Williams v. Monarch Mach. Tool Co., Inc.
| Citation | 26 F.3d 228 |
| Decision Date | 09 February 1994 |
| Docket Number | No. 93-1182,93-1182 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,907 Allison WILLIAMS, Plaintiff, Appellant, v. MONARCH MACHINE TOOL COMPANY, INC., Defendant, Appellee. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Joseph M. Orlando with whom Brian S. McCormick and Orlando & Associates, Glouchester, MA, were on brief, for appellant.
Terrance J. Hamilton with whom Casner & Edwards, Boston, MA, was on brief, for appellee.
Before TORRUELLA, CYR and BOUDIN, Circuit Judges.
On March 23, 1988, Allison Williams, plaintiff in the district court and appellant here, was injured when he was struck by a "toolholder" that came loose from a vertical milling machine. At the time, Williams was working in Massachusetts for R & K Precision Tool Company ("R & K"). The vertical milling machine, owned by R & K, had been made in 1978 by Monarch Machine Tool Company ("Monarch"), the defendant-appellee in this case.
The machine in question was a computer assisted machining center that performs various functions such as milling, boring and fly cutting. At the time of the accident, the machine was being operated by a co-worker of Williams who had attached to the machine a fly cutter that had been made "in-house" by R & K. The fly cutter is a disk into which a toolholder and attached tool can be inserted. The fly cutter then rotates on the spindle of the vertical milling machine and the rotating tool can be used to cut or shave a piece of metal.
In this instance, the co-worker who was operating the vertical milling machine had been requested by his foreman to machine a piece of aluminum into a specific configuration. After a few seconds of operation, in which the spindle rotated at 2500 rpms, the toolholder came loose from the set screws holding it to the fly cutter, and the toolholder struck Williams who was standing nearby. He was seriously injured.
Williams brought suit in the district court against Monarch. His complaint, claiming negligence and breach of warranty, rested on two notions as to what Monarch had done wrong. First, Williams contended that Monarch should have provided shielding to contain ejected projectiles, a danger that Williams said was known to Monarch. Second, the complaint said that Monarch should have warned users of the risk of such ejections so that in-house measures could be taken; in this connection, Williams contended that Monarch had an ongoing duty to warn prior purchasers of new shielding equipment developed after the machine's manufacture late in 1978 but before the accident in 1988.
The trial took place in January 1993. At trial, there was expert evidence on both sides on issues of shielding, warning and causation. There was also evidence concerning proper use of the vertical milling machine and the industry standards bearing on the respective responsibilities of manufacturers and users in providing guards and shields. Answering specific interrogatories, the jury found against Williams, and for Monarch, on each of the claims against Monarch.
Following the jury verdict, Williams moved for a new trial asserting as grounds the two issues now raised on this appeal. One is Williams' claim that the district court wrongly admitted testimony from a second expert witness, who was belatedly produced by Monarch and who testified at trial; and the other is that an instruction requested by Williams, affirming the manufacturer's ongoing duty to warn even after a machine is sold, should have been given. The district court denied the motion, and Williams appealed. We affirm.
The events relating to the second expert can be briefly summarized. As is common in cases where experts are anticipated, interrogatories under Fed.R.Civ.P. 26 were employed by the parties to identify experts and their expected testimony. After successive extensions, Monarch on October 16, 1991, identified its expert as David Lundeen, a vice president of Monarch, and described the substance of his testimony. Williams' answers identified his own expert. Thereafter, Lundeen was deposed by Williams.
At a March 26, 1992, pretrial conference, the district court set January 4, 1993, as a firm trial date. The court also ordered the parties to make certain filings during the four weeks preceding the trial date, including the listing of the names of all witnesses, lay and expert. On December 4, 1992, a month before the scheduled trial, Monarch filed "further supplemental answers" in response to Williams' prior "expert" interrogatories identifying for the first time Ralph Barnett as an additional expert witness. 1
On December 28, 1992, Williams filed a motion in limine to exclude Barnett's testimony on the ground that Barnett's late appearance would prejudice Williams. At a hearing on January 11, 1993, immediately before the start of trial, the district court heard argument on the in limine motion and offered to postpone the trial for a week and permit Barnett's deposition to be taken. When Williams' counsel said that this would not cure the prejudice, the court proceeded with the trial immediately. Later, the court approved the taking of Barnett's deposition during a recess of trial on January 13, 1993, the day before Williams' own expert was scheduled to testify.
On appeal, Williams argues that the district court abused its authority by refusing to exclude Barnett's testimony. Williams contends that Barnett did not merely repeat Lundeen's opinions but added new theories of his own. Williams brushes aside the proffered one-week extension as wholly inadequate to allow the counsel to depose Barnett, to develop adequate rebuttal information, and to allow Williams' own expert the time to adjust his own testimony to answer the new theories. Monarch, in turn, belittles the importance of Barnett's testimony and argues that his late appearances violated no rule or order.
In our view, the last-minute appearance of new expert witnesses, or substantial expansion of previously disclosed expert testimony, has become a troublesome feature of civil litigation. Such last-minute expert testimony is often improvisation rather than ambush, but it can still undermine trial preparations carefully made by an adversary over many months or even years. For this reason, some district judges enter pre-trial orders setting explicit deadlines for the naming of experts and then allow new ones to be named after those deadlines only for good cause shown. Cf. Local R. 26.4 (D.Mass.).
Rule 26 interrogatories do not have quite the same effect. Formally, the answers reflect counsel's good-faith expectation as to the experts to be offered, and the rules themselves (as phrased in 1992) underscored this qualification by imposing a duty "seasonally to supplement" a prior answer identifying an expert or revealing the substance of expert testimony. See former Fed.R.Civ.P. 26(e)(1)(B). Of course, it would violate this duty to name belatedly an expert who had been retained by the naming party at a substantially earlier time. Here, however, Monarch says that it named Barnett shortly after determining to use him, and there is no evidence to the contrary.
Our situation falls somewhat in between an outright requirement that experts be named no later than a specified date and the ordinary use of Rule 26 interrogatories. Here, the original scheduling order from the magistrate judge, extended several times, directed that "full and complete answers" to expert interrogatories be furnished by listed dates and set still later dates for the completion of all discovery. It may well have been the intention of the magistrate judge that this be read as an outright cut-off for the naming of experts even though the order is not framed in quite these terms.
When on the day of trial the parties presented their positions to the district court, the matter was blurred. Williams did not explain his position with exactness, while Monarch argued (untenably) that, even if a prior deadline had been set, it was relaxed implicitly by the district court's routine order saying that all witnesses be listed a month or so before trial. Without resolving the dispute, the district court said that it would not bar important expert testimony in a case with a large ad damnum when a continuance would remedy the problem. However the magistrate judge's order is read, the district court was free to alter previous deadlines.
Conversely, even if the magistrate judge's order left open the ordinary supplementation option, this court has held that trial judges have inherent discretionary authority to exclude expert evidence where Rule 26 interrogatories have been employed and where the court finds that the supplementation was not seasonable. This is so even though the late-named expert was disclosed as soon as he or she had been retained. Fusco v. General Motors Corp., 11 F.3d 259, 265-66 (1st Cir.1993); Thibeault v. Square D Co., 960 F.2d 239, 245 (1st Cir.1992). If the district court in this case had decided to preclude Barnett's testimony as not "seasonably" disclosed, such a decision would likely have been sustained.
But the broad discretion of trial judges to manage scheduling,...
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