
USCA1 Opinion

	




          August 21, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 94-2164                  UNITED STATES FIDELITY & GUARANTY COMPANY, ET AL.,                               Plaintiffs, Appellants,                                          v.                         BAKER MATERIAL HANDLING CORPORATION,                                 Defendant, Appellee.                                                                                      __________________                                     ERRATA SHEET             The opinion of  this Court, issued August 9, 1995,  is amended as        follows:             Cover sheet:  "David A. Berry" in place of "David W. Berry"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-2164                  UNITED STATES FIDELITY & GUARANTY COMPANY, et al.,                               Plaintiffs, Appellants,                                          v.                         BAKER MATERIAL HANDLING CORPORATION,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                                                                      ____________________                            Selya and Cyr, Circuit Judges,                                           ______________                     and Schwarzer,* Senior U.S. District Judge.                                     __________________________                                                                                      ____________________             Michael  J. McCormack,  with whom  Marc LaCasse  and McCormack  &             _____________________              ____________      ____________        Epstein were on brief for appellants.        _______             David W. Barry, with whom William L. Boesch and Sugarman, Rogers,             ______________            _________________     _________________        Barshak & Cohen, P.C. were on brief for appellee.        _____________________                                                                                      ____________________                                    August 9, 1995                                                                                      ____________________                                    ____________________             *Of the Northern District of California, sitting by designation.                    CYR, Circuit Judge.   Plaintiffs United States Fidelity                    CYR, Circuit Judge.                         _____________          & Guaranty  Company ("USF&G")1 and Jennifer  Chapman, administra-          trix of  the  estate  of  Russell M.  Chapman,  Jr.  ("Chapman"),          challenge district court rulings precluding their introduction of          certain  evidence at trial and denying their motion for new trial          or  relief  from  judgment in  a  wrongful  death  action against          defendant-appellee Baker Material Handling Corporation ("Baker").          We affirm.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On January 5, 1990, Chapman sustained fatal injuries in          a  phenomenon  known as  "rack  underride"  when  he was  crushed          between a  warehouse shelf and the  back of the 1979  Baker Moto-          Truck model XTR forklift ("XTR") which he was operating.  The XTR          was  discontinued later in 1990  and replaced by  the Baker Reach          Truck  forklift ("BRT"), first manufactured in  1987.  Unlike its          predecessor,  the BRT-design  repositioned the  steering controls          and incorporated vertical rear posts to protect the operator.                     Following Chapman's  death, USF&G and  Jennifer Chapman          ("appellants")  brought suit  in  Massachusetts  Superior  Court,          claiming  that 1) Baker had  breached its duty  to warn Chapman's          employer  of the danger of "rack  underride"; and (2) the lack of          vertical  rear posts in the XTR (i) violated the implied warranty          of merchantability  and (ii) rendered the XTR-design unreasonably                                        ____________________               1USF&G is  the workers' compensation  insurance carrier  for          Chapman's employer.                                          3          dangerous.  Following the removal of the action to federal court,          see 28 U.S.C.     1332, 1441(a), Baker responded in  the negative          ___          to interrogatories designed to disclose whether it had  ever been          sued  for damages  arising  out of  a  similar XTR  incident  and          whether  it  had  ever  modified an  XTR  forklift  by installing          vertical  rear posts.    Approximately two  years later,  shortly          before trial, Baker  again responded in  the negative to  similar          supplemental interrogatories.                     As Baker  now concedes,  its responses  were materially          incorrect.  It  had installed vertical rear posts in two XTRs for          Boston Edison in 1987, and later that year sold Boston Edison two          new XTRs with vertical rear posts.  And, for good measure,  Baker          had been sued  in 1985  based on a  similar XTR "rack  underride"          claim  which  settled in  1989.   See  DeMarzo v.  Baker Material                                            ___  _______     ______________          Handling  Corp, No. 477122 (Orange  Cty. Sup. Ct.  filed Dec. 20,          ______________          1985) ("DeMarzo").                   _______                    Baker  filed a motion in limine to preclude evidence of                                          __ ______          its  incorporation  of vertical  rear  posts  in the  BRT-design,          asserting lack  of relevance  and  undue prejudice,  see Fed.  R.                                                               ___          Evid. 402, 403.   It  contended that incorporating  posts in  the          earlier  XTR-design would have impeded steering,  as well as safe                   ___          egress by the operator  in the event of a crash  or rollover.  On          the other hand, its repositioning of the steering controls in the          BRT-design had alleviated  the operational impediment and  hazard          ___          associated with  incorporating posts  in its XTR-design.   Conse-                                                       ___          quently, urged Baker,  the BRT-design would be irrelevant  to the                                          4          determination whether  the absence of vertical rear  posts in the          XTR-design  created an  unreasonably  dangerous  condition.   The          motion in limine was granted on the eve of trial.                   __ ______                    At trial, Baker incorrectly represented in  its opening          statement that the  evidence would  show that the  XTR had  never          been involved in a  "rack underride" accident and that  Baker had          never installed vertical rear  posts in an XTR.   Although appel-          lants had already  learned about the 1985 DeMarzo  XTR litigation                                                    _______          and Baker's  undisclosed XTR modifications, they  neither alerted          the district  court nor mentioned these matters  in their opening          statement.                     During trial, appellants elicited from Manfred Baumann,          Baker's vice-president for engineering  and the officer in charge          of litigation,  that  company files  contained no  record of  any          prior "rack  underride" incident  involving the XTR  forklift and          that Baker had  never installed  vertical rear posts  in an  XTR,          though it  was in fact  feasible to do so.   Whereupon appellants          confronted Baumann with depositions  taken in the DeMarzo litiga-                                                            _______          tion, and  with Boston Edison records,  indicating that Baumann's          testimony on both points was inaccurate, as Baumann was forced to          concede.2                                        ____________________               2According to  Baumann, the DeMarzo litigation  file had not                                           _______          been entered on the master-file list until  after Baker responded          to the  initial interrogatories, and the  information relating to          the  XTR modifications  made by  Baker at  the request  of Boston          Edison  had been placed in  the Boston Edison  client sales file,          rather than the XTR file.  He testified that there were more than          100,000 client sales files, and that it was not until he had been          told of the modifications  to the Boston Edison XTRs  that he had          searched  its client sales file.   Further, Baumann admitted that                                          5                    Notwithstanding their denudation  of Baker's  discovery          lapses, appellants elected not to request sanctions or a continu-          ance to pursue further  discovery, choosing instead to capitalize          on  Baker's "cover-up"  in  their closing  argument.   Apparently          unimpressed,  the jury found for  Baker on all  three theories of          liability;  judgment  entered; and  appellants  moved  for a  new          trial, see  Fed. R. Civ. P.  59(a), or for  relief from judgment,                 ___          id. 60(b)(3), alleging prejudice  from the order precluding their          ___          BRT-design evidence  and from  Baker's responses  to interrogato-          ries.                      On  appeal, appellants attack  the district court judg-          ment, asserting  reversible error in the  ruling precluding their          BRT-design evidence.  Their discovery abuse claim forms the basis          for the  appeal  from the  denial of  their postjudgment  motion.          Appellants speculate  that they  were unfairly prejudiced  by the          inaccurate  responses  to interrogatories,  notwithstanding their          decision not to request Rule 37 relief, since it is impossible to          determine what would have been disclosed in full discovery.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Appeal from the Judgment          A.   Appeal from the Judgment               ________________________                    The  district  court  order precluding  the  BRT-design          evidence is  reviewed for abuse of discretion.   Espeaignnette v.                                                           _____________                                        ____________________          Baker's responses to the initial interrogatories had been inaccu-          rate  and that he had  not reexamined the  Baker litigation files          before responding to the supplemental interrogatories.                                           6          Gene Tierney  Co., Inc.,  43 F.3d 1,  5 (1st  Cir. 1994)  ("'Only          _______________________          rarely -- and in extraordinarily compelling circumstances -- will          we, from the vista of a cold appellate record, reverse a district          court's on-the-spot judgment concerning the relative  weighing of          probative  value and  unfair effect.'"  Freeman v.  Package Mach.                                                  _______     _____________          Co., 865 F.2d 1331,  1340 (1st Cir. 1988).   Notwithstanding this          ___          deferential standard  of review, the Espeaignnette panel reversed                                               _____________          a  similar ruling, Espeaignnette, 43 F.3d at 8-9, where the issue                             _____________          was  whether a lawn-edger design,  which made no  provision for a          protective guard over the cutting blade, was unreasonably danger-          ous.   Id.  at 4.   The  defendant-manufacturer conceded  that it                 ___          would be  feasible to attach  a protective guard,  but maintained          that  normal operation of the edger would  be impeded.  Id. at 6.                                                                  ___          The district court precluded evidence that a third party had made          a business of attaching  protective guards to the identical  lawn          edger model, even though  the evidence showed that  the modifica-          tion  at issue  was  "both possible  and  practical".   Id.   The                                                                  ___          Espeaignnette  panel reversed  on the  ground that  the proffered          _____________          modification evidence was highly probative and entailed no unfair          prejudice  because,  if credited,  it  directly controverted  the          defendant-manufacturer's  claim  that  the proposed  modification          would impede normal edger functioning.  Id. at 6-8.                                                    ___                    The superficial similarities between  Espeaignnette and                                                          _____________          the instant case are  outweighed by more fundamental dissimilari-          ties.  First, both cases implicate Rule 403 rather than Rule 407,          though  for different reasons.  Espeaignnette noted that Rule 407                                          _____________                                          7          has no application  to third-party modifications,  id. at 7;  see                                                             ___        ___          also Raymond v. Raymond  Corp., 938 F.2d 1518, 1524-25  (1st Cir.          ____ _______    ______________          1991)  (Rule 407 applies only to  subsequent remedial measures by          manufacturer, not by  third parties), whereas  Rule 407 does  not          apply  to the  instant case  because the  BRT-design modification          preceded Chapman's accident.   See id. at 1523-24 (Rule  407 does                                         ___ ___          not  apply  to design  modifications  made prior  to  accident in          litigation) (upholding  exclusion under  Rule 403).   Second, the          modification  in Espeaignnette  had  been performed  on an  edger                           _____________          identical to the one  which injured the plaintiff, Espeaignnette,                                                             _____________          43 F.3d at  6, whereas the modification  in the instant case  was          made to the BRT-design, which was substantially dissimilar to the          XTR which injured Chapman.  See also infra p. 8.                                        ___ ____ _____                    The  district court found  that the BRT  was not suffi-          ciently  similar to the XTR,  a finding we  review only for clear          error.  Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14,                  _______    _________________________________          16  (1st Cir.  1994) (findings  of  fact integral  to evidentiary          rulings  are reviewed  for clear  error).   Its finding  is amply          supported.   Appellants' own expert testified  that vertical rear          posts  could not practicably be incorporated in the XTR unless it          underwent  major redesign.  Whereas the  record revealed that the          BRT-design   could  accommodate  vertical  rear  posts  precisely          because  its  steering  controls  had been  repositioned  in  the          operator's  cabin so  that  the posts  would  not interfere  with          steering.                      The Raymond  case, supra, provides  sturdy support  for                        _______        _____                                          8          the  district court ruling.3   It involved  a claim that  a side-          loader  design was  defective for  lack of  vertical rear  posts.          Raymond, 938 F.2d at 1522.  The decedent had been fatally injured          _______          by  a beam which penetrated  the sideloader operator's cabin, id.                                                                        ___          at 1520, and the district court excluded evidence that rear posts          were included in a later design that predated the  accident.  Id.                                                                        ___          at  1522-23.  We upheld the exclusionary ruling, with the follow-          ing explanation:   "the introduction of  evidence of pre-accident          design modifications not made  effective until after the manufac-          ture of  the allegedly defective product may  reasonably be found          unfairly prejudicial to the defendant  and misleading to the jury          for determining the question whether the product was unreasonably          dangerous at the time of manufacture and sale." Id. at 1524.  The                                                          ___          Raymond logic is no less apt in this case.            _______                    Finally, the evidence excluded  in the instant case was          by no means  the most  probative available on  the ultimate  jury          issue; viz., whether the XTR-design should have included vertical          rear posts.  Whereas the best evidence relating to the safety and          practicality  considerations involved  in Espeaignnette  had been                                                    _____________          that  a  third party  was making  a  business of  incorporating a          protective  guard on the identical edger,  the best evidence that          the  XTR could accommodate vertical  rear posts was the uncontro-               ___ _____ ___________          verted proof    presented to  the jury    that Baker in  fact had                                        ____________________               3Although Raymond  involved New  Hampshire law, 938  F.2d at                         _______          1520, we recently held that its logic applies as well  to "design          defect"  and "failure  to warn"  claims under  Massachusetts law.          Cameron, 43 F.3d at 18.           _______                                          9          installed  posts in  the  XTRs  it  modified at  Boston  Edison's          request.   The  evidence that  posts had  been installed  in XTRs          diminished not only the need to establish their  incorporation in          the noncomparable  BRT-design, but any unfair  prejudice from its          exclusion.  Thus, the district court did not abuse its discretion          in concluding that the  required Rule 403 balancing tipped  deci-          sively  in  favor of  preclusion.   Espeaignnette,  43 F.3d  at 6                                              _____________          (centrality  of  disputed evidence  to  party's  claim is  strong          factor in Rule 403 balancing test) (collecting cases).            B.   Appeal from the Denial of Postjudgment Relief          B.   Appeal from the Denial of Postjudgment Relief               _____________________________________________                      We  review  orders  disallowing  postjudgment  relief          under rules 59  and 60(b)(3)  for abuse of  discretion.   Perdoni                                                                    _______          Bros., Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 n.5 (1st Cir.          ___________    ______________________          1995) (Rule 59);  Fernandez v.  Leonard, 963 F.2d  459, 468  (1st                            _________     _______          Cir. 1992) (Rule 59  and Rule 60(b)(3)); United States  v. Parcel                                                   _____________     ______          of  Land &  Res. at 18  Oakwood Street,  958 F.2d 1,  5 (1st Cir.          ______________________________________          1992) (Rule 60(b)(3)).   The district court rulings  that Baker's          inaccurate responses to interrogatories neither constituted fraud          nor resulted in substantial interference with the preparation and          presentation of  appellants' case  are reviewed for  clear error.          Anderson  v. Beatrice Foods, Co.,  900 F.2d 388,  392 (1st Cir.),          ________     ___________________          cert. denied, 498 U.S. 891 (1990).          _____ ______                    Appellants  argue that  the district  court abused  its          discretion  by not  affording them  postjudgment relief  based on          Baker's  slipshod  and misleading  responses  to interrogatories,                                          10          which denied them a  fair trial.4   Among the available forms  of          relief  from prejudice  occasioned  by  discovery violations  are          curative measures such as  continuances and stays pending compli-          ance,  orders  tailored  to  effect  issue  preclusion,  contempt          orders, and default  judgments.   See R.W. Int'l  Corp. v.  Welch                                            ___ _________________     _____          Foods,  Inc., 937  F.2d  11, 15-20  (1st  Cir. 1991)  (discussing          ____________          grounds for Rule 37 sanctions); Fed. R. Civ. P. 37(b)(2),(3).                      Appellants' claim fails, nonetheless,  as they opted to          proceed  rather than  request  relief under  Rule 37,  presumably          because the  information Baker did not disclose  had become known          to appellants  before or  during trial.   Moreover,  though their          gambit proved  unsuccessful, there  was both method     potential          advantage    in their  stratagem and little to lose.  Since there          is even now no concrete  suggestion that further discovery  would          have benefited them, their prospects for obtaining Rule 37 relief          appear all along to have been minimal compared with the potential          jury  impact their  "cover-up" claim  might reasonably  have been          expected to occasion.         Thus,  appellants' decision  to use          their  hole  card in  an abortive  gambit  with the  jury plainly          waived any claim  that their  decision to forego  Rule 37  relief          rendered the  trial unfair.   The appropriate remedy  for parties                                        ____________________               4Appellants rely on Anderson v. Cryovac, Inc., 862 F.2d 910,                                   ________    _____________          923 (1st Cir. 1988),  for their contention that a  district court          may  grant  relief from  judgment and  a  new trial  even  if the          failure to provide requested  discovery was inadvertent.  Follow-          ing  our remand in Cryovac, the district court denied relief from                             _______          judgment under Rule 60(b) notwithstanding its finding of deliber-                                                                   ________          ate discovery abuse.  We nevertheless upheld its ruling.  Beatri-          ___                                                       _______          ce Foods Co., 900 F.2d at 391-92.           ____________                                          11          who uncover  discovery violations is "not to  seek reversal after          an  unfavorable verdict but a request for continuance at the time          the  surprise occurs."  Szeliga v. General Motors Corp., 728 F.2d                                  _______    ____________________          566, 568 (1st  Cir. 1984); see  United States v.  Diaz-Villafane,                                     ___  _____________     ______________          874 F.2d 43,  47 (1st  Cir.) (criminal case),  cert. denied,  493                                                         _____ ______          U.S. 862 (1989).  Here, of  course, there appears to have been no          genuine surprise.  Nor can appellants  plausibly suggest that the          district  court abused  its discretion  by declining  their post-          judgment  motion for  relief from  the unwelcome  consequences of          their calculated decision.  Ojeda-Toro v. Rivera-Mendez, 853 F.2d                                      __________    _____________          25, 29  (1st Cir. 1988)  ("[A] party  may not prevail  on a  Rule          60(b)(3) motion . . . where [it] has access to disputed  informa-          tion or has  knowledge of inaccuracies in an opponent's represen-          tations  at the  time  of the  alleged misconduct.")  (collecting          cases).                                           III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As the district court did  not abuse its discretion  in          precluding  the dissimilar  BRT-design  evidence  nor in  denying          postjudgment relief under Rules 59 and  60(b)(3), its judgment is          affirmed.           ________                                          12
