
USCA1 Opinion

	




          December 9, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1055                       BENJAMIN HARRISON AND ROSALIND HARRISON,                               Plaintiffs, Appellants,                                          v.                              SEARS, ROEBUCK AND COMPANY                            and EMERSON ELECTRIC COMPANY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Bailey Aldrich,* Senior Circuit Judge]                                            ____________________                                 ____________________                                        Before                         Torruella and Boudin, Circuit Judges,                                               ______________                               and Brody,** District Judge.                                            ______________                                 ____________________            Leonard Glazer with whom  Frank E. Glazer  and the Law Offices  of            ______________            _______________          _______________        Leonard Glazer, P.C. were on brief for appellants.        ____________________            David  A. Barry with whom Regina E. Roman,  Barbara L. Siegel, and            _______________           _______________   _________________        Sugarman, Rogers, Barshak & Cohen, P.C. were on brief for appellees.        _______________________________________                                 ____________________                                 ____________________        _____________________        *  Of the First Circuit, sitting by designation.        ** Of the District of Maine, sitting by designation.                                           BRODY, District Judge.           Plaintiffs,                                   ______________             Benjamin  and  Rosalind  Harrison, appeal  from  a  judgment             entered  after a  jury  verdict  denying  them relief  in  a             personal injury  suit against  Sears, Roebuck &  Company and             Emerson  Electric   Company.    Plaintiffs   appeal  several             evidentiary  rulings  of  the  trial  court  including:  the             admission  of an x-ray  as evidence,  an instruction  to the             jury on  the significance  of the  x-ray,  the exclusion  of             certain expert  testimony, and the exclusion  of evidence of             subsequent remedial measures to  the product which allegedly             caused the  injury in  question.   Because we  are satisfied             that the trial  judge did  not abuse his  discretion in  the             challenged evidentiary rulings, WE AFFIRM.                                             _________                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                            Appellants'   decedent,   Benjamin  Harrison,             allegedly sustained  injuries to  two fingers while  using a             Craftsman 6-1/8  inch Jointer-Planer ("jointer").   Benjamin             Harrison was a 70 year old man who was using  the jointer to             do carpentry work  on kitchen  cabinets for his  home.   The             jointer  was   purchased  from  Sears,   Roebuck  &  Company             ("Sears")  and was designed, manufactured and distributed by             Emerson Electric Company ("Emerson").                              The complaint was filed on February 26, 1986,             by  Appellants,  Benjamin  and  Rosalind  Harrison,  against             Appellee,  Sears.    The complaint  alleged  negligence  and             breach of warranty with respect to the jointer, resulting in             personal  injuries  to   Benjamin  Harrison   and  loss   of             consortium to Rosalind.   An  answer was filed  by Sears  on             March  27,  1986.   Subsequently,  on  June  21,  1987,  the             Harrisons  filed  an  amendment  to  the  complaint,  adding             Emerson as  a defendant and alleging that Emerson engaged in             the  design  development, testing,  manufacturing, marketing             and sale of the jointer.                            Benjamin Harrison died on June  20, 1990 from             an illness  unrelated to his injuries.   Frederick Harrison,             Benjamin's  son,  was  appointed  executor  of  his father's             estate, and he was substituted in this action.                            The  trial began  on November  18, 1991.   On             November  25,  1991  the  jury returned  a  verdict  for the             defendants.    Plaintiffs'  theory  at trial  was  that  the             accident occurred when Benjamin Harrison's left hand entered             an unguarded aperture  near the on-off switch and  came into             contact  with the jointer's blade.  In response to the first             special interrogatory  posed, "Was  plaintiff  injured as  a             result  of unintentionally  inserting his  fingers  into the                                         -3-                                          3             aperture?," the  jury responded  "no".  Therefore,  the jury             did not  respond to the interrogatories regarding negligence             and breach  of warranty.   Judgment was entered  on November             27, 1991.  Plaintiffs  moved for a new trial on  December 9,             1991, and the motion was denied on December 11, 1991.   This             appeal followed.                            The  precise  way   in  which  the   accident             occurred  was heavily  disputed  at trial.   The  deposition             testimony  of  the  Appellants' decedent  stated  that while             Benjamin Harrison was  in the  process of  shutting off  the             jointer,  his left hand  slipped from the  on-off switch and             entered  into  an  opening  allowing his  fourth  and  fifth             fingers   to  make  contact   with  moving   cutter  blades.             Appellants allege that this  contact resulted in the partial             amputation of the decedent's left ring finger and  injury to             his left fifth finger.                             Appellants'   engineering  expert,   Bradford             Schofield,  testified   that  the  opening   represented  an             unreasonably   hazardous   design  that   violated  accepted             industry  standards  and  resulted  in the  accident.    Mr.             Schofield  testified  that  the  opening  could  have   been             eliminated at negligible cost.                                         -4-                                          4                            Appellants'   medical  expert,   Dr.  Stephen             Meagher,  testified with  regard  to  the  permanent  injury             suffered by Benjamin  Harrison as a result  of the incident.             During cross-examination, Dr. Meagher  testified that in his             opinion, the accident occurred  as a result of the  entry of             Benjamin  Harrison's fingers into  the opening.   Appellants             sought to introduce  Dr. Meagher's assessment of an x-ray of             Mr. Harrison's  hand.  Although Appellants  never listed Dr.             Meagher as  a liability  expert during pre-trial  discovery,             they  sought to  have  his testimony  admitted during  their             case-in-chief   to  rebut   the  anticipated   testimony  of                                 _____             Appellees'   expert,   Jack  Hyde,   with   regard   to  the             significance of the  x-ray in determining  the cause of  the             accident.  Appellants argued  that this testimony was proper             because they had not  been notified prior to trial  that the             x-ray  would be  relied  on.   The  trial judge  ruled  that             Meagher  could  not  offer  an  opinion  regarding  how  the             accident occurred  on direct examination  because Appellants             had  never  disclosed  prior  to trial  that  Meagher  would             testify as to causation.                            Appellees  then  presented their  engineering             expert, Jack Hyde, who testified that the accident could not             have occurred as  Benjamin Harrison claimed.   Hyde gave two                                         -5-                                          5             reasons for his opinion.  First, Hyde testified that because             of the  design of the jointer, it  would be difficult to get             one's  fingers   into  the  opening  unintentionally.     In             addition,  Hyde  opined  that  the  injury  could  not  have             occurred as Harrison alleged  because the angle and location             of the cuts on Harrison's fingers, as depicted in the x-ray,             were  inconsistent with his testimony  as to how the fingers             were   cut.    Hyde  was  permitted  to  use  the  x-ray  in             conjunction  with his  testimony over  Appellants' objection             that he lacked qualification as an expert with respect to x-             ray interpretation.  Appellants also objected on the grounds             that  Appellees  failed to  give  adequate  notice regarding             Hyde's anticipated  testimony  with respect  to  the  x-ray.             Appellants' further  objected to the  court's instruction to             the jurors  that "they may  conclude, to  some extent,  what             [they]  think an x-ray means."   Trial Tr.  at 61, reprinted                                                                _________             in, Appellants' App. at 270.               __                            Hyde was also permitted to testify that there             had  never  been  a  similar complaint  to  Emerson  despite             Appellants' objection to the  use of this negative evidence.                            Finally,  Appellants  contend that  the trial             court's denial of  their motion  for a new  trial should  be                                         -6-                                          6             reversed  because the  court sustained  Appellees' objection             when Appellants sought to  cross-examine Hyde with regard to             a subsequent  design change which eliminated  the opening in             the jointer.   Appellants argue that  this cross-examination             should  have  been permitted  because Hyde  testified during             direct examination  that there  had been "no  hazardous area             left  exposed   next  to   the  switch  where   you  [could]             unintentionally get your  hand," even though  he contributed             to a  subsequent design change which  eliminated the opening             in question.  Trial Tr. at 40, reprinted in Appellants' App.                                            ____________             at  249.    Further,   Appellants  argue  that  this  cross-             examination was proper because  Appellees opened the door to             this type of evidence when they touted Hyde's qualifications             as  an expert  which  included his  work  on the  design  of             jointers.                                    II. DISCUSSION                                    II. DISCUSSION                                        __________                            A. Use of the x-ray as evidence                            A. Use of the x-ray as evidence                               ____________________________                            The   district   court   allowed   Appellees'             engineering  expert,  Jack  Hyde,  to utilize  an  x-ray  of             Harrison's hand  while  testifying regarding  the  cause  of             Harrison's injuries.  Appellants contend that Hyde was not a             medical expert  and thus not qualified  to interpret x-rays.             Appellants assert that the allowance of the use of the x-ray                                         -7-                                          7             was an abuse  of discretion.   Appellees  argue in  response             that  in this context the  x-ray is equivalent  to a picture             and, therefore, requires no specialized knowledge to view in             order  to  determine  the angle  of  the  break  in a  bone.             Appellees  further  contend  that   there  is  no  merit  to             Appellants'    position    because,    as     an    accident             reconstructionist,  Hyde  had extensive  experience  with x-             rays.                            The admission of  expert testimony under Fed.             R. Evid. 702 is within the trial court's discretion and will             be reversed only  for an  abuse of discretion.   Navarro  de                                                              ___________             Cosme  v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir. 1991).             ________________________             Specifically, the trial judge has discretion in determining:             (1)  whether  Hyde  was  sufficiently  qualified  to testify             regarding  the x-ray  of  Harrison's hand,  and (2)  whether             Hyde's testimony would, in fact, assist the trier of fact to             understand  the evidence or  to determine  a fact  in issue.             Raymond v.  Raymond Corp.,  938 F.2d  1518,  1526 (1st  Cir.             ________________________             1991).                              There  was evidence  that Hyde  had extensive             formal  education  in   safety  engineering,  human  factors             engineering  and   product  safety.      Also,  the   record             demonstrates  that Hyde  had  over ten  years of  experience                                         -8-                                          8             reconstructing  accidents involving  power  tools  and  hand             injuries.  Moreover, Hyde  had read x-rays of hand  and body             parts  involved  in  accidents on  numerous  occasions,  had             consulted with  doctors concerning his interpretation  of x-             rays, and  he testified  that x-rays were  often interpreted             and relied upon by experts in his field.                              The  record demonstrates that the trial judge             was  well within  his  discretion in  determining that  Hyde             possessed  sufficient  knowledge,   skill,  experience   and             training to utilize the x-ray to support his testimony.  The             record  also indicates that Hyde used the x-ray to determine             the location and angle of the cuts to Harrison's fingers and             not for  a medical diagnosis.  Allowing  Hyde to make use of             all the  information available to him,  including the x-ray,             was not an abuse  of discretion.  See, e.g. Gray  v. General                                               ____ ____ ________________             Motors Corp., 434 F.2d 110, 113 (8th Cir. 1970).              ___________                            B. The jury instruction regarding the x-ray                            B. The jury instruction regarding the x-ray                               ________________________________________                            The trial judge permitted the jury to see the             pre-operative  x-ray of Harrison's  hand in conjunction with             Jack  Hyde's  testimony.    In  addition,  the  trial  judge             instructed the jury:                                         -9-                                          9                            . . . you may conclude to some                            extent what you think  [the x-                            ray] means.                              Now, this x-ray shows some bone.  If the                            witness says something  about the  bone,                            and what  they mean to him,  you will be                            free  to reject  it, if it  doesn't meet                            with your approval.  You will be able to                            accept it, if it does.              Trial Tr. at 61, reprinted in Appellants' App. at 270.                              ____________                            While case  law exists  in which  courts have             found it improper  to allow  the jury to  see x-rays,  these             cases  all  involved  complex  medical issues.    See,  e.g.                                                               ____  ____             Broderick v. Gibbs,  1 Mass.  App. Ct. 822,  296 N.E.2d  708             __________________             (1973).  In this case, the jury was permitted to  use the x-             ray  as a photograph would  be used, to  depict the location             and  angle  of  the cuts  to  Harrison's  fingers.   Because             laypersons are  capable of  understanding x-rays  insofar as             they depict the location of a missing section of  a bone, it             was not improper for the district court to allow the jury to             view the x-rays for this purpose.                               Further, the challenged jury  instruction did             not  tell   the  jurors  they  could   use  their  unbridled             discretion in interpreting the  x-ray as Appellants suggest.             Rather,  the instruction  indicated  that  the jurors  could             conclude  whether they  believed the  x-ray showed  what the             witness purported it revealed.    For these reasons  we find                                         -10-                                          10             that  the  admission  of   the  x-ray  with  the  challenged             instruction was not an abuse of discretion.                            C.  The scope of Dr. Meagher's testimony                             C.  The scope of Dr. Meagher's testimony                                ____________________________________                            Appellants assert that during the Defendants'             opening  statement  they learned  for  the  first time  that             Defendants'  expert,  Jack  Hyde,  would use  the  x-ray  to             support his opinion.  The scope of Hyde's expected testimony             was reflected  in the  Defendants'  Supplemental Answers  to             Interrogatories.   These  interrogatories stated  that, "Mr.             Hyde  will testify  that the  plaintiff Benjamin  Harrison's             description  of how  the accident  occurred is  inconsistent             with the nature and location of his injury and the design of             the product."  Interrog. of Def. Emerson pp. 7-8,  reprinted                                                                _________             in Appellants'  App. at  52-53.   Because Appellees  did not             __             expressly state  that the x-ray  would be  used until  their             opening statement  to the jury, Appellants  assert that they             had a right to rebut the interpretation of the x-ray.                              Appellants sought to rebut Hyde's anticipated             use of the x-ray with the testimony of their medical expert,             Dr. Meagher.  It was not until a bench conference during the             direct  examination  of  Meagher, that  Appellants'  counsel             expressed  his  intention to  ask  Meagher  for his  opinion             regarding  the significance  of  the  x-ray  in  determining                                         -11-                                          11             whether the injury could have been produced by the insertion             of fingers into the opening.                              Appellees   objected    to   this   testimony             asserting that it would be unfairly prejudicial because they             had been given no  notice that Dr. Meagher would  testify to             anything  other than his  physical examination  of Harrison.             Specifically,  Appellees objected to Dr. Meagher's testimony             as  to causation  issues because  he was  never listed  as a             liability  expert  in  Plaintiffs' Supplemental  Answers  to             Interrogatories.                              The   scope   of   Dr.   Meagher's   expected             testimony,  as  described  in the  Plaintiffs'  Supplemental             Answers to  Interrogatories and Trial Brief,  was limited to             his  diagnosis and  prognosis  of the  Plaintiff's  injuries             based on  his  post-injury  examination  of  the  Plaintiff.             Appellants'  counsel  conceded  at a  bench  conference that             there was nothing in Meagher's  report dated April 13,  1989             which related  to the precise  manner in which  the accident             occurred and that, prior to trial, Appellants never intended             to have  him testify  regarding the cause  of the  accident.             Nevertheless, Appellants  contend that  they had a  right to             question Dr.  Meagher on the causation issue  and to solicit                                         -12-                                          12             his opinion about the  significance of the x-ray  to "rebut"             the expected testimony of Jack Hyde.                              During direct examination, the district court             initially refused  to allow Dr. Meagher to  offer an opinion             regarding  the  cause  of  the  Appellant's  injury  because             Appellants had not disclosed that he would so  testify prior             to trial.  The district  judge did not address the issue  of             whether this  was proper rebuttal evidence  when he excluded             the  testimony  in  question.     Ultimately,  however,   as             discussed below,  the district court allowed  Dr. Meagher to             testify  to some extent  about causation, but  the court did             not  allow  Dr.  Meagher  to  testify  that  the  x-ray  was             consistent with Appellants' version of the events.                            Assuming arguendo  that it was  error for the             trial  judge to  exclude Meagher's causation  testimony, the             standard  for reviewing a district court's nonconstitutional             error  in  a civil  suit requires  that  we find  such error             harmless if it  is highly  probable that the  error did  not             affect the outcome of the case.  See, e.g.  United States v.                                              ____ ____  ________________             Garcia-Rosa, 874 F.2d  209, 222 (1st Cir. 1989),  vacated on             ___________                                       __________             other grounds  sub nom. Rivera-Feliciano  v. United  States,             _______________________ ___________________________________             112  L. Ed.  2d 391 (1990).   The record  indicates that Dr.             Meagher unequivocally  testified a number of  times that the                                         -13-                                          13             accident  could not have happened  in any way  other than as             Harrison described.1   Allowing Dr. Meagher  to testify that             the  x-ray  showed  an  injury  which  was  consistent  with             Harrison's  allegations  would  have  added  little  to  the             evidence  before  the  jury.     Although  Dr.  Meagher  was             prevented  from   testifying  directly  about   his  opinion             regarding the accident's cause, he did in fact tell the jury             that he believed the  cause of the accident could  only have             been as Harrison described.  Any additional testimony by Dr.             Meagher regarding causation would  have been cumulative.  We             find  that  the failure  of the  trial  court to  admit such             cumulative   evidence,  as   rebuttal   or  otherwise,   was             harmless.  Coy v.  Simpson Marine Safety Equipment,Inc., 787                        ____________________________________________             F.2d  19,  24-25  (1st  Cir.  1986)  (harmless  error  where             substance of excluded testimony could be inferred from other             trial testimony).                                                ____________________             1   After Dr. Meagher reported his record of the plaintiff's             medical history, which reiterated the plaintiff's contention             that he  was injured  when his hand  unintentionally slipped             into  the  opening by  the  on-off switch,  the  trial judge             asked,  "And  your  opinion  was  that  the  injury that  he             received, the damages that  he received, was consistent with             that  history?"  Meagher responded, "Absolutely. Absolutely.             It couldn't have happened  any other way."  The  trial judge             then repeated  his question,  "He couldn't have  cut himself             some  other way?"   Meagher replied,  "No. Absolutely.   The             middle finger and index were most  at risk on the top of the             table . . . ."  Trial Tr. at 33-34, reprinted in Appellants'                                                 ____________             App. at 171-72.                                         -14-                                          14                            On  this appeal,  Appellants seem  to suggest             that Dr. Meagher was prepared to offer a detailed refutation             of  Hyde's analysis of the  x-ray to show  in specific terms             why Hyde's interpretation of the x-ray was wrong and why the             x-ray in fact supported Appellants' theory of causation.  If             so, it is at  least arguable that such testimony  could have             been properly characterized as  "rebuttal" and that it would             have  been more than merely cumulative.  It is impossible to             determine, however, whether Dr. Meagher was prepared to give             detailed  testimony  of this  nature  -- or  whether  he was             merely going  to state  that the x-ray  was consistent  with             Appellants' version of causation -- because Appellants never             presented the district court with a proffer of the substance             of  Dr.  Meagher's  testimony.   Federal  Rule  of  Evidence             103(a)(2)  places the  burden  of making  a  proffer on  the             proponent of  the excluded  evidence, precisely in  order to             resolve this uncertainty and to ensure that  the trial judge             and  the  appellate court  can  evaluate  the matter  fully.             Because  Appellants  failed  to  make  such  a  proffer,  we             conclude that they  cannot argue on appeal that  Dr. Meagher             was prepared to  present a detailed refutation  of Hyde's x-             ray testimony.                                         -15-                                          15                            D.   The  allowance  of the  use of  negative                                 The  allowance  of the  use of  negative                                 ________________________________________             evidence             evidence             ________                            Hyde   was   permitted   to    testify   over             Appellants'   objection  that,  other  than  Harrison's,  no             complaints of similar injuries  while using the jointer were             ever made to Emerson.  Appellants contend this  was improper             because  it  was  irrelevant,  not  supported  by  a  proper             foundation  and  misleading  because  only  the  name  Sears             appeared on the jointer.                              Although Appellants claim  that the  negative             evidence is irrelevant and  inadmissible to prove causation,             they offer  no authority to  support that position  and such             evidence  has been  admitted  in  past  cases.   See,  e.g.,                                                              ____  ____             Borrelli v. Top Value Enterprises, Inc., 356 Mass. 110, 113,             _______________________________________             248 N.E. 2d 510 (1969).             Since Hyde's  testimony was explicitly limited to complaints             to Emerson, and because there  was evidence that Hyde  would             know of  any complaints regarding the  jointers Emerson sold             (approximately 390,000), the  foundational requirements  for             such testimony were adequately met.                            Appellants'   remaining   objection  to   the             testimony  is based  upon  their contention  that, in  fact,             customer  complaints  may  have  been  made  to  Sears,  the                                         -16-                                          16             retailer, which were not  relayed to Emerson and, therefore,             Hyde's testimony  concerning Emerson  was misleading to  the             jury.   Because Appellants  were free to  cross-examine Hyde             about  his  knowledge of  similar  complaints  (or the  lack             thereof) made to Sears, their  challenge to the admission of             this  evidence  as misleading  is  not  persuasive.   Hyde's             knowledge  of similar  complaints made  to Sears  was  not a             foundational   prerequisite   to  his   testimony  regarding             complaints to Emerson.  For these reasons we find it was not             an  abuse of discretion for the district court to admit this             testimony.                            E.  The  exclusion of evidence of  subsequent                            E.  The  exclusion of evidence of  subsequent                                _________________________________________             remedial                measures  to   negate  the  expert's             remedial                measures  to   negate  the  expert's             ________                ____________________________________             qualifications  and to                        impeach Hyde's             qualifications  and to                        impeach Hyde's             ______________________                        ______________             testimony                    testimony                    _________                            The   Court  did  not  permit  Appellants  to             question  Appellees'  expert,  Hyde,   regarding  subsequent             remedial measures  made to the jointer.   Appellants contend             that this  was reversible error  because Appellees bolstered             Hyde's  qualifications  by allowing  him  to  state that  he             worked on design changes to the jointer.   Appellants assert             that  they  should have  been able  to  bring out  on cross-             examination  that one  of  Hyde's contributions  led to  the             subsequent removal of  the opening  which allegedly  injured             Appellant.                                                 -17-                                          17                            Appellants sought to have the evidence of the             subsequent removal of the opening in the jointer admitted to             impeach  Hyde's  testimony  as   well  as  to  diminish  his             qualifications.  Hyde testified  on direct examination that,             "there  [was] no  hazardous area  left exposed  next to  the             switch where you are going to unintentionally get  your hand             in  there and contact  the cutter head."   Trial  Tr. at 40,             reprinted  in  Appellant's  App.  at 249.    However,  after             _____________             Appellants' claim  arose, Hyde  participated  in designing a             new  jointer without  the  opening  which allegedly  injured             Harrison.                              In rejecting  the use of  subsequent remedial             measure evidence, it  is not clear  from the record  whether             the district court was made  aware of the impeachment aspect             of Appellants' objection.  In any event, the use to undercut             qualifications and  the use to impeach  Hyde's testimony are             closely related  -- in substance Appellants  wanted to argue             that  "you can't trust this  witness" -- and  we will assume             that  both  uses were  adequately  raised  before the  trial             court.  In light  of the close connection between  these two             proposed uses, we will refer to both as impeachment.                                Federal Rule of Evidence 407 does not require             the exclusion  of evidence of subsequent  measures when such                                         -18-                                          18             evidence   is  being  offered  exclusively  for  impeachment             purposes.2  Reversible error  has been found when subsequent             remedial  evidence  has  been   excluded  when  offered  for             impeachment  purposes.   See,  e.g. Petree  v. Victor  Fluid                                      ____  ___  ________________________             Power Inc., 887 F.2d 34, 38 (3rd Cir. 1989).  However, cases             __________             which have admitted subsequent remedial measure evidence for             impeachment purposes tend to involve a greater nexus between             the  statement  sought  to  be impeached  and  the  remedial             measure than the  case at bar.  For example,  in Anderson v.                                                              ___________             Malloy, subsequent remedial measure evidence was admitted to             ______             impeach  statements that  defendants  had  checked the  area             prior to  the alleged accident and  done everything possible                                                      ___________________             to make it  safe.  700  F.2d 1208, 1212-14  (8th Cir.  1983)                                              ____________________             2  Fed. R. Evid. 407 provides:                            When after  an event, measures                            are  taken   which,  if  taken                            previously,  would  have  made                            the   event  less   likely  to                            occur,    evidence    of   the                            subsequent [remedial] measures                            is  not  admissible  to  prove                            negligence or culpable conduct                            in connection  with the event.                            This rule does not require the                            exclusion   of   evidence   of                            subsequent    measures    when                            offered  for another  purpose,                            such  as  proving   ownership,                            control,  or   feasibility  of                            precautionary   measures,   if                            controverted, or impeachment.                                          -19-                                          19             (emphasis  added).    A   more  direct  impeachment  use  of             subsequent   remedial  measure   evidence  would   exist  if             Appellees' witness stated that he did not change the product             after  the alleged  accident was  brought to  his employer's             attention.  See, e.g.  Garshon v. Aaron, 330 Ill. App.  540,                         ____ ____  ________________             71 N.E.  2d 799 (1947).   Rule  407's impeachment  exception             must  not be  used as  a subterfuge  to prove  negligence or             culpability.    See Hardy v. Chemetron Corp., 870 F.2d 1007,                             ___ ________________________             1010-12  (5th Cir.  1989)  (trial  court  properly  excluded             evidence  of  subsequent   rewiring  proffered  to   impeach             defendant's testimony  that negligent wiring had  not caused             the plaintiff's injury).                              The  leading  commentators  have   noted  the             difficulty   associated   with   applying  the   impeachment             exception to  Rule 407.   Professor Wright  voices a  strong             concern that the  "exception" has the capacity to engulf the             "rule".  23 Wright & Graham, Federal  Practice and Procedure                                          _______________________________              5289, at 145 (1980) (footnote omitted).              To guard against the  impeachment exception being used  as a             loophole for bringing in  evidence to prove negligence under             Rule 407,  the commentators advise that  trial judges should             not abandon their discretionary authority under Federal Rule                                         -20-                                          20             of  Evidence  4033  to exclude  the  use  of such  evidence.             Wright & Graham, supra, at 148.                 In this case                              _____             the trial  judge invoked his discretionary  power to exclude             testimony  concerning the  subsequent design  change to  the             jointer.  It is beyond question that the proffered testimony             would have been extremely prejudicial to the Appellees.   As             impeachment evidence the only available basis for  admission             of the subsequent design change  would have been to  impeach             Hyde's contention that the  accident could not have happened             in  the manner described by  Appellant.  To allow Appellants             to impeach  this statement  would in effect  enable them  to             impeach Hyde's claim that the  product was not defective and             that Appellees  were not  negligent.   If  the evidence  was             admitted to  impeach Hyde, Appellants' argument  to the jury             could   have  closely   paralleled  an  argument   that  the                                              ____________________             3  Fed. R. Evid. 403 provides:                            Although   relevant,  evidence                            may   be   excluded   if   its                            probative       value       is                            substantially   outweighed  by                            the    danger     of    unfair                            prejudice,  confusion  of  the                            issues,   or  misleading   the                            jury, or  by considerations of                            undue delay,                             waste  of  time,  or  needless                            presentation   of   cumulative                            evidence.                                         -21-                                          21             subsequent  measure could  be seen  as proof  that Appellees             were negligent.                              It  was within  the trial  judge's discretion             under Rule 403 to determine whether this evidence would have             prejudiced Appellees contrary to the intent of Rule 407, and             to exclude such evidence due to the risk that the jury might             improperly  infer negligence from it.   See, e.g., Probus v.                                                     ____ ____  _________             K-Mart,  Inc., 794 F.2d  1207, 1209 (7th  Cir. 1986); Public             _____________                                         ______             Service Co. v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th             ____________________________________             Cir.  1985).   Because Hyde's  statement and  qualifications             could only have been  indirectly impeached by the subsequent             remedial  measure evidence  and  because the  nature of  the             evidence  was highly  prejudicial, the  trial judge  did not             abuse   his  considerable   discretion  in   excluding  such             evidence.                              For   these  reasons,  the  judgment  of  the             district court is affirmed.                               ________                                         -22-                                          22
