Pessotti v. Eagle Mfg. Co.

Decision Date08 November 1990
Docket NumberCiv. A. No. 80-1707-K.
Citation774 F. Supp. 669
PartiesGeorge E. PESSOTTI, Plaintiff, v. EAGLE MANUFACTURING COMPANY, Defendant.
CourtU.S. District Court — District of Massachusetts

Kenneth V. Kurnos, Topkins, Gaffin & Krattenmaker, Charles R. Capace, Boston, Mass., for plaintiff.

Thomas D. Burns, John J. McGivney, Burns & Levinson, Boston, Mass., for defendant.


KEETON, District Judge.

Before the court are defendant's post-trial motions, pursuant to Rule 50, for judgment notwithstanding a verdict for the plaintiff and, in the alternative for new trial (Docket No. 175, filed August 10, 1990). This Opinion recites, in Part I, the chronology of the injury and the course of this litigation, and addresses, in Parts II-VII, issues bearing upon the present motions.


On May 12, 1979, plaintiff was removing carpeting from his kitchen. Some of the glue that had been used to cement the carpeting to the floor stuck to the linoleum below. To remove the glue, plaintiff used gasoline as a solvent. Plaintiff brought the gasoline into his kitchen in a gasoline container designed and marketed by defendant.

Although an effective solvent, gasoline produces vapors that are extremely flammable. When these vapors came into contact with the continuously burning pilot light on plaintiff's Magic Chef stove, plaintiff was engulfed in flames.

On July 29, 1980, plaintiff sued Magic Chef, Inc., the manufacturer of the stove, asserting that Magic Chef was liable because it failed to warn plaintiff that the stove had a continuously burning pilot light and that no flammable liquids or gasses should be used near the stove. In January 1988, plaintiff settled with Magic Chef for $15,000 (Docket No. 105, filed January 12, 1988).

In late 1984, more than four years after the filing of the initial complaint and more than five years after the accident, plaintiff's expert discovered a roll of unprinted photographic negatives in the files at the police station. One of the subsequently printed pictures was of the gasoline can used by plaintiff on May 12, 1979. From this photograph, plaintiff was able to identify the marketer of the can. Plaintiff subsequently moved to amend his complaint to add Eagle Manufacturing Company as a defendant (Docket No. 54, filed January 11, 1985). The motion was allowed on January 24th, and the amended complaint was filed February 12, 1985 (Docket No. 59); a corrected amended complaint was subsequently filed on November 26, 1986 (Docket No. 80).

Plaintiff's counsel did not bring suit against the instant defendant until almost six years after the accident. The delay was caused in part, according to plaintiff's testimony, by plaintiff's belief that the can was destroyed in the fire, and by the failure of plaintiff and others acting on his behalf (including his counsel) to discover the unprinted negatives sooner. The police report made at the time of the accident, however, stated that "Officer Chandonnit arrived and took photos. He also took possession of the gasoline can," Tr. Ex. 102, p. 2.

In response to plaintiff's Complaint, defendant answered inter alia that "the action is barred by the applicable statutes of limitation." Answer to Corrected Amended Complaint, Affirmative Defense No. 6 (Docket No. 97, filed November 5, 1987). See also Answer to Complaint, Affirmative Defense No. 2 (Docket No. 60, filed March 15, 1985). This issue was not raised again until trial.

The case was tried to a jury from July 23 to August 7, 1990. At the close of plaintiff's evidence, and again at the close of all of the evidence, defendant moved for a directed verdict. Among the grounds therein asserted was that the "action is barred by ... the applicable statute of limitations." Motion for Directed Verdict, ¶ 1 (Docket No. 156, filed August 2, 1990).

The issue raised by the motion presented a close and debatable issue of law (for reasons explained in Parts V-VII, infra). Because it was so close, because it was raised near the end of trial, and because extensive public and private resources had already been expended on the trial, the court did not grant the motion. Instead, pursuant to Rule 50(b), the court submitted the case to the jury "subject to a later determination of the legal questions raised by the motion." Fed.R.Civ.P. 50(b).

The jury returned a verdict for plaintiff on his negligence and breach of warranty claims in the amount of $1,170,762.82. On August 9, the court entered judgment for the plaintiff in the amount of $1,155,762.82 (the amount of the verdict less the $15,000 settlement), along with $1,356,522.94 in prejudgment interest, $75,000 for reasonable expenses and attorneys' fees under Mass.Gen.L. ch. 93A, and costs.


First I consider defendant's contention that "the damages awarded are excessive." Motion for Judgment Notwithstanding the Verdict, ¶ 8.

The injuries sustained by the plaintiff in the accident of May 12, 1979 were severe. He suffered second and third degree burns over approximately 80 to 85 percent of his body. Intensive treatment extended over months, and rehabilitative treatment over years. Even after a succession of skin-grafting operations, he carries permanent, disfiguring scarring over parts of his neck, arms, legs, and torso. Physical pain and emotional trauma were extraordinary in the months of intensive treatment and remained severe over the years of rehabilitation. The scarring and its consequences are permanent.

To Plaintiff's credit, he has made a remarkable recovery, both physically and emotionally. He has made no claim in this case for loss of earning capacity, or for economic loss other than past medical expenses and damage to his house and personal property, for which the jury supportably awarded $170,762.82. The only other damages claimed were for noneconomic harm. The jury finding of one million dollars ($1,000,000) is plainly supported by the evidence.


Next, I consider defendant's contentions that there was insufficient evidence to support the jury findings on liability. Motion for Judgment Notwithstanding the Verdict, ¶¶ 2, 3, 5, and 6.

Defendant contends that the evidence was insufficient to support the jury findings (1) that defendant was negligent, (2) that its negligence was a proximate cause of plaintiff's harm, (3) that defendant's product was defective, and (4) that the defect was a proximate cause of plaintiff's harm. These contentions raise close and debatable issues.

Plaintiff's factual theories of support for these four findings are all founded on the premise that the instructions and warnings in the lithography on the gasoline can, placed there by the manufacturer of the can according to the defendant's design specifications, were in violation of the standard of reasonable care (applied to the negligence claim) and made the product unreasonably dangerous and therefore defective and in breach of the implied warranty of fitness (the Massachusetts version of strict product liability). It is undisputed that the lithography on two of the four sides of the rectangular five-gallon can consisted of the following message:


Also, it is undisputed that the following message appeared on another side of the can:

Contains Petroleum Distillates. Use only in well ventilated area. Do not use or store near heat, sparks or flames. Avoid repeated or prolonged contact with skin or breathing of vapor. If swallowed, do not induce vomiting. Call physician immediately.


Plaintiff emphasized to the jury and court two factual theories to support findings for the plaintiff on the four critical issues. First, plaintiff argued, the directions on the can to use gasoline only in well-ventilated areas implicitly suggested that indoor use was safe. Second, he argued, the absence of any explicit warnings about pilot lights and stoves failed to call attention to the hazard of use of gasoline near a stove that had a hidden, continuously burning pilot light.

Defendant argues that whenever plaintiff was asked about what was on the can, up to the time the lithography was produced by defendant in response to a discovery demand (well after the amended complaint naming defendant was filed), plaintiff always said he had no memory of anything on the can. Only after having his memory "refreshed" by seeing this lithography did he ever say that his "refreshed memory" is that he (1) read the language about use only in well-ventilated areas, (2) interpreted it to mean he could use gasoline safely in the kitchen — even near a gas stove with a pilot light — and (3) did so because he thought the pilot light on his gas stove was not continuously burning and instead came on only when one of the controls for the oven or a burner on the top of the stove was switched to the "ON" position.

Of course, an essential link in the chain of reasoning on which each of plaintiff's theories depends is the credibility of the plaintiff's testimony regarding his "refreshed memory" — including what a fact-finder may regard as a rather remarkable memory of a subtly reasoned double-negative inference that because the message said "use gasoline only in well ventilated area," and did not say not to use it in a well-ventilated kitchen area near a stove with a pilot light, the message meant he could safely use gasoline in his kitchen. Credibility, however, is a matter for the jury's assessment, Harrington v. United States, 504 F.2d 1306, 1311 (1st Cir.1974). Precedents holding otherwise, even in extreme circumstances, are rare. Most such precedents are concerned, moreover, with testimony about opinions or inferences rather than about historical facts such as whether a witness did or did not read instructions or warnings and did or did not interpret them in a stated way. See, e.g., Sultis v. General Motors Corporation, 690...

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    ...Cir.1984) (a motion to dismiss made in a jury trial should be treated as a motion made pursuant to Rule 50(a)); Pessotti v. Eagle Mfg. Co., 774 F.Supp. 669, 677 (D.Mass.1990). At that time HIMA argued that there was no violation of a federally protected right and that the evidence had not s......
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    ...2008) (defendant who asserts a statute of limitations defense in its answer may raise the defense at trial); Pessotti v. Eagle Mfg. Co., 774 F. Supp. 669, 677 (D. Mass. 1990) ("there is no validreason why any issue that may properly be raised on summary judgment (including a pure issue of l......
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