
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1687                               CHESHIRE MEDICAL CENTER,                                Plaintiff - Appellant,                                          v.                                  W. R. GRACE & CO.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                             and Keeton,* District Judge.                                          ______________                                _____________________               Daniel A. Speights,  with whom Michael P.  Hall, Nixon, Hall               __________________             ________________  ___________          and Hess and Speights & Runyan, were on brief for appellant.          ________     _________________               Richard V. Wiebusch, with whom Harry T. Daniels, Jane Cetlin               ___________________            ________________  ___________          Pickrell, Hale and  Dorr, Howard M. Cooper and Todd  & Weld, were          ________  ______________  ________________     ____________          on brief for appellee.                                 ____________________                                    March 6, 1995                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    KEETON, District Judge.   Appealing from a judgment for                            ______________          the defendant  on a  jury verdict, plaintiff-appellant  argues an          interesting undecided  issue of  New Hampshire law  regarding the          scope  of strict  liability on  the ground  of product  defect in          relation  to warning  and instructions  for use.   May  a product          marketer be held strictly liable on the basis of failure to warn,          for  harm  to  a  building  into which  its  product  (containing          asbestos fibers) was  installed, even though the jury  has found,          in answering  special questions,  that plaintiff failed  to prove          any departure from ordinary prudence with respect to warning  and          instructions for use?                    We  conclude  that  the  jury  findings,  together with          settled  rules  of  federal  procedural  law  and  New  Hampshire          substantive law, preclude our reaching this interesting question.          For  the reasons  explained,  we  affirm  the  judgment  for  the          defendant on the verdict of the jury.                                          I.                                          I.                    Plaintiff-appellant  alleged that  defendant's product,          Monokote  3,  a fireproofing  material,  purchased in  1971  by a          subcontractor  in  compliance with  specifications,  and used  in          constructing  a building occupied and used  at all relevant times          by plaintiff (an  entity designated in  the general contract  for          construction of the building as "owner") was defective because of          a  percentage of  asbestos  particles in  the  product.   In  the          various  counts of  the  complaint, plaintiff  alleged claims  of          negligence (in manufacture, sale, and warning), strict  liability                                         -2-          for product defect, and breach of implied warranty.                    The case was submitted to  a jury on special questions,          Fed. R. Civ. P. 49(a).  The jury returned the following answers:                                 SPECIAL VERDICT FORM                                 ____________________                         1.    On  the statute  of  limitations                      defense, do you find for the Plaintiff or                      the Defendant?                          x  Plaintiff               Defendant                        _____                   _____                         If you find for the Defendant  on this                      issue, stop and return a verdict in favor                      of the Defendant.                         If  you find for the Plaintiff on this                      issue, answer questions 2, 3, 4, 5 and/or                      6.                         2.  On  Plaintiff's negligence  claim,                      do  you find  for  the Plaintiff  or  the                      Defendant?                             Plaintiff            x  Defendant                        _____                   _____                         3.  On Plaintiff's  products liability                      claim, do  you find for the  Plaintiff or                      the Defendant?                             Plaintiff            x  Defendant                        _____                   _____                         4.    On Plaintiff's  implied warranty                      claim,  do you find  for the Plaintiff or                      the Defendant?                             Plaintiff            x  Defendant                        _____                   _____                         5.  If you  found for the Plaintiff on                      one or more of  its claims (questions  2,                      3,  or  4)  please  write  the amount  of                      damages  you  award  to  Plaintiff  using                      words  and  figures   (as  in  writing  a                      check).                         Damages awarded:       ----none----                                            ______________________                                    ($          )                         6.  If you  found for the Defendant on                                         -3-                      each of Plaintiff's claims  (questions 2,                      3, and 4), then return a verdict in favor                      of Defendant.          DATE:  11/3/93                   /s/                            __________            ______________________                                     Foreperson                    The court's  charge to  the jury  included instructions          advising  the  jury they  should  answer that  the  plaintiff had          proved  negligence  if  they  found by  a  preponderance  of  the          evidence that  defendant failed to exercise  ordinary prudence in          manufacture, or  in sale,  or in  relation to warning  (including          instructions  for use).   Thus, unless  plaintiff-appellant shows          some trial error that undermines this finding (and we conclude in          Part III, infra, that  plaintiff-appellant has failed to  do so),                    _____          we  must accept  as  an established  fact  that, in  relation  to          warning and instructions for use of the product, plaintiff failed          to prove any departure from ordinary prudence.                    The  court's charge  to  the jury  on strict  liability                                                          ______  _________          failed to  include any reference  to warning or  instructions for          use.     We  assume,  as  did  the  trial  court  in  considering          plaintiff's  motion  for new  trial, that  this  was error.   See                                                                        ___          Chellman v. Saab-Scania AB, 637 A.2d 148 (N.H.  1993).  The trial          ________    ______________          court concluded, however, that the error was harmless.  So do we,          though on  somewhat different  reasoning from that  of the  trial          court because, unlike  the trial  court, we do  not undertake  to          predict  exactly  how the  Supreme  Court of  New  Hampshire will          resolve  a novel  issue of  substantive law  on which  plaintiff-          appellant relies.                                         II.                                         II.                                         -4-                    It  is  settled  law   in  New  Hampshire  that  strict          liability  for  product  defect  includes  manufacturing  defect,          design defect, and warning  defect.  See Chellman, 637  A.2d 148;                                               ___ ________          see  also Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 661          _________ ______    __________________________          (1st Cir. 1981).                    New Hampshire cases  have not yet  determined, however,          whether, as appellant asserts,  a breach of the  strict liability          duty to warn can be proved on some basis short of proving failure          to  exercise  ordinary  prudence   in  relation  to  warning  and          instructions for use.  Stated another way, the undecided question          is  whether the duty of warning under the strict liability theory          requires something more  of the  marketer than does  the duty  of          warning under negligence law and, if so, what.                    Whether  the  duty  is  more onerous  is  an  unsettled          question  of   New  Hampshire  substantive  law.     Contrary  to          appellant's assertion, this question of New Hampshire law was not          decided in Chellman, 687 A.2d  148.  Instead, that was a  case in                     ________          which the  plaintiff did not ask the court to submit a negligence          claim to  the jury.  See  id. at 151.  In  that context, omission                               ___  ___          from the trial court's  charge of even an instruction  on prudent          care  with  respect  to  warning  was  reversible  error  because          plaintiff was completely  deprived of the opportunity to have the          jury consider the duty-to-warn claim.  In this case, in contrast,          the jury did consider  a duty-to-warn claim.   They did so  under          the  negligence question.   And  we must  conclude that  the jury          rejected that claim because they were instructed that they should                                         -5-          find for  plaintiff in answering the negligence  question if they          found for the plaintiff  on other grounds or  if they found  that                                                    __          defendant failed to use ordinary prudence in relation  to warning          or instructions for use and that this failure was a  cause of any          harm sustained by plaintiff.                    In three separate avenues of attack, appellant seeks to          avoid  the preclusive  effect of  the jury  finding of  no causal          negligence.   The  first avenue  is a  two-fold challenge  to the          finding itself, which  we discuss in  Part III.   We examine  the          other avenues separately in Parts IV and V.                                         III.                                         III.                    Appellant  has  challenged  the  jury's  finding  of no          causal negligence  on two  grounds.   Appellant asserts that  the          trial court's  duty-to-warn instruction  on the negligence  count          was erroneous.  Appellant also asserts that the trial court erred          in  failing to instruct the  jury on the  New Hampshire statutory          asbestos  exposure standard.   We conclude that  neither of these          attacks has merit.          A.        The Duty-To-Warn Instruction Given          A.        The Duty-To-Warn Instruction Given                    Appellant challenges the duty-to-warn instruction given          by  the  trial court  on  the  negligence claim.    The jury  was          instructed  that the defendant had a duty  to warn if it "knew or          should  have known that the fireproofing it sold to the plaintiff          was  dangerous  to  people or  that  it  would  damage property."          Appellant argues  that this  instruction is erroneous  because it          requires the plaintiff to prove that the product "was dangerous."                                         -6-          Relying on  language in  Chellman,  the appellant  argues that  a                                   ________          defendant has a duty to warn if a product "may be dangerous."                    This argument is based more on form than substance.  It          is difficult to  imagine what different meaning would be conveyed          by  an instruction, instead of that given, that the defendant had          a  duty  to  warn if  it  knew  or  should  have known  that  the          fireproofing it sold to the  plaintiff may be dangerous.   To the                                                 ___          extent that  this  phrasing  conveys  the  same  meaning  --  for          example, that  the defendant had a duty  to warn if the defendant          knew or should  have known that the  product causes harm  in some          (but not necessarily  all) instances -- the  instruction given by          the court was not in error.                    To  the  extent  that  appellant  is  urging  that  its          proposed  language  conveys  a  different  meaning  --  that  the          defendant has a  duty to warn if it should  have known that there          was a  mere possibility that the  product was in the  category of          dangerous products (i.e., one that causes harm in some instances)          -- the  argument for application of  a legal test  framed in this          particular way has no basis in New Hampshire law.                    Under New  Hampshire law, a manufacturer  need not warn          of all potential dangers associated with a product.  See Thibault                                                               ___ ________          v. Sears, Roebuck  & Co., 395  A.2d 843 (N.H.  1978)(manufacturer             _____________________          need  not  warn of  known, but  very  unlikely, risk  of danger).          Similarly, one may  infer from  this precedent that  there is  no          duty to warn on the basis of speculation that a  product might be          dangerous.  Thus, the meaning conveyed by the court's instruction                                         -7-          is closer to the  formulations found in New Hampshire  cases than          is appellant's  proposed alteration,  which itself is  subject to          different interpretations, some  of which  are inconsistent  with          the  formulations in the New  Hampshire cases.  Thus, appellant's          challenge on this ground fails.          B.        The New Hampshire Asbestos Exposure Standard          B.        The New Hampshire Asbestos Exposure Standard                    Appellant  challenges  the  trial  court's  failure  to          instruct  the  jury on  the  New  Hampshire  standard for  indoor          nonoccupational asbestos exposure.  See N.H. Rev. Stat. Ann. 141-                                              ___          E:6.     This   numerical  standard   (.01  f/cc)   triggers  the          applicability of  certain  New Hampshire  regulations  concerning          asbestos  abatement procedures used as a  part of construction or          maintenance.                    The court instructed the jury  on federal OSHA and  EPA          regulations,   as  well   as   the   New  Hampshire   regulations          establishing procedures to be  followed during asbestos abatement          projects.   The court told  the jury that  the various  state and          federal statutes were relevant  to the issue of damages  only and          not  to the  defendant's  liability.   Since  the jury  found  no          liability and therefore did  not reach the issue of  damages, the          court's alleged error  in failing to instruct the jury on the New          Hampshire   asbestos   exposure  standard   is,   in  retrospect,          irrelevant and therefore harmless, unless appellant can establish          relevance to liability issues.                    Appellant's challenge on  appeal contains the  implicit          assertion that  the New  Hampshire asbestos exposure  standard is                                         -8-          relevant to  the defendant's liability.   The appellant, although          objecting to the court's  failure to instruct the jury on the New          Hampshire statute, did  not object  to that part  of the  court's          instruction telling the jury that these statutes were relevant to          the issue of damages only and not to the issue of liability.  The          appellant  having  failed  in  its  objections  and  request  for          instruction to articulate an  argument for relevancy to liability          or any legal  basis for  relevancy, we review  the trial  court's          instruction only  for plain error.  See  Poulin v. Greer, 18 F.3d                                              ___  ______    _____          979, 982 (1st Cir. 1994).                    We  conclude that it was  not plain error,  if error at          all.   The  New  Hampshire asbestos  exposure  standard does  not          impose  a  rule of  conduct on  sellers  of asbestos  products or          contractors using  asbestos products.  Instead,  it establishes a          threshold of  authorization for the  director of the  Division of          Public  Health Services  to  take certain  regulatory action,  if          warranted.   See N.H. Rev.  Stat. Ann. 141-E:8.   In addition, it                       ___          triggers  the  applicability  of  certain  safety regulations  to          asbestos removal  and abatement projects  at relevant  buildings.          See N.H. Rev. Stat. Ann. 141-E:7.          ___                    We conclude that no  decision cited to us, and  none of          which we are aware, establishes a basis for plaintiff's assertion          that the New Hampshire asbestos exposure standard  is relevant to          the  defendant's  liability.     Moreover,  given  that  the  New          Hampshire state regulators have  taken no action with  respect to          appellant's building, the  standard at issue bears only  upon the                                         -9-          calculation  of costs  the appellant might  incur in  the future.          For these  reasons, we hold that  even if there was  error in the          trial  court with respect to this  asbestos exposure standard, it          was harmless in this case.                                         -10-                                         IV.                                         IV.                    In oral  argument and  in its brief,  appellant asserts          that  as a matter  of substantive law  a claimant  is entitled to          have the court instruct  the jury that a claim  of strict product          liability  is to  be decided  by a  jury in  a single  evaluative          finding after  jury consideration of all relevant factors.  Thus,          for  example, the appellant argues that if the jury thought there          was  some  evidence  of  departure from  ordinary  prudence  with          respect to  warning but not enough evidence  for the jury to find          departure  from  ordinary  prudence  by a  preponderance  of  the          evidence,  the jury  could nevertheless  take this  evidence into          account  among all the other factors  they considered in deciding          whether the product was defective.                    Appellant asserted in oral  argument before this  court          that the jury in  a strict product liability case  is allowed to,          and should be  instructed to,  make one overall  weighing of  all          factors bearing upon (1) manufacturing defect, (2) design defect,          and (3) warning defect.   Appellant cites no precedent explicitly          supporting this contention, and we are aware of none.                    Two  independently  significant  points are  implicitly          essential to the validity of the argument.  We consider each.          A.        Consideration of the Cumulative Effect of the Evidence          A.        Consideration of the Cumulative Effect of the Evidence                    Appellant's argument depends on an  implicit assumption          that  a   claimant  need   not  establish  independently,   by  a          preponderance  of  the evidence,  any one  of the  three separate          theories  of  strict  liability  (manufacturing   defect,  design                                         -11-          defect, and warning defect).                    In the context of this  case, appellant argues that the          evidence of failure to warn, although not sufficient by itself to          support a finding of  strict liability by a preponderance  of the          evidence, may  be combined  by the  jury with  any evidence  of a          design defect and may result in a finding of  strict liability by          a preponderance  of the evidence.  In some cases, this would lead          to  the  anomalous result  that  the  jury  could find  defendant          strictly liable by a preponderance of evidence without finding by          a preponderance of the evidence a manufacturing defect, a  design          defect, or a warning defect.                    For example, the appellant implies that a plaintiff can          prevail if  the  jury  finds  none  of the  three  defects  by  a          preponderance  of the evidence  and yet  finds that  the evidence          shows a .40 probability  of each and, in some  unexplained way, a          .51 probability of defect in its overall weighing of all evidence          received at trial.                    This  argument is flawed.  A .40 probability of each of          three  separate  defects  cannot  add  up  to  a  .51 probability          overall.  Instead, in this assumed circumstance, unless the three          are interdependent (as  they may be), there  is no better  than a          .064  probability (.40 x .40 x .40)  that all three are true, and          neither mathematically nor as  a matter of common sense  do three          .40 probabilities show a .51 probability that one of the three or          some combination of two or all three is true.                    Moreover, as a matter of settled law, judicial opinions                                         -12-          and commentators  alike refer  to proof of  manufacturing defect,          design  defect, and  warning defect  as three  different ways  of          proving  product defect, not just as factors bearing upon one way          of  proving  product  defect.    See  Brochu,  642  F.2d  at  661                                           ___  ______          (discussing separately the "design-defect theory" and the  "duty-          to-warn  theory"  with respect  to  jury  instructions under  New          Hampshire law); Thibault, 395  A.2d at 846 (distinguishing policy                          ________          factors bearing  upon strict  liability for  manufacturing defect          from those  bearing upon strict  liability for design  defect and          citing   James   A.   Henderson,   Jr.,   "Judicial   review   of          Manufacturers'   Conscious  Design  Choices:     The   Limits  of          Adjudication,"  73   Colum.  L.  Rev.  1531   (1973));  see  also                                                                  _________          Restatement  (Third) of Torts:   Products Liability,    2 cmt. a,          Tentative  Draft No.  1 (Apr.  12, 1994)(setting  forth "separate          standards of liability for manufacturing defects, design defects,          and defects  based on  inadequate instructions or  warnings," and          explaining different sets of  policy arguments and objectives for          the   separate  standards);  id.,   Reporters'  Note,   at  35-80                                       ___          (explaining the Reporters' view  that the formulation of separate          standards for  manufacturing,  design,  and  warning  defects  is          consistent with  the weight of  precedent); Oscar  S. Gray,  "The          Draft ALI Product Liability Proposals:  Progress or Anachronism?"          61 Tenn. L. Rev. 1105,  1108 (1994)(although criticizing the  ALI          Tentative Draft  in other respects, accepting the point that "the          overwhelming body  of interpretation  by the courts  has accepted          the three-pronged differentiation between  manufacturing, design,                                         -13-          and warning defects").                    Appellant  cites  Chellman  as  holding,  or  at  least                                      ________          implying, that there is only one strict product  liability theory          in  New Hampshire  law,  and that  only  one question  about  the          adequacy  of  plaintiff's proof  of  strict  liability should  be          submitted to a jury.  A  close reading of the case, however, does          not support the view  that Chellman addressed the  choice between                                     ________          (a)  treating manufacturing  defect, design  defect, and  warning          defect  as  separate  theories,   each  involving  a  distinctive          standard for determining liability, and (b) treating the three as          merely factors  in a single multiple-factors  standard for making          an  evaluative  determination  that a  product  is  or  is not  a          defective product.                    In Chellman, the defendant argued that strict liability                       ________          for design defect and  strict liability for failure to  warn were          distinct,  and that the plaintiff  had failed to  plead a strict-          liability-for-failure-to-warn claim.   See Chellman, 687 A.2d  at                                                 ___ ________          151.   In  deciding that  the plaintiff's  complaint sufficiently          stated  a  strict liability  claim,  on the  basis  of inadequate          warning, to  meet plaintiff's  burden of  pleading, see  id., the                                                              ___  ___          court  did not  need  to or  purport  to decide  whether  proving          defective warning and proving  defective design in respects apart          from  warning were two  separable ways of  proving strict product          liability.    Thus, Chellman  neither  endorses  nor rejects  the                              ________          general proposition that manufacturing defect, design defect, and          warning defect are commonly treated by courts and commentators as                                         -14-          three separate ways of proving product liability.                    The  commonly accepted  understanding that  a plaintiff          must  establish  one or  another of  the  three kinds  of defects          (manufacturing  defect, design  defect, or  warning defect)  by a          preponderance  of the evidence  leaves the jury  entirely free to          weigh a single  item of evidence as relevant to  claims of two or          even all three kinds of defect.  Thus, for example, New Hampshire          case law  supports the  proposition that evidence  concerning the          existence and adequacy  of a warning  is relevant not  only to  a          warning defect  claim, but  also to a  design defect claim.   See                                                                        ___          Chellman, 637 A.2d at 150; Reid v.  Spadone Machine Co., 404 A.2d          ________                   ____     ___________________          1094, 1097 (N.H. 1979)("This  condition [the placement of certain          buttons on  a machine], coupled with  inadequate warnings against          two-person  use, could properly be found to have made the machine          'unreasonably dangerous.'").                    The  issue before  us  now, however,  does not  concern          admissibility of evidence.   The jury was free under  the court's          rulings,  absent limiting instructions,  to consider all evidence          received  at trial.  In these circumstances, we conclude that the          jury's finding of no violation  as to the duty-to-warn negligence          claim bars  the strict-liability-duty-to-warn claim.   This is so          because in finding  that there  was no liability  for failure  to          warn on the negligence theory  the jury necessarily found  either          (1) that  plaintiff failed to prove that the defendant's warnings          and instructions violated the prudent care  standard or (2) that,          if the warning was inadequate, plaintiff failed to prove that the                                         -15-          inadequacy of the warning caused the plaintiff's injury.                                    ______                    Under either of the two possible interpretations of the          jury's finding, the jury has determined that plaintiff has failed          to  prove by a preponderance  of the evidence  any violation of a          duty  of prudent  care  as to  warning.   This  bars the  strict-          liability-as-to-warning claim  unless the  law  of New  Hampshire          imposes  a more onerous duty than one  of prudent care as part of          the law of strict product liability.          B.        An All-Factors Evaluative Determination          B.        An All-Factors Evaluative Determination                    Appellant's weighing-of-all-factors  argument, if taken          at face  value and without  qualification, leads implicitly  to a          surrender of judicial responsibility  for instructing the jury to          respect the law's outside  limits on jury discretion.  It is true          that appellant's argument for an unlimited all-factors evaluative          determination by the jury  has a surface plausibility, which  may          appear to be reinforced by support in some states for application          of a standard requiring the jury to "weigh competing factors much          as they  would in  determining the  fault of the  defendant in  a          negligence case."   Back v.  Wickes, 378 N.E.2d  964, 970  (Mass.                              ____     ______          1978).  Thus:                        In   evaluating   the  adequacy   of  a                      product's   design,   the   jury   should                      consider,   among  other   factors,  "the                      gravity  of  the   danger  posed  by  the                      challenged  design,  the likelihood  that                      such danger would  occur, the  mechanical                      feasibility   of   a  safer   alternative                      design, the financial cost of an improved                      design, and the  adverse consequences  to                      the  product  and  to the  consumer  that                      would result from an alternative design."                                         -16-          Id. at 970 (quoting Barker v. Lull Eng'r Co., 573  P.2d 443 (Cal.          ___                 ______    ______________          1978) and citing  Bowman v.  General Motors Corp.,  427 F.  Supp.                            ______     ____________________          234, 242 (E.D. Pa. 1977)).                    The  plausibility of appellant's argument is reinforced          by  the  statement  of the  Supreme  Court  of  New Hampshire  in          Thibault that:          ________                        Inquiry  into  the  dangerousness of  a                      product    requires    a    multi-faceted                      balancing process involving evaluation of                      many   conflicting  factors   .  .   .  .                      Reasonableness,  foreseeability, utility,                      and similar factors are questions of fact                      for jury determination.          Thibault,  395 A.2d  at 846-47;  see also  Espeaignnette v.  Gene          ________                         ________  _____________     ____          Tierney Co.,  No. 94-1258,  slip. op. at  10 (1st  Cir. Dec.  28,          ___________          1994)(citing  St. Germain v. Husqvarna  Corp., 544 A.2d 1283 (Me.                        ___________    ________________          1988) and discussing the "danger-utility" test used  by the Maine          courts).  Perhaps even more supportive of appellant's argument is          another passage from the opinion of the Supreme Judicial Court of          Massachusetts in Back v. Wickes Corp.:                           ____    ____________                        In  balancing  all  of   the  pertinent                      factors [in deciding whether there  was a                      design  defect] the jury makes a judgment                      as  to the  social  acceptability of  the                      design, and  this  is the  same  judgment                      originally  made by  the designer  of the                      product.          378 N.E.2d at 970.                    Even if  one  takes these  passages to  mean that  some          policy weighing is left  to the jury, however, it does not follow          that   the  legal  system   approves  an   unlimited  all-factors          evaluative  determination by  the jury.    Even when  approving a                                         -17-          multiple-factors-weighing-test  for  jury   use  in  finding   an          "ultimate fact,"  such as product  defect, the legal  system does          not authorize the jury  to give whatever weight the  jury chooses          to  arguments of public policy  for and against strict liability.          To do so would leave to  the jury an authority and responsibility          that is  unguided by  any public  policy  determinations made  in          statutes and precedents.                    Ordinarily  issues of  public policy  are in  the first          instance appropriate for a legislature's determination by statute          and, if not determined by statute,  may be determined by a  state          court of last resort in its decisions setting precedents.                    We do not understand appellant's counsel as  explicitly          arguing  for a broad and sweeping jury discretion that extends to          public   policy  issues   ordinarily  decided   by   statutes  or          precedents.   We  consider  the argument  in  this extreme  form,          however, because of the procedural posture of this case.                    Appellant seeks a new  trial despite a supportable jury          finding that defendant did not fail to exercise ordinary prudence          with  respect   to  warning   and  instructions  for   use.  This          contention,  however,  is  procedurally  barred  unless plaintiff          proffered an  instruction or  objection clearly giving  the trial          judge  and the  opposing party  notice of  this theory  of claim,          including a  formulation of an acceptable  limit or qualification          to  distinguish  plaintiff's  contention  from  an  argument  for          unlimited jury discretion.   Thus, we  consider the more  extreme          implications of the  unqualified argument to make the  two points                                         -18-          that a limit is essential and that the burden is on the plaintiff          to propose  an acceptable explanation  of that limit  rather than          asking a trial court to leave a jury unguided.                    To sustain appellant's  argument for a new trial on the          procedural  record before us, we would have to determine that New          Hampshire  tort law places no  limit on the  jury's authority, in          reaching  the  jury's  overall  evaluative finding  in  a  strict          liability  case, to weigh all policy arguments (or at least those          policy arguments supported by any evidence received in the trial)          for and against strict liability, in reaching the jury's  overall          evaluative finding in a strict liability case.                    We  cannot  say that  New  Hampshire  has adopted,  and          cannot  predict that it will  adopt, the novel  position that the          jury  has  this  authority.    Allowing  the jury  such  sweeping          authority  would  be contrary  to  premises  so fundamental  that          courts only rarely sense a need to advert to them.                    The  first  of  these  basic premises  of  settled  law          concerns the  role of precedent in  the legal system.   A court's          acceptance  of   an  argument  for   a  literally   "all-factors"          evaluative decision by a jury of a strict product liability claim          would have the effect of delegating to the jury the authority and          responsibility  for  weighing  conflicting  arguments  of  public          policy  bearing upon the scope and limits of strict liability and          striking the  balance that determines the  legal system's answer,          case by case.  This would undermine the  function of precedent in          ____ __ ____          the  legal system -- to promote evenhanded decision of like cases                                         -19-          alike.  Judicial decisions considering similar arguments for jury          discretion  to weigh  public policy  arguments have  rejected the          idea.   See, e.g., Shackil v. Lederle Laboratories, 561 A.2d 511,                  ___  ____  _______    ____________________          528 (N.J. 1989) (the majority, over vigorous dissent, declined to          leave to a jury a public policy choice that, it was argued, would          drive  DPT vaccine  for  infants off  the  market); Bammerlin  v.                                                              _________          Navistar Int'l Transp.  Corp., 30  F.3d 898  (7th Cir.  1994)(the          _____________________________          trial  court,  not the  jury,  should  have  made the  evaluative          determination  whether a  truck  cab  manufacturer complied  with          federal   safety  standards);   Bryant  v.   Tri-County  Electric                                          ______       ____________________          Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994)(the court, not          ________________          the jury, weighed "the public policy goals of protecting consumer          and discouraging the sale  of defective goods" and held  that the          strict  liability doctrine  applied to  the services  of electric          utilities).  But cf.  Dawson v. Chrysler Corp., 630  F.2d 950 (3d                       _______  ______    ______________          Cir. 1980), cert. denied, 450 U.S. 959, 962-63 (1981)(recognizing                      ____________          the dangers of  such a case-by-case determination in  the context          of  motor vehicle  safety standards  but declining  to reverse  a          judgment entered  on a verdict  of a  jury that was  allowed very          broad discretion by the trial court's charge).                    A  second   basic  premise  of  settled   law  is  that          determinations of liability (whether under a concept of "duty" or          "cause" or some other terminology  such as "scope of  liability")          are never exclusively "fact"  questions to be decided by  a jury,          or by a judge as factfinder in a non-jury trial.   Even when some          disputed issue of historical  fact is relevant, the determination                                         -20-          of "duty," "cause," or  "scope of liability" is a  mixed law-fact          determination  rather than  exclusively  a fact  question.   See,                                                                       ___          e.g.,  Deguio v.  United  States, 920  F.2d  103, 105  (1st  Cir.          ____   ______     ______________          1990)(determination of negligence  is a mixed question of law and          fact  and entitled to clear  error standard of  review); St. Paul                                                                   ________          Fire & Marine Ins. Co. v. Caguas Fed. Sav. & Loan Ass'n, 867 F.2d          ______________________    _____________________________          707,   708  (1st   Cir.  1989)("Negligence   and   causation  are          traditionally  mixed questions of fact and law."); cf. Milliken &                                                             ___ __________          Co. v. Consolidated Edison  Co., 63 U.S.L.W. 2361 (N.Y.  Ct. App.          ___    ________________________          1994)("The existence  and scope of an  alleged tortfeasor's duty,          at   the  threshold,  is   a  legal,  policy-laden  determination          dependent on consideration of different forces, including  logic,          science, [and] competing socio-economic policies . . . .").                    When  a jury  participates  in the  determination of  a          mixed-law-fact question,  it does so under  instructions from the          trial  judge  explaining  the  legal aspects  of  the  evaluative          "finding" the jury  makes.  See Kissell v.  Westinghouse Electric                                      ___ _______     _____________________          Corp., 367 F.2d 375,  376 (1st Cir. 1966)(special interrogatories          _____          to the jury can be  mixed questions of law and fact, if  the jury          is properly instructed  as to  the law); see  also Chellman,  637                                                   _________ ________          A.2d  at  151  ("Clear  and intelligible  jury  instructions  are          particularly  important to  explain  complex  or confusing  legal          concepts.").                    In the  face of  these settled principles,  no decision          cited to us, and none of which we are aware,  in New Hampshire or          elsewhere,  requires  the submission  to  the  jury  of a  single                                         -21-          evaluative  question determining  a strict  liability claim.   We          conclude  that, in deciding this  appeal in a  diversity case, we          should not  predict an expansion  of strict  liability under  New          Hampshire law to the extent of permitting juries a discretion not          guided by instructions  on the  limits set by  the public  policy          choices,  explicit and  implicit, in  New Hampshire  statutes and          precedents.  Cf. Thibault,  395 A.2d at 847 (indicating  that the                       ___ ________          strict liability  cause of  action is narrower  in New  Hampshire          than  in   some  other   jurisdictions);  Bagley   v.  Controlled                                                    ______       __________          Environment  Corp.,  583  A.2d  823, 826  (N.H.  1986)(discussing          __________________          Buttrick v. Lassard and stating that the strict liability actions          ________    _______          are  limited to claims for  which requiring a  plaintiff to prove          negligence   would  pose   "a  practical  barrier   to  otherwise          meritorious claims").                                          V.                                          V.                    Remaining  for  consideration  is appellant's  argument          that  even  if  the jury  should  not  be  allowed such  sweeping          discretion, at least appellant  should be allowed a new  trial to          seek a jury finding under an instruction on duty to warn somewhat          more burdensome to  a defendant  than merely a  duty of  ordinary          prudence.  This  issue, however,  is the question  stated at  the          beginning  of this Opinion.  It is the interesting question that,          on federal procedural grounds, we conclude we should not reach in          this case.  Not  having objected precisely on this ground and not          having proposed to the  trial judge an acceptable  instruction to          the  jury on a question that, viewed most favorably to appellant,                                         -22-          is  a  mixed-law-fact  question,   appellant  is  precluded  from          advancing this contention now.                     Plaintiff's requests  for instruction and  objection to          the  charge,  generously  construed  in  plaintiff's favor,  were          sufficient,  we assume, to  alert the trial  judge to plaintiff's          contention that  a departure from ordinary  prudence with respect          to  warning  and instructions  for use  would render  the product          defective for the purpose  of plaintiff's strict liability claim.          In  its  denial of  the  motion for  new  trial, the  trial court          conceded that its instruction had been in error in this regard.                    Apart  from  this  ground  of  request  and  objection,          however, plaintiff  proffered no form  of instruction on  duty to          warn as part of the strict liability claim.  For this reason, the          request  and objection were  not specific enough  to preserve any          other issue  with respect to the strict liability instruction for          consideration on motion for new trial or on appeal.   See Fed. R.                                                                ___          Civ. P.  51; see also  Jordan v. United  States Lines,  Inc., 738                       ________  ______    ___________________________          F.2d 48 (1st Cir. 1984)(holding that appellant's objection to the          trial court's instruction on the definition of  "unseaworthiness"          was not  specific enough to satisfy Rule  51).  Moreover, even in          the brief before this  court and on oral argument,  appellant has          failed  to propose any instruction that would define the issue or          issues  left to be  tried after we  accept, as already  tried and          fairly determined, the issues decided by the jury verdict.                    The  jury findings  (which we  have determined  are not          undermined by any of appellant's attacks) must stand.  And, as we                                         -23-          have noted,  appellant has  not  proffered any  definition of  an          issue, for which there is support in precedent or in reason, left          to  be tried  on new  trial.   To  remand for  new trial  without          providing  any guidance  about the  issue or  issues to  be tried          would be inappropriate.   And, of course, it would  be manifestly          unfair to set aside the fairly determined jury findings and award          a  new trial  without  limitation.   Thus,  we affirm  the  trial          court's denial of the plaintiff's motion for new trial.                                     CONCLUSIONS                                     CONCLUSIONS                    First.    Plaintiff-appellant's challenges to the  jury          findings on the basis  of the instructions given on duty  to warn          in  negligence are without merit and  the jury findings establish          that plaintiff failed  to prove causal negligence in any relevant          way  (including due care in warning and instructions for use) and          plaintiff failed  to prove that  defendant is strictly  liable on          any ground apart from failure to warn.                    Second.         Plaintiff-appellant's    requests   for          instruction and objection  to the charge on  the strict liability          claim were not sufficient to preserve on motion for new trial and          on  appeal the contention that, under New Hampshire law, the duty          to warn as a part of a strict liability  claim requires more of a          defendant than does the duty to warn in a negligence claim.                    Third.   New Hampshire substantive law does not require          that a product defect  be determined on the basis of an unlimited          all-factors  weighing  by  a  jury,  unguided  by  statutory  and          decisional limitations on the scope of strict liability.                                         -24-                    Fourth.     In light of  these conclusions,  the jury's          verdict in defendant's favor on  the duty to warn as part  of the          negligence claim precludes a finding in plaintiff's favor  on the          duty to warn as part of the strict liability claim, and any error          of  the trial  court with  respect to  the instruction  on strict          liability was harmless.                    Judgment for defendant is AFFIRMED, with costs.                                         -25-
