USCA1 Opinion
December 9, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1055
BENJAMIN HARRISON AND ROSALIND HARRISON,
Plaintiffs, Appellants,
v.
SEARS, ROEBUCK AND COMPANY
and EMERSON ELECTRIC COMPANY,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich,* Senior Circuit Judge]
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Before
Torruella and Boudin, Circuit Judges,
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and Brody,** District Judge.
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Leonard Glazer with whom Frank E. Glazer and the Law Offices of
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Leonard Glazer, P.C. were on brief for appellants.
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David A. Barry with whom Regina E. Roman, Barbara L. Siegel, and
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Sugarman, Rogers, Barshak & Cohen, P.C. were on brief for appellees.
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* Of the First Circuit, sitting by designation.
** Of the District of Maine, sitting by designation.
BRODY, District Judge. Plaintiffs,
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Benjamin and Rosalind Harrison, appeal from a judgment
entered after a jury verdict denying them relief in a
personal injury suit against Sears, Roebuck & Company and
Emerson Electric Company. Plaintiffs appeal several
evidentiary rulings of the trial court including: the
admission of an x-ray as evidence, an instruction to the
jury on the significance of the x-ray, the exclusion of
certain expert testimony, and the exclusion of evidence of
subsequent remedial measures to the product which allegedly
caused the injury in question. Because we are satisfied
that the trial judge did not abuse his discretion in the
challenged evidentiary rulings, WE AFFIRM.
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I. BACKGROUND
I. BACKGROUND
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Appellants' decedent, Benjamin Harrison,
allegedly sustained injuries to two fingers while using a
Craftsman 6-1/8 inch Jointer-Planer ("jointer"). Benjamin
Harrison was a 70 year old man who was using the jointer to
do carpentry work on kitchen cabinets for his home. The
jointer was purchased from Sears, Roebuck & Company
("Sears") and was designed, manufactured and distributed by
Emerson Electric Company ("Emerson").
The complaint was filed on February 26, 1986,
by Appellants, Benjamin and Rosalind Harrison, against
Appellee, Sears. The complaint alleged negligence and
breach of warranty with respect to the jointer, resulting in
personal injuries to Benjamin Harrison and loss of
consortium to Rosalind. An answer was filed by Sears on
March 27, 1986. Subsequently, on June 21, 1987, the
Harrisons filed an amendment to the complaint, adding
Emerson as a defendant and alleging that Emerson engaged in
the design development, testing, manufacturing, marketing
and sale of the jointer.
Benjamin Harrison died on June 20, 1990 from
an illness unrelated to his injuries. Frederick Harrison,
Benjamin's son, was appointed executor of his father's
estate, and he was substituted in this action.
The trial began on November 18, 1991. On
November 25, 1991 the jury returned a verdict for the
defendants. Plaintiffs' theory at trial was that the
accident occurred when Benjamin Harrison's left hand entered
an unguarded aperture near the on-off switch and came into
contact with the jointer's blade. In response to the first
special interrogatory posed, "Was plaintiff injured as a
result of unintentionally inserting his fingers into the
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aperture?," the jury responded "no". Therefore, the jury
did not respond to the interrogatories regarding negligence
and breach of warranty. Judgment was entered on November
27, 1991. Plaintiffs moved for a new trial on December 9,
1991, and the motion was denied on December 11, 1991. This
appeal followed.
The precise way in which the accident
occurred was heavily disputed at trial. The deposition
testimony of the Appellants' decedent stated that while
Benjamin Harrison was in the process of shutting off the
jointer, his left hand slipped from the on-off switch and
entered into an opening allowing his fourth and fifth
fingers to make contact with moving cutter blades.
Appellants allege that this contact resulted in the partial
amputation of the decedent's left ring finger and injury to
his left fifth finger.
Appellants' engineering expert, Bradford
Schofield, testified that the opening represented an
unreasonably hazardous design that violated accepted
industry standards and resulted in the accident. Mr.
Schofield testified that the opening could have been
eliminated at negligible cost.
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Appellants' medical expert, Dr. Stephen
Meagher, testified with regard to the permanent injury
suffered by Benjamin Harrison as a result of the incident.
During cross-examination, Dr. Meagher testified that in his
opinion, the accident occurred as a result of the entry of
Benjamin Harrison's fingers into the opening. Appellants
sought to introduce Dr. Meagher's assessment of an x-ray of
Mr. Harrison's hand. Although Appellants never listed Dr.
Meagher as a liability expert during pre-trial discovery,
they sought to have his testimony admitted during their
case-in-chief to rebut the anticipated testimony of
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Appellees' expert, Jack Hyde, with regard to the
significance of the x-ray in determining the cause of the
accident. Appellants argued that this testimony was proper
because they had not been notified prior to trial that the
x-ray would be relied on. The trial judge ruled that
Meagher could not offer an opinion regarding how the
accident occurred on direct examination because Appellants
had never disclosed prior to trial that Meagher would
testify as to causation.
Appellees then presented their engineering
expert, Jack Hyde, who testified that the accident could not
have occurred as Benjamin Harrison claimed. Hyde gave two
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reasons for his opinion. First, Hyde testified that because
of the design of the jointer, it would be difficult to get
one's fingers into the opening unintentionally. In
addition, Hyde opined that the injury could not have
occurred as Harrison alleged because the angle and location
of the cuts on Harrison's fingers, as depicted in the x-ray,
were inconsistent with his testimony as to how the fingers
were cut. Hyde was permitted to use the x-ray in
conjunction with his testimony over Appellants' objection
that he lacked qualification as an expert with respect to x-
ray interpretation. Appellants also objected on the grounds
that Appellees failed to give adequate notice regarding
Hyde's anticipated testimony with respect to the x-ray.
Appellants' further objected to the court's instruction to
the jurors that "they may conclude, to some extent, what
[they] think an x-ray means." Trial Tr. at 61, reprinted
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in, Appellants' App. at 270.
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Hyde was also permitted to testify that there
had never been a similar complaint to Emerson despite
Appellants' objection to the use of this negative evidence.
Finally, Appellants contend that the trial
court's denial of their motion for a new trial should be
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reversed because the court sustained Appellees' objection
when Appellants sought to cross-examine Hyde with regard to
a subsequent design change which eliminated the opening in
the jointer. Appellants argue that this cross-examination
should have been permitted because Hyde testified during
direct examination that there had been "no hazardous area
left exposed next to the switch where you [could]
unintentionally get your hand," even though he contributed
to a subsequent design change which eliminated the opening
in question. Trial Tr. at 40, reprinted in Appellants' App.
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at 249. Further, Appellants argue that this cross-
examination was proper because Appellees opened the door to
this type of evidence when they touted Hyde's qualifications
as an expert which included his work on the design of
jointers.
II. DISCUSSION
II. DISCUSSION
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A. Use of the x-ray as evidence
A. Use of the x-ray as evidence
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The district court allowed Appellees'
engineering expert, Jack Hyde, to utilize an x-ray of
Harrison's hand while testifying regarding the cause of
Harrison's injuries. Appellants contend that Hyde was not a
medical expert and thus not qualified to interpret x-rays.
Appellants assert that the allowance of the use of the x-ray
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was an abuse of discretion. Appellees argue in response
that in this context the x-ray is equivalent to a picture
and, therefore, requires no specialized knowledge to view in
order to determine the angle of the break in a bone.
Appellees further contend that there is no merit to
Appellants' position because, as an accident
reconstructionist, Hyde had extensive experience with x-
rays.
The admission of expert testimony under Fed.
R. Evid. 702 is within the trial court's discretion and will
be reversed only for an abuse of discretion. Navarro de
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Cosme v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir. 1991).
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Specifically, the trial judge has discretion in determining:
(1) whether Hyde was sufficiently qualified to testify
regarding the x-ray of Harrison's hand, and (2) whether
Hyde's testimony would, in fact, assist the trier of fact to
understand the evidence or to determine a fact in issue.
Raymond v. Raymond Corp., 938 F.2d 1518, 1526 (1st Cir.
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1991).
There was evidence that Hyde had extensive
formal education in safety engineering, human factors
engineering and product safety. Also, the record
demonstrates that Hyde had over ten years of experience
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reconstructing accidents involving power tools and hand
injuries. Moreover, Hyde had read x-rays of hand and body
parts involved in accidents on numerous occasions, had
consulted with doctors concerning his interpretation of x-
rays, and he testified that x-rays were often interpreted
and relied upon by experts in his field.
The record demonstrates that the trial judge
was well within his discretion in determining that Hyde
possessed sufficient knowledge, skill, experience and
training to utilize the x-ray to support his testimony. The
record also indicates that Hyde used the x-ray to determine
the location and angle of the cuts to Harrison's fingers and
not for a medical diagnosis. Allowing Hyde to make use of
all the information available to him, including the x-ray,
was not an abuse of discretion. See, e.g. Gray v. General
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Motors Corp., 434 F.2d 110, 113 (8th Cir. 1970).
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B. The jury instruction regarding the x-ray
B. The jury instruction regarding the x-ray
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The trial judge permitted the jury to see the
pre-operative x-ray of Harrison's hand in conjunction with
Jack Hyde's testimony. In addition, the trial judge
instructed the jury:
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. . . you may conclude to some
extent what you think [the x-
ray] means.
Now, this x-ray shows some bone. If the
witness says something about the bone,
and what they mean to him, you will be
free to reject it, if it doesn't meet
with your approval. You will be able to
accept it, if it does.
Trial Tr. at 61, reprinted in Appellants' App. at 270.
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While case law exists in which courts have
found it improper to allow the jury to see x-rays, these
cases all involved complex medical issues. See, e.g.
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Broderick v. Gibbs, 1 Mass. App. Ct. 822, 296 N.E.2d 708
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(1973). In this case, the jury was permitted to use the x-
ray as a photograph would be used, to depict the location
and angle of the cuts to Harrison's fingers. Because
laypersons are capable of understanding x-rays insofar as
they depict the location of a missing section of a bone, it
was not improper for the district court to allow the jury to
view the x-rays for this purpose.
Further, the challenged jury instruction did
not tell the jurors they could use their unbridled
discretion in interpreting the x-ray as Appellants suggest.
Rather, the instruction indicated that the jurors could
conclude whether they believed the x-ray showed what the
witness purported it revealed. For these reasons we find
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that the admission of the x-ray with the challenged
instruction was not an abuse of discretion.
C. The scope of Dr. Meagher's testimony
C. The scope of Dr. Meagher's testimony
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Appellants assert that during the Defendants'
opening statement they learned for the first time that
Defendants' expert, Jack Hyde, would use the x-ray to
support his opinion. The scope of Hyde's expected testimony
was reflected in the Defendants' Supplemental Answers to
Interrogatories. These interrogatories stated that, "Mr.
Hyde will testify that the plaintiff Benjamin Harrison's
description of how the accident occurred is inconsistent
with the nature and location of his injury and the design of
the product." Interrog. of Def. Emerson pp. 7-8, reprinted
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in Appellants' App. at 52-53. Because Appellees did not
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expressly state that the x-ray would be used until their
opening statement to the jury, Appellants assert that they
had a right to rebut the interpretation of the x-ray.
Appellants sought to rebut Hyde's anticipated
use of the x-ray with the testimony of their medical expert,
Dr. Meagher. It was not until a bench conference during the
direct examination of Meagher, that Appellants' counsel
expressed his intention to ask Meagher for his opinion
regarding the significance of the x-ray in determining
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whether the injury could have been produced by the insertion
of fingers into the opening.
Appellees objected to this testimony
asserting that it would be unfairly prejudicial because they
had been given no notice that Dr. Meagher would testify to
anything other than his physical examination of Harrison.
Specifically, Appellees objected to Dr. Meagher's testimony
as to causation issues because he was never listed as a
liability expert in Plaintiffs' Supplemental Answers to
Interrogatories.
The scope of Dr. Meagher's expected
testimony, as described in the Plaintiffs' Supplemental
Answers to Interrogatories and Trial Brief, was limited to
his diagnosis and prognosis of the Plaintiff's injuries
based on his post-injury examination of the Plaintiff.
Appellants' counsel conceded at a bench conference that
there was nothing in Meagher's report dated April 13, 1989
which related to the precise manner in which the accident
occurred and that, prior to trial, Appellants never intended
to have him testify regarding the cause of the accident.
Nevertheless, Appellants contend that they had a right to
question Dr. Meagher on the causation issue and to solicit
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his opinion about the significance of the x-ray to "rebut"
the expected testimony of Jack Hyde.
During direct examination, the district court
initially refused to allow Dr. Meagher to offer an opinion
regarding the cause of the Appellant's injury because
Appellants had not disclosed that he would so testify prior
to trial. The district judge did not address the issue of
whether this was proper rebuttal evidence when he excluded
the testimony in question. Ultimately, however, as
discussed below, the district court allowed Dr. Meagher to
testify to some extent about causation, but the court did
not allow Dr. Meagher to testify that the x-ray was
consistent with Appellants' version of the events.
Assuming arguendo that it was error for the
trial judge to exclude Meagher's causation testimony, the
standard for reviewing a district court's nonconstitutional
error in a civil suit requires that we find such error
harmless if it is highly probable that the error did not
affect the outcome of the case. See, e.g. United States v.
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Garcia-Rosa, 874 F.2d 209, 222 (1st Cir. 1989), vacated on
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other grounds sub nom. Rivera-Feliciano v. United States,
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112 L. Ed. 2d 391 (1990). The record indicates that Dr.
Meagher unequivocally testified a number of times that the
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accident could not have happened in any way other than as
Harrison described.1 Allowing Dr. Meagher to testify that
the x-ray showed an injury which was consistent with
Harrison's allegations would have added little to the
evidence before the jury. Although Dr. Meagher was
prevented from testifying directly about his opinion
regarding the accident's cause, he did in fact tell the jury
that he believed the cause of the accident could only have
been as Harrison described. Any additional testimony by Dr.
Meagher regarding causation would have been cumulative. We
find that the failure of the trial court to admit such
cumulative evidence, as rebuttal or otherwise, was
harmless. Coy v. Simpson Marine Safety Equipment,Inc., 787
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F.2d 19, 24-25 (1st Cir. 1986) (harmless error where
substance of excluded testimony could be inferred from other
trial testimony).
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1 After Dr. Meagher reported his record of the plaintiff's
medical history, which reiterated the plaintiff's contention
that he was injured when his hand unintentionally slipped
into the opening by the on-off switch, the trial judge
asked, "And your opinion was that the injury that he
received, the damages that he received, was consistent with
that history?" Meagher responded, "Absolutely. Absolutely.
It couldn't have happened any other way." The trial judge
then repeated his question, "He couldn't have cut himself
some other way?" Meagher replied, "No. Absolutely. The
middle finger and index were most at risk on the top of the
table . . . ." Trial Tr. at 33-34, reprinted in Appellants'
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App. at 171-72.
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On this appeal, Appellants seem to suggest
that Dr. Meagher was prepared to offer a detailed refutation
of Hyde's analysis of the x-ray to show in specific terms
why Hyde's interpretation of the x-ray was wrong and why the
x-ray in fact supported Appellants' theory of causation. If
so, it is at least arguable that such testimony could have
been properly characterized as "rebuttal" and that it would
have been more than merely cumulative. It is impossible to
determine, however, whether Dr. Meagher was prepared to give
detailed testimony of this nature -- or whether he was
merely going to state that the x-ray was consistent with
Appellants' version of causation -- because Appellants never
presented the district court with a proffer of the substance
of Dr. Meagher's testimony. Federal Rule of Evidence
103(a)(2) places the burden of making a proffer on the
proponent of the excluded evidence, precisely in order to
resolve this uncertainty and to ensure that the trial judge
and the appellate court can evaluate the matter fully.
Because Appellants failed to make such a proffer, we
conclude that they cannot argue on appeal that Dr. Meagher
was prepared to present a detailed refutation of Hyde's x-
ray testimony.
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D. The allowance of the use of negative
The allowance of the use of negative
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evidence
evidence
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Hyde was permitted to testify over
Appellants' objection that, other than Harrison's, no
complaints of similar injuries while using the jointer were
ever made to Emerson. Appellants contend this was improper
because it was irrelevant, not supported by a proper
foundation and misleading because only the name Sears
appeared on the jointer.
Although Appellants claim that the negative
evidence is irrelevant and inadmissible to prove causation,
they offer no authority to support that position and such
evidence has been admitted in past cases. See, e.g.,
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Borrelli v. Top Value Enterprises, Inc., 356 Mass. 110, 113,
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248 N.E. 2d 510 (1969).
Since Hyde's testimony was explicitly limited to complaints
to Emerson, and because there was evidence that Hyde would
know of any complaints regarding the jointers Emerson sold
(approximately 390,000), the foundational requirements for
such testimony were adequately met.
Appellants' remaining objection to the
testimony is based upon their contention that, in fact,
customer complaints may have been made to Sears, the
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retailer, which were not relayed to Emerson and, therefore,
Hyde's testimony concerning Emerson was misleading to the
jury. Because Appellants were free to cross-examine Hyde
about his knowledge of similar complaints (or the lack
thereof) made to Sears, their challenge to the admission of
this evidence as misleading is not persuasive. Hyde's
knowledge of similar complaints made to Sears was not a
foundational prerequisite to his testimony regarding
complaints to Emerson. For these reasons we find it was not
an abuse of discretion for the district court to admit this
testimony.
E. The exclusion of evidence of subsequent
E. The exclusion of evidence of subsequent
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remedial measures to negate the expert's
remedial measures to negate the expert's
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qualifications and to impeach Hyde's
qualifications and to impeach Hyde's
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testimony
testimony
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The Court did not permit Appellants to
question Appellees' expert, Hyde, regarding subsequent
remedial measures made to the jointer. Appellants contend
that this was reversible error because Appellees bolstered
Hyde's qualifications by allowing him to state that he
worked on design changes to the jointer. Appellants assert
that they should have been able to bring out on cross-
examination that one of Hyde's contributions led to the
subsequent removal of the opening which allegedly injured
Appellant.
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Appellants sought to have the evidence of the
subsequent removal of the opening in the jointer admitted to
impeach Hyde's testimony as well as to diminish his
qualifications. Hyde testified on direct examination that,
"there [was] no hazardous area left exposed next to the
switch where you are going to unintentionally get your hand
in there and contact the cutter head." Trial Tr. at 40,
reprinted in Appellant's App. at 249. However, after
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Appellants' claim arose, Hyde participated in designing a
new jointer without the opening which allegedly injured
Harrison.
In rejecting the use of subsequent remedial
measure evidence, it is not clear from the record whether
the district court was made aware of the impeachment aspect
of Appellants' objection. In any event, the use to undercut
qualifications and the use to impeach Hyde's testimony are
closely related -- in substance Appellants wanted to argue
that "you can't trust this witness" -- and we will assume
that both uses were adequately raised before the trial
court. In light of the close connection between these two
proposed uses, we will refer to both as impeachment.
Federal Rule of Evidence 407 does not require
the exclusion of evidence of subsequent measures when such
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evidence is being offered exclusively for impeachment
purposes.2 Reversible error has been found when subsequent
remedial evidence has been excluded when offered for
impeachment purposes. See, e.g. Petree v. Victor Fluid
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Power Inc., 887 F.2d 34, 38 (3rd Cir. 1989). However, cases
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which have admitted subsequent remedial measure evidence for
impeachment purposes tend to involve a greater nexus between
the statement sought to be impeached and the remedial
measure than the case at bar. For example, in Anderson v.
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Malloy, subsequent remedial measure evidence was admitted to
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impeach statements that defendants had checked the area
prior to the alleged accident and done everything possible
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to make it safe. 700 F.2d 1208, 1212-14 (8th Cir. 1983)
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2 Fed. R. Evid. 407 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 [remedial] 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.
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(emphasis added). A more direct impeachment use of
subsequent remedial measure evidence would exist if
Appellees' witness stated that he did not change the product
after the alleged accident was brought to his employer's
attention. See, e.g. Garshon v. Aaron, 330 Ill. App. 540,
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71 N.E. 2d 799 (1947). Rule 407's impeachment exception
must not be used as a subterfuge to prove negligence or
culpability. See Hardy v. Chemetron Corp., 870 F.2d 1007,
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1010-12 (5th Cir. 1989) (trial court properly excluded
evidence of subsequent rewiring proffered to impeach
defendant's testimony that negligent wiring had not caused
the plaintiff's injury).
The leading commentators have noted the
difficulty associated with applying the impeachment
exception to Rule 407. Professor Wright voices a strong
concern that the "exception" has the capacity to engulf the
"rule". 23 Wright & Graham, Federal Practice and Procedure
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5289, at 145 (1980) (footnote omitted).
To guard against the impeachment exception being used as a
loophole for bringing in evidence to prove negligence under
Rule 407, the commentators advise that trial judges should
not abandon their discretionary authority under Federal Rule
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of Evidence 4033 to exclude the use of such evidence.
Wright & Graham, supra, at 148. In this case
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the trial judge invoked his discretionary power to exclude
testimony concerning the subsequent design change to the
jointer. It is beyond question that the proffered testimony
would have been extremely prejudicial to the Appellees. As
impeachment evidence the only available basis for admission
of the subsequent design change would have been to impeach
Hyde's contention that the accident could not have happened
in the manner described by Appellant. To allow Appellants
to impeach this statement would in effect enable them to
impeach Hyde's claim that the product was not defective and
that Appellees were not negligent. If the evidence was
admitted to impeach Hyde, Appellants' argument to the jury
could have closely paralleled an argument that the
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3 Fed. R. Evid. 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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subsequent measure could be seen as proof that Appellees
were negligent.
It was within the trial judge's discretion
under Rule 403 to determine whether this evidence would have
prejudiced Appellees contrary to the intent of Rule 407, and
to exclude such evidence due to the risk that the jury might
improperly infer negligence from it. See, e.g., Probus v.
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K-Mart, Inc., 794 F.2d 1207, 1209 (7th Cir. 1986); Public
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Service Co. v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th
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Cir. 1985). Because Hyde's statement and qualifications
could only have been indirectly impeached by the subsequent
remedial measure evidence and because the nature of the
evidence was highly prejudicial, the trial judge did not
abuse his considerable discretion in excluding such
evidence.
For these reasons, the judgment of the
district court is affirmed.
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