Cheshire Medical Center v. WR Grace & Co.

• Decision Date: 24 May 1994
• Docket Number: No. CV-88-516-M.,CV-88-516-M.
• Citation: 853 F. Supp. 564
• Parties: CHESHIRE MEDICAL CENTER, Plaintiff v. W.R. GRACE & CO. and W.R. Grace & Co.—Conn., Defendants.
• Court: U.S. District Court — District of New Hampshire

853 F. Supp. 564

CHESHIRE MEDICAL CENTER, Plaintiff v. W.R. GRACE & CO. and W.R. Grace & Co.—Conn., Defendants.

No. CV-88-516-M.

United States District Court, D. New Hampshire.

May 24, 1994.

COPYRIGHT MATERIAL OMITTED

Daniel A. Speights, Hampton, SC, Michael P. Hall, Manchester, NH, for plaintiff.

Richard V. Wiebusch, Manchester, NH, Harry T. Daniels, Boston, MA, for defendants.

ORDER

McAULIFFE, District Judge.

Plaintiff Cheshire Medical Center ("Cheshire") sued W.R. Grace & Co. and W.R. Grace & Co.-Conn. (collectively "W.R. Grace") for damage to its building allegedly resulting from the installation of asbestos-containing fireproofing manufactured and supplied by defendant. Cheshire sought recovery under three theories of liability: negligence, strict liability, and breach of implied warranty. After an eighteen day trial, the jury returned a verdict for defendant on all three counts.

Cheshire now moves for a new trial, asserting evidentiary errors and errors in the jury charge.

I. Standard of Review

A motion for a new trial will be granted if a court has committed an error that adversely affects the moving party's substantial rights. Fed.R.Civ.P. 61; McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553-54, 104 S.Ct. 845, 848-49, 78 L.Ed.2d 663 (1984). Harmless error is not grounds for a new trial. Fed.R.Civ.P. 61.

II. Jury Instructions

A. Strict Liability Failure to Warn

Cheshire's soundest claim relates to the court's failure to specifically instruct on defendant's "duty to warn" relative to Cheshire's strict liability theory. The court instructed the jury that W.R. Grace's failure to warn of any foreseeably dangerous uses of its product would constitute a breach of a duty owed to the plaintiff under the law of negligence. However, the court did not specifically instruct the jury that W.R. Grace's failure to warn could also render its fireproofing product unreasonably dangerous for purposes of strict liability. Cheshire argues that the court's omission of a failure-to-warn instruction on its strict liability count amounted to prejudicial error requiring a new trial.¹

In this diversity case, consideration of Cheshire's assertion of error necessarily begins with a review of applicable New Hampshire law. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). New Hampshire's strict liability law is different from that of many other jurisdictions that have adopted section 402A of the Restatement (Second) of Torts. Here, strict liability does not mean "liability without fault." Simoneau v. South Bend Lathe, Inc., 130 N.H. 466, 469-70, 543 A.2d 407, 409 (N.H.1988); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 806, 395 A.2d 843, 845-46 (N.H.1978). New Hampshire explicitly rejects the view that strict liability should serve as a no-fault compensation system or a means for spreading risk in society. Thibault, 118 N.H. at 806, 395 A.2d at 845-46. Rather, in this state strict liability actions are limited to claims arising from defective products where requiring a plaintiff to prove negligence would pose "a practical barrier to otherwise meritorious claims." Bagley v. Controlled Environment Corp., 127 N.H. 556, 560, 503 A.2d 823, 826 (N.H.1986); see also Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 39, 260 A.2d 111, 113 (N.H.1969).

Under New Hampshire's law of products liability, "the duty to warn is part of the general duty to design, manufacture, and sell products that are reasonably safe for their foreseeable uses." Chellman v. Saab-Scania AB, 138 N.H. 73, 78, 637 A.2d 148, 150 (N.H.1993). If the design of a product makes a warning necessary to avoid an unreasonable risk of harm from a foreseeable use, the lack of warning (or an inadequate warning) is sufficient to make the product defective and unreasonably dangerous. See id. (citing Restatement (Second) of Torts § 402A, cmts. h and j); see also Thibault, 118 N.H. at 808, 395 A.2d at 846-47. This duty to warn "is limited to foreseeing the probable results of the normal use of the product or a use that can reasonably be anticipated." Thibault, 118 N.H. at 808, 395 A.2d at 847 (quoting McLaughlin v. Sears, Roebuck & Co., 111 N.H. 265, 268, 281 A.2d 587, 588 (N.H.1971)). A manufacturer is not required to warn against obvious dangers or absurd uses of a product because "individual consumers have certain responsibilities" to avoid unreasonable and unintended uses of a product. Id.

In Chellman v. Saab-Scania AB, supra, the New Hampshire Supreme Court held that a trial judge's refusal to give a failure-to-warn instruction on plaintiff's strict liability claim for defective design was reversible error. The jury in that case had been instructed on the general rule of strict liability for design defects, but "the charge did not explain that the jury could consider whether failure to warn of a foreseeable danger made the product defective." Chellman, 138 N.H. at 79, 637 A.2d at 151. Although the jury found by special verdict that the product contained no design defects which would make it unreasonably dangerous, the supreme court held that "consideration of a warning, or lack thereof, as part of the analysis of design defect, is not obvious to a jury and must be explained through proper instruction. ..." Id. (emphasis added). Because the jury instructions in Chellman "could have misled the jury as to the proper considerations for determining design defect," the trial court's failure to instruct on the manufacturer's duty to warn could not be deemed harmless error. Chellman, 138 N.H. at 80, 637 A.2d at 152.

In this case, Cheshire advanced two related claims: It alleged (1) that W.R. Grace's failure to place a warning on its fireproofing product was negligent, and (2) that the absence of a warning also rendered the fireproofing unreasonably dangerous. The court instructed the jury on plaintiff's negligence claim, in part, as follows:

In determining whether or not the defendant was negligent you must consider whether the defendant breached any duties owed to the plaintiff.

1. Duty to Warn

If the defendant knew or should have known that the fireproofing it sold to the plaintiff was dangerous to people or that it would damage property, the defendant had a duty in the exercise of reasonable care to inform purchasers of the fireproofing of that danger. The defendant had a continuing duty to warn the plaintiff of dangers associated with the fireproofing even after the sale of the fireproofing to the plaintiff if the defendant discovered after the sale that the product was defective or dangerous.

2. Duty to Acquire Knowledge

The defendant, as a manufacturer, had a duty to be aware of available scientific knowledge concerning the health hazards associated with the asbestos contained in its fireproofing. Manufacturers are presumed to possess the skill and knowledge of experts in their business, and to possess expert knowledge concerning the materials and processes available to the industry.

3. Duty to Test for Defects

The defendant had a duty to use reasonable care to test its product to discover any latent or hidden defects. The defendant had a duty to test its fireproofing to see if it would release hazardous asbestos fibers during normal and foreseeable conditions of building use and maintenance.

Jury Instructions (Court Exhibit no. 2) at 16-17. The strict liability charge included the following instruction:

2. Unreasonably Dangerous Condition

A product is unreasonably dangerous if it poses a danger to an extent beyond that which may be contemplated by the ordinary consumer who purchases it, and who possesses the degree of knowledge as to its characteristics common to the community of persons intended to purchase and use the product.

In deciding whether the fireproofing product presents an unreasonable danger, you should consider the desirability and usefulness of the product to the public as a whole. Even if you decide that the fireproofing is desirable and useful to the public as a whole, consider whether the risk of unreasonable danger could have been reduced without significant impact on the effectiveness of the product and the cost of manufacturing; liability may exist if the manufacturer, W.R. Grace, did not take available and reasonable steps to lessen or eliminate the danger of even a useful and desirable product. A manufacturer is not obliged to design the safest possible product, or a safer product, or one as safe as others make, so long as the product it designed is not unreasonably dangerous.

Jury Instructions (Court Exhibit no. 2) at 19-20.

As noted, if a defendant's failure to warn is properly at issue in a strict liability design defect case, Chellman requires that the jury be instructed specifically on that point. Here W.R. Grace argues that this court's instruction directing the jury to consider whether defendant could have taken any "available and reasonable steps to lessen or eliminate the danger" posed by its product adequately informed the jury of the appropriate considerations, including whether the absence of a warning rendered the fireproofing product defective. The court respectfully disagrees.

The Chellman decision emphasized the possibly confusing or misleading aspects of a general instruction on defective design. The "available and reasonable steps" language of the strict liability instruction given in this case did little if anything to explain how a "non-obvious" duty to warn might relate to the issue of design defect. Because the instruction given did not specifically inform the jury that the manufacturer's failure to warn could be relevant to the existence of an unreasonably dangerous design defect, Chellman compels the conclusion that the court's omission of a strict liability failure-to-warn instruction in this case was indeed error. Plaintiff's counsel properly preserved the issue by timely objection. Accordingly, Cheshire is entitled to a new trial, on the strict liability count, if...