                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                   APR 29 1998
                                       TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk


 CHAD BAILEY LIPPINCOTT, a minor,
 by and through his duly appointed
 Conservator, Ms. Cathy Sears, Trust
 Officer, First Interstate Bank of Casper,

                Plaintiff-Appellant,

           v.                                                   No. 97-8003
                                                           (D.C. No. 95-CV-172)
 STATE INDUSTRIES, a Tennessee                             (District of Wyoming)
 Corporation; SERVISTAR/COAST TO
 COAST, a Pennsylvania Corporation,

                Defendants-Appellees.




                               ORDER AND JUDGMENT*


Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.



       Melissa and Clay Lippincott brought this diversity action on behalf of their minor

son, Chad Lippincott (plaintiff or Chad), alleging strict liability on the part of defendant




       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
State Industries1 in the design and manufacture of a water heater. Chad suffered scald

burns after his mother left him unattended in a bathtub with his sister. Plaintiff claims

that the water heater was defective and unreasonably dangerous and the proximate cause

of Chad’s injuries. The district court granted defendant’s motion for judgment as a matter

of law at the close of plaintiff’s case on the issues of warning and punitive damages.

Only the defective product issue remained for the jury, which returned a verdict for

defendant.

       Plaintiff contends that the district court erred in (1) entering judgment as a matter

of law on the failure to warn claim, (2) refusing to qualify Gale Kenney as an expert

witness, and (3) that defense counsel committed prejudicial misconduct by referring to the

qualifications and opinions of an expert the defense did not produce as a witness.

       The case arose after Mrs. Lippincott prepared a bath for her children, placed them

in the tub and left the room. Her 2½-year-old daughter climbed out of the bathtub and

turned on the hot water. Fifteen-month-old Chad suffered second- and third-degree scald

burns on thirty to forty percent of his body. He will need surgery throughout his growth

years and perhaps as an adult.




       1
          The Lippincotts dismissed their individual claims with prejudice before trial and
the district court appointed a conservator for purposes of this action. The parties
stipulated to the dismissal of Servistar/Coast to Coast which had also been named a
defendant in the suit.

                                            -2-
       The water heater at the Lippincotts’ rented home had “warm” and “hot” settings

without temperature designations. At the time of the incident the dial was on “hot” and in

later tests produced water at 148-176 degrees. The water heater did not warn of the risk

of scald burns.

                                               I

       Plaintiff first argues that the district court erred in entering judgment in favor of

defendant as a matter of law on the failure to warn claim. We review de novo the entry of

judgment under Fed. R. Civ. P. 50, applying the same standard as the district court. Fry v.

Board of County Commissioners, 7 F.3d 936, 938 (10th Cir. 1993). We determine if the

record contains enough evidence upon which the jury could return a verdict for plaintiffs.

Id.

       Plaintiff asserts that the water heater was defective because it could heat water to

dangerously high temperatures and did not warn of this danger. Wyoming recognizes

strict liability in tort and has adopted the Restatement (Second), Torts § 402A. Ogle v.

Caterpillar Tractor Co., 716 P.2d 334, 341-42 (Wyo. 1986) (listing elements in

Restatement). A plaintiff must show proximate cause to prevail on a strict liability claim.

Waggoner v. General Motors Corp., 771 P.2d 1195, 1204 (Wyo. 1989). Plaintiff could

only recover, therefore, by establishing both a defect in the water heater and that the

defect caused Chad’s injuries.




                                             -3-
       The Lippincotts, their landlord, and relatives testified, but apparently none had

inspected, looked at, or read any literature about the water heater before Chad was

injured. Plaintiff could not establish who adjusted the temperature setting or when, but

presented evidence the water heater produced water that was very hot. The Lippincotts

acknowledged awareness that dangerously hot water could cause serious injury but had

never adjusted the water heater temperature setting despite living in the home for

approximately eighteen months. Mrs. Lippincott acknowledged consistently checking the

bath water temperature before bathing her children.

       The district court concluded that plaintiff had not established that the proximate

cause of Chad’s injuries was the failure to warn. We agree with the district court’s

analysis that the record would not have supported a jury verdict in favor of plaintiff on the

failure to warn claim. Cf. Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332-33 (10th Cir.

1996) (under Oklahoma law, rebuttable presumption that adequate warning would have

been heeded disappears if evidence establishes user did not read label).

                                              II

       Plaintiff next argues that the district court abused its discretion in refusing to

qualify an expert witness, Gale Kenney, under Fed. R. Evid. 702.2 A court has broad



       2
          That rule provides: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702.

                                             -4-
discretion in allowing expert testimony. General Electric Co. v. Joiner, 118 S. Ct. 512,

515 (1997); see Compton v. Subaru of America, Inc., 82 F.3d 1513, 1520 (10th Cir.), cert.

denied, 117 S. Ct. 611 (1996). It must determine whether expert testimony would assist

the trier of fact and whether the expert is qualified to offer an opinion. See Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 591-92 (1993) (whether expert testimony would

assist trier of fact is fundamentally a question of relevance).

       Plaintiff offered Kenney’s testimony as a safety expert to show that the water

heater was defective in design and in its lack of warning. The substance of his testimony

would have been that the water heater produced dangerously hot water and should have

had safety devices such as a detent control switch or mixing valve,3 and an instruction for

users as to safe temperature settings, or otherwise warned of danger. He acknowledged

that no industry standards required mixing valves, and that he relied on no national

standards in forming his opinion that the water heater was defective or that it produced

water at unsafe temperatures. He cited no scientific authority or experts in related fields

who shared his opinion. Because we have upheld the district court’s order dismissing the

failure to warn claim, Kenney’s testimony would have been relevant only to the design

defect claim.




       3
         A detent control switch would discourage users from raising the temperature
setting. Mixing valves deliver water at a lower temperature than that to which it is
actually heated.

                                             -5-
       The district court ruled that not only did Kenney lack “the requisite knowledge,

training and experience to offer an opinion [under] Rule 702, [but] furthermore, and more

importantly, none of the opinions he would offer would be helpful to the trier of the facts

and [would] invade the province of the jury without just cause.” Appellant’s App. 152.

The jury did not need expert testimony to help them determine that hot water was

dangerous; the risk to an unattended child was open and obvious to the ordinary user.

Kenney voiced strong opinions regarding remedial measures that would lower the risk of

scald burns, but he offered no factual basis to show the Lippincotts’ own water heater was

defective. He essentially opined that it was defective because it could be safer. However,

manufacturers need not create products that are safe under every conceivable

circumstance or from causing every possible injury. See Gates v. Ford Motor Co., 494

F.2d 458, 460 (10th Cir. 1974).

       We agree with the district court that Kenney’s testimony would not have assisted

the jury and that the failure to qualify him as an expert was not an abuse of discretion.

                                               III

       Finally plaintiff argues that defense counsel committed misconduct by mentioning

during closing argument the qualifications and opinions of Dr. Eli Newberger, an expert

defense witness it did not call to testify. Plaintiff did not object or include this issue in a

motion for new trial. We generally do not review issues raised for the first time on

appeal. See Angelo v. Armstrong World Incus., Inc., 11 F.3d 957, 962 (10th Cir. 1993)


                                              -6-
(objection ultimately raised in new trial motion; refusing to review because fairness of

trial not threatened).

       Even addressing the merits, we must hold the district court did not err. Questions

regarding the propriety of counsel’s comments on the failure to produce a witness are left

to the discretion of the district court. See Wilson v. Merrell Dow Pharm., Inc., 893 F.2d

1149, 1150-52 (10th Cir. 1990) (concluding that when witnesses are equally available to

both parties, both sides could infer the missing witness would be adverse to the other and

comment accordingly in closing argument). Plaintiff must show prejudice caused by the

attorney misconduct to prevail on a request for a new trial. Angelo, 11 F.3d at 962.

       Defendant only listed Newberger as a possible witness. Newberger apparently

would have stated that Chad’s injury probably resulted from forced immersion and not

because of design defect. Plaintiff’s counsel mentioned Newberger in the course of

examining plaintiff’s own expert witness. The district court later dismissed all of

plaintiff’s allegations except the product defect issue. Plaintiff’s counsel nonetheless

mentioned Newberger in closing argument and defense counsel responded. Defense

counsel’s conduct was not prejudicial because it was tangential to the issue presented to

the jury.

       AFFIRMED. We deny plaintiff’s motion to strike as moot.

                                                         Entered for the Court

                                                         James K. Logan
                                                         Circuit Judge

                                            -7-
