Freund v. Fleetwood Enterprises, Inc.
| Decision Date | 07 October 1991 |
| Docket Number | No. 91-1319,91-1319 |
| Citation | 956 F.2d 354 |
| Parties | Daniel FREUND, Plaintiff, Appellant, v. FLEETWOOD ENTERPRISES, INC., et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Thomas J. Connolly with whom John C. McCurry and Connolly & McMurry, Portland, Me., were on brief, for plaintiff, appellant.
James G. Goggin with whom Patricia A. Nelson-Reade and Verrill & Dana, Portland, Me., were on brief, for defendant, appellee Stolle Corporation.
Thomas J. Quinn with whom Hewes, Douglas, Whiting & Quinn, Portland, Me., was on brief, for defendants, appellees Fleetwood Enterprises, Inc. and Fleetwood Motor Homes of Pennsylvania, Inc.
Lawrence C. Winger with whom Herbert H. Bennett and Associates, P.A., Portland, Me., was on brief, for defendant, appellee Manchester Tank & Equipment Co.
Robert M. Morris with whom Friedman & Babcock, Portland, Me., was on brief, for defendant, appellee CCI Controls, Inc.
Before BREYER, Chief Judge, BROWN, * Senior Circuit Judge, and TORRUELLA, Circuit Judge.
On September 21, 1987, Timothy Walsh died as a result of a fire that destroyed his motor home (technically called a "recreational vehicle" or "RV"). On September 20, 1989, Walsh's personal representative (the plaintiff) brought this diversity wrongful death action against the RV's maker (Fleetwood), the manufacturer of the RV's refrigerator (Stolle), and the maker and distributor of a gas detector (CCI Controls and Manchester Tank). Plaintiff claimed that a broken valve in the RV's refrigerator leaked propane into the refrigerator, from which it leaked into the RV itself (without setting off the gas detector alarm) and exploded, causing the fatal fire. The defendants replied that any such chain of events was highly improbable; they blamed the fire on gasoline, which they said Walsh brought into the RV, perhaps to clean his carpet.
Before trial, the district court granted summary judgment for the refrigerator's manufacturer, Stolle, on statute of limitations grounds. After plaintiff presented his case, the court directed verdicts for the gas detector defendants, CCI and Manchester Tank, because there was insufficient evidence that they made or sold this particular gas detector. At the end of the trial, the jury found in favor of the only remaining defendant, the RV manufacturer, Fleetwood.
Plaintiff appeals all these adverse judgments. After reviewing the plaintiff's arguments and the record, we find plaintiff's claims unconvincing. We affirm the judgments.
Plaintiff's first set of arguments focuses on the district court's decision not to permit plaintiff's expert, Wayne Buck, to testify. In effect, the court's decision to exclude that testimony sanctioned the plaintiff for having waited until the very eve of trial before telling the defendants what Buck would testify about. The plaintiff argues here that the court, in deciding that a sanction was appropriate and in choosing exclusion as a sanction, acted beyond its legal powers.
To understand why we reject these arguments, the reader must keep the following background in mind. First, the court believed that Buck's testimony could prove relevant to three different issues:
i) On February 22, 1991, eleven days after trial began, plaintiff made an explicit offer of proof in which he told the court that Buck would testify that "he did an analysis of the polystyrene composition ... found in the [RV] ... and that the polystyrene component is a solid chemical incendiary that acts as an accelerant" (the "polystyrene issue ") ii) At the same time, on February 22, 1991, plaintiff told the court that Buck would also testify that he "did a variety of gas chromatographic tests on debris" that the plaintiff had obtained from the RV, which tests revealed that that debris "did not contain gasoline" (the "plaintiff's samples issue ").
iii) The next day Buck indicated (in a court-ordered mid-trial deposition) that he also would testify that Fleetwood's test results on debris samples that Fleetwood had obtained from the RV showed so much gasoline that someone must have added gasoline to them after the fire (the "defendant's samples issue ").
Second, the initial issue, the "polystyrene issue," was not relevant to the case. The district court excluded Buck's testimony about polystyrene because, by the time of trial, the issue had evaporated. The court believed that polystyrene had nothing significant to do with the dispute, and the plaintiff does not contest that conclusion on this appeal.
Third, the parties agree that defendants learned nothing about the other two subjects of Buck's testimony until just before (or during) trial. The relevant pretrial events include the following:
i) in September 1987 the accident took place;
ii) in November 1987 plaintiff obtained his samples;
iii) in September 1989 plaintiff filed this lawsuit;
iv) in September and October 1989 plaintiff provided Rule 26(b) expert "subject matter" disclosure, which did not mention gasoline, which indicated Buck would testify about the (irrelevant) "polystyrene issue," and which added that Buck had "absolutely ... no opinions" about how the accident happened;
v) in November 1990 plaintiff learned, in some detail, about defendant's tests of defendant's samples ( gasoline to be present);
vi) in December 1990 Buck tested plaintiff's samples for gasoline; and
vii) in February 1991 defendants learned about Buck's testimony on the "plaintiff's samples" and "defendant's samples" issues; also, the trial began.
Fourth, the legal standards that govern our consideration of the exclusion of Buck's "gasoline issue" testimony are straightforward:
i) Fed.R.Civ.P. 26(e) requires a party "seasonably to supplement" information initially given to the opposing party about "the subject matter" on which an "expert witness ... is expected to testify ...,"
ii) The district court has broad legal power to impose sanctions, including exclusion, for violations of this duty, see Advisory Committee Note to Rule 26(e), and
iii) This appellate court will set aside such a sanction as outside the district court's broad legal powers only when it finds "manifest--and damaging--error." Northern Heel Corp. v. Compo Industries, Inc., 851 F.2d 456, 468 (1st Cir.1988) (citation omitted).
Hence, the legal questions now before us are whether, in respect to the gasoline issues (the "plaintiff's samples" issue and the "defendant's samples" issue), plaintiff failed "seasonably to supplement" his earlier disclosure, and, if so, whether the court's decision to exclude that testimony as a sanction, amounted to "manifest--and damaging--error." We shall explain briefly, in respect to each of the two gasoline issues, why we conclude that the district court acted lawfully.
A. The plaintiff's samples. The facts adequately support the district court's conclusion that plaintiff failed "seasonably" to supplement his disclosure in respect to Buck's failure to find gasoline in plaintiff's samples. Fed.R.Civ.P. 26(e)(1). Buck first tested those samples in December 1990. Plaintiff made his first effort to supplement on February 7, 1991, four days before trial. And that supplementation simply said that "Buck has performed tests ... on plaintiff's exhibits 1-23 ..., all contained in metal cans," and that "no gasoline was found." It gave no details that would help defendants assess the validity of the testing; and it misleadingly suggested Buck would rely on negative tests of all the samples (although, in fact, he intended to rely only on the samples taken from the RV's dinette area). On the day of trial plaintiff gave the defendants an additional three-page document, but it added nothing to the earlier disclosure. The defendants did not learn of the substance of Buck's testimony until they deposed him on February 23, in the midst of trial. In our view, the district court could fairly conclude that plaintiff's February 7 and 11 disclosures were too little and too late; and that the disclosure by means of the February 23 deposition, while adequate in scope and substance, occurred much later and certainly was not "seasonable."
The appropriateness of excluding Buck's testimony as a sanction presents a closer question, but one that we must resolve in the district court's favor. On the one hand, plaintiff's disclosure delay potentially prejudiced the defendants significantly. Had they known about Buck's testimony sooner, they might well have decided to counter it, through cross-examination or other expert testimony, suggesting, for example, that gasoline in samples can evaporate after three years, or that the tested samples came from a special place in the RV (under the floor boards in the dinette), and were consistent with gasoline being present elsewhere. Such refutation might well have required time to prepare and experts to obtain. A continuance on the eve of trial would have offered defendants only a Hobson's choice of inadequate preparation or costly delay; and a continuance midway through the trial could have meant losing the benefits of previously cross-examined witnesses as well. At the same time, plaintiff presented no plausible excuse for his delay. To the contrary, it is unclear why he waited several years to have Buck test his own samples.
On the other hand, the exclusion deprived plaintiff of potentially valuable evidence. Yet, the record suggests that prepared cross-examination and additional experts (who might elaborate, for example, on the fact that the tested samples all came from under floorboards in one area) could have reduced that value significantly.
On balance, we believe that the district court could reasonably have concluded that plaintiff improperly delayed disclosure, leading to surprise and prejudice, without any practical cure. Under these circumstances, we can find no "manifest" error in the district court...
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