                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 12-1617


TAMMY LOU FONTENOT,     as    Administratrix     of     the    Estate   of
Darryl Wayne Turner,

                 Plaintiff - Appellee,

           and

DEVOID TURNER,

                 Plaintiff,

           v.

TASER INTERNATIONAL, INC.,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cv-00125-RJC-DCK)


Argued:   September 19, 2013                 Decided:    November 22, 2013


Before TRAXLER,     Chief     Judge,   and    MOTZ    and     KEENAN,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Keenan wrote the majority opinion, in which
Judge Motz joined.    Chief Judge Traxler wrote a dissenting
opinion.
ARGUED:   Pamela   B.   Petersen,  TASER   INTERNATIONAL,   INC.,
Scottsdale, Arizona, for Appellant.     John Christopher Burton,
LAW OFFICES OF JOHN BURTON, Pasadena, California, for Appellee.
ON BRIEF: John R. Maley, BARNES & THORNBURG LLP, Indianapolis,
Indiana; Scott D. MacLatchie, WOMBLE CARLYLE SANDRIDGE & RICE,
Charlotte, North Carolina, for Appellant.    Charles A. Everage,
EVERAGE LAW FIRM, PLLC, Charlotte, North Carolina;      Peter T.
Cathcart, John F. Baker, MAGAÑA, CATHCART & McCARTHY, Los
Angeles, California; Kenneth L. Harris, KEN HARRIS & ASSOCIATES,
PA, Charlotte, North Carolina; Peter M. Williamson, WILLIAMSON
LAW FIRM, Woodland Hills, California, for Appellee.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

      Darryl     Wayne      Turner,          age       seventeen,    died      from      cardiac

arrest after a confrontation with police in which he was struck

in    the   chest     by     electrical         current         emitted   from       a   device

commonly       known        as      a        “taser,”        manufactured        by        TASER

International, Inc. (TI).                The police officer who discharged the

taser    aimed   the       device       at    Turner’s       chest   based      on    training

provided by the Charlotte Mecklenburg Police Department (CMPD or

the department), which used instructional materials supplied by

TI.

      The particular taser employed in the incident, the Model

X26 device (X26 taser), had been the subject of several academic

studies.     TI knew about these studies, in which researchers had

concluded      that        the   device            posed    a     risk    of     ventricular

fibrillation, a cause of cardiac arrest, especially when the

electrical current from the taser was applied near the subject’s

heart.      Nevertheless, TI failed to warn taser users to avoid

deploying the taser’s electrical current in proximity to the

heart.

      Tammy Lou Fontenot, Turner’s mother and the administrator

of his estate, initiated a product liability action against TI

in a North Carolina state court.                           In the complaint, Fontenot

alleged that TI negligently failed to warn users of the risk

posed by the X26 taser and, in particular, to warn them to avoid

                                                   3
applying the taser’s electrical current near a subject’s heart.

She further alleged that TI’s negligence was the proximate cause

of Turner’s death.           A jury found in Fontenot’s favor, awarding

her   $10    million    in     compensatory          damages,       which    amount      the

district court remitted to about $6.15 million before deducting

certain     offset    amounts       received     by    Fontenot,       resulting        in   a

final award of about $5.5 million.

      In this appeal, TI raises several arguments, including that

the   district        court        erred    in       barring        from     the    jury’s

consideration        TI’s     defense      that       Turner     was       contributorily

negligent by engaging in the dispute and in refusing to comply

with the police officer’s directives.                   TI also contends that the

damages     award,    even     as    remitted,        is   not      supported      by    the

evidence.     Upon our review, we hold that the district court did

not   err    in   entering      judgment        in    favor    of    Fontenot      on    the

liability aspect of the negligence claim in accordance with the

jury’s verdict.        However, we also hold that the damages award is

not supported by the evidence, and we remand the matter to the

district     court     for     a     new   trial       limited       to     that    issue.

Accordingly, we affirm the district court’s judgment in part,

vacate it in part, and remand the matter for further proceedings

with respect to damages.




                                            4
                                       I.

                                       A.

       Turner was an employee of a Food Lion supermarket located

in Charlotte, North Carolina, where he had worked for about a

year.     On March 20, 2008, Turner was confronted by a Food Lion

loss     prevention     investigator       after      Mary    Blackert,    one   of

Turner’s supervisors, “reported” Turner for eating a convenience

food item and drinking a bottle of water that he had obtained

from the store.         Turner admitted that he had consumed those

items without paying for them, and he was allowed to return to

work while his supervisors discussed the matter.

       After   eating   lunch   at   his     home,    Turner    returned    to   the

supermarket dressed in a manner that did not comply with the

store’s employee dress code.          Blackert told Turner to “clock out

and to get himself together.”              Turner refused, using profanity

addressed to Blackert.

       Blackert   contacted     the    store         manager,    who     instructed

Blackert to terminate Turner’s employment for insubordination.

When Blackert informed Turner that he was fired, Turner refused

to leave the store and continued arguing with her.                     Thereafter,

Blackert placed a telephone call to a 911 operator and requested

police    assistance     in   removing       Turner    from     the    supermarket.

During the entire incident, Turner acted in an aggressive manner

and argued loudly with Blackert and the store manager.                       Turner

                                         5
also threw an umbrella and pushed a store display off a counter,

but he did not make physical contact with anyone during the

dispute.

     CMPD   Officer    Jerry   Dawson       arrived   at   the    Food     Lion   in

response to Blackert’s request for assistance.                    Upon entering

the store, Officer Dawson heard yelling and cursing.                  He removed

his X26 taser from its holster while approaching Turner, who

continued   to    argue   with   his       supervisors.          Officer    Dawson

instructed Turner to “calm down,” but Turner continued behaving

in an aggressive manner.         Officer Dawson aimed the taser’s red

“laser dot” at Turner’s chest, the location where Officer Dawson

had been trained to aim.          When Turner stepped toward Officer

Dawson, he deployed the taser on Turner.

     The X26 taser, which is shaped like a pistol, discharges

two darts, one above the other, from a cartridge attached to the

front of the device when its trigger is pulled. 1                One dart struck

Turner in the center of his chest, very close to his heart, and

the other dart struck him near his ribcage.                Because the taser

is   designed    to   incapacitate     an    individual     by     causing    that

person’s muscles to “lock up,” Officer Dawson expected Turner to

     1
       Each of the taser’s darts must make contact with the
target in order to form an electric circuit that will deliver an
electrical current designed to incapacitate the target.      The
taser automatically delivers a five-second electrical current
when the trigger is pulled, and delivery of the current may be
extended by holding or repeatedly pulling the trigger.


                                       6
collapse, but Turner stayed on his feet and walked toward the

store’s exit while the taser’s darts continued delivering an

electrical current.             Officer Dawson followed Turner as he walked

with the taser’s darts still attached to his body, instructing

Turner to “get down.”              During this period, Officer Dawson held

down       the    taser’s    trigger,       causing     the      device    to    continue

emitting         an   electrical      current,          until     Turner        eventually

collapsed 37 seconds after the device initially was activated.

Officer Dawson discharged his taser on Turner for an additional

five seconds because Turner did not comply with commands to put

his hands behind his back after he had fallen to the ground.

       When        firefighters       and        paramedics       arrived        at    the

supermarket,          they      observed     that       Turner     was     experiencing

ventricular fibrillation and was unresponsive. 2                     The rescue team

performed CPR and defibrillation on Turner but, despite these

efforts,         Turner   was    pronounced      dead    after    being    taken      to   a

hospital. 3



       2
       “Ventricular fibrillation is the most serious cardiac
rhythm disturbance,” and occurs when the “heart’s electrical
activity becomes disordered.”       American Heart Association,
Ventricular Fibrillation (Sept. 5, 2012), http://www.heart.org/
HEARTORG/Conditions/Arrhythmia/AboutArrhythmia/Ventricular-
Fibrillation_UCM_324063_Article.jsp.    Ventricular fibrillation
causes collapse and cardiac arrest. Id.
       3
       The CMPD investigated the incident and found that Officer
Dawson’s “prolonged use of the [taser] was not” in accordance
(Continued)
                                             7
                                         B.

      TI   primarily     markets   and    sells     its   conducted   electrical

weapons products, including the X26 taser, to law enforcement

agencies.    One such law-enforcement purchaser of the X26 taser

was the CMPD, which purchased X26 tasers for use by all the

officers in the department.

      From the introduction of the X26 taser in 2003, through the

events at issue in this case, TI instructed taser users that the

electrical current emitted by the X26 taser had no effect on

heart rhythm when tested on animals.                Captain Michael Campagna,

who   administered      the   CMPD’s   taser   training      program,   received

training    from   TI    that    use     of   the    taser   could    not   cause

fibrillation of the human heart or cardiac arrest.                      TI also

provided Captain Campagna and other users an “instructor’s note”

stating that even when “[t]he X26 was applied across the chest

with the two probes in a ‘worst case’ scenario (the points most

likely to stimulate the heart) . . . the heart beat continues

normally. . . .         It is important to note that the heart rate

does not change at all.”

      Captain Campagna used this information and other material

provided by TI to train CMPD officers, including Officer Dawson,




with CMPD procedures.    Officer Dawson was suspended from duty
for five days and was required to undertake additional training.


                                         8
on use of the X26 taser.                Officer Dawson recalled that the

training materials provided by TI stated that application of the

X26 taser had no effect on a subject’s heart rates.

     TI also provided Captain Campagna other training materials,

which instructed users of the X26 taser to aim for the “center

of mass,” and used visual depictions of the taser’s darts being

fired    at   the   middle    of    a   person’s   chest.     Based    on   this

information, Officer Dawson and other CMPD officers were trained

to aim the taser at a suspect’s chest.              Officer Dawson testified

that, therefore, he had no reason to think that the act of

firing the X26 taser at Turner’s chest was more dangerous than

aiming the device elsewhere, or that using the device in that

manner could cause significant cardiac injury or death. 4

     As   relevant    to     this   case,    the   primary   warning   that   TI

provided to users of the X26 taser was included as part of the

“TASER International Training Bulletin 12.0-04,” which TI issued

in June 2005.       In that document, TI cautioned that “[r]epeated,

prolonged, and/or continuous exposure(s) to the TASER electrical

discharge may cause strong muscle contractions that may impair


     4
       Although TI later revised its training materials and the
X26 taser operating manual before Turner’s death, those revised
documents did not provide warnings concerning the risk of
ventricular fibrillation or cardiac arrest when the taser is
fired at a suspect’s chest.      In particular, the revised X26
training material also included a visual depiction of a police
officer aiming the taser at the suspect’s chest.


                                         9
breathing     and    respiration,            particularly      when        the     probes     are

placed    across     the     chest      or     diaphragm.           Users     should         avoid

prolonged,        extended,       uninterrupted            discharges         or       extensive

multiple     discharges          whenever      practicable.         .    .    .”       (Emphasis

added.)      Notably,       this       TI   Training       Bulletin,       which       the    CMPD

provided     to    its     officers,         discussed      only     the     potential        for

respiratory        harm,    rather          than    the    risk     of     severe       cardiac

problems, resulting from the use of the X26 taser.

      Shortly after TI issued the June 2005 Training Bulletin, TI

received     the    results       of    a    TI-funded      study       conducted        by    Dr.

Dhanunjaya Lakkireddy concerning additional testing of the X26

taser.     This study, which was published in the Journal of the

American     College        of     Cardiology,            showed    that         the     taser’s

electrical     pulses       can    “capture”        cardiac        rhythms,        potentially

leading to ventricular fibrillation.                        The study further noted

that if users avoided striking the subject’s chest area with the

taser’s darts, the risk of ventricular fibrillation would be

reduced significantly.

      TI received the results of another study in 2006, which was

conducted by Dr. Kumaraswamy Nanthakumar and was published in

the   same   medical       journal.           Dr.    Nanthakumar’s           study      likewise

showed a risk of ventricular fibrillation in test animals when

darts fired from the X26 taser lodged near the subject animal’s

chest.     Notably, the study showed that when the darts struck the

                                               10
animal in areas away from the chest, such as in the abdomen, the

taser did not capture heart rhythms and, thus, using the taser

in     this    manner      avoided   the        risk    of        causing       ventricular

fibrillation.

       These    conclusions       reached       by     Dr.        Lakkireddy      and   Dr.

Nanthakumar conflicted with TI’s representations in its training

materials that the X26 taser could not capture heart rhythms and

was    safe    even     when    applied    directly          to    a    person’s     chest.

Nevertheless, as confirmed by TI’s chief executive officer and

the company’s vice president of training, TI did not alter its

training materials to warn users of the X26 taser that shots to

a person’s chest could result in ventricular fibrillation, or

that use of the taser near a person’s heart should be avoided

based on that risk.            Accordingly, up until the time of Turner’s

death, Captain Campagna and Officer Dawson continued to think

that    electrical      current   emitted       by     the    X26      taser,    even   when

applied near a person’s heart, did not affect heart rhythms or

entail risks of cardiac arrest.

                                           C.

       Fontenot,      as   administrator        of     Turner’s        estate,     filed   a

complaint against TI in a North Carolina Superior Court alleging

negligence under North Carolina’s product liability act, N.C.

Gen. Stat. §§ 99B-1 through 99B-11 (the product liability act).

As reflected in the complaint, Fontenot’s primary theory was

                                           11
that TI was negligent in failing to warn users of the X26 taser

that       the     device           could     cause       an    adverse        cardiac      event,

particularly            when    at      least    one       of    the        taser’s    darts     is

positioned on a person’s chest. 5

       TI removed the action to federal district court asserting

diversity         jurisdiction          under    28       U.S.C.   §     1332(a).           In   the

district         court,    Fontenot          filed    a    pretrial         motion    seeking     to

exclude from the jury’s consideration TI’s affirmative defense

of    contributory         negligence.               TI    contended         that     Turner     was

contributorily negligent by failing to exercise ordinary care

for    his        own     safety        in     instigating         the       dispute       at    the

supermarket,         and       in    failing    to     comply      with      Officer       Dawson’s

directions after the police arrived at the scene.

       The district court granted Fontenot’s motion and barred TI

from submitting its contributory negligence defense to the jury.

The court later explained that the statutory language at issue

bars any recovery when the “[t]he claimant failed to exercise

reasonable         care    under        the    circumstances           in    the     use    of   the

product.”         See N.C. Gen. Stat. 99B-4(3) (emphasis added).                                 The

district         court     also       noted     that      the   North        Carolina      product


       5
       Fontenot also sought punitive damages on the basis that
TI’s conduct was malicious, willful, and wanton, but the
district court granted summary judgment in TI’s favor with
respect to that aspect of her claim.   Fontenot does not appeal
from that ruling.


                                                 12
liability cases addressing contributory negligence all involved

plaintiffs       who     actually        had       used     the     allegedly       defective

products,      and     that,     in    this    case,       Turner    did    not     “use”    the

taser.       Additionally, the court reasoned that:

       Finding contributory negligence in this circumstance
       would immunize [TI] from ever being liable for a
       product defect. Police officers do not deploy a taser
       unless a suspect has acted at least unreasonably.
       Therefore, a person who has been tased would always be
       barred by contributory negligence from suing [TI].

       The     case    proceeded        to     a    jury     trial.        After     Fontenot

presented      her     case,     TI    made    a     motion    seeking      judgment      as    a

matter   of     law    on   several         bases,    including       that    the    evidence

established as a matter of law that Officer Dawson misused the

taser.       The district court denied the motion and the case was

submitted to the jury, which returned a verdict in Fontenot’s

favor and awarded her $10 million in compensatory damages.

       The jury specified on the verdict form that TI unreasonably

failed to provide an adequate warning or instruction, thereby

creating an unreasonably dangerous condition about which TI knew

or   should     have     known,       and     that    such     failure      to    provide      an

adequate       warning      or    instruction         proximately          caused    Turner’s

death.       The jury further stated on the verdict form that, with

respect to TI’s product misuse defense, Officer Dawson did not

use the taser in a manner contrary to TI’s instructions, that

TI’s   instructions         and       warnings       were     not   adequate,       and     that


                                               13
Turner’s death was not caused by Officer Dawson’s use of the

taser contrary to TI’s instructions or warnings.

       After the trial, TI renewed its earlier motion for judgment

as a matter of law and, in the alternative, sought a new trial

under Rule 59 of the Federal Rules of Civil Procedure.                                        The

district court declined to disturb its previous ruling excluding

TI’s contributory negligence defense.                        The court further held

that       substantial         evidence      supported       the    jury’s       verdict       on

causation and the inadequacy of TI’s warnings.

       Addressing            the   $10    million    damages       award,      the    district

court       characterized          the    evidence    of     damages      as     “relatively

thin,” and the court ultimately concluded that the award was

excessive.             The    court      initially   remitted       the     award      to    $7.5

million, further remitted the award to about $6,156,503.65 after

adjusting         it    for    present      value,   and     reduced      that       amount   to

$5,491,503.65 after deducting $40,000 Fontenot received from a

Food       Lion   workers’         compensation      award    and    $625,000         that    she

received from a settlement with the City of Charlotte. 6                                    After


       6
       Although the district court instructed the jury to reduce
to its present value the monetary value that Turner had to his
parents over their expected lifetimes, the court nevertheless
concluded that the size of the verdict suggested that the jury
did not make that reduction.      Therefore, the district court
applied a one-percent discount value, as requested by Fontenot,
which resulted in an award of $6,156,503.65.       Neither party
challenges on appeal the district court’s present value
determination.


                                               14
Fontenot      accepted      the     reduced       amount     of   $5,491,503.65,       the

district court entered final judgment in that amount.                          TI timely

filed a notice of appeal.



                                             II.

     On    appeal,    TI     raises      four      primary    arguments,   contending

that the district court erred: (1) in barring TI’s contributory

negligence defense; (2) in refusing to award judgment in TI’s

favor when the evidence purportedly did not show that Officer

Dawson would have used the taser differently had TI provided

warnings      about   the    risk       of   ventricular      fibrillation;      (3)    in

refusing      to   award     judgment        in     TI’s     favor   because     Officer

Dawson’s use of the taser constituted product misuse; and (4) in

entering      judgment      in     an   amount     that    was    excessive     and    not

supported by the evidence.              We discuss these arguments in turn.

                                             A.

     We first address TI’s contention that the district court

erred    in   barring       TI’s    contributory       negligence      defense.        TI

asserts that under the plain language of the product liability

statute, and under general principles of North Carolina law, a

claimant in a product liability action need not have “used” the

product in order for the doctrine of contributory negligence to

apply.    We disagree with TI’s argument.



                                             15
       Initially, we observe that the question before us raises an

issue of first impression under North Carolina law.                              Our Court

has on occasion certified state law questions to the highest

court of a state in similar circumstances, but we are unable to

do so here because North Carolina currently has no mechanism by

which we may certify such questions.                       See Town of Nags Head v.

Toloczko, 728 F.3d 391, 398 (4th Cir. 2013).                            Accordingly, we

must    attempt     to   determine          how    the     Supreme      Court    of     North

Carolina    would    decide     the     issue.           See   McNair    v.     Lend    Lease

Trucks, Inc., 95 F.3d 325, 328 (4th Cir. 1996).                               We consider

whether contributory negligence may be raised as a defense under

North   Carolina     law   in     a    product        liability      action      when    the

claimant has not “used” the product.                       This question presents an

issue of law, which we review de novo.                         See Solis v. Malkani,

638 F.3d 269, 275 (4th Cir. 2011); United States v. Perrin, 45

F.3d 869, 871 (4th Cir. 1995).

       In Section 99B-4 of the General Statutes of North Carolina,

the legislature codified the common law doctrine of contributory

negligence    as    it   applies       in    product       liability     actions.        See

Nicholson    v.    Am.   Safety       Util.       Corp.,    488   S.E.2d      240,     243-44

(N.C. 1997).       In relevant part, Section 99B-4(3) provides:

       No manufacturer or seller shall be held liable in any
       product liability action if: . . . (3) The claimant
       failed   to  exercise   reasonable  care   under  the
       circumstances in the use of the product, and such


                                             16
      failure was a proximate cause of the occurrence that
      caused the injury or damage complained of.

N.C. Gen. Stat. § 99B-4(3) (emphasis added).

      We   consider       the    plain     words       of       Section          99B-4(3)    in

interpreting the statute.              See Frye Reg’l Med. Ctr., Inc. v.

Hunt, 510 S.E.2d 159, 163 (N.C. 1999).                          We are guided by the

principle of statutory construction that a statute should be

“construed, if possible, so that none of its provisions shall be

rendered       useless   or     redundant.            It    is       presumed       that     the

legislature intended each portion to be given full effect and

did not intend any provision to be mere surplusage.”                                       Porsh

Builders, Inc. v. City of Winston–Salem, 276 S.E.2d 443, 447

(N.C. 1981) (citation omitted); accord City of Concord v. Duke

Power Co., 485 S.E.2d 278, 282 (N.C. 1997).

      Applying     these      principles,       we    agree          with    Fontenot       that

Section    99B-4(3)      requires      that     the    claimant           have     “used”    the

product before the defense of contributory negligence can arise.

The   statute     plainly       provides      that,        in    a    product       liability

action,    a    manufacturer      or   seller     may       not      be     held    liable    if

“[t]he claimant failed to exercise reasonable care under the

circumstances in the use of the product.” 7                           N.C. Gen. Stat. §

99B-4(3) (emphasis added).

      7
       The term “claimant” is defined in the statute to include a
decedent if the claim has been asserted on behalf of the
decedent’s estate. N.C. Gen. Stat. § 99B-1(1).


                                           17
     TI urges us to interpret the statute as merely requiring

that a claimant failed to exercise reasonable care during an

incident involving anyone’s use of the product causing injury to

the claimant, without regard to whether the claimant actually

used the product at issue.           That interpretation, however, would

render superfluous or redundant the phrase “in the use of the

product.”    Under TI’s suggested construction, we would consider

only whether “[t]he claimant failed to exercise reasonable care

under the circumstances,” thereby ignoring the additional words

“in the use of the product” that the legislature included in

Section 99B-4(3).        We cannot reach such a result.              See Porsh

Builders, 276 S.E.2d at 447; cf. In re Hayes, 681 S.E.2d 395,

403 (N.C. Ct. App. 2009) (rejecting proffered interpretation of

statutory    provision     that   would     render    a     term   redundant).

Instead,    we   conclude     that    the   statute       unambiguously   bars

recovery by a claimant in a product liability action on the

ground of contributory negligence when the claimant has used the

product in some manner and has failed to exercise reasonable

care under the circumstances. 8

     We acknowledge that Section 99B-4(3) was amended by the

North    Carolina   General   Assembly,     effective      January   1,   1996,


     8
       For this reason, we reject TI’s argument concerning the
significance of the legislature’s use of the term “claimant” in
Section 99B-4(3), rather than the term “user.”


                                       18
along with other more substantive changes to various sections of

the product liability act.           See An Act of July 29, 1995, ch.

99B, 1995 N.C. Sess. Laws 522 (amending product liability act).

In relevant part, the prior version of Section 99B-4(3) provided

that   contributory     negligence    operates       to   bar   recovery         in   a

product liability action if “the claimant failed to exercise

reasonable    care   under    the   circumstances         in   his    use   of    the

product.”     N.C. Gen. Stat. § 99B-4(3) (1995) (emphasis added).

       TI   correctly   observes     that    an     amendment    to    a    statute

indicates that the legislature “intended to add to or to change

the existing enactment.”         State v. Mabry, 720 S.E.2d 697, 701

(N.C. Ct. App. 2011).         However, TI cites no legislative history

showing that this change in statutory language from “his” to

“the” was anything other than the legislature’s decision to make

the language of that provision gender-neutral.                  Moreover, under

North Carolina law, a court interpreting a statute may rely on

the statute’s legislative history only in instances in which the

statutory language is ambiguous.            See In re Vogler Realty, Inc.,

722 S.E.2d 459, 462 (N.C. 2012).             Because we conclude that the

language of Section 99B-4(3) is unambiguous, we do not further

consider    TI’s   argument    concerning     the    legislative       history        of

that provision.      See Diaz v. Div. of Soc. Servs., 628 S.E.2d 1,




                                      19
3 (N.C. 2006) (judicial construction of legislative intent is

not required when statutory language is clear). 9

     As   the     district    court   and     the    North   Carolina     Court   of

Appeals    both     have     observed,      every    North     Carolina    product

liability case addressing contributory negligence, whether under

the current or former version of Section 99B-4(3), has involved

a claimant’s actual use of the allegedly defective product.                       See

Fontenot v. Taser Int’l, Inc., 2012 WL 1379054, at *5 (W.D.N.C.

Apr. 20, 2012) (citing Nicholson v. Am. Safety Util. Corp., 476

S.E.2d    672,    679–680     (N.C.   Ct.     App.    1996),    aff’d     on   other

grounds, 488 S.E.2d 240 (N.C. 1997)).                The cases cited by TI do

not undermine the import of this observation. 10


     9
       Our colleague in dissent relies principally on several
North Carolina common law cases which, as discussed in this
opinion, are readily distinguishable. In our view, however, any
analysis   of   the  issue   whether  Turner  could  be   found
contributorily negligent under Section 99B-4 should begin with
the plain language of that statutory provision. As the Supreme
Court of North Carolina has held, “[s]tatutory interpretation
properly begins with an examination of the plain words of the
statute.”   Ocean Hill Joint Venture v. N.C. Dep’t of Env’t,
Health, & Natural Res., 426 S.E.2d 274, 277 (N.C. 1993)
(citation omitted).
     10
        The observation that North Carolina product liability
cases  applying   contributory  negligence  have  involved  the
claimant’s use of the allegedly defective product is consistent
with the discussion of contributory negligence in this context
as stated by well-recognized treatises. See, e.g., Am. L. Prod.
Liab. 3d § 40:9 (explaining that in the product liability
context, “the plaintiff is required to act reasonably with
respect to the product he or she is using” for purposes of
contributory negligence) (emphasis added); Restatement (Second)
(Continued)
                                         20
      In   the    two    primary       product      liability    cases     on     which   TI

relies, our decision in Jones v. Owens-Corning Fiberglas Corp.,

69 F.3d 712 (4th Cir. 1995), and the Supreme Court of North

Carolina’s       decision    in      Nicholson       v.   American    Safety        Utility

Corp., 488 S.E.2d 240 (N.C. 1997), the respective claimants used

the products at issue.               In Jones, the claimants, workers in a

factory in which products containing asbestos insulation were

manufactured,       sued    the      insulation’s         manufacturer          after   they

developed asbestosis and lung cancer.                     Jones, 69 F.3d at 715-16.

The   defendant         manufacturer      asserted         contributory          negligence

under Section 99B-4(3), arguing that the plaintiffs failed to

exercise     reasonable         care     “in     their     use   of       the     asbestos-

containing products” by continuing to smoke cigarettes, despite

the   hazards     relating      to     smoking      and   asbestos    exposure          being

“widely known.”         Id. at 719.

      This   Court       held     that    contributory        negligence          could   be

applicable under the defendant’s theory, but observed that the

defendant’s      “only     possibility         of    prevailing.      .    .     require[d]

proof that [the claimants] were given such a warning” about “the

synergistic effect of cigarette smoking and asbestos exposure.”

Id. at 721.       Thus, we stated in Jones that the “statutory focus”



of Torts § 388 cmt. f (noting that “[t]he person using the
chattel may disable himself from bringing an action [] by his
contributory negligence”) (emphasis added).


                                           21
of Section 99B-4(3) was not the claimants’ use of the product

“per   se,”    but,    instead,    was    whether          the   claimants   failed    to

exercise reasonable care under the circumstances in their “use

of the product.”        Id. at 721-22.             Our holding in Jones therefore

cannot    be   read    as   more    than      a     statement      that   contributory

negligence may bar a claimant’s recovery in a product liability

action    in   North     Carolina       if        the   evidence     shows    that    the

defendant warned the claimant of the injury that may result from

the claimant’s use of a product.                   We neither held nor implied in

Jones that a contributory negligence defense could be asserted

in cases in which the claimant did not use the product in any

manner.

       In the present case, the record is devoid of any evidence

that Turner knew or should have known that police deployment of

the    taser   could    cause     him    to       suffer    severe   cardiac    injury.

Indeed, the record is undisputed that neither Officer Dawson nor

any other members of the CMPD knew that such injury could be

caused by use of the taser near a subject’s heart.                           Thus, this

crucial factual distinction between the present case and the

circumstances discussed in Jones renders inapposite the ultimate

result we reached there.

       In Nicholson, an electrical lineman was injured when an

energized power line came in contact with his head after his

helmet was “blown off.”             488 S.E.2d at 241-42.                 That contact

                                             22
resulted in electricity surging through his body and exiting

through his hand, on which he was wearing a rubber safety glove

manufactured and sold by the defendants.                      Id. at 242.            In the

product    liability    action       filed      by     Nicholson,    the       defendants

asserted    a     contributory       negligence          defense,       arguing        that

Nicholson    failed     to    keep       his    helmet       properly     secured          and

continued working after it fell off.                    476 S.E.2d at 679.            After

the trial court granted summary judgment to the defendants, the

North Carolina Court of Appeals reversed, concluding that any

negligence on Nicholson’s part must relate to his use of the

gloves, and that the evidence did not establish that Nicholson

was negligent in such use.           Id. at 679-80.

      On appeal, the Supreme Court of North Carolina agreed that

summary judgment in favor of the claimant on the contributory

negligence defense was not appropriate, holding that issues of

fact needed to be resolved.              488 S.E.2d at 245.             Departing from

the   rationale     adopted    by     the       court    of    appeals,        the    court

explained    that   a   claimant’s        negligent          behavior    need        not    be

confined    to    the   claimant’s        use     of    the    product     itself          for

contributory      negligence        to     lie,        but    that      “all     of        the

circumstances during the plaintiff’s use of the product must be

considered, not just plaintiff’s conduct with respect to the

product    itself.”      Id.   at     244       (emphasis      added).         Thus,       the

decision in Nicholson, like the decision in Jones, did not hold

                                           23
that contributory negligence may apply even in cases in which

the defendant did not make any use of the product at issue.

     Instead, the holdings in Jones and Nicholson stand for the

unremarkable proposition, not at issue in this case, that so

long as the claimant was using the product during the events

that led to the injury, the claimant’s negligence need not arise

solely with respect to use of that product for a contributory

negligence defense to be available.       We further note that in two

other product liability cases cited by the parties involving a

contributory negligence defense, decided after Section 99B-4(3)

was amended, the claimants “used” the product at issue.               See

Muteff v. Invacare Corp., 721 S.E.2d 379 (N.C. Ct. App. 2012)

(electric    wheelchair      manufacturer     asserted      contributory

negligence defense after decedent’s wheelchair caught fire when

charging overnight while her metal necklace was in contact with

the live blades of the wheelchair’s charger cord); Lashlee v.

White Consol. Indus., Inc., 548 S.E.2d 821 (N.C. Ct. App. 2001)

(chainsaw manufacturer asserted contributory negligence defense

based on plaintiff’s operation of the chainsaw while standing on

a ladder without being secured to the tree).

     TI nevertheless asserts that its position is supported by

various   North   Carolina   court    decisions   outside   the   product

liability context that cite principles applicable to negligence



                                     24
claims generally.              However, the three North Carolina Court of

Appeals cases on which TI relies are inapposite.

      TI    first       cites    Hinton     v.      City    of    Raleigh,   in     which    a

robbery suspect was shot and killed by police officers following

the robbery.            264 S.E.2d 777, 778 (N.C. Ct. App. 1980).                          The

suspect’s mother brought an action against the City of Raleigh

and other defendants alleging a variety of claims, including

negligent supervision and training.                        Id.     The court of appeals

affirmed        the     award     of   summary        judgment       in    favor    of     the

defendants,           noting    that   the       evidence        established       that     the

decedent participated in an armed robbery in which a gun was

used, and that he “went into a crouching position and pointed

toward the officers” when he was ordered to halt.                               Id. at 779.

In   explaining         its    decision,     the     court       observed,   among        other

things,     that       the     decedent’s      own    actions       contributed      to    the

killing.        Id.

      Here,       in     contrast,     the       evidence        showed    that     Turner’s

actions did not proximately contribute to his killing, which was

caused     by    the     application      of     electrical        force   to     his     chest

rather than to other parts of his body.                          Nothing that Turner did

caused Officer Dawson to aim the taser at Turner’s chest, rather

than at another area of his body.                     Thus, the decision in Hinton

fails to support TI’s position.



                                               25
       TI next relies on Braswell v. N.C. A&T State University,

which       involved      a     claimant    who     was     injured      when          a    security

officer fired his pistol into the ground to disperse a crowd

seeking to break into a college gymnasium.                              168 S.E.2d 24, 29

(N.C.       Ct.   App.    1969).        The    court       of    appeals      held         that     the

plaintiff         was    contributorily        negligent         because      he       joined       the

crowd despite knowing that the members of the crowd were “acting

in an unruly and unlawful manner and that the officer had warned

them    to    stop       trying    to     break     in     the   doors.”           Id.       at     31.

Notably,      the       court    stated    that     by     joining      the   unruly          crowd,

“plaintiff assumed the risk of whatever injury he might receive

as a result.” 11          Id. (emphasis added).                 Accordingly, Braswell is

inapposite because the “assumption of risk” doctrine on which

the    Braswell         court    focused      has    not    been    raised         by       TI,   and,

indeed,      has    no    application         in    a    case    involving         a       theory   of

negligent failure to warn a product user of risks associated

with use of a product.

       Finally, TI relies on Benton v. Hillcrest Foods, Inc., a

case in which the claimants were shot in a restaurant by other

patrons during a confrontation, but were barred from recovering

damages       from       the      restaurant’s           owner     on     the          ground       of


       11
        The assumption of risk doctrine is distinct from the
contributory negligence doctrine under North Carolina law.    See
Sasser v. Hales Bryant Lumber Co., 81 S.E. 320, 321 (N.C. 1914).


                                               26
contributory        negligence.       524    S.E.2d       53,      58    (N.C.      Ct.    App.

1999).      The facts in Benton included the claimants’ acts of

intentional provocation toward the shooters, and the claimants’

refusal to leave the restaurant through an available back door

despite their knowledge that the shooters had left temporarily

to obtain loaded guns from their car.                     Id.       Thus, the facts in

Benton are starkly different from those before us, rendering its

holding inapposite to the present case.

       We   again    note   the   absence         of    any   North       Carolina        cases

finding contributory negligence in a product liability action in

which the claimant did not use the product at issue.                                       This

absence     of    analogous   North     Carolina         case      law    is    significant

because,     in    construing     the   common         law    of    a    state,      we    have

declined     to    expand   state    common       law    principles            to   encompass

novel circumstances when the courts of that state have not done

so first.         See Time Warner Entm’t-Advance/Newhouse P’ship v.

Carteret-Craven       Elec.   Membership          Corp.,      506    F.3d       304,     314-15

(4th     Cir.     2007)     (“Time      Warner         has    proffered             no    cases

interpreting        North   Carolina        law    to    extend          the    common      law

prohibition . . . and we have found none. . . .                                 We conclude

accordingly that as a court sitting in diversity, we should not

create or extend the North Carolina common law.”); Burris Chem.,

Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir. 1993) (federal

courts adjudicating issues of state law “rule upon state law as

                                            27
it exists and do not surmise or suggest its expansion”).                                In our

view, it would be an expansion of North Carolina law if we

permitted a contributory negligence defense here, when such a

defense is not supported by the plain language of Section 99B-

4(3),   and    when     there    are    no     analogous      North       Carolina       cases

supporting     the     availability       of       that    defense    under       the    novel

circumstances presented.

      Finally, we observe that application of the contributory

negligence     doctrine         under     the       present    circumstances             would

absolve TI of its responsibility to provide adequate warnings to

persons    using       TI’s    tasers,       and    effectively       would       grant     TI

immunity from suit in North Carolina negligence actions that are

based on police use of a taser on a suspect resisting arrest.

At   its   core,      TI’s     position      is     that    contributory          negligence

should be applied as a blanket proposition to bar recovery for

all incidents in which a person is involved in a dispute, does

not surrender to authorities, and is subdued or killed by a

police officer’s use of a taser.                      Such a situation, however,

will be present in nearly every instance in which a taser is

deployed      by   a     law    enforcement          officer.             Moreover,       such

circumstances are the very reason why law enforcement agencies

use products like the X26 taser.

      Accepting TI’s argument would have additional significant

consequences,      as    TI    essentially         would    have     no    duty    in    North

                                             28
Carolina to safely design its products or to provide adequate

warnings to law enforcement customers such as the CMPD.                        We do

not think that the Supreme Court of North Carolina would create

such an extreme result based on the facts presented here.                           For

these reasons, we hold that the district court did not err in

precluding      TI     from   asserting       contributory     negligence      as    an

affirmative defense.

                                            B.

     We    next       consider   TI’s    argument     that   the    district    court

erred in failing to direct a verdict in TI’s favor because the

evidence   purportedly          failed   to      establish   that   an   appropriate

warning about the dangers of the X26 taser would have caused

Officer Dawson to use the taser in a different manner.                               We

disagree with TI’s argument.

     We review de novo the district court’s denial of a Rule 50

motion for judgment as a matter of law, considering the evidence

in the light most favorable to Fontenot as the nonmoving party.

See Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489-90

(4th Cir. 2005).          If a verdict in favor of the nonmoving party

“would necessarily be based upon speculation and conjecture,”

judgment   as     a    matter    of   law     must   be   entered   in   the   moving

party’s favor.          Id. at 489.         However, “[i]f the evidence as a

whole is susceptible of more than one reasonable inference, a



                                            29
jury issue is created and a motion for judgment as a matter of

law should be denied.”           Id. at 489-90.

     Under North Carolina law, a claimant bringing a product

liability action under a failure to warn theory must establish

that the defendant’s failure to provide an adequate warning or

instruction was “a proximate cause of the harm.”                            N.C. Gen.

Stat. § 99B-5(a).         After reviewing the present record, we hold

that there is sufficient evidence from which the jury could have

concluded that Officer Dawson would have used the X26 taser in a

different manner had TI provided an adequate warning concerning

the dangers of firing the taser to make contact near a person’s

heart.    Officer Dawson testified that he read Taser’s training

materials, which stated that when the X26 taser was tested the

device    was   found    to   have    had      no    effect    on   heart    rhythms.

Officer    Dawson       stated     that     he      received    such   information

concerning      the   taser’s     safety    during      a   “refresher”      training

course as recently as a month before the incident occurred.                        He

also testified about instructions that he received from CMPD

trainers, who used TI’s training materials, to aim the taser at

a suspect’s chest. 12         In sum, the gravamen of Officer Dawson’s


     12
         Officer Dawson’s receipt and understanding of the
information provided by TI distinguishes this case from Edwards
v. ATRO SpA, 891 F. Supp. 1074 (E.D.N.C. 1995), on which TI
relies. In Edwards, the court held that the plaintiff could not
prevail on a failure-to-warn theory against a manufacturer of a
(Continued)
                                          30
testimony was that he deployed the taser on Turner based on the

information provided by TI that the X26 taser was safe to use,

could not cause cardiac arrest, and did not present an elevated

risk of injury when the device’s darts were positioned near a

person’s heart.

      Additionally, Captain Campagna, who administered the CMPD’s

taser    program,   testified    that    until      Turner’s   death,         officers

were instructed that TI’s testing showed that the X26 taser did

not   affect    heart    rhythms,     even   when    applied   to       a   suspect’s

chest.    Captain Campagna further testified that he “absolutely”

would    have   wanted    to   know    if    testing    showed      a       risk   that

application of the X26 taser to the chest of a suspect could

affect the suspect’s heart rhythms.

      Given that Captain Campagna had issued a memorandum to CMPD

officers relaying the additional safety information provided by

TI in its June 2005 Training Bulletin, the jury reasonably may

have inferred that Captain Campagna would have informed Officer

Dawson and other CMPD officers of warnings concerning a risk of

serious cardiac injury from use of TI’s tasers near a person’s

heart.    Further, the jury reasonably may have inferred that such

information would have affected Officer Dawson’s understanding



nail gun that had been discharged accidentally, because neither
the plaintiff nor his co-worker had read or obtained the owner’s
manual for the nail gun. See id. at 1078.


                                        31
of the risks involved in use of the taser, and would have caused

Officer    Dawson     to   aim     the    taser    at   a    different       location     on

Turner’s     body.         Therefore,       we     conclude      that    the       evidence

supports     the   jury’s    finding        that   TI’s      failure    to    provide     an

adequate warning was a proximate cause of Turner’s death.

      For these reasons, we reject TI’s argument that Fontenot

did not establish a causal link between TI’s failure to issue

warnings     concerning      the     risk    of    cardiac      arrest       and    Officer

Dawson’s use of the taser on Turner’s chest.                           Accordingly, we

hold that the district court did not err in denying this aspect

of TI’s motion for judgment as a matter of law.

                                            C.

      TI also argues that the district court erred in failing to

award judgment in TI’s favor on the basis of product misuse.                              TI

contends that, as a matter of law, Officer Dawson misused the

X26 device by employing it on Turner for 37 continuous seconds,

and   that     such   misuse       was    contrary      to    the    instructions        and

warnings provided by TI.            We disagree with TI’s argument.

      We   review     de    novo    the     district      court’s      denial      of   TI’s

motion for judgment as a matter of law on the issue of product

misuse.      See Myrick, 395 F.3d at 489.                   Judgment as a matter of

law   should    not   be    entered       unless    the      court   concludes,         after

reviewing the entire record and considering it in the nonmoving

party’s favor, that “the evidence presented supports only one

                                            32
reasonable verdict, in favor of the moving party.”                   Dotson v.

Pfizer, 558 F.3d 284, 292 (4th Cir. 2009) (citation omitted).

      North Carolina General Statutes Section 99B-4(1) provides,

in relevant part, that “[n]o manufacturer or seller shall be

held liable in any product liability action if: (1) The use of

the   product   giving    rise   to   the   product   liability   action    was

contrary to any express and adequate instructions or warnings

delivered with, appearing on, or attached to the product . . .

.” (Emphasis added.)         See Lienhart v. Dryvit Sys., Inc., 255

F.3d 138, 148 (4th Cir. 2001) (under N.C. Gen. Stat. § 99B-4(1),

failure to follow “express and adequate instructions” precludes

recovery   in   product    liability    action).      TI   asserts   that   its

warnings, including the June 2005 Training Bulletin, adequately

informed users that the taser should not be employed for an

extended duration.        TI’s warning on this point in the Bulletin

stated as follows:

      Repeated, prolonged, and/or continuous exposure(s) to
      the TASER electrical discharge may cause strong muscle
      contractions    that   may    impair    breathing   and
      respiration, particularly when the probes are placed
      across the chest or diaphragm.      Users should avoid
      prolonged,   extended,   uninterrupted   discharges  or
      extensive multiple discharges whenever practicable in
      order to minimize the potential for over-exertion of
      the subject or potential impairment of full ability to
      breathe over a protracted time period.

(Emphasis added.)




                                       33
      Our review of this warning, in conjunction with the other

evidence in the case, leads us to conclude that the jury had

ample      grounds    on   which    to     find   that    the    warning    was    not

“adequate.”          As an initial matter, the warning pertains to a

temporary breathing problem, rather than to the more serious

risk of cardiac arrest.

      More     fundamentally,       however,      the    terms    “prolonged”      and

“continuous” found in the warning are not further defined and,

thus, are vague in the absence of further clarification, which

was not provided by TI.             Instead, TI’s Chief Executive Officer

Patrick Smith conceded during his testimony that TI did not give

“precise guidance” to users of the X26 taser concerning “the

safe length of a discharge cycle.”                Smith further testified that

“we don’t set a hard and fast limit,” and agreed that “[a] cop

can’t look and say, don’t go beyond 15 seconds or 20 or 30 or 40

or anything like that.”

      Additionally, a jury also could conclude that the warning’s

“whenever     practicable”        clause    rendered     the    warning    vague   and

inadequate.       Captain Campagna testified that he interpreted the

“whenever practicable” language to mean that the taser could be

applied continuously until the suspect fell to the ground or

otherwise was secured.            Likewise, Officer Dawson testified that

he   did    not   think    that    it    was    “practicable”     to   release     the

taser’s trigger while Turner remained standing in defiance of a

                                           34
command to “get down.”               Thus, based on the present record, TI’s

warnings     concerning         prolonged    application      of     the    X26   taser

cannot be deemed “adequate” as a matter of law under Section

99B-4(1).       Accordingly, we hold that the district court did not

err in denying TI’s motion for judgment as a matter of law on

the issue of product misuse. 13

                                            D.

     Finally,      we     consider        TI’s   argument     that    the     district

court’s remittitur decision resulted in an excessive award that

was not supported by the evidence. 14                TI contends that Fontenot

failed     to    prove     to    a     reasonable    level    of     certainty      her

entitlement to an award of that amount.                       Fontenot argues in

opposition      that     the    damages     at   issue   in   this    case    are   not



     13
       We are not persuaded by TI’s reliance on Marquez v. City
of Phoenix, 693 F.3d 1167, 1172-73 (9th Cir. 2012), in which the
Ninth Circuit held that TI’s warnings concerning the X26 taser
were adequate and “capture[d] the circumstances of [that] case.”
Among other distinguishable facts, at issue in Marquez was the
repetitive use of the X26 taser, rather than the duration of the
continuous taser use that is at issue here. Notably, the police
officers in Marquez pulled the taser’s trigger 22 times, and the
record was unclear concerning the total duration for which
Marquez was subjected to the taser’s electrical current. Id. at
1171-72.
     14
        As discussed previously, the district court reduced the
jury’s initial award of $10 million in compensatory damages to
$7.5 million, further remitted the award to about $6.15 million
after accounting for present value, and reduced that total to
about $5.5 million after deducting money Fontenot received from
Food Lion’s workers compensation fund and the City of Charlotte.


                                            35
capable    of     precise   measurement,        and   that   the    district       court

acted within its discretion in its decision on the remittitur.

     We     review    for     abuse   of    discretion       a    district       court’s

decision     with    respect     to   a    motion     alleging      that     a    jury’s

compensatory damages award is excessive as a matter of law.                         See

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435–39

(1996); Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th

Cir. 1999).        In a diversity action, federal courts apply state

law standards in considering whether the district court abused

its discretion when ruling on a motion relating to a jury’s

damages award.       Konkel, 165 F.3d at 280-81.             In undertaking this

review, we give “the benefit of every doubt to the judgment of

the trial judge.”        Id. (citation omitted).

     In the present case, Fontenot sought compensatory damages

under     North    Carolina     General     Statutes      Section     28A-18-2,      on

behalf of herself and Turner’s father whom Fontenot had divorced

when Turner was about four years old.                   In relevant part, that

statute allows for “compensation for the loss of the reasonably

expected . . . [s]ervices, protection, care and assistance of

the decedent,” and for the “[s]ociety, companionship, comfort,

guidance,       kindly      offices       and    advice      of     the      decedent”

(collectively, services, care, and companionship), in addition




                                           36
to hospital and funeral expenses. 15                 N.C. Gen. Stat. § 28A-18-

2(b)(4)(b-c).

      North Carolina courts recognize that such damages often are

not capable of “exact ascertainment.”                     Bowen v. Constructors

Equip.     Rental       Co.,      196   S.E.2d       789,     806    (N.C.      1973).

Nevertheless,       “damages      available      under      the   statute    are   not

automatic,” and instead “must be proved to a reasonable level of

certainty, and may not be based on pure conjecture.”                          DiDonato

v. Wortman, 358 S.E.2d 489, 493 (N.C. 1987) (emphasis added).

      As an initial matter, we observe that the only methodology

suggested    by        Fontenot    to   aid     the      jury’s     calculation    of

compensatory damages was counsel’s suggestion that the jury

      take just some arbitrary, small, conservative number,
      like $1,000 for a week.     Or if we were to take a
      bigger number like $2,000 for a week of this loss.
      And multiply it out [over a 40 year life expectancy],
      being conservative, rounding it down, you would get
      for each plaintiff, a range of let’s say between [$]2
      and [$]4 or $5 million.

(Emphasis added.)         In initially reducing the damages award from

$10   million     to    $7.5    million,     the     district     court     referenced

counsel’s    suggested         methodology      in    determining     the    “highest




      15
         The statute also allows for the recovery of the
decedent’s pain and suffering and the net income of the
decedent, see N.C. Gen. Stat. § 28A-18-2(b)(2), (b)(4)(a), but
Fontenot did not seek such damages in this case. Additionally,
the parties stipulated that Turner’s medical and funeral
expenses totaled $10,843.52.


                                           37
amount the jury could have properly awarded,” and stated that

the evidence supporting damages was “relatively thin.”

       Notably, Fontenot failed to present any evidence showing

that    Turner’s        services,      care,     and       companionship       had    a    value

approaching        $1000-$2000         per    week,    per    parent.          Additionally,

there       was    no     testimony      concerning          whether,       and      for    what

duration,         Turner’s       parents       reasonably           expected       Turner    to

continue         providing      services       such    as    babysitting        his    younger

siblings         and    assisting      with    household       chores.         Accordingly,

Fontenot essentially invited the jury and the district court to

engage      in    the    type   of     “pure    conjecture”         that    North     Carolina

courts have prohibited.              See DiDonato, 358 S.E.2d at 493.

       We    nonetheless         observe       that    the     testimony       of     Turner’s

parents demonstrated their close relationships with Turner, as

well as Turner’s good character.                      We have no doubt that Turner

had significant value to his parents, and that they are entitled

to a substantial award for the loss of his services, care, and

companionship.            However,      we     cannot       agree    that    the     evidence,

viewed in the light most favorable to Fontenot, met the required

“reasonable level of certainty” to establish that such services,

care, and companionship had a monetary value approaching $6.15

million.          See    id.      In    reaching       a    contrary       conclusion,      the




                                               38
district court abused its discretion.         Accordingly, we hold that

TI is entitled to a new trial on damages. 16



                                      III.

     For these reasons, we affirm the district court’s judgment

upholding   the   jury   verdict   imposing   liability     on   TI   for    its

negligence.       We   vacate   the    district   court’s    judgment       with

respect to the remitted award of compensatory damages, and we

remand the case to the district court for a new trial limited to

the issue of damages.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




     16
       In view of our holding that TI is entitled to a new trial
on the issue of compensatory damages, we do not consider TI’s
additional   argument  that   the  district  court   abused  its
discretion in declining to give certain jury instructions
related to the determination of damages.


                                       39
TRAXLER, Chief Judge, dissenting:

        Because I believe TI was entitled to judgment as a matter

of law on the basis of contributory negligence, I respectfully

dissent. 1

       We review the denial of a judgment as a matter of law de

novo.       See Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279

(4th Cir. 1999).              We must grant judgment as a matter of law

against a party on a claim when she “has been fully heard” on

that       claim   and   “a   reasonable   jury   would   not    have    a   legally

sufficient evidentiary basis to find” in her favor.                     See Fed. R.

Civ. P. 50(a).           “Because we are sitting in diversity, our role

is to apply the governing state law, or, if necessary, predict

how the state’s highest court would rule on an unsettled issue.”

Horace Mann Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d

327, 329 (4th Cir. 2008).             When a state’s highest court has not

directly       spoken     to     an   issue,    decisions       of   the     state’s

intermediate appellate court “constitute the next best indicia

of what state law is, although such decisions may be disregarded

if the federal court is convinced by other persuasive data that

the highest court of the state would decide otherwise.”                      Liberty

       1
       In moving for judgment as a matter of law at the close of
the plaintiff’s case and renewing that motion at the close of
defendant’s case and after the jury verdict, TI consistently
relied on its argument that, as a matter of law, Turner’s
contributory negligence barred any liability. See Fed. R. Civ.
P. 50.


                                           40
Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th

Cir. 1992) (internal quotation marks omitted).

     In North Carolina, “[e]very person having the capacity to

exercise   ordinary     care   for   his       own    safety   against   injury      is

required by law to do so, and if he fails to exercise such care,

and such failure, concurring and cooperating with the actionable

negligence of defendant, contributes to the injury complained

of, he is guilty of contributory negligence.”                   Clark v. Roberts,

139 S.E.2d 593, 597 (N.C. 1965).                     Thus, under North Carolina

common law, no recovery may be had in tort for the plaintiff’s

injuries   when   his    failure     to    exercise      reasonable      care   is    a

proximate cause of his injuries.                 See Holderfield v. Rummage

Bros. Trucking Co., 61 S.E.2d 904, 906 (N.C. 1950). 2

     Here, after being fired for insubordination, Turner refused

to leave the store, even when Blackert told him she was calling

the police.       When store manager Antwan Wesley arrived at the

store, Turner began yelling and cursing at him and aggressively

advancing on him like he wanted to fight.                  As Wesley retreated,

Turner slung a display and threw an umbrella.

     2
       North Carolina is one of only four states – and the
District of Columbia – that continue to adhere to this all-or-
nothing doctrine. Most states have instead adopted a system of
comparative negligence, which apportions damages between a
negligent plaintiff and negligent defendant according to their
relative degree of fault rather than completely barring the
negligent plaintiff’s recovery. See Coleman v. Soccer Ass’n of
Columbia, 69 A.3d 1149, 1160 & n.3 (Md. 2013).


                                          41
      Responding to Blackert’s call, Charlotte-Mecklenburg Police

Officer Dawson then entered the store.                  As Turner pivoted and

saw Dawson walking toward him with his X26 unholstered, Turner

said, “F**k the police,” and turned back to Wesley.                          J.A. 650

(internal quotation marks omitted).             Dawson told Turner to calm

down, but Turner continued to act “very aggressively” toward

Wesley with “his hands clenched, his fists balled up” as if “he

was getting ready to lunge at him.”              J.A. 313-14.          Turner then

turned    toward   Officer    Dawson,     and   walked    toward       him    with    a

“swaggerly, macho type of a walk,” looking like he was going to

fight Officer Dawson.        J.A. 607.

      Dawson aimed his X26 at Dawson.              Turner looked down, saw

the laser dot on his chest, but continued to step toward Dawson

with his fists clenched.             As Turner got within 3-5 feet of

Dawson, Dawson deployed his Taser and the probes struck Turner

near the sternum.      Even then, Turner refused to submit.                   Rather,

he continued walking and picked up a metal bag rack and threw

it.      Attempting   to   protect    himself    and    the    store    customers,

Dawson continued to hold the trigger down as Turner continued to

refuse     Dawson’s   commands      to   get    down.         Turner    eventually

collapsed and died from ventricular fibrillation.

      Several cases from the North Carolina Court of Appeals with

facts    analogous    to   ours     demonstrate    as     a    matter    of     North

Carolina     law   that    Turner     was     contributorily       negligent         in

                                         42
continuing his aggressive behavior even after the officer told

him to calm down and even after he drew his Taser and pointed it

at   Turner.        Most    relevant     is   Braswell   v.    N.C.   A&T   State

University, 168 S.E.2d 24, 30-31 (N.C. Ct. App. 1969), wherein

the court applied the doctrine of contributory negligence to

reverse a damage award made by the North Carolina Industrial

Commission.     In that case, the plaintiff had joined a mob that

was attempting to force gymnasium doors open at a public dance,

and he was accidentally struck by a ricocheted bullet fired by a

campus security officer.            The North Carolina Court of Appeals

concluded      as    a     matter   of    law    that    the    plaintiff     was

contributorily negligent and that his negligence was a proximate

cause of his injuries:

     It seems to us that it was reasonably foreseeable that
     the security officer would undertake to perform his
     duty to prevent an illegal breaking and entry of the
     building, and that someone in the crowd was likely to
     be injured in the process. It also seems that a
     reasonably prudent person, in the exercise of due care
     for his own safety, would not participate in mob
     action which was clearly intended to be in violation
     of the law and contrary to reasonable conduct. Every
     person is charged with the duty of exercising
     reasonable care for his own safety, and the joining in
     illegal mob action is not an exercise of reasonable
     care; in so doing plaintiff assumed the risk of
     whatever injury he might receive as a result. In
     addition, the illegal conduct of the mob of which the
     plaintiff was voluntarily a part was such as would
     reasonably be calculated to provoke the security
     officer into taking some action to disperse the mob.

          We think the facts, as found by the Commission,
     give rise to one inference only, and that is-that the

                                         43
        plaintiff was contributorily negligent in joining and
        rejoining the crowd. He knew they were acting in an
        unruly and unlawful manner and that the officer had
        warned them to stop trying to break in the doors.
        With this knowledge, he voluntarily became a member of
        the crowd on two occasions, and was rejoining the
        crowd a third time when he was shot.    We think these
        facts point to only one conclusion; that is, the
        plaintiff was contributorily negligent as a matter of
        law.

Id. at 30-31 (emphasis added). 3          The very same reasoning applies

here.      By   continuing   to   act   in   a   hostile   manner,   including


     3
          In  the   context   of   the   discussion  of  why  the
plaintiff’s contributory negligence barred recovery, Braswell
stated that by joining the mob, “plaintiff assumed the risk of
whatever injury he might receive as a result.” Braswell v. N.C.
A&T State Univ., 168 S.E.2d 24, 31 (N.C. Ct. App. 1969).
However, by use of the words “assumed the risk,” the Braswell
court plainly did not intend to invoke a legal doctrine separate
from contributory negligence.    Rather, the sentence in question
merely reflects that a “[p]laintiff may be contributorily
negligent if his conduct ignores unreasonable risks or dangers
which would have been apparent to a prudent person exercising
ordinary care for his safety.”     Jenkins v. Lake Montonia Club,
Inc., 479 S.E.2d 259, 263 (N.C. Ct. App. 1997) (holding that, as
a matter of law, contributory negligence barred a plaintiff’s
recovery from injuries from hitting his head on the bottom of a
swimming area after diving off a slide when “[t]he danger of
striking the bottom of the swimming area when diving head first
into shallow water was obvious to plaintiff”); see also
Dalrymple v. Sinkoe, 53 S.E.2d 437, 440 (N.C. 1949) (in
analyzing claim of contributory negligence, stating that “a
buyer who uses the article after he discovers [that the article
is not safe to use in the manner he is using it] will be held to
have assumed all the risk of damage to himself, notwithstanding
the seller’s assurance of safety”); Deaton v. Board of Trustees
of Elon College, 38 S.E.2d 561, 565 (N.C. 1946) (“‘It has been
repeatedly held that where one knowingly places himself in a
place of danger which he might easily have avoided he assumes
all the risks incident thereto.’”). That is exactly the way in
which TI has consistently argued that Turner was contributorily
negligent: Like the plaintiff in Braswell, Turner’s conduct
(Continued)
                                        44
saying “F**k the police” when Officer Dawson walked in, J.A.

309, 650, continuing to act “very aggressively” toward Wesley

with “his hands clenched, his fists balled up” as if “he was

getting   ready     to   lunge   at   him,”    J.A.   313-14,    walking   toward

Officer Dawson with a “swaggerly, macho type of a walk” looking

like he was going to assault Dawson, J.A. 607, and then refusing

to submit even when he was being shocked with the X26, Turner

took unreasonable actions that a reasonable person would realize

would prompt a physical response – and then a further physical

response – from Officer Dawson.               By virtue of this negligence,

Turner “assumed the risk of whatever injury he might receive as

a result.”    Braswell, 168 S.E.2d at 31; cf. Benton v. Hillcrest

Foods, Inc., 524 S.E.2d 53, 58 (N.C. Ct. App. 1999) (holding

that   when        plaintiffs     engaged       others    with     belligerent,

confrontational behavior, failed to leave restaurant when they

had the opportunity to avoid escalation of physical violence,

and then were injured in the resulting confrontation, it gave

rise to reasonable inference that plaintiffs were contributorily

negligent     in     a    lawsuit     against     restaurant’s      owner     and

franchisor); see also Hinton v. City of Raleigh, 264 S.E.2d 777,

779 (N.C. Ct. App. 1980) (affirming summary judgment against




ignored the risk that the officer would hurt him in attempting
to respond to his reckless conduct.


                                        45
plaintiff robbery suspect when suspect committed armed robbery,

refused to surrender when ordered by police, moved aggressively

toward a police officer, and was later shot by that officer).

      Fontenot argues that any negligence by Turner was not the

proximate cause of his injuries because the particular hazard

that befell him – having his heart stopped by the X26 – was

unforeseeable to someone in his position.                   However, although

foreseeability of injury is an essential element of proximate

cause, “[i]t is not required that the injury in the precise form

in which it occurred should have been foreseeable but only that,

in the exercise of reasonable care, consequences of a generally

injurious nature might have been expected.”                McNair v. Boyette,

192   S.E.2d    457,    461   (N.C.    1972)   (emphasis    added);   see    also

Braswell, 168 S.E.2d at 31 (“[T]he joining in illegal mob action

is not an exercise of reasonable care; in so doing plaintiff

assumed   the    risk    of   whatever    injury    he    might   receive    as   a

result.”).       Here,    Turner      obviously    knew   Officer   Dawson    had

pulled out his Taser, focused its laser sight on Turner’s chest,

and was prepared to shoot Turner with enough electrical current

to cause his collapse if necessary, yet in the face of all this

Turner continued to advance on the officer in a hostile manner.

Certainly it was foreseeable, if not obvious, that Turner would

be injured by the officer’s response.



                                         46
      Fontenot next contends that regardless of how the doctrine

of    contributory     negligence      would        apply         in   a    non-products-

liability    case,     language     in        the       North       Carolina    Products

Liability Act (“the Act”) prevents application of the doctrine

here.     The plaintiff contends that any contributory negligence

on Turner’s part in the fatal incident cannot be a defense to

the   products   liability      action    against           the     Taser   manufacturer

because Turner was not the user of the product, the Taser.                                I

disagree.    The North Carolina General Assembly adopted the Act,

which added the new Chapter 99B to the North Carolina Code,

effective October 1, 1979.             See 1979 N.C. Sess. Laws Ch. 654.

The Legislative Research Commission, which was directed by the

General     Assembly     to    study      the       law,       explained       that     the

comprehensive legislation was designed to protect manufacturers,

retailers, and wholesalers from “rapidly escalating premiums for

products     liability        insurance        and          [the]      potential       non-

availability     of    such    coverage       .     .   .    [b]y      codifying      North

Carolina’s case law, removing uncertainty in the statutes of

limitations for products liability actions, and by establishing

an absolute time after the purchase of a product beyond which no

action can be maintained.”          Product Liability Report to the 1981

General Assembly at 2 (Jan. 14, 1981).




                                         47
     N.C.G.S.        § 99B-4     concerns    the    doctrine    of    contributory

negligence in products liability cases.                 As originally enacted,

it provided:

     No manufacturer or seller shall be held liable in any
     product liability action if:

          (1) the use of the product giving rise to the
     product liability action was contrary to any express
     and adequate instructions or warnings delivered with,
     appearing on, or attached to the product or on its
     original container or wrapping, if the user knew or
     with the exercise of reasonable and diligent care
     should have known of such instructions or warnings;
     provided, that in the case of prescription drugs or
     devices   the   adequacy   of the   warning   by  the
     manufacturer shall be determined by the prescribing
     information made available by the manufacturer to the
     health care practitioner; or

          (2) the user discovered a defect or unreasonably
     dangerous condition of the product and was aware of
     the danger, and nevertheless proceeded unreasonably to
     make use of the product and was injured by or caused
     injury with that product; or

         (3) The claimant failed to exercise reasonable
    care under the circumstances in his use of the
    product, and such failure was a proximate cause of the
    occurrence that caused injury or damage to the
    claimant.

See 1979 N.C. Sess. Laws Ch. 654 (emphasis added). 4                     Effective

January    1,   1996,      the   legislature   amended    the   Act    in   several

respects.       As    is    relevant   here,       § 99B-4(3)   was    changed   as

follows:


    4
       “‘Claimant’ means a person or other entity asserting a
claim and, if said claim is asserted on behalf of an estate, an
incompetent   or  a   minor,   ‘claimant’  includes  plaintiff’s
decedent, guardian, or guardian ad litem.” N.C.G.S. § 99B-1(1).


                                        48
              (3) The claimant failed to exercise reasonable
         care under the circumstances in histhe use of the
         product, and such failure was a proximate cause of the
         occurrence that caused the injury or damage to the
         claimantcomplained of.

1995 N.C. Sess. Laws Ch. 522.

         Consistent         with    the      General         Assembly’s         intention       in

enacting        the    Act,        the    North       Carolina         Supreme     Court     has

consistently held that the effect of § 99B-4(1) and (3) – in

their pre-amendment form – was “merely [to] codify the doctrine

of contributory negligence as it applies in” products liability

actions, and to “set[] out or explain[] more specialized fact

patterns     which      would       amount       to   contributory         negligence      in    a

products liability action.”                  Champs Convenience Stores, Inc. v.

United Chem. Co., 406 S.E.2d 856, 860 (N.C. 1991).                                     Thus, the

court     has     emphasized        that     “[i]n      a    product      liability       action

founded      on    negligence,           there    is    no       doubt    that    plaintiff’s

contributory negligence will bar his recovery to the same extent

as   in    any    other      negligence       case.”         Smith       v.   Fiber     Controls

Corp., 268 S.E.2d 504, 506 (N.C. 1980) (alterations omitted).

         Drawing on the language of § 99B-4(3), Fontenot maintains

that     because      the    statute       refers      to    a   claimant       “fail[ing]      to

exercise reasonable care under the circumstances in the use of

the product,” a claimant can be found contributorily negligent

in   a    products      liability         case    only      if    he     used    the    product.

Fontenot argues that if we do not construe “in the use of the

                                                 49
product”    to   limit     the    type    of    negligence         on   the    part       of   a

claimant that can bar recovery, we are essentially reading that

language out of the statute.              Were we writing on a clean slate,

Fontenot’s       proposed     construction           might     have      some        appeal.

Unfortunately for Fontenot, however, her argument is clearly in

conflict     with    the    North    Carolina         Supreme      Court,       which      has

construed the statute as merely codifying preexisting common law

rules      and      establishing         their        application          in        certain

particularized fact patterns without making any new rules for

products liability cases.            Indeed, we have already rejected a

construction      very     similar   to    the      one   Fontenot      urges        on   this

basis and so has the North Carolina Supreme Court.                            See Jones v.

Owens-Corning       Fiberglas     Corp.,       69    F.3d    712    (4th      Cir.    1995);

Nicholson v. American Safety Util. Corp., 488 S.E.2d 240 (N.C.

1997) (“Nicholson II”).

      In Jones, the plaintiffs worked for many years for a plant

that manufactured a product insulated with asbestos.                            Exposed to

asbestos on a daily basis, the plaintiffs eventually developed

asbestosis and lung cancer and later filed products liability

suits against the asbestos manufacturer.                        The district court

consolidated the cases and granted partial summary judgment to

the   plaintiffs     on     the   issue    of       whether   they      could     be      held

contributorily negligent as a result of their long-term smoking.

When the plaintiffs later prevailed on their claims at trial,

                                           50
the   defendant       appealed,     arguing,           as   relevant     here,    that   the

district court erred in granting partial summary judgment on the

contributory negligence issue.

      We reversed the judgment.                  In so doing, we considered the

argument that § 99B-4(3)’s reference to a plaintiff’s “fail[ure]

to exercise reasonable care under the circumstances in his use

of the product” demonstrated that in products liability actions

a plaintiff’s negligence can only bar recovery if it is the

plaintiff’s use of the product that is negligent.                                See id. at

719-22.     We       noted,   however,      that        the    North    Carolina      Supreme

Court has held that § 99B-4(3) “‘reaffirms the applicability of

contributory         negligence        as   a        defense    in     product    liability

actions’”      and    “‘merely    codifies            the   doctrine     of    contributory

negligence as it applies in actions brought under Ch. 99B.’”

Id. at 719 (quoting Smith, 268 S.E.2d at 510, and Champs, 406

S.E.2d at 860) (alteration omitted).                           We therefore concluded

that “the statutory focus [of § 99B-4(3)] is not . . . merely on

[the plaintiffs’] ‘use of the product’ per se” but rather on

whether   they       “‘failed     to    exercise         reasonable      care    under   the

circumstances in [their] use of the product.’”                             Id. at 721-22

(emphasis omitted) (final alteration in original).                              We observed

that our interpretation was “based on the plain language of the

entire statute . . . and the definitive interpretation placed

thereon   by    the     North    Carolina        Supreme       Court,    not     on   certain

                                                51
statutory language read in isolation.”                         Id. at 721.          Because

under   the     plaintiffs’       own    theory    of    the    case,      their    smoking

combined      with    their      asbestos    exposure         “‘synergistically’”          to

substantially increase their risk of getting lung cancer, we

concluded     that      their    long-term       smoking      could   be    found    to    be

contributory negligence barring their recovery.                       Id. at 720.

       Citing     Jones    with       approval,    the       North    Carolina      Supreme

Court reached a similar conclusion on similar facts in Nicholson

II.     In that case, the plaintiff, an electrical lineman, was

working on a project extending an overhead power line.                              He was

wearing a protective helmet and safety gloves, but his helmet

blew off multiple times and he eventually decided to continue to

work    without      retrieving       it.    When       an    energized     line    either

touched or came close to touching his unprotected head, he was

severely injured.              In a products liability action against the

manufacturer      and     distributor       of    the    gloves,      the   trial     court

granted summary judgment against the plaintiff, concluding, as

is relevant here, that recovery was barred as a matter of law

under the doctrine of contributory negligence because of his

continuing to work after he lost his helmet.                      See id. at 243.

       On appeal to the North Carolina Court of Appeals, plaintiff

maintained that “contributory negligence does not apply unless

plaintiff’s       use     of    the     gloves    was        unreasonable     under       the

circumstances, regardless of any alleged failure otherwise to

                                            52
employ    safety     devices     and   act    in   an    appropriate        manner.”

Nicholson v. American Safety Util. Corp., 476 S.E.2d 672, 679

(N.C. Ct. App. 1996) (“Nicholson I”).                   The Court of Appeals

agreed based on its construction of § 99B-4(3) and further noted

that    “in   the    cases    before   our   Courts     in   which    contributory

negligence under G.S. 99B-4 has been alleged, all have involved

the plaintiff’s use of the alleged defective product.”                        Id. at

679-80.       In light of the fact that none of the plaintiff’s

alleged contributory negligence actually concerned the manner in

which    he   used    the    gloves,   the   court    reversed       the   grant   of

summary judgment on contributory negligence.                 See id. at 680.

       The North Carolina Supreme Court then granted discretionary

review    and   unequivocally      rejected    the    construction         given   the

statute by the intermediate appellate court.                  See Nicholson II,

488 S.E.2d at 241.           The North Carolina Supreme Court noted, as

we did in Jones, that it had previously construed § 99B-4(3)

merely to codify common law contributory negligence rules for

actions brought under the new § 99B and that it did “not create

a different rule for products liability actions.”                      Id. at 244;

see id. at 243.             The court therefore held, as we did, that

§ 99B-4(3) “does not limit the [contributory negligence] defense

to the plaintiff’s misuse of the product.”               Id. at 241.

       The argument Fontenot makes to us now fails for the very

same reasons that the plaintiffs’ arguments failed in Jones and

                                        53
Nicholson II.        The North Carolina Supreme Court has consistently

held that § 99B-4 merely codifies generally applicable common

law   rules    and   explains    how    those         rules   apply    in    particular

factual scenarios but does not make special rules for products

liability cases. 5         Those generally applicable common law rules

dictate    that      no    recovery    may       be    had    when     a    plaintiff’s

negligence was a proximate cause of his injuries.                           Whether the

claimant      used   the   product     or    had      it   used   on   him    makes   no

difference. 6


      5
       Fontenot identifies language in § 99B-4(3) that, when read
in isolation, might suggest that only a plaintiff’s use of the
defective   product   may   constitute   contributory negligence.
However,   the   language   Fontenot   identifies  is even   less
supportive of her position than the language that existed in the
pre-amendment version of the statute that the Jones and
Nicholson II courts considered.       While the original version
barred recovery when “[t]he claimant failed to exercise
reasonable care under the circumstances in his use of the
product, and such failure was a proximate cause of the
occurrence that caused injury or damage to the claimant,” the
amended version bars recovery when “[t]he claimant failed to
exercise reasonable care under the circumstances in the use of
the product . . . .”      1979 N.C. Sess. Laws Ch. 654 (emphasis
added); 1995 N.C. Sess. Laws Ch. 522 (emphasis added); see Jones
v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 721 (4th Cir.
1995) (observing that our conclusion that the focus of § 99B-
4(3) was not on the plaintiff’s use of the product was “based on
the plain language of the entire statute . . . and the
definitive interpretation placed thereon by the North Carolina
Supreme Court, not on certain statutory language read in
isolation”).
      6
       Fontenot asserts that the fact that no cases have applied
contributory negligence under North Carolina law to bar recovery
when the plaintiff was not the user of the product indicates
that North Carolina courts would not apply the doctrine in that
(Continued)
                                            54
       Fontenot identifies certain language from the opinions in

Jones and Nicholson II that she contends supports her position

that   only       circumstances           during      the    plaintiff’s          use        of    the

product     may        constitute     contributory            negligence          in     products

liability        cases.        See   Jones,        69   F.3d       at    722     (“the       statute

requires     the       focus    to   be    on    whether      [plaintiffs]            ‘failed      to

exercise reasonable care under the circumstances in [their] use

of the product”) (emphasis added and omitted); Nicholson II, 488

S.E.2d      at     244     (“[A]ll         of     the       circumstances             during       the

plaintiff’s use of the product must be considered.” (emphasis

added)).         Again, however, context is key.                         In concluding that

all    of   the        plaintiff’s         conduct      during          his     use     could      be

considered,        the    Jones      and        Nicholson      II       courts    were       merely

rejecting        the    proposition        that       only   some       of     that    conduct       –

namely, “plaintiff’s conduct with respect to the product itself”

– could be considered.               Nicholson II, 488 S.E.2d at 244.                             This

language      plainly          was   not     intended         to    describe           the     outer




circumstance. However, this fact is no more dispositive than it
was in Nicholson I.     See 476 S.E.2d 672, 679 (N.C. Ct. App.
1996) (“[I]n the cases before our Courts in which contributory
negligence under G.S. 99B-4 has been alleged, all have involved
the plaintiff’s use of the allege defective product.”).      It
simply reflects that North Carolina has not been called upon to
decide a case with those particular facts.       TI can just as
easily make the point that there is no case refusing to apply
contributory negligence under North Carolina law on the basis
that the plaintiff was not the user of the product.


                                                 55
boundaries    of    what   conduct   can    be   considered     contributory

negligence.

     In sum, our conclusion in Jones – that § 99B-4 created no

new contributory negligence rules in products liability cases,

but rather codified the existing common law rules and set out

certain fact-pattern applications of those rules – also requires

rejection    of    plaintiff’s   proposed   construction   in    this   case.

And, even were we not bound by Jones, the North Carolina Supreme

Court’s decision in Nicholson II also makes it clear that that

court would reject plaintiff’s proposed construction as well. 7

For these reasons, I believe the district court erred in denying

TI’s motion for judgment as a matter of law.               I respectfully

dissent from the majority’s contrary holding.




     7
       Because officers generally use their Tasers only against
suspects who are acting unreasonably, it is true that North
Carolina’s contributory negligence rule would usually prevent
recovery under a negligence theory for these suspects’ resulting
injuries.   However, that is simply the consequence of North
Carolina’s hard, all-or-nothing contributory negligence rule.
It is not for us to judge the wisdom of North Carolina’s rule
from a policy standpoint, but only to apply it.


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