United States Court of Appeals

                     For the First Circuit











No. 97-1988



                         JAMES A. CHUTE,



                      Plaintiff, Appellant,



                                v.



     SEARS ROEBUCK AND COMPANY and EMERSON ELECTRIC COMPANY,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



    [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]

                                 







                              Before



                      Selya, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.

                                

                                





     John F. Kehoe with whom Daly, Kehoe & Crosson, L.L.P. was on

brief for appellant.

     David A. Barry with whom William L. Boesch and Sugarman,

Rogers, Barshak & Cohen, P.C. were on brief for appellees. 











June 1, 1998







                                

                                

  BOUDIN, Circuit Judge.  James A. Chute was seriously

injured when an unknown object, possibly a piece of wood, struck him

below his left eye.  The object was thrown by a "Sears Craftsman"

radial arm saw operated by his employees.  Chute sued the saw's

seller, Sears, Roebuck & Co., on theories of negligence and breach

of warranty in Massachusetts Superior Court.  Sears removed the case

to the district court on grounds of diversity, and Chute amended his

complaint to add the saw's designer, manufacturer and distributor,

Emerson Electric Co., as a defendant.

  On June 23, 1997, after six days of trial, the jury gave

a verdict for the defendants on all counts, and also answered a set

of written interrogatories that the district court had submitted. 

See Fed. R. Civ. P. 49(b).  Chute moved for a new trial, arguing

that one of the interrogatories so confused the jury that a new

trial was required.  The district court denied that motion on July

22, 1997.  Chute now appeals, focusing primarily on the challenged

interrogatory (interrogatory 10).

  The district court gave the jury ten interrogatories in

all, the last three of which concerned the breach of warranty claim. 

These latter three queries were to be answered yes or no, and read

as follows:

  8. Was the radial saw defective as designed and

  unreasonably dangerous to someone walking or

  standing nearby while the saw was in operation?

  

  9. If "Yes," was such defective design a

  proximate cause of Chute's injury?

  10. When Chute was injured, was he acting

  unreasonably when he walked behind the saw

  without wearing safety goggles, knowing that

  the saw was defective and dangerous in that a

  piece of wood might be ejected at him?



The jury answered interrogatory 8 in the negative and did not answer

interrogatories 9 and 10.  However, Chute argues that the confusing

wording of interrogatory 10 and defects in the district court's jury

charge constrained the jury's freedom to answer interrogatory 8

affirmatively.

  During deliberations, the jury sent the following note to

the district court:

    If we, the Jury, deem #8 under breach of

  warranty as 'No.'  Do we have to answer #10. 

  If we do have to answer #10 can we strike the

  last piece of that statement or not answer at

  all.

    We cannot believe Mr. Chute would have

  knowingly had people working with the saw if he

  knew it was defective and dangerous.

The district court told counsel that the court intended to tell the

jury that if it answered interrogatory 8 negatively, it would not

have to answer 9 or 10.  The district court also said that it would

advise jurors that, should they answer both 8 and 9 affirmatively,

they could not strike any portion of 10 but must answer it as

written.  Neither side objected, and the district court so

instructed the jury.  The jury returned its verdict less than twenty

minutes later.

  Chute argued in his motion for new trial, and reasserts

here, that the jury interpreted interrogatory 10 as requiring it to

find, or at least assume, that the saw was defective and that Chute

was aware of the defect.  We know from their note that the jury

members were unwilling to make the latter finding.  Chute argues

that when the judge said that this last part of interrogatory 10

could not be struck, the jury sought a way out of the dilemma by

answering interrogatory 8 negatively, which excused it from

answering interrogatory 10.

  The trial court has broad discretion in crafting a jury

charge and interrogatories, but a new trial may be warranted if the

charge is erroneous or tends to confuse the jury on a material

issue, provided that objection was made to the district court after

the charge and before the jury retired.  Fed. R. Civ. P. 51;

O'Connor v. Huard, 117 F.3d 12, 15 (1st Cir. 1997).  If a party

fails to make a timely objection, the instruction is reviewable for

plain error only.  Cordero v. De Jesus-Mendez, 867 F.2d 1, 5 (1st

Cir. 1989).  

  A number of circuits have explicitly held that the plain

error exception, interpolated by case law into Rule 51, applies to

jury instructions but not to interrogatories.  We recently reviewed

for plain error a forfeited objection to special verdict questions

although an earlier case in this circuit could be read to support--

but not squarely to adopt--the contrary position adopted by other

circuits.  Compare Clausen v. Sea-3, Inc., 21 F.3d 1181, 1196 (1st

Cir. 1994), with Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968,

973 (1st Cir. 1969).

     It is not clear why the plain error exception should be

available for jury instructions but not for interrogatories, which

are formulated together with instructions and often interlock with

them.  The answer cannot be Rule 51, the language of which appears

to forbid any review of jury instructions absent a timely objection

but does not say anything specific about interrogatories.  We see

no reason for a flat rule that an error in interrogatories can never

be reviewable under the plain error doctrine, although that standard

is very difficult to meet, especially in civil cases. 

     The four-part standard for plain error review articulated

in United States v. Olano, 507 U.S. 725 (1993), although framed in

a criminal case, is normally followed in civil cases as well.  See,

e.g., Pimentel v. Jacobsen Fishing Co., 102 F.3d 638, 640 (1st Cir.

1996).  If anything, the standard deserves more stringent

application to civil jury instructions given Rule 51's notably

explicit warning of a need to object; unlike objections to evidence,

jury instructions are not spur-of-the-moment matters.  In all

events, under Olano, the court of appeals will consider a forfeited

objection only if an error was committed, if the error was "plain"

(i.e. clear under current law), if the error was prejudicial, and

if review is needed to prevent a miscarriage of justice.  Id. at

733-37. 

     The notion that interrogatory 10 contains an "error" at

all is at best debatable.  If one focuses solely on the words used,

the interrogatory appears to contain as an assumption a factual

assertion clearly disputed by the defendants, i.e., that the saw was

defective, and another disputed by the plaintiff, i.e., that Chute

knew of the defect.  But when read in conjunction with the jury

instructions, arguably the jury should have understood that

interrogatory 10 was conditional--to be reached only if the jury

found a defective design and proximate causation under

interrogatories 8 and 9.

     This is clearer once one reads the instructions and learns

the reason for interrogatory 10.  Its purpose, if the jury found for

the plaintiffs as to defect and causation, was to require the jury

to decide whether the defendants had made out an affirmative defense

set forth in detail in the instructions:  that "the plaintiff in a

warranty action . . . may not recover if . . . after discovering the

product's defect and being made aware of its danger, he nevertheless

proceeded unreasonably to make use of the product and was injured

by it."  Correia v. Firestone Tire & Rubber Co., 446 N.E.2d 1033,

1041 (Mass. 1983).

     The jurors were obviously uncertain whether interrogatory

10 was contingent, but the district court answered this question by

informing them that it was.  We have no reason to think that the

jury then ignored the court's instructions to resolve

interrogatories 8 and 9 first and address 10 only if it found for

the plaintiff on those first questions.  Whether or not in this

context the original interrogatory was "error" at all (still less

"plain error") does not matter:  it is enough that the clarification

removes any reason for thinking that the jury was misled or the

plaintiff prejudiced.

     This exercise demonstrates why courts are so unlikely to

reverse decisions in civil cases based on unpreserved claims of

error in jury instructions or interrogatories.  In an era of crowded

dockets, the idea that the case should be retried because of an

awkwardly-drafted interrogatory when counsel had ample opportunity

to straighten the matter out is insupportable in any other than the

most rare and extreme case.  Although Chute's counsel suggested at

oral argument that he did preserve the objection, our review of the

record has not revealed it, nor does his brief indicate where it

might be found.

     Chute presents two further arguments as to why

interrogatory 10 is defective.  One is even less likely to be

prejudicial error and was also not raised in the district court, so

it is covered by our preceding discussion.  The other claim is that

the affirmative defense of unforeseeable misuse, to which

interrogatory 10 intended to refer, was not accurately stated under

Massachusetts law.  Since the jury did not reach the issue after the

district court's clarification, any such misdescription was patently

harmless.

     Two points remain.  The first is an objection, preserved

at trial, that opinion testimony given by an expert witness lacked

foundation.  We think that allowing the question was within the

district court's discretion, but in any event we regard the answer

as little more than a rephrasing of an earlier scientific answer

that the expert was unquestionably allowed to give.  The second

alleged error, relating to interrogatory 8, was not only forfeited

below but also omitted from Chute's opening brief in this court and

presented for the first time in his reply.  We decline to address

it.  See Nichols v. Cadle Co., 139 F.3d 59, 64 (1st Cir. 1998).

     Affirmed.