Sacramona v. Bridgestone

• Court: Court of Appeals for the First Circuit
• Decided: February 13, 1997
• Docket: 96-1345
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1345



                                 ROBERT J. SACRAMONA,



                                Plaintiff, Appellant,



                                          v.



                             BRIDGESTONE/FIRESTONE, INC.,

                                and THE BUDD COMPANY,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                 ____________________



            Michael K.  Gillis with whom Gillis & Bikofsky, P.C. was on briefs
            __________________           _______________________

        for appellant.

            Francis H.  Fox with  whom John  R.  Skelton and  Bingham, Dana  &
            _______________            _________________      ________________

        Gould LLP were on brief for appellee Bridgestone/Firestone, Inc.
        _________

            Edward M.  Kay  with whom  Michael  W.  Duffy, P.  Scott  Ritchie,
            ______________             __________________  __________________

        Clausen  Miller, P.C.,  Robert M.  Spence, Assistant  General Counsel,
        _____________________   _________________

        Mark R. Karsner and Karsner &  Meehan, P.C. were on brief for appellee
        _______________     _______________________

        The Budd Company.



                                   ________________



                                  February 13, 1997

                                   ________________



BOUDIN, Circuit Judge.  Robert  Sacramona, the plaintiff
                         _____________



            in this  diversity action, appeals from  the district court's



            grant of summary judgment against him.  His claims arose from



            an accident that occurred when Sacramona sought to mount  and



            inflate     a     tire     manufactured      by     defendant



            Bridgestone/Firestone,  Inc.  on   a  wheel  manufactured  by



            defendant, The  Budd Company.   The  appeal is essentially  a



            challenge to the district  court's rulings on the destruction



            or  loss   of  evidence   and  resulting  prejudice   to  the



            defendants.



                 The facts  are as follows.   On May 4, 1988,  a customer



            drove his van into  the Economy Mobil gas station  for repair



            of  a leaking  tire.  Sacramona,  the station's  new manager,



            removed the  tire and decided  to replace rather  than repair



            it.   Because  the station  did not  have an  appropriate new



            tire,  Sacramona selected a used, 16-inch tire from a rack of



            tires at  the station  as a temporary  replacement, intending



            later to get a new tire for the customer.



                 The replacement tire  bore warnings  that it  was to  be



            used only  with a  16-inch wheel.   Sacramona later  admitted



            that he did not check the  diameter of the wheel rim; he said



            that he chose a 16-inch tire because the tire that he removed



            was  also 16 inches.  But the replacement tire apparently did



            not fit  the  wheel,  which  Sacramona now  says  was  16-1/2



            inches.  After Sacramona struggled to mount the tire--using a


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tire mounting machine and lubricant, striking the tire with a



            hammer,  and bouncing  it on  the ground--the  tire allegedly



            exploded as  he again  attempted to  inflate it,  causing him



            numerous injuries.



                 Sacramona  was  taken  to  the  hospital  by  ambulance.



            Another service station employee  put the damaged replacement



            tire  on the  wheel without  inflating it,  and  the customer



            drove  back home  very slowly  on the  uninflated tire.   The



            customer subsequently had the  wheel and damaged tire removed



            from his van and  left them unprotected in his  outdoor yard.



            In August  1988, Sacramona's  attorney obtained the  tire and



            wheel.



                 Around February 1, 1989, the attorney gave both the tire



            and wheel to an expert consulting engineer, Dyer Carroll, who



            examined  them and  then sent  them to  Sacramona's liability



            expert,  Dr.  Alan Milner,  on September  30,  1991.   In the



            meantime,  on May 3,  1991, Sacramona filed  his complaint in



            this  case,   one  day  before  the   three-year  statute  of



            limitations expired, asserting tort and warranty claims.  His



            is  theory is this:   that the automotive  industry knew that



            there was a risk  of harm from mismatching tires  and wheels,



            and  that the wheel, tire, or both could have been designed--



            over and above the  warnings on the tire--to reduce  the risk



            that such a dangerous mismatch would occur.


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                                         -3-



By the time of  the lawsuit, the Mobil station  had been



            sold  and  many of  its  contents  were  gone, including  the



            original  leaking tire,  the  mounting machine,  and  various



            safety  or equipment  manuals  and documents.   In  addition,



            during  his  deposition,  Milner  said  that  the  wheel  had



            undergone a  "somewhat destructive"  examination and  that he



            understood from Sacramona's lawyer that Carroll had conducted



            an extensive cleaning of  the wheel.  It was  thus impossible



            to check for markings on  the inside of the wheel that  might



            have  revealed whether  (as  Sacramona claimed)  the original



            leaking  tire had been a  16-inch tire mismatched  with a 16-



            1/2-inch wheel.



                 After   discovery,  the  defendants  moved  for  summary



            judgment  on  several  grounds,  asserting  inter  alia  that
                                                        ___________



            critical  evidence had been destroyed in  the cleaning of the



            wheel.   In opposition, Sacramona attached  a brief affidavit



            from Carroll  denying that  he had destroyed  such evidence.1



            The district court ruled that evidence of the wheel should be



            excluded,  finding  that   defendants'  "experts  have   been



            deprived  of the  opportunity to  examine relevant,  possibly



            dispositive evidence  before its  material alteration."   The


____________________



                 1Carroll's  own  deposition  testimony,  apparently  not

            called  to  the district  court's  attention  at this  stage,

            revealed  that Carroll's son had assisted in the cleaning but

            denied that anyone had destroyed evidence.



                                         -4-
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trial judge treated  the wheel's exclusion  as fatal to  both



            the negligence and warranty claims.



                 The district court also  granted summary judgment to the



            defendants on Sacramona's  warranty claims on  an independent



            ground.  Sacramona  had not notified Firestone  of his claims



            until  three years after the  accident; and Budd  did not get



            notice for three more months (service of the complaint having



            been delayed).  The district court ruled  that the defendants



            had been prejudiced by  this delay because evidence had  been



            lost, and that the  warranty claims were therefore  barred by



            Mass. Gen. Laws ch. 106,   2-318.



                 Sacramona  has now  appealed, challenging  both rulings:



            the dismissal of both  claims because of damage to  the wheel



            and  the  dismissal of  the  warranty  claim for  prejudicial



            delay.   We address each asserted error in turn, applying the



            standard  of  review fitting  the  specific  issue.   Broadly



            speaking, propositions of law  are examined de novo, findings
                                                        _______



            of fact are reviewed under the clear error standard, and most



            remaining issues  (e.g., applying  multiple factors to  known
                               ____



            facts)  are tested for "abuse of discretion."   See generally
                                                            _____________



            United States v. Wilson, 798 F.2d 509, 512 (1st Cir. 1986).
            _____________    ______



                 1.   Under  settled  authority, the  district court  has



            inherent power  to exclude evidence that  has been improperly



            altered  or damaged by a party where necessary to prevent the



            non-offending  side from suffering unfair prejudice.  Unigard
                                                                  _______


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                                         -5-



Sec.  Ins. Co. v. Lakewood Eng'g  & Mfg. Corp., 982 F.2d 363,
            ______________    ____________________________



            368 (9th  Cir. 1992);  Headley v. Chrysler  Motor Corp.,  141
                                   _______    _____________________



            F.R.D.  362, 365 & n.13 (D. Mass. 1991).  Although deterrence



            may play a role, the primary aim is remedial, at least absent



            willful  destruction.   This  power is  a  companion to,  but



            somewhat different in effect  from, the doctrine that permits



            an adverse inference from one side's destruction of evidence.



            22  C. Wright &  K. Graham,  Federal Practice  and Procedure:
                                         ________________________________



            Evidence   5178, at 153-59 (1978).
            ________



                 Sacramona's first argument against the exclusion of  the



            wheel on grounds  of prejudicial damage is that  the district



            court "did not weigh the evidence in the light most favorable



            to the  non-moving plaintiff" and therefore the  issue had to



            be  submitted to  the jury.   Sacramona  says that  a factual



            dispute  exists  as  to  whether any  such  damage  occurred,



            "particularly in  light of the sworn  deposition testimony of



            Dyer  E. Carroll, . . .  who stated that he never scraped any



            evidence  from the  wheel  or cleaned  it  with any  abrasive



            material."



                 The  request for a jury rests on a misunderstanding.  It



            is  familiar  law  that   the  district  judge  decides  most



            preliminary  factual  issues that  arise  in  determining the



            admissibility of evidence.   Fed. R. Evid. 104(a).   The main



            exception  is that  under  Fed. R.  Evid.  104(b), issues  of



            conditional relevance  are normally  submitted  to the  jury.


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                                         -6-



Sacramona  invokes the  latter rule,  arguing that  the issue



            whether  the  wheel   had  been  damaged  was  an   issue  of



            conditional relevance that should  have been submitted to the



            jury.    



                 The  district  court  said  that  the  wheel  was  being



            excluded,  in the alternative, both as  a sanction for damage



            to it and because the damage made the wheel irrelevant.   But



            in fact  the  alleged damage  to  the wheel's  inner  surface



            merely prevented  one possible use of the wheel--to show that



            the original  tire was or was  not 16 inches.   The wheel, or



            testimony about  it, remained  relevant to prove  whether the



            wheel  itself  was  16-1/2  inches, which  was  one  critical



            premise of Sacramona's mismatch theory.  Thus, the only basis



            for exclusion of  the wheel was prejudicial  damage, an issue



            that Rule 104(a) reserves to the trial judge.



                 There  is  more  force  to Sacramona's  claim  that  the



            district  court may have  erred in deciding  that Carroll had



            cleaned  the wheel.    In moving  for  summary judgment,  the



            defendants relied upon several different admissions by Milner



            in  his deposition,  adding up  to the  following:   that the



            inside  of   the  wheel   had  been  cleaned,   removing  the



            possibility of recovering  useful evidence; that  Sacramona's



            counsel had identified Carroll as the source of the cleaning;



            and that Milner had sought to obtain photographs of the wheel



            prior to cleaning but none had been taken by Carroll.


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In  opposition,  Sacramona   countered  with  a   brief



            affidavit  of Carroll that he had not cleaned any substantial



            portion of the inside of the wheel.  Sacramona argued on this



            basis (mistakenly) that the issue was one for the jury.   But



            in any event the affidavit was not much of an answer:  Milner



            said  that  the inside  of the  wheel  had been  cleaned; and



            whether  or not Carroll had done it, the wheel had admittedly



            been in the custody  of the plaintiff's counsel or one of his



            experts since it was recovered from the customer's backyard.



                 It  is thus  not entirely  surprising that  the district



            court  ruled  that  the  plaintiff was  responsible  for  the



            damage.  At this  point, Sacramona offered new evidence:   on



            his motion for reconsideration, a new affidavit was filed  by



            Milner, saying  that he  had been  misunderstood and  had not



            testified  that the  inside  of the  wheel had  been cleaned.



            Sacramona's counsel also filed an affidavit, which generously



            could be read to assert that his law firm had given the wheel



            to Carroll and retrieved it unaltered.



                 But Milner's affidavit did not squarely dispute that the



            wheel  had been cleaned; and in denying that Carroll had done



            the cleaning, the Milner  affidavit squarely contradicted his



            own prior  deposition without explanation.   As for counsel's



            affidavit,  it made  no effort  to deny  or explain  Milner's



            deposition  testimony  that  counsel  had  told  Milner  that
                                         _______



            Carroll  had cleaned  the wheel.   Taking  the matter  on the


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deposition testimony  and affidavits, we are  not prepared to



            rule that the district court's finding of damage by plaintiff



            was clear error.



                 In  our  view, it  would have  been  sounder to  hold an



            evidentiary hearing on the issue of damage and responsibility



            for it, at least when on reconsideration it became clear that



            the issue was murky.  If at this stage Sacramona had squarely



            requested such a hearing, it might well have been an abuse of



            discretion to deny it.  See General Contracting & Trading Co.
                                    ___ _________________________________



            v. Interpole, Inc., 899  F.2d 109, 115 (1st Cir.  1990).  But
               _______________



            there is no  single mode of resolving factual  disputes under



            Rule  104(a),  and  we  will  not  ordinarily  reverse  on  a



            procedural objection  never made.  Aoude v.  Mobil Oil Corp.,
                                               _____     _______________



            892 F.2d 1115, 1120 (1st Cir. 1989).



                 Sacramona's  next  argument   is  that   if  there   was



            destruction, it was  not done  in bad faith.   Certainly  bad



            faith  is a  proper and  important consideration  in deciding



            whether  and  how  to   sanction  conduct  resulting  in  the



            destruction of evidence.  But bad faith is not essential.  If



            such  evidence is  mishandled through  carelessness, and  the



            other side is prejudiced, we think that the district court is



            entitled  to consider imposing sanctions, including exclusion



            of the evidence.  See Nation-Wide Check Corp., Inc. v. Forest
                              ___ _____________________________    ______



            Hills  Distrib., Inc.,  692  F.2d 214,  219 (1st  Cir. 1982);
            _____________________


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Unigard, 982  F.2d at 368  n.2; Headley, 141 F.R.D.  at 365 &
            _______                         _______



            nn. 13-14.



                 Less need  be said about Sacramona's  further claim that



            any  evidence lost from damage to the wheel was evidence that



            could only have favored the plaintiff.  Yes, if the wheel had



            been  undamaged, it  might have  helped Sacramona  by showing



            marks  indicating that the original  leaking tire had been 16



            inches.  But the absence of such marks, had the tire not been



            cleaned, would  have helped the defendants  by suggesting the



            opposite.   Plainly, this is not  a case in which  we can say



            that the lost evidence could only have helped Sacramona.



                 2.  Sacramona's final argument addressed to the sanction



            presents a quite  different and more  troubling concern.   In



            Sacramona's  petition for  reconsideration, he  argued (among



            many other  points) that a proportionate  sanction for damage



            to the wheel would merely prevent Sacramona from arguing that



            the original tire was  16 inches.  He also asserted  that his



            design defect  claim remained viable, even if no 16-inch tire



            had been on the  wheel when it was  brought into the  service



            station.  



                 The defendants' response in  the district court, renewed



            on  appeal,  is  that  Sacramona's theory  of  design  defect



            depends  on a showing that  the injury in  this case resulted



            from  an attempt  to place  a 16-inch  tire on  a 16-1/2-inch



            wheel.  And, say  the defendants, the exclusion of  the wheel


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(as a sanction for damaging the evidence) also should prevent



            any proof  that the wheel was 16-1/2 inches.  In the district



            court's own words at the time of its original ruling:



                 As  a  result of  this  exclusion  [of the  wheel],

                 plaintiff will be unable to produce any evidence or

                 testimony that  a 16.5  inch wheel was  involved in

                 the  accident or  that it  was defective.   Because

                 Sacramona's  claim is  premised  entirely upon  his

                 unprovable allegation  that a 16-inch  tire was  in

                 dynamic service with a 16.5-inch wheel, there is no

                 genuine   issue  of   material   fact  to   support

                 Sacramona's    allegations    and,    consequently,

                 defendants are entitled to summary judgment.



                 The problem with this  reasoning, as we see it,  is that



            it gives the defendants a sanction that goes well beyond what



            is  necessary to cure the  prejudice.  Accepting the district



            court's  finding  of damage  by  plaintiffs  to the  interior



            surface  of  the  wheel,  the  defendants  were prejudicially



            hindered in rebutting Sacramona's claim that he had removed a



            16-inch tire from  the wheel.  A commensurate  sanction might



            have included  an order barring Sacramona  from claiming that



            the original tire was 16 inches.



                 But  neither  the  district  court  nor  the  defendants



            explain  why any broader sanction was needed to undo the harm



            caused  by  the wheel's  cleaning.   In  fact,  one defendant



            apparently  urged  the   more  limited   sanction--precluding



            Sacramona's claim that the original tire was 16 inches--as an



            alternative to dismissal.   And there is no finding  that the



            damage was  willfully intended  to deprive the  defendants of


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helpful evidence, arguably a  basis for a sanction  that does



            more than undo the harm.



                 Nevertheless, a narrowing of the sanction would not have



            saved  the negligence  claim against  the defendants.   Under



            Massachusetts law, contributory negligence by the victim is a



            bar to any recovery if it represents  more than 50 percent of



            the total negligence on both sides.  Mass. Gen. Laws ch. 231,



              85.   Whether or not the wheel or tire might have been more



            safely  designed,  it  would  be  patent  negligence  by  the



            plaintiff to select a  16-inch tire as a  replacement without



            some good reason to think that the wheel was also 16 inches.



                 Sacramona's only  asserted basis  for selecting the  16-



            inch  replacement was  that the leaking  tire taken  from the



            wheel was a  16-inch tire, presumably based  on its labeling.



            If Sacramona were precluded from making that claim, a finding



            of  serious negligence  on Sacramona's  part could  hardly be



            avoided.    Indeed,  Sacramona  would  appear  to  be  doubly



            negligent:  first in  selecting the 16-inch tire without  any



            basis  for doing so and,  second, in his  repeated efforts to



            seat and  inflate  the tire  even  when failure  showed  that



            something was wrong.  Thus, even if the sanction were limited



            as Sacramona suggests, his negligence claim would still fail.



            We therefore affirm summary judgment on this claim.



                 The   more   limited   sanction,  however,   would   not



            necessarily   preclude  the  warranty  claim.    Contributory


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                                         -12-



negligence is not  an automatic defense  to a warranty  claim



            under Massachusetts  law.   Colter v. Barber-Greene  Co., 525
                                        ______    __________________



            N.E.2d  1305, 1313-14 (Mass. 1988).  This, in turn, brings us



            to the district court's alternative ground for dismissing the



            warranty claim.



                 3.    Neither  side   disputes  that  Massachusetts  law



            embodies a notice  requirement for warranty  claims.  As  the



            rule has  been formulated,  a plaintiff must  give reasonably



            prompt  notice  of  his   warranty  claim  to  the  potential



            defendant; if he fails to do so, and the defendant is thereby



            prejudiced,  the  warranty claim  is  barred  even  if it  is



            brought within  the statute of limitations.   Although merely



            implied by a Massachusetts statute, Mass. Gen. Laws ch.  106,



              2-318,  case law  has fleshed  out the  notice requirement.



            Castro v. Stanley Works,  864 F.2d 961, 963 (1st  Cir. 1989);
            ______    _____________



            Cameo  Curtains, Inc. v. Philip  Carey Corp., 416 N.E.2d 995,
            _____________________    ___________________



            998 (Mass. App. Ct. 1981).



                 Whether notice  is unreasonably delayed can  be a thorny



            issue but, in this case, undue delay is obvious and Sacramona



            does  not  even  argue to  the  contrary.    And assuming  an



            unreasonable  delay  in  notice,  the  prejudice  showing  is



            relatively easy:   it is enough that the delay  may well have



            deprived  the defense  of  useful evidence.    No showing  is



            required that lost evidence would inevitably have altered the


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                                         -13-



outcome.   Castro, 864 F.2d  at 964.   In  short, the  notice
                       ______



            requirement has real teeth.



                 The  reason  for  this  rule in  Massachusetts  is  that



            warranty  liability  combines features  that  place potential



            defendants  at  serious  risk:   strict  liability,  lack  of



            privity, and a statute  of limitations that may run  not from



            the sale but from the injury.  Cameo Curtains, 416 N.E.2d  at
                                           ______________



            997.   As a  counterweight, the requirement  of prompt notice



            allows the  defendant to  gather evidence in  timely fashion;



            without such notice, a defendant could easily be surprised by



            a lawsuit many years after selling its products.  Cf. Castro,
                                                              ___ ______



            864 F.2d at 963.



                 In the present case, notice was plainly delayed; and the



            district court  found that  the requisite prejudice  had been



            shown by the defendants.  On appeal, Sacramona  contests this



            latter  finding   on  two  related  grounds:     first,  that



            prejudice,  in this context, is  an issue for  the jury under



            Massachusetts law;  and, second,  that the district  court in



            finding  prejudice  resolved   disputed  issues  on   summary



            judgment without giving the  benefit of doubts and inferences



            to the non-moving party.



                 Massachusetts does  treat the  defense as a  jury issue,



            Henrick v.  Coats Co.,  Inc., 458  N.E.2d 773,  774-75 (Mass.
            _______     ________________



            App.  Ct. 1984),  and--regardless  of whether  this  practice


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would be binding on a federal court2--we ourselves treat as a



            jury  issue  fact  questions   presented  by  a  statutes  of



            limitation defense, Villarini-Garcia v. Hospital Del Maestro,
                                ________________    _____________________



            Inc., 8 F.3d 81, 84 (1st Cir. 1993), which offers  an analogy
            ____



            to the notice requirement.   But the question remains whether



            a reasonable  jury would still  have been  compelled to  find



            prejudice here.



                 We review such determinations de novo, assuming that the
                                               _______



            jury would  credit the non-movant's version of events.  E.g.,
                                                                    ____



            Continental Ins. Co. v.  Arkwright Mutual Ins. Co.,  102 F.3d
            ____________________     _________________________



            30, 33 n.4 (1st Cir. 1996).  Yet, even if the jury found that



            Carroll had not  caused prejudicial damage to  the wheel, the



            loss  of the remaining evidence would be beyond dispute:  the



            original  leaking tire,  the other  wheels and  tires on  the



            customer's van,  and the  equipment in the  garage, including



            the  tire changer, the pressure gauge, and the manuals.  This



            material  might have  been  salvaged if  Sacramona had  given



            prompt notice to the  defendants after the accident; instead,



            he waited three years.



                 The original tire itself,  without more, could have been



            very helpful evidence.  If it had proved to be 16-1/2 inches,


____________________



                 2The extent to which state jury practice binds a federal

            court in a diversity case  involves consideration of the Erie
                                                                     ____

            doctrine,  the  Rules  of   Decision  Act,  and  the  Seventh

            Amendment.   See  generally  Byrd v.  Blue Ridge  Rural Elec.
                         ______________  ____     _______________________

            Coop., 356 U.S.  525 (1958); Herron v. Southern  Pacific Co.,
            _____                        ______    _____________________

            283 U.S. 91 (1931).  We need not pursue the subject here.



                                         -15-
                                         -15-



this  might have  persuaded the  jury that  the cause  of the
                                                            _____



            accident was  Sacramona's own conduct rather  than any design



            defect.   See Colter, 525 N.E.2d  at 1312.  Of  course, since
                      ___ ______



            contributory  negligence is  not  a defense  to the  warranty



            claim, the jury  would have had some  latitude.  But  to show



            prejudice based  on a lack  of notice, the  defendants needed



            only to prove  that evidence  was lost that  might well  have



            helped them, and that they have done. 



                 In fact,  on  appeal Sacramona  makes relatively  little



            effort  to  show  how  a  jury  could  have  failed  to  find



            prejudice.    His  factual  appraisal  of  lost  evidence  is



            confined to question  whether the wheel was  damaged; for the



            rest,  his  brief simply  asserts  that prejudice  is  a jury



            issue.  Indeed, it is--but only where a reasonable jury could



            decide the issue either  way.  Here, given the  low threshold



            for the  showing  and  the admitted  loss  of  evidence,  the



            outcome on this issue was inevitable.



                 Affirmed.
                 _________


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