Cheshire Medical Center v. W.R. Grace & Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1687

CHESHIRE MEDICAL CENTER,

Plaintiff - Appellant,

v.

W. R. GRACE & CO.,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Keeton,* District Judge.

Daniel A. Speights, with whom Michael P. Hall, Nixon, Hall

and Hess and Speights & Runyan, were on brief for appellant.

Richard V. Wiebusch, with whom Harry T. Daniels, Jane Cetlin

Pickrell, Hale and Dorr, Howard M. Cooper and Todd & Weld, were

on brief for appellee.

March 6, 1995

* Of the District of Massachusetts, sitting by designation.

KEETON, District Judge. Appealing from a judgment for

the defendant on a jury verdict, plaintiff-appellant argues an

interesting undecided issue of New Hampshire law regarding the

scope of strict liability on the ground of product defect in

relation to warning and instructions for use. May a product

marketer be held strictly liable on the basis of failure to warn,

for harm to a building into which its product (containing

asbestos fibers) was installed, even though the jury has found,

in answering special questions, that plaintiff failed to prove

any departure from ordinary prudence with respect to warning and

instructions for use?

We conclude that the jury findings, together with

settled rules of federal procedural law and New Hampshire

substantive law, preclude our reaching this interesting question.

For the reasons explained, we affirm the judgment for the

defendant on the verdict of the jury.

I.
I.

Plaintiff-appellant alleged that defendant's product,

Monokote 3, a fireproofing material, purchased in 1971 by a

subcontractor in compliance with specifications, and used in

constructing a building occupied and used at all relevant times

by plaintiff (an entity designated in the general contract for

construction of the building as "owner") was defective because of

a percentage of asbestos particles in the product. In the

various counts of the complaint, plaintiff alleged claims of

negligence (in manufacture, sale, and warning), strict liability

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for product defect, and breach of implied warranty.

The case was submitted to a jury on special questions,

Fed. R. Civ. P. 49(a). The jury returned the following answers:

SPECIAL VERDICT FORM

1. On the statute of limitations
defense, do you find for the Plaintiff or
the Defendant?

x Plaintiff Defendant

If you find for the Defendant on this
issue, stop and return a verdict in favor
of the Defendant.

If you find for the Plaintiff on this
issue, answer questions 2, 3, 4, 5 and/or
6.

2. On Plaintiff's negligence claim,
do you find for the Plaintiff or the
Defendant?

Plaintiff x Defendant

3. On Plaintiff's products liability
claim, do you find for the Plaintiff or
the Defendant?

Plaintiff x Defendant

4. On Plaintiff's implied warranty
claim, do you find for the Plaintiff or
the Defendant?

Plaintiff x Defendant

5. If you found for the Plaintiff on
one or more of its claims (questions 2,
3, or 4) please write the amount of
damages you award to Plaintiff using
words and figures (as in writing a
check).

Damages awarded: ----none----

($ )

6. If you found for the Defendant on

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each of Plaintiff's claims (questions 2,
3, and 4), then return a verdict in favor
of Defendant.

DATE: 11/3/93 /s/

Foreperson

The court's charge to the jury included instructions

advising the jury they should answer that the plaintiff had

proved negligence if they found by a preponderance of the

evidence that defendant failed to exercise ordinary prudence in

manufacture, or in sale, or in relation to warning (including

instructions for use). Thus, unless plaintiff-appellant shows

some trial error that undermines this finding (and we conclude in

Part III, infra, that plaintiff-appellant has failed to do so),

we must accept as an established fact that, in relation to

warning and instructions for use of the product, plaintiff failed

to prove any departure from ordinary prudence.

The court's charge to the jury on strict liability

failed to include any reference to warning or instructions for

use. We assume, as did the trial court in considering

plaintiff's motion for new trial, that this was error. See

Chellman v. Saab-Scania AB, 637 A.2d 148 (N.H. 1993). The trial

court concluded, however, that the error was harmless. So do we,

though on somewhat different reasoning from that of the trial

court because, unlike the trial court, we do not undertake to

predict exactly how the Supreme Court of New Hampshire will

resolve a novel issue of substantive law on which plaintiff-

appellant relies.

II.
II.

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It is settled law in New Hampshire that strict

liability for product defect includes manufacturing defect,

design defect, and warning defect. See Chellman, 637 A.2d 148;

see also Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 661

(1st Cir. 1981).

New Hampshire cases have not yet determined, however,

whether, as appellant asserts, a breach of the strict liability

duty to warn can be proved on some basis short of proving failure

to exercise ordinary prudence in relation to warning and

instructions for use. Stated another way, the undecided question

is whether the duty of warning under the strict liability theory

requires something more of the marketer than does the duty of

warning under negligence law and, if so, what.

Whether the duty is more onerous is an unsettled

question of New Hampshire substantive law. Contrary to

appellant's assertion, this question of New Hampshire law was not

decided in Chellman, 687 A.2d 148. Instead, that was a case in

which the plaintiff did not ask the court to submit a negligence

claim to the jury. See id. at 151. In that context, omission

from the trial court's charge of even an instruction on prudent

care with respect to warning was reversible error because

plaintiff was completely deprived of the opportunity to have the

jury consider the duty-to-warn claim. In this case, in contrast,

the jury did consider a duty-to-warn claim. They did so under

the negligence question. And we must conclude that the jury

rejected that claim because they were instructed that they should

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find for plaintiff in answering the negligence question if they

found for the plaintiff on other grounds or if they found that

defendant failed to use ordinary prudence in relation to warning

or instructions for use and that this failure was a cause of any

harm sustained by plaintiff.

In three separate avenues of attack, appellant seeks to

avoid the preclusive effect of the jury finding of no causal

negligence. The first avenue is a two-fold challenge to the

finding itself, which we discuss in Part III. We examine the

other avenues separately in Parts IV and V.

III.
III.

Appellant has challenged the jury's finding of no

causal negligence on two grounds. Appellant asserts that the

trial court's duty-to-warn instruction on the negligence count

was erroneous. Appellant also asserts that the trial court erred

in failing to instruct the jury on the New Hampshire statutory

asbestos exposure standard. We conclude that neither of these

attacks has merit.

A. The Duty-To-Warn Instruction Given
A. The Duty-To-Warn Instruction Given

Appellant challenges the duty-to-warn instruction given

by the trial court on the negligence claim. The jury was

instructed that the defendant had a duty to warn if it "knew or

should have known that the fireproofing it sold to the plaintiff

was dangerous to people or that it would damage property."

Appellant argues that this instruction is erroneous because it

requires the plaintiff to prove that the product "was dangerous."

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Relying on language in Chellman, the appellant argues that a

defendant has a duty to warn if a product "may be dangerous."

This argument is based more on form than substance. It

is difficult to imagine what different meaning would be conveyed

by an instruction, instead of that given, that the defendant had

a duty to warn if it knew or should have known that the

fireproofing it sold to the plaintiff may be dangerous. To the

extent that this phrasing conveys the same meaning -- for

example, that the defendant had a duty to warn if the defendant

knew or should have known that the product causes harm in some

(but not necessarily all) instances -- the instruction given by

the court was not in error.

To the extent that appellant is urging that its

proposed language conveys a different meaning -- that the

defendant has a duty to warn if it should have known that there

was a mere possibility that the product was in the category of

dangerous products (i.e., one that causes harm in some instances)

-- the argument for application of a legal test framed in this

particular way has no basis in New Hampshire law.

Under New Hampshire law, a manufacturer need not warn

of all potential dangers associated with a product. See Thibault

v. Sears, Roebuck & Co., 395 A.2d 843 (N.H. 1978)(manufacturer

need not warn of known, but very unlikely, risk of danger).

Similarly, one may infer from this precedent that there is no

duty to warn on the basis of speculation that a product might be

dangerous. Thus, the meaning conveyed by the court's instruction

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is closer to the formulations found in New Hampshire cases than

is appellant's proposed alteration, which itself is subject to

different interpretations, some of which are inconsistent with

the formulations in the New Hampshire cases. Thus, appellant's

challenge on this ground fails.

B. The New Hampshire Asbestos Exposure Standard
B. The New Hampshire Asbestos Exposure Standard

Appellant challenges the trial court's failure to

instruct the jury on the New Hampshire standard for indoor

nonoccupational asbestos exposure. See N.H. Rev. Stat. Ann. 141-

E:6. This numerical standard (.01 f/cc) triggers the

applicability of certain New Hampshire regulations concerning

asbestos abatement procedures used as a part of construction or

maintenance.

The court instructed the jury on federal OSHA and EPA

regulations, as well as the New Hampshire regulations

establishing procedures to be followed during asbestos abatement

projects. The court told the jury that the various state and

federal statutes were relevant to the issue of damages only and

not to the defendant's liability. Since the jury found no

liability and therefore did not reach the issue of damages, the

court's alleged error in failing to instruct the jury on the New

Hampshire asbestos exposure standard is, in retrospect,

irrelevant and therefore harmless, unless appellant can establish

relevance to liability issues.

Appellant's challenge on appeal contains the implicit

assertion that the New Hampshire asbestos exposure standard is

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relevant to the defendant's liability. The appellant, although

objecting to the court's failure to instruct the jury on the New

Hampshire statute, did not object to that part of the court's

instruction telling the jury that these statutes were relevant to

the issue of damages only and not to the issue of liability. The

appellant having failed in its objections and request for

instruction to articulate an argument for relevancy to liability

or any legal basis for relevancy, we review the trial court's

instruction only for plain error. See Poulin v. Greer, 18 F.3d

979, 982 (1st Cir. 1994).

We conclude that it was not plain error, if error at

all. The New Hampshire asbestos exposure standard does not

impose a rule of conduct on sellers of asbestos products or

contractors using asbestos products. Instead, it establishes a

threshold of authorization for the director of the Division of

Public Health Services to take certain regulatory action, if

warranted. See N.H. Rev. Stat. Ann. 141-E:8. In addition, it

triggers the applicability of certain safety regulations to

asbestos removal and abatement projects at relevant buildings.

See N.H. Rev. Stat. Ann. 141-E:7.

We conclude that no decision cited to us, and none of

which we are aware, establishes a basis for plaintiff's assertion

that the New Hampshire asbestos exposure standard is relevant to

the defendant's liability. Moreover, given that the New

Hampshire state regulators have taken no action with respect to

appellant's building, the standard at issue bears only upon the

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calculation of costs the appellant might incur in the future.

For these reasons, we hold that even if there was error in the

trial court with respect to this asbestos exposure standard, it

was harmless in this case.

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IV.
IV.

In oral argument and in its brief, appellant asserts

that as a matter of substantive law a claimant is entitled to

have the court instruct the jury that a claim of strict product

liability is to be decided by a jury in a single evaluative

finding after jury consideration of all relevant factors. Thus,

for example, the appellant argues that if the jury thought there

was some evidence of departure from ordinary prudence with

respect to warning but not enough evidence for the jury to find

departure from ordinary prudence by a preponderance of the

evidence, the jury could nevertheless take this evidence into

account among all the other factors they considered in deciding

whether the product was defective.

Appellant asserted in oral argument before this court

that the jury in a strict product liability case is allowed to,

and should be instructed to, make one overall weighing of all

factors bearing upon (1) manufacturing defect, (2) design defect,

and (3) warning defect. Appellant cites no precedent explicitly

supporting this contention, and we are aware of none.

Two independently significant points are implicitly

essential to the validity of the argument. We consider each.

A. Consideration of the Cumulative Effect of the Evidence
A. Consideration of the Cumulative Effect of the Evidence

Appellant's argument depends on an implicit assumption

that a claimant need not establish independently, by a

preponderance of the evidence, any one of the three separate

theories of strict liability (manufacturing defect, design

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defect, and warning defect).

In the context of this case, appellant argues that the

evidence of failure to warn, although not sufficient by itself to

support a finding of strict liability by a preponderance of the

evidence, may be combined by the jury with any evidence of a

design defect and may result in a finding of strict liability by

a preponderance of the evidence. In some cases, this would lead

to the anomalous result that the jury could find defendant

strictly liable by a preponderance of evidence without finding by

a preponderance of the evidence a manufacturing defect, a design

defect, or a warning defect.

For example, the appellant implies that a plaintiff can

prevail if the jury finds none of the three defects by a

preponderance of the evidence and yet finds that the evidence

shows a .40 probability of each and, in some unexplained way, a

.51 probability of defect in its overall weighing of all evidence

received at trial.

This argument is flawed. A .40 probability of each of

three separate defects cannot add up to a .51 probability

overall. Instead, in this assumed circumstance, unless the three

are interdependent (as they may be), there is no better than a

.064 probability (.40 x .40 x .40) that all three are true, and

neither mathematically nor as a matter of common sense do three

.40 probabilities show a .51 probability that one of the three or

some combination of two or all three is true.

Moreover, as a matter of settled law, judicial opinions

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and commentators alike refer to proof of manufacturing defect,

design defect, and warning defect as three different ways of

proving product defect, not just as factors bearing upon one way

of proving product defect. See Brochu, 642 F.2d at 661

(discussing separately the "design-defect theory" and the "duty-

to-warn theory" with respect to jury instructions under New

Hampshire law); Thibault, 395 A.2d at 846 (distinguishing policy

factors bearing upon strict liability for manufacturing defect

from those bearing upon strict liability for design defect and

citing James A. Henderson, Jr., "Judicial review of

Manufacturers' Conscious Design Choices: The Limits of

Adjudication," 73 Colum. L. Rev. 1531 (1973)); see also

Restatement (Third) of Torts: Products Liability, 2 cmt. a,

Tentative Draft No. 1 (Apr. 12, 1994)(setting forth "separate

standards of liability for manufacturing defects, design defects,

and defects based on inadequate instructions or warnings," and

explaining different sets of policy arguments and objectives for

the separate standards); id., Reporters' Note, at 35-80

(explaining the Reporters' view that the formulation of separate

standards for manufacturing, design, and warning defects is

consistent with the weight of precedent); Oscar S. Gray, "The

Draft ALI Product Liability Proposals: Progress or Anachronism?"

61 Tenn. L. Rev. 1105, 1108 (1994)(although criticizing the ALI

Tentative Draft in other respects, accepting the point that "the

overwhelming body of interpretation by the courts has accepted

the three-pronged differentiation between manufacturing, design,

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and warning defects").

Appellant cites Chellman as holding, or at least

implying, that there is only one strict product liability theory

in New Hampshire law, and that only one question about the

adequacy of plaintiff's proof of strict liability should be

submitted to a jury. A close reading of the case, however, does

not support the view that Chellman addressed the choice between

(a) treating manufacturing defect, design defect, and warning

defect as separate theories, each involving a distinctive

standard for determining liability, and (b) treating the three as

merely factors in a single multiple-factors standard for making

an evaluative determination that a product is or is not a

defective product.

In Chellman, the defendant argued that strict liability

for design defect and strict liability for failure to warn were

distinct, and that the plaintiff had failed to plead a strict-

liability-for-failure-to-warn claim. See Chellman, 687 A.2d at

151. In deciding that the plaintiff's complaint sufficiently

stated a strict liability claim, on the basis of inadequate

warning, to meet plaintiff's burden of pleading, see id., the

court did not need to or purport to decide whether proving

defective warning and proving defective design in respects apart

from warning were two separable ways of proving strict product

liability. Thus, Chellman neither endorses nor rejects the

general proposition that manufacturing defect, design defect, and

warning defect are commonly treated by courts and commentators as

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three separate ways of proving product liability.

The commonly accepted understanding that a plaintiff

must establish one or another of the three kinds of defects

(manufacturing defect, design defect, or warning defect) by a

preponderance of the evidence leaves the jury entirely free to

weigh a single item of evidence as relevant to claims of two or

even all three kinds of defect. Thus, for example, New Hampshire

case law supports the proposition that evidence concerning the

existence and adequacy of a warning is relevant not only to a

warning defect claim, but also to a design defect claim. See

Chellman, 637 A.2d at 150; Reid v. Spadone Machine Co., 404 A.2d

1094, 1097 (N.H. 1979)("This condition [the placement of certain

buttons on a machine], coupled with inadequate warnings against

two-person use, could properly be found to have made the machine

'unreasonably dangerous.'").

The issue before us now, however, does not concern

admissibility of evidence. The jury was free under the court's

rulings, absent limiting instructions, to consider all evidence

received at trial. In these circumstances, we conclude that the

jury's finding of no violation as to the duty-to-warn negligence

claim bars the strict-liability-duty-to-warn claim. This is so

because in finding that there was no liability for failure to

warn on the negligence theory the jury necessarily found either

(1) that plaintiff failed to prove that the defendant's warnings

and instructions violated the prudent care standard or (2) that,

if the warning was inadequate, plaintiff failed to prove that the

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inadequacy of the warning caused the plaintiff's injury.

Under either of the two possible interpretations of the

jury's finding, the jury has determined that plaintiff has failed

to prove by a preponderance of the evidence any violation of a

duty of prudent care as to warning. This bars the strict-

liability-as-to-warning claim unless the law of New Hampshire

imposes a more onerous duty than one of prudent care as part of

the law of strict product liability.

B. An All-Factors Evaluative Determination
B. An All-Factors Evaluative Determination

Appellant's weighing-of-all-factors argument, if taken

at face value and without qualification, leads implicitly to a

surrender of judicial responsibility for instructing the jury to

respect the law's outside limits on jury discretion. It is true

that appellant's argument for an unlimited all-factors evaluative

determination by the jury has a surface plausibility, which may

appear to be reinforced by support in some states for application

of a standard requiring the jury to "weigh competing factors much

as they would in determining the fault of the defendant in a

negligence case." Back v. Wickes, 378 N.E.2d 964, 970 (Mass.

1978). Thus:

In evaluating the adequacy of a
product's design, the jury should
consider, among other factors, "the
gravity of the danger posed by the
challenged design, the likelihood that
such danger would occur, the mechanical
feasibility of a safer alternative
design, the financial cost of an improved
design, and the adverse consequences to
the product and to the consumer that
would result from an alternative design."

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Id. at 970 (quoting Barker v. Lull Eng'r Co., 573 P.2d 443 (Cal.

1978) and citing Bowman v. General Motors Corp., 427 F. Supp.

234, 242 (E.D. Pa. 1977)).

The plausibility of appellant's argument is reinforced

by the statement of the Supreme Court of New Hampshire in

Thibault that:

Inquiry into the dangerousness of a
product requires a multi-faceted
balancing process involving evaluation of
many conflicting factors . . . .
Reasonableness, foreseeability, utility,
and similar factors are questions of fact
for jury determination.

Thibault, 395 A.2d at 846-47; see also Espeaignnette v. Gene

Tierney Co., No. 94-1258, slip. op. at 10 (1st Cir. Dec. 28,

1994)(citing St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me.

1988) and discussing the "danger-utility" test used by the Maine

courts). Perhaps even more supportive of appellant's argument is

another passage from the opinion of the Supreme Judicial Court of

Massachusetts in Back v. Wickes Corp.:

In balancing all of the pertinent
factors [in deciding whether there was a
design defect] the jury makes a judgment
as to the social acceptability of the
design, and this is the same judgment
originally made by the designer of the
product.

378 N.E.2d at 970.

Even if one takes these passages to mean that some

policy weighing is left to the jury, however, it does not follow

that the legal system approves an unlimited all-factors

evaluative determination by the jury. Even when approving a

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multiple-factors-weighing-test for jury use in finding an

"ultimate fact," such as product defect, the legal system does

not authorize the jury to give whatever weight the jury chooses

to arguments of public policy for and against strict liability.

To do so would leave to the jury an authority and responsibility

that is unguided by any public policy determinations made in

statutes and precedents.

Ordinarily issues of public policy are in the first

instance appropriate for a legislature's determination by statute

and, if not determined by statute, may be determined by a state

court of last resort in its decisions setting precedents.

We do not understand appellant's counsel as explicitly

arguing for a broad and sweeping jury discretion that extends to

public policy issues ordinarily decided by statutes or

precedents. We consider the argument in this extreme form,

however, because of the procedural posture of this case.

Appellant seeks a new trial despite a supportable jury

finding that defendant did not fail to exercise ordinary prudence

with respect to warning and instructions for use. This

contention, however, is procedurally barred unless plaintiff

proffered an instruction or objection clearly giving the trial

judge and the opposing party notice of this theory of claim,

including a formulation of an acceptable limit or qualification

to distinguish plaintiff's contention from an argument for

unlimited jury discretion. Thus, we consider the more extreme

implications of the unqualified argument to make the two points

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that a limit is essential and that the burden is on the plaintiff

to propose an acceptable explanation of that limit rather than

asking a trial court to leave a jury unguided.

To sustain appellant's argument for a new trial on the

procedural record before us, we would have to determine that New

Hampshire tort law places no limit on the jury's authority, in

reaching the jury's overall evaluative finding in a strict

liability case, to weigh all policy arguments (or at least those

policy arguments supported by any evidence received in the trial)

for and against strict liability, in reaching the jury's overall

evaluative finding in a strict liability case.

We cannot say that New Hampshire has adopted, and

cannot predict that it will adopt, the novel position that the

jury has this authority. Allowing the jury such sweeping

authority would be contrary to premises so fundamental that

courts only rarely sense a need to advert to them.

The first of these basic premises of settled law

concerns the role of precedent in the legal system. A court's

acceptance of an argument for a literally "all-factors"

evaluative decision by a jury of a strict product liability claim

would have the effect of delegating to the jury the authority and

responsibility for weighing conflicting arguments of public

policy bearing upon the scope and limits of strict liability and

striking the balance that determines the legal system's answer,

case by case. This would undermine the function of precedent in

the legal system -- to promote evenhanded decision of like cases

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alike. Judicial decisions considering similar arguments for jury

discretion to weigh public policy arguments have rejected the

idea. See, e.g., Shackil v. Lederle Laboratories, 561 A.2d 511,

528 (N.J. 1989) (the majority, over vigorous dissent, declined to

leave to a jury a public policy choice that, it was argued, would

drive DPT vaccine for infants off the market); Bammerlin v.

Navistar Int'l Transp. Corp., 30 F.3d 898 (7th Cir. 1994)(the

trial court, not the jury, should have made the evaluative

determination whether a truck cab manufacturer complied with

federal safety standards); Bryant v. Tri-County Electric

Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994)(the court, not

the jury, weighed "the public policy goals of protecting consumer

and discouraging the sale of defective goods" and held that the

strict liability doctrine applied to the services of electric

utilities). But cf. Dawson v. Chrysler Corp., 630 F.2d 950 (3d

Cir. 1980), cert. denied, 450 U.S. 959, 962-63 (1981)(recognizing

the dangers of such a case-by-case determination in the context

of motor vehicle safety standards but declining to reverse a

judgment entered on a verdict of a jury that was allowed very

broad discretion by the trial court's charge).

A second basic premise of settled law is that

determinations of liability (whether under a concept of "duty" or

"cause" or some other terminology such as "scope of liability")

are never exclusively "fact" questions to be decided by a jury,

or by a judge as factfinder in a non-jury trial. Even when some

disputed issue of historical fact is relevant, the determination

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of "duty," "cause," or "scope of liability" is a mixed law-fact

determination rather than exclusively a fact question. See,

e.g., Deguio v. United States, 920 F.2d 103, 105 (1st Cir.

1990)(determination of negligence is a mixed question of law and

fact and entitled to clear error standard of review); St. Paul

Fire & Marine Ins. Co. v. Caguas Fed. Sav. & Loan Ass'n, 867 F.2d

707, 708 (1st Cir. 1989)("Negligence and causation are

traditionally mixed questions of fact and law."); cf. Milliken &

Co. v. Consolidated Edison Co., 63 U.S.L.W. 2361 (N.Y. Ct. App.

1994)("The existence and scope of an alleged tortfeasor's duty,

at the threshold, is a legal, policy-laden determination

dependent on consideration of different forces, including logic,

science, [and] competing socio-economic policies . . . .").

When a jury participates in the determination of a

mixed-law-fact question, it does so under instructions from the

trial judge explaining the legal aspects of the evaluative

"finding" the jury makes. See Kissell v. Westinghouse Electric

Corp., 367 F.2d 375, 376 (1st Cir. 1966)(special interrogatories

to the jury can be mixed questions of law and fact, if the jury

is properly instructed as to the law); see also Chellman, 637

A.2d at 151 ("Clear and intelligible jury instructions are

particularly important to explain complex or confusing legal

concepts.").

In the face of these settled principles, no decision

cited to us, and none of which we are aware, in New Hampshire or

elsewhere, requires the submission to the jury of a single

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evaluative question determining a strict liability claim. We

conclude that, in deciding this appeal in a diversity case, we

should not predict an expansion of strict liability under New

Hampshire law to the extent of permitting juries a discretion not

guided by instructions on the limits set by the public policy

choices, explicit and implicit, in New Hampshire statutes and

precedents. Cf. Thibault, 395 A.2d at 847 (indicating that the

strict liability cause of action is narrower in New Hampshire

than in some other jurisdictions); Bagley v. Controlled

Environment Corp., 583 A.2d 823, 826 (N.H. 1986)(discussing

Buttrick v. Lassard and stating that the strict liability actions

are limited to claims for which requiring a plaintiff to prove

negligence would pose "a practical barrier to otherwise

meritorious claims").

V.
V.

Remaining for consideration is appellant's argument

that even if the jury should not be allowed such sweeping

discretion, at least appellant should be allowed a new trial to

seek a jury finding under an instruction on duty to warn somewhat

more burdensome to a defendant than merely a duty of ordinary

prudence. This issue, however, is the question stated at the

beginning of this Opinion. It is the interesting question that,

on federal procedural grounds, we conclude we should not reach in

this case. Not having objected precisely on this ground and not

having proposed to the trial judge an acceptable instruction to

the jury on a question that, viewed most favorably to appellant,

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is a mixed-law-fact question, appellant is precluded from

advancing this contention now.

Plaintiff's requests for instruction and objection to

the charge, generously construed in plaintiff's favor, were

sufficient, we assume, to alert the trial judge to plaintiff's

contention that a departure from ordinary prudence with respect

to warning and instructions for use would render the product

defective for the purpose of plaintiff's strict liability claim.

In its denial of the motion for new trial, the trial court

conceded that its instruction had been in error in this regard.

Apart from this ground of request and objection,

however, plaintiff proffered no form of instruction on duty to

warn as part of the strict liability claim. For this reason, the

request and objection were not specific enough to preserve any

other issue with respect to the strict liability instruction for

consideration on motion for new trial or on appeal. See Fed. R.

Civ. P. 51; see also Jordan v. United States Lines, Inc., 738

F.2d 48 (1st Cir. 1984)(holding that appellant's objection to the

trial court's instruction on the definition of "unseaworthiness"

was not specific enough to satisfy Rule 51). Moreover, even in

the brief before this court and on oral argument, appellant has

failed to propose any instruction that would define the issue or

issues left to be tried after we accept, as already tried and

fairly determined, the issues decided by the jury verdict.

The jury findings (which we have determined are not

undermined by any of appellant's attacks) must stand. And, as we

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have noted, appellant has not proffered any definition of an

issue, for which there is support in precedent or in reason, left

to be tried on new trial. To remand for new trial without

providing any guidance about the issue or issues to be tried

would be inappropriate. And, of course, it would be manifestly

unfair to set aside the fairly determined jury findings and award

a new trial without limitation. Thus, we affirm the trial

court's denial of the plaintiff's motion for new trial.

CONCLUSIONS
CONCLUSIONS

First. Plaintiff-appellant's challenges to the jury

findings on the basis of the instructions given on duty to warn

in negligence are without merit and the jury findings establish

that plaintiff failed to prove causal negligence in any relevant

way (including due care in warning and instructions for use) and

plaintiff failed to prove that defendant is strictly liable on

any ground apart from failure to warn.

Second. Plaintiff-appellant's requests for

instruction and objection to the charge on the strict liability

claim were not sufficient to preserve on motion for new trial and

on appeal the contention that, under New Hampshire law, the duty

to warn as a part of a strict liability claim requires more of a

defendant than does the duty to warn in a negligence claim.

Third. New Hampshire substantive law does not require

that a product defect be determined on the basis of an unlimited

all-factors weighing by a jury, unguided by statutory and

decisional limitations on the scope of strict liability.

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Fourth. In light of these conclusions, the jury's

verdict in defendant's favor on the duty to warn as part of the

negligence claim precludes a finding in plaintiff's favor on the

duty to warn as part of the strict liability claim, and any error

of the trial court with respect to the instruction on strict

liability was harmless.

Judgment for defendant is AFFIRMED, with costs.

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