
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1470                                     DAWN DAIGLE,                                Plaintiff, Appellant,                                          v.                             MAINE MEDICAL CENTER, INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Christine  M. Rockefeller, with whom  Paul R. Cox and Burns,               _________________________             ___________     ______          Bryant,  Hinchey,  Cox  &  Schulte,   P.A.  were  on  brief,  for          __________________________________________          plaintiff.               Gerald  F. Petruccelli, with whom Mary Mitchell Friedman and               ______________________            ______________________          Petruccelli & Martin were on brief, for defendant.          ____________________                              _________________________                                   January 31, 1994                              _________________________                    SELYA, Circuit  Judge.  This  appeal seeks to  test the                    SELYA, Circuit  Judge.                           ______________          constitutionality  of Maine's Health Security Act, Me. Rev. Stat.          Ann.  tit. 24,     2851-2859  (West 1990)  (the Health  Act), the          mechanics   of  its  application  in  diversity  suits,  and  the          appropriateness of  sundry  evidentiary rulings  made during  the          course of trial in the district court.  After assembling the test          results, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    On or  about April 9,  1987, while in  her thirty-first          week  of  pregnancy,  plaintiff-appellant  Dawn   Daigle,  a  New          Hampshire resident, developed symptoms associated with pregnancy-          induced hypertension.   She sought treatment at  Frisbie Memorial          Hospital, Rochester,  New Hampshire.    There, Daigle's  treating          obstetrician  advised her that she required an immediate cesarean          section.    Because  Frisbie Memorial  Hospital  maintained  only          rudimentary neonatal facilities, the obstetrician suggested  that          the surgery be performed at a tertiary-care hospital.                    Following  her  doctor's suggestion,  Daigle  presented          herself at Maine Medical Center  (MMC) in the early morning hours          of  April 10,  1987.   Examination  confirmed her  obstetrician's          diagnosis  and hospital  personnel  prepared  her  for  immediate          surgery.  The preparations did not go smoothly:  while a catheter          was  being  inserted  into  the  jugular vein  to  monitor  blood          pressure  and  provide access  to  medications,  Daigle's carotid          artery was punctured.   A hematoma then formed  in Daigle's neck,                                          2          deviating her trachea.   Consequently, although the  delivery was          otherwise  successful, the  attending physicians  were forced  to          intubate Daigle while she was fully awake.  Daigle was discharged          from the hospital on April 17, 1987.                                         II.                                         II.                                         ___                                    The Health Act                                    The Health Act                                    ______________                    Because many of  the arguments on appeal relate  to the          Health Act, we offer an overview of the statutory scheme.                    The Maine legislature passed the Health Act in response          to an emergent crisis that threatened the availability of medical          malpractice insurance.   The legislature designed the  Health Act          in an  effort to  stem the  proliferation of medical  malpractice          litigation,  weed out  nonmeritorious  claims, and  promote early          settlement of meritorious  claims.  See Me. Rev.  Stat. Ann. tit.                                              ___          24,   2851(1)(A)  & (B); see also  Sullivan v. Johnson,  628 A.2d                                   ___ ____  ________    _______          653, 655-56 (Me. 1993).   By its terms, the Act  requires parties          to submit medical malpractice claims to a prelitigation screening          panel as a condition precedent to court access, unless both sides          agree to bypass the panel hearing.  See Me. Rev. Stat.  Ann. tit.                                              ___          24,   2853.   Each screening panel  is composed of a  person with          judicial experience (such  as a retired jurist), an attorney, and          either  one or two  health care  professionals, depending  on the          circumstances of the particular case.  See id.   2852(2).                                                 ___ ___                    A screening panel is  authorized to conduct evidentiary          hearings and  render a decision.  See id.     2854-2855.  A party                                            ___ ___          who submits to the screening  process is entitled to proceed with                                          3          her  court   case  regardless  of   the  outcome  of   the  panel          deliberations.   See id.    2858.   Withal, the  panel's findings                           ___ ___          (the  Findings)   are  admissible   as  evidence   in  subsequent          litigation if they  are unanimous.  See id.  When admissible, the                                              ___ ___          Findings  are to  be  introduced "without  explanation."   Id.                                                                        ___          2857(1)(B).                                         III.                                         III.                                         ____                                  Proceedings Below                                  Proceedings Below                                  _________________                    On June 28,  1988 Daigle sued MMC in  the United States          District  Court for  the  District of  New  Hampshire.   Invoking          diversity jurisdiction, see 28 U.S.C.   1332 (1988),  she alleged                                  ___          negligence relating  to  treatment rendered  during her  hospital          stay.  MMC challenged the court's in  personam jurisdiction, and,                                            __  ________          failing  in  its   jurisdictional  objection,  defended   on  the          merits.1                    In due season, the district court determined that Maine          law applied to Daigle's suit  and that, therefore, the Health Act          pertained.   Under  the compulsion of  that ruling,  Daigle first          presented  her  case  to a  prelitigation  screening  panel which          consisted  of a retired jurist, two  physicians, and an attorney.          After  an  evidentiary  hearing,  the  panel  found  no  acts  of          negligence  attributable either to  MMC or to  Daigle's attending                                        ____________________               1MMC has  cross-appealed from the  denial of  its motion  to          dismiss.   Given our  disposition of Daigle's  appeal, see infra,                                                                 ___ _____          nothing  turns on  the cross-appeal.    Hence, we  dismiss it  by          separate order.   Cf.  Feinstein v.  Resolution Trust  Corp., 942                            ___  _________     _______________________          F.2d 34, 40-41 (1st Cir. 1991).                                           4          physicians at MMC,viz., Dr. Constance Taylor andDr. David Bryce.2                            ____                    Notwithstanding  the panel's  adverse decision,  Daigle          decided to go forward.  At trial, the district court,  noting the          panel's unanimity,  allowed the  Findings to  be introduced  into          evidence.   Thereafter,  Daigle attempted  to  impeach the  panel          proceedings,  but  to   no  avail;  the  court   sustained  MMC's          objections.  The jury  returned a verdict in MMC's favor on March          10, 1993.  Daigle moved  unsuccessfully for a new trial and  then          appealed.  We have jurisdiction under 28 U.S.C.   1291 (1988).                                         IV.                                         IV.                                         ___                                      Discussion                                      Discussion                                      __________                                          A.                                          A.                                          __                            The Constitutional Challenges                            The Constitutional Challenges                            _____________________________                    Appellant's  main   offensive  comprises   a  host   of          challenges  to  the constitutionality  of  the Health  Act.   She          asserts,  inter alia,  that the  statute  violates principles  of                    _____ ____          equal protection and due process, and also impermissibly abridges          her right to  trial by jury.  Despite  this asseverational array,          the constitutional sortie need not occupy us for long.                    The short  of the matter  is that  appellant failed  to          raise    these   claims    or   otherwise   to    challenge   the          constitutionality of the  Health Act in the district  court.  Our          law is  clear that  a party  ordinarily may not  raise on  appeal          issues  that were not seasonably advanced (and, hence, preserved)                                        ____________________               2Although Daigle did not sue  either Dr. Taylor or Dr. Bryce          in the federal court, she later sued them in a Maine state court.          That suit is still pending.                                          5          below.   See, e.g., United States v. Slade,  980 F.2d 27, 30 (1st                   ___  ____  _____________    _____          Cir. 1993); Clauson  v. Smith, 823 F.2d 660, 666  (1st Cir. 1987)                      _______     _____          (collecting  cases).  The  raise-or-waive rule applies  with full          force  to constitutional challenges.   See  Cohen v.  President &                                                 ___  _____     ___________          Fellows of  Harvard Coll., 729  F.2d 59, 60-61 (1st  Cir.), cert.          _________________________                                   _____          denied, 469 U.S. 874 (1984).          ______                    To  be sure,  the raise-or-waive  rule  is not  totally          inelastic; there  are exceptions to  it, but, for the  most part,          the exceptions  are narrowly configured and  sparingly dispensed.          We will,  for example,  relax the  rule upon  a showing  of plain          error, see  United States  v. Griffin, 818  F.2d 97,  99-100 (1st                 ___  _____________     _______          Cir.),  cert.  denied,  484  U.S.  844  (1987),  but  appellant's                  _____  ______          constitutional claims do not qualify for such  treatment.  "Plain          error" requires the proponent to  show that softening the rule is          necessary to prevent  a clear miscarriage of justice,  see id. at                                                                 ___ ___          100, and the "errors" assigned here are, in all events, likely to          prove a losing  proposition.3  We can  also relax the rule  in an          "exceptional case,"  United States v. La Guardia,  902 F.2d 1010,                               _____________    __________          1013 (1st Cir. 1990), but we invoke that  exception only when, at          a bare minimum, the omitted  ground is so compelling as virtually                                        ____________________               3At  initial  blush,   none  of  appellant's  constitutional          contentions are convincing.   With respect to her  claim that the          Health  Act violates equal  protection in requiring  only medical          malpractice claimants to submit to screening before proceeding to          trial, we believe  that the statute is rationally  related to the          legitimate   legislative   goal   of   containing   the    sudden          proliferation of  medical malpractice  litigation.   See Houk  v.                                                               ___ ____          Furman, 613  F. Supp. 1022,  1030-33 (D. Me. 1985).   Appellant's          ______          due process and  Seventh Amendment claims appear to  be even more          severely flawed.                                          6          to  ensure an  appellant's success.   See Slade, 980  F.2d at 31.                                                ___ _____          Obviously, Daigle cannot clear this hurdle.  See supra note 3.                                                       ___ _____                    We  hold,  therefore, that  appellant's  constitutional          claims are procedurally defaulted.4                                          B.                                          B.                                          __                              The Section 2857 Challenge                              The Section 2857 Challenge                              __________________________                    Next,  appellant  launches  a barrage  of  interrelated          reasons  aimed  at  showing  why the  district  court  erred,  on          evidentiary  grounds, in  admitting the  Findings into  evidence.          These theories do not withstand scrutiny.                    1.    The  Meaning of  "Without  Explanation".   First,                    1.    The  Meaning of  "Without  Explanation".                          _______________________________________          appellant claims that  the district court erred in giving literal          effect  to the Health  Act, which  provides that  unanimous panel          decisions, i.e.,  Findings, may be  admitted into evidence  at an                     ____          ensuing trial "without  explanation."  Me.  Rev. Stat. Ann.  tit.          24,   2857.  The district court interpreted "without explanation"          as preventing either side from eliciting testimony concerning the          circumstances of, and deliberative process at, the panel hearing,          but as  permitting counsel  for the parties  to comment  upon the                                        ____________________               4In  connection with these claims, appellant also presses an          argument that the panel as constituted was biased, resulting in a          fundamentally  unfair hearing and,  hence, in a  violation of her          due  process rights.   Unlike  her  other constitutional  claims,          appellant successfully  preserved this issue for review.  But the          bottom  line remains unchanged.   Assuming, for  argument's sake,          that   the  district  court  possessed  the  power  to  entertain          appellant's objection to the panel's  supposed bias   a matter on          which we do not opine   our perscrutation of the record persuades          us,  beyond serious  question, that  the district  court  did not          abuse its discretion  in denying appellant's motion  to set aside          the Findings and order a fresh start.                                          7          Findings  in   opening  statements   and  closing  arguments   (a          prerogative  which MMC desired  and which appellant  would sooner          have seen by the wayside).                    In  arguing  that   this  protocol  constitutes  error,          appellant  is whistling  past  the graveyard.    Her position  is          entirely undone by the recent opinion in Sullivan v. Johnson, 628                                                   ________    _______          A.2d 653  (Me. 1993),  a case in  which Maine's  Supreme Judicial          Court interpreted "without explanation"  in precisely the  manner          that the district judge anticipated.  The Sullivan court  elected                                                    ________          to read the  statute "as a whole with a  view toward effectuating          the Legislature's purpose of encouraging  pre-trial resolution of          these claims."  Id. at  655-56.  Proceeding in this  fashion, the                          ___          court found that because the "Legislature's intent [was] to force          final disposition  of .  . . claims  [that the  panel unanimously          determines to be  without merit] short  of trial," the  statutory          language only barred  "explanation of the panel  deliberations or          proceedings."  Id. at 656.  In that vein, the court  specifically                         ___          held that  "it is  permissible for the  [parties] to  utilize [in          opening statements and-or closing arguments] the admissible panel          findings  as they would any other  piece of admissible evidence."          Id.          ___                    A federal court sitting  in diversity jurisdiction  and          called upon in that role  to apply state law is  absolutely bound          by a current interpretation of that law formulated by the state's          highest tribunal.  See Commissioner  v. Estate of Bosch, 387 U.S.                             ___ ____________     _______________          456,  464-65 (1967).   So  it  is here.   Sullivan  categorically                                                    ________                                          8          disposes of appellant's plaint.                    2.  The Erie Initiative.  Appellant also  contends that                    2.  The Erie Initiative.                        ___________________          the lower  court erred, as  a matter of federal  evidentiary law,          both in admitting the Findings  into evidence and in  foreclosing          an  opportunity for impeachment.   Though  recondite, appellant's          theory appears  to be  that section 2857  is a  state evidentiary          rule and, as such, must give way to the Federal Rules of Evidence          in a diversity  suit.  See Fed. R. Evid. 101 (explaining that the                                 ___          federal Evidence  Rules "govern proceedings" in  federal courts);          see  also Erie  R.R. Co.  v. Tompkins,  304 U.S.  64, 78  (1938).          ___  ____ ______________     ________          Since the panel's determination is hearsay, this thesis goes, the          district court bumbled  in not requiring MMC first to demonstrate          an applicable exclusion or exception to the hearsay rule in order          to justify admission of  the evidence.  And, moreover,  appellant          remonstrates, even  if the  Findings were appropriately  admitted          into  evidence,  she had  a right,  under Fed.  R. Evid.  806, to          impeach the panelists' credibility.5                    The fatal weakness  in appellant's construct lies  with          her premise that the Health Act's evidentiary strictures are mere          procedural  rules.   Authoritative  case  law  makes  clear  that          federal courts sitting in diversity jurisdiction are obligated to                                        ____________________               5Fed. R. Evid. 806 provides in pertinent part:                         When  a hearsay statement . . . has been                    admitted in evidence, the credibility of  the                    declarant  may be  attacked, and  if attacked                    may be supported, by any evidence which would                    be admissible for those purposes if declarant                    had testified as a witness.                                          9          apply  state law unless  applicable federal procedural  rules are          sufficiently  broad  to  control a  particular  issue  before the          court.    See Walker  v.  Armco Steel  Corp.,  446 U.S.  740, 749                    ___ ______      __________________          (1980); Hanna v. Plumer, 380 U.S.  460, 470-71 (1965).  In  Armco                  _____    ______                                     _____          Steel, for example, the  Supreme Court upheld the application  of          _____          Oklahoma's  tolling statute,  which  required actual  service  of          process, in  lieu of  Fed. R. Civ.  P. 3,  which provided  that a          civil action  could be commenced  by filing a complaint  with the          court.  See Armco Steel, 446 U.S. at 742-44.  The Court noted the                  ___ ___________          state's policy interest  in enforcing its statute  of limitations          and in deferring tolling until a defendant had actual notice of a          suit.   See id. at 751.   On this basis,  the Court reasoned that                  ___ ___          the Oklahoma statute was a  "statement of a substantive  decision          by  that  state,"  forming an  "'integral'  part  of  the several          policies served by  the statute of limitations."   Id. at 751-52.                                                             ___          The Court concluded that "[federal]  Rule 3 does not replace such          policy determinations," but,  rather, exists "side by  side" with          the state  statute, "each controlling its own  intended sphere of          coverage without conflict."  Id. at 752.                                       ___                    The evidentiary  provisions of Maine's  Health Act  are          similarly bound up with the state's substantive decision making -          in   this  instance,  the  state's  choice  to  encourage  early,          inexpensive  resolution  of  medical   malpractice  claims.    As          observed by  Maine's highest  court in  Sullivan, directing  that                                                  ________          unanimous  Findings be  admitted  "without explanation,"  thereby          circumventing a replay of the screening proceeding, is a rational                                          10          means of ensuring that panel proceedings will not become merely a          dress rehearsal, but  will serve to encourage  final dispositions          without the need for jury trials.  See Sullivan, 628 A.2d at 656.                                             ___ ________          Since   the   federal  Evidence   Rules  governing   hearsay  and          impeachment do  not seek to  displace the Health Act's  policy of          limiting frivolous malpractice  suits, the federal rules  and the          state statute can  peacefully coexist, each operating  within its          own sphere of influence.                     In short,  we see  no conflict.   Indeed, a  refusal to          give  effect to  the Health  Act's  evidentiary provisions  would          disserve Erie  principles by  undercutting Erie's  twin goals  of                   ____                              ____          discouraging   forum   shopping   and   eliminating   inequitable          administration of the law as  between federal and state  courts.6          See Hanna, 380 U.S. at 468; see also Armco Steel, 446 U.S. at 751          ___ _____                   ___ ____ ___________          (explaining   that   a   federal  court   sitting   in  diversity          jurisdiction  ordinarily  should  give   effect  to  the  state's          "substantive decision[s]").                    3.  Form  of Presentation.  Appellant's  last objection                    3.  Form  of Presentation.                        _____________________          to the Findings  centers on the form  of the proffer.   She avers          that  the district court  committed reversible error  in allowing                                        ____________________               6We  note in  passing  that, Erie  principles  to one  side,                                            ____          admitting the Findings  into evidence does not  seem inconsistent          with the Evidence Rules.  Since, by statute, screening panels are          administered through  the superior court, admitting  the Findings          is analogous  to allowing into  evidence the report of  a master,          Fed. R. Civ. P. 53, or the  reports of public offices or agencies          setting forth factual findings resulting from investigations made          pursuant to  law, Fed. R. Evid. 803(8)(c),  or giving effect to a          presumption respecting a  fact integral to a claim  or defense as          to which state law supplies the  rule of decision, Fed. R.  Evid.          302.                                          11          the  Findings,  in  written  form,   to  be  introduced  as  full          exhibits.7  Although appellant  never articulates the theoretical          basis for  the objection,  her central  point is apparently  that          admitting the writings  themselves, rather than merely  eliciting          testimony recounting the  Findings, violated Fed. R.  Evid. 403.8          This argument is unavailing.                    District courts  possess wide  latitude  in striking  a          balance   under  Rule  403   between  the  probative   force  and          prejudicial impact of relevant evidence.  See Onujiogu v.  United                                                    ___ ________     ______          States, 817 F.2d 3, 6 (1st  Cir. 1987) (collecting cases).  "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).  The test  is abuse of          ___          discretion, see, e.g.,  Doty v. Sewall, 908 F.2d  1053, 1058 (1st                      ___  ____   ____    ______          Cir. 1990), and we find no hint of abuse in this situation.                    Given the issues in the case, the Findings were  highly          relevant.    The  district  court,  recognizing   the  evidence's                                        ____________________               7The panel  made separate  written Findings  as to MMC,  Dr.          Taylor, and Dr. Bryce.  MMC proffered all three documents.               8Fed. R. Evid. 403 provides in pertinent part:                         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.                                          12          capacity  for  prejudice,  handled  it  gingerly,  redacting  the          proffered exhibits  by removing the  official seal  of the  state          superior court and  the court caption.  Moreover,  the court gave          an   appropriate  cautionary  instruction   to  the  jury      an          instruction  to which appellant  did not contemporaneously object          and to  which she  does not  now assign  error.   And, because  a          screening panel's findings  do not have independent  legal effect          outside the  paper on which  they are recorded, admitting  a duly          authenticated  writing  pays  appropriate  tribute  to  the  best          evidence rule.  See Fed. R.  Evid. 1002; see also R & R  Assocs.,                          ___                      ___ ____ _______________          Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984).          ____    __________________                    On  a related topic,  appellant also protests  that the          court transgressed Rule 403 when it allowed MMC to introduce into          evidence  the Findings  that concerned  Dr. Bryce and  Dr. Taylor          (neither of whom was a defendant in the federal suit).  We do not          think  that  this ruling  constituted  an  abuse  of the  court's          discretion.   Inasmuch as  appellant's case against  MMC included          theories of vicarious  liability, the acts  and omissions of  the          two physicians   MMC's agents   were called into direct question,          making the  disputed evidence  squarely relevant  to the  federal          proceedings.                    We  will not paint the lily.   All evidence is meant to          be  prejudicial; elsewise,  the proponent  would  be unlikely  to          offer  it.   It is  a  necessary corollary  of this  conventional          wisdom that evidence cannot be  kept from the jury merely because          it hurts  a party's  chances.   See Freeman,  865  F.2d at  1339;                                          ___ _______                                          13          Onujiogu,  817 F.2d at  6.  The  element that triggers  a need to          ________          exclude  evidence under  Rule  403 is  not prejudice,  but unfair                                                                     ______          prejudice.  See United States v. Rodriguez-Estrada, 877 F.2d 153,                      ___ _____________    _________________          156 (1st Cir. 1989).  No such unfairness lurks in this record.                                          C.                                          C.                                          __                                    The Deposition                                    The Deposition                                    ______________                    Appellant's  final  foray  is   a  two-pronged  assault          directed  against  the  district court's  ruling  permitting  Dr.          Bryce's  deposition testimony  to  be  placed  before  the  jury.          First, appellant argues that MMC failed to establish the doctor's          unavailability.   Second, she maintains that the testimony should          have been  excluded because the deposition was incomplete.  These          incursions lack force.                      1.    Unavailability.    The  Civil  Rules  provide  in                    1.    Unavailability.                          ______________          relevant part that  "[t]he deposition of a  witness . . .  may be          used by any party  for any purpose if  the court finds . .  . the          witness is at a greater distance than one  hundred miles from the          place of  trial or hearing."   Fed. R.  Civ. P. 32(a)(3)(B).   In          general, the  district court  has discretion  in matters of  case          management, see, e.g., Thibeault v. Square D Corp., 960 F.2d 239,                      ___  ____  _________    ______________          242  (1st Cir.  1992); In  re San  Juan  Dupont Plaza  Hotel Fire                                 __________________________________________          Litig., 859  F.2d 1007, 1019  (1st Cir.  1988), and we  think the          ______          same deference  attaches to  the court's rulings  under Rule  32.          See Oostendorp  v. Khanna,  937 F.2d 1177,  1179 (7th  Cir. 1991)          ___ __________     ______                                          14          (holding  that "the  decision to  admit  deposition testimony  is          within  the sound  discretion  of  the  district  court"),  cert.                                                                      _____          denied, 112 S. Ct. 951 (1992); Reeg v. Shaughnessy, 570 F.2d 309,          ______                         ____    ___________          317 (10th Cir. 1978) (similar).   Hence, we will not disturb  the          district court's finding that a  witness is more than one hundred          miles away, or  otherwise unavailable for  trial, absent a  clear          showing of discretion misused.                    Appellant   has  not  made  such  a  showing.    Before          authorizing  resort   to  the  deposition,  the   district  court          considered  Dr. Bryce's  statement, made  during his  deposition,          that he was soon to move to Wisconsin.  The court also considered          a letter  sent by the doctor to his attorney shortly before trial          in which  he indicated he would  be unable to leave  Wisconsin in          order  to testify.   Appellant did  not then,  nor does  she now,          dispute  that  Dr. Bryce  had  relocated, and  she  concedes that          Wisconsin is more  than one hundred miles from  the New Hampshire          border.  This  one-sided record is ample to  sustain the district          court's finding that Rule 32(a)(3)(B) had been satisfied.                    Appellant's  rejoinder  is  twofold.    Initially,  she          suggests that Rule 32(a)(3)(B) requires an evidentiary showing of          unavailability.  But the rule  itself imposes no such condition            and we  see no reason  to read such a  condition into it.   Under          ordinary circumstances, a  district court possesses the  power to          accept,  and  act upon,  a reliable  explanation of  a deponent's                                          15          whereabouts  without convening  an  evidentiary  hearing.9    See                                                                        ___          Hartman v. United States, 538  F.2d 1336, 1345-46 (8th Cir. 1976)          _______    _____________          (upholding district  court's admission of deposition  solely upon          deponent's uncontradicted  statement, seven months  before trial,          that he  lived more than  one hundred miles form  the courthouse;          noting,  inter  alia, that  deponent  had no  apparent  reason to                   _____  ____          return for trial).                      Next, appellant intimates that a witness, though at the          stated distance from  the place of trial, is  not unavailable if,          with reasonable  efforts, he might  be persuaded to attend.   But          the language  of the rule  does not permit  a court to  read this          sort  of  qualification  into  it.    Distance  is  the  decisive          criterion:   so long as  a witness is shown  to be more  than one          hundred  miles from  the  place of  trial,  the admissibility  of          deposition testimony under the  aegis of Rule 32(a)(3)(B)  is not          contingent  upon  a   showing  that  the  witness   is  otherwise          unavailable.10   See   Carey  v. Bahama  Cruise Lines,  Inc., 864                           ___   _____     ___________________________          F.2d 201, 204 n.2 (1st Cir. 1988).                                              ____________________               9Appellant  relies heavily  on Moore  v. Mississippi  Valley                                              _____     ___________________          State Univ., 871  F.2d 545 (5th Cir.  1989), a case in  which the          ___________          Fifth Circuit upheld  a district court's exclusion  of deposition          testimony  under  Rule  32(a)(3)  because  the  proffering  party          "offered nothing except  the plain assertion that  [the deponent]          was unavailable."  Id. at 552.  As recounted  above, however, the                             ___          facts in the  case at hand are crucially  different.  Whereas the          attorney in Moore "made  no effort to explain the  unavailability                      _____          or offer some  explanation to the trial court,"  id., MMC offered                                                           ___          an uncontroverted, entirely plausible explanation.               10There is, of  course, an exception for cases  in which "it          appears that the absence of the witness was procured by the party          offering the  deposition."   Fed. R. Civ.  P. 32(a)(3)(B).   This          case falls outside the boundaries of that exception.                                          16                    2.   Completeness.   Appellant's last  line of  fire is                    2.   Completeness.                         ____________          trained on the putative incompleteness of Dr. Bryce's deposition.          Before advancing  to the merits  of this assertion, we  note that          the  broad  discretionary  powers  to  manage  cases,  which  are          necessarily enjoyed by  district courts, apply to  the regulation          of discovery disputes.  See Thibeault, 960 F.2d at 242; San  Juan                                  ___ _________                   _________          Dupont Plaza, 859 F.2d  at 1019.  We believe that this discretion          ____________          extends  to   determining  whether  a  deposition  is  reasonably          complete.  Moreover,  even if it is determined  that a deposition          is not complete,  a court has the  power to allow all or  part of          the   testimony   into  evidence   if   customary   standards  of          admissibility have  been met and  if no unfairness inheres.   See                                                                        ___          Lentomyynti  Oy v.  Medivac, Inc.,  997 F.2d  364, 371  (7th Cir.          _______________     _____________          1993);  see also  Fed.  R. Evid.  611  (recognizing the  district                  ___ ____          court's control over "the manner in which deposition testimony is          presented"); Fed.  R. Civ.  P. 32(a) (providing  for use  of "any          part or all of a deposition, so far as admissible under the rules          of  evidence"  and  directing  the  district  court  to  consider          "fairness" if less than all of the deposition  testimony is to be          admitted).                     In the instant case, the court made an implicit finding          that the deposition had been completed.  We think  such a finding          is supportable.   Dr.  Bryce was examined  on November  29, 1989.          The examination was suspended after a  dispute arose anent access          to two memoranda.  Appellant  thereafter filed a motion to compel          production of the memoranda, which  the court granted on July 26,                                          17          1990.   MMC  promptly complied with  the turnover order.   A fair          reading of the memoranda in  light of appellant's line of inquiry          at the deposition  suggests that her attorneys declined to resume          the  deposition because  they  did  not  perceive  that  fruitful          queries remained to be posed.                    Even  if the deposition properly could be classified as          unfinished business, we would reject the assignment of error.  In          the  first place,  the  district  court  carefully  redacted  the          deposition to  prevent any cognizable unfairness.   In the second          place,  if appellant, after receiving the memoranda, thought that          they bore on Dr. Bryce's testimony, it was incumbent  upon her to          renotice  and  resume the  deposition  at some  point  during the          nearly  three years  that intervened  between  production of  the          memoranda  and  the start  of  trial.   We  have held  in various          contexts that a  party who does  not actively pursue  perceptible          rights in the district court is at grave risk of waiver,  and may          well be barred from asserting those rights on appeal.  See, e.g.,                                                                 ____ ____          Dow v. United  Bhd. of Carpenters &  Joiners, 1 F.3d 56,  61 (1st          ___    _____________________________________          Cir. 1993) (holding that plaintiffs  waived any right to complain          of refused discovery because, after district court declined their          initial  discovery request with leave to renew, plaintiffs failed          to make a second request); Reilly v. United States, 863 F.2d 149,                                     ______    _____________          168 (1st Cir. 1988) (finding waiver of right to challenge judge's          appointment of technical  advisor).  We see no  reason to deviate          here from  our usual  practice of denying  relief to  parties who                                          18          have slept too long upon their rights.11          Affirmed.  Costs to appellee.          Affirmed.  Costs to appellee.          ________   _________________                                        ____________________               11This practice seems  fully compatible with Civil  Rule 32.          The rule's "general principle is to require defects in the taking          of  depositions to be pointed out  promptly on pain of waiver" so          as  to "give  the  erring  party an  opportunity  to correct  the          mistake, and to prevent waste  of time and money by  a subsequent          claim  that  a deposition  must  be  suppressed because  of  some          technical  error long  ago."   8 Charles  A. Wright  & Arthur  R.          Miller, Federal Practice and Procedure   2153, at 475 (1970); cf.                  ______________________________                        ___          Fed.  R. Civ.  P. 32(d)(3)  (ordaining that  "errors of  any kind          which might be obviated, removed, or cured if promptly presented,          are waived  unless seasonable  objection thereto  is made  at the          taking of the deposition").                                          19
