Morrissette v. Teledyne Princeton, Inc. , 364 F. App'x 655 ( 2010 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1787
GINETTE MORRISSETTE, ADMINISTRATOR
OF THE ESTATE OF DANIEL J. GAGNON,
Plaintiff, Appellant,
v.
TELEDYNE PRINCETON, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, District Judge]
Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
R. David DePuy with whom Scott H. Harris, Adam M. Hamel, and
McLane, Graf, Raulerson & Middleton, Professional Association were
on brief for appellant.
David G. Klaber with whom Mark D. Feczko, Jared S. Hawk,
Jeffrey S. King, Gregory R. Youman, and K&L Gates LLP were on brief
for appellee.
February 12, 2010
Per Curiam. The issue before us is whether the district
court abused its discretion by denying plaintiff Ginette
Morrissette's post-trial motions for a new trial and for default
judgment as a sanction for an alleged discovery violation.
Plaintiff was granted a continuance to conduct further discovery
when the disputed evidence emerged and expressly elected to proceed
with trial after doing so. We find no abuse of discretion and
affirm.
The underlying case involves a federal products liability
action arising out of a forklift accident that occurred on June 9,
1999. The forklift manufacturer is the defendant. The forklift
driver died on June 17, 2006, while this litigation was pending;
the administrator of his estate proceeded to trial in the federal
district court of Massachusetts. Trial began on January 15, 2008.
On the fourth day of a fifteen-day jury trial, plaintiff learned
that test results from a different model forklift had been used to
derive capacity information about the forklift involved in the
accident. Defendant had previously denied having any test
information relevant to the forklift model that the decedent had
been driving.
After hearing from both sides on the issue, the district
court denied plaintiff's motion for sanctions and opted to suspend
trial for three days to allow the parties "to get to the bottom of
this testing and talk to whomever [they] need[ed] to talk to."
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During this period, plaintiff conducted three depositions and
obtained seventy-nine pages of documents related to the forklift
test results. At a conference on January 31, 2008, the court asked
plaintiff's counsel how he intended to proceed. Plaintiff's
counsel repeatedly indicated his readiness to move forward with the
trial. Plaintiff did not ask for a further continuance or move for
a new trial and went forward with the trial. Plaintiff then
admitted the test results into evidence, had her liability expert
testify about them, used them in her cross-examination of
defendant's liability expert, and referred to them repeatedly at
closing.
On February 12, 2008, the jury returned a unanimous
verdict for the defendant. Plaintiff moved for a grant of new
trial under Rules 59 and 60(b) and for entry of default judgment
against the defendant as a sanction for its alleged discovery
violation. The trial judge died before acting on this motion.
Another judge denied the motion on March 24, 2009, and denied
plaintiff's motion for reconsideration on May 13, 2009.1
On appeal, plaintiff urges that the district court erred
by refusing to set aside the jury's verdict. We review for abuse
of discretion the denial of the new trial, Jennings v. Jones, 587
1
Defendant's assertion that we lack jurisdiction over the
March 24 order because plaintiff failed to file a notice of appeal
within thirty days of that order is flatly contradicted by our
caselaw. See Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7
(1st Cir. 2005).
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F.3d 430, 436-37 (1st Cir. 2009), and the denial of sanctions, see
Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 12-
13 (1st Cir. 2001). Plaintiff asks that we order as a remedy the
entry of judgment in her favor and does not seek a new trial.
There was no error, however, to remedy.
Plaintiff made the strategic choice to proceed with trial
after the disputed evidence emerged. We have repeatedly held "that
the appropriate course for parties who uncover discovery violations
is 'not to seek reversal after an unfavorable verdict,' but to
request a continuance 'at the time the surprise occurs.'" Tiller
v. Baghdady, 294 F.3d 277, 281 (1st Cir. 2002) (quoting U.S. Fid.
& Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st
Cir. 1995)). Plaintiff was granted a three-day continuance and
used this time to conduct extensive discovery. Plaintiff did not
request an additional continuance or seek a mistrial at that point,
and she must live with that choice.
The district court did not abuse its discretion when it
denied plaintiff's post-trial motions.
Affirmed.
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