USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1676
NAN TOUCH,
Plaintiff, Appellee,
v.
MASTER UNIT DIE PRODUCTS, INC.,
Defendant, Appellant.
v.
TRUEBLOOD, INC., a/k/a MODDRN, INC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Stahl,
Circuit Judges.
______________
____________________
Mark A. McCormack, with whom Law Offices of Mark A. McCormack

_________________
________________________________
on brief for appellant.
Lenahan O'Connell, with whom O'Connell and O'Connell was on br
_________________
_______________________
for appellee.
____________________
January 5, 1995
____________________

CYR, Circuit Judge.

CYR, Circuit Judge
______________
tiff

Master Unit

adverse

judgment

Defendant and

Die Products,
dismissing

third-party plain-

Inc. ("MUD"),

its cross-claim

appeals from
for

against appellees P.H. Trueblood Corporation and

(collectively:
conclusions

"Trueblood").

of law entered by

reliable appellate review, see

___

As the

contribution

Trueblood, Inc.

findings

the district court

of

I
I

fact and

do not permit

Fed. R. Civ. P. 52(a),

its judgment and remand for further proceedings.

an

we vacate

BACKGROUND
BACKGROUND
__________
In 1966,

Trueblood designed, manufactured, and

plastic-molding press

designed so that end-users

its movable shuttle

table two "quick-change"

press

with the

was equipped

containing an
plastic

frames.

Once

and after the

the

frames (not

each frame was fitted with

injectable mold, the press

into one die-mold;

could affix to

required quick-change

manufactured by Trueblood) and

sold a

a die

would inject liquified

shuttle table shifted

the first frame off to one side, the press would inject liquified
plastic into the

die-mold on

the second frame.

From

recessed

holes in the shuttle table surface, the press triggered a "knock-

out" plate built into the sidelined frame which thrust up through
the filled

die-mold, thereby

ejecting and purging

plastic part from the work area.

the hardened

After the ejection was complet-

ed, the shuttle table shifted the frame containing the empty diemold

back

plastic,

into a

central position

for

the next

injection of

while the press shifted and "knocked out" the twin die-

mold in the same manner.

The console which housed the controls for the Trueblood

press was located within
had

three settings.

operate.
the

arm's length of the press

In

the "off"

mode, the

In "automatic" mode, the

entire

cycle of

operator and

press would

not

press automatically repeated

functions described

above, but

the press

operator was required to use both hands to push two widely-spaced

____
buttons on
could

the console,

that the

operator's hands

not be inserted into the injection or ejection areas while

the press was

in operation.

press operator

could

manually depressing
leaving

cled,"

perform

each

from "off"

plate then

the press operator to

into

the press

the

cycle

automatically "recyarea any

The "hand" mode was

manually

knockout

designed to allow

opening in

jammed knockout

triggering

by

Moreover, when first

the ejection

to dislodge a

the

for each function,

___ ____ ________

insert an implement through an

quick-change frame
while

function in

free hand.
____ ____

to "hand,"

in position.

part,

"hand" mode, however,

one console panel button

thereby thrusting

plastic

In the

the operator with one

switched

the

which meant

the

"eject"

plate or

button

located on the control console.

By early October 1989, an unaltered Trueblood press had

come

into

the

possession

Massachusetts, fitted with

manufactured by appellant
employee Nan

Touch

of

Styletek,

Inc.,

in

Lowell,

two quick-change frames designed

MUD.

was operating

On October
the

11, 1989,

Trueblood press

and

Styletek
in

the

"automatic" mode
became jammed

when one

in the

of

the MUD

"up" position.

frame's knockout
With

Touch reached through an opening (1.4" high x

plates

his left hand,

Nan

5.25" wide) in the

front of the jammed frame to dislodge a part stuck in a die-mold,

at the

same time using his

"automatic"

right hand to change

to "off" to "hand" mode.

knockout plate

the press from

At this point, the jammed

"recycled" and amputated portions

of two fingers

on Nan Touch's left hand.

In
action

June

against MUD

1992,

Nan Touch

in the

instituted

District of

this

diversity

Massachusetts, alleging

negligence, breach of warranty, see Mass. Gen. L. Ann. ch. 106,

___
2-314, and unfair

trade practices,

see Mass. Gen.

___

L. Ann.

ch.

93A, in the design, manufacture, and sale of frames incorporating

an

opening large enough

hand into

the ejection

to permit a press
area during

operator to insert a

operation.

MUD

impleaded

Trueblood as a third-party defendant, Mass Gen. L. Ann. ch. 231B,

1 (contribution

among joint

tortfeasors), alleging

that the

"one-handed" design of

the press and its

the knockout mechanism upon

uted to Nan

Touch's injury.

automatic recycling of

transition into "hand" mode contribPrior to trial, Nan

Touch settled

with MUD.
MUD's

third-party

Trueblood was tried

Trueblood

complaint for

to the court.

and entered

The

the following

contribution against

district court found for

findings of fact

and con-

clusions of law:
As to the defectiveness of the molding press,
MUD has failed to establish that two-hand
4

operation was the

industry standard for the

________ ________
manufacturing of mechanical power presses in
__
1966.
While Trueblood's molding press may
____
very well violate current day OSHA regula_______ ___
_______
tions, it would be unfair to impose modern
_____
______
standards on the practices of nearly thirty
years ago. Accordingly, the Court finds that
the molding press was not defective when
___ _________ ____
manufactured . . . .
____________

Nan Touch v. Master Unit Die Prods., Inc., No. 92-11493-EFH, slip

_________

____________________________

op. at 3 (D. Mass. June 8, 1994) (emphasis added).

II
II
DISCUSSION
DISCUSSION
__________
We

review interpretations

of state

law de
__

novo, see
____ ___

Salve Regina College v. Russell, 499 U.S. 225, 233-35 (1991), and
____________________
_______
findings of fact for clear

error, see Interstate Commerce Comm'n

___ __________________________

v. Holmes Transp., Inc., 983

_____________________
MUD maintains
setts
or

district court misapplied

relied on implicit findings

We do not

conclude that

("In

(1st Cir.

1993).

the Massachu-

law governing claims for breach of warranty based in tort,

dence.

to

that the

F.2d 1122, 1129

of fact unsupported

reach the merits of these contentions,

the district court ruling

enable effective appellate review.

all actions tried upon

court shall

by the evi-

find the

conclusions of law . . . .").

chusetts

product liability

markedly

from tort-based

factfinder confronted with

is insufficiently clear

See Fed. R. Civ. P. 52(a)

___

the facts without a jury

facts specially

and state
Under

for breach

separately its

Massa-

claims differ

of warranty.

a negligence-based product
5

. . . the

applicable

law, negligence-based
claims

for we

The

liability

claim

focuses on whether the conduct of the designer or manufac_______

________
________

turer
_____

reveals a

failure "to

use reasonable

care to

foreseeable dangers which subject a user to an

of injury."

Colter
______

(Mass. 1989).

unreasonable risk

v. Barber-Greene Co., 525 N.E.2d

_________________

1305, 1313

Consequently, evidence that the defendant designer

or manufacturer

met

the

prevailing at the time

__________ __ ___ ____
nondispositive, evidence
________
even though

eliminate

pertinent

industry

safety

of manufacture would be
__ ___________
that the

its product's design

standards

material, albeit
________

defendant was

not negligent,
___

might not comport

with safety

criteria later embraced by the industry.

By contrast,

a breach of warranty

claim arising under

Massachusetts tort law is founded on strict liability principles,

______
see Mass. Gen. L.
___
Torts
_____

Ann. ch. 106,

2-314; Restatement (Second) of

___________ ___________

402A cmt. c. (1965), and focuses exclusively "'on whether

the product
_______
the [actual]

[is] defective and unreasonably dangerous and not on

____________ _________
___ __
conduct of the user

or the seller.'"

Colter, 525

___ ________

_______ __ ___ ____

N.E.2d at 1313

964, 968-70 (Mass. 1978).

warranty inquiry

ableness of the

______

(citation omitted) (emphasis added); see

___

Wickes Corp., 378 N.E.2d

____________
breach of

__ ___ ______

is

not concerned

(explaining
even

designer/manufacturer's conduct, see

_______ ___

that defendant may be

if he "[took] all

safe"), compliance
the
___

Because the

with the

Firestone Tire & Rubber Co., 446 N.E.2d 1033, 1040

____________________________

reason-

Correia v.
_______

(Mass. 1983)

liable for breach of warranty

reasonable measures to

with "state of

Back v.
____

make his product

the art" safety

standards at
__

time the product was designed or manufactured is usually im____ ___ _______ ___ ________ __ ____________ __ _______ ___

material.
________

See, e.g., Hayes

___ ____ _____

v. Ariens Co.,
__________

462 N.E.2d 273, 277

(Mass. 1984).

Instead, the factfinder may rely on the failure of

the product to conform to

present-day safety standards in deter___________

mining whether it is "unreasonably dangerous," under a

breach of

warranty
design

analysis, even though the

or

post-manufacture

protect was

risk against which the post-

safety

standard

was

intended

to

unknown or not reasonably discoverable by the defen-

dant prior to the sale of the product.

liable for

breach of

See id. (defendant may be

___ ___

warranty "regardless of

the knowledge

of

risks that he actually had or reasonably should have had when the
sale took place").
Moreover,
safety

although

nonconformance with

standard would be relevant evidence,

the trier of

fact to find

a present-day
___________

it would not compel

______

the product "unreasonably

____________

dangerous"

per se, see, e.g., Pedraza v. Shell Oil Co., 942 F.2d 48, 52 (1st
___ __ ___ ____ _______
_____________
Cir.

1991)

(OSHA

regulations do

principles), cert. denied, 112

_____ ______
the

incorporation of a

dangerous condition

not

preempt

S. Ct. 993 (1992).

design feature currently

might be

state

tort law

Indeed, even

perceived as a

found "reasonable" in

the circum-

stances, based on the factfinder's application of the traditional

risk/utility balancing test to the particular product.
378

N.E.2d

at

970

(listing

the

factors

to

be

See Back,
___ ____
weighed

in

determining whether particular product is unreasonably dangerous,

_______
____________
including

"'the gravity of

the danger

posed by

the challenged

design, the likelihood that such danger would occur, the mechani-

cal feasibility of a safer alternative design, the financial cost

of

an

improved design,

and

the

adverse

consequences to

the

product and to the consumer that would result from an alternative

design'") (citation omitted).
Viewed against

the applicable principles

of Massachu-

setts law, the findings entered by the district court are plainly
deficient.
press may
___

The equivocal observation

very well violate
____ ____ _______

that "Trueblood's molding

current day OSHA

regulations" pro-

scribing one-handed presses, coupled with the court's negligencebased

assessment that "MUD has failed to establish that two-hand

operation

was the

mechanical

industry
________

power presses

in
__

standard for
________

the manufacturing

1966," strongly
____

suggest that

of

the

district court viewed any such OSHA violation as simply immaterial to Trueblood's liability.

On the contrary, a finding that the

Trueblood press contravened the 1992 OSHA standards, a matter all

but conceded by
ultimate factual

the parties,

clearly would be

determination whether the press

material to

the

was "unreason-

ably dangerous," and hence gave rise to a breach of warranty.

On

the other hand, such a finding would not compel the

______
conclusion that the Trueblood press was
per se.
___ __

Yet

the

"unfairness" of
manufactured

district court's

applying the

observation concerning

1992 OSHA

standards to

the

a product

in 1966, see supra p. 5, strongly suggests that the

___ _____

district court perceived a

"compelled"

"unreasonably dangerous"

conclusion.

need to forefend against just

But
___

see Cosme
___ _____

such a

v. Whitin Mach. Works,

____________________

Inc., 632 N.E.2d 832, 835 (Mass. 1994) (contrasting Connecticut's

____
ten-year statute of repose after sale,
setts

breach

of warranty

claims

and noting that Massachu-

are

not rendered

defeasible

simply

by the

passage

of time).

In addition,

the

district

court's free-form "unfairness" exception, especially in reference

to
with

a durable product
the

purpose and

principles upon
See Colter,
___ ______

like the Trueblood

policy

which breach

525 N.E.2d at

of the

press, is

strict

out of step

product liability

of warranty liability

1313 n.13 ("'[P]ublic

is founded.

policy demands

that the burden of accidental injuries caused by products intended for consumption

be placed upon those who market

them, and be

treated as a cost of production against which liability insurance

can

be obtained;

entitled
and the

and

that the

to the maximum of
proper persons

consumer

of such

protection at the

to afford it

products

is

hands of someone,

are those

who market

products.'" (quoting Restatement (Second) of Torts

_______ _____________________________

the

402A cmt. c.

(1965))).
Finally, we
court ruling as

can discern no indication

to how,

or whether,

balancing was

performed to

feature

the press

made

in the district

the required

determine if the

"unreasonably"
____________

risk/utility

one-handed control

dangerous.

The

court

neither cites to apposite Massachusetts case law, nor adverts

any

risk/utility

balancing

introduced

evidence that

additional

cost

test

component,

Trueblood had

feasible,

"safer"

though

available
design

MUD

at slight

alternatives.

Trueblood

countered with

essential

to permit a press operator to insert an implement into

__ ______ __ _________

the work

area to

"reasonably"

unjam

safe design

evidence that

even

to

a knockout
provided
9

one-handed control

plate, and

that

the manufacturers

it was

was

of quick-

change frames

did not

incorporate

accommodate

the operator's hand.

____

(if either)

evidentiary proffer

emphasize that

appellate

neither

the conclusions of

ruling,

nor

decision

the

an opening
We in no

law,

but simply

utterly impracticable

law which guided

fact

the applicable

are

As we

have stressed repeatedly

when

the district court

essential

under

to

sense suggest which

should be credited,

review is

findings of

large enough

to

a principled

discernible from

its

decision.

52(a) requirements
sions
to

ensure

function;

to

that its
enable a

ratio decidendi
_____ _________
reviewing

namely, to review the

essential

findings of

Thermo Electron Corp.

_____________________
1160

be stated specially,

the Rule

and conclu-

of law separately, impose on the trial court an obligation

clarity

the

that facts

in the past,

(1st Cir. 1992);

is

set forth

court reliably

with enough

to

perform its

conclusions of law

de novo and
__ ____

fact for

clear

error.

See, e.g.,
___ ____

v. Schiavone Constr. Co., 958 F.2d

______________________

1158,

Peckham v. Continental Casualty Ins. Co.,

_______
_____________________________

895

F.2d 830, 842 (1st Cir. 1990); Applewood Landscape & Nursery
_____________________________

Co.
___

v. Hollingsworth,
_____________

884

F.2d

1502,

1503 (1st

Cir.

1989);

Pearson v.
_______

Fair, 808 F.2d 163, 165-66 & n.2 (1st Cir. 1986) (per
____

curiam) (explaining
ry")

(citing

(1960));

that Rule 52(a) is

Commissioner
____________

v.

"mandatory, not precato-

Duberstein, 363
__________

Boston and Maine Corp.

______________________

U.S.

278,

292

v. First Nat'l Bank of Boston,

___________________________

618 F.2d 137, 143 (1st Cir. 1980); see also 9 Charles A. Wright &
___ ____
Arthur R. Miller, Federal Practice and Procedure
_______________________________

2571,

at 679

(1971) (collecting cases).

10

The
Each

parties urge

proposes

plausible

us

to salvage

interpretations of

conclusions of law favorable to itself.

notable
findings

success
of fact

in

divining

and predicate

further, that although all

the

the present
the

appeal.

evidence

and

But neither has met with

district

court's

conclusions of

law.

essential

We note,

responsibility under Rule 52(a) rests

with

the trial judge, and the burden

is not an onerous one, see

___

Fed.

R. Civ. P. 52(a) advisory committee's note (1946 amendment)

(requiring "brief, definite, pertinent

sity for

findings" with "no neces-

over-elaboration"), counsel might have

necessary expense

and delay

occasioned in

avoided the un-

this case

simply by

submitting a timely request for reconsideration based on the need

for
by

adequate findings of fact and conclusions of law as required

Rule 52(a).

As neither

party sought

reconsideration under

Rule 52(a), each shall bear its own costs on appeal.

The district court judgment is vacated.

The case is
_______________________________________________________

remanded for further proceedings consistent with this opinion.

_________________________________________________________________
Each party shall bear its own costs.
___________________________________

11