Blumhorst v. Pierce Manufacturing Inc. et al

Filing 266

MEMORANDUM DECISION AND ORDER Blumhorst's Motion for Judgment as a Matter of Law and for a New Trial (Docket No. 255 ) is GRANTED, in part, and DENIED, in part. Blumhorst's request for judgment as a matter of law is denied while Blumhorst& #039;s request for a new trial is granted. Pierce's Request for Judicial Notice in Support of Pierce Manufacturing Inc.'s Response to Plaintiffs Motion for Judgment as a Matter of Law and for a New Trial Filed on 3/27/13 (Docket No. 259 ) is DENIED as moot. A separate Notice/Order will be forthcoming, speaking to the procedural logistics of this action's progression forward. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 4:10-cv-00573-REB

ERVIN E. BLUMHORST,
Plaintiff,

MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S MOTION
FOR JUDGMENT AS A MATTER OF
LAW AND FOR A NEW TRIAL

v.
PIERCE MANUFACTURING, INC., a Wisconsin
corporation, AKRON BRASS COMPANY, a
Delaware corporation, and john Does I through X,

(Docket No. 255)

Defendants.
__________________________________________
PIERCE MANUFACTURING, INC., a Wisconsin
corporation,
Third-Party Plaintiff,
v.
WATEROUS COMPANY, a Minnesota
corporation
Third-Party Defendant.

Currently pending before the Court is Plaintiff’s Motion for Judgment as a Matter of Law
and for a New Trial (Docket No. 255). Having carefully considered the record, heard oral
argument, and otherwise being fully advised, the Court enters the following Memorandum
Decision and Order:
I. BACKGROUND
On September 30, 2008, Plaintiff Ervin E. Blumhorst (“Blumhorst”), a firefighter, was
injured by a “wye” valve that apparently broke away from a fire truck. The fire truck was

MEMORANDUM DECISION AND ORDER - 1

designed and manufactured by Defendant Pierce Manufacturing, Inc. (“Pierce”), while the wye
valve itself was manufactured by Defendant Akron Brass (“Akron”). Blumhorst alleged that
“the dangerous and defective condition and design of the [f]ire [t]ruck and/or the [w]ye [v]alve”
caused him to “suffer[ ] severe and permanent personal injuries, including . . . sever[e] trauma
and pain, an injury to his head, and a left knee multi-ligament injury.” Pl.’s Compl. ¶ 7 (Docket
No. 1, Att. 3). Specifically, Blumhorst claimed that (1) the fire truck and wye valve were
defective, (2) Pierce and Akron failed to adequately warn of the dangerous properties and design
of the fire truck and wye valve, and (3) Pierce and Akron failed to equip the fire truck with
safety devices or take reasonable safety precautions to prevent foreseeable injuries. See id. at ¶¶
9(a)-9(d). In turn, Plaintiff originally asserted negligence, breach of warranty, and strict
products liability causes of action against both Pierce and Akron. See id. at ¶¶ 8-14.1, 2
Eventually, Blumhorst’s claims evolved into two separate and distinct legal theories of
recovery against Pierce (strict products liability and negligence), with Blumhorst alleging that

1

Pierce then filed a Third-Party Complaint against Waterous Company (“Waterous”) for
implied indemnity, contribution, and declaratory relief. See Pierce’s Third Party Compl., ¶¶ 1-17
(Docket No. 46). Waterous manufactured the pump assembly (including discharge relief valve)
and control panel installed on the fire truck. See id. at ¶ 2.
2

Before trial, Akron was dismissed from the action by stipulation. See Stip. of
Dismissal (Docket No. 120); Order of Dismissal (Docket No. 121). Additionally, the
undersigned bifurcated Pierce’s claims against Waterous, while still permitting Pierce to argue
that “the discharge relief valve and control panel . . . , including all associated instructions and
warnings created by Waterous, were not negligently manufactured by Waterous, or otherwise not
unreasonably dangerous or defective because of negligent manufacture.” See Order, pp. 6-7
(Docket No. 188) (“[T]he Court is not persuaded that there is an actual case or controversy at
issue between Pierce and Waterous, and the Court is concerned that to allow Waterous to
participate at trial in defending against Plaintiffs’ claims directed solely against Pierce will
unduly and unfairly shift the adversarial balance. Accordingly, the trial will be bifurcated, such
that Pierce’s indemnity and contribution claims against Waterous will be heard and resolved in a
separate proceeding from Plaintiff’s claims against Pierce.”).
MEMORANDUM DECISION AND ORDER - 2

his injuries were caused by defects in Pierce’s fire truck (loosely defined to include the fire
truck’s pump and other component parts) and/or because Pierce failed to adequately warn of a
hazard involved in the foreseeable use of the pump.
Following a seven-day trial, the jury returned a special verdict on February 27, 2013,
finding, in relevant part, that (1) Pierce was not strictly liable; (2) Pierce did not negligently
design the fire truck; (3) Pierce negligently failed to give adequate warnings related to the fire
truck, but (4) nonetheless proved its “Government Contractor” defense regarding Blumhorst’s
failure to warn claim; and (5) Akron Brass was also negligent. See Special Verdict Form, pp. 13 (Docket No. 247). A Judgment on Jury Verdict followed, ordering “that [Blumhorst] take
nothing and judgment [be] hereby entered for [Pierce] together with costs as allowed by law.” J.
on Jury Verdict (Docket No. 248).
Through the at-issue Motion, Blumhorst argues that the jury’s verdict is “irreconcilably
inconsistent” and that he is entitled to a judgment as a matter of law because (1) “Pierce[’s] fire
truck was defective as a matter of law because of inadequate warnings of the hazards associated
with its operation”; (2) “Pierce was negligent as a matter of law for failing to provide adequate
warnings”; (3) “the Government Contractor defense does not immunize Pierce from liability on
either the strict liability claim or on the negligence claim”; and (4) “Pierce did not carry its
burden to establish that Akron . . . negligently manufactured the wye valve and that such
negligence caused [his] injuries and damages.” Mem. in Supp. of Mot. for J. and/or New Trial,
p. 15 (Docket No. 255, Att. 1). Alternatively, Blumhorst seeks a new trial for related reasons.
See id. (“A new trial should be granted because the special verdict . . . was against the clear
weight of the evidence. The special verdict . . . is irreconcilably inconsistent under any possible

MEMORANDUM DECISION AND ORDER - 3

application of the evidence and instructions. Based upon the clear weight of the evidence, the
Government Contractor defense does not provide Pierce immunity from its failure to warn of
known dangers or if its continuing duty to warn of dangers associated with the use of the Pierce
fire truck. The clear weight of the evidence establishes that Pierce did not carry its burden of
showing that the Akron Brass wye valve was negligently manufactured.”).
II. DISCUSSION
A.

Legal Standards
1.

Rule 50(b): Motion for Judgment as a Matter of Law

Renewed motions for judgment as a matter of law are made pursuant to Rule 50(b),
which states:
If the court does not grant a motion for judgment as a matter of law
made under Rule 50(a), the court is considered to have submitted the
action to the jury subject to the court’s later deciding the legal
questions raised by the motion. No later than 28 days after the entry
of judgment – or if the motion addresses a jury issue not decided by
a verdict, no later than 28 days after the jury was discharged – the
movant may file a renewed motion for judgment as a matter of law
and may include an alternative or joint request for a new trial under
Rule 59. In ruling on the renewed motion, the court may:
(1)

allow judgment on the verdict, if the jury returned a
verdict;

(2)

order a new trial; or

(3)

direct entry of judgment as a matter of law.

Fed. R. Civ. P. 50(b)(1)-(3).
In reviewing a renewed motion for judgment as a matter of law under FRCP 50(b), courts
“may not make credibility determinations or weigh the evidence,” but “‘must view the evidence
in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in that
party’s favor.’” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (internal
MEMORANDUM DECISION AND ORDER - 4

quotations and citations omitted). “The test applied is whether the evidence permits only one
reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Id. (internal
quotations and citation omitted). The court must review the jury’s verdict for substantial
evidence and uphold it if “evidence adequate to support the jury’s conclusion [exists], even if it
is also possible to draw a contrary conclusion.” Id. at 961, 963 (internal quotations and citation
omitted).
A Rule 50(b) motion for judgment as a matter of law is not a freestanding motion; rather,
it is a renewed Rule 50(a) motion. See id. at 961. “[U]nder Rule 50, a party must make a Rule
50(a) motion for judgment as a matter of law before a case is submitted to a jury” and, “[i]f the
judge denies or defers ruling on the motion, and the jury then returns a verdict against the
moving party, the party may renew its motion under Rule 50(b).” Id. “Because it is a renewed
motion, a proper post-verdict Rule 50(b) motion is limited to the grounds asserted in the predeliberation Rule 50(a) motion.” Id. “Thus, a party cannot properly raise arguments in its posttrial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its preverdict Rule 50(a) motion.” Id; see also Tortu v. Las Vegas Metro. Police Dept., 556 F.3d 1075,
1083 (9th Cir. 2009) (“This failure to file a Rule 50(a) motion precludes consideration of a Rule
50(b) motion for judgment as a matter of law. We hold that the district court should not have
considered [the] Rule 50(b) motion because it was procedurally foreclosed by [the] failure to file
a Rule 50(a) motion.”); Fed. R. Civ. P. 50(b) Adv. Comm. Notes 1991 (“A post[-]trial motion for
judgment can be granted only on grounds advanced in the pre-verdict motion.”); Fed. R. Civ. P.
50(b) Adv. Comm. Notes 2006 (“Because the Rule 50(b) motion is only a renewal of the pre[-]
verdict motion, it can be granted only on grounds advanced in the pre[-]verdict motion.”).

MEMORANDUM DECISION AND ORDER - 5

“However, Rule 50(b) may be satisfied by an ambiguous or inartfully made motion under Rule
50(a);” otherwise, “the rule is a harsh one.” Go Daddy, 581 F.3d at 961 (internal quotations and
citation omitted).
2.

Rule 59: Motion for New Trial

Even where the court findings that a renewed motion for judgment as a matter of law is
not appropriate, it may order a new trial under Rule 59, which states:
The court may, on motion, grant a new trial on all or some of the
issues – and to any party – as follows:
(A)

after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in
federal court; or

(B)

after a nonjury trial, for any reason for which a
rehearing has heretofore been granted in a suit in
equity in federal court.

Fed. R. Civ. P. 59(a)(1)(A) & (B). “Rule 59 does not specify the grounds on which a motion for
a new trial may be granted.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)
(internal quotations and citation omitted). “Rather, the court is bound by those grounds that have
been historically recognized.” Id. “Historically recognized grounds include, but are not limited
to, claims that the verdict is against the weight of the evidence, that the damages are excessive,
or that, for other reasons, the trial was not fair to the party moving.” Id. (internal quotations and
citation omitted).
The Ninth Circuit has held that a new trial may be granted “only if the verdict is contrary
to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a
miscarriage of justice.” Id. (internal quotations and citation omitted). In contrast to a motion for
judgment as a matter of law under Rule 50, in determining whether a verdict is contrary to the
MEMORANDUM DECISION AND ORDER - 6

clear weight of the evidence under Rule 59, the court “has the duty . . . to weigh the evidence as
[the court] saw it, and to set aside the verdict of the jury, even though supported by substantial
evidence, where, in [the court’s] conscientious opinion, the verdict is contrary to the clear weight
of the evidence.” Id. (internal quotations and citations omitted); see also Landes Const. Co., Inc.
v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987) (“If, having given full respect
to the jury’s findings, the judge on the entire evidence is left with the definite and firm
conviction that a mistake has been committed, it is to be expected that he will grant a new trial. .
. . . Doubts about the correctness of the verdict are not sufficient grounds for a new trial: the trial
court must have a firm conviction that the jury has made a mistake.”) (internal quotations and
citation omitted); U.S. v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (“. . . a district court may not
grant a new trial merely because it would have arrived at a different verdict.”).
The determination of “the clear weight of the evidence” is a fact-specific endeavor, and
there must only be some “reasonable basis” for the jury’s verdict. Id. (citations omitted).
“Although the court’s ruling on an alternative motion for a new trial involves the exercise of
some discretion, a stringent standard applies when the motion is based on insufficiency of the
evidence.” E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997). To wit, “the absolute
absence of evidence to support the jury’s verdict makes [refusal to grant a new trial] an error in
law.” Molski, 481 F.3d at 729-30 (internal quotations and citations omitted).
B.

Analysis
1.

Blumhorst is Not Entitled to a Judgment as a Matter of Law Under Rule 50(b)

Presented orally at the close of Pierce’s case-in-chief on February 26, 2013, Blumhorst
made a Rule 50(a) motion, arguing:

MEMORANDUM DECISION AND ORDER - 7

Okay. Yes, Your Honor. At the close of the evidence, Plaintiff
moved for a directed verdict that the City has sovereign immunity for
strict liability claims under Vogel Paint, the Ninth Circuit; that the
City has discretionary immunity for the failure to enact any NFPA or
the timing of enacting an SOG consistent with the NFPA.
The Plaintiff moves to strike the mitigate defense as there is no
evidence in the record that Blumhorst failed to mitigate his injuries
after September 30, 2008. There is a move for summary judgment –
for a directed verdict that there is no evidence in the record that
Akron Brass negligently manufactured the wye valve or its useful
safe life has not ended and certainly not clear and convincing
evidence of that and move for directed verdict that Pierce is
responsible for any negligent design of – by Waterous to the Plaintiff.
Thank you, Your Honor.
2/26/13 Tr., p. 4 (Docket No. 256); see also 2/26/13 Minute Entry (Docket No. 240). In turn,
following Pierce’s counsel’s response to these arguments, the undersigned issued the following
ruling from the bench:
All right. The Court has before it Plaintiff’s oral motion under Rule
50([a]) seeking a directed verdict on four discrete issues based upon
the evidence that’s come in at trial.
The issue of the immunity for the City, in this context as argued by
counsel and the Court’s further understanding from the nature of the
jury instruction discussions that the Court had off the record prior to
having this argument is that Plaintiff would seek to preclude
argument that the city has comparative fault in this case based upon
a theory that ties the question to whether or not the City would have
liability if sued directly for its conduct.
Under the Court’s understanding of the law that would apply to that,
that goes too far. That the City’s conduct can be compared for
purposes of determining Pierce’s fault in this case and similarly
comparing it with Plaintiff’s fault and other third parties but it’s not
well taken. If I find something that makes me think otherwise
tonight, I’ll let you know but right now, denied.
The motion to strike the mitigation defense is conceded. The Court
will grant the Rule 50([a]) motion on that issue.

MEMORANDUM DECISION AND ORDER - 8

The Akron Brass, the Court is satisfied that there is evidence in the
record that would support an argument that Akron Brass bears
comparative fault and it’s certainly evidence that can be argued very
strongly on either side of that issue. The jury will have that as well
as the issue about responsibility for negligent design. That’s a
contested issue that the evidence is in – there’s conflicting evidence
in the record. It’s not – the record’s not such that the jury could only
find one reasonable answer to that question. So the Court will deny
it. Deny those latter two issues as well.
All right counsel. We’ll get to work. Thank you and we’ll see you
in the morning.
2/26/13 Tr., pp. 6-7 (Docket No. 256); see also 2/26/13 Minute Entry (Docket No. 240).
Therefore, Blumhorst’s Rule 50(a) Motion spoke only to the following issues: (1) the fire
department’s alleged sovereign immunity; (2) Pierce’s failure to mitigate defense; (3) Akron’s
alleged negligence; and (4) Pierce’s alleged responsibility for any negligent design by Waterous.
Pierce now argues that Blumhorst’s ensuing Rule 50(b) Motion is improper (except as to the
issue involving Akron) because it raises new grounds. See Opp. to Mot. For J. and/or New Trial,
p. 1 (Docket No. 258) (“Plaintiff’s Motion for Judgment as a Matter of Law under Rule 50(b)
renews his arguments solely as his contentions regarding Akron [ ]. This is the only ground
which should be considered by this Court. His other arguments should be denied for this reason
alone.”) (emphasis in original).
In an effort to overcome the procedural obstacle now represented by the need for his
current Rule 50(b) Motion to parallel his earlier rule 50(a) Motion, Blumhorst counters that his
oral Rule 50(a) Motion – though perhaps “ambiguous or inartfully made” – is enough.
Specifically, Blumhorst contends that, “[t]o have found Pierce as the manufacturer of the fire
truck liable for the negligence of Waterous as the manufacturer of a component part of that
Pierce fire truck as argued by Blumhorst pre-verdict, would have required this Court to reject
MEMORANDUM DECISION AND ORDER - 9

Pierce’s government contract defense.” Reply in Supp. of Mot. for J. and/or New Trial, p. 3
(Docket No. 260) (citing Go Daddy, 581 F.3d at 961). Moreover, Blumhorst submits that his
pre-verdict objections to Pierce’s proposed jury instruction concerning the government
contractor defense constitutes a sufficient approximation of a Rule 50(a) motion to satisfy the
requirements of Rule 50(b). See id. at pp. 3-4. The Court disagrees.
First, Blumhorst’s oral Rule 50(a) Motion asked the Court to find Pierce responsible for
any negligent design by Waterous – in essence, Waterous’ negligent design, if any, constitutes
Pierce’s negligent design. While it might be possible to tweak and massage such an argument to
somehow implicate the government contractor defense’s application to Blumhorst’s claims
against Pierce (so as to now connect it to Blumhorst’s Rule 50(b) Motion), that is not necessarily
the case – at least not for the same reasons now argued within Blumhorst’s Rule 50(b) Motion.
In other words, Blumhorst asks this Court, after-the-fact, to read way too much into what has
thus far been a single sentence’s worth of argument relayed during his oral Rule 50(a) Motion.
Put simply, Blumhorst’s otherwise capable attempt at fitting the proverbial square peg in a round
hole just asks this Court to go too far. Whatever safety net might exist via Go Daddy’s reference
to an “ambiguous” or “inartfully made” Rule 50(a) motion generally, does not apply to revive
Blumhorst’s actual Rule 50(a) Motion here.
Second, even though Blumhorst claims that he “strenuously and repeatedly objected” to
Pierce’s proposed jury instructions on the government contractor defense, he points to no
instances in the record where that is actually the case. Still, as Blumhorst suggests, the Court
does recall the fact that objections were made. However, the fact that objections were made,
without more, is not enough. Instead, to operate in the place of a Rule 50(a) Motion,

MEMORANDUM DECISION AND ORDER - 10

Blumhorst’s objections to Pierce’s jury instructions must speak to the particular bases for relief
that finally wound up in his Rule 50(b) Motion. See, e.g., Fed. R. Civ. P. 50(b) Adv. Comm.
Notes 2006 (discussing purpose of Rule 50(a) motion: “The earlier motion informs the opposing
party of the challenge to the sufficiency of the evidence and affords a clear opportunity to
provide additional evidence that may be available. The earlier motion also alerts the court to the
opportunity to simplify the trial by resolving some issues, or even all issues, without submissions
to the jury.”). This did not happen here. For instance, Blumhorst’s written objection to Pierce’s
proposed instruction on the its government contractor defense simply states: “Blumhorst objects
to Pierce’s Instruction No. 17 as it is not an accurate statement of Idaho law and there are no
factual issues regarding this defense to be decided by the jury.” Blumhorst Not. of Obj.’s and
Non-Obj.’s to Def.’s J.I., p. 5 (Docket No. 239).3 Although certainly an objection, it falls short
of raising (or even implying) the arguments presented in Blumhorst’s Rule 50(b) Motion.
Blumhorst’s subsequently-stated objection on the record4 is lacking as well, as it seemed to
more-or-less accept a government contractor defense jury instruction, but took issue with such an
instruction’s breadth – namely flushing out the entity that prepared the plans and specifications

3

Blumhorst did not submit his own proposed jury instruction on the government
contractor defense. See Pl.’s Proposed J.I. (Docket No. 225, Att. 1). There is no surprise in that,
given his position that such a defense should not have been available to Pierce as a matter of law.
4

From 1:45 p.m. to 3:30 p.m. on February 26, 2013, the Court held an “Informal Jury
Instruction Conference” with counsel. See 2/26/13 Minute Entry (Docket No. 240). This
Conference was not on the record. The next morning, at 8:30 a.m., the Court held a “Jury
Instruction Conference” with counsel before closing arguments. See 2/27/13 Minute Entry
(Docket No. 241). This Conference was on the record and, at that time, Blumhorst’s counsel
offered the objection considered in this Memorandum Decision and Order. Later that day, the
parties had an opportunity to make a full record of their objections on the record following
closing arguments, after the case was submitted to the jury. See 2/27/13 Minute Entry (Docket
No. 241). During that later session, Blumhorst’s counsel did not seem to make a formal
objection to the government contractor defense, but again argued that Pierce be responsible for
the design of the fire truck’s pump assembly and/or Waterous’ negligent design – the same
argument raised in its oral Rule 50(a) Motion. See supra.
MEMORANDUM DECISION AND ORDER - 11

for the fire truck such that, absent that role, there can be no liability.5 In the Court’s mind, these
objections do not set the stage (as a replacement for, or to supplement, Blumhorst’s Rule 50(a)
Motion) for Blumhorst’s Rule 50(b) Motion – particularly when Blumhorst offers no evidence in
the record to support his argument beyond pointing out the fact that he objected to Pierce’s
government contractor defense. Again, this is not enough; more is needed.
Third, and perhaps most importantly, when considering the evidence in the light most
favorable to Pierce – as this Court is obligated to do under Rule 50(b) (see supra) – Blumhorst’s
Rule 50(b) Motion cannot prevail. Leading up to this point, questions of fact existed to preclude
Pierce’s Motion for Summary Judgment (Docket No. 63), Pierce’s Motion for Directed Verdict
(Docket No. 234), and Blumhorst’s Motion for Directed Verdict (Docket No. 240). Ultimately,
the evidence offered up to and during trial was not so conclusive (one way or the other) as to
warrant taking the case away from the jury. However, in this setting, those factual issues and
their surrounding evidence must now be construed in Pierce’s favor under Rule 50(b) – even
when setting aside any shortcomings in Blumhorst’s original Rule 50(a) Motion as already
discussed. After viewing Blumhorst’s arguments through such a post-trial pro-Pierce lens,
Blumhorst is not entitled to a judgment as a matter of law under Rule 50(b).6

5

The undersigned understood that the point of such an objection was to argue that the
plans and specifications were not prepared by the Bonneville Fire District. However this was a
matter to be resolved by the jury, given the underlying factual subtleties, evidence, and
arguments relating thereto that existed throughout the trial. See also infra.
6

This includes Blumhorst’s argument vis à vis Akron (which was adequately raised in
Blumhorst’s Rule 50(a) Motion). First, in ruling on Blumhorst’s oral Rule 50(a) Motion, the
undersigned was satisfied that certain evidence could be construed by the jury to support an
argument that Akron was responsible for Blumhorst’s injuries. See supra. But, the undersigned
is now obligated to construe that evidence in Pierce’s favor, cutting against Blumhorst’s cause.
Second, practically speaking, Akron’s liability is not relevant to the jury’s verdict, given the
jury’s consideration and resolution of other issues; to be sure, the jury should not have even –
but mistakenly – addressed Akron’s comparative fault. See infra.
MEMORANDUM DECISION AND ORDER - 12

2.

Blumhorst is Entitled to a New Trial Under Rule 59

Preliminarily, having combined his Motion for Judgment as a Matter of Law with his
Motion for a New Trial, the scope of the latter requires more effort to discern. That is, even
while Blumhorst’s underlying Motion lists seven discrete bases for both his Motion for
Judgment as a Matter of Law and Motion for a New Trial, his supporting Memorandum seems to
make unique arguments for each such motion. Compare Mot. for J. and/or New Trial, p. 15
(Docket No. 255), with Mem. in Supp. of Mot. for J. and/or New Trial, p. 15 (Docket No. 255,
Att. 1).
For example, Blumhorst’s Memorandum contains a heading labeled “Argument” where
Blumhorst raises issues regarding (1) the jury’s alleged inconsistent findings relating to strict
liability and negligence, (2) whether Pierce followed plans and specifications to support the
government contractor defense, (3) whether a third-party prepared the plans and specifications to
support the government contractor defense, and (4) the jury’s alleged inconsistent findings
relating to negligence and the government contractor defense. See Mem. in Supp. of Mot. for J.
and/or New Trial, pp. 3-8 (Docket No. 255, Att. 1). Read together, these arguments appear to be
presented as justification for Blumhorst’s requested judgment as a matter of law.
Later, after intervening argument sections labeled “Government Contractor Defense”7
and “Akron Brass,”8 Blumhorst’s Memorandum contains a separate heading labeled “Motion for

7

Within this heading, Blumhorst argues that he is “renew[ing] his judgment as a matter
of law” that the government contractor defense does not apply because the fire department did
not participate in the design of the pump assembly and that Pierce separately engaged in tortious
conduct. See Mem. in Supp. of Mot. for J. and/or New Trial, pp. 8-12 (Docket No. 255, Att. 1).
8

Within this heading, Blumhorst argues that he “is entitled to judgment in his favor as a
matter of law” because Pierce presented no evidence that Akron was negligent or that Akron’s
MEMORANDUM DECISION AND ORDER - 13

New Trial” See id. at pp. 8-12. Therein, Blumhorst primarily argues that the jury’s negligence
determination was “irreconcilably inconsistent” with its simultaneous finding that the
government contractor defense applied. See id. at p. 14. Then, but almost in passing, Blumhorst
immediately goes on to state in conclusory fashion that the “clear weight of the evidence”
establishes that (1) “the jury verdict was irreconcilably inconsistent relating to its determination
that the fire truck was not defective because of the failure to adequately warn Blumhorst of a
hazard involved in the foreseeable use of the product”; (2) “the jury verdict was irreconcilably
inconsistent relating to the determination that the government contractor defense immunized
Pierce from any liability for Blumhorst’s injuries and damages”; and (3) “Pierce did not carry its
burden to establish Akron . . . negligently manufactured the wye valve and that the negligence
caused Blumhorst’s injuries and damages.” Mem. in Supp. of Mot. for J. and/or New Trial, pp.
14-15 (Docket No. 255, Att. 1).9 Read together, these arguments appear to be presented as
justification for Blumhorst’s requested new trial.
At the end, Blumhorst’s Memorandum concludes with the following delineation of
arguments relative to his Motion for Judgment as a Matter of Law and Motion for a New Trial:
Blumhorst is entitled to a judgment as a matter of law because the
verdict is irreconcilably inconsistent. This Court should determine
that the Pierce fire truck was defective as a matter of law because of
valve was defective. See Mem. in Supp. of Mot. for J. and/or New Trial, p. 12 (Docket No. 255,
Att. 1).
9

Blumhorst also states in the very next sentence: “In addition erroneous evidentiary
rulings allowing questioning about the allegations in Pierce’s Complaint related to the Akron
Brass wye valve but not allowing questioning about allegations in Pierce’s Third Party
Complaint against Waterous substantially prejudiced Blumhorst.” Mem. in Supp. of Mot. for J.
and/or New Trial, p. 15 (Docket No. 255, Att. 1); see also id. at p. 12 (verbatim argument
presented under “Akron Brass” heading, before “Motion for New Trial” heading (see supra)).
Blumhorst offers no substantive argument on this point, beyond simply concluding that he was
prejudiced.
MEMORANDUM DECISION AND ORDER - 14

inadequate warnings of the hazards associated with its operation.
Pierce was negligent as a matter of law for failing to provide
adequate warning. Blumhorst is also entitled to a judgment as a
matter of law because the Government Contractor defense does not
immunize Pierce from liability on either the strict liability claim or
on the negligence claim. Blumhorst is also entitled to a judgment as
a matter of law in that Pierce did not carry its burden to establish that
Akron Brass negligently manufactured the wye valve and that such
negligence caused Blumhorst’s injuries and damages.
A new trial should be granted because the special verdict against
Blumhorst was against the clear weight of the evidence. The special
verdict against Blumhorst is irreconcilably inconsistent under any
possible application of the evidence and instructions. Based upon the
clear weight of the evidence, the Government Contractor defense
does not provide Pierce immunity from its failure to warn of known
dangers or of its continuing duty to warn of dangers associated with
the use of the Pierce fire truck. The clear weight of the evidence
establishes that Pierce did not carry its burden of showing that the
Akron Brass wye valve was negligently manufactured.
Id. at pp. 15-16.
Thereafter, responding to Pierce’s opposition to his Motion for Judgment as a Matter of
Law and Motion for a New Trial, Blumhorst’s Reply in support of these motions contains the
same diffuse approach to his overall arguments for relief. On the one hand, Blumhorst hints at
moving away from any claim that a new trial is warranted by virtue of the jury’s alleged
inconsistent verdicts. See, e.g., Reply in Supp. of Mot. for J. and/or New Trial, p. 4 (Docket No.
260) (“‘Unlike inconsistent verdict findings, no objection is required when the grounds for a new
trial are that the verdict is against the weight of the evidence or that the finding represents a
miscarriage of justice.’”) (quoting Mitri v. Walgreen Co., Inc., 2011 WL 5118452, *12 (E.D.
Cal. 2011)).10 On the other hand, Blumhorst repeats his arguments that (1) the jury’s negligence

10

In fairness, Blumhorst may have simply been responding to Pierce’s position that his
Rule 59 arguments were waived by not objecting to the verdict before the jury’s discharge – in
MEMORANDUM DECISION AND ORDER - 15

finding cannot be squared with it finding that the general contractor defense immunized Pierce,
and (2) the jury’s negligence finding cannot be squared with its finding of no strict liability – i.e.,
both findings are inconsistent. See id. at pp. 6-10.
The point of all this is not to critique Blumhorst’s arguments before they begin or to
pigeonhole them in any way; it is to demonstrate the difficulty in fully grasping their nature,
extent, or nuances – for instance, which arguments apply to his Motion for Judgment as a Matter
of Law and which ones apply to his Motion for a New Trial (or both)? This lawsuit’s many
moving parts, challenging legal concepts, and multi-part special verdict unquestionably
contribute to the challenge. But, in any event, the Court does discern from a careful review of
Blumhorst’s briefing in support of his Motion for a New Trial that the overall thrust of his
arguments on this discrete point are: (1) the jury should have found Pierce strictly liable (but did
not) when considering the jury’s determination that Pierce was liable for negligence (failure to
warn); (2) the jury should not have found the government contractor defense to apply (but did)
when considering the jury’s determination that Pierce was liable for negligence (failure to warn);
and (3) the jury should not have found Akron negligent (but did) based upon the clear weight of
the evidence. That Blumhorst makes additional arguments challenging the defense verdict in
also moving for a judgment as a matter of law is beside the point. Such arguments have already
been addressed and set aside under Rule 50(b) (see supra), and are extraneous to the abovereferenced arguments supporting Blumhorst’s alternate request for a new trial under Rule 59,
considered below.

essence, arguing that, even if that was the case (which Blumhorst denies (see infra)), his efforts
at securing a new trial are additionally/alternately premised upon arguments that the jury’s
verdict represents a miscarriage of justice.
MEMORANDUM DECISION AND ORDER - 16

a.

Strict Liability and Negligence (Failure to Warn)

Looking, in part, to the jury instructions on (1) the definition of “product” (Instruction
No. 26), (2) the definition of “defective” (Instruction No. 29), (3) strict liability (Instruction No.
30), and (4) negligence (failure to warn) (Instruction Nos. 32 & 33), Blumhorst argues that the
jury’s decision that Pierce was negligent in failing to give adequate warnings related to the
product/fire truck conflicts with the same jury’s finding that the product was not in a defective
condition when it left Pierce’s control. In other words, Blumhorst contends that the jury’s
findings as to strict liability and negligence (failure to warn) are inconsistent. See Mem. in Supp.
of Mot. for J. and/or New Trial, p. 4 (Docket No. 255, Att. 1) (“[B]ecause the jury did find that
Pierce was negligent in failing to give adequate warnings, which negligence was a proximate
cause of the injuries to Blumhorst [ ], the product must have been in a defective condition when
it left the control of Pierce and that defective condition must have been a proximate cause of
injuries to Blumhorst.”); see also id. at p. 14; Reply in supp. of Mot. for J. and/or new Trial, pp.
9-10 (Docket No. 260).11 According to Blumhorst, because a product may be defective due to a
failure to adequately warn, and because the jury found that Pierce was negligent in failing to

11

Pierce’s argument that Blumhorst waived any claims that the verdict was inconsistent
by failing to raise them while the jury was still seated is not persuasive. See Opp. to Mot. For J.
and/or New Trial, pp. 3-5 (Docket No. 258). Such arguments have more traction when dealing
with general verdicts. See Pierce v. Southern Pacific Trans. Co., 823 F.2d 1366, 1370 (9th cir.
1987) (a party may object to inconsistent special verdicts under Rule 49(a) even where no
objection is raised prior to discharging jury). Here, because the jury’s verdict left the Court to
determine the ultimate legal result (considering the jury’s findings as to Blumhorst’s claims and
Pierce’s defenses), the jury rendered a special verdict – in point of fact, the jury was tasked with
filling out a “Special Verdict Form,” developed with the assistance of both parties. See Special
Verdict Form (Docket No. 247); see also (Docket Nos. 226 & 227) (both parties submitting
proposed “special verdict” forms in similar styles to the Special Verdict Form used by Court at
conclusion of trial).
MEMORANDUM DECISION AND ORDER - 17

adequately warn users of the fire truck, the fire truck must have been defective when it left
Pierce’s control under a strict products liability analysis.
While Blumhorst’s position is a reasonable argument to make, the Court has a duty to
reconcile any arguable incongruity in a jury verdict if there is a reasonable way to do so. See
Floyd v. Laws, 929 F.2d 1390, 1396 (9th Cir. 1991) (“When confronted with seemingly
inconsistent answers to the interrogatories of a special verdict, a court has a duty under the
Seventh Amendment to harmonize those answers, if such is possible under a fair reading of
them.”). This duty involves a “search for a reasonable way to read the verdicts as expressing a
coherent view of the case, and . . . [t]he consistency of the jury verdicts must be considered in
light of the judge’s instructions to the jury.” El-Hakem v. BJY Inc., 415 F.3d 1068, 1074 (9th Cir.
2005). Thus, the question becomes whether, under Idaho law, it can be consistent for a jury to
find Pierce negligent in failing to warn, while at the same time finding the fire truck not
defective and Pierce not strictly liable.
The Ninth Circuit considered this issue in Toner v. Lederle Laboratories, 828 F.2d 510
(9th Cir. 1987). There, the plaintiff was paralyzed after being vaccinated with Tri-Immunol, a
drug manufactured by the defendant. The plaintiff contended that the defendant failed to
develop and market Tri-Slogen, an alternative vaccine apparently safer than the one given to the
plaintiff. The jury returned a special verdict finding the defendant negligent in connection with
the product and that the negligence caused the plaintiff’s injuries. The jury also rejected the
plaintiff’s other theories of strict liability and breach of warranty. The defendant appealed,
arguing, inter alia, that the jury’s special verdicts finding the defendant negligent, but not strictly
liable, were inconsistent. See id. at 511.

MEMORANDUM DECISION AND ORDER - 18

The Ninth Circuit certified questions of law to the Idaho Supreme Court. Based on the
answers it received, the Circuit panel found the jury’s special verdict answers not inconsistent.
See id. In particular, the panel interpreted the Idaho Supreme Court’s statement that “the focus
in negligence is on the manufacturer’s conduct, while in strict liability it is on the product and
the user’s expectations,” as allowing the jury to find the defendant negligent, but not strictly
liable. See id. at 513. From there, the Ninth Circuit determined that, even though a claim for
relief action under a strict liability theory may fail, there still exists an “incentive for safe design
by the manufacturer that is supplied by the threat of negligence liability.” Id. The court noted
that:
It is not enough for Lederle to argue that the jury’s finding of
negligence concludes that Tri-Immunol was defective, while its
finding on strict liability states a contrary view. The law and the
instructions required the jury to examine the case from two different
points of view. It is reasonable to read the special verdicts as saying
that Lederle’s failure to develop the Tri-Slogen vaccine was
unreasonable conduct, although the danger posed by the product
itself was not greater than an ordinary consumer would reasonably
expect.
Id. (emphasis added).
In this case, the Court gave jury instructions delineating two distinct causes of action –
one for strict liability; the other for negligence. See J.I. No. 2 (Docket No. 246) (“Mr.
Blumhorst’s claims fall within two separate and distinct legal theories of recovery: (1) strict
products liability; and (2) negligence by Pierce, the product manufacturer and sell. The strict
liability theory focuses on the product itself, while the negligence theory focuses on the conduct
of Pierce.”); see also id. at J.I. Nos. 30, 32, & 33 (outlining instructions for strict liability and

MEMORANDUM DECISION AND ORDER - 19

negligence (failure to warn) claims).12 The instruction regarding Blumhorst’s strict liability
claim involved the question of whether the fire truck was defective (by exposing a user or
bystander to an unreasonable risk of physical injury, or if it is more dangerous than would be
expected by an ordinary person who may reasonably be expected to use it); whether the defect
existed when the product left Pierce’s control; and whether the defect was a proximate cause of
Blumhorst’s injury. See id. at J.I. Nos. 29 & 30. This instruction focused and emphasized on the
fire truck and its condition. The instruction regarding negligence involved whether Pierce was
negligent in its warnings regarding the fire truck; whether Blumhorst was injured; and whether
Pierce’s negligence was the proximate cause of Blumhorst’s injury. See id. at J.I. Nos. 32 & 33.
In contrast to the strict liability instruction, this instruction focused not on the fire truck, but on
Pierce’s conduct. See Toner, 828 F.2d at 513.
As the decision in Toner describes, a plaintiff may prevail on their negligence claim, but
not their strict liability claim, because the jury could reasonably have examined the case from
two different points of view and reached its verdict based on the separate foci of the two causes
of action. With Toner as a backdrop, it is possible to read the jury’s special verdict here as
saying that the jury found Pierce negligent in failing to adequately warn the fire truck’s users at
the time of sale, while rejecting the claim that the fire truck itself presented unreasonable risks of
physical injury or was more dangerous than would be expected by an ordinary consumer.
Because this Court can reconcile the jury’s verdicts on Blumhorst’s strict liability and negligence
claims, Blumhorst’s Motion for a New Trial is denied on this ground.

12

Blumhorst (as well as Pierce) also proposed two stand-alone instructions for his strict
liability and negligence claims. See Pl.’s Proposed J.I. Nos. 16, 30, & 31 (Docket No. 225, Att.
1); see also Def.’s Proposed J.I. Nos. 10 & 11 (Docket No. 231).
MEMORANDUM DECISION AND ORDER - 20

b.

Negligence (Failure to Warn) and the Government Contractor Defense

“A public or private contractor following plans and specifications prepared by another
party is not liable in negligence where defects in the plans and specifications cause injuries, so
long as the contractor should have reasonably known about the defects.” Craig Johnson Const.,
L.L.C. v. Floyd Town Architects, P.A., 134 P.3d 648, 653 (Idaho 2006). This “government
contractor” defense “protects the reasonable reliance of the contractor on plans generated by
another party, and at the same time respects the general proposition that where there is no fault,
there should be no liability, regardless of the character of the parties involved.” Id. Throughout
this case, Pierce argued that the government contractor defense insulated it from liability because
it supplied the Bonneville Fire District with a fire truck that met all of the Bonneville Fire
District’s written specifications. And, while this Court denied Pierce’s motion for summary
judgment and Rule 50(a) motion on this issue due to questions of fact, the jury ultimately agreed
that the government contractor defense applied.
Now, post-trial, looking, in part, to the jury instructions on (1) the definition of
“defective” (Instruction No. 29), (2) negligence (failure to warn) (Instruction Nos. 32 & 33), and
(3) the government contractor defense (Instruction No. 43), Blumhorst argues that the jury’s
determination that Pierce was negligent in failing to give adequate warnings related to the
product/fire truck is fundamentally at odds with the same jury’s finding that the government
contractor defense operated to immunize Pierce from that liability. See Mem. in Supp. of Mot.
for J. and/or New Trial, pp. 12-15 (Docket No. 255, Att. 1). More to the point, Blumhorst points
out that the knowledge Pierce must have had (or should have had) as to the fire truck’s
dangerousness relative to the jury’s conclusion that Pierce was negligent in failing to adequately

MEMORANDUM DECISION AND ORDER - 21

warn (J.I. Nos. 32 & 33),13 is inconsistent with the lack of any knowledge about defects that must
exist in order for the government contractor defense to apply.14 See id. at p. 14 (“The jury,
following Instruction No. 33, must have found that Pierce as a product seller knew or reasonably
should have known that the product posed a substantial risk of harm to persons or property.
These mandatory findings are irreconcilably inconsistent with the jury’s finding following the
Instruction No. 43 that: . . . ‘if there was a defect in such plans and specifications that
proximately caused injury to Blumhorst, Pierce should not have reasonably known about the
defect.’”).
Again, there is a symmetry in Blumhorst’s argument when considering the jury
instructions provided at the end of trial. Though each relevant instruction contains an accurate
statement of the law when considered on its own, their respective elements are arguably
incapable of being applied together, owing to the as-written discrepancies in the quantum of
knowledge applicable to negligence and government contractor defense theories – a possibility
that had not been anticipated by the undersigned, nor pointed out by any of the parties up until
this point by either an objection to the at-issue jury instructions (on this uniquely-specific basis)

13

The jury instructions stated in relevant part that, “[i]n determining whether Pierce was
negligent, I instruct you that the product seller owes a duty to exercise ordinary care to warn all
those who may reasonably be expected to use its product where the seller: (1) knows or should
know that the product is unreasonably dangerous while being used with ordinary care; and (2)
knows or should know that those who may reasonably be expected to use the product may not
realize the danger.” J.I. No. 32 (Docket No. 246); see also id. at J.I. No. 33.
14

The jury instructions stated in relevant party that, for the government contractor
defense to apply, (1) Pierce followed the plans and specifications for the fire truck, including its
component parts; (2) the plans and specifications were prepared by a third-party; and (3) if there
was a defect in such plans and specifications that proximately caused injury to Plaintiff, Pierce
should not have reasonably known about the defect.” J.I. No. 43 (Docket No. 246) (emphasis
added).
MEMORANDUM DECISION AND ORDER - 22

or by a re-ordering of the special verdict’s questions to the jury. Alas, as this case neatly
confirms, hindsight is always 20/20.
Compounding this knotty issue, accepting Blumhorst’s arguments in toto would mean
that the government contractor defense cannot apply as a matter of law to a negligence (failure to
warn) claim. If that were true, Blumhorst’s argument for a new trial would naturally be on more
persuasive footing. But that is not the case, and Blumhorst has never so moved for summary
judgment and/or judgment as a matter of law on that express ground.
“It is well established that the government contractor defense articulated by the Supreme
Court in Boyle [v. United Technologies Corp., 487 U.S. 500 (1988)], may operate to defeat a
state failure-to-warn claim.” Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996).
Boyle’s interest in “insulating” contractors from suits when “the government exercises its
discretion and approves designs” extends to situations where it “approves warnings intended for
users.” Id. (quoting Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (9th Cir. 1995)). So, “‘when
state law would otherwise impose liability for a failure to warn, that law can be displaced when
the contractor can show that: (1) the government exercised its discretion and approved certain
warnings; (2) the contractor provided the warnings required by the government; [and] (3) the
contractor warned the government about dangers in the equipment’s use that were known to the
contractor but not to the government.’” Getz v. Boeing Co., 654 F.3d 852, 866 (9th Cir. 2011)
(quoting Oliver, 96 F.3d at 1003-04). “This means that the contractor must demonstrate that the
government ‘approved reasonably precise specifications’ thereby limiting the contractor’s
‘ability to comply with [its] duty to warn.’” Getz, 654 F.3d at 866 (quoting Snell v. Bell
Helicopter Textron, Inc., 107 F.3d 744, 749 (9th Cir. 1997)).15

15

Significantly, the case of Craig Johnson Const., L.L.C. v. Floyd Town Architects, P.A.,
134 P.3d 648 (Idaho 2006) – which the Court considered when drafting the jury instruction on
MEMORANDUM DECISION AND ORDER - 23

Pierce’s arguments opposing Blumhorst’s Motion for a New Trial are presented with this
more refined definition of the government contractor defense in mind. See Opp. to Mot. for J.
and/or New Trial, pp. 10-20 (Docket No. 258). And, if the Court was likewise inclined to
approach Blumhorst’s Motion for a New Trial the same way, Blumhorst might very well be left
in the lurch.
For example, as to the more-developed government contractor defense definition’s first
element, it could be argued that the Bonneville Fire District evaluated bid proposals “according
to specifications furnished by the Fire District and on the basis of delivery date and price as best
suits the needs of the Fire District.” Trial Ex. 531 at PMI 240. As to those specifications
relating to the Waterous Pump, the Bonneville Fire District required:
Pump shall be a Waterous CSV, 1250 GPM, single stage midship
mounted centrifugal type, carefully designed in accordance with good
modern practice. Pump shall be the class “A” type and shall deliver
the percentage of rated discharge at pressure indicated below:
100% of rated capacity at 150 PSI net pump pressure
70% of rated capacity at 200 PSI net pump pressure
50% of rated capacity at 250 PSI net pump pressure
....
A Waterous adjustable relief valve, specifically designed for fire
service, shall be provided. Valve shall be positive and quick acting
and have instantaneous on-off control.
Trial Ex. 532 at PMI 261 & 263. Part and parcel with specifying a Waterous pump generally,
the Bonneville Fire District went on to include the following related guidelines, stating in
relevant part:

the government contractor defense – did not deal with a negligent failure to warn claim and,
hence (and in hindsight), did not envelop the same level of elemental detail involved in applying
the government contractor defense to such a claim. The Court is unaware of any Idaho law on
this more specific issue.
MEMORANDUM DECISION AND ORDER - 24

•

All pump controls and gauges to be located at the left
(drivers) side of the apparatus and properly marked.

•

Pump panel controls and gauges to be illuminated by a
minimum of three incandescent lights installed under a
polished stainless steel shield.

•

The tags used for denoting the discharge pressure gauges,
controls, outlets and drains shall be color coded with each
discharge having its own unique color.

•

The following are to be provided on the pump and gauge
panels in a neat and orderly fashion: Engine oil pressure
gauge with visual and audible warning; engine water
temperature gauge with visual and audible warning;
tachometer, electric; half engine speed counter; master pump
drain control; engine throttle.

•

An electric water level indicator to be provided on the gauge
panel that registers by means of five individual lights at the
following positions: Full, 3/4, ½, 1/4, and Empty. To further
alert the pump operator the empty light must start flashing
when water level drops below the 1/4 mark.

•

The pump intake and discharge gauges shall be silicone filled
and manufactured by Span Instruments. They shall be a
minimum of 4.50" in diameter and shall have white faces with
black lettering.

•

Two indicator lights shall be provided adjacent to the pump
shift inside the cab. One green light is to indicate the pump
shift has been completed and be labeled “PUMP
ENGAGED.” The second green light is to indicate when the
pump has been engaged and the chassis transmission is in
pump gear. This indicator light is to be labeled “OK TO
PUMP.” A third green indicator light is to be installed
adjacent to the hand throttle on the pump panel. It is to
indicate either pump is engaged and road transmission is in
pump gear or road transmission is in neutral and pump is not
engaged. This light be labeled “WARNING: DO NOT OPEN
THROTTLE UNLESS LIGHT IS ON.”

•

A relief valve integral with the fire pump shall be installed on
the suction side of the pump, pre-set at 125 PSIG. The outlet
is to terminate below the left side, visible to the operator, and

MEMORANDUM DECISION AND ORDER - 25

shall be furnished with a 2.50" NST adapter and a “Intake
Pressure Relief Outlet - Do Not Cap” warning tag.
•

When in the off position the relief valve shall functionally be
removed from the system. When turned back on it shall again
monitor and maintain the pressure the relief valve was set at
the last time it was used. Control for adjusting the pressure
to be elliptical shaped for positive grip. An easily removable
pilot valve strainer shall be provided and be accessible from
pump operators panel. Indicator lights (two) shall be
furnished to show position of relief valve – amber for open
and green for closed.

•

Two (2) pump manuals from the pump manufacturer shall be
furnished with the apparatus. Manuals to cover pump
operation, maintenance, and parts.16

Id. at PMI 262-263, 265, & 269-271 (emphasis in original). From this, Pierce argues that the
Bonneville Fire District exercised its discretion and approved the fire truck’s specifications, its
listed safeguards, and the warnings contained in the Waterous manual. See Opp. to Mot. for J.
and/or New Trial, pp. 12-16 (Docket No. 258) (quoting Tate, 55 F.3d at 1157 (“Government
discretion is required, not dictation or prohibition of warnings. Where a contractor proposes
warnings that the government substantively approves, and satisfies the second and third
conditions, the [government contractor] defense displaces state law – even if the government did
not ‘prohibit’ the contractor from proposing more alarming warnings.”) (emphasis in original)).
As such, according to Pierce, the jury was responsible for determining whether the Bonneville
Fire District prepared plans and specifications detailing the fire truck’s build-out, and/or
exercised its discretion regarding the build’s corresponding warnings.

16

It is undisputed that the Waterous manual included the following warning:
“WARNING. Always reduce pressure with engine throttle to ensure the relief valve is closed
before turning the four way valve OFF.” Opp. to Mot. for J. and/or New Trial, p. 16 (Docket
No. 258) (emphasis in original).
MEMORANDUM DECISION AND ORDER - 26

The surrounding evidence on this issue was never clear-cut, as demonstrated by the
Court’s denial of Pierce’s own Rule 50(a) motion, presented at the close of Blumhorst’s case-inchief:
[O]ne element of Pierce’s burden of proof is to demonstrate that
Pierce was “following plans and specifications prepared by another
party.” That element is in dispute on the trial record, when
reasonable inferences are drawn in favor of [Blumhorst].
Specifically, evidence was presented in [Blumhorst’s] case-in-chief
that “specifications” of the Waterous pump installed on the fire truck
were prepared not by the Fire Department, but by Waterous and
Pierce, and then selected, as one of various options of specifications
provided by Waterous and Pierce. Pierce argues strongly that the
“selection” was tantamount to a “specification,” but that will be the
subject of argument from counsel, and decision by the jury.
3/8/13 MDO, pp. 3-4 (Docket No. 249). However, it is possible to conceive how the jury could
conclude that the Bonneville Fire District provided reasonably precise specifications for the fire
truck and pump warnings – especially if any inferences made in Blumhorst’s favor during
Pierce’s earlier motion for judgment as a matter of law are disregarded.
As to the more-developed government contractor defense definition’s second element,
the evidence could also be interpreted to reflect that Pierce drafted a bid proposal matching the
Bonneville Fire District’s specifications and, later, built a fire truck consistent with those
specifications – including the incorporation of a Waterous pump, a pump panel with the
specified warnings and indicator lights, and the required Waterous manuals. See, e.g., Trial Ex.
532 at PMI 241 (“It is the intent of these specifications to cover the furnishing and delivery of a
complete apparatus equipped as hereinafter specified. With a view to obtaining the best results
and the most acceptable apparatus for service in the Fire Department, these specifications cover
only the general requirements as to the type of construction and test to which the apparatus must

MEMORANDUM DECISION AND ORDER - 27

conform, together with certain details as to finish, equipment and appliances with which the
successful bidder must conform.”).
Finally, as to the more-developed government contractor defense definition’s third
element, it could be said that there is no evidence suggestive of the fact that Pierce (but not the
Bonneville Fire District and/or its fire departments) was aware of the danger in abruptly turning
the discharge relief valve off while still pressurized. Said another way, it is possible for the jury
to have concluded either that Pierce was unaware of the specific hazard involved with turning off
the discharge relief valve before reducing pressure, or that the Bonneville Fire District was
already aware of that danger. Each of these scenarios is potentially capable of satisfying the
third element of the government contractor defense as articulated in Getz. See Oliver, 96 F.3d at
1001 (“Boyle does not require the contractor to warn the government of every possible danger –
only those known to it and not to the government.”).
Except, the problem with addressing Blumhorst’s Motion for a New Trial in the way
Pierce impliedly proposes is that it fails to take into account the jury’s verdict, juxtaposed
against the instruction on the general contractor defense that was actually provided to the jury.
See Reply in Supp. of Mot. for J. and/or New Trial, pp. 7-9 (Docket No. 260) (“The jury’s
finding that Pierce had proven its government contractor defense was based on [Instruction No.]
43. In its response, Pierce fails to refer to the standard set forth in [Instruction No.] 43. Instead,
on page 10 of its response, Pierce sets forth different elements it claims it needed to prove to
prevail on its defense. . . . . If Pierce is correct with regard to the law in its response now, the
jury could not have been correct in reaching its verdict when relying on [Instruction No.] 43
then. It should be clear that neither Pierce nor Blumhorst is defending [Instruction No.] 43. . . . .

MEMORANDUM DECISION AND ORDER - 28

Based upon its response, not even Pierce appears willing to defend [Instruction No.] 43.”). That
instruction (Instruction No. 43), while no-doubt similar to the template offered by Pierce in its
briefing (and used by Pierce’s counsel at oral argument over Blumhorst’s counsel’s objection), is
different in at least one material respect: namely, it only addresses Pierce’s knowledge of the fire
truck’s dangers; it does not speak to Pierce’s knowledge of the fire truck’s dangers alongside the
extent of the Bonneville Fire District’s knowledge of the same.
This is important because, even though it is possible to argue that the jury could have
found the government contractor defense to insulate Pierce when considering a more
encompassing definition of the defense, the fact remains that the jury was never asked to (and
therefore did not) address the issue of the Bonneville Fire District’s knowledge – a potential
lynchpin issue, the resolution of which could be the difference between whether the government
contractor defense applies and, thus, whether Blumhorst or Pierce prevails. Under these
circumstances, substituting out the jury’s absolute role in favor of an ethereal determination of
what that jury might find (even on an issue not heretofore considered by that jury) strikes the
undersigned as foolhardy, despite what may otherwise be a benefit in bringing closure upon the
case. The Court is certainly empowered under applicable law and rules to undo or revise jury
decisions in appropriate circumstances. However, in response to Blumhorst’s argument about
the irreconcilable nature of the verdict that was returned, Pierce is not asking the Court to undo a
jury’s finding, but rather to suppose what the jury’s finding might have been had the jury been
instructed in a slightly different manner than actually occurred, to support the verdict that was
returned.
What is left, then, is a situation where, recognizing the jury instructions that went into it,
the jury’s Special Verdict Form is unclear. It is possible the jury thought Pierce was not
MEMORANDUM DECISION AND ORDER - 29

negligent in failing to warn (Pierce not liable); or that Pierce was negligent in failing to warn, but
that the government contractor defense applied (Pierce not liable); or, finally, that Pierce was
negligent in failing to warn, and that the government contractor defense did not apply (Pierce
liable). Here, there is no fundamentally just approach to harmonize the Special Verdict Form. It
is the Court’s responsibility, particularly when also considering the possible infirmity in the jury
instructions underlying the verdict, to grant Blumhorst’s request for a new trial. Under the
circumstances detailed in this Memorandum Decision and Order, it would be a miscarriage of
justice to allow judgment in Pierce’s favor to stand. Blumhorst’s Motion for a New Trial is
granted on this ground.
c.

Akron’s Negligence

On the Special Verdict Form, the jury found that Akron was negligent and that Akron’s
negligence proximately caused Blumhorst’s injuries. See Special Verdict Form, p. 3 (Docket
No. 247). Blumhorst’s argument that Pierce did not meet its burden of proving Akron’s
negligence is inconsequential toward resolving his Motion for a New Trial.17 Even if Akron is
not negligent as a matter of law, the jury’s findings as to Pierce remain unaffected,
notwithstanding any questions presented by the Special Verdict Form as to Pierce’s liability (see

17

During deliberations, the jury submitted the following statement: “We cannot answer
Question 10 on condition of lack of evidence [and] we were instructed not to consider Akron
Brass in this case.” Jury Question No. 1 (Docket No. 242). In the context of that particular stage
of the trial and deliberations, it seemed apparent that the jury had navigated through the
preceding questions on the Special Verdict Form and were at the point of allocating fault.
Hence, the undersigned answered the jury’s question and instructed it to “consider whatever
evidence you find in the record as to whether or not Akron Brass bears some comparative fault,
and answer Question 10 based upon that evidence.” Id. This response to the jury’s question was
discussed with counsel before it was given, and no objection was raised. Based upon the special
verdict that was finally returned, the jury need not have answered Question 10, but harmlessly
did so anyway.
MEMORANDUM DECISION AND ORDER - 30

supra). In short, because the jury’s consideration of Akron’s negligence, contrasted against the
bigger picture, does not represent a miscarriage of justice that would warrant a new trial.
Blumhorst’s Motion for a New Trial is denied on this ground.
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Blumhorst’s Motion for Judgment as a Matter of Law and for a New Trial

(Docket No. 255) is GRANTED, in part, and DENIED, in part. Blumhorst’s request for
judgment as a matter of law is denied while Blumhorst’s request for a new trial is granted.
2.

Pierce’s Request for Judicial Notice in Support of Pierce Manufacturing Inc.’s

Response to Plaintiff’s Motion for Judgment as a Matter of Law and for a New Trial Filed on
March 27, 2013 (Docket No. 259) is DENIED as moot.18
A separate Notice/Order will be forthcoming, speaking to the procedural logistics of this
action’s progression forward.
DATED: March 28, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

18

In addition to being moot, the Court notes that the cited authority for such a request
appears to be inapplicable California state law.
MEMORANDUM DECISION AND ORDER - 31