USCA1 Opinion

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. Sing

________________
_________________
_____________
and Rudman & Winchell were on brief for appellants.
_________________
Harrison L. Richardson, with whom John B. Lucy and Richards
_______________________
____________
________

Troubh & Badger were on brief for appellees.

_______________
____________________
March 24, 1994
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
______________________

action arises out of a

dawn
Gerald
truck

of a

late

motor vehicle accident.

summer day

Poulin sustained
into

blocking the

the

flatbed

road.

trailer's driver,
Transport,

Ltd.

This

in Maine,

the pre-

plaintiff-appellant1
driving his

tractor-trailer

Subsequently, Poulin sued

Alexander Greer, and its

A jury

In

serious injuries after

of

diversity

which

was

the tractor-

owner, McConnell

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
baled straw.
turn

south along Route 191 in Maine, hauling a load of

Having missed his turn-off, Greer attempted to

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.").
-22

located

off the

executing

this

became stuck

west

side of

maneuver, the

in a drainage

rear

While

wheels

ditch off

Greer was

of his

tractor

the east side

Greer's truck had

of the

road.

The

faced

north; the flatbed or trailer portion of the truck sat

at

tractor of

the road.

a forty-five degree angle across

turned around

and

the road, blocking both

lanes of traffic.
Greer turned on
the

tractor,

headlights

as well

were

as its

on

low

southbound, traffic.
reflective triangles
the

revolving beacon

hazard

beam,

Although

lights.

facing

The truck's
i.e.,
____

Greer testified that

he had

he never placed

to approaching traffic.

reflector on both sides

atop

oncoming,

in the truck,

road as a warning

had a

the yellow

of its base and

them on

The trailer
on each back

corner.
At

approximately

arrived at the scene.

4:40 a.m.,

Horace

"Denny" Lyon

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

"wrecker" was towing a disabled car off the

down as
feet

of

trailer

he approached.
the truck,

Once

Lyon was

he realized

that

thought
road.

that

He slowed

within seventy-five
there was

loaded with straw blocking the road.

a flatbed

He pulled into

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

-3-

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

a large

on

Route 191

blocking the road

pulling into

Frye

saw

about 100 yards in

the driveway

reflectors on
truck,

when he

Greer's

at Ray's,

trailer.

noticed that

the

black silhouette

front of him.

Before

Frye noticed the

After getting
yellow

out of

revolving beacon

rear
his
on

Greer's truck and its headlights were both on.

The
at the

scene.

other

outside

approaching.
on

Route

truck, he

crash occurred only minutes after Frye arrived

Both he
of

Ray's

Unlike

191.

and Greer, who were

at

time,

Lyon and Frye, Poulin

Although they

apparently did

braked as he plowed

the

not.

expected

talking to each

saw

Poulin's

car

was headed south

Poulin to

see the

Poulin neither swerved

head on into the flatbed full

nor

of straw.

He suffered serious injuries.

Plaintiffs

commenced

this

diversity

action

in

United
After

States
the

District Court

jury returned

for

the

verdict

District of

Maine.

in defendants'

favor,

plaintiffs appealed.
II.
II.
DISCUSSION
DISCUSSION
__________

-44

Plaintiffs seek

a new

trial on the

(1) the district court erroneously

Greer's
give a

duties as a truck
missing witness

grounds that:

instructed the jury as to

driver and erred

instruction; (2) the

by declining to
district court

abused its discretion by refusing to exclude the testimony of

Carol Ricci

as a sanction for

violation; and
in

denying

photograph

defendants' alleged discovery

(3) the district court

plaintiffs' motion
of the

to

accident scene

abused its discretion

compel

production of

taken one year

accident by a consultant retained by defendants.

after the

1. The Jury Instructions

1. The Jury Instructions
_____________________
Plaintiffs

contend

committed reversible

error by

that,

comparative negligence

under Maine's

factfinder

must

consideration

be
to

told
the

that

the

failing to instruct

[that]
relative

v.

Morse, 300 A.2d

_____

evidence that

it

should
of

give
the

defendant," and that

be judged more

reaction to a crisis."

491, 500 (Me. 1973).

Greer had

the jury

statute, "[t]he

of safety rules must

severely than merely imperfect

court

blameworthiness

causative fault of the claimant and the

"[d]eliberate disregard

district

Wing
____

Because there was

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.

-55

Plaintiffs also maintain

that the court's

failure

to instruct the jury as to two federal safety regulations was

error.

Specifically, plaintiffs maintain

court should have

lawfully drive
that

he had

ready

for

(1992);

instructed the jury

that the district

(1) that Greer

his tractor-trailer only if

three emergency

use,

see
___

and (2) that if

he was satisfied

reflective triangles

49 C.F.R.

could

with him

392.8,

393.95(f)(2)(i)

Greer's attempt to

turn around had

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

necessary precaution
scene.

to prevent additional

See 49 C.F.R.
___

392.40 (1992).

Finally, plaintiffs argue

to give a missing
error.
draw

accidents at the

that the court's failure

witness instruction constituted reversible

The court declined to instruct the jury that it could

an adverse inference from

testify at trial.

the fact that

Greer did not

Greer lived beyond the subpoena

the court, and chose not to attend the trial.

power of

His deposition

testimony was entered into evidence.

In response, defendants contend that the failure to
give

plaintiffs' requested

but,

in any

event,

instructions was

plaintiffs waived

not erroneous,

their challenges

by

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

Before the
received proposed

district

court charged

instructions from

pre-charge conference.

the

jury,

the parties and

it

held a

At the conference, the court informed

-6-

the parties which portions

would read.

of their proposed instructions it

Plaintiffs duly stated their objections

court's

omission

of

various

charge,

including those

portions

portions at

of

their

issue on

to the
proposed

this appeal.

After the court instructed the jury, the judge called counsel
over to the sidebar and asked:
any objections previously

"Okay.

First, in addition to

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
provides

51 of

the Federal

Rules of

Civil Procedure

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

failure

to give

thereto

before the jury retires to consider its verdict. . .

."

an

instruction unless

"We have construed

that party

the Rule's requirement

objects

that a party

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

to

mean

that

the

objection

must

instructions are given to the jury."

be

made

after

the

Smith v. Massachusetts
_____
_____________

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

____________________
_____ ______

493

U.S. 965 (1989); see

___

764, 769 (1st Cir.

968

(1st

Cir.

Phav v. Trueblood, Inc., 915 F.2d

____
________________

1990); McGrath v. Spirito, 733

_______
_______
1984).

Even

instructions had been proper,

their

omission after

objection.

See Smith,
___ _____

if

plaintiffs'

F.2d 967,
requested

counsel's failure to object to

the charge

constitutes waiver

of the

877 F.2d at 1109; Wells Real Estate,

___________________

Inc. v. Greater Lowell Bd. of Realtors, 850

____
________________________________

F.2d 803,

809

-77

(1st

Cir.) (collecting

cases), cert.
_____

denied, 488
______

U.S. 955

(1988).
The record here is clear:
plaintiffs

after the

charge.

The

no objection was made by

district court's

post-

charge indication that the parties' prior objections would be

preserved

is of

no help

to plaintiffs.

statement

after the charge that

"A

trial court's

objections made prior to it

will be saved does not absolve an attorney from following the

strictures
forward.
and

of

the

rule.

Objections

cannot

be

carried

The rule is binding on both the court and attorneys

neither can circumvent it."

see Elgabri v.
___ _______

Lekas, 964
_____

McGrath, 733
_______

F.2d 1255, 1259

F.2d at 969;

(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
51,

we review the trial

error.

comply with Rule

court's instructions only for plain

The "plain error" rule "`should

be applied sparingly

and only in exceptional cases or under peculiar circumstances

to

prevent

a clear

miscarriage of

Estate, 850
______

F.2d at

809 (quoting Nimrod

______

F.2d
1259.

870, 873
Under

instruction
"seriously

(1st Cir.
the

warrants
affected

1966)); see
___

"plain error"
a
the

justice.'"

new

fairness,

-88

v. Sylvester,
_________

Elgabri, 964
_______

exception,

trial

Wells Real
__________

only

an

where

integrity

369

F.2d at
erroneous

the

error

or

public

reputation of the judicial proceedings."

See Lash v. Cutts,

___ ____
_____

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

review

of

the

about this case.

record

reveals

It is evident

nothing

that no "clear

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

error" exists.3
2.
2.

Refusal to Preclude The Testimony of Carol Ricci

Refusal to Preclude The Testimony of Carol Ricci
________________________________________________
Plaintiffs contend that

duty

to supplement

pursuant

answers

to Fed. R. Civ.

defendants violated

to plaintiffs'

P. 26(e)(2)(B).4

their

interrogatories
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
-99

alleged
court

violation, plaintiffs
should

testimony

have

maintain

sanctioned

of Carol

Ricci,

defendant

and that

the

that

the

district

by excluding

the

court abused

its

discretion by not doing so.

During discovery, defendants were asked
plaintiffs with the name
could
were

provide information
also

statement

asked

made any
supply

of every witness known to

about the

whether

each

accident.

witness

or account, either oral

her knowledge of the

alleged occurrence."

of the

same.

named

or in writing,

such statement, plaintiffs asked

the substance

to provide

If a

them who
Defendants
"gave

any

of his or
witness had

the defendants to

Plaintiffs also

asked

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

any oral or written statements

or

information with

respect

from anyone who had knowledge

to the

accident,

and if

so,

defendants were asked to supply the name of the person making

the

statement and its substance.

lines of

inquiry, dated

Greer and Frye.

In their

answers to both

August 1992, defendants

named only

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.
-1010

In November 1992, after speaking

the

owner of

Ray's Country

Lyon might have

Ricci,

briefly with

Store, defendants

some information about the

a paralegal,
him.

contacted Lyon
According

with Ray Ketchen,

learned that

accident.

by telephone

to Ricci's notes,

Carol

and spoke
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

supplement

to it

in

[the]

their answers

road."

to plaintiffs'

include Lyon and his statement.

plaintiffs
with

had spoken

Ricci.

interviewed
with

plaintiffs that he

unclear

prior to

his conversation
Lyon

them he

quickly learned

had spoken with

not

whether

however,

and informed

Defendants

did

interrogatories to

is

thereafter,

by plaintiffs

Ricci.

It

with Lyon

Shortly

Defendants

had spoken

that

Ricci.

was

Lyon

By the

told

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
yellow revolving beacon from
truck, which

that, although he saw the

a distance, the trailer

of the

was blocking the road, was not easy to see.

fact, Lyon testified that

he did not see the

was right on top

On cross-examination,

of it.5

In

truck until he
Lyon denied

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

____________________
5. On cross-examination Lyon explained
approximately seventy-five feet away.
-1111

that

this

meant

Defendants
"rebuttal" witness.
because she
list, and
Rule

sought

to

Ricci

Plaintiffs objected to

was not listed on

26(e)(2)(B)

to

testify

as

Ricci testifying

defendants' pre-trial witness

because defendants

interrogatories.

have

had violated their

supplement

their

The court rejected

duty under
answers

to

plaintiffs' arguments,

and allowed Ricci to testify.

Defendants
was

argue that their

failure to supplement

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

"knowing

concealment"

plaintiffs

had spoken

ascertained

that

with

Lyon had

therefore, assumed
same thing

on

their

part.

Lyon, and
spoken

They

that plaintiffs

to

Ricci.

that Lyon communicated to

that he

told Ricci.

knew

Under

that
had

Defendants,
plaintiffs the

these circumstances

defendants maintain that there was no "knowing concealment."

In reviewing

a trial

court's ruling on

discovery-related rule was violated, the abuse of

standard

controls.

239, 243 (1st Cir.

Litigation,
__________

859

discretion

See Thibeault v. Square D. Co., 960 F.2d

___ _________
_____________
1992); In re San Juan Dupont Hotel Fire
__________________________________

F.2d 1007,

knowing-concealment

clause

intent;

is

rather

whether a

it

1019
does

designed

(1st

Cir.

not

require

to

protect

1988).

"The

fraudulent
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
_____
_______

-1212

Motors Corp., Nos. 92-2473 and

_____________
(1st Cir. Dec. 6,

389, 396 (7th Cir.

Rule

26(e) generously,

(quoting

at 16 n.6

1993) (quoting Fortino v. Quasar Co., 950

_______
___________

F.2d

`narrowing

93-1801, slip op.

of issues

1991)).

Moreover,

in light of
and

"[w]e have read

its dual

elimination of

purposes, the

surprise.'"

Johnson v. H.K. Webster, Inc., 775 F.2d

_______
___________________

Id.
___

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.

accepted defendants' contention
Lyon's

trial

testimony,

that they were

and that

they

The court

surprised by

reasonably thought

plaintiffs

knew

interrogatory

about

answers

the

change

inaccurate.

defendants' contention that the

which
The

rendered
record

their

supports

concealment in this case was

not "knowing."
Assuming,
supplement
still

do

did

arguendo,
________

that

constitute a

not think

preclude Ricci's

that

defendants' failure

discovery

the district

testimony warrants

rule violation,
court's

a new trial.

to
we

refusal to
Although

plaintiffs argue that a trial court may preclude testimony as

___
a

sanction,

they

fail

to

explain

necessary sanction in this case.

__ ____ ____
the district

court should have

because Lyon was a "key witness."

why
___

preclusion

was a

Plaintiffs argue only that

precluded Ricci's

testimony

A trial court's choice of

-1313

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.

F.2d

1992); Jackson v. Harvard Univ., 900

_______
_____________

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

This standard
possesses

of review presupposes that

a wide

sanction, if any,

latitude

in

the district court

formulating the

for a discovery

violation.

appropriate
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
Rule

26(e)

Thibeault,
_________
the

district court
may choose

confronted with

from a

960 F.2d at 245.

sanctions

variety

violation of

of sanctions.

Although preclusion

available, the

court

is

See
___

is one of

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
preclude testimony.

court's decision to preclude or

Id.
___

Although plaintiffs might

learning of the content
difficult
belated

to discern any
disclosure

not to

of

have been surprised upon

of Lyon's statement to Ricci,

it is

prejudice arising from defendants'

the

same.

Lyon's

testimony

was

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

-1414

saw

Greer's

trailer

truck, not

clearly

throughout

from

the trial

been disabled

because he
a

was

distance.

was that,

unable to

Plaintiffs'

although Greer's

for approximately twenty minutes

accident, he never placed

see the
position
truck had

prior to the

his reflective triangles along the

highway to alert oncoming vehicles of potential danger.

was the only
scene

twenty

witness who
minutes

could place Greer's

prior

to

the

Lyon

truck at

crash.

In

the
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

191, whereas Poulin was

travelling south.

testimony on

of the

the issue

limited probative value.

north on

Route

Therefore, Lyon's

trailer's visibility

In fact, the issue of

was 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
877 F.2d

in order to counter its alleged force.

at 1111

("`Courts have looked

parties who claim surprise

See Smith,
___ _____

with disfavor

and prejudice but who do

upon

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

-1515

plaintiffs

did

defendants'

not

suffer

plausible

any

explanation

prejudice,
for

their

supplement, that any violation was not willful.

court

did

declined

not,
to

sanction

Ricci's testimony.
at 9 (absent
abuse

its

therefore,

abuse its

any discovery

and,

failure

discretion by

refusing

when

972 F.2d

district court did

to

it

and allowed

See, e.g., Prentiss & Carlisle,

___ ____ ___________________

prejudice to plaintiff

to

The district

discretion
violation

given

not

preclude testimony);

Jackson, 950 F.2d

_______
"`by

at 469

no means an automatic

(preclusion is a
response . .

grave step,

and

. where failure to

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

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

-1616

3.
3.

Production of the Photographs

Production of the Photographs
_____________________________
In the

compel the

course

of discovery,

production of photographs

plaintiffs moved

to

depicting a recreation

of

the accident scene taken exactly one year after the crash

by

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

prohibited

to

denying

defendants

testimony related to the

Federal Rules
that,

of Civil

plaintiffs'

from

motion,

introducing

photographs.

any

the

evidence

Rule 26(b)(3) of

Procedure provides in

court
or
the

relevant part

-1717

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).

the photographs
they

On appeal plaintiffs concede that

constitute work

demonstrated

the

product, but maintain

requisite

substantial

need

that
and

inability to obtain substantially equivalent photographs.

District
manage

cases

discovery.

courts have broad discretionary powers to

and,

concomitantly,

See Maynard
___ _______

v. CIA, 986 F.2d

___

1993); see also Thibeault,

___ ____ _________
Hotel Fire
Litigation,
________________________

to

manage

pretrial

547, 567 (1st

Cir

960 F.2d at 242; San Juan Dupont

________________
859

F.2d

at

1019.

Appellate

intervention

in such

matters

is warranted,

"`only upon

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

court's

discovery order

was plainly

wrong and

substantial prejudice to the aggrieved party.'"

F.2d at 567

(quoting Mack
____

resulted in
Maynard, 986
_______

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.

plaintiffs could have

As the

court lucidly explained,

hired a similar truck

and conducted a

-1818

"recreation"

comparable

defendants.

Any photographs

the

accident

alternatives

scene
to

to

would

one

do so was a

commissioned

by

taken at plaintiffs' staging of

have

provided

defendants' photographs.

never sought to obtain such

their failure to

the

satisfactory
But, plaintiffs

photographs, and it appears that

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
error

let

alone an

abuse

of the pertinent
of

court's order.
Affirmed.
Affirmed.
________

-1919

discretion

facts reveals no
in the

district