
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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 &            __________________             ____________________      _________        Associates were on brief for appellant.        __________            Terrance J. Hamilton with whom Casner  & 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&K  Precision Tool Company            ("R&K").   The vertical milling  machine, owned  by R&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&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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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 & 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-                                         -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-                                         -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-                                         -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 &               __________                                     ___________            Sons, Inc. v. Ford Motor Co., 345 N.E.2d 683 (Mass. 1976).            __________    ______________                                         -11-                                         -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&K machine and  serviced it from time to  time but            did not  give R&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-                                         -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-                                         -13-                 Some courts have adopted  the view that there  are broad            post-sale  duties to warn, e.g., Kozlowski v. John E. Smith &                                       ____  _________    _______________            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-                                         -14-
