643 F.2d 19
Myron F. SKILLIN, Plaintiff, Appellee
Earle W. KIMBALL, etc., et al., Defendants, Appellees,
Therm'x Corporation, Defendant, Appellant.
United States Court of Appeals,
Argued Jan. 5, 1981.
Decided Feb. 4, 1981.
E. Donald Dufresne, Manchester, N. H., with whom Andrew D. Dunn and Devine, Millimet, Stahl & Branch, Manchester, N. H., were on brief, for appellant.
Fredric A. Swartz, Boston, Mass., with whom Edward M. Swartz, Alan L. Cantor, and Swartz & Swartz, Boston, Mass., were on brief, for appellee Myron F. Skillin.
Before COFFIN, Chief Judge, MARKEY, Judge,* BREYER, Circuit Judge.
COFFIN, Chief Judge.
The losing defendant in this diversity products liability suit claims three errors at trial: inconsistent special findings by the jury, admission of evidence of subsequent remedial conduct, and the jury's award of the full amount of damages requested. We affirm.
Plaintiff-appellee was injured on October 25, 1972 when his propane gas heater caused an explosion. He sued the French manufacturer, Societe Lyonnaise des Applications Catalytiques; the American importer and distributor, appellant Therm'x; the Canadian importer and distributor, R. D. Hayes, Ltd.; and the New Hampshire retailer, Earle W. Kimball. The district court tried the case against the latter three parties after the French manufacturer defaulted. The jury found against appellant on both negligence and strict liability theories, but exonerated both Hayes and Kimball.
Appellant first complains that special findings by the jury are inconsistent with each other. We do not reach the merits of this issue since appellant did not seek to have the matter resubmitted to the jury. Prior to the jury's deliberation, counsel for appellant noted for the record "that the questions being submitted to the jury, today, the special questions were agreed upon by all counsel." Appellant thus was on notice that the special procedures of Rule 49 with their known potential for inconsistency were to be the order of the day. With this notice should have come the knowledge that the only efficient time to cure these possible problems of inconsistency would be after the jury announced the results of its deliberations and before it was excused. Although appellant's counsel in this case did remark at this time that he thought the jury's work was inconsistent, he did not pursue any relief. To allow a new trial after the objecting party failed to seek a proper remedy at the only possible time would undermine the incentives for efficient trial procedure and would allow the possible misuse of Rule 49 procedures no evidence of which do we detect in this case by parties anxious to implant a ground for appeal should the jury's opinion prove distasteful to them. We therefore decline to consider this element of appellant's appeal.1 See Ludwig v. Marion Laboratories, Inc., 465 F.2d 114, 118 (8th Cir. 1972); Barnes v. Brown, 430 F.2d 578, 580 (7th Cir. 1970); Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir. 1968).
(The remainder of this opinion is excluded from publication.)
Of the U.S. Court of Customs and Patent Appeals, sitting by designation
In so disposing of this claim, we do not reach appellee's points that appellant waived its complaint about inconsistent verdicts both when it failed to object to the judge's instruction that the jury could find against one or more defendants and when it acquiesced in the special question form on which the jury was asked to make separate determinations as to the liability of each defendant. Although inconsistency may be less foreseeable in other types of cases, we do note that there is an obvious potential for this type of problem when strict liability issues involving multiple defendants are submitted to a jury in the context of instructions and forms that sanction individual rather than group determinations