Moulton v. Rival ( 1997 )

United States Court of Appeals
For the First Circuit
No. 96-2258
CHRISTOPHER MOULTON,
Plaintiff, Appellee,
v.
THE RIVAL COMPANY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ernest J. Babcock, with whom Elizabeth A. Germani, George D.
Guzzi and Friedman & Babcock were on brief, for appellant.
Charles Harvey, with whom Harvey & Frank was on brief, for
appellee.
June 20, 1997
LYNCH, Circuit Judge. A one-year-old boy sustained
LYNCH, Circuit Judge.
severe, disabling burns when he was left alone in a room
where a Rival Company electric potpourri pot was operating on
the floor. A diversity action was brought against the
company asserting claims under Maine law of strict liability,
negligence and breach of warranty. A jury found in favor of
the plaintiff on the strict liability and negligence claims
and awarded $2.2 million. The company filed post-trial
motions alleging a host of procedural and evidentiary errors
and seeking judgment as a matter of law. The trial court
denied the motions; the company appealed. We affirm.
I
We recite the facts as a jury could reasonably have
found them. See Stevens v. Bangor & Aroostook R.R., 97 F.3d
594, 596 (1st Cir. 1996). Gail Moulton, plaintiff's mother,
purchased a Rival Model 3207 electric potpourri pot. Water
and dried flowers or scented liquid and wax are heated in the
pot and allowed to evaporate to perfume the air. The
potpourri pot was a modified version of a Rival kitchen
product, a one-quart slow cooker. The cover of the potpourri
pot could not be secured to the pot and had a hole in its
center, approximately one and three-quarters inches in
diameter, to allow fragrance to escape. The date Rival sold
this particular potpourri pot is not known.
-2-
2
Literature accompanying the pot contained several
warnings, including: "Close supervision is necessary when
any appliance is used by or near children." Mrs. Moulton
read the instructions and warnings and placed the potpourri
pot under a table in a corner of the living room hidden
behind pottery and baskets. In February 1995, she left her
one-year-old son Christopher in the living room while she got
him a drink from the adjoining kitchen. She heard a noise
and returned to the living room to find the child sitting on
the floor in a pool of liquid. The cover was off the pot, in
the puddle of liquid potpourri. She did not notice where the
pot itself was.
No one knows exactly how the accident happened. It
is reasonable to conclude either that the pot tipped over,
spilling the heated liquid, or that the child took the cover
off. In any event, the lid came off the pot, and the hot
liquid came into contact with the child's arm and hand.
Plaintiff's left hand and arm were severely burned
in the accident. He spent over a month at the Shriners Burns
Hospital in Boston undergoing extensive treatment. He will
need extensive medical treatment in the future. His left
hand and arm are entirely covered by scar tissue, which does
not grow like normal skin. As he grows, the inflexible scar
tissue must be released by surgical incisions to prevent his
joints from growing abnormally; skin grafts are used to fill
-3-
3
in the gaps, and a physical therapy regimen is necessary to
restore movement to the hand. This cycle of growth, surgery
and physical therapy will continue until the plaintiff stops
growing, at around age twenty.
The type of potpourri pot involved in the
plaintiff's accident evolved from earlier products. Rival,
which manufactures various household appliances, decided to
market an electric potpourri pot. Before placing the item on
the market, Rival submitted the item, which it called the
Model 3207, for evaluation by Underwriters Laboratories
("UL"), an independent not-for-profit testing laboratory
which sets and publishes safety standards; these standards
are often adopted by the American National Standards
Institute.
UL replied that the pot did not meet the relevant
safety standards. UL sent Rival a letter in June 1987 which
stated that the potpourri pot heated liquids to temperatures
exceeding the applicable standard, and noted that, since the
lid had no means of being secured and had a one and three
quarters inch hole in its center, it could not be relied upon
as a barrier to prevent scalding. UL therefore refused to
"list" the pot.1 However, by the time the UL report was
issued, Rival had already set production to commence in
1. A "listed" product would bear a sticker indicating that
the laboratory had determined that the product met a
particular safety standard.
-4-
4
August 1987. Despite UL's rejection, Rival decided to go
ahead with its production plans anyway.
Rival submitted the potpourri pot to ETL testing
laboratories, a commercial (for profit) laboratory. ETL
issued a report certifying that the potpourri pot met the
very standard that UL had reported the pot failed to meet.
The ETL report should have raised concerns on its face. The
stated temperature in the report to which the pot heated
liquids was too high to meet the applicable standard. The
product was nonetheless put on the market.
The Model 3207 potpourri pot was the only Rival
product not listed by UL. This apparently troubled Rival
officials. They ordered various tests to determine whether
the item could be modified to meet the evolving safety
standards adopted by UL. Rival's product safety engineer
reported that UL had determined that water hotter than 149
degrees Farenheit could cause serious skin burns on contact
and that the potpourri pot was designed to reach a
temperature of 174 degrees Farenheit. Rival was also aware
that UL took the position that this product, unlike cooking
appliances, was likely to be "touched, bumped, handled, or
even upset when used as intended." Consequently, UL wanted
limitations placed on the temperature and quantity of the
liquid and wanted a tight-fitting lid. Rival's competitors
-5-
5
produced potpourri pots with locking lids. However, no
modifications were made to the Model 3207.
After the potpourri pot had been on the market for
a short time, Rival began to receive reports of young
children who were burned by accidental contact with the
heated potpourri mixture.2 Rival still made no modification
to the design. After 1991, the company changed the package
insert to warn consumers that the contents of the pot were
hot and that the pot should be kept out of the reach of
children.3 Accidents continued to occur in the early 1990's.
At some point, although the parties cannot pinpoint the exact
date, a tag warning that the product could cause burns to the
skin was placed on the cord of the Model 3206, a smaller
version of the Model 3207 that lacked any cover.
II
Plaintiff filed suit against the Rival Company in
November 1995 in federal court in Maine. The complaint
alleged that Rival was legally responsible for the
plaintiff's injuries because (1) the potpourri pot was
defective and unreasonably dangerous as a result of its
design; (2) Rival was negligent in designing the potpourri
pot and/or in failing to warn users of the product's design
2. Some of the accidents involved the Model 3207 (the model
in this case), while others involved a similar model.
3. The previous warning had stated that users should
supervise closely when the pot was operated near children.
-6-
6
defect; and (3) the potpourri pot failed to perform in
accordance with the express warranty. Rival defended on the
grounds that the product was safe, the warnings and
instructions adequate, and the blame for the accident lay
with the child's mother for placing the pot where her son
could reach it and then leaving him unattended.
After a one-week trial, the jury found in
plaintiff's favor on the strict liability and negligence
claims and awarded him $2.2 million in compensatory damages.
III
Post-Sale Duty to Warn
The primary issue raised by Rival is whether the
district court erred in instructing the jury on negligent
post-sale duty to warn. The trial judge charged:
When a manufacturer learns . . . of the
dangers associated with the reasonably
foreseeable use of its product after they
are distributed, the manufacturer must
take reasonable steps to warn reasonably
foreseeable users about those dangers
. . . .
Rival argues that the Maine Law Court has never imposed such
a post-sale duty on manufacturers and would not do so. The
plaintiff responds that the majority of jurisdictions
recognize a negligence-based post-sale duty to warn and that,
if faced with the issue, Maine would do the same.
We do not reach the issue of whether the Maine Law
Court would recognize a negligence-based post-sale duty to
-7-
7
warn because the jury verdict is adequately supported on a
strict liability claim and the damages are the same.
Further, no issues concerning the admissibility of evidence
turn on this.
The trial court separated the theories of strict
liability, negligence and warranty both in the jury
instructions and in the special verdict form. The jury
stated on the special verdict form that it found the
defendant liable on a strict liability theory as well as on a
negligence theory. Even if the instructions involving
negligent post-sale duty to warn were incorrect as a matter
of Maine law, the finding of liability on the strict
liability theory would be sufficient to support the judgment.
Rival maintains the issue must nevertheless be
reached. It argues that certain evidence was admitted at
trial in support of the plaintiff's theory that there had
been a negligent failure to warn and that this evidence was
both prejudicial and irrelevant to any of the other legal
theories advanced by plaintiff. The evidence in question
concerns what the defendant terms a subsequent remedial
measure: the placement of a warning tag on the electrical
cord of the Model 3206 (which is smaller than the Model 3207
and does not have a cover).4 The defendant argues that if,
4. This modification is not a subsequent remedial measure
for purposes of Rule 407 of the Federal Rules of Evidence.
That rule does not apply where, as here, the modification
-8-
8
as it claims, Maine would not recognize a negligent post-sale
duty to warn, this evidence was improperly admitted and
sufficiently prejudicial to warrant a new trial. We
disagree.
First, the trial court ruled that the warning tag
evidence was relevant to the issue of whether there had been
a negligent violation of a pre-sale duty to warn as well as
of a post-sale duty to warn. Although the sequence of the
placement of the warning tags and the sale of the appliance
is unknown, the defendant never challenged this evidentiary
ruling as to the pre-sale duty to warn. The point is waived.
Furthermore, even assuming arguendo that it was
error to admit the "cord tag" evidence, "the standard for
reviewing a district court's nonconstitutional error in a
civil suit requires that we find such error harmless if it is
highly probable that the error did not affect the outcome of
the case." Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 29
(1st Cir. 1992). Here, there was ample evidence of
defective design: the pot heated its contents to a
dangerously high temperature and did not have a locking lid.
Similar products produced by other companies did have a
locking lid. The refusal of UL to list the product is
particularly telling. We think it unlikely that the evidence
preceded the accident involved in the current lawsuit. See
Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 481
(1st Cir. 1997).
-9-
9
of cord tags placed on the Model 3206 affected the liability
determination.
Evidence of Other Accidents
Plaintiff put in evidence of eight accidents in
which young children sustained burns after coming into
contact with the heated contents of a Rival potpourri pot.
Defendant objected to the introduction of this evidence, but
the trial court overruled the objection. Review is for abuse
of discretion. Espeaignnette v. Gene Tierney Co., 43 F.3d 1,
8 (1st Cir. 1994). In evaluating evidentiary rulings, "[t]he
question is not whether we would strike the balance
differently in the first instance, but whether the balance
actually struck is so egregiously one-sided that it requires
reversal." Id."Evidence of prior accidents is admissible . . .
only if the proponent of the evidence shows that the
accidents occurred under circumstances substantially similar
to those at issue in the case at bar." McKinnon v. Skil
Corp., 638 F.2d 270, 277 (1st Cir. 1981); Marois v. Paper
Converting Mach. Co., 539 A.2d 621, 625 (Me. 1988). The
defendant argues that there is insufficient similarity
between the earlier accidents and plaintiff's accident,
because the circumstances surrounding the spills were
different. For example, in one of the earlier accidents, a
child knocked over the table where the potpourri pot was
-10-
10
located; in four others, a child became entangled in the cord
and pulled the pot over. Furthermore, two of the accidents
involved the Model 3206, a smaller pot with no cover at all.
"Substantial similarity" is a function of the
theory of the case. See Ponder v. Warren Tool Corp., 834
F.2d 1553, 1560 (10th Cir. 1987). Here, the plaintiff was
burned by a large quantity of hot liquid escaping from a
potpourri pot without a locking lid. Plaintiff sought the
introduction of the evidence of the other accidents to show
that the product as designed allowed the rapid escape of a
significant amount5 of extremely hot liquid and was thus
defective. Cf. Jackson v. Firestone Tire & Rubber Co., 788
F.2d 1070, 1083 (5th Cir. 1986). Under these circumstances,
there was no abuse of discretion. Cf. P.B. Mutrie Motor
Transp., Inc. v. Interchemical Corp., 378 F.2d 447, 450-51
(1st Cir. 1967).
Medical Costs
Plaintiff presented the expert testimony of a
rehabilitation specialist as to the cost of plaintiff's
future medical and rehabilitation needs. Rival says that the
witness was not qualified and that his testimony lacked an
adequate factual basis.
5. Even electric potpourri pots with locking lids will allow
the escape of at least a very small amount of liquid if
tipped over; the appliance must have openings to allow the
fragrance to escape.
-11-
11
A trial court has wide discretion in determining
the admissibility of expert testimony, and we will reverse
its decision only when there has been a clear abuse of
discretion. Stevens, 97 F.3d at 600. The educational and
work experience of plaintiff's expert made him well-qualified
to testify concerning theplaintiff's future medical expenses.
A somewhat closer question is whether there was a
sufficient factual basis for the expert testimony. Under
Maine law, damages may not be recovered if they are
contingent or speculative. Michaud v. Steckino, 390 A.2d
524, 530 (Me. 1978). They must be "determined to a
probability." Id.Rival makes a two-pronged argument. It first
claims that the plaintiff failed to meet his burden of proof
on the damages issue, because everyone involved in the case
expects that the Shriners Hospital, which is treating the
child, will continue to provide all necessary care free of
charge. This argument is foreclosed by the collateral source
rule. Under that rule, a plaintiff who has been compensated
in whole or in part by a source independent of the tortfeasor
is nevertheless entitled to a full recovery against the
tortfeasor, to prevent the tortfeasor from gaining a
windfall. Werner v. Lane, 393 A.2d 1329, 1335 (Me. 1978).
Defendant then argues that the plaintiff has failed
to prove future medical expenses to a reasonable certainty
-12-
12
because the testimony of plaintiff's rehabilitation expert
was different from that of the plaintiff's treating
physician. Plaintiff's rehabilitation expert presented an
itemized list of predicted future medical and rehabilitation
expenses. The plaintiff's treating physician testified that
it was impossible to predict the number or types of
procedures the plaintiff will need in the future because the
need for future care will depend on the plaintiff's growth
pattern and how the plaintiff improves over time. There was
an adequate foundation for the rehabilitation expert's
testimony and the jury was therefore free to credit it. Cf.
Stevens, 97 F.3d at 600.
As to the misstatement by plaintiff's counsel in
closing, when he mentioned "out of pocket" expenses, any harm
was ameliorated by the trial court's immediate curative
instruction. See Conde v. Starlight I, Inc., 103 F.3d 210,
213 (1st Cir. 1997).
Testimony of Rival's President
Defendant claims it was sandbagged when, at trial,
plaintiff made use of a statement by a Rival official, from a
deposition in another case, to impeach defendant's expert
witness. Defendant argues it had no opportunity to place the
company official's statement in its proper context. This
argument is not well taken. The defendant did not request a
continuance or any limiting instructions. Under these
-13-
13
circumstances, we cannot say the trial court abused its wide
discretion in admitting this evidence.
Sufficiency of the Evidence
Finally, the defendant argues that the trial
court's denials of its Rule 50(b) motion for judgment as a
matter of law and of its motion for a new trial should be
reversed. It claims that the evidence, together with all
reasonable inferences in the plaintiff's favor, is
insufficient to support the verdict. Review is de novo. See
Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994).
The defendant maintains that no reasonable jury
could find that any action by Rival was the proximate cause
of the plaintiff's injury. The defendant points to the Maine
Law Court's statement that "a product bearing . . . a
warning, which is safe for use if [the warning] is followed,
is not in defective condition, nor is it unreasonably
dangerous." Bernier v. Raymark Indus., Inc., 516 A.2d 534,
538 (Me. 1986) (quoting Restatement (Second) of Torts 402A
cmt. j (1965)). However, this language explicitly applies
only to claims that a product is unreasonably dangerous
because it lacks an adequate warning. Bernier, 516 A.2d at
538. That was not the crux of plaintiff's claim here.
Plaintiff's theory was that the potpourri pot had design
defects -- heating its contents to an excessively high
temperature and no locking lid -- which made it unreasonably
-14-
14
dangerous. There was sufficient evidence supporting the jury
finding of liability on that theory of the case.
Affirmed.
-15-
15