Beatty v. Machines Corp. ( 1999 )


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  •             United States Court of Appeals
                    For the First Circuit
    
    No. 98-1886
    
             KEVIN P. BEATTY AND CYNTHIA L. BEATTY,
    
                    Plaintiffs, Appellants,
    
                               v.
    
                MICHAEL BUSINESS MACHINES CORP.,
    
                      Defendant, Appellee.
    
          APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                   FOR THE DISTRICT OF MAINE
    
          [Hon. David M. Cohen, U.S. Magistrate Judge]
    
                             Before
    
               Selya and Stahl, Circuit Judges,
             and Shadur,* Senior District Judge.
    
    J. Michael Conley with whom Conley Haley & Champion was on
    brief for appellant.
    Tracy D. Hill, with whom Harold J. Friedman and Friedman
    Babcock & Gaythwaite, were on brief for appellee.
    
    April 20, 1999
    
                   
    * Of the Northern District of Illinois, sitting by designation.  STAHL, Circuit Judge. Plaintiffs-appellants Kevin and
    Cynthia Beatty appeal judgments entered following jury verdicts in
    favor of defendants-appellees Michael Business Machines ("MBM") and
    Ideal-Werk.  Plaintiffs appeal only the verdict in favor of MBM,
    challenging the district court's jury instructions and aspects of
    the special verdict forms.  Because plaintiffs failed to preserve
    their appellate issues and no plain error appears in the record, we
    affirm.
                              I.
    In 1984, Kevin Beatty's employer, the Casco Northern Bank
    (the "Bank"), purchased a model 4104 Ideal-Werk "Destroy-It" paper
    shredder (the "shredder") from MBM, the sole distributor of Ideal-
    Werk shredders in the United States.  The Bank made several
    modifications to the shredder over the next few years, including
    removal of the conveyor belt that funneled paper into the blade,
    replacement of the 4104 blade with a blade from a different model
    shredder (a 4104A shredder), installation of a toggle switch,
    removal of the screws holding the shredder's cover in place, and
    attachment of a handle to the now-unattached cover.  
    Independent service technician Ned Boxer made some of the
    modifications, including the installation of the 4104A blade and
    the removal of the conveyor belt.  Boxer testified that he called
    MBM when the 4104 blade was beyond repair, and that an MBM employee
    told him that 4104 blades were no longer being manufactured.  Thus,
    he had to replace the 4104 blade with a 4104A blade, which was not
    designed to work with the conveyer belt.  MBM denies giving this
    advice and notes that the 4104 blades were never discontinued.  
    In any event, the lack of a conveyer belt to funnel paper
    into the blade caused the shredder to jam frequently.  Because of
    the repetitive jams, an unknown Bank employee removed the screws
    holding the protective cover on the machine and attached a handle
    made of rubber bands and paper clips to the cover.  This
    modification allowed employees to remove the cover more easily to
    clear the jams.  Boxer told various Bank employees that the cover's
    removal was dangerous and replaced the screws each time he serviced
    the machine, but the employees continued to remove them.  
    On April 12, 1993, Kevin Beatty was using the shredder to
    shred documents at the Bank.  When the shredder jammed, without
    stopping the machine, Beatty removed the top cover and then reached
    across to hit the stop button.  As he did this, his right hand
    became stuck in the shredder, causing him to sustain serious
    injuries.
    Kevin Beatty sued defendants for strict liability,
    negligence, breach of implied warranty of merchantability, and
    breach of implied warranty for a particular purpose.  Cynthia
    Beatty sued defendants for loss of consortium.  After plaintiffs
    presented their case, defendants moved for judgment as a matter of
    law pursuant to Fed. R. Civ. P. 50.  In support of their motions,
    defendants argued, inter alia, that the substantial modifications
    to the shredder by Boxer and Bank employees constituted efficient,
    intervening causes of Kevin Beatty's injuries that insulated them
    from liability.  The district court decided to hold its decisions
    on the motions until the completion of defendants' presentation. 
    After defendants rested, the district court granted the motion as
    to Kevin Beatty's claim that Ideal-Werk had breached an implied
    warranty of fitness for a particular purpose.  The court also
    granted the motions as to Kevin Beatty's claim for intentional
    infliction of emotional distress.  The remaining claims went to the
    jury, though the court warned plaintiffs that their case was not a
    good one. 
    The night before closing arguments, the parties
    conferenced in chambers to discuss the jury instructions and the
    proposed special verdict forms.  There is no record of this
    conference, and the parties disagree to some extent as to what
    actually occurred.  Defendants argue that the court was undecided
    as to whether it would give an efficient, intervening cause
    instruction with respect to the claims against MBM, while
    plaintiffs assert that the court told them it was very unlikely
    that it would so instruct.  Whatever was said, the district court
    ultimately decided to instruct the jury regarding efficient,
    intervening cause with respect to Kevin Beatty's claims against
    both defendants.  Plaintiffs maintain that they were given no real
    advance notice of this change; defendants say that the court clerk
    met them at the door and showed them the intervening cause
    instructions.
    In any case, while plaintiffs admit that the clerk did
    give both parties draft copies of the jury instructions and the
    special verdict forms (both of which indicated   although the MBM
    verdict form was muddled because of the error discussed in the next
    paragraph   that efficient, intervening cause would also be at
    issue in Kevin Beatty's claims against MBM) upon their arrival at
    the courthouse, they state that they did not receive any other
    notice of the court's change of heart.  Plaintiffs further claim
    that they had only a moment to review the instructions and verdict
    forms prior to closing arguments, and that they thus failed to
    appreciate that the court now intended to instruct on efficient,
    intervening cause with respect to MBM.  
    Further complicating matters, the draft of special
    verdict Form 2 provided to plaintiffs before their closing argument
    contained an unfortunate typographical error.  Question 4 on both
    Form 1 (the separate verdict form as to Ideal-Werk) and Form 2 (the
    separate verdict form as to MBM) asked whether the conduct of the
    Bank, Boxer, or Kevin Beatty constituted an intervening act that
    broke the chain of causation, an inquiry that would not belong in
    Form 2 at all if the issue of intervening cause were not indeed
    relevant to Kevin Beatty's claims against MBM as well as against
    Ideal-Werk.  But Form 2 mistakenly told the reader to skip Question
    4 and go to Question 5 if the reader had answered "yes" to
    Questions 1, 2, or 3.  Questions 1, 2, and 3 asked, respectively,
    whether MBM was negligent in supplying the 4104A blade, whether MBM
    had breached the implied warranty of merchantable quality with
    regard to that blade, and whether MBM had breached the implied
    warranty of reasonable fitness for a particular purpose with regard
    to the blade.  Plaintiffs claim that they did not read Question 4
    because their case against MBM depended on a "yes" answer to
    Questions 1, 2, or 3, and because the Form 2 they were given
    instructed them to skip to Question 5 if Questions 1, 2, or 3 were
    answered "yes." Thus, for this additional reason, plaintiffs
    contend that the special verdict form failed to provide them with
    notice that the court intended to instruct the jury on efficient,
    intervening cause with respect to the claims against MBM.
    During closing arguments, defendants discussed all of the
    Bank's modifications to the machine.  Defendants did not
    distinguish between Ideal-Werk and MBM, but referred to both
    throughout.  Plaintiffs did not object to defendants' closing
    arguments and, in rebuttal, argued that the toggle switch was
    irrelevant to the accident.  Plaintiffs did not address the issue
    of intervening cause as to MBM during their closing argument.
    After closing arguments, the district court instructed
    the jury.  The court told the jury that, because of the doctrine of
    joint and several liability, both defendants were liable if there
    was a defect in the shredder's design.  It further instructed that
    only MBM could be found liable for the subsequent sale of the 4104A
    blade or for breach of the implied warranty of fitness.  The court
    then explained the concept of efficient, intervening cause to the
    jury.  Here, the court explicitly referred to the manufacturer and
    the distributor.  The court switched between referring to "both
    defendants" and Ideal-Werk alone, but clearly referred to both MBM
    and Ideal-Werk throughout the instructions.  Next, the court
    discussed the special verdict forms.  Form 1 covered the sale of
    the shredder in 1984, while Form 2 covered the sale of the
    replacement heads, and thus pertained to the claims against MBM
    alone.  The court read through Form 1 in detail, including Question
    4, which was the intervening cause instruction.  The court then
    reviewed Form 2 in less detail.  Yet the court did tell the jury
    that the forms were the same but for the first three questions,
    which it read aloud.  Finally, the court specifically told the jury
    to "go to Question 4" if it answered "yes" to Questions 1, 2, or 3
    on both forms.  As we have observed, the court did not explicitly
    point out the typographical error to counsel, see supra note 1, but
    it did read the corrected instruction on Form 2 aloud.  When asked
    for objections to the forms, plaintiffs' counsel not only failed to
    object, but also commented that the forms were "excellent."    
    During its deliberations, the jury had a question about
    efficient, intervening cause.  With the parties present, the
    district court instructed the jury on the concept again, stating
    several times that the efficient, intervening cause doctrine was
    applicable to MBM.  When the court asked for objections, plaintiffs
    again answered that they were satisfied.
    After deliberating, the jury returned verdicts for
    defendants on both forms.  The jury had answered "yes" to the first
    three questions on Form 2, i.e., that MBM was negligent, that it
    had breached the implied warranty of merchantable quality, and that
    it had breached the implied warranty of reasonable fitness.  But
    the jury also answered "yes" to Question 4, which asked if the
    Bank's conduct, Boxer's conduct, or Beatty's conduct constituted an
    efficient, intervening act.  Because it answered "yes" to Question
    4, the jury found that MBM was not liable per its instructions. 
    The district court entered judgments for defendants and this appeal
    followed.
                             II.
    Plaintiffs contend that the evidence was insufficient to
    warrant the introduction of the issue of efficient, intervening
    cause into their case against MBM.  Plaintiffs further argue that
    their failure to object to the portions of the jury instructions
    and verdict forms that erroneously discussed the concept should be
    forgiven because of the irregularities surrounding the court's
    decisionmaking process.  We reject the latter argument and decline
    to reach the former.
    Fed. R. Civ. P. 51 requires a party to object to an
    instruction "before the jury retires . . . stating distinctly the
    matter objected to and the grounds of the objection."  Silence
    after jury instructions "typically constitutes a waiver of any
    objections" for purposes of appeal.  Putnam Resources v. Pateman,
    
    958 F.2d 448
    , 456 (1st Cir. 1992).  Our standard of review thus
    differs depending on whether the issue was preserved.  "If a party
    complies with Rule 51, then the 'harmless error' standard of Rule
    61 governs . . . the appellate court's consideration of any request
    for relief based on the alleged error."  Scarfo v. Cabletron Sys.
    Inc., 
    54 F.3d 931
    , 939 (1st Cir. 1995).  But if a party does not
    comply with Rule 51, the issue is not preserved, and we review only
    for "plain" error.  See Moore v. Murphy, 
    47 F.3d 8
    , 11 (1st Cir.
    1995).  "The object of this rule is to afford the trial judge an
    opportunity upon second thought, and before it is too late, to
    correct any inadvertent or erroneous failure to charge."  Marshallv. Nugent, 
    222 F.2d 604
    , 615 (1st Cir. 1955).  
    Plaintiffs did not comply with Rule 51 in this case. 
    Although plaintiffs argue that they did not have enough notice of
    the court's intention to give an efficient, intervening cause
    instruction with regard to the case against MBM, the record belies
    their claim.  Indeed, the record shows that plaintiffs had numerous
    occasions to object.  The district court advised both parties
    during its instructions that the doctrine of efficient, intervening
    cause applied to both the manufacturer and the distributor. 
    Moreover, the district court reviewed the special verdict forms in
    sufficient detail that counsel should have been aware that the
    draft special verdict Form 2 distributed just before closing
    arguments contained a typographical error.  Finally, the court's
    response to the jury's question during deliberations made very
    clear its view that the doctrine of intervening cause applied to
    the claims against MBM.  Through it all, plaintiffs remained
    silent.  Thus, we review only for plain error.
    The plain error exception "'should be applied sparingly
    and only in exceptional cases or under peculiar circumstances to
    prevent a clear miscarriage of justice.'" Wells Real Estate v.
    Greater Lowell Bd. of Realtors, 
    850 F.2d 803
    , 809 (1st Cir. 1988)
    (quoting Nimrod v. Sylvester, 
    369 F.2d 870
    , 873 (1st Cir. 1966)). 
    The exception "'should be confined to the exceptional case where
    the error has seriously affected the fairness, integrity, or public
    reputation of judicial proceedings.'" Morris v. Travisono, 
    528 F.2d 856
    , 859 (1st Cir. 1976) (quoting 9 C. Wright & A. Miller, Federal
    Practice and Procedure,  2558, at 675 (1971)).  This is not such
    a case.  We have reviewed the record with care, and we are doubtful
    that the court's decision to give an intervening cause instruction
    with respect to the claims against MBM can be regarded as an abuse
    of discretion.  See United States v. Smith, 
    145 F.3d 458
    , 460 (1st
    Cir. 1998)(the decision whether the evidence warrants a particular
    instruction is committed to the trial court's discretion).  But
    even if it can be so regarded, nothing about the putative error
    even remotely calls into question the fairness, integrity, or
    public reputation of judicial proceedings.  Along these lines, we
    note that plaintiffs do not argue that the alleged error was
    "plain"; they only contend that their failure to object should be
    excused.
                             III.
    For the reasons set forth above, we affirm the judgment
    below in all respects.
    Affirmed.  Costs to appellee.