Cameron v. Otto Bock Orthopedic Industry, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2305

WILLIAM CAMERON, ET AL.,

Plaintiffs, Appellants,

v.

OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Albert E. Grady with whom Office of Albert E. Grady was on brief

for appellants.
Ronald M. Davids with whom Michelle I. Schaffer and Campbell &

Associates, P.C. were on brief for appellee.

December 30, 1994

BOUDIN, Circuit Judge. In March of 1990, William

Cameron, whose left leg had been amputated below the knee in

1965, was fitted with a prosthetic leg. The prosthesis was

assembled by Mr. Cameron's prosthetist from components

originally sold by various suppliers, including Otto Bock

Orthopedic Industry, Inc. ("Otto Bock"). Specifically, the

artificial limb featured an Otto Bock pylon, which is an

aluminum tube that substitutes for the missing portion of the

leg, and an Otto Bock clamp, which attaches the pylon to an

artificial foot manufactured and sold by another company.

On May 28, 1991, Mr. Cameron fell when the Otto Bock

pylon in his artificial leg broke into two pieces. Cameron

alleged that he suffered a fractured pelvis and emotional

damage as a result of the fall. Based on diversity

jurisdiction, Mr. Cameron sued Otto Bock in federal court,

charging negligence and breach of warranty. His wife, Kay

Cameron, claimed loss of consortium.

The case was tried by a jury in 1993. Each side

attributed the failure of the leg to a different cause. The

Camerons claimed that the pylon and clamp had been

negligently and defectively designed. Otto Bock's expert

testified that the prosthesis broke because the screw that

fastened the pylon to the clamp had been "overtorqued," or

screwed too tightly, by the prosthetist, despite a warning

against overtightening by Otto Bock. The Camerons said that

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the instructions should have been more detailed. The jury

found in favor of Otto Bock and the Camerons appeal.

In this court, the Camerons' claims of error concern two

rulings by the district court excluding evidence offered by

them. The first ruling excluded several so-called "product

failure reports" sent from prosthetists to Otto Bock. These

excluded reports, all dated after Mr. Cameron's accident,

detail the alleged failures of other prosthetic legs. The

second group of excluded documents consisted of "Dear

Customer" letters, sent by Otto Bock to prosthetists after

the Cameron accident, that provided specific torque

measurements to be used when screwing the pylon to the clamp.

1. The product failure reports in question are one-

page standardized forms that a prosthetist must fill out in

order to obtain a refund or credit for an Otto Bock product.

The forms were designed by Otto Bock, but were completed by

prosthetists who, in turn, typically obtained their

information from conversations with their patients. The form

required information about the nature of the problem, the age

of the prosthesis, the demands placed on the prosthesis, and

the patient's activity when the accident occurred; the form

did not inquire directly about the cause of the problem.

The trial judge allowed the Camerons to introduce

product failure reports that were dated before Mr. Cameron's

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accident, solely to show notice on the part of Otto Bock.

The trial judge excluded several reports that were created

after Mr. Cameron's accident and it is this exclusion that

the Camerons claim to be error. There is some doubt whether

the Camerons adequately raised and preserved this claim--Otto

Bock says they did not. However, the district court did not

rest its exclusion on this ground and, as we uphold the

exclusion on the merits, we need not decide whether the

Camerons waived the issue.

The district court held that the exclusion of the

reports was proper because they were irrelevant, because they

did not fall within any exception to the hearsay rule, and

because they were more prejudicial than probative. We

commonly say that we review all three determinations solely

for an abuse of discretion.1 This may be a mild

overstatement since evidentiary rulings can sometimes contain

buried rulings of law reviewable de novo, or basic findings

of fact subject to clear error review. In this case, fine

distinctions about the standard of review would not affect

the outcome.

Unlike the pre-accident reports, which were admitted to

show notice on the part of Otto Bock, the post-accident

1United States v. Brandon, 17 F.3d 409, 444 (1st Cir.

1994) (relevancy determinations); Elgabri v. Lekas, 964 F.2d

1255, 1261 (1st Cir. 1992) (hearsay and business records
exception); Raymond v. Raymond Corp., 938 F.2d 1518, 1523

(1st Cir. 1991) (more prejudicial than probative).

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reports describe incidents that took place after Mr.

Cameron's accident, and thus have no bearing on notice.

Neither are they relevant as evidence of a design defect.

The reports of other incidents would be probative evidence of

the existence of a design defect only if the incidents

occurred under circumstances substantially similar to those

surrounding Mr. Cameron's accident. Vincent v. Louis Marx &

Co., Inc., 874 F.2d 36, 43 (1st Cir. 1989); McKinnon v. Skil

Corp., 638 F.2d 270, 277 (1st Cir. 1981). The circumstances

of the post-accident incidents are entirely unknown.

We also think that there is an adequate basis for the

district court's alternative conclusion that the reports

contained inadmissible hearsay. This did not matter as to

pre-accident reports offered solely to show notice; but in

order to show defect, the truth of the reports is critical.

Yet it appears that the information contained in the reports

was provided to Otto Bock from independent prosthetists who

themselves derived some or all of the information from their

own patients.

While the reports may be part of the business records of

Otto Bock in a colloquial sense, that does not render

admissible information contained in the records whose source

is a non-party to the business. Under Fed. R. Evid. 803(6),

the report must be made by a person acting "in the course of

a regularly conducted business activity." It is quite clear

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that the prosthetists' patients are not part of Otto Bock's

business. The case is akin to Petrocelli v. Gallison, 679

F.2d 286, 290 (1st Cir. 1982), where we held that a hospital

patient who related his medical history "is not part of a

`business' routine in which he is individually a regular

participant."

We thus have no reason to consider whether the business

records exception might apply if the information were

generated solely by the prosthetists in the course of their

own businesses. See Fed. R. Evid. 805 (hearsay exceptions

can be layered). Conversely, we need not pass on the

suggestion that the adverse interests of the prosthetists--in

obtaining refunds and warding off lawsuits against them--

might permit exclusion of any business records they

themselves generated as to the cause of a failure under the

exclusion for business records whose source "indicate[s] lack

of trustworthiness." Fed. R. Evid. 803(6). See Palmer v.

Hoffman, 318 U.S. 109 (1943).

Since both the relevance and hearsay objections are well

founded, we need not consider in detail the district court's

further ruling that prejudice would substantially outweigh

relevance. Fed. R. Evid. 403. We do note that the lack of

proof of similarity of circumstances reinforces any decision

to exclude under Rule 403. Additionally, in this kind of

balancing of prejudice and relevance, abuse of discretion is

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undoubtedly the test on review, and Rule 403 judgments,

calling on the district court's "feel" for the situation, are

quite unlikely to be disturbed.

2. The Camerons' other challenge is to the trial

judge's exclusion of letters sent by Otto Bock to its

prosthetist customers after Mr. Cameron's fall. These "Dear

Customer" letters specified, inter alia, the specific torque

levels that should be observed in screwing the pylon to the

clamp in prosthetic limbs like Mr. Cameron's. Arguably these

letters, if sent earlier, would have prevented Mr. Cameron's

accident. The Camerons contend that such letters are

evidence that Otto Bock breached its warranties of

merchantability and fitness for a particular purpose.

The trial judge excluded the letters on the ground that

the furnishing of precise torque measurements was a safety

measure undertaken after the accident, and thus inadmissible

under Federal Rule of Evidence 407, which 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.

The Camerons argue first that the Dear Customer letters

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should have been admitted to show the feasibility of

providing the torque measurements earlier and to show the

control Otto Bock exerted over its prosthetist customers.

These exceptions apply, however, only "if" feasibility or

control are "controverted." The feasibility of giving the

torque measurements was certainly not controverted. The

defense offered to stipulate to feasibility, cf. Raymond v.

Raymond Corp., 938 F.2d 1518 (1st Cir. 1991); and when the

Camerons rejected the offer, apparently for tactical reasons,

the district court instructed the jury that the further

information could feasibly have been distributed.

"Control" is also a non-issue. Otto Bock never disputed

that it provided advice to the prosthetists who assembled its

products. Nor did it deny that providing more detailed

measurements might have avoided the accident; indeed, its

position was that the screw was overtightened and it had

never provided specific numbers prior to the accident. If

the Camerons justify the introduction of the letters in order

to show causation, as their brief implies, then we think that

the "if controverted" condition is not satisfied.

The Camerons do not appear to be claiming that the

prosthetists were effectively employees of Otto Bock so that

it might be vicariously liable for the negligence of

Cameron's own prosthetist on a master-servant theory. Even

if the Camerons had advanced such a claim, the raw fact that

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Otto Bock provided directions for the use of its product was

undisputed and that is the most that the Camerons would be

entitled to derive from the letters. There may also be some

doubt whether "control" in the master-servant sense is what

the drafters of Rule 407 had in mind, but we need not explore

this interesting issue.

The Camerons also argue that the Dear Customer letters

should have been admitted as direct evidence of breach of

warranty--i.e., as evidence that the Otto Bock components

were defective--because, under Massachusetts law, such

evidence might be admissible in a state trial. This circuit,

however, has long held that the Federal Rules of Evidence,

and specifically Rule 407, apply in diversity proceedings,

because they "address procedural matters, [were] duly passed

by Congress, [and] shall be presumed constitutionally valid

unless they cannot rationally be characterized as rules of

procedure." McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st

Cir. 1985). Compare Fed. R. Evid. 501 (providing that state

privilege law governs in diversity cases).

Finally, the Camerons argue that, even if Rule 407

applies, by its terms it prohibits evidence of subsequent

remedial measures only "to prove negligence or culpable

conduct in connection with the event." The Camerons argue

that breach of warranty, according to Massachusetts law, does

not constitute "negligence or culpable conduct." We recently

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rejected this very argument in Raymond v. Raymond Corp., 938

F.2d 1518, 1522 (1st Cir. 1991). The Camerons urge us to

reconsider Raymond, but they offer us no grounds for doing so

that were not before this court in that case.

Affirmed.

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