
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1676                                      NAN TOUCH,                                 Plaintiff, Appellee,                                          v.                           MASTER UNIT DIE PRODUCTS, INC.,                                Defendant, Appellant.                                          v.                     TRUEBLOOD, INC., a/k/a MODDRN, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________             Mark A. McCormack, with whom Law Offices of Mark A. McCormack was             _________________            ________________________________        on brief for appellant.             Lenahan O'Connell, with whom O'Connell and O'Connell was on brief             _________________            _______________________        for appellee.                                 ____________________                                   January 5, 1995                                 ____________________                    CYR, Circuit  Judge.  Defendant and  third-party plain-                    CYR, Circuit  Judge                         ______________          tiff  Master Unit  Die Products,  Inc. ("MUD"),  appeals from  an          adverse  judgment  dismissing  its cross-claim  for  contribution          against appellees P.H. Trueblood Corporation and  Trueblood, Inc.          (collectively:    "Trueblood").    As the  findings  of  fact and          conclusions  of law entered by  the district court  do not permit          reliable appellate review, see  Fed. R. Civ. P. 52(a),  we vacate                                     ___          its judgment and remand for further proceedings.                                            I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In 1966,  Trueblood designed, manufactured, and  sold a          plastic-molding press  designed so that end-users  could affix to          its movable shuttle  table two "quick-change"  frames.  Once  the          press  was equipped  with the  required quick-change  frames (not          manufactured by Trueblood) and  each frame was fitted with  a die          containing an  injectable mold, the press  would inject liquified          plastic  into one die-mold;  and after the  shuttle table shifted          the first frame off to one side, the press would inject liquified          plastic into the  die-mold on  the second frame.   From  recessed          holes in the shuttle table surface, the press triggered a "knock-          out" plate built into the sidelined frame which thrust up through          the filled  die-mold, thereby  ejecting and purging  the hardened          plastic part from the work area.  After the ejection was complet-          ed, the shuttle table shifted the frame containing the empty die-          mold  back  into a  central position  for  the next  injection of          plastic,  while the press shifted and "knocked out" the twin die-          mold in the same manner.                      The console which housed the controls for the Trueblood          press was located within  arm's length of the press  operator and          had  three settings.   In  the "off"  mode, the  press would  not          operate.   In "automatic" mode, the  press automatically repeated          the  entire  cycle of  functions described  above, but  the press          operator was required to use both hands to push two widely-spaced                                       ____          buttons on  the console,  which meant  that the  operator's hands          could  not be inserted into the injection or ejection areas while          the press was  in operation.   In the  "hand" mode, however,  the          press operator  could  perform  each  function in  the  cycle  by          manually depressing  one console panel button  for each function,                                                         ___ ____ ________          leaving  the operator with one  free hand.   Moreover, when first                                          ____ ____          switched  from "off"  to "hand,"  the press  automatically "recy-          cled,"  thereby thrusting  into  the ejection  area any  knockout          plate then  in position.   The "hand" mode was  designed to allow          the press operator to  insert an implement through an  opening in          the  quick-change frame  to dislodge a  jammed knockout  plate or          plastic  part,  while  manually  triggering  the  "eject"  button          located on the control console.                    By early October 1989, an unaltered Trueblood press had          come  into   the  possession   of  Styletek,  Inc.,   in  Lowell,          Massachusetts, fitted with  two quick-change frames designed  and          manufactured by appellant  MUD.   On October  11, 1989,  Styletek          employee Nan  Touch  was operating  the  Trueblood press  in  the                                          3          "automatic" mode  when one  of  the MUD  frame's knockout  plates          became jammed  in the  "up" position.   With  his left hand,  Nan          Touch reached through an opening (1.4" high x  5.25" wide) in the          front of the jammed frame to dislodge a part stuck in a die-mold,          at the  same time using his  right hand to change  the press from          "automatic"  to "off" to "hand" mode.   At this point, the jammed          knockout plate  "recycled" and amputated portions  of two fingers          on Nan Touch's left hand.                    In  June  1992,  Nan Touch  instituted  this  diversity          action  against MUD  in the  District of  Massachusetts, alleging          negligence, breach of warranty, see Mass. Gen. L. Ann. ch. 106,                                            ___          2-314, and unfair  trade practices,  see Mass. Gen.  L. Ann.  ch.                                               ___          93A, in the design, manufacture, and sale of frames incorporating          an  opening large enough  to permit a press  operator to insert a          hand into  the ejection  area during  operation.   MUD  impleaded          Trueblood as a third-party defendant, Mass Gen. L. Ann. ch. 231B,             1 (contribution  among joint  tortfeasors), alleging  that the          "one-handed" design of  the press and its  automatic recycling of          the knockout mechanism upon  transition into "hand" mode contrib-          uted to Nan  Touch's injury.   Prior to trial, Nan  Touch settled          with MUD.                      MUD's  third-party  complaint for  contribution against          Trueblood was tried  to the court.  The  district court found for          Trueblood  and entered  the following  findings of fact  and con-          clusions of law:                      As to the defectiveness of the molding press,                    MUD  has  failed to  establish  that two-hand                                          4                    operation was the  industry standard for  the                                       ________ ________                    manufacturing of mechanical power  presses in                                                               __                    1966.   While  Trueblood's molding  press may                    ____                    very  well violate  current day  OSHA regula-                                        _______ ___       _______                    tions, it would  be unfair  to impose  modern                    _____               ______                    standards  on the practices  of nearly thirty                    years ago.  Accordingly, the Court finds that                    the  molding  press  was not  defective  when                                             ___  _________  ____                    manufactured . . . .                     ____________          Nan Touch v. Master Unit Die Prods., Inc., No. 92-11493-EFH, slip          _________    ____________________________          op. at 3 (D. Mass. June 8, 1994) (emphasis added).                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    We  review interpretations  of state  law de  novo, see                                                              __  ____  ___          Salve Regina College v. Russell, 499 U.S. 225, 233-35 (1991), and          ____________________    _______          findings of fact for clear  error, see Interstate Commerce Comm'n                                             ___ __________________________          v. Holmes Transp.,  Inc., 983  F.2d 1122, 1129  (1st Cir.  1993).             _____________________          MUD maintains  that the  district court misapplied  the Massachu-          setts  law governing claims for breach of warranty based in tort,          or  relied on implicit findings  of fact unsupported  by the evi-          dence.  We do not  reach the merits of these contentions,  for we          conclude that  the district court ruling  is insufficiently clear          to  enable effective appellate review.  See Fed. R. Civ. P. 52(a)                                                  ___          ("In  all actions tried upon  the facts without a jury  . . . the          court shall  find the  facts specially  and state  separately its          conclusions of law . . . .").           Under  applicable  Massa-          chusetts  product liability  law, negligence-based  claims differ          markedly  from tort-based  claims  for breach  of warranty.   The          factfinder confronted with  a negligence-based product  liability                                          5          claim  focuses on whether the conduct of the designer or manufac-                                        _______        ________    ________          turer  reveals a  failure "to  use reasonable  care to  eliminate          _____          foreseeable dangers which subject a user to an  unreasonable risk          of injury."  Colter  v. Barber-Greene Co., 525 N.E.2d  1305, 1313                       ______     _________________          (Mass. 1989).  Consequently, evidence that the defendant designer          or manufacturer  met  the  pertinent  industry  safety  standards          prevailing at the time  of manufacture would be  material, albeit          __________ __ ___ ____  __ ___________           ________          nondispositive, evidence  that the  defendant was  not negligent,                          ________                           ___          even though  its product's design  might not comport  with safety          criteria later embraced by the industry.                     By contrast,  a breach of warranty  claim arising under          Massachusetts tort law is founded on strict liability principles,                                               ______          see Mass. Gen. L.  Ann. ch. 106,   2-314; Restatement (Second) of          ___                                       ___________ ___________          Torts   402A cmt. c. (1965), and focuses exclusively "'on whether          _____          the product  [is] defective and unreasonably dangerous and not on              _______                     ____________ _________     ___ __          the [actual]  conduct of the user  or the seller.'"   Colter, 525          ___ ________  _______ __ ___ ____  __ ___ ______      ______          N.E.2d at 1313  (citation omitted) (emphasis added); see  Back v.                                                               ___  ____          Wickes Corp., 378 N.E.2d  964, 968-70 (Mass. 1978).   Because the          ____________          breach of  warranty inquiry  is  not concerned  with the  reason-          ableness of the  designer/manufacturer's conduct, see  Correia v.                                                   _______  ___  _______          Firestone Tire & Rubber  Co., 446 N.E.2d 1033, 1040  (Mass. 1983)          ____________________________          (explaining  that defendant may be  liable for breach of warranty          even  if he "[took] all  reasonable measures to  make his product          safe"), compliance  with "state of  the art" safety  standards at                                                                         __          the  time the product was designed or manufactured is usually im-          ___  ____ ___ _______ ___ ________ __ ____________ __ _______ ___          material.   See, e.g., Hayes  v. Ariens Co.,  462 N.E.2d 273, 277          ________    ___  ____  _____     __________                                          6          (Mass. 1984).  Instead, the factfinder may rely on the failure of          the product to conform to  present-day safety standards in deter-                                     ___________          mining whether it is "unreasonably dangerous," under a  breach of          warranty  analysis, even though the  risk against which the post-          design  or  post-manufacture  safety  standard  was  intended  to          protect was  unknown or not reasonably discoverable by the defen-          dant prior to the sale of the product.  See id. (defendant may be                                                  ___ ___          liable for  breach of  warranty "regardless of  the knowledge  of          risks that he actually had or reasonably should have had when the          sale took place").                      Moreover,  although  nonconformance with  a present-day                                                                ___________          safety  standard would be relevant evidence,  it would not compel                                                                     ______          the trier of  fact to find  the product "unreasonably  dangerous"                                                   ____________          per se, see, e.g., Pedraza v. Shell Oil Co., 942 F.2d 48, 52 (1st          ___ __  ___  ____  _______    _____________          Cir.  1991)  (OSHA  regulations do  not  preempt  state  tort law          principles), cert. denied, 112  S. Ct. 993 (1992).   Indeed, even                       _____ ______          the  incorporation of a  design feature currently  perceived as a          dangerous condition  might be  found "reasonable" in  the circum-          stances, based on the factfinder's application of the traditional          risk/utility balancing test to the particular product.  See Back,                                                                  ___ ____          378  N.E.2d  at  970  (listing  the  factors  to  be  weighed  in          determining whether particular product is unreasonably dangerous,                                         _______    ____________          including  "'the gravity of  the danger  posed by  the challenged          design, the likelihood that such danger would occur, the mechani-          cal feasibility of a safer alternative design, the financial cost          of  an  improved design,  and  the  adverse  consequences to  the                                          7          product and to the consumer that would result from an alternative          design'") (citation omitted).                     Viewed against  the applicable principles  of Massachu-          setts law, the findings entered by the district court are plainly          deficient.   The equivocal observation  that "Trueblood's molding          press may  very well violate  current day OSHA  regulations" pro-                ___  ____ ____ _______          scribing one-handed presses, coupled with the court's negligence-          based  assessment that "MUD has failed to establish that two-hand          operation  was the  industry  standard for  the manufacturing  of                              ________  ________          mechanical  power presses  in  1966," strongly  suggest that  the                                     __  ____          district court viewed any such OSHA violation as simply immateri-          al to Trueblood's liability.  On the contrary, a finding that the          Trueblood press contravened the 1992 OSHA standards, a matter all          but conceded by  the parties,  clearly would be  material to  the          ultimate factual  determination whether the press  was "unreason-          ably dangerous," and hence gave rise to a breach of warranty.                      On  the other hand, such a finding would not compel the                                                                 ______          conclusion that the Trueblood press was  "unreasonably dangerous"          per se.   Yet  the  district court's  observation concerning  the          ___ __          "unfairness" of  applying the  1992 OSHA  standards to  a product          manufactured  in 1966, see supra p. 5, strongly suggests that the                                 ___ _____          district court perceived a  need to forefend against just  such a          "compelled"  conclusion.  But  see Cosme  v. Whitin  Mach. Works,                                    ___  ___ _____     ____________________          Inc., 632 N.E.2d 832, 835 (Mass. 1994) (contrasting Connecticut's          ____          ten-year statute of repose after sale,  and noting that Massachu-          setts  breach  of warranty  claims  are  not rendered  defeasible                                          8          simply  by the  passage  of time).    In addition,  the  district          court's free-form "unfairness" exception, especially in reference          to  a durable product  like the Trueblood  press, is  out of step          with  the  purpose and  policy  of the  strict  product liability          principles upon  which breach  of warranty liability  is founded.          See Colter,  525 N.E.2d at  1313 n.13 ("'[P]ublic  policy demands          ___ ______          that the burden of accidental injuries caused by products intend-          ed for consumption  be placed upon those who market  them, and be          treated as a cost of production against which liability insurance          can  be obtained;  and  that the  consumer  of such  products  is          entitled  to the maximum of  protection at the  hands of someone,          and the  proper persons  to afford it  are those  who market  the          products.'" (quoting Restatement (Second) of Torts   402A cmt. c.                       _______ _____________________________          (1965))).                    Finally, we  can discern no indication  in the district          court ruling as  to how,  or whether,  the required  risk/utility          balancing was  performed to  determine if the  one-handed control          feature  made  the press  "unreasonably"  dangerous.   The  court                                     ____________          neither cites to apposite Massachusetts case law, nor adverts  to          any  risk/utility  balancing  test  component,  even  though  MUD          introduced  evidence that  Trueblood had  available     at slight          additional  cost       feasible,  "safer"  design   alternatives.          Trueblood  countered with  evidence that  one-handed control  was          essential  to permit a press operator to insert an implement into                                                __ ______ __ _________          the work  area to  unjam  a knockout  plate, and  that  it was  a          "reasonably"  safe design  provided  the manufacturers  of quick-                                          9          change frames  did not  incorporate  an opening  large enough  to          accommodate  the operator's hand.   We in no  sense suggest which                                      ____          (if either)  evidentiary proffer  should be credited,  but simply          emphasize that  appellate  review is  utterly impracticable  when          neither  the conclusions of  law which guided  the district court          ruling,  nor  the  findings of  fact  essential  to  a principled          decision  under  the applicable  law,  are  discernible from  its          decision.                     As we  have stressed repeatedly  in the past,  the Rule          52(a) requirements  that facts  be stated specially,  and conclu-          sions  of law separately, impose on the trial court an obligation          to  ensure  that its  ratio decidendi  is  set forth  with enough                                _____ _________          clarity  to  enable a  reviewing  court reliably  to  perform its          function;  namely, to review the  conclusions of law  de novo and                                                                __ ____          the  essential  findings of  fact for  clear  error.   See, e.g.,                                                                 ___  ____          Thermo Electron Corp.  v. Schiavone Constr.  Co., 958 F.2d  1158,          _____________________     ______________________          1160  (1st Cir. 1992);  Peckham v. Continental Casualty Ins. Co.,                                  _______    _____________________________          895  F.2d 830, 842 (1st Cir. 1990); Applewood Landscape & Nursery                                              _____________________________          Co.  v. Hollingsworth,  884  F.2d  1502,  1503 (1st  Cir.  1989);          ___     _____________          Pearson v.  Fair, 808 F.2d 163, 165-66 & n.2 (1st Cir. 1986) (per          _______     ____          curiam) (explaining  that Rule 52(a) is  "mandatory, not precato-          ry")  (citing  Commissioner  v.  Duberstein, 363  U.S.  278,  292                         ____________      __________          (1960));  Boston and Maine Corp.  v. First Nat'l  Bank of Boston,                    ______________________     ___________________________          618 F.2d 137, 143 (1st Cir. 1980); see also 9 Charles A. Wright &                                             ___ ____          Arthur R. Miller, Federal  Practice and Procedure   2571,  at 679                            _______________________________          (1971) (collecting cases).                                            10                    The  parties urge  us  to salvage  the present  appeal.          Each  proposes  plausible  interpretations of  the  evidence  and          conclusions of law favorable to itself.  But neither has met with          notable  success  in  divining  the  district  court's  essential          findings  of fact  and predicate  conclusions of  law.   We note,          further, that although all  responsibility under Rule 52(a) rests          with  the trial judge, and the burden  is not an onerous one, see                                                                        ___          Fed.  R. Civ. P. 52(a) advisory committee's note (1946 amendment)          (requiring "brief, definite, pertinent  findings" with "no neces-          sity for  over-elaboration"), counsel might have  avoided the un-          necessary expense  and delay  occasioned in  this case  simply by          submitting a timely request for reconsideration based on the need          for  adequate findings of fact and conclusions of law as required          by  Rule 52(a).   As neither  party sought  reconsideration under          Rule 52(a), each shall bear its own costs on appeal.                    The district court  judgment is vacated.   The case  is                    _______________________________________________________          remanded for further  proceedings consistent  with this  opinion.          _________________________________________________________________          Each party shall bear its own costs.           ___________________________________                                          11
