USCA1 Opinion

December 14, 1993 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
___________________
No. 92-2473
No. 93-1801
CAROL GAGNE FUSCO,
Plaintiff, Appellee,
v.
GENERAL MOTORS CORPORATION,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this
amended as follows:

Court issued on

December 6,

1993, is

On page 4, line 1 of first full paragraph, replace "General

Motors'" with "General Motors".

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2473
No. 93-1801
CAROL GAGNE FUSCO,
Plaintiff, Appellee,
v.
GENERAL MOTORS CORPORATION,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]

__________________________
____________________
Before
Boudin, Circuit Judge,
_____________
Coffin and Campbell, Senior Circuit Judges.
_____________________
____________________

Thomas J. Sweeney with whom Howard B. Myers, Terrence E. Hagge

_________________
_______________ __________________
and Bowman and Brooke were on brief for appellant.
_________________
Robert K. Mekeel with whom Law Offices of Joseph F. McDowe
_________________
__________________________________
III, P.A., William J. Murphy, Robert T. Shaffer, III and Murphy
___ ____ __________________
_______________________
______
Shaffer were on brief for appellee.
_______
____________________
December 6, 1993
____________________

BOUDIN, Circuit Judge.

_____________
accident and brought

Carol Fusco was injured in a car

suit against General Motors,

the car's

manufacturer.

A jury awarded Fusco $1 million in damages and

General Motors has appealed, challenging rulings on

and discovery made by the district judge.

evidence

We affirm.

I.
On December
Chevrolet
suddenly

15,

1986, Fusco

Chevette, near
left

embankment,

the

Pelham, New

roadway,

and hit

was

slid

a telephone

front left side of the car.

driving her

car,

Hampshire.
across

pole

an

Her

a
car

ice-covered

somewhere along

the

Fusco was injured.

Fusco brought suit against General Motors in state court

in

New

Hampshire, claiming

that

key component

in

the

steering system--the front left

"ball stud"--had broken from

metal

disaster.1

fatigue

removed the

and

case

caused the
to federal

position that

the ball stud

accident

rather

but

telephone
resulted in

pole.

an evenly

district

jury

court and

had not been

had fractured
trial,

divided hung

when
begun

General Motors
took

the cause
the

jury, and

of the

car hit

on July

7,

the

the
1992,

the district

court promptly ordered a second trial for November 16, 1992.

____________________
1It appears that the ball is a spherical object with a
protruding stud; that the ball and stud together form part of
the elaborate connection (via the tie rod and steering gear)
between the tire wheel or axle and the steering wheel. If
the stud breaks entirely, the tire wheel is no longer
controlled by the steering wheel.
-2-2-

At the

second trial Fusco offered

eyewitness testimony

that her car had abruptly veered off the highway and collided
with a telephone pole.

A state trooper

who arrived first at

the accident testified

that the car was

resting against the

pole near the

between the
two

hinge pillar on the driver's

door and the

left front fender.

experts (Robert Walson

part on

and Carl

this testimony and

ball stud, concluded that

side, a location
Fusco offered

Thelin) who,

their examination of

the broken

metal fatigue had caused

to break, causing the steering

based in

the stud

apparatus to fail and the car

to veer into the pole.

Walson,
the

broken

a metallurgist,
ball

stud

testified that the

taken

from

Fusco's

surface of
car

was

characteristic of a fatigue, rather than an impact, fracture.

He

supported his

opinion

in

several

pretrial examination of the surface

ways

General

automotive

Motors

about

this

engineer, testified

and quality control of the

his

of the ball stud under a

scanning electron microscope; he was fiercely

by

including

examination.
that General

cross-examined
Thelin,

an

Motors' design

ball stud were inadequate.

Based

on partial reconstruction of the accident, he also challenged

General Motors' argument that the telephone pole impact could

have broken the ball stud.
General Motors' case included testimony from
Jerry

its expert

Chiddister who reconstructed the accident based on his

-3-3-

experience with many

"sideslipped" into
slide along

crash tests.
the telephone

the pole starting

In his

view, the car had

pole, causing

at the front left

the car

fender and

ending with the pole lying next to the door hinge column.
opined that on

to

He

its travel down the side of the car, the pole

hit the front left tire and the impact broke the ball stud, a
predictable
Had the

occurrence given the estimated speed of the car.

stud broken before

that there would

road

have been a

the car veered,

Chiddister said

heavy black tire

mark on

the

because the uncontrolled tire would have dragged as the

car slid off course.

Kirk

Ulman,

another General

that he had examined

Motors

the ball stud itself.

expert, testified
He explained why

the

location of the

surface

break (at

of the break (grainy

characteristics meant
cause.

the neck

of the

stud), the

with chevron marks), and other

that impact

and not

fatigue was

the

James Willis, who worked in General Motors' facility

that made the steering gear, testified to quality control and

the

nature of simulated

fatigue fractures.

Ray Schultz, a

metallurgist, confirmed Ulman's testimony on key points.

The
awarded

jury rendered
her $1

appealed.

million

verdict

in

in damages.

favor of

Fusco

General Motors

and
then

In its brief General Motors does not challenge the

sufficiency

of

Fusco's

evidence

but

confines

itself

to

contesting several evidentiary and discovery rulings, rulings

-4-4-

that can
testimony

only

be understood

already described.

against

the backdrop

of

the

Although these claims of error

are not frivolous, we do not think that

any of them warrants

further proceedings.
II.
General

Motors' first

claim

on

appeal

is

that

the

district

court erred in

ruling, prior

that two videotapes--the

The main tape
part, Ulman

made in
used a

function of the
demonstration

to the

first trial,

"driving tapes"--were inadmissible.

1992 has

car mounted

two parts.
on a

lift

In the

indoor

to display

the

ball stud and tie rod and showed how in this

the connection between

wheel or axle had

the stud and

been altered in the

the tire

test vehicle so

that

the stud could be released deliberately from inside the car.

In the

outdoor part,

filmed at

a General Motors

track, Ulman drove the Chevette while Willis,

passenger

seat, intentionally disconnected

the tire
finally

wheel.

The film

separated from

alignment with

veer out of
tape, made

1986,

demonstration with a

the

wheel and

hit the
simply

sitting in the
the tie rod from
the left wheel

wheel flopped
dragged on

long black skid mark.

control or
in

the rod,

the right

apparently creating a

showed that, when

the highway

similar

The

other

test

track

different driver and passenger.

-5-5-

out of

The car did not

track barrier.

showed a

test

Thus,

there is no need for

an independent discussion of this tape.

When General Motors produced the tapes to Fusco in

1992, shortly before the first
limine
______

to

exclude

them,

conditions did not

the time
8,

1992,

arguing

that

the

test

duplicate the conditions that

trial judge

General Motors argues

error, it

trial, Fusco made a motion in

__

of the actual accident.

the

did not

seek to

In

granted

that the

June

track

existed at

an oral ruling on July

the

motion.

exclusion of

offer the

tapes

Although

the tapes
at the

was

second

trial.
Seizing

on

this omission,

Motors has waived

error.

Fusco

or

points to

to this
(1st

cases

is renewed

when

General

the exclusion was

holding that

may not be reviewed on

objection

presented at trial.

argues that

its right to argue that

ruling on evidence
offer

Fusco

an in limine
__________

appeal unless the

evidence

This court has made general

is actually
statements

effect, e.g., United States v. Reed, 977 F.2d 14, 17

____ _____________
____

Cir. 1992),

in cases

where

the in limine motion

__________

to

exclude was denied and the opponent of the evidence failed to

renew the objection at trial. We
circuit, however,

have found no case in

where an in limine motion to

__________

this

exclude was

granted

and the

proponent

of the

evidence, by

failing to

renew the offer at trial, was found to have waived the issue.

-6-6-

Where an
limine,
______

objection to

it makes

sense

renewed at trial.
to

exclude

opponent

of the

evidence

is

evidence

actually

trial.
is that
second

that

been overruled

in
__

the objection

be

definite the denial of the motion

trial,

it

is

to renew

offered; and

gives the trial judge a

the concrete

to require

However

prior to

evidence has

child's play
the objection
requiring

for

the

when the

this renewal

chance to reconsider the ruling with

evidence presented in the actual context of the

The only criticism one might offer of the requirement

the Federal

Rules of Evidence

say nothing

about a

objection,2 but any practiced trial lawyer knows that

much of the law of evidence is not contained in these written

rules.
On

the

other

hand,

where

the

motion

in limine

is

_________
granted, and the
evidence

proponent of the evidence is

will not be

admitted, the situation

To require that the evidence

hardly be

proponent

described

would

inconvenient

have

task

of

as
to

is different.

be offered again at trial would

certainly give the trial court

can

told that the

a second chance, but doing so

easy:

on

engage

summoning

in

the contrary,
the

witnesses

wasteful
or

the
and

organizing

____________________
2The Federal Rules of Evidence do

not address in limine

_________
motions at all.
Instead the rules require in general terms
that, to preserve a ruling on evidence for appeal, the
proponent of evidence make its substance known to the court
and an opponent make known the objection to the evidence and
the ground of the objection. Fed. R. Evid. 103(a).
-7-7-

demonstrative evidence
told not to
the

offer.

in limine
_________

witnesses

that the

proponent has

already been

Indeed, in many cases the prior grant of

motion would

make it

without prior permission.

improper to

call such

All the proponent could

do would be

to line up the

witnesses at trial and

then ask

permission.
Although a
else is

symmetrical rule

equal, all else

rules in limine
_________
ruling is merely
might well have

is not equal

that certain

to offer the evidence

proffer

excluded unconditionally by

(other
witness
See
___

proponent has
circumstances
to court

McQuaig
_______

1987).3

v.

here.

is

But
is

and

not

bring the

the evidence again

at trial.

F.2d

1298,

same here

need

to

we think

issue for appeal

being unchanged)

is the

evidence

a pretrial order, then

and proffer

The result

and

the

the proponent

at trial in order

adequate

all

a court

Fed. R. Evid. 103(a).

preserved the

McCoy, 806
_____

Where

excluded but

tentative or qualified, then

the pretrial

that the

preferable if

evidence is

preserve an appeal on the issue.

where

may be

1301-02 (5th
where the

Cir.

in limine
_________

____________________
3Preserving the claim of error based on exclusion of
evidence requires an adequate proffer, so that the trial and
appellate courts know what evidence is at issue.
Fed. R.
Evid. 103(a).
There may also be cases where a change in
circum-stances, after the in limine ruling but before trial,
_________
might make it unreasonable for the proponent to rely on the
solely in limine ruling to preserve the issue (a new basis
__________
for admissibility might arise or the court's initial reason
for exclusion might be mooted).
-8-8-

order preceded the

first trial because no one

disputes that

the same order governed the second trial.

Needless

to say, most district judges are very cautious

about making a definitive ruling in limine that evidence will

_________
not be received at trial.
that many issues

Trial judges know better than most

are best resolved in context

and only when

But here, as happens from

time to time,

finally necessary.

the trial judge did rule definitively that the evidence would
not be

admitted.

were apparently
circumstances
have
any

The

proffer was adequate since

available to

the court.

And no

the tapes
change in

occurred after the in limine ruling that might

_________

affected the controlling

doubt on

the trial

ground for exclusion

judge's intention

or cast

to abide

by the

original ruling.
Thus we turn
driving tapes.
argue it.

to the merits of the

ruling excluding the

The oral ruling was terse ("You don't have to

I'm not

going to let

it in.") but

the district

judge had a written motion from Fusco, and a written response

from

General Motors, and made the ruling only after allowing

both

sides

to argue

their

points

orally.

Fusco's

main

objection was that

adequately
to state

the taped scene on the test track did not

replicate the conditions of the accident.

the obvious, no

occurred when a

one claimed that the

jury-rigged cotter pin

Merely

accident had

was pulled from

ball stud by a wire leading into the passenger seat.

the

Another

-9-9-

facially obvious difference

is that the test car

was driven

by an experienced driver who expected the break to occur.

General Motors readily admitted that the conditions were
not

the same but argued that the tape was admissible to show

general scientific
went

to

weight and

argument on appeal,
burden was

principles and
not

that the

admissibility.4

dissimilarities
It

adding that under Fed. R.

upon Fusco (as

the opponent of the

repeats this
Evid. 403 the
evidence) to

show that prejudice substantially outweighed probative value.

General Motors says that not only did Fusco fail to show that
the dissimilarities were important but, in addition,
Motors'

General

own experts would have said that the dissimilarities

were not significant.

The problems raised
interesting

by demonstrations of this

and important.

kind are

The test track replication shown

on the driving tapes (this court was furnished with copies of

the tapes) is vivid and pertinent: one sees, in a way that no
words could capture, the tire wheel flip out of alignment and
the tire then dragging on the
that such an

track.

The impression left is

accident would leave a tire

streak, as claimed

____________________
4General Motors does not claim that the indoor portion
of the tape was admissible independently; and indeed most of
the indoor portion was merely to lay the groundwork for the
test.
The indoor portion did show Ulman using a straw, in
place of the stud, to show how the stud could be bent by an
impact on the rear portion of the wheel, but General Motors
does not claim that this brief sequence justified the tape,
and it could easily have been replicated in court with a
mock-up.
-10-10-

by General Motors, and

that the car

and drag

sharply off the

than to veer

asked whether

a look

likely answer yes.

at the tapes

is more likely to
road.

would be

flop

lay juror,

helpful, would

The

case law

in this

area

is muddled,

expect, but the tendency of the court is to

as one

might

treat this class

of demonstrative evidence more skeptically than would the lay

juror.

The

concern lies not with

issue would
the test

be largely the same if

track

for

deliberate recreation
Where

use of tape or

that

live

the jurors were taken to

demonstration)

of an event

recreation

film (the

but

under staged

could easily

actual occurrence, courts have feared

seem

to

with

the

conditions.
resemble the

that the jurors may be

misled because they do not fully appreciate how variations in

the

surrounding

conditions,

as

between

the

original

occurrence and the staged event, can alter the outcome.

In such
this

one,

cases the
has been

conditions,

solution of

to call

or to stress

Cir.

E.g.. Swajian v.
____ _______

1990); see
___

1 J.

This case

including

similarity in
of the trial

where similarity is not shown,

General Motors, 916 F.2d 31

______________

Strong, McCormick on Evidence

______________________

(1992) (collecting cases,

Motors).

for substantial

the great discretion

judge to exclude the evidence

or both.

many courts,

a number of which

law largely

(1st
202

involve General

undercuts General

Motors'

claim that the burden lay with Fusco to show undue prejudice;

-11-11-

instead,
loosely

courts have created

appended to Rule

showing of

substantial

a doctrine, predating

403, that requires

similarity in

and now

a foundational

circumstances.

Cf.
___

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786

_______
_________________________________
(1993)

(reliability requirement

for

expert testimony

held

implicit in Rule 702).

Of course
flexible

the concept

one, and

demonstration and
vary greatly

ought

of substantial
to

the dangers

depending upon

trial judge enjoys

the circumstances
occurred in

be, for

similarity is

the

benefits of

the

the jury

will

of misleading
the facts.

We think

that the

great discretion in this area.

were not similar: as in

controlled conditions,

But here

Swajian, the test

_______

on a

test track

with a

driver expecting the occurrence, and with a doctored piece of

equipment rather than
36.

General

similarity,

one that actually broke.

Motors does
despite

its

not

916 F.2d at

seriously claim

reference

to

the

substantial

testimony

its

experts would have given.

Instead,
designed
illustrate

not

General Motors says

to

recreate

the

general "scientific

that the tapes

accident

but

here were
rather

principles," presumably

to
the

behavior of a car with a disconnected ball stud.

"[w]hen this

[scientific

courts often do
only whether

principles]

ask not about

the test

label

Admittedly,

is

attached,"

similarity of conditions

was properly

conducted.

but

McCormick,
_________

-12-12-

supra, at 866.
_____

We think it would be a

great stretch to call

the tapes an abstract demonstration of scientific principles,

but the critical point
us

is whether

appearance to

is not one of labels.

the demonstration

is

the original accident

misunderstanding by the jury, for

The issue for

sufficiently close
to create

the risk

in
of

it is that risk that gives

rise to the special requirement to show similar conditions.5

Here the test track demonstration was rife with the risk
of
said

misunderstanding.

Whatever

Fusco's counsel

or experts

to the jury about differing circumstances, the drama of

the filmed recreation could easily

distinctions.
recreation

Our

case

in Swajian

is

overcome the logic of the

scarcely

involving

different

a broken

rear

than
axle in

the
a

_______
similarly staged demonstration
affirmed

the

pointing to

trial
"the

judge's

sound and

judge" in policing

by General Motors.
exclusion

of

We there

such

broad discretion

evidence,

of the

such videotaped evidence. Id. at

___

trial
36.

We

reaffirm here the principle and the result.

III.
The second issue on appeal
trial

judge to exclude

concerns the decision of the

an additional videotape

prepared by

____________________
5Scientific principles, when demonstrated in a fairly
abstract way, are quite unlikely to be confused with the
events on trial.
The more troublesome cases, however, are
ones like this one where some principles of some kind may be
demonstrated but in a fashion that looks very much like a
recreation of the event that gave rise to the trial.
-13-13-

General Motors
This tape

was prepared on

Fusco on October
the

after the first

trial ended in a

October 2, 1993, and

14, 1993, approximately three

first trial and one

month before the

hung jury.
provided to
months after

second.

The tape

shows a slow motion, close-up

filmed at close

range.

On the

and separate from the ball.

After

impact fracture of a ball stud

receiving the

tape one sees the

There is no commentary.
tape, Fusco

limine to exclude it, together with

______
of the accident

immediately moved

in
__

a newly created "survey"

site that General Motors had

district court

stud bend

allowed the survey to

tendered.

The

be used but ruled that

the tape would not be admissible, stating:

With regard to the importance of the
exhibit to the
defendant, the Court
cannot fathom how defendant could not
present a complete case to the jury
without the videotape as defendant has
already done so at the first trial.
Finally, the Court does not doubt that
plaintiff would have a difficult time to
formulate a proper response given the
obvious lack of time before retrial. It
is primarily for this reason the Court
obviates defendant from submitting the
videotape exhibit.
On

appeal,

General

Motors does

not

spend

much time

explaining the significance of the tape, saying only that

was "to show
during

an

how the
overload

part in

question bends

situation."

Instead,

prior to
General

it
and

Motors

argues with some force that the district judge has no general
authority

to

exclude

exhibits

-14-14-

merely

because

their last

minute

appearance will

side.

This exclusion,

exercise of the

inconvenience
says

or

General

burden the

Motors, was

court's accustomed power over

an interference with

the right of counsel

other
not

an

discovery but

to offer evidence

at trial.
Of course, a trial court could readily exclude a witness
or

exhibit if

some previous

order had

identification and the proponent

set a

deadline for

had without adequate excuse

failed to list the witness or exhibit.

But here the deadline

for listing exhibits at the second trial did not expire until
one week before trial, well after the tape was tendered.
is there

any general rule prohibiting a

new evidence

at a second

the

See
___

issue.

F.R.D. 237, 238

Cir. 1950).
Motors

party from offering

trial, although few

Lauritzen v.
_________

Nor

cases address

Atlantic Greyhound Corp., 8

_________________________

(E.D. Tenn. 1948), aff'd 182

_____

F.2d. 840 (6th

In fact, the district court here allowed General

to introduce

at

the second

trial

a newly

created

survey of the accident site.

Nevertheless, we think

that the tape did

district court's authority over discovery.

a stand alone exhibit: it made

implicate the

The tape was not

sense only in the context

of

expert testimony to be offered by General Motors.

or experts would

have had to explain the

An expert

tape's meaning and

would have used it to bolster inferences drawn by the expert.

Indeed, even now it is not clear to us precisely how the tape

-15-15-

was expected
will

assume

to help
that

General Motors'
it

was

either

experts, although
intended

to

we

counter

plaintiffs' expert analysis or to make more plausible General

Motors'

account of

how

the ball

stud

retrieved from

the

accident was actually damaged.

The
view.

connection of the tape

Fusco's

discovery

production of "[a]ny and all

to discovery now comes into

had

included

If the

tape had existed

this request, the tape would

be

think

specified

We

in Fed.

R. Civ.

that the
P. 26(e)

duty

all expert

when General Motors

first responded to
produced.

for

. . . videotapes" taken by, for

or for the benefit of Ulman, Willis, and "any and

consultants."

request

have had to

of supplementation

also required

General

Motors seasonably to produce any later developed videotape of

any importance intended for use by its expert at trial.

The "duty to supplement" provisions are not
they might be,
A

party is

responses

and the authorities are

required
only

surprisingly sparse.

to supplement--that

in

limited

as clear as

instances

is, update--prior
but

they

include,

pertinently, responses

(1) concerning "the substance" of the

expert's testimony and

(2) where new information

failure
Fed.

to amend

R. Civ.

would

comprise

P. 26(e)(1),

generously, in light

(2).

"a knowing
We

exists and

concealment."

have read

Rule 26(e)

of its dual purposes, the "narrowing of

-16-16-

issues

and

elimination

of

surprise."

Johnson
_______

v.

H.K.
____

Webster, Inc. 775 F.2d 1, 7 (1st Cir. 1985).6

_____________
We

think that

embrace the tape in

these

clauses

this case.

It was

are

broad

enough

to

closely connected to

the expert's testimony, it was not previously known to Fusco,

and

General

unimportant

Motors

can

since it claims

undermined the entire trial.

covered

by General Motors'

discovery rules.

describe

the

that the exclusion

tape

as

of the tape

Thus we think that the tape was

obligation to produce

under the

In our view--and this is the final step in

our reasoning--the
implicit

hardly

discovery obligation carries

authority of

the district

court

with it the

to exclude

such

materials when not timely produced even if there was no rigid

______
deadline for production.
There
unduly

if

is
one

no

suggestion that

counts

only

the

General

Motors

brief delay

creation of the tape and its tender to Fusco.

considerations
must

be

delayed

between

the

But practical

suggest that the authority of the trial judge

broader:

otherwise

it

would

count

as

adequate

supplementation to create a critical new expert exhibit a day

before trial and

tender it on the

morning of trial.

It is

____________________
6The
knowing-concealment clause
does not
require
fraudulent intent; rather it is designed to protect a party
who reasonably believes "that the change that has made an
answer no longer accurate is known to his opponent or that it
is a matter of no importance."
Fortino v. Quasar Co., 950
_______
___________
F.2d 389, 396 (7th Cir. 1991).
-17-17-

common experience that experts,

increase their

efforts as

suggest any general

like lawyers themselves, may

trial approaches,

and we

bar to an exhibit created

for the expert after initial discovery.

do not

in good faith

But we do think that

where a discovery request for the expert's materials has been

made, the later attempt to

add new exhibits designed for the

expert's use at trial is subject to reasonable supervision by

the trial judge.
This circuit adopted this very principle in Thibeault v.
_________
Square D Co., 960 F.2d 239, 245 (1st Cir. 1992).
____________
differences
sound

exercise of

existence.
this

between that

fashion.
Motors

authority

We emphasize that

case rests

request

the

case and

on

and the

this one
to

exclude and

of a

cannot ordinarily

offer evidence just because the other

and disadvantaged.

Once

not

the
its

specific discovery

to supplement

Absent some such obligation, we

that courts

relate to

our ruling in Thibeault and in

_________

the existence

explicit duty

The factual

the

it

in timely

agree with General

tell

counsel not

to

side will be surprised

court's

authority

to

exclude here is conceded, its exercise in this case cannot be

faulted.

The

impact tape was

known to Fusco barely

a technical

a month before trial.

experiment made
To

prepare for

cross-examination might
Fusco of one

or more

have required
of the defense

additional preparation by

further discovery

by

witnesses, as well

as

Fusco's experts.

The

tape itself

-18-18-

is

pictures without words; even to determine the precise use

General Motors planned to make of it would have required more

information.

The

district court was

entitled to find

that

the tape would have compromised Fusco's pretrial preparations

and

that

the

supplementation

came

too

late

to

be

"seasonable."
IV.
General Motors' remaining claim of error also relates to
the district court's authority over discovery.
trial

Fusco's

experts made

recovered

from Fusco's

based

his

on

car

examination

electron microscope.
available to General

use

of

the

and offered
of

the

At the first

broken ball

stud

Walson's testimony

part

That part, in Fusco's

under

a scanning

possession, was

Motors prior to the first

trial but it

chose not to make such an examination of its own.

study of the

surface of the broken part might

In theory,

cast light on

whether the part had broken from impact or fatigue.

Taking
General

note of Walson's

testimony in the

first trial,

Motors in preparation for the second trial requested

that the

part, and an

Walson for

additional Pontiac ball stud

comparison, be

Motors wanted
destructive

made

available to

its own metallurgist

examination

by scanning

it.

to make a

used by
General

similar, non-

electron

microscope.7

____________________
7General Motors proposed to have one of its first-trial
experts conduct the examination but, when Fusco questioned
his qualifications, General Motors proposed to have another
-19-19-

Fusco refused to
to compel

produce the parts and General

production.

The

Motors moved

district court wrote

a ten-page

order denying General Motors' motion.

In its order, the court said that General Motors knew as
early as

May 1991 that

examination

Fusco intended to offer

by scanning electron microscope.

evidence of

The court also

said that the new examination

was intended as the

predicate

for new expert testimony by General Motors, testimony unknown

to Fusco when General Motors' experts
this last minute

were deposed, and that

addition imposed an unfair burden

on the eve of the second

trial.

on Fusco

The court also referred

to

General Motors' development of new evidence on the eve of the

first trial,
Fusco.
sought

which the court

Finally, it

had permitted over

expressed concern

to overwhelm plaintiff

protest by

that General

with its unlimited

Motors

legal and

financial resources.
There is no doubt here of the district court's authority
to deny further discovery.
exists

against

new evidence

discovery deadline
court had
period.

had long

no automatic

As noted above, no automatic bar

at

second

since passed

obligation to

trial; but
and the

reopen the

the

district
discovery

E.g., Dabney v. Montgomery Ward & Co., 761 F.2d 494,

____ ______
_____________________

____________________
expert whose qualifications were conceded participate in the
examination and testify at trial.
Whether one views the
testimony as that of a first-trial expert or a new expert
does not greatly affect the matter.
-20-20-

498

(8th Cir.),

matter

was one

judge, and the

cert. denied,
____________
for

474

the informed

breadth of that

trial mechanics and

U.S. 904
discretion

(1985).
of the

v. K Mart Corp.,
____________

1989); Mack
____

v. Great Atlantic & Pacific Tea Co.,

__________________________________

of review,

the district

892 F.2d 1076, 1082

Measured

court's quite

pre-

E.g., Fashion
____ _______

House, Inc.
___________

179, 186-87 (1st Cir. 1989).

trial

discretion in managing

discovery is very great.

The

(1st Cir.
871 F.2d

against this standard

thorough explanation

for denying production easily passes muster.

Our own review of the record does not suggest to us that
General Motors'
any attempt
was

request was made

to abuse its

seeking

$8

million,

financial power.
and

perceived in

the first trial

expert about

the scanning

weight.
the

Motors'

as

defense

after all

counsel

apparently

that the testimony

by Fusco's
carried some

for the trial judge to balance

the timing

earlier knowledge, the

or reflected

Fusco

electron microscope

But it was primarily

factors, such

in bad faith

of

the request,

possible burden on

General
Fusco of

preparing to confront a new expert, and the importance of the

testimony.

The balance struck

not an abuse of discretion.

Affirmed.
________

here by the trial

judge was

-21-21-