United States Court of Appeals
For the First Circuit
Nos. 06-2705, 06-2706
CLAIRE BROWN,
Plaintiff, Appellee/Cross-Appellant,
v.
CROWN EQUIPMENT CORPORATION,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
Jeffrey F. Peck with whom Ulmer & Berne, LLP, John A.K.
Grunert and Campbell, Campbell, Edwards & Conroy, P.C. were on
brief for appellant/cross-appellee.
Jonathan S. Franklin, Kimberly S. Walker, Fulbright & Jaworski
L.L.P., Robin S. Conrad and Amar D. Sarwal, National Chamber
Litigation Center, Inc., on brief for International Association of
Defense Counsel and Chamber of Commerce of the United States of
America, Amici Curiae.
Nicole L. Lorenzatti with whom Terrence D. Garmey and Smith
Elliott, Smith & Garmey P.A. were on brief for appellee/cross-
appellant.
Stephen B. Pershing, Center for Constitutional Litigation,
P.C., and Lewis S. Eidson on brief for the American Association for
Justice, Amicus Curiae.
September 4, 2007
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Chief Judge. The central question on this appeal
is whether Maine law would recognize a post-sale duty to warn claim
where a manufacturer's product is not defective at the time of sale
but a hazard later develops because of a change in the user
environment. Other jurisdictions have disagreed on this question
and the Maine Supreme Judicial Court has not spoken. We conclude
that this determinative issue should be certified to the Maine
Supreme Judicial Court, along with a damage computation issue
arising under a Maine statute.
The relevant facts can be briefly recounted. On August
1, 2003, Thomas Brown, an employee at Prime Tanning, was killed
while operating a forklift in Prime's Sanford, Maine warehouse.
Defendant, Crown Equipment Corporation, manufactured the forklift
in 1989 and sold it to a third party in 1990. Prime Tanning
purchased the forklift in the secondary market from a used
equipment dealer.
Earlier, in 1995, Crown had learned that new shelf design
in many warehouses now exposed operators of the company's forklifts
to the risk of "horizontal entry," for example--by having shelving
enter the forklift at an unshielded level and strike the operator.
Crown developed a "backrest extension kit" for the forklift,
reducing the risk of horizontal intrusions. In August 1999, Crown
mailed Product Reference 1.15 to 13,000 of its customers, informing
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them of the horizontal intrusion risk and methods of mitigating the
risk, including the kit.
Prime Tanning did not receive the update because it had
not purchased the forklift directly from Crown. A few months
later, a Crown employee visited Prime Tanning to perform an OSHA-
mandated evaluation of a forklift modification proposed by Prime
Tanning. Crown did not provide Product Reference 1.15 to Prime at
that time, nor did it inform Prime of the risk or of the kit.
Brown's death in 2003 was due to a horizontal intrusion suffered
while swinging the rear of his forklift near a shelf.
Thereafter, Brown's wife, Claire Brown, brought suit
against Crown in Maine Superior Court seeking damages arising from
the accident and, on the basis of diversity of citizenship, Crown
removed the case to the federal district court. She claimed that
the forklift was defective when designed and that Crown had
negligently failed to warn Prime Tanning of the risk once it became
known to Crown. Over Crown's objection, the district judge
instructed the jury that such a failure to warn claim existed under
Maine law.
The jury found for Crown on the defective product claim
but for Brown on the failure to warn claim. On the latter, the
jury awarded $4.2 million in damages; this the district judge
reduced to $1,523,809 under a Maine statute capping the consortium
damages element, 18-A M.R.S.A. § 2-804 (1998 & Supp. 2006), and to
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account for a comparative negligence finding of the jury.1 Crown
has appealed to this court on the failure to warn claim; Brown has
cross appealed as to the comparative negligence adjustment by the
district judge.
No request for certification was made in the district
court or in this court. This is not surprising. Brown, as she
explained at oral argument, prefers to preserve her verdict without
delay or uncertainty from a reference; Crown probably counts on the
adage that in a diversity case a federal court will normally not
make new law for the state. Williams v. Monarch Mach. Tool Co., 26
F.3d 228, 232 (1st Cir. 1994).
Ordinarily, we can make a reasonable judgment as to the
state or direction of local law, and conducting a certification
proceeding in another court adds to delay and to cost. Further,
often only the interests of the parties are at stake and, if
neither side has asked for a reference and the state remains free
to clarify its law in a later case, the argument for certification
after a trial is especially thin.
In this instance, however, the legal issue is very
difficult and the implications go beyond the parties. We start
1
Specifically, the jury awarded $800,000 in economic damages,
$400,000 on account of Mr. Brown's conscious pain and suffering,
and $3 million for the "loss of comfort, society, and companionship
of Thomas Brown." Under the Maine statutory cap, the $3 million in
loss of consortium damages was then reduced to $400,000, 18-A
M.R.S.A § 2-804, leaving total damages of $1.6 million, before the
further modest adjustment for comparative fault.
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with difficulty. Both sides cite Maine case law but the cases
cited by both sides are distinguishable,2 and we think the issue is
open in Maine. The courts in other jurisdictions are quite
divided--splintered might be a better description--as to whether
and when to recognize a duty to warn arising after an un-defective
product has been made and distributed.
Like the parties, lower courts tallying the "majority
rule" have reached different results. Compare Irion v. Sun
Lighting, Inc., No. M2002-00766-COA-R3-CV, 2004 WL 746823, at *17
(Tenn. Ct. App. 2004) ("[W]e note that, like the majority of
states, Tennessee does not recognize a post-sale duty to warn."),
with Davies v. Datapoint Corp., No. CIV. 94-56-P-DMC, 1996 WL
521394, at *2 n.5 (D. Me. Jan. 19, 1996) (saying that eighteen
states have adopted a post-sale duty to warn while only three have
rejected the duty).
Further, some of the broad statements favoring a duty
come in cases where there were latent defects at the time of sale
while other cases rejecting such a duty may also be driven by facts
2
Compare Welch v. McCarthy, 677 A.2d 1066 (Me. 1996), and
Jordan v. Hawker Mfg. Co., No. CV-97-194, 2000 WL 33675810 (Me.
Super. Ct. Feb. 17, 2000), with Pottle v. Up-Right, Inc., 628 A.2d
672 (Me. 1993), and Bernier v. Raymark Indus., Inc., 516 A.2d 534
(Me. 1986). One opinion, from a Maine trial court, does rely
directly on the Restatement provision invoked by Brown. Fortunato
v. Specialized Bicycle Components, Inc., No. 96-617, 1997 Me.
Super. LEXIS 355 (Me. Super. Ct. Nov. 19, 1997).
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inhospitable to such a duty.3 The Restatement (Third) of Torts has
adopted a post-sale warning requirement, which it concedes is
relatively new, id. § 10 & cmt. a (1998); some states have accepted
and others have rejected it.4 The Maine SJC has adopted other
Restatement sections, but has been silent as to section 10. See
Coyne v. Peace, 863 A.2d 885, 889 n.3 (Me. 2004).
The post-sale duty has general economic consequences--
some welcome and some perhaps less so. There is a benefit to
deterring harm avoidable by reasonable precautions, and the
manufacturer may well be the most aware and efficient source of
warnings; but precautions may also have significant costs--often
passed along to customers--and may even make a state a less
attractive venue for manufacture or distribution. Required notice
to one who was not a direct purchaser adds further complications.
Ultimately, the existence and scope of a post-sale duty
to warn under Maine law is a policy judgment affecting the safety
of the citizens of Maine, the costs they pay, and the investments
3
Compare Lewis v. Ariens Co., 751 N.E.2d 862 (Mass. 2001)
(favoring the duty), and Crowston v. Goodyear Tire & Rubber Co.,
521 N.W.2d 401 (N.D. 1994) (same), with Carrizales v. Rheem Mfg.
Co., 589 N.E.2d 569, 579 (Ill. App. Ct. 1991) (rejecting it), and
Anderson v. Nissan Motor Co., 139 F.3d 599, 602 (8th Cir. 1998)
(same; applying Nebraska law).
4
Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901, 905 (Fla.
Dist. Ct. App. 2004) (citing section 10); Lovick v. Wil-Rich, 588
N.W.2d 688, 694 n.4 (Iowa 1999); Lewis, 751 N.E.2d at 867. Others
have expressly rejected the same. Irion, 2004 WL 746823, at *17
(Tenn. Ct. App. Apr. 7, 2004); Modelski v. Navistar Int'l Transp.
Corp., 707 N.E.2d 239, 246 (Ill. App. Ct. 1999).
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of businesses operating in Maine. And if one favors a duty to
warn, the question how far to go remains open, especially with
respect to indirect purchasers. Cf. Lewis v. Ariens, 751 N.E. 2d
862, 867 (Mass. 2001) (discussing tests for indirect purchaser
duties). These are choices best made by the Maine SJC. Cf. Pyle
v. S. Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995).
Under Maine law, certification is proper only if an issue
is determinative--probably a short-hand for avoiding advisory
opinions. 4 M.R.S.A. § 57 (1989 & Supp. 2006). We doubt this
requires us to resolve all other non-Maine claims of error before
certification, Hiram Ricker & Sons v. Students Int'l Meditation
Soc'y, 342 A.2d 262, 264 (Me. 1975), but Crown makes two other
claims of error as to instructions that do not raise separate Maine
law issues and it is convenient to resolve them now.
First, Crown asked the court to instruct the jury that
there was no duty by Crown to retrofit and to advise customers of
safety improvements developed after the time of sale. Brown made
no claim as to the former; as to the latter Crown says that Brown
at least implied that there was such a duty. In our view, the
district court's instructions to the jury and the question relating
to the duty to warn made clear that the only duty at issue was to
warn of the risk and directions for safe use.
Second, Crown argues that the district court should have
instructed that OSHA regulations imposed on Prime a legal
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obligation to advise in its training program of warnings listed in
the operator's manual; Crown did in fact have a boilerplate warning
about horizontal intrusions in its manual. But the manual was
offered in evidence and the jury was instructed that "[w]here a
warning is given, the manufacturer may reasonably assume that it
will be read and heeded."
Brown's cross appeal does raise a Maine law issue that is
narrow and technical but by no means easy. The jury initially
awarded $4.2 million in damages, reduced by $200,000 for Mr.
Brown's comparative negligence. The $4.2 million in damages was
reduced to $1.6 million after the application of a statutory cap on
consortium damages. This left the question of how to account for
the jury determination of comparative negligence in the amount of
$200,000. Based on a ratio approach, the district judge reduced
Brown's award by $76,191, producing a net award of $1,523,809.5
Brown argues that the district court should have
accounted for the comparative negligence before applying the damage
cap, reducing the $4.2 award to $4 million before applying the cap.
On this theory, the total award would be $1.6 million rather than
$1.6 million less an adjustment. Crown, by contrast, argued in the
district court that the full $200,000 should have been deducted
5
The $200,000 comparative negligence assessment was 4.7619% of
the original $4.2 award. The judge simply multiplied the adjusted
award of $1.6 million by 4.7619% to reach the new comparative
negligence offset of $76,191.
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from $1.6 million, but it has not pursued this issue on its own
appeal.
Brown also argues that because 14 M.R.S.A § 156 (2003)
requires juries to calculate comparative negligence in "dollars and
cents, and not by percentage," it was improper for the judge to
convert the $200,000 in comparative negligence into a percentage of
the original award; but the jury did make such a dollar
determination and the question now is how the judge should apply it
where damage caps, not taken into account by the jury, have to be
applied.
The parties have not provided, and we have not found, any
Maine cases explicating the relationship between Maine's
comparative negligence statute and its statutory damage caps.
Cases elsewhere cited to us by Brown appear to be distinguishable.6
Adopting Brown's suggestion in this case would mean that the
comparative negligence offset would be deducted only from the loss
of consortium damages, which are in any event capped at a much
lower level, leaving the remaining damages awards unscathed by any
adjustment.
6
Several have applied comparative negligence adjustments
before statutory damages caps, Horner v. Sani-Top, Inc., 141 P.3d
1099, 1103-04 (Idaho 2006); Rodriguez v. Cambridge Hous. Auth., 795
N.E.2d 1, 9 (Mass. App. Ct. 2004); McAdory v. Rogers, 215 Cal. App.
3d 1273, 1277-79 (Cal. Ct. App. 1989), but none involved a cap
applying to only one of several damage components and a comparative
damage finding assessed against damages as a whole.
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Accordingly, if not otherwise instructed, we would
probably apply the district court's common sense compromise
position--possibly with a minor adjustment to its computation if it
had been urged.7 But the statute does not by its terms address the
application issue that confronts us; the problem will doubtless
recur; and, as we are certifying the duty to warn question, it
appears sensible to get instructions on the damage issue as well.
We therefore certify to the Maine SJC the following
questions:
1. Does Maine law incorporate the rule of Restatement
(Third) Torts: Products Liability § 10 that a manufacturer has a
duty to warn known but indirect purchasers where its product was
not defective at the time of sale but a product hazard developed
thereafter?
2. Under Maine law, how is a jury's dollar adjustment for
comparative negligence to be applied where a portion of the
original damages award is reduced pursuant to the statutory damage
cap?
The answer to the first question is likely to indicate
clearly whether we should reverse or affirm as to liability. To
the extent that the answer from the Maine SJC is qualified, we will
7
The district court applied the comparative negligence
percentage to the consortium award after applying the cap; one
could argue for doing so before applying the cap, cf. Rodriguez,
795 N.E.2d at 9; but in this case the effect on the bottom line
would be small.
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address the liability issue in light of the Maine SJC's explanation
as to Maine law. As to the second question, we will again follow
the Maine SJC's gloss on the Maine statute.
The clerk will transmit our opinion in this case, along
with copies of the briefs and appendix, to the Maine Supreme
Judicial Court.
It is so ordered.
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