Court of Appeals
For the First
FERRARA & DIMERCURIO,
ST. PAUL MERCURY, INSURANCE
APPEAL FROM THE UNITED STATES
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington,
U.S. District Judge]
Selya, Circuit Judge,
Coffin and Campbell, Senior
Joseph M. Orlando with whom David S. Smith, Brian
S. McCormick and Orlando & Associates were on
brief for appellant.
Richard H. Pettingell with whom Davis, White, Pettingell &
Sullivan, LLC was on brief for appellee.
CAMPBELL, Senior Circuit Judge. For a second time this case comes to us
on appeal. See Ferrara & DiMercurio v. St.
Paul Mercury Ins. Co., 169 F.3d 43 (1st Cir. 1999) (hereinafter
Ferrara I). The facts have not changed.
On July 3, 1993, the commercial
fishing vessel F/V TWO FRIENDS was destroyed by a fire. Plaintiff-Appellant
Ferrara & DiMercurio ("F&D"), owner of the
vessel, sought to recover insurance under a Hull Policy issued
by defendant-appellee St. Paul Mercury Insurance Company ("St.
Paul"). St. Paul denied coverage after its investigation
ended with a determination of arson, which it understood to be
excluded from coverage under the policy. Thereafter, F&D
brought an action in the district court claiming that St. Paul's
refusal to pay was a breach of the insurance contract and constituted
"bad faith" in violation of Massachusetts General Laws
ch. 93A. After a first trial ended in a hung jury, a second trial
ended with the court directing a verdict in favor of the plaintiff.
At the time the district court directed
a plaintiff's verdict, the court accepted that St. Paul would
not be liable could it prove its affirmative defense that the
fire was deliberately set by the insured. But the court ruled
that the evidence put forward was legally insufficient for a
jury to find that plaintiff had deliberately set its boat on
fire. St. Paul had also asserted that it would be exempt from
liability were the fire found to have been deliberately set by
an unknown third party, relying upon the language of an exclusion
for "malicious acts" found in the so-called Strikes,
Riots, and Civil Commotions ("SR&CC") clause. However,
the court construed that provision as excluding from coverage
only those fires deliberately set by third parties in the context
of civil unrest, a setting absent here.
On appeal, this court disagreed
with the district court's rulings, reversing and remanding the
case for a third trial. We held that the SR&CC clause excluded
from coverage all fires (whether or not arising in the context
of civil unrest) that were deliberately set by third parties.
See Ferrara I, 169 F.3d at 53. Notwithstanding
the clause's title -- "strikes, riots and civil commotions"
-- we stated:
"Malicious acts" is set
forth in the SR&CC clause as a separate, unmodified exclusion
from coverage....[N]othing in the plain language and grammar
of the clause supports the district court's constriction of excludable
"malicious acts" to only those acts perpetrated within
the context of one or more of the other co-listed events. Nor,
in our view, would an objectively reasonable insured interpret
the "malicious acts" exclusion so narrowly.
...Hence, to limit the phrase, "malicious
acts," to just those activities related to the former categories
would be to render the "malicious acts" provision redundant,
an interpretation running counter to the customary assumption
that all words within a clause serve some purpose....
Here, the malicious acts in question
are arson -- and not, as a practical matter, arson by the owner
or its agents, which are actions separately excluded from coverage
by law, but the rarer acts of fire-setting by vandals or other
malicious individuals. Such acts fall within the general category
of intentional third-party violence which can be said to be a
principal overall theme of the SR&CC clause. The "malicious
acts" category serves the relevant purpose of excluding
destructive acts not public or tumultuous enough to be considered
a riot or civil commotion. In sum, the SR&CC clause unambiguously
excludes from coverage losses caused by "malicious acts,"
including arson, whether or not the malicious acts occur in the
context of one or more of the other events listed in the SR&CC
clause. Thus, on remand, the jury should be permitted to determine
whether the fire on July 3, 1993, was deliberately set by third
parties. Should the jury answer that question in the affirmative,
St. Paul would not be liable under the Hull Policy.
at 51-53 (citations and quotation marks omitted).
Having reversed the district court's
holding that arson by a third party was only a defense when occurring
during civil unrest, this court also reversed the district court's
other conclusion that the evidence at trial was legally insufficient
to support the insurer's arson-by-the-insured defense. We determined
that evidence in the record of motive and opportunity on the
part of F&D to commit arson was such that "reasonable
jurors could determine that [plaintiff] deliberately set fire
to the TWO FRIENDS in order to fraudulently obtain the proceeds
of the insurance policy." Id. at 56.
The parties returned to district
court to prepare for a third trial, this time before yet a third
judge, Judge Harrington. Based upon their mutual understanding
of this court's decision in Ferrara I, both parties agreed
that the following single question would be submitted to the
jury to be answered "Yes" or "No": "Do
you find that the defendant, St. Paul Mercury Insurance Company,
has established by a preponderance of the evidence that the fire
was of an incendiary nature or deliberately set?". This
question was apparently meant to incorporate both holdings of
Ferrara I, entitling St. Paul to the defense of arson
by third parties as well as to the defense of arson-by-the-insured.
The jury returned a verdict in favor of defendant St. Paul, answering
"Yes" to the special verdict. F&D appeals.
Unlike in Ferrara I, when
we were faced with, among other issues, the task of construing
somewhat unusual language in the insurance policy, this time
the issues presented are more commonplace. F&D claims reversible
error on the basis of certain evidentiary rulings, any one of
which, F&D argues, entitles it to a fourth trial. We disagree.
F&D also appeals from the district court's denial of plaintiff's
post-trial motion for sanctions. For the reasons that follow,
we affirm all of the rulings below.
II. LEGAL ANALYSES OF
Having recited the facts in our
first opinion, we need not repeat all of them here. For a more
complete account, we refer the reader to Ferrara I, 169
F.3d at 45-49. We report here only those facts that are relevant
to the three evidentiary issues raised on this appeal. The three
evidentiary issues are as follows(1):
(A) the propriety of allowing the jury to hear evidence of the
principal shareholders' alleged motive and opportunity to burn
their own boat; (B) the propriety of admitting into evidence
against F&D the expert testimony of John Malcolm regarding
the cause and origin of the fire; (C) the effectiveness of the
district court's curative instruction to the jury to strike and
disregard an answer provided on cross-examination by John Malcolm
regarding information that was subject to a protective order.
We discuss each of these issues in turn below.
A. Motive and Opportunity Evidence
to Burn the F/V TWO FRIENDS
Prior to trial, the district court
engaged in an extended colloquy with both parties over the relevance
and potential prejudice of defendant's proffer to present evidence
of F&D's financial hardship, a proffer, defendant argued,
that would tend to prove that F&D had a motive, in addition
to the opportunity, to burn their boat, the F/V TWO FRIENDS.
Plaintiff objected to this evidence on the ground that it was
irrelevant. All parties having agreed that the sole question
put to the jury would be "Do you find that the defendant,
St. Paul Mercury Insurance Company, has established by a preponderance
of the evidence that the fire was of an incendiary nature or
deliberately set?", plaintiff sought to persuade Judge Harrington
that evidence of either motive or opportunity to commit arson
would be irrelevant to a determination of the ultimate issue.
Then, as now, plaintiff argued that evidence of motive and opportunity
to start a fire aboard the F/V TWO FRIENDS was irrelevant to
the only explicit question to be answered by the fact-finders:
whether or not the fire aboard the F/V TWO FRIENDS was intentional.
As an alternative, plaintiff argued that the prejudicial effect
of evidence that F&D shareholders had a motive and opportunity
to burn their boat substantially outweighed its probative value.
At various times during the pre-trial
conference, Judge Harrington pressed plaintiff's counsel for
a persuasive explanation of why evidence of motive and opportunity
was irrelevant to the ultimate issue of incendiarism. Like Judge
Harrington, we are puzzled by plaintiff's constricted interpretation
of relevance as defined by Federal Rule of Evidence 401. Consider
the evidence that ultimately came out at the trial:
The F/V TWO FRIENDS was locked at
the time the fire started. No sign of forced entry into the vessel
was found. As both parties' experts agreed that the fire began
inside the vessel, St. Paul was faced with the obstacle of explaining,
in order to establish that the fire was deliberately set, how
an arsonist (be it the insured or a third party) gained access
to the vessel. This goes to opportunity.
As it turned out, there were four
keys to the F/V TWO FRIENDS, three in the hands of the insured-owners
and one hanging in a warehouse adjacent to where the boat was
moored. The undisputed testimony was that all four keys were
in their expected places shortly after the fire. The owner of
the warehouse testified that access to the key hanging in the
warehouse was not closely guarded, however, and that it was possible
that before July 3, 1993, somebody could have illicitly taken
the key from the warehouse and made a copy of it. No evidence
was put before the jury of anyone being seen near the boat between
the hours of 4:30 p.m on July 2, 1993, when Leo Ferrara locked
the boat after a fishing trip, and 2:30 a.m. the following morning,
when the Gloucester Fire Department responded to the fire.(2) After a lengthy investigation that
led St. Paul's investigators to the conclusion that, due to the
burn patterns inside the vessel, the fire had been deliberately
set, St. Paul set out to investigate why someone who might have
access to the TWO FRIENDS would wish to destroy it. This goes
Evidence was presented that the
plaintiff company F&D, along with its principle shareholders
(various members of the Ferrara-DiMercurio family), was in dire
financial trouble. The company, organized as a commercial fishing
venture in 1987, was losing money and was unable to meet its
mortgage payments on the vessel to Gloucester Bank & Trust
Company. In fact, F&D had operated at a loss since its inception.
As the company fell further behind in its payments, the bank
threatened to foreclose not only on the boat mortgage, but on
the collateral that was pledged on the loan for the F/V TWO FRIENDS,
such as the personal homes of the individual shareholders.
Despite successfully negotiating
various repayment plans, F&D continued to have difficulties
making timely payments to the bank. So, in April 1993, in an
effort to quell those financial troubles, F&D and Gloucester
Bank & Trust Company agreed that F&D would attempt to
sell the TWO FRIENDS for $225,000, a sum that was $150,000 less
than the price F&D paid for the vessel in 1987 and significantly
less than the outstanding balance of the debts owing, which totaled
more than $425,000. The jury heard testimony that the boat was
insured for $350,000 under a Hull Policy issued to F&D in
1992 by St. Paul, a sum which if collected by F&D might have
protected the homes of the Ferraras and DiMercurios from foreclosure.
The standard for admissibility under
Federal Rule of Evidence 401 is a liberal one. Evidence is relevant
if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without that evidence."
We think the existence of a motive and an opportunity to burn
an undisputedly locked boat from the inside-out tends to make
the disputed issue -- whether the fire aboard the F/V TWO FRIENDS
was an act of arson -- more probable, especially in light of
the conflicting expert testimony as to incendiarism. See
Part II.B infra. Given especially the nisi prius court's
superior vantage point for discerning relevance and the broad
discretion accorded to it in doing so, see, e.g.,
United States v. Tierney, 760 F.2d 382, 387 (1st
Cir. 1985), we can find no error in Judge Harrington's determination
Unpersuaded, as are we, by plaintiff's
argument under Fed. R. Evid. 401, Judge Harrington pushed plaintiff
to move forward, on to the balancing required by Federal Rule
of Evidence 403.(3) "As with
Rule 401, the district courts have considerable discretion in
calibrating the Rule 403 scales." United States v.
Griffin, 818 F.2d 97, 101 (1st Cir. 1987). This is primarily
because "Rule 403 balancing is a quintessentially fact-sensitive
enterprise and the trial judge is in the best position to make
such factbound assessments." Udemba v. Nicoli,
___ F.3d ___,___ (1st Cir. 2001) [No. 00-1246, slip. op. at 12].
"Only rarely - and in extraordinarily compelling circumstances
- will we, from the vista of a cold appellate record, reverse
a district court's on-the-spot judgment concerning the relative
weighing of probative value and unfair effect." Id.
(citing Freeman v. Package Mach. Co., 865 F.2d
1331, 1340 (1st Cir. 1998)).
After a lengthy discussion, Judge
Harrington took the matter of Rule 403 balancing under advisement.
Two weeks later, on the first day of trial but before jury empaneling
began, Judge Harrington informed counsel that he would allow
defendant to proffer evidence of motive and opportunity as he
determined that "such evidence's probative value outweighs
any prejudice to the plaintiff."
Plaintiff's arguments to the contrary,
it is not the case that Judge Harrington's decision was arbitrary
or unfounded or that he failed to provide a reasoned decision
for admitting the evidence despite its prejudicial effect. See
Brief for the Appellants at 29. The pre-trial colloquy during
which the district court explained its difficulties with plaintiff's
position provides ample support for the district court's ruling
allowing defendant to put before the jury evidence of plaintiff's
motive and opportunity to burn its own boat. The matter of the
admissibility of this evidence and its prejudicial effect was
debated at length, with due consideration to the rulings we made
in Ferrara I and the nature of the evidence as a whole.
Judge Harrington correctly isolated
the issue as one of balancing prejudice against the demonstrably
probative value of the motive and opportunity proffer. As we
have said in the past,
The fact that a piece of evidence
hurts a party's chances does not mean it should automatically
be excluded. If that were true, there would be precious little
left in the way of probative evidence in any case. The question
is one of "unfair" prejudice -- not of prejudice alone.
v. United States, 817 F.2d 3, 6 (1st Cir. 1987)(quotation
marks omitted). See also Dollar v. Long
Manufacturing, N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)
("Virtually all evidence is prejudicial or it isn't material.
The prejudice must be 'unfair'."), cert. denied,
435 U.S. 996, 98 S. Ct. 1648, 56 L. Ed. 2d 85 (1978). Although
evidence of motive and opportunity would plainly further defendant's
case at the plaintiff's expense, plaintiff failed to show unfair
prejudice. Given this, and the obvious relevance of the evidence
to the defendant's affirmative defense, the district court did
not abuse its discretion when it denied F&D's motion to exclude.
B. John Malcolm's Expert Testimony
as to Cause and Origin
Much of the two-week trial before
Judge Harrington was a battle between the experts concerning
whether the fire was accidental or of incendiary origin. Defendant's
expert, John Malcolm, concluded that the fire on the TWO FRIENDS
had three points of origin and was deliberately set. Plaintiff's
expert, Paul Sullivan, testified that an accidental electrical
fire started in the lower electrical panel and exploded in a
so-called flash-over igniting everything in the super-heated
compartments of the vessel.
Beyond the conflicting expert opinions,
the battle also raged over whether John Malcolm should be allowed
to testify as St. Paul's cause-and-origin expert. It is on this
issue that F&D appeals. F&D contends that John Malcolm
should not have been permitted to render an expert opinion as
to cause and origin because (1) his opinion was based on unreliable
data, viz, data not collected by him personally and (2)
St. Paul failed to supplement its expert disclosures to include
Malcolm's testimony regarding cause and origin. Before going
into the merits of these arguments, we recount the history of
Malcolm's involvement in this case.
As soon as four days after the fire,
St. Paul had hired Fred O'Donnell as its expert to investigate
the origin and cause of the fire. Fred O'Donnell then hired John
Malcolm as an electrical systems expert to assist him in that
investigation. On July 8, 1993, the two men began their investigation
on site in Gloucester where the boat remained moored.
O'Donnell and Malcolm worked closely
with each other. Malcolm testified that together, sometimes with
Malcolm holding the measuring tape for O'Donnell, the two took
measurements of the vessel in preparation for producing scale
drawings to assist in the investigation and their report. Although
Malcolm's job for which O'Donnell had retained him was to pay
close attention to the boat's electrical system, the two men
worked in tandem, often double-checking each other's observations
and analyses by calling each other over to various burn sites
on the vessel to coordinate their data collection and inquiries.
During the first two trials, O'Donnell
and Malcolm both testified as experts, O'Donnell as to the fire's
cause and origin and Malcolm as to related but narrower questions
concerning the fire and the boat's electrical system. Unfortunately,
however, between the first appeal and the third trial, O'Donnell
died. For the third trial, then, instead of replacing O'Donnell
with an outside cause-and-origin expert, defendant decided that
Malcolm would testify as St. Paul's only fire expert, providing
opinions on both cause and origin and the vessel's electrical
system. This decision is the source of F&D's objection regarding
the admissibility of Malcolm's testimony. F&D argued to the
district court, as it does to us now, that Malcolm was not competent
to testify as to cause and origin as his testimony was principally
based not on his own observations but on those made by O'Donnell.
F&D also argues that designating Malcolm as a cause-and-origin
expert so close to trial unduly prejudiced their case against
St. Paul. At least, F&D contends, St. Paul should have supplemented
its interrogatory answers and expert reports to include Malcolm's
anticipated expanded testimony.
To the extent, if at all, that F&D
is complaining that Malcolm lacked qualifications sufficient
for the court to permit him to testify as a cause-and-origin
expert, that complaint is unavailing. After considering Malcolm's
training and experience, the district court, acting pursuant
to Federal Rule of Evidence 702, ruled that Malcolm was qualified.
That ruling fell within the broad purview of the trial court's
discretion. See Diefenbach v. Sheridan Transp.,
229 F.3d 27, 30 (1st Cir. 2000) ("It is well-settled that
'trial judges have broad discretionary powers in determining
the qualification, and thus, admissibility, of expert witnesses.'")
(citing Richmond Steel Inc. v. Puerto Rican Am. Ins.
Co., 954 F.2d 19, 20 (1st Cir. 1992)). Malcolm's qualifications
as a fire analyst are, in fact, considerable. He has master and
journeyman electrical licenses from Massachusetts and New Hampshire;
he has been consulting as a fire investigator since 1963; and,
in 1991, he was qualified as a Certified Fire Investigator by
the International Association of Arson Investigators. Malcolm
had been qualified twice before as an expert in this case to
render an opinion regarding the electrical system's contribution
to the fire aboard the vessel.(4)
After hearing Malcolm's testimony
regarding his knowledge, skill, experience and training in fire
analysis, Judge Harrington exercised sound discretion in concluding
that Malcolm was qualified to render an expert opinion on cause
and origin as well as on the vessel's electrical system. See
Richmond Steel, 954 F.2d at 20.
F&D's next objection, although
not crafted as such, is essentially a Rule 703 objection. F&D
claims that Malcolm's opinion as to cause and origin was based
on unreliable data, viz, data provided by the late Fred
O'Donnell and not that which was collected through Malcolm's
own personal observation.
A major problem with this argument
is that Malcolm himself had visited the fire scene and examined
the evidence there side by side with O'Donnell. Besides looking
at burn patterns and studying the electrical system, he took
measurements and photographs and wrote his own report. He also
interviewed the vessel's engineer. Many photographs of evidence
at the scene were entered into evidence by stipulation. Hence,
it is simply not the case that Malcolm's cause-and-origin opinion
rested mainly upon O'Donnell's investigations.
To be sure, Malcolm's opinion coincided
with O'Donnell's and he testified that he read O'Donnell's report
in preparation for his expert testimony, along with the report
of the local fire department. But the opinion he rendered was
his own, and, as said, he had first-hand knowledge of the fire
scene and the observable facts there upon which to base that
opinion. Federal Rule of Evidence 703 allows Malcolm to have
taken O'Donnell's report and opinion into account when forming
his own expert opinion. So long as the basis of Malcolm's opinion
did not extend beyond facts or data "of a type reasonably
relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be
admissible in evidence." Fed. R. Evid. 703. We think a cause-and-origin
expert like Malcolm could be expected to examine the report of
another expert like O'Donnell as well as the fire department's
report in the course of forming his own opinion derived from
a variety of sources, including his own first-hand knowledge
of the primary evidence at the fire scene. SeeAlmonte
v. National Union Fire Ins. Co., 787 F.2d 763, 770 (1st
This court has said that when an
expert relies on the opinion of another, such reliance goes to
the weight, not to the admissibility of the expert's opinion.
See Forrestal v. Magendantz, 848 F.2d 303,
306 (1st Cir. 1988). See also Newell Puerto
Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15, 21 (1st
Cir. 1994)("When the factual underpinning of an expert opinion
is weak, it is a matter affecting the weight and credibility
of the testimony -- a question to be resolved by the jury.").
In the present case, the jury understood that Malcolm's observations
coincided with those of the deceased expert hired by defendant
and that, until recently, Malcolm's only job was to advise and
supplement O'Donnell's conclusions as to the cause and origin
of the fire with his own opinion concerning the role of the vessel's
electrical system in the fire. Thus, in weighing and evaluating
Malcolm's opinion, the jury was able to determine whether it
was in some way weakened by reliance upon O'Donnell's.
We find no error in the district
court's ruling that Malcolm's opinion as to cause and origin
was properly admitted.
F&D's next objection to Malcolm's
testimony is that F&D was prejudiced by Malcolm's tardy designation
as the cause-and-origin expert. On June 21, 1999, at the first
pre-trial conference before Judge Harrington following the mandate
from this court, St. Paul informed both F&D and the district
court of its decision to proceed without a replacement for O'Donnell
and with Malcolm as both its cause-and-origin expert and its
electrical systems expert. The trial was set for October 4, 1999,
more than three months later. F&D contends that three months
before the trial was too late to be designating a new expert.
Furthermore, F&D contends that had St. Paul wished to avoid
the prejudice of such a tardy expert designation, St. Paul should
have supplemented its answers to interrogatories naming Malcolm
as the substitute expert for the late O'Donnell and disclosing
the content of his expanded testimony.
At a final pre-trial conference
on October 1, 1999, Judge Harrington heard arguments and informed
both parties that as long as defendant could qualify Malcolm
as an expert on cause and origin, his testimony as to cause and
origin would be admitted. Also at that pre-trial conference,
Judge Harrington allowed plaintiff to add an expert to its witness
list (Paul Sullivan) under the condition that defendant be given
the opportunity to depose the additional expert before the trial.
Plaintiff did not request additional time to depose Malcolm,
however, presumably because Malcolm had testified previously
as an electrical expert at both trials and because St. Paul represented
that Malcolm's testimony as to cause and origin would be substantially
similar to the late O'Donnell's testimony on cause and origin.
We find no merit in F&D's argument
that June 21, 1999 was too late to designate a new expert. F&D
itself designated a replacement expert less than two weeks before
trial. However, F&D rightly objects to St. Paul's failure
to supplement its interrogatory answers or its expert reports
naming Malcolm as the substitute expert for the late O'Donnell
and adding Malcolm's expanded testimony pursuant to Rule 26 of
the Federal Rules of Civil Procedure. See Fed. R. Civ.
P. 26(e)(1) (requiring a party to supplement its answers to interrogatories
in order to inform another party of a material change in or addition
to information contained in an expert's pre-trial report). As
we have stated, "[t]his supplementation requirement increases
the quality and fairness of the trial by narrowing [the] issues
and eliminat[ing] surprise." Licciardi v. TIG
Ins. Group, 140 F.3d 357, 363 (1st Cir. 1998)(alterations
in original)(quotation marks and citations omitted). The question
here is whether St. Paul's failure to adhere strictly to the
requirements of Rule 26(e)(1) - failing to substitute Malcolm
for O'Donnell as its cause-and-origin expert in their expert
disclosures - thwarted the reason for the rule and materially
prejudiced F&D in its efforts to present its case.
A careful review of the record convinces
us that F&D suffered no actual prejudice. First, F&D
in fact had notice of Malcolm's designation as the cause-and-origin
expert as early as June 1999, more than three months before the
trial date. SeeNewell Puerto Rico, 20 F.3d at 20. F&D
moved neither to redepose Malcolm (as St. Paul did of F&D's
newly designated expert Paul Sullivan) nor for a continuance
of the trial.
Second, there was no meaningful
change in the testimony presented by St. Paul regarding cause
and origin from the first trial to the third. The only consequential
change to which F&D objects was that O'Donnell's cause-and-origin
testimony was replaced by similar testimony from Malcolm. Yet
not only was Malcolm's testimony similar to O'Donnell's, Malcolm
himself was not an unknown quantity to F&D. He had testified
as an expert witness in the two previous trials and had made
clear as early as in 1995, during deposition testimony and trial
testimony, that he thought the fire was deliberately set with
three points of origin. For this reason, F&D's contention
that the content of Malcolm's expert opinion came as a surprise
is unpersuasive. This is not a case in which the expert's testimony
departed from the general scheme of his opinion or any other
expert opinion submitted to F&D on behalf of St. Paul's case.
Nor is it a case in which a party was hindered in its ability
to formulate a response or adequately cross-examine the new expert
as to the foundations for his opinion. See Johnson
v. H.K. Webster, Inc., 775 F.2d 1, 8 (1st Cir. 1985) (stating
that among the factors to consider when assessing a claim of
error under Rule 26 is "the ability of the [opposing party]
to formulate a response"). When asked during oral argument
of this appeal whether Malcolm's testimony was contrary to or
in a material way different from his opinion as contained in
the reports submitted to F&D, F&D's counsel conceded
that Malcolm did not change his opinion, but rather he only expanded
its scope to include that which was previously encompassed by
O'Donnell's testimony and reports. As we can see no material
prejudice, we affirm the trial court's admission of Malcolm's
testimony. In so doing, we of course do not condone St. Paul's
failure to adhere to its Rule 26(e)(1) obligations, a mistake
which has needlessly burdened the parties and this court with
an appellate issue.
C. Malcolm's Reference Under
Cross-Examination to Protective Order
Plaintiff's third claim of trial
error concerns a purported violation of a protective order into
which the parties entered in 1995. Plaintiff contends that John
Malcolm's response to a question on cross-examination was a deliberate
disclosure of information subject to that protective order and
so prejudiced the case against F&D that Judge Harrington
abused his discretion when he failed to grant plaintiff's motion
for a mistrial. In context of the whole colloquy between plaintiff's
counsel and Malcolm, Judge Harrington's instructions to the jury
and Malcolm's answer to plaintiff's follow-up question, we find
no prejudice and no trial error. Before we explain, some background
history is necessary.
In 1995, during a pre-trial conference
preceding the first trial, another district judge issued a protective
order that was to follow the parties throughout the case before
him and through any subsequent proceedings. That order prevented
any mention during trial of an alleged anonymous police informant
who, among other things, reported witnessing a man running away
from the F/V TWO FRIENDS just moments before the fire began.
(The order resulted from the refusal of the police officer to
name the informant.) Although the testifying experts in the case,
including John Malcolm, knew of the anonymous informant and of
the protective order, the specter of the anonymous informant
remained out of the jury's view until, at least, the incident
During the third trial, in an apparent
attempt to draw the jury's attention to the alleged fact that
Malcolm had limited personal knowledge of the fire scene, plaintiff
began grilling Malcolm on cross-examination as to the source
and depth of his knowledge. Plaintiff asked:
Question: "You didn't discover
in your investigation of this fire any witnesses to the fire,
Malcolm: "Myself, no, because
Question: "Okay, you found
no witnesses to the fire. In fact, the information you have is
that nobody was on that vessel for a full ten hours prior to
the Gloucester Fire Department responding to that fire; isn't
that right? Isn't that the information that you have?"
Aware that there were allegations
of such an eyewitness, but that he was not allowed to say so,
Malcolm responded: "Well, I have some other information
that I don't believe we're supposed to talk about."
An immediate side-bar ensued during
which Judge Harrington, who had no knowledge of the protective
order, learned of its purpose and parameters. Plaintiff moved
for a mistrial. Judge Harrington denied plaintiff's motion and
solicited suggestions from both counsel about how to correct
the erroneous disclosure. Counsel discussed various ways of rephrasing
the question so that Malcolm would deny any personal knowledge
of witnesses to the fire. When the side-bar ended, Judge Harrington
instructed the jury that the last question and the last answer
were stricken and were not to be considered evidence in the case.
Plaintiff's counsel then asked the following question -- "Mr.
Malcolm, you have no personal knowledge that anyone was on that
vessel for ten hours before the Gloucester Fire Department responded
to that fire; is that correct?" -- to which Malcolm replied,
"That's correct." Plaintiff's counsel continued with
the cross-examination and the matter was left to rest, never
to be mentioned again until the post-trial motion for sanctions.
Our decision to uphold the district
court's ruling requires only a brief explanation. First, Malcolm's
initial response to plaintiff's question did not reveal the existence
of an anonymous informant with information tending to show that
the fire aboard the F/V TWO FRIENDS was an act of arson, an answer
prohibited by the protective order. To the contrary, all Malcolm's
answer suggested was that he had some other information about
the circumstances surrounding the fire that he was not permitted
to reveal. Whether the information that he had and that he was
required to keep confidential would further plaintiff's case
or defendant's case was not clear from Malcolm's statement. Furthermore,
had Malcolm affirmed, as plaintiff desired, that the information
he had was that nobody was on the vessel for a full ten hours
prior to the Gloucester Fire Department responding to that fire,
Malcolm would have been stating a literal untruth. A better phrased
question, such as the one that followed the side-bar, would have
side-stepped any trouble, enabling Malcolm to testify truthfully
yet adhere to the terms of the protective order.(5)
Second, any remote prejudice that
plaintiff could arguably claim is alleviated by Malcolm's answer
to plaintiff's follow-up question and by Judge Harrington's curative
instructions, striking the first question and answer. Judge Harrington
immediately instructed the jury to strike the first question
and answer, that they were not to consider it as evidence in
the case. See United States v. Sepulveda,
15 F.3d 1161, 1184 (1st Cir. 1993) (stating that "[s]wiftness
in judicial response is an important element in alleviating prejudice
once the jury has been exposed to improper testimony").
It is presumed that the jury will follow such instructions unless
"it appears probable that ... responsible jurors will not
be able to ... and, moreover, that the testimony will likely
be seriously prejudicial to the aggrieved party." Id.
at 1185. Plaintiff cannot show a likelihood of prejudice as Malcolm's
response to F&D's follow-up question, a slightly different
(but better) version of the first question, see note 7
supra, placed before the jury the favorable testimony
that F&D had sought from the original question. The jury
heard Malcolm's unqualified denial that he had any personal knowledge
that someone had been aboard the F/V TWO FRIENDS between the
hours of 4:30 p.m. on July 2nd and 2:30 a.m. on July 3rd of 1993.
In sum, Judge Harrington's rapid
curative instruction in addition to the follow-up question and
answer eliminated any remote possibility of prejudice. Judge
Harrington did not abuse his discretion in denying defendant's
motion for a mistrial. See Sepulveda, 15 F.3d at 1184
(standard under which the appellate court reviews the district
court's granting or denial of a motion for a mistrial is abuse
III. REMAINING ISSUES
Plaintiff raises two other issues
on appeal, both of which lack merit. We discuss them briefly
A. Plaintiff's Post-Trial Motion
After the jury returned a verdict
for the defendant, F&D filed a host of post-trial motions,
among them a motion for sanctions based on what it alleges was
a "knowing violation of the [protective order]. It is the
plaintiff's position that this violation was intentional, and
that the statement was made with the explicit purpose of prejudicing
the jury." When considered along side of other purported
discovery abuses, plaintiff claims that the district court's
denial of sanctions was an abuse of discretion.
As we have already determined, Malcolm's
answer was not unwarranted in response to the question asked.
His interrogator was at least as much at fault as Malcolm in
eliciting an answer that skirted the outer limits of the protective
order. Moreover, F&D suffered little if any prejudice from
the exchange. In the circumstances, and taking into account the
fact that the district judge, who had lived with the case, was
unpersuaded that plaintiff had cleared the high hurdle required
to support a claim of fraud on the court or a motion for sanctions,
we can only affirm the district court's ruling denying plaintiff's
motion for sanctions. See Spiller v. U.S.V.
Laboratories, Inc., 842 F.2d 535, 537 (1st Cir. 1988) (stating
that a party complaining to an appellate tribunal with respect
to trial-level sanctions "bears a heavy burden of demonstrating
that the trial judge was clearly not justified in entering [the]
order"). See also Anderson v. Beatrice
Foods Co., 900 F.2d 388, 393 (1st Cir. 1990) (stating that
the hard-to-meet standard of abuse of discretion is a "rule
... anchored in common sense" and quoting Fashion House,
Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir.
1989) with its explanation that because "[d]istrict judges
live in the trenches....[they] are, by and large, in a far better
position than appellate tribunals to determine the presence of
misconduct and to prescribe concinnous remedies"). We see
no abuse of discretion.
B. Plaintiff's Challenge to Ferrara
Plaintiff's remaining challenge
to the judgment below is an assertion that the district court
"erred in following the reasoning of the United States Court
of Appeals in the case of [Ferrara I], in concluding that
the defendant need only prove that the fire in question was incendiary
in nature or deliberately set." Appellant's Brief at 10.
Citing United States v. Rivera-Martinez, 931 F.2d
148 (1st Cir. 1991), plaintiff argues that the district court
should have reevaluated this court's reasoning and deviated from
the holding of Ferrara I in order to avoid manifest injustice.
Putting aside the impropriety of
asking a district court to overturn a determination made by this
court, we observe that plaintiff never asked Judge Harrington
to deviate from the holding of Ferrara I. On the contrary,
during a pre-trial colloquy, the parties discussed with the district
court the way to best formulate jury questions and decide issues
of admissibility of evidence in light of the holding of Ferrara
I. The wording of the question put to the jury, "Do
you find that the defendant ... has established by a preponderance
of the evidence that the fire was of an incendiary nature or
deliberately set?", was stipulated to by both parties, obviating
any possible claim at this time that the question itself oversimplified
Ferrara I's holding. It is axiomatic that an issue not
presented to the trial court cannot be raised for the first time
on appeal absent plain error. See Hammond v. T.J.
Litle & Co., Inc., 82 F.3d 1166, 1172 (1st Cir. 1996).
Nor are there reasons apparent from the record for abandoning
the law of the case doctrine. See Rivera-Martinez,
931 F.2d at 151 (citing the "litany of exceptional circumstances
sufficient to sidetrack the law of the case" -- such as
"the evidence on a subsequent trial was substantially different,
controlling authority has since made a contrary decision of the
law applicable to such issues, or the decision was clearly erroneous
and would work a manifest injustice").
For all of these reasons, we find
no error in the district court's rulings. The judgment below
So ordered. Costs to appellee.
1. We state and
decide the remaining two issues, non-evidentiary and less fact-specific,
in Part III infra.
2. Although not
placed before the jury, through initial discovery both parties
learned that a Gloucester police officer had information based
on an anonymous source that someone was seen fleeing the scene
of the fire and that the fire had been deliberately set. When
the police officer refused to reveal his source, the district
judge who presided over the first trial (Judge Tauro) ordered
that no evidence of this anonymous tip was to be admitted in
the trial. No jury ever heard anything about this anonymous informant.
The jury in the third trial did learn, however, through an answer
of one of St. Paul's experts under cross-examination, that a
protective order was in place as to certain subjects relevant
to the initial investigation of the cause of the fire. Whether
what the jury heard as to the protective order poisoned the trial
for the plaintiff is the subject of Part II.C. infra.
3. Federal Rule
of Evidence 403 directs district courts to exclude evidence "if
its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
4. F&D argues
in an aside that Malcolm's qualifications as a cause-and-origin
expert were rejected by two previous trial judges and that this
is proof that Malcolm should not have been able to testify as
a cause-and-origin expert during the third trial before Judge
Harrington. It is not clear to us, however, that the two judges
presiding in the previous trials believed that Malcolm lacked
qualifications as a cause-and-origin expert. These judges limited
Malcolm's testimony to electrical systems in trials where O'Donnell
was offered as the defendant's cause-and-origin expert. Limiting
Malcolm's role where someone else was tendered as the cause-and-origin
expert expedited the trial by eliminating duplicative testimony.
Neither district judge determined that Malcolm was not qualified
as an expert on cause and origin should O'Donnell have failed
to testify. Furthermore, the views of prior judges about Malcolm
would be largely irrelevant here. A presiding judge has broad
discretion in his or her determinations regarding expert qualifications.
See Poulin v. Greer, 18 F.3d 979, 984 (1st
Cir. 1994); cf. General Elec. v. Joiner,
522 U.S. 136, 142-43, 118 S. Ct. 512, 517, 139 L. Ed.2d 508 (1997)
(holding that appeals courts review trial court decisions to
admit or exclude expert testimony under Daubert on an
abuse of discretion standard). Circumstances change from trial
to trial, and admissibility rulings may also change from judge
to judge and trial to trial.
5. Compare the
"Okay, you found no witnesses
to the fire. In fact, the information you have is that
nobody was on that vessel for a full ten hours prior to the Gloucester
Fire Department responding to that fire; isn't that right? Isn't
that the information that you have?"
with the second, follow-up question,
"Mr. Malcolm, you have no personal
knowledge that anyone was on that vessel for ten hours before
the Gloucester Fire Department responded to that fire; is that