United States Court of Appeals
For the First Circuit
No. 99-1779
ELIZABETH WILSON, INDIVIDUALLY AND AS MOTHER
AND NEXT FRIEND OF ALISA DEBOLD; ALISA DEBOLD,
Plaintiffs, Appellants,
v.
BRADLEES OF NEW ENGLAND, INC., UNION UNDERWEAR COMPANY, INC.
PARADISE SCREEN PRINTING CO., a/k/a PARADISE SCREEN PRINTING,
INC., SHARKY’S SPORTSWEAR CO., a/k/a SHARKY’S CLOTHING CO.,
a/k/a/ SHARKY’S DRY GOODS COMPANY, a/k/a SPORTSWEATS, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
and Stearns,* District Judge.
Thomas Craig with whom David Woodbury and the Law Offices
of Thomas Craig were on brief for appellants.
*Of the District of Massachusetts, sitting by designation.
Alexander J. Walker, Jr. with whom Richard E. Mills, Daniel
E. Will, Devine, Millimet & Branch, P.A., Michael J. Goldman and
Hawkins & Parnell, LLP were on brief for appellee Union
Underwear Company, Inc.
Dennis T. Ducharme with whom Wiggin & Nourie, P.A. was on
brief for appellees Sharky’s Sportswear Company and Paradise
Screen Printing Company.
May 17, 2001
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STEARNS, District Judge. This sad case began when
twelve year old Ailsa Debold, irritated by a whistling tea
kettle, leaned across a kitchen stove to turn off the burner.
Her blended cotton and polyester sweatshirt came in contact with
the burner and caught fire.1 Ailsa suffered disfiguring second
and third degree burns to her chest and abdomen.
Ailsa’s mother, Elizabeth “Jane” Wilson, brought this
lawsuit individually and as next friend of Ailsa.2 Named as
defendants were Union Underwear Company, Inc. (Union), the
manufacturer of Ailsa’s sweatshirt, Paradise Screen Printing
Company (Paradise), which had silk-screened a college logo on
the front of the sweatshirt, Sharky’s Sportswear Company
(Sharky’s), the sweatshirt’s wholesaler, and Bradlees of New
England, the retail seller of the sweatshirt to Ailsa’s mother.3
The sweatshirt was an adult-large size, purchased by Elizabeth
Wilson for her daughter in the Junior Miss Department of a
1
Ailsa was also wearing a t-shirt and camisole underneath
the sweatshirt. The sweatshirt and t-shirt were manufactured by
the defendant Union. The camisole was not. The remains of the
camisole were not preserved.
2
Ailsa and her mother will be designated collectively in
this opinion as a singular “plaintiff.”
3
Sharky’s and Paradise are affiliated companies and
consequently were treated as alter-egos during the litigation.
Bradlees was dropped from the case after seeking bankruptcy
protection for reasons unrelated to this case.
-3-
Bradlees store in Concord, New Hampshire, some five and one-half
months prior to the accident.
The case was filed on January 29, 1993, and came
previously before this court on plaintiff’s appeal of a district
court order granting summary judgment to all defendants. We
reversed the district court’s determination that the plaintiff’s
common-law products liability and failure to warn claims were
pre-empted by section 1203(a) of the Flammable Fabrics Act
(FFA), 15 U.S.C. §§ 1191-1204. See Wilson v. Bradlees of New
England, Inc., 96 F.3d 552, 558-559 (1st Cir. 1996) (holding
that a manufacturer’s compliance with the FFA textile
flammability standard is relevant, but not outcome
determinative). After remand and further discovery, the
district court granted summary judgment to Union on so much of
plaintiff’s failure to warn claim as involved the obvious danger
that clothing can catch fire.
Trial began on April 6, 1999. At the close of
plaintiff’s evidence, the district court granted Union’s motion
for judgment as a matter of law on the balance of plaintiff’s
failure to warn claim. Judgment also entered for Sharky’s on
plaintiff’s claim(s) of ordinary negligence. The case was
submitted to the jury on the remaining claims of defective
design, negligent manufacture, and strict products liability.
-4-
The jury, in answering a special verdict question, found that
the sweatshirt had not been defectively designed and, pursuant
to the instructions on the verdict slip, answered no further
questions. Judgment thereafter entered for Union and Sharky’s
and this appeal ensued.
DISCUSSION
Plaintiff raises a variety of issues on appeal, the
majority of which involve evidentiary rulings made by the
district court. At oral argument, plaintiff’s counsel stated
that the alleged errors had been briefed in their considered
order of importance. Consequently, they will be addressed for
the most part in the same sequence.
Dismissal of the Failure to Warn Claim
On February 3, 1999, two months prior to trial, the
district court entered partial summary judgment for Union,
dismissing so much of plaintiff’s failure to warn claim as
involved an obvious danger. While rejecting Union’s argument
that plaintiff was required to prove causation by expert
testimony, the district court tentatively agreed that the danger
that clothing can catch fire if exposed to a heated stove burner
is “probably obvious.”4 However, in light of Ailsa’s deposition
4
Under New Hampshire law, a manufacturer is not required to
give warnings against obvious dangers associated with the use of
a consumer product. Cheshire Medical Center v. W.R. Grace &
-5-
testimony that she had been warned by her parents that fabrics
can burn and that her clothing should be kept away from hot
objects like stoves, the district court concluded that any
necessity for a superabundant warning in Ailsa’s case was
“obviated.”5 The court, however, reserved for trial the issue
whether Union had a duty to warn of the “particular”
flammability characteristics of the sweatshirt that were not
obvious, specifically the possibility that the sweatshirt could
“ignite spontaneously,” could “be very difficult to extinguish,”
or could “melt and cause a more severe burn.”
At the close of plaintiff’s evidence, the district
court granted Union’s motion for judgment as a matter of law
pursuant to Rule 50(a) on the remainder of the duty to warn
claim. The district court’s reasoning was set out in a written
opinion denying plaintiff’s motion for a new trial. The court
found that plaintiff had failed to prove that a more
particularized warning as to the unwonted flammability
characteristics of the sweatshirt would have prevented Ailsa’s
Co., 853 F. Supp. 564, 566-567 (D.N.H. 1994), aff’d, 49 F.3d 26
(1st Cir. 1995).
5At trial, Ailsa also testified that she always took care to
insure that the kettle completely covered the burner because of
the danger to her clothing.
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spontaneous act of reaching for the kettle. 6 Review of the
district court’s Rule 50(a) ruling is plenary.7 Irvine v. Murad
Skin Research Laboratories, Inc., 194 F.3d 313, 317 (1st Cir.
1999).
Plaintiff’s attack on the district court’s ruling has
two facets. First, plaintiff claims that the court erred by
viewing the effect of a warning from Ailsa’s vantage, rather
than from the perspective of her mother. The argument is based
on a misreading of Bellotte v. Zayre Corp., 352 A.2d 723 (N.H.
1973).8 In Bellotte, the New Hampshire Supreme Court held that
6
Under New Hampshire law, strict liability, as well as
negligence, requires proof of causation. Thibault v. Sears
Roebuck & Co., 395 A.2d 843, 847 (N.H. 1978).
7Plaintiff does not quarrel with the district court’s ruling
that no warning of the obvious danger that clothing can burn was
required.
8
Plaintiff’s argument that the district court erred in
excluding Elizabeth Wilson’s testimony, that had the sweatshirt
displayed a warning label, she would have acted differently (by
not purchasing the sweatshirt or by being more emphatic in
warning Ailsa of the danger of fire), is premised on the
mistaken contention that the court should have adopted the
Bellotte “reasonable parent” standard. In any event, the
district court properly excluded the testimony under Rule 701 as
speculative and not based on Elizabeth Wilson’s contemporaneous
perceptions, a ruling well within the court’s discretion. See
Washington v. Department of Transportation, 8 F.3d 296, 299-300
(5th Cir. 1993). Of the two cases cited by plaintiff for the
contrary proposition, the first, Laramie v. Sears Roebuck & Co.,
707 A.2d 443 (N.H. 1998), is not on point as the defendant
raised no objection on appeal to the witness’s testimony that
had she been warned of the danger of scalding wastewater, she
would not have bathed her baby in the sink while the dishwasher
-7-
because a five year old child inherently lacks the capacity to
appreciate the unavoidable flammability danger inherent in all
clothing, to frame the “unreasonably dangerous” test from the
perspective of the child (as the plaintiffs in Bellotte urged)
would “make the seller an insurer, a path we decline to follow.”
Id. at 725. Consequently, the court determined that the test
should be framed in terms of the child’s parent who purchased
the clothing. The court, however, cautioned that “when it is
practical to do so the warning should be given to the person who
will use the product.” Id. Ailsa was twelve years old when the
accident happened and, in contrast to the five year old child in
Bellotte, or the three year old child in Price v. Bic Corp., 702
A.2d 330 (N.H. 1997), nothing in the record suggests that she
lacked the capacity to understand a warning.9
was running. The second case, Cyr v. J.I. Case Co., 652 A.2d
685 (N.H. 1994), is also distinguishable. In Cyr, a percipient
witness to a construction accident was properly permitted to
testify as to what her probable reaction would have been if she
had heard an alarm as a bulldozer backed up. The court,
however, also ruled that the trial court had properly excluded
the witness’s testimony speculating on what the victim’s
probable reaction would have been. Id. at 691.
9 On our reading of the affidavit submitted by Ailsa in
opposition to partial summary judgment we do not necessarily
agree with the district court’s remark that Ailsa would not have
“understood and appreciated the particular flammability
characteristics of the sweatshirt . . ., if those warnings had
been provided.” (Ailsa testified that she was not “aware” of
these characteristics, not that she did not comprehend them).
We do, however, agree with the district court’s more fundamental
-8-
The second facet of plaintiff’s attack is directed to
the district court’s failure to instruct the jury as to the so-
called “read and heed” presumption approved by Restatement
(Second), Torts, § 402A, comment j.
Where warning is given, the seller may
reasonably assume that it will be read and
heeded; and a product which is safe for use
if it is followed, is not in defective
condition, nor is it unreasonably dangerous.
While it is clear from plaintiff’s brief that it is Elizabeth
Wilson and not her daughter for whom the presumption is
principally advocated, Ailsa, as Bellotte instructs, is the
appropriate focus. While the district held, accurately in our
view, that no evidence had been presented that a particularized
warning would have prevented Ailsa’s instinctual reaction,
plaintiff’s argument also founders on the fact that New
Hampshire has not adopted the “read and heed” presumption, and
we will not do so on its behalf. Plaintiff chose to bring this
lawsuit in federal court. “[L]itigants who reject a state forum
in order to bring suits in federal court under diversity
jurisdiction cannot expect that new trails will be blazed.”
Ryan v. Royal Ins. Co. of America, 916 F.2d 731, 744 (1st Cir.
1990). See also Cheshire Medical Center, 49 F.3d at 35
conclusion that plaintiff “offered no [competent] evidence that
such [particularized warnings] would have altered Ailsa’s
conduct.”
-9-
(declining to predict an expansion of the doctrine of strict
liability under New Hampshire law in light of the state Supreme
Court’s historically conservative approach to products liability
law).
The Sears & Roebuck Complaint
In October of 1998, plaintiff filed a separate lawsuit
in the Massachusetts Superior Court against Sears & Roebuck, the
manufacturer and seller of the stove, claiming that a defective
heating element had been the proximate cause of Ailsa’s
injuries. On the fifth day of trial, while cross-examining
Ailsa, counsel for Union asked whether she had “ever claimed
that it was the stove that caused your injuries?” A seasonable
objection was made. At sidebar, both counsel proceeded on the
correct assumption that the admissibility of the Sears & Roebuck
complaint depended on whether the pleadings were facially
inconsistent. This precipitated a debate over the significance
of the use of the definite article “the” (instead of the
indefinite article “a”) to describe proximate cause in the Sears
& Roebuck complaint. The district court, apparently believing
that the distinction made a difference, overruled the objection.
Union’s counsel then asked Ailsa if she had retained a lawyer to
file suit against Sears & Roebuck. To this question Ailsa
responded: “I can’t be sure. That’s left in my mother’s hands,
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I don’t know.” After showing Ailsa the Sears & Roebuck
complaint, counsel then asked: “And on page two of that
complaint do you claim that the injuries that you sustained were
the direct and proximate result of Sears, Roebuck?” When Ailsa,
understandably perplexed, replied “I don’t remember that,”
plaintiff’s counsel renewed the objection. The court responded
by refusing to admit the Sears & Roebuck complaint as an
exhibit. A few minutes later, counsel for Sharky’s returned
briefly to the subject, asking Ailsa whether in the complaint
against Sears & Roebuck she had alleged that her injuries
“[w]ere the direct proximate result of the carelessness,
negligence, and it goes on here talking about [the] defectively
designed stove and lack of warnings, is that correct?” To this
clumsily constructed question, Ailsa answered “correct.”
The admission of inconsistent statements made in
separate judicial proceedings to impeach a party is within the
sound discretion of the trial judge. Vincent v. Louis Marx &
Co., Inc., 874 F.2d 36, 41 (1st Cir. 1989). In exercising that
discretion, the court must make an initial determination that
the dueling pleadings are in fact contradictory. Cf. Kassel v.
Gannett Co., Inc., 875 F.2d 935, 952 (1st Cir. 1989). It must
then decide under Rule 403 whether the probative value of the
inconsistent pleading is outweighed by the danger of unfair
-11-
prejudice to the party against whom it is offered. Vincent, 874
F.2d at 41. It is true, as Sharky’s points out, that in Estate
of Spinosa v. International Harvester Co., 621 F.2d 1154, 1157
(1st Cir. 1980), we focused on the inconsistency between
pleading an event as “a cause” or as “the sole cause” of an
accident. However, we are not certain that this parsing has the
same legal force that it might once have had, given the
contemporary practice of defining proximate cause (however
plead) as meaning “a substantial factor in bringing about the
[complained of] harm.”10 See Weldy v. Town of Kingston, 514 A.2d
1257, 1260 (N.H. 1986) (emphasis added).
But if we were to assume that the district court erred
in permitting Ailsa to be cross-examined on the Sears & Roebuck
complaint, we are confident that the error was harmless. Even
supposing that the jury was able to grasp the syntactic point
that Sharky’s counsel was trying to make, we cannot say that
10
Plaintiff’s complaint that the district court did not
employ Rule 403's balancing test before permitting Ailsa to be
cross-examined about the Sears & Roebuck complaint is not borne
out by the record. While the judge permitted a few questions
about the complaint to be put to Ailsa, he refused to admit the
complaint or any portion of it into evidence. Under the
circumstances, we presume that the judge’s calibrated decision-
making reflects a striking of the balance that Rule 403 demands.
There is no requirement that a judge place on the record a
particularized analysis of his thought processes in ruling on an
objection, especially where, as here, his actions speak for
themselves.
-12-
teenaged Ailsa’s adoptive answer to an awkward leading question
“affected the outcome of the trial.” Nieves-Villaneuva v. Soto-
Rivera,133 F.3d 92, 102 (1st Cir. 1997).
The Dismissal of Negligence Claims Against Sharky’s
At the close of plaintiff’s evidence, the district
court entered judgment as a matter of law in favor of Sharky’s
on plaintiff’s claim of ordinary negligence, while permitting
the case to go forward on the claim of strict products
liability. Plaintiff’s common-law claim against Sharky’s was
premised on an allegation of negligent design.11 As the trial
court observed in denying plaintiff’s motion for a new trial,
because Sharky’s had played no role in the design of the
sweatshirt, the claim could only be construed as impugning
Sharky’s role in fabricating the sweatshirt’s college logo.12
11
Plaintiff’s late-blooming “negligent marketing” theory,
whatever its substance, merits little discussion as there is no
evidence in the record that Sharky’s had supplied the adult-
sized sweatshirt to Bradlees with the knowledge that it would be
marketed to children. Moreover, the undisputed evidence is that
Ailsa’s mother bought the sweatshirt in Bradlees Junior Miss
Department because Ailsa had outgrown children’s wear.
Plaintiff points us to an invoice reproduced in the Appendix as
“undisputed” proof that “Sharky’s sold the garments to Bradlees
for the age 7-14 department.” The invoice, however, was never
admitted as an exhibit at trial.
12
Plaintiff’s argument, that because the trial court held
Union to a duty of reasonable care in designing and testing the
sweatshirt, “if this were true for Union it would also be true
for Sharky’s,” confuses liability under the law of negligence
with Sharky’s potential liability as an intermediate vendor
-13-
Again, our review of the propriety of granting Sharky’s Rule
50(a) motion is de novo.
The claim against Sharky’s was pegged on the idea that
for a penny more Sharky’s could have used flame-retardant ink
rather than ordinary ink in printing the logo. The suggestion
was that flame-retardant ink might have prevented the combustion
of the sweatshirt, or might have resulted in a lower intensity
burn to Ailsa.13 Whatever viability this theory might have had
collapsed when the district court placed limits on the testimony
of two of plaintiff’s expert witnesses, Gordon Damant and Dr.
Philip Colver.
Damant is a chemist and self-styled “internationally
recognized authority on the flammability of consumer products.”
The court ruled that while Damant would be permitted to testify
to matters involving chemistry and the flammable properties of
polyvinyl chloride and plastisols, he would not be permitted to
under strict products liability law. Moreover, we agree with
Sharky’s that plaintiff failed to preserve the issue whether
Sharky’s had a duty under New Hampshire law to independently
test the sweatshirt for hidden design defects. Even had the
issue been preserved, we doubt that New Hampshire would impose
such a duty on a seller who is not also the manufacturer of a
product. See Buckingham v. R.J. Reynolds Tobacco Co., 713 A.2d
381, 385 (N.H. 1998).
13No evidence was offered as to the sweatshirt’s point of
ignition other than photographs and testimony indicating the
general location of Ailsa’s burns.
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testify to usages and practices in the silk-screening industry,
or to the commercial feasibility of printing shirt logos with
flame-retardant ink. While the parties treat the ruling as
falling under the reliability prong of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589-590 (1993), it is
apparent from the trial transcript that the district court’s
focus was on Damant’s lack of relevant knowledge and experience.
Damant testified that he had no familiarity with the silk-
screening industry, ink manufacture or logo design, that he had
never conducted a comparison test of flame-retardant and
ordinary inks, and that he knew of no silk-screener who in fact
used flame-retardant ink to imprint logos. His only knowledge
of the use of flame-retardant ink by clothing manufacturers was
gleaned from a telephone conversation with an ink vendor who
told him that it was used for children’s sleepwear. There was
no abuse of discretion in limiting Damant’s testimony. Ferrara
& DiMercurio v. St. Paul Mercury Insurance Co., 240 F.3d 1, 8
n.4 (1st Cir. 2001).
Dr. Colver’s excluded testimony merits one paragraph
in plaintiff’s rambling brief. The district court refused to
permit Dr. Colver to testify to a conversation he had had with
an ink vendor supposedly confirming that the price of flame-
retardant ink would have added only a penny’s cost to the
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printing of the sweatshirt’s logo. Like Damant, Dr. Colver
testified that he had no knowledge of the silk-screening
industry or of printing inks, he had never tested the
flammability of a logo printed with flame-retardant ink, he had
no familiarity with the composition of the logo affixed to
Ailsa’s sweatshirt, and he had no opinion as to whether the logo
had contributed to the sweatshirt’s ignition or its rate of
burn. Dr. Colver also testified that he had no idea whether
flame-retardant ink is readily obtainable or widely used by
silk-screeners on any garments other than children’s sleepwear.
Again, the district court did not abuse its discretion in paring
testimony that Dr. Colver was not competent to offer. See
General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
Exclusion of the Expert Videotapes
After remand of the case to the district court, a
revised discovery schedule set a deadline for plaintiff’s expert
disclosures of November 1, 1997, and for completion of all
discovery by July 1, 1998, in anticipation of a July trial date
(later continued to October and then to April 6, 1999).14 On
August 12, 1998, plaintiff produced to defendants a videotape
prepared by Dr. Charles Beroes, a chemical engineer retained by
14It is undisputed that plaintiff never requested an
extension of either of the relevant deadlines.
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plaintiff as an expert witness. On January 14, 1999, a second
videotape materialized, prepared by another of plaintiff’s
designated experts, Gordon Damant.15 While plaintiff’s brief is
not terribly informative about the contents of the two
videotapes, it does state that “[t]he tapes show graphically and
in real time the CS 191-53 apparatus and it’s [sic] operation,
the sudden and dramatic flare-up of the sweatshirt sample when
ignited, the fact that cotton/polyester does melt and drip, that
newspaper does pass the CS 191-53 standard and that flame
retardant cotton is a reality.”16 At trial, Union and Sharky’s
objected inter alia to the belated disclosure of the videotapes.
The district court, pursuant to Rule 37(c)(1), struck the
videotapes as exhibits.17
According to Rule 26(e)
15
Both Dr. Beroes and Damant were deposed by defendants. At
the depositions, neither Dr. Beroes or Damant indicated an
intention to prepare any additional videotape (other than a
mannequin demonstration tape) to illustrate trial testimony.
16
CS (Commercial Standard) 191-53 is the federal
flammability standard for textiles, 16 C.F.R. part 1610.
17
Another videotape showing mannequin demonstrations of
burning sweatshirts, which had been timely disclosed, was
excluded by the district court in an October 26, 1998 pretrial
ruling as scientifically unreliable because of its failure to
replicate in any meaningful way the known facts of Ailsa’s
accident. See Bogosian v. Mercedes-Benz of North America, Inc.,
104 F.3d 472, 479-480 (1st Cir. 1997). Plaintiff has not
appealed this ruling.
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[a] party who has made a disclosure under
subdivision (a) or responded to a request
for discovery with a disclosure or response
is under a duty to supplement or correct the
disclosure or response to include
information thereafter acquired if ordered
by the court or in the following
circumstances:
(1) A party is under a duty to supplement at
appropriate intervals its disclosures under
subdivision (a) if the party learns that in
some material respect the information
disclosed is incomplete or incorrect and if
the additional or corrective information has
not otherwise been made known to the other
parties during the discovery process or in
writing. With respect to testimony of an
expert from whom a report is required under
subdivision (a)(2)(B) the duty extends both
to information provided through a deposition
of the expert, and any additions or other
changes to this information shall be
disclosed by the time the party’s
disclosures under Rule 26(a)(3) are due.
In 1993, the Federal Rules were amended to add Rule 37(c)(1),
which as it appeared at the time of trial, stated in relevant
part that “[a] party that without substantial justification
fails to disclose information required by Rule 26(a) or Rule
26(e)(1) shall not, unless such failure is harmless, be
permitted to use as evidence at trial . . . any . . .
information not so disclosed.”18 The amendment gave teeth to a
significantly broadened duty to supplement Rule 26 disclosures
18Rule 37(c)(1) was further amended in 2000 to make clear
that a party’s failure to comply with the supplementation duty
imposed by Rule 26(e)(2) was also sanctionable.
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by making mandatory preclusion “the required sanction in the
ordinary case.” Klonski v. Mahlab, 156 F.3d 255, 269 (1st Cir.
1998).
The authority of a trial court to exclude an exhibit
that is untimely produced under the deadlines set by a case
management order was well-established before the 1993 amendment
to the Rules.19 Fusco v. General Motors Corp., 11 F.3d 259, 265
(1st Cir. 1993) Indeed, we held in Fusco (a pre-amendment case)
that the duty of a party to seasonably supplement its
disclosures under Rule 26(e) “carries with it the implicit
authority of the district court to exclude such materials when
not timely produced even if there was no rigid deadline for
production.” See also Williams v. Monarch Machine Tool Company,
Inc., 26 F.3d 228, 230 (1st Cir. 1994).
We are unpersuaded by plaintiff’s contentions that the
disputed videotapes were offered not “as reenactments but as
illustrations of scientific principles” and that under Fusco her
19
In an October 16, 1998 pretrial order, the district court
gave the parties until November 13, 1998, to supplement their
expert disclosures “solely with respect to the bases and reasons
for previously disclosed expert opinions.” The court also
admonished the parties that “[n]o new expert opinions shall be
disclosed as part of the supplemental disclosures.” The Damant
videotape was produced well after this deadline. The Beroes
tape, while it was produced prior to November 13, 1998, appears
from plaintiff’s cursory description to have far exceeded the
scope of the supplementation permitted by the court.
-19-
experts “were clearly permitted to proceed in the manner they
did to prepare their presentation prior to trial.” The first
contention parrots our acknowledgment of a similar argument made
by the defendant in Fusco and our comment that “[s]cientific
principles, when demonstrated in a fairly abstract way, are
quite unlikely to be confused with the events on trial.” Fusco,
11 F.3d at 264 n.5. However, we upheld the trial court’s
exclusionary ruling in Fusco because the videotape at issue was
not sufficiently close in appearance to the circumstances of the
actual accident to avoid the risk of confusion on the part of
the jury. Based on what plaintiff tells us of the content of
the videotapes in dispute here, we affirm the district court’s
ruling for the same reason. The second statement is apparently
based on our observation in Fusco that “experts, like lawyers
themselves, may increase their efforts as trial approaches, and
we do not suggest any general bar to an exhibit created in good
faith for the expert after initial discovery.” Id. at 266.
Nevertheless, we also noted that “where a discovery request for
the expert’s materials has been made, the later attempt to add
new exhibits designed for the expert’s use at trial is subject
to reasonable supervision by the trial judge.” Id. This is
particularly the case where, as here, the district court was
entitled to find that the sweeping and argumentative content of
-20-
the disputed videotapes “would have compromised [defendants’]
pretrial preparations and that the supplementation came too late
to be `seasonable.’” Id.
Perhaps recognizing that the powers of a district court
to enforce its case management orders and the supplementation
duties imposed by Rule 26 will not lightly be disturbed,
plaintiff argues that the court erred in not personally viewing
the tapes “to see whether or not they offend[ed]” Rule 26 before
entering its ruling.20 The short answer is that Rule 37(c)(1),
which requires the near automatic exclusion of Rule 26
information that is not timely disclosed, imposes no such
obligation on the trial court. Rather it is the obligation of
the party facing sanctions for belated disclosure to show that
its failure to comply with the Rule was either justified or
harmless and therefore deserving of some lesser sanction. See
Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th Cir.
1999); Salgado by Salgado v. General Motors Corp., 150 F.3d 735,
741-742 (7th Cir. 1998). This is a burden that plaintiff made
no attempt to shoulder, and the district court did not abuse its
20We find no indication in the record that plaintiff ever
requested that the court view the videotapes before making its
ruling. We do not suggest that a district court has a duty to
do so in the face of a belated request, although we would not
discourage a trial court from undertaking such a viewing should
similar circumstances arise.
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discretion in imposing Rule 37(c)(1)’s “self-executing”
sanction. See Advisory Committee Notes to the 1993 Amendments.
The Verdict Slip
Question one of the special verdict slip asked the jury
whether it found the sweatshirt and t-shirt to have been
defectively designed. The jury answered “no,” and following the
slip’s instructions, concluded its deliberations. Plaintiff
argues that question one, by pretermitting the jury’s
deliberations, unfairly removed the issue of Union’s alleged
negligence from the jury’s consideration. The gist of
plaintiff’s contention is that “[i]t was perfectly possible for
the jury to find that the sweatshirt and t-shirt were reasonably
safe as designed and manufactured by Union but the Union should,
in the exercise of due care, have avoided selling the garments
into the childrens’ [sic] market.”
Whatever the substantive merits of plaintiff’s
“negligent marketing” theory, it was never cogently advanced at
trial. Without objection, the district court instructed the
jury on plaintiff’s claim that Union was negligent “when it
designed the garments in question . . . and that the defendant’s
negligence resulted in certain defects [that caused or
contributed to plaintiff’s injuries].” The district court was
not asked to, nor did it volunteer to instruct on a theory of
-22-
“negligent marketing.” While plaintiff’s counsel obliquely
raised the issue in objecting to the composition of the verdict
slip,21 counsel made no objection to the omission of an
instruction on “negligent marketing.” It is settled law that a
party who fails to lodge a proper objection to an omitted jury
instruction waives the issue on appeal. Fed.R.Civ.P. 51 (“No
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”); Poulin v. Greer, 18 F.3d 979,
982 (1st Cir. 1994) (counsel’s failure to object to the omission
of a requested jury instruction waived the issue on appeal).
While plaintiff makes the passing point that Union “never
contested” the appropriateness of selling an adult-sized
sweatshirt to be worn by a twelve year old girl, that is
explained by the fact that the issue was never raised at trial,
and only blossomed on appeal.
Limitations on Expert Medical Testimony
21 Counsel’s objection was as follows:
I think that precludes the jury from considering my
allegations of negligence, which is found in Count II
of my original complaint, dealing with marketing and
selling of the sweatshirts in question. And by the
language of the special verdict form and the order of
deliberations it precludes the jury from considering
those aspects of our claim.
-23-
Plaintiff next complains that the district court abused
its discretion in limiting the testimony of Dr. Ramsey Choucair.
Dr. Choucair was one of Ailsa’s treating physicians whose
testimony was submitted by way of a videotaped deposition. The
majority of defendants’ objections to Dr. Choucair’s testimony
were overruled, although the court struck the answer to the
question: “[W]hen something melts on skin, do you have an
opinion as to whether that burn is deeper?” Dr. Choucair
testified that the severity of a burn generally depends on the
duration of the skin’s contact with the flame and the flame’s
intensity. However, he prefaced his answer with a disclaimer.
My experience with treating patients who
have burn scars over different parts of
their body is that when someone’s history
implies that whatever was stuck to their
skin, whatever it may be, whether it was
part of clothing or external environment
that was burning and stuck to their skin,
the burn tends to be deep. Is it deeper
than it would have been otherwise? It’s
impossible to know. . . . (Emphasis added).
The reason for Dr. Choucair’s hesitancy became apparent a few
minutes later when plaintiff’s counsel sought to elicit an
opinion from Dr. Choucair as to whether a burn from a fabric
that melts on the skin would be more severe than a burn from a
fabric that “ashes.” Dr. Choucair qualified his reply by
stating: “[T]hat’s clearly not my area of expertise.” There can
-24-
be no error in excluding the opinion of an expert witness that
he candidly admits is beyond his competence.22
Catch-All Arguments
Under a caption objecting to limitations placed by the
district court on the pretrial discovery and the trial
presentation of evidence relating to the failure to warn claim,
plaintiff repeats many of her earlier arguments, while listing
a potpourri of largely extraneous topics that she wishes the
court had allowed her to develop more fulsomely at trial,
ostensibly to show Union’s “superior knowledge” of the danger
its products posed to children. They include: (1) the court’s
refusal to admit as an exhibit a 1972 report by the Secretary of
the Department of Health, Education and Welfare calling
attention to the fact that burn injuries caused by the
accidental ignition of clothing “strike disproportionally at the
young and the elderly”; (2) the court’s refusal to admit
evidence that a senior Union executive was “surprised” to learn
that a 1979 burn accident involving a child’s blended
cotton/polyester shirt was caused by heat from a camera lamp;
22
Dr. Choucair’s testimony on this point, even if
admissible, would have been cumulative of the testimony of Dr.
Beroes, who testified to the risks posed by fabrics that melt on
the skin. The district court, in its pretrial order, had
cautioned the parties that it would not permit the repetition of
similar opinions by successive expert witnesses.
-25-
(3) the court’s refusal to permit plaintiff to make “proper use”
at trial of evidence of prior burn accidents involving
children’s wear manufactured by Union; (4) the court’s refusal
to permit plaintiff to take a deposition of Union’s in-house
counsel regarding these prior occurrences; (5) the court’s
refusal to permit a belated deposition of the “warnings expert”
retained by Union (who did not testify at trial); (6) the
court’s tentative refusal to admit a 1989 Rhode Island telephone
survey suggesting “that consumers are, in fact, not as aware of
the flammability of their clothing as one might suspect”; (7)
the court’s refusal to admit evidence that the garment industry
had lobbied against any strengthening of the FFA flammability
standard; (8) the court’s refusal to permit testimony that a
Union official was aware of an article written by an expert
witness friendly to the garment industry advocating the placing
of warning labels on adult clothing; and (9) the court’s
refusal to permit Dr. Colver to testify that such warnings are
an inherent feature of competent design. According to
plaintiff, the cumulative effect of these restrictive rulings
was to deprive her of the opportunity to argue for an award of
“enhanced compensatory” damages.23
23
We find this argument particularly puzzling as the jury
found no basis for awarding any damages at all, much less an
award of enhanced damages.
-26-
We have examined each of the alleged errors that can
be located in the record and find no error.24 The bulk of the
material excluded or restricted by the district court consisted
of stale hearsay and largely irrelevant and prejudicial
meanderings. Plaintiff’s allegation that the district court
prohibited her from making “proper use” of prior burn accidents
involving Union’s blended cotton/polyester garments deserves
comment only because of the extent to which plaintiff’s brief
unfairly characterizes the rulings of the district court. In an
order issued two months prior to trial, the court denied Union’s
motion to exclude all evidence of prior burn accidents involving
Union garments. In a considered application of the Rule 403
balancing test, the court held that “[t]o the extent the issue
of whether Union had notice that 50/50 blend fabric could burn
and cause serious injury or that common household sources could
ignite the garments remains in the case at trial, evidence of
prior accidents showing those circumstances and involving Union
garments made of 50/50 fabric will be relevant.” The court,
however, also held that because the issue was one of general
notice, plaintiff would not be permitted to introduce evidence
of the prejudicial details of these prior accidents,
24
An appellate court will not scour the record for claims of
error that an appellant fails to properly identify. Lemelson v.
United States, 752 F.2d 1538, 1553 (Fed. Cir. 1985).
-27-
particularly the gruesome photographs she had assembled of
horribly burned children. The use of the prior accidents
authorized by the district court was, in our judgment, a fair
and reasonable application of Rule 403.25
Affirmed.
25Plaintiff’s final contention, that the district court
erred in refusing to permit her to argue an ad damnum to the
jury, merits no discussion. It would have been reversible error
for the court to have allowed such argument. Davis v. Browning-
Ferris Industries, Inc., 898 F.2d 836, 837-838 (1st Cir. 1990).
-28-