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Full Opinion
United States Court of Appeals
For the First Circuit
No. 10-1824
CARLOS OSORIO,
Plaintiff, Appellee,
v.
ONE WORLD TECHNOLOGIES, INC. and
RYOBI TECHNOLOGIES, INC.,
Defendants, Appellants,
HOME DEPOT U.S.A., INC.,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
William L. Boesch, with whom Sugarman, Rogers, Barshak &
Cohen, P.C., Michael S. Appel, Susan A. Hartnett, and William F.
Benson, were on brief for appellants.
George F. Carpinello, with whom Teresa A. Monroe, Angus W.
Dwyer, Stuart H. Singer, Joshua P. Riley, Boies, Schiller &
Flexner, LLP (New York and Florida), Sullivan & Sullivan, LLP,
Richard J. Sullivan and Owen R. O'Neill, were on brief for
appellee.
David R. Geiger, Joseph P. Lucia, and Foley Hoag LLP, on brief
for The Product Liability Advisory Council, Inc., amicus curiae.
October 5, 2011
TORRUELLA, Circuit Judge. Appellee Carlos Osorio
("Osorio") filed a diversity suit against appellants One World
Technologies, Inc. and Ryobi Technologies, Inc. (collectively,
"Ryobi")1 in the United States District Court for the District of
Massachusetts. The complaint alleged claims arising from a hand
injury suffered in a construction site accident involving one of
Ryobi's table saws. After an eight-day jury trial, the jury found
for Osorio and awarded damages of $1.5 million. Ryobi then filed
a motion for judgment as a matter of law and for a new trial, which
the district court denied. Ryobi now appeals these decisions.
After careful consideration, we affirm the district court's
decisions on both matters.
I. Background
On April 19, 2005, Osorio suffered a hand injury while he
operated a Ryobi Model BTS15 benchtop table saw (hereinafter, the
"BTS 15"). At the time, Osorio worked on a construction site for
his employer, a contractor who repairs and installs hardwood
floors. Earlier that year, his employer had purchased the BTS 15
1
One World Technologies, Inc. and Ryobi Technologies, Inc. merged
in December 2004, and Ryobi Technologies, Inc. no longer exists as
a separate company. However, Ryobi Technologies, Inc. manufactured
the product at issue in this case and the parties refer to
Defendants-Appellants as "Ryobi" in their briefs. Accordingly, for
simplicity, this opinion will also refer to Defendants-Appellants
as "Ryobi."
-2-
at a Home Depot store for $179.2 As Osorio used the BTS 15 to make
a cut along the length of a piece of wood, his left hand slipped
and slid into the saw's blade, causing severe injury.
Osorio sued Ryobi, the manufacturer of the saw, claiming
negligence and breach of the implied warranty of merchantability.3
At trial, Osorio argued that the BTS 15 was unacceptably dangerous
due to a defective design. Osorio largely relied on the testimony
of his witness, Dr. Stephen Gass, inventor of "SawStop," a
mechanism that allows a table saw to sense when the blade comes
into contact with flesh, immediately stops the blade from spinning,
and causes it to retract into the body of the saw. Dr. Gass
testified that since he developed SawStop in 1999, he has presented
the technology to several major manufacturers of table saws,
including Ryobi in 2000. To date, none of the major power tool
manufacturers has adopted SawStop. Osorio alleged that the
manufacturers' failure to incorporate SawStop into their designs is
due to a collective understanding that if any of them adopts the
technology, then the others will face heightened liability exposure
for not doing so as well.
2
There are three generally-recognized categories of table saws --
benchtop saws, contractor saws, and cabinet saws. Cabinet and
contractor saws are large and designed for use in an industrial or
large workshop setting such as woodworking shops. Benchtop saws
like the BTS 15 at issue are smaller, often portable, and less
expensive than the other two categories.
3
Osorio also sued Home Depot U.S.A., Inc. However, Home Depot
was not found liable at trial and is not involved in this appeal.
-3-
The trial had an element of comparative negligence, which
is not being appealed, but which had an effect on the evidence
introduced at trial. After an eight-day trial, the jury returned
a verdict in favor of Osorio and awarded damages of $1.5 million.
The jury also found that Osorio was negligent and thirty-five
percent at fault for the accident. However, this finding of
comparative negligence did not affect the award of damages, as the
jury also found Ryobi liable for breach of the implied warranty of
merchantability.
Following the trial, Ryobi moved for judgment as a matter
of law, alleging that Osorio did not meet an obligation to present
a feasible alternative design. In the alternative, Ryobi moved for
a new trial based on plaintiff's counsel's alleged prejudicial
misconduct. The district court denied the motion. Osorio v. One
World Techs., Inc., 716 F. Supp. 2d 155, 158 (D. Mass. 2010).
Ryobi now appeals.
II. Discussion
Although the parties frame the issues differently, Ryobi
essentially presents three arguments on appeal. First, Ryobi
contends that Osorio failed to present sufficient evidence to
support the jury's verdict in his favor on design defect grounds.
Second, Ryobi argues that Osorio's counsel committed misconduct at
trial that prejudiced Ryobi's defense. Third, Ryobi claims the
district court should not have permitted Osorio's expert to
-4-
discredit the BTS 15's design in ways Ryobi alleges were irrelevant
to the case and contests the district court's refusal to allow it
to show excerpts from a video deposition of Osorio. We address
each argument in turn.
A. Sufficiency of the Evidence Claim and Categorical Liability
We review the district court's denial of a defendant's
motion for judgment as a matter of law de novo. Morales-
Vallellanes v. Potter, 605 F.3d 27, 33 (1st Cir. 2010). In doing
so, we consider "the evidence presented to the jury, and all
reasonable inferences that may be drawn from such evidence, in the
light most favorable to the jury verdict." Granfield v. CSX
Transp., Inc., 597 F.3d 474, 482 (1st Cir. 2010) (quoting Cigna
Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001)). We
will only reverse the district court's denial of Ryobi's motion "if
the facts and inferences point so strongly and overwhelmingly in
favor of the movant that a reasonable jury could not have reached
a verdict against that party." Santos v. Sunrise Med., Inc., 351
F.3d 587, 590 (1st Cir. 2003) (quoting Star Fin. Servs., Inc. v.
Aastar Mortg. Corp., 89 F.3d 5, 8 (1st Cir. 1996)) (internal
quotation marks omitted).
1. Sufficiency of the Evidence to Prove a Design Defect
Under applicable Massachusetts law, warranty liability is
"a remedy intended to be fully as comprehensive as the strict
liability theory of recovery [of many other] jurisdictions." Back
-5-
v. Wickes Corp., 378 N.E.2d 964, 968 (Mass. 1978). Accordingly,
manufacturers must design products so that they "are fit for the
ordinary purposes for which such goods are used." Mass. Gen. Laws
ch. 106, § 2-314(2)(c). "A product is 'reasonably fit' for its
purposes if the design prevents the 'reasonably forseeable [sic]
risks attending the product's use in that setting.'" Marchant v.
Dayton Tire & Rubber Co., 836 F.2d 695, 698 (1st Cir. 1988)
(quoting Back, 378 N.E.2d at 970). Thus, Massachusetts law is
"congruent in nearly all respects with the principles expressed in
the Restatement (Second) of Torts § 402A." Back, 378 N.E.2d at
969.
A reasonably fit product need not be a risk-free product,
however. "Even where the product design creates a risk of
foreseeable harm, the question is whether this risk was
unreasonable." Marchant, 836 F.2d at 698 (quoting Raney v.
Honeywell, Inc., 540 F.2d 932, 935 (8th Cir. 1976)) (internal
quotation marks omitted); see also Restatement (Second) of Torts
§ 402A. Guiding our judgment in the instant case, the Supreme
Judicial Court of Massachusetts has explained that relevant factors
to assess the suitableness of a product's design include:
[1] the gravity of the danger posed by the
challenged design, [2] the likelihood that
such danger would occur, [3] the mechanical
feasibility of a safer alternative design, [4]
the financial cost of an improved design, and
[5] the adverse consequences to the product
and to the consumer that would result from an
alternative design.
-6-
Back, 378 N.E.2d at 970 (quoting Barker v. Lull Eng'g Co., 573 P.2d
443 (Cal. 1978)) (internal quotation marks omitted). The jury is
free to balance all competing factors, including the perceived
feasibility of a proposed alternative design. See Marchant, 836
F.2d at 699-700. As a result, "plaintiff's case is not
automatically defeated merely because the alternative design was
not being used at the material time." Id. at 699.
Ryobi argues that Osorio failed to meet a prima facie
obligation to present a reasonable alternative design for the
product at issue that accounted for the weight, cost, and other
features particular to the BTS 15. This amounts to two arguments:
that the record evidence was insufficient to permit the jury to
make a reasoned determination and that Massachusetts law requires
a prima facie showing on all of these factors. Both are incorrect.
Because the evidence at trial showed that a benchtop saw
that incorporated SawStop into its design would likely be larger,
heavier, and more expensive than the BTS 15 at issue, Ryobi insists
that Osorio's proffered design falls short of being a viable
alternative. Accordingly, Ryobi would like us to conclude that
Osorio did not meet his burden and hold that Ryobi is entitled to
judgment as a matter of law.
Operating -- as we must -- under the applicable
Massachusetts principles, we do not conclude that the added cost or
increased weight of Osorio's proposed alternative design is fatal
-7-
to his case as a matter of law. It is the province of the jury to
determine whether the relevant factors, properly balanced, suggest
that a product's design is unreasonable. See Back, 378 N.E.2d at
970. The increase in expense of a proposed alternative is but one
of those factors and the jury was free to determine that the costs
of such an alternative exceeded its benefits. Marchant, 836 F.2d
at 700 (rejecting proposition that "plaintiff must prove that the
alternative design was efficient on a cost/benefit basis").
Evidence relating to the mechanical feasibility or increased weight
of an alternative design may be similarly balanced. Where, as
here, the trial judge adequately instructed the jury as to the
applicable multi-factored design defect test under Massachusetts
law, we have not found reason to question the jury's findings. See
id. ("Such an instruction [to the jury] is all that Back v. Wickes
requires.").
The viability of adding SawStop to a small, portable saw
was a major issue during the litigation, amounting to what the
district court described as "hours of testimony on the cost and
feasibility of incorporating the technology into the BTS
15 . . . ." Osorio, 716 F. Supp. 2d at 157. At trial, Osorio's
expert offered testimony that a benchtop saw like the BTS 15 that
incorporated SawStop flesh-detection technology could still be
carried between jobsites. The jury also heard testimony suggesting
that Ryobi was in the process of developing flesh-detection
-8-
technology through a joint venture with competing manufacturers.
With regards to cost, the record reveals that over the course of an
eight-day trial the jury had ample opportunity to hear the parties'
competing propositions on the issue. On Osorio's behalf, Dr. Gass
testified that SawStop technology would add "less than $150" to the
price of a table saw and Osorio's other expert witness, Mr. Robert
Holt, seems to have accepted this figure. On cross-examination,
Ryobi probed and challenged Osorio's proposed alternative design.
Pressed by Ryobi's counsel, Dr. Gass testified that the SawStop
flesh-detection system can trigger without having actually been
touched by a person, particularly when cutting wet or pressure-
treated wood. Because portable saws used by contractors are
sometimes exposed to the elements and rough treatment, the jury
heard testimony that these conditions could increase the chances of
a malfunction of the SawStop system. Finally, the parties also
disputed whether a small benchtop saw like the BTS 15 could
properly absorb the force necessary to stop a rapidly spinning saw
blade.
Secondly, as a matter of law, we do not find support for
Ryobi's suggestion that a plaintiff asserting a design defect claim
must present an alternative design that meets all the above-cited
Back factors prima facie. Quite the opposite, all Massachusetts
law requires is that "competing factors should be balanced when
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deciding reasonableness of design." Marchant, 836 F.2d at 699-700
(internal quotation marks omitted).
In Marchant, we addressed an argument similar to the one
Ryobi advances, where the district court had granted defendants'
motion for judgment as a matter of law on the grounds that a
plaintiff asserting a design defect claim did not "prove to the
jury the cost/benefit efficiency of the alternative design." Id.
at 699. Reinstating the jury's verdict in favor of the plaintiff,
we rejected the defendants' claim that "the plaintiff must prove
that the alternative design was efficient on a cost/benefit basis."
Id. at 700. Pertinent to the instant case, we also noted that
where the defendant manufacturer felt its product's design was
reasonable, it was "its responsibility to produce evidence in
support of such a theory." Id.
Ryobi's claim that Osorio needed to make a prima facie
showing of a feasible alternative design meeting the Back factors
is also undermined by the Massachusetts Supreme Judicial Court's
decision in Smith v. Ariens Co., 377 N.E.2d 954 (Mass. 1978), which
guided our analysis in Marchant. In Marchant, we explained:
In Smith . . . the SJC upheld a verdict that a
snowmobile was designed such that an
unreasonable risk of harm was created, where
the only evidence relied upon by the jury was
the snowmobile itself. Not only did the
plaintiff in Smith fail to address the costs
and efficiencies of alternative designs, but
no alternatives were even suggested.
-10-
836 F.2d at 700 (internal quotation marks omitted). Contrary to
Ryobi's claim, Smith, then, suggests that Massachusetts product
liability law may tolerate a finding of design defect even in the
absence of evidence supporting the existence of a feasible
alternative design. See Smith, 377 N.E.2d at 957 ("[I]n cases in
which a jury can find of their own lay knowledge that there exists
a design defect which exposes users of a product to unreasonable
risks of injury, expert testimony that a product is negligently
designed is not required.").4
2. Categorical Liability
a. Waiver
As a corollary to its sufficiency argument, Ryobi claims
that Osorio's suit is essentially an attempt to hold a manufacturer
liable for injuries caused by its product in the absence of a
conventional defect and despite the fact that a feasible safer
alternative is not available, a "categorical liability" theory that
courts have traditionally rejected. See, e.g., Kotler v. Am.
Tobacco Co., 926 F.2d 1217, 1224-25 (1st Cir. 1990) ("The pivotal
question . . . is whether, in the absence of a non-inherent defect,
breach of warranty can be found based solely on a risk/utility
analysis. We think this question must be answered in the
4
Guided by these principles, we also reject as contrary to
Massachusetts law amicus's claim that the feasibility of a product
is most readily demonstrated by the product already being on the
market. See Back, 378 N.E.2d at 970 ("[C]ounsel may argue that
industry standards can and should be more stringent.").
-11-
negative."), vacated, 505 U.S. 1215, aff'd on remand, 981 F.2d 7
(1st Cir. 1992). However, before we examine the merits of Ryobi's
claim, we must resolve a threshold matter: whether, as Osorio
contends, Ryobi failed to preserve its categorical liability
argument by not including it in its motion for judgment as a matter
of law at the close of the evidence.
A challenge to the sufficiency of the evidence such as
the one Ryobi presses on appeal must first be raised at the close
of all the evidence at trial. See Fed. R. Civ. P. 50(a)(2);
Sánchez v. P.R. Oil Co., 37 F.3d 712, 723 (1st Cir. 1994). If, as
in the instant case, the district court denies the litigant's
motion for judgment as a matter of law and the case is submitted to
the jury, "the movant must renew the motion once again in order to
preserve the issue for appeal." Zachar v. Lee, 363 F.3d 70, 73-74
(1st Cir. 2004) (citing Fed. R. Civ. P. 50(b)). Under Rule 50(b),
a renewed motion must limit itself to the issues raised in a
movant's prior Rule 50(a) motion. Parker v. Garrish, 547 F.3d 1,
12 (1st Cir. 2008); Correa v. Hosp. San Francisco, 69 F.3d 1184,
1196 (1st Cir. 1995).
Ryobi conceded in its Rule 50(a) motion that Osorio had
"presented evidence critical of the [BTS 15]," but argued that
Osorio had "failed to offer sufficient evidence for the jury to
conclude that the subject saw was not designed with reasonable care
or that the saw was both defective and unreasonably dangerous."
-12-
The district court denied this motion. Ryobi's Rule 50(b) motion
for judgment as a matter of law renewed this sufficiency attack,
but also accused Osorio's expert witnesses of advancing "the
position that the [BTS 15] and all low-cost portable benchtop table
saws like it are inherently unsafe and should not be sold."
Osorio, Ryobi asserted, could not "invoke Massachusetts' product
liability law to impose categorical liability on a class of
products." As before, the district court denied this motion. On
appeal, Ryobi revives the arguments it set forth in its Rule 50(b)
motion.
We do not find that Ryobi waived the categorical
liability argument it now asks us to consider. The crux of Ryobi's
argument is that Osorio did not show that a feasible alternative
design for an inexpensive, lightweight benchtop table saw like the
BTS 15 existed. The alternative design Osorio proposed at trial,
Ryobi's argument continues, would drastically alter a saw like the
BTS 15, resulting in a heavier, less portable, and more expensive
product. Ryobi maintains that its categorical liability argument
simply seeks to "flesh[] out" the question of whether Osorio
satisfied his burden of presenting an alternative design for the
BTS 15 -- an issue contested at each stage of the litigation.
Reviewing the record, we agree.
Throughout the litigation, Ryobi has argued that SawStop
could not be incorporated into the BTS 15's design without
-13-
radically altering the nature of the product and its cost.
Accordingly, we believe that Ryobi's failure to explicitly invoke
"categorical liability" in its pre-judgment Rule 50(a) motion did
not constitute a waiver of its argument. See Lynch v. City of
Boston, 180 F.3d 1, 13 n.9 (1st Cir. 1999) ("[Rule 50(a)] does not
require technical precision in stating the grounds of the motion.
It does require that they be stated with sufficient certainty to
apprise the court and opposing counsel of the movant's position
with respect to the motion." (citing 9A C. Wright & A. Miller,
Federal Practice and Procedure, § 2533, at 310-11 (1995))).
b. Osorio's Suit as Impermissible Categorical
Liability
Ryobi claims that instead of presenting a viable
alternative design, Osorio set out to prove that the entire
category of lightweight, inexpensive, benchtop table saws to which
the BTS 15 belongs was defective, in part because the saws'
manufacturers have not incorporated flesh-detection braking systems
into their designs. Taken to its logical conclusion, Ryobi
contends, Osorio's theory would hold manufacturers of portable and
economical benchtop saws liable for all injuries suffered by
victims of accidents involving their products.
To support its argument, Ryobi cites several cases,
namely the Fourth Circuit's decision in Dreisonstok v.
Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974). In that case,
the district court, sitting without a jury, found that the product
-14-
at issue, a Volkswagen microbus, was defective because it was not
as "crashworthy" as a standard passenger car. The Fourth Circuit
reversed, concluding that the Volkswagen microbus had specific
features -- such as maneuverability, low cost, and its utility to
transport people or cargo -- that made it attractive to many
consumers. Id. at 1073-76. The Dreisonstok court explained that
these features involved safety tradeoffs discernible to consumers
and rejected what it saw as the plaintiff's call to impose a
"strait-jacket on design" by requiring that all vehicles conform to
the standards of another class of vehicle. Id. at 1075.
Ryobi concedes that its cited examples of the categorical
liability theory are often clear about plaintiffs' intentions, for
example, by attempting to impose liability for injuries caused by
an entire class of products. Accordingly, in Kotler, cited by some
commentators as a classic categorical liability case,5 we were
unwilling to hold a manufacturer liable for alleged design defect
based on a theory that its cigarettes were inherently defective.
See 926 F.2d at 1225 ("Appellant's design initiative rested not on
the contention that appellees' cigarettes could have been made
safer, but solely on the considerably different contention that the
5
See, e.g., Richard C. Ausness, Product Category Liability: A
Critical Analysis, 24 N. Ky. L. Rev. 423, 439-40 (1997); Harvey M.
Grossman, Categorical Liability: Why the Gates Should be Kept
Closed, 36 S. Tex. L. Rev. 385, 391 n.19, 392 n.25 (1995); Ellen
Wertheimer, The Smoke Gets in Their Eyes: Product Category
Liability and Alternative Feasible Designs in the Third
Restatement, 61 Tenn. L. Rev. 1429, 1432 n.7 (1994).
-15-
cigarettes were defective because the risks inherent in their
consumption . . . outweighed their social utility."). However,
Ryobi posits that the categorical liability concept extends beyond
those cases into others where the claim is more subtle. As
examples, Ryobi points us to two cases.
In the first, Wasylow v. Glock, Inc., 975 F. Supp. 370
(D. Mass. 1996), the district court rejected the plaintiff's
challenge at the summary judgment stage, finding that a proposed
alternative design for a handgun appeared both feasible and safer,
but would alter the product's "functional purpose." 975 F. Supp.
at 379. In the second, Linegar v. Armour of America, Inc., 909
F.2d 1150 (8th Cir. 1990), the Eighth Circuit rejected a design
defect challenge to a certain kind of bullet-resistant vest that
offered less coverage than other models but allowed the user
greater mobility and heat dissipation, among other features. 909
F.2d at 1154-55. Doing so, the Linegar court noted the likely
effect on product availability of holding in the plaintiffs' favor,
noting that "manufacturer[s] [are] not obliged to market only one
version of a product, that being the very safest design possible.
If that were so, automobile manufacturers could not offer consumers
sports cars, convertibles, jeeps, or compact cars." Id. at 1154.
Ryobi contends that, like Osorio's suit, these cases form part of
the categorical liability catalogue because accepting the
-16-
plaintiffs' claim required a "fundamental disregard of the defining
characteristics of the product at issue."
We are not convinced that Osorio's suit reaches into
impermissible categorical liability. The absence of an alternative
design is a defining characteristic of categorical liability
theory. See Restatement (Third) of Torts: Products Liability § 2
cmt. d (1998); see also Harvey M. Grossman, Categorical Liability:
Why the Gates Should be Kept Closed, 36 S. Tex. L. Rev. 385, 392
(1995) (noting the doctrine imposes liability "even though there is
no . . . reasonable design alternative that could be used to avoid
[] injuries"). Here, an alternative design was not only offered,
but also discussed, examined, and debated. At the district court
the parties explained and probed the merits of an alternative
design incorporating the SawStop system. Ryobi repeatedly
challenged Osorio's proposed design raising many of the arguments
against SawStop it now raises on appeal, particularly on the issue
of added weight. See Osorio, 716 F. Supp. 2d at 157. Just as we
conclude that the evidence presented was sufficient to allow the
case to reach the jury, it seems similarly plain that considering
the evidence before it, the jury simply agreed with Osorio's case
and found in his favor.
B. Counsel's Alleged Misconduct at Trial
Ryobi's post-judgment motion to the district court also
contained a request for a new trial under Fed. R. Civ. P. 59. On
-17-
appeal, Ryobi again points to several allegedly impermissible
statements and other improper conduct on the part of Osorio's
counsel that Ryobi says prejudiced its case to the extent that a
new trial is necessary. Ryobi claims that Osorio's counsel: (1)
sought to inflame the jury by repeatedly referencing Ryobi's size,
earnings, and foreign ownership; (2) cited irrelevant and
unsupported statistics of numbers of table saw accidents (including
those attributed to Ryobi); (3) attempted to connect Ryobi with a
ten-year power tool manufacturer conspiracy to keep flesh-detection
technology off the market; and (4) improperly urged the jury to
"send a message" to Ryobi management by finding for Osorio -- once
explicitly, during opening statement and again, as an implicit
"theme," at closing arguments after the judge advised against
"introducing purely emotional elements" to the jury's
deliberations.
We review the denial of a motion for a new trial for
abuse of discretion, mindful of the deference due to the district
court's judgment. S.E.C. v. Happ, 392 F.3d 12, 26 (1st Cir. 2004).
"In assessing the effect of improper conduct by counsel, the Court
must examine the totality of the circumstances, including the
nature of the comments, their frequency, their possible relevancy
to the real issues before the jury, the manner in which the parties
and the court treated the comments, the strength of the case, and
the verdict itself." P.R. Aqueduct & Sewer Auth. v. Constructora
-18-
Lluch, Inc., 169 F.3d 68, 82 (1st Cir. 1999). We do not reverse in
the absence of prejudice to the appellant's case. Santos, 351 F.3d
at 593.
While Ryobi does point us to some conduct that could be
considered problematic, we are unconvinced that the district court
abused its discretion in refusing to grant a new trial. We are
most concerned by counsel's suggestion during opening statements
that the jury "send a message" to Ryobi management by imposing
liability since, as Ryobi notes, we have deemed similar arguments
improper in the past. See Smith v. Kmart Corp., 177 F.3d 19, 26-27
(1st Cir. 1999) (noting plaintiff's call to "send a message" was
improper request for punitive damages). Here, however, the
district judge acted competently to prevent Ryobi's case from being
prejudiced. At trial, Ryobi objected to the use of the phrase
"send a message" and Osorio's counsel asserted that he would
refrain from using it during closing argument. In light of
counsel's assertion, the court then stated that it would not
further restrict any statements, but warned both parties against
"introducing purely emotional elements into jury deliberations."
Although Ryobi claims that Osorio's counsel nevertheless then
implicitly asked the jury to "send a message" during closing
argument, we agree with the district court that plaintiff counsel's
later statements to the jury were "within the bounds of propriety."
Osorio, 716 F. Supp. 2d at 158.
-19-
C. Evidentiary Issues
Ryobi also raises two evidentiary claims on appeal. We
review the district court's evidentiary rulings for abuse of
discretion. Monteagudo v. Asociación de Empleados del Estado Libre
Asociado de P.R., 554 F.3d 164, 173 (1st Cir. 2009). Even if
erroneous, we disregard any defect below "which does not affect the
substantial rights of the parties." Kelley v. Airborne Freight
Corp., 140 F.3d 335, 346 (1st Cir. 1998) (quoting Fed. R. Civ. P.
61).
First, Ryobi argues that the district court erred by
allowing Osorio's witness, Mr. Holt, to disparage the design of the
BTS 15 in ways that Ryobi claims were irrelevant to the case at
issue and prejudicial to its case. Specifically, Mr. Holt
suggested that the design of the BTS 15's guiding "rip fence" and
safety blade guard were defective and commented on the saw's
dimensions, motor, and warnings. Ryobi contends that these
comments were irrelevant because Osorio conceded that he did not
use the blade guard at the time of the accident and, thus, no
alternative guard design would have helped to avoid Osorio's
accident.
Here, the district court did not abuse its discretion.
Viewed in the context of the parties' dispute, it is clear that
Holt's comments went to a major and controverted issue at trial:
whether Osorio was partly at fault for the accident that caused his
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injury. Ryobi's counsel tried to convince the jury that Osorio was
largely to blame, in part because he did not use the factory-issued
blade guard and removed the guiding rip fence before using the BTS
15. Conversely, Osorio sought to prove that it was common for
consumers to remove this equipment and that Ryobi should have
accounted for this probability in its design. Holt's testimony
bore on this controversy and was patently relevant to the
proceedings. See Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 77
(1st Cir. 2010).
Second, Ryobi claims that the district court erred by not
allowing the jury to watch an excerpt from a video deposition of
Osorio which, Ryobi alleges, was inconsistent with Osorio's
statements at trial describing the cut he made when he injured
himself. Osorio responds that Ryobi did not adequately preserve
this issue and has thus waived it on appeal. Even if Ryobi
preserved the claim, Osorio argues that the district court did not
abuse its discretion when it refused to allow Ryobi to use the
proposed video deposition and avers any error was harmless.
We do not find any evidence in the record that Ryobi
preserved this second evidentiary claim for our review.
"Preserving the claim of error based on exclusion of evidence
requires an adequate proffer, so that the trial and appellate
courts know what evidence is at issue." Fusco v. Gen. Motors
Corp., 11 F.3d 259, 263 n.3 (1st Cir. 1993); see United States v.
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Amaya-Manzanares, 377 F.3d 39, 46 (1st Cir. 2004); see also
Montalvo v. González-Amparo, 587 F.3d 43, 48 (1st Cir. 2009) ("[A]n
appellant who has not proffered a particular claim or defense in
the district court may not unveil it in the court of appeals."
(quoting Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627
(1st Cir. 1995) (internal quotation marks omitted))). At the
district court, Ryobi's counsel tried to show video of Osorio's
deposition, but the trial judge did not allow him to do so. The
record reflects that Ryobi's counsel then asked the judge if he
could instead show the witness the deposition transcript, adding
that he "would be happy to do that." The judge agreed to this
request, and the trial continued. At no later point in time did
Ryobi's counsel object to the district court's ruling. Not having
raised the issue below, we find Ryobi's assertion that the excerpts
of Osorio's video deposition were central to its case difficult to
credit and conclude that Ryobi's argument is waived.6
6
Even assuming we were to find that Ryobi preserved this issue
for appellate review, we think it is very likely that appellant's
claim would fail to overcome the "special degree of deference" that
we give district judges' "on-the-spot judgment calls" regarding
which evidence to admit or exclude at trial. Rodríguez v. Señor
Frog's de la Isla, Inc., 642 F.3d 28, 35-36 (1st Cir. 2011).
Moreover, in the unlikely event that Ryobi cleared that hurdle, it
is unclear how the excerpt of Osorio's video deposition that Ryobi
sought to introduce would support Ryobi's case so fully as to
require a new trial. The jury was, of course, well aware that the
parties disagreed about the type of cut Osorio made when he injured
his hand and that neither the blade guard nor the guides for the
wood were used. Additionally, the jury found Osorio to be thirty-
five percent at fault for the accident, but awarded damages on
another theory. Ultimately, we find it doubtful that the video
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III. Conclusion
For the reasons stated above, we affirm the district
court's order.
Affirmed.
excerpts of Osorio's deposition would be so vital to Ryobi's case
as to overcome the strong presumption against granting a new trial.
See McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st Cir. 2006)
("Erroneous evidentiary rulings are harmless if it is highly
probable that the error did not affect the outcome of the case.").
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