U.S. Fidelity & Guar. Co. v. Baker Material Handling Corp.

• Decision Date: 07 June 1995
• Docket Number: No. 94-2164,94-2164
• Citation: 62 F.3d 24
• Parties: 42 Fed. R. Evid. Serv. 1278, Prod.Liab.Rep. (CCH) P 14,298 UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Plaintiffs, Appellants, v. BAKER MATERIAL HANDLING CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

62 F.3d 24

42 Fed. R. Evid. Serv. 1278, Prod.Liab.Rep. (CCH) P 14,298

UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Plaintiffs, Appellants, v. BAKER MATERIAL HANDLING CORPORATION, Defendant, Appellee.

No. 94-2164.

United States Court of Appeals, First Circuit.

Heard June 7, 1995.

Decided Aug. 9, 1995.

Michael J. McCormack, with whom Marc LaCasse and McCormack & Epstein, Boston, MA, were on brief, for appellants.

David A. Berry, with whom William L. Boesch and Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA, were on brief, for appellee.

Before SELYA and CYR, Circuit Judges, and SCHWARZER, ^* Senior U.S. District Judge.

CYR, Circuit Judge.

Plaintiffs United States Fidelity & Guaranty Company ("USF & G") ¹ and Jennifer Chapman, administratrix 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 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 dangerous. Following the removal of the action to federal court, see 28 U.S.C. Secs. 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. Consequently, urged Baker, the BRT-design would be irrelevant to the 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 appellants 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 litigation, and with Boston Edison records, indicating that Baumann's testimony on both Notwithstanding their denudation of Baker's discovery lapses, appellants elected not to request sanctions or a continuance 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 interrogatories.

points was inaccurate, as Baumann was forced to concede. ²

On appeal, appellants attack the district court judgment, 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 DISCUSSION

A. Appeal from the Judgment

The district court order precluding the BRT-design evidence is reviewed for abuse of discretion. Espeaignnette v. 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 dangerous. 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 modification 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 dissimilarities. First, both cases implicate Rule 403 rather than Rule 407, though for different reasons. Espeaignnette noted that Rule 407 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 district court found that the BRT was not sufficiently 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 XTR which injured Chapman. See also infra p. 28.

The Raymond case, supra, provides sturdy support for the district court ruling. ³ It involved a claim that a sideloader 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 following explanation: "the introduction of evidence of pre-accident design modifications not made effective until after the manufacture 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...