
USCA1 Opinion

	




                            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
