USCA1 Opinion
May 11, 1994
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1688
EGIDIO DE SANTIS AS HE IS ADMINISTRATOR
OF THE ESTATE OF GIORGIO DE SANTIS,
Plaintiff, Appellant,
v.
THEODORE F. DOBBINS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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David P. Angueira, with whom John H. Perten, William F. Ryan, and
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Bowditch & Dewey were on brief for appellant.
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Thomas M. Elcock, with whom Lawrence F. Boyle and Morrison,
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Mahoney & Miller were on brief for appellees.
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BOWNES, Senior Circuit Judge. At about 3:30 a.m.
BOWNES, Senior Circuit Judge.
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on the morning of September 19, 1991, there was a collision
at the intersection of Arlington and Stuart Streets in Boston
between an automobile driven by Giorgio DeSantis and a
newspaper delivery truck driven by Theodore Dobbins.
DeSantis was killed in the accident. At the time of his
death, DeSantis, a student, was an Italian citizen living in
West Roxbury, Massachusetts.
A diversity action was subsequently brought in the
federal district court of Massachusetts by Egidio DeSantis,
an Italian citizen, as administrator of his son Giorgio's
estate. Named as defendants were: Dobbins, driver of the
truck; News Group Boston, Inc. d/b/a The Boston Herald,
lessee of the truck; and Lily Transportation Corporation,
lessor and owner of the truck.1 The case was tried to a
jury and it returned a verdict finding that neither Dobbins
nor the Herald were liable. This appeal followed.
Plaintiff-appellant raises two issues: (1) whether
the trial court erred in excluding certain testimony and
proffered evidence; and (2) whether the trial court erred in
omitting a requested jury instruction. We affirm.
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1. On the fifth day of trial plaintiff voluntarily dismissed
his claim against Lily.
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THE EXCLUSIONARY RULINGS
THE EXCLUSIONARY RULINGS
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Plaintiff agrees, as he must, that the admission
and exclusion of evidence are reviewed under an abuse of
discretion standard. American Title Ins. Co. v. East West
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Financial, 16 F.3d 459, 460 (1st Cir. 1994); United States v.
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Spinosa, 982 F.2d 620, 629 (1st Cir. 1992); DCPB, Inc. v.
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City of Lebanon, 957 F.2d 913, 918 (1st Cir. 1992).
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A. Exclusion of Certain Testimony of Henry Moore
A. Exclusion of Certain Testimony of Henry Moore
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Henry Moore was the first witness at trial. He was
the route fleet supervisor for the Herald. Plaintiff
attempted to introduce a deposition statement by Moore that
he told Dobbins, after the accident, that the speed at which
Dobbins claimed to be going when he entered the intersection,
20-25 miles per hour, was "excessive or unsafe."
Plaintiff argues strenuously here, as he did below,
that the statement was admissible as a vicarious admission
against the Herald. There can be no doubt that the primary
purpose of seeking the admission of the statement was to show
that Dobbins was travelling at an "excessive or unsafe" speed
just before the accident. This does not make the statement
inadmissible, but it does add another ingredient to the
admissibility mix.
We reproduce part of the colloquy between
plaintiff's counsel and the court on the admissibility of
Moore's statement:
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MR. ANGUEIRA: Dobbins' evidence is
that he was traveling at 20 to 25 miles
per hour, and that's what the defendants'
experts are prepared to say, also. So,
assuming that to be true, Mr. Moore as
his supervisor --
THE COURT: But Mr. Moore's opinion
that 20 to 25 miles an hour is excessive
at 3:40 a.m., whatever the time may be,
is just a person's opinion. It isn't a
statement of fact binding on a party.
MR. ANGUEIRA: It's more than an
opinion, your Honor. In this case, in
his capacity as the route fleet
supervisor and engaged in his
responsibilities of meeting with the
driver after this accident, he asked Mr.
Dobbins what happened. And in that
capacity, he told his driver, as his
supervisor, you were driving excessively
and unsafely. That is a clear admission
against the Boston Herald. Not against
Dobbins. I agree. This evidence is not
against Dobbins, but against the Boston
Herald, I believe it's absolutely
admissible.
THE COURT: I don't understand that to
be the case. I do not understand how the
opinion of a person who wasn't there and
who is not trained in deciding what is
excessive and what is not, can be binding
on the corporation. I don't see how he
was authorized to make that kind of a
statement on behalf of the Herald.
Whether Dobbins' speed when entering the
intersection was "excessive or unsafe" was one of the primary
issues that the jury had to decide. The statement by Moore
was clearly an opinion and not an admission against interest.
Rule 701 of the
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Federal Rules of Evidence provides:
Opinion Testimony by Lay Witnesses
Opinion Testimony by Lay Witnesses
If the witness is not testifying as an
expert, the witness' testimony in the
form of opinions or inferences is limited
to those opinions or inferences which are
(a) rationally based on the perception of
the witness and (b) helpful to a clear
understanding of the witness' testimony
or the determination of a fact in issue.
Because Moore had not seen the accident, his
opinion could not have been rationally based on his
perception. As the court pointed out inferentially, if Moore
had been an expert on automobile accidents and the speeds
attendant on them, he may have been entitled to testify under
Fed. R. Evid. 702 and render an opinion as to whether
Dobbins' speed was "excessive or unsafe" under Fed. R. Evid.
704(a).2 This was not the situation before the district
court. Moore was not an expert by any stretch of the
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2. Fed. R. Evid. 702 provides:
If scientific, technical, or other
specialized knowledge will assist the
trier of fact to understand the evidence
or to determine a fact in issue, a
witness qualified as an expert by
knowledge, skill, experience, training,
or education, may testify thereto in the
form of an opinion or otherwise.
Fed. R. Evid. 704(a) states:
Opinion on Ultimate Issue
Opinion on Ultimate Issue
(a) Except as provided in subdivision
(b), testimony in the form of an opinion
or inference otherwise admissible is not
objectionable because it embraces an
ultimate issue to be decided by the trier
of fact.
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imagination and it would have been patently unfair to allow
the statement in evidence.
It is important to note that Moore was allowed to
testify that he told Dobbins, "In my opinion I would have
slowed down more."
It was neither an abuse of discretion nor error for
the trial court to exclude Moore's statement.
B. Exclusion of Questions Directed to Dobbins About
B. Exclusion of Questions Directed to Dobbins About
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a Workmen's Compensation Claim That Dobbins Filed
a Workmen's Compensation Claim That Dobbins Filed
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After the Accident
After the Accident
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Plaintiff made an offer of proof to the following
effect. Defendant Dobbins filed a workmen's compensation
claim claiming that he was injured in the automobile
accident. Yet on the morning of the accident, he reported
for full-time work at another job he had at Amtrak. And he
worked at Amtrak during the period that his workmen's
compensation claim asserted he was disabled because of the
automobile accident.
After hearing argument from counsel on the
question, the court ruled: "Engaging in the balance of
probative value and prejudice, I rule it out on the grounds
that the prejudice outweighs the probative value." It is
evident that the judge's ruling was made pursuant to Fed. R.
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Evid. 403.3 The standard we follow in reviewing such a
determination has been stated as follows:
The decision to admit or exclude
evidence under Fed. R. Evid. 403 is
committed to the broad discretion of the
trial court and we will reverse the
court's judgment only rarely and in
extraordinary compelling circumstances
United States v. Brandon, 17 F.3d 409, 443 (1st Cir. 1994)
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(footnote omitted).
It was not an abuse of discretion for the court to
prohibit questioning of Dobbins about the workmen's
compensation claim he filed.
C) The Exclusion of Maintenance Records of the Truck
C) The Exclusion of Maintenance Records of the Truck
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and Other Records of its Condition
and Other Records of its Condition
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The district court excluded maintenance records of
the truck and other records of defective headlights because
they were too remote in time from the accident. The accident
happened on September 19, 1991. The maintenance record
closest in time to the accident was July 13, 1991. The court
found this record "wholly irrelevant." The record as to
defective headlights was made on July 13 and 15, 1991. In
its exclusionary ruling on the headlight defects the court
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3. Fed. R. Evidence 403 provides:
Although relevant, evidence may be
excluded 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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stated: "It seems to me that the evidence of alleged defect
is so remote in time to the accident, that it would serve no
probative purpose whatsoever to introduce them."
The court's rulings did not amount to an abuse of
discretion.
D) The Failure of the Court to Inform the Jury, "That
D) The Failure of the Court to Inform the Jury, "That
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it was Entitled to Draw an Adverse Inference from
it was Entitled to Draw an Adverse Inference from
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Defendants' Intentional and Improper Disposal of
Defendants' Intentional and Improper Disposal of
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the Herald Truck After the Accident."
the Herald Truck After the Accident."
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Plaintiff's statement of the issue and his argument
on it are based on a false premise: that defendants
intentionally and improperly disposed of the truck involved
in the accident. There is no such evidence in the record.
The evidence discloses the following. No request was made
until March 10, 1992 by plaintiff that the truck be held so
that it could be examined by plaintiff. The truck was
repaired within thirty days of the accident pursuant to
Department of Transportation requirements. After the truck
was repaired, it was used again. There was no court order at
anytime directing that the truck be held for inspection by
plaintiff. The truck was sold on January 22, 1992 by the
lessor.
On this state of the record, there was no reason
for the court to give the instruction requested by plaintiff.
Affirmed.
Affirmed.
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