Cheshire Medical Center v. W.R. Grace & Co.
| Decision Date | 07 December 1994 |
| Docket Number | No. 94-1687,94-1687 |
| Citation | 49 F.3d 26 |
| Parties | CHESHIRE MEDICAL CENTER, Plaintiff-Appellant, v. W.R. GRACE & CO., Defendant-Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Daniel A. Speights, Hampton, SC, with whom Michael P. Hall, Nixon, Hall and Hess, Manchester, NH and Speights & Runyan, Hampton, SC, were on brief, for appellant.
Richard V. Wiebusch, with whom Harry T. Daniels, Jane Cetlin Pickrell, Hale and Dorr, Manchester, NH, Howard M. Cooper and Todd & Weld, Boston, MA, were on brief, for appellee.
Before SELYA and CYR, Circuit Judges, and 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.
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 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
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.
Plaintiff x Defendant
Plaintiff x Defendant
Plaintiff x Defendant
award to Plaintiff using words and figures (as in writing a check).
Damages awarded: --none--
($ )
/s/
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, 138 N.H. 73, 637 A.2d 148 (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.
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, 637 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 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.
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.
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." 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., 118 N.H. 802, 395 A.2d 843 (1978) (). 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 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.
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...
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