62 F.3d 24 (1st Cir. 1995), 94-2164, United States Fidelity & Guar. Co. v. Baker Material Handling Corp.

Docket Nº:94-2164.
Citation:62 F.3d 24
Party Name:UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Plaintiffs, Appellants, v. BAKER MATERIAL HANDLING CORPORATION, Defendant, Appellee.
Case Date:August 09, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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62 F.3d 24 (1st Cir. 1995)


Plaintiffs, Appellants,



No. 94-2164.

United States Court of Appeals, First Circuit

August 9, 1995

Heard June 7, 1995.

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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.

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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.



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...

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