USCA1 Opinion

December 9, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1055
BENJAMIN HARRISON AND ROSALIND HARRISON,
Plaintiffs, Appellants,
v.
SEARS, ROEBUCK AND COMPANY
and EMERSON ELECTRIC COMPANY,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich,* Senior Circuit Judge]
____________________
____________________
Before
Torruella and Boudin, Circuit Judges,
______________
and Brody,** District Judge.
______________
____________________
Leonard Glazer with whom
______________

Frank E. Glazer
_______________

and the Law Offices

____________

Leonard Glazer, P.C. were on brief for appellants.

____________________
David A. Barry with whom Regina E. Roman, Barbara L. Siegel,
_______________
_______________
_________________
Sugarman, Rogers, Barshak & Cohen, P.C. were on brief for appellees
_______________________________________
____________________
____________________
_____________________
* Of the First Circuit, sitting by designation.
** Of the District of Maine, sitting by designation.

BRODY, District Judge.

______________
Benjamin
entered

and

Rosalind

after a

personal injury
Emerson

jury on

Harrison, appeal
verdict

suit against

Electric

evidentiary
admission

jury

Company.

rulings
of an x-ray

Plaintiffs,

of

the

denying

Plaintiffs
trial

of the

court

in

Company and

appeal

several

including:

an instruction

x-ray,

judgment

them relief

Sears, Roebuck &

as evidence,

the significance

from

the

to the

the exclusion

of

certain expert

testimony, and the exclusion

subsequent remedial measures to

caused the

injury in

that the trial

the product which allegedly

question.

judge did

of evidence of

Because we

not abuse his

are satisfied

discretion in

the

challenged evidentiary rulings, WE AFFIRM.

_________
I.
I.

BACKGROUND
BACKGROUND
__________

Appellants'
allegedly sustained
Craftsman 6-1/8

decedent,

injuries to

Benjamin

two fingers while

inch Jointer-Planer ("jointer").

Harrison was a 70 year old man who was using

do carpentry work
jointer
("Sears")

was

Harrison,

on kitchen

purchased

from

Benjamin

the jointer to

cabinets for his

Sears,

using a

Roebuck

home.
&

The

Company

and was designed, manufactured and distributed by

Emerson Electric Company ("Emerson").

The complaint was filed on February 26, 1986,

by

Appellants,

Appellee,

Benjamin

Sears.

and

Rosalind

The complaint

Harrison,

alleged

against

negligence

and

breach of warranty with respect to the jointer, resulting in

personal

injuries

to

Benjamin

consortium to Rosalind.
March

27,

1986.

Harrisons

filed

Emerson as
the

An

Harrison

answer was filed

Subsequently,
an

and

amendment

on
to

June
the

loss

of

by Sears

on

1987,

the

21,

complaint,

adding

a defendant and alleging that Emerson engaged in

design

development, testing,

manufacturing, marketing

and sale of the jointer.

Benjamin Harrison died on June
an illness

unrelated to his injuries.

Benjamin's

son,

was

appointed

20, 1990 from

Frederick Harrison,

executor

of

his father's

estate, and he was substituted in this action.

The
November

25,

defendants.

trial began

1991

the

Plaintiffs'

on November

jury returned
theory

18, 1991.
verdict

at trial

was

On

for the
that

the

accident occurred when Benjamin Harrison's left hand entered

an unguarded aperture
contact

with the jointer's blade.

special interrogatory
result

near the on-off switch and

posed, "Was

of unintentionally

In response to the first

plaintiff

inserting his
-33

came into

injured as

fingers

into the

aperture?," the
did not

jury responded

"no".

Therefore,

the jury

respond to the interrogatories regarding negligence

and breach
27, 1991.

of warranty.
Plaintiffs

Judgment was entered

on November

moved for a new trial on

December 9,

1991, and the motion was denied on December 11, 1991.

This

appeal followed.
The
occurred

precise

was heavily

testimony

of

the

disputed

in the

his left hand

entered

into

an

fingers

to

make

in

which

at trial.

Appellants' decedent

Benjamin Harrison was

jointer,

way

process of

slipped from the

opening

allowing his

contact

with

Appellants allege that this

moving

the

accident

The

deposition

stated

that while

shutting off

the

on-off switch and

fourth

and

cutter

fifth
blades.

contact resulted in the partial

amputation of the decedent's left ring finger and

injury to

his left fifth finger.

Appellants'
Schofield,

testified

unreasonably
industry

that

hazardous

standards

engineering

and

the

design
resulted

opening
that
in the

expert,

Bradford

represented
violated

an

accepted

accident.

Mr.

Schofield

testified

that

the

opening

could

have

been

eliminated at negligible cost.

-44

Appellants'
Meagher,

testified with

suffered by Benjamin

medical
regard

to

opinion, the accident occurred

sought to introduce

Meagher as
they

case-in-chief
Appellees'

hand.

have
to

expert,

Stephen

permanent

injury

of the incident.

testified that in his

the opening.

entry of
Appellants

Dr. Meagher's assessment of an x-ray of

Although Appellants

a liability

sought to

Dr.

as a result of the

Harrison's fingers into

Mr. Harrison's

the

Harrison as a result

During cross-examination, Dr. Meagher

Benjamin

expert,

never listed Dr.

expert during pre-trial

his testimony

rebut
_____
Jack

the

admitted during

anticipated

Hyde,

discovery,

with

their

testimony
regard

to

of
the

significance of the
accident.

x-ray in determining

Appellants argued

because they had not

x-ray

would be

Meagher

not

accident occurred
had

never

on.

offer

The
an

trial judge

opinion

prior

to trial

that the

ruled

regarding

on direct examination

disclosed

the

that this testimony was proper

been notified prior to trial

relied

could

the cause of

how

that
the

because Appellants
that

Meagher

would

testify as to causation.
Appellees

then

presented their

engineering

expert, Jack Hyde, who testified that the accident could not
have occurred as

Benjamin Harrison claimed.

Hyde gave two

-55

reasons for his opinion.

of the
one's

First, Hyde testified that because

design of the jointer, it

fingers

addition,

Hyde

into
opined

the

opening

that

occurred as Harrison alleged

the

would be difficult to get

unintentionally.
injury

could

not

In
have

because the angle and location

of the cuts on Harrison's fingers, as depicted in the x-ray,

were

inconsistent with his testimony

were

cut.

conjunction

Hyde

was

with his

permitted

as to how the fingers

to

testimony over

use

the

x-ray

in

Appellants' objection

that he lacked qualification as an expert with respect to xray interpretation.

that

Appellees

failed to

Hyde's anticipated

[they]

give

testimony

Appellants' further
the jurors

Appellants also objected on the grounds

adequate

with respect

objected to the

that "they may

notice regarding
the

x-ray.

court's instruction to

conclude, to

think an x-ray means."

to

some extent,

Trial Tr.

what

at 61, reprinted
_________

in, Appellants' App. at 270.

__
Hyde was also permitted to testify that there
had

never

been

similar complaint

Appellants' objection to the

Finally,
court's denial of

to

Emerson

despite

use of this negative evidence.

Appellants

their motion
-66

contend that

for a new

the trial

trial should

be

reversed

because the

court sustained

when Appellants sought to

a subsequent

Appellants argue that

have

been permitted

direct examination
left

exposed

next

to

the

at

249.

testified during

had been "no

switch

hazardous area

where

hand," even though

subsequent design change which

in question.

the opening in

this cross-examination

because Hyde

that there

unintentionally get your

to a

cross-examine Hyde with regard to

design change which eliminated

the jointer.
should

Appellees' objection

you

[could]

he contributed

eliminated the opening

Trial Tr. at 40, reprinted in Appellants' App.

____________
Further,

Appellants

examination was proper because

argue

that

this

cross-

Appellees opened the door to

this type of evidence when they touted Hyde's qualifications

as

an expert

which

included his

work

on the

design

of

jointers.
II. DISCUSSION
II. DISCUSSION
__________
A. Use of the x-ray as evidence
A. Use of the x-ray as evidence
____________________________
The
engineering

district

expert,

Harrison's hand

while

Harrison's injuries.

Jack

court

Hyde,

allowed

to utilize

testifying regarding

Appellees'
an

x-ray

of

the

cause

of

Appellants contend that Hyde was not a

medical expert

and thus not qualified

to interpret x-rays.

Appellants assert that the allowance of the use of the x-ray

-77

was an abuse
that

of discretion.

in this context the

Appellees

argue in

x-ray is equivalent

response

to a picture

and, therefore, requires no specialized knowledge to view in

order

to

Appellees
Appellants'

determine
further

the angle
contend

position

reconstructionist,

Hyde

of

that

the

break

there

is

because,
had extensive

as

in a
no

bone.

merit

an

to

accident

experience

with x-

rays.
The admission of

expert testimony under Fed.

R. Evid. 702 is within the trial court's discretion and will

be reversed only

for an

abuse of discretion.

Navarro de
___________

Cosme v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir. 1991).
________________________

Specifically, the trial judge has discretion in determining:

(1)

whether

regarding

Hyde

was

the x-ray

sufficiently

of

qualified

Harrison's hand,

to testify

and (2)

whether

Hyde's testimony would, in fact, assist the trier of fact to

understand

the evidence or

to determine

Raymond v. Raymond Corp.,

________________________

938 F.2d

a fact

1518,

in issue.

1526 (1st

Cir.

1991).
There
formal

education

engineering

in

and

demonstrates

was evidence
safety

product

that Hyde

that Hyde

engineering,

safety.

had

had extensive
human

factors

the

record

Also,

over ten

years of

experience

-88

reconstructing
injuries.
parts

accidents involving

Moreover, Hyde

involved

consulted with

in

power

tools

had read x-rays of hand

accidents on

numerous

and

hand

and body

occasions,

doctors concerning his interpretation

had
of x-

rays, and

he testified

that x-rays were

often interpreted

and relied upon by experts in his field.

The
was

well within

possessed

record demonstrates that the trial judge

his

sufficient

discretion in
knowledge,

determining that
skill,

experience

training to utilize the x-ray to support his testimony.

record

Hyde
and
The

also indicates that Hyde used the x-ray to determine

the location and angle of the cuts to Harrison's fingers and

not for

a medical diagnosis.

all the

information available to him,

was not an abuse

Allowing

of discretion.

Hyde to make use of

including the x-ray,

See, e.g. Gray v. General

____ ____ ________________

Motors Corp., 434 F.2d 110, 113 (8th Cir. 1970).

___________

B. The jury instruction regarding the x-ray

B. The jury instruction regarding the x-ray
________________________________________
The trial judge permitted the jury to see the
pre-operative
Jack

Hyde's

x-ray of Harrison's
testimony.

In

instructed the jury:

-99

hand in conjunction with

addition,

the

trial

judge

. . . you may conclude to some

extent what you think [the xray] means.
Now, this x-ray shows some bone. If the
witness says something about the bone,
and what they mean to him, you will be
free to reject it, if it doesn't meet
with your approval. You will be able to
accept it, if it does.
Trial Tr. at 61, reprinted in Appellants' App. at 270.
____________
While case
found it improper
cases

all

to allow

involved

Broderick v. Gibbs,
__________________
(1973).

law exists

in which

the jury to

complex
1 Mass.

courts have

see x-rays,

medical issues.
App. Ct. 822,

as a photograph would

and

angle

of

laypersons are

the cuts

be used, to
to

capable of

See,
____

296 N.E.2d

In this case, the jury was permitted to

ray

these
e.g.
____
708

use the x-

depict the location

Harrison's

fingers.

Because

understanding x-rays

insofar as

they depict the location of a missing section of

a bone, it

was not improper for the district court to allow the jury to
view the x-rays for this purpose.
Further, the challenged jury
not

tell

the

jurors

they

discretion in interpreting the

could

use

instruction did
their

unbridled

x-ray as Appellants suggest.

Rather,

the instruction

indicated

conclude

whether they

believed the

witness purported it revealed.

that

the jurors

x-ray showed

could

what the

For these reasons

we find

-1010

that

the

admission

of

the

x-ray

with

the

challenged

instruction was not an abuse of discretion.

C.
C.

The scope of Dr. Meagher's testimony

The scope of Dr. Meagher's testimony
____________________________________

Appellants assert that during the Defendants'

opening

statement

Defendants'

they learned

expert,

Jack

support his opinion.

was reflected

Hyde

will testify

description

of how

the

first time

would use

the

x-ray

that
to

The scope of Hyde's expected testimony

in the

Interrogatories.

Hyde,

for

Defendants'

These

Supplemental Answers

interrogatories stated

that the

plaintiff Benjamin

the accident

occurred is

to

that, "Mr.
Harrison's
inconsistent

with the nature and location of his injury and the design of

the product."

Interrog. of Def. Emerson pp. 7-8,

in Appellants'
__

App. at

expressly state

52-53.

that the x-ray

opening statement

reprinted
_________

Because Appellees
would be

to the jury, Appellants

did not

used until

their

assert that they

had a right to rebut the interpretation of the x-ray.

Appellants sought to rebut Hyde's anticipated
use of the x-ray with the testimony of their medical expert,
Dr. Meagher.
direct

It was not until a bench conference during the

examination

of

Meagher, that

expressed

his

intention to

regarding

the significance

ask
of

Appellants'

Meagher
the

x-ray

for his
in

counsel
opinion

determining

-1111

whether the injury could have been produced by the insertion

of fingers into the opening.
Appellees

objected

to

this

testimony

asserting that it would be unfairly prejudicial because they

had been given no
anything

other than his

Specifically,
as

notice that Dr. Meagher would

of Harrison.

Appellees objected to Dr. Meagher's testimony

to causation

liability

physical examination

testify to

issues because

expert

in

he was

never listed

Plaintiffs' Supplemental

Answers

as a
to

Interrogatories.
The

scope

Dr.

as

Answers to

Interrogatories and Trial Brief,

diagnosis and

based on

his

Appellants'

prognosis

post-injury
counsel

in the

Meagher's

testimony,

his

described

of

of the

conceded

at a

to the precise

Supplemental
was limited to

Plaintiff's

examination

there was nothing in Meagher's

which related

Plaintiffs'

of

the

bench

expected

injuries
Plaintiff.

conference that

report dated April 13,

manner in which

1989

the accident

occurred and that, prior to trial, Appellants never intended

to have

him testify

regarding the cause

Nevertheless, Appellants
question Dr.

contend that

of the

they had a

Meagher on the causation issue

-1212

accident.
right to

and to solicit

his opinion about the

significance of the x-ray

to "rebut"

the expected testimony of Jack Hyde.

During direct examination, the district court
initially refused
regarding

the

to allow Dr. Meagher to

cause

of

the

offer an opinion

Appellant's

injury

Appellants had not disclosed that he would so

to trial.

The district

whether this
the

in

discussed below,
testify
not

question.

Dr.

Ultimately,

to

testify

however,

as

Dr. Meagher to

about causation, but

Meagher

of

when he excluded

the district court allowed

to some extent

allow

testify prior

judge did not address the issue

was proper rebuttal evidence

testimony

because

that

the court did

the

x-ray

was

consistent with Appellants' version of the events.

Assuming arguendo
trial

judge to

standard
error

in

that it was

exclude Meagher's causation

error for the

testimony, the

for reviewing a district court's nonconstitutional

a civil

harmless if it

suit requires

is highly

we find

probable that the

affect the outcome of the case.

Garcia-Rosa, 874 F.2d
___________

that

See, e.g.
____ ____

such error

error did

not

United States v.
________________

209, 222 (1st Cir. 1989),

vacated on
__________

other grounds sub nom. Rivera-Feliciano v. United States,

_______________________ ___________________________________

112

L. Ed.

2d 391 (1990).

Meagher unequivocally

The record

indicates that Dr.

testified a number of

times that the

-1313

accident

could not have happened

Harrison described.1
the

x-ray

Harrison's

showed

Allowing Dr. Meagher

an

allegations

evidence

before

prevented

from

in any way

the

injury

which

was

would

have

added

jury.

testifying

Although
directly

other than as
to testify that

consistent
little
Dr.

about

with

to

the

Meagher

was

his

opinion

regarding the accident's cause, he did in fact tell the jury

that he believed the

cause of the accident could

been as Harrison described.

Any additional testimony by Dr.

Meagher regarding causation would

find

that

cumulative
harmless.

the failure
evidence,

of the
as

only have

have been cumulative.

trial

rebuttal

court to
or

We

admit such

otherwise,

was

Coy v. Simpson Marine Safety Equipment,Inc., 787

____________________________________________

F.2d

19,

24-25

(1st

Cir.

1986)

(harmless

error

where

substance of excluded testimony could be inferred from other

trial testimony).
____________________
1
After Dr. Meagher reported his record of the plaintiff's
medical history, which reiterated the plaintiff's contention
that he was injured when his hand unintentionally slipped
into the opening by the on-off switch, the trial judge
asked, "And your opinion was that the injury that he
received, the damages that he received, was consistent with
that history?" Meagher responded, "Absolutely. Absolutely.
It couldn't have happened any other way." The trial judge
then repeated his question, "He couldn't have cut himself
some other way?"
Meagher replied, "No. Absolutely.
The
middle finger and index were most at risk on the top of the
table . . . ." Trial Tr. at 33-34, reprinted in Appellants'
____________
App. at 171-72.
-1414

On

this appeal,

Appellants seem

to suggest

that Dr. Meagher was prepared to offer a detailed refutation

of

Hyde's analysis of the

x-ray to show

in specific terms

why Hyde's interpretation of the x-ray was wrong and why the
x-ray in fact supported Appellants' theory of causation.

If

so, it is at

least arguable that such testimony

been properly characterized as

have

could have

"rebuttal" and that it would

been more than merely cumulative.

It is impossible to

determine, however, whether Dr. Meagher was prepared to give

detailed

testimony

merely going

of this

to state

nature

-- or

that the x-ray

whether

he was

was consistent

with

Appellants' version of causation -- because Appellants never

presented the district court with a proffer of the substance
of

Dr.

103(a)(2)

Meagher's

testimony.

places the

proponent of

burden

the excluded

Federal
of making

Rule
a

the

Because

appellate court
Appellants

conclude that they

was prepared to

failed

can
to

evaluate
make

cannot argue on appeal that

present a detailed refutation

ray testimony.

-1515

the

order to

the trial judge

the matter

such

Evidence

proffer on

evidence, precisely in

resolve this uncertainty and to ensure that

and

of

fully.

proffer,

we

Dr. Meagher
of Hyde's x-

D.

The allowance of the use of negative

The allowance of the use of negative
________________________________________

evidence
evidence
________
Hyde
Appellants'

was

objection

permitted
that,

other

complaints of similar injuries

ever made to Emerson.
because

it

foundation

was
and

to

testify

than

Harrison's,

misleading

no

while using the jointer were

Appellants contend this

irrelevant,

over

not

supported

because

only

the

was improper
by

proper

name

Sears

appeared on the jointer.

Although Appellants claim
evidence is irrelevant and
they offer
evidence

negative

inadmissible to prove causation,

no authority to
has been

that the

admitted

support that position

in

past

cases.

and such

See,
____

e.g.,
____

Borrelli v. Top Value Enterprises, Inc., 356 Mass. 110, 113,

_______________________________________
248 N.E. 2d 510 (1969).
Since Hyde's

testimony was explicitly limited to complaints

to Emerson, and because there

know of

was evidence that Hyde

any complaints regarding the

(approximately 390,000), the

would

jointers Emerson sold

foundational requirements

for

such testimony were adequately met.

Appellants'

remaining

objection

to

the

testimony

is based

upon

customer

complaints

may

their contention

that, in

have

to

been

made

fact,

Sears,

the

-1616

retailer, which were not

Hyde's testimony
jury.
about

relayed to Emerson and, therefore,

concerning Emerson

Because Appellants
his

knowledge of

was misleading to

were free to
similar

the

cross-examine Hyde

complaints

(or the

lack

thereof) made to Sears, their

challenge to the admission of

this

is

evidence

knowledge

as misleading

of similar

foundational

an

complaints made

prerequisite

complaints to Emerson.

not

to

his

persuasive.
to Sears
testimony

Hyde's

was

not a

regarding

For these reasons we find it was not

abuse of discretion for the district court to admit this

testimony.
E.
E.
remedial
remedial

The exclusion of evidence of subsequent

The exclusion of evidence of subsequent
_________________________________________
measures to
negate the expert's
measures to
negate the expert's

________
qualifications and to
qualifications and to
______________________
testimony
testimony
_________
The
question

that this
Hyde's

Court

Appellees'

remedial measures

____________________________________
impeach Hyde's
impeach Hyde's
______________

did

expert,

not

permit

Hyde,

regarding

made to the jointer.

was reversible error

qualifications

they

by allowing

examination

should have
that one

subsequent removal of

been able
of

to

subsequent

Appellants contend

because Appellees bolstered

him

worked on design changes to the jointer.

that

Appellants

to

to

state that

Appellants assert
bring out

Hyde's contributions

the opening

he

on crossled to

which allegedly

the

injured

Appellant.
-1717

Appellants sought to have the evidence of the

subsequent removal of the opening in the jointer admitted to

impeach

Hyde's

testimony

qualifications.
"there

as

well

Hyde testified

[was] no

as

to

diminish

on direct examination that,

hazardous area

left exposed

next to

switch where you are going to unintentionally get

in

there and contact

reprinted in
_____________

Appellants' claim
new

the cutter head."

Appellant's

App.

arose, Hyde

jointer without

the

his

Trial

at 249.

opening

your hand
Tr. at 40,

However,

participated

the

after

in designing a

which allegedly

injured

Harrison.
In rejecting
measure evidence, it

is not clear

the district court was made

of Appellants' objection.
qualifications and
closely related

subsequent remedial

from the record

In any event, the use to undercut

Hyde's testimony are

-- in substance Appellants

"you can't trust this

that

both

uses were

In light

whether

aware of the impeachment aspect

the use to impeach

that

court.

the use of

wanted to argue

witness" -- and

adequately

raised

we will assume

before the

of the close connection between

trial

these two

proposed uses, we will refer to both as impeachment.

Federal Rule of Evidence 407 does not require
the exclusion

of evidence of subsequent
-1818

measures when such

evidence

is

purposes.2
remedial

being

offered

Reversible error
evidence

impeachment

has

purposes.

exclusively

for

impeachment

has been found when subsequent

been
See,
____

excluded

when

offered

for

e.g. Petree v. Victor Fluid

___ ________________________

Power Inc., 887 F.2d 34, 38 (3rd Cir. 1989).

__________

However, cases

which have admitted subsequent remedial measure evidence for

impeachment purposes tend to involve a greater nexus between
the

statement

sought

measure than the

to

be impeached

case at bar.

and

For example,

the

remedial

in Anderson v.
___________

Malloy, subsequent remedial measure evidence was admitted to

______
impeach

statements that

prior to
to make it

defendants

the alleged accident and

safe.

700

had

checked the

done everything possible

___________________

F.2d 1208, 1212-14

(8th Cir.

____________________
2

area

Fed. R. Evid. 407 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 [remedial] measures
is not admissible to prove

1983)

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.
-1919

(emphasis

added).

subsequent

remedial

more

direct

measure

impeachment

evidence

would

use

of

exist

if

Appellees' witness stated that he did not change the product

after

the alleged

attention.
71 N.E.
must

See, e.g.
____ ____

culpability.

evidence

used as

his employer's

Rule

407's impeachment

a subterfuge

to prove

540,

exception

negligence or

See Hardy v. Chemetron Corp., 870 F.2d 1007,

___ ________________________

(5th Cir.
of

brought to

Garshon v. Aaron, 330 Ill. App.

________________

2d 799 (1947).

not be

1010-12

accident was

1989)

subsequent

(trial
rewiring

court

properly

proffered

to

excluded
impeach

defendant's testimony

that negligent wiring had

not caused

the plaintiff's injury).

The
difficulty

associated

exception to

Rule 407.

concern that the

"rule".

leading

commentators

with

have

applying

noted

the

Professor Wright

the

impeachment

voices a

strong

"exception" has the capacity to engulf the

23 Wright & Graham, Federal Practice and Procedure

_______________________________

5289, at 145 (1980) (footnote omitted).

To guard against the

impeachment exception being used

loophole for bringing in

Rule 407,

as a

evidence to prove negligence under

the commentators advise that

trial judges should

not abandon their discretionary authority under Federal Rule

-2020

of

Evidence

4033

to exclude

Wright & Graham, supra, at 148.

the

use

of such

evidence.

In this case

_____
the trial

judge invoked his discretionary

testimony

concerning the

jointer.

power to exclude

subsequent design

change to

It is beyond question that the proffered testimony

would have been extremely prejudicial to the Appellees.

impeachment evidence the only available basis for
of the subsequent design change
Hyde's contention that the
in

to impeach

this statement

admitted to
have

were not

would in effect

enable them

to

product was not defective and

negligent.

If

the evidence

paralleled

an

argument

____________________
3

impeach

To allow Appellants

impeach Hyde, Appellants' argument

closely

admission

would have been to

Appellant.

impeach Hyde's claim that the

that Appellees

As

accident could not have happened

the manner described by

could

the

Fed. R. Evid. 403 provides:

Although
relevant, evidence
may
be
excluded
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.
-2121

was

to the jury
that

the

subsequent

measure could

be seen

as proof

that Appellees

were negligent.
It

was within

the trial

judge's discretion

under Rule 403 to determine whether this evidence would have

prejudiced Appellees contrary to the intent of Rule 407, and
to exclude such evidence due to the risk that the jury might
improperly

infer negligence from it.

K-Mart, Inc., 794 F.2d

_____________

See, e.g., Probus v.

____ ____ _________

1207, 1209 (7th

Cir. 1986); Public

______

Service Co. v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th
____________________________________
Cir.

1985).

Because Hyde's

could only have been

measure evidence

evidence

was highly
his

qualifications

indirectly impeached by the subsequent

remedial

abuse

statement and

and

because the

prejudicial, the

considerable

discretion

nature of

trial judge
in

the

did not

excluding

such

evidence.
For

these

district court is affirmed.

________

reasons,

the

judgment

of

the

-2222