USCA1 Opinion

August 21, 1995

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2164

UNITED STATES FIDELITY & GUARANTY COMPANY, ET AL.,

Plaintiffs, Appellants,

v.

BAKER MATERIAL HANDLING CORPORATION,

Defendant, Appellee.

__________________

ERRATA SHEET

The opinion of

this Court, issued August 9, 1995,

is amended

follows:

Cover sheet:

"David A. Berry" in place of "David W. Berry"

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-2164

UNITED STATES FIDELITY & GUARANTY COMPANY, et al.,

Plaintiffs, Appellants,

v.

BAKER MATERIAL HANDLING CORPORATION,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

___________________

____________________

Selya and Cyr, Circuit Judges,

______________

and Schwarzer,* Senior U.S. District Judge.

__________________________

____________________

Michael J. McCormack,
_____________________

with whom

Marc LaCasse
____________

and McCormack
_________

Epstein were on brief for appellants.

_______

David W. Barry, with whom William L. Boesch and Sugarman, Roge

______________
_________________
______________
Barshak & Cohen, P.C. were on brief for appellee.
_____________________

____________________

August 9, 1995
____________________

____________________

*Of the Northern District of California, sitting by designatio

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

& Guaranty

trix of

the

Plaintiffs United States Fidelity

Company ("USF&G")1 and Jennifer

estate

of

Russell M.

Chapman, administra-

Chapman,

Jr.

("Chapman"),

challenge district court rulings precluding their introduction of

certain

or

evidence at trial and denying their motion for new trial

relief

from

judgment in

wrongful

death

action against

defendant-appellee Baker Material Handling Corporation ("Baker").

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

On January 5, 1990, Chapman sustained fatal injuries in

phenomenon

between a

known as

"rack

underride"

warehouse shelf and the

when

he was

back of the 1979

Baker Moto-

Truck model XTR forklift ("XTR") which he was operating.

was

Truck

discontinued later in 1990

and replaced by

forklift ("BRT"), first manufactured in

predecessor,

the BRT-design

repositioned the

crushed

The XTR

the Baker Reach

1987.

Unlike its

steering controls

and incorporated vertical rear posts to protect the operator.

Following Chapman's

("appellants")

brought suit

death, USF&G and

in

Massachusetts

Superior

Court,

claiming

that 1) Baker had

employer

of the danger of "rack

vertical

rear posts in the XTR (i) violated the implied warranty

of merchantability

breached its duty

Jennifer Chapman

to warn Chapman's

underride"; and (2) the lack of

and (ii) rendered the XTR-design unreasonably

____________________

1USF&G is

the workers' compensation

Chapman's employer.

insurance carrier

for

dangerous.

Following the removal of the action to federal court,

see 28 U.S.C.
___

1332, 1441(a), Baker responded in

the negative

to interrogatories designed to disclose whether it had

sued

for damages

whether

it

vertical

had

arising

ever

rear posts.

before trial, Baker

out of

modified an

similar XTR

XTR

forklift

Approximately two

again responded in

ever been

incident

and

by installing

years later,

shortly

the negative to

similar

supplemental interrogatories.

As Baker

incorrect.

It

now concedes,

its responses

were materially

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

claim

which

in 1985

based on a

settled in

1989.

similar XTR "rack

See
___

Handling Corp, No. 477122 (Orange

______________

underride"

DeMarzo v.
_______

Baker Material
______________

Cty. Sup. Ct.

filed Dec. 20,

1985) ("DeMarzo").
_______

Baker

its

filed a motion in limine to preclude evidence of

__ ______

incorporation

asserting lack

Evid. 402, 403.

earlier

of vertical

of relevance

It

and

rear

posts

in the

undue prejudice,

contended that incorporating

XTR-design would have impeded steering,

___

egress by the operator

in the event of a crash

BRT-design,

see Fed.
___

posts in

R.

the

as well as safe

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

quently, urged Baker,

in its XTR-design.
___

the BRT-design would be irrelevant

Conse-

to the

determination whether

XTR-design

created an

the absence of vertical rear

unreasonably

dangerous

motion in limine was granted on the eve of trial.

__ ______

posts in the

condition.

The

At trial, Baker incorrectly represented in

statement that the

evidence would

been involved in a

"rack underride" accident and that

never installed vertical rear

lants had already

show that the

its opening

posts in an XTR.

XTR had

never

Baker had

Although appel-

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

of litigation,

prior "rack

that

company files

underride" incident

that Baker had

never installed

and the officer in charge

contained no

record of

involving the XTR

vertical rear posts

any

forklift and

in an

XTR,

though it

was in fact

feasible to do so.

confronted Baumann with depositions

tion, and

Whereupon appellants

taken in the DeMarzo litiga_______

with Boston Edison records,

indicating that Baumann's

testimony on both points was inaccurate, as Baumann was forced to

concede.2
____________________

2According to

Baumann, the DeMarzo litigation

_______

been entered on the master-file list until

to the
the

initial interrogatories, and the

XTR modifications

Edison

made by

had been placed in

rather than the XTR file.

Baker at

file had not

after Baker responded

information relating to
the request

the Boston Edison

of Boston

client sales file,

He testified that there were more than

100,000 client sales files, and that it was not until he had been
told of the modifications
searched

to the Boston Edison XTRs

its client sales file.

that he had

Further, Baumann admitted that

Notwithstanding their denudation

of Baker's

discovery

lapses, appellants elected not to request sanctions or a continu-

ance to pursue further

discovery, choosing instead to capitalize

on

in

Baker's "cover-up"

unimpressed,

their closing

the jury found for

liability;

judgment

entered; and

trial, see
___

Fed. R. Civ. P.

BRT-design evidence

and from

Baker on all

appellants

59(a), or for

id. 60(b)(3), alleging prejudice

___

argument.

Apparently

three theories of

moved

for a

new

relief from judgment,

from the order precluding their

Baker's responses

to interrogato-

ries.

On

appeal, appellants attack

ment, asserting

reversible error in the

BRT-design evidence.

for the

appeal

responses

ruling precluding their

Their discovery abuse claim forms the basis

from the

Appellants speculate

inaccurate

the district court judg-

denial of

that they

their postjudgment

motion.

were unfairly prejudiced

to interrogatories,

by the

notwithstanding their

decision not to request Rule 37 relief, since it is impossible to

determine what would have been disclosed in full discovery.

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

Appeal from the Judgment

Appeal from the Judgment

________________________

The

evidence is

district

court

order precluding

reviewed for abuse of discretion.

the

BRT-design

Espeaignnette v.
_____________

____________________

Baker's responses to the initial interrogatories had been inaccurate

and that he had

not reexamined the

Baker litigation files

before responding to the supplemental interrogatories.

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

probative

value and

Co., 865 F.2d 1331,

___

deferential standard

unfair effect.'"

Freeman v.
_______

1340 (1st Cir. 1988).

weighing of

Package Mach.
_____________

Notwithstanding this

of review, the Espeaignnette panel reversed

_____________

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 danger-

ous.

Id.
___

would be

at 4.

The

defendant-manufacturer conceded

feasible to attach

a protective guard,

that it

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

edger model, even though

tion

at issue

Espeaignnette
_____________

was

protective guards to the identical

the evidence showed that

"both possible

panel reversed

and

on the

the modifica-

practical".

ground that

lawn

Id.
___

The

the proffered

modification evidence was highly probative and entailed no unfair

prejudice

because,

if credited,

defendant-manufacturer's

claim

it

that

would impede normal edger functioning.

directly controverted

the proposed

ties.

modification

Id. at 6-8.
___

The superficial similarities between

the instant case are

the

Espeaignnette and
_____________

outweighed by more fundamental dissimilari-

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;
___

also Raymond v. Raymond Corp., 938 F.2d 1518, 1524-25

____ _______
______________

1991)

(Rule 407 applies only to

manufacturer, not by

see
___

(1st Cir.

subsequent remedial measures by

third parties), whereas

Rule 407 does

not

apply

to the

instant case

because the

preceded Chapman's accident.

not

apply

to design

litigation) (upholding

modification

43 F.3d at

See id. at 1523-24 (Rule

___ ___

modifications

made prior

exclusion under

in Espeaignnette
_____________

identical to the one

BRT-design modification

had

to

Rule 403).

been performed

407 does

accident in

Second, the

on an

edger

which injured the plaintiff, Espeaignnette,

_____________

6, whereas the modification

in the instant case

was

made to the BRT-design, which was substantially dissimilar to the

XTR which injured Chapman.

The

ciently

error.

See also infra p. 8.

___ ____ _____

district court found

similar to the XTR,

that the BRT

a finding we

was not suffi-

review only for clear

Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14,

_______
_________________________________

16

(1st Cir.

rulings

are reviewed

supported.

posts

1994) (findings

of

for clear

fact integral

error).

to evidentiary

Its finding

Appellants' own expert testified

is amply

that vertical rear

could not practicably be incorporated in the XTR unless it

underwent

major redesign.

BRT-design

because

could

its

operator's

Whereas the

accommodate

steering

cabin so

vertical

controls

that

record revealed that the

rear

had been

the posts

would

posts

repositioned

precisely

in

the

not interfere

with

sturdy support

for

steering.

The Raymond
_______

case, supra, provides

_____

the

district court ruling.3

loader

design was

defective for

Raymond, 938 F.2d at 1522.

_______

by

It involved

lack of

a claim that

a side-

vertical rear

posts.

The decedent had been fatally injured

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

at

1522-23.

accident.

Id.
___

We upheld the exclusionary ruling, with the follow-

ing explanation:

"the introduction of

design modifications not made

evidence of pre-accident

effective until after the manufac-

ture of

the allegedly defective product may

unfairly prejudicial to the defendant

reasonably be found

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

by no means

the most

in the instant case was

probative available on

the ultimate

jury

issue; viz., whether the XTR-design should have included vertical

rear posts.

practicality

that

Whereas the best evidence relating to the safety and

considerations involved

third party

protective

was making

in Espeaignnette
_____________

business of

guard on the identical edger,

had been

incorporating a

the best evidence that

the

XTR could accommodate vertical

___ _____ ___________

verted proof

presented to

rear posts was the uncontro-

the jury

that Baker in

fact had

____________________

3Although Raymond
_______

involved New

Hampshire law, 938

1520, we recently held that its logic applies as well

defect"

and "failure

to warn"

claims under

Cameron, 43 F.3d at 18.

_______

F.2d at

to "design

Massachusetts law.

installed

posts in

request.

The

the

XTRs

evidence that

it

modified at

posts had

exclusion.

BRT-design, but any unfair

in

(centrality

in XTRs

incorporation in

prejudice from its

Thus, the district court did not abuse its discretion

in concluding that the

sively

Edison's

been installed

diminished not only the need to establish their

the noncomparable

Boston

favor of

of

required Rule 403 balancing tipped

preclusion.

disputed evidence

Espeaignnette,
_____________

to

party's

deci-

43 F.3d

claim is

at 6

strong

factor in Rule 403 balancing test) (collecting cases).

B.
B.

Appeal from the Denial of Postjudgment Relief

Appeal from the Denial of Postjudgment Relief
_____________________________________________

We

under rules 59

review

orders

and 60(b)(3)

disallowing

for abuse of

postjudgment

discretion.

relief

Perdoni
_______

Bros., Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 n.5 (1st Cir.

___________
______________________

1995) (Rule 59);

Fernandez v.
_________

Cir. 1992) (Rule 59

Leonard, 963 F.2d

_______

459, 468

and Rule 60(b)(3)); United States

_____________

of Land & Res. at 18 Oakwood Street,

______________________________________

1992) (Rule 60(b)(3)).

958 F.2d 1,

The district court rulings

(1st

v. Parcel
______

5 (1st Cir.

that Baker's

inaccurate responses to interrogatories neither constituted fraud

nor resulted in substantial interference with the preparation and

presentation of

Anderson
________

appellants' case

v. Beatrice Foods, Co.,

___________________

are reviewed for

900 F.2d 388,

clear error.

392 (1st Cir.),

cert. denied, 498 U.S. 891 (1990).

_____ ______

discretion

Baker's

Appellants

argue that

by not

affording them

slipshod

and misleading

the district

court abused

postjudgment relief

responses

its

based on

to interrogatories,

10

which denied them a

relief

fair trial.4

from prejudice

occasioned

curative measures such as

ance,

orders

tailored

orders, and default

Among the available forms

by

discovery violations

of

are

continuances and stays pending compli-

to

effect

judgments.

issue

preclusion,

contempt

See R.W. Int'l Corp. v.

___ _________________

Welch
_____

Foods, Inc., 937

____________

F.2d

11, 15-20

(1st

Cir. 1991)

(discussing

grounds for Rule 37 sanctions); Fed. R. Civ. P. 37(b)(2),(3).

Appellants' claim fails, nonetheless,

proceed

rather than

because the

request

relief under

before or

gambit proved

unsuccessful, there

advantage

Rule 37,

information Baker did not disclose

to appellants

in their

is even now no concrete

during trial.

as they opted to

presumably

had become known

Moreover,

though their

was both method

potential

stratagem and little to lose.

Since there

suggestion that further discovery

would

have benefited them, their prospects for obtaining Rule 37 relief

appear all along to have been minimal compared with the potential

jury

impact their

"cover-up" claim

expected to occasion.

Thus,

might reasonably

have been

appellants' decision

to use

their

hole

card in

waived any claim

rendered the

an abortive

that their

trial unfair.

gambit

with the

decision to forego

jury plainly

Rule 37

The appropriate remedy

relief

for parties

____________________

4Appellants rely on Anderson v. Cryovac, Inc., 862 F.2d 910,

________
_____________
923 (1st Cir. 1988),
may

grant

for their contention that a

relief from

judgment and

failure to provide requested

ing

new trial

district court
even

discovery was inadvertent.

if the

Follow-

our remand in Cryovac, the district court denied relief from

_______

judgment under Rule 60(b) notwithstanding its finding of deliber________

ate discovery abuse.
___

We nevertheless upheld its ruling.

ce Foods Co., 900 F.2d at 391-92.

____________

11

Beatri_______

who uncover

an

the

discovery violations is "not to

seek reversal after

unfavorable verdict but a request for continuance at the time

surprise occurs."

566, 568 (1st

874 F.2d 43,

Szeliga v. General Motors Corp., 728 F.2d

_______
____________________

Cir. 1984); see

___

47 (1st

U.S. 862 (1989).

genuine surprise.

United States v.
_____________

Cir.) (criminal case),

Here, of

court abused

judgment

motion for

cert. denied,
_____ ______

493

course, there appears to have been no

Nor can appellants

district

Diaz-Villafane,
______________

its discretion

relief from

plausibly suggest that the

by declining

the unwelcome

their post-

consequences of

their calculated decision.

25, 29

(1st Cir. 1988)

Ojeda-Toro v. Rivera-Mendez, 853 F.2d

__________
_____________

("[A] party

may not prevail

on a

60(b)(3) motion . . . where [it] has access to disputed

tion or has

tations

Rule

informa-

knowledge of inaccuracies in an opponent's represen-

at the

time

of the

alleged misconduct.")

(collecting

cases).

III
III

CONCLUSION
CONCLUSION
__________

As the district court did

precluding

the dissimilar

not abuse its discretion

BRT-design

postjudgment relief under Rules 59 and

affirmed.
________

evidence

nor in

in

denying

60(b)(3), its judgment is

12