramona, the plaintiff _____________
in this diversity action, appeals from the district court's
grant of summary judgment against him. His claims arose from
an accident that occurred when Sacramona sought to mount and
inflate a tire manufactured by defendant
Bridgestone/Firestone, Inc. on a wheel manufactured by
defendant, The Budd Company. The appeal is essentially a
challenge to the district court's rulings on the destruction
or loss of evidence and resulting prejudice to the
defendants.
The facts are as follows. On May 4, 1988, a customer
drove his van into the Economy Mobil gas station for repair
of a leaking tire. Sacramona, the station's new manager,
removed the tire and decided to replace rather than repair
it. Because the station did not have an appropriate new
tire, Sacramona selected a used, 16-inch tire from a rack of
tires at the station as a temporary replacement, intending
later to get a new tire for the customer.
The replacement tire bore warnings that it was to be
used only with a 16-inch wheel. Sacramona later admitted
that he did not check the diameter of the wheel rim; he said
that he chose a 16-inch tire because the tire that he removed
was also 16 inches. But the replacement tire apparently did
not fit the wheel, which Sacramona now says was 16-1/2
inches. After Sacramona struggled to mount the tire--using a
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tire mounting machine and lubricant, striking the tire with a
hammer, and bouncing it on the ground--the tire allegedly
exploded as he again attempted to inflate it, causing him
numerous injuries.
Sacramona was taken to the hospital by ambulance.
Another service station employee put the damaged replacement
tire on the wheel without inflating it, and the customer
drove back home very slowly on the uninflated tire. The
customer subsequently had the wheel and damaged tire removed
from his van and left them unprotected in his outdoor yard.
In August 1988, Sacramona's attorney obtained the tire and
wheel.
Around February 1, 1989, the attorney gave both the tire
and wheel to an expert consulting engineer, Dyer Carroll, who
examined them and then sent them to Sacramona's liability
expert, Dr. Alan Milner, on September 30, 1991. In the
meantime, on May 3, 1991, Sacramona filed his complaint in
this case, one day before the three-year statute of
limitations expired, asserting tort and warranty claims. His
is theory is this: that the automotive industry knew that
there was a risk of harm from mismatching tires and wheels,
and that the wheel, tire, or both could have been designed--
over and above the warnings on the tire--to reduce the risk
that such a dangerous mismatch would occur.
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By the time of the lawsuit, the Mobil station had been
sold and many of its contents were gone, including the
original leaking tire, the mounting machine, and various
safety or equipment manuals and documents. In addition,
during his deposition, Milner said that the wheel had
undergone a "somewhat destructive" examination and that he
understood from Sacramona's lawyer that Carroll had conducted
an extensive cleaning of the wheel. It was thus impossible
to check for markings on the inside of the wheel that might
have revealed whether (as Sacramona claimed) the original
leaking tire had been a 16-inch tire mismatched with a 16-
1/2-inch wheel.
After discovery, the defendants moved for summary
judgment on several grounds, asserting inter alia that ___________
critical evidence had been destroyed in the cleaning of the
wheel. In opposition, Sacramona attached a brief affidavit
from Carroll denying that he had destroyed such evidence.1
The district court ruled that evidence of the wheel should be
excluded, finding that defendants' "experts have been
deprived of the opportunity to examine relevant, possibly
dispositive evidence before its material alteration." The
____________________
1Carroll's own deposition testimony, apparently not
called to the district court's attention at this stage,
revealed that Carroll's son had assisted in the cleaning but
denied that anyone had destroyed evidence.
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trial judge treated the wheel's exclusion as fatal to both
the negligence and warranty claims.
The district court also granted summary judgment to the
defendants on Sacramona's warranty claims on an independent
ground. Sacramona had not notified Firestone of his claims
until three years after the accident; and Budd did not get
notice for three more months (service of the complaint having
been delayed). The district court ruled that the defendants
had been prejudiced by this delay because evidence had been
lost, and that the warranty claims were therefore barred by
Mass. Gen. Laws ch. 106, 2-318.
Sacramona has now appealed, challenging both rulings:
the dismissal of both claims because of damage to the wheel
and the dismissal of the warranty claim for prejudicial
delay. We address each asserted error in turn, applying the
standard of review fitting the specific issue. Broadly
speaking, propositions of law are examined de novo, findings _______
of fact are reviewed under the clear error standard, and most
remaining issues (e.g., applying multiple factors to known ____
facts) are tested for "abuse of discretion." See generally _____________
United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986). _____________ ______
1. Under settled authority, the district court has
inherent power to exclude evidence that has been improperly
altered or damaged by a party where necessary to prevent the
non-offending side from suffering unfair prejudice. Unigard _______
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Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, ______________ ____________________________
368 (9th Cir. 1992); Headley v. Chrysler Motor Corp., 141 _______ _____________________
F.R.D. 362, 365 & n.13 (D. Mass. 1991). Although deterrence
may play a role, the primary aim is remedial, at least absent
willful destruction. This power is a companion to, but
somewhat different in effect from, the doctrine that permits
an adverse inference from one side's destruction of evidence.
22 C. Wright & K. Graham, Federal Practice and Procedure: ________________________________
Evidence 5178, at 153-59 (1978). ________
Sacramona's first argument against the exclusion of the
wheel on grounds of prejudicial damage is that the district
court "did not weigh the evidence in the light most favorable
to the non-moving plaintiff" and therefore the issue had to
be submitted to the jury. Sacramona says that a factual
dispute exists as to whether any such damage occurred,
"particularly in light of the sworn deposition testimony of
Dyer E. Carroll, . . . who stated that he never scraped any
evidence from the wheel or cleaned it with any abrasive
material."
The request for a jury rests on a misunderstanding. It
is familiar law that the district judge decides most
preliminary factual issues that arise in determining the
admissibility of evidence. Fed. R. Evid. 104(a). The main
exception is that under Fed. R. Evid. 104(b), issues of
conditional relevance are normally submitted to the jury.
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Sacramona invokes the latter rule, arguing that the issue
whether the wheel had been damaged was an issue of
conditional relevance that should have been submitted to the
jury.
The district court said that the wheel was being
excluded, in the alternative, both as a sanction for damage
to it and because the damage made the wheel irrelevant. But
in fact the alleged damage to the wheel's inner surface
merely prevented one possible use of the wheel--to show that
the original tire was or was not 16 inches. The wheel, or
testimony about it, remained relevant to prove whether the
wheel itself was 16-1/2 inches, which was one critical
premise of Sacramona's mismatch theory. Thus, the only basis
for exclusion of the wheel was prejudicial damage, an issue
that Rule 104(a) reserves to the trial judge.
There is more force to Sacramona's claim that the
district court may have erred in deciding that Carroll had
cleaned the wheel. In moving for summary judgment, the
defendants relied upon several different admissions by Milner
in his deposition, adding up to the following: that the
inside of the wheel had been cleaned, removing the
possibility of recovering useful evidence; that Sacramona's
counsel had identified Carroll as the source of the cleaning;
and that Milner had sought to obtain photographs of the wheel
prior to cleaning but none had been taken by Carroll.
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In opposition, Sacramona countered with a brief
affidavit of Carroll that he had not cleaned any substantial
portion of the inside of the wheel. Sacramona argued on this
basis (mistakenly) that the issue was one for the jury. But
in any event the affidavit was not much of an answer: Milner
said that the inside of the wheel had been cleaned; and
whether or not Carroll had done it, the wheel had admittedly
been in the custody of the plaintiff's counsel or one of his
experts since it was recovered from the customer's backyard.
It is thus not entirely surprising that the district
court ruled that the plaintiff was responsible for the
damage. At this point, Sacramona offered new evidence: on
his motion for reconsideration, a new affidavit was filed by
Milner, saying that he had been misunderstood and had not
testified that the inside of the wheel had been cleaned.
Sacramona's counsel also filed an affidavit, which generously
could be read to assert that his law firm had given the wheel
to Carroll and retrieved it unaltered.
But Milner's affidavit did not squarely dispute that the
wheel had been cleaned; and in denying that Carroll had done
the cleaning, the Milner affidavit squarely contradicted his
own prior deposition without explanation. As for counsel's
affidavit, it made no effort to deny or explain Milner's
deposition testimony that counsel had told Milner that _______
Carroll had cleaned the wheel. Taking the matter on the
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deposition testimony and affidavits, we are not prepared to
rule that the district court's finding of damage by plaintiff
was clear error.
In our view, it would have been sounder to hold an
evidentiary hearing on the issue of damage and responsibility
for it, at least when on reconsideration it became clear that
the issue was murky. If at this stage Sacramona had squarely
requested such a hearing, it might well have been an abuse of
discretion to deny it. See General Contracting & Trading Co. ___ _________________________________
v. Interpole, Inc., 899 F.2d 109, 115 (1st Cir. 1990). But _______________
there is no single mode of resolving factual disputes under
Rule 104(a), and we will not ordinarily reverse on a
procedural objection never made. Aoude v. Mobil Oil Corp., _____ _______________
892 F.2d 1115, 1120 (1st Cir. 1989).
Sacramona's next argument is that if there was
destruction, it was not done in bad faith. Certainly bad
faith is a proper and important consideration in deciding
whether and how to sanction conduct resulting in the
destruction of evidence. But bad faith is not essential. If
such evidence is mishandled through carelessness, and the
other side is prejudiced, we think that the district court is
entitled to consider imposing sanctions, including exclusion
of the evidence. See Nation-Wide Check Corp., Inc. v. Forest ___ _____________________________ ______
Hills Distrib., Inc., 692 F.2d 214, 219 (1st Cir. 1982); _____________________
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Unigard, 982 F.2d at 368 n.2; Headley, 141 F.R.D. at 365 & _______ _______
nn. 13-14.
Less need be said about Sacramona's further claim that
any evidence lost from damage to the wheel was evidence that
could only have favored the plaintiff. Yes, if the wheel had
been undamaged, it might have helped Sacramona by showing
marks indicating that the original leaking tire had been 16
inches. But the absence of such marks, had the tire not been
cleaned, would have helped the defendants by suggesting the
opposite. Plainly, this is not a case in which we can say
that the lost evidence could only have helped Sacramona.
2. Sacramona's final argument addressed to the sanction
presents a quite different and more troubling concern. In
Sacramona's petition for reconsideration, he argued (among
many other points) that a proportionate sanction for damage
to the wheel would merely prevent Sacramona from arguing that
the original tire was 16 inches. He also asserted that his
design defect claim remained viable, even if no 16-inch tire
had been on the wheel when it was brought into the service
station.
The defendants' response in the district court, renewed
on appeal, is that Sacramona's theory of design defect
depends on a showing that the injury in this case resulted
from an attempt to place a 16-inch tire on a 16-1/2-inch
wheel. And, say the defendants, the exclusion of the wheel
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(as a sanction for damaging the evidence) also should prevent
any proof that the wheel was 16-1/2 inches. In the district
court's own words at the time of its original ruling:
As a result of this exclusion [of the wheel],
plaintiff will be unable to produce any evidence or
testimony that a 16.5 inch wheel was involved in
the accident or that it was defective. Because
Sacramona's claim is premised entirely upon his
unprovable allegation that a 16-inch tire was in
dynamic service with a 16.5-inch wheel, there is no
genuine issue of material fact to support
Sacramona's allegations and, consequently,
defendants are entitled to summary judgment.
The problem with this reasoning, as we see it, is that
it gives the defendants a sanction that goes well beyond what
is necessary to cure the prejudice. Accepting the district
court's finding of damage by plaintiffs to the interior
surface of the wheel, the defendants were prejudicially
hindered in rebutting Sacramona's claim that he had removed a
16-inch tire from the wheel. A commensurate sanction might
have included an order barring Sacramona from claiming that
the original tire was 16 inches.
But neither the district court nor the defendants
explain why any broader sanction was needed to undo the harm
caused by the wheel's cleaning. In fact, one defendant
apparently urged the more limited sanction--precluding
Sacramona's claim that the original tire was 16 inches--as an
alternative to dismissal. And there is no finding that the
damage was willfully intended to deprive the defendants of
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helpful evidence, arguably a basis for a sanction that does
more than undo the harm.
Nevertheless, a narrowing of the sanction would not have
saved the negligence claim against the defendants. Under
Massachusetts law, contributory negligence by the victim is a
bar to any recovery if it represents more than 50 percent of
the total negligence on both sides. Mass. Gen. Laws ch. 231,
85. Whether or not the wheel or tire might have been more
safely designed, it would be patent negligence by the
plaintiff to select a 16-inch tire as a replacement without
some good reason to think that the wheel was also 16 inches.
Sacramona's only asserted basis for selecting the 16-
inch replacement was that the leaking tire taken from the
wheel was a 16-inch tire, presumably based on its labeling.
If Sacramona were precluded from making that claim, a finding
of serious negligence on Sacramona's part could hardly be
avoided. Indeed, Sacramona would appear to be doubly
negligent: first in selecting the 16-inch tire without any
basis for doing so and, second, in his repeated efforts to
seat and inflate the tire even when failure showed that
something was wrong. Thus, even if the sanction were limited
as Sacramona suggests, his negligence claim would still fail.
We therefore affirm summary judgment on this claim.
The more limited sanction, however, would not
necessarily preclude the warranty claim. Contributory
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negligence is not an automatic defense to a warranty claim
under Massachusetts law. Colter v. Barber-Greene Co., 525 ______ __________________
N.E.2d 1305, 1313-14 (Mass. 1988). This, in turn, brings us
to the district court's alternative ground for dismissing the
warranty claim.
3. Neither side disputes that Massachusetts law
embodies a notice requirement for warranty claims. As the
rule has been formulated, a plaintiff must give reasonably
prompt notice of his warranty claim to the potential
defendant; if he fails to do so, and the defendant is thereby
prejudiced, the warranty claim is barred even if it is
brought within the statute of limitations. Although merely
implied by a Massachusetts statute, Mass. Gen. Laws ch. 106,
2-318, case law has fleshed out the notice requirement.
Castro v. Stanley Works, 864 F.2d 961, 963 (1st Cir. 1989); ______ _____________
Cameo Curtains, Inc. v. Philip Carey Corp., 416 N.E.2d 995, _____________________ ___________________
998 (Mass. App. Ct. 1981).
Whether notice is unreasonably delayed can be a thorny
issue but, in this case, undue delay is obvious and Sacramona
does not even argue to the contrary. And assuming an
unreasonable delay in notice, the prejudice showing is
relatively easy: it is enough that the delay may well have
deprived the defense of useful evidence. No showing is
required that lost evidence would inevitably have altered the
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outcome. Castro, 864 F.2d at 964. In short, the notice ______
requirement has real teeth.
The reason for this rule in Massachusetts is that
warranty liability combines features that place potential
defendants at serious risk: strict liability, lack of
privity, and a statute of limitations that may run not from
the sale but from the injury. Cameo Curtains, 416 N.E.2d at ______________
997. As a counterweight, the requirement of prompt notice
allows the defendant to gather evidence in timely fashion;
without such notice, a defendant could easily be surprised by
a lawsuit many years after selling its products. Cf. Castro, ___ ______
864 F.2d at 963.
In the present case, notice was plainly delayed; and the
district court found that the requisite prejudice had been
shown by the defendants. On appeal, Sacramona contests this
latter finding on two related grounds: first, that
prejudice, in this context, is an issue for the jury under
Massachusetts law; and, second, that the district court in
finding prejudice resolved disputed issues on summary
judgment without giving the benefit of doubts and inferences
to the non-moving party.
Massachusetts does treat the defense as a jury issue,
Henrick v. Coats Co., Inc., 458 N.E.2d 773, 774-75 (Mass. _______ ________________
App. Ct. 1984), and--regardless of whether this practice
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would be binding on a federal court2--we ourselves treat as a
jury issue fact questions presented by a statutes of
limitation defense, Villarini-Garcia v. Hospital Del Maestro, ________________ _____________________
Inc., 8 F.3d 81, 84 (1st Cir. 1993), which offers an analogy ____
to the notice requirement. But the question remains whether
a reasonable jury would still have been compelled to find
prejudice here.
We review such determinations de novo, assuming that the _______
jury would credit the non-movant's version of events. E.g., ____
Continental Ins. Co. v. Arkwright Mutual Ins. Co., 102 F.3d ____________________ _________________________
30, 33 n.4 (1st Cir. 1996). Yet, even if the jury found that
Carroll had not caused prejudicial damage to the wheel, the
loss of the remaining evidence would be beyond dispute: the
original leaking tire, the other wheels and tires on the
customer's van, and the equipment in the garage, including
the tire changer, the pressure gauge, and the manuals. This
material might have been salvaged if Sacramona had given
prompt notice to the defendants after the accident; instead,
he waited three years.
The original tire itself, without more, could have been
very helpful evidence. If it had proved to be 16-1/2 inches,
____________________
2The extent to which state jury practice binds a federal
court in a diversity case involves consideration of the Erie ____
doctrine, the Rules of Decision Act, and the Seventh
Amendment. See generally Byrd v. Blue Ridge Rural Elec. ______________ ____ _______________________
Coop., 356 U.S. 525 (1958); Herron v. Southern Pacific Co., _____ ______ _____________________
283 U.S. 91 (1931). We need not pursue the subject here.
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this might have persuaded the jury that the cause of the _____
accident was Sacramona's own conduct rather than any design
defect. See Colter, 525 N.E.2d at 1312. Of course, since ___ ______
contributory negligence is not a defense to the warranty
claim, the jury would have had some latitude. But to show
prejudice based on a lack of notice, the defendants needed
only to prove that evidence was lost that might well have
helped them, and that they have done.
In fact, on appeal Sacramona makes relatively little
effort to show how a jury could have failed to find
prejudice. His factual appraisal of lost evidence is
confined to question whether the wheel was damaged; for the
rest, his brief simply asserts that prejudice is a jury
issue. Indeed, it is--but only where a reasonable jury could
decide the issue either way. Here, given the low threshold
for the showing and the admitted loss of evidence, the
outcome on this issue was inevitable.
Affirmed. _________
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