Not for Publication in West’s F ederal Reporter



# U nitedStates C ou rt o f App eals

For th e First C ircuit

No. 09-1787 GINETTE MORRISSETTE, ADMINISTRATOR

OF THE ESTATE OF DANIEL J. GAGNON, Plaintiff, Appellant,

v . TELEDYNE PRINCETON, INC., Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, District Judge]

Before Lynch, Chief Judge, Boudin and Stahl, Circuit Judges.
R. David DePuy with whom Scott H. Harris, Adam M. Hamel, and McLane, Graf, Raulerson & Middleton, Professional Association were on brief for appellant. David G. Klaber with whom Mark D. Feczko, Jared S. Hawk, Jeffrey S. King, Gregory R. Youman, and K&L Gates LLP were on brief for appellee.

February 12, 2010-2- Per Curiam . The issue before us is whether the district court abused its discretion by denying plaintiff Gine tte Mo r r i s s e t t e ' s p o s t
- t r i a l m o t i o n s f o r a n e wt r i a l a n df o r d efault judgment as a sanction f o r an alleged discovery violation. Plaintiff was granted a continuance to c o n duct further discovery when the disputed evidence emerged and expressly elected to proceed with trial after doing so. We find no abuse of discretion and affirm. The underlying case involves a federal products liability action arising out of a forklift accident that occurred on June 9, 1999. The forklift manufacturer is the defendant. The forklift driver died on June 17, 2006, while this litigation was pending; the administrator of his estate proceeded to trial in the federal district court of Massachusetts. Trial began on January 15, 2008. On the fourth day of a fifteen-day jury trial, plaintiff learned that test results from a different model forklift had been used to derive c a p acity information about the forklift involved in the
acc i d e nt. Defendant had previously denied having any test information relevant to the f o r k lift model that the decedent had been driving.

After hearing from both sides on the issue, the district court denied plaintiff's motion for sanctions and opted to suspend trial for three days to allow the parties "to get to the bottom of this testing and talk to whomever [they] need[ed] to talk to."Defendant's assertion that we lack jurisdiction over the 1 March 24 order because plaintiff failed to file a notice of appeal within thirty days of that order is flatly contradicted by our caselaw. See Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7 (1st Cir. 2005). -3- D uring this period, plaintiff conducted three depositions and obtained seventy-nine p a g e s of documents related to the forklift test results. At a conference on January 31, 2008, the court asked pla i n t iff's counsel how he intended to proceed. Plaintiff's counsel repeatedly indicated his readiness to move forward with the trial. Plaintiff did not ask for a further continuance or move for a new trial and went forward with the trial. P laintiff then admitted the test results into evidence, had her liability expert testify about them, used them in her cross-examination of defenda n t ' s liability expert, and referred to them repeatedly at closing. On February 12, 2008, the jury returned a unanimous verdi c t for the defendant. Plaintiff moved for a grant of new trial under Rules 59 and 60(b) a n d for entry of default judgment against t h e defendant as a sanction for its alleged discovery violation. The trial judge died before acting on this motion. Another judge denied the motion on March 24, 2009, and denied plaintiff's motion for reconsideration on May 13, 2009. 1

On appeal, plaintiff urges that the district court erred by refusing to set aside the jury's verdict. We review for abuse of discretion the denial of the new trial, Jennings v. Jones, 587-4-

F.3d 430, 436-37 (1st Cir. 2009), and the denial of sanctions, see Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 12- 13 (1st Cir. 2001). Plaintiff asks that we order as a remedy the entry of judgment in her favor and does not seek a new trial. There was no error, however, to remedy.

Plaintiff made the strategic choice to proceed with trial after the disputed evidence emerged. We have repeatedly held "that the appropriate course for parties who uncover discovery violations is 'not to seek reversal after an unfavorable verdict,' but to request a continuance 'at the time the surprise occurs.'" Tiller v. Baghdady, 294 F.3d 277, 281 (1st Cir. 2002) (quoting U.S. Fid. & Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st Cir. 1 9 9 5)). Plaintiff was granted a three-day continuance and used this time to conduct extensive discovery. Plaintiff did not request an additional continuance or seek a mistrial at that point, and she must live with that choice.

The district court did not abuse its discretion when it denied plaintiff's post-trial motions.

Affirmed.