
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2305                               WILLIAM CAMERON, ET AL.,                               Plaintiffs, Appellants,                                          v.                         OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Albert E. Grady with  whom Office of Albert E. Grady was on  brief            _______________            _________________________        for appellants.            Ronald  M. Davids with  whom Michelle  I. Schaffer  and Campbell &            _________________            _____________________      __________        Associates, P.C. were on brief for appellee.        ________________                                 ____________________                                  December 30, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.    In March  of  1990,  William                          ______________            Cameron,  whose left leg had been amputated below the knee in            1965, was fitted with  a prosthetic leg.  The  prosthesis was            assembled   by  Mr.  Cameron's  prosthetist  from  components            originally  sold by  various suppliers,  including  Otto Bock            Orthopedic Industry,  Inc. ("Otto Bock").   Specifically, the            artificial  limb featured  an Otto  Bock pylon,  which  is an            aluminum tube that substitutes for the missing portion of the            leg, and an Otto Bock  clamp, which attaches the pylon to  an            artificial foot manufactured and sold by another company.                 On May 28,  1991, Mr.  Cameron fell when  the Otto  Bock            pylon in his artificial  leg broke into two pieces.   Cameron            alleged  that he  suffered a  fractured pelvis  and emotional            damage  as  a  result  of  the  fall.    Based  on  diversity            jurisdiction, Mr.  Cameron sued  Otto Bock in  federal court,            charging negligence and  breach of warranty.   His wife,  Kay            Cameron, claimed loss of consortium.                 The  case  was  tried by  a  jury in  1993.    Each side            attributed the failure of  the leg to a different cause.  The            Camerons  claimed   that  the   pylon  and  clamp   had  been            negligently  and defectively  designed.   Otto Bock's  expert            testified that  the prosthesis  broke because the  screw that            fastened the  pylon to the  clamp had been  "overtorqued," or            screwed too  tightly, by  the prosthetist, despite  a warning            against overtightening by  Otto Bock.  The Camerons said that                                         -2-                                         -2-            the instructions should  have been more  detailed.  The  jury            found in favor of Otto Bock and the Camerons appeal.                 In this court, the Camerons' claims of error concern two            rulings by  the district court excluding  evidence offered by            them.   The first ruling excluded  several so-called "product            failure reports" sent from prosthetists to Otto Bock.   These            excluded  reports, all  dated after  Mr. Cameron's  accident,            detail  the alleged failures  of other prosthetic  legs.  The            second  group  of  excluded  documents  consisted   of  "Dear            Customer" letters,  sent by  Otto Bock to  prosthetists after            the  Cameron   accident,   that  provided   specific   torque            measurements to be used when screwing the pylon to the clamp.                 1.   The product  failure reports  in question  are one-            page  standardized forms that a prosthetist  must fill out in            order to obtain  a refund or credit for an Otto Bock product.            The forms were designed  by Otto Bock, but were  completed by            prosthetists   who,  in   turn,   typically  obtained   their            information from conversations with their patients.  The form            required information about the nature of the problem, the age            of the prosthesis, the demands  placed on the prosthesis, and            the patient's  activity when the accident  occurred; the form            did not inquire directly about the cause of the problem.                 The  trial  judge  allowed  the  Camerons  to  introduce            product failure reports that  were dated before Mr. Cameron's                                                     ______                                         -3-                                         -3-            accident, solely to  show notice  on the part  of Otto  Bock.            The trial  judge excluded  several reports that  were created            after Mr.  Cameron's accident and  it is this  exclusion that            the Camerons claim to be error.  There is some  doubt whether            the Camerons adequately raised and preserved this claim--Otto            Bock says they did not.  However,  the district court did not            rest  its  exclusion on  this ground  and,  as we  uphold the            exclusion on  the  merits, we  need  not decide  whether  the            Camerons waived the issue.                 The  district  court  held  that the  exclusion  of  the            reports was proper because they were irrelevant, because they            did  not fall within any  exception to the  hearsay rule, and            because  they  were  more  prejudicial than  probative.    We            commonly say  that we review all  three determinations solely            for   an  abuse  of  discretion.1     This  may   be  a  mild            overstatement since evidentiary rulings can sometimes contain            buried rulings of law reviewable  de novo, or basic  findings                                              _______            of fact subject to  clear error review.   In this case,  fine            distinctions about  the standard  of review would  not affect            the outcome.                   Unlike the pre-accident reports,  which were admitted to            show  notice  on the  part  of Otto  Bock,  the post-accident                                            ____________________                 1United States  v. Brandon, 17  F.3d 409, 444  (1st Cir.                  _____________     _______            1994) (relevancy determinations); Elgabri v. Lekas,  964 F.2d                                              _______    _____            1255,  1261 (1st  Cir.  1992) (hearsay  and business  records            exception);  Raymond v.  Raymond Corp.,  938 F.2d  1518, 1523                         _______     _____________            (1st Cir. 1991) (more prejudicial than probative).                                         -4-                                         -4-            reports  describe  incidents   that  took  place  after   Mr.            Cameron's  accident,  and thus  have  no  bearing on  notice.            Neither are  they relevant  as evidence  of a  design defect.            The reports of other incidents would be probative evidence of            the  existence  of a  design  defect  only if  the  incidents            occurred under  circumstances substantially similar  to those            surrounding Mr. Cameron's accident.   Vincent v. Louis Marx &                                                  _______    ____________            Co., Inc., 874 F.2d  36, 43 (1st Cir. 1989); McKinnon v. Skil            _________                                    ________    ____            Corp.,  638 F.2d 270, 277 (1st Cir. 1981).  The circumstances            _____            of the post-accident incidents are entirely unknown.                 We  also think that there  is an adequate  basis for the            district  court's  alternative  conclusion that  the  reports            contained inadmissible hearsay.   This did  not matter as  to            pre-accident reports  offered solely  to show notice;  but in            order to show defect,  the truth of the reports  is critical.            Yet it appears  that the information contained in the reports            was provided  to Otto Bock from  independent prosthetists who            themselves derived  some or all of the information from their            own patients.                 While the reports may be part of the business records of            Otto  Bock  in  a  colloquial sense,  that  does  not  render            admissible information contained in the  records whose source            is a non-party to the business.  Under Fed.  R. Evid. 803(6),            the report must be made by  a person acting "in the course of            a regularly conducted  business activity."  It is quite clear                                         -5-                                         -5-            that the prosthetists' patients  are not part of  Otto Bock's            business.   The case is  akin to Petrocelli  v. Gallison, 679                                             __________     ________            F.2d 286, 290 (1st Cir. 1982),  where we held that a hospital            patient who related  his medical  history "is not  part of  a            `business'  routine in  which  he is  individually a  regular            participant."                 We thus have  no reason to consider whether the business            records  exception  might  apply  if   the  information  were            generated solely by the  prosthetists in the course of  their            own businesses.   See Fed. R.  Evid. 805 (hearsay  exceptions                              ___            can  be  layered).   Conversely,  we  need  not  pass on  the            suggestion that the adverse interests of the prosthetists--in            obtaining  refunds and  warding off  lawsuits against  them--            might  permit   exclusion  of   any  business   records  they            themselves generated as to  the cause of a failure  under the            exclusion for business records whose source "indicate[s] lack            of  trustworthiness."  Fed. R.  Evid. 803(6).   See Palmer v.                                                            ___ ______            Hoffman, 318 U.S. 109 (1943).            _______                 Since both the relevance and hearsay objections are well            founded,  we need not consider in detail the district court's            further  ruling that  prejudice would  substantially outweigh            relevance.   Fed. R. Evid. 403.  We do  note that the lack of            proof of similarity of circumstances reinforces  any decision            to exclude under  Rule 403.   Additionally, in  this kind  of            balancing of prejudice and  relevance, abuse of discretion is                                         -6-                                         -6-            undoubtedly  the  test on  review,  and  Rule 403  judgments,            calling on the district court's "feel" for the situation, are            quite unlikely to be disturbed.                    2.   The Camerons'  other  challenge  is  to  the  trial            judge's  exclusion  of  letters  sent by  Otto  Bock  to  its            prosthetist customers after Mr.  Cameron's fall.  These "Dear            Customer" letters specified, inter  alia, the specific torque                                         ___________            levels that should be  observed in screwing the pylon  to the            clamp in prosthetic limbs like Mr. Cameron's.  Arguably these            letters, if sent earlier,  would have prevented Mr. Cameron's            accident.    The  Camerons  contend  that  such  letters  are            evidence   that  Otto   Bock  breached   its   warranties  of            merchantability and fitness for a particular purpose.                 The trial judge excluded the  letters on the ground that            the furnishing  of precise  torque measurements was  a safety            measure undertaken after the accident, and  thus inadmissible            under Federal Rule of Evidence 407, which 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  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.                 The Camerons argue first  that the Dear Customer letters                                         -7-                                         -7-            should  have  been  admitted   to  show  the  feasibility  of                                                          ___________            providing  the torque  measurements earlier  and to  show the            control  Otto Bock  exerted  over its  prosthetist customers.            _______            These exceptions  apply, however,  only  "if" feasibility  or            control are  "controverted."   The feasibility of  giving the            torque  measurements was  certainly  not  controverted.   The            defense offered  to stipulate to feasibility,  cf. Raymond v.                                                           ___ _______            Raymond  Corp., 938 F.2d 1518  (1st Cir. 1991);  and when the            _____________            Camerons rejected the offer, apparently for tactical reasons,            the  district  court instructed  the  jury  that the  further            information could feasibly have been distributed.                 "Control" is also a non-issue.  Otto Bock never disputed            that it provided advice to the prosthetists who assembled its            products.   Nor  did  it deny  that  providing more  detailed            measurements  might  have avoided  the accident;  indeed, its            position  was that  the screw  was overtightened  and  it had            never  provided specific numbers  prior to the  accident.  If            the Camerons justify the introduction of the letters in order            to show causation, as their brief implies, then we think that            the "if controverted" condition is not satisfied.                 The  Camerons do  not  appear to  be  claiming that  the            prosthetists were effectively employees  of Otto Bock so that            it  might  be  vicariously   liable  for  the  negligence  of            Cameron's own  prosthetist on a master-servant  theory.  Even            if the Camerons had advanced such  a claim, the raw fact that                                         -8-                                         -8-            Otto  Bock provided directions for the use of its product was            undisputed  and that is the  most that the  Camerons would be            entitled to derive from the letters.   There may also be some            doubt whether  "control" in the master-servant  sense is what            the drafters of Rule 407 had in mind, but we need not explore            this interesting issue.                     The Camerons  also argue that the  Dear Customer letters            should  have been admitted  as direct  evidence of  breach of            warranty--i.e., as  evidence  that the  Otto Bock  components                      ____            were  defective--because,  under   Massachusetts  law,   such            evidence might be admissible in a state trial.  This circuit,            however, has  long held that  the Federal Rules  of Evidence,            and specifically  Rule 407,  apply in  diversity proceedings,            because they "address procedural  matters, [were] duly passed            by Congress, [and]  shall be presumed constitutionally  valid            unless they  cannot rationally  be characterized as  rules of            procedure."   McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st                          _______    ____________            Cir. 1985). Compare Fed.  R. Evid. 501 (providing that  state                       ________            privilege law governs in diversity cases).                 Finally,  the  Camerons argue  that,  even  if Rule  407            applies,  by its  terms it  prohibits evidence  of subsequent            remedial  measures  only  "to  prove negligence  or  culpable            conduct in  connection with the  event."  The  Camerons argue            that breach of warranty, according to Massachusetts law, does            not constitute "negligence or culpable conduct."  We recently                                         -9-                                         -9-            rejected this very argument in Raymond  v. Raymond Corp., 938                                           _______     _____________            F.2d  1518, 1522  (1st Cir. 1991).   The Camerons  urge us to            reconsider Raymond, but they offer us no grounds for doing so                       _______            that were not before this court in that case.                 Affirmed.                 _________                                         -10-                                         -10-
