                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1182

                      ALLISON WILLIAMS,

                    Plaintiff, Appellant,

                              v.

             MONARCH MACHINE TOOL COMPANY, INC.,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                      

                                         

                            Before

                  Torruella, Cyr and Boudin,

                       Circuit Judges.
                                     

                                         

Joseph  M. Orlando  with whom  Brian  S.  McCormick and  Orlando &amp;
                                                                  
Associates were on brief for appellant.
      
Terrance J. Hamilton with whom Casner  &amp; Edwards was on  brief for
                                                
appellee.

                                         

                         June 9, 1994
                                         

     BOUDIN,  Circuit  Judge.   On  March  23, 1988,  Allison
                            

Williams, plaintiff in the district court and appellant here,

was  injured when he was  struck by a  "toolholder" that came

loose from a vertical milling machine.  At the time, Williams

was working  in Massachusetts for R&amp;K  Precision Tool Company

("R&amp;K").   The vertical milling  machine, owned  by R&amp;K,  had

been   made  in   1978  by   Monarch  Machine   Tool  Company

("Monarch"), the defendant-appellee in this case.

     The   machine  in  question   was  a  computer  assisted

machining  center that  performs  various functions  such  as

milling,  boring and  fly  cutting.    At  the  time  of  the

accident, the  machine was being  operated by a  co-worker of

Williams  who had attached to  the machine a  fly cutter that

had been  made "in-house" by R&amp;K.   The fly cutter  is a disk

into which  a toolholder and  attached tool can  be inserted.

The  fly cutter then rotates  on the spindle  of the vertical

milling machine and the  rotating tool can be used to  cut or

shave a piece of metal.

     In this  instance, the  co-worker who was  operating the

vertical milling machine had been requested by his foreman to

machine a  piece of  aluminum into a  specific configuration.

After  a few  seconds  of  operation,  in which  the  spindle

rotated  at 2500 rpms, the toolholder came loose from the set

screws  holding it  to  the fly  cutter,  and the  toolholder

struckWilliamswho wasstanding nearby.He wasseriously injured.

                             -2-

     Williams  brought  suit in  the  district  court against

Monarch.   His complaint,  claiming negligence and  breach of

warranty, rested on two  notions as to what Monarch  had done

wrong.   First, Williams  contended that Monarch  should have

provided shielding to contain  ejected projectiles, a  danger

that  Williams  said  was  known  to  Monarch.   Second,  the

complaint  said that Monarch should  have warned users of the

risk  of such ejections  so that  in-house measures  could be

taken;  in this connection,  Williams contended  that Monarch

had an ongoing duty to warn prior purchasers of new shielding
                                                   

equipment developed after  the machine's manufacture  late in

1978 but before the accident in 1988.

     The trial took place  in January 1993.  At  trial, there

was expert  evidence on  both sides  on issues  of shielding,

warning and  causation.   There was also  evidence concerning

proper  use of the vertical  milling machine and the industry

standards  bearing  on  the  respective  responsibilities  of

manufacturers  and  users in  providing  guards and  shields.

Answering  specific interrogatories,  the jury  found against

Williams, and for  Monarch, on  each of the  claims against  

Monarch.

     Following  the jury  verdict, Williams  moved for  a new

trial  asserting as grounds the two issues now raised on this

appeal.   One  is  Williams' claim  that  the district  court

wrongly admitted testimony from  a second expert witness, who

                             -3-

was belatedly produced by Monarch and who testified at trial;

and the other  is that an instruction requested  by Williams,

affirming the manufacturer's ongoing  duty to warn even after

a  machine is  sold, should  have been  given.   The district

court denied the motion, and Williams appealed.  We affirm.

     The events relating to the second expert can  be briefly

summarized.    As  is  common  in  cases  where  experts  are

anticipated, interrogatories  under Fed.  R. Civ. P.  26 were

employed  by  the  parties  to  identify  experts  and  their

expected testimony.  After successive extensions, Monarch  on

October 16, 1991,  identified its expert as David  Lundeen, a

vice president of Monarch, and described the substance of his

testimony.   Williams'  answers  identified  his own  expert.

Thereafter, Lundeen was deposed by Williams.  

     At a  March 26, 1992, pretrial  conference, the district

court  set January 4, 1993, as a  firm trial date.  The court

also ordered the parties to  make certain filings during  the

four weeks preceding the trial date, including the listing of

the  names of all witnesses, lay and  expert.  On December 4,

1992,  a  month before  the  scheduled  trial, Monarch  filed

"further supplemental answers" in response to Williams' prior

"expert" interrogatories identifying for the first time Ralph

Barnett as an additional expert witness.1

                    

     1The   December  4   filing   also  identified   another
previously  unnamed expert  for the  defense.   However, this
third expert was  never proffered  at trial and  need not  be

                             -4-

     On December 28, 1992, Williams filed  a motion in limine
                                                             

to exclude  Barnett's testimony on the  ground that Barnett's

late appearance  would prejudice Williams.   At a  hearing on

January 11, 1993, immediately before the start of trial,  the

district court  heard argument  on the  in limine  motion and
                                                 

offered to postpone the trial for a week and permit Barnett's

deposition to  be taken.   When  Williams' counsel said  that

this would not cure the  prejudice, the court proceeded  with

the trial  immediately.  Later, the court approved the taking

of Barnett's deposition during  a recess of trial  on January

13, 1993, the  day before Williams' own expert  was scheduled

to testify.

     On  appeal,  Williams  argues that  the  district  court

abused  its  authority  by   refusing  to  exclude  Barnett's

testimony.   Williams  contends that  Barnett did  not merely

repeat Lundeen's opinions  but added new theories of his own.

Williams brushes  aside the proffered  one-week extension  as

wholly inadequate  to allow the counsel to depose Barnett, to

develop adequate rebuttal information, and to allow Williams'

own expert the time to adjust his own testimony to answer the

new theories.  Monarch, in  turn, belittles the importance of

Barnett's  testimony  and argues  that  his  late appearances

violated no rule or order.

                    

discussed further.

                             -5-

     In our  view, the  last-minute appearance of  new expert

witnesses,  or substantial expansion  of previously disclosed

expert testimony,  has become a troublesome  feature of civil

litigation.   Such  last-minute  expert  testimony  is  often

improvisation rather than ambush,  but it can still undermine

trial preparations  carefully made by an  adversary over many

months  or even years.  For this reason, some district judges

enter  pre-trial  orders setting  explicit deadlines  for the

naming of experts and then  allow new ones to be named  after

those deadlines only for good cause shown.  Cf. Local R. 26.4
                                               

(D. Mass.).

     Rule  26  interrogatories do  not  have  quite the  same

effect.   Formally, the answers reflect  counsel's good-faith

expectation  as to the experts  to be offered,  and the rules

themselves   (as   phrased    in   1992)   underscored   this

qualification by imposing a duty "seasonally to supplement" a

prior answer identifying an expert or revealing the substance

of expert testimony.  See former Fed. R. Civ. P. 26(e)(1)(B).
                         

Of  course, it would violate  this duty to  name belatedly an

expert  who  had  been retained  by  the  naming  party at  a

substantially earlier time.  Here, however, Monarch says that

it named Barnett  shortly after determining  to use him,  and

there is no evidence to the contrary.

     Our  situation falls  somewhat  in between  an  outright

requirement  that experts be named  no later than a specified

                             -6-

date  and the ordinary use of Rule 26 interrogatories.  Here,

the original  scheduling  order from  the  magistrate  judge,

extended  several times,  directed  that "full  and  complete

answers" to  expert interrogatories  be  furnished by  listed

dates and set  still later  dates  for the completion  of all

discovery.   It  may  well have  been  the intention  of  the

magistrate judge that this be read as an outright cut-off for

the naming of experts  even though the order is not framed in

quite these terms.

     When on the  day of  trial the  parties presented  their

positions  to the  district  court, the  matter was  blurred.

Williams did  not explain his position  with exactness, while

Monarch argued (untenably) that, even if a prior deadline had

been set, it  was relaxed implicitly by  the district court's

routine  order saying that all witnesses be listed a month or

so before trial.  Without resolving the dispute, the district

court said that it would  not bar important expert  testimony

in  a case with  a large ad  damnum when a  continuance would
                                   

remedy the problem.  However the  magistrate judge's order is

read,  the   district  court  was  free   to  alter  previous

deadlines.

     Conversely, even if  the magistrate  judge's order  left

open the ordinary supplementation option, this court has held

that trial  judges have inherent  discretionary authority  to

exclude  expert evidence  where Rule 26  interrogatories have

                             -7-

been   employed  and   where   the  court   finds  that   the

supplementation was not  seasonable.  This is so  even though

the late-named expert was disclosed as  soon as he or she had

been retained.  Fusco  v. General Motors Corp., 11  F.3d 259,
                                             

265-66 (1st Cir. 1993);  Thibeault v. Square D Co.,  960 F.2d
                                                 

239, 245 (1st Cir. 1992).  If the district court in this case

had   decided  to   preclude  Barnett's   testimony  as   not

"seasonably"  disclosed,  such a  decision would  likely have

been sustained.

     But  the  broad discretion  of  trial  judges to  manage

scheduling, discovery and sanctions  cuts both ways.  Through

no one's fault, evidence is sometimes obtained belatedly when

a  gap in  proof is perceived  or a new  source is uncovered.

Discovery  aims only  to mitigate  surprise, for  nothing can

eliminate  it  entirely from  trial practice.   Interrogatory

answers are supplemented in widely varying  circumstances, so

that great deference  must be  afforded to the  judge on  the

spot  in devising the proper remedy.  See, e.g., Nickerson v.
                                                          

G.D. Searle &amp; Co., 900 F.2d 412 (1st Cir. 1990).
                

     Here, the trial  court did  offer a week's  delay and  a

good deal can be done in  a week.  We appreciate that counsel

who accepts a half measure under protest may preserve     the

claim of error but greatly  reduces the likelihood of success

in any later appeal.  Yet, settling a case prepared for trial

requires  compromises, and  it is  generally right  to insist

                             -8-

that counsel take the best deal offered under protest, do the

best job possible  and then  (if the verdict  goes the  other

way) argue to the appeals court that what was allowed was not

enough.  At  least then there  is a concrete  record to  show

what could be done in the time allowed.2

     We  do not  suggest  that Williams  waived his  right to

appeal  by  rejecting the  district  court's  proposals.   If

Williams' trial  counsel  thought that  a week  was close  to

useless  and had  other  reasons to  move  swiftly to  trial,

nothing  prevents Williams  from arguing  now on  appeal that

preclusion of the testimony  was the only permissible remedy.
                                         

But  by   rejecting  the  proffered   half-measure,  Williams

inclines a  reviewing court to resolve  any legitimate doubts

about whether a  week might have been enough in  favor of the

district judge's view that it would have been sufficient.

     In this case we  have reviewed the interrogatory answers

as originally  directed to Lundeen's  proposed testimony  and

compared  them  to testimony  actually  given  by Barnett  at

trial.  There is  no value in repeating  details here; it  is

enough to say  that Williams  is right in  urging that  there

                    

     2In fact, the district court initially offered  Williams
a continuance without limiting  the offer to a week  and only
specified the one-week  delay when Williams  did not state  a
figure of his own, assertedly fearing a long delay in getting
the  plaintiff's case to trial.   There is  little to suggest
that the district court would not  have entertained a request
for  a longer  continuance,  especially if  based  on a  more
substantial  effort by counsel to do the best he could during
the original week.

                             -9-

were substantial differences--not  so much contradictions  as

new  theories--that  required  new  lines  of questioning  by

Williams' counsel and new rebuttal from Williams' own expert.

What  we cannot  say is  that the  district court  abused its

discretion in thinking that an extra week was enough to allow
                                         

Williams to adjust his position.

     Williams points to  the many demands  on counsel in  the

weeks before a scheduled  trial, but what was offered  was an

extra week to be derived by postponing the trial.  Almost all
     

of  this  time  was  presumably  available for  the  task  of

deposing  Barnett,  gathering  material  about  him  and  his

testimony  and  preparing Williams'  own  expert  on any  new

subject  matter.   Indeed,  had  Williams'  counsel made  the

effort, he  would have been better  placed at the end  of the

week to  argue that still more time  was required.  Under all

the circumstances,  we do  not find  that the district  court

abused  its  discretion  in  refusing  to  exclude  Barnett's

testimony.

     Williams' brief twice suggests  that the district  court

withdrew  its original  offer of  a week's  extension because

Williams refused to accept it  as adequate to avoid prejudice

from the late disclosure.   Without generalizing too broadly,

we  agree that  it would  be a  matter of  some concern  if a

district  court refused  to  provide a  limited  postponement

unless the party offered  it waived the party's claim  that a

                             -10-

longer extension was required.  In this instance, however, we

do not read the record to establish such retaliation.

     We  think that  the district  judge may  reasonably have

gained the  impression (based on the  colloquy with Williams'

counsel)  that  Williams was  not  in  fact interested  in  a

continuance in  order  to  cure  the surprise,  but  only  in

preserving  for  appeal  the  position that  the  failure  to

exclude Barnett's testimony was error.   In all events,  when

the district court finally announced its intention to proceed

with  trial  at  once, there  was  no  further response  from

Williams' counsel.  This would be a different case if at that

point Williams had said that he did want a week's continuance

and was merely refusing to waive his right to appeal. 

     Williams' second  and quite  separate claim of  error is

directed  at  the  district   court's  refusal  to  give  the

following requested instruction:

          The  need to exercise  reasonable care to
          prevent injuries to foreseeable  users of
          a product  included a  duty  at least  to
          inform  user  (sic)  of  a  product  [of]
          safety  improvement  of  equipment  which
          would lessen the risk of injury  that has
          developed after the sale of  the product,
          but before the injury occurs.

In  requesting  this instruction,  which  the district  court

declined to give, Williams' trial counsel relied upon doCanto
                                                             

v. Amtek Inc.,  328 N.E.2d 873 (Mass. 1975),  and H.P. Hood &amp;
                                                             

Sons, Inc. v. Ford Motor Co., 345 N.E.2d 683 (Mass. 1976).
                            

                             -11-

     It  is  Williams'  position  that the  vertical  milling

machine  in question, made in 1978, should have been equipped

with an optional chip guard of a type that Monarch later came

to use for most of its machines; that by the  late 1980's, 85

to 90  percent of newly  produced Monarch machines  were sold

with  these enclosures;  and  that Monarch  was aware  of the

unguarded R&amp;K machine and  serviced it from time to  time but

did not  give R&amp;K warning of the guards after the sale of the

machine but prior to the accident in 1988.  

     Williams does  not claim that  the instructions actually

given were faulty in  defining Monarch's duty at the  time it

made  and sold  the machine  in question.   Rather,  Williams

argues that  a manufacturer who has discharged  all duties at

the  time the  product was  produced and  sold will  still be

liable  if it fails unreasonably to  advise a prior purchaser

of  the product  of new,  safety enhancing  improvements made

after the sale.  We  can find no indication that such  a rule

has been  adopted in Massachusetts, whose law governs in this

case.

     In  doCanto,  the  decision  principally  relied  on  in
                

Williams'  brief, the  Massachusetts  Supreme Judicial  Court

sustained  the admissibility of evidence showing improvements

made after the sale  of the product but before  the accident;

but the  court did  not  adopt the  view  "that there  was  a

continuing duty  to warn  purchasers  of safety  improvements

                             -12-

[later] made to a machine which was reasonably safe at sale."

328 N.E.2d at 877.  Rather, the court found that the evidence

was  pertinent to  issues of  liability at  the time  of sale

(e.g.,  feasibility,  knowledge of  risk).   Id.    The court
                                               

implied that the  manufacturer would have been  entitled to a

limiting instruction on the  permissible use of the evidence.

Id.  
   

     The  doCanto decision goes no further than to say that a
                 

duty  to warn  of post-sale  safety improvements  "may" exist

where  the  machine  as  originally sold  was  of  "negligent

design."   328 N.E.2d at  877.   This dictum, even  if "does"

were substituted for "may," would do Williams no good because

in this case the jury's  answers showed that it did  not find

that  the machine  as  originally sold  had been  negligently

designed.  Indeed,  in Hayes  v. Ariens Co.,  462 N.E.2d  273
                                          

(Mass. 1984), the  court said:  "We  did not say  in doCanto,
                                                            

and we have  never said, that  a manufacturer  has a duty  to

advise  purchasers about  post-sale safety  improvements that

have  been made to a machine that  was reasonably safe at the

time of sale."3

                    

     3The Hood  case, also relied  upon by Williams,  is even
              
less helpful to Williams.  Hood did involve in part a federal
                                                             
statute governing  motor vehicle  defects, see 345  N.E.2d at
                                              
687, and  the statute does  address post-sale duties,  see 15
                                                          
U.S.C.    1402;  but  there is  no  claim that  this  federal
statute in any way governs vertical milling machines.

                             -13-

     Some courts have adopted  the view that there  are broad

post-sale  duties to warn, e.g., Kozlowski v. John E. Smith &amp;
                                                             

Sons  Co., 275  N.W.2d 1915  (Wis. 1979),  and there  is some
         

academic support for this extension.  E.g., Note, 33 Stan. L.
                                                             

Rev.  1087 (1981).   Yet,  there is  no suggestion  that this
   

expanded  duty  is  the  prevailing  view,  still  less  that

Massachusetts  has  adopted any  such  expansion.   "We  have

warned,  time and again,  that litigants  who reject  a state

forum   in  order   to  bring   suit  in   federal  diversity

jurisdictions cannot expect that  new trails will be blazed."

Ryan v.  Royal Ins. Co.  of America,  916 F.2d 731,  744 (1st
                                   

Cir. 1990) (citations omitted).

     Finally, if  manufacturers were held in  some situations

to have a duty to search out prior customers and tell them of

new improvements  of products  reasonably safe when  sold one

would expect that a duty potentially so far reaching would be

qualified by other considerations and limitations (e.g.,  the
                                                       

feasibility  of conveying  warnings to prior  purchasers, the

severity of the hazard,  an imbalance between the  parties as

to  knowledge).    The  broad  language  of  the  instruction

proffered by  Williams in  the trial  court contains  no such

restrictions.   In our view, this makes it even more unlikely

that the  instruction as framed represents  the present state

of Massachusetts law.

     Affirmed.
             

                             -14-
