Poulin v. Greer

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1803

GERALD POULIN AND BRENDA POULIN,

Plaintiffs, Appellants,

v.

ALEXANDER MACDONALD GREER, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge,

Bownes, Senior Circuit Judge,

and Selya, Circuit Judge.

Paul W. Chaiken, with whom Robert C. Granger, Brent A. Singer,

and Rudman & Winchell were on brief for appellants.

Harrison L. Richardson, with whom John B. Lucy and Richardson,

Troubh & Badger were on brief for appellees.

March 24, 1994

BOWNES, Senior Circuit Judge. This diversity
BOWNES, Senior Circuit Judge.

action arises out of a motor vehicle accident. In the pre-

dawn of a late summer day in Maine, plaintiff-appellant1

Gerald Poulin sustained serious injuries after driving his

truck into the flatbed of a tractor-trailer which was

blocking the road. Subsequently, Poulin sued the tractor-

trailer's driver, Alexander Greer, and its owner, McConnell

Transport, Ltd. A jury found defendants not liable on the

ground that Greer's negligence was not the proximate cause of

Poulin's injuries.2 We affirm.

I.
I.

BACKGROUND
BACKGROUND

It was a clear, dry morning on September 11, 1990.

Sometime before 5:00 a.m., while it was still dark, Greer was

travelling south along Route 191 in Maine, hauling a load of

baled straw. Having missed his turn-off, Greer attempted to

turn around in the driveway of Ray's Country Store which was

1. More precisely, plaintiff-appellants in this action are
Poulin, who seeks damages for his personal injuries, and his
wife Brenda, who seeks damages for loss of consortium.

2. Although the special interrogatories submitted to the
jury instructed the jury to stop answering questions if it
found that Greer's negligence was not the proximate cause of
Poulin's injuries, the jury ignored this directive and went
on to find that Poulin's negligence was the proximate cause
of his injuries, and that Poulin's negligence was equal to or
greater than Greer's. Under Maine law, the latter finding
would have been sufficient to defeat plaintiffs' claim. See

Me. Rev. Stat. Ann. tit. 14, 156 (West 1980) ("If such
claimant is found by the jury to be equally at fault, the
claimant shall not recover.").

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located off the west side of the road. While Greer was

executing this maneuver, the rear wheels of his tractor

became stuck in a drainage ditch off the east side of the

road. The tractor of Greer's truck had turned around and

faced north; the flatbed or trailer portion of the truck sat

at a forty-five degree angle across the road, blocking both

lanes of traffic.

Greer turned on the yellow revolving beacon atop

the tractor, as well as its hazard lights. The truck's

headlights were on low beam, facing oncoming, i.e.,

southbound, traffic. Although Greer testified that he had

reflective triangles in the truck, he never placed them on

the road as a warning to approaching traffic. The trailer

had a reflector on both sides of its base and on each back

corner.

At approximately 4:40 a.m., Horace "Denny" Lyon

arrived at the scene. Lyon was travelling north on Route 191

when he saw the yellow revolving beacon of Greer's truck from

about 200 yards away. Initially Lyon thought that a

"wrecker" was towing a disabled car off the road. He slowed

down as he approached. Once Lyon was within seventy-five

feet of the truck, he realized that there was a flatbed

trailer loaded with straw blocking the road. He pulled into

the driveway at Ray's, stopped his vehicle, and spoke briefly

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with Greer. After promising to call the police, Lyon went on

his way.

Shortly before 5:00 a.m., another driver

encountered the jackknifed truck. Ricky Frye was travelling

north on Route 191 when he saw a large black silhouette

blocking the road about 100 yards in front of him. Before

pulling into the driveway at Ray's, Frye noticed the rear

reflectors on Greer's trailer. After getting out of his

truck, Frye noticed that the yellow revolving beacon on

Greer's truck and its headlights were both on.

The crash occurred only minutes after Frye arrived

at the scene. Both he and Greer, who were talking to each

other outside of Ray's at the time, saw Poulin's car

approaching. Unlike Lyon and Frye, Poulin was headed south

on Route 191. Although they expected Poulin to see the

truck, he apparently did not. Poulin neither swerved nor

braked as he plowed head on into the flatbed full of straw.

He suffered serious injuries.

Plaintiffs commenced this diversity action in

United States District Court for the District of Maine.

After the jury returned a verdict in defendants' favor,

plaintiffs appealed.

II.
II.

DISCUSSION
DISCUSSION

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Plaintiffs seek a new trial on the grounds that:

(1) the district court erroneously instructed the jury as to

Greer's duties as a truck driver and erred by declining to

give a missing witness instruction; (2) the district court

abused its discretion by refusing to exclude the testimony of

Carol Ricci as a sanction for defendants' alleged discovery

violation; and (3) the district court abused its discretion

in denying plaintiffs' motion to compel production of a

photograph of the accident scene taken one year after the

accident by a consultant retained by defendants.

1. The Jury Instructions
1. The Jury Instructions

Plaintiffs contend that the district court

committed reversible error by failing to instruct the jury

that, under Maine's comparative negligence statute, "[t]he

factfinder must be told [that] . . . it should give

consideration to the relative blameworthiness of the

causative fault of the claimant and the defendant," and that

"[d]eliberate disregard of safety rules must be judged more

severely than merely imperfect reaction to a crisis." Wing

v. Morse, 300 A.2d 491, 500 (Me. 1973). Because there was

evidence that Greer had violated various state and federal

safety regulations, plaintiffs claim that the jury could have

found that Greer had deliberately disregarded safety rules,

and that, therefore, his conduct should have been judged more

severely than Poulin's.

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Plaintiffs also maintain that the court's failure

to instruct the jury as to two federal safety regulations was

error. Specifically, plaintiffs maintain that the district

court should have instructed the jury (1) that Greer could

lawfully drive his tractor-trailer only if he was satisfied

that he had three emergency reflective triangles with him

ready for use, see 49 C.F.R. 392.8, 393.95(f)(2)(i)

(1992); and (2) that if Greer's attempt to turn around had

caused property damage of any kind, he had a duty to take all

necessary precaution to prevent additional accidents at the

scene. See 49 C.F.R. 392.40 (1992).

Finally, plaintiffs argue that the court's failure

to give a missing witness instruction constituted reversible

error. The court declined to instruct the jury that it could

draw an adverse inference from the fact that Greer did not

testify at trial. Greer lived beyond the subpoena power of

the court, and chose not to attend the trial. His deposition

testimony was entered into evidence.

In response, defendants contend that the failure to

give plaintiffs' requested instructions was not erroneous,

but, in any event, plaintiffs waived their challenges by

failing to comply with Fed. R. Civ. P. 51.

Before the district court charged the jury, it

received proposed instructions from the parties and held a

pre-charge conference. At the conference, the court informed

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the parties which portions of their proposed instructions it

would read. Plaintiffs duly stated their objections to the

court's omission of various portions of their proposed

charge, including those portions at issue on this appeal.

After the court instructed the jury, the judge called counsel

over to the sidebar and asked: "Okay. First, in addition to

any objections previously made, do you have an objection you

wish to make as to the general content of the instructions at

this time?" Plaintiffs' counsel replied, "No."

Rule 51 of the Federal Rules of Civil Procedure

provides that, "[n]o party may assign as error the giving or

failure to give an instruction unless that party objects

thereto before the jury retires to consider its verdict. . .

." "We have construed the Rule's requirement that a party

must object `before the jury retires to consider its verdict'

to mean that the objection must be made after the

instructions are given to the jury." Smith v. Massachusetts

Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied,

493 U.S. 965 (1989); see Phav v. Trueblood, Inc., 915 F.2d

764, 769 (1st Cir. 1990); McGrath v. Spirito, 733 F.2d 967,

968 (1st Cir. 1984). Even if plaintiffs' requested

instructions had been proper, counsel's failure to object to

their omission after the charge constitutes waiver of the

objection. See Smith, 877 F.2d at 1109; Wells Real Estate,

Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809

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(1st Cir.) (collecting cases), cert. denied, 488 U.S. 955

(1988).

The record here is clear: no objection was made by

plaintiffs after the charge. The district court's post-

charge indication that the parties' prior objections would be

preserved is of no help to plaintiffs. "A trial court's

statement after the charge that objections made prior to it

will be saved does not absolve an attorney from following the

strictures of the rule. Objections cannot be carried

forward. The rule is binding on both the court and attorneys

and neither can circumvent it." McGrath, 733 F.2d at 969;

see Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir. 1992)

("It is the obligation of trial counsel, as well as the trial

court, to comply with the strict requirements of the Rule.").

Because of plaintiffs' failure to comply with Rule

51, we review the trial court's instructions only for plain

error. The "plain error" rule "`should be applied sparingly

and only in exceptional cases or under peculiar circumstances

to prevent a clear miscarriage of justice.'" Wells Real

Estate, 850 F.2d at 809 (quoting Nimrod v. Sylvester, 369

F.2d 870, 873 (1st Cir. 1966)); see Elgabri, 964 F.2d at

1259. Under the "plain error" exception, an erroneous

instruction warrants a new trial only where the error

"seriously affected the fairness, integrity or public

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reputation of the judicial proceedings." See Lash v. Cutts,

943 F.2d 147, 152 (1st Cir. 1991); Smith, 877 F.2d at 1110.

Our review of the record reveals nothing

exceptional about this case. It is evident that no "clear

miscarriage of justice" has occurred, and therefore no "plain

error" exists.3

2. Refusal to Preclude The Testimony of Carol Ricci
2. Refusal to Preclude The Testimony of Carol Ricci

Plaintiffs contend that defendants violated their

duty to supplement answers to plaintiffs' interrogatories

pursuant to Fed. R. Civ. P. 26(e)(2)(B).4 Because of this

3. In fact, we doubt if there was any error at all in the
trial court's instructions. In reviewing a court's decision
not to give a particular instruction, our duty is to
determine whether the instructions as given tend to confuse
or mislead the jury with regard to the applicable principles
of law. Computer Indentics Corp. v. Southern Pacific Co.,

756 F.2d 200, 205 (1st Cir. 1985). If the judge's
instruction properly informs the jury of the applicable law,
failure to give the exact instruction requested does not
prejudice the objecting party. Service Merchandise Co. v.

Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983). In the

present case the district court's instructions clearly and
concisely explained the applicable law to the jury, while
avoiding the repetitiveness of plaintiffs' proffered charge.
Furthermore, we do not believe that the district court abused
its discretion in refusing to give a missing witness
instruction. See United States v. Arias-Santana, 964 F.2d

1262, 1268 (1st Cir. 1992) (refusal to give a "missing
witness" instruction reviewed for abuse of discretion).

4. The applicable version of Fed. R. Civ. P. 26(e), in
effect prior to December 1, 1993, provides in pertinent part:

A party who has responded to a request
for discovery with a response that was
complete when made is under no duty to
supplement the response to include
information thereafter acquired, except .
. . (2) A party is under a duty to
seasonably amend a prior response if the

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alleged violation, plaintiffs maintain that the district

court should have sanctioned defendant by excluding the

testimony of Carol Ricci, and that the court abused its

discretion by not doing so.

During discovery, defendants were asked to provide

plaintiffs with the name of every witness known to them who

could provide information about the accident. Defendants

were also asked whether each witness named "gave any

statement or account, either oral or in writing, of his or

her knowledge of the alleged occurrence." If a witness had

made any such statement, plaintiffs asked the defendants to

supply the substance of the same. Plaintiffs also asked

defendants whether they, or any of their agents, had received

any oral or written statements from anyone who had knowledge

or information with respect to the accident, and if so,

defendants were asked to supply the name of the person making

the statement and its substance. In their answers to both

lines of inquiry, dated August 1992, defendants named only

Greer and Frye. It is undisputed that at the time defendants

responded their answers were complete.

party obtains information upon the basis
of which . . . (B) the party knows that
the response though correct when made is
no longer true and the circumstances are
such that a failure to amend the response
is in substance a knowing concealment.

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In November 1992, after speaking with Ray Ketchen,

the owner of Ray's Country Store, defendants learned that

Lyon might have some information about the accident. Carol

Ricci, a paralegal, contacted Lyon by telephone and spoke

briefly with him. According to Ricci's notes, Lyon stated

"that [the] truck was easy to see" because of its "light on

top" and "running lights," and that "I seen it real easy when

I came up to it in [the] road." Defendants did not

supplement their answers to plaintiffs' interrogatories to

include Lyon and his statement. It is unclear whether

plaintiffs had spoken with Lyon prior to his conversation

with Ricci. Shortly thereafter, however, Lyon was

interviewed by plaintiffs and informed them he had spoken

with Ricci. Defendants quickly learned that Lyon told

plaintiffs that he had spoken with Ricci. By the time the

trial commenced in May 1993, plaintiffs' counsel had met with

and interviewed Lyon on at least three separate occasions.

At trial, Lyon testified that, although he saw the

yellow revolving beacon from a distance, the trailer of the

truck, which was blocking the road, was not easy to see. In

fact, Lyon testified that he did not see the truck until he

was right on top of it.5 On cross-examination, Lyon denied

that he told Ricci that the truck was "easy to see."

5. On cross-examination Lyon explained that this meant
approximately seventy-five feet away.

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Defendants sought to have Ricci testify as a

"rebuttal" witness. Plaintiffs objected to Ricci testifying

because she was not listed on defendants' pre-trial witness

list, and because defendants had violated their duty under

Rule 26(e)(2)(B) to supplement their answers to

interrogatories. The court rejected plaintiffs' arguments,

and allowed Ricci to testify.

Defendants argue that their failure to supplement

was not a violation of Rule 26(e)(2)(B) because there was no

"knowing concealment" on their part. They knew that

plaintiffs had spoken with Lyon, and that plaintiffs had

ascertained that Lyon had spoken to Ricci. Defendants,

therefore, assumed that Lyon communicated to plaintiffs the

same thing that he told Ricci. Under these circumstances

defendants maintain that there was no "knowing concealment."

In reviewing a trial court's ruling on whether a

discovery-related rule was violated, the abuse of discretion

standard controls. See Thibeault v. Square D. Co., 960 F.2d

239, 243 (1st Cir. 1992); In re San Juan Dupont Hotel Fire

Litigation, 859 F.2d 1007, 1019 (1st Cir. 1988). "The

knowing-concealment clause does not require fraudulent

intent; rather it is designed to protect a party who

reasonably believes `that the change that has made [an]

answer no longer accurate is known to [the party's] opponent

or that it is a matter of no importance.'" Fusco v. General

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Motors Corp., Nos. 92-2473 and 93-1801, slip op. at 16 n.6

(1st Cir. Dec. 6, 1993) (quoting Fortino v. Quasar Co., 950

F.2d 389, 396 (7th Cir. 1991)). Moreover, "[w]e have read

Rule 26(e) generously, in light of its dual purposes, the

`narrowing of issues and elimination of surprise.'" Id.

(quoting Johnson v. H.K. Webster, Inc., 775 F.2d 1, 7 (1st

Cir. 1985)).

Viewing defendants' actions in the context in which

they arose, we do not believe that the district court abused

its discretion by not finding a Rule 26 violation. The court

accepted defendants' contention that they were surprised by

Lyon's trial testimony, and that they reasonably thought

plaintiffs knew about the change which rendered their

interrogatory answers inaccurate. The record supports

defendants' contention that the concealment in this case was

not "knowing."

Assuming, arguendo, that defendants' failure to

supplement did constitute a discovery rule violation, we

still do not think that the district court's refusal to

preclude Ricci's testimony warrants a new trial. Although

plaintiffs argue that a trial court may preclude testimony as

a sanction, they fail to explain why preclusion was a

necessary sanction in this case. Plaintiffs argue only that

the district court should have precluded Ricci's testimony

because Lyon was a "key witness." A trial court's choice of

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sanction for such a discovery violation is reviewed for abuse

of discretion. See Prentiss & Carlisle v. Koehring-Waterous,

972 F.2d 6, 9 (1st Cir. 1992); Jackson v. Harvard Univ., 900

F.2d 464, 469 (1st Cir.), cert. denied, 498 U.S. 848 (1990).

This standard of review presupposes that the district court

possesses a wide latitude in formulating the appropriate

sanction, if any, for a discovery violation. See Jackson,

900 F.2d at 469 ("appellate inquiry is limited to whether the

trial court's chosen course of action came `safely within the

universe of suitable' alternatives" (quoting Fashion House,

Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989))).

A district court confronted with a violation of

Rule 26(e) may choose from a variety of sanctions. See

Thibeault, 960 F.2d at 245. Although preclusion is one of

the sanctions available, the court is empowered to take

whatever action it deems appropriate after considering all of

the circumstances surrounding the violation. Id. The

presence of surprise and prejudice play a central role in our

review of a district court's decision to preclude or not to

preclude testimony. Id.

Although plaintiffs might have been surprised upon

learning of the content of Lyon's statement to Ricci, it is

difficult to discern any prejudice arising from defendants'

belated disclosure of the same. Lyon's testimony was

important to plaintiffs' case because of the time at which he

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saw Greer's truck, not because he was unable to see the

trailer clearly from a distance. Plaintiffs' position

throughout the trial was that, although Greer's truck had

been disabled for approximately twenty minutes prior to the

accident, he never placed his reflective triangles along the

highway to alert oncoming vehicles of potential danger. Lyon

was the only witness who could place Greer's truck at the

scene twenty minutes prior to the crash. In fact,

plaintiffs' counsel, in arguing for the preclusion of Ricci's

testimony, stated that, "[w]hat's important with Mr. Lyon is

the time, not whether he could see the trailer."

Furthermore, Lyon was travelling north on Route

191, whereas Poulin was travelling south. Therefore, Lyon's

testimony on the issue of the trailer's visibility was of

limited probative value. In fact, the issue of the truck's

visibility from the standpoint of a southbound driver was the

subject of extensive expert testimony offered by both sides.

Finally, plaintiffs never requested a recess prior to Ricci's

testimony in order to counter its alleged force. See Smith,

877 F.2d at 1111 ("`Courts have looked with disfavor upon

parties who claim surprise and prejudice but who do not ask

for a recess so that they may attempt to counter the opponent

testimony.'" (quoting Johnson, 775 F.2d at 7)).

Thus, even if defendants did commit a discovery

violation, the district court could reasonably determine that

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plaintiffs did not suffer any prejudice, and, given

defendants' plausible explanation for their failure to

supplement, that any violation was not willful. The district

court did not, therefore, abuse its discretion when it

declined to sanction any discovery violation and allowed

Ricci's testimony. See, e.g., Prentiss & Carlisle, 972 F.2d

at 9 (absent prejudice to plaintiff district court did not

abuse its discretion by refusing to preclude testimony);

Jackson, 950 F.2d at 469 (preclusion is a grave step, and

"`by no means an automatic response . . . where failure to

make discovery [is] not willful'" (quoting Freeman v. Package

Machinery Co., 865 F.2d 1331, 1341 (1st Cir. 1988))).

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3. Production of the Photographs
3. Production of the Photographs

In the course of discovery, plaintiffs moved to

compel the production of photographs depicting a recreation

of the accident scene taken exactly one year after the crash

by a transportation consultant named Murray Segal. The

district court denied the motion, and found, inter alia:

1. Murray D. Segal is a transportation
consultant hired by Defendants' insurer
in anticipation of this litigation;

2. Murray D. Segal is not expected to be
called as a witness at trial;

3. The photographs Plaintiffs seek to
have produced were taken by Murray D.
Segal. They depict the actual truck and
load involved in the accident which is
the subject of this action. However,
they were taken one year after the
accident. They are not irreplaceable
photographs of the actual scene of the
accident;

4. Plaintiffs have not shown that they
could not have substantially duplicated
the photographs themselves using a
similar truck and load, nor have they
shown any attempt to recreate the
accident scene using the truck and load
which were involved in the accident at
any time during the pendency of this
litigation;

In addition to denying plaintiffs' motion, the court

prohibited defendants from introducing any evidence or

testimony related to the photographs. Rule 26(b)(3) of the

Federal Rules of Civil Procedure provides in relevant part

that,

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a party may obtain discovery of documents
and tangible things otherwise
discoverable . . . and prepared in
anticipation of litigation or for trial
by or for another party['s attorney] . .
. only upon a showing that the party
seeking discovery has substantial need of
the materials in the preparation of the
party's case and that the party is unable
without undue hardship to obtain the
substantial equivalent of the materials
by other means.

Fed. R. Civ. P. 26(b)(3). On appeal plaintiffs concede that

the photographs constitute work product, but maintain that

they demonstrated the requisite substantial need and

inability to obtain substantially equivalent photographs.

District courts have broad discretionary powers to

manage cases and, concomitantly, to manage pretrial

discovery. See Maynard v. CIA, 986 F.2d 547, 567 (1st Cir

1993); see also Thibeault, 960 F.2d at 242; San Juan Dupont

Hotel Fire Litigation, 859 F.2d at 1019. Appellate

intervention in such matters is warranted, "`only upon a

clear showing of manifest injustice, that is, where the lower

court's discovery order was plainly wrong and resulted in

substantial prejudice to the aggrieved party.'" Maynard, 986

F.2d at 567 (quoting Mack v. Great Atlantic & Pacific Tea

Co., 871 F.2d 179, 186 (1st Cir. 1989)).

We see no "manifest injustice" in the district

court's order denying plaintiffs' motion to compel production

of the Segal photographs. As the court lucidly explained,

plaintiffs could have hired a similar truck and conducted a

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"recreation" comparable to the one commissioned by

defendants. Any photographs taken at plaintiffs' staging of

the accident scene would have provided satisfactory

alternatives to defendants' photographs. But, plaintiffs

never sought to obtain such photographs, and it appears that

their failure to do so was a result of their own inaction.

Finally, we fail to see how plaintiffs were prejudiced by the

court's refusal to order production of photographs that it

prohibited the defendants from introducing in evidence.

Our examination of the pertinent facts reveals no

error let alone an abuse of discretion in the district

court's order.

Affirmed.
Affirmed.

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