                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 03-2307
                                 ___________

Michael McGuire, Individually and as   *
Natural Father and Next Friend of      *
Colleen McGuire, a Minor; Elaine       *
McGuire,                               *
                                       *
            Plaintiffs–Appellees,      *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Northern
Davidson Manufacturing Corporation, * District of Iowa.
                                       *
            Defendant,                 *
                                       *
Louisville Ladder Group LLC,           *
                                       *
            Defendant–Appellant.       *
                                       *
                                  __________

                         Submitted: February 19, 2004
                             Filed: February 17, 2005
                                ___________

Before RILEY, HANSEN, and MELLOY, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

      Michael McGuire (“McGuire”) sustained serious injuries when he fell from a
ladder manufactured by Davidson Manufacturing, predecessor to Louisville Ladder
Group LLC (“Louisville Ladder”). McGuire filed suit, alleging several tort claims
against Louisville Ladder. The jury returned a verdict for McGuire and the district
court1 awarded damages of $311,838.57. Louisville Ladder appeals. We affirm.

                                I. BACKGROUND

       On September 5, 1999, McGuire fell from a six-foot stepladder and was
seriously injured. The cause of the fall is contested by the parties. McGuire contends
that one of the side rails of the ladder suddenly fractured, causing him to fall and
strike his head on the concrete floor. Louisville Ladder argues that McGuire tilted
the ladder onto two legs and fell off the ladder. Louisville Ladder contends that the
breaks in the side rails were caused by McGuire landing on top of the ladder after he
fell. There was no eyewitness as to the cause of the accident, and due to his injuries,
McGuire has no memory of his fall. McGuire’s son-in-law, Ken Hajek, was leaving
the room at the time of the fall and testified that he turned around in time to see
McGuire’s head strike the floor. According to Hajek, McGuire hit the floor directly,
without landing on top of the ladder.

      McGuire, as well as McGuire’s wife and minor daughter, sued Louisville
Ladder and Emerson Electric in Iowa state court. Plaintiffs sought to recover under
design defect, manufacturing defect, and general negligence theories. Defendants
removed the case to federal court. The parties subsequently stipulated to the
dismissal of Emerson Electric.

      In response to special interrogatories, the jury found that: (1) the ladder had a
manufacturing defect, (2) the ladder did not contain a design defect, and (3)
Louisville Ladder was at fault under a theory of general negligence, Iowa’s version


      1
        The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern
District of Iowa.

                                         -2-
of res ipsa loquitur. However, the jury also found that Louisville Ladder had a
complete defense to the manufacturing defect claim because it complied with the
“state of the art” when manufacturing the ladder. The jury found both Louisville
Ladder and McGuire were 50% responsible and assessed McGuire’s damages at
$623,677.14. The jury also awarded $48,000 in damages to McGuire’s wife for loss
of consortium. The district court discounted the awards for McGuire’s comparative
fault and awarded $311,838.57 in damages to McGuire and $24,000 in damages to
McGuire’s wife.

       Louisville Ladder moved for judgment as a matter of law, arguing that
McGuire failed to prove the accident was not caused by his own voluntary actions.
Louisville Ladder contended that McGuire was required to satisfy the “voluntary
action rule” by proving by a preponderance of the evidence that his actions did not
cause the accident. Louisville Ladder argued that satisfying the voluntary action rule
was a required element of a successful general negligence claim under Iowa law. The
district court denied the motion.

       Louisville Ladder also filed a post-trial motion to amend the judgment pursuant
to Rule 59(e). In that motion, Louisville Ladder argued that the jury’s finding that
Louisville Ladder had complied with the “state of the art” should release the company
from liability on the general negligence claim. The district court found the “state of
the art” defense applied to the manufacturing defect claim only and denied the
motion.

                                    II. ANALYSIS

       On appeal, Louisville Ladder argues, first, that the district court erred in
denying its motion for judgment as a matter of law. Louisville Ladder contends that
a plaintiff must satisfy the “voluntary action rule” to prevail on a res ipsa loquitur, or
general negligence, claim under Iowa law. Second, Louisville Ladder contends that

                                           -3-
the district court erred in denying its Rule 59(e) motion because if Louisville Ladder
conformed to the state of the art, it could not have been negligent.

      A.     Res Ipsa Loquitur and the Voluntary Action Rule

       We review a district court’s interpretation of state law de novo. Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991). “‘If state law is unsettled, it is our duty
to apply the rule we believe the [Iowa] Supreme Court would follow.’” Thomas v.
Union Pacific R.R. Co., 308 F.3d 891, 894 (8th Cir. 2002) (quoting Novak v. Navistar
Int’l Transp. Corp., 46 F.3d 844, 847 (8th Cir. 1995)). “We review the district court’s
denial of a motion for judgment as a matter of law de novo, applying the same
standard as the district court.” Cardenas v. AT&T Corp., 245 F.3d 994, 998 (8th Cir.
2001). We must view the “evidence in the light most favorable to the verdict and
reverse only if no reasonable jury could have returned a verdict for the non-moving
party.” Id.

       Prior to 1984, Iowa used a contributory fault system, in which any fault on the
part of the plaintiff in causing the injury barred recovery. To prevail on a claim using
res ipsa loquitur under that system, a plaintiff needed to show: (1) “the
instrumentality causing the injury was under the exclusive control . . . of the
defendant,” or if the defendant did not have exclusive control of the instrumentality,
that “there was no change in the condition of the instrumentality after it left
defendant’s control which could reasonably have caused the injury,” (2) “the accident
was one that would not, in the ordinary course of events, happen without negligence,”
and (3) “the injury [was] caused without the fault of the injured party.” Sweet v.
Swangel, 166 N.W.2d 776, 778 (Iowa 1969). A plaintiff was required to prove he or
she was not at fault by a preponderance of the evidence. Id. Plaintiffs could “meet
this burden by showing [they] ha[d] done nothing abnormal with the instrumentality
causing the injury and ha[d] used it in the manner and for the purpose for which it
was intended.” Id.

                                          -4-
      Iowa adopted a comparative fault system in 1984 in the Comparative Fault Act,
codified in chapter 668 of the Iowa Code. The Act provides:

      Contributory fault shall not bar recovery in an action by a claimant to
      recover damages for fault resulting in death or in injury to person or
      property unless the claimant bears a greater percentage of fault than the
      combined percentage of fault attributed to the defendants, third-party
      defendants and persons who have been released . . . , but any damages
      allowed shall be diminished in proportion to the amount of fault
      attributable to the claimant.

Iowa Code § 668.3(1)(a).

       The Iowa Supreme Court has not expressly addressed the issue of whether a
plaintiff employing res ipsa loquitur must still prove he or she was not at fault under
Iowa’s comparative fault system. The majority of states that have considered the
question have concluded that the voluntary action rule no longer applies in their states
after the adoption of a comparative fault scheme. See, e.g., Cox v. May Department
Store Co., 903 P.2d 1119, 1124 (Ariz. Ct. App. 1995) (concluding plaintiff need not
show accident not caused by plaintiff’s voluntary action and listing like decisions
from other states); Giles v. City of New Haven, 636 A.2d 1335, 1341-42 (Conn.
1994) (same); Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo. 1980)
(concluding plaintiff need not show accident not caused by plaintiff’s voluntary
action) ; Darrough v. Glendale Heights Comm. Hosp., 600 N.E.2d 1248, 1253 (Ill.
App. Ct. 1992) (same); Tipton v. Texaco, Inc., 712 P.2d 1351, 1359 (N.M. 1985)
(same); Turtenwald v. Aetna Casualty & Surety Co., 201 N.W.2d 1, 4-5 (Wis. 1972)
(same).

       Eliminating the plaintiff’s burden to disprove his or her own fault comports
with the spirit of a comparative negligence scheme. As stated by the Arizona Court
of Appeals:


                                          -5-
      The third element of res ipsa loquitur [that the accident not be due to
      any voluntary action on the part of the plaintiff] corresponds to the
      common law theory of contributory negligence. The purpose of
      comparative negligence, however, is to eliminate the harshness that
      results from the complete bar to recovery under contributory negligence.
      Were we to retain the requirement that plaintiff be entirely free from
      fault in order to benefit from res ipsa loquitur, we would contravene the
      intent of the comparative fault statute. Res ipsa loquitur would then act
      as a complete bar to recovery for a plaintiff whose negligence was only
      minimally responsible for her injuries, rather than permitting the
      apportionment of fault mandated by [the Arizona comparative fault
      statute].

Cox, 903 P.2d at 1124 (internal citations omitted). We find this reasoning sound and
believe that when the Iowa Supreme Court addresses the issue it, like many other high
courts, will find that in a comparative negligence system, plaintiffs using res ipsa
loquitur need not disprove their own fault in order to prevail.

       In addition to the weight of case law from other states, Iowa Supreme Court
cases lend support for the view that a plaintiff need not disprove his or her own fault.
Recent Iowa Supreme Court cases list only two requirements for applying res ipsa
loquitur:

      The doctrine of res ipsa loquitur is a rule of evidence that permits an
      inference that the defendant was negligent. Two elements must be
      present for the doctrine to apply: (1) the injury is caused by an
      instrumentality under the exclusive control of the defendant, and (2) the
      occurrence is such as in the ordinary course of things would not happen
      if reasonable care had been used. A party must produce substantial
      evidence of both elements to be entitled to an instruction on general
      negligence under the res ipsa loquitur doctrine.

Graber v. City of Ankeny, 616 N.W.2d 633, 643 (Iowa 2000) (internal quotations and
citations omitted). For similar statements of law, see also Novak Heating & Air

                                          -6-
Conditioning v. Carrier Corp., 622 N.W.2d 495, 498 (Iowa 2001); Brewster v. United
States, 542 N.W.2d 524, 529 (Iowa 1996); Mastland, Inc. v. Evans Furniture, Inc.,
498 N.W.2d 682, 686 (Iowa 1993). The listing of two elements is in contrast to Iowa
Supreme Court statements of law pre-dating Iowa’s adoption of comparative fault,
which did require plaintiffs to prove that their injury was not caused by their own
voluntary action. See Sweet, 166 N.W.2d at 778.

      B.     General Negligence and the State of the Art Defense

       As stated above, the jury found that Louisville Ladder was at fault on the
plaintiffs’ general negligence claim, as well as the plaintiffs’ manufacturing defect
claim. However, it found that Louisville Ladder had a complete defense to the
manufacturing defect claim because it complied with the state of the art. Louisville
Ladder argued for the first time in its Rule 59(e) Motion to Reconsider that the jury’s
findings regarding the state of the art defense and liability for general negligence
were inconsistent and that the negligence finding must therefore be disregarded. We
find this argument is waived because it was not raised until the Rule 59(e) Motion to
Reconsider.

        The Federal Rule of Civil Procedure addressing waiver effective at the time of
trial reads: “No party may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter objected to and the grounds of the objection.”
Fed. R. Civ. P. 51 (2003); See also Top of Iowa Coop. v. Schewe, 149 F. Supp. 2d
709, 728 (N.D. Iowa 2001). “‘If a party feels that a jury verdict is inconsistent, it
must object to the asserted inconsistency and move for resubmission of the
inconsistent verdict before the jury is discharged or the party’s right to seek a new
trial is waived.’” Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998)
(quoting Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992)); see also Dairy
Farmers of America, Inc. v. Travelers Ins. Co., 391 F.3d 936, 945 (8th Cir. 2004).

                                         -7-
Rule 51 applies to jury verdict forms. Smith v. Updegraff, 744 F.2d 1354, 1367 (8th
Cir. 1984) (“We believe Rule 51 was intended to encompass jury verdict forms and
find no compelling reason to decide otherwise.”).

       When a party fails to object to the format of the jury verdict form, we review
only for plain error. Life Plus Int’l v. Brown, 317 F.3d 799, 805 (8th Cir. 2003).
“‘Any plain error exception to Fed. R. Civ. P. 51 is confined to the exceptional case
where the error has seriously affected the fairness, integrity, or public reputation of
judicial proceedings.’” Id. (quoting Arnott v. Am. Oil Co., 609 F.2d 873, 889 (8th
Cir. 1979) (internal quotation omitted)). For us to reverse for plain error, the
judgment below “must result in a miscarriage of justice.” Id.

       Here, Louisville Ladder failed to object to the form of the jury instructions, so
we review for plain error. We find that the judgment below does not approach plain
error. We find no authority in Iowa law that precludes a finding that a party has
conformed with the state of the art and yet is liable under general negligence.

      The applicable state-of-the-art defense statute2 reads:

      In any action brought pursuant to this chapter against an assembler,
      designer, supplier of specifications, distributor, manufacturer or seller
      for damages arising from an alleged defect in the design, testing,
      manufacturing, formulation, packaging, warning, or labeling of a
      product, a percentage of fault shall not be assigned to such persons if
      they plead and prove that the product conformed to the state of the art
      in existence at the time the product was designed, tested, manufactured,
      formulated, packaged, provided with a warning, or labeled.



      2
        The Iowa Legislature amended Iowa Code § 668.12 on April 8, 2004 to
include additional language regarding failure to warn and defects in packaging,
warning, or labeling. 2004 Iowa Legis. Serv. 2170 (West).

                                          -8-
I.C.A. § 668.12. “Section 668.12 is a complete defense in product defect cases.”
Olson v. Prosoco, Inc., 522 N.W.2d 284, 290 (Iowa 1994). However, its application
to general negligence has not been addressed by the Iowa courts. We believe that, if
the Iowa Supreme Court were to consider the question, it would likely find that proof
of the state-of-the-art defense does not automatically exonerate a defendant from
liability for general negligence.

       There are two major reasons for this conclusion. First, the statute makes no
mention of negligence. This omission is in contrast to otherwise similar state-of-the-
art defense statutes in other states which mention claims involving negligence as well
as those involving defective products. See, e.g., Neb. Rev. Stat. § 25-21, 182.
Second, the Supreme Court of Iowa declined to apply the statute in negligent failure
to warn cases. See, e.g., Olson, 522 N.W.2d at 291. The court reasoned that in
failure to warn claims, “the focus is on the conduct of the defendant, not the condition
of the product.” Id. “Section 668.12, on the other hand, provides a state-of-the-art
defense for product defects,” which concern the condition of the product. Id. The
court concluded: “Thus, the state-of-the-art defense provided by section 668.12 is
incongruous when applied to claims based on negligent failure to warn.”3 Id. The
court instructed:

      We note this does not preclude defendants from presenting state-of-the-
      art evidence at trial. However, rather than establishing an absolute
      defense in negligent failure to warn cases, defendant’s evidence would
      go to rebut the plaintiff’s proof that the defendant breached a duty to

      3
        Louisville Ladder correctly points out that the Supreme Court of Iowa has
applied the state-of-the-art defense in a negligent design case. Hughes v. Massey-
Ferguson, Inc., 522 N.W.2d 294 (Iowa 1994). However, in that case, “Hughes did not
challenge the applicability of section 668.12 to negligent design cases.” Id. at 298
n.1 (Ternus, J., concurring). Because the question was not directly before the court,
we consider the applicability of the state-of-the-art defense to negligent design claims
an open question under Iowa law.

                                          -9-
      exercise the degree of care a reasonable manufacturer would have used
      in light of generally recognized and prevailing scientific knowledge.

Id.

        We believe the reasoning in Olson applies equally well to the general
negligence claim at hand. The state-of-the-art defense as written applies to product
defect claims, in which liability arises from the condition of the product. In general
negligence claims, on the other hand, liability arises from the conduct of the
defendant. Further, the difference between the two types of claims supports our belief
that if the Iowa legislature had meant to include negligence, it would have said so in
the statute.

       For the purposes of our decision, we need not resolve how the Iowa Supreme
Court envisions the interplay between general negligence and the state-of-the-art
defense. Plain error requires that the unobjected to jury instruction first be erroneous.
As indicated, the Iowa Supreme Court has not directly addressed this issue. For the
reasons stated, we doubt the Iowa Supreme Court would adopt Louisville Ladder’s
view of Iowa law on the negligence and the state of the art defense. More
importantly, however, even if there is error, clear error analysis requires us to find the
error seriously affects the fairness, integrity and public reputation of the judicial
proceeding. The giving of a jury instruction that is not objected to on an unsettled
area of state law does not rise to that high standard of seriously affecting the integrity
of the judicial proceeding. Accordingly, we find no clear error in the giving of the
instruction.

                                 III. CONCLUSION

      For the foregoing reasons, the judgment of the district court is affirmed.
                           ______________________________


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