Filed: Feb. 14, 2001
Latest Update: Feb. 21, 2020
Summary: 4F&D argues in an aside that Malcolms qualifications as a, cause-and-origin expert were rejected by two previous trial, judges and that this is proof that Malcolm should not have been, able to testify as a cause-and-origin expert during the third, trial before Judge Harrington.evidence in the case.
United States Court of Appeals
For the First Circuit
No. 00-1137
FERRARA & DIMERCURIO,
Plaintiff, Appellant,
v.
ST. PAUL MERCURY, INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Joseph M. Orlando with whom David S. Smith, Brian S.
McCormick and Orlando & Associates were on brief for appellant.
Richard H. Pettingell with whom Davis, White, Pettingell &
Sullivan, LLC was on brief for appellee.
February 14, 2001
CAMPBELL, Senior Circuit Judge. For a second time this
case comes to us on appeal. See Ferrara & DiMercurio v. St.
Paul Mercury Ins. Co., 169 F.3d 43 (1st Cir. 1999)(hereinafter
Ferrara I). The facts have not changed.
I. BACKGROUND
On July 3, 1993, the commercial fishing vessel F/V TWO
FRIENDS was destroyed by a fire. Plaintiff-Appellant Ferrara &
DiMercurio (“F&D”), owner of the vessel, sought to recover
insurance under a Hull Policy issued by defendant-appellee St.
Paul Mercury Insurance Company (“St. Paul”). St. Paul denied
coverage after its investigation ended with a determination of
arson, which it understood to be excluded from coverage under
the policy. Thereafter, F&D brought an action in the district
court claiming that St. Paul’s refusal to pay was a breach of
the insurance contract and constituted “bad faith” in violation
of Massachusetts General Laws ch. 93A. After a first trial
ended in a hung jury, a second trial ended with the court
directing a verdict in favor of the plaintiff.
At the time the district court directed a plaintiff’s
verdict, the court accepted that St. Paul would not be liable
could it prove its affirmative defense that the fire was
deliberately set by the insured. But the court ruled that the
evidence put forward was legally insufficient for a jury to find
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that plaintiff had deliberately set its boat on fire. St. Paul
had also asserted that it would be exempt from liability were
the fire found to have been deliberately set by an unknown third
party, relying upon the language of an exclusion for “malicious
acts” found in the so-called Strikes, Riots, and Civil
Commotions (“SR&CC”) clause. However, the court construed that
provision as excluding from coverage only those fires
deliberately set by third parties in the context of civil
unrest, a setting absent here.
On appeal, this court disagreed with the district
court’s rulings, reversing and remanding the case for a third
trial. We held that the SR&CC clause excluded from coverage all
fires (whether or not arising in the context of civil unrest)
that were deliberately set by third parties. See Ferrara I, 169
F.3d at 53. Notwithstanding the clause’s title -- “strikes,
riots and civil commotions” -- we stated:
“Malicious acts” is set forth in the SR&CC
clause as a separate, unmodified exclusion
from coverage....[N]othing in the plain
language and grammar of the clause supports
the district court’s constriction of
excludable “malicious acts” to only those
acts perpetrated within the context of one
or more of the other co-listed events. Nor,
in our view, would an objectively reasonable
insured interpret the “malicious acts”
exclusion so narrowly.
....
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...Hence, to limit the phrase,
“malicious acts,” to just those activities
related to the former categories would be to
render the “malicious acts” provision
redundant, an interpretation running counter
to the customary assumption that all words
within a clause serve some purpose....
Here, the malicious acts in question
are arson -- and not, as a practical matter,
arson by the owner or its agents, which are
actions separately excluded from coverage by
law, but the rarer acts of fire-setting by
vandals or other malicious individuals.
Such acts fall within the general category
of intentional third-party violence which
can be said to be a principal overall theme
of the SR&CC clause. The “malicious acts”
category serves the relevant purpose of
excluding destructive acts not public or
tumultuous enough to be considered a riot or
civil commotion. In sum, the SR&CC clause
unambiguously excludes from coverage losses
caused by “malicious acts,” including arson,
whether or not the malicious acts occur in
the context of one or more of the other
events listed in the SR&CC clause. Thus, on
remand, the jury should be permitted to
determine whether the fire on July 3, 1993,
was deliberately set by third parties.
Should the jury answer that question in the
affirmative, St. Paul would not be liable
under the Hull Policy.
Id. at 51-53 (citations and quotation marks omitted).
Having reversed the district court’s holding that arson
by a third party was only a defense when occurring during civil
unrest, this court also reversed the district court’s other
conclusion that the evidence at trial was legally insufficient
to support the insurer’s arson-by-the-insured defense. We
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determined that evidence in the record of motive and opportunity
on the part of F&D to commit arson was such that “reasonable
jurors could determine that [plaintiff] deliberately set fire to
the TWO FRIENDS in order to fraudulently obtain the proceeds of
the insurance policy.” Id. at 56.
The parties returned to district court to prepare for
a third trial, this time before yet a third judge, Judge
Harrington. Based upon their mutual understanding of this
court’s decision in Fer r a r a I, both parties agreed that the
following single question would be submitted to the jury to be
answered “Yes” or “No”: “Do you find that the defendant, St.
Paul Mercury Insurance Company, has established by a
preponderance of the evidence that the fire was of an incendiary
nature or deliberately set?”. This question was apparently
meant to incorporate both holdings of Ferrara I, entitling St.
Paul to the defense of arson by third parties as well as to the
defense of arson-by-the-insured. The jury returned a verdict in
favor of defendant St. Paul, answering “Yes” to the special
verdict. F&D appeals.
Unlike in Ferrara I, when we were faced with, among
other issues, the task of construing somewhat unusual language
in the insurance policy, this time the issues presented are more
commonplace. F&D claims reversible error on the basis of
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certain evidentiary rulings, any one of which, F&D argues,
entitles it to a fourth trial. We disagree. F&D also appeals
from the district court’s denial of plaintiff’s post-trial
motion for sanctions. For the reasons that follow, we affirm
all of the rulings below.
II. LEGAL ANALYSES OF EVIDENTIARY ISSUES
Having recited the facts in our first opinion, we need
not repeat all of them here. For a more complete account, we
refer the reader to Ferrara I, 169 F.3d at 45-49. We report
here only those facts that are relevant to the three evidentiary
issues raised on this appeal. The three evidentiary issues are
as follows1: (A) the propriety of allowing the jury to hear
evidence of the principal shareholders’ alleged motive and
opportunity to burn their own boat; (B) the propriety of
admitting into evidence against F&D the expert testimony of John
Malcolm regarding the cause and origin of the fire; (C) the
effectiveness of the district court’s curative instruction to
the jury to strike and disregard an answer provided on cross-
examination by John Malcolm regarding information that was
1
We state and decide the remaining two issues, non-
evidentiary and less fact-specific, in Part III infra.
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subject to a protective order. We discuss each of these issues
in turn below.
A. Motive and Opportunity Evidence to Burn the F/V TWO FRIENDS
Prior to trial, the district court engaged in an
extended colloquy with both parties over the relevance and
potential prejudice of defendant’s proffer to present evidence
of F&D’s financial hardship, a proffer, defendant argued, that
would tend to prove that F&D had a motive, in addition to the
opportunity, to burn their boat, the F/V TWO FRIENDS. Plaintiff
objected to this evidence on the ground that it was irrelevant.
All parties having agreed that the sole question put to the jury
would be “Do you find that the defendant, St. Paul Mercury
Insurance Company, has established by a preponderance of the
evidence that the fire was of an incendiary nature or
deliberately set?”, plaintiff sought to persuade Judge
Harrington that evidence of either motive or opportunity to
commit arson would be irrelevant to a determination of the
ultimate issue. Then, as now, plaintiff argued that evidence of
motive and opportunity to start a fire aboard the F/V TWO
FRIENDS was irrelevant to the only explicit question to be
answered by the fact-finders: whether or not the fire aboard the
F/V TWO FRIENDS was intentional. As an alternative, plaintiff
argued that the prejudicial effect of evidence that F&D
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shareholders had a motive and opportunity to burn their boat
substantially outweighed its probative value.
At various times during the pre-trial conference, Judge
Harrington pressed plaintiff’s counsel for a persuasive
explanation of why evidence of motive and opportunity was
irrelevant to the ultimate issue of incendiarism. Like Judge
Harrington, we are puzzled by plaintiff’s constricted
interpretation of relevance as defined by Federal Rule of
Evidence 401. Consider the evidence that ultimately came out at
the trial:
The F/V TWO FRIENDS was locked at the time the fire
started. No sign of forced entry into the vessel was found. As
both parties’ experts agreed that the fire began inside the
vessel, St. Paul was faced with the obstacle of explaining, in
order to establish that the fire was deliberately set, how an
arsonist (be it the insured or a third party) gained access to
the vessel. This goes to opportunity.
As it turned out, there were four keys to the F/V TWO
FRIENDS, three in the hands of the insured-owners and one
hanging in a warehouse adjacent to where the boat was moored.
The undisputed testimony was that all four keys were in their
expected places shortly after the fire. The owner of the
warehouse testified that access to the key hanging in the
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warehouse was not closely guarded, however, and that it was
possible that before July 3, 1993, somebody could have illicitly
taken the key from the warehouse and made a copy of it. No
evidence was put before the jury of anyone being seen near the
boat between the hours of 4:30 p.m on July 2, 1993, when Leo
Ferrara locked the boat after a fishing trip, and 2:30 a.m. the
following morning, when the Gloucester Fire Department responded
to the fire.2 After a lengthy investigation that led St. Paul’s
investigators to the conclusion that, due to the burn patterns
inside the vessel, the fire had been deliberately set, St. Paul
set out to investigate why someone who might have access to the
TWO FRIENDS would wish to destroy it. This goes to motive.
Evidence was presented that the plaintiff company F&D,
along with its principle shareholders (various members of the
Ferrara-DiMercurio family), was in dire financial trouble. The
2 Although not placed before the jury, through initial
discovery both parties learned that a Gloucester police officer
had information based on an anonymous source that someone was
seen fleeing the scene of the fire and that the fire had been
deliberately set. When the police officer refused to reveal
his source, the district judge who presided over the first trial
(Judge Tauro) ordered that no evidence of this anonymous tip was
to be admitted in the trial. No jury ever heard anything about
this anonymous informant. The jury in the third trial did
learn, however, through an answer of one of St. Paul’s experts
under cross-examination, that a protective order was in place as
to certain subjects relevant to the initial investigation of the
cause of the fire. Whether what the jury heard as to the
protective order poisoned the trial for the plaintiff is the
subject of Part II.C. infra.
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company, organized as a commercial fishing venture in 1987, was
losing money and was unable to meet its mortgage payments on the
vessel to Gloucester Bank & Trust Company. In fact, F&D had
operated at a loss since its inception. As the company fell
further behind in its payments, the bank threatened to foreclose
not only on the boat mortgage, but on the collateral that was
pledged on the loan for the F/V TWO FRIENDS, such as the
personal homes of the individual shareholders.
Despite successfully negotiating various repayment
plans, F&D continued to have difficulties making timely payments
to the bank. So, in April 1993, in an effort to quell those
financial troubles, F&D and Gloucester Bank & Trust Company
agreed that F&D would attempt to sell the TWO FRIENDS for
$225,000, a sum that was $150,000 less than the price F&D paid
for the vessel in 1987 and significantly less than the
outstanding balance of the debts owing, which totaled more than
$425,000. The jury heard testimony that the boat was insured
for $350,000 under a Hull Policy issued to F&D in 1992 by St.
Paul, a sum which if collected by F&D might have protected the
homes of the Ferraras and DiMercurios from foreclosure.
The standard for admissibility under Federal Rule of
Evidence 401 is a liberal one. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of
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consequence to the determination of the action more probable or
less probable than it would be without that evidence.” We think
the existence of a motive and an opportunity to burn an
undisputedly locked boat from the inside-out tends to make the
disputed issue -- whether the fire aboard the F/V TWO FRIENDS
was an act of arson -- more probable, especially in light of the
conflicting expert testimony as to incendiarism. See Part II.B
infra. Given especially the nisi prius court’s superior vantage
point for discerning relevance and the broad discretion accorded
to it in doing so, see, e.g., United States v. Tierney, 760 F.2d
382, 387 (1st Cir. 1985), we can find no error in Judge
Harrington’s determination of relevance.
Unpersuaded, as are we, by plaintiff’s argument under
Fed. R. Evid. 401, Judge Harrington pushed plaintiff to move
forward, on to the balancing required by Federal Rule of
Evidence 403.3 “As with Rule 401, the district courts have
considerable discretion in calibrating the Rule 403 scales.”
United States v. Griffin, 818 F.2d 97, 101 (1st Cir. 1987).
This is primarily because “Rule 403 balancing is a
3
Federal Rule of Evidence 403 directs district courts to
exclude evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.”
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quintessentially fact-sensitive enterprise and the trial judge
is in the best position to make such factbound assessments.”
Udemba v. Nicoli, ___ F.3d ___,___ (1st Cir. 2001) [No. 00-1246,
slip. op. at 12]. “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 weighing of probative value and
unfair effect.” Id. (citing Freeman v. Package Mach. Co.,
865
F.2d 1331, 1340 (1st Cir. 1998)).
After a lengthy discussion, Judge Harrington took the
matter of Rule 403 balancing under advisement. Two weeks later,
on the first day of trial but before jury empaneling began,
Judge Harrington informed counsel that he would allow defendant
to proffer evidence of motive and opportunity as he determined
that “such evidence’s probative value outweighs any prejudice to
the plaintiff.”
Plaintiff’s arguments to the contrary, it is not the
case that Judge Harrington’s decision was arbitrary or unfounded
or that he failed to provide a reasoned decision for admitting
the evidence despite its prejudicial effect. See Brief for the
Appellants at 29. The pre-trial colloquy during which the
district court explained its difficulties with plaintiff’s
position provides ample support for the district court’s ruling
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allowing defendant to put before the jury evidence of
plaintiff’s motive and opportunity to burn its own boat. The
matter of the admissibility of this evidence and its prejudicial
effect was debated at length, with due consideration to the
rulings we made in Ferrara I and the nature of the evidence as
a whole.
Judge Harrington correctly isolated the issue as one
of balancing prejudice against the demonstrably probative value
of the motive and opportunity proffer. As we have said in the
past,
The fact that a piece of evidence hurts a
party’s chances does not mean it should
automatically be excluded. If that were
true, there would be precious little left in
the way of probative evidence in any case.
The question is one of “unfair” prejudice -
- not of prejudice alone.
Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.
1987)(quotation marks omitted). See also Dollar v. Long
Manufacturing, N.C., Inc.,
561 F.2d 613, 618 (5th Cir. 1977)
(“Virtually all evidence is prejudicial or it isn't material.
The prejudice must be 'unfair'."), cert. denied,
435 U.S. 996,
98 S. Ct. 1648,
56 L. Ed. 2d 85 (1978). Although evidence of
motive and opportunity would plainly further defendant’s case at
the plaintiff’s expense, plaintiff failed to show unfair
prejudice. Given this, and the obvious relevance of the
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evidence to the defendant’s affirmative defense, the district
court did not abuse its discretion when it denied F&D’s motion
to exclude.
B. John Malcolm’s Expert Testimony as to Cause and Origin
Much of the two-week trial before Judge Harrington was
a battle between the experts concerning whether the fire was
accidental or of incendiary origin. Defendant’s expert, John
Malcolm, concluded that the fire on the TWO FRIENDS had three
points of origin and was deliberately set. Plaintiff’s expert,
Paul Sullivan, testified that an accidental electrical fire
started in the lower electrical panel and exploded in a so-
called flash-over igniting everything in the super-heated
compartments of the vessel.
Beyond the conflicting expert opinions, the battle also
raged over whether John Malcolm should be allowed to testify as
St. Paul’s cause-and-origin expert. It is on this issue that
F&D appeals. F&D contends that John Malcolm should not have
been permitted to render an expert opinion as to cause and
origin because (1) his opinion was based on unreliable data,
viz, data not collected by him personally and (2) St. Paul
failed to supplement its expert disclosures to include Malcolm’s
testimony regarding cause and origin. Before going into the
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merits of these arguments, we recount the history of Malcolm’s
involvement in this case.
As soon as four days after the fire, St. Paul had hired
Fred O’Donnell as its expert to investigate the origin and cause
of the fire. Fred O’Donnell then hired John Malcolm as an
electrical systems expert to assist him in that investigation.
On July 8, 1993, the two men began their investigation on site
in Gloucester where the boat remained moored.
O’Donnell and Malcolm worked closely with each other.
Malcolm testified that together, sometimes with Malcolm holding
the measuring tape for O’Donnell, the two took measurements of
the vessel in preparation for producing scale drawings to assist
in the investigation and their report. Although Malcolm’s job
for which O’Donnell had retained him was to pay close attention
to the boat’s electrical system, the two men worked in tandem,
often double-checking each other’s observations and analyses by
calling each other over to various burn sites on the vessel to
coordinate their data collection and inquiries.
During the first two trials, O’Donnell and Malcolm both
testified as experts, O’Donnell as to the fire’s cause and
origin and Malcolm as to related but narrower questions
concerning the fire and the boat’s electrical system.
Unfortunately, however, between the first appeal and the third
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trial, O’Donnell died. For the third trial, then, instead of
replacing O’Donnell with an outside cause-and-origin expert,
defendant decided that Malcolm would testify as St. Paul’s only
fire expert, providing opinions on both cause and origin and the
vessel’s electrical system. This decision is the source of
F&D’s objection regarding the admissibility of Malcolm’s
testimony. F&D argued to the district court, as it does to us
now, that Malcolm was not competent to testify as to cause and
origin as his testimony was principally based not on his own
observations but on those made by O’Donnell. F&D also argues
that designating Malcolm as a cause-and-origin expert so close
to trial unduly prejudiced their case against St. Paul. At
least, F&D contends, St. Paul should have supplemented its
interrogatory answers and expert reports to include Malcolm’s
anticipated expanded testimony.
To the extent, if at all, that F&D is complaining that
Malcolm lacked qualifications sufficient for the court to permit
him to testify as a cause-and-origin expert, that complaint is
unavailing. After considering Malcolm’s training and
experience, the district court, acting pursuant to Federal Rule
of Evidence 702, ruled that Malcolm was qualified. That ruling
fell within the broad purview of the trial court’s discretion.
See Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir.
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2000) (“It is well-settled that 'trial judges have broad
discretionary powers in determining the qualification, and thus,
admissibility, of expert witnesses.’”) (citing Richmond Steel
Inc. v. Puerto Rican Am. Ins. Co., 954 F.2d 19, 20 (1st Cir.
1992)). Malcolm’s qualifications as a fire analyst are, in
fact, considerable. He has master and journeyman electrical
licenses from Massachusetts and New Hampshire; he has been
consulting as a fire investigator since 1963; and, in 1991, he
was qualified as a Certified Fire Investigator by the
International Association of Arson Investigators. Malcolm had
been qualified twice before as an expert in this case to render
an opinion regarding the electrical system’s contribution to the
fire aboard the vessel.4 After hearing Malcolm’s testimony
4F&D argues in an aside that Malcolm’s qualifications as a
cause-and-origin expert were rejected by two previous trial
judges and that this is proof that Malcolm should not have been
able to testify as a cause-and-origin expert during the third
trial before Judge Harrington. It is not clear to us, however,
that the two judges presiding in the previous trials believed
that Malcolm lacked qualifications as a cause-and-origin expert.
These judges limited Malcolm’s testimony to electrical systems
in trials where O’Donnell was offered as the defendant’s cause-
and-origin expert. Limiting Malcolm’s role where someone else
was tendered as the cause-and-origin expert expedited the trial
by eliminating duplicative testimony. Neither district judge
determined that Malcolm was not qualified as an expert on cause
and origin should O’Donnell have failed to testify.
Furthermore, the views of prior judges about Malcolm would be
largely irrelevant here. A presiding judge has broad discretion
in his or her determinations regarding expert qualifications.
See Poulin v. Greer, 18 F.3d 979, 984 ( 1st Cir. 1994); cf.
General Elec. v. Joiner,
522 U.S. 136, 142-43,
118 S. Ct. 512,
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regarding his knowledge, skill, experience and training in fire
analysis, Judge Harrington exercised sound discretion in
concluding that Malcolm was qualified to render an expert
opinion on cause and origin as well as on the vessel’s
electrical system. See Richmond Steel, 954 F.2d at 20.
1. Rule 703 Objection
F&D’s next objection, although not crafted as such, is
essentially a Rule 703 objection. F&D claims that Malcolm’s
opinion as to cause and origin was based on unreliable data,
viz, data provided by the late Fred O’Donnell and not that which
was collected through Malcolm’s own personal observation.
A major problem with this argument is that Malcolm
himself had visited the fire scene and examined the evidence
there side by side with O’Donnell. Besides looking at burn
patterns and studying the electrical system, he took
measurements and photographs and wrote his own report. He also
interviewed the vessel’s engineer. Many photographs of evidence
at the scene were entered into evidence by stipulation. Hence,
517, 139 L. Ed.2d 508 (1997) (holding that appeals courts review
trial court decisions to admit or exclude expert testimony under
Daubert on an abuse of discretion standard). Circumstances
change from trial to trial, and admissibility rulings may also
change from judge to judge and trial to trial.
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it is simply not the case that Malcolm’s cause-and-origin
opinion rested mainly upon O’Donnell’s investigations.
To be sure, Malcolm’s opinion coincided with
O’Donnell’s and he testified that he read O’Donnell’s report in
preparation for his expert testimony, along with the report of
the local fire department. But the opinion he rendered was his
own, and, as said, he had first-hand knowledge of the fire scene
and the observable facts there upon which to base that opinion.
Federal Rule of Evidence 703 allows Malcolm to have taken
O’Donnell’s report and opinion into account when forming his own
expert opinion. So long as the basis of Malcolm’s opinion did
not extend beyond facts or data “of a type reasonably relied
upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be
admissible in evidence.” Fed. R. Evid. 703. We think a cause-
and-origin expert like Malcolm could be expected to examine the
report of another expert like O’Donnell as well as the fire
department’s report in the course of forming his own opinion
derived from a variety of sources, including his own first-hand
knowledge of the primary evidence at the fire scene. See
Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 770 (1st
Cir. 1986).
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This court has said that when an expert relies on the
opinion of another, such reliance goes to the weight, not to the
admissibility of the expert’s opinion. See Forrestal v.
Magendantz, 848 F.2d 303, 306 (1st Cir. 1988). See also Newell
Puerto Rico, Ltd. v. Rubbermaid Inc.,
20 F.3d 15, 21 (1st Cir.
1994)(“When the factual underpinning of an expert opinion is
weak, it is a matter affecting the weight and credibility of the
testimony -- a question to be resolved by the jury.”). In the
present case, the jury understood that Malcolm’s observations
coincided with those of the deceased expert hired by defendant
and that, until recently, Malcolm’s only job was to advise and
supplement O’Donnell’s conclusions as to the cause and origin of
the fire with his own opinion concerning the role of the
vessel’s electrical system in the fire. Thus, in weighing and
evaluating Malcolm’s opinion, the jury was able to determine
whether it was in some way weakened by reliance upon
O’Donnell’s.
We find no error in the district court’s ruling that
Malcolm’s opinion as to cause and origin was properly admitted.
2. No Prejudice in Last-Minute Expert Designation
F&D’s next objection to Malcolm’s testimony is that F&D
was prejudiced by Malcolm’s tardy designation as the cause-and-
origin expert. On June 21, 1999, at the first pre-trial
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conference before Judge Harrington following the mandate from
this court, St. Paul informed both F&D and the district court of
its decision to proceed without a replacement for O’Donnell and
with Malcolm as both its cause-and-origin expert and its
electrical systems expert. The trial was set for October 4,
1999, more than three months later. F&D contends that three
months before the trial was too late to be designating a new
expert. Furthermore, F&D contends that had St. Paul wished to
avoid the prejudice of such a tardy expert designation, St. Paul
should have supplemented its answers to interrogatories naming
Malcolm as the substitute expert for the late O’Donnell and
disclosing the content of his expanded testimony.
At a final pre-trial conference on October 1, 1999,
Judge Harrington heard arguments and informed both parties that
as long as defendant could qualify Malcolm as an expert on cause
and origin, his testimony as to cause and origin would be
admitted. Also at that pre-trial conference, Judge Harrington
allowed plaintiff to add an expert to its witness list (Paul
Sullivan) under the condition that defendant be given the
opportunity to depose the additional expert before the trial.
Plaintiff did not request additional time to depose Malcolm,
however, presumably because Malcolm had testified previously as
an electrical expert at both trials and because St. Paul
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represented that Malcolm’s testimony as to cause and origin
would be substantially similar to the late O’Donnell’s testimony
on cause and origin.
We find no merit in F&D’s argument that June 21, 1999
was too late to designate a new expert. F&D itself designated
a replacement expert less than two weeks before trial. However,
F&D rightly objects to St. Paul’s failure to supplement its
interrogatory answers or its expert reports naming Malcolm as
the substitute expert for the late O’Donnell and adding
Malcolm’s expanded testimony pursuant to Rule 26 of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 26(e)(1)
(requiring a party to supplement its answers to interrogatories
in order to inform another party of a material change in or
addition to information contained in an expert’s pre-trial
report). As we have stated, “[t]his supplementation requirement
increases the quality and fairness of the trial by narrowing
[the] issues and eliminat[ing] surprise.” Licciardi v. TIG Ins.
Group, 140 F.3d 357, 363 (1st Cir. 1998)(alterations in
original)(quotation marks and citations omitted). The question
here is whether St. Paul’s failure to adhere strictly to the
requirements of Rule 26(e)(1) – failing to substitute Malcolm
for O’Donnell as its cause-and-origin expert in their expert
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disclosures – thwarted the reason for the rule and materially
prejudiced F&D in its efforts to present its case.
A careful review of the record convinces us that F&D
suffered no actual prejudice. First, F&D in fact had notice of
Malcolm’s designation as the cause-and-origin expert as early as
June 1999, more than three months before the trial date. See
Newell Puerto Rico, 20 F.3d at 20. F&D moved neither to
redepose Malcolm (as St. Paul did of F&D’s newly designated
expert Paul Sullivan) nor for a continuance of the trial.
Second, there was no meaningful change in the testimony
presented by St. Paul regarding cause and origin from the first
trial to the third. The only consequential change to which F&D
objects was that O’Donnell’s cause-and-origin testimony was
replaced by similar testimony from Malcolm. Yet not only was
Malcolm’s testimony similar to O’Donnell’s, Malcolm himself was
not an unknown quantity to F&D. He had testified as an expert
witness in the two previous trials and had made clear as early
as in 1995, during deposition testimony and trial testimony,
that he thought the fire was deliberately set with three points
of origin. For this reason, F&D’s contention that the content
of Malcolm’s expert opinion came as a surprise is unpersuasive.
This is not a case in which the expert’s testimony departed from
the general scheme of his opinion or any other expert opinion
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submitted to F&D on behalf of St. Paul’s case. Nor is it a case
in which a party was hindered in its ability to formulate a
response or adequately cross-examine the new expert as to the
foundations for his opinion. See Johnson v. H.K. Webster, Inc.,
775 F.2d 1, 8 (1st Cir. 1985) (stating that among the factors to
consider when assessing a claim of error under Rule 26 is “the
ability of the [opposing party] to formulate a response”). When
asked during oral argument of this appeal whether Malcolm’s
testimony was contrary to or in a material way different from
his opinion as contained in the reports submitted to F&D, F&D’s
counsel conceded that Malcolm did not change his opinion, but
rather he only expanded its scope to include that which was
previously encompassed by O’Donnell’s testimony and reports. As
we can see no material prejudice, we affirm the trial court’s
admission of Malcolm’s testimony. In so doing, we of course do
not condone St. Paul’s failure to adhere to its Rule 26(e)(1)
obligations, a mistake which has needlessly burdened the parties
and this court with an appellate issue.
C. Malcolm’s Reference Under Cross-Examination to Protective
Order
Plaintiff’s third claim of trial error concerns a
purported violation of a protective order into which the parties
entered in 1995. Plaintiff contends that John Malcolm’s
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response to a question on cross-examination was a deliberate
disclosure of information subject to that protective order and
so prejudiced the case against F&D that Judge Harrington abused
his discretion when he failed to grant plaintiff’s motion for a
mistrial. In context of the whole colloquy between plaintiff’s
counsel and Malcolm, Judge Harrington’s instructions to the jury
and Malcolm’s answer to plaintiff’s follow-up question, we find
no prejudice and no trial error. Before we explain, some
background history is necessary.
In 1995, during a pre-trial conference preceding the
first trial, another district judge issued a protective order
that was to follow the parties throughout the case before him
and through any subsequent proceedings. That order prevented
any mention during trial of an alleged anonymous police
informant who, among other things, reported witnessing a man
running away from the F/V TWO FRIENDS just moments before the
fire began. (The order resulted from the refusal of the police
officer to name the informant.) Although the testifying experts
in the case, including John Malcolm, knew of the anonymous
informant and of the protective order, the specter of the
anonymous informant remained out of the jury’s view until, at
least, the incident in question.
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During the third trial, in an apparent attempt to draw
the jury’s attention to the alleged fact that Malcolm had
limited personal knowledge of the fire scene, plaintiff began
grilling Malcolm on cross-examination as to the source and depth
of his knowledge. Plaintiff asked:
Question: “You didn’t discover in your
investigation of this fire any
witnesses to the fire, did you?”
Malcolm: “Myself, no, because again –“
Question: “Okay, you found no witnesses to
the fire. In fact, the
information you have is that
nobody was on that vessel for a
full ten hours prior to the
Gloucester Fire Department
responding to that fire; isn’t
that right? Isn’t that the
information that you have?”
Aware that there were allegations of such an eyewitness, but
that he was not allowed to say so, Malcolm responded: “Well, I
have some other information that I don’t believe we’re supposed
to talk about.”
An immediate side-bar ensued during which Judge
Harrington, who had no knowledge of the protective order,
learned of its purpose and parameters. Plaintiff moved for a
mistrial. Judge Harrington denied plaintiff’s motion and
solicited suggestions from both counsel about how to correct the
erroneous disclosure. Counsel discussed various ways of
rephrasing the question so that Malcolm would deny any personal
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knowledge of witnesses to the fire. When the side-bar ended,
Judge Harrington instructed the jury that the last question and
the last answer were stricken and were not to be considered
evidence in the case. Plaintiff’s counsel then asked the
following question -- “Mr. Malcolm, you have no personal
knowledge that anyone was on that vessel for ten hours before
the Gloucester Fire Department responded to that fire; is that
correct?” -- to which Malcolm replied, “That’s correct.”
Plaintiff’s counsel continued with the cross-examination and the
matter was left to rest, never to be mentioned again until the
post-trial motion for sanctions.
Our decision to uphold the district court’s ruling
requires only a brief explanation. First, Malcolm’s initial
response to plaintiff’s question did not reveal the existence of
an anonymous informant with information tending to show that the
fire aboard the F/V TWO FRIENDS was an act of arson, an answer
prohibited by the protective order. To the contrary, all
Malcolm’s answer suggested was that he had some other
information about the circumstances surrounding the fire that he
was not permitted to reveal. Whether the information that he
had and that he was required to keep confidential would further
plaintiff’s case or defendant’s case was not clear from
Malcolm’s statement. Furthermore, had Malcolm affirmed, as
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plaintiff desired, that the information he had was that nobody
was on the vessel for a full ten hours prior to the Gloucester
Fire Department responding to that fire, Malcolm would have
been stating a literal untruth. A better phrased question, such
as the one that followed the side-bar, would have side-stepped
any trouble, enabling Malcolm to testify truthfully yet adhere
to the terms of the protective order.5
Second, any remote prejudice that plaintiff could
arguably claim is alleviated by Malcolm’s answer to plaintiff’s
follow-up question and by Judge Harrington’s curative
instructions, striking the first question and answer. Judge
Harrington immediately instructed the jury to strike the first
question and answer, that they were not to consider it as
evidence in the case. See United States v. Sepulveda, 15 F.3d
1161, 1184 (1st Cir. 1993) (stating that “[s]wiftness in
5 Compare the first question,
“Okay, you found no witnesses to the fire. In fact,
the information you have is that nobody was on that
vessel for a full ten hours prior to the Gloucester
Fire Department responding to that fire; isn’t that
right? Isn’t that the information that you have?”
with the second, follow-up question,
“Mr. Malcolm, you have no personal knowledge that
anyone was on that vessel for ten hours before the
Gloucester Fire Department responded to that fire; is
that correct?”.
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judicial response is an important element in alleviating
prejudice once the jury has been exposed to improper
testimony”). It is presumed that the jury will follow such
instructions unless “it appears probable that ... responsible
jurors will not be able to ... and, moreover, that the testimony
will likely be seriously prejudicial to the aggrieved party.”
Id. at 1185. Plaintiff cannot show a likelihood of prejudice as
Malcolm’s response to F&D’s follow-up question, a slightly
different (but better) version of the first question, see
note
7 supra, placed before the jury the favorable testimony that F&D
had sought from the original question. The jury heard Malcolm’s
unqualified denial that he had any personal knowledge that
someone had been aboard the F/V TWO FRIENDS between the hours of
4:30 p.m. on July 2nd and 2:30 a.m. on July 3rd of 1993.
In sum, Judge Harrington’s rapid curative instruction
in addition to the follow-up question and answer eliminated any
remote possibility of prejudice. Judge Harrington did not abuse
his discretion in denying defendant’s motion for a mistrial.
See Sepulveda, 15 F.3d at 1184 (standard under which the
appellate court reviews the district court’s granting or denial
of a motion for a mistrial is abuse of discretion).
III. REMAINING ISSUES
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Plaintiff raises two other issues on appeal, both of
which lack merit. We discuss them briefly below.
A. Plaintiff’s Post-Trial Motion for Sanctions
After the jury returned a verdict for the defendant,
F&D filed a host of post-trial motions, among them a motion for
sanctions based on what it alleges was a “knowing violation of
the [protective order]. It is the plaintiff’s position that this
violation was intentional, and that the statement was made with
the explicit purpose of prejudicing the jury.” When considered
along side of other purported discovery abuses, plaintiff claims
that the district court’s denial of sanctions was an abuse of
discretion.
As we have already determined, Malcolm’s answer was not
unwarranted in response to the question asked. His interrogator
was at least as much at fault as Malcolm in eliciting an answer
that skirted the outer limits of the protective order.
Moreover, F&D suffered little if any prejudice from the
exchange. In the circumstances, and taking into account the
fact that the district judge, who had lived with the case, was
unpersuaded that plaintiff had cleared the high hurdle required
to support a claim of fraud on the court or a motion for
sanctions, we can only affirm the district court’s ruling
denying plaintiff’s motion for sanctions. See Spiller v. U.S.V.
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Laboratories, Inc., 842 F.2d 535, 537 (1st Cir. 1988) (stating
that a party complaining to an appellate tribunal with respect
to trial-level sanctions "bears a heavy burden of demonstrating
that the trial judge was clearly not justified in entering [the]
order"). See also Anderson v. Beatrice Foods Co.,
900 F.2d 388,
393 (1st Cir. 1990) (stating that the hard-to-meet standard of
abuse of discretion is a “rule ... anchored in common sense” and
quoting Fashion House, Inc. v. K Mart Corp.,
892 F.2d 1076, 1082
(1st Cir. 1989) with its explanation that because "[d]istrict
judges live in the trenches....[they] are, by and large, in a
far better position than appellate tribunals to determine the
presence of misconduct and to prescribe concinnous remedies").
We see no abuse of discretion.
B. Plaintiff’s Challenge to Ferrara I
Plaintiff’s remaining challenge to the judgment below
is an assertion that the district court “erred in following the
reasoning of the United States Court of Appeals in the case of
[Ferrara I], in concluding that the defendant need only prove
that the fire in question was incendiary in nature or
deliberately set.” Appellant’s Brief at 10. Citing United
States v. Rivera-Martinez, 931 F.2d 148 (1st Cir. 1991),
plaintiff argues that the district court should have reevaluated
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this court’s reasoning and deviated from the holding of Ferrara
I in order to avoid manifest injustice.
Putting aside the impropriety of asking a district
court to overturn a determination made by this court, we observe
that plaintiff never asked Judge Harrington to deviate from the
holding of Ferrara I. On the contrary, during a pre-trial
colloquy, the parties discussed with the district court the way
to best formulate jury questions and decide issues of
admissibility of evidence in light of the holding of Ferrara I.
The wording of the question put to the jury, “Do you find that
the defendant ... has established by a preponderance of the
evidence that the fire was of an incendiary nature or
deliberately set?”, was stipulated to by both parties, obviating
any possible claim at this time that the question itself
oversimplified Ferrara I’s holding. It is axiomatic that an
issue not presented to the trial court cannot be raised for the
first time on appeal absent plain error. See Hammond v. T.J.
Litle & Co., Inc., 82 F.3d 1166, 1172 (1st Cir. 1996). Nor are
there reasons apparent from the record for abandoning the law of
the case doctrine. See
Rivera-Martinez, 931 F.2d at 151 (citing
the “litany of exceptional circumstances sufficient to sidetrack
the law of the case” -- such as “the evidence on a subsequent
trial was substantially different, controlling authority has
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since made a contrary decision of the law applicable to such
issues, or the decision was clearly erroneous and would work a
manifest injustice”).
For all of these reasons, we find no error in the
district court’s rulings. The judgment below is affirmed.
So ordered. Costs to appellee.
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