Masello v. The Stanley Works et al.

2011 DNH 195

Opinion

Masello v . The Stanley Works et a l . CV-08-136-JL 11/22/11 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Joseph N . Masello

v. Civil N o . 08-cv-136-JL Opinion N o . 2011 DNH 195 The Stanley Works, Inc. and ZAG Industries, Ltd.

MEMORANDUM ORDER

The parties to this wrongful death action arising from the

collapse of a plastic stepstool have filed a series of motions in

limine challenging the admissibility of certain evidence at the

upcoming jury trial. The stepstool, manufactured by defendant

ZAG Industries, Ltd., collapsed as the decedent, Joseph M .

Masello, was standing on it while restocking products during his

overnight shift at a Christmas Tree Shops retail store. Masello

fell backward and struck his head against the floor, causing him

to fall into a coma. He died two weeks later.

Masello’s son has brought this action in his capacity as the

administrator of the estates of both his father and his mother,

Masello’s wife, who was alive at the time of Masello’s death but

has since died herself.1 The complaint asserts state-law claims

1 For clarity’s sake, the court will use “Masello” to refer to the father and “the plaintiff” to refer to the son in his capacity here. of negligent design and failure to warn, strict products

liability, and breach of warranty against ZAG and the distributor

of the stool, The Stanley Works, Inc. This court has diversity

jurisdiction over this action between the plaintiff--who, acting

on behalf of decedents who were New Hampshire citizens when they

died, is treated as a New Hampshire citizen for purposes of

diversity, see 28 U.S.C. § 1332(c)(2)--and the defendants,

Israeli and Connecticut corporations. See id. § 1332(a)(3).

In Masello’s accident, the left front leg of the stool

cracked into several pieces, causing it to collapse. The

defendants’ principal theory of defense is that this occurred not

because the stool was defectively designed, but because part of

its left front leg was already missing at the time Masello

climbed onto the stool--a factual proposition for which there is

no direct evidence either way, because the allegedly missing

piece was not among the other parts of the stool recovered from

the scene of the accident. Nevertheless, the plaintiff’s motions

in limine seek to prevent the defendants from adducing any

evidence in support of this theory (including a report of an

investigation by the Occupational Safety and Health

Administration finding that Christmas Tree Shops had violated

federal workplace safety law by providing its employees with a

broken stepstool) o r , indeed, even arguing the theory at trial.

2 The plaintiff also seeks to prevent the defendants from relying

on evidence of tests it conducted, which tends to show that the

stepstool was safe for its intended use, and evidence of

Masello’s pre-existing health conditions, and his on-the-job

performance and off-the-job drinking, which tends to call into

question the plaintiff’s claimed damages. As fully explained

infra, these motions are denied. While the plaintiff would

undoubtedly prefer to try the case without the jury’s hearing or

seeing anything that undermines his claims, that preference

neither supports the exclusion of admissible evidence nor

justifies the filing of a dozen pre-trial motions in limine

toward that end.2

The defendants, for their part, have filed two motions in

limine. The plaintiff assents to one of those, which seeks to

prevent evidence that defendant ZAG contacted one of the

plaintiff’s expert witnesses before the plaintiff had retained

him. The other motion filed by the defendants, which seeks to

exclude evidence of ZAG’s “internal brochure” about the

2 Of the plaintiff’s twelve motions in limine, eight address the issues just summarized, while three others are premature. The defendants assent to the remaining motion, which seeks to exclude a post mortem medical report made for workers’ compensation purposes. See infra Part II.G.

3 stepstool, is denied because, at a minimum, the brochure is

relevant to their superseding and intervening cause defense.

I. Background

The body of the Handy 2-Step stool consists of a single

piece of molded polypropylene plastic. As its name suggests, the

Handy 2-Step has two steps, connected by four legs. Each of the

legs ends in an outward pointing “toe” with a rubber tip on the

bottom. The underside of each of the steps consists of a number

of supporting ribs running in a perpendicular direction from the

center to the front or back side of the step. The bottom edge of

each of the intersections between a rib and the front side of the

step is rounded so that the rib meets the step at a radius of 5

millimeters. There are also two ribs, running parallel to the

bottom step, that connect it to the inside of each of the front

legs. The bottom edges of these ribs are not rounded.

On the night of the accident, Masello was standing on a

Handy 2-Step provided by his employer, Christmas Tree Shops,

hanging beach bags for sale in its store in Salem, New Hampshire.

The left front leg of the stool cracked into several pieces,

causing it to collapse. Masello fell backward, striking his head

on the ground. He was non-responsive, so paramedics were called

immediately, just after 3 a.m. The paramedics placed Masello on

4 a back board and took him to the hospital, leaving the store

around 3:40 a.m.

One of Masello’s fellow employees subsequently retrieved the

stool and three broken pieces of the left front leg, but was

unable to locate the toe. S o , as mentioned at the outset, the

parties disagree over whether the toe broke off in the accident

and could not be found afterwards or whether the toe had already

broken off before Masello stepped on the stool that night. This

disagreement is significant because the defendants’ theory is

that the stool collapsed due to the absence of the toe, which

allowed the leg to slide out from under the stool when Masello

stood on i t , while the plaintiff’s theory is that the stool

collapsed due to the absence of a rounded edge on the bottom of

the ribs connecting the first step to each of the front legs.

As a result of striking his head in the fall, Masello

suffered a skull fracture and an acute subdural hematoma, which

caused him to fall into a coma. Despite a craniotomy to attempt

to relieve the pressure on his brain, Masello never regained

consciousness. He died approximately two weeks later.

In April 2008, Masello’s wife, acting as the administratrix

of his estate, commenced this action, including her own claim for

loss of consortium. ZAG and Stanley raised in their answers,

among other defenses, comparative negligence and superseding and

5 intervening cause. They have not, however, sought to apportion

liability to Christmas Tree Shops. See N.H. Rev. Stat. Ann.

§ 507:7-e, I ; DeBenedetto v . CLD Consulting Eng’rs, Inc., 153

N.H. 793, 803 (2006).

II. Analysis

A. The “speculative argument” about the stool’s missing piece3

As noted at the outset, the plaintiff seeks to prevent the

defendants, “whether by counsel or through introduction of any

exhibit or examination of any lay or expert witness, to assert

that the step stool involved in this incident was missing a piece

prior to M r . Masello’s use.” The plaintiff argues that “there is

no factual basis supporting [this] speculative position and

therefore, it should not be referred to or raised to the jury

during trial.” But the premise of this argument is wrong. The

defendants’ position that the “toe” from the stool’s left front

leg was missing before Masello began using it is supported by a

variety of circumstantial evidence.

First, the post-accident examination of the stool revealed

that both of its rear legs were cracked and missing pieces.

Second, as documented in the OSHA report and confirmed in the

3 See document n o . 6 5 .

6 store manager’s deposition, five of the dozen or so remaining

stools used by employees there “were also found defective and

taken out of service” immediately after the accident and that

“most of the defects were broken toes.” Third, the Christmas

Tree Shops “area loss prevention manager,” who visited the store

within a day or two of the accident, testified that one of

Masello’s fellow employees had collected the pieces of the broken

stepstool after the accident and delivered them to the store

manager’s office. The loss prevention manager testified that he

“confirm[ed]” with the employee who had collected the broken

stool “that he got all the pieces.” When the loss prevention

manager attempted to reassemble the stool from the broken pieces,

however, he realized that the toe was not among them, and that

its absence was obvious. Store personnel then searched the area

of the accident for the missing piece, but were unable to find

it. 4

Of course, this is not conclusive evidence that the piece

was missing before Masello stepped on the stool, and the

plaintiff points to a number of other facts supporting the

contrary inference. First, there is testimony by the store’s

4 Photographs of the broken stool were then taken, but some of the other broken pieces were subsequently lost, and were never located

7 night manager that, before the shift started, she inspected all

the stepstools that were used, looking for cracks and broken

pieces, but did not find any. Second, there is testimony by one

of Masello’s co-workers that she had never previously noticed any

problems with the stool he was using that night. Third, just

after the paramedics took Masello from the store, an outside

cleaning crew arrived to scrub the floor, and the floor would

have also been regularly swept and walked over after the store

opened for business that day. Thus, the plaintiff argues, any

number of people could have removed the “toe” piece from the

floor before store employees were able to find i t .

But this evidence simply supports a plausible alternative to

the defendants’ theory that the piece was already missing. It

does not render that theory “speculative.” Nor does it prevent

the defendants from introducing whatever admissible evidence they

have to support their theory.5 Weighing that evidence--which is

unquestionably relevant, see Fed. R. Evid. 401--and deciding what

theory is ultimately more convincing, are tasks for the jury.

Indeed, this court has already ruled as much in its order denying

5 Indeed, the plaintiff’s motion seems circular in seeking to prevent the defendants from even arguing their theory on the ground that it lacks evidentiary support, but also seeking to prevent the defendants from adducing the very evidentiary support that the plaintiff claims is lacking.

8 the defendants’ motion to exclude the plaintiff’s liability

expert because his opinion fails to account for the chance that

the toe was missing prior to the stool’s failure. Masello v .

Stanley Works, Inc., 2011 DNH 0 6 1 , 9 (document n o . 7 1 ) . 6

“The only limit on the positions a party can take--as

distinguished from the evidence a party can introduce--would seem

to be the general rule against ‘arguments prejudicial to the

opposing party which are not supported by facts in evidence, or

which are beyond the limits of fair or sound argument, unduly

influencing or distracting the jury.’” Aumand v . Dartmouth

Hitchcock Med. Ctr., 611 F. Supp. 2d 7 8 , 84 (D.N.H. 2009)

(quoting 75 Am. Jur. 2d Trial § 4 1 4 , at 632 (2007)) (footnote

omitted). The defendants’ position that the stool was missing

the toe to its left front leg before Masello stepped on it does

not fit that description. To the contrary, that is one of the

key disputed factual issues in the case. The plaintiff’s motion

6 In fact, the plaintiff argued in response to that motion that, by making such an argument, the defendants were “putting the Court in a position of having to determine the admissibility of [the expert’s] opinions and testimony based upon factual and evidentiary disputes that will all be resolved in Plaintiff’s favor at trial.” Though that strategy proved unsuccessful, the plaintiff now seems to have decided to give it a try himself, seeking what amounts to a pretrial resolution of a disputed factual issue by the court in a case to be tried by a jury. That is not the appropriate function of a motion in limine, which “should not be used to resolve factual disputes.” C&E Servs., Inc. v . Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008).

9 to prevent the defendant from even taking a position on that

issue, or from introducing any evidence in support of that

position, is denied.

B. The OSHA investigation and report7

The plaintiff also “seeks the complete exclusion of all OSHA

related actions and information from the trial,” including “any

reference through direct or cross-examination of any witness, the

introduction of any documents or photographs or reliance upon

this information by any expert.” Just over two weeks after

Masello’s accident, OSHA conducted a “comprehensive inspection”

of the Salem Christmas Tree Shops location, interviewing, among

others, the store’s manager and its director of loss prevention.

The manager told the investigator that “after the accident they

examined the rest of their stools and five of the remaining

stools were also found defective and taken out of service.” The

investigator also took photographs of the broken stepstool

involved in the accident, and reviewed results of the tests on

the Handy 2-Step performed in the late 1990s.

Based on this inspection, which is summarized in a 10-page

report, OSHA concluded that Christmas Tree Shops had violated

7 See document n o . 6 1 .

10 § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29

U.S.C. § 654(a)(1), in that its “employees were exposed to the

hazard of falling while working from a damaged ‘Handy 2-Step’

plastic stool.” OSHA deemed this a “serious” violation and fined

the company $5,000. Christmas Tree Shops did not contest either

the finding of violation or the amount of the fine.

As the plaintiff acknowledges, Rule 803(8)(C) of the Federal

Rules of Evidence provides for an exception to the hearsay rule

in civil actions for reports setting forth “factual findings made

pursuant to authority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness.” The OSHA report here fits easily within this

exception. As the court of appeals has observed, “accident

reports containing investigators’ conclusions and opinions”

satisfy Rule 803(8)(C) “‘[a]s long as the conclusion is [1] based

on a factual investigation and [2] satisfies the Rule’s

trustworthiness requirement.’” Lubanski v . Coleco Indus., Inc.,

929 F.2d 4 2 , 45 (1st Cir. 1991) (quoting and adding bracketing to

Beech Aircraft Corp. v . Rainey, 488 U.S. 153, 170 (1988)).

The plaintiff does not question that the OSHA investigator’s

conclusion that Christmas Tree Shops exposed its employees “to

the hazard of falling while working from a damaged ‘Handy 2-Step’

plastic stool” was based on a factual investigation. Instead,

11 the plaintiff argues that this conclusion is untrustworthy

because the investigation did not include “any sworn statements,

cross-examination or proceedings in an adjudicatory venue.” But

the test for trustworthiness under Rule 803(8)(C) is not nearly

so stringent. To the contrary, as this court recently observed,

the court of appeals has held that “an initial presumption of

admissibility” attaches to an officer’s accident report,

including its conclusions, so long as it is based on his or her

factual investigation (which, again, the report here indisputably

was). Westerdahl v . Williams, ___ F. Supp. 2d ___, 2011 DNH 136,

15 (quoting Lubanski, 929 F.2d at 45-46).

S o , while the fact that the report was not the product of an

adjudicatory hearing at which witnesses were sworn and cross-

examined may have some bearing on its trustworthiness, see Fed.

R. Evid. 803(8) advisory committee’s note (1974), it cannot be

called “untrustworthy” for that reason alone. See Bridgeway

Corp. v . Citibank, 201 F.3d 1 3 4 , 143 (2d Cir. 2000) (holding that

the lack of a hearing “is not determinative by itself” of the

Rule 803(8)(C) inquiry); Sabel v . Mead Johnson & Co., 737 F.

Supp. 135, 142-43 (D. Mass. 1990) (“the weight of authority is

that no formal proceedings are necessary to satisfy the

prerequisites of the rule”) (citing cases). And the plaintiff

has not pointed out any other deficiency calling the

12 trustworthiness of the report into question, such as the

timeliness of the investigation (which began with a visit to the

store about two weeks after the accident) or the investigator’s

“motivation problems” or lack of “special skill or experience.”

Fed. R. Evid. 803(8) advisory committee’s note (1974).

If anything, the conclusion appears trustworthy because it

is based principally on the admission of the store manager--which

she repeated, under oath, at her deposition in this case, where

she was subject to cross-examination--that “five of the remaining

stools were also found defective and taken out of service.” The

report, including its conclusion that Christmas Tree Shops

endangered its employees by providing them with a broken stool,

readily satisfies Rule 803(8)(C).

The plaintiff also argues that the OSHA report is

irrelevant, see Fed. R. Evid. 4 0 1 , and that its prejudicial

effect outweighs its probative value, see Fed. R. Evid. 403. The

court disagrees on both counts.

First, as just discussed at length in the preceding section,

whether the stool that collapsed beneath Masello was already

compromised before he stepped on it is a “fact that is of

consequence to the determination of [this] action,” and the

condition of other stools in the store at that point has a

“tendency to make the existence of [that] fact . . . more or less

13 probable than it would be without the evidence.” Fed. R. Evid.

401. The plaintiff does not seriously argue to the contrary.

The court also disagrees with the plaintiff that the

report’s “probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Fed. R. Evid. 403. As just discussed, the

report reflects a comprehensive investigation of the very same

incident that gave rise to this lawsuit, so it is “highly

probative.” Davignon v . Hodgson, 524 F.3d 9 1 , 113 (1st Cir.

2008) (affirming the admission, over a Rule 403 objection, of a

state labor commission’s decision on whether the defendant had

violated state law by engaging in the same conduct giving rise to

the lawsuit at issue).

The plaintiff argues that the report will improperly

“suggest to the jury that because OSHA focused on the employer

and working conditions of the injured employee and incident

location (as is its focus and purpose), the jury should do the

same and fault [Christmas Tree Shops] for the incident,” rather

than the defendants. While that is certainly a possibility, it

does not amount to unfair prejudice. Indeed, “[v]irtually all

evidence is prejudicial--if the truth be told, that is almost

always why the proponent seeks to introduce it--but it is only

unfair prejudice against which the law protects.” United States

14 v . Pitrone, 115 F.3d 1 , 7 (1st Cir. 1997). To counter the effect

of the report, the plaintiff will be free to emphasize any

limitations on the investigation (including his point that OSHA’s

mandate is to regulate the safety of the workplace, rather than

the design of products) through appropriate cross-examination or

requests for limiting instructions or judicial notice.

In fact, the plaintiff’s point would seem to diminish the

potential prejudicial effect of the report, since the trial here

will be about the defendants’ responsibility for the accident,

rather than Christmas Tree Shops’s responsibility for the

accident (except insofar as the conduct of Christmas Tree Shops

amounted to a superseding and intervening cause). That serves to

distinguish this case from those the plaintiff cites, all of

which upheld the exclusion, from discrimination trials, of

reports by the responsible investigative agencies as to whether

the defendant engaged in the very discrimination at issue in the

trial. See Smith v . Mass. Inst. of Tech., 877 F.2d 1106, 1113

(1st Cir. 1989); Denny v . Hutchinson Sales Corp., 649 F.2d 816,

822 (10th Cir. 1981); Gillin v . Fed. Paper Bd. Co., 479 F.2d 9 7 ,

99 (2d Cir. 1973); accord Black v . Ryder/P.I.E. Nationwide, Inc.,

15 F.3d 573, 587 (6th Cir. 1994) (upholding the exclusion of the

National Labor Relations Board’s decision not “to issue a

15 complaint in response to [plaintiff’s] unfair labor practice

charge, involving the same subject matter as” the trial).

As this court has observed, that situation generally calls

for excluding the report given “the ‘likelihood that the trial

will deteriorate into a protracted and unproductive struggle over

how the evidence admitted at trial compared to the evidence

considered by the agency.’” L’Etoile v . New Eng. Finish Sys.,

Inc., 575 F. Supp. 2d 3 3 1 , 334 (D.N.H. 2008) (quoting Paolitto v .

John Brown E . & C., Inc., 151 F.3d 6 0 , 65 (2d Cir. 1998)). But

those concerns are largely absent here because, as the plaintiff

himself emphasizes, OSHA did not consider the defendants’

responsibility for Masello’s accident. The plaintiff’s motion to

exclude the OSHA report--to say nothing of “any mention [of its]

investigation”--is denied.8

8 The motion (but not the supporting memorandum) separately requests the exclusion of the report’s reference to broken stepstools at other Christmas Tree Shops locations that were discovered in the wake of Masello’s accident. In their response to the motion, the defendants acknowledge that the condition of stools at other stores is not relevant and have agreed to redact the report’s references to that subject before seeking to introduce i t . The plaintiff has not separately challenged the admissibility of any of the other statements in the report, so the court has not considered them.

16 C. Preclusion of references to a November 2008 test of the product, and related spoliation instruction9

During discovery, when the plaintiff asked ZAG for an

“exemplar of the Handy 2-Step” through his requests for

production, see Fed. R. Civ. P. 3 4 , ZAG responded that it did

“not have an unused exemplar,” but that its counsel “does have an

exemplar that can be inspected at the parties’ convenience.” The

plaintiff, however, argues that this “exemplar” is different in

design from the Handy 2-Step used by Masello because the “rib”

connecting the bottom step to the left front leg contains “a

noticeable radius or significant arch.”

The defendants take issue with this, however, maintaining

that both the stool used by Masello and the exemplar--and,

indeed, “[e]very single one of the Handy 2-Step stools” ever

sold--were produced by the same mold, which could not have been

readily modified to produce the alleged design change (in fact,

the exemplar was molded before the stool used by Masello). The

defendants also challenge the “incredibl[e]” notion that ZAG

would have redesigned the stool to arch the rib connecting the

bottom step to the left front leg, but not the right front leg,

suggesting that the arch on the exemplar reflects a missing piece

of plastic, rather than an intentional design change.

9 See document nos. 56-57.

17 It turns out that, at the time this suit was commenced, ZAG

possessed at least one other used Handy 2-Step, which had been in

service in its factory in Israel. In November 2008, ZAG’s

quality assurance manager sent this stool to an independent

laboratory in Hong Kong, Specialized Technology Resources, Ltd.

(“STR”), for a “vertical static load test,” in which different

weights were placed on the top and the bottom steps of the stool

in succession. While the stool withstood a weight of 150

kilograms (330 pounds) on each step, a weight of 600 kilograms

(1,320 pounds) placed on the top step caused the step to break,

albeit without affecting the legs.

STR prepared a report of the test, dated December 1 , 2008,

but ZAG did not mention the test in its January 2009 answers to

one of the plaintiff’s interrogatories, which had asked it to

identify testing of the Handy 2-Step conducted by or on behalf of

ZAG. The plaintiff first learned of the test during the

deposition of ZAG, see Fed. R. Civ. P. 30(b)(6), in Tel Aviv,

Israel, in October 2009, which is also when the defendants’

counsel says he first learned of i t . The report was then

promptly produced to the plaintiff, who now moves “to exclude the

introduction into evidence[,] [or] reference to[,] this report by

any lay witness or expert.”

18 1. The report’s “trustworthiness”

As an initial matter, the report is hearsay. See Fed. R.

Evid. 801(c). The defendants do not argue to the contrary, nor

do they invoke any exception to the hearsay rule,10 so the report

itself cannot be admitted into evidence.

The defendants do argue that, under Rule 703, their expert

witnesses can testify to the report as a basis for their opinions

that the stool was properly designed. Rule 703, as the court of

appeals has explained, “specifically authorizes experts to rely

on materials compiled by others as long as those materials are

‘of a type reasonably relied upon by experts in the particular

field.’” Crowe v . Marchand, 506 F.3d 1 3 , 18 (1st Cir. 2007)

(quoting Fed. R. Evid. 7 0 3 ) . The plaintiff does not expressly

argue that experts in plastics design or testing would not

“reasonably rely” on the report of the tests performed by STR.

Instead, he states that the report is “untrustworthy” because it

omits “a corresponding videotape of the testing completed,

contemporaneous communications or detailed dimensions and

measurements”--data which he calls “critical to analyzing the

legitimacy and integrity of the process.”

10 This is in contrast to the defendants’ position on the reports of tests of the Handy 2-Step conducted in 1997 and 1999, which they argue are admissible under Rule 803(6)’s “business records” exception. See infra Part II.D.

19 But the plaintiff does not provide any support for that

statement, e.g., the opinion of his own plastics expert or an

industry publication setting forth the requisite elements of a

reliable load test. The plaintiff’s unsubstantiated critique of

the report, then, provides the court with no basis to deem it an

unreliable basis for expert testimony. See Masello, 2011 DNH

061, 10-11 (rejecting the defendants’ argument for excluding the

opinion of the plaintiff’s expert as to the cause of the stool’s

collapse because it was unsupported by any calculations as to the

stress placed on the stool, where the defendant had not provided

any support for the notion that such calculations were essential

to such an opinion). If the absence of a videotape or “detailed

dimensions and measurements” from the report indeed calls its

reliability into question under some recognized standard, then

the plaintiff can make that point by cross-examining the

defendants’ experts about their reliance on i t . See id.

The plaintiff’s real point as to the “trustworthiness” of

the report seems to be that it fails to indicate whether the

subject stool had an “arch” on the rib connecting the bottom step

to the left front leg, as the plaintiff claims is present in the

exemplar he was provided access to during discovery, or lacked

that feature, as was the case with the stool that collapsed

beneath Masello. But this court is not prepared to rule that the

20 defendants’ experts cannot reasonably rely on the test for this

reason either, at least based on the present record.

Again, the defendants have come forward with the

unchallenged testimony of ZAG’s employees that every Handy 2-Step

was made from the same mold and that, based on the dates of

manufacturing runs stamped on the bottom of each stool, the

exemplar stool was molded before Masello’s stool was. To

intentionally produce an arched rib connecting the bottom step to

the left front leg, then, ZAG would have needed to add material

to the mold--only to intentionally remove that material from the

mold before using it to make Masello’s stool later. Furthermore,

ZAG would have needed to intentionally design the stool

asymmetrically, so that the rib connecting the bottom step to the

left front leg was arched, but the rib connecting the bottom step

to the right front leg remained straight.

Moreover, the plaintiff has not come forward with any

evidence suggesting that a stool with an arched rib on only one

side of the bottom would perform any differently under testing

than a stool designed without arched ribs on either side of the

bottom step. S o , even in the highly unlikely event that the

stool tested by STR had the same unusual “design” as the exemplar

provided to the plaintiff in this litigation--and therefore a

different “design” from the stool that collapsed beneath

21 Masello--it does not follow that the STR test cannot be relied

upon in analyzing what caused Masello’s stool to fail.11

On the present record, the plaintiff’s theory that the

arched rib in the exemplar stool embodied an intentional design

change that may have also been present in the stool tested by STR

is simply too far-fetched for the court to conclude that, under

Rule 703, the resulting report cannot be relied on in assessing

what caused the stool to collapse beneath Masello. The

plaintiff, of course, remains free to explore this theory with

the defendants’ experts on cross-examination if he chooses.

2. Exclusion of the report as a sanction

For much the same reason, the court also disagrees with the

plaintiff that the destruction of the stool during the testing by

STR amounts to spoliation of evidence, warranting exclusion of

the results from evidence as a sanction. As a “companion to” the

spoliation doctrine, which “permits an adverse inference from one

side’s destruction of evidence,” a court has the “inherent power”

to sanction a party who has “improperly altered or damaged”

evidence. Sacramona v . Bridgestone/Firestone, Inc., 106 F.3d

11 As the defendants emphasize, the plaintiff could have presumably figured out the effect (if any) of the single arched rib on test results by simply testing the exemplar provided by the defendants, but the plaintiff did not conduct any such tests

22 444, 446 (1st Cir. 1997). The court of appeals has explained

that “[t]he intended goals behind excluding evidence” as a

sanction for such conduct “are to rectify any prejudice the non-

offending party may have suffered as a result of the loss of

evidence and to deter any future conduct, particularly deliberate

conduct, leading to such loss.” Collazo-Santiago v . Toyota Motor

Corp., 149 F.3d 2 3 , 28 (1st Cir. 1998). Accordingly, both “the

prejudice to the non-offending party and the degree of fault of

the offending party” are “of particular importance when

considering the appropriateness of sanctions.” Id.

Here, neither of these factors supports excluding the

results of the STR testing as a sanction for the destruction of

the stool during that testing. First, the record does not

support the plaintiff’s suggestion that he suffered any prejudice

from STR’s destruction of the stool. That stool was not the one

involved in Masello’s accident, which was made available to the

plaintiff for testing during discovery, albeit in its fractured

post-accident condition.12 Nor was the stool destroyed by STR

the only other example of the Handy 2-Step that could have been

12 As the defendants point out, that serves to distinguish this case from those imposing restrictive protocols on destructive testing of “[t]he actual, allegedly defective product which is the subject of [the] products liability lawsuit.” 3 Louis R. Frumer & Melvin I . Friedman, Products Liability § 17.02[3][a] (1960 & 2011 supp).

23 made available to the plaintiff: the defendants also gave him

access to another used sample of the product on which he could

have conducted his own testing.

Any claim of prejudice, then, would have to rest on the

notion that, because the exemplar had the arched rib on the left

front leg while the stool tested by STR did not, the destruction

of the stool by STR deprived the plaintiff of the chance to test

a “version” of the product that was the same as the “version”

used by Masello. As just discussed, though, the plaintiff has

not come forward with any evidence that the presence of the

“arch” would have affected the results of the testing of the

exemplar, had the plaintiff elected to perform any.13 Nor has

the plaintiff provided any support for his suggestion that, aside

13 This serves to distinguish the case on which the plaintiff principally relies, Williams v . BIC Corp., N o . 91-2216, 1996 WL 132984 (N.D. Ill. Mar. 2 1 , 1996). In that case, a products liability action arising out of an allegedly defective cigarette lighter, the court barred the plaintiff from introducing evidence of her expert’s destructive testing of “a unique lighter with allegedly the same propensities as the lighter in question in the case.” Id. at *4-*6. Here, in contrast, there is no indication that the stool used by Masello was “unique” in any way, let alone in the same way the stool destroyed by STR might have been, so Williams does not support the plaintiff. Indeed, the court there refused to bar the defendant from introducing evidence of its expert’s destructive testing of “100 random Bic lighters” because the plaintiff failed to show that she was prejudiced as a result. Id.

24 from the exemplar, the stool destroyed by STR was the only Handy

2-Step in existence at the outset of this litigation.14

Second, and relatedly, the court cannot attribute a high

degree of fault to ZAG for the destruction of the stool in the

test. Again, that stool was neither the one involved in

Masello’s accident, nor the stool identified by ZAG as the

exemplar, but was simply a used Handy 2-Step that ZAG happened to

have in service at its factory. So there was nothing about the

stool sent to STR for testing that would have alerted ZAG that it

had any more relevance to this case than would any other used

version of the Handy 2-Step. The plaintiff’s Rule 34 request, in

fact, did not ask ZAG to produce every Handy 2-Step in its

possession, but only an “exemplar of the Handy 2-Step.” ZAG did

so and, once again, the plaintiff has come forward with nothing

to suggest that the arch present on that particular stool

detracted from its utility as an example of the product involved

in the accident.

14 In his motion to exclude the STR test results, the plaintiff asserts that, in response to his request for “step stools for examination, analysis and testing,” the defendants responded that “none existed except for [the] exemplar,” citing to ZAG’s formal response to the plaintiff’s document requests. As noted at the outset of this section, however, the plaintiff’s Rule 34 request asked ZAG for simply “[a]n exemplar of the Handy 2-Step,” and ZAG responded simply that it did “not have an unused exemplar.” The response does not state, or imply, that ZAG had no other used Handy 2-Steps in its possession.

25 As the court of appeals has recently explained, a finding of

spoliation based on the destruction of evidence is ordinarily

supportable only where the circumstances of the destruction

“support the logical inference that the evidence was favorable

to” the adverse party. United States v . Laurent, 607 F.3d 895,

902 (1st Cir. 2010). That is not a logical inference here, where

there is nothing to suggest that the stool that was destroyed

would have been helpful to the plaintiff’s case, let alone

anything to suggest that ZAG knew or should have known of that

fact when it sent the stool off for testing. The court declines

to prevent the defendants from relying on the STR test results at

trial as a sanction for the destruction of the stool during the

testing. The plaintiff’s motion to preclude the defendants’

witnesses from relying on those results is denied.

3. Other sanctions for the defendants’ discovery conduct

Through a separate--but related--motion in limine, the

plaintiff seeks an instruction to the jury that it may draw an

adverse inference from “the Defendants’ affirmative conduct

and/or lack of diligence in complying with its [sic] discovery

obligations.” A party’s spoliation of evidence can support such

an instruction, but, for the reasons just discussed, that relief

is not warranted here, at least based on the destructive testing

26 of the stool from ZAG’s factory. See, e.g., Laurent, 607 F.3d at

902-903. The motion seeking the adverse inference instruction

does not accuse ZAG of destroying any other evidence.15

Instead, the motion faults the defendants for having made

incomplete or untimely responses to the plaintiff’s discovery

requests. The plaintiff does not explain, though, how that

charge--even if proven--would authorize the court to instruct the

jury that they may draw an adverse inference against the

defendants as a result.

While Rule 37 of the Federal Rules of Civil Procedure (which

the plaintiff does not cite) empowers the court to “inform the

jury of [a] party’s failure” to comply with its duties under “to

provide information or identify a witness as required by Rule

26(a) or (e),” Fed. R. Civ. P. 37(c)(1)(B), the plaintiff does

not coherently explain how the defendants failed to do s o . The

plaintiff states that, while “[f]or over a year into this

litigation, Defendants maintained that they did not have a

15 The motion cites the defendants’ “inability to identify the specific polypropylene that composed the subject step stool,” but does not tie that inability to ZAG’s destruction of evidence beyond a suggestion that it “did not act with the diligence required.” Insofar as the plaintiff is seeking relief for this, the request is denied as insufficiently presented for the court to understand i t . It is also worth noting that the plaintiff was permitted to do a variety of destructive testing, including “infrared spectroscopy,” on the very stool that collapsed beneath Masello. Document n o . 37 (granted by Order of Sept. 2 0 , 2010).

27 product file . . . , just a day or even hours before depositions

were scheduled to commence in Israel, documents constituting

portions of a typical product file started to appear.” The

plaintiff also complains that it was at the same time--late

October 2009, after ZAG had provided its interrogatory answers,

responses to document requests, and initial disclosures--that he

first learned the identity of a ZAG engineer involved in

designing the Handy 2-Step, so that witness “could not be

searched for and deposed during the Israel trip.”

Taking these statements at face value, the most they show is

that ZAG failed to update its initial disclosures, interrogatory

answers, and responses to the plaintiff’s requests for production

“in a timely manner” as required by Rule 26(e)(1)(A).16 But even

if ZAG’s disclosure of the documents and witness were untimely

under Rule 26(e)(1), Rule 37(c)(1) does not allow sanctions for

late disclosures that are “harmless.” Deciding whether to

sanction a party for violating Rule 26(e), then, depends “mainly

upon surprise and prejudice, including the opponent’s ability to

palliate the ill effects stemming from the late disclosure.”

16 ZAG explains (without contradiction) that it stopped making the Handy 2-Step in 2000, more than four years before Masello’s accident and more than seven years before the action was filed, so it is not altogether surprising that ZAG did not have all of the information about the product at its fingertips before October 2009.

28 Thibeault v . Square D Co., 960 F.2d 239, 246 (1st Cir. 1992).

Here, by the plaintiff’s own account, the disclosures occurred in

October 2009--more than two years prior to the current trial

date, nearly one year prior to the eventual deadline for the

plaintiff’s expert disclosures, and some six months prior to the

eventual non-expert discovery cutoff. So this is not “a case in

which a party was hindered in its ability to formulate a

response” by late disclosures of evidence. Ferrara & DiMercurio

v . S t . Paul Mercury Ins. Co., 240 F.3d 1 , 10 (1st Cir. 2001).

Indeed, the plaintiff does not even suggest that the timing

of the October 2009 disclosures had any adverse effect on his

ability to prepare the case for trial.17 Even if the defendants

violated Rule 26(e), then, that violation was harmless under

17 Instead, the plaintiff suggests that his counsel could not make effective use of his trip to Israel to take the depositions of ZAG’s witnesses. The appropriate remedy for that inconvenience, however, would have been an order requiring ZAG to pay any resulting additional costs. The plaintiff did not pursue that relief at the time but rather, in December 2009, joined with the defendants in a motion to extend all of the outstanding deadlines in the case, citing, inter alia, “delays and discovery disputes stemming from the ZAG depositions.” Document n o . 3 1 . The motion was granted. The motion also stated that those disputes were “presently unresolved” but that the parties were working to resolve them “without the need for judicial intervention.” No further “judicial intervention” was ever sought. This history further undermines the plaintiff’s request to sanction the defendants for alleged discovery violations that occurred two years ago.

29 Rule 37(c)(1), so no sanction is appropriate. The plaintiff’s

motion for that relief is denied.

D. 1997 and 1999 test reports18

In its interrogatory answers, ZAG did identify testing of

the stool performed by another independent source, Consumer

Testing Laboratories, Inc. (“CTL”), at its facility in Canton,

Massachusetts, in November 1997 and again in November 1999. CTL

no longer possesses the records of these tests, which were

discarded after the Canton facility closed in October 2001, but

ZAG does. The records show, among other things, that the Handy

2-Step “demonstrates good load bearing characteristics capable of

withstanding 1,200 lbs. for one hour with no deformation or

failures noted.” The plaintiff has moved to exclude these

records from evidence, arguing that they are hearsay not subject

to the business records exception, see Fed. R. Evid. 803(6), and

are “untrustworthy.” These objections are without merit.

Rule 803(6) provides an exception to the hearsay rule for

records “of acts, events, conditions, opinions, or diagnoses,

made at or near the time by, or from information transmitted by,

a person with knowledge, if kept in the course of a regularly

18 See document n o . 5 8 .

30 conducted business activity, and if it was the regular practice

of that business activity to make the records.” The plaintiff

argues that the records of the CTL tests do not meet this

standard because, while ZAG purports to possess copies of the

records, CTL itself no longer does. But the defendants have

submitted a declaration by a CTL vice president, who was a

technician at its Canton facility from 1991 to 1996, that the

versions of the records in ZAG’s possession are “on the same

letterhead in the same format as laboratory reports and technical

worksheets routinely generated by CTL” during the relevant

period, that these records “were made in the course of CTL’s

regularly conducted activity,” and that they bear the signature

of CTL’s then-vice president and technical manager. This

testimony suffices to satisfy Rule 803(6), which imposes no

“requirement that the records have been prepared by the entity

that has custody of them, so long as they were created in the

course of some entity’s business.” 5 Jack B . Weinstein

& Margaret Berger, Weinstein’s Federal Evidence § 803.08[8][a],

at 803-81 (Joseph M . McLaughlin, ed., 2d ed. 1996 & 2011 supp.).

Rule 803(6), like Rule 803(8), provides an “exception to the

exception” in cases where “the source of the information or the

method of or circumstances of preparation indicate lack of

trustworthiness.” In arguing that the records of the CTL testing

31 fall within this exception, the plaintiff makes the very same

points he makes about the records of the STR testing, i.e., that

they “do not contain any photographs, contemporaneous

communications or detailed dimensions or measurements” and

therefore leave “uncertainty” as to whether the stools tested may

have featured the same “arched” rib as the exemplar. See Part

III.C, supra. Again, while the plaintiff is of course free to

try to elicit testimony about that “uncertainty,” it is simply

too speculative on the present record for this court to deem the

reports “untrustworthy” and exclude them from evidence. The

plaintiff’s motion to exclude the CTL test results, or any

reference to them, is denied.

E. Masello’s personnel file, drinking, and pre-existing medical conditions19

The plaintiff has produced a report from an economic

consultant on the monetary losses occasioned by Masello’s death,

arriving at a total of $92,188.32 after deducting for living

expenses and discounting to net present value. The report

assumes that, but for his death at age 5 9 , Masello “could have

continued to work as a stocker to the age of 67” at the Christmas

19 See document nos. 6 0 , 6 2 , 6 4 .

32 Tree Shops, and that his annual income from that job would have

periodically increased.

But the defendants question these assumptions. First, they

point to references in Masello’s medical records to his alcohol

consumption--including one noting alcohol “abuse”--and the

testimony of his designated medical expert that alcohol abuse

adversely affects life expectancy. They also note that Masello

suffered from pre-existing medical conditions, including cerebral

vascular disease (a narrowing of the arteries to the brain caused

by his high blood pressure and diabetes), which his expert also

acknowledged to have an adverse effect on life expectancy.

Second, the defendants rely on Masello’s personnel file,

which contains a number of written reports that, among other

deficiencies, he was unproductive, disregarded instructions from

(and in some cases yelled at) his supervisor, and punched back in

on the time clock before he had finished taking his break. In

fact, Masello had twice received a “final warning” that further

violations could result in firing.

The plaintiff, predictably, has moved to exclude evidence of

Masello’s (1) disciplinary record, (2) drinking, and (3) history

of pre-existing medical conditions, arguing that it i s ,

respectively, (1) inadmissible evidence of prior acts under Rule

404 of the Federal Rules of Evidence, as well as irrelevant and

33 unfairly prejudicial, (2) irrelevant and unfairly prejudicial

because there is no indication that alcohol played a role in

Masello’s accident, and (3) inadmissible because the defendants

have not disclosed any medical opinion that Masello’s pre-

existing medical conditions contributed to his death.20

These arguments all ignore the plaintiff’s claims for

damages. First, as just discussed, the plaintiff seeks to

recover the wages Masello would have earned had he continued

working at Christmas Tree Shops until age 6 7 , while earning

periodic raises. The records of Masello’s performance at that

job are plainly relevant to that claim, because they tend to

suggest that he may have been terminated before then or not

received the raises. See, e.g., EEOC v . Freudenberg-NOK Gen.

P’ship, N o . 07-406, 2009 WL 909571, at *2 (D.N.H. Apr. 3 , 2009);

Kilpatrick v . Breg, Inc., N o . 08-10052, 2009 WL 199091, at *1

(S.D. Fla. Jan. 2 8 , 2009).

That resolves the plaintiff’s Rule 404 objection as well,

because “the admission of evidence of other bad acts to assist

the jury in measuring the extent of damages is a legitimate, non-

character-based use of such evidence.” Udemba v . Nicoli, 237

F.3d 8 , 15 (1st Cir. 2001); see also, e.g., Cobige v . City of

20 The plaintiff has not challenged, so the court has not considered, the admissibility of this evidence on other bases.

34 Chi., Ill., 651 F.3d 7 8 0 , 784 (7th Cir. 2011) (ruling that

evidence of decedent’s prior misconduct was “relevant to how much

loss [decedent’s] estate and [survivor] suffered by her death”

and thus not barred by Rule 4 0 4 ) . The court also overrules the

plaintiff’s Rule 403 objection to Masello’s employment records,

which is premised on the fear that they “imply that he had a

propensity for carelessness that caused or contributed to the

incident.” So far as the court can tell, the records do not

reflect that Masello was “written up” for carelessness, but for

other misconduct.

Second, the plaintiff makes a claim for compensatory damages

“for the loss of M r . Masello’s life, that i s , for the shortening

of his life,” which places how long Masello would have lived but

for the accident directly in issue. A decedent’s “history of

substance abuse is relevant to the issue of damages where there

is evidence of its effect on probable life expectancy.” Fritts

v . McKinne, 934 P.2d 3 7 1 , 376 (Okla. Civ. App. 1996); see also

Century ‘21’ Shows v . Owens, 400 F.2d 603, 610 (8th Cir. 1968);

S t . Clair v . E . Air Lines, Inc., 279 F.2d 119, 121 (2d Cir.

1960); Kraus v . Taylor, 710 A.2d 1142, 1143-44 (Pa. Super. C t .

1998); Pearce v . Fletcher, 328 S.E.2d 889, 890 (N.C. C t . App.

1985); Christopher B . Mueller & Laird C . Kirkpatrick, Federal

Evidence § 4:39 (3d ed. 2009). Here, as just discussed, there is

35 evidence in Masello’s medical records that he abused alcohol and

an acknowledgment from the plaintiff’s designated medical expert

that alcohol abuse can shorten life expectancy, so Masello’s

drinking is relevant.

The plaintiff’s argument that this evidence is unfairly

prejudicial because there is no indication that Masello had been

drinking on the night of the accident o r , indeed, ever drank at

work actually supports the opposite proposition. Without any

hint that Masello drank on the job, there seems to be little

realistic chance that the jury will infer that he did from his

drinking off the job and that such drinking contributed to the

accident. If the plaintiff wants, however, he can insulate

himself against any such risk by requesting an appropriate

limiting instruction.

Finally, the same analysis applies to the evidence of

Masello’s pre-existing medical conditions: they are relevant to

his life expectancy (as the plaintiff’s own medical expert has

acknowledged), and the absence of any indication that they caused

or contributed to his death actually reduces rather than

increases the risk that the jury will consider them for that

purpose instead. As the defendants point out, the plaintiff’s

argument that the defendants cannot introduce evidence of

Masello’s pre-existing conditions because they have not

36 designated an expert to opine as them has been previously

rejected by this court. See Aumand v . Dartmouth Hitchcock

Medical Center, 611 F. Supp. 2d 7 8 , 84 (D.N.H. 2009) (ruling

that, even where medical matters are concerned, a defendant does

not need an expert witness to dispute the plaintiff’s position on

factual issues). Thus, the defendants--who do not have the

burden of proof on the issue of damages--are free to argue that

Masello’s existing health conditions would have shortened his

life expectancy, even if they cannot adduce any expert testimony

to that effect. The plaintiff’s motions to preclude evidence of

Masello’s job performance, drinking, and pre-existing medical

conditions are denied.

F. ZAG’s internal marketing brochure21

The defendants, for their part, move to exclude evidence of

a marketing brochure on the “Handy 2-Step” that ZAG created to

educate of its sales force, but never distributed to any of its

customers. The brochure shows photographs of the product by

itself and with a denim-clad man carrying i t , sitting on the top

step, and placing his foot on the bottom step. The brochure

contains text in four different languages, including English,

21 See document n o . 6 8 .

37 that describes the attributes of the Handy 2-Step in a series of

bullet points, e.g., “Sturdy two-step ladder,” “Maximum load of

150 Kg (330lb),” “Made of strong, reinforced polypropylene for

heavy-duty use,” and “6-year warranty.”

In moving to exclude this brochure, the defendants rely on

its “internal nature,” arguing that it was never shown to any of

ZAG’s customers and is therefore irrelevant to the plaintiff’s

breach of warranty claim. As the plaintiff points out, though,

it is relevant to at least one other issue in the case, namely,

whether the conduct of Christmas Tree Shops in keeping the stool

in use in its store was “reasonably foreseeable” so as to negate

the defendants’ superseding and intervening cause defense. Reid

v . Spadone Mach. Corp., 119 N.H. 4 5 7 , 456 (1979). The brochure’s

statements that the Handy 2-Step is “for heavy duty use” and has

a “6-year warranty” have a tendency to make facts of consequence

to the determination of this issue more or less likely and are

therefore relevant. See Fed. R. Evid. 401. The defendants do

not argue to the contrary. Their motion to exclude the brochure

from evidence is denied.

38 G. Other motions in limine

Finally, the parties have filed several other motions in

limine which can either be granted by assent or must be denied

without prejudice to reasserting at trial. These motions are:

• the plaintiff’s motion to preclude lay opinion testimony as to the safety of the stool:22 the defendants say they “have no intention of questioning lay witnesses as to whether the design of the Handy 2-Step created a defective condition unreasonably dangerous to consumers,” but that they cannot respond more meaningfully because the plaintiff has not identified the anticipated lay opinions with any specificity. The court agrees. This motion is denied without prejudice to the plaintiff’s objections to particular lay opinion testimony at trial.

• the plaintiff’s motion to exclude “a medical review completed for worker’s compensation insurance purposes by a non-treating physician”:23 the defendant assents to this motion, so it is granted.

• the plaintiff’s motion to exclude evidence of workers’ compensation insurance coverage:24 the defendants do not object to the motion insofar as it seeks to exclude evidence of the insurance payments Masello’s estate received, which they acknowledge is barred by the collateral source rule. See, e.g., Aumand, 611 F. Supp. 2d at 90-92. They d o , however, object to preemptively excluding any reference whatsoever to the existence of this coverage, suggesting that it is the workers’ compensation carrier who bears the responsibility for losing the broken pieces to the stool involved in the accident. See note 4 , supra. But the court cannot tell from the defendants’ submission whether they intend to introduce evidence to that effect in the first instance or whether they are simply reserving the

22 Document n o . 5 9 . 23 Document n o . 6 3 . 24 Document n o . 6 6 .

39 right to do so if the plaintiff opens the door on that issue. Accordingly, this motion is moot insofar as it seeks to exclude evidence of the workers’ compensation insurance payments, and is otherwise denied without prejudice to reargument based on developments at trial.

• the plaintiff’s motion to declare the defendants’ representatives hostile witnesses:25 this motion fails to identify any particular witnesses, so it is denied without prejudice to the plaintiff’s ability to seek to have certain witnesses declared hostile at trial.

• the defendants’ motion to preclude reference to the fact that ZAG’s counsel interviewed the plaintiff’s designated plastics expert as the defendants’ potential expert witness before the plaintiff retained him:26 the plaintiff assents to this motion, so it is granted.

III. Conclusion

For the foregoing reasons, the plaintiffs’ first, second,

third, fifth, sixth, seventh, ninth, and tenth motions in

limine27 are DENIED. The plaintiff’s fourth, eleventh, and

twelfth motions in limine28 are DENIED without prejudice to their

reassertion at trial. The plaintiff’s eighth motion in limine29

25 Document n o . 6 7 . 26 Document n o . 6 9 . 27 Document nos. 56-58, 60-62, 64-65 28 Document nos. 5 9 , 66-67. 29 Document n o . 6 3 .

40 is GRANTED by assent. The defendants’ first motion in limine30

is DENIED. Their second motion in limine31 is GRANTED by assent.

SO ORDERED.

Josep ___________ nte ________ United States District Judge Dated: November 2 2 , 2011

cc: Daniel W . Buckley, Esq. Gerry D’Ambrosio, Esq. Peter A . Brown, Esq. Christopher A . Duggan, Esq. Gerard A . Butler, Jr., Esq. Karyn P. Forbes, Esq. Pauline A . Jauquet, Esq.

30 Document n o . 6 8 . 31 Document n o . 6 9 .