

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1345

                     ROBERT J. SACRAMONA,

                    Plaintiff, Appellant,

                              v.

                 BRIDGESTONE/FIRESTONE, INC.,
                    and THE BUDD COMPANY,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                         

                            Before

                     Selya, Circuit Judge,                                                     

                Aldrich, Senior Circuit Judge,                                                         

                  and Boudin, Circuit Judge.                                                       

                                         

Michael K.  Gillis with whom Gillis &amp; Bikofsky, P.C. was on briefs                                                                
for appellant.
Francis H.  Fox with  whom John  R.  Skelton and  Bingham, Dana  &amp;                                                                              
Gould LLP were on brief for appellee Bridgestone/Firestone, Inc.                 
Edward M.  Kay  with whom  Michael  W.  Duffy, P.  Scott  Ritchie,                                                                             
Clausen  Miller, P.C.,  Robert M.  Spence, Assistant  General Counsel,                                                 
Mark R. Karsner and Karsner &amp;  Meehan, P.C. were on brief for appellee                                                   
The Budd Company.

                                       

                      February 13, 1997
                                       

     BOUDIN, Circuit Judge.  Robert  Sacramona, the plaintiff                                      

in this  diversity action, appeals from  the district court's

grant of summary judgment against him.  His claims arose from

an accident that occurred when Sacramona sought to mount  and

inflate     a     tire     manufactured      by     defendant

Bridgestone/Firestone,  Inc.  on   a  wheel  manufactured  by

defendant, The  Budd Company.   The  appeal is essentially  a

challenge to the district  court's rulings on the destruction

or  loss   of  evidence   and  resulting  prejudice   to  the

defendants.

     The facts  are as follows.   On May 4, 1988,  a customer

drove his van into  the Economy Mobil gas station  for repair

of  a leaking  tire.  Sacramona,  the station's  new manager,

removed the  tire and decided  to replace rather  than repair

it.   Because  the station  did not  have an  appropriate new

tire,  Sacramona selected a used, 16-inch tire from a rack of

tires at  the station  as a temporary  replacement, intending

later to get a new tire for the customer.

     The replacement tire  bore warnings  that it  was to  be

used only  with a  16-inch wheel.   Sacramona later  admitted

that he did not check the  diameter of the wheel rim; he said

that he chose a 16-inch tire because the tire that he removed

was  also 16 inches.  But the replacement tire apparently did

not fit  the  wheel,  which  Sacramona now  says  was  16-1/2

inches.  After Sacramona struggled to mount the tire--using a

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tire mounting machine and lubricant, striking the tire with a

hammer,  and bouncing  it on  the ground--the  tire allegedly

exploded as  he again  attempted to  inflate it,  causing him

numerous injuries.

     Sacramona  was  taken  to  the  hospital  by  ambulance.

Another service station employee  put the damaged replacement

tire  on the  wheel without  inflating it,  and  the customer

drove  back home  very slowly  on the  uninflated tire.   The

customer subsequently had the  wheel and damaged tire removed

from his van and  left them unprotected in his  outdoor yard.

In August  1988, Sacramona's  attorney obtained the  tire and

wheel.

     Around February 1, 1989, the attorney gave both the tire

and wheel to an expert consulting engineer, Dyer Carroll, who

examined  them and  then sent  them to  Sacramona's liability

expert,  Dr.  Alan Milner,  on September  30,  1991.   In the

meantime,  on May 3,  1991, Sacramona filed  his complaint in

this  case,   one  day  before  the   three-year  statute  of

limitations expired, asserting tort and warranty claims.  His

is  theory is this:   that the automotive  industry knew that

there was a risk  of harm from mismatching tires  and wheels,

and  that the wheel, tire, or both could have been designed--

over and above the  warnings on the tire--to reduce  the risk

that such a dangerous mismatch would occur.

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     By the time of  the lawsuit, the Mobil station  had been

sold  and  many of  its  contents  were  gone, including  the

original  leaking tire,  the  mounting machine,  and  various

safety  or equipment  manuals  and documents.   In  addition,

during  his  deposition,  Milner  said  that  the  wheel  had

undergone a  "somewhat destructive"  examination and  that he

understood from Sacramona's lawyer that Carroll had conducted

an extensive cleaning of  the wheel.  It was  thus impossible

to check for markings on  the inside of the wheel that  might

have  revealed whether  (as  Sacramona claimed)  the original

leaking  tire had been a  16-inch tire mismatched  with a 16-

1/2-inch wheel.

     After   discovery,  the  defendants  moved  for  summary

judgment  on  several  grounds,  asserting  inter  alia  that                                                                   

critical  evidence had been destroyed in  the cleaning of the

wheel.   In opposition, Sacramona attached  a brief affidavit

from Carroll  denying that  he had destroyed  such evidence.1

The district court ruled that evidence of the wheel should be

excluded,  finding  that   defendants'  "experts  have   been

deprived  of the  opportunity to  examine relevant,  possibly

dispositive evidence  before its  material alteration."   The

                                                    

     1Carroll's  own  deposition  testimony,  apparently  not
called  to  the district  court's  attention  at this  stage,
revealed  that Carroll's son had assisted in the cleaning but
denied that anyone had destroyed evidence.

                             -4-                                         -4-

trial judge treated  the wheel's exclusion  as fatal to  both

the negligence and warranty claims.

     The district court also  granted summary judgment to the

defendants on Sacramona's  warranty claims on  an independent

ground.  Sacramona  had not notified Firestone  of his claims

until  three years after the  accident; and Budd  did not get

notice for three more months (service of the complaint having

been delayed).  The district court ruled  that the defendants

had been prejudiced by  this delay because evidence had  been

lost, and that the  warranty claims were therefore  barred by

Mass. Gen. Laws ch. 106,   2-318.

     Sacramona  has now  appealed, challenging  both rulings:

the dismissal of both  claims because of damage to  the wheel

and  the  dismissal of  the  warranty  claim for  prejudicial

delay.   We address each asserted error in turn, applying the

standard  of  review fitting  the  specific  issue.   Broadly

speaking, propositions of law  are examined de novo, findings                                                               

of fact are reviewed under the clear error standard, and most

remaining issues  (e.g., applying  multiple factors to  known                                   

facts)  are tested for "abuse of discretion."   See generally                                                                         

United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986).                                   

     1.   Under  settled  authority, the  district court  has

inherent power  to exclude evidence that  has been improperly

altered  or damaged by a party where necessary to prevent the

non-offending  side from suffering unfair prejudice.  Unigard                                                                         

                             -5-                                         -5-

Sec.  Ins. Co. v. Lakewood Eng'g  &amp; Mfg. Corp., 982 F.2d 363,                                                          

368 (9th  Cir. 1992);  Headley v. Chrysler  Motor Corp.,  141                                                                   

F.R.D.  362, 365 &amp; n.13 (D. Mass. 1991).  Although deterrence

may play a role, the primary aim is remedial, at least absent

willful  destruction.   This  power is  a  companion to,  but

somewhat different in effect  from, the doctrine that permits

an adverse inference from one side's destruction of evidence.

22  C. Wright &amp;  K. Graham,  Federal Practice  and Procedure:                                                                         

Evidence   5178, at 153-59 (1978).                    

     Sacramona's first argument against the exclusion of  the

wheel on grounds  of prejudicial damage is that  the district

court "did not weigh the evidence in the light most favorable

to the  non-moving plaintiff" and therefore the  issue had to

be  submitted to  the jury.   Sacramona  says that  a factual

dispute  exists  as  to  whether any  such  damage  occurred,

"particularly in  light of the sworn  deposition testimony of

Dyer  E. Carroll, . . .  who stated that he never scraped any

evidence  from the  wheel  or cleaned  it  with any  abrasive

material."

     The  request for a jury rests on a misunderstanding.  It

is  familiar  law  that   the  district  judge  decides  most

preliminary  factual  issues that  arise  in  determining the

admissibility of evidence.   Fed. R. Evid. 104(a).   The main

exception  is that  under  Fed. R.  Evid.  104(b), issues  of

conditional relevance  are normally  submitted  to the  jury.

                             -6-                                         -6-

Sacramona  invokes the  latter rule,  arguing that  the issue

whether  the  wheel   had  been  damaged  was  an   issue  of

conditional relevance that should  have been submitted to the

jury.    

     The  district  court  said  that  the  wheel  was  being

excluded,  in the alternative, both as  a sanction for damage

to it and because the damage made the wheel irrelevant.   But

in fact  the  alleged damage  to  the wheel's  inner  surface

merely prevented  one possible use of the wheel--to show that

the original  tire was or was  not 16 inches.   The wheel, or

testimony about  it, remained  relevant to prove  whether the

wheel  itself  was  16-1/2  inches, which  was  one  critical

premise of Sacramona's mismatch theory.  Thus, the only basis

for exclusion of  the wheel was prejudicial  damage, an issue

that Rule 104(a) reserves to the trial judge.

     There  is  more  force  to Sacramona's  claim  that  the

district  court may have  erred in deciding  that Carroll had

cleaned  the wheel.    In moving  for  summary judgment,  the

defendants relied upon several different admissions by Milner

in  his deposition,  adding up  to the  following:   that the

inside  of   the  wheel   had  been  cleaned,   removing  the

possibility of recovering  useful evidence; that  Sacramona's

counsel had identified Carroll as the source of the cleaning;

and that Milner had sought to obtain photographs of the wheel

prior to cleaning but none had been taken by Carroll.

                             -7-                                         -7-

      In  opposition,  Sacramona   countered  with  a   brief

affidavit  of Carroll that he had not cleaned any substantial

portion of the inside of the wheel.  Sacramona argued on this

basis (mistakenly) that the issue was one for the jury.   But

in any event the affidavit was not much of an answer:  Milner

said  that  the inside  of the  wheel  had been  cleaned; and

whether  or not Carroll had done it, the wheel had admittedly

been in the custody  of the plaintiff's counsel or one of his

experts since it was recovered from the customer's backyard.

     It  is thus  not entirely  surprising that  the district

court  ruled  that  the  plaintiff was  responsible  for  the

damage.  At this  point, Sacramona offered new evidence:   on

his motion for reconsideration, a new affidavit was filed  by

Milner, saying  that he  had been  misunderstood and  had not

testified  that the  inside  of the  wheel had  been cleaned.

Sacramona's counsel also filed an affidavit, which generously

could be read to assert that his law firm had given the wheel

to Carroll and retrieved it unaltered.

     But Milner's affidavit did not squarely dispute that the

wheel  had been cleaned; and in denying that Carroll had done

the cleaning, the Milner  affidavit squarely contradicted his

own prior  deposition without explanation.   As for counsel's

affidavit,  it made  no effort  to deny  or explain  Milner's

deposition  testimony  that  counsel  had  told  Milner  that                                                

Carroll  had cleaned  the wheel.   Taking  the matter  on the

                             -8-                                         -8-

deposition testimony  and affidavits, we are  not prepared to

rule that the district court's finding of damage by plaintiff

was clear error.

     In  our  view, it  would have  been  sounder to  hold an

evidentiary hearing on the issue of damage and responsibility

for it, at least when on reconsideration it became clear that

the issue was murky.  If at this stage Sacramona had squarely

requested such a hearing, it might well have been an abuse of

discretion to deny it.  See General Contracting &amp; Trading Co.                                                                         

v. Interpole, Inc., 899  F.2d 109, 115 (1st Cir.  1990).  But                              

there is no  single mode of resolving factual  disputes under

Rule  104(a),  and  we  will  not  ordinarily  reverse  on  a

procedural objection  never made.  Aoude v.  Mobil Oil Corp.,                                                                        

892 F.2d 1115, 1120 (1st Cir. 1989).

     Sacramona's  next  argument   is  that   if  there   was

destruction, it was  not done  in bad faith.   Certainly  bad

faith  is a  proper and  important consideration  in deciding

whether  and  how  to   sanction  conduct  resulting  in  the

destruction of evidence.  But bad faith is not essential.  If

such  evidence is  mishandled through  carelessness, and  the

other side is prejudiced, we think that the district court is

entitled  to consider imposing sanctions, including exclusion

of the evidence.  See Nation-Wide Check Corp., Inc. v. Forest                                                                         

Hills  Distrib., Inc.,  692  F.2d 214,  219 (1st  Cir. 1982);                                 

                             -9-                                         -9-

Unigard, 982  F.2d at 368  n.2; Headley, 141 F.R.D.  at 365 &amp;                                                   

nn. 13-14.

     Less need  be said about Sacramona's  further claim that

any  evidence lost from damage to the wheel was evidence that

could only have favored the plaintiff.  Yes, if the wheel had

been  undamaged, it  might have  helped Sacramona  by showing

marks  indicating that the original  leaking tire had been 16

inches.  But the absence of such marks, had the tire not been

cleaned, would  have helped the defendants  by suggesting the

opposite.   Plainly, this is not  a case in which  we can say

that the lost evidence could only have helped Sacramona.

     2.  Sacramona's final argument addressed to the sanction

presents a quite  different and more  troubling concern.   In

Sacramona's  petition for  reconsideration, he  argued (among

many other  points) that a proportionate  sanction for damage

to the wheel would merely prevent Sacramona from arguing that

the original tire was  16 inches.  He also asserted  that his

design defect  claim remained viable, even if no 16-inch tire

had been on the  wheel when it was  brought into the  service

station.  

     The defendants' response in  the district court, renewed

on  appeal,  is  that  Sacramona's theory  of  design  defect

depends  on a showing that  the injury in  this case resulted

from  an attempt  to place  a 16-inch  tire on  a 16-1/2-inch

wheel.  And, say  the defendants, the exclusion of  the wheel

                             -10-                                         -10-

(as a sanction for damaging the evidence) also should prevent

any proof  that the wheel was 16-1/2 inches.  In the district

court's own words at the time of its original ruling:

     As  a  result of  this  exclusion  [of the  wheel],
     plaintiff will be unable to produce any evidence or
     testimony that  a 16.5  inch wheel was  involved in
     the  accident or  that it  was defective.   Because
     Sacramona's  claim is  premised  entirely upon  his
     unprovable allegation  that a 16-inch  tire was  in
     dynamic service with a 16.5-inch wheel, there is no
     genuine   issue  of   material   fact  to   support
     Sacramona's    allegations    and,    consequently,
     defendants are entitled to summary judgment.

     The problem with this  reasoning, as we see it,  is that

it gives the defendants a sanction that goes well beyond what

is  necessary to cure the  prejudice.  Accepting the district

court's  finding  of damage  by  plaintiffs  to the  interior

surface  of  the  wheel,  the  defendants  were prejudicially

hindered in rebutting Sacramona's claim that he had removed a

16-inch tire from  the wheel.  A commensurate  sanction might

have included  an order barring Sacramona  from claiming that

the original tire was 16 inches.

     But  neither  the  district  court  nor  the  defendants

explain  why any broader sanction was needed to undo the harm

caused  by  the wheel's  cleaning.   In  fact,  one defendant

apparently  urged  the   more  limited   sanction--precluding

Sacramona's claim that the original tire was 16 inches--as an

alternative to dismissal.   And there is no finding  that the

damage was  willfully intended  to deprive the  defendants of

                             -11-                                         -11-

helpful evidence, arguably a  basis for a sanction  that does

more than undo the harm.

     Nevertheless, a narrowing of the sanction would not have

saved  the negligence  claim against  the defendants.   Under

Massachusetts law, contributory negligence by the victim is a

bar to any recovery if it represents  more than 50 percent of

the total negligence on both sides.  Mass. Gen. Laws ch. 231,

  85.   Whether or not the wheel or tire might have been more

safely  designed,  it  would  be  patent  negligence  by  the

plaintiff to select a  16-inch tire as a  replacement without

some good reason to think that the wheel was also 16 inches.

     Sacramona's only  asserted basis  for selecting the  16-

inch  replacement was  that the leaking  tire taken  from the

wheel was a  16-inch tire, presumably based  on its labeling.

If Sacramona were precluded from making that claim, a finding

of  serious negligence  on Sacramona's  part could  hardly be

avoided.    Indeed,  Sacramona  would  appear  to  be  doubly

negligent:  first in  selecting the 16-inch tire without  any

basis  for doing so and,  second, in his  repeated efforts to

seat and  inflate  the tire  even  when failure  showed  that

something was wrong.  Thus, even if the sanction were limited

as Sacramona suggests, his negligence claim would still fail.

We therefore affirm summary judgment on this claim.

     The   more   limited   sanction,  however,   would   not

necessarily   preclude  the  warranty  claim.    Contributory

                             -12-                                         -12-

negligence is not  an automatic defense  to a warranty  claim

under Massachusetts  law.   Colter v. Barber-Greene  Co., 525                                                                    

N.E.2d  1305, 1313-14 (Mass. 1988).  This, in turn, brings us

to the district court's alternative ground for dismissing the

warranty claim.

     3.    Neither  side   disputes  that  Massachusetts  law

embodies a notice  requirement for warranty  claims.  As  the

rule has  been formulated,  a plaintiff must  give reasonably

prompt  notice  of  his   warranty  claim  to  the  potential

defendant; if he fails to do so, and the defendant is thereby

prejudiced,  the  warranty claim  is  barred  even  if it  is

brought within  the statute of limitations.   Although merely

implied by a Massachusetts statute, Mass. Gen. Laws ch.  106,

  2-318,  case law  has fleshed  out the  notice requirement.

Castro v. Stanley Works,  864 F.2d 961, 963 (1st  Cir. 1989);                                   

Cameo  Curtains, Inc. v. Philip  Carey Corp., 416 N.E.2d 995,                                                        

998 (Mass. App. Ct. 1981).

     Whether notice  is unreasonably delayed can  be a thorny

issue but, in this case, undue delay is obvious and Sacramona

does  not  even  argue to  the  contrary.    And assuming  an

unreasonable  delay  in  notice,  the  prejudice  showing  is

relatively easy:   it is enough that the delay  may well have

deprived  the defense  of  useful evidence.    No showing  is

required that lost evidence would inevitably have altered the

                             -13-                                         -13-

outcome.   Castro, 864 F.2d  at 964.   In  short, the  notice                             

requirement has real teeth.

     The  reason  for  this  rule in  Massachusetts  is  that

warranty  liability  combines features  that  place potential

defendants  at  serious  risk:   strict  liability,  lack  of

privity, and a statute  of limitations that may run  not from

the sale but from the injury.  Cameo Curtains, 416 N.E.2d  at                                                         

997.   As a  counterweight, the requirement  of prompt notice

allows the  defendant to  gather evidence in  timely fashion;

without such notice, a defendant could easily be surprised by

a lawsuit many years after selling its products.  Cf. Castro,                                                                        

864 F.2d at 963.

     In the present case, notice was plainly delayed; and the

district court  found that  the requisite prejudice  had been

shown by the defendants.  On appeal, Sacramona  contests this

latter  finding   on  two  related  grounds:     first,  that

prejudice,  in this context, is  an issue for  the jury under

Massachusetts law;  and, second,  that the district  court in

finding  prejudice  resolved   disputed  issues  on   summary

judgment without giving the  benefit of doubts and inferences

to the non-moving party.

     Massachusetts does  treat the  defense as a  jury issue,

Henrick v.  Coats Co.,  Inc., 458  N.E.2d 773,  774-75 (Mass.                                        

App.  Ct. 1984),  and--regardless  of whether  this  practice

                             -14-                                         -14-

would be binding on a federal court2--we ourselves treat as a

jury  issue  fact  questions   presented  by  a  statutes  of

limitation defense, Villarini-Garcia v. Hospital Del Maestro,                                                                         

Inc., 8 F.3d 81, 84 (1st Cir. 1993), which offers  an analogy                

to the notice requirement.   But the question remains whether

a reasonable  jury would still  have been  compelled to  find

prejudice here.

     We review such determinations de novo, assuming that the                                                      

jury would  credit the non-movant's version of events.  E.g.,                                                                        

Continental Ins. Co. v.  Arkwright Mutual Ins. Co.,  102 F.3d                                                              

30, 33 n.4 (1st Cir. 1996).  Yet, even if the jury found that

Carroll had not  caused prejudicial damage to  the wheel, the

loss  of the remaining evidence would be beyond dispute:  the

original  leaking tire,  the other  wheels and  tires on  the

customer's van,  and the  equipment in the  garage, including

the  tire changer, the pressure gauge, and the manuals.  This

material  might have  been  salvaged if  Sacramona had  given

prompt notice to the  defendants after the accident; instead,

he waited three years.

     The original tire itself,  without more, could have been

very helpful evidence.  If it had proved to be 16-1/2 inches,

                                                    

     2The extent to which state jury practice binds a federal
court in a diversity case  involves consideration of the Erie                                                                         
doctrine,  the  Rules  of   Decision  Act,  and  the  Seventh
Amendment.   See  generally  Byrd v.  Blue Ridge  Rural Elec.                                                                         
Coop., 356 U.S.  525 (1958); Herron v. Southern  Pacific Co.,                                                                        
283 U.S. 91 (1931).  We need not pursue the subject here.

                             -15-                                         -15-

this  might have  persuaded the  jury that  the cause  of the                                                                 

accident was  Sacramona's own conduct rather  than any design

defect.   See Colter, 525 N.E.2d  at 1312.  Of  course, since                                

contributory  negligence is  not  a defense  to the  warranty

claim, the jury  would have had some  latitude.  But  to show

prejudice based  on a lack  of notice, the  defendants needed

only to prove  that evidence  was lost that  might well  have

helped them, and that they have done. 

     In fact,  on  appeal Sacramona  makes relatively  little

effort  to  show  how  a  jury  could  have  failed  to  find

prejudice.    His  factual  appraisal  of  lost  evidence  is

confined to question  whether the wheel was  damaged; for the

rest,  his  brief simply  asserts  that prejudice  is  a jury

issue.  Indeed, it is--but only where a reasonable jury could

decide the issue either  way.  Here, given the  low threshold

for the  showing  and  the admitted  loss  of  evidence,  the

outcome on this issue was inevitable.

     Affirmed.                          

                             -16-                                         -16-
