West v. Bell Helicopter Textron , 803 F.3d 56 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-2168
KURT WEST,
Plaintiff, Appellant,
v.
BELL HELICOPTER TEXTRON, INC., GOODRICH PUMP AND ENGINE CONTROL
SYSTEMS, INC., AND ROLLS-ROYCE CORPORATION
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, Chief U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Joan A. Lukey, with whom Justin J. Wolosz and Choate, Hall &
Stweart, LLP were on brief, for appellant.
Brian M. Quirk, with whom Jonathan G. Mermin and Preti
Flaherty, PLLP were on brief, for appellee Bell Helicopter Textron,
Inc.
James C. Wheat, with whom Pierre A. Chabot and Wadleigh, Starr
& Peters, P.L.L.C. were on brief, for appellee Goodrich Pump and
Engine Control Systems, Inc.
Martha C. Gaythwaite, with whom Marie J. Mueller and Verrill
Dana, LLP were on brief, for appellee Rolls-Royce Corp.
August 21, 2015
THOMPSON, Circuit Judge. For thousands of years,
humanity has looked to the sky and dreamt of flying. Philosophers
and poets have had much to say on the subject, leaving in their
wake a bevy of quotes and sayings about the beauty of flight.1 The
Federal Rules of Civil Procedure, although elegant in their own
way, have so far failed to inspire such devotion.
Though this case arises out of a helicopter accident,
our focus today is upon the Federal Rules, Rule 60(b)(3) in
particular. This rule, insofar as it concerns us here, allows a
party to ask for a new trial on the grounds that an opponent has
committed "misconduct" during discovery. Fed. R. Civ. P. 60(b)(3).
Plaintiff-Appellant Kurt West claims he should get a new trial
because he discovered, several months after the jury's defense
1 Plato, for example:
The natural function of the wing is to soar
upwards and carry that which is heavy up to
the place where dwells the race of gods. More
than any other thing that pertains to the body
it partakes of the nature of the divine.
Plato, Phaedrus.
Or Shakespeare: "My soul is in the sky." William
Shakespeare, A Midsummer Night's Dream act 5, sc. 1.
Or how about Igor Sikorsky: "The helicopter approaches closer
than any other (vehicle) to fulfillment of mankind's ancient dream
of the flying horse and the magic carpet." Igor Sikorsy the
Aviation Pioneer Speaks, Sikorsky Archives,
http://www.sikorskyarchives.com/IGOR%20SIKORSKY%20SPEAKS.php
(last accessed August 20, 2015).
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verdict, that the Defendants-Appellees2 withheld discoverable
information directly responsive to his document requests.
We do not determine today whether West gets a new trial.
This is because, we believe, the district judge misconstrued the
requirements of the Rule 60(b)(3) burden-shifting inquiry we set
forth in Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988).
We must, therefore, remand for further proceedings on West's Rule
60(b)(3) motion.
I. BACKGROUND
Because our concern is primarily with the application of
Rule 60(b)(3), we need not give an extensive run-down of the
factual background. Many of the background facts necessary to
shed light on the legal issue we have to deal with are uncontested.
We'll set them forth as the jury could have found them,
highlighting some of the contested areas as we go.3
THE ACCIDENT
In December of 2008, West was a helicopter pilot in the
employ of JBI Helicopter Services ("JBI"). JBI, based in New
Hampshire, provides pilots and maintenance services for its
clients' helicopters. The helicopter at the center of this case
2
Because so much of our focus is on what happened at trial,
we refer to West as either West or "plaintiff" and the Appellees
collectively as "defendants."
3
In addition, much of what happened fits in nicely with time-
honored aviation clichés.
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is a Bell 407 manufactured by Bell Helicopter Textron, Inc.
("Bell"). With a machine as complex as a modern helicopter, Bell
had some help in bringing the aircraft to life. Relevant here are
Rolls-Royce Corporation ("Rolls-Royce"), which manufactured the
engine, and Goodrich Pump & Engine Control Systems, Inc. ("GPECS")
which made the 'copter's electronic control unit ("ECU"), itself
a part of the digital engine controls.
On Monday, December 22, 2008, West was tasked with flying
the 407 from a small airport in Connecticut back to JBI's
facilities in New Hampshire. The weather over the preceding few
days had not been good, with an early-winter snowstorm having hit
New England. Indeed, on Saturday, December 20, another of JBI's
pilot-employees was attempting to fly the helicopter up to New
Hampshire but got caught in bad weather and had to land at the
Danielson Airport in Connecticut. For various reasons, the 407
was left outside in the storm -- which raged all Saturday night,
picked up again on Sunday and finally came to an end in the early
morning hours on Monday -- instead of brought into a hangar.
So, before taking off on Monday, West and another JBI
employee spent time clearing the accumulated snow and ice from the
407. That task completed to his satisfaction, West performed his
pre-flight checks. Once assured of the 'copter's airworthiness,
West took off to begin his journey back to New Hampshire.
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 Helicopters are really a bunch of parts flying in relatively
close formation; all rotating around a different axis. Things
work well until one of the parts breaks formation.
For the first 45 minutes of flight, the 407 behaved just
fine. But, it has been observed, if something hasn't broken on
your helicopter, it's about to. Sure enough, West experienced one
of those dreaded "moments of stark terror" when the 'copter's
engine quit suddenly and without warning. He had on his hands
what is known in aviation parlance as a "flame-out." And, although
the 407 was equipped with an automated system intended to get the
engine going again, it never started back up. Without fuel, pilots
become pedestrians, and the 407 was going down. Even worse, the
flame-out happened when West was over a residential area; he could
see that many of the houses had been decorated for the upcoming
Christmas holiday.
 You can land anywhere once.
Fortunately, West was able to keep the 407 from dropping
like a stone by entering into what's known as an "autorotation."
Without getting deep into the aerodynamic principles, what happens
is that as the helicopter descends, the air passing through its
blades keeps them spinning and produces lift. An autorotation
does not produce enough lift to keep the helicopter in the air,
but it does allow the pilot some amount of control over the descent
and ultimate landing spot.
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Once he'd gotten the autorotation going, West looked for
a place to land. He didn't like what was directly in front of
him, but fortunately he was able to reverse direction (performing
what is known as a 180 degree autorotation) and come in along a
road. West managed to avoid any houses or power lines and set the
'copter down -- hard -- in the middle of the street, across from
a house. Though he had gotten it down on the ground, the 407 had
experienced what is euphemistically called a "hard" (as opposed to
"crash") landing. The helicopter suffered significant damage and
never flew for JBI again, with it ultimately being sold for
salvage.
 Any landing you can walk away from...
Besides being rough on the helicopter, the hard landing
was not an especially good one for West. West was banged up, and
emergency responders brought him to the hospital for observation,
where he was kept overnight and not discharged until Christmas
Day. Although he did not suffer any broken bones, West alleged
that the extreme force exerted on his body (10Gs or more)
exacerbated his preexisting gastrointestinal problems.
Later on, West was diagnosed with PTSD related to the
accident. He explained to the jury that his PTSD interfered with
his flying, as over time his symptoms worsened and he eventually
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curtailed much of his flying activities.4 In addition, he
experienced flashbacks, nightmares, and difficulty sleeping.
THE TRIAL
At trial, the parties presented the jury with vastly
different theories to explain the engine's sudden shutdown.
West believes it was caused by a problem with the
electronics. His experts explained (and the defendants agreed)
that Bell 407s are equipped with mechanisms intended to prevent
the engine from rotating too quickly, a condition known as
"overspeed."5 Should the engine begin to spin too fast, the
electronic controls send a signal to a device known as the
"overspeed solenoid." The solenoid is basically an electrical
switch coupled with a fuel valve, and fuel must flow through that
valve before it reaches the engine.
When an electrical current reaches that solenoid, the
switch activates and causes a plunger to close, which shuts the
valve. The valve is designed so that, even when closed, some fuel
4At oral argument before us, West's counsel represented to
the Court that his symptoms had worsened to the point that he has
now lost his pilot's license.
5For comparison, think of a car's tachometer, which tells
the driver how fast the engine is spinning in terms of revolutions
per minute. A tachometer generally includes a red line showing
the engine's maximum RPM. An overspeed event in a helicopter can
be thought of as "overrevving" or "redlining" a car's engine.
Defense witnesses testified that helicopter overspeeds generally
occur due to pilot input when the helicopter is operated under
manual control.
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is still able to get through and into the combustion chamber. With
less fuel to burn, the engine speed begins to slow. Once the
electronic controls "see" that the engine speed has been brought
back under control (meaning the engine is no longer in
"overspeed"), electricity stops going into the solenoid. Without
electricity coming in, the plunger opens back up, restoring the
full flow of fuel to the engine. At least, that's how it's supposed
to work.
West theorized that his engine shutdown was caused by an
unintended activation of the overspeed solenoid when, in fact, the
engine was not spinning too fast.6 Throughout trial, the parties
referred to this phenomenon as false overspeed solenoid
activation, or "FOSSA." FOSSA just means that the solenoid
incorrectly "thought" the engine was spinning too fast and closed
the valve.
At trial, West sought to convince the jury that his
helicopter experienced FOSSA approximately 45 minutes into his
flight. He claimed the FOSSA reduced the fuel flow enough and for
a sufficient length of time so that the engine, no longer having
enough fuel to stay lit, flamed out. It happened in the first
place, West theorized, because one of the components7 within the
6
Returning to our car analogy, the engine speed had not
reached the red line on the tachometer.
7
It appears that during the discovery phase of the case West
eventually settled on a specific component -- one of the ECU's
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helicopter's electronic control system malfunctioned in a way that
sent an electrical signal into the overspeed solenoid. And, due
to the solenoid's design, any electrical signal will activate it
and close the fuel valve.
West's liability expert, Peter Chen, took the position
that normal fuel flow would not return once electricity ceased
flowing into the solenoid, by which he meant that the valve would
not open up again on its own. Chen opined that the system needed
to reset itself once the engine overspeed had been eliminated. In
West's case, however, because there was no genuine engine overspeed
in the first place, the reset signal never went out.8 Thus, the
engine continued to operate on a restricted fuel flow, which
ultimately turned out to be insufficient to keep the engine running
and the helicopter aloft.
To further support West's theory, his experts pointed to
other FOSSA incidents involving Bell 407s equipped with the same
electronic controls. West argued that his incident was similar to
those others, although with at least one significant difference:
capacitors -- as the suspected cause of the problem. At trial the
parties agreed, and the jury was told, that component testing never
took place through no one's fault.
8 According to Chen, the only way to reset the system and
restore full fuel flow would have been for West to "turn off and
turn on the engine."
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in the other FOSSA events, the helicopter's incident recorder9
showed that the overspeed solenoid had been triggered, while West's
did not. Instead, the incident recorder in West's helicopter
showed that everything was running fine up until the moment the
engine shut off.
West's experts explained to the jury, however, that the
incident recorder, instead of creating a continuous, uninterrupted
record, takes "snapshots" of the system's status every 48
milliseconds.10 If the recorder notes a problem with the helicopter
or its electronics, it creates and saves a data log that could be
reviewed and analyzed later. One of the things that would
generally be recorded is an activation of the overspeed solenoid.
But, according to West's experts, not every activation
of the overspeed solenoid necessarily shows up in the incident
recorder's log. Specifically (and as the defense witnesses
agreed), if the flow of electricity going to the overspeed solenoid
shuts off after 24 milliseconds or less, such a short-lived event
would not be recorded under any circumstances. And if the current
had gone into the solenoid for up to 48 milliseconds (in other
words, if it was activated for 48 or fewer milliseconds), it may
9 Think of it as a "black box" from a commercial airliner.
10The defendants explained that it had to work this way (as
opposed to recording continuously and keeping a record of the
entire flight) because the recorder is old technology and does not
have enough system memory to keep a log of the entire flight.
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or may not have shown up on the recorder. Whether or not a 48-
millisecond or shorter signal would be noticed by the data recorder
depends entirely on when the activation occurred with respect to
the "snapshot" that preceded it.
On the flip side, an electrical signal of any duration,
even one less than 24 milliseconds, would activate the solenoid
and restrict the fuel flow.11 And, per West's theory, the solenoid
would remain activated, thereby continuing to deprive the engine
of its normal fuel flow. In this way, West told the jury, his
accident could have been caused by a FOSSA event even though the
incident recorder did not show an activation of the overspeed
solenoid.
Needless to say, the defendants took a different view.
According to their experts, West's engine flameout was not caused
by FOSSA, and West only thought it was because his experts didn't
really understand how the overspeed solenoid worked. Indeed, a
defense witness told the jury that Chen had been laboring under
"some significant misunderstandings of the basic operation of the
control system."
First, according to the defendants, the solenoid
automatically opens back up once it's no longer being hit with an
11 Provided, however, that the electrical current was 10 or
more volts, but we really don't need to get into this level of
technical minutia to decide this appeal.
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electrical current. The experts told the jury that this is so
because, once the solenoid is no longer actively keeping the
plunger in the closed position there is nothing else holding it
closed. Thus, the pressure of the fuel that had already been
getting through forces the plunger back up and into the open
position.
The defense experts did agree that an overspeed solenoid
activation might not show up on the incident recorder until it had
been activated for 48 milliseconds. A GPECS employee even
testified that he believed it was "highly improbable, but possible"
that a FOSSA event of less than 48 milliseconds could have occurred
and yet escaped detection by the incident recorder. He went on to
state, however, that any signal lasting 48 milliseconds or less
would not have activated the solenoid for a long enough time to
reduce the fuel flow to such an extent as to cause the engine to
flameout.
Furthermore, the defense experts testified that,
importantly in other FOSSA-based accidents, post-accident
inspections revealed physical damage to at least one electronic
component. Although the parties agreed that the components of
West's helicopter had not (through no party's fault) been subjected
to tests following West's accident, the defense experts did testify
that there was no visible damage to any of the electronic
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components.12 This lack of visible damage, they argued,
distinguished West's accident from other known FOSSA events,
making it less likely that his engine flamed out due to FOSSA.
In sum, the defense experts told the jury that West's
accident had nothing to do with FOSSA, and that the engine could
not have flamed out for the reasons West alleged.
The defendants did not content themselves with trying to
poke holes in West's case, though. Conceding that the engine did
in fact suddenly shut down in the middle of flight, they offered
the jury an alternative explanation.
The defense posited to the jury that the flameout was
caused by the engine's ingestion of snow and ice. To that end,
the defendants put on evidence showing (and West himself admitted)
that the helicopter had been left out overnight in a hazardous
snow and ice storm. They also testified that if a helicopter had
to be left out overnight and exposed to the elements, certain
protective devices should have been placed over the engine's intake
to keep ice and snow from accumulating in and around the engine.
These devices, which JBI owned, were not used on West's helicopter.
The defendants faulted West for his de-icing procedures, arguing
that the evidence showed that he used improper materials (e.g.,
rubbing alcohol and automotive windshield washing fluid), that he
12Chen, West's expert, also agreed that no component failures
were visible "[t]o the naked eye."
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did not spend as much time de-icing the helicopter as he claimed,
and that he rushed through the preparatory procedures.
Thus, the defendants urged the jury to find that West
failed to adequately clear the helicopter of snow and ice before
he took off that afternoon. As a consequence, about 45 minutes
into the flight, the defense experts theorized, a chunk of ice
broke off the helicopter (a defense expert compared it to ice
breaking loose from a car's hood while on the highway) and was
sucked into the engine. This chunk of ice, they told the jury,
was enough to cause the flameout.13
Furthermore, while there was no visual evidence of any
damage to electronic components (as had been present in other FOSSA
events), the defendants claimed there was in fact physical evidence
to corroborate ice ingestion. The jury was shown photographs of
the engine's impeller blades showing that one of them had been
bent. This was damage, the defense contended, resulting from the
impact of a chunk of ice as it was sucked into the combustion
chamber.
After deliberating for two days, the jury returned a
defense verdict.
13
This can happen, a defense expert explained, because snow
or ice that gets into the engine turns into steam, which cools the
combustion chamber. Sucking in snow or ice "also displaces air
and it disrupts the balance of fuel and air in the combustion
section. The result is a flame-out of the engine."
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WHY WE'RE HERE
The verdict came back on September 30, 2013. West moved
for a new trial in October based on Federal Rule of Civil Procedure
59, asserting that he had been prejudiced by a variety of errors
that occurred at trial. We do not need to address today any of
the issues raised in this particular motion.
Then, on January 23, 2014 -- while West's Rule 59 motion
was pending -- Rolls-Royce issued a "Commercial Engine Bulletin"
applicable to the type of engine and ECU in West's helicopter.
The Engine Bulletin described an "adapter" (which has its own part
number) that the defendants had developed and which should be
installed on Bell 407s. The adapter "modifies the overspeed
protection system to reduce the likelihood of a false overspeed
activation," or FOSSA. The Bulletin went on to provide detailed
instructions for installing the adapter and for checking that the
overspeed protection system continued to function as intended
post-modification. The Bulletin further advised that its
"[t]echnical aspects are FAA approved."
That same day, Bell issued its own "Alert Service
Bulletin" for its 407s. Just like the Engine Bulletin, the Service
Bulletin addressed FOSSA, too. It advised that "Bell Helicopter
has been made aware of a potential condition where a false engine
overspeed protection system activation could occur."
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As Rolls-Royce's Engine Bulletin did, Bell's Service
Bulletin directed "the installation of an overspeed adapter to
reduce the likelihood of a false overspeed activation." Bell also
"introduc[ed] a recurring functional check of the overspeed
protection circuits within the Electrical Control Unit (ECU)."
Following the explanatory material, the Service Bulletin provided
the part number for the adapter and set forth several pages of
instructions for its installation, as well as a diagram and "before
and after" photographs. Moreover, "[t]he engineering design
aspects" of the Service Bulletin had received governmental
approval by "Transport Canada Civil Aviation."
West soon became aware of the Engine and Service
Bulletins. Two weeks after their release, he filed a second motion
seeking a new trial, this time invoking Rule 60(b)(2) and Rule
60(b)(3). These Rules provide the following:
On motion and just terms, the court may
relieve a party or its legal representative
from a final judgment, order, or proceeding
for the following reasons:
. . .
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or
misconduct by an opposing party . . . .
Fed. R. Civ. P. 60(b).
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In his motion, West argued that the fix described in the
Bulletins demonstrated that a "circuit design error" existed at
the time of West's accident and which rendered Bell 407s
"susceptible to FOSSA." According to West, the Bulletins revealed
that a particular circuit's design "inadvertently allows current
to flow from the ECU [Electronic Control Unit] to the HMU [hydro
mechanical unit] where the overspeed solenoid resides, thereby
potentially activating the latter, i.e., a 'false overspeed
activation.'" In sum, he said that it was now clear the circuit's
design was defective because it "remain[ed] closed when it should
be open." This constituted newly discovered evidence entitling
him to a new trial, regardless of whether or not the defendants
discovered the defect before, during, or after the trial of his
case.
But West didn't stop there. He went on to argue that
the technical nature of the information in the Bulletins, combined
with the detailed fixes described therein and government approval
of them, "compels" an inference that one or more of the defendants
knew about the defect but failed to disclose it during discovery
or at trial. Per West, "the passage of time between the end of
trial and the issuance of the [Bulletins] is simply too short for
the problem to have been discovered, a solution found and tested,
and the [Bulletins] issued." In West's view, at least some of the
defendants had to have been engaged in efforts to identify the
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defect, design and test a solution, and prepare documentation long
before trial began.
Failure to disclose this information, West said,
constituted misconduct during the course of discovery --
misconduct which, he claimed, substantially interfered with the
preparation and presentation of his case. Thus, West argued that
he was entitled to a new trial pursuant to Rule 60(b)(3). Or,
failing that, he asked for an evidentiary hearing to tease out
"who knew what and when" about the defectively designed circuit,
which he expected would assist the court in determining whether
misconduct had occurred.14
The defendants submitted a joint opposition. They
argued first that West's motion was "premised on a fundamental and
self-serving misunderstanding of a technical document." Per the
defendants, "FOSSA events result from failures of component parts
in the engine's FADEC which result in errant closure of the
overspeed solenoid."15 Instead of revealing a new and previously-
undisclosed mechanism by which FOSSA could occur, the Bulletins
simply provided information about a "FAA-approved modification to
14West also argued that the defendants should have disclosed
this information in response to certain questions at trial.
Because we ultimately order a remand to address the defendants'
discovery misconduct, we do not reach this argument.
15FADEC means "Full Authority Digital Engine Control." This
system automatically (i.e., without the pilot's input) controls
the flow of fuel into the helicopter's engine.
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the overspeed protection system designed to remedy the existing
and acknowledged FOSSA issue." The modification described in the
Bulletins was intended to make FOSSA less likely to happen in the
event of a component failure.
Having taken this position as to the import of the
Bulletins, the defendants went on to argue that they do not
constitute newly-discovered evidence under Rule 60(b)(2) because
they "do not describe any sort of new cause of FOSSA." They also
argued that there is no likelihood that this additional information
would have had any impact on the outcome at trial because the
defendants "presented a persuasive case that a FOSSA did not cause
the accident and that Plaintiff's failure to properly de-ice his
aircraft caused this accident." In returning a defense verdict,
the defendants argued, the jury was unconvinced by West's position
that his accident resulted from FOSSA.
With respect to the Rule 60(b)(3) new trial request
premised on the defendants' alleged "misconduct," the defendants
argued that West failed to meet his burden of showing misconduct
by clear and convincing evidence. Because the Bulletins did not
disclose a "new cause of FOSSA," the defendants argued that they
did not improperly respond to any of West's discovery requests or
withhold any responsive documents. The defendants also argued
that information related to the Bulletins was not responsive to
any of West's discovery requests and that, even if it was, West is
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barred from obtaining relief because he failed to file a motion to
compel after the defendants refused to answer certain
interrogatories.
Finally, the defendants argued that even if the court
were to consider the defendants to have committed "fraud or
misconduct," West is still required to show by clear and convincing
evidence that the misconduct substantially interfered with his
ability to prepare for trial. West failed to make this showing,
the defendants said, because the existence of the FOSSA phenomenon
was well-known to West prior to trial. In fact, according to the
defendants, "FOSSA events were the subject of thousands of pages
of document production and deposition transcript taken by [West's]
counsel," including "over a dozen depositions of GPECS and Rolls-
Royce witnesses." In light of this "thorough record" regarding
FOSSA, the defendants argued West failed to show "what or how
evidence of the [Bulletins'] modification . . . could possibly
have added to [his] case."
The district judge did not hold an evidentiary hearing.
Ultimately, he released a lengthy written decision denying all of
West's post-trial motions. Although the written decision disposed
of a laundry list of issues, the only one we need concern ourselves
with today is his resolution of the Rule 60(b)(3) new trial motion.
In denying this motion, the trial judge pointed out that
Bell 407s' susceptibility to FOSSA "is not a new fact," as
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information about FOSSA was disclosed in discovery and
acknowledged by the defendants at trial. Furthermore, the jury
was aware of FOSSA, as West's entire claim was that the defendants
were aware of FOSSA, "but failed to properly remedy it." The judge
also indicated that "the jury was not tasked merely with
determining whether some defect existed in the defendants'
products, but whether such a defect caused West's accident."
Embarking on his Rule 60(b)(3) analysis, the trial judge
first assumed that "West could prove the defendants' culpability
[in withholding discoverable information] by clear and convincing
evidence." He stated in no uncertain terms that he "need not and
does not decide" whether there was any such culpability. But,
even assuming that the defendants culpably withheld their
knowledge of the defect discussed in the Bulletins, the judge said
that West would need to prove -- by a preponderance of the evidence
-- that the misconduct substantially interfered with his ability
to fully and fairly prepare for, and proceed at, trial. This, the
judge said, West could not do.
The judge construed West's motion as disclaiming any
argument that the modifications described in the Bulletins would
have prevented his accident. Against this backdrop, the judge
observed that "a party cannot obtain a new trial based on his
adversary's failure to disclose irrelevant evidence, at least
without a showing that the non-disclosure nevertheless
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substantially interfered with the movant's trial preparation or
presentation." West, in the judge's view, failed to make such a
showing given that he was already well aware of the existence of
the FOSSA phenomenon. Accordingly, he denied West's Rule 60(b)(3)
motion.
This timely appeal followed.
II. STANDARD OF REVIEW
We review the district court's resolution of a Rule
60(b)(3) new trial motion "solely for abuse of discretion."
Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 38 (1st Cir.
2013); Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)
(Rule 60(b)(3) motions are "addressed to the district court's sound
discretion."). We utilize this deferential standard because we
recognize "the trial judge's more intimate knowledge of the case."
Anderson, 862 F.2d at 923. Accordingly, we will "reverse only if
it plainly appears that the court below committed a meaningful
error of judgment." Id. Nevertheless, and as the Supreme Court
has put it, "[a] district court by definition abuses its discretion
when it makes an error of law." Koon v. United States, 518 U.S.
81, 100 (1996); see also Golas v. HomeView, Inc., 106 F.3d 1, 3
(1st Cir. 1997) ("It is well-settled . . . that, when a district
court makes an error of law, by definition it abuses its
discretion.").
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III. ANALYSIS
Because this case involves the application of a specific
Federal Rule of Civil Procedure, we start with an overall, aerial
view of that particular rule before descending into the weeds of
the parties' arguments.
1. Overview of Rule 60(b)(3)
Once again, and as relevant to our discussion today,
Rule 60(b) provides the following:
On motion and just terms, the court may
relieve a party or its legal representative
from a final judgment, order, or proceeding
for the following reasons:
. . .
(3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or
misconduct by an opposing party[.]
Fed. R. Civ. P. 60(b)(3).16 Although by its terms the rule sets
forth multiple grounds on which a district court may grant relief,
West's arguments only require us to talk about the last one,
misconduct. Fortunately, we are not without precedent in this
area: Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988),
went in depth into a Rule 60(b)(3) motion premised (as is alleged
here) on an opposing party's misconduct in failing to disclose
16
West also sought a new trial grounded upon "newly discovered
evidence," see Fed. R. Civ. P. 60(b)(2), and he takes issue with
the district judge's denial of that motion in this appeal. Our
Rule 60(b)(3) analysis, however, renders it unnecessary to
consider Rule 60(b)(2) at this time.
- 24 -
certain materials that were responsive to discovery requests. See
862 F.2d at 922-23.
In Anderson, we recognized that a party's "[f]ailure to
disclose or produce materials requested in discovery can
constitute 'misconduct' within the purview of" Rule 60(b)(3). Id.
at 923 (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th
Cir. 1978)). The concept of Rule 60(b)(3) "misconduct," we said,
differs from fraud and misrepresentation. It is an expansive
concept, as misconduct "does not demand proof of nefarious intent
or purpose as a prerequisite to redress," and the term "can cover
even accidental omissions." Id. All in all, "relief on the ground
of misconduct may be justified 'whether there was evil, innocent
or careless[] purpose.'" Id. (quoting Bros. Inc. v. W.E. Grace
Mfg. Co., 351 F.2d 208, 211 (5th Cir. 1965)).
However, we do "not lightly . . . disturb[]" a jury
verdict returned after a trial on the merits, so a complaining
party must "demonstrate convincingly that [it] ha[s] been
victimized by an adversary's misconduct." Id. at 924; see also
Nansamba, 727 F.3d at 40 (recognizing that "the moving party must
prove the culpable party's culpable misconduct by clear and
convincing evidence"). And just showing that discovery misconduct
has occurred is not enough to merit a new trial. The moving party
must still demonstrate that such "discovery misconduct . . .
substantially . . . interfered with the aggrieved party's ability
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fully and fairly to prepare for and proceed at trial." Anderson,
862 F.2d at 924.
Substantial interference may be shown in at least two
ways. First, the moving party may demonstrate "that the
concealment precluded inquiry into a plausible theory of
liability, denied it access to evidence that could well have been
probative on an important issue, or closed off a potentially
fruitful avenue of direct or cross examination." Id. at 925.
Alternatively, "[s]ubstantial interference may also be established
by presumption or inference." Id.
When figuring out whether a presumption of substantial
interference should flow from the failure to make discovery, we
consider the non-disclosing party's intent. After all,
"[n]ondisclosure comes in different shapes and sizes: it may be
accidental or inadvertent, or considerably more blameworthy
(though still short of fraud or outright misrepresentation)." Id.
Thus, "where concealment was knowing and purposeful, it seems fair
to presume that the suppressed evidence would have damaged the
nondisclosing party." Id. (collecting cases). And "[i]t seems
equally logical that where discovery material is deliberately
suppressed, its absence can be presumed to have inhibited the
unearthing of further admissible evidence adverse to the
withholder, that is, to have substantially interfered with the
aggrieved party's trial preparation." Id.
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In the event that such a presumption of substantial
interference arises, it "should be a rebuttable one." Id. To
rebut the inference, the withholding party must adduce "clear and
convincing evidence demonstrating that the withheld material was
in fact inconsequential." Id. When the presumption is in play,
rebutting it is critical for the withholding (i.e., the nonmoving)
party: "[o]nce a presumption of substantial interference arises,
it can alone carry the day, unless defeated by a clear and
convincing demonstration that the consequences of the conduct were
nugacious." Id. at 926.
2. The parties' positions
On appeal, the parties raise several arguments, but we
really only need to address one of them.
West argues that the trial judge erred because he failed
to apply what he describes as Anderson's "burden-shifting
framework with respect to the intent of the non-moving party" in
failing to disclose discoverable information. The judge, West
says, failed to apply Anderson's presumption that intentionally
"suppressed evidence would have damaged the nondisclosing
party[,]" 862 F.2d at 925, thereby shifting the burden to the
defendants to prove their misconduct did not result in any
substantial interference. Instead, the district judge departed
from Anderson by keeping the burden on West to prove substantial
interference, and by requiring him to show the result of the trial
- 27 -
would likely have been different had the withheld material been
disclosed. Thus, in West's view, the district judge's
misapplication of Anderson "perpetuated the unfair effect of
Defendants' non-disclosure on [his] ability to prepare for and
participate in trial."
The defendants17 say that the district judge did not
abuse his discretion in finding that the nondisclosure -- even if
it constituted purposeful misconduct -- worked no substantial
interference with West's case. This is so, they argue, because
the finding is supported by the clear and convincing trial evidence
as outlined in their response to West's Rule 60(b)(3) motion.
Simply put, defendants argue the Bulletins did not actually reveal
17GPECS is the only defendant to brief this issue. Bell and
Rolls-Royce state in their briefs that they are adopting GPECS's
arguments pursuant to Federal Rule of Appellate Procedure 28(i).
When parties invoke this Rule, we generally determine whether the
adopted argument really is readily transferable to the adopting
party, or if the adopting party should have briefed the issue on
its own. See, e.g., United States v. Brown, 669 F.3d 10, 16 n.5
(1st Cir. 2012) ("Adoption by reference cannot occur in a vacuum
and the arguments must actually be transferable from the
proponent's to the adopter's case."); see also Putnam Res. v.
Pateman, 958 F.2d 448, 462 (1st Cir 1992) (recognizing the
existence of "limits to the ability of parties to adopt other
parties' arguments"); United States v. David, 940 F.2d 722, 737
(1st Cir. 1991) (stating arguments must be "readily transferable"
in order to be adopted pursuant to Rule 28(i)).
Here, at the trial court level, the defendants submitted a
combined opposition to West's Rule 60(b) motion, and neither the
district judge nor West took issue with this. And West does not
complain about the defendants' taking a similar tack in this
appeal. Accordingly, at least for today, we simply assume that
Rolls-Royce and Bell have adequately adopted GPECS's arguments.
- 28 -
any information about Bell 407s or about FOSSA that West did not
already have before trial. The defendants further contend that
West has specifically conceded that the adapter and modifications
to the overspeed protection system described in the Bulletins would
not have prevented his accident, foreclosing any possibility that
the information could have affected the trial's outcome.
3. The district judge misapplied Rule 60(b)(3)'s framework
After reviewing the extensive trial record, the parties'
submissions to the trial judge regarding West's new trial motion,
and the judge's lengthy written decision denying all of West's
post-trial motions, we conclude the district judge erred in how he
went about analyzing West's Rule 60(b)(3) motion.
Having already laid out how the inquiry is supposed to
go, it is not difficult to see where the district court went awry.
In considering West's argument, the district judge first assumed
West could prove, by clear and convincing evidence, that the
defendants culpably withheld relevant documents. Making such an
assumption on the first prong of a required multi-part showing in
order to bypass it and delve into the merits of a later requirement
is a common feature of judicial decisionmaking and is, in and of
itself, unremarkable. Indeed, in a case as complex and lengthy as
this one, it is perfectly understandable why the district judge
would want to follow this route.
- 29 -
But, after assuming West could fly through the
turbulence of the first hurdle and show culpable misconduct, the
district judge misconstrued and misapplied the next stage of the
Anderson test. Having assumed the defendants culpably withheld
their knowledge of the defect addressed by the Bulletins, the
district judge should have gone on to presume the defendants'
misconduct substantially interfered with West's trial preparation.
He did not do this, though. Rather than shift the burden to the
defendants to prove by clear and convincing evidence that the
withheld material was inconsequential like Anderson requires, the
judge erroneously placed the burden on West to show that disclosure
of the information would likely have made a difference in the
trial's outcome. This misstep is evident from the judge's written
statement that even assuming culpable misconduct, West may not
prevail unless he "also proves by a preponderance of the evidence
that this misconduct 'substantially interfered with [his] ability
fully and fairly to prepare for, and proceed at, trial.'"
In these circumstances, the judge's failure to draw a
presumption of substantial interference despite assuming the
existence of the defendants' culpable misconduct led him to place
the burden of proof on the wrong party. This error of law
necessarily constituted an abuse of discretion. We must,
therefore, vacate the judge's denial of West's Rule 60(b)(3) motion
and remand for further proceedings on it.
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4. Evidence of misconduct within the meaning of Rule 60(b)(3)
Vacating and remanding means that the district judge
should consider the entire motion with fresh eyes; a do-over, as
it were. However, based on the record before us, including some
developments that came about at oral argument, we make the
following comments and observations.
As noted above, though failure to make discovery can
constitute "misconduct" even when nondisclosure is careless or
innocent, we do not ignore the nondisclosing party's motivation.
Anderson, 862 F.2d at 925. Indeed, the reason behind a party's
nondisclosure plays a big part in determining whether the moving
party is able to take advantage of a presumption of substantial
interference. "In the case of intentional misconduct, as where
concealment was knowing and purposeful, it seems fair to presume
that the suppressed evidence would have damaged the nondisclosing
party." Id. (citing cases). If "discovery material is
deliberately suppressed, its absence can be presumed to have
inhibited the unearthing of further admissible evidence adverse to
the withholder, that is, to have substantially interfered with the
aggrieved party's trial preparation." Id. (citing cases).
Here, West argues that the defendants should have
disclosed information and documents relevant to the Bulletins in
response to his first set of Rule 34 Requests for Production of
- 31 -
Documents.18 The parties have not extensively briefed the
threshold issues of whether any documents relating to the Bulletins
actually exist and, if so which one or ones are responsive to these
requests.
For West's part, this is likely because he does not know
what documents may be in the hands of the defendants -- indeed,
18 Request 7 to Bell Helicopter sought
[A]ll documents, including but not limited to
communications, investigative reports, and
test results, relating to any other accident
involving a Bell 407 helicopter and either (a)
an alleged uncommanded shutdown or (b) an
alleged fault, deficiency or failure of the
ECU, HMU, or FADEC.
Request No. 7 to GPECS and Rolls-Royce was similar, but asked
for these types of documents when an accident had occurred in any
helicopter using the same type of engine as was present in West's
407.
Here's Request No. 8 to Bell Helicopter:
All documents relating to whether, and under
what circumstances, any Bell helicopter model
that employs the same version of the ECU, HMU,
and FADEC as the Subject ECU, Subject HMU, and
Subject FADEC, may suffer (a) an uncommanded
shutdown; (b) a fault, deficiency, or failure
of the ECU; (c) a fault, deficiency, or
failure of the FADEC; or (d) a fault,
deficiency or failure of the HMU.
To see what West sought from Rolls-Royce, replace "any Bell
helicopter model" with "any Rolls-Royce Engine." For GPECS,
replace "any Bell helicopter model that employs the same version"
with "any ECU, HMU, and FADEC of the same models as".
- 32 -
this is why "discovery" is aptly named. The defendants do not
engage much with this issue either. Although at oral argument
GPECS's counsel stated his belief that additional documents would
not have been responsive to the first set of discovery requests,
this argument appears nowhere in the defendants' brief. Instead,
GPECS's brief spends time arguing that a further response is not
called for by West's second Rule 34 request.
Without question, discovery in this case was technical,
fact-specific, and at times contentious. It involved the filing
of at least two motions to compel by the plaintiff, a motion for
protective order by the defendants, and multiple informal
discovery conferences with the district judge in an attempt to
resolve the parties' differences short of motion practice.
Furthermore, West's first motion to compel specifically asserted
that the defendants had failed to completely respond to Requests
7 and 8, among many others. After the district judge struck the
motion in favor of scheduling a discovery conference, it appears
the parties were able to resolve their disagreement on these two
requests. We are unable to discern the substance of that
agreement, including whether the parties agreed to limit or modify
the requests, from our review of the record.
From a commonsense standpoint, it is difficult to
imagine that documents reflecting the process culminating in the
development of the overspeed adapter as described in the Bulletins
- 33 -
did not reflect or discuss "whether" or "under what circumstances"
the ECU, HMU, or FADEC either failed or was faulty or deficient so
as to be responsive to West's request. But we cannot make this
judgment from the record on appeal. Accordingly, we leave it to
the district judge to determine whether additional documents are
responsive to West's document requests. This task could,
consistent with Anderson, be aided by additional fact-finding.
See Anderson, 862 F.2d at 930 (remanding with instructions for the
district court to conduct a factual inquiry into whether evidence
had been "knowingly and deliberately concealed").
Assuming there are additional responsive documents that
have not been produced, we reiterate that a party is under a
continuing obligation to supplement its response to an
interrogatory or request for production of documents should it
"learn[] that in some material respect the disclosure or response
is incomplete or incorrect, and if that additional or corrective
information has not otherwise been made known to the other parties
during the discovery process or in writing." Fed. R. Civ. P.
26(e)(1)(A). It is clear that none of the defendants served
supplemental discovery responses or did anything else to make the
plaintiff aware of additional information regarding FOSSA, as
reflected in the Bulletins. Furthermore, at oral argument before
us counsel for GPECS candidly acknowledged that information
regarding the defendants' internal processes culminating in the
- 34 -
Bulletins' release was known to him and his client, but that he
did not think he was obligated to disclose it.19
Thus, thanks to counsel's own admissions, there can be
no doubt that the defendants failed to produce information not due
to oversight, inadvertence, or counsel's own ignorance of its
existence. Rather, the decision not to produce the information
was a conscious, deliberate choice. But, the defendants say, their
failure to turn over information does not qualify as discovery
misconduct because they were not required to disclose it in the
first place. They offer two reasons -- separate and apart from
any argument about the information's responsiveness to West's
discovery requests -- as to why this might be so.
First, counsel for GPECS stated at oral argument, in
response to questioning from this Court, that he did not think he
had to disclose it and explained his thinking:
We did not feel that we had any obligation to
make disclosure, . . . either before or at the
time of trial because the development of the
modifications set forth in the bulletins was
in a very preliminary stage. In other words,
it was being evaluated, initially tested and
there wasn't anything at that point in time to
be produced.
19 This seemingly opens the door to Bell and/or Rolls-Royce
separately arguing that GPECS alone committed discovery
misconduct. But neither one says anything along these lines.
- 35 -
The argument, therefore, is that the information was withheld not
because West failed to ask for it, but because the defendants'
investigatory process had not been completed prior to trial.
This position is without merit. West's requests for
production of documents sought documents relating to uncommanded
engine shutdowns in Bell 407s and/or faults or failures of the
Bell 407s' ECU, FADEC, or HMU -- failures of which, West alleged
at trial, could bring about a FOSSA. Whether or not the defendants
had gotten beyond a "preliminary" result in their process is
irrelevant to whether or not information about the process and the
ongoing pursuit of a fix was responsive to West's discovery
requests. Accordingly, we conclude that the allegedly
"preliminary" nature of the investigation did not relieve the
defendants of their obligation to disclose information about it in
response to proper discovery requests.
Second, in their brief the defendants argued that even
if information about the modification and its development was
originally discoverable pursuant to West's first Rule 34 request,
West agreed during an on-the-record discovery conference to waive
supplementation of his first set of Requests for Production.20
According to the defendants, West agreed to serve a second set of
20None of the defendants argued to the district court (or on
appeal) that any of the information was properly withheld on the
basis of privilege.
- 36 -
discovery requests specifically geared toward FOSSA in lieu of
receiving supplemental responses to his first round of discovery
requests. Not surprisingly, West contends such an agreement was
never made.
We have reviewed the transcript of the discovery
conference, which was called not in response to a motion to compel
but to the defendants' motion for protective order focusing on the
confidentiality of already-produced documents and resisting West's
demands to produce certain documents regarding "tantalum
capacitors" (a particular electronic component). We have been
unable to find any statements of counsel waiving supplementation
of West's first request for production of documents. And the
defendants do not bring to our attention any specific statements,
either. Nor have they pointed us to any other evidence in the
record -- a written stipulation or correspondence between the
parties' counsel, for example -- of the purported agreement.
Furthermore, nowhere in the 65-page transcript of the discovery
conference did the defendants argue, or the judge indicate, that
there was anything improper about West's discovery requests.
On appeal, defendants only contend -- and in conclusory
fashion at that -- that West's second request for production
"superseded" any obligation the defendants may have had to
supplement their responses to the first request. But this is
nothing more than wishful thinking, as the defendants have
- 37 -
presented us with no authority for the proposition that serving a
subsequent discovery request relieves a party from its obligation
to supplement its prior discovery responses.
Moreover, it is plain from the transcript of the
discovery conference that, based on defendants' position that
particular documents regarding tantalum capacitors were not
responsive to the first round of requests and since discovery was
still open, the parties agreed that West would simply serve a new,
more focused, document request. In this way, the parties cut short
a fight over whether the documents should have been produced in
the first instance. As near as we can tell, the resolution of
this specific conflict had no bearing whatsoever on the defendants'
continuing obligation to provide supplemental responses to West's
first set of discovery requests, none of which had been determined
to be improper.
Accordingly, we reject as unsupported (in the record or
our caselaw) the defendants' assertion that West waived the right
to supplemental responses to his first request for production.
In light of this conclusion, it follows that the
defendants have not presented us with a valid reason for
deliberately withholding discoverable information. On remand,
should the district court in fact determine that additional
documents within the defendants' possession were responsive to
West's first set of Requests for Production, this record supports
- 38 -
a finding of culpable misconduct within the meaning of Rule
60(b)(3), thereby raising the presumption of substantial
interference. Whether the defendants are able to rebut this
presumption (if it arises) by clear and convincing evidence is a
question on which we take no position.
IV. CONCLUSION
Based on the foregoing, we conclude that the district
judge committed an error of law in his application of Rule 60(b)(3)
by placing the burden on West to prove substantial interference in
spite of his assumption that the defendants culpably withheld
materials that should have been produced in discovery. Because
the judge erroneously placed the burden on the wrong party, we
must remand to the district court for further proceedings.
Accordingly, we vacate the district judge's denial of West's Rule
60(b)(3) motion and remand this matter to the district court for
further proceedings in accordance with this opinion. Costs to
West.21
Vacated in part and remanded.
21
One final point. The conclusion of West's brief asks that
this matter be assigned to a different judge. Assuming that such
a terse request is sufficient to raise the issue, we construe it
as seeking a new judge should we order a new trial. As we are not
ordering a new trial, we need not take up the request at this time.
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