
USCA1 Opinion

	




          December 14, 1993 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2473          No. 93-1801                                  CAROL GAGNE FUSCO,                                 Plaintiff, Appellee,                                          v.                             GENERAL MOTORS CORPORATION,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET               The opinion  of this  Court issued on  December 6,  1993, is          amended as follows:               On page 4, line 1  of first full paragraph, replace "General          Motors'" with "General Motors".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2473        No. 93-1801                                  CAROL GAGNE FUSCO,                                 Plaintiff, Appellee,                                          v.                             GENERAL MOTORS CORPORATION,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________            Thomas J. Sweeney with whom Howard B. Myers, Terrence E.  Haggerty            _________________           _______________  _____________________        and Bowman and Brooke were on brief for appellant.            _________________            Robert K.  Mekeel with  whom Law  Offices of  Joseph F.  McDowell,            _________________            _____________________________________        III, P.A., William  J. Murphy,  Robert T.  Shaffer, III  and Murphy  &        ___  ____  __________________   _______________________      _________        Shaffer were on brief for appellee.        _______                                 ____________________                                   December 6, 1993                                 ____________________                 BOUDIN, Circuit Judge.  Carol Fusco was injured in a car                         _____________            accident and brought  suit against General Motors,  the car's            manufacturer.  A jury awarded Fusco $1 million in damages and            General Motors has appealed, challenging rulings on  evidence            and discovery made by the district judge.  We affirm.                                          I.                 On December  15,  1986, Fusco  was  driving her  car,  a            Chevrolet  Chevette, near  Pelham, New  Hampshire.   Her  car            suddenly  left  the  roadway,  slid   across  an  ice-covered            embankment,  and hit  a telephone  pole  somewhere along  the            front left side of the car.  Fusco was injured.                 Fusco brought suit against General Motors in state court            in  New  Hampshire, claiming  that  a  key component  in  the            steering system--the front left  "ball stud"--had broken from            metal  fatigue  and  caused the  disaster.1    General Motors            removed the  case  to federal  district  court and  took  the            position that  the ball stud  had not been  the cause  of the            accident  but  rather  had fractured  when  the  car hit  the            telephone  pole.   A  jury  trial,  begun  on July  7,  1992,            resulted in  an evenly  divided hung  jury, and  the district            court promptly ordered a second trial for November 16, 1992.                                            ____________________                 1It appears that  the ball is a spherical  object with a            protruding stud; that the ball and stud together form part of            the  elaborate connection (via the tie rod and steering gear)            between  the tire wheel or  axle and the  steering wheel.  If            the  stud  breaks  entirely,  the tire  wheel  is  no  longer            controlled by the steering wheel.                                         -2-                                         -2-                 At the  second trial Fusco offered  eyewitness testimony            that her car had abruptly veered off the highway and collided            with a telephone pole.  A state trooper  who arrived first at            the accident testified  that the car was  resting against the            pole near the  hinge pillar on the driver's  side, a location            between the  door and the  left front fender.   Fusco offered            two  experts (Robert Walson  and Carl  Thelin) who,  based in            part on  this testimony and  their examination of  the broken            ball stud, concluded that  metal fatigue had caused  the stud            to break, causing the steering  apparatus to fail and the car            to veer into the pole.                 Walson,  a metallurgist,  testified that the  surface of            the   broken   ball   stud  taken   from   Fusco's   car  was            characteristic of a fatigue, rather than an impact, fracture.            He  supported his  opinion  in  several  ways  including  his            pretrial examination of the surface  of the ball stud under a            scanning electron microscope; he was fiercely  cross-examined            by  General  Motors  about  this  examination.    Thelin,  an            automotive  engineer, testified  that General  Motors' design            and quality control of the  ball stud were inadequate.  Based            on partial reconstruction of the accident, he also challenged            General Motors' argument that the telephone pole impact could            have broken the ball stud.                 General Motors' case included testimony from  its expert            Jerry  Chiddister who reconstructed the accident based on his                                         -3-                                         -3-            experience with many  crash tests.  In his  view, the car had            "sideslipped" into  the telephone  pole, causing  the car  to            slide along  the pole starting  at the front left  fender and            ending with the pole lying next to the door hinge column.  He            opined that on  its travel down the side of the car, the pole            hit the front left tire and the impact broke the ball stud, a            predictable  occurrence given the estimated speed of the car.            Had the  stud broken before  the car veered,  Chiddister said            that there would  have been a  heavy black tire  mark on  the            road  because the uncontrolled tire would have dragged as the            car slid off course.                 Kirk  Ulman,  another General  Motors  expert, testified            that he had examined  the ball stud itself.  He explained why            the  location of the  break (at  the neck  of the  stud), the            surface  of the break (grainy  with chevron marks), and other            characteristics meant  that impact  and not  fatigue was  the            cause.   James Willis, who worked in General Motors' facility            that made the steering gear, testified to quality control and            the  nature of simulated  fatigue fractures.   Ray Schultz, a            metallurgist, confirmed Ulman's testimony on key points.                 The  jury rendered  a  verdict  in  favor of  Fusco  and            awarded  her $1  million  in damages.    General Motors  then            appealed.  In its brief General Motors does not challenge the            sufficiency  of  Fusco's  evidence  but  confines  itself  to            contesting several evidentiary and discovery rulings, rulings                                         -4-                                         -4-            that can  only  be understood  against  the backdrop  of  the            testimony  already described.  Although these claims of error            are not frivolous, we do not think that  any of them warrants            further proceedings.                                         II.                 General  Motors' first  claim  on  appeal  is  that  the            district  court erred in  ruling, prior  to the  first trial,            that two videotapes--the  "driving tapes"--were inadmissible.            The main tape  made in  1992 has  two parts.   In the  indoor            part, Ulman  used a  car mounted  on a  lift  to display  the            function of the  ball stud and tie rod and showed how in this            demonstration  the connection between  the stud and  the tire            wheel or axle had  been altered in the  test vehicle so  that            the stud could be released deliberately from inside the car.                 In the  outdoor part,  filmed at  a General Motors  test            track, Ulman drove the Chevette while Willis,  sitting in the            passenger  seat, intentionally disconnected  the tie rod from            the tire  wheel.  The film  showed that, when  the left wheel            finally  separated from  the rod,  the  wheel flopped  out of            alignment with  the right  wheel and  dragged on  the highway            apparently creating a  long black skid mark.  The car did not            veer out of  control or  hit the  track barrier.   The  other            tape, made  in  1986,  simply  showed a  similar  test  track            demonstration with a  different driver and passenger.   Thus,                                         -5-                                         -5-            there is no need for  an independent discussion of this tape.                 When General Motors produced the tapes to Fusco in  June            1992, shortly before the first  trial, Fusco made a motion in                                                                       __            limine  to  exclude   them,  arguing  that  the   test  track            ______            conditions did not  duplicate the conditions that  existed at            the time  of the actual accident.  In  an oral ruling on July            8,  1992,  the  trial judge  granted  the  motion.   Although            General Motors argues  that the  exclusion of  the tapes  was            error, it  did not  seek to  offer the  tapes  at the  second            trial.                 Seizing  on  this omission,  Fusco  argues that  General            Motors has waived  its right to argue that  the exclusion was            error.   Fusco  points to  cases  holding that  an in  limine                                                               __________            ruling on evidence  may not be reviewed on  appeal unless the            offer  or  objection  is renewed  when  evidence  is actually            presented at trial.   This court has made general  statements            to this  effect, e.g., United States v. Reed, 977 F.2d 14, 17                             ____  _____________    ____            (1st  Cir. 1992),  in cases  where  the in  limine motion  to                                                    __________            exclude was denied and the opponent of the evidence failed to            renew the objection at trial. We  have found no case in  this            circuit, however,  where an in  limine motion to  exclude was                                        __________            granted  and the  proponent  of the  evidence, by  failing to            renew the offer at trial, was found to have waived the issue.                                         -6-                                         -6-                 Where an  objection to  evidence has  been overruled  in                                                                       __            limine,  it makes  sense  to require  that  the objection  be            ______            renewed at trial.  However  definite the denial of the motion            to  exclude  prior to  trial,  it  is  child's play  for  the            opponent  of the  evidence  to renew  the objection  when the            evidence  is  actually  offered; and  requiring  this renewal            gives the trial judge a  chance to reconsider the ruling with            the concrete  evidence presented in the actual context of the            trial.  The only criticism one might offer of the requirement            is that  the Federal  Rules of Evidence  say nothing  about a            second  objection,2 but any practiced trial lawyer knows that            much of the law of evidence is not contained in these written            rules.                 On  the  other  hand,  where  the  motion  in limine  is                                                            _________            granted, and the  proponent of the evidence is  told that the            evidence  will not be  admitted, the situation  is different.            To require that the evidence  be offered again at trial would            certainly give the trial court  a second chance, but doing so            can  hardly be  described  as  easy:   on  the contrary,  the            proponent   would  have  to   engage  in  the   wasteful  and            inconvenient  task  of  summoning   witnesses  or  organizing                                            ____________________                 2The Federal Rules of Evidence do  not address in limine                                                                _________            motions at all.   Instead the rules require  in general terms            that,  to  preserve a  ruling  on  evidence  for appeal,  the            proponent  of evidence make its  substance known to the court            and an opponent make known  the objection to the evidence and            the ground of the objection.  Fed. R. Evid. 103(a).                                         -7-                                         -7-            demonstrative evidence  that the  proponent has  already been            told not to  offer.  Indeed, in many cases the prior grant of            the  in limine  motion would  make it  improper to  call such                 _________            witnesses  without prior permission.  All the proponent could            do would be  to line up the  witnesses at trial and  then ask            permission.                 Although a  symmetrical rule  may be  preferable if  all            else is  equal, all else  is not equal  here.  Where  a court            rules in limine  that certain  evidence is  excluded but  the                  _________            ruling is merely  tentative or qualified, then  the proponent            might well have  to offer the evidence  at trial in order  to            preserve an appeal on the issue.   Fed. R. Evid. 103(a).  But            where  the pretrial  proffer  is  adequate  and  evidence  is            excluded unconditionally by  a pretrial order, then  we think            that the  proponent has  preserved the  issue for appeal  and            (other  circumstances  being unchanged)  need  not  bring the            witness  to court  and proffer  the evidence again  at trial.            See  McQuaig  v.  McCoy, 806  F.2d  1298,  1301-02 (5th  Cir.            ___  _______      _____            1987).3   The result  is the  same here  where the  in limine                                                                _________                                            ____________________                 3Preserving the  claim of  error based  on exclusion  of            evidence requires  an adequate proffer, so that the trial and            appellate courts  know what  evidence is at  issue.   Fed. R.            Evid. 103(a).   There  may also  be cases  where a  change in            circum-stances,  after the in limine ruling but before trial,                                       _________            might make it  unreasonable for the proponent to  rely on the            solely in  limine ruling to  preserve the issue (a  new basis                   __________            for admissibility might  arise or the court's  initial reason            for exclusion might be mooted).                                         -8-                                         -8-            order preceded the  first trial because no one  disputes that            the same order governed the second trial.                 Needless  to say, most district judges are very cautious            about making a definitive ruling in limine that evidence will                                             _________            not be received at trial.  Trial judges know better than most            that many issues  are best resolved in context  and only when            finally necessary.   But here, as happens from  time to time,            the trial judge did rule definitively that the evidence would            not be  admitted.  The  proffer was adequate since  the tapes            were apparently  available to  the court.   And no  change in            circumstances  occurred after the in limine ruling that might                                              _________            have  affected the controlling  ground for exclusion  or cast            any  doubt on  the trial  judge's intention  to abide  by the            original ruling.                 Thus we turn  to the merits of the  ruling excluding the            driving tapes.  The oral ruling was terse ("You don't have to            argue it.   I'm not  going to let  it in.") but  the district            judge had a written motion from Fusco, and a written response            from  General Motors, and made the ruling only after allowing            both  sides  to argue  their  points  orally.   Fusco's  main            objection was that  the taped scene on the test track did not            adequately  replicate the conditions of the accident.  Merely            to state  the obvious, no  one claimed that the  accident had            occurred when a  jury-rigged cotter pin  was pulled from  the            ball stud by a wire leading into the passenger seat.  Another                                         -9-                                         -9-            facially obvious difference  is that the test car  was driven            by an experienced driver who expected the break to occur.                   General Motors readily admitted that the conditions were            not  the same but argued that the tape was admissible to show            general scientific  principles and  that the  dissimilarities            went  to  weight and  not  admissibility.4   It  repeats this            argument on appeal,  adding that under Fed. R.  Evid. 403 the            burden was  upon Fusco (as  the opponent of the  evidence) to            show that prejudice substantially outweighed probative value.            General Motors says that not only did Fusco fail to show that            the dissimilarities were important but, in addition,  General            Motors'  own experts would have said that the dissimilarities            were not significant.                 The problems raised  by demonstrations of this  kind are            interesting  and important.  The test track replication shown            on the driving tapes (this court was furnished with copies of            the tapes) is vivid and pertinent: one sees, in a way that no            words could capture, the tire wheel flip out of alignment and            the tire then dragging on the  track.  The impression left is            that such an  accident would leave a tire  streak, as claimed                                            ____________________                 4General Motors does  not claim that the  indoor portion            of the  tape was admissible independently; and indeed most of            the indoor portion  was merely to lay the  groundwork for the            test.   The indoor portion did  show Ulman using a  straw, in            place of  the stud, to show how the  stud could be bent by an            impact on the  rear portion of the wheel,  but General Motors            does  not claim that this  brief sequence justified the tape,            and  it could  easily have  been replicated  in court  with a            mock-up.                                         -10-                                         -10-            by General Motors, and  that the car  is more likely to  flop            and drag  than to veer  sharply off the  road.  A  lay juror,            asked whether  a look  at the tapes  would be  helpful, would            likely answer yes.                 The  case law  in this  area  is muddled,  as one  might            expect, but the tendency of the court is to  treat this class            of demonstrative evidence more skeptically than would the lay            juror.  The  concern lies not with  use of tape or  film (the            issue would  be largely the same if  the jurors were taken to            the test  track  for  a  live  demonstration)  but  with  the            deliberate recreation  of an event  under staged  conditions.            Where  that  recreation  could easily  seem  to  resemble the            actual occurrence, courts have feared  that the jurors may be            misled because they do not fully appreciate how variations in            the   surrounding   conditions,  as   between   the  original            occurrence and the staged event, can alter the outcome.                 In such  cases the  solution of  many courts,  including            this  one,  has been  to call  for substantial  similarity in            conditions,  or to stress  the great discretion  of the trial            judge to exclude the evidence  where similarity is not shown,            or both.  E.g.. Swajian v.  General Motors, 916 F.2d 31  (1st                      ____  _______     ______________            Cir.  1990); see  1 J.  Strong, McCormick  on Evidence    202                         ___                ______________________            (1992) (collecting cases,  a number of which  involve General            Motors).   This case  law largely  undercuts General  Motors'            claim that the burden lay with Fusco to show undue prejudice;                                         -11-                                         -11-            instead,  courts have created  a doctrine, predating  and now            loosely  appended to Rule  403, that requires  a foundational            showing of  substantial  similarity in  circumstances.    Cf.                                                                      ___            Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786            _______    _________________________________            (1993)  (reliability requirement  for  expert testimony  held            implicit in Rule 702).                 Of course  the concept  of substantial  similarity is  a            flexible  one, and  ought  to  be, for  the  benefits of  the            demonstration and  the dangers  of misleading  the jury  will            vary greatly  depending upon  the facts.   We think  that the            trial judge enjoys  great discretion in this area.   But here            the circumstances  were not similar: as in  Swajian, the test                                                        _______            occurred in  controlled conditions,  on a  test track  with a            driver expecting the occurrence, and with a doctored piece of            equipment rather than  one that actually broke.   916 F.2d at            36.   General  Motors does  not  seriously claim  substantial            similarity,  despite  its  reference  to  the  testimony  its            experts would have given.                 Instead,  General Motors says  that the tapes  here were            designed  not  to   recreate  the  accident  but   rather  to            illustrate  general "scientific  principles," presumably  the            behavior of a car with a disconnected ball stud.  Admittedly,            "[w]hen this  [scientific  principles]  label  is  attached,"            courts often do  ask not about  similarity of conditions  but            only whether  the test  was properly  conducted.   McCormick,                                                               _________                                         -12-                                         -12-            supra, at 866.  We think it would be a  great stretch to call            _____            the tapes an abstract demonstration of scientific principles,            but the critical point  is not one of labels.   The issue for            us  is whether  the demonstration  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.5                 Here the test track demonstration was rife with the risk            of  misunderstanding.   Whatever  Fusco's counsel  or experts            said  to the jury about differing circumstances, the drama of            the filmed recreation could easily  overcome the logic of the            distinctions.   Our  case  is  scarcely  different  than  the            recreation  in Swajian  involving  a broken  rear  axle in  a                           _______            similarly staged demonstration  by General Motors.   We there            affirmed  the  trial  judge's  exclusion  of  such  evidence,            pointing to  "the  sound and  broad discretion  of the  trial            judge" in policing  such videotaped evidence. Id. at  36.  We                                                          ___            reaffirm here the principle and the result.                                         III.                 The second issue on appeal  concerns the decision of the            trial  judge to exclude  an additional videotape  prepared by                                            ____________________                 5Scientific principles,  when demonstrated  in a  fairly            abstract  way, are  quite  unlikely to  be confused  with the            events  on trial.   The more troublesome  cases, however, are            ones  like this one where some principles of some kind may be            demonstrated but  in a  fashion that looks  very much  like a            recreation of the event that gave rise to the trial.                                         -13-                                         -13-            General Motors  after the first  trial ended in a  hung jury.            This tape  was prepared on  October 2, 1993, and  provided to            Fusco on October  14, 1993, approximately three  months after            the  first trial and one  month before the  second.  The tape            shows a slow motion, close-up  impact fracture of a ball stud            filmed at close  range.  On the  tape one sees the  stud bend            and separate from the ball.  There is no commentary.                 After  receiving the  tape, Fusco  immediately moved  in                                                                       __            limine to exclude it, together with  a newly created "survey"            ______            of the accident  site that General Motors had  tendered.  The            district court  allowed the survey to  be used but ruled that            the tape would not be admissible, stating:                      With  regard  to  the importance  of  the                      exhibit  to  the   defendant,  the  Court                      cannot  fathom  how defendant  could  not                      present  a  complete  case  to  the  jury                      without  the videotape  as defendant  has                      already  done  so  at  the  first  trial.                      Finally,  the Court  does not  doubt that                      plaintiff would have a  difficult time to                      formulate  a  proper response  given  the                      obvious lack of time  before retrial.  It                      is primarily  for this  reason the  Court                      obviates  defendant  from  submitting the                      videotape exhibit.                 On  appeal,  General  Motors does  not  spend  much time            explaining the significance of the tape, saying only that  it            was "to show  how the  part in  question bends  prior to  and            during  an  overload  situation."   Instead,  General  Motors            argues with some force that the district judge has no general            authority  to  exclude  exhibits  merely  because  their last                                         -14-                                         -14-            minute  appearance will  inconvenience  or  burden the  other            side.    This exclusion,  says  General  Motors, was  not  an            exercise of the  court's accustomed power over  discovery but            an interference with  the right of counsel  to offer evidence            at trial.                 Of course, a trial court could readily exclude a witness            or  exhibit if  some previous  order had  set a  deadline for            identification and the proponent  had without adequate excuse            failed to list the witness or exhibit.  But here the deadline            for listing exhibits at the second trial did not expire until            one week before trial, well after the tape was tendered.  Nor            is there  any general rule prohibiting a  party from offering            new evidence  at a second  trial, although few  cases address            the  issue.   See  Lauritzen v.  Atlantic Greyhound  Corp., 8                          ___  _________     _________________________            F.R.D. 237, 238  (E.D. Tenn. 1948), aff'd 182  F.2d. 840 (6th                                                _____            Cir. 1950).  In fact, the district court here allowed General            Motors  to introduce  at  the second  trial  a newly  created            survey of the accident site.                 Nevertheless, we think  that the tape did  implicate the            district court's authority over discovery.   The tape was not            a stand alone exhibit: it made  sense only in the context  of            expert testimony to be offered by General Motors.   An expert            or experts would  have had to explain the  tape's meaning and            would have used it to bolster inferences drawn by the expert.            Indeed, even now it is not clear to us precisely how the tape                                         -15-                                         -15-            was expected  to help  General Motors'  experts, although  we            will   assume  that  it   was  either  intended   to  counter            plaintiffs' expert analysis or to make more plausible General            Motors'  account of  how  the ball  stud  retrieved from  the            accident was actually damaged.                 The  connection of the tape  to discovery now comes into            view.    Fusco's   discovery  had  included  a   request  for            production of "[a]ny and all  . . . videotapes" taken by, for            or for the benefit of Ulman, Willis, and "any and  all expert            consultants."   If the  tape had existed  when General Motors            first responded to  this request, the tape would  have had to            be  produced.   We  think  that the  duty  of supplementation            specified  in Fed.  R. Civ.  P. 26(e)  also required  General            Motors seasonably to produce any later developed videotape of            any importance intended for use by its expert at trial.                 The "duty to supplement" provisions are not  as clear as            they might be,  and the authorities are  surprisingly sparse.            A  party is  required  to supplement--that  is, update--prior            responses   only  in  limited  instances  but  they  include,            pertinently, responses  (1) concerning "the substance" of the            expert's testimony and  (2) where new information  exists and            failure  to amend  would  comprise  "a knowing  concealment."            Fed.  R. Civ.  P. 26(e)(1),  (2).   We  have read  Rule 26(e)            generously, in light  of its dual purposes, the "narrowing of                                         -16-                                         -16-            issues  and  elimination  of  surprise."    Johnson  v.  H.K.                                                        _______      ____            Webster, Inc. 775 F.2d 1, 7 (1st Cir. 1985).6            _____________                   We  think that  these  clauses  are  broad  enough  to            embrace the tape in  this case.  It was  closely connected to            the expert's testimony, it was not previously known to Fusco,            and   General  Motors  can   hardly  describe  the   tape  as            unimportant  since it claims  that the exclusion  of the tape            undermined the entire trial.  Thus we think that the tape was            covered  by General Motors'  obligation to produce  under the            discovery rules.   In our view--and this is the final step in            our reasoning--the  discovery obligation carries  with it the            implicit  authority of  the district  court  to exclude  such            materials when not timely produced even if there was no rigid                               ______            deadline for production.                 There  is  no  suggestion that  General  Motors  delayed            unduly  if  one  counts  only  the  brief delay  between  the            creation of the tape and its tender to Fusco.   But practical            considerations  suggest that the authority of the trial judge            must  be  broader:  otherwise  it  would  count  as  adequate            supplementation to create a critical new expert exhibit a day            before trial and  tender it on the  morning of trial.   It is                                            ____________________                 6The   knowing-concealment  clause   does  not   require            fraudulent  intent; rather it is designed  to protect a party            who reasonably  believes "that  the change that  has made  an            answer no longer accurate is known to his opponent or that it            is a matter  of no importance."   Fortino v. Quasar  Co., 950                                              _______    ___________            F.2d 389, 396 (7th Cir. 1991).                                         -17-                                         -17-            common experience that experts,  like lawyers themselves, may            increase their  efforts as  trial approaches,  and we  do not            suggest any general  bar to an exhibit created  in good faith            for the expert after initial discovery.  But we do think that            where a discovery request for the expert's materials has been            made, the later attempt to  add new exhibits designed for the            expert's use at trial is subject to reasonable supervision by            the trial judge.                 This circuit adopted this very principle in Thibeault v.                                                             _________            Square D Co., 960 F.2d 239, 245 (1st Cir. 1992).  The factual            ____________            differences  between that  case and  this one  relate to  the            sound  exercise of  the  authority  to  exclude and  not  its            existence.  We emphasize that  our ruling in Thibeault and in                                                         _________            this  case rests  on  the existence  of a  specific discovery            request  and the  explicit duty  to supplement  it  in timely            fashion.  Absent some such obligation, we  agree with General            Motors  that courts  cannot ordinarily  tell  counsel not  to            offer evidence just because the other  side will be surprised            and disadvantaged.       Once   the   court's   authority  to            exclude here is conceded, its exercise in this case cannot be            faulted.   The  impact tape was  a technical  experiment made            known to Fusco barely  a month before trial.  To  prepare for            cross-examination might  have required  further discovery  by            Fusco of one  or more  of the defense  witnesses, as well  as            additional preparation by  Fusco's experts.  The  tape itself                                         -18-                                         -18-            is  pictures without words; even to determine the precise use            General Motors planned to make of it would have required more            information.  The  district court was  entitled to find  that            the tape would have compromised Fusco's pretrial preparations            and   that  the   supplementation  came   too   late  to   be            "seasonable."                                         IV.                 General Motors' remaining claim of error also relates to            the district court's authority over discovery.   At the first            trial  Fusco's  experts made  use  of  the  broken ball  stud            recovered  from Fusco's  car  and offered  Walson's testimony            based  on  his  examination  of  the  part  under  a scanning            electron microscope.   That part, in Fusco's  possession, was            available to General  Motors prior to the first  trial but it            chose not to make such an examination of its own.  In theory,            study of the  surface of the broken part might  cast light on            whether the part had broken from impact or fatigue.                 Taking  note of Walson's  testimony in the  first trial,            General  Motors in preparation for the second trial requested            that the  part, and an  additional Pontiac ball stud  used by            Walson for  comparison, be  made  available to  it.   General            Motors wanted  its own metallurgist  to make a  similar, non-            destructive  examination  by scanning  electron  microscope.7                                            ____________________                 7General  Motors proposed to have one of its first-trial            experts  conduct the examination  but, when  Fusco questioned            his qualifications,  General Motors proposed to  have another                                         -19-                                         -19-            Fusco refused to  produce the parts and General  Motors moved            to compel  production.  The  district court wrote  a ten-page            order denying General Motors' motion.                   In its order, the court said that General Motors knew as            early as  May 1991 that  Fusco intended to offer  evidence of            examination  by scanning electron microscope.  The court also            said that the new examination  was intended as the  predicate            for new expert testimony by General Motors, testimony unknown            to Fusco when General Motors' experts  were deposed, and that            this last minute  addition imposed an unfair burden  on Fusco            on the eve of the second  trial.  The court also referred  to            General Motors' development of new evidence on the eve of the            first trial,  which the court  had permitted over  protest by            Fusco.   Finally, it  expressed concern  that General  Motors            sought  to overwhelm plaintiff  with its unlimited  legal and            financial resources.                 There is no doubt here of the district court's authority            to deny further discovery.   As noted above, no automatic bar            exists  against  new evidence  at  a  second  trial; but  the            discovery deadline  had long  since passed  and the  district            court had  no automatic  obligation to  reopen the  discovery            period.  E.g., Dabney v. Montgomery Ward & Co., 761 F.2d 494,                     ____  ______    _____________________                                            ____________________            expert whose qualifications were conceded  participate in the            examination  and testify  at trial.   Whether  one  views the            testimony as  that of  a first-trial expert  or a  new expert            does not greatly affect the matter.                                         -20-                                         -20-            498  (8th Cir.),  cert. denied,  474  U.S. 904  (1985).   The                              ____________            matter  was one  for  the informed  discretion  of the  trial            judge, and the  breadth of that  discretion in managing  pre-            trial mechanics and  discovery is very great.   E.g., Fashion                                                            ____  _______            House, Inc.  v. K Mart Corp.,  892 F.2d 1076, 1082  (1st Cir.            ___________     ____________            1989); Mack  v. Great  Atlantic & Pacific  Tea Co.,  871 F.2d                   ____     __________________________________            179, 186-87 (1st Cir. 1989).  Measured  against this standard            of review,  the district  court's quite  thorough explanation            for denying production easily passes muster.                 Our own review of the record does not suggest to us that            General Motors'  request was made  in bad faith  or reflected            any attempt  to abuse its  financial power.  Fusco  after all            was  seeking  $8  million,  and  defense  counsel  apparently            perceived in  the first trial  that the testimony  by Fusco's            expert about  the scanning  electron microscope  carried some            weight.  But it was primarily  for the trial judge to balance            the  factors, such  as  the timing  of  the request,  General            Motors'  earlier knowledge, the  possible burden on  Fusco of            preparing to confront a new expert, and the importance of the            testimony.   The balance struck  here by the trial  judge was            not an abuse of discretion.                 Affirmed.                  ________                                         -21-                                         -21-
