Osorio v. ONE WORLD TECHNOLOGIES, INC.

United States Court of Appeals
For the First Circuit
No. 10-1824

CARLOS OSORIO,
Plaintiff, Appellee,

v.

ONE WORLD TECHNOLOGIES, INC. and
RYOBI TECHNOLOGIES, INC.,
Defendants, Appellants,

HOME DEPOT U.S.A., INC.,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

William L. Boesch, with whom Sugarman, Rogers, Barshak &
Cohen, P.C., Michael S. Appel, Susan A. Hartnett, and William F.
Benson, were on brief for appellants.
George F. Carpinello, with whom Teresa A. Monroe, Angus W.
Dwyer, Stuart H. Singer, Joshua P. Riley, Boies, Schiller &
Flexner, LLP (New York and Florida), Sullivan & Sullivan, LLP,
Richard J. Sullivan and Owen R. O'Neill, were on brief for
appellee.
David R. Geiger, Joseph P. Lucia, and Foley Hoag LLP, on brief
for The Product Liability Advisory Council, Inc., amicus curiae.

October 5, 2011
 TORRUELLA, Circuit Judge. Appellee Carlos Osorio

("Osorio") filed a diversity suit against appellants One World

Technologies, Inc. and Ryobi Technologies, Inc. (collectively,

"Ryobi")1 in the United States District Court for the District of

Massachusetts. The complaint alleged claims arising from a hand

injury suffered in a construction site accident involving one of

Ryobi's table saws. After an eight-day jury trial, the jury found

for Osorio and awarded damages of $1.5 million. Ryobi then filed

a motion for judgment as a matter of law and for a new trial, which

the district court denied. Ryobi now appeals these decisions.

After careful consideration, we affirm the district court's

decisions on both matters.

I. Background

On April 19, 2005, Osorio suffered a hand injury while he

operated a Ryobi Model BTS15 benchtop table saw (hereinafter, the

"BTS 15"). At the time, Osorio worked on a construction site for

his employer, a contractor who repairs and installs hardwood

floors. Earlier that year, his employer had purchased the BTS 15

1
One World Technologies, Inc. and Ryobi Technologies, Inc. merged
in December 2004, and Ryobi Technologies, Inc. no longer exists as
a separate company. However, Ryobi Technologies, Inc. manufactured
the product at issue in this case and the parties refer to
Defendants-Appellants as "Ryobi" in their briefs. Accordingly, for
simplicity, this opinion will also refer to Defendants-Appellants
as "Ryobi."

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at a Home Depot store for $179.2 As Osorio used the BTS 15 to make

a cut along the length of a piece of wood, his left hand slipped

and slid into the saw's blade, causing severe injury.

Osorio sued Ryobi, the manufacturer of the saw, claiming

negligence and breach of the implied warranty of merchantability.3

At trial, Osorio argued that the BTS 15 was unacceptably dangerous

due to a defective design. Osorio largely relied on the testimony

of his witness, Dr. Stephen Gass, inventor of "SawStop," a

mechanism that allows a table saw to sense when the blade comes

into contact with flesh, immediately stops the blade from spinning,

and causes it to retract into the body of the saw. Dr. Gass

testified that since he developed SawStop in 1999, he has presented

the technology to several major manufacturers of table saws,

including Ryobi in 2000. To date, none of the major power tool

manufacturers has adopted SawStop. Osorio alleged that the

manufacturers' failure to incorporate SawStop into their designs is

due to a collective understanding that if any of them adopts the

technology, then the others will face heightened liability exposure

for not doing so as well.

2
There are three generally-recognized categories of table saws --
benchtop saws, contractor saws, and cabinet saws. Cabinet and
contractor saws are large and designed for use in an industrial or
large workshop setting such as woodworking shops. Benchtop saws
like the BTS 15 at issue are smaller, often portable, and less
expensive than the other two categories.
3
Osorio also sued Home Depot U.S.A., Inc. However, Home Depot
was not found liable at trial and is not involved in this appeal.

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 The trial had an element of comparative negligence, which

is not being appealed, but which had an effect on the evidence

introduced at trial. After an eight-day trial, the jury returned

a verdict in favor of Osorio and awarded damages of $1.5 million.

The jury also found that Osorio was negligent and thirty-five

percent at fault for the accident. However, this finding of

comparative negligence did not affect the award of damages, as the

jury also found Ryobi liable for breach of the implied warranty of

merchantability.

Following the trial, Ryobi moved for judgment as a matter

of law, alleging that Osorio did not meet an obligation to present

a feasible alternative design. In the alternative, Ryobi moved for

a new trial based on plaintiff's counsel's alleged prejudicial

misconduct. The district court denied the motion. Osorio v. One

World Techs., Inc., 716 F. Supp. 2d 155, 158 (D. Mass. 2010).

Ryobi now appeals.

II. Discussion

Although the parties frame the issues differently, Ryobi

essentially presents three arguments on appeal. First, Ryobi

contends that Osorio failed to present sufficient evidence to

support the jury's verdict in his favor on design defect grounds.

Second, Ryobi argues that Osorio's counsel committed misconduct at

trial that prejudiced Ryobi's defense. Third, Ryobi claims the

district court should not have permitted Osorio's expert to

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discredit the BTS 15's design in ways Ryobi alleges were irrelevant

to the case and contests the district court's refusal to allow it

to show excerpts from a video deposition of Osorio. We address

each argument in turn.

A. Sufficiency of the Evidence Claim and Categorical Liability

We review the district court's denial of a defendant's

motion for judgment as a matter of law de novo. Morales-

Vallellanes v. Potter, 605 F.3d 27, 33 (1st Cir. 2010). In doing

so, we consider "the evidence presented to the jury, and all

reasonable inferences that may be drawn from such evidence, in the

light most favorable to the jury verdict." Granfield v. CSX

Transp., Inc., 597 F.3d 474, 482 (1st Cir. 2010) (quoting Cigna

Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001)). We

will only reverse the district court's denial of Ryobi's motion "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." Santos v. Sunrise Med., Inc., 351

F.3d 587, 590 (1st Cir. 2003) (quoting Star Fin. Servs., Inc. v.

Aastar Mortg. Corp., 89 F.3d 5, 8 (1st Cir. 1996)) (internal

quotation marks omitted).

1. Sufficiency of the Evidence to Prove a Design Defect

Under applicable Massachusetts law, warranty liability is

"a remedy intended to be fully as comprehensive as the strict

liability theory of recovery [of many other] jurisdictions." Back

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v. Wickes Corp., 378 N.E.2d 964, 968 (Mass. 1978). Accordingly,

manufacturers must design products so that they "are fit for the

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

ch. 106, § 2-314(2)(c). "A product is 'reasonably fit' for its

purposes if the design prevents the 'reasonably forseeable [sic]

risks attending the product's use in that setting.'" Marchant v.

Dayton Tire & Rubber Co., 836 F.2d 695, 698 (1st Cir. 1988)

(quoting Back, 378 N.E.2d at 970). Thus, Massachusetts law is

"congruent in nearly all respects with the principles expressed in

the Restatement (Second) of Torts § 402A." Back, 378 N.E.2d at

969.

A reasonably fit product need not be a risk-free product,

however. "Even where the product design creates a risk of

foreseeable harm, the question is whether this risk was

unreasonable." Marchant, 836 F.2d at 698 (quoting Raney v.

Honeywell, Inc., 540 F.2d 932, 935 (8th Cir. 1976)) (internal

quotation marks omitted); see also Restatement (Second) of Torts

§ 402A. Guiding our judgment in the instant case, the Supreme

Judicial Court of Massachusetts has explained that relevant factors

to assess the suitableness of a product's design include:

[1] the gravity of the danger posed by the
challenged design, [2] the likelihood that
such danger would occur, [3] the mechanical
feasibility of a safer alternative design, [4]
the financial cost of an improved design, and
[5] the adverse consequences to the product
and to the consumer that would result from an
alternative design.

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Back, 378 N.E.2d at 970 (quoting Barker v. Lull Eng'g Co., 573 P.2d

443 (Cal. 1978)) (internal quotation marks omitted). The jury is

free to balance all competing factors, including the perceived

feasibility of a proposed alternative design. See Marchant, 836

F.2d at 699-700. As a result, "plaintiff's case is not

automatically defeated merely because the alternative design was

not being used at the material time." Id. at 699.

Ryobi argues that Osorio failed to meet a prima facie

obligation to present a reasonable alternative design for the

product at issue that accounted for the weight, cost, and other

features particular to the BTS 15. This amounts to two arguments:

that the record evidence was insufficient to permit the jury to

make a reasoned determination and that Massachusetts law requires

a prima facie showing on all of these factors. Both are incorrect.

Because the evidence at trial showed that a benchtop saw

that incorporated SawStop into its design would likely be larger,

heavier, and more expensive than the BTS 15 at issue, Ryobi insists

that Osorio's proffered design falls short of being a viable

alternative. Accordingly, Ryobi would like us to conclude that

Osorio did not meet his burden and hold that Ryobi is entitled to

judgment as a matter of law.

Operating -- as we must -- under the applicable

Massachusetts principles, we do not conclude that the added cost or

increased weight of Osorio's proposed alternative design is fatal

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to his case as a matter of law. It is the province of the jury to

determine whether the relevant factors, properly balanced, suggest

that a product's design is unreasonable. See Back, 378 N.E.2d at

970. The increase in expense of a proposed alternative is but one

of those factors and the jury was free to determine that the costs

of such an alternative exceeded its benefits. Marchant, 836 F.2d

at 700 (rejecting proposition that "plaintiff must prove that the

alternative design was efficient on a cost/benefit basis").

Evidence relating to the mechanical feasibility or increased weight

of an alternative design may be similarly balanced. Where, as

here, the trial judge adequately instructed the jury as to the

applicable multi-factored design defect test under Massachusetts

law, we have not found reason to question the jury's findings. See

id. ("Such an instruction [to the jury] is all that Back v. Wickes

requires.").

The viability of adding SawStop to a small, portable saw

was a major issue during the litigation, amounting to what the

district court described as "hours of testimony on the cost and

feasibility of incorporating the technology into the BTS

15 . . . ." Osorio, 716 F. Supp. 2d at 157. At trial, Osorio's

expert offered testimony that a benchtop saw like the BTS 15 that

incorporated SawStop flesh-detection technology could still be

carried between jobsites. The jury also heard testimony suggesting

that Ryobi was in the process of developing flesh-detection

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technology through a joint venture with competing manufacturers.

With regards to cost, the record reveals that over the course of an

eight-day trial the jury had ample opportunity to hear the parties'

competing propositions on the issue. On Osorio's behalf, Dr. Gass

testified that SawStop technology would add "less than $150" to the

price of a table saw and Osorio's other expert witness, Mr. Robert

Holt, seems to have accepted this figure. On cross-examination,

Ryobi probed and challenged Osorio's proposed alternative design.

Pressed by Ryobi's counsel, Dr. Gass testified that the SawStop

flesh-detection system can trigger without having actually been

touched by a person, particularly when cutting wet or pressure-

treated wood. Because portable saws used by contractors are

sometimes exposed to the elements and rough treatment, the jury

heard testimony that these conditions could increase the chances of

a malfunction of the SawStop system. Finally, the parties also

disputed whether a small benchtop saw like the BTS 15 could

properly absorb the force necessary to stop a rapidly spinning saw

blade.

Secondly, as a matter of law, we do not find support for

Ryobi's suggestion that a plaintiff asserting a design defect claim

must present an alternative design that meets all the above-cited

Back factors prima facie. Quite the opposite, all Massachusetts

law requires is that "competing factors should be balanced when

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deciding reasonableness of design." Marchant, 836 F.2d at 699-700

(internal quotation marks omitted).

In Marchant, we addressed an argument similar to the one

Ryobi advances, where the district court had granted defendants'

motion for judgment as a matter of law on the grounds that a

plaintiff asserting a design defect claim did not "prove to the

jury the cost/benefit efficiency of the alternative design." Id.

at 699. Reinstating the jury's verdict in favor of the plaintiff,

we rejected the defendants' claim that "the plaintiff must prove

that the alternative design was efficient on a cost/benefit basis."

Id. at 700. Pertinent to the instant case, we also noted that

where the defendant manufacturer felt its product's design was

reasonable, it was "its responsibility to produce evidence in

support of such a theory." Id.

Ryobi's claim that Osorio needed to make a prima facie

showing of a feasible alternative design meeting the Back factors

is also undermined by the Massachusetts Supreme Judicial Court's

decision in Smith v. Ariens Co., 377 N.E.2d 954 (Mass. 1978), which

guided our analysis in Marchant. In Marchant, we explained:

In Smith . . . the SJC upheld a verdict that a
snowmobile was designed such that an
unreasonable risk of harm was created, where
the only evidence relied upon by the jury was
the snowmobile itself. Not only did the
plaintiff in Smith fail to address the costs
and efficiencies of alternative designs, but
no alternatives were even suggested.

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836 F.2d at 700 (internal quotation marks omitted). Contrary to

Ryobi's claim, Smith, then, suggests that Massachusetts product

liability law may tolerate a finding of design defect even in the

absence of evidence supporting the existence of a feasible

alternative design. See Smith, 377 N.E.2d at 957 ("[I]n cases in

which a jury can find of their own lay knowledge that there exists

a design defect which exposes users of a product to unreasonable

risks of injury, expert testimony that a product is negligently

designed is not required.").4

2. Categorical Liability

a. Waiver

As a corollary to its sufficiency argument, Ryobi claims

that Osorio's suit is essentially an attempt to hold a manufacturer

liable for injuries caused by its product in the absence of a

conventional defect and despite the fact that a feasible safer

alternative is not available, a "categorical liability" theory that

courts have traditionally rejected. See, e.g., Kotler v. Am.

Tobacco Co., 926 F.2d 1217, 1224-25 (1st Cir. 1990) ("The pivotal

question . . . is whether, in the absence of a non-inherent defect,

breach of warranty can be found based solely on a risk/utility

analysis. We think this question must be answered in the

4
Guided by these principles, we also reject as contrary to
Massachusetts law amicus's claim that the feasibility of a product
is most readily demonstrated by the product already being on the
market. See Back, 378 N.E.2d at 970 ("[C]ounsel may argue that
industry standards can and should be more stringent.").

-11-
negative."), vacated, 505 U.S. 1215, aff'd on remand, 981 F.2d 7

(1st Cir. 1992). However, before we examine the merits of Ryobi's

claim, we must resolve a threshold matter: whether, as Osorio

contends, Ryobi failed to preserve its categorical liability

argument by not including it in its motion for judgment as a matter

of law at the close of the evidence.

A challenge to the sufficiency of the evidence such as

the one Ryobi presses on appeal must first be raised at the close

of all the evidence at trial. See Fed. R. Civ. P. 50(a)(2);

Sánchez v. P.R. Oil Co., 37 F.3d 712, 723 (1st Cir. 1994). If, as

in the instant case, the district court denies the litigant's

motion for judgment as a matter of law and the case is submitted to

the jury, "the movant must renew the motion once again in order to

preserve the issue for appeal." Zachar v. Lee, 363 F.3d 70, 73-74

(1st Cir. 2004) (citing Fed. R. Civ. P. 50(b)). Under Rule 50(b),

a renewed motion must limit itself to the issues raised in a

movant's prior Rule 50(a) motion. Parker v. Garrish, 547 F.3d 1,

12 (1st Cir. 2008); Correa v. Hosp. San Francisco, 69 F.3d 1184,

1196 (1st Cir. 1995).

Ryobi conceded in its Rule 50(a) motion that Osorio had

"presented evidence critical of the [BTS 15]," but argued that

Osorio had "failed to offer sufficient evidence for the jury to

conclude that the subject saw was not designed with reasonable care

or that the saw was both defective and unreasonably dangerous."

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The district court denied this motion. Ryobi's Rule 50(b) motion

for judgment as a matter of law renewed this sufficiency attack,

but also accused Osorio's expert witnesses of advancing "the

position that the [BTS 15] and all low-cost portable benchtop table

saws like it are inherently unsafe and should not be sold."

Osorio, Ryobi asserted, could not "invoke Massachusetts' product

liability law to impose categorical liability on a class of

products." As before, the district court denied this motion. On

appeal, Ryobi revives the arguments it set forth in its Rule 50(b)

motion.

We do not find that Ryobi waived the categorical

liability argument it now asks us to consider. The crux of Ryobi's

argument is that Osorio did not show that a feasible alternative

design for an inexpensive, lightweight benchtop table saw like the

BTS 15 existed. The alternative design Osorio proposed at trial,

Ryobi's argument continues, would drastically alter a saw like the

BTS 15, resulting in a heavier, less portable, and more expensive

product. Ryobi maintains that its categorical liability argument

simply seeks to "flesh[] out" the question of whether Osorio

satisfied his burden of presenting an alternative design for the

BTS 15 -- an issue contested at each stage of the litigation.

Reviewing the record, we agree.

Throughout the litigation, Ryobi has argued that SawStop

could not be incorporated into the BTS 15's design without

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radically altering the nature of the product and its cost.

Accordingly, we believe that Ryobi's failure to explicitly invoke

"categorical liability" in its pre-judgment Rule 50(a) motion did

not constitute a waiver of its argument. See Lynch v. City of

Boston, 180 F.3d 1, 13 n.9 (1st Cir. 1999) ("[Rule 50(a)] does not

require technical precision in stating the grounds of the motion.

It does require that they be stated with sufficient certainty to

apprise the court and opposing counsel of the movant's position

with respect to the motion." (citing 9A C. Wright & A. Miller,

Federal Practice and Procedure, § 2533, at 310-11 (1995))).

b. Osorio's Suit as Impermissible Categorical
Liability

Ryobi claims that instead of presenting a viable

alternative design, Osorio set out to prove that the entire

category of lightweight, inexpensive, benchtop table saws to which

the BTS 15 belongs was defective, in part because the saws'

manufacturers have not incorporated flesh-detection braking systems

into their designs. Taken to its logical conclusion, Ryobi

contends, Osorio's theory would hold manufacturers of portable and

economical benchtop saws liable for all injuries suffered by

victims of accidents involving their products.

To support its argument, Ryobi cites several cases,

namely the Fourth Circuit's decision in Dreisonstok v.

Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974). In that case,

the district court, sitting without a jury, found that the product

-14-
at issue, a Volkswagen microbus, was defective because it was not

as "crashworthy" as a standard passenger car. The Fourth Circuit

reversed, concluding that the Volkswagen microbus had specific

features -- such as maneuverability, low cost, and its utility to

transport people or cargo -- that made it attractive to many

consumers. Id. at 1073-76. The Dreisonstok court explained that

these features involved safety tradeoffs discernible to consumers

and rejected what it saw as the plaintiff's call to impose a

"strait-jacket on design" by requiring that all vehicles conform to

the standards of another class of vehicle. Id. at 1075.

Ryobi concedes that its cited examples of the categorical

liability theory are often clear about plaintiffs' intentions, for

example, by attempting to impose liability for injuries caused by

an entire class of products. Accordingly, in Kotler, cited by some

commentators as a classic categorical liability case,5 we were

unwilling to hold a manufacturer liable for alleged design defect

based on a theory that its cigarettes were inherently defective.

See 926 F.2d at 1225 ("Appellant's design initiative rested not on

the contention that appellees' cigarettes could have been made

safer, but solely on the considerably different contention that the

5
See, e.g., Richard C. Ausness, Product Category Liability: A
Critical Analysis, 24 N. Ky. L. Rev. 423, 439-40 (1997); Harvey M.
Grossman, Categorical Liability: Why the Gates Should be Kept
Closed, 36 S. Tex. L. Rev. 385, 391 n.19, 392 n.25 (1995); Ellen
Wertheimer, The Smoke Gets in Their Eyes: Product Category
Liability and Alternative Feasible Designs in the Third
Restatement, 61 Tenn. L. Rev. 1429, 1432 n.7 (1994).

-15-
cigarettes were defective because the risks inherent in their

consumption . . . outweighed their social utility."). However,

Ryobi posits that the categorical liability concept extends beyond

those cases into others where the claim is more subtle. As

examples, Ryobi points us to two cases.

In the first, Wasylow v. Glock, Inc., 975 F. Supp. 370

(D. Mass. 1996), the district court rejected the plaintiff's

challenge at the summary judgment stage, finding that a proposed

alternative design for a handgun appeared both feasible and safer,

but would alter the product's "functional purpose." 975 F. Supp.

at 379. In the second, Linegar v. Armour of America, Inc., 909

F.2d 1150 (8th Cir. 1990), the Eighth Circuit rejected a design

defect challenge to a certain kind of bullet-resistant vest that

offered less coverage than other models but allowed the user

greater mobility and heat dissipation, among other features. 909

F.2d at 1154-55. Doing so, the Linegar court noted the likely

effect on product availability of holding in the plaintiffs' favor,

noting that "manufacturer[s] [are] not obliged to market only one

version of a product, that being the very safest design possible.

If that were so, automobile manufacturers could not offer consumers

sports cars, convertibles, jeeps, or compact cars." Id. at 1154.

Ryobi contends that, like Osorio's suit, these cases form part of

the categorical liability catalogue because accepting the

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plaintiffs' claim required a "fundamental disregard of the defining

characteristics of the product at issue."

We are not convinced that Osorio's suit reaches into

impermissible categorical liability. The absence of an alternative

design is a defining characteristic of categorical liability

theory. See Restatement (Third) of Torts: Products Liability § 2

cmt. d (1998); see also Harvey M. Grossman, Categorical Liability:

Why the Gates Should be Kept Closed, 36 S. Tex. L. Rev. 385, 392

(1995) (noting the doctrine imposes liability "even though there is

no . . . reasonable design alternative that could be used to avoid

[] injuries"). Here, an alternative design was not only offered,

but also discussed, examined, and debated. At the district court

the parties explained and probed the merits of an alternative

design incorporating the SawStop system. Ryobi repeatedly

challenged Osorio's proposed design raising many of the arguments

against SawStop it now raises on appeal, particularly on the issue

of added weight. See Osorio, 716 F. Supp. 2d at 157. Just as we

conclude that the evidence presented was sufficient to allow the

case to reach the jury, it seems similarly plain that considering

the evidence before it, the jury simply agreed with Osorio's case

and found in his favor.

B. Counsel's Alleged Misconduct at Trial

Ryobi's post-judgment motion to the district court also

contained a request for a new trial under Fed. R. Civ. P. 59. On

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appeal, Ryobi again points to several allegedly impermissible

statements and other improper conduct on the part of Osorio's

counsel that Ryobi says prejudiced its case to the extent that a

new trial is necessary. Ryobi claims that Osorio's counsel: (1)

sought to inflame the jury by repeatedly referencing Ryobi's size,

earnings, and foreign ownership; (2) cited irrelevant and

unsupported statistics of numbers of table saw accidents (including

those attributed to Ryobi); (3) attempted to connect Ryobi with a

ten-year power tool manufacturer conspiracy to keep flesh-detection

technology off the market; and (4) improperly urged the jury to

"send a message" to Ryobi management by finding for Osorio -- once

explicitly, during opening statement and again, as an implicit

"theme," at closing arguments after the judge advised against

"introducing purely emotional elements" to the jury's

deliberations.

We review the denial of a motion for a new trial for

abuse of discretion, mindful of the deference due to the district

court's judgment. S.E.C. v. Happ, 392 F.3d 12, 26 (1st Cir. 2004).

"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 verdict itself." P.R. Aqueduct & Sewer Auth. v. Constructora

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Lluch, Inc., 169 F.3d 68, 82 (1st Cir. 1999). We do not reverse in

the absence of prejudice to the appellant's case. Santos, 351 F.3d

at 593.

While Ryobi does point us to some conduct that could be

considered problematic, we are unconvinced that the district court

abused its discretion in refusing to grant a new trial. We are

most concerned by counsel's suggestion during opening statements

that the jury "send a message" to Ryobi management by imposing

liability since, as Ryobi notes, we have deemed similar arguments

improper in the past. See Smith v. Kmart Corp., 177 F.3d 19, 26-27

(1st Cir. 1999) (noting plaintiff's call to "send a message" was

improper request for punitive damages). Here, however, the

district judge acted competently to prevent Ryobi's case from being

prejudiced. At trial, Ryobi objected to the use of the phrase

"send a message" and Osorio's counsel asserted that he would

refrain from using it during closing argument. In light of

counsel's assertion, the court then stated that it would not

further restrict any statements, but warned both parties against

"introducing purely emotional elements into jury deliberations."

Although Ryobi claims that Osorio's counsel nevertheless then

implicitly asked the jury to "send a message" during closing

argument, we agree with the district court that plaintiff counsel's

later statements to the jury were "within the bounds of propriety."

Osorio, 716 F. Supp. 2d at 158.

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C. Evidentiary Issues

Ryobi also raises two evidentiary claims on appeal. We

review the district court's evidentiary rulings for abuse of

discretion. Monteagudo v. Asociación de Empleados del Estado Libre

Asociado de P.R., 554 F.3d 164, 173 (1st Cir. 2009). Even if

erroneous, we disregard any defect below "which does not affect the

substantial rights of the parties." Kelley v. Airborne Freight

Corp., 140 F.3d 335, 346 (1st Cir. 1998) (quoting Fed. R. Civ. P.

61).

First, Ryobi argues that the district court erred by

allowing Osorio's witness, Mr. Holt, to disparage the design of the

BTS 15 in ways that Ryobi claims were irrelevant to the case at

issue and prejudicial to its case. Specifically, Mr. Holt

suggested that the design of the BTS 15's guiding "rip fence" and

safety blade guard were defective and commented on the saw's

dimensions, motor, and warnings. Ryobi contends that these

comments were irrelevant because Osorio conceded that he did not

use the blade guard at the time of the accident and, thus, no

alternative guard design would have helped to avoid Osorio's

accident.

Here, the district court did not abuse its discretion.

Viewed in the context of the parties' dispute, it is clear that

Holt's comments went to a major and controverted issue at trial:

whether Osorio was partly at fault for the accident that caused his

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injury. Ryobi's counsel tried to convince the jury that Osorio was

largely to blame, in part because he did not use the factory-issued

blade guard and removed the guiding rip fence before using the BTS

15. Conversely, Osorio sought to prove that it was common for

consumers to remove this equipment and that Ryobi should have

accounted for this probability in its design. Holt's testimony

bore on this controversy and was patently relevant to the

proceedings. See Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 77

(1st Cir. 2010).

Second, Ryobi claims that the district court erred by not

allowing the jury to watch an excerpt from a video deposition of

Osorio which, Ryobi alleges, was inconsistent with Osorio's

statements at trial describing the cut he made when he injured

himself. Osorio responds that Ryobi did not adequately preserve

this issue and has thus waived it on appeal. Even if Ryobi

preserved the claim, Osorio argues that the district court did not

abuse its discretion when it refused to allow Ryobi to use the

proposed video deposition and avers any error was harmless.

We do not find any evidence in the record that Ryobi

preserved this second evidentiary claim for our review.

"Preserving the claim of error based on exclusion of evidence

requires an adequate proffer, so that the trial and appellate

courts know what evidence is at issue." Fusco v. Gen. Motors

Corp., 11 F.3d 259, 263 n.3 (1st Cir. 1993); see United States v.

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Amaya-Manzanares, 377 F.3d 39, 46 (1st Cir. 2004); see also

Montalvo v. González-Amparo, 587 F.3d 43, 48 (1st Cir. 2009) ("[A]n

appellant who has not proffered a particular claim or defense in

the district court may not unveil it in the court of appeals."

(quoting Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627

(1st Cir. 1995) (internal quotation marks omitted))). At the

district court, Ryobi's counsel tried to show video of Osorio's

deposition, but the trial judge did not allow him to do so. The

record reflects that Ryobi's counsel then asked the judge if he

could instead show the witness the deposition transcript, adding

that he "would be happy to do that." The judge agreed to this

request, and the trial continued. At no later point in time did

Ryobi's counsel object to the district court's ruling. Not having

raised the issue below, we find Ryobi's assertion that the excerpts

of Osorio's video deposition were central to its case difficult to

credit and conclude that Ryobi's argument is waived.6

6
Even assuming we were to find that Ryobi preserved this issue
for appellate review, we think it is very likely that appellant's
claim would fail to overcome the "special degree of deference" that
we give district judges' "on-the-spot judgment calls" regarding
which evidence to admit or exclude at trial. Rodríguez v. Señor
Frog's de la Isla, Inc., 642 F.3d 28, 35-36 (1st Cir. 2011).
Moreover, in the unlikely event that Ryobi cleared that hurdle, it
is unclear how the excerpt of Osorio's video deposition that Ryobi
sought to introduce would support Ryobi's case so fully as to
require a new trial. The jury was, of course, well aware that the
parties disagreed about the type of cut Osorio made when he injured
his hand and that neither the blade guard nor the guides for the
wood were used. Additionally, the jury found Osorio to be thirty-
five percent at fault for the accident, but awarded damages on
another theory. Ultimately, we find it doubtful that the video

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 III. Conclusion

For the reasons stated above, we affirm the district

court's order.

Affirmed.

excerpts of Osorio's deposition would be so vital to Ryobi's case
as to overcome the strong presumption against granting a new trial.
See McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st Cir. 2006)
("Erroneous evidentiary rulings are harmless if it is highly
probable that the error did not affect the outcome of the case.").

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