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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 99-1094 <br> <br>                         LISA A. VARANO, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>         MICHAEL G. JABAR, D/B/A MIKE'S ROOFING COMPANY; <br>                       STERN COMPANY, INC., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>             [Hon. Gene Carter, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Stahl, Circuit Judge, <br> <br>              John R. Gibson, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>    William C. Knowles, with whom Gene R. Libby, Rita H. Logan and <br>Verrill & Dana, LLP were on brief, for appellant. <br>    James Q. Shirley, with whom Sheehan Phinney Bass + Green, <br>P.A., Anna Barbara Hantz and Gottesman and Hollis, P.A. were on <br>brief, for appellee Michael G. Jabar d/b/a Mike's Roofing Company. <br> <br> <br>                       ____________________ <br> <br>                       November 24, 1999 <br>                       ____________________

         JOHN R. GIBSON, Senior Circuit Judge.  Lisa Varano <br>appeals from the judgment as a matter of law entered against her on <br>her products liability claim against Michael Jabar, and also from <br>the judgment entered against her on a jury verdict on her <br>negligence claim.  Varano claimed she became ill from fumes <br>released when Jabar, doing business as Mike's Roofing, used an <br>adhesive containing isocyanates to repair the roof above the store <br>where Varano was working.  After Varano presented her case, the <br>district court entered judgment as a matter of law against her on <br>her strict liability failure-to-warn claim because the court <br>concluded that Jabar was not a "seller" of the adhesive, which is <br>a statutory element of Varano's claim under Maine law.  The court <br>permitted Jabar to introduce evidence that he had used the adhesive <br>in the past without any problems.  The court submitted Varano's <br>negligence claim to the jury, but refused Varano's requested res <br>ipsa loquitur instruction on the ground that Varano had not adduced <br>evidence that would warrant the instruction. The jury returned a <br>verdict for Jabar.  On appeal, Varano argues that the district <br>court erred in entering judgment against her on her strict <br>liability claim, in permitting Jabar to introduce evidence of his <br>past use of the adhesive without injuries, and in denying her <br>requested res ipsa loquitur instruction.  We affirm. <br>         Varano testified that on February 17, 1995, she was <br>working in her office in the back of the Nautica store in a mall in <br>Kittery, Maine.  She heard some banging on the roof of the store, <br>followed by the presence of a strong odor of glue or adhesive.  She <br>went outside the store and saw that employees of Jabar's company, <br>Mike's Roofing, were working on the roof.  Back inside the store, <br>Varano found that the odor had grown stronger, so she called the <br>property management company to report the problem.  As the day went <br>on, the odor became stronger until Varano could see a "vapor" and <br>a "haze" in the room. <br>         By the next day, Varano had a sore throat and chest <br>discomfort.  She was admitted to the emergency room on March 2 and <br>March 8, 1995 because she was experiencing chest pains and could <br>not breathe. <br>         On March 9, 1995, Jabar's employees were back at work on <br>the roof of the mall.  When Varano arrived at work, one of her <br>coworkers told her that the odor had returned.  Varano again called <br>the management company to complain.  In response, two of Jabar's <br>employees and Jabar's wife, Wendy Collins, came to the Nautica <br>store.  Varano asked them what they were using on the roof.  One of <br>Jabar's employees left and returned with a can of Firestone Splice <br>Adhesive.  He opened the can, and Varano identified the odor as the <br>one she had smelled in the store on February 17. <br>         After the incidents at the store in February and March <br>1995, Varano was diagnosed with occupational asthma, induced by <br>exposure to isocyanates.  Splice Adhesive contains isocyanates. <br>         Varano sued Jabar, alleging a products liability claim <br>for failure to warn of the danger posed by exposure to Splice <br>Adhesive and negligence in failing to warn her.  Varano's theory <br>was that there was a "release" of Splice on the roof that worked <br>its way down through the decking of the roof into the back of the <br>Nautica store where Varano was working.  Jabar's expert testified <br>that Varano could not have been exposed to levels of isocyanates <br>sufficient to cause asthma in connection with the use of Splice <br>Adhesive on the roof.  Jabar's medical expert testified that <br>Varano's medical condition was not caused by isocyanate exposure, <br>but rather by recurrent infections.  The district court granted <br>judgment as a matter of law against Varano on the ground that Jabar <br>was not a "seller" of Splice Adhesive within the meaning of Maine's <br>products liability statute, Me. Rev. Stat. Ann. tit. 14,  221 <br>(West 1997).  The court submitted Varano's negligence claim to the <br>jury, which found for Jabar. <br>                                I. <br>         Varano argues that the district court erred in entering <br>judgment as a matter of law against her on her strict liability <br>claim on the ground that Jabar was not a seller of Splice Adhesive <br>within the meaning of Me. Rev. Stat. Ann. tit. 14,  221.  We <br>conclude that, whether or not Jabar was a seller under Maine law, <br>the court submitted to the jury the same elements in the negligence <br>instruction as Varano would have been entitled to under a strict <br>liability failure-to-warn instruction.  Therefore, any possible <br>error in denying Varano the chance to submit her strict liability <br>failure-to-warn claim to the jury was harmless. <br>         Varano's complaint pleaded a strict liability claim based <br>only on failure to warn of danger associated with the use of Splice <br>Adhesive.  Varano's tendered strict liability instruction included <br>a statement that the "roofing products may be defective and <br>unreasonably dangerous because of a failure to provide adequate <br>warnings regarding potential dangers involved in the use of the <br>products."  Varano's tendered instruction did not contain any <br>indication that the jury had to find that Jabar knew or should have <br>known of the danger to find Jabar liable for failure to warn of <br>that danger.  Jabar contends that, even assuming the district court <br>erred in failing to submit the strict liability failure-to-warn <br>claim to the jury, the error is harmless as a matter of law because <br>the court instructed the jury on negligent failure to warn.  Jabar <br>argues that the two claims are so similar under Maine law that the <br>jury's rejection of the negligence claim establishes that it would <br>have also rejected the strict liability claim. <br>         In Cheshire Medical Center v. W.R. Grace & Co., 49 F.3d <br>26, 32-33 (1st Cir. 1995), we held that failure to submit a strict <br>liability failure-to-warn instruction would be harmless if the <br>court instructed on a negligent failure-to-warn claim and if the <br>strict liability duty to warn was no more stringent than the duty <br>of prudent care under New Hampshire law. <br>         The Maine Supreme Judicial Court has stated that the duty <br>imposed by Maine's products liability statute, Me. Rev. Stat. Ann. <br>tit. 14,  221, in a duty to warn context, is the "responsibility <br>to inform users and consumers of dangers about which [the seller] <br>either knows or should know at the time the product is sold."  <br>Bernier v. Raymark Indus., Inc., 516 A.2d 534, 540 (Me. 1986), <br>quoted in Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me. <br>1990).  "[T]his aspect of strict liability bears a strong <br>resemblance to a negligence action."  Lorfano, 569 A.2d at 196.  <br>The Maine court quoted the comments of Professor Prosser, who <br>stated that the two claims are the same, except that the claim <br>sounding in strict liability is subject to strict liability <br>defenses and other limitations on liability, rather than the <br>defenses and limitations relevant to negligence claims.  Id. <br>(quoting W. Prosser & W. Keeton, The Law of Torts  99, at 697 (5th <br>ed. 1984)). <br>         Thus, while the Maine Court indicated that there are <br>differences in the defenses and limitations on liability applicable <br>to the two causes of action, both causes spring from an identical <br>duty of care: <br>                  Regardless of whether a failure to warn claim <br>         is phrased in terms of negligence [or] strict <br>         liability, the analysis . . . is basically the <br>         same.  [T]he general rule [is] that the <br>         supplier of a product is liable to expected <br>         users for harm that results from foreseeable <br>         uses of the product if the supplier has reason <br>         to know that the product is dangerous and <br>         fails to exercise reasonable care to so inform <br>         the user.  <br> <br>Pottle v. Up-Right, Inc., 628 A.2d 672, 675 (Me. 1993) (internal <br>quotations omitted and emphasis added). <br>         Varano's proposed strict liability instruction did not <br>include the concept that Jabar would only be liable for failure to <br>warn of dangers of which he knew or should have known.  On appeal, <br>Varano continues to argue that strict liability does not require a <br>breach of a duty of care.  However, under Maine law it is clear <br>that strict liability failure-to-warn cases do require breach of <br>such a duty.  See Pottle, 628 A.2d at 675; Lorfano, 596 A.2d at <br>196. We need not decide whether, on different facts, there might be <br>some differences between the strict liability failure-to-warn and <br>negligent failure-to-warn claims under Maine law; the only <br>difference urged upon us in this case concerns whether the strict <br>liability failure-to-warn theory must include the concept that the <br>supplier knew or should have known of the danger posed by the <br>defect.  We hold that it does, and that Varano's strict liability <br>claim was therefore subsumed within her negligence claim.  See <br>Pottle, 628 A.2d at 675; cf. Cheshire Med. Ctr., 49 F.3d at 35 <br>(where plaintiff did not tender a correct instruction or object on <br>the correct ground, we did not reach the argument that there is <br>some difference between negligent and strict liability failure to <br>warn theories).  Consequently, we need not reach the question of <br>whether Jabar was a seller under the Maine products liability <br>statute.

                               II. <br>         Varano next argues that the district court erred in <br>allowing Jabar to introduce evidence that he and his employees had <br>used Splice Adhesive in the past and had never experienced problems <br>or had complaints.  Varano argues that this testimony was <br>irrelevant, because Jabar contended at trial that his employees did <br>not use Splice Adhesive on February 17, 1995, but only cleared ice <br>and snow off the roof.  In a similar vein, Varano argues that the <br>nonoccurrence evidence was unduly prejudicial under Federal Rule of <br>Evidence 403.  Ordinarily, we review for abuse of discretion the <br>district court's relevance determination and its weighing of <br>probative value versus unfair prejudice.  See Espeaignnette v.  <br>Gene Tierney Co., 43 F.3d 1, 5, 10 (1st Cir. 1994).  Here, because <br>Varano only objected to the evidence by a motion in limine and made <br>no contemporaneous objection, we review for plain error.  See <br>Clausen v. Sea-3, Inc., 21 F.3d 1181, 1190 (1st Cir. 1994).  Varano <br>argues that the district court's denial of her motion in limine was <br>sufficiently final to obviate the need for her to object at trial, <br>but we see nothing in the district court's summary denial of her <br>motion that would excuse her from the usual obligation to object at <br>trial. <br>         Varano says that since Jabar denies using the Splice on <br>the date in question, evidence of what happened on other occasions <br>when he did use it is irrelevant.  To the contrary, such evidence <br>is directly relevant to Varano's claim that Jabar's  use of  Splice <br>on February 17 caused her injuries.  See Espeaignnette, 43 F.3d at <br>9-10 (evidence that manufacturer had received no reports of other <br>accidents relevant to causation).  This evidence tends to show that <br>even if Jabar had used Splice on the roof, it would not have caused <br>Varano's injuries.  This reasoning is not inconsistent with Jabar's <br>contention that his employees did not use Splice on February 17; <br>rather, it is auxiliary to Jabar's principal theory.  The district <br>court certainly did not commit plain error in admitting evidence of <br>prior use.  Varano argues that it was unfairly prejudicial to let <br>Jabar prove he had used Splice in the past without incident unless <br>he conceded that he used it on February 17.  This is merely a <br>variant on the argument we have already rejected. <br>                               III. <br>         Varano contends that the district court erred in denying <br>her requested res ipsa loquitur instruction. <br>         A district court is bound to instruct the jury on all <br>issues of fact raised by the evidence adduced at trial.  See Wilson <br>v. Maritime Overseas Corp., 150 F.3d 1, 10 (1st Cir. 1998). <br>                  The standard for determining whether a factual <br>         issue is sufficiently contested to require an <br>         instruction is identical to the standard for <br>         determining whether a factual controversy <br>         prevents the entry of judgment as a matter of <br>         law. <br>                             . . . . <br> <br>                    In neither situation may the court weigh the <br>         evidence, make credibility determinations, or <br>         resolve conflicts in the proof.  Instead, the <br>         court must determine whether the evidence <br>         presented at trial, along with all inferences <br>         that may reasonably be drawn therefrom, could <br>         plausibly support a finding for either party <br>         on any given issue of material fact. <br> <br>Id.  Our review of the district court's decision not to instruct on <br>an issue is plenary.  Id.  If the court erroneously fails to <br>instruct on a material issue of fact, we still may not grant a new <br>trial on the basis of that error if the error is harmless.  Id. at <br>6. <br>         The right to a res ipsa loquitur instruction is <br>determined by Maine law in this diversity case.  See, e.g., DiPalma <br>v. Westinghouse Elec. Corp., 938 F.2d 1463, 1464-65 (1st Cir. 1991) <br>(applying Rhode Island law); Roln-Alvarado v. Municipality of San <br>Juan, 1 F.3d 74, 79 (1st Cir. 1993) (applying Puerto Rico law). <br>Under Maine law, the res ipsa loquitur doctrine permits a finding <br>of negligence in connection with an unexplained event if the <br>plaintiff can show  (1) the event was of a kind which ordinarily <br>does not occur in the absence of negligence; (2) other responsible <br>causes are sufficiently eliminated by the evidence; and (3) the <br>indicated negligence is within the scope of the defendant's duty to <br>the plaintiff.  See Poulin v. Aquaboggan Waterslide, 567 A.2d 925, <br>926 (Me. 1989); Ginn v. Penobscot Co., 334 A.2d 874, 878, 880 (Me. <br>1975).  According to the Restatement (Second) of Torts, "It is the <br>function of the court to determine whether the inference may <br>reasonably be drawn by the jury, or whether it must necessarily be <br>drawn."  Section 328D(2) (1965). <br>         The district court denied the res ipsa loquitur <br>instruction, stating: <br>                  I think the evidence does not show that this <br>         accident could happen only as a result of the <br>         conduct on the part of the defendant, and that <br>         there is no showing, no basis on which a jury <br>         could conclude there is no other explanation <br>         [than] the conduct of the defendant in <br>         bringing about the injury complained of in <br>         this case. <br> <br>         The evidence in this case included possible alternative <br>explanations for the odor in the Nautica store and for Varano's <br>medical condition.  Where the record establishes possible <br>explanations for the accident other than the defendant's <br>negligence, res ipsa loquitur does not apply.  See Wellington <br>Assocs., Inc. v. Capital Fire Protection  Co., 594 A.2d 1089, 1092 <br>(Me. 1991); see also Sheltra v. Rochefort, 667 A.2d 868, 870 (Me. <br>1995).  The district court did not err in concluding that the <br>evidence did not warrant submitting a res ipsa loquitur instruction <br>to the jury. <br>         We affirm the judgment of the district court.</pre>

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