Babcock v. General Motors Corp.

United States Court of Appeals
For the First Circuit

No. 01-2270

FRANCES A. BABCOCK, IN HER CAPACITY AS EXECUTRIX
OF THE ESTATE OF PAUL A. BABCOCK, III, AND INDIVIDUALLY,

Plaintiff, Appellee,

v.

GENERAL MOTORS CORPORATION,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lipez, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.

Daniel L. Goldberg, with whom S. Elaine McChesney, Donald J.
Savery, Bingham Dana LLP, Thomas J. Sweeney, Daniel B. McLane, and
Eckert Seamans Cherin & Mellott, LLC, were on brief, for appellant.

Edward M. Kaplan, with whom Robert M. Larsen, Timothy A.
Gudas, and Sulloway & Hollis, P.L.L.C., were on brief for appellee.

August 12, 2002
 BOWNES, Senior Circuit Judge. This appeal is taken by

defendant-appellant General Motors Corporation ("GM") from an

adverse jury verdict in favor of plaintiff-appellee Frances A.

Babcock as executrix of the estate of Paul A. Babcock, III, and

individually. The case arose from an accident on February 21,

1998, when a General Motors pickup truck driven by Paul A. Babcock,

III, went off the road and struck a tree. The accident rendered

Babcock a paraplegic. On June 15, 1999, Babcock died as a result

of complications from his injuries.

I. BACKGROUND

Plaintiff brought suit alleging negligence and strict

liability against the defendant. The jury returned a verdict

finding GM liable on the negligence count and not liable on the

strict liability count. It is undisputed that when Babcock was

first seen after the accident his seat belt was not fastened around

him. The complaint alleged that Babcock was wearing his seat belt

prior to the accident, but that the belt unbuckled as soon as

pressure was exerted on it and the buckle released due to a

condition known as "false latching." The main focus of the trial

was on this claim of false latching.

Three main issues are before us: (1) whether the verdict

should be set aside because it was internally inconsistent;

(2) whether GM forfeited its objection to the alleged inconsistency

because of its failure to follow the requirements of Rules 49(b)

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and 51 of the Federal Rules of Civil Procedure as applied by this

court; and (3) whether the evidence was sufficient to support the

verdict of liability based on negligence. We affirm the judgment

below.

II. DISCUSSION

A. The Claim of Inconsistent Verdicts

GM advances a series of arguments to the effect that the

jury's verdict on the negligence count is invalid and cannot stand:

(1) as a matter of law, in the absence of a defect in the product,

GM could not be found liable for negligence; (2) thus, the verdicts

were inconsistent; (3) the inconsistency in the verdicts was caused

by the district court's erroneous jury instructions; and

(4) plaintiff's failure to appeal the verdict in favor of GM on the

strict liability claim precludes entry of judgment for plaintiff on

the negligence claim and mandates entry of judgment for GM.

None of these arguments or variations thereof was made in

the trial court. During the discussions on the proposed jury

charge, the trial judge discussed the Verdict Form with counsel on

two separate occasions. GM did not object to the form on either

occasion. The Verdict Form on liability submitted to the jury

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stated:

SPECIAL VERDICT FORM

1. Has plaintiff proved her negligence claim
by a preponderance of the evidence?

X
Yes No

2. Has plaintiff proved her product liability
claim by a preponderance of the evidence?

X
Yes No

[Answer questions 3 and 4 only if you have
answered yes to question 1 and/or 2]

Although the Verdict Form is entitled "Special Verdict

Form," it seems clear that it was not a true "special verdict," as

described in Rule 49(a) of the Federal Rules of Civil Procedure.

Rule 49(a) states: "The court may require a jury to return only a

special verdict in the form of a special written finding upon each

issue of fact." Here, for example, a special verdict form would

have included questions such as whether Babcock was wearing his

seatbelt at the time of the accident. When such a form is used,

the jury makes only findings of fact; it is up to the court to

apply the law. See 9A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2503, at 155-56 (2d ed. 1994). It

seems clear that this is not the type of verdict form used in this

case.

Rule 49(b), which addresses general verdicts, states:

"The court may submit to the jury, together with appropriate forms

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for a general verdict, written interrogatories upon one or more

issues of fact the decision of which is necessary to a verdict."

This is the type of form used in this case: the jury returned a

verdict against GM, and also answered specific interrogatories

designed to channel its deliberations, focusing its attention on

the crucial issues that it had to resolve in order to decide which

party should prevail.1 See Wright & Miller, supra, § 2511, at 217

& n.1 (discussing the purpose of Rule 49(b)). The last sentence of

Rule 49(b) specifically discusses inconsistent answers to questions

submitted to the jury: "When the answers are inconsistent with

each other and one or more is likewise inconsistent with the

general verdict, judgment shall not be entered, but the court shall

return the jury for further consideration of its answers and

verdict or shall order a new trial."

We have held that under Rule 49(b), objections to the

inconsistency of verdicts must be made after the verdict is read

and before the jury is discharged. E.g., Merchant v. Ruhle, 740

F.2d 86, 89 (1st Cir. 1984); Skillin v. Kimball, 643 F.2d 19, 19-20

(1st Cir. 1981). Consistent with those precedents, we hold that GM

1
In the alternative, the jury's answers to the questions on
the verdict form could be described as two general verdicts. See
Merchant v. Ruhle, 740 F.2d 86, 88-89 (1st Cir. 1984). We need not
determine which label is correct because the result is the same
regardless. As we explain below, objections to allegedly
inconsistent special interrogatories must be raised before the jury
is discharged. The same is true for allegedly inconsistent general
verdicts. See id. at 91-92.

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forfeited its objection to the alleged inconsistency by failing to

object at the critical time. See McIsaac v. Didriksen Fishing

Corp., 809 F.2d 129, 134 (1st Cir. 1987). To decide otherwise

would countenance 'agreeable acquiescence to perceivable error as

a weapon of appellate advocacy.'" Id. (quoting Merchant, 740 F.2d

at 92). Consequently, unless there is plain error, we cannot grant

relief on GM's claim that the jury's inconsistent liability

findings rendered invalid its finding that GM was negligent. We

address the issue of plain error below.

Our finding of forfeiture is reinforced by GM's failure

to object properly to the jury instructions, which made clear that

the jury could return a verdict in Babcock's favor if it found

either negligence or a design defect. Cf. Toucet v. Maritime

Overseas Corp., 991 F.2d 5, 9 (1st Cir. 1993) (noting that

defendant "should have been alerted to the potential inconsistency

by the jury instructions," which stated that the plaintiff could

recover if on "one or both" of her negligence and unseaworthiness

claims). Rule 51 of the Federal Rules of Civil Procedure provides

in pertinent part: "no party may assign as error the giving or the

failure to give an instruction unless that party objects thereto

before the jury retires to consider its verdict, stating distinctly

the matter objected to and the grounds of the objection." We point

out that during the pre-charge conference on the proposed jury

instructions, the district court alerted counsel that in order to

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preserve objections to the charge they had to object as required

under the rule. Rule 51 has been stringently enforced to the

extent that a district court judge cannot waive it even with the

acquiescence of counsel. Poulin v. Greer, 18 F.3d 979, 982 (1st

Cir. 1994); Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1109 (1st

Cir. 1989); McGrath v. Spirito, 733 F.2d 967, 969 (1st Cir. 1984)

("[Rule 51] is binding on both the court and attorneys and neither

can circumvent it."). And, of critical importance to GM's

position, a failure to object as required by Rule 51 deprives the

non-objecting party of review under Rule 61, either before the

trial court on a post-trial motion or on appeal. Scarfo v.

Cabletron Sys., Inc., 54 F.3d 931, 941 (1st Cir. 1995).

There is nothing in the record from which it can be found

either directly or inferentially that GM objected to the submission

to the jury of both the negligence and strict liability claims. In

fact, defense counsel treated the submission of both claims as

routine procedure. GM's only objection after argument and prior to

the jury's retiring for deliberations was as follows:

COUNSEL FOR GM: I just want to reiterate the
comments that we had before that the court
prepared the charge on the issue of defective
design versus testing.

THE COURT: All right. That your argument is
that this does not include a negligence
testing claim, and . . . you've adequately
preserved that argument.

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 Evidently, the district court understood GM to be arguing

(as it had during an earlier conference) that Babcock's claim of

negligent testing was not properly in the case because it was not

included in the Amended Complaint. Nothing in GM's post-charge

comments raised the claim of possible verdict inconsistency it

presses on appeal. We conclude that those brief comments did not

satisfy the requirements of Rule 51.

The only exception to nullification of appellate issues

for failure to follow Rule 51 is the plain error doctrine. Smith

v. Kmart Corp., 177 F.3d 19, 28-29 (1st Cir. 1999). Reversal under

that doctrine requires that (1) there be error; (2) the error was

"plain" (i.e. obvious and clear under current law); (3) the error

affected substantial rights; and (4) the error threatened a

miscarriage of justice. Danco, Inc. v. Wal-Mart Stores, Inc., 178

F.3d 8, 15 (1st Cir. 1999). We have applied the plain error

doctrine "stringently" in civil cases. Id. Accordingly, we will

grant relief on an issue that has been forfeited on appeal only "to

prevent a clear miscarriage of justice . . . or where the error

seriously affected the fairness, integrity or public reputation of

judicial proceedings." Romano v. U-Haul Int'l, 233 F.3d 655, 664

(1st Cir. 2000) (citations and internal quotation marks omitted).

We might find plain error where "'the failure to raise the claim

below deprived the reviewing court of helpful

factfinding; . . . the issue is one of constitutional

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magnitude; . . . the omitted argument is highly

persuasive; . . . the opponent would suffer special

prejudice; . . . and, perhaps most importantly, . . . the issue is

of great importance to the public.'" Id. (quoting Play Time, Inc.

v. LDDS Metromedia Communications, Inc., 123 F.3d 23, 30 n.8 (1st

Cir. 1997) (alterations in original). None of these factors is

present in this case.

We examine New Hampshire law to determine whether there

was plain error below. If New Hampshire law forbade combining a

count in negligence with a count in strict liability in a tort

case, the plain error doctrine might be applicable. But New

Hampshire law does not prohibit submitting both negligence and

strict liability claims to the jury. See, e.g., Cyr v. J.I. Case

Co., 652 A.2d 685, 693 (N.H. 1995); Thibault v. Sears, Roebuck &

Co., 395 A.2d 843, 849 (N.H. 1978); Greenland v. Ford Motor Co.,

Inc., 347 A.2d 159, 163 (N.H. 1975). The most that can be said is

that submission of both claims is frowned upon. Thibault, 395 A.2d

at 849 ("While . . . both counts are permitted, we do not recommend

to plaintiffs that counts in both negligence and strict liability

be submitted to the jury because of the confusion which is

created."); see also Greenland, 347 A.2d at 163. We will not

create a general rule of prohibition in light of the New Hampshire

Supreme Court's reluctance to do so. We rule that it was not plain

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error to submit counts in both negligence and strict liability to

the jury.

The same is true for GM's claim that the verdict is

internally inconsistent and its related argument that the jury's

finding of negligence is invalid as a matter of law in light of its

determination that there was no design defect. Both claims are

based on the premise that a design defect is an essential element

of negligence under New Hampshire law. We need not determine

whether that proposition is correct -- it is enough to conclude, as

we do, that New Hampshire law is not so clear on the question that

it was plain error for the district court to enter judgment on the

jury's verdict. See Stancill v. McKenzie Tank Lines, Inc., 497

F.2d 529, 535 (5th Cir. 1974) ("Confronted with no objection to the

verdict or answers, it was not plain error for the district court

to enter judgment upon the verdict as it did."). In denying GM’s

motions for a new trial and judgment as a matter of law, the

district court clearly and thoughtfully explained:

I deny the motion and offer the following
comments in addition to the explanations I
gave when I made the rulings to which General
Motors objects: (1) General Motors was
represented by highly skilled counsel and it
was apparent to me that counsel understood at
the final pretrial conference and throughout
the trial that the plaintiff was asserting a
claim for negligent testing; (2) General
Motors has waived any claim that the special
verdict form was unacceptable by failing to
object at a time when I could have taken
corrective action; and (3) General Motors has
waived any claim that the verdicts are

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 inconsistent because I gave it an opportunity
to assert such a claim before I discharged the
jury and it declined to make its argument at a
time when I could have taken corrective
action. I determine that oral argument on the
motion is unnecessary because the issues have
been well briefed. Motion denied.

We agree with the district court and affirm its denial of the

motions.

B. The Evidence

GM argues that there was an absence of evidence that

Babcock was wearing his seat belt at the time of the accident. It

points out that no one saw a seat belt on him immediately after the

accident. GM also argues that although Babcock himself was covered

with blood and blood was on the interior of the cab of the truck,

no blood was on the seat belt straps.

Plaintiff did not challenge these facts, but claimed that

she would prove by habit or custom evidence that Babcock always

wore a seat belt when he drove a motor vehicle. The district court

ruled that such evidence would be allowed and that the question of

whether Babcock was wearing a seat belt at the time of the accident

was for the jury. GM objected to this ruling. At the time of the

court's ruling, GM offered no case law to support its position and

its brief cites no cases holding that habit or custom evidence

could not be used to prove seat belt use under the facts of this

case. It is well-established that habit evidence may be used to

prove a person’s conduct on a particular occasion: "Evidence of

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the habit of a person . . . whether corroborated or not and

regardless of the presence of eyewitnesses, is relevant to prove

that the conduct of the person . . . on a particular occasion was

in conformity with the habit . . . ." Fed. R. Evid. 406; see also

United States v. Newman, 982 F.2d 665, 668 (1st Cir. 1992).2

We recount testimony by three of the plaintiff’s

witnesses, all of whom described Babcock’s habitual seat belt use.

Ernest Babcock, brother of the decedent, testified that he drove

with his brother, Paul Babcock, at least ten to twenty times a year

from 1972 to 1998. George Clausen, Paul Babcock’s neighbor, had

known him for about a year and a half prior to the accident and had

ridden with him about a dozen times. Judith Hobbs Jackson had

known Babcock since the two were children. She had ridden with him

eight to twelve times over the last several years, most of these

times with Babcock as the driver. All three witnesses testified

that Babcock always wore his seat belt, regardless of whether he

was the driver or a passenger and regardless of the length of the

trip. Jackson also testified that Babcock always put on his seat

belt before the vehicle in which he was riding started.

2
In contrasting habit evidence with character evidence, the
Editorial Explanatory Comment to Rule 406 provides an example of a
person’s habitual seat belt use as more probative evidence that the
person was wearing a seat belt on a particular occasion than
evidence that the person is generally a safety-oriented person.
Fed. R. Evid. § 406.02, cmt.

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 We rule that the district court did not err in submitting

to the jury the question of whether Babcock was wearing his seat

belt immediately prior to the impact of the truck with the tree.

We also note that GM did not object to the jury instructions on

this issue as required under Rule 51 of the Federal Rules of Civil

Procedure.

GM also objects to the evidence with respect to the

testimony of plaintiff's expert, Dr. Malcolm Newman. GM attacks

the testimony on the ground that its admission violated the

principles established in Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (D.C. Cir. 1993).

In Daubert the Court rejected the rule stated in Frye v.

United States, 293 F. 1013, 1014 (1923), that "expert opinion based

on a scientific technique is inadmissible unless the technique is

'generally accepted' as reliable in the relevant scientific

community." Daubert 509 U.S. at 584 (citation omitted). The Court

put the responsibility for the admission or exclusion of scientific

or expert evidence on the trial judge:

That the Frye test was displaced by the
Rules of Evidence does not mean, however, that
the Rules themselves place no limits on the
admissibility of purportedly scientific
evidence. Nor is the trial judge disabled
from screening such evidence. To the
contrary, under the Rules the trial judge must
ensure that any and all scientific testimony
or evidence admitted is not only relevant, but
reliable.

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 The primary locus of this obligation is
Rule 702, which clearly contemplates some
degree of regulation of the subjects and
theories about which an expert may testify.
"If scientific, technical, or other
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue" an expert "may
testify thereto."

Id. at 589 (emphasis in original) (footnote omitted). The Court

further stated:

Faced with a proffer of expert scientific
testimony, then, the trial judge must
determine at the outset, pursuant to Rule
104(a), whether the expert is proposing to
testify to (1) scientific knowledge that
(2) will assist the trier of fact to
understand or determine a fact in issue. This
entails a preliminary assessment of whether
the reasoning or methodology underlying the
testimony is scientifically valid and of
whether that reasoning or methodology properly
can be applied to the facts in issue.

Id. at 592-93 (footnotes omitted).

The penultimate paragraph summarizes the holding of

Daubert:

To summarize: "General acceptance" is not
a necessary precondition to the admissibility
of scientific evidence under the Federal Rules
of Evidence, but the Rules of
Evidence–especially Rule 702–do assign to the
trial judge the task of ensuring that an
expert's testimony both rests on a reliable
foundation and is relevant to the task at
hand. Pertinent evidence based on
scientifically valid principles will satisfy
those demands.

Id. at 597.

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 It is apparent to us that the expert's testimony met the

standards set forth in Daubert. The evidence admitted was both

relevant and reliable. The district court followed Rule 104(a) of

the Federal Rules of Evidence and determined that the expert's

testimony would assist the trier of fact in understanding or

determining the facts in issue. Id. at 592. And under Rule 702

the district court ensured that the expert's testimony rested on a

reliable foundation and was relevant to the task at hand.

We rehearse the testimony of Dr. Malcolm Newman,

plaintiff's expert. Dr. Newman specializes in structural and

mechanical engineering and has a Ph.D. from New York University.

He provides consultation to clients mainly on matters involving

litigation. From 1971 to 1975 he was a tenured full professor at

Tel Aviv University in Israel. He is a certified diplomate of the

American Board of Forensic Examiners and has authored sixty-five

articles in his field. He has been greatly involved in the

analysis of restraint systems in automobiles.

Based on photos and other materials given to him, Dr.

Newman formed an opinion as to how fast the Babcock vehicle was

traveling when it hit the tree. He explained to the jury, using

the photos and other materials furnished to him, the analysis he

followed to determine the speed at time of impact. Dr. Newman

testified that the technology he used to determine the "impact

speed" is one accepted by all recognized accident reconstruction

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specialists and that the methodology he followed was accepted by

the National Highway Traffic Safety Administration. In Dr.

Newman's opinion, the "impact" speed was between twenty and twenty-

five miles per hour. He also was of the opinion that the Babcock

truck was traveling at a speed of between thirty-five and forty

miles per hour when it left the highway. Dr. Newman also explained

to the jury how he arrived at this estimate.

In Dr. Newman’s opinion, at an impact speed of twenty-

five miles per hour, a properly belted occupant would be fully

protected by the seat belt. Dr. Newman opined that Babcock was

either not wearing a seat belt or the seat belt was defective.

From examining the seat belt itself, Dr. Newman concluded that it

had been used just prior to impact.

Using the seat belt found in the cab of the truck, Dr.

Newman explained to the jury his opinion as to how the seat belt

disengaged upon impact. He eliminated a manufacturing defect and

"inertial release"3 as causes for the unbuckling of the seat belt.

He testified that in his opinion, the seat belt unbuckled because

of false latching, otherwise known as "partial engagement."

With the aid of photos, the accident seat belt, and

another similar seat belt, Dr. Newman demonstrated how false

latching can occur. In false latching the occupant thinks that the

3
Inertial release is prompted by sudden changes in
acceleration or deceleration and might cause a belt to unlatch in
an accident.

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belt is fully latched but in reality, it is not. Moreover,

according to Dr. Newman, both falsely latched and fully latched

seat belts trigger the same signals in the vehicle as to whether

the seat belt is in use.

Dr. Newman characterized a false latch propensity as a

design defect. He used a schematic drawing to explain in detail

all of the latch mechanisms in a safety belt buckle. Dr. Newman

testified that because of the design of a GM belt buckle, continued

use of the buckle increases the danger of false latching. Using a

Volvo seat belt buckle, he demonstrated that its design eliminated

the risk that false latching would occur. He noted that the buckle

on the GM truck was tested pursuant to section 209 of the Federal

Motor Vehicle Safety Standards.

Dr. Newman testified about the testing safety belt

buckles must undergo. He concluded that the GM buckle could

develop false latching due to normal wear and tear. He was of the

opinion that there was no testing for false latching. Dr. Newman

concluded his direct testimony by opining that the probable cause

of the lack of seat belt restraint on Babcock after the accident

was false latching.

Dr. Newman’s testimony could be found by the jury to be

relevant and reliable. We hold that the trial court did not err by

allowing the jury to hear it.

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 The other arguments made by appellant do not merit

discussion.

The judgment below is affirmed. Costs on appeal awarded

to plaintiff.

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