Jenks v. New Hampshire Motor Speedway
| Decision Date | 23 April 2012 |
| Docket Number | Opinion No. 2012 DNH 075,Civil No. 09-cv-205-JD |
| Parties | Melissa Jenks, individually, and as g/n/f of Roderick Jenks v. New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc. v. A.B.L., Inc. |
| Court | U.S. District Court — District of New Hampshire |
Melissa Jenks, as the guardian and next friend of her husband, Roderick Jenks, and on her own behalf, sued New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc., alleging negligence claims against Thompson and the Speedway and product liability claims against Textron. Textron brought cross claims against the Speedway and Thompson for contribution and indemnification. The Speedway and Thompson brought cross claims against Textron for contribution and indemnification and third-party claims against Textron Financial Corporation and A.B.L., Inc. ("ABL")1 In anticipation of trial, the court ordered briefing on the issue of whether New Hampshire would recognize a continuing duty to warn as provided by § 10 of the Restatement (Third) of Torts: Products Liability (1998) ("Restatement: PL"). Jenks filed a motion supported by a memorandum of law to allow evidence and instruction on the continuing duty to warn. The Speedway and Thompson filed a memorandum in support of the continuing duty to warn. Textron filed an objection to the plaintiffs' motion, and Jenks, the Speedway, and Thompson have filed replies. Textron filed a surreply.
As addressed in the motion and memoranda, the issues to be resolved here are: 1) whether New Hampshire would recognize a post-sale or continuing duty to warn in products liability cases, and 2) whether evidence of a continuing duty to warn will be allowed, accompanied by an appropriate jury instruction on that issue at the conclusion of the case.
When this court sits in diversity jurisdiction, the substantive law of the forum state governs the decision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). "Where the highest[state] court has not spoken directly on the question at issue, [the federal court] must predict, as best [it] can, that court's likely answer." Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). The prediction is based on the state supreme court's analogous decisions, any decisions of lower state courts, and other reliable sources such as the decisions of other courts and commentary in treatises. See Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011); Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 54 (1st Cir. 1998).
Textron argues that a lack of New Hampshire Supreme Court precedent adopting a post-sale or continuing duty to warn bars that theory in this case. Textron misunderstands the difference between this court's obligation under diversity jurisdiction to apply established New Hampshire law and its related duty to proceed when governing precedent is lacking.2 While a federalcourt cannot change existing state law by adopting new exceptions, see Katz v. Pershing, LLC, --- F.3d ---, 2012 WL 612793, at *6 (1st Cir. Feb. 28, 2012), when precedent is lacking, a federal court must predict, if possible, the course the state court would take, Barton, 632 F.3d at 17. See also Gonzalez Figueroa v. J.C. Penney P.R., Inc., 586 F.3d 313, 322 (1st Cir. 2009); Jenks v. New Hampshire Motor Speedway, et al.. Civil No. 09-cv-205-JD, Op. No. 2012 DNH 009, at *4-*8 (Jan. 11, 2012). Therefore, the absence of governing precedent in New Hampshire on the issue of a continuing duty to warn of a product defect does not necessarily preclude that theory in this case.
The product liability theory of a post-sale or continuing duty to warn is set forth in § 10 of the Restatement: PL. Under § 10, a seller or distributor is liable "for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning." When the Restatement: PL was published in 1998, "[j]udicial recognition of the seller's duty to warn of a product-related risk after the time of sale, whether or not the product is defective at the time of original sale within themeaning of other Sections of this Restatement, [was] relatively new." Id., § 10, cmt. a.
Previously in this case, the court predicted that the New Hampshire Supreme Court would follow § 1 and § 20(b) of the Restatement: PL which expand strict liability to, among others, commercial lessors of defective products. See Order, doc. no. 146, Op. No. 2012 DNH 009 at *4-*8. In that order, the court reviewed the New Hampshire Supreme Court's precedent in the area of products liability along with decisions from other courts and concluded that the supreme court would impose strict liability on commercial lessors of defective products. The same standard for predicting the New Hampshire Supreme Court's likely course with respect to a post-sale or continuing duty to warn applies here.
The New Hampshire Supreme Court has not addressed this issue directly in product liability cases. In McLaughlin v. Fisher Eng'g, 150 N.H. 195 (2003), the plaintiffs brought a product liability suit against the manufacturer of a snowplow mount, seeking damages for enhanced injuries allegedly caused by the mount in an accident. The plaintiffs sought to introduce evidence of fourteen post-sale lawsuits against Fisher to prove that the asserted defect existed, that the defect caused a risk of harm, and that Fisher knew or should have known of the danger. Id. at 197. The trial court ruled that the post-sale lawsuitswere not relevant unless the plaintiffs "'were to establish the criteria concerning a duty to warn after the sale.'"3 Id. (quoting trial court). The trial court ultimately excluded the evidence of other lawsuits except for certain statements made by Fisher in the prior lawsuits to the extent that "the plaintiffs qualified those statements as admissions." Id.
On appeal, the supreme court stated: "We agree with the plaintiffs that evidence of other lawsuits was relevant to the issue of Fisher's knowledge that the snowplow mount was potentially dangerous." Id. at 198. The court held, however, that the evidence was not necessary because Fisher had admitted its knowledge of the danger and that the plaintiffs were not unreasonably prejudiced by its exclusion. Id. In addition, the court noted that the evidence about other lawsuits "was likely to produce a trial within a trial and confuse the jury." Id. As such, the issue of whether the theory of continuing duty to warn was viable under New Hampshire law was not presented. It is apparent, however, that in McLaughlin the supreme court assumed it to be a valid theory of liability.
In Cheshire Med. Ctr. v. W.R. Grace & Co., 853 F. Supp. 564, 567 (D.N.H. 1994), the federal district court instructed the juryin a products liability case that the defendant had a continuing duty to warn of dangers associated with the product even after it had been sold. The validity of that theory was not challenged. Therefore, the court had no occasion to consider whether the New Hampshire Supreme Court would recognize that theory.
In Tate v. Robbins & Myers, Inc., 790 F.2d 10 (1st Cir. 1986), the First Circuit considered an appeal in a products liability case from the District of New Hampshire in which the plaintiff proceeded on theories of an inadequate warning at the time of sale and a breach of the continuing duty to warn. The trial court had excluded a post-sale manual, as evidence of the breach of the continuing duty to warn, on the ground that the plaintiff failed to provide evidence that the plaintiff had notified the manufacturer of his purchase of the machine. Id. at 11-12. The court affirmed on appeal. As in Cheshire Med., the case proceeded on a continuing duty to warn theory without a challenge to that theory. It is apparent that the theory was accepted by both the trial and appellate courts.
In support of its argument that a continuing duty to warn is not consistent with New Hampshire law, Textron relies on decisions that pre-date the Restatement: PL and are based on product liability as provided in the Restatement (Second) ofTorts.4 See, e.g., Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 807 (1978); McLaughlin v. Sears, Roebuck & Co., 111 N.H. 265, 267 (1971). Textron further argues that the New Hampshire Supreme Court has recognized only a narrow version of product liability. Textron notes that the supreme court has not imposed liability on successors to a product's manufacturer based on a "product line" theory, Simoneau v. S. Bend Lathe, Inc., 130 N.H. 466, 469-70 (1988), and has not imposed liability for defects that were "scientifically unknowable" at the time of sale, Heath v. Sears, Roebuck & Co., 123 N.H. 512, 530 (1983).
Textron also contends that the New Hampshire Supreme Court's decision in Vautour v. Body Masters Sports Indus., Inc., 147 N.H. 150 (2001), demonstrates the court's narrow view of product liability. In Vautour, the supreme court rejected § 2(b) of the Restatement: PL, which requires plaintiffs to present evidence of a safer alternative design as part of the proof of a design defect claim. Id. at 155. The court noted "considerable controversy" about § 2(b) that stemmed "from the concern that a reasonable alternative design requirement would impose an undue burden on plaintiffs because it places a potentially insurmountable stumbling block in the way of those injured bybadly designed products." Id. (internal quotation marks omitted). The court also noted the practical problems of applying § 2(b) and that applying § 2(b) would over-emphasize one aspect of the risk-utility analysis. Id. at 156. Therefore, the New Hampshire Supreme Court maintained a broader view of product liability by rejecting § 2(b). Vautour does not support Textron's argument.
Under New Hampshire law, a manufacturer of a product is strictly liable for injury caused by the product's defective design if "'the design of the...
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