Poulin v. Greer ( 1994 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 93-1803

    GERALD POULIN AND BRENDA POULIN,

    Plaintiffs, Appellants,

    v.

    ALEXANDER MACDONALD GREER, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

    ____________________

    Before

    Torruella, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    and Selya, Circuit Judge. _____________

    ____________________

    Paul W. Chaiken, with whom Robert C. Granger, Brent A. Singer, ________________ _________________ _______________
    and Rudman & Winchell were on brief for appellants. _________________
    Harrison L. Richardson, with whom John B. Lucy and Richardson, _______________________ ____________ ___________
    Troubh & Badger were on brief for appellees. _______________


    ____________________

    March 24, 1994
    ____________________






















    BOWNES, Senior Circuit Judge. This diversity BOWNES, Senior Circuit Judge. ______________________

    action arises out of a motor vehicle accident. In the pre-

    dawn of a late summer day in Maine, plaintiff-appellant1

    Gerald Poulin sustained serious injuries after driving his

    truck into the flatbed of a tractor-trailer which was

    blocking the road. Subsequently, Poulin sued the tractor-

    trailer's driver, Alexander Greer, and its owner, McConnell

    Transport, Ltd. A jury found defendants not liable on the

    ground that Greer's negligence was not the proximate cause of

    Poulin's injuries.2 We affirm.

    I. I.

    BACKGROUND BACKGROUND __________

    It was a clear, dry morning on September 11, 1990.

    Sometime before 5:00 a.m., while it was still dark, Greer was

    travelling south along Route 191 in Maine, hauling a load of

    baled straw. Having missed his turn-off, Greer attempted to

    turn around in the driveway of Ray's Country Store which was

    ____________________

    1. More precisely, plaintiff-appellants in this action are
    Poulin, who seeks damages for his personal injuries, and his
    wife Brenda, who seeks damages for loss of consortium.

    2. Although the special interrogatories submitted to the
    jury instructed the jury to stop answering questions if it
    found that Greer's negligence was not the proximate cause of
    Poulin's injuries, the jury ignored this directive and went
    on to find that Poulin's negligence was the proximate cause
    of his injuries, and that Poulin's negligence was equal to or
    greater than Greer's. Under Maine law, the latter finding
    would have been sufficient to defeat plaintiffs' claim. See ___
    Me. Rev. Stat. Ann. tit. 14, 156 (West 1980) ("If such
    claimant is found by the jury to be equally at fault, the
    claimant shall not recover.").

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    located off the west side of the road. While Greer was

    executing this maneuver, the rear wheels of his tractor

    became stuck in a drainage ditch off the east side of the

    road. The tractor of Greer's truck had turned around and

    faced north; the flatbed or trailer portion of the truck sat

    at a forty-five degree angle across the road, blocking both

    lanes of traffic.

    Greer turned on the yellow revolving beacon atop

    the tractor, as well as its hazard lights. The truck's

    headlights were on low beam, facing oncoming, i.e., ____

    southbound, traffic. Although Greer testified that he had

    reflective triangles in the truck, he never placed them on

    the road as a warning to approaching traffic. The trailer

    had a reflector on both sides of its base and on each back

    corner.

    At approximately 4:40 a.m., Horace "Denny" Lyon

    arrived at the scene. Lyon was travelling north on Route 191

    when he saw the yellow revolving beacon of Greer's truck from

    about 200 yards away. Initially Lyon thought that a

    "wrecker" was towing a disabled car off the road. He slowed

    down as he approached. Once Lyon was within seventy-five

    feet of the truck, he realized that there was a flatbed

    trailer loaded with straw blocking the road. He pulled into

    the driveway at Ray's, stopped his vehicle, and spoke briefly





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    with Greer. After promising to call the police, Lyon went on

    his way.

    Shortly before 5:00 a.m., another driver

    encountered the jackknifed truck. Ricky Frye was travelling

    north on Route 191 when he saw a large black silhouette

    blocking the road about 100 yards in front of him. Before

    pulling into the driveway at Ray's, Frye noticed the rear

    reflectors on Greer's trailer. After getting out of his

    truck, Frye noticed that the yellow revolving beacon on

    Greer's truck and its headlights were both on.

    The crash occurred only minutes after Frye arrived

    at the scene. Both he and Greer, who were talking to each

    other outside of Ray's at the time, saw Poulin's car

    approaching. Unlike Lyon and Frye, Poulin was headed south

    on Route 191. Although they expected Poulin to see the

    truck, he apparently did not. Poulin neither swerved nor

    braked as he plowed head on into the flatbed full of straw.

    He suffered serious injuries.

    Plaintiffs commenced this diversity action in

    United States District Court for the District of Maine.

    After the jury returned a verdict in defendants' favor,

    plaintiffs appealed.

    II. II.

    DISCUSSION DISCUSSION __________





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    Plaintiffs seek a new trial on the grounds that:

    (1) the district court erroneously instructed the jury as to

    Greer's duties as a truck driver and erred by declining to

    give a missing witness instruction; (2) the district court

    abused its discretion by refusing to exclude the testimony of

    Carol Ricci as a sanction for defendants' alleged discovery

    violation; and (3) the district court abused its discretion

    in denying plaintiffs' motion to compel production of a

    photograph of the accident scene taken one year after the

    accident by a consultant retained by defendants.

    1. The Jury Instructions 1. The Jury Instructions _____________________

    Plaintiffs contend that the district court

    committed reversible error by failing to instruct the jury

    that, under Maine's comparative negligence statute, "[t]he

    factfinder must be told [that] . . . it should give

    consideration to the relative blameworthiness of the

    causative fault of the claimant and the defendant," and that

    "[d]eliberate disregard of safety rules must be judged more

    severely than merely imperfect reaction to a crisis." Wing ____

    v. Morse, 300 A.2d 491, 500 (Me. 1973). Because there was _____

    evidence that Greer had violated various state and federal

    safety regulations, plaintiffs claim that the jury could have

    found that Greer had deliberately disregarded safety rules,

    and that, therefore, his conduct should have been judged more

    severely than Poulin's.



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    Plaintiffs also maintain that the court's failure

    to instruct the jury as to two federal safety regulations was

    error. Specifically, plaintiffs maintain that the district

    court should have instructed the jury (1) that Greer could

    lawfully drive his tractor-trailer only if he was satisfied

    that he had three emergency reflective triangles with him

    ready for use, see 49 C.F.R. 392.8, 393.95(f)(2)(i) ___

    (1992); and (2) that if Greer's attempt to turn around had

    caused property damage of any kind, he had a duty to take all

    necessary precaution to prevent additional accidents at the

    scene. See 49 C.F.R. 392.40 (1992). ___

    Finally, plaintiffs argue that the court's failure

    to give a missing witness instruction constituted reversible

    error. The court declined to instruct the jury that it could

    draw an adverse inference from the fact that Greer did not

    testify at trial. Greer lived beyond the subpoena power of

    the court, and chose not to attend the trial. His deposition

    testimony was entered into evidence.

    In response, defendants contend that the failure to

    give plaintiffs' requested instructions was not erroneous,

    but, in any event, plaintiffs waived their challenges by

    failing to comply with Fed. R. Civ. P. 51.

    Before the district court charged the jury, it

    received proposed instructions from the parties and held a

    pre-charge conference. At the conference, the court informed



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    the parties which portions of their proposed instructions it

    would read. Plaintiffs duly stated their objections to the

    court's omission of various portions of their proposed

    charge, including those portions at issue on this appeal.

    After the court instructed the jury, the judge called counsel

    over to the sidebar and asked: "Okay. First, in addition to

    any objections previously made, do you have an objection you

    wish to make as to the general content of the instructions at

    this time?" Plaintiffs' counsel replied, "No."

    Rule 51 of the Federal Rules of Civil Procedure

    provides that, "[n]o party may assign as error the giving or

    failure to give an instruction unless that party objects

    thereto before the jury retires to consider its verdict. . .

    ." "We have construed the Rule's requirement that a party

    must object ``before the jury retires to consider its verdict'

    to mean that the objection must be made after the

    instructions are given to the jury." Smith v. Massachusetts _____ _____________

    Inst. of Technology, 877 F.2d 1106 (1st Cir.), cert. denied, ____________________ _____ ______

    493 U.S. 965 (1989); see Phav v. Trueblood, Inc., 915 F.2d ___ ____ ________________

    764, 769 (1st Cir. 1990); McGrath v. Spirito, 733 F.2d 967, _______ _______

    968 (1st Cir. 1984). Even if plaintiffs' requested

    instructions had been proper, counsel's failure to object to

    their omission after the charge constitutes waiver of the

    objection. See Smith, 877 F.2d at 1109; Wells Real Estate, ___ _____ ___________________

    Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 ____ ________________________________



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    (1st Cir.) (collecting cases), cert. denied, 488 U.S. 955 _____ ______

    (1988).

    The record here is clear: no objection was made by

    plaintiffs after the charge. The district court's post-

    charge indication that the parties' prior objections would be

    preserved is of no help to plaintiffs. "A trial court's

    statement after the charge that objections made prior to it

    will be saved does not absolve an attorney from following the

    strictures of the rule. Objections cannot be carried

    forward. The rule is binding on both the court and attorneys

    and neither can circumvent it." McGrath, 733 F.2d at 969; _______

    see Elgabri v. Lekas, 964 F.2d 1255, 1259 (1st Cir. 1992) ___ _______ _____

    ("It is the obligation of trial counsel, as well as the trial

    court, to comply with the strict requirements of the Rule.").

    Because of plaintiffs' failure to comply with Rule

    51, we review the trial court's instructions only for plain

    error. The "plain error" rule "``should be applied sparingly

    and only in exceptional cases or under peculiar circumstances

    to prevent a clear miscarriage of justice.'" Wells Real __________

    Estate, 850 F.2d at 809 (quoting Nimrod v. Sylvester, 369 ______ ______ _________

    F.2d 870, 873 (1st Cir. 1966)); see Elgabri, 964 F.2d at ___ _______

    1259. Under the "plain error" exception, an erroneous

    instruction warrants a new trial only where the error

    "seriously affected the fairness, integrity or public





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    reputation of the judicial proceedings." See Lash v. Cutts, ___ ____ _____

    943 F.2d 147, 152 (1st Cir. 1991); Smith, 877 F.2d at 1110. _____

    Our review of the record reveals nothing

    exceptional about this case. It is evident that no "clear

    miscarriage of justice" has occurred, and therefore no "plain

    error" exists.3

    2. Refusal to Preclude The Testimony of Carol Ricci 2. Refusal to Preclude The Testimony of Carol Ricci ________________________________________________

    Plaintiffs contend that defendants violated their

    duty to supplement answers to plaintiffs' interrogatories

    pursuant to Fed. R. Civ. P. 26(e)(2)(B).4 Because of this

    ____________________

    3. In fact, we doubt if there was any error at all in the
    trial court's instructions. In reviewing a court's decision not to give a particular instruction, our duty is to
    determine whether the instructions as given tend to confuse
    or mislead the jury with regard to the applicable principles
    of law. Computer Indentics Corp. v. Southern Pacific Co., _________________________ _____________________
    756 F.2d 200, 205 (1st Cir. 1985). If the judge's
    instruction properly informs the jury of the applicable law,
    failure to give the exact instruction requested does not
    prejudice the objecting party. Service Merchandise Co. v. ________________________
    Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983). In the ___________
    present case the district court's instructions clearly and
    concisely explained the applicable law to the jury, while
    avoiding the repetitiveness of plaintiffs' proffered charge.
    Furthermore, we do not believe that the district court abused
    its discretion in refusing to give a missing witness
    instruction. See United States v. Arias-Santana, 964 F.2d ___ _____________ _____________
    1262, 1268 (1st Cir. 1992) (refusal to give a "missing
    witness" instruction reviewed for abuse of discretion).

    4. The applicable version of Fed. R. Civ. P. 26(e), in
    effect prior to December 1, 1993, provides in pertinent part:

    A party who has responded to a request
    for discovery with a response that was
    complete when made is under no duty to
    supplement the response to include
    information thereafter acquired, except .
    . . (2) A party is under a duty to
    seasonably amend a prior response if the

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    alleged violation, plaintiffs maintain that the district

    court should have sanctioned defendant by excluding the

    testimony of Carol Ricci, and that the court abused its

    discretion by not doing so.

    During discovery, defendants were asked to provide

    plaintiffs with the name of every witness known to them who

    could provide information about the accident. Defendants

    were also asked whether each witness named "gave any

    statement or account, either oral or in writing, of his or

    her knowledge of the alleged occurrence." If a witness had

    made any such statement, plaintiffs asked the defendants to

    supply the substance of the same. Plaintiffs also asked

    defendants whether they, or any of their agents, had received

    any oral or written statements from anyone who had knowledge

    or information with respect to the accident, and if so,

    defendants were asked to supply the name of the person making

    the statement and its substance. In their answers to both

    lines of inquiry, dated August 1992, defendants named only

    Greer and Frye. It is undisputed that at the time defendants

    responded their answers were complete.




    ____________________

    party obtains information upon the basis
    of which . . . (B) the party knows that
    the response though correct when made is
    no longer true and the circumstances are
    such that a failure to amend the response
    is in substance a knowing concealment.

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    In November 1992, after speaking with Ray Ketchen,

    the owner of Ray's Country Store, defendants learned that

    Lyon might have some information about the accident. Carol

    Ricci, a paralegal, contacted Lyon by telephone and spoke

    briefly with him. According to Ricci's notes, Lyon stated

    "that [the] truck was easy to see" because of its "light on

    top" and "running lights," and that "I seen it real easy when

    I came up to it in [the] road." Defendants did not

    supplement their answers to plaintiffs' interrogatories to

    include Lyon and his statement. It is unclear whether

    plaintiffs had spoken with Lyon prior to his conversation

    with Ricci. Shortly thereafter, however, Lyon was

    interviewed by plaintiffs and informed them he had spoken

    with Ricci. Defendants quickly learned that Lyon told

    plaintiffs that he had spoken with Ricci. By the time the

    trial commenced in May 1993, plaintiffs' counsel had met with

    and interviewed Lyon on at least three separate occasions.

    At trial, Lyon testified that, although he saw the

    yellow revolving beacon from a distance, the trailer of the

    truck, which was blocking the road, was not easy to see. In

    fact, Lyon testified that he did not see the truck until he

    was right on top of it.5 On cross-examination, Lyon denied

    that he told Ricci that the truck was "easy to see."


    ____________________

    5. On cross-examination Lyon explained that this meant
    approximately seventy-five feet away.

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    Defendants sought to have Ricci testify as a

    "rebuttal" witness. Plaintiffs objected to Ricci testifying

    because she was not listed on defendants' pre-trial witness

    list, and because defendants had violated their duty under

    Rule 26(e)(2)(B) to supplement their answers to

    interrogatories. The court rejected plaintiffs' arguments,

    and allowed Ricci to testify.

    Defendants argue that their failure to supplement

    was not a violation of Rule 26(e)(2)(B) because there was no

    "knowing concealment" on their part. They knew that

    plaintiffs had spoken with Lyon, and that plaintiffs had

    ascertained that Lyon had spoken to Ricci. Defendants,

    therefore, assumed that Lyon communicated to plaintiffs the

    same thing that he told Ricci. Under these circumstances

    defendants maintain that there was no "knowing concealment."

    In reviewing a trial court's ruling on whether a

    discovery-related rule was violated, the abuse of discretion

    standard controls. See Thibeault v. Square D. Co., 960 F.2d ___ _________ _____________

    239, 243 (1st Cir. 1992); In re San Juan Dupont Hotel Fire __________________________________

    Litigation, 859 F.2d 1007, 1019 (1st Cir. 1988). "The __________

    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 [the party's] opponent

    or that it is a matter of no importance.'" Fusco v. General _____ _______



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    Motors Corp., Nos. 92-2473 and 93-1801, slip op. at 16 n.6 _____________

    (1st Cir. Dec. 6, 1993) (quoting Fortino v. Quasar Co., 950 _______ ___________

    F.2d 389, 396 (7th Cir. 1991)). Moreover, "[w]e have read

    Rule 26(e) generously, in light of its dual purposes, the

    ``narrowing of issues and elimination of surprise.'" Id. ___

    (quoting Johnson v. H.K. Webster, Inc., 775 F.2d 1, 7 (1st _______ ___________________

    Cir. 1985)).

    Viewing defendants' actions in the context in which

    they arose, we do not believe that the district court abused

    its discretion by not finding a Rule 26 violation. The court

    accepted defendants' contention that they were surprised by

    Lyon's trial testimony, and that they reasonably thought

    plaintiffs knew about the change which rendered their

    interrogatory answers inaccurate. The record supports

    defendants' contention that the concealment in this case was

    not "knowing."

    Assuming, arguendo, that defendants' failure to ________

    supplement did constitute a discovery rule violation, we

    still do not think that the district court's refusal to

    preclude Ricci's testimony warrants a new trial. Although

    plaintiffs argue that a trial court may preclude testimony as ___

    a sanction, they fail to explain why preclusion was a ___

    necessary sanction in this case. Plaintiffs argue only that __ ____ ____

    the district court should have precluded Ricci's testimony

    because Lyon was a "key witness." A trial court's choice of



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    sanction for such a discovery violation is reviewed for abuse

    of discretion. See Prentiss & Carlisle v. Koehring-Waterous, ___ ___________________ _________________

    972 F.2d 6, 9 (1st Cir. 1992); Jackson v. Harvard Univ., 900 _______ _____________

    F.2d 464, 469 (1st Cir.), cert. denied, 498 U.S. 848 (1990). _____ ______

    This standard of review presupposes that the district court

    possesses a wide latitude in formulating the appropriate

    sanction, if any, for a discovery violation. See Jackson, ___ _______

    900 F.2d at 469 ("appellate inquiry is limited to whether the

    trial court's chosen course of action came ``safely within the

    universe of suitable' alternatives" (quoting Fashion House, _______________

    Inc. v. K Mart Corp., 892 F.2d 1076, 1082 (1st Cir. 1989))). ____ ____________

    A district court confronted with a violation of

    Rule 26(e) may choose from a variety of sanctions. See ___

    Thibeault, 960 F.2d at 245. Although preclusion is one of _________

    the sanctions available, the court is empowered to take

    whatever action it deems appropriate after considering all of

    the circumstances surrounding the violation. Id. The ___

    presence of surprise and prejudice play a central role in our

    review of a district court's decision to preclude or not to

    preclude testimony. Id. ___

    Although plaintiffs might have been surprised upon

    learning of the content of Lyon's statement to Ricci, it is

    difficult to discern any prejudice arising from defendants'

    belated disclosure of the same. Lyon's testimony was

    important to plaintiffs' case because of the time at which he



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    saw Greer's truck, not because he was unable to see the

    trailer clearly from a distance. Plaintiffs' position

    throughout the trial was that, although Greer's truck had

    been disabled for approximately twenty minutes prior to the

    accident, he never placed his reflective triangles along the

    highway to alert oncoming vehicles of potential danger. Lyon

    was the only witness who could place Greer's truck at the

    scene twenty minutes prior to the crash. In fact,

    plaintiffs' counsel, in arguing for the preclusion of Ricci's

    testimony, stated that, "[w]hat's important with Mr. Lyon is

    the time, not whether he could see the trailer."

    Furthermore, Lyon was travelling north on Route

    191, whereas Poulin was travelling south. Therefore, Lyon's

    testimony on the issue of the trailer's visibility was of

    limited probative value. In fact, the issue of the truck's

    visibility from the standpoint of a southbound driver was the

    subject of extensive expert testimony offered by both sides.

    Finally, plaintiffs never requested a recess prior to Ricci's

    testimony in order to counter its alleged force. See Smith, ___ _____

    877 F.2d at 1111 ("``Courts have looked with disfavor upon

    parties who claim surprise and prejudice but who do not ask

    for a recess so that they may attempt to counter the opponent

    testimony.'" (quoting Johnson, 775 F.2d at 7)). _______

    Thus, even if defendants did commit a discovery

    violation, the district court could reasonably determine that



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    plaintiffs did not suffer any prejudice, and, given

    defendants' plausible explanation for their failure to

    supplement, that any violation was not willful. The district

    court did not, therefore, abuse its discretion when it

    declined to sanction any discovery violation and allowed

    Ricci's testimony. See, e.g., Prentiss & Carlisle, 972 F.2d ___ ____ ___________________

    at 9 (absent prejudice to plaintiff district court did not

    abuse its discretion by refusing to preclude testimony);

    Jackson, 950 F.2d at 469 (preclusion is a grave step, and _______

    "``by no means an automatic response . . . where failure to

    make discovery [is] not willful'" (quoting Freeman v. Package _______ _______

    Machinery Co., 865 F.2d 1331, 1341 (1st Cir. 1988))). _____________





























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    3. Production of the Photographs 3. Production of the Photographs _____________________________

    In the course of discovery, plaintiffs moved to

    compel the production of photographs depicting a recreation

    of the accident scene taken exactly one year after the crash

    by a transportation consultant named Murray Segal. The

    district court denied the motion, and found, inter alia: _____ ____

    1. Murray D. Segal is a transportation
    consultant hired by Defendants' insurer
    in anticipation of this litigation;

    2. Murray D. Segal is not expected to be
    called as a witness at trial;

    3. The photographs Plaintiffs seek to
    have produced were taken by Murray D.
    Segal. They depict the actual truck and
    load involved in the accident which is
    the subject of this action. However,
    they were taken one year after the
    accident. They are not irreplaceable
    photographs of the actual scene of the
    accident;

    4. Plaintiffs have not shown that they
    could not have substantially duplicated
    the photographs themselves using a
    similar truck and load, nor have they
    shown any attempt to recreate the
    accident scene using the truck and load
    which were involved in the accident at
    any time during the pendency of this
    litigation;

    In addition to denying plaintiffs' motion, the court

    prohibited defendants from introducing any evidence or

    testimony related to the photographs. Rule 26(b)(3) of the

    Federal Rules of Civil Procedure provides in relevant part

    that,




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    a party may obtain discovery of documents
    and tangible things otherwise
    discoverable . . . and prepared in
    anticipation of litigation or for trial
    by or for another party['s attorney] . .
    . only upon a showing that the party
    seeking discovery has substantial need of
    the materials in the preparation of the
    party's case and that the party is unable
    without undue hardship to obtain the
    substantial equivalent of the materials
    by other means.

    Fed. R. Civ. P. 26(b)(3). On appeal plaintiffs concede that

    the photographs constitute work product, but maintain that

    they demonstrated the requisite substantial need and

    inability to obtain substantially equivalent photographs.

    District courts have broad discretionary powers to

    manage cases and, concomitantly, to manage pretrial

    discovery. See Maynard v. CIA, 986 F.2d 547, 567 (1st Cir ___ _______ ___

    1993); see also Thibeault, 960 F.2d at 242; San Juan Dupont ___ ____ _________ ________________

    Hotel Fire Litigation, 859 F.2d at 1019. Appellate ________________________

    intervention in such matters is warranted, "``only upon a

    clear showing of manifest injustice, that is, where the lower

    court's discovery order was plainly wrong and resulted in

    substantial prejudice to the aggrieved party.'" Maynard, 986 _______

    F.2d at 567 (quoting Mack v. Great Atlantic & Pacific Tea ____ ______________________________

    Co., 871 F.2d 179, 186 (1st Cir. 1989)). ___

    We see no "manifest injustice" in the district

    court's order denying plaintiffs' motion to compel production

    of the Segal photographs. As the court lucidly explained,

    plaintiffs could have hired a similar truck and conducted a


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    "recreation" comparable to the one commissioned by

    defendants. Any photographs taken at plaintiffs' staging of

    the accident scene would have provided satisfactory

    alternatives to defendants' photographs. But, plaintiffs

    never sought to obtain such photographs, and it appears that

    their failure to do so was a result of their own inaction.

    Finally, we fail to see how plaintiffs were prejudiced by the

    court's refusal to order production of photographs that it

    prohibited the defendants from introducing in evidence.

    Our examination of the pertinent facts reveals no

    error let alone an abuse of discretion in the district

    court's order.

    Affirmed. Affirmed. ________



























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