Sacramona v. Bridgestone/Firestone, Inc.

• Decision Date: 06 November 1996
• Docket Number: No. 96-1345,96-1345
• Citation: 106 F.3d 444
• Parties: 46 Fed. R. Evid. Serv. 541, Prod.Liab.Rep. (CCH) P 14,872 Robert J. SACRAMONA, Plaintiff, Appellant, v. BRIDGESTONE/FIRESTONE, INC., and The Budd Company, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 444

106 F.3d 444

46 Fed. R. Evid. Serv. 541, Prod.Liab.Rep. (CCH) P 14,872

Robert J. SACRAMONA, Plaintiff, Appellant, v. BRIDGESTONE/FIRESTONE, INC., and The Budd Company,

Defendants, Appellees.

No. 96-1345.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1996.

Decided Feb. 13, 1997.

Michael K. Gillis with whom Gillis & Bikofsky, P.C., Newton Center, MA, was on briefs for appellant.

Francis H. Fox with whom John R. Skelton and Bingham, Dana & Gould L.L.P., Boston, MA, were on brief for appellee Bridgestone/Firestone, Inc.

Edward M. Kay with whom Michael W. Duffy, P. Scott Ritchie, Clausen Miller, P.C., Chicago, IL, Robert M. Spence, Assistant General Counsel,; Mark R. Karsner and Karsner & Meehan, P.C., Taunton, MA, were on brief for appellee The Budd Company.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Robert Sacramona, the plaintiff in this diversity action, appeals from the district court's grant of summary judgment against him. His claims arose from an accident that occurred when Sacramona sought to mount and inflate a tire manufactured by defendant Bridgestone/Firestone, Inc. on a wheel manufactured by defendant, The Budd Company. The appeal is essentially a challenge to the district court's rulings on the destruction or loss of evidence and resulting prejudice to the defendants.

The facts are as follows. On May 4, 1988, a customer drove his van into the Economy Mobil gas station for repair of a leaking tire. Sacramona, the station's new manager, removed the tire and decided to replace rather than repair it. Because the station did not have an appropriate new tire, Sacramona selected a used, 16-inch tire from a rack of tires at the station as a temporary replacement, intending later to get a new tire for the customer.

The replacement tire bore warnings that it was to be used only with a 16-inch wheel. Sacramona later admitted that he did not check the diameter of the wheel rim; he said that he chose a 16-inch tire because the tire that he removed was also 16 inches. But the replacement tire apparently did not fit the wheel, which Sacramona now says was 16-1/2 inches. After Sacramona struggled to mount the tire--using a tire mounting machine and lubricant, striking the tire with a hammer, and bouncing it on the ground--the tire allegedly exploded as he again attempted to inflate it, causing him numerous injuries.

Sacramona was taken to the hospital by ambulance. Another service station employee put the damaged replacement tire on the wheel without inflating it, and the customer drove back home very slowly on the uninflated tire. The customer subsequently had the wheel and damaged tire removed from his van and left them unprotected in his outdoor yard. In August 1988, Sacramona's attorney obtained the tire and wheel.

Around February 1, 1989, the attorney gave both the tire and wheel to an expert consulting engineer, Dyer Carroll, who examined them and then sent them to Sacramona's liability expert, Dr. Alan Milner, on September 30, 1991. In the meantime, on May 3, 1991, Sacramona filed his complaint in this case, one day before the three-year statute of limitations expired, asserting tort and warranty claims. His theory is this: that the automotive industry knew that there was a risk of harm from mismatching tires and wheels, and that the wheel, tire, or both could have been designed--over and above the warnings on the tire--to reduce the risk that such a dangerous mismatch would occur.

By the time of the lawsuit, the Mobil station had been sold and many of its contents were gone, including the original leaking tire, the mounting machine, and various safety or equipment manuals and documents. In addition, during his deposition, Milner said that the wheel had undergone a "somewhat destructive" examination and that he understood from Sacramona's lawyer that Carroll had conducted an extensive cleaning of the wheel. It was thus impossible to check for markings on the inside of the wheel that might have revealed whether (as Sacramona claimed) the original leaking tire had been a 16-inch tire mismatched with a 16-1/2-inch wheel.

After discovery, the defendants moved for summary judgment on several grounds, asserting inter alia that critical evidence had been destroyed in the cleaning of the wheel. In opposition, Sacramona attached a brief affidavit from Carroll denying that he had destroyed such evidence. ¹ The district court ruled that evidence of the wheel should be excluded, finding that defendants' "experts have been deprived of the opportunity to examine relevant, possibly dispositive evidence before its material alteration." The trial judge treated the wheel's exclusion as fatal to both the negligence and warranty claims.

The district court also granted summary judgment to the defendants on Sacramona's warranty claims on an independent ground. Sacramona had not notified Firestone of his claims until three years after the accident; and Budd did not get notice for three more months (service of the complaint having been delayed). The district court ruled that the defendants had been prejudiced by this delay because evidence had been lost, and that the warranty claims were therefore barred by Mass.Gen.Laws ch. 106, § 2-318.

Sacramona has now appealed, challenging both rulings: the dismissal of both claims because of damage to the wheel and the dismissal of the warranty claim for prejudicial delay. We address each asserted error in turn, applying the standard of review fitting the specific issue. Broadly speaking, propositions of law are examined de novo, findings of fact are reviewed under the clear error standard, and most remaining issues (e.g., applying multiple factors to known facts) are tested for "abuse of discretion." See generally United States v. Wilson, 798 F.2d 509, 512 (1st Cir.1986).

1. Under settled authority, the district court has inherent power to exclude evidence that has been improperly altered or damaged by a party where necessary to prevent the non-offending side from suffering unfair prejudice. Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir.1992); Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 & n. 13 (D.Mass.1991). Although deterrence may play a role, the primary aim is remedial, at least absent willful destruction. This power is a companion to, but somewhat different in effect from, the doctrine that permits an adverse inference from one side's destruction of evidence. 22 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5178, at 153-59 (1978).

Sacramona's first argument against the exclusion of the wheel on grounds of prejudicial damage is that the district court "did not weigh the evidence in the light most favorable to the non-moving plaintiff" and therefore the issue had to be submitted to the jury. Sacramona says that a factual dispute exists as to whether any such damage occurred, "particularly in light of the sworn deposition testimony of Dyer E. Carroll, ... who stated that he never scraped any evidence from the wheel or cleaned it with any abrasive material."

The request for a jury rests on a misunderstanding. It is familiar law that the district judge decides most preliminary factual issues that arise in determining the admissibility of evidence. Fed.R.Evid. 104(a). The main exception is that under Fed.R.Evid. 104(b), issues of conditional relevance are normally submitted to the jury. Sacramona invokes the latter rule, arguing that the issue whether the wheel had been damaged was an issue of conditional relevance that should have been submitted to the jury.

The district court said that the wheel was being excluded, in the alternative, both as a sanction for damage to it and because the damage made the wheel irrelevant. But in fact the alleged damage to the wheel's inner surface merely prevented one possible use of the wheel--to show that the original tire was or was not 16 inches. The wheel, or testimony about it, remained relevant to prove whether the wheel itself was 16-1/2 inches, which was one critical premise of Sacramona's mismatch theory. Thus, the only basis for exclusion of the wheel was prejudicial damage, an issue that Rule 104(a) reserves to the trial judge.

There is more force to Sacramona's claim that the district court may have erred in deciding that Carroll had cleaned the wheel. In moving for summary judgment, the defendants relied upon several different admissions by Milner in his deposition, adding up to the following: that the inside of the wheel had been cleaned, removing the possibility of recovering useful evidence; that Sacramona's counsel had identified Carroll as the source of the cleaning; and that Milner had sought to obtain photographs of the wheel prior to cleaning but none had been taken by Carroll.

In opposition, Sacramona countered with a brief affidavit of Carroll that he had not cleaned any substantial portion of the inside of the wheel. Sacramona argued on this basis (mistakenly) that the issue was one for the jury. But in any event the affidavit was not much of an answer: Milner said that the inside of the wheel had been cleaned; and whether or not Carroll had done it, the wheel had admittedly been in the custody of the plaintiff's counsel or one of his experts since it was recovered from the customer's backyard.

It is thus not entirely surprising that the district court ruled that the plaintiff was responsible for the damage. At this point, Sacramona offered new evidence: on his motion for reconsideration, a new affidavit was filed by Milner, saying that he had been misunderstood and had not testified that the inside of the wheel had been cleaned. Sacramona's counsel also filed an affidavit, which generously could be read to assert that his law firm had given the wheel to Carroll and retrieved it unaltered.

But Milner's affidavit did not squarely...