
USCA1 Opinion

	




          October 23, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1406                                     JAMES KELLY,                                Plaintiff, Appellant,                                          v.                               SEARS, ROEBUCK AND CO.,                                 Defendant, Appellee.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________                Cynthia  Mead, with  whom  Albert E.  Grady  and Office  of                _____________              ________________      __________          Albert E. Grady, were on brief for appellant.          _______________                Terrance J.  Hamilton, with whom  Casner & Edwards,  was on                _____________________             ________________          brief for appellee.                                 ____________________                                 ____________________                    Per Curiam.  In this products liability action, a  jury                    __________          rendered a  verdict holding  that the defendant's  negligence and          breach  of warranty  were  not a  proximate cause  of plaintiff's          injuries.  The district court entered judgment for the defendants          and plaintiff appealed  claiming that  he was entitled  to a  new          trial on two grounds.  For the reasons that follow, we affirm the          judgment of the district court.                                            I                    On  January 5,  1989,  James Kelly  was  using a  Sears          Craftsman 10"  table saw to cut  up scrap wood.   While cutting a          six foot length  of pine wood,  his left  hand came into  contact          with the unguarded blade, resulting in the partial  amputation of          his little finger and  lacerations and fractures to his  ring and          middle fingers.                      The  table saw  was  designed and  manufactured with  a          blade  guard.    However,  the  blade guard  and  related  safety          features in this  particular saw  were removed and  had not  been          used for several years prior  to the accident.  In  addition, the          owner's manual  --which included specific  warnings regarding the          use of the saw -- was misplaced at the time of the accident.  The          saw itself, however, contained other pertinent warnings.                    Plaintiff  Kelly  sued  defendant  Sears,  Roebuck  and          Company ("Sears")  alleging that  Sears' table saw  was defective          and  had caused plaintiff to  sustain injuries in  his left hand.          The case went to trial on July 22, 1991 and on July 30, 1991, the          jury  returned a special verdict  finding that (1)  Sears did not                                         -2-          breach  its  warranty of  design;  (2) Sears  was  negligent with          respect to the design  of the table saw;  (3) Sears breached  its          warranty as it pertains to  the lack of warning on the  removable          guard assembly;  and  (4)  Sears was  negligent  by  not  placing          warnings  on the removable  guard assembly.   The  jury, however,          found that  any negligence or  breach of warranty on  the part of          Sears was not  a proximate  cause of plaintiff's  injuries.   The          district  court entered  judgment  for Sears  and discharged  the          jury.                                          II                    Plaintiff's principal argument on appeal is the alleged          inconsistency of  the jury verdict.   Plaintiff asserts  that (1)          the  jury's finding  that Sears  did not  breach its  warranty of          design is inconsistent with its finding of  negligence in design,          and (2) the determination  that Sears was negligent and  breached          its warranty with  respect to warnings  is inconsistent with  the          finding  that Sears' negligence and breach of warranty were not a          proximate cause of plaintiff's injuries.1                     We need not consider  plaintiff's claim since he failed          to assert the alleged inconsistency  before the district court in          a timely manner.  It is long-settled law in this circuit that the          failure of a  litigant to  bring to  the attention  of the  trial          court  an alleged inconsistency  in the  jury verdict  before the                                        ____________________          1  Alternatively, appellant's proximate  cause claim may be aimed          at the trial  court's failure  to direct a  finding of  causation          upon the determination of breach of warranty.  Even if  the claim          had merit,  appellant has waived  it when he  failed to move  for          either a directed verdict of a judgment notwithstanding verdict.                                          -3-          jury is discharged constitutes a waiver of this claim.  Masure v.                                                                  ______          Donnelly, 962 F.2d  128, 134  (1st Cir. 1992)  ("[B]y failing  to          ________          point  out   the  alleged  inconsistency  before   the  jury  was          discharged,   [appellant]  waived  this  argument");  Peckham  v.                                                                _______          Continental  Casualty Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990)          ______________________________          ("[t]he law is perfectly clear that [appellants] waived any claim          of internal inconsistency 'by failing to object after the verdict          was read and  before the jury was discharged'")  (quoting McIsaac                                                                    _______          v. Didriksen Fishing Corp.,  809 F.2d 129, 134 (1st  Cir. 1987));             _______________________          Fern ndez v. Chard n, 681  F.2d 42, 58 (1st Cir.),  cert. denied,          _________    _______                                _____ ______          459 U.S. 989 (1982)  (litigant who waits until after the  jury is          excused to  raise claim  that answers to  special interrogatories          were inconsistent with  the general verdict  waives his right  to          assert  this argument); Skillin v. Kimball, 643 F.2d 19 (1st Cir.                                  _______    _______          1981)  (failure to  inform trial  judge that special  verdict was          inconsistent  before jury  was discharged  constitutes waiver  of          right to review).                      Plaintiff also  filed a  motion below alleging  that he          was entitled to a new trial  because the district court failed to          give three supplemental jury instructions pertaining to proximate          cause.   After  reviewing  the record,  we find  that plaintiff's          contention lacks merit.  See, e.g., Shane v. Shane, 891 F.2d 976,                                   ___  ____  _____    _____          987  (1st  Cir.  1989)  (refusal  to  give   instruction  is  not          reversible  error "unless  the error  is determined to  have been          prejudicial after review  of the  record as  a whole")  (citation          omitted).                                         -4-                    The district court instructed the jury on the issue  of          proximate  causation on  each of  the four  separate claims.   To          illustrate, the trial judge instructed inter alia that                                                 _____ ____                      [t]he  plaintiff  must  prove   that  the                      Sears' breach of warranty was a proximate                      cause.  It follows from that, that if the                      sole,  that is  the only  proximate cause                      was  the negligence  of  some persons  or                      entities  other  than Sears,  then Sears'                      breach  of  warranty  could  not  be  the                      proximate   cause   of  the   plaintiff's                      injury.                      So in determining  the issue of proximate                      cause,  you may  consider whether  and to                      what  extent  persons  or entities  other                      than Sears, such as plaintiff's employer,                      or  prior persons who  owned or  used the                      saw, were negligent.          The district court's instructions adequately apprised the jury of          the  issue of proximate cause.   The refusal  to give plaintiff's          requested instructions was not prejudicial.  See, e.g., Brown  v.                                                       ___  ____  _____          Trustees  of Boston University, 891 F.2d 337, 354 (1st Cir. 1989)          ______________________________          ("As  long as the judge's instruction  properly apprises the jury          of  the applicable  law, failure  to give  the  exact instruction          requested  does  not  prejudice the  objecting  party")  (quoting          McKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir. 1981)).            ________    __________                    The judgment of the district court is affirmed.                                                          ________                                         -5-
