

August 21, 1995
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 94-2164

        UNITED STATES FIDELITY &amp; GUARANTY COMPANY, ET AL.,

                     Plaintiffs, Appellants,

                                v.

               BAKER MATERIAL HANDLING CORPORATION,

                       Defendant, Appellee.

                                                                                              

                           ERRATA SHEET

   The opinion of  this Court, issued August 9, 1995,  is amended as
follows:

   Cover sheet:  "David A. Berry" in place of "David W. Berry"

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                

No. 94-2164

        UNITED STATES FIDELITY &amp; GUARANTY COMPANY, et al.,

                     Plaintiffs, Appellants,

                                v.

               BAKER MATERIAL HANDLING CORPORATION,

                       Defendant, Appellee.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Richard G. Stearns, U.S. District Judge]                                                                 

                                                                                                

                  Selya and Cyr, Circuit Judges,                                                         

           and Schwarzer,* Senior U.S. District Judge.                                                               

                                                                                                

   Michael  J. McCormack,  with whom  Marc LaCasse  and McCormack  &amp;                                                                              
Epstein were on brief for appellants.               
   David W. Barry, with whom William L. Boesch and Sugarman, Rogers,                                                                              
Barshak &amp; Cohen, P.C. were on brief for appellee.                             

                                                                                                

                          August 9, 1995
                                                                                                

                                              

   *Of the Northern District of California, sitting by designation.

          CYR, Circuit Judge.   Plaintiffs United States Fidelity                    CYR, Circuit Judge.                                      

&amp; Guaranty  Company ("USF&amp;G")1 and Jennifer  Chapman, administra-

trix of  the  estate  of  Russell M.  Chapman,  Jr.  ("Chapman"),

challenge district court rulings precluding their introduction of

certain  evidence at trial and denying their motion for new trial

or  relief  from  judgment in  a  wrongful  death  action against

defendant-appellee Baker Material Handling Corporation ("Baker").

We affirm.  

                                I                                          I

                            BACKGROUND                                      BACKGROUND                                                

          On January 5, 1990, Chapman sustained fatal injuries in

a  phenomenon  known as  "rack  underride"  when  he was  crushed

between a  warehouse shelf and the  back of the 1979  Baker Moto-

Truck model XTR forklift ("XTR") which he was operating.  The XTR

was  discontinued later in 1990  and replaced by  the Baker Reach

Truck  forklift ("BRT"), first manufactured in  1987.  Unlike its

predecessor,  the BRT-design  repositioned the  steering controls

and incorporated vertical rear posts to protect the operator. 

          Following Chapman's  death, USF&amp;G and  Jennifer Chapman

("appellants")  brought suit  in  Massachusetts  Superior  Court,

claiming  that 1) Baker had  breached its duty  to warn Chapman's

employer  of the danger of "rack  underride"; and (2) the lack of

vertical  rear posts in the XTR (i) violated the implied warranty

of merchantability  and (ii) rendered the XTR-design unreasonably
                                                  

     1USF&amp;G is  the workers' compensation  insurance carrier  for
Chapman's employer.

                                3

dangerous.  Following the removal of the action to federal court,

see 28 U.S.C.     1332, 1441(a), Baker responded in  the negative             

to interrogatories designed to disclose whether it had  ever been

sued  for damages  arising  out of  a  similar XTR  incident  and

whether  it  had  ever  modified an  XTR  forklift  by installing

vertical  rear posts.    Approximately two  years later,  shortly

before trial, Baker  again responded in  the negative to  similar

supplemental interrogatories. 

          As Baker  now concedes,  its responses  were materially

incorrect.  It  had installed vertical rear posts in two XTRs for

Boston Edison in 1987, and later that year sold Boston Edison two

new XTRs with vertical rear posts.  And, for good measure,  Baker

had been sued  in 1985  based on a  similar XTR "rack  underride"

claim  which  settled in  1989.   See  DeMarzo v.  Baker Material                                                                           

Handling  Corp, No. 477122 (Orange  Cty. Sup. Ct.  filed Dec. 20,                        

1985) ("DeMarzo").                          

          Baker  filed a motion in limine to preclude evidence of                                                   

its  incorporation  of vertical  rear  posts  in the  BRT-design,

asserting lack  of relevance  and  undue prejudice,  see Fed.  R.                                                                  

Evid. 402, 403.   It  contended that incorporating  posts in  the

earlier  XTR-design would have impeded steering,  as well as safe                      

egress by the operator  in the event of a crash  or rollover.  On

the other hand, its repositioning of the steering controls in the

BRT-design had alleviated  the operational impediment and  hazard             

associated with  incorporating posts  in its XTR-design.   Conse-                                                          

quently, urged Baker,  the BRT-design would be irrelevant  to the

                                4

determination whether  the absence of vertical rear  posts in the

XTR-design  created an  unreasonably  dangerous  condition.   The

motion in limine was granted on the eve of trial.                            

          At trial, Baker incorrectly represented in  its opening

statement that the  evidence would  show that the  XTR had  never

been involved in a  "rack underride" accident and that  Baker had

never installed vertical rear  posts in an XTR.   Although appel-

lants had already  learned about the 1985 DeMarzo  XTR litigation                                                           

and Baker's  undisclosed XTR modifications, they  neither alerted

the district  court nor mentioned these matters  in their opening

statement. 

          During trial, appellants elicited from Manfred Baumann,

Baker's vice-president for engineering  and the officer in charge

of litigation,  that  company files  contained no  record of  any

prior "rack  underride" incident  involving the XTR  forklift and

that Baker had  never installed  vertical rear posts  in an  XTR,

though it  was in fact  feasible to do so.   Whereupon appellants

confronted Baumann with depositions  taken in the DeMarzo litiga-                                                                   

tion, and  with Boston Edison records,  indicating that Baumann's

testimony on both points was inaccurate, as Baumann was forced to

concede.2
                                                  

     2According to  Baumann, the DeMarzo litigation  file had not                                                  
been entered on the master-file list until  after Baker responded
to the  initial interrogatories, and the  information relating to
the  XTR modifications  made by  Baker at  the request  of Boston
Edison  had been placed in  the Boston Edison  client sales file,
rather than the XTR file.  He testified that there were more than
100,000 client sales files, and that it was not until he had been
told of the modifications  to the Boston Edison XTRs  that he had
searched  its client sales file.   Further, Baumann admitted that

                                5

          Notwithstanding their denudation  of Baker's  discovery

lapses, appellants elected not to request sanctions or a continu-

ance to pursue further  discovery, choosing instead to capitalize

on  Baker's "cover-up"  in  their closing  argument.   Apparently

unimpressed,  the jury found for  Baker on all  three theories of

liability;  judgment  entered; and  appellants  moved  for a  new

trial, see  Fed. R. Civ. P.  59(a), or for  relief from judgment,                    

id. 60(b)(3), alleging prejudice  from the order precluding their             

BRT-design evidence  and from  Baker's responses  to interrogato-

ries.  

          On  appeal, appellants attack  the district court judg-

ment, asserting  reversible error in the  ruling precluding their

BRT-design evidence.  Their discovery abuse claim forms the basis

for the  appeal  from the  denial of  their postjudgment  motion.

Appellants speculate  that they  were unfairly prejudiced  by the

inaccurate  responses  to interrogatories,  notwithstanding their

decision not to request Rule 37 relief, since it is impossible to

determine what would have been disclosed in full discovery.  

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

A.   Appeal from the Judgment          A.   Appeal from the Judgment                                       

          The  district  court  order precluding  the  BRT-design

evidence is  reviewed for abuse of discretion.   Espeaignnette v.                                                                        

                                                  

Baker's responses to the initial interrogatories had been inaccu-
rate  and that he had  not reexamined the  Baker litigation files
before responding to the supplemental interrogatories. 

                                6

Gene Tierney  Co., Inc.,  43 F.3d 1,  5 (1st  Cir. 1994)  ("'Only                                 

rarely -- and in extraordinarily compelling circumstances -- will

we, from the vista of a cold appellate record, reverse a district

court's on-the-spot judgment concerning the relative  weighing of

probative  value and  unfair effect.'"  Freeman v.  Package Mach.                                                                           

Co., 865 F.2d 1331,  1340 (1st Cir. 1988).   Notwithstanding this             

deferential standard  of review, the Espeaignnette panel reversed                                                            

a  similar ruling, Espeaignnette, 43 F.3d at 8-9, where the issue                                          

was  whether a lawn-edger design,  which made no  provision for a

protective guard over the cutting blade, was unreasonably danger-

ous.   Id.  at 4.   The  defendant-manufacturer conceded  that it                    

would be  feasible to attach  a protective guard,  but maintained

that  normal operation of the edger would  be impeded.  Id. at 6.                                                                     

The district court precluded evidence that a third party had made

a business of attaching  protective guards to the identical  lawn

edger model, even though  the evidence showed that  the modifica-

tion  at issue  was  "both possible  and  practical".   Id.   The                                                                     

Espeaignnette  panel reversed  on the  ground that  the proffered                       

modification evidence was highly probative and entailed no unfair

prejudice  because,  if credited,  it  directly controverted  the

defendant-manufacturer's  claim  that  the proposed  modification

would impede normal edger functioning.  Id. at 6-8.                                                       

          The superficial similarities between  Espeaignnette and                                                                       

the instant case are  outweighed by more fundamental dissimilari-

ties.  First, both cases implicate Rule 403 rather than Rule 407,

though  for different reasons.  Espeaignnette noted that Rule 407                                                       

                                7

has no application  to third-party modifications,  id. at 7;  see                                                                           

also Raymond v. Raymond  Corp., 938 F.2d 1518, 1524-25  (1st Cir.                                        

1991)  (Rule 407 applies only to  subsequent remedial measures by

manufacturer, not by  third parties), whereas  Rule 407 does  not

apply  to the  instant case  because the  BRT-design modification

preceded Chapman's accident.   See id. at 1523-24 (Rule  407 does                                                

not  apply  to design  modifications  made prior  to  accident in

litigation) (upholding  exclusion under  Rule 403).   Second, the

modification  in Espeaignnette  had  been performed  on an  edger                                        

identical to the one  which injured the plaintiff, Espeaignnette,                                                                          

43 F.3d at  6, whereas the modification  in the instant case  was

made to the BRT-design, which was substantially dissimilar to the

XTR which injured Chapman.  See also infra p. 8.                                                      

          The  district court found  that the BRT  was not suffi-

ciently  similar to the XTR,  a finding we  review only for clear

error.  Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14,                                                              

16  (1st Cir.  1994) (findings  of  fact integral  to evidentiary

rulings  are reviewed  for clear  error).   Its finding  is amply

supported.   Appellants' own expert testified  that vertical rear

posts  could not practicably be incorporated in the XTR unless it

underwent  major redesign.  Whereas the  record revealed that the

BRT-design   could  accommodate  vertical  rear  posts  precisely

because  its  steering  controls  had been  repositioned  in  the

operator's  cabin so  that  the posts  would  not interfere  with

steering.  

          The Raymond  case, supra, provides  sturdy support  for                                            

                                8

the  district court ruling.3   It involved  a claim that  a side-

loader  design was  defective for  lack of  vertical rear  posts.

Raymond, 938 F.2d at 1522.  The decedent had been fatally injured                 

by  a beam which penetrated  the sideloader operator's cabin, id.                                                                           

at 1520, and the district court excluded evidence that rear posts

were included in a later design that predated the  accident.  Id.                                                                           

at  1522-23.  We upheld the exclusionary ruling, with the follow-

ing explanation:   "the introduction of  evidence of pre-accident

design modifications not made  effective until after the manufac-

ture of  the allegedly defective product may  reasonably be found

unfairly prejudicial to the defendant  and misleading to the jury

for determining the question whether the product was unreasonably

dangerous at the time of manufacture and sale." Id. at 1524.  The                                                             

Raymond logic is no less apt in this case.                   

          Finally, the evidence excluded  in the instant case was

by no means  the most  probative available on  the ultimate  jury

issue; viz., whether the XTR-design should have included vertical

rear posts.  Whereas the best evidence relating to the safety and

practicality  considerations involved  in Espeaignnette  had been                                                                 

that  a  third party  was making  a  business of  incorporating a

protective  guard on the identical edger,  the best evidence that

the  XTR could accommodate vertical  rear posts was the uncontro-                                    

verted proof    presented to  the jury    that Baker in  fact had

                                                  

     3Although Raymond  involved New  Hampshire law, 938  F.2d at                                
1520, we recently held that its logic applies as well  to "design
defect"  and "failure  to warn"  claims under  Massachusetts law.
Cameron, 43 F.3d at 18.                  

                                9

installed  posts in  the  XTRs  it  modified at  Boston  Edison's

request.   The  evidence that  posts had  been installed  in XTRs

diminished not only the need to establish their  incorporation in

the noncomparable  BRT-design, but any unfair  prejudice from its

exclusion.  Thus, the district court did not abuse its discretion

in concluding that the  required Rule 403 balancing tipped  deci-

sively  in  favor of  preclusion.   Espeaignnette,  43 F.3d  at 6                                                           

(centrality  of  disputed evidence  to  party's  claim is  strong

factor in Rule 403 balancing test) (collecting cases).  

B.   Appeal from the Denial of Postjudgment Relief          B.   Appeal from the Denial of Postjudgment Relief                                                            

            We  review  orders  disallowing  postjudgment  relief

under rules 59  and 60(b)(3)  for abuse of  discretion.   Perdoni                                                                           

Bros., Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 n.5 (1st Cir.                                               

1995) (Rule 59);  Fernandez v.  Leonard, 963 F.2d  459, 468  (1st                                                 

Cir. 1992) (Rule 59  and Rule 60(b)(3)); United States  v. Parcel                                                                           

of  Land &amp;  Res. at 18  Oakwood Street,  958 F.2d 1,  5 (1st Cir.                                                

1992) (Rule 60(b)(3)).   The district court rulings  that Baker's

inaccurate responses to interrogatories neither constituted fraud

nor resulted in substantial interference with the preparation and

presentation of  appellants' case  are reviewed for  clear error.

Anderson  v. Beatrice Foods, Co.,  900 F.2d 388,  392 (1st Cir.),                                          

cert. denied, 498 U.S. 891 (1990).                      

          Appellants  argue that  the district  court abused  its

discretion  by not  affording them  postjudgment relief  based on

Baker's  slipshod  and misleading  responses  to interrogatories,

                                10

which denied them a  fair trial.4   Among the available forms  of

relief  from prejudice  occasioned  by  discovery violations  are

curative measures such as  continuances and stays pending compli-

ance,  orders  tailored  to  effect  issue  preclusion,  contempt

orders, and default  judgments.   See R.W. Int'l  Corp. v.  Welch                                                                           

Foods,  Inc., 937  F.2d  11, 15-20  (1st  Cir. 1991)  (discussing                      

grounds for Rule 37 sanctions); Fed. R. Civ. P. 37(b)(2),(3).  

          Appellants' claim fails, nonetheless,  as they opted to

proceed  rather than  request  relief under  Rule 37,  presumably

because the  information Baker did not disclose  had become known

to appellants  before or  during trial.   Moreover,  though their

gambit proved  unsuccessful, there  was both method     potential

advantage    in their  stratagem and little to lose.  Since there

is even now no concrete  suggestion that further discovery  would

have benefited them, their prospects for obtaining Rule 37 relief

appear all along to have been minimal compared with the potential

jury  impact their  "cover-up" claim  might reasonably  have been

expected to occasion.         Thus,  appellants' decision  to use

their  hole  card in  an abortive  gambit  with the  jury plainly

waived any claim  that their  decision to forego  Rule 37  relief

rendered the  trial unfair.   The appropriate remedy  for parties

                                                  

     4Appellants rely on Anderson v. Cryovac, Inc., 862 F.2d 910,                                                            
923 (1st Cir. 1988),  for their contention that a  district court
may  grant  relief from  judgment and  a  new trial  even  if the
failure to provide requested  discovery was inadvertent.  Follow-
ing  our remand in Cryovac, the district court denied relief from                                    
judgment under Rule 60(b) notwithstanding its finding of deliber-                                                                           
ate discovery abuse.  We nevertheless upheld its ruling.  Beatri-                                                                           
ce Foods Co., 900 F.2d at 391-92.                       

                                11

who uncover  discovery violations is "not to  seek reversal after

an  unfavorable verdict but a request for continuance at the time

the  surprise occurs."  Szeliga v. General Motors Corp., 728 F.2d                                                                 

566, 568 (1st  Cir. 1984); see  United States v.  Diaz-Villafane,                                                                          

874 F.2d 43,  47 (1st  Cir.) (criminal case),  cert. denied,  493                                                                     

U.S. 862 (1989).  Here, of  course, there appears to have been no

genuine surprise.  Nor can appellants  plausibly suggest that the

district  court abused  its discretion  by declining  their post-

judgment  motion for  relief from  the unwelcome  consequences of

their calculated decision.  Ojeda-Toro v. Rivera-Mendez, 853 F.2d                                                                 

25, 29  (1st Cir. 1988)  ("[A] party  may not prevail  on a  Rule

60(b)(3) motion . . . where [it] has access to disputed  informa-

tion or has  knowledge of inaccuracies in an opponent's represen-

tations  at the  time  of the  alleged misconduct.")  (collecting

cases).  

                               III                                         III

                            CONCLUSION                                      CONCLUSION                                                

          As the district court did  not abuse its discretion  in

precluding  the dissimilar  BRT-design  evidence  nor in  denying

postjudgment relief under Rules 59 and  60(b)(3), its judgment is

affirmed.                   

                                12
