Gillespie v. Sears, Roebuck & Co.

United States Court of Appeals
For the First Circuit

No. 03-2087

JAMES GILLESPIE and DEBORAH GILLESPIE,

Plaintiffs, Appellees,

v.

SEARS, ROEBUCK & COMPANY and
EMERSON ELECTRIC COMPANY,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Dyk,* Circuit Judges.

William L. Boesch with whom David A. Barry and Sugarman,
Rogers, Barshak & Cohen, P.C. were on brief for appellants.
Michael B. Flynn with whom Lori A. Wirkus and Flynn &
Associates, P.C. were on brief for appellees.

October 6, 2004

*
Of the Federal Circuit, sitting by designation.
 BOUDIN, Chief Judge. In 1998, Frank Gillespie was

working as a locksmith after many years in various building trades.

In September of that year, he asked his employer to let him keep

its 10-inch table saw at his house for work and personal use, and

his employer agreed. The saw, which he received from coworker

Michael Kane, had been designed and manufactured by Emerson

Electric Co. and sold by Sears, Roebuck & Co. under the Craftsman

brand. Kane did not give Gillespie the saw's owner's manual or its

blade guard.

A standard table saw of the type used by Gillespie has a

flat rectangular metal surface through which a rotary saw blade

protrudes; the blade's height and angle can be adjusted for

different kinds of cuts. The wood to be cut is fed into the blade

by sliding the wood over the saw's table surface away from the

user. For some cuts, the wood is kept in alignment by a metal

guide called a rip fence on the saw's surface to one side of the

blade. Behind the blade, there may also be affixed to the saw a

spreader and blade guard as will be more fully described below.

On November 23, 1998, Gillespie used the table saw to

trim an inch off each side of a 28-inch-wide door. After finishing

the cut, he shut off the saw and set the door down. Six seconds

after shutting off the saw,1 Gillespie turned and his hand came

1
Gillespie had earlier reported delays of four seconds, three
to four seconds, and "instantaneously." His ultimate estimate of
six seconds derived from a post-accident reenactment that he

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into contact with the blade before it had stopped. The still-

spinning blade lacerated several of his fingers; his badly damaged

right ring finger had to be amputated after several unsuccessful

surgeries.

Gillespie and his wife, Deborah, brought suit in state

court against Emerson and Sears (collectively, "Emerson"), who

removed the case to district court. Gillespie's complaint,

alleging that the accident was caused by defects in the saw's

design, asserted claims of negligence and breach of implied

warranty of merchantability under Massachusetts law; his theories

of defect concerned (1) the design of the blade guard, (2) lack of

a brake for the wheel, and (3) inadequate labeling. Gillespie's

wife claimed for loss of consortium.

Trial was held in June 2003, and–-after denying Emerson's

motion for judgment as a matter of law--the judge sent the case to

the jury with a special interrogatory form asking seven questions:

whether Emerson had breached the warranty of merchantability and

this breach caused the accident; whether Emerson had been negligent

and this negligence caused the accident; whether Gillespie was also

negligent and if so the degree of fault attributable to each side;

the amount of damages due to Gillespie; and two questions

pertaining to Deborah's loss of consortium and damages due to her.

performed. On sufficiency-of-the-evidence review we resolve these
ambiguities in favor of the jury verdict and, therefore, use
Gillespie's six-second estimate.

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 During deliberations, the jury sent two notes asking the

purpose of the comparative negligence allocation. The judge

responded (so far as is pertinent here) that the allocation of a

percentage of negligence to Gillespie would reduce his recovery on

the negligence claim by that percentage (unless his share of

negligence exceeded 50 percent, in which case his recovery would be

barred entirely). The response also noted that "no deduction . .

. will be made on the breach of warranty claim."

Shortly thereafter, the jury found that Emerson breached

its warranty of merchantability; that Emerson was negligent but

that Gillespie was 49 percent contributorily negligent; that

Gillespie had suffered $750,000 in damages and his wife $100,000.

Following the verdict, Emerson renewed its motion for judgment as

a matter of law, and (in the alternative) sought a new trial. The

district court denied both requests, and entered judgment for the

full $850,000.

Emerson now appeals, asserting that there was

insufficient evidence on the three defect theories to support the

jury's verdict. Emerson also claims that the district court erred

by refusing to instruct the jury on an "unreasonable use" defense

to the breach of warranty claim. Finally, Emerson says that the

district court erred in imposing discovery-related sanctions on

Emerson and that these sanctions tainted the trial.

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 Sufficiency of the evidence. In assessing the

sufficiency of the evidence, the question for the court is whether,

viewing the evidence in the light most favorable to the verdict, a

rational jury could find in favor of the party who prevailed.

DaSilva v. Am. Brands, Inc., 845 F.2d 356, 359 (1st Cir. 1988); see

also Santos v. Sunrise Medical, Inc., 351 F.3d 587, 590 (1st Cir.

2003) ("In so doing, we do not consider the credibility of

witnesses, resolve conflicts in testimony, or evaluate the weight

of the evidence" (internal quotation marks omitted)). Our review

of the district court's denial of Emerson's motion for judgment as

a matter of law is de novo. Santos, 351 F.3d at 590.

Whether there was enough evidence depends upon what

Gillespie was required to prove. Gillespie's first claim was for

negligence. Massachusetts law, which controls this case, requires

manufacturers to design and produce products with reasonable care

to eliminate avoidable dangers arising from reasonably foreseeable

uses of the product. Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d

1, 15 (1st Cir. 2001). Manufacturers must guard against such

dangers, Colter v. Barber-Greene Co., 525 N.E.2d 1305, 1311 n.9

(Mass. 1988), taking account of foreseeable carelessness on the

part of the user, DeMedeiros v. Koehring Co., 709 F.2d 734, 739

(1st Cir. 1983).

In judging the adequacy of a product's design, pertinent

factors include

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 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.

Colter, 525 N.E.2d at 1310 (quoting Back v. Wickes Corp., 378

N.E.2d 964, 970 (Mass. 1978)) (internal quotation marks omitted).

An essential element of such a design flaw claim is that there be

a safer alternative design. See Kotler v. Am. Tobacco Co., 926

F.2d 1217, 1225 (1st Cir. 1990), vacated on other grounds, 505 U.S.

1215, and judgment reissued, 981 F.2d 7 (1st Cir. 1992); see also

Uloth v. City Tank Corp., 384 N.E.2d 1188, 1193 (Mass. 1978).

Massachusetts law also treats manufacturers and sellers

as warranting that their products are "fit for the ordinary

purposes for which such goods are used." Mass. Gen. Laws ch. 106

§ 2-314(2)(c) (2000). In most substantive respects (e.g.,

unreasonably dangerous design, reasonably foreseeable dangers,

alternative design feasibility), the negligence and warranty

inquiries are congruent. Oy Saunatec, 241 F.3d at 15-16; Back, 378

N.E.2d at 970; see also Allen v. Chance Mfg. Co., 494 N.E.2d 1324,

1326 (Mass. 1986).2

2
Although warranty is sometimes described as a no-fault claim
and "focuses on product characteristics rather than on the
defendant's conduct" as in negligence, Oy Saunatec, 241 F.3d at 15
(quoting Back, 378 N.E.2d at 970) (internal quotation marks
omitted), the use of foreseeability and unreasonable dangerousness
tests makes the warranty standards similar to negligence, although
various incidents of the two claims are different (e.g., the
consequences of user fault, the circumstances in which sellers in

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 Gillespie's first theory of design defect focused on the

design of the blade guard. On Gillespie's Craftsman saw, as with

most of the comparable table saws on the market, the guard-–a kind

of elongated plastic cap fitting over the top of the blade–-is

mounted on the spreader, a vertical metal plate directly behind the

blade. The spreader is to be used for "through cuts"--in which the

blade cuts all the way through the wood's thickness to cut it into

two pieces--and keeps the cut open after the wood passes behind the

blade so that the two separated sides do not clamp back together

onto the blade.

For certain cuts, the blade is partly lowered to cut only

a groove in the wood, rather than cutting all the way through the

wood's thickness to produce two separate pieces. For such cuts--

called "non-through" cuts--the spreader must be removed because it

would otherwise block the wood as it passed over the blade.

Gillespie's main expert (John Orlowski) testified that to conjoin

the guard with the spreader--which was removable and sometimes had

to be removed--invited users to take both off and then leave them

off. Orlowksi said that the safer alternative design was to attach

the blade guard to a cantilevered arm mounted by a bracket attached

to the edge of the table, thus allowing the guard to be used with

or without the spreader.

addition to manufacturers are liable).

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 At trial Emerson introduced into evidence a cantilevered

guard called the UniGuard which Emerson's expert (Jack Hyde, Jr.)

described as "the standard example of that type of design."

Gillespie's expert admitted that the cantilevered guard could not

be used for all cuts. More important, Hyde--a former Emerson

engineer–-testified that the UniGuard could not have been used for

the particular cut that Gillespie was doing when he was injured,

because the 28-inch-wide door could not have fit between the

UniGuard's arm and the saw's rip fence that keeps the wood aligned

as it is being sawed.

Hyde's testimony on this point was not contradicted and

it is fatal to Gillespie's theory of design defect. Even if it

were negligent or a breach of warranty to supply the spreader-

mounted guard rather than the less common cantilevered guard,

Gillespie cannot prevail, as to this theory, without showing that

the "better" design would have prevented his injury. See, e.g.,

Solimene v. B. Grauel & Co., K.G., 507 N.E.2d 662, 667 (Mass.

1987); Fidalgo v. Columbus McKinnon Corp., 775 N.E.2d 803, 808

(Mass. App. Ct. 2002). The cantilevered guard might be better much

of the time but, if it could not have been used for the cut that

injured Gillespie, its omission was not the cause in fact of his

injury.

Hyde's testimony was not quite conclusive. He said that

the cut Gillespie made could not have been done with the UniGuard

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in place but he said nothing about other brands on the market. But

the UniGuard was dubbed "standard" and Gillespie presented no other

product to depict the "better" cantilevered guard. And absent

rebuttal testimony, it would have been pure speculation for the

jury to have supposed that some other model of cantilevered guard–-

never offered in evidence or described--could have been used for

the cut in question. See Quintana-Ruiz v. Hyundai Motor Corp., 303

F.3d 62, 76-77 (1st Cir. 2002).3

Hyde also said that Emerson had previously tested

cantilevered guards and found them less satisfactory than spreader-

mounted guards; each type was compatible with some cuts but not all

and, according to Hyde, the cantilevered guard was more prone to

block wood unexpectedly and so to cause unexpected twisting of the

wood and possible injury. Gillespie's expert gave no direct answer

to this testimony. Given the lack of causation, however, we need

not decide whether the jury could reasonably find the cantilevered

guard superior.

Gillespie's second theory of defect was that the saw

blade should have had a brake that would decrease its "coasting"

3
At oral argument, Gillespie argued for the first time that
the door being cut could simply have been flipped over to avoid its
hitting the arm of a cantilevered guard. There is no indication
that any such evidence was offered to the jury; and it appears from
Hyde's description and the owner's manual that the rip fence would
have prevented any such re-alignment of the wood. Although the rip
fence is removable, and should be removed for some cuts, testimony
and the saw's manual indicate that safety and accurate cutting
required its being in place for the cut that Gillespie was making.

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time once the power was shut off. Here, Gillespie had two experts;

the thrust of their testimony was that the normal coasting time for

the saw at issue–-14 to 15 seconds after power shut-off–-could be

reduced to a couple of seconds by an automatic electric-current

brake available for use on power equipment. This longer-than-

necessary coasting time, Gillespie claimed, constituted a

foreseeable (and unreasonable) hazard that was compounded by the

risks of removal of the guard and user inattention after the

machine was switched off.

Hyde said that he had tested such a brake for Emerson in

1986 but found that the braking effect tended to loosen the arbor

nut holding the blade to the shaft, creating separate dangers of

its own.4 Also, Hyde said that in 2003 he had tested for

litigation purposes three brands of table saw equipped with brakes.

The brakes did stop the blades in 2 to 4 seconds; but one saw's nut

spun loose after nearly a thousand power cycles over the course of

three hours. Over a longer period, the other two saws' nuts

actually tightened.

4
The brake is not mechanical; rather when the shut-off switch
is hit, an electric current is sent into the motor creating a
magnetic field that counters the motor's spinning motion and so
enhances the motor's deceleration. But because the saw is designed
so that the motor's start-up torque automatically tightens the
arbor nut, the reverse braking torque apparently tends to loosen
it, and the net effect on the nut depends on the balance between
the magnitudes of the start-up acceleration and the brake-induced
deceleration.

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 Much of the testimony of the dueling experts concerned

the likelihood that the brakes would loosen the nuts and the

consequences that would ensue if a nut did loosen. There was also

conflicting testimony as to whether the Emerson saw, lacking a

brake, met applicable--but relatively vague--standards issued by

American National Standards Institute as well as similar OSHA

regulations. It appears that such brakes were once rarely sold

with table saws but are becoming somewhat more common.

In principle, it appears that the braking action can

increase the risk of loosening the nut, especially where the

braking is severe.5 But, as we read the testimony in this case, a

jury could have concluded that a brake of moderate force should

have been employed. Such a brake could arguably have halted the

saw in the 4 to 6 second range while leaving the start-up torque

(which tightens the nut) sufficiently great compared to the braking

torque (which loosens the nut) to ensure an overall tightening

effect and minimal risk of arbor-nut loosening. Even in the 2 to

4 second range, Gillespie's expert said that the single failure in

Hyde's test could have been caused by machine vibration or other

causes unrelated to the brake.

5
Hyde's 1986 test had produced a failure where the pre-set
stopping time was precipitous--almost as short as the 1 to 1.5
second start-up time. In Hyde's 2003 test, a less severe braking
time of 2 to 4 seconds produced a loosened nut but only on one of
three machines tested; on the other two the nuts were tighter after
the test.

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 Emerson says on appeal that the brake was not needed if

its guard was used, but the jury had adequate evidence that guards

were often detached and that this was foreseeable. Nor is there a

causation problem: the jury could also have found that Gillespie

turned back to the still spinning blade only six seconds after he

switched the machine off. Gillespie's earlier versions of the

accident's timing might have made the brake causally irrelevant,

but his final version, if believed, brought the accident into the

time window where a potentially safe brake would have mattered.

The claim of design flaw was also debatable. The use of

a brake for table saws was relatively rare even at the time of

trial. A brake lessened but did not eliminate coasting, and it

could loosen the arbor nut, creating additional dangers. Emerson

had considered the balance of risks and benefits and consciously

decided against adopting the brake for table saws. Many would

think this a defensible judgment.

Nevertheless, Gillespie offered two experts, one of whom

made such brakes, both saying the judgment was wrong. At Emerson's

behest we have reviewed their credentials and testimony and we

cannot say that they were unqualified to give their testimony.

Admittedly, Hyde was peculiarly qualified to testify to the

contrary-–he had been involved in Emerson's safety engineering and

had done the testing in 1986 and 2003–-but he (no less than the

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experts for Gillespie) had his own kind of self-interest in the

outcome. The blade-brake theory was for the jury to resolve.

Gillespie's final theory rested on the duty to warn

adequately of foreseeable dangers, which is a legitimate theory for

liability under both negligence, see Slate v. Bethlehem Steel

Corp., 510 N.E.2d 249, 251 (Mass. 1987), and breach of warranty,

see Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 922 (Mass.

1998); Bavuso v. Caterpillar Indus., Inc., 563 N.E.2d 198, 201

(Mass. 1990). Here, Gillespie's evidence was thin as to both

causation and supposed inadequacy of the warning; but it was

perhaps just barely possible for a rational jury to find in

Gillespie's favor on both points.

Gillespie's main failure-to-warn theory appears to have

been that the warning labels on the side of the machine should have

been placed on the saw's top surface and had better contrast and

larger lettering. These warnings did advise users that the saw was

dangerous and referred to the coasting danger (at least indirectly)

by warning users to wait for the blade to stop "before adjusting or

servicing." Hyde answered that a warning on the surface would be

covered by the wood and eventually rubbed off. However, based on

the testimony and depictions in the user's manual, we think the

jury could have concluded that the label's coloring, contrast,

size, and perhaps explicitness were inadequate.

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 Causation would be lacking if the coasting-blade danger

was obvious or otherwise known to the plaintiff. See Bavuso, 563

N.E.2d at 201-02; Colter, 525 N.E.2d at 1312. Gillespie admitted

that the still-spinning blade was visible and audible, and that he

"understood" that blades coasted, as any experienced user would

assuredly know, see Bavuso, 563 N.E.2d at 202. The jury might have

concluded from Gillespie's further testimony--that he didn't

"consider" the coasting hazard--that he was not "fully aware,"

Morrell v. Precise Eng'g, Inc., 630 N.E.2d 291, 293 (Mass. App. Ct.

1994), of the duration of the danger and that a more explicit or

conspicuous warning would have heightened his awareness and

prevented the accident. This is enough, although just barely so,

to take the claim to the jury.

Nevertheless, a new trial is required because the blade-

guard theory fails. In this circuit, the rule in civil cases is

that "a new trial is usually warranted if evidence is insufficient

with respect to any one of multiple claims covered by a general

verdict." Kerkhof v. MCI Worldcom, Inc., 282 F.3d 44, 52 (1st

Cir. 2002); see Lattimore v. Polaroid Corp., 99 F.3d 456, 468 (1st

Cir. 1996). This rule applies not only to general verdicts

encompassing multiple causes of action, but to special verdicts

where a single verdict question encompasses multiple theories, one

of which is defective. Lattimore, 99 F.3d at 468.

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 Although not all circuits follow our practice,6 it does

accord with the Supreme Court precedents that require remand in

civil cases when one of several claims or theories encompassed in

a general verdict was flawed (e.g., because of a mistaken jury

instruction). The only Supreme Court case squarely dealing with

insufficient evidence on one theory, however, is a hundred years

old, see Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 78-79

(1907), and the Court follows the opposite rule in criminal cases

where the evidence is adequate on one theory but not another.7 The

reality is that the degree of confidence that the jury picked a

theory with adequate evidentiary support varies along a spectrum of

situations.

6
See, e.g., E. Trading Co. v. Refco, Inc., 229 F.3d 617, 621-
22 (7th Cir. 2000) (holding that an affirmative showing that the
jury was "probably confused" by instructing the jury on a claim or
defense for which the party had presented no evidence). Compare
Traver v. Meshriy, 627 F.2d 934, 938-39 (9th Cir. 1980) (adopting
a four-factor discretionary standard) with McCord v. Maguire, 873
F.2d 1271, 1273-74 (9th Cir.) (limiting Traver to general verdicts
encompassing multiple legal theories and applying a new-trial rule
for general verdicts based on a single legal theory encompassing
multiple factual theories), amended by 885 F.2d 650 (9th Cir.
1989).
7
The general remand rule in civil cases, derived from Maryland
v. Baldwin, 112 U.S. 490, 493 (1884), has been reaffirmed in more
recent cases, e.g., Sunkist Growers, Inc. v. Winckler & Smith
Citrus Prods. Co., 370 U.S. 19, 29-30 (1962). The contrary rule in
criminal cases involving insufficient evidence, see Griffin v.
United States, 502 U.S. 46, 49-51 (1991), makes sense when one
looks at the cases in which the rule is often applied, e.g., id.
(no evidence on one theory and enough on another).

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 Our own approach is by no means rigid. Recognizing that

a jury is likely to prefer a better supported theory to one less

supported, we have generously applied the harmless error concept to

rescue verdicts where we could be reasonably sure that the jury in

fact relied upon a theory with adequate evidentiary support. See

Davis v. Rennie, 264 F.3d 86, 106 (1st Cir. 2001), cert. denied,

535 U.S. 1053 (2002); Brochu v. Ortho Pharm. Corp., 642 F.2d 652,

662 (1st Cir. 1981). But in this case, none of the theories was

strongly supported by the evidence; this, indeed, illustrates the

danger in automatically presuming that the jury adopted the

"stronger" ground.

The uncertainty in this case could have been avoided if

either side had pressed, and the district court had agreed, to have

the jury decide specifically which theories succeeded and which

failed. Defendants may have an incentive not to ask for special

verdicts, thus saving a ground for appeal if any theory was

defective. But it is a mystery why the plaintiff would not

request, or the judge insist upon, a breakdown by theory–-

especially where one or more of the theories is at best a close

call.

A few circuits have held, although inconstantly, that an

appellant who did not request such special verdict has "waived" a

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claim of error that such a verdict form could have isolated.8 This

court has never adopted such a rule and has regularly vacated

general verdicts where the award might have been rescued if either

side had sought and obtained an adequate special verdict, see,

e.g., Lattimore, 99 F.3d at 468; Levinsky's, Inc. v. Wal-Mart

Stores, Inc., 127 F.3d 122, 134 (1st Cir. 1997); cf. Fleet Nat'l

Bank v. Anchor Media Television, Inc., 45 F.3d 546, 551, 557 (1st

Cir. 1995); but recently we took note of several cases applying a

waiver theory and said that we might consider adopting such a

requirement, Davis, 264 F.3d at 106.

On balance, we conclude that we should not adopt a waiver

rule. The term "waiver" is misleading; either side in this case

could have asked for the special verdict to further break down the

negligence and warranty claims by theory of defect. The issue is

one of policy, i.e., whether the court should create a rule that

forfeits claims by an appellant that could have been isolated if

either side had requested a better breakdown. The efficiency

8
See, e.g., Gen. Indus. Corp. v. Hartz Mountain Corp., 810
F.2d 795, 801 (8th Cir. 1987) (applying waiver rule); Ryko Mfg. Co.
v. Eden Servs., 823 F.2d 1215, 1236-37 (8th Cir. 1987) (not
applying rule); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215,
1231-32 (10th Cir. 1996) (stating a waiver rule but exercising
discretion not to apply it because an objection would have been
futile at the time of trial); Counts v. Burlington N. R.R. Co.,
952 F.2d 1136, 1140 (9th Cir. 1991) (not applying rule for defects
other than sufficiency of the evidence); McCord, 873 F.2d at 1274
(applying rule).

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argument for such a rule is obvious; but the objections are also

real.

At first blush, it looks like mandating a special verdict

would be easy; but, as this case illustrates, there are multiple

levels of detail. Here, dividing by causes of action alone did not

solve the problem: a further division by theories of defect was

required. And theories, unlike "causes of action," are not pre-

existing formal categories derived from statutes or common law but

are endlessly variable, depending upon the facts of the case.

Gillespie's warning theory alone could itself have been subdivided

in several ways (content, placement, size and color).

In some cases special verdicts make sense but there may

be others where using them, to a sufficient level of detail, is

infeasible or otherwise undesirable. Where feasible and desirable,

one of the parties ordinarily has an incentive to ask for such a

special verdict; and, if no one does, the judge can insist. In

sum, we think that a uniform obligation to ask for a special

verdict, or have relevant claims of error forfeit by appellant, is

not warranted.

Some courts have treated the appellate consequences of

general verdicts encompassing multiple claims or theories as a

procedural issue to be determined by federal law even in a

diversity case; others have assumed usually without discussion that

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state law controlled.9 Our own tentative view is the former, see

Levinsky's, 127 F.3d at 134 (implicitly so assuming); but anyway

Massachusetts follows the First Circuit practice on this issue.

See Slate, 510 N.E.2d at 253 (insufficient evidence on one claim).

Accordingly, as the verdict may have rested solely on the

blade guard theory, a new trial is required. Because the evidence

on the blade guard theory was inadequate on causation grounds and

Emerson was entitled to judgment on that issue, Gillespie's defect

theories at the new trial are confined to the blade brake and

inadequate warning claims of defect. See Lattimore, 99 F.3d at

468.

Unreasonable use instruction. Under Massachusetts law,

there is a comparative fault defense for negligence claims; for

warranty claims, the closest analogue is an "unreasonable use"

defense. Oy Saunatec, 241 F.3d at 16-17. Unreasonable use

provides a complete defense to warranty claims (the plaintiff might

still recover for negligence). See id. at 17. Emerson sought an

unreasonable use instruction but the district court declined to

give it. Emerson now claims that this was error.

9
Compare, e.g., Barber v. Whirlpool Corp., 34 F.3d 1268, 1278
(4th Cir. 1994) (refusing to apply the state's "two-issue" rule in
a diversity case because "federal law controls verdicts"), and
Royal Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092,
1098-99 (11th Cir. 1983) (applying the federal rule); with Mich.
Abrasive Co. v. Poole, 805 F.2d 1001, 1005 (11th Cir. 1986)
(applying without discussion the state two-issue rule),and Rimer v.
Rockwell Int'l Corp., 739 F.2d 1125, 1130 (8th Cir. 1984) (same).

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 A party is entitled to an instruction on a legally

available defense if sufficient evidence is present to permit a

jury to find in favor of the defense. Sullivan v. Nat'l Football

League, 34 F.3d 1091, 1107 (1st Cir. 1994), cert. denied, 513 U.S.

1190 (1995). Under Massachusetts law, the unreasonable use defense

required Emerson to prove that Gillespie "knew of the product's

defect and its danger, that he proceeded voluntarily and

unreasonably to use the product and that, as a result, he was

injured." Allen, 494 N.E.2d at 1326; see also Correia v. Firestone

Tire & Rubber Co., 446 N.E.2d 1033, 1040 (Mass. 1983).

There was surely enough evidence on the objective element

of the defense, namely, "unreasonable use." See Allen, 494 N.E.2d

at 1326. Gillespie admittedly knew that table saws came with

guards and knew that this machine had no guard attached. Yet he

made no effort to obtain and employ the guard; the evidence showed

that the guard for this saw had been taken off and remained with

the coworker who transferred the saw to Gillespie. The existing

spreader-mounted guard would apparently have worked for the cut

that Gillespie was attempting at the time of the accident and so

would have prevented the accident.

Whether the failure to use the guard was unreasonable

under all the circumstances is perhaps a matter on which a jury

could take different views, given that no guard was readily

available to Gillespie. The fact that the jury found Gillespie 49

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percent negligent does not prove that it would have found the

failure to use the guard unreasonable use; no one knows what act

the jury found negligent (it could have been Gillespie's

inattention). But a jury could rationally have found objectively

unreasonable use if it wanted to do so.

The more difficult element of the defense concerns

Gillespie's knowledge. Under Massachusetts law, it is not enough

that the plaintiff be aware that the machine is dangerous; rather,

he must have a reasonably specific awareness both that the product

is defective, Velleca v. Uniroyal Tire Co., 630 N.E.2d 297, 298

(Mass. App. Ct. 1994), and the extent of the harm to which this

exposes him. Allen v. Chance Mfg. Co., 873 F.2d 465, 473 (1st Cir.

1989); see also Goulet v. Whitin Mach. Works, Inc., 568 N.E.2d

1158, 1161-62 (Mass. App. Ct. 1991). When the alleged unreasonable

use is the failure to use a safety device,

plaintiff must at least have perceived that [the] safety
device is standard equipment or regarded as necessary to
safe operation, so that removing it or using the
equipment without the device is dangerous.

Downs v. Gulf & W. Mfg. Co., 677 F. Supp. 661, 665-66 (D. Mass.

1987), quoted in Allen, 873 F.2d at 473.

Here, Gillespie admitted that he knew saws were sold in

stores with blade guards on them and that he had seen one used with

a blade guard on a home repair television show. Based on these

admissions, we think the jury could permissibly have inferred that

he knew that guards were standard safety equipment, that their

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absence meant that something was wrong in a way that increased the

risk of injury, and that (as a matter of common sense) working with

a high-speed cutting tool with an unguarded blade could cause

serious injury up to and beyond what Gillespie suffered.

There is a counter-argument. Gillespie testified in

detail that he "never considered a blade guard on a blade and what

it will do," had not seen one used except on television, didn't

think he was taking a risk by using the blade without the guard,

and even continued using the saw without the blade after the

accident. Such a view might, if actually held, negate the

subjective awareness element of the defense as prescribed by

Massachusetts case law.

It can sometimes be irrational for a jury to reject

"uncontradicted" testimony, cf. Quintana-Ruiz, 303 F.3d at 75-76,

especially about the witness's state of mind; but a jury may

disbelieve uncontradicted testimony if it is improbable. See id.

at 76; see also EEOC v. G-K-G, Inc., 39 F.3d 740, 743 (7th Cir.

1994). The jury might have concluded that it is improbable that

Gillespie–-working around power equipment and knowing that saws

were sold with guards–-would not have appreciated that the lack of

a guard meant that something was wrong with the saw and that the

absence of the guard increased the risk of serious injury. That

Gillespie chose to take the risk does not preclude knowledge of it.

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 Further, Gillespie had a strong financial interest in

negating the unreasonable use defense; in this case doing so

doubled Gillespie's damages because his recovery on negligence

alone would have been reduced by 49 percent. The jury was free to

consider Gillespie's self-interest and also that Gillespie's

somewhat improbable testimony dovetailed rather neatly with the

counter to a rather technical defense--which his lawyer may well

have discussed with him. The jury surely did not have to accept

Gillespie's gloss on his own thinking.

Thus, the unreasonable use instruction should have been

given. Although the blade guard theory is not to be retried, we

see no reason why the instruction should not apply to brake and

warning theories as well. If it was unreasonable use of the saw to

operate it without a blade guard for a cut where the guard was

feasible, then the unreasonable use causally enabled the injury

whatever the defect. Even if the jury accepts such a defense to

defeat the warranty claim, it can still award damages for

negligence (adjusted for Gillespie's own contributory negligence).

Expert discovery. In July 2002, Emerson's expert, Hyde,

provided an expert report, duly made available to Gillespie, and

then in January 2003 was deposed by Gillespie in the conventional

fashion. Thereafter, plaintiff's main expert, Orlowski, during his

deposition in February 2003, noted that another manufacturer

(Makita) was selling a table saw with an electric brake as a

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standard feature. In response to this information, Hyde (as

already noted) in April 2003 conducted further tests on a Makita

saw and two others similarly equipped with brakes.

Hyde's findings from these tests were summarized in a

supplemental report dated May 2, 2003, which was turned over to

Gillespie on May 8. See Fed. R. Civ. P. 26(e). This report said

that Hyde had tested the three saws and then described in detail

the test performed on the Makita and the fact that after the

described hours of testing the blade spun loose on the shaft

(allegedly because the braking action had loosened the nut). The

report noted much more briefly that the other two saws tested

through repeated cycles had not failed, but the report expressed

Hyde's view that such failures could be expected to occur

unpredictably in all three of the saws.

The supplemental report when turned over to Gillespie was

accompanied by a letter saying that a DVD containing a "relevant

excerpt" of the testing-–a short video of the Makita's failure-

–would be used in evidence and was available for review by

Gillespie's counsel. What was not furnished with the May report,

nor explicitly mentioned, were the existence of Hyde's working

notes on the tests (including an "event record" describing the

tests) and the existence of videotapes of all three tests.

On May 30, 2003, the Friday before the scheduled Monday,

June 2, trial, Gillespie's counsel asked for all documents and

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videos generated during the testing; and on Sunday, June 1,

Emerson's counsel faxed Gillespie's counsel saying that the

extensive videotapes and other materials were being copied and

would be delivered shortly. On June 2, the first day of trial, the

district judge told Emerson to "turn over everything" immediately,

saying that he had earlier ordered production of all relevant

evidence.

In all events, Emerson produced the additional Hyde

material on June 3. The next day, the district court nevertheless

ruled that Emerson had violated "my order," directed that Hyde be

made available for a mid-trial deposition, and promised wide

latitude for Gillespie's cross-examination of Hyde. Gillespie took

advantage of this in closing argument (over Emerson's objection)

and in cross-examination to suggest that Hyde had deliberately

withheld information in violation of court order.

On this appeal, Emerson complains that it was prejudicial

error for the judge to permit such cross-examination and closing

argument because there was no violation of any valid order.

Gillespie makes little effort to defend the premise that there was

such an order, beyond describing the court's vague warnings and

urgings about the importance of producing all relevant documents

and asserting that Hyde conceded that he had been ordered to

produce the material. Hyde did concede this, under cross-

examination at the trial; but this was after the district court had

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ruled that it had so ordered, so what else was a lay witness to

say?

Emerson says that the district judge never issued such an

order. In fact, there was considerable confusion as to whether the

parties were required to produce automatically only such evidence

that they might use to support its case or all "relevant"

evidence.10 It is arguable that Emerson should eventually have

understood the judge to be taking the latter view; but nothing

suggests that Hyde personally should have thought that he had any

obligation to produce his working notes or do anything beyond what

was required by the specific rule governing expert discovery.

Gillespie claims that this expert discovery rule itself

required the working notes because it requires a report stating the

expert's opinions and reasoning and "the data or other information

considered by the witness in forming the opinions." Fed. R. Civ.

P. 26(a)(2)(B). But this language does not require that the expert

report contain, or be accompanied by, all working notes or

10
The 1993 version of Rule 26 had once mandated automatic
discovery of everything that might help the other side, see Fed. R.
Civ. P. 26(a)(1) (1993), but this rule was supplanted by a 2000
amendment limiting automatic discovery to material that the
possessing party might intend to use to support its claims or
defenses. See Fed. R. Civ. P. 26(a)(1) (2000) & 2000 advisory
committee notes to Rule 26(a)(1). The district judge initially
assumed that the old rule was in force or had been preserved
through a standing order, which does not appear to have been
authorized by the rule. See Fed. R. Civ. P. 26, 2000 advisory
committee notes to Rule 26(a)(1). On the other hand, from
discussions with the judge, both sides should arguably have
understood that he expected all relevant evidence to be provided.

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recordings, nor does it appear that even Gillespie's expert

Orlowski so construed it. The other rule cited by Gillespie,

requiring supplementing of discovery, Fed. R. Civ. P. 26(e), was

complied with by delivering Hyde's report.11

The district court was free to order a mid-trial

deposition for any good reason; but we see no basis in Rule 26 or

anything else in this record to justify the assertion to the jury

that Hyde withheld notes and tapes that he knew or should have

known he was required to produce. And prejudice may have occurred:

Hyde was a critical and well-qualified witness for Emerson,

dishonesty is a serious charge, and Gillespie's case was at best

very debatable on liability.

We need not resolve the prejudice issue because a new

trial is necessary in any event. But we have given abbreviated

attention to this discovery imbroglio for two reasons. One is to

make clear that on retrial there should be no charge that Hyde

violated any automatic discovery rule or order, although he can

certainly be cross-examined about whether his supplemental report

was sufficiently complete and balanced. The other reason for

discussion concerns the scope of retrial, to which we turn next.

11
Gillespie's further assertion that the event record should
have been produced because of a document request accompanying a
notice of a Rule 30(b)(6) deposition was not relied upon by the
district judge and further appears to be a weak claim given the
district judge's orders limiting document requests and
interrogatories.

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 The scope of retrial. "An appellate court has broad

discretion to remand for a new trial on all, or only some, of the

issues in the case." Dopp v. HTP Corp., 947 F.2d 506, 518 (1st

Cir. 1991). "A new trial may not, however, be limited to fewer

than all the issues unless it clearly appears that the issues to be

retried are so distinct and separable from the other issues that a

trial of those issues alone may be had without injustice." La

Plante v. Am. Honda Motor Co., 27 F.3d 731, 738 (1st Cir. 1994).

Here, for reasons already explained (primarily lack of

causation evidence for the defective guard theory) a new trial is

required as to Emerson's liability to Gillespie and to his wife

(her claim depends on liability to him). Similarly, the

comparative negligence issue must be retried; the jury may have

been comparing Gillespie's negligence with conduct (the lack of a

cantilevered guard) that had no causal role in the case. See La

Plante, 27 F.3d at 738.

It is a closer call whether damages, for Gillespie or his

wife, must also be retried. Emerson asks for a retrial on all

issues; Gillespie's position is less clear. But it is often in a

plaintiff's interest to have damages evidence known to the jury

while it is considering liability–-unless the plaintiff thinks he

did unduly well the first time around. There is some cost in

retrying the damages issue, but ordinarily much of the evidence is

the plaintiffs' own testimony and records.

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 Technically, the damages verdicts are not directly

undermined by any of the errors we have discussed--the causation

issue, the omitted instruction or the attempted discrediting of

Hyde. About the most one can say for sure is that giving the

unreasonable use instruction and subtracting the unfair critique of

Hyde's honesty would have improved the atmosphere for the defense

as to damages as well as liability. So the scope of the remand is

a close issue.

On balance, we think there should be a new trial on

damages as well as liability unless both sides stipulate otherwise.

The case law suggests a preference for full trial unless a partial

one will clearly do justice. Here, the jury--through its questions

concerning the role of comparative negligence in damages awarded--

did show some interest in the link between liability and damages.

Given at least a possibility of spill-over effects from the errors,

the broader retrial is appropriate.

The judgment of the district court is vacated and the

case remanded for further proceedings consistent with this

decision.

It is so ordered.

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