Skillin v. Kimball, 80-1269
| Decision Date | 04 February 1981 |
| Docket Number | No. 80-1269,80-1269 |
| Parties | Myron F. SKILLIN, Plaintiff, Appellee v. Earle W. KIMBALL, etc., et al., Defendants, Appellees, Therm'x Corporation, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
E. Donald Dufresne, Manchester, N. H., with whom Andrew D. Dunn and Devine, Millimet, Stahl & Branch, Manchester, N. H., were on brief, for appellant.
Fredric A. Swartz, Boston, Mass., with whom Edward M. Swartz, Alan L. Cantor, and Swartz & Swartz, Boston, Mass., were on brief, for appellee Myron F. Skillin.
Before COFFIN, Chief Judge, MARKEY, Judge, * BREYER, Circuit Judge.
The losing defendant in this diversity products liability suit claims three errors at trial: inconsistent special findings by the jury, admission of evidence of subsequent remedial conduct, and the jury's award of the full amount of damages requested. We affirm.
Plaintiff-appellee was injured on October 25, 1972 when his propane gas heater caused an explosion. He sued the French manufacturer, Societe Lyonnaise des Applications Catalytiques; the American importer and distributor, appellant Therm'x; the Canadian importer and distributor, R. D. Hayes, Ltd.; and the New Hampshire retailer, Earle W. Kimball. The district court tried the case against the latter three parties after the French manufacturer defaulted. The jury found against appellant on both negligence and strict liability theories, but exonerated both Hayes and Kimball.
Appellant first complains that special findings by the jury are inconsistent with each other. We do not reach the merits of this issue since appellant did not seek to have the matter resubmitted to the jury. Prior to the jury's deliberation, counsel for appellant noted for the record "that the questions being submitted to the jury, today, the special questions were agreed upon by all counsel." Appellant thus was on notice that the special procedures of Rule 49 with their known potential for inconsistency were to be the order of the day. With this notice should have come the knowledge that the only efficient time to cure these possible problems of inconsistency would be after the jury announced the results of its deliberations and before it was excused. Although appellant's counsel in this case did remark at this time that he thought the jury's work was inconsistent, he did not pursue any relief. To allow a new trial after the objecting party failed to seek a proper remedy at the only...
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Morris v. Flaig
...the jury's opinion prove distasteful to them." Haskell v. Kaman Corp., 743 F.2d 113, 123 (2d Cir.1984) (quoting Skillin v. Kimball, 643 F.2d 19, 19-20 (1st Cir.1981)) (additional citations omitted); see also Jarvis, 283 F.3d at 67 (Van Graafeiland, J., dissenting) ("[R]esubmission to the ju......
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In re Universal
...verdict waived his right to object under Rule 49(b) by failing to object before the jury was discharged) (citing Skillin v. Kimball, 643 F.2d 19, 19–20 (1st Cir.1981)). Vivendi contends, relying on Denny, 42 F.3d at 111, that it cannot have waived its right to challenge the inconsistency be......
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Jarvis v. Ford Motor Co.
...the inconsistency, and courts want to discourage a litigant's tactical misuse of Rule 49 to secure a new trial. See Skillin v. Kimball, 643 F.2d 19, 19-20 (1st Cir.1981) (explaining rationale for requirement of pre-discharge objections). Here, however, Ford made an objection to the inconsis......
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Fernandez v. Chardon
...to the inconsistency of verdicts must be made before the jury is discharged or by motion to resubmit to the jury. Skillin v. Kimball, 643 F.2d 19, 19-20 (1st Cir. 1981); see Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 534-35 (5th Cir. 1974); Ludwig v. Marion Laboratories, Inc., 465......