USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2305
WILLIAM CAMERON, ET AL.,
Plaintiffs, Appellants,
v.
OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Albert E. Grady with whom Office of Albert E. Grady was on brief
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for appellants.
Ronald M. Davids with whom Michelle I. Schaffer and Campbell &
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Associates, P.C. were on brief for appellee.
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December 30, 1994
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BOUDIN, Circuit Judge. In March of 1990, William
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Cameron, whose left leg had been amputated below the knee in
1965, was fitted with a prosthetic leg. The prosthesis was
assembled by Mr. Cameron's prosthetist from components
originally sold by various suppliers, including Otto Bock
Orthopedic Industry, Inc. ("Otto Bock"). Specifically, the
artificial limb featured an Otto Bock pylon, which is an
aluminum tube that substitutes for the missing portion of the
leg, and an Otto Bock clamp, which attaches the pylon to an
artificial foot manufactured and sold by another company.
On May 28, 1991, Mr. Cameron fell when the Otto Bock
pylon in his artificial leg broke into two pieces. Cameron
alleged that he suffered a fractured pelvis and emotional
damage as a result of the fall. Based on diversity
jurisdiction, Mr. Cameron sued Otto Bock in federal court,
charging negligence and breach of warranty. His wife, Kay
Cameron, claimed loss of consortium.
The case was tried by a jury in 1993. Each side
attributed the failure of the leg to a different cause. The
Camerons claimed that the pylon and clamp had been
negligently and defectively designed. Otto Bock's expert
testified that the prosthesis broke because the screw that
fastened the pylon to the clamp had been "overtorqued," or
screwed too tightly, by the prosthetist, despite a warning
against overtightening by Otto Bock. The Camerons said that
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the instructions should have been more detailed. The jury
found in favor of Otto Bock and the Camerons appeal.
In this court, the Camerons' claims of error concern two
rulings by the district court excluding evidence offered by
them. The first ruling excluded several so-called "product
failure reports" sent from prosthetists to Otto Bock. These
excluded reports, all dated after Mr. Cameron's accident,
detail the alleged failures of other prosthetic legs. The
second group of excluded documents consisted of "Dear
Customer" letters, sent by Otto Bock to prosthetists after
the Cameron accident, that provided specific torque
measurements to be used when screwing the pylon to the clamp.
1. The product failure reports in question are one-
page standardized forms that a prosthetist must fill out in
order to obtain a refund or credit for an Otto Bock product.
The forms were designed by Otto Bock, but were completed by
prosthetists who, in turn, typically obtained their
information from conversations with their patients. The form
required information about the nature of the problem, the age
of the prosthesis, the demands placed on the prosthesis, and
the patient's activity when the accident occurred; the form
did not inquire directly about the cause of the problem.
The trial judge allowed the Camerons to introduce
product failure reports that were dated before Mr. Cameron's
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accident, solely to show notice on the part of Otto Bock.
The trial judge excluded several reports that were created
after Mr. Cameron's accident and it is this exclusion that
the Camerons claim to be error. There is some doubt whether
the Camerons adequately raised and preserved this claim--Otto
Bock says they did not. However, the district court did not
rest its exclusion on this ground and, as we uphold the
exclusion on the merits, we need not decide whether the
Camerons waived the issue.
The district court held that the exclusion of the
reports was proper because they were irrelevant, because they
did not fall within any exception to the hearsay rule, and
because they were more prejudicial than probative. We
commonly say that we review all three determinations solely
for an abuse of discretion.1 This may be a mild
overstatement since evidentiary rulings can sometimes contain
buried rulings of law reviewable de novo, or basic findings
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of fact subject to clear error review. In this case, fine
distinctions about the standard of review would not affect
the outcome.
Unlike the pre-accident reports, which were admitted to
show notice on the part of Otto Bock, the post-accident
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1United States v. Brandon, 17 F.3d 409, 444 (1st Cir.
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1994) (relevancy determinations); Elgabri v. Lekas, 964 F.2d
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1255, 1261 (1st Cir. 1992) (hearsay and business records
exception); Raymond v. Raymond Corp., 938 F.2d 1518, 1523
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(1st Cir. 1991) (more prejudicial than probative).
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reports describe incidents that took place after Mr.
Cameron's accident, and thus have no bearing on notice.
Neither are they relevant as evidence of a design defect.
The reports of other incidents would be probative evidence of
the existence of a design defect only if the incidents
occurred under circumstances substantially similar to those
surrounding Mr. Cameron's accident. Vincent v. Louis Marx &
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Co., Inc., 874 F.2d 36, 43 (1st Cir. 1989); McKinnon v. Skil
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Corp., 638 F.2d 270, 277 (1st Cir. 1981). The circumstances
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of the post-accident incidents are entirely unknown.
We also think that there is an adequate basis for the
district court's alternative conclusion that the reports
contained inadmissible hearsay. This did not matter as to
pre-accident reports offered solely to show notice; but in
order to show defect, the truth of the reports is critical.
Yet it appears that the information contained in the reports
was provided to Otto Bock from independent prosthetists who
themselves derived some or all of the information from their
own patients.
While the reports may be part of the business records of
Otto Bock in a colloquial sense, that does not render
admissible information contained in the records whose source
is a non-party to the business. Under Fed. R. Evid. 803(6),
the report must be made by a person acting "in the course of
a regularly conducted business activity." It is quite clear
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that the prosthetists' patients are not part of Otto Bock's
business. The case is akin to Petrocelli v. Gallison, 679
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F.2d 286, 290 (1st Cir. 1982), where we held that a hospital
patient who related his medical history "is not part of a
`business' routine in which he is individually a regular
participant."
We thus have no reason to consider whether the business
records exception might apply if the information were
generated solely by the prosthetists in the course of their
own businesses. See Fed. R. Evid. 805 (hearsay exceptions
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can be layered). Conversely, we need not pass on the
suggestion that the adverse interests of the prosthetists--in
obtaining refunds and warding off lawsuits against them--
might permit exclusion of any business records they
themselves generated as to the cause of a failure under the
exclusion for business records whose source "indicate[s] lack
of trustworthiness." Fed. R. Evid. 803(6). See Palmer v.
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Hoffman, 318 U.S. 109 (1943).
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Since both the relevance and hearsay objections are well
founded, we need not consider in detail the district court's
further ruling that prejudice would substantially outweigh
relevance. Fed. R. Evid. 403. We do note that the lack of
proof of similarity of circumstances reinforces any decision
to exclude under Rule 403. Additionally, in this kind of
balancing of prejudice and relevance, abuse of discretion is
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undoubtedly the test on review, and Rule 403 judgments,
calling on the district court's "feel" for the situation, are
quite unlikely to be disturbed.
2. The Camerons' other challenge is to the trial
judge's exclusion of letters sent by Otto Bock to its
prosthetist customers after Mr. Cameron's fall. These "Dear
Customer" letters specified, inter alia, the specific torque
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levels that should be observed in screwing the pylon to the
clamp in prosthetic limbs like Mr. Cameron's. Arguably these
letters, if sent earlier, would have prevented Mr. Cameron's
accident. The Camerons contend that such letters are
evidence that Otto Bock breached its warranties of
merchantability and fitness for a particular purpose.
The trial judge excluded the letters on the ground that
the furnishing of precise torque measurements was a safety
measure undertaken after the accident, and thus inadmissible
under Federal Rule of Evidence 407, which provides:
When, after an event, measures are
taken which, if taken previously, would
have made the event less likely to occur,
evidence of the subsequent measures is
not admissible to prove negligence or
culpable conduct in connection with the
event. This rule does not require the
exclusion of evidence of subsequent
measures when offered for another
purpose, such as proving ownership,
control, or feasibility of precautionary
measures, if controverted, or
impeachment.
The Camerons argue first that the Dear Customer letters
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should have been admitted to show the feasibility of
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providing the torque measurements earlier and to show the
control Otto Bock exerted over its prosthetist customers.
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These exceptions apply, however, only "if" feasibility or
control are "controverted." The feasibility of giving the
torque measurements was certainly not controverted. The
defense offered to stipulate to feasibility, cf. Raymond v.
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Raymond Corp., 938 F.2d 1518 (1st Cir. 1991); and when the
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Camerons rejected the offer, apparently for tactical reasons,
the district court instructed the jury that the further
information could feasibly have been distributed.
"Control" is also a non-issue. Otto Bock never disputed
that it provided advice to the prosthetists who assembled its
products. Nor did it deny that providing more detailed
measurements might have avoided the accident; indeed, its
position was that the screw was overtightened and it had
never provided specific numbers prior to the accident. If
the Camerons justify the introduction of the letters in order
to show causation, as their brief implies, then we think that
the "if controverted" condition is not satisfied.
The Camerons do not appear to be claiming that the
prosthetists were effectively employees of Otto Bock so that
it might be vicariously liable for the negligence of
Cameron's own prosthetist on a master-servant theory. Even
if the Camerons had advanced such a claim, the raw fact that
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Otto Bock provided directions for the use of its product was
undisputed and that is the most that the Camerons would be
entitled to derive from the letters. There may also be some
doubt whether "control" in the master-servant sense is what
the drafters of Rule 407 had in mind, but we need not explore
this interesting issue.
The Camerons also argue that the Dear Customer letters
should have been admitted as direct evidence of breach of
warranty--i.e., as evidence that the Otto Bock components
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were defective--because, under Massachusetts law, such
evidence might be admissible in a state trial. This circuit,
however, has long held that the Federal Rules of Evidence,
and specifically Rule 407, apply in diversity proceedings,
because they "address procedural matters, [were] duly passed
by Congress, [and] shall be presumed constitutionally valid
unless they cannot rationally be characterized as rules of
procedure." McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st
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Cir. 1985). Compare Fed. R. Evid. 501 (providing that state
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privilege law governs in diversity cases).
Finally, the Camerons argue that, even if Rule 407
applies, by its terms it prohibits evidence of subsequent
remedial measures only "to prove negligence or culpable
conduct in connection with the event." The Camerons argue
that breach of warranty, according to Massachusetts law, does
not constitute "negligence or culpable conduct." We recently
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rejected this very argument in Raymond v. Raymond Corp., 938
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F.2d 1518, 1522 (1st Cir. 1991). The Camerons urge us to
reconsider Raymond, but they offer us no grounds for doing so
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that were not before this court in that case.
Affirmed.
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