Acosta-Mestre v. Hilton International

• Court: Court of Appeals for the First Circuit
• Decided: August 26, 1998
• Docket: 97-2183
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2183



                      ANTONIO ACOSTA-MESTRE,



                     Plaintiffs, Appellants,



                                v.



            HILTON INTERNATIONAL OF PUERTO RICO, INC.,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



[Hon. Hector M. Laffitte, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

            Campbell and Cyr, Senior Circuit Judges.


Carlos E. Rodriguez-Quesada, with whom Woods & Woods was on

brief, for appellants.

     Hector F. Oliveras, with whom Rafael A. Vila-Carrion and

Pinto-Lugo & Rivera were on brief, for appellees.


August 25, 1998


CAMPBELL, Senior Circuit Judge.  This is a diversity

action in which Antonio Acosta-Mestre ("Acosta") and his family

sued Hilton International of Puerto Rico ("Hilton") and its insurer

in the district court for negligence and products liability.  While

staying as a guest at the Caribe Hilton Hotel, Acosta was injured

when a lounge chair, manufactured by Tropitone Furniture Company,

Inc.("Tropitone"), collapsed on his hand.  Acosta raises several

issues on appeal.  He challenges the district court's denial of a

motion to amend the complaint to add Tropitone as a defendant. 

Acosta also challenges the court's exclusion of testimony from his

proffered expert witness and asserts that the court erred in

denying his motion for a new trial.  Finally, Acosta contends that

the district court erred in certain evidentiary rulings.  For the

reasons stated below, we affirm.        

                            BACKGROUND

  On April 14, 1995, Acosta and his family were guests of

the Caribe Hilton Hotel in San Juan, Puerto Rico.  While sunbathing

in the hotel's enclosed beach area, Acosta reached back to adjust

his chaise lounge.  The back of the chair suddenly collapsed,

severing a portion of  Acosta's left ring finger.

  Acosta and his family sued the Caribe Hilton's parent

company and its insurer in the federal district court for the

District of Puerto Rico, invoking diversity jurisdiction under 28

U.S.C.  1332.  The complaint alleged causes of action for

negligence based upon improper maintenance of the chaise lounge,

strict products liability based upon an alleged design defect, and

strict products liability based upon a breach of the implied

warranty of merchantability, and sought damages in the amount of

$1.85 million.  

  Fifteen months after filing the complaint, Acosta

requested leave to amend the complaint to add Tropitone, the

chair's maker, as a defendant.  The district court denied the

motion in an unpublished memorandum order on the grounds that

Acosta had failed to justify waiting for fifteen months before

seeking to add the chair's manufacturer as a defendant, and that

allowing such an amendment now would create unreasonable further

delay. 

  Prior to trial, Hilton moved to exclude the testimony of

Acosta's expert witness, Dr. Kenneth Soderstrom, a mechanical

engineer who was to testify in support of Acosta's strict products

liability claims.  Hilton also filed a motion to strike Dr.

Soderstrom as an expert witness on the ground that under Puerto

Rico law Acosta could not recover against Hilton on any theory of

strict products liability, rendering Dr. Soderstrom's testimony  on

the subject irrelevant.  On the fourth day of trial, the district

court granted the motion to exclude Dr. Soderstrom's testimony.  It

also granted Hilton's motion for judgment as a matter of law as to

those claims, leaving only the negligence claim to be tried to a

jury. 

     At trial, the district court ruled against Acosta on two

evidentiary issues now appealed.  First, the court excluded the

testimony of Hilton's swimming and tennis director, Naomi Nobel.  

Second, the court excluded a "Notarial Act" offered in support of

several photographs, taken by Acosta, of Hilton chaise lounges.

     On the surviving negligence count, the jury found for

defendants.  The district court entered judgment and denied

Acosta's motion for a new trial which was based, in part, on

Acosta's discovery of purportedly "new" evidence. This appeal

followed.

                            DISCUSSION

1.   Denial of Acosta's Motion To Amend the Complaint

     In denying Acosta's motion to amend the complaint to name

Tropitone as an additional defendant, the district court reasoned

that the motion to amend, which Acosta filed near the close of

discovery and after three previous extensions of the discovery

deadline had been granted, was tardy, and that Acosta lacked any 

sufficient excuse for delaying so long before moving to amend.  We

review the district court's denial of leave to amend the complaint

"for an abuse of discretion, and defer to the district court if any

adequate reason for the denial is apparent on the record."  Grantv. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995).

     Under Federal Rule of Civil Procedure 15(a), a litigant

may amend a pleading once as a matter of right before a responsive

pleading is filed and subsequently by the parties' consent or "by

leave of court."   Fed. R. Civ. P. 15(a).  While "leave [to amend]

shall be freely given when justice so requires," id., "the liberal

amendment policy prescribed by Rule 15(a) does not mean that leave

will be granted in all cases."  6 Charles Alan Wright et al.,

Federal Practice and Procedure  1487, at 611 (2d ed. 1990).  Among

the adequate reasons for denying leave to amend are "undue delay"

in filing the motion and "undue prejudice to the opposing party by

virtue of allowance of the amendment."  Foman v. Davis, 371 U.S.

178, 182 (1962); see also Grant, 55 F.3d at 5.  Here defendant did

not consent to the motion, and we find no abuse of discretion in

the court's conclusion that  Acosta's request for leave to file a

second amended complaint was preceded by undue delay.

     Acosta filed the initial complaint on September 20, 1995,

and an amended complaint on November 22, 1995.  On December 17,

1996, fifteen months after the initial complaint had been filed,

and over a year after the first amendment, Acosta filed a motion

for leave to file a second amended complaint to add the chair's

manufacturer, Tropitone, as a defendant.  By that time, discovery

was set to conclude in one month, on January 17, 1997.  In

addition, the court had approved the parties' proposed pre-trial

order just a week before, on December 5, 1996.  

     Hence by the time of the motion for leave to amend, 

nearly all the case's pre-trial work was complete.  According to

the district court's undisputed estimate, allowing the motion would

have resulted in at least an additional four months of discovery

and would have delayed trial by at least an additional twelve

months.  These consequential delays put the ball in Acosta's court,

for when "considerable time has elapsed between the filing of the

complaint and the motion to amend, the movant has the burden of

showing some 'valid reason for his neglect and delay.'" 

Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933

(1st Cir. 1983) (quoting Hayes v. New England Millwork Distribs,

Inc., 602 F.2d 15, 19-20 (1st Cir. 1979)).  The district court

could reasonably determine that Acosta failed to carry this burden. 

     On appeal, Acosta argues:  (1) that mere delay is not

reason enough to deny a motion for leave to amend; (2) that

Hilton's "lack of action forced [Acosta] to wait before amending

the complaint"; and (3) that it is only just to allow the addition

of Tropitone, who Acosta argues is likely liable for his injuries. 

     The first point is contrary to Supreme Court and circuit

precedent holding that, especially where allowing the amendment

will cause further delay in the proceedings, "undue delay" in

seeking the amendment may be a sufficient basis for denying leave

to amend.  Foman, 371 U.S. at 178.  See Grant, 55 F.3d at 5

(affirming denial of leave after fourteen-month delay);

Stepanischen, 722 F.2d at 933 (affirming denial of motion for leave

filed after seventeen-month delay); Hayes, 602 F.2d at 19 ("[I]t is

clear that 'undue delay' can be a basis for denial.").  

     Even if Acosta were correct that late filing of the

proposed amendment was not per se a sufficient reason to deny a

motion for leave to amend, the prejudice to Hilton resulting from

a re-opening of discovery with additional costs, a significant

postponement of trial, and a likely major alteration in trial

strategy and tactics due to the presence of the manufacturer of the

collapsing chair in addition to the hotel at which Acosta was a

guest, fully support the district court's ruling.  See, e.g.,

Grant, 55 F.3d at 6 (finding prejudice from undue delay where

discovery would have to be re-opened, trial preparation was

underway, and amendment would likely change defendant's planned

trial strategy and tactics).

     Acosta's second point, cursorily argued, seems to rest on

the theory that Hilton itself may have intended to implead

Tropitone as a third-party defendant.  Even if this allegation were

supported by the record   which it is not   we would reject

Acosta's suggestion that a party can shift its responsibility for

its own pleadings to its opponent.  Acosta's counsel from the

outset included claims based upon an alleged product design defect

and an implied breach of warranty, indicating that he was aware, or

should have been aware, when filing the initial complaint that the

manufacturer of the chair was a potential defendant.  If the chair

was badly designed, as alleged, the manufacturer, not the hotel,

was the more obvious defendant.  Acosta betrayed actual knowledge

of Tropitone's potential liability as early as June 14, 1996, when,

in a motion to extend the discovery deadline, he asserted that

Hilton would file a third-party complaint against Tropitone over an

alleged defect in the chair.  Armed with this knowledge, nothing

prevented Acosta, the master of his complaint, from then moving to

name Tropitone as a defendant   other than unwarranted reliance on

his adversary.  

     Finally, Acosta's contention that he should, in fairness,

now be allowed to amend the complaint in light of Tropitone's

alleged likely liability ignores his own responsibility to have

timely asserted the claim in his own complaint, or to give some

adequate reason not to have done so.  Rule 15(a)'s liberal

amendment policy seeks to serve justice, but does not excuse a lack

of diligence that imposes additional and unwarranted burdens on an

opponent and the courts.  Acosta has offered no valid reason for

not adding Tropitone as a defendant either initially or more

promptly after the initial complaint was filed.  Since the addition

of Tropitone at the eleventh hour would have resulted in further

significant delay both in the completion of discovery and the trial

of the case, we discern no abuse of discretion in the district

court's denial of leave to amend the complaint.        

2.   Exclusion of Dr. Soderstrom's Proffered Expert Opinion

     Acosta pressed three theories of liability against

Hilton.  Acosta alleged that Hilton negligently maintained the

chaise lounge.  That theory was presented to the jury at trial,

which rejected it.  Acosta also set forth two causes of action

based in strict products liability, (1) that the chaise lounge was

defectively designed, and (2) that Hilton had breached an implied

warranty by providing a chaise lounge that was defective.

     In support of the design defect and breach of warranty

theories, Acosta planned to call Dr. Kenneth G. Soderstrom, a

mechanical engineer, to testify that in his opinion the chaise

lounge had a design defect as manufactured.  Prior to trial, Hilton

filed a motion to strike Dr. Soderstrom's testimony in its

entirety.  Citing Mendoza v. Cerveceria Corona, Inc., 97 P.R.R. 487

(1969), Hilton argued that Puerto Rico law allows strict product

liability claims only against those in the business of

manufacturing or selling the allegedly defective products.  Since 

Hilton was not engaged in the business of manufacturing or selling

chaise lounges, Hilton argued that Dr. Soderstrom's proffered 

testimony on design defect would be irrelevant to any viable claim

against it.  Hilton moved both to dismiss as a matter of law the

products liability claims against it, and further to exclude Dr.

Soderstrom's testimony on the ground that he was not qualified to

render an expert opinion as to the design of chaise lounges. 

     The district court conducted a lengthy voir dire of Dr.

Soderstrom, during which the court posed questions concerning Dr.

Soderstrom's background, general qualifications, and specific

experience with chaise lounges including experiments he had

conducted.  Dr. Soderstrom stated repeatedly that should he be

permitted to testify at trial, he would opine, in sum, that the

chaise lounge was defective in design.  He was not expected to

offer any testimony in support of Acosta's claim that Hilton was

negligent in the maintenance of the chaise lounge.  

     At the completion of voir dire, the district court did

not rule on Hilton's motion to strike Dr. Soderstrom.  Rather, the

court found that while Dr. Soderstrom was qualified as a "general

mechanical engineering expert without a specialization," he was not

qualified to opine specifically as to chaise lounges either under 

the standard for admission of "scientific" evidence set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993),or pursuant to the general principles articulated in Fed. R.

Evid. 702. 

     This circuit has not yet decided whether Daubert applies

to the type of "technical" evidence proffered by Dr. Soderstrom. 

Bogosian v. Mercedes-Benz of North America, Inc., 104 F.3d 476, 479

(1st Cir. 1997).  We find it unnecessary to decide that issue here. 

Nor do we find it necessary to decide whether the district court

erred when it excluded Dr. Soderstrom's testimony, whether pursuant

to Daubert or the general standard set forth in Rule 702.  Even if

the district court erred in excluding Dr. Soderstrom's testimony,

we conclude, for the reasons stated below, that such error was

harmless.  See Bates v. Shearson Lehman Bros., Inc., 42 F.3d 79, 84

(1st Cir. 1994) (exclusion of testimony deemed harmless where

testimony would not have established viable cause of action); seealso Fed. R. Civ. P. 61.  

     In its motion for judgment as a matter of law, Hilton

renewed its contention that Puerto Rico law does not permit Acosta

to pursue its strict products liability claims against Hilton.  The

district court rendered inconsistent rulings on this issue.  The

court first appeared to reject Hilton's argument, stating:

     But they [Hilton] charge for the guests and

     they use the chaise lounge.  So, forget about

     it.  If the plaintiffs establishes [sic] or

     the evidence establishes that it could have

     been defective, the fact that they didn't

     manufacture doesn't mean anything, because

     they are making money out of that product. 



The court did not cite any authority for this ruling.  Later, in

dismissing Acosta's strict liability claims, the district court

stated that it was "granting the defendant's Rule 50 motion as it

pertains to strict liability as there is no strict liability for

the hotels in Puerto Rico, as per Puerto Rico case law." (Emphasis

supplied).  The court did not elaborate with citation to authority

or otherwise.      

     The district court's latter ruling was correct.  Since

this is a diversity case, we follow the law of Puerto Rico.  SeeErie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).  No Puerto Rico

case has been called to our attention that addresses whether

strict products liability claims lie against a hotel in 

circumstances analogous to those in this case.  Nor has case law

been called to our attention supporting the district court's

earlier suggestion that a non-manufacturer or non-seller who

tangentially "makes money" from utilization of a product is subject

to strict products liability under Puerto Rico law if a guest or

other user is injured by the product.  

     While there is no black-letter precedent in Puerto Rico

that controls here, we find relatively clear the course that the

courts of that jurisdiction would take.  Hence we see no need to

certify the question to Puerto Rico's highest court, nor have we

been asked to do so.  See Vanhaaren v. State Farm Mut. Auto. Ins.

Co.,989 F.2d 1, 3 (1st Cir. 1993) ("Absent controlling state court

precedent, a federal court sitting in diversity may certify a state

law issue to the state's highest court, or undertake its prediction

'when the course [the] state courts would take is relatively

clear'")(quoting Porter v. Nutter, 913 F.2d 37, 41 n.4 (1st Cir.

1990)).  We find guidance by looking to "'analogous state [and,

since Puerto Rico is not a state, Puerto Rican] court decisions,

persuasive adjudications by courts of [Puerto Rico and the] states,

learned treatises, and public policy considerations identified in

[Puerto Rican and] state decisional law' in order to make an

'informed prophecy' of how the [Puerto Rico Supreme Court] would

rule."  Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir.

1997) (quoting Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151

(1st Cir. 1996)). 

     The Puerto Rico courts generally embrace the principles

of strict products liability prescribed in the Restatement (Second)

of Torts  402A (1965).  See Malave-Felix v. Volvo Car Corp., 946

F.2d 967, 971 (1st Cir. 1991) (citing Mendoza v. Cerveceria Corona,

Inc., 97 P.R.R. 487, 495-96 (1969)); Perez-Trujillo v. Volvo Car

Corp., 137 F.3d 50, 52 (1st Cir. 1998).  Section 402A applies 

strict liability, or liability without regard to negligence, to

manufacturers and sellers of products that are in a "defective

condition unreasonably dangerous to the user or consumer . . . ." 

Section 402A applies, however, only if "the seller is engaged in

the business of selling such a product."  Restatement (Second)

Torts  402A (emphasis supplied).  See also W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts  100 at 705 (5th ed. 1984)

("Only a seller who can be regarded as a merchant or one engaged in

the business of supplying goods of the kind involved in the case is

subject to strict liability, either on warranty or in tort."). 

This limitation serves various public policies, among them placing

the burden of accidental injuries caused by products upon those who

market them "as a cost of production against which liability

insurance can be obtained."   402A, comment c. 

     We conclude that the  Supreme Court of Puerto Rico, which

has embraced generally the principles set forth in  402A, would

limit the application of strict products liability, whether for

alleged design defects or breach of implied warranty, to those "in

the business of" manufacturing or selling the product at issue. 

See Benitez-Allende v. Alcan Aluminio do Brasil, 857 F.2d 26, 34

(1st Cir. 1988) (predicting Puerto Rico law in light of fact that

"Puerto Rico . . . has chosen to adopt the principles of strict

liability laid out in [ 402A]").  Since Hilton was not in the

business of manufacturing or selling chaise lounges, Acosta had no

viable strict products liability claims against Hilton.

     We have noted that the Supreme Court of Puerto Rico has

consistently relied upon California Supreme Court precedent when

considering issues raised by the doctrine of strict product

liability.  Collazo-Santiago v. Toyota Motor Corp., No. 97-1365,

1998 WL 363856, at *2 (1st Circuit Jul. 9, 1998).  Our conclusion

that Puerto Rico law would prohibit Acosta's strict products

liability claims against Hilton is bolstered by our reading of

California law.

     The Supreme Court of California has specifically

addressed the issue raised by Hilton.  In Peterson v. Superior

Court, 899 P.2d 905 (Cal. 1995) (in bank), a hotel guest injured

when she fell in a bathtub in her room sued, among others, the

hotel owner alleging claims of negligence and breach of warranty. 

The Supreme Court of California held that the proprietor of a hotel

cannot be held strictly liable on the basis of products liability

for injuries to its guests caused by alleged defects on the

premises.  Id. at 907.  The court, reversing its earlier decision

in Becker v. IRM Corp., 698 P.2d 116 (Cal. 1985), held that "[t]he

mere circumstance that it was contemplated  customers . . . would

use the products in question or be benefitted by them does not

transform the owners of the businesses into the equivalent of

retailers of the products."  Id. at 913.  Because hotel owners are

not part of the chain of distribution for most products on their

premises, the court held that public policy considerations

supporting strict liability for sellers and manufacturers of

products (including the spread of loss, the availability of

expertise and resources to correct product defects, and the

incentive to manufacture safer products) do not apply in the case

of hotel owners.  Id. at 918-20.  The court noted that guests still

may sue hotel owners for alleged breaches of the applicable

standard of care and, of course, may sue those in the business of

manufacturing and selling products for strict products liability. 

Id. at 920-21. 

     We feel confident that the Supreme Court of Puerto Rico

would conclude, based upon the principles of  402A and the well-

reasoned Peterson decision, that it would be improper to impose

strict liability under product liability principles, whether for

alleged design defects or breach of implied warranty, upon a hotel

proprietor for injuries caused by an alleged defect in the hotel

premises that the hotel proprietor did not manufacture or market. 

Accordingly, we conclude that Acosta's strict product liability

claims against Hilton are not viable.  Thus, even if the district

court erred in excluding the testimony proffered by Dr. Soderstrom

in support of Acosta's strict liability claims, any such error was

harmless.  

3.   Denial of Acosta's Motion for New Trial 

     Based on Newly Discovered Evidence



     Acosta appeals from the district court's denial of his

motion for new trial based, inter alia, on what he describes as

newly discovered evidence.  The "new" evidence Acosta discovered

was that Tropitone, in cooperation with the United States Consumer

Product Safety Commission ("CPSC"), had on two occasions

voluntarily recalled several models of Tropitone lounge chairs,

including the model involved in Acosta's injuries.  The first such

recall occurred in 1992.  The second recall was made public by the

CPSC on June 3, 1997, six days before the jury rendered its verdict

in favor of Hilton.  On June 9, 1997, the same day the jury

returned its verdict, Dr. Soderstrom learned of the CPSC recall and

informed counsel for Acosta.  Before the district court and on

appeal, Acosta argues that evidence of the recall warrants a new

trial.  We disagree.

     To warrant granting a new trial based on newly discovered

evidence, the movant must demonstrate that (1) the evidence has

been discovered since trial; (2) the evidence could not by due

diligence have been discovered earlier; (3) the evidence is not

merely cumulative or impeaching; and (4) the evidence is of such a

nature that it would probably change the result if a new trial is

granted.  Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir. 1988). 

An order denying a motion for a new trial must be upheld unless the

trial court abused its discretion.  D. Federico Co. v. New Bedford

Redevelopment Auth., 723 F.2d 122, 130 (1st Cir. 1983).   

     Given our conclusion, supra, that Acosta had no viable

claims against Hilton for design defect and breach of warranty, we

conclude that evidence of the Tropitone recalls would not change

the result even if a new trial were to be granted.  The only viable

claim  pleaded by Acosta and presented to the jury was that Hilton

negligently maintained the chaise lounge.  Evidence that Tropitone

recalled certain lounge chairs in 1992 and 1997 does not bear on

that claim.              

     We add that even if Acosta had viable products liability

claims against Hilton, we would uphold the district court's denial

of Acosta's motion for a new trial.  We agree with the district

court that with due diligence Acosta would have discovered both the

recalls before trial.  Tropitone initially recalled several of its

lounge chair models in 1992, well before Acosta injured his finger. 

Acosta could have included Tropitone as a defendant, see supra, and

easily obtained information about the 1992 recall through

discovery.  Moreover, as a defendant, Tropitone would have been

subject to a continuing duty to supplement its discovery responses. 

See Fed. R. Civ. P. 26(e).  Thus, Acosta could also have readily

obtained information concerning the impending 1997 recall from

Tropitone prior to trial. 

     Acosta claims that he exercised due diligence in

propounding an interrogatory to Hilton about the condition of its

chairs asking for, inter alia, "[t]he alleged evidentiary facts of

which you have knowledge that show or tend to show that said [and

unspecified] third party or instrumentality may have been

negligent."  Hilton's response stated that "[e]fforts are being

made to determine whether the manufacturers of the chaise lounge

were negligent in the design or manufacture of it."  The record

contains no evidence that this response was not accurate.  

Moreover, a duly diligent approach to discovery would involve more

than propounding a single, open-ended discovery request to Hilton

concerning information readily available from Tropitone.  The

course was available to Acosta to name Tropitone as a defendant in

a timely fashion and to employ the panoply of discovery devices to

explore all aspects of the design defect and breach of warranty

claims, including all facts relating to any recalls of the chaise

lounges.  We agree with the district court that due diligence would

have uncovered evidence of Tropitone's recalls prior to trial and

that a new trial was therefore unwarranted.

4.   Evidentiary Issues

     Acosta challenges two evidentiary rulings made by the

district court.  We review the district court's evidentiary rulings 

for abuse of discretion.  Rodriguez-Hernandez v. Miranda-Velez, 132

F.3d 848, 855 (1st Cir. 1998).  We find no merit in Acosta's claims 

of error. 

     Acosta challenges the exclusion of the testimony of Naomi

Nobel.  Ms. Nobel became manager of the Caribe Hilton's swimming

and tennis facilities nine months after Acosta's accident.  Acosta

proffered that Ms. Nobel would testify regarding the maintenance of

the chaise lounges at the time of the accident.

     The district court excluded Ms. Nobel's testimony on the

ground that she had no personal knowledge concerning the

maintenance of the chaise lounges at the time of the accident.  The

testimony proffered to the court consisted of statements made to

Ms. Nobel by others who had knowledge of the maintenance of the

chairs during the relevant time period.  Under these

circumstances, the district court properly excluded the proffered

testimony as inadmissible hearsay not fitting within any exception

to the hearsay rule.  See Fed. R. Evid. 801, 803-804.           

     Acosta also contends that the district court erred when

it excluded eighteen photographs of chaise lounges.  The

photographs were taken by Acosta after the accident and attached to

a notarized document.  When Acosta failed to authenticate the

photographs during his testimony, he argued that the photographs

were admissible absent authentication under Rule 902(4).  We agree

with the district court's ruling that a notarized document does not

constitute "[a] copy of an official record or report or entry

therein, or of a document authorized by law to be recorded or filed

and actually recorded or filed in a public office . . . Fed. R.

Evid. 902(4).  Moreover, Rule 902 addresses only the requirement of

authentication.  "Self-authenticating" documents are not

necessarily admissible.  The district court excluded the

photographs pursuant to Fed. R. Evid. 401 and 403 on the grounds

that none of them depicted the chair involved in the accident, and

all depicted the condition of the chaise lounges after the

accident.  The district court's exclusion of the photographs under

these circumstances was a proper exercise of discretion.

     Affirmed.