Fusco v. General Motors Corp.

• Citation: 11 F.3d 259
• Decision Date: 09 September 1993
• Docket Number: Nos. 92-2473,93-1801,s. 92-2473
• Parties: 38 Fed. R. Evid. Serv. 677, Prod.Liab.Rep.(CCH)P. 13,786 Carol Gagne FUSCO, Plaintiff, Appellee, v. GENERAL MOTORS CORPORATION, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 259

11 F.3d 259

38 Fed. R. Evid. Serv. 677, Prod.Liab.Rep.(CCH)P. 13,786

Carol Gagne FUSCO, Plaintiff, Appellee, v. GENERAL MOTORS CORPORATION, Defendant, Appellant.

Nos. 92-2473, 93-1801.

United States Court of Appeals, First Circuit.

Heard Sept. 9, 1993.

Decided Dec. 6, 1993.

Thomas J. Sweeney, Pittsburgh, PA, with whom Howard B. Myers, Concord, NH, Terrence E. Haggerty and Bowman and Brooke, Detroit, MI, were on brief, for defendant, appellant.

Robert K. Mekeel with whom Law Offices of Joseph F. McDowell, III, P.A., Manchester, NH, William J. Murphy, Robert T. Shaffer, III and Murphy & Shaffer, Baltimore, MD, were on brief, for plaintiff, appellee.

Before BOUDIN, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

BOUDIN, Circuit Judge.

Carol Fusco was injured in a car accident and brought suit against General Motors, the car's manufacturer. A jury awarded Fusco $1 million in damages and General Motors has appealed, challenging rulings on evidence and discovery made by the district judge. We affirm.

I.

On December 15, 1986, Fusco was driving her car, a Chevrolet Chevette, near Pelham, New Hampshire. Her car suddenly left the roadway, slid across an ice-covered embankment, and hit a telephone pole somewhere along the front left side of the car. Fusco was injured.

Fusco brought suit against General Motors in state court in New Hampshire, claiming that a key component in the steering system--the front left "ball stud"--had broken from metal fatigue and caused the disaster. ¹ General Motors removed the case to federal district court and took the position that the ball stud had not been the cause of the accident but rather had fractured when the car hit the telephone pole. A jury trial, begun on July 7, 1992, resulted in an evenly divided hung jury, and the district court promptly ordered a second trial for November 16, 1992.

At the second trial Fusco offered eyewitness testimony that her car had abruptly veered off the highway and collided with a telephone pole. A state trooper who arrived first at the accident testified that the car was resting against the pole near the hinge pillar on the driver's side, a location between the door and the left front fender. Fusco offered two experts (Robert Walson and Carl Thelin) who, based in part on this testimony and their examination of the broken ball stud, concluded that metal fatigue had caused the stud to break, causing the steering apparatus to fail and the car to veer into the pole.

Walson, a metallurgist, testified that the surface of the broken ball stud taken from Fusco's car was characteristic of a fatigue, rather than an impact, fracture. He supported his opinion in several ways including his pretrial examination of the surface of the ball stud under a scanning electron microscope; he was fiercely cross-examined by General Motors about this examination. Thelin, an automotive engineer, testified that General Motors' design and quality control of the ball stud were inadequate. Based on partial reconstruction of the accident, he also challenged General Motors' argument that the telephone pole impact could have broken the ball stud.

General Motors' case included testimony from its expert Jerry Chiddister who reconstructed the accident based on his experience with many crash tests. In his view, the car had "sideslipped" into the telephone pole, causing the car to slide along the pole starting at the front left fender and ending with the pole lying next to the door hinge column. He opined that on its travel down the side of the car, the pole hit the front left tire and the impact broke the ball stud, a predictable occurrence given the estimated speed of the car. Had the stud broken before the car veered, Chiddister said that there would have been a heavy black tire mark on the road because the uncontrolled tire would have dragged as the car slid off course.

Kirk Ulman, another General Motors expert, testified that he had examined the ball stud itself. He explained why the location of the break (at the neck of the stud), the surface of the break (grainy with chevron marks), and other characteristics meant that impact and not fatigue was the cause. James Willis, who worked in General Motors' facility that made the steering gear, testified to quality control and the nature of simulated fatigue fractures. Ray Schultz, a metallurgist, confirmed Ulman's testimony on key points.

The jury rendered a verdict in favor of Fusco and awarded her $1 million in damages. General Motors then appealed. In its brief General Motors does not challenge the sufficiency of Fusco's evidence but confines itself to contesting several evidentiary and discovery rulings, rulings that can only be understood against the backdrop of the testimony already described. Although these claims of error are not frivolous, we do not think that any of them warrants further proceedings.

II.

General Motors' first claim on appeal is that the district court erred in ruling, prior to the first trial, that two videotapes--the "driving tapes"--were inadmissible. The main tape made in 1992 has two parts. In the indoor part, Ulman used a car mounted on a lift to display the function of the ball stud and tie rod and showed how in this demonstration the connection between the stud and the tire wheel or axle had been altered in the test vehicle so that the stud could be released deliberately from inside the car.

In the outdoor part, filmed at a General Motors test track, Ulman drove the Chevette while Willis, sitting in the passenger seat, intentionally disconnected the tie rod from the tire wheel. The film showed that, when the left wheel finally separated from the rod, the wheel flopped out of alignment with the right wheel and dragged on the highway apparently creating a long black skid mark. The car did not veer out of control or hit the track barrier. The other tape, made in 1986, simply showed a similar test track demonstration with a different driver and passenger. Thus, there is no need for an independent discussion of this tape.

When General Motors produced the tapes to Fusco in June 1992, shortly before the first trial, Fusco made a motion in limine to exclude them, arguing that the test track conditions did not duplicate the conditions that existed at the time of the actual accident. In an oral ruling on July 8, 1992, the trial judge granted the motion. Although General Motors argues that the exclusion of the tapes was error, it did not seek to offer the tapes at the second trial.

Seizing on this omission, Fusco argues that General Motors has waived its right to argue that the exclusion was error. Fusco points to cases holding that an in limine ruling on evidence may not be reviewed on appeal unless the offer or objection is renewed when evidence is actually presented at trial. This court has made general statements to this effect, e.g., United States v. Reed, 977 F.2d 14, 17 (1st Cir.1992), in cases where the in limine motion to exclude was denied and the opponent of the evidence failed to renew the objection at trial. We have found no case in this circuit, however, where an in limine motion to exclude was granted and the proponent of the evidence, by failing to renew the offer at trial, was found to have waived the issue.

Where an objection to evidence has been overruled in limine, it makes sense to require that the objection be renewed at trial. However definite the denial of the motion to exclude prior to trial, it is child's play for the opponent of the evidence to renew the objection when the evidence is actually offered; and requiring this renewal gives the trial judge a chance to reconsider the ruling with the concrete evidence presented in the actual context of the trial. The only criticism one might offer of the requirement is that the Federal Rules of Evidence say nothing about a second objection, ² but any practiced trial lawyer knows that much of the law of evidence is not contained in these written rules.

On the other hand, where the motion in limine is granted, and the proponent of the evidence is told that the evidence will not be admitted, the situation is different. To require that the evidence be offered again at trial would certainly give the trial court a second chance, but doing so can hardly be described as easy: on the contrary, the proponent would have to engage in the wasteful and inconvenient task of summoning witnesses or organizing demonstrative evidence that the proponent has already been told not to offer. Indeed, in many cases the prior grant of the in limine motion would make it improper to call such witnesses without prior permission. All the proponent could do would be to line up the witnesses at trial and then ask permission.

Although a symmetrical rule may be preferable if all else is equal, all else is not equal here. Where a court rules in limine that certain evidence is excluded but the ruling is merely tentative or qualified, then the proponent might well have to offer the evidence at trial in order to preserve an appeal on the issue. Fed.R.Evid. 103(a). But where the pretrial proffer is adequate and evidence is excluded unconditionally by a pretrial order, then we think that the proponent has preserved the issue for appeal and (other circumstances being unchanged) need not bring the witness to court and proffer the evidence again at trial. See McQuaig v. McCoy, 806 F.2d 1298, 1301-02 (5th Cir.1987). ³ The result is the same here where the in limine order preceded the first trial because no one disputes that the same order governed the second trial.

Needless to say, most district judges are very cautious about making a definitive ruling in limine that evidence will not be received at trial. Trial judges know better than most that many issues are best resolved in context and only when finally necessary. But here, as happens from time to time, the trial judge did rule definitively that the evidence would not be admitted. The...