
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1345                                 ROBERT J. SACRAMONA,                                Plaintiff, Appellant,                                          v.                             BRIDGESTONE/FIRESTONE, INC.,                                and THE BUDD COMPANY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Michael K.  Gillis with whom Gillis & Bikofsky, P.C. was on briefs            __________________           _______________________        for appellant.            Francis H.  Fox with  whom John  R.  Skelton and  Bingham, Dana  &            _______________            _________________      ________________        Gould LLP were on brief for appellee Bridgestone/Firestone, Inc.        _________            Edward M.  Kay  with whom  Michael  W.  Duffy, P.  Scott  Ritchie,            ______________             __________________  __________________        Clausen  Miller, P.C.,  Robert M.  Spence, Assistant  General Counsel,        _____________________   _________________        Mark R. Karsner and Karsner &  Meehan, P.C. were on brief for appellee        _______________     _______________________        The Budd Company.                                   ________________                                  February 13, 1997                                   ________________                 BOUDIN, Circuit Judge.  Robert  Sacramona, the plaintiff                         _____________            in this  diversity action, appeals from  the district court's            grant of summary judgment against him.  His claims arose from            an accident that occurred when Sacramona sought to mount  and            inflate     a     tire     manufactured      by     defendant            Bridgestone/Firestone,  Inc.  on   a  wheel  manufactured  by            defendant, The  Budd Company.   The  appeal is essentially  a            challenge to the district  court's rulings on the destruction            or  loss   of  evidence   and  resulting  prejudice   to  the            defendants.                 The facts  are as follows.   On May 4, 1988,  a customer            drove his van into  the Economy Mobil gas station  for repair            of  a leaking  tire.  Sacramona,  the station's  new manager,            removed the  tire and decided  to replace rather  than repair            it.   Because  the station  did not  have an  appropriate new            tire,  Sacramona selected a used, 16-inch tire from a rack of            tires at  the station  as a temporary  replacement, intending            later to get a new tire for the customer.                 The replacement tire  bore warnings  that it  was to  be            used only  with a  16-inch wheel.   Sacramona later  admitted            that he did not check the  diameter of the wheel rim; he said            that he chose a 16-inch tire because the tire that he removed            was  also 16 inches.  But the replacement tire apparently did            not fit  the  wheel,  which  Sacramona now  says  was  16-1/2            inches.  After Sacramona struggled to mount the tire--using a                                         -2-                                         -2-            tire mounting machine and lubricant, striking the tire with a            hammer,  and bouncing  it on  the ground--the  tire allegedly            exploded as  he again  attempted to  inflate it,  causing him            numerous injuries.                 Sacramona  was  taken  to  the  hospital  by  ambulance.            Another service station employee  put the damaged replacement            tire  on the  wheel without  inflating it,  and  the customer            drove  back home  very slowly  on the  uninflated tire.   The            customer subsequently had the  wheel and damaged tire removed            from his van and  left them unprotected in his  outdoor yard.            In August  1988, Sacramona's  attorney obtained the  tire and            wheel.                 Around February 1, 1989, the attorney gave both the tire            and wheel to an expert consulting engineer, Dyer Carroll, who            examined  them and  then sent  them to  Sacramona's liability            expert,  Dr.  Alan Milner,  on September  30,  1991.   In the            meantime,  on May 3,  1991, Sacramona filed  his complaint in            this  case,   one  day  before  the   three-year  statute  of            limitations expired, asserting tort and warranty claims.  His            is  theory is this:   that the automotive  industry knew that            there was a risk  of harm from mismatching tires  and wheels,            and  that the wheel, tire, or both could have been designed--            over and above the  warnings on the tire--to reduce  the risk            that such a dangerous mismatch would occur.                                         -3-                                         -3-                 By the time of  the lawsuit, the Mobil station  had been            sold  and  many of  its  contents  were  gone, including  the            original  leaking tire,  the  mounting machine,  and  various            safety  or equipment  manuals  and documents.   In  addition,            during  his  deposition,  Milner  said  that  the  wheel  had            undergone a  "somewhat destructive"  examination and  that he            understood from Sacramona's lawyer that Carroll had conducted            an extensive cleaning of  the wheel.  It was  thus impossible            to check for markings on  the inside of the wheel that  might            have  revealed whether  (as  Sacramona claimed)  the original            leaking  tire had been a  16-inch tire mismatched  with a 16-            1/2-inch wheel.                 After   discovery,  the  defendants  moved  for  summary            judgment  on  several  grounds,  asserting  inter  alia  that                                                        ___________            critical  evidence had been destroyed in  the cleaning of the            wheel.   In opposition, Sacramona attached  a brief affidavit            from Carroll  denying that  he had destroyed  such evidence.1            The district court ruled that evidence of the wheel should be            excluded,  finding  that   defendants'  "experts  have   been            deprived  of the  opportunity to  examine relevant,  possibly            dispositive evidence  before its  material alteration."   The                                            ____________________                 1Carroll's  own  deposition  testimony,  apparently  not            called  to  the district  court's  attention  at this  stage,            revealed  that Carroll's son had assisted in the cleaning but            denied that anyone had destroyed evidence.                                         -4-                                         -4-            trial judge treated  the wheel's exclusion  as fatal to  both            the negligence and warranty claims.                 The district court also  granted summary judgment to the            defendants on Sacramona's  warranty claims on  an independent            ground.  Sacramona  had not notified Firestone  of his claims            until  three years after the  accident; and Budd  did not get            notice for three more months (service of the complaint having            been delayed).  The district court ruled  that the defendants            had been prejudiced by  this delay because evidence had  been            lost, and that the  warranty claims were therefore  barred by            Mass. Gen. Laws ch. 106,   2-318.                 Sacramona  has now  appealed, challenging  both rulings:            the dismissal of both  claims because of damage to  the wheel            and  the  dismissal of  the  warranty  claim for  prejudicial            delay.   We address each asserted error in turn, applying the            standard  of  review fitting  the  specific  issue.   Broadly            speaking, propositions of law  are examined de novo, findings                                                        _______            of fact are reviewed under the clear error standard, and most            remaining issues  (e.g., applying  multiple factors to  known                               ____            facts)  are tested for "abuse of discretion."   See generally                                                            _____________            United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986).            _____________    ______                 1.   Under  settled  authority, the  district court  has            inherent power  to exclude evidence that  has been improperly            altered  or damaged by a party where necessary to prevent the            non-offending  side from suffering unfair prejudice.  Unigard                                                                  _______                                         -5-                                         -5-            Sec.  Ins. Co. v. Lakewood Eng'g  & Mfg. Corp., 982 F.2d 363,            ______________    ____________________________            368 (9th  Cir. 1992);  Headley v. Chrysler  Motor Corp.,  141                                   _______    _____________________            F.R.D.  362, 365 & n.13 (D. Mass. 1991).  Although deterrence            may play a role, the primary aim is remedial, at least absent            willful  destruction.   This  power is  a  companion to,  but            somewhat different in effect  from, the doctrine that permits            an adverse inference from one side's destruction of evidence.            22  C. Wright &  K. Graham,  Federal Practice  and Procedure:                                         ________________________________            Evidence   5178, at 153-59 (1978).            ________                 Sacramona's first argument against the exclusion of  the            wheel on grounds  of prejudicial damage is that  the district            court "did not weigh the evidence in the light most favorable            to the  non-moving plaintiff" and therefore the  issue had to            be  submitted to  the jury.   Sacramona  says that  a factual            dispute  exists  as  to  whether any  such  damage  occurred,            "particularly in  light of the sworn  deposition testimony of            Dyer  E. Carroll, . . .  who stated that he never scraped any            evidence  from the  wheel  or cleaned  it  with any  abrasive            material."                 The  request for a jury rests on a misunderstanding.  It            is  familiar  law  that   the  district  judge  decides  most            preliminary  factual  issues that  arise  in  determining the            admissibility of evidence.   Fed. R. Evid. 104(a).   The main            exception  is that  under  Fed. R.  Evid.  104(b), issues  of            conditional relevance  are normally  submitted  to the  jury.                                         -6-                                         -6-            Sacramona  invokes the  latter rule,  arguing that  the issue            whether  the  wheel   had  been  damaged  was  an   issue  of            conditional relevance that should  have been submitted to the            jury.                     The  district  court  said  that  the  wheel  was  being            excluded,  in the alternative, both as  a sanction for damage            to it and because the damage made the wheel irrelevant.   But            in fact  the  alleged damage  to  the wheel's  inner  surface            merely prevented  one possible use of the wheel--to show that            the original  tire was or was  not 16 inches.   The wheel, or            testimony about  it, remained  relevant to prove  whether the            wheel  itself  was  16-1/2  inches, which  was  one  critical            premise of Sacramona's mismatch theory.  Thus, the only basis            for exclusion of  the wheel was prejudicial  damage, an issue            that Rule 104(a) reserves to the trial judge.                 There  is  more  force  to Sacramona's  claim  that  the            district  court may have  erred in deciding  that Carroll had            cleaned  the wheel.    In moving  for  summary judgment,  the            defendants relied upon several different admissions by Milner            in  his deposition,  adding up  to the  following:   that the            inside  of   the  wheel   had  been  cleaned,   removing  the            possibility of recovering  useful evidence; that  Sacramona's            counsel had identified Carroll as the source of the cleaning;            and that Milner had sought to obtain photographs of the wheel            prior to cleaning but none had been taken by Carroll.                                         -7-                                         -7-                  In  opposition,  Sacramona   countered  with  a   brief            affidavit  of Carroll that he had not cleaned any substantial            portion of the inside of the wheel.  Sacramona argued on this            basis (mistakenly) that the issue was one for the jury.   But            in any event the affidavit was not much of an answer:  Milner            said  that  the inside  of the  wheel  had been  cleaned; and            whether  or not Carroll had done it, the wheel had admittedly            been in the custody  of the plaintiff's counsel or one of his            experts since it was recovered from the customer's backyard.                 It  is thus  not entirely  surprising that  the district            court  ruled  that  the  plaintiff was  responsible  for  the            damage.  At this  point, Sacramona offered new evidence:   on            his motion for reconsideration, a new affidavit was filed  by            Milner, saying  that he  had been  misunderstood and  had not            testified  that the  inside  of the  wheel had  been cleaned.            Sacramona's counsel also filed an affidavit, which generously            could be read to assert that his law firm had given the wheel            to Carroll and retrieved it unaltered.                 But Milner's affidavit did not squarely dispute that the            wheel  had been cleaned; and in denying that Carroll had done            the cleaning, the Milner  affidavit squarely contradicted his            own prior  deposition without explanation.   As for counsel's            affidavit,  it made  no effort  to deny  or explain  Milner's            deposition  testimony  that  counsel  had  told  Milner  that                                         _______            Carroll  had cleaned  the wheel.   Taking  the matter  on the                                         -8-                                         -8-            deposition testimony  and affidavits, we are  not prepared to            rule that the district court's finding of damage by plaintiff            was clear error.                 In  our  view, it  would have  been  sounder to  hold an            evidentiary hearing on the issue of damage and responsibility            for it, at least when on reconsideration it became clear that            the issue was murky.  If at this stage Sacramona had squarely            requested such a hearing, it might well have been an abuse of            discretion to deny it.  See General Contracting & Trading Co.                                    ___ _________________________________            v. Interpole, Inc., 899  F.2d 109, 115 (1st Cir.  1990).  But               _______________            there is no  single mode of resolving factual  disputes under            Rule  104(a),  and  we  will  not  ordinarily  reverse  on  a            procedural objection  never made.  Aoude v.  Mobil Oil Corp.,                                               _____     _______________            892 F.2d 1115, 1120 (1st Cir. 1989).                 Sacramona's  next  argument   is  that   if  there   was            destruction, it was  not done  in bad faith.   Certainly  bad            faith  is a  proper and  important consideration  in deciding            whether  and  how  to   sanction  conduct  resulting  in  the            destruction of evidence.  But bad faith is not essential.  If            such  evidence is  mishandled through  carelessness, and  the            other side is prejudiced, we think that the district court is            entitled  to consider imposing sanctions, including exclusion            of the evidence.  See Nation-Wide Check Corp., Inc. v. Forest                              ___ _____________________________    ______            Hills  Distrib., Inc.,  692  F.2d 214,  219 (1st  Cir. 1982);            _____________________                                         -9-                                         -9-            Unigard, 982  F.2d at 368  n.2; Headley, 141 F.R.D.  at 365 &            _______                         _______            nn. 13-14.                 Less need  be said about Sacramona's  further claim that            any  evidence lost from damage to the wheel was evidence that            could only have favored the plaintiff.  Yes, if the wheel had            been  undamaged, it  might have  helped Sacramona  by showing            marks  indicating that the original  leaking tire had been 16            inches.  But the absence of such marks, had the tire not been            cleaned, would  have helped the defendants  by suggesting the            opposite.   Plainly, this is not  a case in which  we can say            that the lost evidence could only have helped Sacramona.                 2.  Sacramona's final argument addressed to the sanction            presents a quite  different and more  troubling concern.   In            Sacramona's  petition for  reconsideration, he  argued (among            many other  points) that a proportionate  sanction for damage            to the wheel would merely prevent Sacramona from arguing that            the original tire was  16 inches.  He also asserted  that his            design defect  claim remained viable, even if no 16-inch tire            had been on the  wheel when it was  brought into the  service            station.                   The defendants' response in  the district court, renewed            on  appeal,  is  that  Sacramona's theory  of  design  defect            depends  on a showing that  the injury in  this case resulted            from  an attempt  to place  a 16-inch  tire on  a 16-1/2-inch            wheel.  And, say  the defendants, the exclusion of  the wheel                                         -10-                                         -10-            (as a sanction for damaging the evidence) also should prevent            any proof  that the wheel was 16-1/2 inches.  In the district            court's own words at the time of its original ruling:                 As  a  result of  this  exclusion  [of the  wheel],                 plaintiff will be unable to produce any evidence or                 testimony that  a 16.5  inch wheel was  involved in                 the  accident or  that it  was defective.   Because                 Sacramona's  claim is  premised  entirely upon  his                 unprovable allegation  that a 16-inch  tire was  in                 dynamic service with a 16.5-inch wheel, there is no                 genuine   issue  of   material   fact  to   support                 Sacramona's    allegations    and,    consequently,                 defendants are entitled to summary judgment.                 The problem with this  reasoning, as we see it,  is that            it gives the defendants a sanction that goes well beyond what            is  necessary to cure the  prejudice.  Accepting the district            court's  finding  of damage  by  plaintiffs  to the  interior            surface  of  the  wheel,  the  defendants  were prejudicially            hindered in rebutting Sacramona's claim that he had removed a            16-inch tire from  the wheel.  A commensurate  sanction might            have included  an order barring Sacramona  from claiming that            the original tire was 16 inches.                 But  neither  the  district  court  nor  the  defendants            explain  why any broader sanction was needed to undo the harm            caused  by  the wheel's  cleaning.   In  fact,  one defendant            apparently  urged  the   more  limited   sanction--precluding            Sacramona's claim that the original tire was 16 inches--as an            alternative to dismissal.   And there is no finding  that the            damage was  willfully intended  to deprive the  defendants of                                         -11-                                         -11-            helpful evidence, arguably a  basis for a sanction  that does            more than undo the harm.                 Nevertheless, a narrowing of the sanction would not have            saved  the negligence  claim against  the defendants.   Under            Massachusetts law, contributory negligence by the victim is a            bar to any recovery if it represents  more than 50 percent of            the total negligence on both sides.  Mass. Gen. Laws ch. 231,              85.   Whether or not the wheel or tire might have been more            safely  designed,  it  would  be  patent  negligence  by  the            plaintiff to select a  16-inch tire as a  replacement without            some good reason to think that the wheel was also 16 inches.                 Sacramona's only  asserted basis  for selecting the  16-            inch  replacement was  that the leaking  tire taken  from the            wheel was a  16-inch tire, presumably based  on its labeling.            If Sacramona were precluded from making that claim, a finding            of  serious negligence  on Sacramona's  part could  hardly be            avoided.    Indeed,  Sacramona  would  appear  to  be  doubly            negligent:  first in  selecting the 16-inch tire without  any            basis  for doing so and,  second, in his  repeated efforts to            seat and  inflate  the tire  even  when failure  showed  that            something was wrong.  Thus, even if the sanction were limited            as Sacramona suggests, his negligence claim would still fail.            We therefore affirm summary judgment on this claim.                 The   more   limited   sanction,  however,   would   not            necessarily   preclude  the  warranty  claim.    Contributory                                         -12-                                         -12-            negligence is not  an automatic defense  to a warranty  claim            under Massachusetts  law.   Colter v. Barber-Greene  Co., 525                                        ______    __________________            N.E.2d  1305, 1313-14 (Mass. 1988).  This, in turn, brings us            to the district court's alternative ground for dismissing the            warranty claim.                 3.    Neither  side   disputes  that  Massachusetts  law            embodies a notice  requirement for warranty  claims.  As  the            rule has  been formulated,  a plaintiff must  give reasonably            prompt  notice  of  his   warranty  claim  to  the  potential            defendant; if he fails to do so, and the defendant is thereby            prejudiced,  the  warranty claim  is  barred  even  if it  is            brought within  the statute of limitations.   Although merely            implied by a Massachusetts statute, Mass. Gen. Laws ch.  106,              2-318,  case law  has fleshed  out the  notice requirement.            Castro v. Stanley Works,  864 F.2d 961, 963 (1st  Cir. 1989);            ______    _____________            Cameo  Curtains, Inc. v. Philip  Carey Corp., 416 N.E.2d 995,            _____________________    ___________________            998 (Mass. App. Ct. 1981).                 Whether notice  is unreasonably delayed can  be a thorny            issue but, in this case, undue delay is obvious and Sacramona            does  not  even  argue to  the  contrary.    And assuming  an            unreasonable  delay  in  notice,  the  prejudice  showing  is            relatively easy:   it is enough that the delay  may well have            deprived  the defense  of  useful evidence.    No showing  is            required that lost evidence would inevitably have altered the                                         -13-                                         -13-            outcome.   Castro, 864 F.2d  at 964.   In  short, the  notice                       ______            requirement has real teeth.                 The  reason  for  this  rule in  Massachusetts  is  that            warranty  liability  combines features  that  place potential            defendants  at  serious  risk:   strict  liability,  lack  of            privity, and a statute  of limitations that may run  not from            the sale but from the injury.  Cameo Curtains, 416 N.E.2d  at                                           ______________            997.   As a  counterweight, the requirement  of prompt notice            allows the  defendant to  gather evidence in  timely fashion;            without such notice, a defendant could easily be surprised by            a lawsuit many years after selling its products.  Cf. Castro,                                                              ___ ______            864 F.2d at 963.                 In the present case, notice was plainly delayed; and the            district court  found that  the requisite prejudice  had been            shown by the defendants.  On appeal, Sacramona  contests this            latter  finding   on  two  related  grounds:     first,  that            prejudice,  in this context, is  an issue for  the jury under            Massachusetts law;  and, second,  that the district  court in            finding  prejudice  resolved   disputed  issues  on   summary            judgment without giving the  benefit of doubts and inferences            to the non-moving party.                 Massachusetts does  treat the  defense as a  jury issue,            Henrick v.  Coats Co.,  Inc., 458  N.E.2d 773,  774-75 (Mass.            _______     ________________            App.  Ct. 1984),  and--regardless  of whether  this  practice                                         -14-                                         -14-            would be binding on a federal court2--we ourselves treat as a            jury  issue  fact  questions   presented  by  a  statutes  of            limitation defense, Villarini-Garcia v. Hospital Del Maestro,                                ________________    _____________________            Inc., 8 F.3d 81, 84 (1st Cir. 1993), which offers  an analogy            ____            to the notice requirement.   But the question remains whether            a reasonable  jury would still  have been  compelled to  find            prejudice here.                 We review such determinations de novo, assuming that the                                               _______            jury would  credit the non-movant's version of events.  E.g.,                                                                    ____            Continental Ins. Co. v.  Arkwright Mutual Ins. Co.,  102 F.3d            ____________________     _________________________            30, 33 n.4 (1st Cir. 1996).  Yet, even if the jury found that            Carroll had not  caused prejudicial damage to  the wheel, the            loss  of the remaining evidence would be beyond dispute:  the            original  leaking tire,  the other  wheels and  tires on  the            customer's van,  and the  equipment in the  garage, including            the  tire changer, the pressure gauge, and the manuals.  This            material  might have  been  salvaged if  Sacramona had  given            prompt notice to the  defendants after the accident; instead,            he waited three years.                 The original tire itself,  without more, could have been            very helpful evidence.  If it had proved to be 16-1/2 inches,                                            ____________________                 2The extent to which state jury practice binds a federal            court in a diversity case  involves consideration of the Erie                                                                     ____            doctrine,  the  Rules  of   Decision  Act,  and  the  Seventh            Amendment.   See  generally  Byrd v.  Blue Ridge  Rural Elec.                         ______________  ____     _______________________            Coop., 356 U.S.  525 (1958); Herron v. Southern  Pacific Co.,            _____                        ______    _____________________            283 U.S. 91 (1931).  We need not pursue the subject here.                                         -15-                                         -15-            this  might have  persuaded the  jury that  the cause  of the                                                            _____            accident was  Sacramona's own conduct rather  than any design            defect.   See Colter, 525 N.E.2d  at 1312.  Of  course, since                      ___ ______            contributory  negligence is  not  a defense  to the  warranty            claim, the jury  would have had some  latitude.  But  to show            prejudice based  on a lack  of notice, the  defendants needed            only to prove  that evidence  was lost that  might well  have            helped them, and that they have done.                  In fact,  on  appeal Sacramona  makes relatively  little            effort  to  show  how  a  jury  could  have  failed  to  find            prejudice.    His  factual  appraisal  of  lost  evidence  is            confined to question  whether the wheel was  damaged; for the            rest,  his  brief simply  asserts  that prejudice  is  a jury            issue.  Indeed, it is--but only where a reasonable jury could            decide the issue either  way.  Here, given the  low threshold            for the  showing  and  the admitted  loss  of  evidence,  the            outcome on this issue was inevitable.                 Affirmed.                 _________                                         -16-                                         -16-
