Santos v. Sunrise Medical, Inc.

United States Court of Appeals
For the First Circuit

No. 02-2531

MIRIAM SANTOS and KAREN BRIDGEFORTH,

Plaintiffs, Appellees,

v.

SUNRISE MEDICAL, INC. and SUNRISE MEDICAL HHG, INC.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Lipez, and Howard,
Circuit Judges.

Joseph J. Leghorn, with whom Nixon Peabody LLP and Bart
Heemskerk were on brief, for appellants.
Terry M. Ford, with whom Frank R. Saia and Saia Law Office
were on brief, for appellees.

December 12, 2003
 HOWARD, Circuit Judge. Defendants Sunrise Medical, Inc.

and Sunrise Medical HHG, Inc. (collectively, “Sunrise”) challenge

a jury verdict in favor of two certified nurse assistants who were

injured at a Massachusetts nursing home while using medical

equipment manufactured by Sunrise. Sunrise contends that the

district court erred in denying Sunrise’s motions for judgment as

a matter of law and for a new trial. We affirm.

I.

On July 1, 1999, Miriam Santos and Karen Bridgeforth were

injured while using a hydraulic Hoyer lift manufactured by Sunrise

to transfer a nursing home resident from her bed to her

wheelchair.1 While the plaintiffs were transferring the patient,

the lift began to tip. The plaintiffs suffered neck and back

injuries in attempting to prevent the patient, who weighed

approximately 210 pounds, from falling to the floor.

In December 2000, the plaintiffs brought the underlying

diversity action against Sunrise, asserting claims for negligence,

failure to warn, breach of the implied warranty of merchantability,

and violation of the Massachusetts Consumer Protection Act, Mass.

Gen. Laws ch. 93A (“Chapter 93A”). The case was tried before a

jury in July 2002. At trial, Santos and Bridgeforth described the

1
The Hoyer lift has a metal frame supported by a U-shaped base
that can be positioned under a patient’s bed. The patient is
secured in the lift by a harness attached to a boom at the top of
the frame.

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accident and their resulting injuries. In addition, they called a

mechanical engineer, Richard Montefusco, who testified that the

lift was defective because the locking mechanism of the adjustable

base had a tendency to get “hung up” or to disengage if the lift

was moved, allowing the legs of the base to close and the lift to

tip.

At the close of the plaintiffs’ case, Sunrise moved for

judgment as a matter of law, alleging, inter alia, that Santos and

Bridgeforth had failed to establish a prima facie case against

Sunrise under any theory of liability. The district court granted

the motion in part, disposing of the failure-to-warn counts. At

the close of all the evidence, Sunrise unsuccessfully moved again

for judgment as a matter of law. The remaining claims for

negligence and breach of warranty were submitted to the jury.2 By

special verdict, the jury found Sunrise liable on both counts,

awarding $600,000 to Santos and $450,000 to Bridgeforth. Sunrise

renewed its motion for judgment as a matter of law pursuant to Fed.

R. Civ. P. 50(b), and moved, in the alternative, for a new trial.

The district court denied the motions. This appeal followed.

2
The Chapter 93A claims, which were not subject to resolution
by jury trial, see Wallace Motor Sales, Inc. v. American Motors
Sales Corp., 780 F.2d 1049, 1066-67 (1st Cir. 1985), were dismissed
in September 2002 on the ground that the demand letter sent to
Sunrise provided inadequate notice of the plaintiffs’ claims.

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 II.

Sunrise contends that the plaintiffs failed to prove a

prima facie case of negligence or breach of warranty. Challenging

the district court’s failure to enter judgment as a matter of law,

Sunrise argues that no reasonable jury could have reached a verdict

for the plaintiffs on the evidence presented. Alternatively,

Sunrise claims that the district court committed reversible error

in (1) excluding relevant evidence providing an alternate theory of

causation, and (2) permitting the plaintiffs’ counsel to make

improper and inflammatory remarks during closing arguments.

A.

We review the district court’s denial of Sunrise’s motion

for judgment as a matter of law de novo, considering the evidence

in the light most favorable to Santos and Bridgeforth as

nonmovants. Star Fin. Servs., Inc. v. Aastar Mortgage Corp., 89

F.3d 5, 8 (1st Cir. 1996). In so doing, we do not “consider the

credibility of witnesses, resolve conflicts in testimony, or

evaluate the weight of the evidence.” Id. (quoting Wagenmann v.

Adams, 829 F.2d 196, 200 (1st Cir. 1987)). We reverse “only if the

facts and inferences point so strongly and overwhelmingly in favor

of the movant that a reasonable jury could not have reached a

verdict against that party.” Id. (quoting Golden Rule Ins. Co. v.

Atallah, 45 F.3d 512, 516 (1st Cir. 1995)(internal quotation

omitted)).

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 Sunrise contends first that the plaintiffs failed to

establish a causal connection between any purported design defect

and their injuries. Sunrise identifies numerous evidentiary

weaknesses in the plaintiffs’ case on causation, including the

absence of eyewitness testimony that the base of the lift actually

closed; a contemporaneous report based on the plaintiffs’ account

of the accident that does not state that the base closed; and some

unexplained events at the time the lift tipped (such as screws or

metal pieces hitting the floor and the handle of the lift becoming

detached). Sunrise also questions the utility of Montefusco’s

testimony, characterizing the testimony as too speculative. It

notes that Montefusco never conducted an accident reconstruction

nor determined the amount of force necessary to tip the lift.

Sunrise downplays Montefusco’s testimony that the alleged design

defect caused the accident as “an out of context answer on cross-

examination.”

In denying Sunrise’s renewed motion for judgment as a

matter of law, the district court found that “[t]he testimony

adequately conveyed that the base of the lift ‘closed up,’ causing

the instability and the accident. The expert testimony adequately

tied the ‘closing up’ to a simple design defect. While the

evidence was not overwhelming, it was sufficient.” We agree.

Taking the evidence in the light most favorable to the

verdict, a reasonable jury could have credited Santos’ testimony

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that the base of the lift was not open to its widest position

because of the configuration of the beds in the patient’s room;

that upon securing the patient in the harness and lifting her,

Santos began to pull the lift out from under the bed and turn the

lift slightly to adjust the base to its widest position; that when

Santos attempted to widen the lift, it “closed” and “started

tipping”; and that the plaintiffs were injured in attempting to

keep the patient from falling.

The jury could have also credited Montefusco’s testimony

that the pin and the engaging mechanism that were designed to keep

the adjustable base of the lift in a locked position could get

“hung up,” or fail to engage; that moving the lift while this

mechanism was disengaged and the lift was loaded could cause the

pin to slide into the narrowest setting; that the lift was likely

to tip if the base was in its narrowest setting; that slight

alterations to the shape of the pin and the engaging mechanism

would have allowed the pin to catch on the next setting, instead of

slipping into the narrowest setting; that a slight lengthening of

the pin would have kept the pin from becoming disengaged; and that,

as Montefusco testified on cross-examination, the accident was

caused by this design problem.

On appeal, Sunrise attacks the credibility, weight, and

value of the plaintiffs’ evidence of causation. But it is not the

province of this Court to reevaluate the evidence presented at

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trial. Star Financial Services, 89 F.3d at 8. We determine only

if the evidence was minimally sufficient to support the verdict.

Considering the evidence as a whole and in the light most favorable

to the plaintiffs, we conclude that a reasonable jury could have

found that a design defect in the lift caused the accident that

injured Santos and Bridgeforth.

Sunrise also contends that the plaintiffs failed to

demonstrate that the lift had been properly maintained in the six

years following its manufacture. Implicit in this argument is a

misunderstanding of the evidentiary burden imposed on a plaintiff

alleging a design defect under Massachusetts law. See Smith v.

Ariens Co., 375 Mass. 620, 626 (1978). In such cases, a plaintiff

need only show that the defect existed when it left the control of

the manufacturer. Id. (“No negating of the possibility of

mishandling by intermediaries is necessary.”).

At trial, Montefusco testified that, based on his review

of the lift’s manuals and parts list, the lift arrived from Sunrise

in three pieces, but the base of the lift (which included the

locking mechanism) came fully assembled. The jury also heard from

the executive director of the nursing home where the accident

occurred, who testified that he looked for maintenance records on

the lift and, based on the few records he located, found no

evidence of any changes made to the lift other than the replacement

of a hydraulic pump. This evidence, taken together, could have

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supported an inference that the defect in the lift existed at the

time it left Sunrise’s control. See, e.g. id. at 627 (finding

reasonable inference that sharp metal protrusions on brakes of

snowmobile were present when product left factory when testimony

established that although snowmobile arrived partially assembled,

brake clamps arrived riveted to handle bar); Collins v. Sears,

Roebuck & Co., 31 Mass. App. Ct. 961, 962 (1992) (finding

reasonable inference that a clothes dryer was in same condition at

time of sale as it was at time of accident when jury heard no

evidence that electrical system had been repaired after purchase).

As set forth above, no more is required to sustain a design defect

claim under Massachusetts law.

B.

Sunrise contends that even if we reject its arguments for

judgment as a matter of law, it is entitled to a new trial on the

basis of an erroneous evidentiary ruling and improper closing

argument by the plaintiffs' counsel. We review the district

court’s evidentiary ruling for abuse of discretion, a standard that

allows the court “considerable latitude in determining whether to

admit or exclude evidence” under Rule 403 of the Federal Rules of

Evidence. Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 5

(1st Cir. 1994). “Only rarely -- and in extraordinarily compelling

circumstances -- will we, from the vista of a cold appellate

record, reverse a district court’s on-the-spot judgment concerning

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the relative weighing of probative value and unfair effect.” Id.

Sunrise argues that the district court committed

reversible error in excluding a January 2000 letter from the

plaintiffs’ counsel to the Occupational Safety and Health

Administration (“OSHA”). In the letter, counsel requested an

inspection of the nursing home where the plaintiffs worked “for the

failure to maintain its Hoyer Lifts resulting in personal injury to

Karen Bridgeport [sic] and Miriam Santos.” Counsel also opined

that “OSHA rules and regulations have been violated by the

employer.” During its cross-examination of Bridgeforth, Sunrise

sought to introduce the letter as an admission of the plaintiffs

that the cause of the occurrence was lack of maintenance of the

lift, rather than any design defect. Sunrise alleges that the

letter was a critically important admission as to an alternative

theory of causation.

We find that the district court acted within its

discretion in excluding the letter to OSHA. Contrary to Sunrise’s

assertions on appeal, the district court explained the bases for

its ruling. The court stated that the letter was cumulative of

testimony of an accident report and a complaint made by Santos, and

that it would open up an area of potential confusion for the jury,

namely OSHA’s investigation and findings with respect to the lift.

The district court also found the letter cumulative, confusing, and

perhaps unfairly prejudicial to the extent that it was a statement

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by counsel, but not necessarily by the plaintiffs.

Sunrise argued below that counsel was acting as the

plaintiffs' agent when the letter was sent, and alluded to case law

supporting the letter’s admission. The court invited Sunrise to

identify the authority to which it was referring, but ruled that in

the meantime, Sunrise could ask Bridgeforth if she recognized the

letter and question her about the source of the information

contained therein if she did. When asked, Bridgeforth stated that

she had never seen the letter before, and it was not admitted.

Sunrise did not raise the issue again until its motion for new

trial. Under these facts, we cannot say the admissibility ruling

constituted reversible error.

Sunrise also contends that plaintiffs’ counsel made three

“inflammatory” statements during closing argument that caused

prejudicial error. First, counsel argued that a small object on

the floor could have obstructed the casters on the base and caused

instability. According to Sunrise, this argument had no basis in

fact, and was an improper reference to the failure-to-warn theory

of liability, which was foreclosed by the district court’s earlier

disposition of the failure-to-warn claims. But Sunrise did not

object to this line of argument. Thus we review it only for plain

error. Smith v. Kmart Corp., 177 F.3d 19, 25-26 (1st Cir. 1999).

We ask whether this constituted a plain error affecting substantial

rights, and, if so, whether review is necessary to avoid a

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miscarriage of justice. Id. at 26 (“Plain error is a rare species

in civil litigation, encompassing only those errors that reach the

pinnacle of fault envisioned by the standard set forth above.”

(internal quotation omitted)). Here, counsel’s reference to a

possible obstruction had some basis in the record, including

testimony that pieces of metal, possibly screws, were found on the

floor after the accident. Further, counsel did not suggest a

failure to warn by Sunrise; to the contrary, counsel noted that a

training videotape that accompanied the lift in fact warned against

rolling the lift over an obstruction. We find no error, plain or

otherwise.

Second, Sunrise alleges that counsel made references to

the removability of the handle of the lift that were improper in

light of a pretrial ruling that certain evidence relating to the

handle would not be admitted because of an untimely expert

disclosure. But Sunrise’s only objection came after counsel’s

statement that the handle had been altered. The district court

sustained the objection and instructed the jury to disregard this

remark. Sunrise did not object when counsel argued that the handle

was designed to be removed when transporting the lift. We

therefore ask whether this portion of the closing argument was

plainly erroneous. See id. Even if we assume arguendo that

counsel should not have referred to the handle, Sunrise has

demonstrated no prejudice to its substantial rights.

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 Finally, according to Sunrise, counsel improperly

referred to a duty to test the lift that Sunrise failed to meet.

In discussing the locking mechanism of the base, counsel stated

“They didn’t test it under a dynamic load I submit,” and Sunrise

objected. The court asked counsel about the purpose of this

argument and whether he was going to talk about testing. Counsel

stated that he was not going to talk about testing, and the court

instructed him to move on. Counsel then turned to the subject of

the manufacturer’s obligation to foresee the way the product would

be used. We assume without deciding that Sunrise’s objection was

sufficient to preserve the issue for review. But Sunrise bears a

heavy burden on appeal -- it must show that the district court

abused its discretion in denying Sunrise's motion for new trial

based on counsel's comment, and that prejudice has resulted.

Puerto Rico Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169

F.3d 68, 81-82 (1st Cir. 1999). Considering the isolated nature of

the statement, its irrelevance to the core issues considered by the

jury, and the prompt limitation of the line of argument by the

district court, we find no error. Id. at 82 (“In assessing the

effect of improper conduct by counsel, the Court must examine the

totality of the circumstances, including the nature of the

comments, their frequency, their possible relevancy to the real

issues before the jury, the manner in which the parties and the

court treated the comments, the strength of the case, and the

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verdict itself.”).

III.

For the foregoing reasons, we affirm the district court’s

denial of Sunrise’s motions for judgment as a matter of law and new

trial.

So ordered.

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