

                United States Court of Appeals
                    For the First Circuit
                                         

No. 96-2258

                     CHRISTOPHER MOULTON,

                     Plaintiff, Appellee,
                              v.

                      THE RIVAL COMPANY,
                    Defendant, Appellant.

                                         
         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. David M. Cohen, U.S. Magistrate Judge]                                                                
                                         

                            Before
                    Boudin, Circuit Judge,                                                     

                Aldrich, Senior Circuit Judge,                                                         

                  and Lynch, Circuit Judge.                                                                                                           

Ernest  J. Babcock,  with  whom  Elizabeth A.  Germani, George  D.                                                                              
Guzzi and Friedman &amp; Babcock were on brief, for appellant.                                    

Charles Harvey,  with  whom  Harvey &amp;  Frank  was  on  brief,  for                                                        
appellee.

                                         

                        June 20, 1997
                                         

          LYNCH, Circuit Judge.  A one-year-old boy sustained                      LYNCH, Circuit Judge.                                          

severe,  disabling burns  when he  was left  alone in  a room

where a Rival Company electric potpourri pot was operating on

the  floor.   A  diversity  action  was brought  against  the

company asserting claims under Maine law of strict liability,

negligence and breach of warranty.  A  jury found in favor of

the plaintiff  on the strict liability  and negligence claims

and  awarded  $2.2 million.    The  company filed  post-trial

motions alleging a host  of procedural and evidentiary errors

and seeking  judgment as a  matter of law.   The trial  court

denied the motions; the company appealed.  We affirm.

                              I

          We recite the facts as a jury could reasonably have

found them. See Stevens  v. Bangor &amp; Aroostook R.R.,  97 F.3d                                                               

594, 596 (1st Cir. 1996).  Gail Moulton,  plaintiff's mother,

purchased  a Rival Model 3207  electric potpourri pot.  Water

and dried flowers or scented liquid and wax are heated in the

pot  and  allowed  to evaporate  to  perfume  the  air.   The

potpourri  pot  was a  modified  version of  a  Rival kitchen

product, a one-quart slow cooker.  The cover of the potpourri

pot could not be  secured to the  pot and had  a hole in  its

center,   approximately  one  and  three-quarters  inches  in

diameter,  to allow fragrance to escape.  The date Rival sold

this particular potpourri pot is not known.

                             -2-                                          2

          Literature accompanying the  pot contained  several

warnings,  including:  "Close  supervision is  necessary when

any appliance is  used by  or near children."   Mrs.  Moulton

read the  instructions and warnings and  placed the potpourri

pot under  a table  in a  corner of  the  living room  hidden

behind pottery and baskets.   In February 1995, she  left her

one-year-old son Christopher in the living room while she got

him a drink from  the adjoining kitchen.   She heard a  noise

and returned to the living room to find  the child sitting on

the floor in a pool of liquid.  The cover was off the pot, in

the puddle of liquid potpourri.  She did not notice where the

pot itself was.

          No one knows exactly how the accident happened.  It

is reasonable  to conclude either  that the pot  tipped over,

spilling  the heated liquid, or that the child took the cover

off.   In any event, the  lid came off  the pot, and  the hot

liquid came into contact with the child's arm and hand.

          Plaintiff's  left hand and arm were severely burned

in the accident.  He spent over a month at the Shriners Burns

Hospital in  Boston undergoing extensive treatment.   He will

need extensive  medical treatment  in the  future.   His left

hand  and arm are entirely covered by scar tissue, which does

not grow like normal skin.  As he grows,  the inflexible scar

tissue must be released by surgical incisions to  prevent his

joints from growing  abnormally; skin grafts are used to fill

                             -3-                                          3

in the gaps, and  a physical therapy regimen is  necessary to

restore  movement to the hand.  This cycle of growth, surgery

and physical therapy will  continue until the plaintiff stops

growing, at around age twenty.

          The  type   of  potpourri   pot  involved  in   the

plaintiff's accident  evolved from earlier products.   Rival,

which manufactures various  household appliances, decided  to

market an electric potpourri pot.  Before placing the item on

the  market, Rival  submitted the  item, which it  called the

Model  3207,  for  evaluation  by  Underwriters  Laboratories

("UL"),  an  independent  not-for-profit  testing  laboratory

which sets  and publishes  safety standards; these  standards

are  often   adopted  by  the  American   National  Standards

Institute.

          UL  replied that the pot did  not meet the relevant

safety standards.   UL sent Rival a letter in June 1987 which

stated that the potpourri  pot heated liquids to temperatures

exceeding the applicable standard,  and noted that, since the

lid had no  means of being  secured and had  a one and  three

quarters inch hole in its center, it could not be relied upon

as  a barrier to prevent  scalding.  UL  therefore refused to

"list" the  pot.1   However, by  the time  the UL  report was

issued,  Rival  had already  set  production  to commence  in

                                                    

1.  A "listed"  product would bear a  sticker indicating that
the  laboratory  had  determined   that  the  product  met  a
particular safety standard.

                             -4-                                          4

August 1987.   Despite UL's  rejection, Rival  decided to  go

ahead with its production plans anyway.

          Rival submitted  the potpourri pot  to ETL  testing

laboratories,  a  commercial (for  profit)  laboratory.   ETL

issued a  report certifying  that the  potpourri pot  met the

very  standard that UL had  reported the pot  failed to meet.

The ETL report should have raised concerns on its face.   The

stated temperature  in  the report  to which  the pot  heated

liquids  was too high to  meet the applicable  standard.  The

product was nonetheless put on the market.

          The  Model 3207  potpourri pot  was the  only Rival

product not  listed by  UL.   This apparently  troubled Rival

officials.   They ordered various tests  to determine whether

the  item  could be  modified  to  meet the  evolving  safety

standards  adopted by  UL.   Rival's product  safety engineer

reported that UL  had determined that  water hotter than  149

degrees  Farenheit could cause serious skin  burns on contact

and  that  the  potpourri   pot  was  designed  to  reach   a

temperature of 174 degrees  Farenheit.  Rival was  also aware

that UL took  the position that this product,  unlike cooking

appliances, was  likely to  be "touched, bumped,  handled, or

even upset  when used as intended."   Consequently, UL wanted

limitations  placed on  the temperature  and quantity  of the

liquid and  wanted a tight-fitting lid.   Rival's competitors

                             -5-                                          5

produced  potpourri  pots with  locking  lids.   However,  no

modifications were made to the Model 3207.

          After the potpourri pot had  been on the market for

a  short  time,  Rival  began  to  receive  reports  of young

children  who  were burned  by  accidental  contact with  the

heated potpourri mixture.2   Rival still made no modification

to the design.   After 1991, the company changed  the package

insert  to warn  consumers that the  contents of the pot were

hot  and that  the pot  should be  kept out  of the  reach of

children.3  Accidents continued to occur in the early 1990's.

At some point, although the parties cannot pinpoint the exact

date, a tag warning that the product could cause burns to the

skin was  placed on  the cord  of the Model  3206, a  smaller

version of the Model 3207 that lacked any cover.

                              II

          Plaintiff  filed suit against  the Rival Company in

November 1995  in  federal court  in  Maine.   The  complaint

alleged  that   Rival  was   legally   responsible  for   the

plaintiff's  injuries  because  (1)  the  potpourri  pot  was

defective  and  unreasonably dangerous  as  a  result of  its

design; (2)  Rival was  negligent in designing  the potpourri

pot and/or in failing  to warn users of the  product's design

                                                    

2.  Some of the accidents involved  the Model 3207 (the model
in this case), while others involved a similar model.

3.  The  previous  warning  had  stated  that  users   should
supervise closely when the pot was operated near children.

                             -6-                                          6

defect;  and  (3)  the potpourri  pot  failed  to perform  in

accordance  with the express warranty.  Rival defended on the

grounds  that   the  product  was  safe,   the  warnings  and

instructions  adequate, and  the blame  for the  accident lay

with the child's  mother for  placing the pot  where her  son

could reach it and then leaving him unattended.

          After  a   one-week  trial,   the  jury   found  in

plaintiff's  favor  on the  strict  liability  and negligence

claims and awarded him $2.2 million in compensatory damages.

                             III

Post-Sale Duty to Warn                                  

          The primary  issue raised  by Rival is  whether the

district  court erred  in instructing  the jury  on negligent

post-sale duty to warn.  The trial judge charged: 

          When a  manufacturer learns . .  . of the
          dangers  associated  with the  reasonably
          foreseeable use of its product after they
          are  distributed,  the manufacturer  must
          take reasonable steps to  warn reasonably
          foreseeable  users  about  those  dangers
          . . . .

Rival  argues that the Maine Law Court has never imposed such

a post-sale duty on manufacturers  and would not do so.   The

plaintiff  responds   that  the  majority   of  jurisdictions

recognize a negligence-based post-sale duty to warn and that,

if faced with the issue, Maine would do the same.

          We  do not reach the issue of whether the Maine Law

Court  would recognize  a negligence-based post-sale  duty to

                             -7-                                          7

warn because the  jury verdict is  adequately supported on  a

strict liability  claim    and  the  damages  are  the  same.

Further, no  issues concerning the  admissibility of evidence

turn on this.

          The trial  court separated  the theories of  strict

liability,  negligence   and  warranty   both  in   the  jury

instructions  and  in the  special  verdict form.    The jury

stated  on  the  special  verdict  form  that  it  found  the

defendant liable on a strict liability theory as well as on a

negligence  theory.    Even  if  the  instructions  involving

negligent post-sale duty  to warn were incorrect as  a matter

of  Maine  law,  the  finding  of  liability  on  the  strict

liability theory would be sufficient to support the judgment.

          Rival  maintains  the  issue  must  nevertheless be

reached.   It argues that  certain evidence  was admitted  at

trial in  support of  the plaintiff's  theory that there  had

been a negligent failure  to warn and that this  evidence was

both  prejudicial and  irrelevant to  any of the  other legal

theories  advanced by  plaintiff.   The evidence  in question

concerns  what  the  defendant terms  a  subsequent  remedial

measure: the  placement of  a warning  tag on  the electrical

cord of the Model 3206 (which  is smaller than the Model 3207

and  does not have a cover).4   The defendant argues that if,

                                                    

4.  This modification  is not  a subsequent  remedial measure
for  purposes of Rule 407  of the Federal  Rules of Evidence.
That rule  does not  apply where,  as here, the  modification

                             -8-                                          8

as it claims, Maine would not recognize a negligent post-sale

duty  to  warn, this  evidence  was  improperly admitted  and

sufficiently  prejudicial  to  warrant   a  new  trial.    We

disagree.

          First, the  trial court ruled that  the warning tag

evidence  was relevant to the issue of whether there had been

a negligent violation  of a pre-sale duty to  warn as well as

of a post-sale duty  to warn.  Although  the sequence of  the

placement of the warning  tags and the sale of  the appliance

is unknown,  the defendant never  challenged this evidentiary

ruling as to the pre-sale duty to warn.  The point is waived.

          Furthermore,  even assuming  arguendo  that it  was

error  to admit  the "cord tag"  evidence, "the  standard for

reviewing  a district  court's nonconstitutional  error in  a

civil suit requires that we find such error harmless if it is

highly  probable that the error did not affect the outcome of

the case."  Harrison v. Sears, Roebuck &amp; Co., 981 F.2d 25, 29                                                        

(1st  Cir. 1992).      Here,  there  was  ample  evidence  of

defective  design:   the  pot   heated  its  contents   to  a

dangerously  high temperature and did not have a locking lid.

Similar  products  produced by  other  companies  did have  a

locking  lid.   The  refusal of  UL to  list  the product  is

particularly telling.  We think it unlikely that the evidence

                                                    

preceded  the accident involved in the  current lawsuit.  See                                                                         
Bogosian  v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 481                                                      
(1st Cir. 1997).

                             -9-                                          9

of  cord tags placed on the Model 3206 affected the liability

determination.

Evidence of Other Accidents                                       

          Plaintiff put  in evidence  of  eight accidents  in

which  young  children  sustained  burns  after  coming  into

contact with  the heated contents  of a Rival  potpourri pot.

Defendant objected to the  introduction of this evidence, but

the trial court overruled the objection.  Review is for abuse

of discretion.  Espeaignnette v. Gene Tierney Co., 43 F.3d 1,                                                             

8 (1st Cir. 1994).  In evaluating evidentiary rulings, "[t]he

question  is   not  whether  we  would   strike  the  balance

differently in  the first  instance, but whether  the balance

actually struck is so  egregiously one-sided that it requires

reversal."  Id.                           

          "Evidence of  prior accidents  is admissible .  . .

only  if  the  proponent  of  the  evidence  shows  that  the

accidents occurred under circumstances  substantially similar

to those  at issue  in the  case at bar."   McKinnon  v. Skil                                                                         

Corp., 638 F.2d  270, 277  (1st Cir. 1981);  Marois v.  Paper                                                                         

Converting  Mach. Co.,  539 A.2d  621, 625  (Me. 1988).   The                                 

defendant  argues  that   there  is  insufficient  similarity

between  the  earlier  accidents  and  plaintiff's  accident,

because   the  circumstances  surrounding   the  spills  were

different.  For example,  in one of the earlier  accidents, a

child  knocked over  the table  where the  potpourri  pot was

                             -10-                                          10

located; in four others, a child became entangled in the cord

and pulled the pot  over.  Furthermore, two of  the accidents

involved the Model 3206, a smaller pot with no cover at all.

          "Substantial  similarity"  is  a  function  of  the

theory of  the case.   See Ponder  v. Warren Tool  Corp., 834                                                                    

F.2d  1553, 1560 (10th Cir.  1987).  Here,  the plaintiff was

burned  by a  large quantity  of hot  liquid escaping  from a

potpourri  pot without a  locking lid.   Plaintiff sought the

introduction of the evidence  of the other accidents to  show

that  the product as designed  allowed the rapid  escape of a

significant  amount5 of  extremely  hot liquid  and was  thus

defective.  Cf. Jackson  v. Firestone Tire &amp; Rubber  Co., 788                                                                    

F.2d 1070, 1083 (5th Cir. 1986).  Under these  circumstances,

there  was no  abuse of  discretion.   Cf. P.B.  Mutrie Motor                                                                         

Transp., Inc.  v. Interchemical  Corp., 378 F.2d  447, 450-51                                                  

(1st Cir. 1967).

Medical Costs                         

          Plaintiff  presented  the  expert  testimony  of  a

rehabilitation  specialist as  to  the  cost  of  plaintiff's

future medical and rehabilitation needs.  Rival says that the

witness was  not qualified and  that his testimony  lacked an

adequate factual basis.

                                                    

5.  Even electric potpourri pots with locking lids will allow
the escape  of at  least  a very  small amount  of liquid  if
tipped  over; the appliance  must have openings  to allow the
fragrance to escape.

                             -11-                                          11

          A trial court  has wide  discretion in  determining

the admissibility  of expert  testimony, and we  will reverse

its  decision only  when  there has  been  a clear  abuse  of

discretion.   Stevens, 97 F.3d  at 600.   The educational and                                 

work experience of plaintiff's expert made him well-qualified

to testify concerning theplaintiff's future medical expenses.

          A somewhat  closer question is whether  there was a

sufficient  factual basis  for the  expert testimony.   Under

Maine  law,   damages  may  not  be  recovered  if  they  are

contingent  or speculative.   Michaud  v. Steckino,  390 A.2d                                                              

524,  530  (Me.  1978).    They  must  be  "determined  to  a

probability."  Id.                              

          Rival  makes  a  two-pronged argument.    It  first

claims  that the plaintiff failed to meet his burden of proof

on  the damages issue, because everyone  involved in the case

expects  that the  Shriners Hospital,  which is  treating the

child,  will continue to  provide all necessary  care free of

charge.  This argument is foreclosed by the collateral source

rule.   Under that rule, a plaintiff who has been compensated

in whole or in part by a source independent of the tortfeasor

is  nevertheless  entitled to  a  full  recovery against  the

tortfeasor,  to  prevent   the  tortfeasor  from  gaining   a

windfall.  Werner v. Lane, 393 A.2d 1329, 1335 (Me. 1978).                                     

          Defendant then argues that the plaintiff has failed

to prove  future medical  expenses to a  reasonable certainty

                             -12-                                          12

because  the testimony  of plaintiff's  rehabilitation expert

was   different  from  that   of  the   plaintiff's  treating

physician.   Plaintiff's  rehabilitation expert  presented an

itemized  list of predicted future medical and rehabilitation

expenses.   The plaintiff's treating physician testified that

it  was  impossible  to  predict  the  number  or   types  of

procedures the plaintiff  will need in the future because the

need  for future care  will depend on  the plaintiff's growth

pattern  and how the plaintiff improves over time.  There was

an   adequate  foundation  for  the  rehabilitation  expert's

testimony and the jury was therefore  free to credit it.  Cf.                                                                         

Stevens, 97 F.3d at 600.                   

          As to  the misstatement  by plaintiff's  counsel in

closing, when he mentioned "out of pocket" expenses, any harm

was  ameliorated  by  the  trial court's  immediate  curative

instruction.  See Conde  v. Starlight I, Inc., 103  F.3d 210,                                                         

213 (1st Cir. 1997).

Testimony of Rival's President                                          

          Defendant claims  it was sandbagged when, at trial,

plaintiff made use of a statement by a Rival official, from a

deposition  in another  case, to  impeach defendant's  expert

witness.  Defendant argues it had no opportunity to place the

company  official's statement  in its  proper context.   This

argument is  not well taken.  The defendant did not request a

continuance  or  any  limiting  instructions.    Under  these

                             -13-                                          13

circumstances, we cannot say the trial  court abused its wide

discretion in admitting this evidence.

Sufficiency of the Evidence                                       

          Finally,   the  defendant  argues  that  the  trial

court's  denials of its Rule  50(b) motion for  judgment as a

matter of  law and of  its motion for  a new trial  should be

reversed.   It claims  that the  evidence, together with  all

reasonable   inferences   in   the   plaintiff's   favor,  is

insufficient to support the verdict.  Review is de novo.  See                                                                         

Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994).                          

          The defendant  maintains  that no  reasonable  jury

could find that any  action by Rival was the  proximate cause

of the plaintiff's injury.  The defendant points to the Maine

Law  Court's  statement  that "a  product  bearing  .  . .  a

warning,  which is safe for use if [the warning] is followed,

is  not  in  defective  condition,  nor  is  it  unreasonably

dangerous."  Bernier v. Raymark  Indus., Inc., 516 A.2d  534,                                                         

538 (Me. 1986) (quoting  Restatement (Second) of Torts   402A                                                                  

cmt. j  (1965)).   However, this language  explicitly applies

only  to  claims that  a  product  is unreasonably  dangerous

because it lacks an  adequate warning.  Bernier, 516  A.2d at                                                           

538.   That  was  not the  crux  of plaintiff's  claim  here.

Plaintiff's  theory was  that  the potpourri  pot had  design

defects  --  heating  its  contents to  an  excessively  high

temperature and no  locking lid -- which made it unreasonably

                             -14-                                          14

dangerous.  There was sufficient evidence supporting the jury

finding of liability on that theory of the case.

          Affirmed.                              

                             -15-                                          15
