Not for Publication in West’s Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-1787

GINETTE MORRISSETTE, ADMINISTRATOR

OF THE ESTATE OF DANIEL J. GAGNON,

Plaintiff, Appellant,

v.

TELEDYNE PRINCETON, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, District Judge]

Before

Lynch, Chief Judge,

Boudin and Stahl, Circuit Judges.

R. David DePuy with whom Scott H. Harris, Adam M. Hamel, and

McLane, Graf, Raulerson & Middleton, Professional Association were

on brief for appellant.

David G. Klaber with whom Mark D. Feczko, Jared S. Hawk,

Jeffrey S. King, Gregory R. Youman, and K&L Gates LLP were on brief

for appellee.

February 12, 2010
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Per Curiam. The issue before us is whether the district

court abused its discretion by denying plaintiff Ginette

Morrissette's post-trial motions for a new trial and for default

judgment as a sanction for an alleged discovery violation.

Plaintiff was granted a continuance to conduct further discovery

when the disputed evidence emerged and expressly elected to proceed

with trial after doing so. We find no abuse of discretion and

affirm.

The underlying case involves a federal products liability

action arising out of a forklift accident that occurred on June 9,

1999. The forklift manufacturer is the defendant. The forklift

driver died on June 17, 2006, while this litigation was pending;

the administrator of his estate proceeded to trial in the federal

district court of Massachusetts. Trial began on January 15, 2008.

On the fourth day of a fifteen-day jury trial, plaintiff learned

that test results from a different model forklift had been used to

derive capacity information about the forklift involved in the

accident. Defendant had previously denied having any test

information relevant to the forklift model that the decedent had

been driving.

After hearing from both sides on the issue, the district

court denied plaintiff's motion for sanctions and opted to suspend

trial for three days to allow the parties "to get to the bottom of

this testing and talk to whomever [they] need[ed] to talk to."
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).

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During this period, plaintiff conducted three depositions and

obtained seventy-nine pages of documents related to the forklift

test results. At a conference on January 31, 2008, the court asked

plaintiff's counsel how he intended to proceed. Plaintiff's

counsel repeatedly indicated his readiness to move forward with the

trial. Plaintiff did not ask for a further continuance or move for

a new trial and went forward with the trial. Plaintiff then

admitted the test results into evidence, had her liability expert

testify about them, used them in her cross-examination of

defendant's liability expert, and referred to them repeatedly at

closing.

On February 12, 2008, the jury returned a unanimous

verdict for the defendant. Plaintiff moved for a grant of new

trial under Rules 59 and 60(b) and for entry of default judgment

against the defendant as a sanction for its alleged discovery

violation. The trial judge died before acting on this motion.

Another judge denied the motion on March 24, 2009, and denied

plaintiff's motion for reconsideration on May 13, 2009.1

On appeal, plaintiff urges that the district court erred

by refusing to set aside the jury's verdict. We review for abuse

of discretion the denial of the new trial, Jennings v. Jones, 587
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F.3d 430, 436-37 (1st Cir. 2009), and the denial of sanctions, see

Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 12-

13 (1st Cir. 2001). Plaintiff asks that we order as a remedy the

entry of judgment in her favor and does not seek a new trial.

There was no error, however, to remedy.

Plaintiff made the strategic choice to proceed with trial

after the disputed evidence emerged. We have repeatedly held "that

the appropriate course for parties who uncover discovery violations

is 'not to seek reversal after an unfavorable verdict,' but to

request a continuance 'at the time the surprise occurs.'" Tiller

v. Baghdady, 294 F.3d 277, 281 (1st Cir. 2002) (quoting U.S. Fid.

& Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st

Cir. 1995)). Plaintiff was granted a three-day continuance and

used this time to conduct extensive discovery. Plaintiff did not

request an additional continuance or seek a mistrial at that point,

and she must live with that choice.

The district court did not abuse its discretion when it

denied plaintiff's post-trial motions.

Affirmed.