USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-2258

CHRISTOPHER MOULTON,

Plaintiff, Appellee,
v.

THE RIVAL COMPANY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. David M. Cohen, U.S. Magistrate Judge]

_____________________
____________________

Before
Boudin, Circuit Judge,
_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________
____________________

Ernest J. Babcock,
__________________

with

whom

Elizabeth A. Germani, George

_____________________ _______

Guzzi and Friedman & Babcock were on brief, for appellant.

_____
__________________

Charles Harvey,
______________

with

whom

Harvey & Frank

_______________

appellee.

____________________

was

on

brief,

June 20, 1997

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

A one-year-old boy sustained

_____________

severe,

disabling burns

when he

was left

alone in

a room

where a Rival Company electric potpourri pot was operating on

the

floor.

diversity

action

was brought

against

the

company asserting claims under Maine law of strict liability,

negligence and breach of warranty.

the plaintiff

and

awarded

on the strict liability

$2.2 million.

motions alleging a host

and seeking

The

jury found in favor of

and negligence claims

company filed

post-trial

of procedural and evidentiary errors

judgment as a

matter of law.

denied the motions; the company appealed.

The trial

court

We affirm.

We recite the facts as a jury could reasonably have

found them. See Stevens

___ _______

v. Bangor & Aroostook R.R.,

_______________________

97 F.3d

594, 596 (1st Cir. 1996).

purchased

Gail Moulton,

a Rival Model 3207

plaintiff's mother,

electric potpourri pot.

Water

and dried flowers or scented liquid and wax are heated in the

pot

and

potpourri

allowed

pot

to evaporate

was a

modified

product, a one-quart slow cooker.

pot could not be

center,

diameter,

secured to the

approximately

one

and

to

perfume

version of

air.

The

Rival kitchen

The cover of the potpourri

pot and had

a hole in

three-quarters

to allow fragrance to escape.

inches

its

in

The date Rival sold

this particular potpourri pot is not known.

-22

the

Literature accompanying the

warnings,

including:

any appliance is

read the

pot under

"Close

used by

pot contained

supervision is

or near children."

instructions and warnings and

a table

in a

corner of

behind pottery and baskets.

the

several

necessary when

Mrs.

Moulton

placed the potpourri

living room

In February 1995, she

hidden

left her

one-year-old son Christopher in the living room while she got

him a drink from

the adjoining kitchen.

and returned to the living room to find

She heard a

noise

the child sitting on

the floor in a pool of liquid.

The cover was off the pot, in

the puddle of liquid potpourri.

She did not notice where the

pot itself was.

No one knows exactly how the accident happened.

is reasonable

spilling

off.

to conclude either

that the pot

It

tipped over,

the heated liquid, or that the child took the cover

In any event, the

lid came off

the pot, and

the hot

liquid came into contact with the child's arm and hand.

Plaintiff's

in the accident.

Hospital in

left hand and arm were severely burned

He spent over a month at the Shriners Burns

Boston undergoing extensive treatment.

He will

need extensive

hand

medical treatment

in the

future.

His left

and arm are entirely covered by scar tissue, which does

not grow like normal skin.

As he grows,

the inflexible scar

tissue must be released by surgical incisions to

joints from growing

prevent his

abnormally; skin grafts are used to fill

-33

in the gaps, and

restore

a physical therapy regimen is

movement to the hand.

and physical therapy will

necessary to

This cycle of growth, surgery

continue until the plaintiff stops

growing, at around age twenty.

The

type

of

plaintiff's accident

potpourri

pot

involved

in

evolved from earlier products.

which manufactures various

the

Rival,

household appliances, decided

to

market an electric potpourri pot.

Before placing the item on

the

item, which it

market, Rival

Model

3207,

("UL"),

an

which sets

are

often

Institute.

for

submitted the

evaluation

independent

and publishes

adopted

by

by

Underwriters

not-for-profit

called the

Laboratories

testing

safety standards; these

the

American

National

laboratory

standards

Standards

UL

replied that the pot did

safety standards.

UL sent Rival a letter in June 1987 which

stated that the potpourri

pot heated liquids to temperatures

exceeding the applicable standard,

lid had no

not meet the relevant

means of being

and noted that, since the

secured and had

a one and

three

quarters inch hole in its center, it could not be relied upon

as

a barrier to prevent

"list" the

issued,

pot.1

Rival

scalding.

However, by

had already

set

UL

the time

therefore refused to

the UL

production

report was

to commence

in

____________________

1.
the

A "listed"
laboratory

product would bear a

had

determined

particular safety standard.

-44

sticker indicating that

that

the

product

met

August 1987.

Despite UL's

rejection, Rival

decided to

go

ahead with its production plans anyway.

Rival submitted

laboratories,

issued a

very

the potpourri pot

commercial (for

report certifying

standard that UL had

profit)

that the

to ETL

laboratory.

potpourri pot

reported the pot

testing

ETL

met the

failed to meet.

The ETL report should have raised concerns on its face.

The

stated temperature

liquids

in

the report

was too high to

to which

the pot

meet the applicable

heated

standard.

The

product was nonetheless put on the market.

The

Model 3207

potpourri pot

product not

listed by

officials.

They ordered various tests

the

item

standards

could be

adopted by

reported that UL

degrees

and

that

UL.

This apparently

modified

UL.

was the

to

potpourri

temperature of 174 degrees

that UL took

evolving

Rival's product

pot

was

Farenheit.

safety

safety engineer

water hotter than

Farenheit could cause serious skin

the

troubled Rival

to determine whether

meet the

had determined that

only Rival

burns on contact

designed

to

Rival was

the position that this product,

149

reach

also aware

unlike cooking

appliances, was

even upset

limitations

liquid and

likely to

be "touched, bumped,

when used as intended."

placed on

Consequently, UL wanted

the temperature

wanted a tight-fitting lid.

-55

handled, or

and quantity

of the

Rival's competitors

produced

potpourri

pots with

locking

lids.

However,

no

modifications were made to the Model 3207.

After the potpourri pot had

short

time,

children

who

Rival

began

were burned

to

by

heated potpourri mixture.2

been on the market for

receive

accidental

reports

contact with

After 1991, the company changed

insert

consumers that the

hot

and that

children.3

the pot

the

Rival still made no modification

to the design.

to warn

of young

should be

the package

contents of the pot were

kept out

of the

reach of

Accidents continued to occur in the early 1990's.

At some point, although the parties cannot pinpoint the exact

date, a tag warning that the product could cause burns to the

skin was

placed on

the cord

of the Model

3206, a

smaller

version of the Model 3207 that lacked any cover.

II

Plaintiff

November 1995

alleged

in

that

plaintiff's

defective

federal court

Rival

injuries

and

design; (2)

filed suit against

was

in

Maine.

legally

because

(1)

pot and/or in failing

The

responsible

the

unreasonably dangerous

Rival was

the Rival Company in

complaint

for

potpourri

as

negligent in designing

to warn users of the

the

pot

was

result of

its

the potpourri

product's design

____________________

2.

Some of the accidents involved

the Model 3207 (the model

in this case), while others involved a similar model.

3.

The

previous

warning

had

stated

that

users

should

supervise closely when the pot was operated near children.

-6-

defect;

and

accordance

grounds

(3)

pot

failed

with the express warranty.

that

instructions

the potpourri

the

product

adequate, and

with the child's

mother for

was

safe,

the blame

to perform

in

Rival defended on the

the

for the

placing the pot

could reach it and then leaving him unattended.

warnings

and

accident lay

where her

son

After

plaintiff's

favor

one-week

on the

trial,

strict

the

jury

liability

found

in

and negligence

claims and awarded him $2.2 million in compensatory damages.

III

Post-Sale Duty to Warn

______________________

district

The primary

issue raised

court erred

in instructing

post-sale duty to warn.

When a
dangers

by Rival is

whether the

the jury

on negligent

The trial judge charged:

manufacturer learns . .
associated

with the

. of the
reasonably

foreseeable use of its product after they

are

distributed,

the manufacturer

take reasonable steps to

foreseeable

users

about

must

warn reasonably
those

dangers

. . . .

Rival

argues that the Maine Law Court has never imposed such

a post-sale duty on manufacturers

and would not do so.

The

plaintiff

responds

that

the

majority

of

jurisdictions

recognize a negligence-based post-sale duty to warn and that,

if faced with the issue, Maine would do the same.

We

Court

do not reach the issue of whether the Maine Law

would recognize

a negligence-based post-sale

-77

duty to

warn because the

jury verdict is

strict liability

claim

Further, no

and

adequately supported on

the

damages

issues concerning the

are

the

same.

admissibility of evidence

turn on this.

The trial

liability,

negligence

instructions

stated

on

court separated

and

the

and

in the

special

the theories of

warranty

special

verdict

both

in

the

verdict form.

form

that

strict

jury

The jury

it

found

the

defendant liable on a strict liability theory as well as on a

negligence

theory.

Even

negligent post-sale duty

of

Maine

law,

the

if

the

instructions

involving

to warn were incorrect as

finding

of

liability

on

the

a matter

strict

liability theory would be sufficient to support the judgment.

Rival

reached.

trial in

maintains

It argues that

support of

prejudicial and

theories

advanced by

concerns

what

measure: the

the

must

certain evidence

irrelevant to

plaintiff.

was admitted

theory that there

had

evidence was

other legal

The evidence

in question

a warning

does not have a cover).4

at

any of the

defendant terms

placement of

nevertheless be

to warn and that this

cord of the Model 3206 (which

and

issue

the plaintiff's

been a negligent failure

both

the

subsequent

tag on

remedial

the electrical

is smaller than the Model 3207

The defendant argues that if,

____________________

4.
for

This modification

is not

purposes of Rule 407

That rule

does not

a subsequent

of the Federal

apply where,

remedial measure
Rules of Evidence.

as here, the

modification

-88

as it claims, Maine would not recognize a negligent post-sale

duty

to

warn, this

sufficiently

evidence

prejudicial

to

was

improperly admitted

warrant

new

trial.

and

We

disagree.

First, the

evidence

trial court ruled that

the warning tag

was relevant to the issue of whether there had been

a negligent violation

of a post-sale duty

of a pre-sale duty to

to warn.

placement of the warning

is unknown,

Although

the sequence of

tags and the sale of

the defendant never

error

to admit

reviewing

even assuming

the "cord tag"

a district

the

the appliance

challenged this evidentiary

ruling as to the pre-sale duty to warn.

Furthermore,

warn as well as

The point is waived.

arguendo

evidence, "the

court's nonconstitutional

that it

was

standard for

error in

civil suit requires that we find such error harmless if it is

highly

probable that the error did not affect the outcome of

the case."

(1st

Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 29

________
____________________

Cir. 1992).

defective

design:

Here,

the

pot

there

was

heated

ample

its

evidence

contents

to

of

dangerously

high temperature and did not have a locking lid.

Similar

products

locking

lid.

produced by

The

particularly telling.

refusal of

other

UL to

companies

list

did have

the product

is

We think it unlikely that the evidence

____________________

preceded

the accident involved in the

Bogosian
________

v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 481

_____________________________

(1st Cir. 1997).

-99

current lawsuit.

See
___

of

cord tags placed on the Model 3206 affected the liability

determination.

Evidence of Other Accidents

___________________________

Plaintiff put

which

young

contact with

children

in evidence

sustained

the heated contents

Defendant objected to the

of

burns

after

of a Rival

coming

in

into

potpourri pot.

introduction of this evidence, but

the trial court overruled the objection.

of discretion.

eight accidents

Review is for abuse

Espeaignnette v. Gene Tierney Co., 43 F.3d 1,

_____________
________________

8 (1st Cir. 1994).

In evaluating evidentiary rulings, "[t]he

question

whether

is

not

we

would

strike

the

balance

differently in

the first

actually struck is so

reversal."

if

Id.
___

the

prior accidents

proponent

of

the

at issue

Corp., 638 F.2d

_____

in the

270, 277

Converting Mach. Co.,

_____________________

defendant

between

argues

the

because

different.

earlier

the

(1st Cir. 1981);

there

accidents

circumstances

For example,

621, 625

is

and

shows

that

. .

the

substantially similar

case at bar."

539 A.2d

that

is admissible .

evidence

accidents occurred under circumstances

to those

the balance

egregiously one-sided that it requires

"Evidence of

only

instance, but whether

McKinnon
________

Marois v.
______

(Me. 1988).

insufficient

the

in one of the earlier

Paper
_____

The

similarity

plaintiff's

surrounding

v. Skil
____

accident,

spills

were

accidents, a

child

knocked over

the table

where the

potpourri

pot was

-1010

located; in four others, a child became entangled in the cord

and pulled the pot

over.

Furthermore, two of

the accidents

involved the Model 3206, a smaller pot with no cover at all.

"Substantial

theory of

F.2d

burned

the case.

similarity"

See Ponder
___ ______

1553, 1560 (10th Cir.

by a

potpourri

large quantity

pot without a

the product as designed

significant

amount5 of

defective.

Cf. Jackson
___ _______

1987).

was no

Transp., Inc.
_____________

abuse of

Here,

of hot

function

the

the plaintiff was

liquid escaping

allowed the rapid

extremely

from a

Plaintiff sought the

hot liquid

show

escape of a

and was

thus

v. Firestone Tire & Rubber Co., 788

____________________________

Under these

discretion.

circumstances,

Cf. P.B. Mutrie Motor

___ __________________

v. Interchemical Corp., 378 F.2d

____________________

(1st Cir. 1967).

of

of the other accidents to

F.2d 1070, 1083 (5th Cir. 1986).

there

v. Warren Tool Corp., 834

__________________

locking lid.

introduction of the evidence

that

is

447, 450-51

Medical Costs
_____________

Plaintiff

rehabilitation

presented

specialist as

the

to

expert

the

future medical and rehabilitation needs.

witness was

not qualified and

testimony

cost

of

of

plaintiff's

Rival says that the

that his testimony

lacked an

adequate factual basis.

____________________

5.

Even electric potpourri pots with locking lids will allow

the escape
tipped

of at

least

a very

over; the appliance

small amount

must have openings

fragrance to escape.

-1111

of liquid

if

to allow the

A trial court

the admissibility

its

of expert

decision only

discretion.

has wide

when

testimony, and we

there has

Stevens, 97 F.3d
_______

discretion in

been

at 600.

determining

will reverse

a clear

abuse

of

The educational and

work experience of plaintiff's expert made him well-qualified

to testify concerning theplaintiff's future medical expenses.

A somewhat

sufficient

closer question is whether

factual basis

for the

there was a

expert testimony.

Under

Maine

law,

contingent

524,

530

damages

(Me.

1978).

be

recovered

Michaud
_______

They

must

makes

child,

charge.

rule.

v. Steckino,
________

be

they

are

390 A.2d

"determined

two-pronged argument.

to

It

first

that the plaintiff failed to meet his burden of proof

the damages issue, because everyone

expects

if

Id.
___

Rival

on

not

or speculative.

probability."

claims

may

that the

Shriners Hospital,

will continue to

involved in the case

which is

treating the

provide all necessary

care free of

This argument is foreclosed by the collateral source

Under that rule, a plaintiff who has been compensated

in whole or in part by a source independent of the tortfeasor

is

nevertheless

entitled to

full

recovery against

the

tortfeasor,

windfall.

to

prevent

the

tortfeasor

from

gaining

Werner v. Lane, 393 A.2d 1329, 1335 (Me. 1978).

______
____

Defendant then argues that the plaintiff has failed

to prove

future medical

expenses to a

reasonable certainty

-1212

because

the testimony

of plaintiff's

rehabilitation expert

was

different

physician.

itemized

expenses.

it

was

from

that

Plaintiff's

an

plaintiff's

rehabilitation expert

treating

presented an

The plaintiff's treating physician testified that

impossible

for future care

pattern

the

list of predicted future medical and rehabilitation

to

predict

procedures the plaintiff

need

of

the

number

or

will depend on

foundation

of

will need in the future because the

the plaintiff's growth

and how the plaintiff improves over time.

adequate

types

for

the

rehabilitation

testimony and the jury was therefore

There was

expert's

free to credit it.

Cf.
___

Stevens, 97 F.3d at 600.

_______

As to

the misstatement

by plaintiff's

counsel in

closing, when he mentioned "out of pocket" expenses, any harm

was

ameliorated

instruction.

by

the

See Conde
___ _____

trial court's

immediate

v. Starlight I, Inc., 103

_________________

curative

F.3d 210,

213 (1st Cir. 1997).

Testimony of Rival's President

______________________________

Defendant claims

it was sandbagged when, at trial,

plaintiff made use of a statement by a Rival official, from a

deposition

witness.

company

in another

case, to

impeach defendant's

expert

Defendant argues it had no opportunity to place the

official's statement

argument is

not well taken.

continuance

or

any

in its

proper context.

This

The defendant did not request a

limiting

instructions.

-1313

Under

these

circumstances, we cannot say the trial

court abused its wide

discretion in admitting this evidence.

Sufficiency of the Evidence

___________________________

Finally,

court's

matter of

the

defendant

denials of its Rule

law and of

argues

that

50(b) motion for

its motion for

the

trial

judgment as a

a new trial

should be

reversed.

It claims

reasonable

that the

inferences

in

evidence, together with

the

plaintiff's

insufficient to support the verdict.

all

favor,

is

Review is de novo.
_______

See
___

Lama v. Borras, 16 F.3d 473, 477 (1st Cir. 1994).

____
______

The defendant

could find that any

maintains

Court's

warning,

is

not

statement

jury

proximate cause

The defendant points to the Maine

that "a

product

bearing

. .

which is safe for use if [the warning] is followed,

in

dangerous."

defective

condition,

nor

is

it

unreasonably

Bernier v. Raymark Indus., Inc., 516 A.2d

_______
_____________________

538 (Me. 1986) (quoting

cmt. j

reasonable

action by Rival was the

of the plaintiff's injury.

Law

that no

(1965)).

Restatement (Second) of Torts

_____________________________

However, this language

534,

402A

explicitly applies

only

to

claims that

because it lacks an

538.

That

was

not the

theory was

defects

heating

temperature and no

is unreasonably

adequate warning.

Plaintiff's

--

product

its

crux

that

Bernier, 516
_______

of plaintiff's

the potpourri

contents to

dangerous

an

A.2d at

claim

pot had

excessively

here.

design

high

locking lid -- which made it unreasonably

-1414

dangerous.

There was sufficient evidence supporting the jury

finding of liability on that theory of the case.

Affirmed.
________

-1515