           United States Court of Appeals
                       For the First Circuit


No. 01-1554

     SHELLEY A. JODOIN, INDIVIDUALLY AND AS NATURAL PARENT,
    NEXT FRIEND AND GUARDIAN OF TIMOTHY D. DORSEY, A MINOR,
                     AND LAWRENCE H. JODOIN,

                      Plaintiffs, Appellants,

                                  v.

                     TOYOTA MOTOR CORPORATION,
                 TOYOTA MOTOR SALES U.S.A., INC.,

                      Defendants, Appellees.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ronald R. Lagueux, U.S. District Judge]



                               Before

                        Boudin, Chief Judge,
                     Torruella, Circuit Judge,
                  and Cyr, Senior Circuit Judge.



     John S. Foley, with whom Mark B. Decof, Howard B. Klein, and Decof
& Decof were on brief, for appellants.
     Gerald C. DeMaria, with whom Higgins, Cavanagh & Cooney, Richard
W. Shapiro, Law Offices of Richard W. Shapiro P.L.C., Richard A.
Derevan and Snell & Wilmer L.L.P. were on brief, for appellees.
April 1, 2002




     -2-
          TORRUELLA, Circuit Judge. Shelley Jodoin was injured in a

car accident and, with her husband and son, sued Toyota Motor

Corporation and Toyota Motor Sales U.S.A., Inc. ("Toyota") alleging a

design defect in her vehicle.      During trial, the district court

excluded all evidence relating to testing done by plaintiffs' expert.

After this ruling, plaintiffs conceded that they would be unable to

prove defect, an element of their prima facie case, and the district

court granted judgment as a matter of law in favor of Toyota.       On

appeal, plaintiffs challenge the district court's exclusion of the

testing evidence. We vacate the judgment in favor of Toyota and remand

for a new trial.

                                  I.

          On October 6, 1995, plaintiff-appellant Shelley Jodoin was

hit from behind as she drove her 1988 Toyota 4x4 pick-up truck. The

impact pushed her vehicle into a counter-clockwise turn. She attempted

to correct the course of her truck, but as she turned to the right, her

truck flipped, rolling over several times.        As a result of the

accident, Mrs. Jodoin is permanently paralyzed.

          Mrs. Jodoin, her husband, and her son brought suit against

Toyota alleging a design defect in Mrs. Jodoin's truck which made it

prone to rollover. At trial, plaintiffs relied on the testimony of

their primary liability expert, Robert Loyd Anderson, to prove this

defect.   They had employed Mr. Anderson to perform an accident


                                 -3-
reconstruction and test another 1988 Toyota 4x4 truck to determine its

rollover propensity. Mr. Anderson was allowed to testify about his

accident reconstruction conclusions.      However, when plaintiffs

attempted to introduce Mr. Anderson's testimony regarding the testing

of the exemplar vehicle, the court refused to allow the testimony for

lack of a proper foundation.     The court reasoned as follows:

          [Y]ou’ve got a big problem here that you can’t
          remedy . . . we’re not interested in the date of
          manufacture what these two vehicles were like.
          What we’re interested in is what they were like
          at the time of the . . . accident, and whether
          the exemplar was the same. And we don’t know
          what condition the exemplar was or what it went
          through, what its history was. For example,
          whether it had been in an accident previously,
          which weakened some structures and other factors.
          And this witness can’t testify to that. He knows
          nothing about the history of the vehicle. So
          you’re wasting your time.       All of this is
          irrelevant until you establish that the exemplar
          was virtually identical in all respects with the
          subject vehicle. And only then can you get into
          the question of what tests were run. . . . You
          can’t get there from here, I can tell you now,
          not with this witness.

The court suggested that plaintiffs could lay a proper foundation by

introducing testimony from the people who purchased the car for Mr.

Anderson or the people from whom the exemplar vehicle was purchased.

Plaintiffs introduced no such testimony. Therefore, Mr. Anderson was

not allowed to testify as to how the design of the exemplar vehicle

compared with the design of Mrs. Jodoin's vehicle.




                                 -4-
          Plaintiffs   did   try   to    lay   a   foundation   based   on

Mr. Anderson's testimony. First, Mr. Anderson claimed to have checked

the vehicle identification tags to verify that the load ratings and

tires were the same.    Furthermore, the record reflects that the

exemplar and Mrs. Jodoin’s vehicle had similar vehicle identification

numbers ("VIN"). Second, he testified to performing a structural

examination of the steering components, suspension components, tires,

and springs, including crawling under the truck to inspect the

undercarriage. Third, he said he had looked at the instrumentation and

modifications made for the purposes of testing, which he documented.

This examination included "[e]verything [Mr. Anderson] thought . . .

would be related to the vehicle dynamics and the issues that [he] was

evaluating."    He testified that he detected no evidence of any

modifications or any parts that were not Toyota's original equipment.

However, Mr. Anderson had no personal knowledge of where the exemplar

vehicle came from or how it was obtained, and he did not testify to

that history.

          When plaintiffs attempted to question Mr. Anderson regarding

the relationship between the design characteristics of Mrs. Jodoin’s

vehicle and its rollover stability, the court upheld an objection to

the testimony, stating, "obviously [Mr. Anderson’s testimony is] based

on testing; and the results of the testing is not admissible at this

point, [sic] it never will be."      When plaintiffs had previously


                                   -5-
attempted to introduce testimony on the general relationship between a

vehicle's design features and its propensity to rollover, the court

excluded that testimony as irrelevant. Therefore, plaintiffs were

unable to introduce any testimony regarding design and rollover

propensity.

          The next day, outside the presence of the jury, plaintiffs

addressed the court and asked it to reconsider its ruling. The court

again pointed to the lack of information on the exemplar vehicle's

history and repeated that it would exclude any evidence relating to

testing of that vehicle without such a history. The court said that

plaintiffs needed to "show . . . where [the exemplar vehicle] was

purchased [and] have some evidence as to whether that’s a legitimate

VIN number on [the exemplar vehicle], and somebody who has the

expertise to be able to tell us what the VIN number means . . . [a]nd

whether there’s been any changes in the vehicle since its manufacture."

          In response, plaintiffs made an offer of proof regarding what

Mr. Anderson would have testified to regarding the similarities between

the exemplar vehicle and Mrs. Jodoin's vehicle. This included, mainly,

Mr. Anderson’s conclusion, based on the VINs of the two vehicles, that

the vehicles were "virtually identical."       It also contained his

conclusion that the exemplar vehicle was in good condition and

"reasonably similar to the kind of condition" he would expect for a




                                 -6-
vehicle that had not been involved in any accidents, damaged or

modified.

            Toyota opposed the offer of proof and contended that

plaintiffs could never clear the substantial similarity hurdle in

regard to the exemplar vehicle. In support, Toyota cited information

that the exemplar vehicle had been sent to a dealership for extensive

repairs after it had been acquired for Mr. Anderson's tests; yet Mr.

Anderson had no information on those repairs.

            During the offer of proof, when plaintiffs attempted to

introduce evidence relating to the testing, the court stopped them,

maintaining the need for a Daubert v. Merrell Dow Pharmaceutical, Inc.,

509 U.S. 579 (1993), hearing before the testing or test results could

be entered on the record. Plaintiffs declined to hold the hearing

because the court iterated that the test results could not be admitted

for lack of an adequate foundation, regardless of the outcome of the

Daubert hearing. Therefore, the record contains no information on Mr.

Anderson's findings.

            After the district court reinforced its ruling relating to

the inadmissibility of Mr. Anderson's testimony regarding the exemplar

vehicle, plaintiffs acknowledged they would be unable to prove defect,

an element of their prima facie case. The court then asked plaintiffs

if they were going to dismiss the case. Plaintiffs responded that they

would not do so voluntarily. Then, the court asked, "Are you going to


                                  -7-
rest your case so I can grant a motion for a directed verdict?" After

taking a short recess, plaintiffs accepted the court’s suggestion and

rested their case. Toyota moved for judgment as a matter of law based

on plaintiffs’ failure to produce evidence of defect, and the court

granted the motion.    This appeal followed.

                                 II.

          On appeal, plaintiffs contend that the district court abused

its discretion by excluding all testimony regarding the testing of the

exemplar vehicle. However, before we can reach that question, we must

resolve a threshold matter: whether plaintiffs essentially abandoned

their case when they rested before proving any of the elements of their

claim.   Because the district court suggested, incorrectly, that

plaintiffs needed to rest before the court could consider a Rule 50

motion, we find that, under these facts, plaintiffs did not "abandon"

their case.

          Under Rhode Island law, plaintiffs must prove five elements,

in addition to damages, to prevail in a strict liability claim based on

design defect: (1) a defect; (2) the defect existed at the time the

product left defendants' hands; (3) the defect rendered the product

unreasonably dangerous; (4) the product was being used as intended at

the time of the accident; and (5) the defect was the proximate cause of

plaintiffs' injuries. Raimbeault v. Takeucki Mfg. (U.S.) Ltd., 772

A.2d 1056, 1063 (R.I. 2001). Plaintiffs do not dispute that they


                                 -8-
failed to produce evidence of causation and damages, not just defect.

Therefore, Toyota contends, it was proper for the district court to

grant the Rule 50 motion, regardless of the district court’s

evidentiary ruling. Under Toyota’s argument, even if we were to find

that the district court abused its discretion by excluding the testing

evidence on the exemplar vehicle, plaintiffs still failed to establish

the other elements of their case, and, therefore, we cannot reverse the

district court's judgment.

          The district court entered judgment in favor of Toyota under

Rule 50(a) of the Federal Rules of Civil Procedure. This rule provides

that a court may enter judgment as a matter of law after a party has

been "fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that

issue." Fed. R. Civ. P. 50(a). The rule allows the court to entertain

a Rule 50 motion at "any time before submission of the case to the

jury." Id. (emphasis added); see also Am. & Foreign Ins. Co. v. Gen.

Elec. Co., 45 F.3d 135, 139 (6th Cir. 1995) (holding it proper for a

trial court to entertain motions for judgment as a matter of law at any

time during trial, not just at the close of a party's evidence). The

advisory committee specifically intended the rule to authorize "the

court to consider a motion for judgment as a matter of law as soon as

a party has completed a presentation on a fact essential to that

party's case." Fed. R. Civ. P. 50 advisory committee's note.


                                 -9-
          Toyota argues that allowing plaintiffs to appeal the district

court’s evidentiary ruling at this point essentially permits an

interlocutory appeal, which is at odds with the goal of judicial

efficiency.1   We disagree.    The advisory committee specifically

contemplated situations like this and stated that "such early action is

appropriate when economy and expedition will be served."          Id.

          Here, the district court ruled that Mr. Anderson would not

be able to testify regarding his testing of the exemplar vehicle, and

plaintiffs had no other evidence to prove defect. Therefore, it was

entirely appropriate for the district court to consider and grant

Toyota's Rule 50 motion for judgment as a matter of law.

          However, plaintiffs rested their entire case before the court

entered judgment. This, Toyota contends, makes it a more difficult

case because the judgment was entered on more than plaintiffs’ failure

to prove defect.2 Plaintiffs also failed to prove other elements of


1 Toyota also argues that 28 U.S.C. § 1292(b) suggests that we should
not consider plaintiffs’ appeal of the district court’s evidentiary
ruling. Section 1292 gives the federal courts of appeals jurisdiction
over appeals from interlocutory orders and decrees entered by federal
district courts. Nothing in this grant of jurisdiction can properly be
said to conflict with the current case where plaintiffs appeal a
properly entered judgment as a matter of law.
2 Plaintiffs argue that Toyota's motion for judgment as a matter of law
was limited to the defect issue, and, therefore, it waived its argument
with respect to the remaining elements of the prima facie case. While
it is true that if a party states one ground for granting judgment as
a matter of law that party is later precluded from claiming that the
motion should have been granted on another ground, see Hammond v. T.J.
Litle & Co., 82 F.3d 1166, 1170-72 (1st Cir. 1996), we may affirm a

                                 -10-
their prima facie case, and those elements, arguably, were not affected

by the district court's exclusion of testimony regarding the exemplar

vehicle.3

            We do not find this distinction dispositive, here. It is

clear from the record that the district court told plaintiffs that they

had to rest before it would consider any dispositive motions.

Plaintiffs, therefore, faced the option of continuing to present

evidence, knowing that the additional evidence would have no bearing on

the eventual outcome, or resting their case. Since Rule 50 allows a

judge to issue judgment as a matter of law at any point, once it is

clear that a party cannot prevail, we decline to hold that plaintiffs

forfeited their entire case when they followed the court's direction

and rested their case, knowing that they could not prevail should they

continue. In doing so, plaintiffs did not waive their right to appeal

the court's evidentiary rulings.

                                 III.


district court judgment on any "independently sufficient ground,"
including one not raised below. Olsen v. Correiro, 189 F.3d 52, 58
(1st Cir. 1999). Therefore, waiver is not applicable to the present
case.
3  We say arguably because it is possible that the exclusion of
Mr. Anderson's testimony may have been fatal to the rest of plaintiffs'
case. Without being able to establish a defect, plaintiffs would have
been limited in the evidence they could present on causation and
damages, since those elements are related to the defect question.
Neither party has fully briefed this issue, however. Therefore, it is
unclear whether we could affirm the judgment as a matter of law even if
we reverse on the evidentiary ruling.

                                 -11-
          Plaintiffs challenge the district court's ruling excluding

all evidence relating to the testing of the exemplar vehicle. This

evidence consists principally of Mr. Anderson's testimony.        The

district court deemed the evidence irrelevant unless plaintiffs could

show that the exemplar vehicle was "virtually identical" to Mrs.

Jodoin's truck. Because we find that the district court employed the

wrong legal standard, we conclude that the district court abused its

discretion by summarily excluding the evidence relating to the testing

of the exemplar vehicle and that this error was not harmless.

          The Federal Rules of Evidence establish a low threshold for

relevance, generally.4 However, relevant evidence may be excluded if

its probative value is "substantially outweighed" by its likelihood to

confuse the issue or mislead the jury. Fed. R. Evid. 403. In this

regard, courts have treated with skepticism evidence that seeks to

recreate accidents. See, e.g., Swajian v. Gen. Motors Corp., 916 F.2d

31, 36 (1st Cir. 1990) (upholding exclusion of a videotape test which

portrayed the consequences of a car's axle fracturing). They have not,

however, excluded all such evidence. See, e.g., Robbins v. Whelan, 653

F.2d 47, 49-50 (1st Cir. 1981) (overturning district court's exclusion

of report documenting stopping distances for various vehicles).



4 Relevant evidence is defined as any evidence having a "tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." Fed. R. Evid. 401.

                                -12-
          When a party introduces evidence that attempts to reconstruct

an accident, that party must show a "substantial similarity in

circumstances" between the reconstruction and the original accident.

Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993).       In

contrast, a party may introduce evidence that simply illustrates

general scientific principles.     See id.   Then, we simply inquire

whether the test on which the evidence is premised was "properly

conducted." Id. Differentiating between recreations and illustrations

of general scientific principles can be difficult. See McKnight v.

Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1994). Generally,

we look to whether the evidence "is sufficiently close in appearance to

the original accident to create the risk of misunderstanding by the

jury, for it is that risk that gives rise to the special requirement to

show similar conditions."     Fusco, 11 F.3d at 264.

          Here, Mr. Anderson tested a vehicle of the same make and

model year as Mrs. Jodoin's truck.5 He was also prepared to testify

about the rollover propensity of the vehicle based on these tests.

Because the two trucks are facially similar, we believe that a jury

would likely view the testing as a reconstruction of the actual

accident, not as simply illustrative of scientific principles. See


5 Neither party explicitly argues that Mr. Anderson's testing of the
exemplar vehicle was intended merely to illustrate scientific
principles. However, plaintiffs repeatedly cite to cases in which
evidence of accident reconstructions was admitted solely to illustrate
scientific principles.

                                 -13-
McKnight, 36 F.3d at 1402-03 (holding that tests performed on a battery

of the same type and make which were used to explain what happened when

the subject battery exploded "clearly were not limited to a

demonstration of scientific principles in the abstract"). Therefore,

the proper test is the substantial similarity standard. See Fusco, 11

F.3d at 264.

          When reviewing the district court's application of the

substantial similarity test, we accord substantial deference to the

trial court, looking only for an abuse of discretion. See Udemba v.

Nicoli, 237 F.3d 8, 14 (1st Cir. 2001).       While this accords the

district court considerable latitude, it is not a toothless standard.

See Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 5 (1st Cir. 1994).

An error of law, underlying the evidentiary ruling, constitutes an

abuse of discretion. See Koon v. United States, 518 U.S. 81, 100

(1996) ("A district court by definition abuses its discretion when it

makes an error of law."); see also United States v. Kaywer-Roth Corp.,

272 F.3d 89, 100 (1st Cir. 2001).

          Here, the district court never specifically applied the

substantial similarity standard. Instead, it announced several times

that plaintiffs needed to show that the exemplar vehicle was "virtually

identical" to Mrs. Jodoin's vehicle. "Virtually identical" is an

incorrect standard. See Robbins v. Whelan, 653 F.2d 47, 49 (1st Cir.

1981) (holding that "perfect identity" is incorrect standard); see also


                                 -14-
Randall v. Warnaco, Inc., Hirsch-Weis Div., 677 F.2d 1226, 1233-34 (8th

Cir. 1982) ("Admissibility, however, does not depend on perfect

identity between actual and experimental conditions. Ordinarily,

dissimilarities affect the weight of the evidence, not its

admissibility."); accord Szeliga v. Gen. Motors Corp., 728 F.2d 566,

567 (1st Cir. 1984) (holding that "[d]issimilarities between

experimental and actual conditions affect the weight of the evidence,

not its admissibility," but not specifically applying the substantial

similarity standard).    Therefore, the district court abused its

discretion when it required plaintiffs to demonstrate that the exemplar

vehicle was "virtually identical" to Mrs. Jodoin's truck.

          Nevertheless, we will not reverse the district court judgment

if the error was harmless. See Fed. R. Evid. 103(a) ("Error may not be

predicated upon a ruling which admits or excludes evidence, unless a

substantial right of the party is affected"); see also United States v.

Meserve, 271 F.3d 314, 329 (1st Cir. 2001). The error is not harmless

if the record indicates that plaintiffs offered sufficient proof that

the exemplar vehicle was substantially similar to Mrs. Jodoin's

vehicle. As this evidence is plaintiffs' only proof of defect, any

improper exclusion adversely affects their substantial rights.

          "Substantial similarity depends upon the underlying theory

of the case." Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979

F.2d 1434, 1440 (10th Cir. 1992).       We have looked to the specific


                                 -15-
variables in various accidents when determining whether the recreation

is substantially similar to the original accident. Compare Swajian,

916 F.2d at 36 (focusing on the fact that the driver during a

recreation was a professional driver who knew the axle was going to

fracture when driver response to an alleged axle fracture was a key

element in the original accident), with Robbins, 653 F.2d at 49-50

(reversing exclusion of test data when the only suggested difference

between re-enactment and actual accident was the skill level of the

drivers and the trial issue revolved solely around using length of skid

marks to estimate the car's original speed).       When the relevant

elements are sufficiently similar, we further emphasize that other

differences are for defendants to highlight and the jury to weigh in

its deliberations.    Robbins, 653 F.2d at 50.

          Here, plaintiffs alleged a design defect based on the

rollover propensity of Mrs. Jodoin's truck. At this point, only the

characteristics of the truck are at issue, not the characteristics of

the test. The evidence presented shows that the two vehicles were

essentially the same at the time of manufacture. The question, then,

is whether the exemplar vehicle had suffered alterations or damage

which could affect its rollover propensity prior to any testing.

          Mr. Anderson testified that he personally inspected the

exemplar vehicle for everything that "would be related to the vehicle

dynamics and the issues that [he] was evaluating."      Based on that


                                 -16-
examination, he found no evidence of any non-original equipment or

modifications. Plaintiffs, in their offer of proof, submitted that Mr.

Anderson could further testify that the truck showed no evidence of

having been in any accidents, otherwise damaged or modified.

          The district court, however, required that plaintiffs

introduce evidence of the exemplar vehicle's history. We see no reason

such information would need to be presented in order to show

substantial similarity. No cases suggest such a requirement. Bogosian

v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 480 (1st Cir. 1997), on

which Toyota relies heavily, is inapposite to the current case. There,

the court excluded testing evidence performed on the same car when the

parties were unable to show that the car had not been materially

changed in the two years since the accident and after that car had been

examined by numerous experts in the intervening period. Id. Here,

plaintiffs' expert testified that he had performed a thorough

inspection of the exemplar vehicle and detected no evidence of

accidents, damage or modification. If the evidence suggested the

exemplar had been altered in some material respect, the district court

might legitimately require a more complete vehicle history. However,

the district court, sua sponte, instituted this requirement even

though nothing in the record suggested any alteration to the exemplar.

          We are, nonetheless, troubled by Toyota's allegation that

undisclosed modifications may have been made to the exemplar vehicle


                                 -17-
before testing. Assuming that these allegations can be substantiated

with competent evidence, any such modifications may preclude a finding

of substantial similarity should they impact the rollover propensity of

the exemplar. These, however, are questions for the district court to

consider on remand.

          Because we find that plaintiffs cleared the "substantial

similarity" hurdle and because this evidence is admittedly crucial to

their case, the exclusion of the testing evidence was reversible error.

                                 IV.

          For the foregoing reasons, we vacate the judgment below and

remand for a new trial.

          Vacated and remanded.




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