UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1687
CHESHIRE MEDICAL CENTER,
Plaintiff - Appellant,
v.
W. R. GRACE & CO.,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya and Cyr, Circuit Judges,
and Keeton,* District Judge.
Daniel A. Speights, with whom Michael P. Hall, Nixon, Hall
and Hess and Speights & Runyan, were on brief for appellant.
Richard V. Wiebusch, with whom Harry T. Daniels, Jane Cetlin
Pickrell, Hale and Dorr, Howard M. Cooper and Todd & Weld, were
on brief for appellee.
March 6, 1995
* Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. Appealing from a judgment for
the defendant on a jury verdict, plaintiff-appellant argues an
interesting undecided issue of New Hampshire law regarding the
scope of strict liability on the ground of product defect in
relation to warning and instructions for use. May a product
marketer be held strictly liable on the basis of failure to warn,
for harm to a building into which its product (containing
asbestos fibers) was installed, even though the jury has found,
in answering special questions, that plaintiff failed to prove
any departure from ordinary prudence with respect to warning and
instructions for use?
We conclude that the jury findings, together with
settled rules of federal procedural law and New Hampshire
substantive law, preclude our reaching this interesting question.
For the reasons explained, we affirm the judgment for the
defendant on the verdict of the jury.
I.
I.
Plaintiff-appellant alleged that defendant's product,
Monokote 3, a fireproofing material, purchased in 1971 by a
subcontractor in compliance with specifications, and used in
constructing a building occupied and used at all relevant times
by plaintiff (an entity designated in the general contract for
construction of the building as "owner") was defective because of
a percentage of asbestos particles in the product. In the
various counts of the complaint, plaintiff alleged claims of
negligence (in manufacture, sale, and warning), strict liability
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for product defect, and breach of implied warranty.
The case was submitted to a jury on special questions,
Fed. R. Civ. P. 49(a). The jury returned the following answers:
SPECIAL VERDICT FORM
1. On the statute of limitations
defense, do you find for the Plaintiff or
the Defendant?
x Plaintiff Defendant
If you find for the Defendant on this
issue, stop and return a verdict in favor
of the Defendant.
If you find for the Plaintiff on this
issue, answer questions 2, 3, 4, 5 and/or
6.
2. On Plaintiff's negligence claim,
do you find for the Plaintiff or the
Defendant?
Plaintiff x Defendant
3. On Plaintiff's products liability
claim, do you find for the Plaintiff or
the Defendant?
Plaintiff x Defendant
4. On Plaintiff's implied warranty
claim, do you find for the Plaintiff or
the Defendant?
Plaintiff x Defendant
5. If you found for the Plaintiff on
one or more of its claims (questions 2,
3, or 4) please write the amount of
damages you award to Plaintiff using
words and figures (as in writing a
check).
Damages awarded: ----none----
($ )
6. If you found for the Defendant on
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each of Plaintiff's claims (questions 2,
3, and 4), then return a verdict in favor
of Defendant.
DATE: 11/3/93 /s/
Foreperson
The court's charge to the jury included instructions
advising the jury they should answer that the plaintiff had
proved negligence if they found by a preponderance of the
evidence that defendant failed to exercise ordinary prudence in
manufacture, or in sale, or in relation to warning (including
instructions for use). Thus, unless plaintiff-appellant shows
some trial error that undermines this finding (and we conclude in
Part III, infra, that plaintiff-appellant has failed to do so),
we must accept as an established fact that, in relation to
warning and instructions for use of the product, plaintiff failed
to prove any departure from ordinary prudence.
The court's charge to the jury on strict liability
failed to include any reference to warning or instructions for
use. We assume, as did the trial court in considering
plaintiff's motion for new trial, that this was error. See
Chellman v. Saab-Scania AB, 637 A.2d 148 (N.H. 1993). The trial
court concluded, however, that the error was harmless. So do we,
though on somewhat different reasoning from that of the trial
court because, unlike the trial court, we do not undertake to
predict exactly how the Supreme Court of New Hampshire will
resolve a novel issue of substantive law on which plaintiff-
appellant relies.
II.
II.
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It is settled law in New Hampshire that strict
liability for product defect includes manufacturing defect,
design defect, and warning defect. See Chellman, 637 A.2d 148;
see also Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 661
(1st Cir. 1981).
New Hampshire cases have not yet determined, however,
whether, as appellant asserts, a breach of the strict liability
duty to warn can be proved on some basis short of proving failure
to exercise ordinary prudence in relation to warning and
instructions for use. Stated another way, the undecided question
is whether the duty of warning under the strict liability theory
requires something more of the marketer than does the duty of
warning under negligence law and, if so, what.
Whether the duty is more onerous is an unsettled
question of New Hampshire substantive law. Contrary to
appellant's assertion, this question of New Hampshire law was not
decided in Chellman, 687 A.2d 148. Instead, that was a case in
which the plaintiff did not ask the court to submit a negligence
claim to the jury. See id. at 151. In that context, omission
from the trial court's charge of even an instruction on prudent
care with respect to warning was reversible error because
plaintiff was completely deprived of the opportunity to have the
jury consider the duty-to-warn claim. In this case, in contrast,
the jury did consider a duty-to-warn claim. They did so under
the negligence question. And we must conclude that the jury
rejected that claim because they were instructed that they should
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find for plaintiff in answering the negligence question if they
found for the plaintiff on other grounds or if they found that
defendant failed to use ordinary prudence in relation to warning
or instructions for use and that this failure was a cause of any
harm sustained by plaintiff.
In three separate avenues of attack, appellant seeks to
avoid the preclusive effect of the jury finding of no causal
negligence. The first avenue is a two-fold challenge to the
finding itself, which we discuss in Part III. We examine the
other avenues separately in Parts IV and V.
III.
III.
Appellant has challenged the jury's finding of no
causal negligence on two grounds. Appellant asserts that the
trial court's duty-to-warn instruction on the negligence count
was erroneous. Appellant also asserts that the trial court erred
in failing to instruct the jury on the New Hampshire statutory
asbestos exposure standard. We conclude that neither of these
attacks has merit.
A. The Duty-To-Warn Instruction Given
A. The Duty-To-Warn Instruction Given
Appellant challenges the duty-to-warn instruction given
by the trial court on the negligence claim. The jury was
instructed that the defendant had a duty to warn if it "knew or
should have known that the fireproofing it sold to the plaintiff
was dangerous to people or that it would damage property."
Appellant argues that this instruction is erroneous because it
requires the plaintiff to prove that the product "was dangerous."
-6-
Relying on language in Chellman, the appellant argues that a
defendant has a duty to warn if a product "may be dangerous."
This argument is based more on form than substance. It
is difficult to imagine what different meaning would be conveyed
by an instruction, instead of that given, that the defendant had
a duty to warn if it knew or should have known that the
fireproofing it sold to the plaintiff may be dangerous. To the
extent that this phrasing conveys the same meaning -- for
example, that the defendant had a duty to warn if the defendant
knew or should have known that the product causes harm in some
(but not necessarily all) instances -- the instruction given by
the court was not in error.
To the extent that appellant is urging that its
proposed language conveys a different meaning -- that the
defendant has a duty to warn if it should have known that there
was a mere possibility that the product was in the category of
dangerous products (i.e., one that causes harm in some instances)
-- the argument for application of a legal test framed in this
particular way has no basis in New Hampshire law.
Under New Hampshire law, a manufacturer need not warn
of all potential dangers associated with a product. See Thibault
v. Sears, Roebuck & Co., 395 A.2d 843 (N.H. 1978)(manufacturer
need not warn of known, but very unlikely, risk of danger).
Similarly, one may infer from this precedent that there is no
duty to warn on the basis of speculation that a product might be
dangerous. Thus, the meaning conveyed by the court's instruction
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is closer to the formulations found in New Hampshire cases than
is appellant's proposed alteration, which itself is subject to
different interpretations, some of which are inconsistent with
the formulations in the New Hampshire cases. Thus, appellant's
challenge on this ground fails.
B. The New Hampshire Asbestos Exposure Standard
B. The New Hampshire Asbestos Exposure Standard
Appellant challenges the trial court's failure to
instruct the jury on the New Hampshire standard for indoor
nonoccupational asbestos exposure. See N.H. Rev. Stat. Ann. 141-
E:6. This numerical standard (.01 f/cc) triggers the
applicability of certain New Hampshire regulations concerning
asbestos abatement procedures used as a part of construction or
maintenance.
The court instructed the jury on federal OSHA and EPA
regulations, as well as the New Hampshire regulations
establishing procedures to be followed during asbestos abatement
projects. The court told the jury that the various state and
federal statutes were relevant to the issue of damages only and
not to the defendant's liability. Since the jury found no
liability and therefore did not reach the issue of damages, the
court's alleged error in failing to instruct the jury on the New
Hampshire asbestos exposure standard is, in retrospect,
irrelevant and therefore harmless, unless appellant can establish
relevance to liability issues.
Appellant's challenge on appeal contains the implicit
assertion that the New Hampshire asbestos exposure standard is
-8-
relevant to the defendant's liability. The appellant, although
objecting to the court's failure to instruct the jury on the New
Hampshire statute, did not object to that part of the court's
instruction telling the jury that these statutes were relevant to
the issue of damages only and not to the issue of liability. The
appellant having failed in its objections and request for
instruction to articulate an argument for relevancy to liability
or any legal basis for relevancy, we review the trial court's
instruction only for plain error. See Poulin v. Greer, 18 F.3d
979, 982 (1st Cir. 1994).
We conclude that it was not plain error, if error at
all. The New Hampshire asbestos exposure standard does not
impose a rule of conduct on sellers of asbestos products or
contractors using asbestos products. Instead, it establishes a
threshold of authorization for the director of the Division of
Public Health Services to take certain regulatory action, if
warranted. See N.H. Rev. Stat. Ann. 141-E:8. In addition, it
triggers the applicability of certain safety regulations to
asbestos removal and abatement projects at relevant buildings.
See N.H. Rev. Stat. Ann. 141-E:7.
We conclude that no decision cited to us, and none of
which we are aware, establishes a basis for plaintiff's assertion
that the New Hampshire asbestos exposure standard is relevant to
the defendant's liability. Moreover, given that the New
Hampshire state regulators have taken no action with respect to
appellant's building, the standard at issue bears only upon the
-9-
calculation of costs the appellant might incur in the future.
For these reasons, we hold that even if there was error in the
trial court with respect to this asbestos exposure standard, it
was harmless in this case.
-10-
IV.
IV.
In oral argument and in its brief, appellant asserts
that as a matter of substantive law a claimant is entitled to
have the court instruct the jury that a claim of strict product
liability is to be decided by a jury in a single evaluative
finding after jury consideration of all relevant factors. Thus,
for example, the appellant argues that if the jury thought there
was some evidence of departure from ordinary prudence with
respect to warning but not enough evidence for the jury to find
departure from ordinary prudence by a preponderance of the
evidence, the jury could nevertheless take this evidence into
account among all the other factors they considered in deciding
whether the product was defective.
Appellant asserted in oral argument before this court
that the jury in a strict product liability case is allowed to,
and should be instructed to, make one overall weighing of all
factors bearing upon (1) manufacturing defect, (2) design defect,
and (3) warning defect. Appellant cites no precedent explicitly
supporting this contention, and we are aware of none.
Two independently significant points are implicitly
essential to the validity of the argument. We consider each.
A. Consideration of the Cumulative Effect of the Evidence
A. Consideration of the Cumulative Effect of the Evidence
Appellant's argument depends on an implicit assumption
that a claimant need not establish independently, by a
preponderance of the evidence, any one of the three separate
theories of strict liability (manufacturing defect, design
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defect, and warning defect).
In the context of this case, appellant argues that the
evidence of failure to warn, although not sufficient by itself to
support a finding of strict liability by a preponderance of the
evidence, may be combined by the jury with any evidence of a
design defect and may result in a finding of strict liability by
a preponderance of the evidence. In some cases, this would lead
to the anomalous result that the jury could find defendant
strictly liable by a preponderance of evidence without finding by
a preponderance of the evidence a manufacturing defect, a design
defect, or a warning defect.
For example, the appellant implies that a plaintiff can
prevail if the jury finds none of the three defects by a
preponderance of the evidence and yet finds that the evidence
shows a .40 probability of each and, in some unexplained way, a
.51 probability of defect in its overall weighing of all evidence
received at trial.
This argument is flawed. A .40 probability of each of
three separate defects cannot add up to a .51 probability
overall. Instead, in this assumed circumstance, unless the three
are interdependent (as they may be), there is no better than a
.064 probability (.40 x .40 x .40) that all three are true, and
neither mathematically nor as a matter of common sense do three
.40 probabilities show a .51 probability that one of the three or
some combination of two or all three is true.
Moreover, as a matter of settled law, judicial opinions
-12-
and commentators alike refer to proof of manufacturing defect,
design defect, and warning defect as three different ways of
proving product defect, not just as factors bearing upon one way
of proving product defect. See Brochu, 642 F.2d at 661
(discussing separately the "design-defect theory" and the "duty-
to-warn theory" with respect to jury instructions under New
Hampshire law); Thibault, 395 A.2d at 846 (distinguishing policy
factors bearing upon strict liability for manufacturing defect
from those bearing upon strict liability for design defect and
citing James A. Henderson, Jr., "Judicial review of
Manufacturers' Conscious Design Choices: The Limits of
Adjudication," 73 Colum. L. Rev. 1531 (1973)); see also
Restatement (Third) of Torts: Products Liability, 2 cmt. a,
Tentative Draft No. 1 (Apr. 12, 1994)(setting forth "separate
standards of liability for manufacturing defects, design defects,
and defects based on inadequate instructions or warnings," and
explaining different sets of policy arguments and objectives for
the separate standards); id., Reporters' Note, at 35-80
(explaining the Reporters' view that the formulation of separate
standards for manufacturing, design, and warning defects is
consistent with the weight of precedent); Oscar S. Gray, "The
Draft ALI Product Liability Proposals: Progress or Anachronism?"
61 Tenn. L. Rev. 1105, 1108 (1994)(although criticizing the ALI
Tentative Draft in other respects, accepting the point that "the
overwhelming body of interpretation by the courts has accepted
the three-pronged differentiation between manufacturing, design,
-13-
and warning defects").
Appellant cites Chellman as holding, or at least
implying, that there is only one strict product liability theory
in New Hampshire law, and that only one question about the
adequacy of plaintiff's proof of strict liability should be
submitted to a jury. A close reading of the case, however, does
not support the view that Chellman addressed the choice between
(a) treating manufacturing defect, design defect, and warning
defect as separate theories, each involving a distinctive
standard for determining liability, and (b) treating the three as
merely factors in a single multiple-factors standard for making
an evaluative determination that a product is or is not a
defective product.
In Chellman, the defendant argued that strict liability
for design defect and strict liability for failure to warn were
distinct, and that the plaintiff had failed to plead a strict-
liability-for-failure-to-warn claim. See Chellman, 687 A.2d at
151. In deciding that the plaintiff's complaint sufficiently
stated a strict liability claim, on the basis of inadequate
warning, to meet plaintiff's burden of pleading, see id., the
court did not need to or purport to decide whether proving
defective warning and proving defective design in respects apart
from warning were two separable ways of proving strict product
liability. Thus, Chellman neither endorses nor rejects the
general proposition that manufacturing defect, design defect, and
warning defect are commonly treated by courts and commentators as
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three separate ways of proving product liability.
The commonly accepted understanding that a plaintiff
must establish one or another of the three kinds of defects
(manufacturing defect, design defect, or warning defect) by a
preponderance of the evidence leaves the jury entirely free to
weigh a single item of evidence as relevant to claims of two or
even all three kinds of defect. Thus, for example, New Hampshire
case law supports the proposition that evidence concerning the
existence and adequacy of a warning is relevant not only to a
warning defect claim, but also to a design defect claim. See
Chellman, 637 A.2d at 150; Reid v. Spadone Machine Co., 404 A.2d
1094, 1097 (N.H. 1979)("This condition [the placement of certain
buttons on a machine], coupled with inadequate warnings against
two-person use, could properly be found to have made the machine
'unreasonably dangerous.'").
The issue before us now, however, does not concern
admissibility of evidence. The jury was free under the court's
rulings, absent limiting instructions, to consider all evidence
received at trial. In these circumstances, we conclude that the
jury's finding of no violation as to the duty-to-warn negligence
claim bars the strict-liability-duty-to-warn claim. This is so
because in finding that there was no liability for failure to
warn on the negligence theory the jury necessarily found either
(1) that plaintiff failed to prove that the defendant's warnings
and instructions violated the prudent care standard or (2) that,
if the warning was inadequate, plaintiff failed to prove that the
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inadequacy of the warning caused the plaintiff's injury.
Under either of the two possible interpretations of the
jury's finding, the jury has determined that plaintiff has failed
to prove by a preponderance of the evidence any violation of a
duty of prudent care as to warning. This bars the strict-
liability-as-to-warning claim unless the law of New Hampshire
imposes a more onerous duty than one of prudent care as part of
the law of strict product liability.
B. An All-Factors Evaluative Determination
B. An All-Factors Evaluative Determination
Appellant's weighing-of-all-factors argument, if taken
at face value and without qualification, leads implicitly to a
surrender of judicial responsibility for instructing the jury to
respect the law's outside limits on jury discretion. It is true
that appellant's argument for an unlimited all-factors evaluative
determination by the jury has a surface plausibility, which may
appear to be reinforced by support in some states for application
of a standard requiring the jury to "weigh competing factors much
as they would in determining the fault of the defendant in a
negligence case." Back v. Wickes, 378 N.E.2d 964, 970 (Mass.
1978). Thus:
In evaluating the adequacy of a
product's design, the jury should
consider, among other factors, "the
gravity of the danger posed by the
challenged design, the likelihood that
such danger would occur, the mechanical
feasibility of a safer alternative
design, the financial cost of an improved
design, and the adverse consequences to
the product and to the consumer that
would result from an alternative design."
-16-
Id. at 970 (quoting Barker v. Lull Eng'r Co., 573 P.2d 443 (Cal.
1978) and citing Bowman v. General Motors Corp., 427 F. Supp.
234, 242 (E.D. Pa. 1977)).
The plausibility of appellant's argument is reinforced
by the statement of the Supreme Court of New Hampshire in
Thibault that:
Inquiry into the dangerousness of a
product requires a multi-faceted
balancing process involving evaluation of
many conflicting factors . . . .
Reasonableness, foreseeability, utility,
and similar factors are questions of fact
for jury determination.
Thibault, 395 A.2d at 846-47; see also Espeaignnette v. Gene
Tierney Co., No. 94-1258, slip. op. at 10 (1st Cir. Dec. 28,
1994)(citing St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me.
1988) and discussing the "danger-utility" test used by the Maine
courts). Perhaps even more supportive of appellant's argument is
another passage from the opinion of the Supreme Judicial Court of
Massachusetts in Back v. Wickes Corp.:
In balancing all of the pertinent
factors [in deciding whether there was a
design defect] the jury makes a judgment
as to the social acceptability of the
design, and this is the same judgment
originally made by the designer of the
product.
378 N.E.2d at 970.
Even if one takes these passages to mean that some
policy weighing is left to the jury, however, it does not follow
that the legal system approves an unlimited all-factors
evaluative determination by the jury. Even when approving a
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multiple-factors-weighing-test for jury use in finding an
"ultimate fact," such as product defect, the legal system does
not authorize the jury to give whatever weight the jury chooses
to arguments of public policy for and against strict liability.
To do so would leave to the jury an authority and responsibility
that is unguided by any public policy determinations made in
statutes and precedents.
Ordinarily issues of public policy are in the first
instance appropriate for a legislature's determination by statute
and, if not determined by statute, may be determined by a state
court of last resort in its decisions setting precedents.
We do not understand appellant's counsel as explicitly
arguing for a broad and sweeping jury discretion that extends to
public policy issues ordinarily decided by statutes or
precedents. We consider the argument in this extreme form,
however, because of the procedural posture of this case.
Appellant seeks a new trial despite a supportable jury
finding that defendant did not fail to exercise ordinary prudence
with respect to warning and instructions for use. This
contention, however, is procedurally barred unless plaintiff
proffered an instruction or objection clearly giving the trial
judge and the opposing party notice of this theory of claim,
including a formulation of an acceptable limit or qualification
to distinguish plaintiff's contention from an argument for
unlimited jury discretion. Thus, we consider the more extreme
implications of the unqualified argument to make the two points
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that a limit is essential and that the burden is on the plaintiff
to propose an acceptable explanation of that limit rather than
asking a trial court to leave a jury unguided.
To sustain appellant's argument for a new trial on the
procedural record before us, we would have to determine that New
Hampshire tort law places no limit on the jury's authority, in
reaching the jury's overall evaluative finding in a strict
liability case, to weigh all policy arguments (or at least those
policy arguments supported by any evidence received in the trial)
for and against strict liability, in reaching the jury's overall
evaluative finding in a strict liability case.
We cannot say that New Hampshire has adopted, and
cannot predict that it will adopt, the novel position that the
jury has this authority. Allowing the jury such sweeping
authority would be contrary to premises so fundamental that
courts only rarely sense a need to advert to them.
The first of these basic premises of settled law
concerns the role of precedent in the legal system. A court's
acceptance of an argument for a literally "all-factors"
evaluative decision by a jury of a strict product liability claim
would have the effect of delegating to the jury the authority and
responsibility for weighing conflicting arguments of public
policy bearing upon the scope and limits of strict liability and
striking the balance that determines the legal system's answer,
case by case. This would undermine the function of precedent in
the legal system -- to promote evenhanded decision of like cases
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alike. Judicial decisions considering similar arguments for jury
discretion to weigh public policy arguments have rejected the
idea. See, e.g., Shackil v. Lederle Laboratories, 561 A.2d 511,
528 (N.J. 1989) (the majority, over vigorous dissent, declined to
leave to a jury a public policy choice that, it was argued, would
drive DPT vaccine for infants off the market); Bammerlin v.
Navistar Int'l Transp. Corp., 30 F.3d 898 (7th Cir. 1994)(the
trial court, not the jury, should have made the evaluative
determination whether a truck cab manufacturer complied with
federal safety standards); Bryant v. Tri-County Electric
Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994)(the court, not
the jury, weighed "the public policy goals of protecting consumer
and discouraging the sale of defective goods" and held that the
strict liability doctrine applied to the services of electric
utilities). But cf. Dawson v. Chrysler Corp., 630 F.2d 950 (3d
Cir. 1980), cert. denied, 450 U.S. 959, 962-63 (1981)(recognizing
the dangers of such a case-by-case determination in the context
of motor vehicle safety standards but declining to reverse a
judgment entered on a verdict of a jury that was allowed very
broad discretion by the trial court's charge).
A second basic premise of settled law is that
determinations of liability (whether under a concept of "duty" or
"cause" or some other terminology such as "scope of liability")
are never exclusively "fact" questions to be decided by a jury,
or by a judge as factfinder in a non-jury trial. Even when some
disputed issue of historical fact is relevant, the determination
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of "duty," "cause," or "scope of liability" is a mixed law-fact
determination rather than exclusively a fact question. See,
e.g., Deguio v. United States, 920 F.2d 103, 105 (1st Cir.
1990)(determination of negligence is a mixed question of law and
fact and entitled to clear error standard of review); St. Paul
Fire & Marine Ins. Co. v. Caguas Fed. Sav. & Loan Ass'n, 867 F.2d
707, 708 (1st Cir. 1989)("Negligence and causation are
traditionally mixed questions of fact and law."); cf. Milliken &
Co. v. Consolidated Edison Co., 63 U.S.L.W. 2361 (N.Y. Ct. App.
1994)("The existence and scope of an alleged tortfeasor's duty,
at the threshold, is a legal, policy-laden determination
dependent on consideration of different forces, including logic,
science, [and] competing socio-economic policies . . . .").
When a jury participates in the determination of a
mixed-law-fact question, it does so under instructions from the
trial judge explaining the legal aspects of the evaluative
"finding" the jury makes. See Kissell v. Westinghouse Electric
Corp., 367 F.2d 375, 376 (1st Cir. 1966)(special interrogatories
to the jury can be mixed questions of law and fact, if the jury
is properly instructed as to the law); see also Chellman, 637
A.2d at 151 ("Clear and intelligible jury instructions are
particularly important to explain complex or confusing legal
concepts.").
In the face of these settled principles, no decision
cited to us, and none of which we are aware, in New Hampshire or
elsewhere, requires the submission to the jury of a single
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evaluative question determining a strict liability claim. We
conclude that, in deciding this appeal in a diversity case, we
should not predict an expansion of strict liability under New
Hampshire law to the extent of permitting juries a discretion not
guided by instructions on the limits set by the public policy
choices, explicit and implicit, in New Hampshire statutes and
precedents. Cf. Thibault, 395 A.2d at 847 (indicating that the
strict liability cause of action is narrower in New Hampshire
than in some other jurisdictions); Bagley v. Controlled
Environment Corp., 583 A.2d 823, 826 (N.H. 1986)(discussing
Buttrick v. Lassard and stating that the strict liability actions
are limited to claims for which requiring a plaintiff to prove
negligence would pose "a practical barrier to otherwise
meritorious claims").
V.
V.
Remaining for consideration is appellant's argument
that even if the jury should not be allowed such sweeping
discretion, at least appellant should be allowed a new trial to
seek a jury finding under an instruction on duty to warn somewhat
more burdensome to a defendant than merely a duty of ordinary
prudence. This issue, however, is the question stated at the
beginning of this Opinion. It is the interesting question that,
on federal procedural grounds, we conclude we should not reach in
this case. Not having objected precisely on this ground and not
having proposed to the trial judge an acceptable instruction to
the jury on a question that, viewed most favorably to appellant,
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is a mixed-law-fact question, appellant is precluded from
advancing this contention now.
Plaintiff's requests for instruction and objection to
the charge, generously construed in plaintiff's favor, were
sufficient, we assume, to alert the trial judge to plaintiff's
contention that a departure from ordinary prudence with respect
to warning and instructions for use would render the product
defective for the purpose of plaintiff's strict liability claim.
In its denial of the motion for new trial, the trial court
conceded that its instruction had been in error in this regard.
Apart from this ground of request and objection,
however, plaintiff proffered no form of instruction on duty to
warn as part of the strict liability claim. For this reason, the
request and objection were not specific enough to preserve any
other issue with respect to the strict liability instruction for
consideration on motion for new trial or on appeal. See Fed. R.
Civ. P. 51; see also Jordan v. United States Lines, Inc., 738
F.2d 48 (1st Cir. 1984)(holding that appellant's objection to the
trial court's instruction on the definition of "unseaworthiness"
was not specific enough to satisfy Rule 51). Moreover, even in
the brief before this court and on oral argument, appellant has
failed to propose any instruction that would define the issue or
issues left to be tried after we accept, as already tried and
fairly determined, the issues decided by the jury verdict.
The jury findings (which we have determined are not
undermined by any of appellant's attacks) must stand. And, as we
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have noted, appellant has not proffered any definition of an
issue, for which there is support in precedent or in reason, left
to be tried on new trial. To remand for new trial without
providing any guidance about the issue or issues to be tried
would be inappropriate. And, of course, it would be manifestly
unfair to set aside the fairly determined jury findings and award
a new trial without limitation. Thus, we affirm the trial
court's denial of the plaintiff's motion for new trial.
CONCLUSIONS
CONCLUSIONS
First. Plaintiff-appellant's challenges to the jury
findings on the basis of the instructions given on duty to warn
in negligence are without merit and the jury findings establish
that plaintiff failed to prove causal negligence in any relevant
way (including due care in warning and instructions for use) and
plaintiff failed to prove that defendant is strictly liable on
any ground apart from failure to warn.
Second. Plaintiff-appellant's requests for
instruction and objection to the charge on the strict liability
claim were not sufficient to preserve on motion for new trial and
on appeal the contention that, under New Hampshire law, the duty
to warn as a part of a strict liability claim requires more of a
defendant than does the duty to warn in a negligence claim.
Third. New Hampshire substantive law does not require
that a product defect be determined on the basis of an unlimited
all-factors weighing by a jury, unguided by statutory and
decisional limitations on the scope of strict liability.
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Fourth. In light of these conclusions, the jury's
verdict in defendant's favor on the duty to warn as part of the
negligence claim precludes a finding in plaintiff's favor on the
duty to warn as part of the strict liability claim, and any error
of the trial court with respect to the instruction on strict
liability was harmless.
Judgment for defendant is AFFIRMED, with costs.
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