USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2305
WILLIAM CAMERON, ET AL.,
Plaintiffs, Appellants,
v.
OTTO BOCK ORTHOPEDIC INDUSTRY, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________

Albert E. Grady with whom Office of Albert E. Grady was on br

_______________
_________________________
for appellants.
Ronald M. Davids with whom Michelle I. Schaffer and Campbel
_________________
_____________________
_______
Associates, P.C. were on brief for appellee.

________________
____________________
December 30, 1994
____________________

BOUDIN,
Cameron,

Circuit Judge.
______________

of

1990,

William

whose left leg had been amputated below the knee in

1965, was fitted with

assembled

by

originally

sold by

Mr.

Orthopedic Industry,
artificial

In March

a prosthetic leg.
Cameron's

prosthetist

various suppliers,
Inc. ("Otto Bock").

limb featured

The

an Otto

prosthesis was
from

components

including

Otto Bock

Specifically, the

Bock pylon,

which

is an

aluminum tube that substitutes for the missing portion of the

leg, and an Otto Bock

clamp, which attaches the pylon to

artificial foot manufactured and sold by another company.

an

On May 28,

1991, Mr.

pylon in his artificial

alleged
damage

that he
as

Cameron fell when

leg broke into two pieces.

suffered a

result

jurisdiction, Mr.

the Otto

of

fractured pelvis

the

fall.

Cameron sued

charging negligence and

breach of warranty.

Cameron

and emotional

Based

Otto Bock in

Bock

on

diversity

federal court,
His wife,

Kay

Cameron, claimed loss of consortium.

The

case

was

tried by

attributed the failure of

Camerons

claimed

negligently

screwed too

that

the

pylon

pylon to the

against overtightening by

1993.

and

designed.

the prosthesis

tightly, by

jury in

Each side

the leg to a different cause.

and defectively

testified that
fastened the

clamp

Otto Bock's

broke because the

clamp had been

been
expert

screw that

"overtorqued," or

the prosthetist, despite

Otto Bock.

had

The

a warning

The Camerons said that

-2-2-

the instructions should

have been more

detailed.

The

jury

found in favor of Otto Bock and the Camerons appeal.

In this court, the Camerons' claims of error concern two
rulings by
them.

the district court excluding

The first ruling excluded

evidence offered by

several so-called "product

failure reports" sent from prosthetists to Otto Bock.

excluded

reports, all

dated after

detail

the alleged failures

second

group

of

excluded

Customer" letters,
the

Cameron

of other prosthetic
documents

sent by

accident,

Mr. Cameron's

that

accident,
legs.

consisted

Otto Bock to
provided

These

of

The
"Dear

prosthetists after
specific

torque

measurements to be used when screwing the pylon to the clamp.

1.
page

The product

failure reports

in question

standardized forms that a prosthetist

order to obtain

must fill out in

a refund or credit for an Otto Bock product.

The forms were designed

prosthetists

are one-

who,

in

by Otto Bock, but were

turn,

typically

completed by

obtained

information from conversations with their patients.

their
The form

required information about the nature of the problem, the age

of the prosthesis, the demands
the patient's

placed on the prosthesis, and

activity when the accident

occurred; the form

did not inquire directly about the cause of the problem.

The

trial

judge

allowed

product failure reports that

the

Camerons

to

introduce

were dated before Mr. Cameron's

______

-3-3-

accident, solely to

show notice

The trial

judge excluded

after Mr.

Cameron's accident and

on the part

of Otto

several reports that

the Camerons claim to be error.

Bock.

were created

it is this

exclusion that

There is some

doubt whether

the Camerons adequately raised and preserved this claim--Otto

Bock says they did not.

However,

rest

this ground

its

exclusion on

exclusion on

the

merits, we

the district court did not

need

and,

as we

not decide

uphold the
whether

the

Camerons waived the issue.

The

district

court

held

that the

exclusion

of

the

reports was proper because they were irrelevant, because they

did

not fall within any

because

they

commonly say
for

an

were

more

exception to the
prejudicial than

that we review all

abuse

of

hearsay rule, and

discretion.1

probative.

We

three determinations solely

This

may

be

mild

overstatement since evidentiary rulings can sometimes contain

buried rulings of law reviewable

de novo, or basic
_______

of fact subject to

clear error review.

distinctions about

the standard

findings

In this case,

of review would

fine

not affect

the outcome.
Unlike the pre-accident reports,
show

notice

on the

part

of Otto

which were admitted to

Bock,

the post-accident

____________________
1United States v. Brandon, 17 F.3d 409, 444 (1st Cir.
_____________
_______
1994) (relevancy determinations); Elgabri v. Lekas, 964 F.2d
_______
_____
1255, 1261 (1st Cir. 1992) (hearsay and business records
exception); Raymond v. Raymond Corp., 938 F.2d 1518, 1523
_______
_____________
(1st Cir. 1991) (more prejudicial than probative).
-4-4-

reports

describe

Cameron's
Neither are

incidents

accident,

that

and thus

they relevant

have

took
no

as evidence

place

after

bearing on
of a

Mr.

notice.

design defect.

The reports of other incidents would be probative evidence of

the

existence

occurred under

of a

design

defect

only if

the

circumstances substantially similar

surrounding Mr. Cameron's accident.

Co., Inc., 874 F.2d

incidents
to those

Vincent v. Louis Marx &

_______
____________

36, 43 (1st Cir. 1989); McKinnon v. Skil

_________
Corp.,
_____

________

638 F.2d 270, 277 (1st Cir. 1981).

____

The circumstances

of the post-accident incidents are entirely unknown.

We

also think that there

district

court's

alternative

contained inadmissible hearsay.

pre-accident reports

was provided

conclusion that
This did

offered solely

order to show defect,

Yet it appears

is an adequate

basis for the

the

reports

not matter as

to show notice;

the truth of the reports

to

but in

is critical.

that the information contained in the reports

to Otto Bock from

themselves derived

independent prosthetists who

some or all of the information from their

own patients.
While the reports may be part of the business records of
Otto

Bock

in

colloquial sense,

that

admissible information contained in the

is a non-party to the business.
the report must be made by
a regularly conducted

does

not

render

records whose source

Under Fed.

R. Evid. 803(6),

a person acting "in the course of

business activity."

-5-5-

It is quite clear

that the prosthetists' patients

business.

The case is

are not part of

akin to Petrocelli
__________

F.2d 286, 290 (1st Cir. 1982),

patient who related
`business'

which

v. Gallison, 679
________

where we held that a hospital

his medical

routine in

Otto Bock's

history "is not

he is

part of

individually a

regular

participant."
We thus have
records

no reason to consider whether the business

exception

might

generated solely by the

own businesses.
can

be

apply

the

information

were

prosthetists in the course of

See Fed. R.
___

layered).

if

Evid. 805 (hearsay

Conversely,

we

need

not

their

exceptions
pass on

the

suggestion that the adverse interests of the prosthetists--in

obtaining
might

refunds and

permit

warding off

exclusion

themselves generated as to

of

any

lawsuits against
business

records

the cause of a failure

them-they

under the

exclusion for business records whose source "indicate[s] lack

of

trustworthiness."

Fed. R.

Evid. 803(6).

See Palmer v.
___ ______

Hoffman, 318 U.S. 109 (1943).

_______
Since both the relevance and hearsay objections are well
founded,
further

we need not consider in detail the district court's

ruling that

relevance.

prejudice would

Fed. R. Evid. 403.

We do

substantially outweigh
note that the lack of

proof of similarity of circumstances reinforces

any decision

to exclude under

Rule 403.

Additionally, in

balancing of prejudice and

this kind

of

relevance, abuse of discretion is

-6-6-

undoubtedly

the

test on

review,

and

Rule 403

judgments,

calling on the district court's "feel" for the situation, are

quite unlikely to be disturbed.
2.
judge's

The Camerons'
exclusion

of

other

challenge

is

letters

sent by

Otto

prosthetist customers after Mr.

to

the

Bock

Cameron's fall.

trial
to

its

These "Dear

Customer" letters specified, inter alia, the specific torque

___________
levels that should be

observed in screwing the pylon

clamp in prosthetic limbs like Mr. Cameron's.

letters, if sent earlier,
accident.
evidence

The
that

Arguably these

would have prevented Mr. Cameron's

Camerons
Otto

to the

Bock

contend

that

breached

such
its

letters

are

warranties

of

merchantability and fitness for a particular purpose.

The trial judge excluded the

letters on the ground that

the furnishing

of precise

torque measurements was

measure undertaken after the accident, and

a safety

thus inadmissible

under Federal Rule of Evidence 407, which provides:

When, after an event, measures are
taken which, if taken previously, would
have made the event less likely to occur,
evidence of the subsequent measures is
not admissible to prove negligence or
culpable conduct in connection with the
event.
This rule does not require the
exclusion
of evidence
of subsequent
measures
when
offered
for
another
purpose,
such as
proving ownership,
control, or feasibility of precautionary
measures,
if
controverted,
or
impeachment.
The Camerons argue first

that the Dear Customer letters

-7-7-

should

have

providing
control
_______

been

admitted

the torque
Otto Bock

These exceptions
control are

to

show

the

measurements earlier

exerted

over its

apply, however,

"controverted."

only

feasibility
___________
and to

of

show the

prosthetist customers.
"if" feasibility

The feasibility of

or

giving the

torque

measurements was

defense offered

certainly

not

controverted.

to stipulate to feasibility,

Raymond Corp., 938 F.2d 1518

_____________

The

cf. Raymond v.
___ _______

(1st Cir. 1991);

and when the

Camerons rejected the offer, apparently for tactical reasons,

the

district

court instructed

the

jury

that the

further

information could feasibly have been distributed.

"Control" is also a non-issue.

Otto Bock never disputed

that it provided advice to the prosthetists who assembled its

products.

Nor

measurements
position
never

did

it deny

might

was that

that

have avoided
the screw

providing more
the accident;

indeed, its

was overtightened

provided specific numbers

prior to the

detailed

and

it had

accident.

If

the Camerons justify the introduction of the letters in order

to show causation, as their brief implies, then we think that
the "if controverted" condition is not satisfied.
The

Camerons do

not

appear to

be

prosthetists were effectively employees

it

might

be

Cameron's own

vicariously

liable

for

claiming that

of Otto Bock so that

the

prosthetist on a master-servant

if the Camerons had advanced such

-8-8-

the

negligence
theory.

of
Even

a claim, the raw fact that

Otto

Bock provided directions for the use of its product was

undisputed

and that is the

most that the

entitled to derive from the letters.

doubt whether

Camerons would be

There may also be some

"control" in the master-servant

sense is what

the drafters of Rule 407 had in mind, but we need not explore
this interesting issue.
The Camerons
should

have been admitted

warranty--i.e., as
____
were

also argue that the

as direct

evidence

defective--because,

that the

under

Dear Customer letters

evidence of

breach of

Otto Bock

components

Massachusetts

evidence might be admissible in a state trial.

however, has

long held that

and specifically

Rule 407,

the Federal Rules

apply in

because they "address procedural

by Congress, [and]
unless they
procedure."

law,

This circuit,
of Evidence,

diversity proceedings,

matters, [were] duly passed

shall be presumed constitutionally

cannot rationally

such

be characterized as

valid

rules of

McInnis v. A.M.F., Inc., 765 F.2d 240, 244 (1st

_______
____________

Cir. 1985). Compare Fed.

________

R. Evid. 501 (providing that

state

privilege law governs in diversity cases).

Finally,
applies,

the

by its

Camerons argue
terms it

that,

even

prohibits evidence

if Rule

407

of subsequent

remedial
conduct in

measures

only

"to

prove negligence

connection with the

event."

The

or

culpable

Camerons argue

that breach of warranty, according to Massachusetts law, does

not constitute "negligence or culpable conduct."

We recently

-9-9-

rejected this very argument in Raymond

_______
F.2d

1518, 1522

(1st Cir. 1991).

v. Raymond Corp., 938

_____________

The Camerons

urge us to

reconsider Raymond, but they offer us no grounds for doing so

_______
that were not before this court in that case.
Affirmed.
_________

-10-10-