
USCA1 Opinion

	




          May 11, 1994                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1688                       EGIDIO DE SANTIS AS HE IS ADMINISTRATOR                         OF THE ESTATE OF GIORGIO DE SANTIS,                                Plaintiff, Appellant,                                          v.                             THEODORE F. DOBBINS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            David P. Angueira, with whom John  H. Perten, William F. Ryan, and            _________________            _______________  _______________        Bowditch & Dewey were on brief for appellant.        ________________            Thomas  M. Elcock,  with  whom  Lawrence  F. Boyle  and  Morrison,            _________________               __________________       _________        Mahoney & Miller were on brief for appellees.        ________________                                 ____________________                                 ____________________                      BOWNES, Senior  Circuit Judge.  At  about 3:30 a.m.                      BOWNES, Senior  Circuit Judge.                              _____________________            on the morning of  September 19, 1991, there was  a collision            at the intersection of Arlington and Stuart Streets in Boston            between  an  automobile  driven  by Giorgio  DeSantis  and  a            newspaper   delivery  truck   driven  by   Theodore  Dobbins.            DeSantis was killed  in the  accident.   At the  time of  his            death, DeSantis, a  student, was an Italian citizen living in            West Roxbury, Massachusetts.                       A diversity action was subsequently brought  in the            federal district  court of Massachusetts  by Egidio DeSantis,            an  Italian citizen,  as administrator  of his  son Giorgio's            estate.   Named as defendants  were:  Dobbins,  driver of the            truck;  News  Group Boston,  Inc.  d/b/a  The Boston  Herald,            lessee  of the  truck; and  Lily Transportation  Corporation,            lessor and  owner of  the truck.1   The case  was tried  to a            jury  and it returned a  verdict finding that neither Dobbins            nor the Herald were liable.  This appeal followed.                      Plaintiff-appellant raises two issues:  (1) whether            the  trial court  erred  in excluding  certain testimony  and            proffered  evidence; and (2) whether the trial court erred in            omitting a requested jury instruction.  We affirm.                                            ____________________            1.  On the fifth day of trial plaintiff voluntarily dismissed            his claim against Lily.                                         -2-                                          2                               THE EXCLUSIONARY RULINGS                               THE EXCLUSIONARY RULINGS                               ________________________                      Plaintiff  agrees, as he  must, that  the admission            and  exclusion of  evidence are  reviewed under  an abuse  of            discretion standard.   American Title Ins.  Co. v. East  West                                   ________________________    __________            Financial, 16 F.3d 459, 460 (1st Cir. 1994); United States v.            _________                                    _____________            Spinosa, 982 F.2d  620, 629  (1st Cir. 1992);  DCPB, Inc.  v.            _______                                        __________            City of Lebanon, 957 F.2d 913, 918 (1st Cir. 1992).            _______________            A.  Exclusion of Certain Testimony of Henry Moore            A.  Exclusion of Certain Testimony of Henry Moore                _____________________________________________                      Henry Moore was the first witness at trial.  He was            the  route  fleet  supervisor  for  the  Herald.    Plaintiff            attempted to  introduce a deposition statement  by Moore that            he  told Dobbins, after the accident, that the speed at which            Dobbins claimed to be going when he entered the intersection,            20-25 miles per hour, was "excessive or unsafe."                      Plaintiff argues strenuously here, as he did below,            that the  statement was  admissible as a  vicarious admission            against the Herald.   There can be no doubt that  the primary            purpose of seeking the admission of the statement was to show            that Dobbins was travelling at an "excessive or unsafe" speed            just before the accident.   This does not make  the statement            inadmissible,  but  it does  add  another  ingredient to  the            admissibility mix.                      We  reproduce   part   of  the   colloquy   between            plaintiff's  counsel and  the court  on the  admissibility of            Moore's statement:                                         -3-                                          3                        MR.  ANGUEIRA:    Dobbins' evidence  is                      that he  was traveling at 20  to 25 miles                      per hour, and that's what the defendants'                      experts are  prepared to say, also.   So,                      assuming that  to be true,  Mr. Moore  as                      his supervisor --                         THE  COURT:   But Mr.  Moore's opinion                      that 20 to 25  miles an hour is excessive                      at  3:40 a.m., whatever  the time may be,                      is just  a person's opinion.   It isn't a                      statement of fact binding on a party.                         MR.  ANGUEIRA:    It's  more  than  an                      opinion, your Honor.   In  this case,  in                      his   capacity   as   the   route   fleet                      supervisor    and    engaged    in    his                      responsibilities  of   meeting  with  the                      driver  after this accident, he asked Mr.                      Dobbins  what  happened.    And  in  that                      capacity,  he  told  his  driver,  as his                      supervisor, you  were driving excessively                      and unsafely.   That is a clear admission                      against  the Boston Herald.   Not against                      Dobbins.  I agree.   This evidence is not                      against Dobbins, but  against the  Boston                      Herald,   I   believe   it's   absolutely                      admissible.                         THE COURT:  I don't understand that to                      be the case.  I do not understand how the                      opinion of a person  who wasn't there and                      who is  not trained in  deciding what  is                      excessive and what is not, can be binding                      on the  corporation.  I don't  see how he                      was  authorized  to make  that kind  of a                      statement on behalf of the Herald.                      Whether   Dobbins'   speed   when    entering   the            intersection was "excessive or unsafe" was one of the primary            issues that the  jury had to decide.  The  statement by Moore            was clearly an opinion and not an admission against interest.            Rule 701 of the                                          -4-                                          4            Federal Rules of Evidence provides:                       Opinion Testimony by Lay Witnesses                      Opinion Testimony by Lay Witnesses                         If the witness is not testifying as an                      expert,  the  witness'  testimony in  the                      form of opinions or inferences is limited                      to those opinions or inferences which are                      (a) rationally based on the perception of                      the  witness and (b)  helpful to  a clear                      understanding  of the  witness' testimony                      or the determination of a fact in issue.                      Because  Moore  had  not  seen  the  accident,  his            opinion  could   not  have  been  rationally   based  on  his            perception.  As the court pointed out inferentially, if Moore            had been  an expert on  automobile accidents  and the  speeds            attendant on them, he may have been entitled to testify under            Fed.  R.  Evid.  702 and  render  an  opinion  as to  whether            Dobbins' speed  was "excessive or unsafe" under Fed. R. Evid.            704(a).2    This was  not the  situation before  the district            court.   Moore  was  not an  expert  by any  stretch  of  the                                            ____________________            2.  Fed. R. Evid. 702 provides:                         If  scientific,  technical,  or  other                      specialized  knowledge  will  assist  the                      trier of fact  to understand the evidence                      or  to  determine  a  fact  in  issue,  a                      witness   qualified   as  an   expert  by                      knowledge,  skill, experience,  training,                      or education, may testify thereto  in the                      form of an opinion or otherwise.                Fed. R. Evid. 704(a) states:                         Opinion on Ultimate Issue                         Opinion on Ultimate Issue                         (a) Except as provided  in subdivision                                               (b), testimony  in the form of an opinion                      or inference otherwise admissible  is not                      objectionable  because   it  embraces  an                      ultimate issue to be decided by the trier                      of fact.                                         -5-                                          5            imagination and it would  have been patently unfair  to allow            the statement in evidence.                      It is important  to note that Moore  was allowed to            testify that he  told Dobbins,  "In my opinion  I would  have            slowed down more."                      It was neither an abuse of discretion nor error for            the trial court to exclude Moore's statement.            B.  Exclusion of Questions Directed to Dobbins About            B.  Exclusion of Questions Directed to Dobbins About                ________________________________________________                a Workmen's Compensation Claim That Dobbins Filed                 a Workmen's Compensation Claim That Dobbins Filed                 _________________________________________________                After the Accident                After the Accident                __________________                      Plaintiff made  an offer of proof  to the following            effect.   Defendant Dobbins  filed  a workmen's  compensation            claim  claiming  that  he   was  injured  in  the  automobile            accident.   Yet on the  morning of the  accident, he reported            for full-time work at another  job he had at Amtrak.   And he            worked  at  Amtrak  during  the  period  that  his  workmen's            compensation claim  asserted he  was disabled because  of the            automobile accident.                      After   hearing  argument   from  counsel   on  the            question,  the  court ruled:    "Engaging in  the  balance of            probative value and prejudice,  I rule it out on  the grounds            that the  prejudice outweighs  the probative  value."   It is            evident  that the judge's ruling was made pursuant to Fed. R.                                         -6-                                          6            Evid.  403.3   The  standard we  follow  in reviewing  such a            determination has been stated as follows:                         The  decision  to  admit   or  exclude                      evidence  under  Fed.  R.  Evid.  403  is                      committed  to the broad discretion of the                      trial  court  and  we  will  reverse  the                      court's  judgment  only  rarely   and  in                      extraordinary compelling circumstances            United  States v. Brandon, 17  F.3d 409, 443  (1st Cir. 1994)            ______________    _______            (footnote omitted).                        It  was not an abuse of discretion for the court to            prohibit  questioning   of   Dobbins  about   the   workmen's            compensation claim he filed.             C)   The Exclusion of Maintenance Records of the Truck            C)   The Exclusion of Maintenance Records of the Truck                 _________________________________________________                 and Other Records of its Condition                 and Other Records of its Condition                 __________________________________                      The  district court excluded maintenance records of            the truck  and other records of  defective headlights because            they were too remote in time from the accident.  The accident            happened  on  September 19,  1991.    The maintenance  record            closest in time to the accident was July 13, 1991.  The court            found this  record "wholly  irrelevant."   The  record as  to            defective headlights was made  on July 13 and  15, 1991.   In            its exclusionary  ruling on  the headlight defects  the court                                            ____________________            3.  Fed. R. Evidence 403 provides:                         Although  relevant,  evidence  may  be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion  of   the                      issues,  or  misleading the  jury,  or by                      considerations of undue  delay, waste  of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -7-                                          7            stated:  "It seems to me that the evidence  of alleged defect            is so  remote in time to the accident, that it would serve no            probative purpose whatsoever to introduce them."                      The court's  rulings did not amount to  an abuse of            discretion.            D)   The Failure of the Court to Inform the Jury, "That            D)   The Failure of the Court to Inform the Jury, "That                 __________________________________________________                 it was Entitled to Draw an Adverse Inference from                 it was Entitled to Draw an Adverse Inference from                 _________________________________________________                 Defendants' Intentional and Improper Disposal of                 Defendants' Intentional and Improper Disposal of                 ________________________________________________                 the Herald Truck After the Accident."                 the Herald Truck After the Accident."                 _____________________________________                      Plaintiff's statement of the issue and his argument            on  it are  based  on  a  false  premise:    that  defendants            intentionally and  improperly disposed of the  truck involved            in the accident.   There is no  such evidence in the  record.            The  evidence discloses the  following.  No  request was made            until  March 10, 1992 by plaintiff that  the truck be held so            that  it could  be  examined by  plaintiff.   The  truck  was            repaired  within  thirty days  of  the  accident pursuant  to            Department of  Transportation requirements.  After  the truck            was repaired, it was used again.  There was no court order at            anytime directing  that the truck  be held for  inspection by            plaintiff.   The truck was  sold on  January 22, 1992  by the            lessor.                      On  this state of  the record, there  was no reason            for the court to give the instruction requested by plaintiff.                      Affirmed.                      Affirmed.                      _________                                         -8-                                          8
