This is an appeal from a jury verdict finding defendant Louis Marx & Co., Inc. not liable for injuries suffered by plaintiff-appellant Stacy Vincent. At the time she was injured, Stacy Vincent was five years old. She was riding a tricycle manufactured by defendant when she was struck by an automobile. Stacy and her mother brought this product liability action against defendant. Jurisdiction is based on diversity of citizenship. The necessary facts are recited in our discussion of the issues.
I. THE ADMISSION OF ALLEGATIONS IN A PRIOR PLEADING
The instant action against Louis Marx & Co., Inc. was brought on April 10, 1980. The accident occurred on April 17, 1977. On October 31, 1977, an action was commenced in the Massachusetts Superior Court against the driver of the automobile that struck the tricycle and the plaintiff child. The state action was brought by an attorney other than those now rеpresenting plaintiffs. The state suit was subsequently
The state court complaint contained, inter alia, the following allegation: “3. The Defendant, Steven P. Iverson in the course of operation of his motor vehicle did have, or should have had, a clear view of the Plaintiff for a substantial distance.” This is at variance with the theory of liability advanced against the present defendant: that the tricycle was constructed so close to the ground that it could not be seen by an approaching motorist.
Defendant made clear early on its intention to introduce the state court complaint in evidence. The court held two hearings on this question during trial. The first was held at a recess during the testimоny of Stacy’s mother. After reading into the record the testimony of Stacy’s mother given in the criminal trial against the driver of the car that struck Stacy, the court ruled that the state civil court pleadings could not be used in cross-examination of Stacy’s mother, but the pertinent portions of the state complaint could be read to the jury by defense counsel. The сourt indicated that it felt legally bound to admit the pleadings as an evidentiary admission under Fed.R. Evid. 801(d)(2)(C). The second hearing was held after the state complaint was offered in evidence. The following statements were made by the court:
THE COURT: I don’t agree with the rule. Don’t misunderstand me. If I were writing the Rules of Evidence, I would never allow it in.
MR. SWARTZ: You have the discretion to exclude it.
THE COURT: I feel I do not.
MR. SWARTZ: You say, as a matter of law?
THE COURT: As a matter of law, I have no right to exclude it.
THE COURT: Listen, I want to tell you that I am absolutely serious when I say that, trying to bind this child by an admission made by an attorney in another case, or a contention made by an attorney—
MR. BRADY: I understand—
THE COURT; I know, you just want to admit it. I cannot understand the justice, nevertheless I am subject to it.
MR. SWARTZ: You have discretion to exclude it.
THE COURT: I find I don’t have any discretion at all.
The allegation in the state complaint was admitted as an evidentiary admission.
We read the court’s statements to meаn that it felt bound by Fed.R.Evid. 801(d)(2)(C) to admit the pleading and that it had no discretion to exclude it. We think the district court did have such discretion under Fed.R.Evid. 403. 1
There is no case in the First Circuit holding that under these or similar facts a prior inconsistent pleading must be admitted in evidence. In
Estate of Spinosa,
In the instant case, however, there is no such inconsistency. It is not inconsistent for suit to be brought against the owner and the manufacturer of the vehicle, since both can have a role in the plaintiff’s injury. Mihoy [v. Proulx ], supra [113 N.H. 698 ] at 700, 313 A.2d [723] at 1724 [(1973)]. Without such inconsistency, and since рleadings in pri- or law suits are not evidence of the facts in any particular subsequent suit, Slocinski v. Radwan,83 N.H. 501 , 507,144 A. 787 , 790 (1929), the district court had discretion to exclude such material as irrelevant. Absent evidence of abuse ofthat discretion, we will not upset its ruling.2
Id. at 1157. The footnote reads:
Although the parties have briefed this issue as a question of New Hampshire law, it seems likely that the question is actually controlled by Fed.R.Evid. 403. This rule, however, adds little to the discussion in the text. Because the state court pleadings are not inconsistent with the allegations in the present suit, their relevance is minimal. Moreover, admission of them would potentially prejudice the jury. The trial judge thus had considerable discretion to exclude the evidence, and because the analysis under Bellavance [v. Nashua Aviation & Supply Co.,99 N.H. 10 ,104 A.2d 882 (1954) ] substantially parallels the weighing of relevance and prejudice under the federal rule, we find no reversible error.
Id. n. 2. Evidently, the district court read our holding as mandating the admission of prior inconsistent pleadings. Although such an inference might possibly be drawn from the sentence beginning with the words, “Without such inconsistency,” it is attenuated at best. Any such inference is negated by the statement in the footnote that “it seems likely that the questiоn is actually controlled by Fed.R.Evid. 403,” and the last sentence of the footnote referring to the balancing test of Fed.R.Evid. 403.
In
United States v. Raphelson,
MPIUA argues that its pleading in a prior case is not binding on it in this case, and should not be considered here as an admission. Although a pleading in one case is not a conclusive judicial admission in a later one, it is treated as an ordinary admission which can be contradicted by other evidence.
Id. at 592. In Raphelson, however, the prior pleadings were an interpleader involving the same parties. In the interpleader MPIUA admitted liability on Its insurance policy in the amount of $30,800. In the subsequent case involving the same parties, MPIUA claimed that its admission of liability was nullified because the $30,800 was never accepted by the insured, which was named in the interpleader and was a defendant in the second suit. The second suit was brought by the United States as claimant to the insurance proceeds. The facts of Raphelson distinguish it from the instant case. There is no discussion in Raphelson of Fed.R.Evid. 403, nor any reference to Spinosa. Raphelson is not apposite.
In
Wiseman v. Reposa,
In
Sinclair Refining Co. v. Jenkins Petroleum Process Co.,
The general rule is that one may not to the prejudice of the other party deny any position taken in a prior judicial proceeding between the same parties or their privies involving the same subject matter, if successfully maintained.
Id. at 13. This rule does not apply to the situation before us. This completes оur survey of First Circuit cases. We now turn to the other circuits.
There is a lack of unanimity among the circuits that have discussed the question of the admissibility of prior inconsistent pleadings. In a case somewhat similar to the case at bar, the Eighth Circuit held that the admission of amended (not prior) inconsistent pleadings constituted prejudicial error.
Garman v. Griffin,
Here we are dealing with an admission in a pleading that (1) involves the conduct of a dismissed party not in the lawsuit at the time the evidence was admitted; (2) that does not involve the conduct of the plaintiffs or the plaintiffs decedent; and (3) that does not involve the conduct of the defendant.
Id.
at 1158. The court stated: “In situations closely akin to the case under submission, such pleading admissions have been generally excluded.”
Id.
at 1159 (footnote omitted). One of the cases cited as authority for this statement was the First Circuit case of
Estate of Spinosa,
Prior pleadings are admissible if such pleadings indicate that the party against whom they are admitted has adopted a position inconsistent with that in the earlier litigation. The prior suit was based on negligence, which is not inconsistent with recovery in this case, as unforeseeable misuse rather than negligence is the defense to a claim based on product liability.
Id. at 1147 (citation omitted).
In a case subsequent to
Garman
the Eighth Circuit pointed out that under
Gar-man
a statement by a party in a pleading about his own conduct which is at variance with his position in the mattеr being litigated should be admitted.
County of Hennepin v. AFG Industries, Inc.,
The Seventh Circuit adheres to the rule, “that the pleadings in one proceeding are admissible and cognizable as an admission in another.”
Walaschek & Associates, Inc. v. Crow,
In
Williams v. Union Carbide Corp.,
Furthermore, we can see no unfair prejudice in the admission of the prior allegations. The hiring of an attorney and the filing of a lawsuit are generally done with considerable thought and care. Absent unauthorized conduct on the part of the attorney, there is nothing unfair about having to explain one’s past lawsuits.
Id. at 556 (emphasis in original).
The Fifth Circuit recognizes that, “there is a well-established rule that factual allegations in the trial court pleadings of a party in one case may be admissible in a different case as evidentiary admissions of that party_”
Hardy v. John-Mansville Sales Corp.,
The District of Columbia Circuit also excludes inconsistent pleadings made in third party proceedings.
Schneider v. Lockheed Aircraft Corp.,
In this connection, it is to be noted that Fed.R.Civ.P. 36(b) states explicitly: “Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.” The advisory committee notes to the 1970 amendment are pertinent:
The new provisions give an admission a conclusively binding effect for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an аdmission in pleadings or a stipulation drafted by counsel for use at a trial, rather than to an evidentiary admission of a party.
Since the district court erred in admitting the prior pleading without balancing its probative value against its potential prejudicial effect, the next question is whether this wаs harmless error. Our inquiry is whether the admission of the evidence affected plaintiffs’ substantial rights. 28 U.S.C. § 2111; Fed.R.Evid. 103(a). The applicable standard of review has been explained as follows:
Our standard for determining whether the admission of such evidence is harmless error is whether we can say “with fair assurance ... that the judgment was not substantially swayed by the error....” United States v. Pisari,636 F.2d 855 , 859 (1st Cir.1981) (quoting Kotteakos v. United States,328 U.S. 750 , 765,66 S.Ct. 1239 , 1248,90 L.Ed. 1557 (1946)). The centrality of the evidence, its prejudicial effect, whether it is cumulative, the use of the evidence by counsel, and the closeness of the case are all factors which bear on this determination. 1 J. Weinstein & M. Berger, Weinstein’s Evidence 11103[06] at 103-61 to 103-63 (1982).
Lataille v. Ponte,
Based on our review of the record we cannot say thаt plaintiffs’ substantial rights were not adversely affected. Nor can we find “with fair assurance that the judgment was not substantially swayed” by the prior pleading. The defendant’s main line of defense was that the accident was caused by the negligence of the driver of the car which struck the plaintiff child. The prior pleading, therefore, could have played an importаnt role in the jury’s determination of liability. It was highlighted by defense counsel in his closing argument. Plaintiffs’ evidence was sufficient for a finding of liability. Finally, we note that defendant has not argued that the admission of the pleading was harmless error.
Although the district court had discretion under Rule 403 to exclude the prior pleading, it could not properly exercise that discretion without balаncing the probative value of the evidence against the potential danger of unfair prejudice.
See Linsky v. Hecker,
We, therefore, remand to the district court for reconsideration under Fed.R.Evid. 403 of its decision to admit the prior pleading. If it decides to admit the evidence, the verdict will stand. If the evidence is excluded, there must be a new trial.
Since we do not know whether there will be a new trial or not, we address the other issues.
After the court decided it had to admit the prior pleading, plaintiff pressed for admission of the amount of settlement ($50,000) in the state court suit. The court еxcluded it. The parties agree that Fed.R. Evid. 408 controls. It provides:
Rule 408. Compromise and Offers to Compromise
Eyidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence if offеred for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Plaintiff argues that exclusion of the settlement amount was unfairly prejudicial in light of the admission of the prior pleading.
The only opening for admission of the settlemеnt is in the last sentence of the Rule. This sentence, however, neither states nor suggests that unfair prejudice would be a ground for avoiding the prohibitions of the Rule. Nor can plaintiffs avail themselves of Rule 403. Even if the settlement amount were relevant and had probative value, which is highly doubtful, Rule 403 is an exclusionary rule, not one providing for the admission of evidence.
We agree with the district court that whatever opening there might be in Rule 408 for the introduction of a settlement amount, it is closed by our decision in
McInnis v. A.M.F., Inc.,
The district court did not err in excluding the amount of the settlement in the prior suit.
III. THE JURY INSTRUCTIONS
We find no reversible error in the jury instructions. Although the instructions could have been more detailed, they reflected the pertinent Massachusetts law in language the jury could understand.
Nor do we think that the court erred in failing to give a requested instruction recognizing a presumption under Massachusetts law that if an adequate warning had been given, it would have been read and heedеd. Plaintiffs rely on
Wolfe v. Ford Motor Co.,
We turn to the burden of proof issues raised by the plaintiffs only long enough to say that in this Commonwealth the burden is on the plaintiff in a products liability case to prove his or her allegations of injury as a result of the defendant’s negligence or breach of warranty. It is immaterial whether the defendаnt is charged with improper design, inadequate warning, or both_ Furthermore, contrary to the plaintiffs’ contentions, we do not read Wolfe v. Ford Motor Co.,6 Mass.App. 346 , 352,376 N.E.2d 143 (1978), S.C.,386 Mass. 95 ,434 N.E.2d 1008 (1982), or Restatement (Second) of Torts 402A comment j (1965), as favoring imposition on a defendant of the burden to prove the absence of a causal relationship between personal injuries and an inadequate warning of risk in the use of a product.
IV. THE EXCLUSION OF EVIDENCE OF COLLISIONS BETWEEN OTHER AUTOMOBILES AND OTHER TRICYCLES OF THE SAME TYPE MANUFACTURED BY DEFENDANT
The district court did not exclude this evidence without discussing the question in externo with counsel. It pointed out that there was no showing of substantial similarity of circumstances and that allowing such evidencе would mean retrying other cases or parts of them resulting in confusion to the jury as well as taking a great deal of time. We agree.
Prior automobile accidents involving the same model tricycle would have little probative value. How and why such accidents happen involve a number of variables including the road conditions, speed of the automobilе, ability and physical condition of the driver, as well as a myriad of other factors bearing on the view that a driver would have of the tricycle. In a products liability case other accidents involving only propensities of the vehicle itself such as the tendency to roll over, to pull to the right or left at certain speeds, or to go into an uncontrollablе skid when turning a comer, would all be admissible. But prior accidents involving another actor are simply too multifaceted to be useful to the fact-finder.
Vacated and remanded for further proceedings pursuant hereto.
No costs to either party.
Notes
. Fed.R.Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.