Hatch v. Trail King Industries, Inc.

United States Court of Appeals
For the First Circuit

No. 10-2153

DEAN F. HATCH and MARY L. HATCH,

Plaintiffs, Appellants,

v.

TRAIL KING INDUSTRIES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

J. Michael Conley, with whom Kenney & Conley, P.C. was on
brief, for appellant.
Timothy C. Kelleher III and Cooley Manion Jones LLP on
brief for the Massachusetts Academy of Trial Attorneys, amicus
curiae.
Myles W. McDonough, with whom Lawrence J. Kenney, Jr.,
Christopher M. Reilly, and Sloane and Walsh, LLP were on brief, for
appellee.

August 29, 2011
 LYNCH, Chief Judge. A jury rejected both the negligence

and the breach of the implied warranty of merchantability claims

brought by the plaintiffs, Dean Hatch and his wife, after Hatch was

severely injured at work and left paralyzed from his chest down.

Hatch did not bring this suit against his employer, Advanced

Drainage Systems, Inc. ("ADS"); it may be he was restricted to an

exclusive workers' compensation remedy. See Mass. Gen. Laws ch.

152, §§ 23-24; Roberts v. Delta Air Lines, Inc., 599 F.3d 73, 77

(1st Cir. 2010).

Rather, he brought suit against Trail King Industries,

Inc., the company that had built a specialized trailer for Hatch's

employer, following the employer's specifications as to the parts

of the trailer which were said to have caused the injuries. The

suit was filed in October 2007 in the U.S. District Court for the

District of Massachusetts. The plaintiffs asserted that the design

of the hydraulically operated drop gate of the trailer was

defective and that the addition of an inexpensive fixed safety

chain or an extended spring-loaded pin would have prevented the

accident. The district court denied cross-motions for summary

judgment and the case went to trial. The Hatches appeal both from

the jury instructions on negligence and the implied warranty and

from denial of the plaintiffs' motion in limine.1

1
Before the trial, the plaintiffs filed a motion in limine
requesting that the court "exclude the defendant Trail King
Industries, Inc. from introducing evidence as to the origin of the

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 The district court instructed the jury that a defendant

fabricator in the circumstances of this case may have duties under

the laws of negligence and implied warranty to injured third

parties but that such duties were subject to exceptions, which the

court then defined. The jury later asked a question on the implied

warranty exception and the court's answer provided an additional

gloss. In essence, the court instructed under the Restatement

(Second) of Torts § 404 that a defendant who manufactures a product

according to the buyer's specifications could not be liable under

either a negligence or implied warranty theory unless the design

defect was so obvious it would not have been reasonable for the

defendant to manufacture according to the design.

On appeal, the plaintiffs argue that these instructions

and the answer to the jury's question were in error under

Massachusetts law, that the errors infected both the negligence and

implied warranty findings by the jury, that the denial of the

motion in limine was error, and that they must be given a new

trial. Trail King, the fabricator, argues that the instructions

were entirely correct, as was the denial of the motion in limine,

and that the jury had a number of alternative reasons to reject the

plaintiffs' case, so any error is harmless.

design or design history of the subject trailer for purposes of
arguing that it lacked a legal duty to produce and deliver a
trailer that was reasonably safe." The court denied the motion.

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 We affirm.

I.

Trail King is located in South Dakota. Some sixty to

seventy percent of the trailers it sells are custom-made, built

largely to the specifications of its customers. While Trail King

was responsible for the design of the motor vehicle component of

the trailer at issue, ADS was responsible for designing and

providing Trail King with the specifications for the gates. ADS is

the world's "largest manufacturer of corrugated polyethylene pipe"

for drainage systems, with thirty-two North American manufacturing

facilities and twenty distribution centers. In the 1980s, the ADS

Material Handling Committee put together a design for a "hydraulic

trailer" that would handle the heavy weight associated with the

unloading of ADS's highly successful N-12 plastic pipe product.

ADS determined that "[a]n outside flatbed manufacturer [would]

build the N-12 trailers using the Material Handling Committee's

trailer design." ADS contacted the two largest manufacturers of

flatbed trucks, Dakota and Trail King, and awarded the contract to

Trail King through competitive bidding. Trail King manufactured

approximately 350 N-12 trailers using the designs provided by ADS.

ADS was the exclusive user of these trailers.2 Trailer No. 25019,

2
ADS runs its own trailer refurbishing centers, where ADS
mechanics repair and overhaul equipment and systems including the
N-12 trailer hydraulic gates. In 2005, Trail King advised ADS that
it had developed remote pilot check valve kits which ADS mechanics
could retrofit to older trailers. The check valves were designed

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the trailer at issue in this case, was delivered to ADS in April

1994 and assigned to ADS's Ludlow, Massachusetts plant.3

The N-12 trailers are forty-eight feet long with two

separate twenty-foot long compartments. Each compartment has ten-

foot high sides and a hydraulic gate on the passenger side of the

trailer. These hydraulic gates are hinged at the bottom of the

trailer and held upright by two hydraulic cylinders attached to a

gate upright above the hinge. In addition, each of the gate

uprights has a hole that aligns with a corresponding hole on the

trailer frame, through which a 3/4" diameter pin is inserted and

secured with a cotter pin to ensure that the gate stays in the

upright position. The locations of the pin and hole were mandated

by ADS.

ADS employees load the pipes through the front and rear

of the trailer while the side gate remains in an upright position.

Once loaded, ADS employees secure the load with tie-down straps for

each compartment, with strap ratchets on the driver's side of the

trailer. ADS mandates "driver's side strapping" to prevent the

driver from releasing the straps on the passenger's side while

to prevent the hydraulic gate from crashing down in the event that
the hydraulics failed to work properly. ADS declined to purchase
the kits.
3
Trail King sold the trailer for $38,791.38 to DL Peterson
Trust, which in turn leased the trailer to ADS. At some point
between 1994 and 2007, before the accident in this case, the lease
ended and ADS acquired title to the trailer.

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standing in the pathway of the gate. Under ADS safety procedures

for unloading the trailer, drivers remove the pins, release the

straps from the driver's side, and then stand aside while operating

the gate's hydraulics with a remote electrical switch. As the gate

lowers, the pipes roll out.

On February 1, 2007, Hatch was assigned trailer No. 25019

to deliver two loads of pipe (one in each compartment) to a

customer in Hyannis, Massachusetts. Hatch was unaware, however,

that air had been introduced into the gate's hydraulic system a few

days earlier by another driver who had not properly reported the

problem. Upon arriving at the customer drop-off location, Hatch

removed the pins for both gates, loosened the vertical straps for

both gates, and brought both gates to 90 degrees while he waited

for the customer to clear a space for unloading. Once the space

was cleared, Hatch released each of the two straps on the front

load, intending to walk to the back of the trailer and lower the

front gate to the ground using the remote hydraulic switch.

However, as soon as Hatch released the second strap, the gate fell.

Hatch was caught beneath the gate and suffered injuries resulting

in paraplegia.

II.

The action was tried to a jury in a one-week trial.

There was no objection to the form of the two key questions put to

the jury on the verdict form:

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 Q.1. Was Trail King negligent in designing
the N-12 trailer that Dean Hatch was unloading
on February 1, 2007 when the accident
occurred?
. . . .
Q.3. Did Trail King breach the implied
warranty of merchantability in selling, as
designed in 1994, the N-12 trailer that Dean
Hatch was unloading on February 1, 2007, when
the accident occurred?

The jury was instructed that it would first decide

"whether Trail King was all or in part responsible for the design

of the N-12 [trailer]." The court told the jury:

If you decide it was not, and was instead a
mere fabricator of a trailer designed to ADS's
specifications and no more, then it cannot be
held liable on a theory of defective design
unless the defect in the specifications was so
obvious that a reasonable fabricator would
have rejected the dictated design.

The instruction continued: "If you find, on the other hand, that

Trail King designed the N-12 trailer, as it was sold in 1994,

either on its own or in substantial collaboration with ADS, you

must then consider the law that governs a manufacturer's liability

for a design defect." This largely tracked an instruction proposed

by the defendant, which cited to the Restatement (Second) of Torts

§ 404. Plaintiffs objected to the "fabrication" instruction.

After explaining the difference between negligence and

implied warranty, the court then instructed on a manufacturer's

duty "[i]n designing a product," setting forth the factors of

gravity of any risk, likelihood of accident, feasibility of safer

design, financial cost of feasible alternative design, and any

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adverse consequences of design change on the usefulness of the

product. There was no objection to this portion of the charge.

As to the claim of breach of the implied warranty of

merchantability, the court instructed:

The Hatches also claim that Trail King
breached what the law terms the "implied
warranty of merchantability." Under the law
of implied warranty, a manufacturer who
designs and sells a product is held to a
guarantee that its product is fit for the
ordinary purposes for which the product is
intended, including those uses and misuses
which are reasonably foreseeable to one
engaged in the business of producing and
selling that particular kind of product.

Whether a manufacturer intends to make
such a guarantee or not is irrelevant. By
law, every sale of a product includes such an
implied guarantee. Liability under a theory
of breach of warranty focuses on whether the
product was defective and unreasonably
dangerous, and not on the conduct of the user
or the seller. The guarantee is present even
where the manufacturer has taken reasonable
steps to make its product safe. Thus, a
manufacturer may be held liable for the harm
caused by a dangerous product without any
finding of negligence on its part.

There was no objection to that portion of the charge.

Plaintiffs did object to the next portion of the charge,

as emphasized below:

The reverse, however, is not true. If a
manufacturer is negligent in failing to design
its products safely, the manufacturer is, as a
matter of law, in breach of the implied
warranty of merchantability. To this rule
there is a limited exception in which the
implied warranty does not apply. Where a
sophisticated purchaser has complete control

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 over a product's specifications and design and
itself bears significant responsibility for a
resulting design defect, the implied warranty
of merchantability does not apply to the
fabricator.

Plaintiff's counsel objected to this instruction on the grounds

that it violated Mass. Gen. Laws ch. 106, § 2-316A(4) and did not

set forth a recognized defense or exception to a manufacturer's

duty.

The court then instructed more generally:

If you find that the N-12 trailer as
designed was reasonably suited for the
ordinary foreseeable uses for which it was
intended, then Trail King did not breach the
implied warranty of the merchantability.

If, on the other hand, you find that
Trail King placed the N-12 trailer on the
market in an unfit condition, then you will
find that Trail King breached the warranty of
implied merchantability.

There was no objection to this language.

During their deliberations the jury asked the following

question on the warranty issue about the sophisticated status of

the purchaser:

"Re: Question 3," which is the warranty
question -- "If ADS can be considered a
sophisticated purchaser, is the remainder of
the implied warranty of merchantability not
applicable to Trail King?"

After consultation with counsel, the court answered the question as

follows:

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 Whether or not ADS is a sophisticated
purchaser or user of the trailer is not really
the issue. . . .

The implied warranty of merchantability
has really nothing to do with the state of
mind or the experience or sophistication of
either the manufacturer or the purchaser. The
issue is simply whether as marketed in 1994,
was there a defect in the product, the defect
that caused the injury of which the Hatches
complain.

The only exception, and the only point
at which the sophisticated purchaser rule
comes into play, is if the purchaser is not
simply the purchaser but was also the party
that had complete control of the product's
specifications, and, therefore, bears
significant responsibility to any resulting
defect because it was their design, their
specifications, that caused the defect.

But once the product is in the market,
unless that exception applies, then the
sophistication of both buyer and seller have
no import on the implied warranty of
merchantability.

Does that answer the question?

(Jurors nod affirmatively.)
The plaintiffs told the court that they had "no issues" with this

answer "other than the ones [they] already [had] on the record,

with that whole issue."

III.

We review de novo a claim that a jury instruction

"embodied an error of law." United States v. Silva, 554 F.3d 13,

21 (1st Cir. 2009). We review for abuse of discretion "whether the

instructions adequately explained the law or whether they tended to

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confuse or mislead the jury on the controlling issues." Id.

(quoting United States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002))

(internal quotation marks omitted). We look at the instructions as

a whole, not in isolated fragments. See United States v. Griffin,

524 F.3d 71, 76 (1st Cir. 2008). We review a denial of a motion in

limine for abuse of discretion. JOM, Inc. v. Adell Plastics, Inc.,

193 F.3d 47, 50 (1st Cir. 1999).

As to substantive law, we start with Massachusetts law

principles, particularly the implied warranty of merchantability.

See Mass. Gen. Laws ch. 106, § 2-314. In Massachusetts, warranty

liability may be premised on defective design. Haglund v. Philip

Morris Inc., 847 N.E.2d 315, 322 (Mass. 2006). Similarly, a design

defect claim may be predicated on a negligence theory. Id. at 322

n.9. The two theories are not identical. There can be a finding

of breach of warranty but not of negligence. Id. A finding of

negligence, however, is also a finding of breach of the warranty of

merchantability. Id. (citing Colter v. Barber-Greene Co., 525

N.E.2d 1305, 1313 (Mass. 1988)). As to warranty, "the relevant

inquiry focuses on the product's features, not the seller's

conduct." Id. at 322. The court correctly instructed on these

points.

The parties agree, accurately, that Massachusetts does

not require privity, so the fact that Hatch was not party to the

contract between Trail King and ADS or in privity with ADS does not

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eliminate any implied warranty. See Mass. Gen. Laws ch. 106, § 2-

318. Warranties may extend to third parties when it is reasonable

to expect that those persons may use the goods and they are injured

by the breach of warranty. Mass. Gen. Laws ch. 106, § 2-318,

Massachusetts Code Comment.

Plaintiffs' position is that there is no limitation on

the warranty liability of a manufacturer in these circumstances,

even if it did not design the goods at issue. Plaintiffs argue

this is a case about an improper attempt by Trail King to limit

implied warranties. Under Mass. Gen. Laws ch. 106, § 2-316,

implied warranties may be excluded or modified under some

circumstances, subject to limitations set forth in Mass. Gen. Laws

ch. 106, § 2-316A. More particularly, under state law, implied

warranties may be excluded or modified by writings.4 Implied

warranties can also be excluded or modified under § 2-316(3)(c) "by

course of dealing or course of performance or usage of trade."

The plaintiffs argue that this is a case about disclaimer

of warranties, and that by operation of § 2-316A(4) this case is

excluded from any disclaimer of implied warranties. They say the

outcome of the case is governed by Ferragamo v. Massachusetts Bay

Transportation Authority, 481 N.E.2d 477 (Mass. 1985), particularly

by Ferragamo's statement that the general rule is that "[t]he

4
This case involves no displacement of an implied warranty
by an express warranty.

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employee of the buyer is not bound by a disclaimer of warranties in

the sales contract." Id. at 482 (quoting 3 R.A. Anderson, Uniform

Commercial Code § 2-316:56 (3d ed. 1983)) (internal quotation marks

omitted). We disagree with all three points and explain why, even

so, that does not resolve the case.

First, the language of § 2-316 does not apply to this

case. Entitled "Limitation on Exclusion or Modification of

Warranties," § 2-316A makes § 2-316 inapplicable to the extent

provided by § 2-316A. Plaintiff relies on § 2-316A(4), which

provides:

Any language, oral or written, used by a
seller or manufacturer of goods and services,
which attempts to exclude or modify any
implied warranties of merchantability and
fitness for a particular purpose or to exclude
or modify remedies for breach of those
warranties, shall be unenforceable with
respect to injury to the person. This
subsection does not affect the validity under
other law of an agreement between a seller or
manufacturer of goods and services and a buyer
that is an organization (see Section 1-
201(28)), allocating, as between them, the
risk of damages from or providing indemnity
for breaches of those warranties with respect
to injury to the person.

That provision is, by its terms, inapplicable here. Trail King has

not attempted to exclude or limit implied warranty responsibility

by language, either oral or written. We also note that § 2-316A(4)

does not purport to govern exclusion of implied warranties that

arise by "course of dealing or course of performance or usage of

trade," the provision that defendant suggests is in play.

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 The decision in Ferragamo also does not resolve the issue

here. Rather, Ferragamo involved an attempt in a contract of sale

to disclaim warranties by writing. This case does not involve such

an attempt, nor is that the issue. More than that, Ferragamo is

not a design defect case, much less a case in which the defendant

built to the specifications of the plaintiff's employer.

Somewhat more relevant but still not on point are the

decisions, cited to us by the parties, in Commonwealth v. Johnson

Insulation, 682 N.E.2d 1323 (Mass. 1997) and Cumberland Farms, Inc.

v. Drehmann Paving & Flooring Co., 520 N.E.2d 1321 (Mass. App. Ct.

1988). Johnson did not involve a suit by a third party to a

contract but instead involved a suit between two contracting

parties. It was a suit between the Commonwealth and its contractor

Johnson Insulation for recovery of remediation costs for removal of

asbestos. Although the government specified materials that Johnson

was to supply and install, the court concluded that "the

specifications supplied by the Commonwealth were not so detailed,

precise, and complete as to exclude [the implied] warranty [of

merchantability]." Johnson, 682 N.E.2d at 1327-28. Moreover, the

court explained, "[t]he asbestos-containing products supplied by

Johnson were 'off-the-shelf,' commercially available goods that

were not specially designed or manufactured for the Commonwealth."

Id. at 1329.

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 Johnson is not on point. It was not a design defect

case; it was concerned with specifications of materials and not

design specifications; the materials specifications left some

discretion in the contractor as to choice of materials; the

materials were off-the-shelf rather than designed by the

Commonwealth; and the theory of liability was a failure to warn

theory. None of those things are true here. Moreover, the failure

to warn theory (on which Johnson's theory of breach of warranty

turned) has been abandoned in this case.

Johnson is, nonetheless, significant. It did not

overrule the state appeals court decision in Cumberland Farms, but

instead limited its holding. In Cumberland Farms, the defendant

had installed a brick floor in a dairy plant according to

specifications provided by the plaintiff buyer. During the

installation, the defendant recommended modifying the

specifications to include expansion joints that might prevent

damage to the floor. The buyer rejected that recommendation.

Within a few years of the installation, the lack of expansion

joints resulted in substantial damage to the floor. Johnson

characterized Cumberland Farms as holding that there was no implied

warranty of merchantability by the defendant and as between

contracting parties where the plaintiff had provided flawed

specifications. Johnson explained that "the failure of the floor

was caused not by the quality of the materials (i.e., bricks)

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supplied by the installer, nor by a lack of craftsmanship on its

part, but by innate flaws in engineering and design that were

wholly attributable to the plaintiff." Johnson, 682 N.E.2d at

1329. Cumberland Farms is somewhat helpful to Trail King.5

The lack of a clear answer from state precedent still

leaves the question of the nature of the implied warranty under

Massachusetts law in these circumstances. More particularly, the

question is whether Massachusetts law would recognize an implied

warranty of merchantability as to an innocent third party victim

under these circumstances, where it was the plaintiff's employer,

and not the maker of the gate, which specified the gate design that

allegedly caused the injury. The district court's combined jury

instructions essentially provided that Massachusetts law could

allow some form of implied warranty to the plaintiff here, but that

such an implied warranty would be subject to limits, as it

articulated.

The parties do not cite any Massachusetts case on point

on either the negligence theory or the implied warranty theory, and

we have found none.6 So we go back to some basics: the Restatement

(Second) of Torts, and decisions of other courts under the relevant

5
The jury necessarily found that if Trail King contributed
at all to the engineering and design of the trailer, it did not do
so negligently.
6
At no time did either party request that the trial court
certify to the Massachusetts courts any question.

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provisions of the Restatement, which have been recognized sources

of guidance for Massachusetts. The Supreme Judicial Court in

Johnson (and other cases) has stated that as a matter of social

policy the state legislature has decided that the implied warranty

"should establish liability as comprehensive as that to be found in

other jurisdictions that have adopted the tort of strict product

liability." 682 N.E.2d at 1326. That liability is "congruent in

nearly all respects with the principles expressed in Restatement

(Second) of Torts § 402A (1965)." Id. (quoting Back v. Wickes

Corp., 378 N.E.2d 964, 969 (Mass. 1978); see also Haglund, 847

N.E.2d at 321-22. The question is whether Massachusetts will also

follow Restatement (Second) of Torts § 404 and its commentary. We

think that is likely.

Two Restatement provisions are relevant: § 402A and

§ 404. Plaintiffs rely on the Restatement (Second) of Torts

§ 402A,7 which is entitled, "Special Liability of Seller of Product

for Physical Harm to User or Consumer." The section recognizes

strict liability in tort, under a warranty theory, as has the

Supreme Judicial Court. See Haglund, 847 N.E.2d at 321-22;

Johnson, 682 N.E.2d at 1326-27; Restatement (Second) of Torts

§ 402A cmt. m; accord Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d

7
Section 402A has been superceded by the Restatement (Third)
of Torts: Products Liability, but Massachusetts law has continued
to recognize it. See Haglund v. Philip Morris Inc., 847 N.E.2d 315
(Mass. 2006).

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1, 15 (1st Cir. 2001). A seller breaches its warranty obligation

under § 402A when it sells any product in a defective condition

unreasonably dangerous to the consumer. Restatement (Second) of

Torts § 402A. The Supreme Judicial Court has justified the

"stringent responsibility placed on sellers under [this] warranty

scheme" in part on the ground that a manufacturer should compensate

the public for injuries where the public is forced to rely on the

manufacturer's superior knowledge. See Haglund, 847 N.E.2d at 322;

Restatement (Second) of Torts § 402A cmt. c.

In our view, the Restatement itself requires that we also

consider the Restatement (Second) of Torts § 404. Section 404 is

entitled "Negligence in Making, Rebuilding, or Repairing Chattel."

In general, the section provides that "an independent contractor

[who] negligently makes, rebuilds, or repairs a chattel for another

is subject to the same liability as that imposed upon negligent

manufacturers of chattels." Restatement (Second) of Torts § 404.

However, where a contractor builds to the specifications of

another, comment a provides:

In such a case, the contractor is not required
to sit in judgment on the plans and
specifications or the materials provided by
his employer. The contractor is not subject
to liability if the specified design or
material turns out to be insufficient to make
the chattel safe for use, unless it is so
obviously bad that a competent contractor
would realize that there was a grave chance
that his product would be dangerously unsafe.

Restatement (Second) of Torts § 404 cmt. a.

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 Plaintiff responds that Trail King is not an independent

contractor, but a manufacturer. Under the facts of this case,

calling Trail King a manufacturer does not make § 404 inapplicable.

The real issue is the role of the defendant in building to the

specifications of another that part which caused the injury.

For these purposes, even assuming Mass. Gen. Laws ch. 106

is relevant, it does not distinguish manufacturers from independent

contractors. The Restatement (Second) of Torts also does not

include relevant terms which expressly distinguish manufacturers

from independent contractors. In fact, it does not define the term

"manufacturer" at all. And while it defines the term "independent

contractor" twice, neither instance is especially helpful here.8

The cases analyzing the Restatement in this context tend

to look to the reality of the situation, not to labels. For

example, in Hunt v. Blasius, 384 N.E.2d 368 (Ill. 1978), a highway

signpost manufacturer installed a highway exit sign pole for the

Illinois state government, using mandated state design and

installation specifications. While driving on the highway, the

plaintiffs collided with the pole and were seriously injured.

8
The Restatement defines "independent contractor" in the
commentary to § 403 and § 409. Section 403 identifies an
independent contractor as one who has "charge and control" over the
details of constructing, rebuilding, or repairing a chattel.
Restatement (Second) of Torts § 403 cmt. a. Section 409 defines an
independent contractor as "any person who does work for another
under conditions which are not sufficient to make him a servant of
the other." Restatement (Second) of Torts § 409 cmt. a.

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Plaintiffs sued the manufacturer for negligence and defective

design. Treating the manufacturer as an independent contractor

under the terms of § 404, the court held that the manufacturer had

"no duty to third persons to judge the plans, specifications, or

instructions which [it had] merely contracted to follow . . .

unless they [were] so obviously dangerous that no competent

contractor would follow them." Id. at 371.

Similarly, in Littlehale v. E. I. du Pont de Nemours &

Co., 268 F. Supp. 791 (S.D.N.Y. 1966), aff'd, 380 F.2d 274 (2d Cir.

1967), the defendant manufactured blasting caps for the U.S.

government pursuant to the government's specifications.

Plaintiffs, employees of the Navy, were injured when the caps

detonated prematurely and sued on the theory of failure to warn.

The court granted summary judgment to the defendant, stating in an

extensive footnote that:

In the 'typical' products liability case, the
manufacturer of the product, having the sole
decision as to the method and means of
manufacture and all other details, is in
reason the party to be charged since it is his
act or failure to act which was the proximate
cause of the accident. The case at bar,
however, presents a different picture since
here an independent contractor, having no
discretion or control over production and
means of manufacture is directed to comply
with the strict contract requirements and
specifications contained therein. It is in
that situation that the 'independent
contractor' exception is applicable, relieving
the independent contractor of liability if he
follows plans which are not so glaringly or

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 patently insufficient that an ordinary prudent
manufacturer would not follow them.

Id. at 802 n.16.

This principle from Littlehale has been widely applied by

other courts. See, e.g., Spangler v. Kranco, Inc., 481 F.2d 373,

375 (4th Cir. 1973); Moon v. Winger Boss Co., 287 N.W.2d 430, 433

(Neb. 1980); Campbell v. ITE Imperial Corp., 733 P.2d 969 (Wash.

1987) (en banc). In Moon, for example, an employee at a beef

processing plant was injured when he became entangled in machinery

manufactured by the defendant to the specifications of the

employer. 287 N.W.2d at 431. The employee sued the manufacturer

on the theory of defective design. Id. at 432. Referencing

Littlehale and applying the Restatement (Second) of Torts § 404,

comment a, the court held that "a manufacturer is not liable for

injuries to a user of a product which it has manufactured in

accordance with plans and specifications of one other than the

manufacturer, except when the plans are so obviously, patently, or

glaringly dangerous that a manufacturer exercising ordinary care

under the circumstances then existing would not follow them."

Moon, 287 N.W.2d at 434.

Of the cases cited by the parties, as well as those we

have found involving facts like these and construing § 404, the

majority limit the liability for fabricators/manufacturers who

build to specification under both implied warranty and negligence

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theories. Indeed, "a growing majority of courts have [held] that

even in strict liability a manufacturer who merely fabricates a

product according to the purchaser's design is not responsible, in

the absence of an obvious defect, if the design proves bad." 2

Madden & Owen on Prods. Liab. § 19:4 (3d ed.). Accordingly, "the

soundness of a contract specifications defense to design defect

claims does not depend on the underlying theory of liability." Id.

For example, in Garrison v. Rohm & Haas Co., 492 F.2d 346

(6th Cir. 1974), the Sixth Circuit held that no defective design

theory could be asserted against a defendant manufacturer who had

built to the specifications of the buyer. Id. at 353. An employee

was injured by a dolly that had been manufactured by the defendant

Orangeville Manufacturing Company according to the exact designs,

plans, and specifications prepared and furnished by the employer.

Id. at 347. The court concluded that "[t]o hold Orangeville liable

for defective design would amount to holding a non-designer liable

for design defect. Logic forbids any such result." Id. at 351.

The court noted that manufacturers producing goods for the public

at large generally have a duty to test the design for safety. Id.

at 353. But where a manufacturer builds to specifications, the

court reasoned, the manufacturer is not required to test for design

safety; "the only thing that such a manufacturer should reasonably

be expected to test for is whether the specifications have been

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complied with." Id. The court reasoned that it is the designing

customer who has the basic responsibility for testing. Id.

The Kentucky Supreme Court has also held that § 402A does

not apply when the seller manufactures the product in accordance

with the specifications of the employer. See McCabe Powers Body

Co. v. Sharp, 594 S.W.2d 592, 594 (Ky. 1980). In McCabe, the

defendant manufactured an aerial boom for the Kentucky Department

of Highways in exact accordance with the department's

specifications, which required that the bucket on the boom have one

open side. The plaintiff, an employee of the department, was

injured when he fell out of the bucket's open side. The court

declined to apply § 402A, reasoning that the case was "entirely

different from the classic products liability case due to the added

factor of design according to the buyer's specifications." Id.

Even though the dangers of the bucket's open side were "open and

obvious," the court concluded that the manufacturer was protected

from liability for injuries caused by use of the product because

the product was manufactured according to plans furnished by the

buyer. Id.

Similarly, the Supreme Court of Ohio has rejected a

strict liability theory against a company that manufactured tanker

cars to the specifications of the buyer. See Queen City Terminals,

Inc. v. Gen. Am. Transp. Corp., 653 N.E.2d 661, 671-73 (Ohio 1995).

The court found that the rationale for strict liability under

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Restatement (Second) of Torts § 402A did not apply in such a

situation because the manufacturer did not launch its product into

the stream of commerce. Queen City Terminals, 653 N.E.2d at 672.

Where the product is custom built, the court reasoned, the

manufacturer is not in any better position than the consumer to

assume the costs of design safety. Indeed, unlike the general

products liability case, "the manufacturer has no opportunity to

spread the costs throughout its many customers, because no other

customers exist." Id.9

The 1982 New Jersey case on which plaintiffs rely, and

which does not discuss Restatement (Second) of Torts § 404, does

not persuade us that Massachusetts would follow its reasoning. See

Michalko v. Cooke Color & Chem. Corp., 451 A.2d 179 (N.J. 1982).

We conclude that the basic concepts10 in the instructions

conveyed to the jury were not erroneous. Any division between

9
Similarly, the Fourth Circuit has twice explained in
failure to warn cases that a manufacturer is not liable for a
design defect if the product is manufactured according to the
buyer's specifications unless the specifications are obviously
dangerous and should not be followed. See Austin v. Clark Equip.
Co., 48 F.3d 833, 837 (4th Cir. 1995); Spangler v. Kranco, Inc.,
481 F.2d 373, 375 (4th Cir. 1973).
10
The reference in the jury instructions to a sophisticated
buyer apparently came from the defendant's requested instructions.
As the district court told the jury, the issue is not the
sophistication of either the buyer or seller. The awkwardness and
irrelevancies in the instruction on implied warranty's reference to
sophisticated purchases are not the subject of plaintiffs' claims
of error, and in any event, they were corrected in the district
court's answer to the jury question.

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negligence and implied warranty is irrelevant under the

circumstances and the totality of the instructions here. In the

end, the instructions captured the law under § 402A, which governs

strict liability, even when it is articulated as a breach of

warranty.

As Judge Posner has pointed out, the issue is one of

imposing back-up liability for design defects on persons other than

the designer. See Mesman v. Crane Pro Servs., 512 F.3d 352, 358-59

(7th Cir. 2008) (citing Restatement (Second) of Torts § 404).

There are policy arguments which may be made on both sides of this

question, and we appreciate the illumination provided on this point

by the briefs, including the amicus brief of the Massachusetts

Academy of Trial Attorneys.

The district judge drew the line in his instructions

where the Restatement (Second) of Torts § 404 does, and we cannot

say that was error. The Massachusetts courts have not adopted

plaintiffs' theory of the case, and we, as a federal court, have no

warrant to extend state product liability law. See Warren v.

United Parcel Serv., Inc., 518 F.3d 93, 100 (1st Cir. 2008) ("[A]

federal court applying state law must be hesitant to blaze a new

(and contrary) trail." (quoting Kassel v. Gannett Co., 875 F.2d

935, 949 (1st Cir. 1989))); Andrade v. Jamestown Hous. Auth., 82

F.3d 1179, 1186-87 (1st Cir. 1996) ("[A]s a federal court hearing

this state law issue . . . , we are reluctant to extend [state] law

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'beyond its well-marked boundaries.'" (quoting Markham v. Fay, 74

F.3d 1347, 1356 (1st Cir. 1996))). Our holding also disposes of

the motion in limine question.

Affirmed. No costs are awarded.

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