USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1803
GERALD POULIN AND BRENDA POULIN,
Plaintiffs, Appellants,
v.
ALEXANDER MACDONALD GREER, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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Before
Torruella, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Paul W. Chaiken, with whom Robert C. Granger, Brent A. Singer,
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and Rudman & Winchell were on brief for appellants.
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Harrison L. Richardson, with whom John B. Lucy and Richardson,
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Troubh & Badger were on brief for appellees.
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March 24, 1994
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BOWNES, Senior Circuit Judge. This diversity
BOWNES, Senior Circuit Judge.
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action arises out of a motor vehicle accident. In the pre-
dawn of a late summer day in Maine, plaintiff-appellant1
Gerald Poulin sustained serious injuries after driving his
truck into the flatbed of a tractor-trailer which was
blocking the road. Subsequently, Poulin sued the tractor-
trailer's driver, Alexander Greer, and its owner, McConnell
Transport, Ltd. A jury found defendants not liable on the
ground that Greer's negligence was not the proximate cause of
Poulin's injuries.2 We affirm.
I.
I.
BACKGROUND
BACKGROUND
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It was a clear, dry morning on September 11, 1990.
Sometime before 5:00 a.m., while it was still dark, Greer was
travelling south along Route 191 in Maine, hauling a load of
baled straw. Having missed his turn-off, Greer attempted to
turn around in the driveway of Ray's Country Store which was
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1. More precisely, plaintiff-appellants in this action are
Poulin, who seeks damages for his personal injuries, and his
wife Brenda, who seeks damages for loss of consortium.
2. Although the special interrogatories submitted to the
jury instructed the jury to stop answering questions if it
found that Greer's negligence was not the proximate cause of
Poulin's injuries, the jury ignored this directive and went
on to find that Poulin's negligence was the proximate cause
of his injuries, and that Poulin's negligence was equal to or
greater than Greer's. Under Maine law, the latter finding
would have been sufficient to defeat plaintiffs' claim. See
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Me. Rev. Stat. Ann. tit. 14, 156 (West 1980) ("If such
claimant is found by the jury to be equally at fault, the
claimant shall not recover.").
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located off the west side of the road. While Greer was
executing this maneuver, the rear wheels of his tractor
became stuck in a drainage ditch off the east side of the
road. The tractor of Greer's truck had turned around and
faced north; the flatbed or trailer portion of the truck sat
at a forty-five degree angle across the road, blocking both
lanes of traffic.
Greer turned on the yellow revolving beacon atop
the tractor, as well as its hazard lights. The truck's
headlights were on low beam, facing oncoming, i.e.,
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southbound, traffic. Although Greer testified that he had
reflective triangles in the truck, he never placed them on
the road as a warning to approaching traffic. The trailer
had a reflector on both sides of its base and on each back
corner.
At approximately 4:40 a.m., Horace "Denny" Lyon
arrived at the scene. Lyon was travelling north on Route 191
when he saw the yellow revolving beacon of Greer's truck from
about 200 yards away. Initially Lyon thought that a
"wrecker" was towing a disabled car off the road. He slowed
down as he approached. Once Lyon was within seventy-five
feet of the truck, he realized that there was a flatbed
trailer loaded with straw blocking the road. He pulled into
the driveway at Ray's, stopped his vehicle, and spoke briefly
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with Greer. After promising to call the police, Lyon went on
his way.
Shortly before 5:00 a.m., another driver
encountered the jackknifed truck. Ricky Frye was travelling
north on Route 191 when he saw a large black silhouette
blocking the road about 100 yards in front of him. Before
pulling into the driveway at Ray's, Frye noticed the rear
reflectors on Greer's trailer. After getting out of his
truck, Frye noticed that the yellow revolving beacon on
Greer's truck and its headlights were both on.
The crash occurred only minutes after Frye arrived
at the scene. Both he and Greer, who were talking to each
other outside of Ray's at the time, saw Poulin's car
approaching. Unlike Lyon and Frye, Poulin was headed south
on Route 191. Although they expected Poulin to see the
truck, he apparently did not. Poulin neither swerved nor
braked as he plowed head on into the flatbed full of straw.
He suffered serious injuries.
Plaintiffs commenced this diversity action in
United States District Court for the District of Maine.
After the jury returned a verdict in defendants' favor,
plaintiffs appealed.
II.
II.
DISCUSSION
DISCUSSION
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Plaintiffs seek a new trial on the grounds that:
(1) the district court erroneously instructed the jury as to
Greer's duties as a truck driver and erred by declining to
give a missing witness instruction; (2) the district court
abused its discretion by refusing to exclude the testimony of
Carol Ricci as a sanction for defendants' alleged discovery
violation; and (3) the district court abused its discretion
in denying plaintiffs' motion to compel production of a
photograph of the accident scene taken one year after the
accident by a consultant retained by defendants.
1. The Jury Instructions
1. The Jury Instructions
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Plaintiffs contend that the district court
committed reversible error by failing to instruct the jury
that, under Maine's comparative negligence statute, "[t]he
factfinder must be told [that] . . . it should give
consideration to the relative blameworthiness of the
causative fault of the claimant and the defendant," and that
"[d]eliberate disregard of safety rules must be judged more
severely than merely imperfect reaction to a crisis." Wing
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v. Morse, 300 A.2d 491, 500 (Me. 1973). Because there was
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evidence that Greer had violated various state and federal
safety regulations, plaintiffs claim that the jury could have
found that Greer had deliberately disregarded safety rules,
and that, therefore, his conduct should have been judged more
severely than Poulin's.
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Plaintiffs also maintain that the court's failure
to instruct the jury as to two federal safety regulations was
error. Specifically, plaintiffs maintain that the district
court should have instructed the jury (1) that Greer could
lawfully drive his tractor-trailer only if he was satisfied
that he had three emergency reflective triangles with him
ready for use, see 49 C.F.R. 392.8, 393.95(f)(2)(i)
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(1992); and (2) that if Greer's attempt to turn around had
caused property damage of any kind, he had a duty to take all
necessary precaution to prevent additional accidents at the
scene. See 49 C.F.R. 392.40 (1992).
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Finally, plaintiffs argue that the court's failure
to give a missing witness instruction constituted reversible
error. The court declined to instruct the jury that it could
draw an adverse inference from the fact that Greer did not
testify at trial. Greer lived beyond the subpoena power of
the court, and chose not to attend the trial. His deposition
testimony was entered into evidence.
In response, defendants contend that the failure to
give plaintiffs' requested instructions was not erroneous,
but, in any event, plaintiffs waived their challenges by
failing to comply with Fed. R. Civ. P. 51.
Before the district court charged the jury, it
received proposed instructions from the parties and held a
pre-charge conference. At the conference, the court informed
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the parties which portions of their proposed instructions it
would read. Plaintiffs duly stated their objections to the
court's omission of various portions of their proposed
charge, including those portions at issue on this appeal.
After the court instructed the jury, the judge called counsel
over to the sidebar and asked: "Okay. First, in addition to
any objections previously made, do you have an objection you
wish to make as to the general content of the instructions at
this time?" Plaintiffs' counsel replied, "No."
Rule 51 of the Federal Rules of Civil Procedure
provides that, "[n]o party may assign as error the giving or
failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict. . .
." "We have construed the Rule's requirement that a party
must object `before the jury retires to consider its verdict'
to mean that the objection must be made after the
instructions are given to the jury." Smith v. Massachusetts
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Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied,
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493 U.S. 965 (1989); see Phav v. Trueblood, Inc., 915 F.2d
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764, 769 (1st Cir. 1990); McGrath v. Spirito, 733 F.2d 967,
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968 (1st Cir. 1984). Even if plaintiffs' requested
instructions had been proper, counsel's failure to object to
their omission after the charge constitutes waiver of the
objection. See Smith, 877 F.2d at 1109; Wells Real Estate,
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Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809
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(1st Cir.) (collecting cases), cert. denied, 488 U.S. 955
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(1988).
The record here is clear: no objection was made by
plaintiffs after the charge. The district court's post-
charge indication that the parties' prior objections would be
preserved is of no help to plaintiffs. "A trial court's
statement after the charge that objections made prior to it
will be saved does not absolve an attorney from following the
strictures of the rule. Objections cannot be carried
forward. The rule is binding on both the court and attorneys
and neither can circumvent it." McGrath, 733 F.2d at 969;
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see Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir. 1992)
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("It is the obligation of trial counsel, as well as the trial
court, to comply with the strict requirements of the Rule.").
Because of plaintiffs' failure to comply with Rule
51, we review the trial court's instructions only for plain
error. The "plain error" rule "`should be applied sparingly
and only in exceptional cases or under peculiar circumstances
to prevent a clear miscarriage of justice.'" Wells Real
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Estate, 850 F.2d at 809 (quoting Nimrod v. Sylvester, 369
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F.2d 870, 873 (1st Cir. 1966)); see Elgabri, 964 F.2d at
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1259. Under the "plain error" exception, an erroneous
instruction warrants a new trial only where the error
"seriously affected the fairness, integrity or public
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reputation of the judicial proceedings." See Lash v. Cutts,
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943 F.2d 147, 152 (1st Cir. 1991); Smith, 877 F.2d at 1110.
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Our review of the record reveals nothing
exceptional about this case. It is evident that no "clear
miscarriage of justice" has occurred, and therefore no "plain
error" exists.3
2. Refusal to Preclude The Testimony of Carol Ricci
2. Refusal to Preclude The Testimony of Carol Ricci
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Plaintiffs contend that defendants violated their
duty to supplement answers to plaintiffs' interrogatories
pursuant to Fed. R. Civ. P. 26(e)(2)(B).4 Because of this
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3. In fact, we doubt if there was any error at all in the
trial court's instructions. In reviewing a court's decision
not to give a particular instruction, our duty is to
determine whether the instructions as given tend to confuse
or mislead the jury with regard to the applicable principles
of law. Computer Indentics Corp. v. Southern Pacific Co.,
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756 F.2d 200, 205 (1st Cir. 1985). If the judge's
instruction properly informs the jury of the applicable law,
failure to give the exact instruction requested does not
prejudice the objecting party. Service Merchandise Co. v.
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Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983). In the
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present case the district court's instructions clearly and
concisely explained the applicable law to the jury, while
avoiding the repetitiveness of plaintiffs' proffered charge.
Furthermore, we do not believe that the district court abused
its discretion in refusing to give a missing witness
instruction. See United States v. Arias-Santana, 964 F.2d
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1262, 1268 (1st Cir. 1992) (refusal to give a "missing
witness" instruction reviewed for abuse of discretion).
4. The applicable version of Fed. R. Civ. P. 26(e), in
effect prior to December 1, 1993, provides in pertinent part:
A party who has responded to a request
for discovery with a response that was
complete when made is under no duty to
supplement the response to include
information thereafter acquired, except .
. . (2) A party is under a duty to
seasonably amend a prior response if the
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alleged violation, plaintiffs maintain that the district
court should have sanctioned defendant by excluding the
testimony of Carol Ricci, and that the court abused its
discretion by not doing so.
During discovery, defendants were asked to provide
plaintiffs with the name of every witness known to them who
could provide information about the accident. Defendants
were also asked whether each witness named "gave any
statement or account, either oral or in writing, of his or
her knowledge of the alleged occurrence." If a witness had
made any such statement, plaintiffs asked the defendants to
supply the substance of the same. Plaintiffs also asked
defendants whether they, or any of their agents, had received
any oral or written statements from anyone who had knowledge
or information with respect to the accident, and if so,
defendants were asked to supply the name of the person making
the statement and its substance. In their answers to both
lines of inquiry, dated August 1992, defendants named only
Greer and Frye. It is undisputed that at the time defendants
responded their answers were complete.
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party obtains information upon the basis
of which . . . (B) the party knows that
the response though correct when made is
no longer true and the circumstances are
such that a failure to amend the response
is in substance a knowing concealment.
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In November 1992, after speaking with Ray Ketchen,
the owner of Ray's Country Store, defendants learned that
Lyon might have some information about the accident. Carol
Ricci, a paralegal, contacted Lyon by telephone and spoke
briefly with him. According to Ricci's notes, Lyon stated
"that [the] truck was easy to see" because of its "light on
top" and "running lights," and that "I seen it real easy when
I came up to it in [the] road." Defendants did not
supplement their answers to plaintiffs' interrogatories to
include Lyon and his statement. It is unclear whether
plaintiffs had spoken with Lyon prior to his conversation
with Ricci. Shortly thereafter, however, Lyon was
interviewed by plaintiffs and informed them he had spoken
with Ricci. Defendants quickly learned that Lyon told
plaintiffs that he had spoken with Ricci. By the time the
trial commenced in May 1993, plaintiffs' counsel had met with
and interviewed Lyon on at least three separate occasions.
At trial, Lyon testified that, although he saw the
yellow revolving beacon from a distance, the trailer of the
truck, which was blocking the road, was not easy to see. In
fact, Lyon testified that he did not see the truck until he
was right on top of it.5 On cross-examination, Lyon denied
that he told Ricci that the truck was "easy to see."
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5. On cross-examination Lyon explained that this meant
approximately seventy-five feet away.
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Defendants sought to have Ricci testify as a
"rebuttal" witness. Plaintiffs objected to Ricci testifying
because she was not listed on defendants' pre-trial witness
list, and because defendants had violated their duty under
Rule 26(e)(2)(B) to supplement their answers to
interrogatories. The court rejected plaintiffs' arguments,
and allowed Ricci to testify.
Defendants argue that their failure to supplement
was not a violation of Rule 26(e)(2)(B) because there was no
"knowing concealment" on their part. They knew that
plaintiffs had spoken with Lyon, and that plaintiffs had
ascertained that Lyon had spoken to Ricci. Defendants,
therefore, assumed that Lyon communicated to plaintiffs the
same thing that he told Ricci. Under these circumstances
defendants maintain that there was no "knowing concealment."
In reviewing a trial court's ruling on whether a
discovery-related rule was violated, the abuse of discretion
standard controls. See Thibeault v. Square D. Co., 960 F.2d
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239, 243 (1st Cir. 1992); In re San Juan Dupont Hotel Fire
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Litigation, 859 F.2d 1007, 1019 (1st Cir. 1988). "The
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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 [the party's] opponent
or that it is a matter of no importance.'" Fusco v. General
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Motors Corp., Nos. 92-2473 and 93-1801, slip op. at 16 n.6
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(1st Cir. Dec. 6, 1993) (quoting Fortino v. Quasar Co., 950
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F.2d 389, 396 (7th Cir. 1991)). Moreover, "[w]e have read
Rule 26(e) generously, in light of its dual purposes, the
`narrowing of issues and elimination of surprise.'" Id.
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(quoting Johnson v. H.K. Webster, Inc., 775 F.2d 1, 7 (1st
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Cir. 1985)).
Viewing defendants' actions in the context in which
they arose, we do not believe that the district court abused
its discretion by not finding a Rule 26 violation. The court
accepted defendants' contention that they were surprised by
Lyon's trial testimony, and that they reasonably thought
plaintiffs knew about the change which rendered their
interrogatory answers inaccurate. The record supports
defendants' contention that the concealment in this case was
not "knowing."
Assuming, arguendo, that defendants' failure to
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supplement did constitute a discovery rule violation, we
still do not think that the district court's refusal to
preclude Ricci's testimony warrants a new trial. Although
plaintiffs argue that a trial court may preclude testimony as
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a sanction, they fail to explain why preclusion was a
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necessary sanction in this case. Plaintiffs argue only that
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the district court should have precluded Ricci's testimony
because Lyon was a "key witness." A trial court's choice of
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sanction for such a discovery violation is reviewed for abuse
of discretion. See Prentiss & Carlisle v. Koehring-Waterous,
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972 F.2d 6, 9 (1st Cir. 1992); Jackson v. Harvard Univ., 900
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F.2d 464, 469 (1st Cir.), cert. denied, 498 U.S. 848 (1990).
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This standard of review presupposes that the district court
possesses a wide latitude in formulating the appropriate
sanction, if any, for a discovery violation. See Jackson,
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900 F.2d at 469 ("appellate inquiry is limited to whether the
trial court's chosen course of action came `safely within the
universe of suitable' alternatives" (quoting Fashion House,
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Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989))).
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A district court confronted with a violation of
Rule 26(e) may choose from a variety of sanctions. See
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Thibeault, 960 F.2d at 245. Although preclusion is one of
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the sanctions available, the court is empowered to take
whatever action it deems appropriate after considering all of
the circumstances surrounding the violation. Id. The
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presence of surprise and prejudice play a central role in our
review of a district court's decision to preclude or not to
preclude testimony. Id.
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Although plaintiffs might have been surprised upon
learning of the content of Lyon's statement to Ricci, it is
difficult to discern any prejudice arising from defendants'
belated disclosure of the same. Lyon's testimony was
important to plaintiffs' case because of the time at which he
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saw Greer's truck, not because he was unable to see the
trailer clearly from a distance. Plaintiffs' position
throughout the trial was that, although Greer's truck had
been disabled for approximately twenty minutes prior to the
accident, he never placed his reflective triangles along the
highway to alert oncoming vehicles of potential danger. Lyon
was the only witness who could place Greer's truck at the
scene twenty minutes prior to the crash. In fact,
plaintiffs' counsel, in arguing for the preclusion of Ricci's
testimony, stated that, "[w]hat's important with Mr. Lyon is
the time, not whether he could see the trailer."
Furthermore, Lyon was travelling north on Route
191, whereas Poulin was travelling south. Therefore, Lyon's
testimony on the issue of the trailer's visibility was of
limited probative value. In fact, the issue of the truck's
visibility from the standpoint of a southbound driver was the
subject of extensive expert testimony offered by both sides.
Finally, plaintiffs never requested a recess prior to Ricci's
testimony in order to counter its alleged force. See Smith,
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877 F.2d at 1111 ("`Courts have looked with disfavor upon
parties who claim surprise and prejudice but who do not ask
for a recess so that they may attempt to counter the opponent
testimony.'" (quoting Johnson, 775 F.2d at 7)).
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Thus, even if defendants did commit a discovery
violation, the district court could reasonably determine that
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plaintiffs did not suffer any prejudice, and, given
defendants' plausible explanation for their failure to
supplement, that any violation was not willful. The district
court did not, therefore, abuse its discretion when it
declined to sanction any discovery violation and allowed
Ricci's testimony. See, e.g., Prentiss & Carlisle, 972 F.2d
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at 9 (absent prejudice to plaintiff district court did not
abuse its discretion by refusing to preclude testimony);
Jackson, 950 F.2d at 469 (preclusion is a grave step, and
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"`by no means an automatic response . . . where failure to
make discovery [is] not willful'" (quoting Freeman v. Package
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Machinery Co., 865 F.2d 1331, 1341 (1st Cir. 1988))).
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3. Production of the Photographs
3. Production of the Photographs
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In the course of discovery, plaintiffs moved to
compel the production of photographs depicting a recreation
of the accident scene taken exactly one year after the crash
by a transportation consultant named Murray Segal. The
district court denied the motion, and found, inter alia:
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1. Murray D. Segal is a transportation
consultant hired by Defendants' insurer
in anticipation of this litigation;
2. Murray D. Segal is not expected to be
called as a witness at trial;
3. The photographs Plaintiffs seek to
have produced were taken by Murray D.
Segal. They depict the actual truck and
load involved in the accident which is
the subject of this action. However,
they were taken one year after the
accident. They are not irreplaceable
photographs of the actual scene of the
accident;
4. Plaintiffs have not shown that they
could not have substantially duplicated
the photographs themselves using a
similar truck and load, nor have they
shown any attempt to recreate the
accident scene using the truck and load
which were involved in the accident at
any time during the pendency of this
litigation;
In addition to denying plaintiffs' motion, the court
prohibited defendants from introducing any evidence or
testimony related to the photographs. Rule 26(b)(3) of the
Federal Rules of Civil Procedure provides in relevant part
that,
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a party may obtain discovery of documents
and tangible things otherwise
discoverable . . . and prepared in
anticipation of litigation or for trial
by or for another party['s attorney] . .
. only upon a showing that the party
seeking discovery has substantial need of
the materials in the preparation of the
party's case and that the party is unable
without undue hardship to obtain the
substantial equivalent of the materials
by other means.
Fed. R. Civ. P. 26(b)(3). On appeal plaintiffs concede that
the photographs constitute work product, but maintain that
they demonstrated the requisite substantial need and
inability to obtain substantially equivalent photographs.
District courts have broad discretionary powers to
manage cases and, concomitantly, to manage pretrial
discovery. See Maynard v. CIA, 986 F.2d 547, 567 (1st Cir
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1993); see also Thibeault, 960 F.2d at 242; San Juan Dupont
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Hotel Fire Litigation, 859 F.2d at 1019. Appellate
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intervention in such matters is warranted, "`only upon a
clear showing of manifest injustice, that is, where the lower
court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party.'" Maynard, 986
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F.2d at 567 (quoting Mack v. Great Atlantic & Pacific Tea
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Co., 871 F.2d 179, 186 (1st Cir. 1989)).
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We see no "manifest injustice" in the district
court's order denying plaintiffs' motion to compel production
of the Segal photographs. As the court lucidly explained,
plaintiffs could have hired a similar truck and conducted a
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"recreation" comparable to the one commissioned by
defendants. Any photographs taken at plaintiffs' staging of
the accident scene would have provided satisfactory
alternatives to defendants' photographs. But, plaintiffs
never sought to obtain such photographs, and it appears that
their failure to do so was a result of their own inaction.
Finally, we fail to see how plaintiffs were prejudiced by the
court's refusal to order production of photographs that it
prohibited the defendants from introducing in evidence.
Our examination of the pertinent facts reveals no
error let alone an abuse of discretion in the district
court's order.
Affirmed.
Affirmed.
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