USCA1 Opinion
December 14, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2473
No. 93-1801
CAROL GAGNE FUSCO,
Plaintiff, Appellee,
v.
GENERAL MOTORS CORPORATION,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on December 6, 1993, is
amended as follows:
On page 4, line 1 of first full paragraph, replace "General
Motors'" with "General Motors".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2473
No. 93-1801
CAROL GAGNE FUSCO,
Plaintiff, Appellee,
v.
GENERAL MOTORS CORPORATION,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Thomas J. Sweeney with whom Howard B. Myers, Terrence E. Haggerty
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and Bowman and Brooke were on brief for appellant.
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Robert K. Mekeel with whom Law Offices of Joseph F. McDowell,
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III, P.A., William J. Murphy, Robert T. Shaffer, III and Murphy &
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Shaffer were on brief for appellee.
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December 6, 1993
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BOUDIN, Circuit Judge. Carol Fusco was injured in a car
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accident and brought suit against General Motors, the car's
manufacturer. A jury awarded Fusco $1 million in damages and
General Motors has appealed, challenging rulings on evidence
and discovery made by the district judge. We affirm.
I.
On December 15, 1986, Fusco was driving her car, a
Chevrolet Chevette, near Pelham, New Hampshire. Her car
suddenly left the roadway, slid across an ice-covered
embankment, and hit a telephone pole somewhere along the
front left side of the car. Fusco was injured.
Fusco brought suit against General Motors in state court
in New Hampshire, claiming that a key component in the
steering system--the front left "ball stud"--had broken from
metal fatigue and caused the disaster.1 General Motors
removed the case to federal district court and took the
position that the ball stud had not been the cause of the
accident but rather had fractured when the car hit the
telephone pole. A jury trial, begun on July 7, 1992,
resulted in an evenly divided hung jury, and the district
court promptly ordered a second trial for November 16, 1992.
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1It appears that the ball is a spherical object with a
protruding stud; that the ball and stud together form part of
the elaborate connection (via the tie rod and steering gear)
between the tire wheel or axle and the steering wheel. If
the stud breaks entirely, the tire wheel is no longer
controlled by the steering wheel.
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At the second trial Fusco offered eyewitness testimony
that her car had abruptly veered off the highway and collided
with a telephone pole. A state trooper who arrived first at
the accident testified that the car was resting against the
pole near the hinge pillar on the driver's side, a location
between the door and the left front fender. Fusco offered
two experts (Robert Walson and Carl Thelin) who, based in
part on this testimony and their examination of the broken
ball stud, concluded that metal fatigue had caused the stud
to break, causing the steering apparatus to fail and the car
to veer into the pole.
Walson, a metallurgist, testified that the surface of
the broken ball stud taken from Fusco's car was
characteristic of a fatigue, rather than an impact, fracture.
He supported his opinion in several ways including his
pretrial examination of the surface of the ball stud under a
scanning electron microscope; he was fiercely cross-examined
by General Motors about this examination. Thelin, an
automotive engineer, testified that General Motors' design
and quality control of the ball stud were inadequate. Based
on partial reconstruction of the accident, he also challenged
General Motors' argument that the telephone pole impact could
have broken the ball stud.
General Motors' case included testimony from its expert
Jerry Chiddister who reconstructed the accident based on his
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experience with many crash tests. In his view, the car had
"sideslipped" into the telephone pole, causing the car to
slide along the pole starting at the front left fender and
ending with the pole lying next to the door hinge column. He
opined that on its travel down the side of the car, the pole
hit the front left tire and the impact broke the ball stud, a
predictable occurrence given the estimated speed of the car.
Had the stud broken before the car veered, Chiddister said
that there would have been a heavy black tire mark on the
road because the uncontrolled tire would have dragged as the
car slid off course.
Kirk Ulman, another General Motors expert, testified
that he had examined the ball stud itself. He explained why
the location of the break (at the neck of the stud), the
surface of the break (grainy with chevron marks), and other
characteristics meant that impact and not fatigue was the
cause. James Willis, who worked in General Motors' facility
that made the steering gear, testified to quality control and
the nature of simulated fatigue fractures. Ray Schultz, a
metallurgist, confirmed Ulman's testimony on key points.
The jury rendered a verdict in favor of Fusco and
awarded her $1 million in damages. General Motors then
appealed. In its brief General Motors does not challenge the
sufficiency of Fusco's evidence but confines itself to
contesting several evidentiary and discovery rulings, rulings
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that can only be understood against the backdrop of the
testimony already described. Although these claims of error
are not frivolous, we do not think that any of them warrants
further proceedings.
II.
General Motors' first claim on appeal is that the
district court erred in ruling, prior to the first trial,
that two videotapes--the "driving tapes"--were inadmissible.
The main tape made in 1992 has two parts. In the indoor
part, Ulman used a car mounted on a lift to display the
function of the ball stud and tie rod and showed how in this
demonstration the connection between the stud and the tire
wheel or axle had been altered in the test vehicle so that
the stud could be released deliberately from inside the car.
In the outdoor part, filmed at a General Motors test
track, Ulman drove the Chevette while Willis, sitting in the
passenger seat, intentionally disconnected the tie rod from
the tire wheel. The film showed that, when the left wheel
finally separated from the rod, the wheel flopped out of
alignment with the right wheel and dragged on the highway
apparently creating a long black skid mark. The car did not
veer out of control or hit the track barrier. The other
tape, made in 1986, simply showed a similar test track
demonstration with a different driver and passenger. Thus,
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there is no need for an independent discussion of this tape.
When General Motors produced the tapes to Fusco in June
1992, shortly before the first trial, Fusco made a motion in
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limine to exclude them, arguing that the test track
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conditions did not duplicate the conditions that existed at
the time of the actual accident. In an oral ruling on July
8, 1992, the trial judge granted the motion. Although
General Motors argues that the exclusion of the tapes was
error, it did not seek to offer the tapes at the second
trial.
Seizing on this omission, Fusco argues that General
Motors has waived its right to argue that the exclusion was
error. Fusco points to cases holding that an in limine
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ruling on evidence may not be reviewed on appeal unless the
offer or objection is renewed when evidence is actually
presented at trial. This court has made general statements
to this effect, e.g., United States v. Reed, 977 F.2d 14, 17
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(1st Cir. 1992), in cases where the in limine motion to
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exclude was denied and the opponent of the evidence failed to
renew the objection at trial. We have found no case in this
circuit, however, where an in limine motion to exclude was
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granted and the proponent of the evidence, by failing to
renew the offer at trial, was found to have waived the issue.
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Where an objection to evidence has been overruled in
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limine, it makes sense to require that the objection be
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renewed at trial. However definite the denial of the motion
to exclude prior to trial, it is child's play for the
opponent of the evidence to renew the objection when the
evidence is actually offered; and requiring this renewal
gives the trial judge a chance to reconsider the ruling with
the concrete evidence presented in the actual context of the
trial. The only criticism one might offer of the requirement
is that the Federal Rules of Evidence say nothing about a
second objection,2 but any practiced trial lawyer knows that
much of the law of evidence is not contained in these written
rules.
On the other hand, where the motion in limine is
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granted, and the proponent of the evidence is told that the
evidence will not be admitted, the situation is different.
To require that the evidence be offered again at trial would
certainly give the trial court a second chance, but doing so
can hardly be described as easy: on the contrary, the
proponent would have to engage in the wasteful and
inconvenient task of summoning witnesses or organizing
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2The Federal Rules of Evidence do not address in limine
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motions at all. Instead the rules require in general terms
that, to preserve a ruling on evidence for appeal, the
proponent of evidence make its substance known to the court
and an opponent make known the objection to the evidence and
the ground of the objection. Fed. R. Evid. 103(a).
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demonstrative evidence that the proponent has already been
told not to offer. Indeed, in many cases the prior grant of
the in limine motion would make it improper to call such
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witnesses without prior permission. All the proponent could
do would be to line up the witnesses at trial and then ask
permission.
Although a symmetrical rule may be preferable if all
else is equal, all else is not equal here. Where a court
rules in limine that certain evidence is excluded but the
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ruling is merely tentative or qualified, then the proponent
might well have to offer the evidence at trial in order to
preserve an appeal on the issue. Fed. R. Evid. 103(a). But
where the pretrial proffer is adequate and evidence is
excluded unconditionally by a pretrial order, then we think
that the proponent has preserved the issue for appeal and
(other circumstances being unchanged) need not bring the
witness to court and proffer the evidence again at trial.
See McQuaig v. McCoy, 806 F.2d 1298, 1301-02 (5th Cir.
___ _______ _____
1987).3 The result is the same here where the in limine
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3Preserving the claim of error based on exclusion of
evidence requires an adequate proffer, so that the trial and
appellate courts know what evidence is at issue. Fed. R.
Evid. 103(a). There may also be cases where a change in
circum-stances, after the in limine ruling but before trial,
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might make it unreasonable for the proponent to rely on the
solely in limine ruling to preserve the issue (a new basis
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for admissibility might arise or the court's initial reason
for exclusion might be mooted).
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order preceded the first trial because no one disputes that
the same order governed the second trial.
Needless to say, most district judges are very cautious
about making a definitive ruling in limine that evidence will
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not be received at trial. Trial judges know better than most
that many issues are best resolved in context and only when
finally necessary. But here, as happens from time to time,
the trial judge did rule definitively that the evidence would
not be admitted. The proffer was adequate since the tapes
were apparently available to the court. And no change in
circumstances occurred after the in limine ruling that might
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have affected the controlling ground for exclusion or cast
any doubt on the trial judge's intention to abide by the
original ruling.
Thus we turn to the merits of the ruling excluding the
driving tapes. The oral ruling was terse ("You don't have to
argue it. I'm not going to let it in.") but the district
judge had a written motion from Fusco, and a written response
from General Motors, and made the ruling only after allowing
both sides to argue their points orally. Fusco's main
objection was that the taped scene on the test track did not
adequately replicate the conditions of the accident. Merely
to state the obvious, no one claimed that the accident had
occurred when a jury-rigged cotter pin was pulled from the
ball stud by a wire leading into the passenger seat. Another
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facially obvious difference is that the test car was driven
by an experienced driver who expected the break to occur.
General Motors readily admitted that the conditions were
not the same but argued that the tape was admissible to show
general scientific principles and that the dissimilarities
went to weight and not admissibility.4 It repeats this
argument on appeal, adding that under Fed. R. Evid. 403 the
burden was upon Fusco (as the opponent of the evidence) to
show that prejudice substantially outweighed probative value.
General Motors says that not only did Fusco fail to show that
the dissimilarities were important but, in addition, General
Motors' own experts would have said that the dissimilarities
were not significant.
The problems raised by demonstrations of this kind are
interesting and important. The test track replication shown
on the driving tapes (this court was furnished with copies of
the tapes) is vivid and pertinent: one sees, in a way that no
words could capture, the tire wheel flip out of alignment and
the tire then dragging on the track. The impression left is
that such an accident would leave a tire streak, as claimed
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4General Motors does not claim that the indoor portion
of the tape was admissible independently; and indeed most of
the indoor portion was merely to lay the groundwork for the
test. The indoor portion did show Ulman using a straw, in
place of the stud, to show how the stud could be bent by an
impact on the rear portion of the wheel, but General Motors
does not claim that this brief sequence justified the tape,
and it could easily have been replicated in court with a
mock-up.
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by General Motors, and that the car is more likely to flop
and drag than to veer sharply off the road. A lay juror,
asked whether a look at the tapes would be helpful, would
likely answer yes.
The case law in this area is muddled, as one might
expect, but the tendency of the court is to treat this class
of demonstrative evidence more skeptically than would the lay
juror. The concern lies not with use of tape or film (the
issue would be largely the same if the jurors were taken to
the test track for a live demonstration) but with the
deliberate recreation of an event under staged conditions.
Where that recreation could easily seem to resemble the
actual occurrence, courts have feared that the jurors may be
misled because they do not fully appreciate how variations in
the surrounding conditions, as between the original
occurrence and the staged event, can alter the outcome.
In such cases the solution of many courts, including
this one, has been to call for substantial similarity in
conditions, or to stress the great discretion of the trial
judge to exclude the evidence where similarity is not shown,
or both. E.g.. Swajian v. General Motors, 916 F.2d 31 (1st
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Cir. 1990); see 1 J. Strong, McCormick on Evidence 202
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(1992) (collecting cases, a number of which involve General
Motors). This case law largely undercuts General Motors'
claim that the burden lay with Fusco to show undue prejudice;
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instead, courts have created a doctrine, predating and now
loosely appended to Rule 403, that requires a foundational
showing of substantial similarity in circumstances. Cf.
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Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786
_______ _________________________________
(1993) (reliability requirement for expert testimony held
implicit in Rule 702).
Of course the concept of substantial similarity is a
flexible one, and ought to be, for the benefits of the
demonstration and the dangers of misleading the jury will
vary greatly depending upon the facts. We think that the
trial judge enjoys great discretion in this area. But here
the circumstances were not similar: as in Swajian, the test
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occurred in controlled conditions, on a test track with a
driver expecting the occurrence, and with a doctored piece of
equipment rather than one that actually broke. 916 F.2d at
36. General Motors does not seriously claim substantial
similarity, despite its reference to the testimony its
experts would have given.
Instead, General Motors says that the tapes here were
designed not to recreate the accident but rather to
illustrate general "scientific principles," presumably the
behavior of a car with a disconnected ball stud. Admittedly,
"[w]hen this [scientific principles] label is attached,"
courts often do ask not about similarity of conditions but
only whether the test was properly conducted. McCormick,
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supra, at 866. We think it would be a great stretch to call
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the tapes an abstract demonstration of scientific principles,
but the critical point is not one of labels. The issue for
us is whether the demonstration is sufficiently close in
appearance to the original accident to create the risk of
misunderstanding by the jury, for it is that risk that gives
rise to the special requirement to show similar conditions.5
Here the test track demonstration was rife with the risk
of misunderstanding. Whatever Fusco's counsel or experts
said to the jury about differing circumstances, the drama of
the filmed recreation could easily overcome the logic of the
distinctions. Our case is scarcely different than the
recreation in Swajian involving a broken rear axle in a
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similarly staged demonstration by General Motors. We there
affirmed the trial judge's exclusion of such evidence,
pointing to "the sound and broad discretion of the trial
judge" in policing such videotaped evidence. Id. at 36. We
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reaffirm here the principle and the result.
III.
The second issue on appeal concerns the decision of the
trial judge to exclude an additional videotape prepared by
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5Scientific principles, when demonstrated in a fairly
abstract way, are quite unlikely to be confused with the
events on trial. The more troublesome cases, however, are
ones like this one where some principles of some kind may be
demonstrated but in a fashion that looks very much like a
recreation of the event that gave rise to the trial.
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General Motors after the first trial ended in a hung jury.
This tape was prepared on October 2, 1993, and provided to
Fusco on October 14, 1993, approximately three months after
the first trial and one month before the second. The tape
shows a slow motion, close-up impact fracture of a ball stud
filmed at close range. On the tape one sees the stud bend
and separate from the ball. There is no commentary.
After receiving the tape, Fusco immediately moved in
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limine to exclude it, together with a newly created "survey"
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of the accident site that General Motors had tendered. The
district court allowed the survey to be used but ruled that
the tape would not be admissible, stating:
With regard to the importance of the
exhibit to the defendant, the Court
cannot fathom how defendant could not
present a complete case to the jury
without the videotape as defendant has
already done so at the first trial.
Finally, the Court does not doubt that
plaintiff would have a difficult time to
formulate a proper response given the
obvious lack of time before retrial. It
is primarily for this reason the Court
obviates defendant from submitting the
videotape exhibit.
On appeal, General Motors does not spend much time
explaining the significance of the tape, saying only that it
was "to show how the part in question bends prior to and
during an overload situation." Instead, General Motors
argues with some force that the district judge has no general
authority to exclude exhibits merely because their last
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minute appearance will inconvenience or burden the other
side. This exclusion, says General Motors, was not an
exercise of the court's accustomed power over discovery but
an interference with the right of counsel to offer evidence
at trial.
Of course, a trial court could readily exclude a witness
or exhibit if some previous order had set a deadline for
identification and the proponent had without adequate excuse
failed to list the witness or exhibit. But here the deadline
for listing exhibits at the second trial did not expire until
one week before trial, well after the tape was tendered. Nor
is there any general rule prohibiting a party from offering
new evidence at a second trial, although few cases address
the issue. See Lauritzen v. Atlantic Greyhound Corp., 8
___ _________ _________________________
F.R.D. 237, 238 (E.D. Tenn. 1948), aff'd 182 F.2d 840 (6th
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Cir. 1950). In fact, the district court here allowed General
Motors to introduce at the second trial a newly created
survey of the accident site.
Nevertheless, we think that the tape did implicate the
district court's authority over discovery. The tape was not
a stand alone exhibit: it made sense only in the context of
expert testimony to be offered by General Motors. An expert
or experts would have had to explain the tape's meaning and
would have used it to bolster inferences drawn by the expert.
Indeed, even now it is not clear to us precisely how the tape
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was expected to help General Motors' experts, although we
will assume that it was either intended to counter
plaintiffs' expert analysis or to make more plausible General
Motors' account of how the ball stud retrieved from the
accident was actually damaged.
The connection of the tape to discovery now comes into
view. Fusco's discovery had included a request for
production of "[a]ny and all . . . videotapes" taken by, for
or for the benefit of Ulman, Willis, and "any and all expert
consultants." If the tape had existed when General Motors
first responded to this request, the tape would have had to
be produced. We think that the duty of supplementation
specified in Fed. R. Civ. P. 26(e) also required General
Motors seasonably to produce any later developed videotape of
any importance intended for use by its expert at trial.
The "duty to supplement" provisions are not as clear as
they might be, and the authorities are surprisingly sparse.
A party is required to supplement--that is, update--prior
responses only in limited instances but they include,
pertinently, responses (1) concerning "the substance" of the
expert's testimony and (2) where new information exists and
failure to amend would comprise "a knowing concealment."
Fed. R. Civ. P. 26(e)(1), (2). We have read Rule 26(e)
generously, in light of its dual purposes, the "narrowing of
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issues and elimination of surprise." Johnson v. H.K.
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Webster, Inc. 775 F.2d 1, 7 (1st Cir. 1985).6
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We think that these clauses are broad enough to
embrace the tape in this case. It was closely connected to
the expert's testimony, it was not previously known to Fusco,
and General Motors can hardly describe the tape as
unimportant since it claims that the exclusion of the tape
undermined the entire trial. Thus we think that the tape was
covered by General Motors' obligation to produce under the
discovery rules. In our view--and this is the final step in
our reasoning--the discovery obligation carries with it the
implicit authority of the district court to exclude such
materials when not timely produced even if there was no rigid
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deadline for production.
There is no suggestion that General Motors delayed
unduly if one counts only the brief delay between the
creation of the tape and its tender to Fusco. But practical
considerations suggest that the authority of the trial judge
must be broader: otherwise it would count as adequate
supplementation to create a critical new expert exhibit a day
before trial and tender it on the morning of trial. It is
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6The knowing-concealment clause does not require
fraudulent intent; rather it is designed to protect a party
who reasonably believes "that the change that has made an
answer no longer accurate is known to his opponent or that it
is a matter of no importance." Fortino v. Quasar Co., 950
_______ ___________
F.2d 389, 396 (7th Cir. 1991).
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common experience that experts, like lawyers themselves, may
increase their efforts as trial approaches, and we do not
suggest any general bar to an exhibit created in good faith
for the expert after initial discovery. But we do think that
where a discovery request for the expert's materials has been
made, the later attempt to add new exhibits designed for the
expert's use at trial is subject to reasonable supervision by
the trial judge.
This circuit adopted this very principle in Thibeault v.
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Square D Co., 960 F.2d 239, 245 (1st Cir. 1992). The factual
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differences between that case and this one relate to the
sound exercise of the authority to exclude and not its
existence. We emphasize that our ruling in Thibeault and in
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this case rests on the existence of a specific discovery
request and the explicit duty to supplement it in timely
fashion. Absent some such obligation, we agree with General
Motors that courts cannot ordinarily tell counsel not to
offer evidence just because the other side will be surprised
and disadvantaged. Once the court's authority to
exclude here is conceded, its exercise in this case cannot be
faulted. The impact tape was a technical experiment made
known to Fusco barely a month before trial. To prepare for
cross-examination might have required further discovery by
Fusco of one or more of the defense witnesses, as well as
additional preparation by Fusco's experts. The tape itself
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is pictures without words; even to determine the precise use
General Motors planned to make of it would have required more
information. The district court was entitled to find that
the tape would have compromised Fusco's pretrial preparations
and that the supplementation came too late to be
"seasonable."
IV.
General Motors' remaining claim of error also relates to
the district court's authority over discovery. At the first
trial Fusco's experts made use of the broken ball stud
recovered from Fusco's car and offered Walson's testimony
based on his examination of the part under a scanning
electron microscope. That part, in Fusco's possession, was
available to General Motors prior to the first trial but it
chose not to make such an examination of its own. In theory,
study of the surface of the broken part might cast light on
whether the part had broken from impact or fatigue.
Taking note of Walson's testimony in the first trial,
General Motors in preparation for the second trial requested
that the part, and an additional Pontiac ball stud used by
Walson for comparison, be made available to it. General
Motors wanted its own metallurgist to make a similar, non-
destructive examination by scanning electron microscope.7
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7General Motors proposed to have one of its first-trial
experts conduct the examination but, when Fusco questioned
his qualifications, General Motors proposed to have another
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Fusco refused to produce the parts and General Motors moved
to compel production. The district court wrote a ten-page
order denying General Motors' motion.
In its order, the court said that General Motors knew as
early as May 1991 that Fusco intended to offer evidence of
examination by scanning electron microscope. The court also
said that the new examination was intended as the predicate
for new expert testimony by General Motors, testimony unknown
to Fusco when General Motors' experts were deposed, and that
this last minute addition imposed an unfair burden on Fusco
on the eve of the second trial. The court also referred to
General Motors' development of new evidence on the eve of the
first trial, which the court had permitted over protest by
Fusco. Finally, it expressed concern that General Motors
sought to overwhelm plaintiff with its unlimited legal and
financial resources.
There is no doubt here of the district court's authority
to deny further discovery. As noted above, no automatic bar
exists against new evidence at a second trial; but the
discovery deadline had long since passed and the district
court had no automatic obligation to reopen the discovery
period. E.g., Dabney v. Montgomery Ward & Co., 761 F.2d 494,
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expert whose qualifications were conceded participate in the
examination and testify at trial. Whether one views the
testimony as that of a first-trial expert or a new expert
does not greatly affect the matter.
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498 (8th Cir.), cert. denied, 474 U.S. 904 (1985). The
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matter was one for the informed discretion of the trial
judge, and the breadth of that discretion in managing pre-
trial mechanics and discovery is very great. E.g., Fashion
____ _______
House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir.
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1989); Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d
____ __________________________________
179, 186-87 (1st Cir. 1989). Measured against this standard
of review, the district court's quite thorough explanation
for denying production easily passes muster.
Our own review of the record does not suggest to us that
General Motors' request was made in bad faith or reflected
any attempt to abuse its financial power. Fusco after all
was seeking $8 million, and defense counsel apparently
perceived in the first trial that the testimony by Fusco's
expert about the scanning electron microscope carried some
weight. But it was primarily for the trial judge to balance
the factors, such as the timing of the request, General
Motors' earlier knowledge, the possible burden on Fusco of
preparing to confront a new expert, and the importance of the
testimony. The balance struck here by the trial judge was
not an abuse of discretion.
Affirmed.
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