43 F.3d 1 (1st Cir. 1994), 94-1258, Espeaignnette v. Gene Tierney Co., Inc.

Docket Nº:94-1258.
Citation:43 F.3d 1
Party Name:William and Rita ESPEAIGNNETTE, Plaintiffs, Appellants, v. GENE TIERNEY COMPANY, INC., Defendant, Appellee.
Case Date:December 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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43 F.3d 1 (1st Cir. 1994)

William and Rita ESPEAIGNNETTE, Plaintiffs, Appellants,


GENE TIERNEY COMPANY, INC., Defendant, Appellee.

No. 94-1258.

United States Court of Appeals, First Circuit

December 28, 1994

Heard Sept. 13, 1994.

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[Copyrighted Material Omitted]

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Brian L. Lincicome with whom Cozen and O'Connor, Philadelphia, PA, Ted Susi, and Laney and Susi, Skowhegan, ME, were on brief, for appellants.

Roy E. Thompson, Jr. with whom Elizabeth G. Knox and Thompson & Bowie, Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Plaintiffs-appellants William and Rita Espeaignnette brought this action seeking damages for the loss of William Espeaignnette's lower right arm in an accident involving a lumber-mill saw designed and manufactured by defendant-appellee Gene Tierney, Inc. ("the Company"). Following a four-day trial, a jury returned a special verdict in favor of the Company, specifically finding that the saw was not defectively designed. The district court entered judgment for the Company and subsequently denied the Espeaignnettes' post-trial motions. The Espeaignnettes now appeal, assigning error to several of the district court's evidentiary rulings. Because we hold that the district court abused its discretion in excluding evidence pertaining to subsequent modifications made to the saw by Espeaignnette's 1 employer, we vacate the judgment and remand for new trial.



In 1990, Espeaignnette's employer, the Isaacson Lumber Company ("Isaacson"), purchased a Bottom Arbor Gang Saw, or "edger," designed and manufactured by the Company. Isaacson employs the edger to "square" or "edge" slabs of raw lumber. The edger operates in the following manner: First, the operator feeds slabs of raw lumber into the edger along a roller table, passing the slabs through anti-kick fingers that prevent the slabs from kicking back towards the operator as they contact the saw blades. After passing through the anti-kick fingers, powered infeed rollers grab the slabs and pull them into the saw blades. As designed and manufactured, the area surrounding the anti-kick fingers and the infeed rollers is open and not guarded by any physical covering.

The operator controls the edger from a station located at one end of the machine. During normal operation, there is no need for the operator to approach the open space near the anti-kick fingers and the infeed rollers, except to inspect or listen for strips of "edged" wood that occasionally "hang up" in the saw-blade area. When strips become stuck in this area, the operator must stop the machine and clear the work surface or risk damaging the saw blades.

Following installation of the machine, Espeaignnette was trained to operate the edger and subsequently ran it without incident for a period of two to three weeks. According to his trial testimony, on October 11, 1990, at approximately 10:30 p.m., Espeaignnette heard a noise that he thought indicated that a sliver of wood had become stuck in the sawblade section of the edger. At this point, Espeaignnette had been working for sixteen hours, with only a half-hour lunch break. Espeaignnette testified that he walked to the side of the edger, crouched down, and peered into the blades to investigate. Espeaignnette maintained that he did not stop the edger while investigating the noise because to do so would needlessly increase downtime, explaining that the edger often emitted similar sounds that, upon investigation, did not require a shutdown.

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Espeaignnette testified that while he was crouched beside the edger, he saw a sliver of wood work free from the saw-blade area. He then attempted to stand up but, as he did so, lost his balance and stumbled towards the edger. He further testified that, as he stumbled, he reached out with his right hand to balance himself and inadvertently stuck his hand into the area of the infeed rollers, causing his right glove to become caught on a roller. As a result, his arm was crushed, pulled into the saw-blade area, and then severed below the right elbow. 2

Following the accident, Isaacson continued to use the edger to cut raw lumber. In the summer of 1993, approximately six months before trial, an Isaacson employee modified the edger by welding to it a steel plate that covered the open area by the infeed rollers and the anti-kick fingers.

Espeaignnette tried this action against the Company solely on a theory of strict liability, alleging that the edger was defectively designed and unreasonably dangerous because of the lack of physical guards covering the infeed-roller area. As co-plaintiff, Rita Espeaignnette sought compensation for loss of consortium stemming from the injuries to her husband.

Prior to trial, the Company moved in limine to exclude all evidence pertaining to Isaacson's modification of the edger, and the Espeaignnettes similarly moved to exclude evidence about the absence of comparable accidents involving edgers designed by the Company. The district court provisionally granted the Company's motion and excluded the modification evidence pursuant to Fed.R.Evid. 407 as a subsequent remedial measure, subject, however, to the condition that the Company not controvert at trial the feasibility of such a modification. 3 The court provisionally denied the Espeaignnettes' motion and, over objection, permitted the owner of the Company, Gene Tierney, to testify about the absence of reports of other accidents involving similar edgers designed by the Company.

During trial, the Espeaignnettes raised at least twice the issue of the subsequent-modification evidence. The district court declined to admit the evidence on each occurrence. Although eventually finding that the issue of feasibility had been clearly raised, the district court nonetheless excluded the evidence pursuant to Fed.R.Evid. 403 because the prejudicial impact of the evidence outweighed its probative value. 4 The Espeaignnettes made an offer of proof stating, inter alia, that they sought to call the current operator of the edger to testify that he had operated the edger both before and after its 1993 modification and that the modification had in no way inhibited the operation of the machine.

During trial, the district court also denied the Espeaignnettes' objections to the qualification of a witness for the Company as an expert in "industrial human factors" and to that witness's testimony concerning whether it was possible for Espeaignnette to have fallen into the edger as he alleged.

Following closing arguments, the district court submitted the case to the jury as a series of questions on a special-verdict form. The first question was whether the edger was "in a defective condition and unreasonably dangerous." The jury answered this question in the negative and, in accordance with the instructions on the form and the district court's oral instructions, proceeded no further. The jury did not answer the

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subsequent questions on proximate cause and assumption of risk. Subsequently, the district court entered judgment for the Company and denied the Espeaignnettes' motions for judgment as a matter of law and a new trial. This appeal followed.



The Espeaignnettes assign error to three evidentiary rulings. They contend that the district court erred in (1) excluding under Rule 403 evidence concerning Isaacson's installation of the fixed metal guard on the edger, (2) admitting evidence concerning the absence of other accidents involving similar edgers designed by the Company, and (3) qualifying a witness for the Company as an expert in "industrial human factors" and permitting the witness to testify on that subject. We discuss each argument in turn.

A. Subsequent Modification of the Edger

We begin by noting that a district court has considerable latitude in determining whether to admit or exclude evidence under Rule 403. See, e.g., Newell Puerto Rico, Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 21 (1st Cir.1994). We review these rulings only for an abuse of discretion. Daigle v. Maine Medical Ctr., Inc., 14 F.3d 684, 690 (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.' " Id. (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988)).

Our review, however, is not completely without bite. See, e.g., Kassel v. Gannett Co., 875 F.2d 935, 951-52 (1st Cir.1989). In general, "[a]buse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Independent Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988).

The Espeaignnettes argue that the district court abused its discretion in excluding pursuant to Rule 403 evidence regarding Isaacson's modification of the edger. Primarily...

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