Colón-Millín v. Sears Roebuck De Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 05-1693

NILDA COLÓN-MILLÍN,

Plaintiff, Appellant,

v.

SEARS ROEBUCK DE PUERTO RICO, INC.; LUIS A. MATOS-COLÓN;
LIBERTY MUTUAL INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond Acosta, U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Edgardo Colón-Arrarás, with whom Victor J. Quiñones and
Goldman Antonetti & Córdova, P.S.C. were on brief, for the
appellants.
Francisco E. Colón-Ramírez, with whom Colón, Colón & Martínez,
P.S.C. was on brief, for the appellees.

July 19, 2006
 LIPEZ, Circuit Judge. Nilda Colón-Millín ("Colón") filed

a tort action against Sears Roebuck of Puerto Rico, Luis Matos-

Colón ("Matos"), his wife and their conjugal partnership, and

Liberty Mutual Insurance Company,1 asserting that a Sears van,

driven by Matos, struck her as she was walking across a street in

San Juan, Puerto Rico. Her complaint, filed in federal district

court on the basis of diversity jurisdiction, sought damages for

pain and suffering, loss of income, and medical bills. After a

two-day trial on the issue of liability, the jury returned a

verdict for the defendants. Colón then filed a motion for a new

trial, arguing that the defendants had ambushed her with allegedly

perjured testimony challenging the identity of the police officer

who investigated the accident. In support of her claim, Colón

submitted the affidavit of a police officer who contradicted the

defense witnesses' surprise testimony. Colón also argued that she

should get a new trial because the district court erred in

providing certain jury instructions and failed to give her an

opportunity to state her objections to the jury instructions on the

record.

The district court denied the plaintiff's motion,

construing it as one based on "newly discovered evidence" and

holding that she had not been sufficiently diligent in obtaining

1
At trial, the district court granted Liberty Mutual Insurance
Company judgment as a matter of law under Fed. R. Civ. P. 50. The
plaintiff did not appeal this issue.

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the police officer's affidavit or calling him as a witness during

the trial. The court also rejected her arguments on the jury

instructions.

We affirm on somewhat different grounds. Our review of

the record reveals that the defendants did not comply with their

obligation under Fed. R. Civ. P. 26(e)(2) to supplement their

responses to the plaintiff's written interrogatories. This failure

led to trial testimony that understandably surprised the plaintiff.

Nevertheless, the plaintiff failed to respond to the surprise at

trial in a manner that justifies a new trial. She did not object

to the defense witnesses' testimony, and she did not request a

continuance in order to respond or seek any other sanction for a

discovery violation. Furthermore, the district court did not err

in its jury instructions, and the plaintiff had the opportunity to

state the grounds of her objections to the jury instructions on the

record. We therefore conclude that the district court did not

abuse its discretion in denying the plaintiff's motion for a new

trial.

I.

We summarize the evidence presented by the witnesses at

trial. We then describe the plaintiff's response to the surprise

testimony at trial and the discussion of the issue during closing

arguments. Finally, we discuss the plaintiff's actions following

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the close of evidence, including her objections to the district

court's jury instructions and her motion for a new trial.

A. The plaintiff's case

In support of her case, Colón offered her testimony and

that of two other witnesses: Officer José Ortiz-Lopez ("Officer

Ortiz"), a police officer who arrived at the scene of the accident,

and Percival Clouden, who had accompanied Colón to Puerto Rico.

1. Colón's testimony

Colón testified that she is a resident of St. Thomas,

U.S. Virgin Islands, and was visiting Puerto Rico in February 1999.

On the morning of February 25, 1999, she was struck by a Sears van

as she crossed Ponce de León Avenue in San Juan. She had begun

crossing the street while the van was at a complete stop, but then

the van began to accelerate. The van struck her, flinging her onto

the pavement. The driver, Matos, got out of the van, apologizing

to Colón several times. Matos explained to Colón that he had been

reading something for directions and then stepped on the

accelerator; by the time he looked up and saw her, it was too late.

Shortly after the accident, police arrived at the scene and an

officer interviewed Colón. Clouden, who had accompanied Colón to

Puerto Rico and was in the vicinity of the accident, then took her

to the hospital.

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 2. Officer Ortiz's testimony

Officer Ortiz testified that he and another police

officer, Omar Sein, got to the scene of the accident shortly after

it happened. Officer Sein directed traffic. Officer Ortiz

interviewed Colón, Matos, and Clouden. He asked them if they knew

of any other witnesses, but they did not identify anyone else.

According to Officer Ortiz, the descriptions of the accident by

Colón and Matos were consistent. Matos explained to Officer Ortiz

that he had been searching for something and did not notice the

plaintiff crossing the street.

Several hours after the accident, Officer Ortiz prepared

a police report in which he noted that Matos did not yield the

right of way to Colón. According to Officer Ortiz, Matos went to

the police station the day after the accident, but did not change

his story or mention any other witnesses.

3. Clouden's testimony

Clouden testified that he had accompanied Colón to Puerto

Rico and was with her the day of the accident. He was walking up

the street to meet her when the accident occurred. He did not see

whether the van hit her, but saw her cross the street and, moments

later, saw her lying in the street approximately five feet from the

van. He saw the driver of the van speak to Colón. Clouden helped

Colón up and out of the street. He recalled seeing a police

officer at the scene.

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B. The defendants' case

The defendants presented the testimony of Matos; Luis

Sierra-Rivera ("Sierra"), a witness to the accident; and Javier

Rivera-Montañez ("Rivera"), a Sears Asset Protection Manager.

1. Matos's testimony

Matos testified that he had already started to drive

forward when Colón ran out in front of his van, at which point he

applied the brakes and stopped suddenly. Matos stated that the

actual impact of the vehicle on Colón was minimal, but she was

startled, lost her balance, and fell. Matos got out of the van and

apologized, but never told Colón that he was looking for directions

or was otherwise distracted just before the accident.

When Clouden came to help take Colón out of the street,

Matos saw Sierra, a co-worker from Sears, who told Matos that he

saw what happened and told him that he should contact Sears. Matos

called Sears and spoke with Rivera, the Asset Protection Manager,

who told Matos to wait for the police to arrive.

Officers Ortiz and Sein arrived at the scene. However,

according to Matos, it was Officer Sein, not Officer Ortiz, who

interviewed him. Matos informed Officer Sein that Sierra was a

witness to the accident. Matos also testified that he met with

Officer Sein, not Officer Ortiz, in the police station after the

accident.

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 2. Rivera's testimony

Rivera testified that Matos contacted him about the

accident. As an Asset Protection Manager for Sears, Rivera filled

out an accident report for the company after interviewing Matos and

Sierra, whom the report identified as a witness to the accident.

Rivera also accompanied Matos to the police station on a date after

the accident, where he confirmed that he and Matos met with Officer

Sein.

3. Sierra's testimony

Sierra testified that he used to work for the Department

of Agriculture, which is located near Ponce de León Avenue, in

1999. He worked there during the early morning hours and then

worked part-time for Sears later in the day. On the morning of the

accident, Sierra was walking by Ponce de León Avenue on his way to

breakfast when he saw the Sears van. He observed the van stop to

let some pedestrians cross in front of it. The van then started to

move but stopped suddenly as a woman crossed quickly in its path.

He said he saw her put her hands on top of the hood, lose her

balance, and fall. He then saw Matos, whom he recognized as a

Sears coworker, get out of the van and help the woman. Officer

Sein arrived and spoke with Sierra. After telling Officer Sein

what happened, Sierra left. Sierra was later interviewed by Rivera

about the accident.

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C. Plaintiff's response to the testimony about the identity of the
investigating police officer

Plaintiff's counsel did not object to the defense

witnesses' testimony regarding Officer Sein. He did not ask the

court for a continuance so that he could call Officer Sein as a

rebuttal witness, nor did he seek any other sanction for a

discovery violation. Instead, during his cross-examinations of

Rivera and Sierra, plaintiff's counsel asked both witnesses whether

the defendants had called Officer Sein as a witness for the

defense, which they had not. Later, during his closing argument,

plaintiff's counsel focused on the fact that the defendants did not

call Officer Sein as a witness:2

[R]egarding Mr. Matos, he mentioned that he
only spoke to Officer Sein, the other
policeman that was with Mr. Ortiz at the scene
of the accident. The fact is that they knew
about Officer Sein's existence since the date
of the accident, since 1999. Yet Sears

2
Under certain conditions, a party may argue that the jury should
draw an adverse inference against the opposing party because of its
failure to call a witness. See United States v. Ariza-Ibarra, 651
F.2d 2, 15-16 (1st Cir. 1981) ("[W]hen a party fails to call a
witness whom that party would ordinarily produce if the facts known
by the witness were favorable to that party, the jury may infer
that the absent witness's testimony would have been adverse to that
party. This adverse inference may not reasonably be drawn,
however, unless the evidence shows that the witness is available to
testify on behalf of the party, that the testimony of the witness
would be relevant and noncumulative, and that the witness is not
prejudiced against the nonproducing party." (internal citation
omitted)). The parties did not raise any of these missing witness
requirements with the court, nor did either party object to the
opposing party's missing witness argument. They also do not raise
any missing witness issues on appeal.

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 decided not to call him to testify. He did
not come here to testify. . . .

Now, why was Mr. Sein not brought? Was Sears
afraid that Officer Sein would not corroborate
Mr. Matos's version? Were they afraid that
Officer Sein would have said that he never
spoke with Matos at the scene of the
accident[?] Even more important, were they
afraid that he could corroborate that Matos
stated that he had no witnesses[?] The fact
is that Officer Sein did not come to testify.3

At no time during the trial did plaintiff's counsel argue to the

district court that the testimony of the defense witnesses

regarding Officer Sein was unfairly surprising, that he needed a

continuance to respond to the testimony, or that the testimony

constituted evidence of fraud.

3
In his closing argument, defense counsel responded to this
portion of the plaintiff's closing argument:

What about Officer Sein, why didn't I call
him. Well, first of all[,] why didn't
plaintiff[] call him[?] I will tell you why I
didn't call him, he didn't fill out the report
unfortunately. Unfortunately the person who
signed it was Agent Ortiz who apparently did
nothing at the accident site. I wasn't afraid
of what Sein had to say. First of all, we
know . . . Mr. Sierra identified Officer Sein,
Mr. Rivera identified Officer Sein for us . .
. .
So it is not [] why I didn't call him, it is
why didn't they call him. They are the ones
and the judge will instruct you, that they
have the burden of proof. Why did they not
call Officer Sein[?]

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D. Jury instructions, verdict, and motion for a new trial

After the closing arguments, the court instructed the

jury. The court then summoned counsel to the bench. Plaintiff's

counsel briefly stated his objections to the jury instructions by

referring to the number assigned to each jury instruction that he

thought should or should not have been included. Plaintiff's

counsel did not explain the grounds for these objections on the

record. After approximately one half-hour of deliberations, the

jury returned a verdict for the defendants. The court entered

judgment for the defendants on September 24, 2001.

On October 4, 2001, Colón filed a motion for a new trial

under Fed. R. Civ. P. 59(a). In her motion, she argued that the

defendants ambushed her at trial with perjured testimony; that the

court erred in not allowing her attorney to record the bases of her

objections to jury instructions; and that the court improperly

excluded some of her proposed jury instructions, improperly

modified others, and erred in giving one of the defendants'

proposed instructions. In support of her claim that the defendants

had perjured themselves, she submitted an affidavit from Officer

Sein. Officer Sein stated that, contrary to the testimony of the

defense witnesses, he never interviewed any witnesses at the scene

of the accident or met with Matos or any other Sears employee at

the police station at any point after the accident. Officer Sein

confirmed that Officer Ortiz interviewed these individuals.

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According to the plaintiff, the purpose of the defense witnesses'

contrary and perjurious testimony was to undermine Officer Ortiz's

testimony that Matos had informed him that he had been distracted

just prior to the accident, and to support the defendants' story

that Sierra also witnessed the accident and could confirm Matos's

testimony.

The district court construed Colón's motion as a motion

for a new trial based on "newly discovered evidence." The court

held that the plaintiff failed to meet her burden of showing that

she was duly diligent in trying to discover the new evidence, i.e.,

Officer Sein's testimony. The court also rejected the plaintiff's

arguments regarding the jury instructions, concluding that it had

given the plaintiff an opportunity to state her objections for the

record and that, in any case, the plaintiff's substantive

objections to the instructions were meritless. On appeal, Colón

assigns error to all of these rulings.

II.

Under Fed. R. Civ. P. 59(a), "[a] verdict may be set

aside and new trial ordered when the verdict is against the clear

weight of the evidence, or is based upon evidence which is false,

or will result in a clear miscarriage of justice." Ahern v.

Scholz, 85 F.3d 774, 780 (1st Cir. 1996) (internal quotation marks

and citations omitted). We review the court's denial of a motion

for a new trial under Rule 59(a) for abuse of discretion. See

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Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 103-104

(1st Cir. 2006).

A. Defense witnesses' allegedly perjured testimony

Officer Sein's affidavit stated that Officer Ortiz, not

Officer Sein, interviewed the defense witnesses. The affidavit

directly contradicted the testimony of the defense witnesses. Yet

the district court rejected the plaintiff's argument that Officer

Sein's affidavit required a new trial. Specifically, the district

court found that Colón had not been duly diligent in obtaining the

evidence of perjury and that, in any event, there was ample

evidence to support the verdict:

There is no evidence that the affidavit could
not have been obtained earlier had plaintiff
been properly diligent. The existence of this
witness was known to the plaintiff for months;
Officer Sein was even announced by defendant
and later put at plaintiff's disposition at
trial. If plaintiff chose not to call Officer
Sein as a rebuttal witness that was a choice
she waived. She cannot now be heard to claim
that the alleged testimony of this witness,
through an affidavit, is so new and so
material that it would change the outcome of
the trial, inasmuch as she did not attempt to
bring his testimony forth during trial. In
any event, even if Officer Sein had testified
at trial, his testimony would have been
cumulative to plaintiff's own testimony, or as
impeachment to defendants' testimony.
Therefore, ultimately, this alleged new
evidence would not have produced a different
outcome at trial. There was more than
sufficient evidence to support the jury's
verdict. The Court finds that the jury's
verdict was reasonable and that it was based
on ample evidence brought forth during trial.

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Colón-Millín v. Sears, No. 00-1213, slip op. at *3-4 (D.P.R. Mar.

11, 2005).

On appeal, Colón argues that the district court wrongly

construed her motion for a new trial as one based on "newly

discovered evidence" and thus improperly required a finding of due

diligence to explain why the information had not been introduced at

trial.4 According to the plaintiff, "[t]he reason the affidavit

was not obtained before the trial took place was not due to

availability. It was not procured because Officer Sein's role at

the scene of the accident, and after, was not in dispute on the eve

of trial." In other words, the plaintiff argues that the

defendants misled her to believe that the fact that Officer Ortiz

interviewed the witnesses was uncontested. By doing so, the

defendants concealed a key aspect of their defense theory -- that

Officer Ortiz did not conduct the investigation at all. The

purpose of this perjured testimony, according to the plaintiff, was

4
Rule 59(a) does not explicitly discuss the standards for granting
or denying a motion for a new trial based on newly discovered
evidence. Instead, it permits the grant of a new trial "for any of
the reasons for which new trials have heretofore been granted in
actions at law in the courts of the United States." Fed. R. Civ.
P. 59(a). We have applied specific rules governing when a court
may grant a motion for a new trial based on newly discovered
evidence. See Acosta-Mestre v. Hilton Intern. of Puerto Rico,
Inc., 156 F.3d 49, 56 (1st Cir. 1998) ( "To warrant granting a new
trial based on newly discovered evidence, the movant must
demonstrate that (1) the evidence has been discovered since trial;
(2) the evidence could not by due diligence have been discovered
earlier; (3) the evidence is not merely cumulative or impeaching;
and (4) the evidence is of such a nature that it would probably
change the result if a new trial is granted.").

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to "efface all evidentiary weight to Officer Ortiz's testimony and

the police report, which were central to Appellant's case" and to

"support[] the fabrication of a 'witness' [Sierra] who happened to

be at the sidewalk that day, a Sears employee nonetheless."

There is some merit to the plaintiff's contention that

the district court wrongly construed her motion as one based on

"newly discovered evidence," and thus improperly required a showing

of due diligence to explain why the evidence was not "discovered"

prior to trial. Given the nature of the plaintiff's arguments, her

motion is best construed as a request for a new trial on the basis

of fraudulent and unexpected testimony. Thus, we must determine

whether, under the standards applicable to a motion made on that

basis, the district court abused its discretion in denying the

plaintiff's motion for a new trial.

1. Fraud

We cannot conclude that Officer Sein's affidavit

constitutes evidence of fraud sufficient to merit a new trial. The

burden on the moving party to prove fraud is high:

[The moving party] must clear a high hurdle in
order to set aside the verdict based on their
allegations of fraud. The moving party must
demonstrate fraud by clear and convincing
evidence and must show that the fraud
foreclosed full and fair preparation or
presentation of its case. We have explained
that fraud on the court occurs[] where it can
be demonstrated, clearly and convincingly,
that a party has sentiently set in motion some
unconscionable scheme calculated to interfere
with the judicial system's ability impartially

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 to adjudicate a matter by improperly
influencing the trier or unfairly hampering
the presentation of the opposing party's claim
or defense.

Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st

Cir. 1993) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118

(1st Cir. 1989)). Officer Sein's affidavit merely confirms parts

of Officer Ortiz's testimony and does not, in and of itself,

establish that the defendants knowingly provided false testimony or

sentiently crafted a scheme to hamper the plaintiff's presentation

of her case. Thus, even if the district court had treated the

motion for a new trial as one based on fraud rather than newly

discovered evidence, the motion could not have been granted on that

basis.

2. Unfairly surprising testimony

In arguing for a new trial on the basis of unfairly

surprising testimony, we take it that the plaintiff is arguing that

a new trial is necessary to avoid a clear miscarriage of justice.

This claim, in turn, rests on the contention that the defendants

violated a discovery rule of the Federal Rules of Civil Procedure

when they ambushed her with the testimony about Officer Sein. We

find this argument more persuasive.

Under Fed. R. Civ. P. 26(e), a party must "supplement its

answers to interrogatories if the party learns that the response is

in some material respect incomplete or incorrect and the other

party is unaware of the new or corrective information. . . . This

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supplementation requirement increases the quality and fairness of

the trial by narrowing the issues and eliminating surprise."

Licciardi v. TIG Ins. Group, 140 F.3d 357, 363 (1st Cir. 1998)

(internal quotation marks and citations omitted).5 The plaintiff

argues that she was ambushed at trial because the defendants failed

to supplement their answers to the interrogatories with information

about Officer Sein's role in the investigation, even after it was

clear that the plaintiff's theory of the case was based on Officer

Ortiz's investigation.

The record supports the plaintiff's argument. In her

written interrogatories, the plaintiff asked the defendants to

"[i]dentify each and any person(s) that has(have) or that you

believe may have any knowledge of the facts relevant to the

complaint, to the answer thereto and/or to any affirmative

5
Fed. R. Civ. P. 26(e) states in relevant part:

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:
. . .
A party is under a duty seasonably to amend a
prior response to an interrogatory, request
for production, or request for admission if
the party learns that the response is in some
material respect 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.

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defenses. For each such person state the known and/or suspected

scope of said knowledge." In response, the defendants listed

"Plaintiff, Sears, Javier A. Rivera, Luis Matos Colón, Luis Sierra,

and presumably the policemen and medical technicians whose [sic]

arrived at the scene." The defendants did not state the scope of

each witnesses' knowledge, although they did briefly describe, in

response to other interrogatories, the scope of the testimony to be

provided by Rivera, Matos, and Sierra, and attached a statement by

Matos describing his version of the accident. None of these

materials mentioned the defendants' contention that Officer Ortiz

never interviewed these witnesses.

In their brief, the defendants justify this omission by

stating that "when Sears answered the interrogatories, it did not

know at that point that there was a controversy as to who

interviewed Mr. Matos and Mr. Sierra." However, even if the

defendants' omission in their initial response to the

interrogatories is justifiable, they provide no explanation for why

they failed to supplement their interrogatories after they became

aware that this issue was in controversy –- either after they

deposed Officer Ortiz, or after the parties submitted their joint

Proposed Pre-Trial Order to the district court.

Upon deposing Officer Ortiz, the defendants learned that

he planned to testify that he interviewed Matos and that Matos

never mentioned Sierra as a witness. Furthermore, the plaintiff's

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statement of the "Nature of the Case" in the joint Proposed Pre-

Trial Order clearly indicated to the defendants that Officer

Ortiz's testimony played a key role in the plaintiff's theory of

the case:

Agent Ortiz investigated the facts surrounding
the accident, while his fellow officer took
care of directing the traffic and dealing with
the on-lookers. . . . Agent Ortiz interviewed
Mr. Luis Matos Colón, who told him that the
reason for the accident was that he had not
been paying attention. Agent Ortiz will also
testify that Mr. Luis Matos, the driver of the
Sears van[,] never informed him about the
existence of any eye witnesses to the
accident.

Yet, in their version of the "Nature of the Case" in the joint

Proposed Pre-Trial Order, the defendants omitted any reference to

the contrary testimony that their witnesses were going to provide

regarding Officer Sein's role in the investigation. Morever, in

their list of contested facts in the joint Proposed Pre-Trial

Order, the defendants did not note that they contested the identity

of the investigating officer. Instead, the only contested fact

regarding Officer Ortiz that they noted was "[w]hether Agent Jose

Ortiz Lopez adequately investigated the accident." This statement

is misleading, written in a way that presupposes that Officer Ortiz

conducted the investigation.

After deposing Officer Ortiz and receiving the

plaintiff's portion of the joint Proposed Pre-trial Order, the

defendants had to be aware that their prior response to the

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interrogatories was "in some material respect incomplete or

incorrect." Fed. R. Civ. P. 26(e)(2). On the basis of the

defendants' response to the interrogatories and their statement of

contested facts, the plaintiff had no reason to expect that the

defendants would question the identity of the police officer who

conducted the accident investigation. Yet the defendants did not

supplement their interrogatories. This was a clear violation of

Rule 26(e). See Licciardi, 140 F.3d at 364 (finding a Rule 26(e)

violation where, due to defendant's failure to supplement his

interrogatories, "plaintiff was prejudiced by presenting a case

addressed to one key issue, only to have defendant put on a case

addressed to a different predicate key issue"); see also Macaulay

v. Anas, 321 F.3d 45, 52 (1st Cir. 2003) ("Common sense suggests

that when a party makes a last-minute change that adds a new theory

of liability, the opposing side is likely to suffer undue

prejudice.").

3. Whether the defendants' discovery violation merits a
new trial

We do not minimize the significance of the defendants'

discovery violation. Yet the failure of the defendants to

supplement their responses to the interrogatories or otherwise

inform the plaintiff in a timely manner of the information about

Officers Ortiz and Sein does not excuse the plaintiff from her

failure to bring this discovery violation to the attention of the

district court at trial. In response to a valid Rule 26(e)

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objection, a court "may impose sanctions on one who defies the

rule, including exclusion of evidence, granting a continuance, or

other appropriate action." See Licciardi, 140 F.3d at 363.

Instead of making a timely objection under Rule 26(e) during the

trial, the plaintiff chose to cross-examine the defense witnesses

about the absence of Officer Sein and asked the jury to draw an

adverse inference against the defendants because of his absence.

If the plaintiff had raised a timely Rule 26(e) objection, the

district court might have granted her a continuance to produce

Officer Sein's testimony or could have excluded the testimony

regarding the identity of the investigating officer.

Colón argues that a request for a continuance to find

Officer Sein was not a practical option during the short, 2-day

trial. To support this point, she cites Klonoski v. Mahlab, 156

F.3d 255 (1st Cir. 1998). In Klonoski, we recognized that a

continuance is not always a feasible response to a party's

discovery violation. Id. at 273-74. Where the damage from the

surprise testimony cannot be undone or where the continuance would

undoubtedly be too lengthy, other sanctions are more appropriate.

Id. In this case, we have little basis for evaluating the

practicality of a continuance because plaintiff's counsel never

raised the possibility with the court. What we do know suggests

that a brief continuance may well have been feasible. The district

court suggested in its explanation of the denial of the plaintiff's

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motion for a new trial that Officer Sein "was even announced by

defendant and later put at plaintiff's disposition at trial." The

trial was conducted in San Juan. Officer Sein was apparently an

officer in San Juan. Plaintiff's counsel did not identify Officer

Sein as a rebuttal witness. Yet plaintiff's counsel's cross-

examination of the defense witnesses and his closing argument to

the jury revealed that he immediately understood the importance of

the testimony of defendants about the respective role of Officers

Ortiz and Sein in the investigation.

Moreover, nothing prevented plaintiff's counsel from

arguing that the defendants had violated Rule 26(e) by failing to

supplement their response to the interrogatories. Plaintiff's

counsel had at hand (or at least in the case file) all of the

information he needed to document that violation. If he had acted

in a timely fashion, he might well have been able to ask not only

for a continuance but also for a sanction that might have precluded

the defendants from relying on testimony crucial to their case

about the respective roles of Officers Ortiz and Sein. The court

was never given the opportunity to consider a sanction within the

framework of the trial that would have been a proportionate

response to the discovery violation.

"It is well settled that Rule 59 provides a means of

relief in cases in which a party has been unfairly made the victim

of surprise. The surprise, however, must be inconsistent with

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substantial justice in order to justify a grant of a new trial."

Perez-Perez, 993 F.2d at 287 (internal quotation marks and citation

omitted). In the absence of any objection to the admission of the

defense witnesses' surprise testimony or any request for a

continuance or other sanction because of a discovery violation, we

cannot conclude that its admission was "inconsistent with

substantial justice." Id.; see also Poulin v. Greer, 18 F.3d 979,

985 (1st Cir. 1994) ("[P]laintiffs never requested a recess prior

to [the] testimony in order to counter its alleged force. 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['s] testimony." (internal quotation marks

and citations omitted)). Thus, the discovery violation by the

defendants did not justify a new trial for the plaintiff.

B. Jury instructions

The plaintiff also argues that she should get a new trial

because the district court improperly excluded her proposed jury

instructions Nos. 14 and 16; improperly modified jury instructions

Nos. 13 and 15; and erred in giving instruction No. 29.6 Our

standard of review here depends on whether the plaintiff preserved

these arguments by objecting properly before the district court.

6
To enhance an understanding of the jury instruction arguments, we
include as an appendix to this opinion the portion of the court's
instructions dealing with the respective rights and
responsibilities of drivers and pedestrians under the law of Puerto
Rico.

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Fed. R. Civ. P. 51, as in effect at the time of trial in this

case,7 states in relevant part:

No party may assign as error the giving or the
failure to give an instruction unless that
party objects thereto before the jury retires
to consider its verdict, stating distinctly
the matter objected to and the grounds of the
objection. Opportunity shall be given to make
the objection out of the hearing of the jury.

Fed. R. Civ. P. 51 (2001).

In this case, plaintiff's counsel did not state the

grounds for the plaintiff's objections. Instead, plaintiff's

counsel listed the objections by reference to the number designated

to either the instruction the court gave or the instruction the

plaintiff had requested. "Reading a list of the numbers of the

requested instructions is not sufficient to preserve an objection

under Rule 51." CVD, Inc. v. Raytheon Co., 769 F.2d 842, 859 (1st

Cir. 1985).

The plaintiff attempts to circumvent the requirements of

Rule 51 by arguing that the district court failed to give her a

full opportunity to state her objections on the record. However,

there is nothing in the record to support this claim. To the

7
Fed. R. Civ. P. 51 was amended in 2003, effective Dec. 1, 2003.
The 2003 amendments were designed in part to ease the burden on
parties in preserving their objections to instructions where the
district court had already made a definitive ruling, on the record,
rejecting a request for a particular instruction. See Fed. R. Civ.
P. 51(d), Advisory Comm. Notes, 2003 Amendments (2006). The
amended rule also formally recognizes the general principle found
in case law that a court may review unpreserved objections to jury
instructions for plain error. See id.

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contrary, the record reveals that, earlier in the trial, the

district court suggested that the parties discuss their objections

to the jury instructions for the record, but plaintiff's counsel

asked to delay the discussion until some point after the defendants

finished presenting their last witness. After the defense rested

and closing arguments were presented, the district court read the

instructions to the jury and then asked the attorneys to approach

the bench. At that point, plaintiff's counsel brought up the issue

of preserving objections. The court then stated, "I tell you what,

this is what we are going to do[.] Are we on the record?"

Plaintiff's counsel responded by stating, "I have it by numbers if

you want," and then proceeded to note, by number, the plaintiff's

objection to one of the court's instructions, and the plaintiff's

list of proposed instructions that should have been included. The

court then stated, "I am saying for the record the jury

instructions that you mentioned are duly noted and have been

discussed in chambers. Okay." Plaintiff's counsel replied by

stating, in reference to the first objection, "Very well and the

one that the Court gave that I approached is also noted?" The

court replied, "Yes." And plaintiff's counsel said, "That was my

question. Thank you, Your Honor."

Plaintiff's counsel gave no indication that he felt his

client's rights were being restricted. To the extent that the

plaintiff is now arguing that she should be excused from stating

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the grounds for her objections because she was led to believe that

a previous discussion with the court in chambers about plaintiff's

objections would suffice to preserve them, this argument is

incorrect. "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." McGrath v.

Spirito, 733 F.2d 967, 969 (1st Cir. 1984); see also Kerr-Selgas v.

American Airlines, 69 F.3d 1205, 1213 (1st Cir. 1995). Rule 51

creates a strict rule for the parties, and "[t]here is no reason

here to overlook appellant's failure to follow the rule." McGrath,

733 F.2d at 969.

We thus review the alleged errors for plain error.

Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 50 (1st Cir. 2005).

"To obtain relief under this standard, the party claiming error

must show (1) an error, (2) that is plain (i.e., obvious and clear

under current law) (3) that is likely to alter the outcome, and (4)

that is sufficiently fundamental to threaten the fairness or

integrity or public reputation of the judicial process." Id.

(internal quotation marks and citation omitted). The requirement

that the error is likely to alter the outcome is particularly

important in this context because "[a]n erroneous jury instruction

necessitates a new trial only if the error could have affected the

result of the jury's deliberations." Allen v. Chance Mfg. Co., 873

F.2d 465, 469 (1st Cir. 1989). After reviewing the arguments

-25-
raised by the plaintiff on appeal, we find no error, plain or

otherwise.

1. Modifying plaintiff's proposed instruction No. 13

The district court did not err in modifying the

plaintiff's proposed instruction No. 13. The plaintiff sought an

instruction on pedestrians' rights of way on public roads. Some

of the plaintiff's proposed language was included in the district

court's instructions to the jury, but a paragraph about the duties

of pedestrians and drivers under Puerto Rico law was eliminated.

This paragraph stated:

In Puerto Rico the law allows pedestrians to
cross streets away from intersections and
traffic lights. It requires that pedestrians
exercise due care. Every driver of a motor
vehicle in a public road is required by law to
yield the right of way, slow down and stop the
vehicle when necessary.

The district court explained that the "plaintiff's version of the

cited law . . . omitted referring to the duty of the pedestrians

who cross outside of crosswalks to 'yield the right of way to all

vehicles . . .' Therefore, because the proposed language was

radically different and conveniently omitted referring to the

pedestrians' duty to yield, the [district court] eliminated it from

proposed instruction No. 13." Colón-Millín, No. 00-1213, slip op.

at 5.

We find no error here. The Puerto Rico Vehicle and

Traffic law explains that a pedestrian who crosses outside of a

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crosswalk "shall yield the right of way to all vehicles travelling

upon said highway." 9 L.P.R.A. § 1101(a). The plaintiff's

proposed instruction was incomplete and potentially misleading.

Instead, the court stated the actual text of section 1101(a) as

part of its jury instructions.

2. Excluding the plaintiff's proposed instruction No. 14

The plaintiff argues that the district court erred in

excluding her proposed instruction No. 14, which stated: "In Puerto

Rico, a driver of a motor vehicle that becomes aware of persons in

the roadway has the duty of driving his vehicle with extraordinary

care." The plaintiff cited Damiani Franco v. Donatiu Maldonado, 95

P.R.R. 809 (1968) as the basis for the proposed instruction. As

the district court noted, however, Damiani Franco is not on point.

Damiani Franco dealt with the duty of a driver to drive his vehicle

"with more care than ordinary" when crossing an intersection

because of a large gathering of people who were present during a

visit from President Kennedy. Id. at 815. The driver in Damiani

Franco was determined to have been traveling at an excessive speed.

Id. Thus, the factual circumstances of that case differ from the

situation here. While the accident between Matos and Colón

occurred on a busy street, the particularly large crowd of

individuals present in the Damiani Franco case was not a factor

here. Nor was Matos's speed the underlying concern here. We

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therefore find no error in the district court's omission of this

proposed instruction.

3. Modifying the plaintiff's proposed instruction No. 15

The plaintiff argues that the district court erred in

modifying her proposed instruction No. 15, which stated:

In Puerto Rico, a pedestrian cannot be injured
without any liability whatsoever on the part
of the owner and/or driver of a motor vehicle
for the sole fact that he is standing in the
roadway of a street and not on the sidewalk or
because she is invading the path of a vehicle.
In that case there is no right of way for the
motor vehicle.

As the basis for her proposed instruction, the plaintiff cited

Briales Aldrich v. Torres, 89 P.R.R. 797 (1964) and Vda. De Vila v.

Guerra Mondragón, 107 D.P.R. 418 (1978). The district court

concluded that "the dicta plaintiff was citing for this proposed

instruction . . . was so convoluted that it could have been

misconstrued by the jury imposing strict liability in situations

where a driver strikes a pedestrian." Colón-Millín, No. 00-1213,

slip op. at 6-7 (internal citation omitted). Instead of adopting

the plaintiff's proposed language, the district court modified the

instruction to match more closely the statement in Vda. de Vila and

Briales Aldrich. The modified instruction stated: "The mere fact

that the pedestrian is invading the roadway does not give the

driver a right to injure the pedestrian." See Vda. de Vila, 107

D.P.R. at 469 ("'The right-of-way does not grant the right on that

fact alone, to run over a person who invades it.'" (quoting Briales

-28-
Aldrich, 89 P.R.R. at 803)). In addition, the district court

included other statements in the instructions, including "Drivers

must take all precautions not to run over pedestrians," and "Those

precautions must be taken even though the pedestrian is incorrectly

or unlawfully using the highway." In light of the confusing

language proposed by the plaintiff and the district court's close

adherence to the text of the underlying cases, we find no error in

the court's modification.

4. Excluding the plaintiff's proposed instruction No. 16

The plaintiff argues that the district court erred by

excluding the plaintiff's proposed instruction No. 16, which read:

Even in situations in which the driver of a
motor vehicle has the right of way, said
driver has the duty to exercise a high degree
of care, having his vehicle under full control
and must look to all sides with the purpose of
preventing an accident. If there is a person
in the roadway, then there is no right of way
for the driver.

The plaintiff identified three cases as the basis for this proposed

instruction -- Damiani Franco, Briales Aldrich, and Flores v. F. &

J.M. Carreras, Inc., 83 P.R.R. 320 (1961). The district court

concluded "[i]nasmuch as plaintiff's proposed instruction No. 16

was based on her erroneous reliance on both the Briales and Damiani

cases, which are inapplicable to the case at hand, the Court

properly rejected this proposed instruction." Colón-Millín, No.

00-1213, slip op. at 7. We agree that Damiani involves different

facts and thus does not support the text of the plaintiff's

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proposed instruction. While the court did not address the Flores

case, that case is similarly inapplicable, involving a collision

between vehicles at an intersection, not a collision of a vehicle

and pedestrian outside a crosswalk. The facts in Briales Aldrich

come closer to the facts of the case here, and the language

proposed by the plaintiff mirrors some of the dicta in that case,

but we cannot say that the district court erred in rejecting the

instruction. As the district court previously noted, the proposed

language, when taken outside of the factual context of the Briales

Aldrich decision,8 comes close to suggesting a strict liability

standard for drivers who hit pedestrians. This standard is

unsupported in the case law. The district court did not err in

finding that the proposed instruction in this case was not

supported by Briales Aldrich. The district court nonetheless

reiterated in other parts of the instructions that drivers must

8
The plaintiff in Briales Aldrich, a pedestrian, was attempting to
cross a street when he stopped a few steps into the street, waiting
for the vehicles to permit him to cross. 89 P.R.R. at 802. While
the plaintiff was standing in the street, a driver suddenly swerved
his car in an attempt to overtake a truck that was entering another
street in front of him. Id. At that point, the driver hit the
plaintiff. Id. The court noted that the defendants presented no
evidence at trial, and the witness testimony established that "the
accident would not have occurred if said driver had not swerved
suddenly to the left but stayed in his direction waiting for the
truck to enter into the other street." Id. at 802-03. The court
also noted that "[t]here is nothing in our record in the sense that
plaintiff herein darted to cross in front of a vehicle." Id. at
803. On these facts, the court reversed a judgment dismissing the
plaintiff's complaint. Id. at 805.

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take precautions to avoid hitting pedestrians even when the

pedestrians are using the road improperly or unlawfully.

5. Including instruction No. 29

The plaintiff argues that the district court erred in

including instruction No. 29, proposed by the defendants, which

stated:

The driver of a vehicle has the right to
assume that a pedestrian standing in a safe
place will not suddenly leave that place and
place herself in the vehicle's path. To the
contrary, the driver has the right to assume
the pedestrian will not act in such a manner.

The defendants cited Meléndez v. Alvarez, 35 P.R.R. 316 (1926) and

Abréu v. Díaz, 52 P.R.R. 715 (1938) as the basis for this

instruction. The instruction matches almost exactly the text of

these cases. See Abréu, 52 P.R.R. at 719 ("'[T]he driver of a

motor vehicle has the right to presume that a person standing in a

place of safety will not suddenly leave that position and place

himself in front of the vehicle. On the contrary, he has the right

to assume that he will not so act.'" (quoting Meléndez, 35 P.R.R.

at 320). However, the plaintiff argues that the instruction "was

couched in general terms, as if applicable to this case regardless

of the parties' theories or particular findings of fact,"

apparently contesting the implication that the case here involved

a situation where the pedestrian had placed herself in the

vehicle's path. However, as the district court concluded, "[g]iven

the testimony presented at trial that supported defendants' theory

-31-
that plaintiff had jumped out in front of the van, defendants were

entitled to have this instruction given to the jury." Colón-

Millín, No. 00-1213, slip op. at 7. We find no error here.

III.

After carefully reviewing the record, we conclude that

the defendants failed to supplement their responses to the

interrogatories as required by Fed. R. Civ. P. 26(e)(2), leading to

testimony that unfairly surprised the plaintiff at trial. However,

because the plaintiff failed to object to the surprise testimony,

request a continuance, or seek any other sanction for the discovery

violation, that violation does not justify a new trial.

Furthermore, we conclude that the plaintiff failed to preserve her

objections to the jury instructions, despite having an opportunity

to do so. Also, there was no error in the instructions, plain or

otherwise. The court did not abuse its discretion in denying the

plaintiff's motion for a new trial. The decision of the district

court is affirmed. The parties shall bear their own costs on

appeal.

So ordered.

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 APPENDIX

We set forth here a portion of the district court's jury

instructions on the rights and responsibilities of drivers and

pedestrians under Puerto Rico law, given to the jury in the United

States District Court for the District of Puerto Rico on September

21, 2001 (Docket No. 00-1213):

In Puerto Rico the owner of the motor
vehicle is liable for the damages and losses
caused through the guilt or negligence by
operation of such vehicle with the
authorization of the owner.

The right of way is a right that a
vehicle or pedestrian has to legally go on and
with preference over another vehicle or
pedestrian approaching thereat when the
circumstances of speed, direction and
proximity are such that an accident could be
precipitated unless one of them yields the way
to the other.

Where there are consecutive intersections
any of which are controlled by a traffic
light, a pedestrian shall cross only on a
pedestrian cross walk marked on the pavement.
Where a pedestrian crosses a road outside of
an intersection or cross walk he or she shall
yield the right of way to all vehicles
travelling on the road. Drivers must take all
precautions not to run over pedestrians and to
take special precautions when the pedestrians
are children, old or disabled persons. These
precautions must be taken even though the
pedestrian is incorrectly or unlawfully using
the public highway. The mere fact that a
pedestrian is invading the roadway does not
give the driver the right to injure the
pedestrian. As a general rule a driver has a
duty to maintain a sufficiently moderate speed
and have the control necessary to stop his
vehicle within the distance in which he can
clearly see an obstruction or danger that is

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before him. However, this rule does not apply
to a case in which there suddenly appears
before the vehicle a dangerous situation that
the driver had no reason to anticipate.

The driver of a vehicle has the right to
assume that a pedestrian standing in a safe
place will not suddenly leave that place and
place herself in the vehicles path. To the
contrary, the driver has the right to assume a
pedestrian will not act in such manner.

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