Professional Documents
Culture Documents
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
____________________
____________________
*
on a
interesting undecided
scope
of strict
relation
liability on
to warning
and instructions
argues an
regarding the
of product
for use.
defect in
May
a product
harm
to
building
into which
its
product
(containing
special questions,
has found,
to prove
and
conclude
rules
of
that
the
federal
jury
procedural
findings,
law
and
together with
New
Hampshire
the reasons
explained,
we
affirm
the
judgment
for
the
3,
subcontractor
constructing
a fireproofing
in
alleged that
material,
compliance with
purchased in
specifications,
by plaintiff (an
defendant's product,
entity designated in
1971
and used
by a
in
for
percentage of
various
counts of
asbestos
the
particles in
the
complaint, plaintiff
product.
In
alleged claims
the
of
liability
Defendant
_____
x Defendant
_____
x Defendant
_____
4.
On Plaintiff's implied warranty
claim, do you find for the Plaintiff or
the Defendant?
Plaintiff
_____
x Defendant
_____
----none---______________________
($
6.
If you
11/3/93
__________
/s/
______________________
Foreperson
The court's
advising
proved
the
jury they
negligence
evidence that
if
should
they
the jury
in sale,
found by
for use).
or in
included instructions
answer that
a
manufacture, or
instructions
charge to
the
plaintiff had
preponderance
the
ordinary prudence in
relation to warning
Thus, unless
of
(including
plaintiff-appellant shows
must accept
as
fact
that, in
do so),
relation
to
court's charge
to
the jury
on strict
______
liability
_________
failed to
use.
assume,
plaintiff's
motion
as
did
for new
to warning or
the
trial
instructions for
court
trial, that
in
this
considering
was error.
See
___
1993).
The trial
So do we,
though on
somewhat different
the trial
predict
exactly
how the
resolve
a novel
issue of
court, we do
Supreme
Court of
substantive law
of the
trial
not undertake
New
to
Hampshire will
on which
plaintiff-
appellant relies.
II.
II.
-4-
It
liability
is
for
settled
product
law
defect
in
New
includes
defect.
Hampshire
that
manufacturing
strict
defect,
A.2d 148;
see also Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 661
_________ ______
__________________________
(1st Cir. 1981).
determined, however,
a breach of the
strict liability
exercise
ordinary
prudence
in
relation
to
warning
and
of the
the duty
of
of
New
the
duty
is
Hampshire
more onerous
substantive
is
an
law.
unsettled
Contrary
to
with
the jury.
See
___
respect
id. at 151.
___
to
warning
was
case in
reversible
error
because
a duty-to-warn claim.
negligence question.
on prudent
In
the
148.
And
we must
They did so
conclude that
under
the jury
rejected that claim because they were instructed that they should
-5-
find for
on other grounds or
__
question if they
if they found
that
to warning
cause of any
the preclusive
negligence.
The
effect of
first avenue
the jury
is a
we discuss in
finding of
no causal
two-fold challenge
Part III.
to the
We examine
the
has
challenged
on two
grounds.
jury's
finding
duty-to-warn instruction
on the negligence
of no
the
count
asbestos
the
exposure standard.
jury on the
We conclude that
neither of these
the
trial court
on
the
negligence claim.
The jury
was
instructed
should
was
to warn if it "knew or
dangerous
to
Appellant argues
people or
that this
that
it
would
damage property."
instruction is erroneous
because it
Relying on
language in
Chellman,
________
the appellant
argues that
It
to
warn if
it
knew
or
should
have known
extent that
conveys
this
example, that
knew or should
phrasing
the
same
the
To the
--
for
meaning
that
in some
instruction given by
To
proposed
the
language
defendant has a
was a
extent
that
conveys
appellant
different
is
urging
meaning
--
that
its
that
the
category of
a legal test
framed in this
not
1978)(manufacturer
warn of
known, but
very
unlikely, risk
infer from
See Thibault
___ ________
of danger).
there is
no
product might be
is closer to the
is appellant's
which itself is
of which
cases than
subject to
are inconsistent
with
the
Hampshire cases.
Thus, appellant's
instruct
the
challenges
jury on
the
the
New
This
numerical
applicability of
asbestos
standard
certain
court's
Hampshire
trial
failure
standard for
to
indoor
New Hampshire
f/cc)
triggers
regulations
the
concerning
part of construction or
maintenance.
The court instructed the jury
regulations,
as
well
as
the
establishing procedures to be
projects.
to the
defendant's
New
regulations
the various
state and
liability.
Hampshire
EPA
Since
the jury
only and
found
no
damages, the
Hampshire
exposure
asbestos
standard
is,
in
retrospect,
the New
implicit
standard is
relevant to
to that part
of the
court's
The
appellant
for
having
failed
in
its
instruction to articulate an
or any legal
basis for
instruction only
objections
and
request
relevancy, we review
See
___
the trial
court's
The
impose
Hampshire asbestos
rule of
contractors using
threshold of
Public
triggers
conduct on
applicability
asbestos removal
exposure
sellers
asbestos products.
Health Services
warranted.
certain
products or
Division of
regulatory action,
not
it establishes a
director of the
take certain
of
standard does
of asbestos
Instead,
if error at
if
In addition, it
safety regulations
at relevant
to
buildings.
We conclude that no
none of
is relevant to
the
that
defendant's
liability.
Moreover,
given
the
New
respect to
upon the
-9-
calculation
For these
trial
of costs
incur in
the future.
error in the
-10-
IV.
IV.
In oral
that
as a matter
argument and
in its brief,
of substantive law
appellant asserts
a claimant
is entitled to
is to
finding after
be decided
by a
jury in
of strict product
a single
evaluative
Thus,
for
was
some
evidence
respect to
departure from
ordinary
departure
from
evidence,
the jury
account
of
ordinary
prudence
by a
could nevertheless
prudence
with
take this
of
the
evidence into
instructed to,
court
is allowed to,
weighing of
all
independently
significant
points are
We consider each.
that
implicitly
claimant
preponderance
theories
of
of
need
not
establish
the evidence,
strict
liability
any one
implicit assumption
independently,
of the
(manufacturing
-11-
by
three separate
defect,
design
be combined
by the
jury with
the
of the evidence.
anomalous result
that
any evidence
of the
of a
strict liability by
jury
could find
defendant
design
the
preponderance
jury
finds
none
of the evidence
of the
and yet
three
defects
finds that
by
the evidence
unexplained way, a
separate
overall.
argument is flawed.
defects
add
up
to
.51 probability
cannot
is no better
than a
do three
and commentators
design
proving
of
alike refer
defect, and
to proof of
warning defect
manufacturing defect,
as three
different ways
proving
product
defect.
See
___
Brochu,
______
642
F.2d
at
theory"
with respect
to
of
upon strict
Manufacturers'
Adjudication,"
A.
73
Colum.
instructions under
liability for
New
Jr.,
Design
L.
manufacturing defect
Henderson,
Conscious
"duty-
James
jury
661
"Judicial
Choices:
Rev.
1531
The
(1973));
defect and
review
Limits
of
of
see also
_________
Restatement
Tentative
(Third) of Torts:
Draft No.
Products Liability,
1 (Apr.
12, 1994)(setting
2 cmt. a,
forth "separate
based on
inadequate instructions or
separate
standards);
id.,
___
manufacturing,
consistent with
the weight of
Reporters'
Tentative Draft
Note,
at
35-80
and
warning
precedent); Oscar
warnings," and
defects
S. Gray,
is
"The
Progress or Anachronism?"
ALI
overwhelming body
of interpretation
by the courts
has accepted
manufacturing, design,
-13-
cites
Chellman
________
as
holding,
or
at
least
liability theory
in
New Hampshire
adequacy
of
law,
and that
plaintiff's proof
only
of
one question
strict
liability should
submitted to a jury.
(a)
as
separate
the
be
treating manufacturing
defect
about
defect, design
theories,
each
choice between
defect, and
involving
warning
distinctive
in a single multiple-factors
an
determination
evaluative
that a
product
is
or
is not
defective product.
had failed to
liability-for-failure-to-warn claim.
151.
stated
In
a
warning, to
court
deciding that
meet plaintiff's
did not
need
to or
liability.
claim,
basis
of inadequate
pleading, see
___
to decide
whether
id., the
___
proving
separable ways of
Thus, Chellman
________
at
complaint sufficiently
on the
burden of
purport
plead a strict-
the plaintiff's
strict liability
warn were
neither
endorses
nor rejects
the
establish
commonly accepted
one or
another of
(manufacturing
defect, design
preponderance
of the evidence
weigh a single
three kinds
a plaintiff
of defects
warning defect)
by a
entirely free to
claims of two or
supports the
the
defect, or
understanding that
claim, but
is relevant not
also to a
concerning the
only to
See
___
buttons on
two-person
'unreasonably dangerous.'").
The
issue before
admissibility of evidence.
us
now, however,
does not
rulings,
received
at trial.
concern
the court's
because in finding
that there
was no liability
This is so
for failure
to
either
jury's finding, the jury has determined that plaintiff has failed
to
duty
prove by a preponderance
of prudent
care
as to
liability-as-to-warning claim
imposes
of the evidence
warning.
This
unless the
law
any violation of a
bars the
of New
strict-
Hampshire
argument, if taken
at face
to a
It is true
may
would in
negligence case."
1978).
determining the
Back v.
____
fault of the
defendant in
964, 970
(Mass.
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-
Bowman v.
______
427 F.
Supp.
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
________
slip. op. at
Espeaignnette v.
_____________
10 (1st
Cir. Dec.
Gene
____
Tierney Co.,
___________
No. 94-1258,
1994)(citing
28,
by the Maine
one
takes these
the
legal
system
passages to
mean that
some
an
unlimited
all-factors
evaluative
determination by
the jury.
Even when
approving a
-17-
multiple-factors-weighing-test
"ultimate fact,"
such as product
To do so would leave to
unguided by
jury
use
in
finding
that is
for
an
system does
jury chooses
any public
policy
determinations made
in
issues of
public policy
are in
the first
may be determined by a
state
explicitly
arguing
public
policy
precedents.
We
issues
consider
ordinarily
decided
the argument
in
by
statutes
this extreme
or
form,
respect
contention,
to
however,
proffered an
judge
is
and
and the
instructions
procedurally
instruction or
including a
to
warning
barred
opposing party
plaintiff's
use.
notice of
contention
Thus, we
This
unless plaintiff
the trial
this theory
formulation of an acceptable
distinguish
for
of claim,
limit or qualification
from
an
argument
for
extreme
two points
-18-
an acceptable explanation
of that limit
rather than
jury's
overall
limit on the
jury's authority, in
evaluative finding
in
strict
overall
cannot
say that
authority
this
New
authority.
would
Hampshire
be contrary
Allowing
to
has adopted,
the jury
premises
and
such
sweeping
so fundamental
that
first
of
these
basic premises
role of precedent in
of
an
argument
for
of
settled
literally
law
A court's
"all-factors"
would have the effect of delegating to the jury the authority and
responsibility
policy
for
weighing
conflicting
of
public
striking the
case by case.
____ __ ____
the
arguments
function of precedent in
alike.
discretion
idea.
to weigh
public policy
arguments have
rejected the
DPT vaccine
for
infants off
court,
not the
determination
federal
jury,
whether a
safety
the
F.3d 898
should
truck
standards);
market); Bammerlin
_________
have
cab
(7th Cir.
1994)(the
made the
evaluative
manufacturer complied
Bryant
______
v.
v.
with
Tri-County Electric
____________________
Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994)(the court, not
________________
liability doctrine
utilities).
But cf.
_______
applied to
the services
that the
of electric
motor vehicle
judgment entered
safety standards
on a verdict
but declining
of a
the context
to reverse
allowed very
second
basic
premise
of
settled
law
is
that
such as "scope of
liability")
questions to be decided by
a jury,
of "duty," "cause," or
determination
e.g.,
____
"scope of liability" is a
rather than
Deguio v.
______
exclusively
1990)(determination of negligence
fact
a fact
F.2d
mixed law-fact
question.
103, 105
See,
___
(1st
Cir.
error standard of
Fire & Marine Ins. Co. v. Caguas Fed. Sav. & Loan Ass'n, 867 F.2d
______________________
_____________________________
707,
708
(1st
traditionally
Cir.
1989)("Negligence
and
causation
and scope of an
at
is
the
are
threshold,
legal,
Ct. App.
determination
logic,
When
a jury
participates
in the
mixed-law-fact question,
it does so under
trial
the
judge
explaining
makes.
See Kissell v.
___ _______
the
evaluative
Westinghouse Electric
_____________________
A.2d
and intelligible
particularly
of
as to
151
legal aspects
is properly instructed
at
determination of
("Clear
important to
the jury
explain
jury
complex
instructions
or confusing
637
are
legal
concepts.").
In the
face of
requires
the submission
to
no decision
in New Hampshire or
the
jury
of a
single
-21-
evaluative
conclude
should not
question determining
that, in deciding this
predict an expansion
a strict
liability claim.
appeal in a
of strict
We
diversity case, we
liability under
New
on the
choices,
implicit, in
explicit and
precedents.
Cf. Thibault,
___ ________
strict liability
than
in
some
Environment Corp.,
__________________
New Hampshire
action is narrower
jurisdictions);
583
the public
A.2d
823, 826
in New
Bagley
______
v.
(N.H.
policy
statutes and
cause of
other
limits set by
that the
Hampshire
Controlled
__________
1986)(discussing
negligence
would
which requiring a
pose
"a
practical
plaintiff to prove
barrier
to
otherwise
meritorious claims").
V.
V.
Remaining
that
even
if
for
the jury
consideration
should
is appellant's
argument
allowed such
sweeping
trial to
not
be
a defendant
prudence.
This
beginning
of this Opinion.
than merely a
issue, however,
duty of
is the question
ordinary
stated at
the
Not
instruction to
is
mixed-law-fact
question,
appellant
is
precluded
from
charge,
sufficient,
generously
to
warning
construed
we assume, to
contention that
its
in
and instructions
denial of
the
objection to
plaintiff's favor,
for use
were
judge to plaintiff's
would render
the product
new
trial, the
trial court
from
however, plaintiff
this
ground
proffered no form
of
request
other issue
duty to
to preserve any
objection,
of instruction on
and
See Fed. R.
___
"unseaworthiness"
was not
51).
Moreover, even in
appellant has
failed
issues
left to be
tried after we
accept, as already
tried and
jury findings
(which we
have determined
are not
And, as we
-23-
have noted,
appellant has
not
proffered any
definition of
an
be tried
providing
on new
trial.
any guidance
would be inappropriate.
To
about the
remand for
issue or
new trial
issues to
without
be tried
be manifestly
unfair to set aside the fairly determined jury findings and award
a
new trial
without
limitation.
Thus,
we affirm
the
trial
jury
to warn
plaintiff failed
to prove that
defendant is strictly
liable on
Plaintiff-appellant's
to the charge on
requests
for
claim were not sufficient to preserve on motion for new trial and
on
appeal the contention that, under New Hampshire law, the duty
all-factors
by
weighing
jury,
unguided
by
statutory
and
Fourth.
In light of
these conclusions,
the jury's
of the
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
-25-