USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1182
ALLISON WILLIAMS,
Plaintiff, Appellant,
v.
MONARCH MACHINE TOOL COMPANY, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________
Joseph M. Orlando
__________________

with whom

Brian S. McCormick and

____________________

Orland
______

Associates were on brief for appellant.

__________
Terrance J. Hamilton with whom Casner & Edwards was on
____________________
_________________
appellee.

brief

____________________
June 9, 1994
____________________

BOUDIN,

Circuit Judge.
______________

On

March

23, 1988,

Allison

Williams, plaintiff in the district court and appellant here,

was

injured when he was

struck by a

loose from a vertical milling machine.

was working
("R&K").
been

made

in Massachusetts for R&K

The vertical milling
in

1978

by

"toolholder" that came

At the time, Williams
Precision Tool Company

machine, owned

Monarch

Machine

by R&K,
Tool

had

Company

("Monarch"), the defendant-appellee in this case.

The
machining

machine

in

question

center that

performs

was

computer

various functions

assisted
such

as

milling,

boring and

accident, the

fly

cutting.

machine was being

Williams

who had attached to

had been

made "in-house" by R&K.

into which
The

a toolholder and

fly cutter then rotates

milling machine and the

At

the

time

operated by a

the machine a

the

co-worker of

fly cutter that

The fly cutter

attached tool can

on the spindle

of

is a disk

be inserted.

of the vertical

rotating tool can be used to

cut or

shave a piece of metal.

In this

instance, the

co-worker who was

operating the

vertical milling machine had been requested by his foreman to

machine a
After

piece of

a few

rotated
screws

aluminum into a

seconds

of

operation,

specific configuration.
in which

the

spindle

at 2500 rpms, the toolholder came loose from the set

holding it

to

the fly

cutter,

and the

toolholder

struckWilliamswho wasstanding nearby.He wasseriously injured.

-2-2-

Williams
Monarch.

brought

suit in

His complaint,

warranty, rested on two

the

district

court against

claiming negligence and

breach of

notions as to what Monarch

had done

wrong.

First, Williams

contended that Monarch

provided shielding to contain

that

Williams

complaint
risk

said

was

taken;

ejected projectiles, a

known

to

Monarch.

said that Monarch should

of such ejections

so that

in this connection,

should have
danger

Second,

the

have warned users of the

in-house measures

Williams contended

could be

that Monarch

had an ongoing duty to warn prior purchasers of new shielding

___
equipment developed after

the machine's manufacture

late in

1978 but before the accident in 1988.

The trial took place
was expert

evidence on

warning and

causation.

proper

in January 1993.
both sides

standards

bearing

manufacturers
Answering

and

on

the

trial, there
of shielding,

evidence concerning

milling machine and the industry

respective

users in

providing

specific interrogatories,

Williams, and for

on issues

There was also

use of the vertical

At

Monarch, on

responsibilities
guards and

the jury

each of the

of

shields.

found against

claims against

Monarch.
Following
trial
appeal.

the jury

verdict, Williams

moved for

a new

asserting as grounds the two issues now raised on this

One

is

Williams' claim

wrongly admitted testimony from

-3-3-

that

the district

court

a second expert witness, who

was belatedly produced by Monarch and who testified at trial;

and the other

is that an instruction requested

affirming the manufacturer's ongoing

a

machine is

sold, should

by Williams,

duty to warn even after

have been

given.

The district

court denied the motion, and Williams appealed.

We affirm.

The events relating to the second expert can

summarized.

As

is

common

in

anticipated, interrogatories
employed

by

the

expected testimony.
October 16, 1991,

parties

cases

under Fed.
to

identify

where

be briefly
experts

R. Civ. P.
experts

are

26 were

and

their

After successive extensions, Monarch

identified its expert as David

on

Lundeen, a

vice president of Monarch, and described the substance of his

testimony.

Williams'

answers

identified

his own

expert.

Thereafter, Lundeen was deposed by Williams.

At a
court

March 26, 1992, pretrial

set January 4, 1993, as a

also ordered the parties to

conference, the district

firm trial date.

The court

make certain filings during

the

four weeks preceding the trial date, including the listing of

the
1992,

names of all witnesses, lay and

a

month before

the

scheduled

expert.

On December 4,

trial, Monarch

filed

"further supplemental answers" in response to Williams' prior

"expert" interrogatories identifying for the first time Ralph

Barnett as an additional expert witness.1

____________________
1The
December 4
filing
also identified
another
previously unnamed expert for the defense.
However, this
third expert was never proffered at trial and need not be
-4-4-

On December 28, 1992, Williams filed

to exclude

Barnett's testimony on the

late appearance

a motion in limine
__ ______

ground that Barnett's

would prejudice Williams.

At a

hearing on

January 11, 1993, immediately before the start of trial,

district court

heard argument

on the

in limine
__ ______

the

motion and

offered to postpone the trial for a week and permit Barnett's

deposition to

be taken.

Williams' counsel said

that

this would not cure the

prejudice, the court proceeded

with

the trial

Later, the court approved the taking

immediately.

When

of Barnett's deposition during

13, 1993, the

a recess of trial

day before Williams' own expert

on January

was scheduled

to testify.
On

appeal,

Williams

argues that

the

district

court

abused

its

authority

testimony.

Williams

by

contends that

repeat Lundeen's opinions

Williams brushes
wholly inadequate

refusing

to

exclude

Barnett did

Barnett's
not merely

but added new theories of his own.

aside the proffered

one-week extension

as

to allow the counsel to depose Barnett, to

develop adequate rebuttal information, and to allow Williams'

own expert the time to adjust his own testimony to answer the
new theories.
Barnett's

Monarch, in

testimony

turn, belittles the importance of

and argues

that

his

late appearances

violated no rule or order.

____________________
discussed further.
-5-5-

In our
witnesses,

view, the

or substantial expansion

expert testimony,
litigation.

last-minute appearance of

Such

of previously disclosed

has become a troublesome

last-minute

improvisation rather than ambush,

new expert

expert

feature of civil

testimony

is

often

but it can still undermine

trial preparations
months
enter

carefully made by an

or even years.
pre-trial

adversary over many

For this reason, some district judges

orders setting

naming of experts and then

explicit deadlines

for the

allow new ones to be named

those deadlines only for good cause shown.

after

Cf. Local R. 26.4

___

(D. Mass.).
Rule
effect.

26

interrogatories do

not

Formally, the answers reflect

expectation

as to the experts

themselves

(as

phrased

have

quite the

counsel's good-faith

to be offered,
in

same

1992)

and the rules

underscored

this

qualification by imposing a duty "seasonally to supplement" a

prior answer identifying an expert or revealing the substance
of expert testimony.
Of

See former Fed. R. Civ. P. 26(e)(1)(B).

___

course, it would violate

expert

who

had

been retained

substantially earlier time.

it named Barnett

this duty to
by

the

name belatedly an
naming

party at

Here, however, Monarch says that

shortly after determining

to use him,

and

there is no evidence to the contrary.

Our

situation falls

requirement

somewhat

that experts be named

-6-6-

in between

an

outright

no later than a specified

date

and the ordinary use of Rule 26 interrogatories.

the original
extended

scheduling

several times,

answers" to

order from
directed

the

dates and set

discovery.

still later
It

may

dates

well have

magistrate

that "full

expert interrogatories

be

Here,

and

judge,
complete

furnished by

listed

for the completion

of all

been

the intention

of

the

magistrate judge that this be read as an outright cut-off for

the naming of experts

even though the order is not framed in

quite these terms.

When on the
positions

day of

to the

Williams did

trial the

district

parties presented

court, the

not explain his position

matter was

their

blurred.

with exactness, while

Monarch argued (untenably) that, even if a prior deadline had

been set, it
routine

was relaxed implicitly by

order saying that all witnesses be listed a month or

so before trial.

Without resolving the dispute, the district

court said that it would

in

a case with

the

not bar important expert

a large ad damnum when a

__________

remedy the problem.

read,

the district court's

district

However the
court

was

testimony

continuance would

magistrate judge's order is

free

to

alter

previous

deadlines.
Conversely, even if

the magistrate

judge's order

left

open the ordinary supplementation option, this court has held

that trial
exclude

judges have inherent

expert evidence

discretionary authority

where Rule 26

to

interrogatories have

-7-7-

been

employed

and

where

supplementation was not

the

court

seasonable.

This is so

the late-named expert was disclosed as

been retained.

Fusco
_____

239, 245 (1st Cir. 1992).

decided

"seasonably"

to

that

soon as he or she had

F.3d 259,

Thibeault v. Square D Co.,

_________
___________

960 F.2d

If the district court in this case

preclude

disclosed,

the

even though

v. General Motors Corp., 11

___________________

265-66 (1st Cir. 1993);

had

finds

Barnett's

such a

testimony

decision would

as

not

likely have

been sustained.
But

the

broad discretion

of

scheduling, discovery and sanctions

trial

judges to

cuts both ways.

manage
Through

no one's fault, evidence is sometimes obtained belatedly when

a

gap in

Discovery

proof is perceived
aims only

or a new

to mitigate

source is uncovered.

surprise, for

nothing can

eliminate

it

entirely from

trial practice.

answers are supplemented in widely varying

that great deference
spot

must be

Interrogatory

circumstances, so

afforded to the

in devising the proper remedy.

judge on

the

See, e.g., Nickerson v.

___ ____ _________

G.D. Searle & Co., 900 F.2d 412 (1st Cir. 1990).
________________
Here, the trial

court did

good deal can be done in

offer a week's

a week.

delay and

We appreciate that counsel

who accepts a half measure under protest may preserve

claim of error but greatly
in any later appeal.
requires

the

reduces the likelihood of success

Yet, settling a case prepared for trial

compromises, and

it is

generally right

to insist

-8-8-

that counsel take the best deal offered under protest, do the
best job possible

and then

(if the verdict

goes the

other

way) argue to the appeals court that what was allowed was not
enough.

At

least then there

is a concrete

record to

show

what could be done in the time allowed.2

We

do not

suggest

that Williams

waived his

right to

appeal

by

rejecting the

Williams' trial

district

counsel
other

thought that

useless

and had

nothing

prevents Williams

reasons to

by

rejecting

inclines a

the

move

If

was close

swiftly to
now on

to

trial,

appeal that

was the only permissible remedy.

____

proffered

half-measure,

reviewing court to resolve

about whether a

proposals.

a week

from arguing

preclusion of the testimony

But

court's

Williams

any legitimate doubts

week might have been enough in

favor of the

district judge's view that it would have been sufficient.

In this case we
as originally
compared
trial.

directed to Lundeen's

them

to testimony

There is

enough to say

have reviewed the interrogatory answers

proposed testimony

actually

given

no value in repeating

that Williams

is right in

and

by Barnett

at

details here; it

is

urging that

there

____________________
2In fact, the district court initially offered Williams
a continuance without limiting the offer to a week and only
specified the one-week delay when Williams did not state a
figure of his own, assertedly fearing a long delay in getting
the plaintiff's case to trial.
There is little to suggest
that the district court would not have entertained a request
for a longer continuance, especially if based on a more
substantial effort by counsel to do the best he could during
the original week.
-9-9-

were substantial differences--not

new

theories--that

required

so much contradictions

new

lines

of questioning

as
by

Williams' counsel and new rebuttal from Williams' own expert.

What

we cannot

say is

that the

district court

abused its

discretion in thinking that an extra week was enough to allow

_____ ____
Williams to adjust his position.
Williams points to

the many demands

weeks before a scheduled

on counsel in

trial, but what was offered

extra week to be derived by postponing the trial.

_____
of

this

time

deposing

Barnett,

testimony
subject

and

gathering

Indeed,

available for
material

had

own

its

discretion

not find
in

Almost all
task

of

him

and

his

on any

new

counsel made

the

expert

placed at the end

argue that still more time

we do

was an

the

about

Williams'

would have been better

the circumstances,
abused

presumably

preparing Williams'

matter.

effort, he
week to

was

refusing

was required.

exclude

of the

Under all

that the district

to

the

court

Barnett's

testimony.
Williams' brief twice suggests
withdrew

its original

offer of

Williams refused to accept it

from the late disclosure.
we

agree that

it would

that the district

a week's

court

extension because

as adequate to avoid prejudice

Without generalizing too broadly,

be a

matter of

some concern

if a

district

court refused

to

unless the party offered

provide a

limited

postponement

it waived the party's claim

that a

-10-10-

longer extension was required.

In this instance, however, we

do not read the record to establish such retaliation.

We

think that

gained the
counsel)

the district

judge may

impression (based on the

that

Williams was

continuance in
preserving

order

for

appeal

to

not

cure
the

in

reasonably have

colloquy with Williams'

fact interested

the surprise,

position that

exclude Barnett's testimony was error.

but

the

in

only

in

failure

to

In all events,

when

the district court finally announced its intention to proceed

with

trial

at

once, there

Williams' counsel.

was

no

further response

from

This would be a different case if at that

point Williams had said that he did want a week's continuance

and was merely refusing to waive his right to appeal.
Williams' second
directed

at

the

and quite

district

separate claim of

court's

following requested instruction:

refusal

to

error is
give

the

The need to exercise reasonable care to

prevent injuries to foreseeable users of
a product included a duty at least to
inform user (sic) of a product [of]
safety improvement of equipment which
would lessen the risk of injury that has
developed after the sale of the product,
but before the injury occurs.
In

requesting

this instruction,

which

the district

court

declined to give, Williams' trial counsel relied upon doCanto

_______
v. Amtek Inc.,
__________

328 N.E.2d 873 (Mass. 1975),

and H.P. Hood &

___________

Sons, Inc. v. Ford Motor Co., 345 N.E.2d 683 (Mass. 1976).
__________
______________

-11-11-

It
machine

is

Williams'

position

that the

vertical

milling

in question, made in 1978, should have been equipped

with an optional chip guard of a type that Monarch later came

to use for most of its machines; that by the
to 90

percent of newly

with

these enclosures;

unguarded R&K machine and

late 1980's, 85

produced Monarch machines

and

that Monarch

were sold

was aware

serviced it from time to

of the
time but

did not

give R&K warning of the guards after the sale of the

machine but prior to the accident in 1988.

Williams does

not claim that

given were faulty in

made

and sold

argues that
the

of

defining Monarch's duty at the

the machine

in question.

product was

produced and

if it fails unreasonably to

the product

after the sale.

has been

Rather,

a manufacturer who has discharged

time the

liable

the instructions actually

of new,
We

time it
Williams

all duties at

sold will

still be

advise a prior purchaser

safety enhancing

improvements made

can find no indication that such

a rule

adopted in Massachusetts, whose law governs in this

case.
In

doCanto,
_______

the

decision

principally

in

brief, the

sustained

the admissibility of evidence showing improvements

but the

court did

continuing duty

Supreme Judicial

on

Williams'

made after the sale

Massachusetts

relied

of the product but before

not

to warn

adopt the
purchasers

-12-12-

view

the accident;

"that there

of safety

Court

was

improvements

[later] made to a machine which was reasonably safe at sale."

328 N.E.2d at 877.
was

Rather, the court found that the evidence

pertinent to

(e.g.,
____

issues of

feasibility,

implied that the

liability at

knowledge of

the time

risk).

Id.
__

manufacturer would have been

limiting instruction on the

of sale
The court

entitled to a

permissible use of the evidence.

Id.
___
The
duty
where

doCanto decision goes no further than to say that a

_______

to warn
the

design."

of post-sale

machine

as

safety improvements

originally sold

328 N.E.2d at

877.

was

"may" exist

of

"negligent

This dictum, even

if "does"

were substituted for "may," would do Williams no good because

in this case the jury's
that

the machine

designed.

Indeed,

(Mass. 1984), the

and we have
advise
have

as

answers showed that it did

originally sold

in Hayes
_____
court said:

never said, that

purchasers about

v. Ariens Co.,
_________
"We

____________________

did not say

post-sale safety

negligently

462 N.E.2d

a manufacturer

been made to a machine that

time of sale."3

had been

not find

273

in doCanto,
_______

has a duty

to

improvements that

was reasonably safe at the

3The Hood case, also relied upon by Williams, is even

____
less helpful to Williams. Hood did involve in part a federal
____
_______
statute governing motor vehicle defects, see 345 N.E.2d at
___
687, and the statute does address post-sale duties, see 15
___
U.S.C.
1402; but there is no claim that this federal
statute in any way governs vertical milling machines.
-13-13-

Some courts have adopted

post-sale

the view that there

duties to warn, e.g., Kozlowski v. John E. Smith &

____ _________
_______________

Sons Co., 275

_________

N.W.2d 1915

(Wis. 1979),

academic support for this extension.

Rev.
___

1087 (1981).

expanded

duty

Massachusetts
warned,
forum

is
has

Yet,
the

order

prevailing

adopted any

time and again,

in

there is

to

such

bring

suit

and there

is some

E.g., Note, 33 Stan. L.

____
________
no suggestion
view,

that this

still

less

that

expansion.

"We

have

that litigants

jurisdictions cannot expect that

Ryan v.
____

are broad

in

who reject
federal

a state
diversity

new trails will be blazed."

Royal Ins. Co. of America,

__________________________

916 F.2d 731,

744 (1st

Cir. 1990) (citations omitted).

Finally, if

manufacturers were held in

some situations

to have a duty to search out prior customers and tell them of

new improvements

of products

reasonably safe when

sold one

would expect that a duty potentially so far reaching would be

qualified by other considerations and limitations (e.g.,
____
feasibility

of conveying

severity of the hazard,

to

knowledge).

proffered by
restrictions.
that the

The

warnings to prior

purchasers, the

an imbalance between the

broad

Williams in

language

the trial

of

the

the

parties as
instruction

court contains

no such

In our view, this makes it even more unlikely

instruction as framed represents

of Massachusetts law.
Affirmed.
________

-14-14-

the present state