Filed: Nov. 14, 2002
Latest Update: Feb. 22, 2020
Summary: If New, Hampshire law forbade combining a count in, negligence with a count in strict liability in, a tort case, the plain error doctrine might be, applicable. The jury, evaluated the evidence in light of each claim, and answered the special verdict questions as, instructed.shoulder belts.
United States Court of Appeals
For the First Circuit
No. 01-2010
NATHANIEL TRULL, PPA DAVID TRULL AND DAVID TRULL,
ADMINISTRATOR OF THE ESTATE OF BENJAMIN TRULL,
Plaintiffs, Appellees,
v.
VOLKSWAGEN OF AMERICA, INC. and
VOLKSWAGEN, AG,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Howard B. Myers with whom Carolyn Cole Durst, Myers
Associates, PLLC, Michael Hoenig, Roger Arentzen, Miriam Skolnik,
and Herzfeld & Rubin, P.C. were on brief for appellants.
Alan L. Cantor with whom Edward M. Swartz, David P. Angueira,
and Swartz & Swartz were on brief for appellees.
November 14, 2002
BOWNES, Senior Circuit Judge. This appeal arises out of
an action brought in the district court arising from a collision on
February 19, 1991, in Conway, New Hampshire, between a 1986
Volkswagen Vanagon and a 1979 AMC Concorde. The Vanagon was driven
by David Trull. His two sons Benjamin and Nathaniel were seated in
the rear passenger seat. Benjamin was killed; his brother,
Nathaniel, received serious injuries. The father, David Trull,
brought this action on behalf of Benjamin's estate and Nathaniel,
who was a minor at the time the complaint was brought.
The plaintiffs asserted claims in strict liability and
negligence against both defendants-appellants Volkswagen of
America, Inc. and Volkswagen, AG (collectively "VW"). The evidence
was essentially the same as to both theories of liability. The
district court instructed the jury: "The plaintiffs have asserted
strict product liability and negligence claims against the
defendant. However, they need not prove both claims to recover.
They will be entitled to recover if they prove one or the other of
these claims."
Plaintiffs' claim of liability was that the 1986 Vanagon
had been defectively designed and was unreasonably dangerous
because it was not equipped with lap/shoulder belts in each of the
rear seats. The only passenger body restraints were lap belts.
The jury, in answer to specific questions, found that VW was not
liable in strict liability but was liable in negligence. It
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awarded Nathaniel Trull the sum of $8,917,335.27. It awarded the
estate of Benjamin Trull $1,290,980.70.
This is the second time that this case has been before
us. In the first trial VW prevailed. The plaintiffs appealed on
the ground that the trial judge erred in putting the burden of
proof as to enhancement of injuries on them. We certified that
issue to the New Hampshire Supreme Court. Trull v. Volkswagen of
Am., 187 F.3d 88 (1st Cir. 1999). The Supreme Court of New
Hampshire ruled that in a damages enhancement situation the burden
of proof falls on the defendant. Trull v. Volkswagen of Am., Inc.,
761 A.2d 477 (N.H. 2000). We remanded to the district court for a
new trial. Trull v. Volkswagen of Am., Inc.,
229 F.3d 343 (1st
Cir. 2000). We affirm the judgment below.
I. THE VERDICTS
There are four issues posited for review. Our discussion
of the issues does not follow the order in which they are argued in
VW's brief. We start with VW's contention that the verdicts were
inconsistent, that the negligence finding of liability was
nullified by the jury finding that VW was not liable on the claim
of strict liability and therefore there should be either a judgment
for VW or a new trial.
The case was tried from the start by plaintiffs on the
theory that the 1986 Vanagon was defectively designed because it
lacked lap/shoulder belts on the rear seats and this omission
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caused the death of Benjamin Trull and seriously injured Nathaniel
Trull. In its jury instructions the district court explained
separately the elements of strict liability and negligence. No
objection was made by VW to the verdict forms handed to the jury or
the risk of inconsistent verdicts until after the clerk had been
instructed by the court "to enter judgment in accordance with the
special findings of the jury" and the jury discharged.
VW implies in its brief at page 15 that it did not have
the time to make any objections or that the district court speeded
up the post-verdict process to thwart any objections. There is
nothing in the record to substantiate this implication. Labeling
the post-verdict session a "truncated ten-minute session" does not
change the facts. VW's attorneys may have been shocked by the
verdict but there is nothing in the record to indicate that VW
wished to object to anything.
The record shows that VW did not object to the verdict
forms at any time prior to their submission to the jury. The
record further establishes that there were no objections to the
jury instructions at any time either prior to or after their
delivery. This means that VW has waived its right to object to any
foreseeable combination of proper responses to the questions posed
on the verdict forms. It also means that VW was satisfied with the
jury instructions until the jury returned the verdicts.
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If we assume arguendo the verdicts were inconsistent, and
as to this we have serious doubts, there can be no doubt that VW's
failure to follow the applicable Rule of Civil Procedure bars its
appeal. It is clear to us that Federal Rule of Civil Procedure
49(b) applies to the verdict forms, not Rule 49(a) as VW asserts.
Rule 49(a) states: "The court may require a jury to return only a
special verdict in the form of a special written finding upon each
issue of fact." Here, for example, a special verdict form could
have included questions such as whether the brothers were wearing
lap belts at the time of the collision. When such a form is used,
the jury makes only findings of fact; it is up to the court to
apply the law. Babcock v. Gen. Motors Corp., 299 F.3d 60, 63 (1st
Cir. 2002); see 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure, § 2503 (2d ed. 1994). There can be little
doubt that this was not the type of verdict form used in this case.
The verdict form in this case fell within the ambit of
Rule 49(b) which addresses general verdicts and states: "The court
may submit to the jury, together with appropriate forms for a
general verdict, written interrogatories upon one or more issues of
fact the decision of which is necessary to a verdict."
Although there were no written interrogatories submitted
to the jury, it is clear that the two liability questions submitted
to the jury were general verdict forms under Rule 49(b).
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Strict Liability
1. Do you find by a preponderance of
the evidence that the 1986 Vanagon was
defectively designed because it lacked
lap/shoulder belts in the rear seating
positions?
NO
(Yes or No)
Negligence
3. Do you find by a preponderance of
the evidence that the defendant was negligent
in designing and/or testing the 1986 Vanagon
because it lacked lap/shoulder belts in the
rear seating positions?
YES
(Yes or No)
The last sentence of Rule 49(b) specifically discusses
inconsistent answers to questions submitted to the jury: "When the
answers are inconsistent with each other and one or more is
likewise inconsistent with the general verdict, judgment shall not
be entered, but the court shall return the jury for further
consideration of its answers and verdict or shall order a new
trial."
We have held that under Rule 49(b), objections to the
inconsistency of verdicts must be made after the verdict is read
and before the jury is discharged. E.g., Babcock, 299 F.3d at 63;
Merchant v. Ruhle,
740 F.2d 86, 89 (1st Cir. 1984); Skillin v.
Kimball,
643 F.2d 19, 19-20 (1st Cir. 1981). We rule that VW
forfeited its objection to the alleged inconsistency by failing to
object at any time prior to the jury's discharge.
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The instructions made it clear that the jury was to be
asked to decide the issue of liability on both the theory of strict
liability and the theory of negligence. The verdict forms had been
examined by counsel for VW before they were submitted. VW's reason
for its failure to object at the critical times was that the
verdicts did not become inconsistent until after the jury had
completed them. But we cannot accept this; to do so would
countenance "agreeable acquiescence to perceivable error as a
weapon of appellate advocacy." McIsaac v. Didriksen Fishing Corp.,
809 F.2d 129, 134 (1st Cir. 1987) (quoting
Merchant, 740 F.2d at
88-89); see also
Babcock, 299 F.3d at 64. By failing to timely
object to the jury instructions, VW thereby waived any objection it
may have had. See Fed. R. Civ. P. 51. Moreover, that failure to
object greatly limits the scope of subsequent review. See Fed. R.
Civ. P. 61.
Rule 51 of the Federal Rules of Civil Procedure provides
in pertinent part: "[n]o party may assign as error the giving or
the failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the
objection." Rule 51 has been stringently enforced to the extent
that a district court judge cannot waive it even with the
acquiescence of counsel. Poulin v. Greer, 18 F.3d 979, 982 (1st
Cir. 1994); Smith v. Mass. Inst. of Tech.,
877 F.2d 1106, 1109 (1st
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Cir. 1989); McGrath v. Spirito, 733 F.2d 967, 969 (1st Cir. 1984)
("[Rule 51] is binding on both the court and attorneys and neither
can circumvent it."). And, of critical importance here, a failure
to object as required by Rule 51 deprives the non-objecting party
of review under Rule 61, either before the trial court on a post-
trial motion or on appeal. Babcock, 299 F.3d at 64; Scarfo v.
Cabletron Sys., Inc.,
54 F.3d 931, 941 (1st Cir. 1995).
We quote extensively from our prior opinion in Babcock,
299 F.3d at 64-65:
The only exception to nullification of
appellate issues for failure to follow Rule 51
is the plain error doctrine. Smith v. Kmart
Corp., 177 F.3d 19, 28-29 (1st Cir. 1999).
Reversal under that doctrine requires that
(1) there be error; (2) the error was "plain"
(i.e. obvious and clear under current law);
(3) the error affected substantial rights; and
(4) the error threatened a miscarriage of
justice. Danco, Inc. v. Wal-Mart Stores,
Inc., 178 F.3d 8, 15 (1st Cir. 1999). We have
applied the plain error doctrine "stringently"
in civil cases. Id. Accordingly, we will
grant relief on an issue that has been
forfeited on appeal only "to prevent a clear
miscarriage of justice . . . or where the
error seriously affected the fairness,
integrity or public reputation of judicial
proceedings." Romano v. U-Haul Int'l, 233
F.3d 655, 664 (1st Cir. 2000) (citations and
internal quotation marks omitted). We might
find plain error where "'the failure to raise
the claim below deprived the reviewing court
of helpful factfinding; . . . the issue is one
of constitutional magnitude; . . . the omitted
argument is highly persuasive; . . . the
opponent would suffer special prejudice; . . .
and, perhaps most importantly, . . . the issue
is of great importance to the public.'" Id.
(quoting Play Time, Inc. v. LDDS Metromedia
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Communications, Inc., 123 F.3d 23, 30 n.8 (1st
Cir. 1997) (alterations in original).
We examine New Hampshire law to determine
whether there was plain error below. If New
Hampshire law forbade combining a count in
negligence with a count in strict liability in
a tort case, the plain error doctrine might be
applicable. But New Hampshire law does not
prohibit submitting both negligence and strict
liability claims to the jury. See, e.g., Cyr
v. J.I. Case Co., 652 A.2d 685, 693 (N.H.
1995); Thibault v. Sears, Roebuck & Co., 395
A.2d 843, 849 (N.H. 1978); Greenland v. Ford
Motor Co., Inc., 347 A.2d 159, 163 (N.H. 1975).
The most that can be said is that submission of
both claims is frowned upon. Thibault, 395
A.2d at 849 ("While . . . both counts are
permitted, we do not recommend to plaintiffs
that counts in both negligence and strict
liability be submitted to the jury because of
the confusion which is created."); see also
Greenland, 347 A.2d at 163. We will not create
a general rule of prohibition in light of the
New Hampshire Supreme Court's reluctance to do
so. We rule that it was not plain error to
submit counts in both negligence and strict
liability to the jury.
For the reasons set forth in Babcock we find there was no
plain error here.
The only question on the issue of claimed inconsistent
verdicts that does not admit of an easy solution is whether the
verdicts were inconsistent. The district court held that they were
not, stating:
Taking into account the New Hampshire law
applicable to each claim and the evidence that
was adduced at trial, the court finds that the
jury's answers to special verdict questions one
and three propounded in each of the plaintiffs'
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cases were not inconsistent. The jury
evaluated the evidence in light of each claim
and answered the special verdict questions as
instructed. The defendant's inconsistency
claim must fail on its merits.
Our review of the district court's ruling is de novo
because this is a pure question of law. See Gamma Audio & Video,
Inc. v. Ean-Chea, 11 F.3d 1106, 1114 (1st Cir. 1993).
We note first that there is a distinct difference in the
wording of the two questions. The question on strict liability
stated:
Strict Liability
1. Do you find by a preponderance of
the evidence that the 1986 Vanagon was
defectively designed because it lacked
lap/shoulder belts in the rear seating
positions?
The question was limited only to defective design. The
question on negligence, however, had more flesh to it:
Negligence
3. Do you find by a preponderance of
the evidence that the defendant was negligent
in designing and/or testing the 1986 Vanagon
because it lacked lap/shoulder belts in the
rear seating positions? (Emphasis added.)
Under the wording of the negligence question the jury
could have found Volkswagen liable on one or more of the following
grounds: because its design of the rear seat restraint mechanism
did not include lap/shoulder belts; there was negligent testing by
VW that did not disclose that lap/shoulder belts were needed to
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restrain the torso of a passenger in the rear seat from being thrown
violently forward in an accident; or that VW's negligence
encompassed both design and testing.
VW has cited cases from other jurisdictions that have
ruled as a matter of law that verdicts based on a finding of no
strict liability in a defective design case would nullify a
liability finding of negligent design. As we stated in Babcock,
however,
We need not determine whether that proposition
is correct - it is enough to conclude, as we
do, that New Hampshire law is not so clear on
the question that it was plain error for the
district court to enter judgment on the jury's
verdict.
299 F.3d at 65. It is clear that under New Hampshire tort law, both
strict liability and negligence questions can be submitted to the
jury. See
Thibault, 395 A.2d at 849;
Greenland, 347 A.2d at 163.
Moreover, as noted above, the negligence question submitted to the
jury referenced "negligent design and/or testing" as possible
grounds for a finding of liability.
Therefore, in the context of this case, we hold that it
was not plain error for the district court to enter judgment upon
verdicts indicating liability for negligence but not for strict
liability. The jury was instructed properly on the legal elements
of strict liability and negligence. The jury was also instructed
that both liability questions were to be answered. It is obvious
that the jury understood the instructions and its duty. It found
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no liability on strict liability and did not answer the damages part
of the question. No questions evincing confusion or ignorance were
asked of the court by the jury. It is apparent that the jury
understood that the focus of strict liability is on whether the
design itself is unreasonably dangerous whereas in a negligence case
the focus is on the conduct of the manufacturer, which brings us to
the next issue, the evidence of VW's negligence.
II. EVIDENCE OF NEGLIGENCE
VW claims that plaintiff failed "to adduce sufficient
evidence to establish negligence." VW Br. at 17. It first argues
that the standard of review is de novo. This position is contrary
to the applicable law. VW filed a post-trial motion for a
remittitur or, in the alternative, for a new trial. It also filed
a motion for judgment as a matter of law or a new trial. It is
these motions that determine the standard of review.
In reviewing the denial of a motion for judgment as a
matter of law we must evaluate the evidence and inferences adduced
therefrom in the light most favorable to the plaintiff. Raymond v.
Raymond Corp., 938 F.2d 1518, 1521 (1st Cir. 1991); Austin v.
Lincoln Equip. Assocs., Inc.,
888 F.2d 934, 937 (1st Cir. 1989).
Such a motion should be granted by the district court only if, as
a matter of law, the evidence would lead a reasonable jury to only
one conclusion that the defendant was entitled to judgment.
Hendricks & Assocs., Inc. v. Daewoo Corp.,
923 F.2d 209, 214 (1st
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Cir. 1991). And the reviewing court may only reverse a trial
judge's ruling denying a motion for a new trial if the district
court's decision is so clearly mistaken as to constitute a
miscarriage of justice. Raymond, 938 F.2d at 1522; Gutierrez-
Rodriguez v. Cartagena,
882 F.2d 553, 558 (1st Cir. 1989).
With this standard of review as our guide we start our
analysis. Both parties agree that the applicable standard of care
is that of a reasonably prudent automobile manufacturer. We first
note that the front seats of the Vanagon were equipped with lap and
shoulder belts. This means that this type of body restraint was
known and available to VW. There was evidence by one of plaintiff's
experts as follows: "There was sufficient evidence before 1986 [the
year of the Vanagon's manufacture] to show that lap belts alone just
can't do the job – to protect a person, you need a lap and shoulder
belt."
The results and evaluation of tests performed by VW
relative to the safety afforded rear seat passengers equipped with
lap belts only, and those with both lap and shoulder belts, were
exhibits in the case. The tests were performed by VW on April 27,
1981, which was five years prior to the manufacture of the Vanagon
in which Benjamin and Nathaniel Trull were passengers. The
pertinent conclusions that VW made were as follows:
Limited protection by lap belt
The occupant restrained with lap belt was
displaced forward due to elongation of the
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belt. The rotational movement of the upper
torso about the hip point enables head contact
with the back rest in front of it.
1. Evaluation regarding injury risk
Three-point belt
The occupant restrained with
three-point belt is well
protected in a frontal crash.
No contact with the steering
wheel, instrument panel,
transverse beam, etc. (photo 5
and 6).
Lap belt
Lap-belt restrained vehicle occupants are
subject to a high degree of head and
cervical vertebrae injuries. The lap belt
enables a rotational motion about the hip
point. (Photo 7, 8 and 9).
There was testimony by one of plaintiffs' expert witnesses
(D'Aulerio) that the use of a shoulder belt would have eliminated
the head injuries to Nathaniel and Benjamin. The witness explained
to the jury that the lap belt alone acted as a lever so that as the
torso and head were bent they were accelerated forward and inclined
downward at the moment of impact. The lap belt, therefore,
according to the expert, was partially responsible for the head
injuries received by both brothers.
Another of plaintiffs' experts, Dr. Anthony Sances, had
a master's degree in physics and a Ph.D. in biomedical engineering.
Dr. Sances had considerable experience in determining the cause and
extent of injuries resulting from automobile collisions; he had been
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involved in over a thousand cases. It was his opinion that there
would have been no head injuries to either Benjamin or Nathaniel if
they had been wearing shoulder belts.
We summarize other record evidence of negligence:
It was known since the 1950's in the automotive
industry that shoulder belts restrain forward
movement of occupants while lap belts do not;
It was known for a long time before 1986 that
lap belts alone did not offer adequate
protection to occupants and that lap-shoulder
belts were needed to do the job;
In 1980, NHTSA sent a letter to all motor
vehicle manufacturers, including Volkswagen in
which it stated, "rear seat three-point belts
should be offered for additional protection to
rear seat occupants. They have been offered by
Volvo, Mercedes and a few others for many years
as standard equipment";
In 1986, Volkswagen sold the Vanagon in four
foreign countries with rear shoulder harnesses
as standard equipment;
In 1986, Volkswagen sold four out of five of
its sedan type vehicles in the United States
with rear lap shoulder belts as standard
equipment;
Since the early 1970's, all Vanagons had anchor
points which would have allowed for
installation of lap-shoulder belts in the rear
seats;
Volkswagen offered the same rear seat shoulder
harness as optional equipment for the 1986
Vanagon sold in the United States which was
standard equipment in other countries.
Based on our examination of the record, we have no
difficulty ruling that there was a plethora of evidence from which
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the jury could find that VW was negligent in not equipping the
Vanagon sold to plaintiff with shoulder belts on the rear passenger
seats and this negligence was the proximate cause of the enhanced
injuries suffered by Nathaniel and Benjamin in the collision.
III. THE DAMAGES AWARDED NATHANIEL TRULL
VW contends that the award of $8,917,335.27 "is wildly
excessive, justifying substantial reduction." VW Br. at 48. Our
standard of review of damages is abuse of discretion:
We review the denial of a motion for a
remittitur for abuse of discretion. See
Anthony, 17 F.3d at 493; McDonald v. Federal
Laboratories, Inc., 724 F.2d 243, 246 (1st Cir.
1984). We will find an abuse of discretion
only if the jury's verdict exceeds "any
rational appraisal or estimate of the damages
that could be based on the evidence before the
jury." Milone v. Moceri Family, Inc., 847 F.2d
35, 36 (1st Cir. 1988) (quoting Segal v.
Gilbert Color Systems, Inc., 746 F.2d 78, 81
(1st Cir. 1984)). We have noted that "the
obstacles which stand in the path of" such
claims of excessiveness "are formidable ones."
Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir.
1987). Translating legal damage into money
damages is a matter "peculiarly within a jury's
ken," especially in cases involving intangible,
non-economic losses. Id.; see also Correa v.
Hospital San Francisco, 69 F.3d 1184, 1197 (1st
Cir. 1995) ("An appellate court's normal
disinclination to second-guess a jury's
evaluation of the proper amount of damages is
magnified where, as here, the damages entail a
monetary valuation of intangible losses, and
the trial judge, having seen and heard the
witnesses at first hand, accepts the jury's
appraisal."), cert. denied 517 U.S. 1136
(1996). Viewing the evidence in the light most
favorable to the verdict, the jury's assessment
of damages will not be disturbed unless it is
"grossly excessive, inordinate, shocking to the
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conscience of the court, or so high that it
would be a denial of justice to permit it to
stand." Id. (quoting Segal, 746 F.2d at 80-81)
(internal quotation marks omitted).
Smith v. Kmart Corp., 177 F.3d 19, 29-30 (1st Cir. 1999).
VW points to a number of mental, physical, and
psychological problems with which Nathaniel was afflicted prior to
the accident. One of the bedrock foundations of tort law is that
the defendant takes the plaintiff as it finds him. See Figueroa-
Torres v. Toledo-Davilla, 232 F.3d 270, 275 (1st Cir. 2000); Dotty
v. Sewall,
908 F.2d 1053, 1059 (1st Cir. 1990); W. Page Keeton et
al., Prosser and Keeton on the Law of Torts § 43 (5th ed. 1984).
VW points out that there was conflicting evidence on how seriously
Nathaniel was injured. From our vantage point we focus on the
evidence favorable to the verdict. See
Smith, 177 F.3d at 30.
VW claims that based on unrefuted medical evidence
Nathaniel did not suffer a brain injury in the accident. To put it
in VW's words: "In the crash he sustained a head injury consisting
of a skull fracture and epidural hematoma without brain damage and
sequelae." VW Br. at 49 (emphasis in original). But on cross-
examination, VW's expert medical witness, Dr. Mendelsohn, testified
that Nathaniel Trull did, in fact sustain a change in his condition,
making him worse.
There was competent evidence that Nathaniel sustained a
depressed skull fracture causing blood to form inside the brain that
had to be drained away by an operation called a craniotomy.
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There was evidence by a neuropsychologist and a clinical
psychologist both of whom had treated Nathaniel before and after the
accident. The opinion of these experts was that Nathaniel's head
trauma exacerbated his pre-existing condition so that he is now
unable to live independently and will have to live under supervised
structured conditions for the rest of his life.
There was evidence by a medical economist that the life
expectancy of Nathaniel was 58.1 years and that the economic loss
due to the injury was approximately $5.3 million. As the district
court pointed out in its order denying VW's motion for a remittitur,
VW did not submit any economic evidence. The figure of $5.3 million
did not include any amount for pain and suffering or other hedonic
damages.
The jury was properly instructed that Nathaniel was
entitled to recover for past and future, pain and suffering, mental
anguish and disability.
We rule that the district court did not abuse its
discretion in denying the motion for a remittitur.
IV. THE EXCLUSION OF TEST REPORTS IN THE GERMAN LANGUAGE
This issue need not detain us long. VW offered as
exhibits test reports in the German language. Plaintiff objected
and the court informed VW that the reports would not be admitted
unless they were translated into English. This was not done. The
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district court did not abuse its discretion in excluding the
documents.
The judgment below is affirmed. Costs on appeal awarded
to plaintiff.
- Concurring Opinion Follows -
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CAMPBELL, Senior Circuit Judge, concurring. I concur in
the judgment. I write separately because I do not understand why
my colleagues, after finding that VW did not preserve the issue of
verdict inconsistency, have gone on to discuss that issue to the
extent they do, even suggesting a likely consistency between the
jury's two verdicts. Whether or not the jury's responses on
defective design and negligence were inconsistent, VW's failure to
preserve the inconsistency issue, and the absence of plain error,
makes the inconsistency issue irrelevant. New Hampshire law is so
clouded as to make it undesirable for a federal appeals court to
speculate unnecessarily in ways that might later be seen as
pronouncements on one or another facet of the inconsistency issue.
I fully agree with my colleagues that by failing to object
at the proper time to the court's relevant instructions and jury
forms, and by failing to object on inconsistency grounds after the
verdict was read and before the jury was dismissed, VW waived any
claim of verdict inconsistency. See, e.g., Howard v. Antilla, 294
F.3d 255, 251 (1st Cir. 2002); Bonilla v. Yamaha Motors Corp.,
955
F.2d 150, 155-56 (1st Cir. 1992). And I further agree there was no
plain error. The latter is not simply a question of whether the
court acted correctly under New Hampshire law. Even a clear and
obvious error of state law would not, by itself, amount to plain
error. The error would not be "plain", so as to excuse VW's failure
to object, unless the error had also resulted in a miscarriage of
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justice. See, e.g., United States v. Olano, 507 U.S. 725, 733
(1993); Chestnut v. Lowell,
305 F.3d 18, 20 (1st Cir. 2002). Here
I can see no miscarriage of justice regardless of whether or not the
jury findings on defective design and negligence were inconsistent.
It is therefore entirely unnecessary for this court to suggest there
was in fact consistency, in particular because the negligence
question submitted to the jury referenced negligent testing as well
as negligent design. Reconciling the finding of no defective design
with a finding of negligent testing, on this record, is not much
easier than reconciling it with a finding of negligent design. To
be sure, New Hampshire apparently permits cases to be submitted
simultaneously on defective design and negligence theories, but this
does not determine what should be done if the jury's results seem
contradictory in a particular case.
The overriding point here is simply that VW did not
preserve the inconsistency issue. That should end the matter.
While the jury's logic with respect to its answers on the two counts
is indeed debatable, there is no obvious injustice to entering
judgment on the verdicts, as the court did. The jury's intentions
were entirely clear - it found liability predicated on negligence,
and there was ample evidence to support such a finding. Whatever
the inconsistency of its negative finding on defective design, that
finding (if inconsistent) is most reasonably seen as the product of
confusion as to the elements of the defective design count rather
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than as casting doubt on the validity of the jury's resolution of
the negligence count. There is nothing fundamentally unjust about
entering judgment on both counts. If VW wanted to argue the
inconsistency issue, it needed to preserve its rights.
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