At the panel’s conf erence on January 22, 1998, following oral argument of the 1 case, Judge F loyd R. Gibson concurred in the result reached in this opinion. Judg e Gibson has been disabled by illness from reviewing the opinion, which is being filed in the interest of avoiding undue delay. Honorable Pasco M. Bowman became Chief Judge of the United States Court 2 of Appeals for the Eighth Circuit on April 18, 1998.



## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 97-3539

___________ Harry E. Horstmyer; Eveline M. * Horstmyer, * * Appellants, * Appeal from the United States * District Court for the
v. * Eastern District of Missouri * Black & Decker, (U.S.), Inc., * * Appellee. *

___________ Submitted: January 22, 1998 Filed: July 27, 1998

___________ Before McMILLIAN, FLOYD R. GIBSON and BOWMAN, Circuit Judges. 1 2

___________
McMILLIAN, Circuit Judge.The Honorable Catherine D. Perry, United States District Judge for the Eastern 3 District of Missouri. -2- Appellants Harry and Eveline Horstmyer, husband and wife, appeal from a final order entered in the United States District Court for the Eastern District of Missouri 3 upon a jury verdict for appellee Black & Decker (U.S.), Inc. (Black & Decker ), on their tort claims. See Horstmyer v. Black & Decker (U.S.), Inc. , No. 4:96CV649 CD P (E.D. Mo. Aug. 20, 1997) (slip op.). For reversal, appellants contend that the district court (1) abused i ts discretion in using a Special Verdict Form that confused the jury an d does no t comply with Missouri law; (2) abused its discretion in giving a curativ e in struction that confused the jury; and (3) erred in dismissing their negligent recal l clai m. The district court had diversity jurisdiction over appellants’ action under 2 8 U.S.C. § 1332. We have jurisdiction over the app eal under 28 U.S.C. § 1291. For the reasons discussed herein, we affirm the order of the district court.
Background
App ellants brought this products liability suit against Black & Decker fo r serious, permanent, and painful injuries sustained by Harry Horstmyer on April 14 , 1995, when his right hand came into contact with the spinning blade of his Black & Decker Model 1703, Type 1 miter saw during home use. As a result of his injuries , Harry incurred medical expenses totaling approximately $65,000.

The Model 1703, Type 1 miter saw is manufactured, marketed, and sold b y Black & Decke r. Harry’s miter saw had a manual brake and a lower plastic blad e guard that is activated solely by gravity. In August 1988 Black & Decker had recalled several miter saws, includi ng the Model 1703, Type I miter saw like Harry’s, because th e lower blade guard had a tendency to “hang up”; that is, the lower blade guar d would stick and leave the lower blade unguarded. For reasons that are disputed onA ppellants contend that Harry’s miter saw was not recalled because of a 4 numbering error in Black & Decker’s recall notice. Black & Decker argues tha t Harry’s miter saw was not recalled because Harry never sent in his warranty. -3- appea l, the miter saw that Harry was using at the time of his injury was not recalled. 4

In their complaint, appellants asserted claims for strict liability product defect, st rict liability failure to warn, negligent design, breach of implied warranty, negligent recall, and failure to comply with th e Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (1972) (CPSA). In addition, Eveline Horst myer filed a derivative claim for loss of consorti um. Appellants voluntarily dismissed the CPSA counts prior to trial. B y order of May 20, 1997, t

he district court granted Black & Decker’s motion to dismiss appel lants’ negligent recall claim for failure to state a claim for which relief may b e gr anted. Appellants ultimately submitted the following claims to a jury following a five-day trial: strict liability product defect, negligent design of the blade guard, an d negligent failure to install an automatic brake.
In reaching their verdict, the jury was asked to complete a S pecial Verdict Form. Black & Decker proffered the form at an informal jury instruction conference on June 12, 1997. Pursuant to the Case Management Scheduling Order entered by the district court, the parties were required to submit all proposed jury instructions no later than twenty (20) d ays prior to trial, which commenced on June 9, 1997. The district court declined to give Black & Decker’s pro posed Special Verdict Form, on the ground that it was “entirely confusing.” Transcript of Instruction Conference (Transcr ipt) at 9. The district court informed the parties that instead it would revise the verdict form an d adjourn the jury instruction conference until the following day, at which time the parties could review the revised form and make a record. Id. at 35.-4-

The following mor

ning, the parties reviewed the minor changes that the district court had made to the Special Verdict Form and each party proposed additiona l changes which the district court incorporated. Appellants’ c ounsel stated on the record that Black & Decker’s incorporated changes were “more confusing than the verdic t form that the Court ha[d] worked out tha[t] was originally submitted by the plaintiff, but then refined quite a bit.” Id. at 46. However, neither party objected to the district court’s giving the revised Special Verdict Fo rm; nor did either party make any specific objections to its content.
Later, during deliberations, the jury submitted a note to the district cour t expressing confusion as to whether it was necessary to find against Black & Decker on all the elements presented in the first two questions of the Special Verdict Form, in order to find for appellants. The jury’s note reads as follows:

We all seem to be somewhat confused by the w ording of the first tw o questions because of the two part aspect of eac h que stion and possible conflict in answers between the tw o parts of the sentences. Could we get a clarification on how to come to a dec ision on these questions. Appellants’ Initial Appendix at 95.

Ac knowledging that the Special Verdict Form, in combination with the jur y instructions regarding comparative fault, was “ confusing,” Transcript at 51, the district
co urt held a conference with the parties to determine how to respond to the jury’ s query. The district court proposed three alternative instructions. Appellants objected to the dis trict court’s proposed instructions and offered their own instruction. Th e district court rejected appellants’ proposed instruction and ultimately gave one of it s proposed instructions.-5-

Shortly thereafter, the jury returned the Special Verdict Form, answerin g questions 1 a nd 2 in the negative, in favor of Black & Decker. The district cour t entered judgment in favor of Black & Decker based on the jury’s verdict. Appellants timely filed a motion for a new trial which was denied by order dated August 20, 1997. Seeslip op. at 3. Appellants then timely filed notice of appeal under Rule 4(a) of the Federal Rules of Appellate Procedure.

Discussion
The portion of the Special Verdict F orm at issue in this appeal reads as follows:

1. Did the Defendant sell the Model 1703 miter saw in the course o f Def endant’s business to the Plaintiff Harry Horstmyer in a defectiv e condition unreasonably dangerous when put to a reasonably anticipated use, and did Harry Horstmyer use the Model 1703 miter in a manne r reasonably anticipated?
Answer: _____ Yes _____ No

2. Did t he Defendant design the Model 1703 miter saw in a defectiv e mannerei ther because the saw did not have an automatic brake o r because it had a gravity guard that did not protect from b elow, and did the Defendant

fail to use ordinary care to design the Model 1703 miter saw to be reasonably safe?
Answer: _____ Yes _____ No
Note: If your a

nswers to either question 1 or question 2 (or to both) was [sic] “yes” , proceed to the next questions. If your answers to bot h questions 1 and 2 were “no” then do not answer any more questions, but simply have your foreperson sign and date the form. Appellants’ Initial Appendix at 92.Jury instructions Nos. 6 and 10 are based on Missouri Approved Jur y 5 Instructions (MAI) 25.04 and 25.09, respectively, and, pursuant to MAI 37.01, were modifi ed to include language on comparative fault in view of evidence of Harry’ s negligence.
-6- As a preliminary matter, appellants apparently challenge the district court’s use of the Special Verdict For

m on the ground that Black & Decker submitted the form to the district court after the deadline for jury instruction submissions. As for the content of the form, appellants contend that the statements of law contained in questions 1 and 2 a re inconsistent with Missouri law because they do not permit the jury to conside r principles of pure comparative fault. Appellants further argue that “neither question one, two, n or the instructions set forth on the Special Verdict Form adequatel y informed the jury that they must consider the instructions as a whole or [that] they must disregard any fault of Plaintiff Harry Horstmyer in considering Defendant’s liability under questions #1 and #2.” Appellants’ Brief at 13. As a result, appellants assert, the jury was pe rmitted to consider evidence of Harry’s negligence as a complete bar t o recovery, contrary to Missouri comparative fault law. Moreover, although th e remainder of the form directed the jury to consider causa tion and issues of comparative fault, appellants argue that the jury was expressly pre cluded from reaching those issues on the form because it answered the first two questions in the negative.
Appellants further submit that the Special Verdict Form differs significantly from jury instructions Nos. 6 and 10, which it was intended to restate. J ury instructions Nos. 6 and 10 set forth the elements of strict liability product defect and negligent product defect, respectively. Both instructions are prefaced with the following statemen t 5 regarding comparative faul t: “In your verdict you must assess a percentage of fault to defendant whether or not plaintiff Harry Horstmyer was partly at fault.” Appellants’ Init ial Appendix at 77, 81. Appellants maintain that the district court’s failure t o include similar language in the Special Verdict Form ( i.e. , its failure to instruct the juryA s noted above, upon initially receiving the Special Verdict Form, the district 6 court refus ed to give it as written on the ground that it was “entirely confusing. ” Transcript of Instruction Conference at 9. Moreover, upon receiving the note from the jury, the district court stated, [T]hese instruc tions are unclear as given, and . . . a clarifying instruction is necessary. The instructions themselves talk about assessing a percenta ge of fault, where the questions [on the Special Verdict Form ] ask do you find all of the elements of those verdict directors. Th e combination is confusing, and I think the jury’s confusion is reasonable

. . . . I am concerned about whether those instructions were appropriate as we gave them . . . .
Id. at 51.
-7- not to consider Harry’s fault in responding to the first two questions) was an error of law and prejudicial to ap pellants. Furthermore, appellants argue that the district court was aware that the Special Verdict Form was unduly confusing. As support, appellants cite the di strict court’s own observations and appellants’ counsel’s statement on the 6 record, before the form went to the jury, that the form w as confusing. Transcript at 46.

Con sistent

with their challenge to the use and content of the Special Verdic t Form, appellants al so argue that the district court abused its discretion in (1) rejecting their proposed response to the jury’s query re garding the Special Verdict Form and (2) giving a curative instruction that, according to appellants, failed to include one of their princip al claims of negligence asserted at trial, thereby compounding the prejudice to
a p pellants. Appellants proposed that the district court give the following instruction in respon se to the jury’s query: “You have heard all the evidence and been given the instructions on the law. Your decision must be guided by th e evidence and instructions you have recei ved.” Id. at 51-52. In its stead, the district court gave the followin g instruction:Black & Decker further argues that, by not expressly arguing that the substance 7 of the Sp ecial Verdict Form was “plain error ” in their opening brief on appeal , appellants have waived this issue entirely. However, this argument takes the waiver issue too far because, while appellants did not assert their claims under the “plai n er ror” standard of review, they have clearly challenged the legal sufficiency of th e Speci al Verdict Form in their briefs, thereby giving sufficient notice of the allege d error. -8- As set forth in instructions 6 and 10, you must find all of the elements set fo rthin those instructions to find defendant at fault. In other words, al l parts of question 1 must be answered yes for the answer for the answer to question 1 to be “yes.” All parts of question 2 must be answered “yes” for the an swer of question 2 to be “yes.” If your answer to any part o f either question is “no,” then you must answer that question “no.” Appellants’ Initial Appendix at 96.
Appellants claim that the district court’s instruction quoted ab ove, along with the Special Verdict Form, i mproperly limited the jury’s deliberations to questions 1 and 2 of the Special Verdict Form. In addition, appellants contend that the instructio n preven ted the jury from finding that the 1703 miter saw was defective either because it did not have an automatic brake or because it had a defective lower blade guard

. Thus, they argue, the jury was improperly p revented from answering “yes” to question 2. Based on these arguments, appellants maintain that the district court erred i n denying their motion for a new trial.

Black & Decker contends that appellants failed to object adequately to the use andcontent of the Special Verdict Form as required by Rule 51 of the Federal Rules of Civil Pr ocedure, and thus have not preserved these issues for appeal. Appellee’ s Brief at 1-3. Black & Decker further maintains that appellants’ failure to lodge a proper objection limits this court’s review of the jury instructions to plain error. Id. 7 at 3-4.-9-

Under the plain error standard of review, Black & Decker asserts that th e instructions as a whole fairly and adequately presented the issues of the case to th e jury, were adequate and fair to both parties, and thus, are not reversible as plain error. Specifically, Black & Decker n otes that the failure to include the issue of comparative fault in the Special Verdict Form was not plain error because, as a matter of law , quest ions 1 and 2 obviate any inquiry into comparative fault if answered in favor o f Bl ack & Decker. Black & Decker further contends that the Special Verdict For m simply permitted the jury to determine first and foremost whether appella nts had proven the essential elements of their claim. Black & Dec ker also argues that, like appellants’ other contentions, appellants’ arguments regarding the curative instruction have been waived in light of appellants’ failure to specify their objec tions to the district court. On the merits, Black & Decker maintains that the district court’s curative instruction was
cor rect and within the broad range of discretion granted trial judges in crafting jur y instructions.

Absen t plain error, appellants must raise specific objections to the form o r content of jury i nstructions, including special interrogatories, before the district court i n order to preserve such matters for appeal. Frensley v. National Fire Ins. Comp. of Hart ford , 856 F.2d 1199,1203 (8 Cir. 1988) (“[I]f a party fails to raise a specifi c th obj ection in the trial court to the form or contents of an interrogatory, it cannot rais e that objec tion for the first time on appeal.”); see also Dupre v. Fru-Con Eng’g, Inc. , 112 F.3d 329, 334 (8 Cir. 1997) ( Dupre ) (“Our law on this subject is crystal clear : th [T]o preserve an argument concerning a jury instruction for appellate review, a party muststate d istinctly the matter objected to and the grounds for the objection on th e record.”). The Federal Rules of Civil Procedure expressly provide t hat “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects the reto before the jury retires to consider its verdict, stating distinctly the matte r objected to and the grounds of the objection.” Fed. R. Civ. P. 51; see also Commercial Property Invs., Inc. v. Quality Inns Int’l, Inc. , 61 F .3d 639, 643 (8 Cir. 1995) (holding th that Rule 51 requires a litigant to give specific objections to a jury instruction before-10-

the jury retires; otherwise, the right on appeal to object to a jury instruction on those gr ounds is waived). “The purpose of Rule 51 is to compel litigants to afford the trial court an opportunity to correct any error in the instructions and also to prevent th e losing party from obtaining a new trial through relying on a possible error in th e ori ginal trial. ” Johnson v. Houser , 704 F.2d 1049, 1051 (8 Cir. 1983) (per curiam) th (emphas is added); see also Arthur Young & Co. v. Reves , 937 F.2d 1310, 1334 (8 th Cir

. 1991) (“‘The necessity of a retrial is avoided when, by design or through shee r neglect, the losing party fails to make objection at the proper time.’”) (quoting 9 C

. Wrigh t & A. Miller, Federal Practice and Procedure § 2551 (1971) (footnote s omitted)).

Our review of the record reveals that appellants did not object to the use o r conten t of the Special Verdict Form and objected only generally to the use of th e distr ict court’s curative instruction. With respect to the Special Verdict Form , appellants merely a sserted that Black & Decker’s proposed changes to the form were “more confusing” than the general verdict for m that appellants had submitted earlier to the di strict court. The district court therefore was not afforded an opportunity t o correct any alleged substantive errors in either the Sp ecial Verdict Form or the curative instruc tion because such errors were never specifically identified by appellants

. Accordingly, any error in the Special Verdict Form or the curati ve instruction is waived absent a showing of plain error. See, e.g. , Dupre , 112 F.3d at 33 3 (holding that general objection to instruction and statement that instruction should not be given is insufficient t o preserve objection for appeal absent plain error); Rush v. Smith , 56 F.3d 918, 925 (8 Ci r. 1995) ( Rush ) (“We have no discretion to correct forfeited errors to which no th objection was made unless they meet the plain error standard . . . .”).

“Plain error is a stringently limited standard of review,” especially in the civi l context, and must result i n a miscarriage of justice in order to compel reversal. Id. In reviewing a substantive challenge to jury instructions, the pertinent query is “‘whether the instructions, taken as a whole and viewed in light of the evidence and applicable-11-

law, fairly and adequately submitted the issues in the case to the jury.’” Kansas City Power & L ight Co. v. Ford Motor Credit Co. , 995 F.2d 1422, 1430 (8 Cir. 1993 ) th (quoting Jones v. Board of Police Comm’rs , 844 F.2d 500, 504 (8 Cir. 1988)). A th district court’s decision to reject a proffered jury instru ction is subject to reversal “only if we find that, when viewed in their entirety, the jury instructions contained an error
or errors that affected the substantial rights of the parties.” Hastings v. Boston Mut. LifeIns. Co. , 975 F.2d 506, 510 (8 Cir. 1992) ( Hastings ). “[T]he district court has th discretion in the style and wording of jury instructi ons so long as the charge as a whole fairly and adequately states the law.” Beckman v. Mayo Found. , 804 F.2d 435, 43 8 (8 Cir . 1986). Furthermore, “[w]here the charge to the jury correctly sets forth th e th law, a lack of perfect clarity will not render the charge erroneous.” Roth v. Black & Decker, U .S., Inc. , 737 F.2d 779, 783 (8 Cir. 1984) ( Roth ); see also Hastings , 97 5 th F.2d at 510 (“[W]e will not find error in instructions simply because they ar e technically im

perfect or are not a model of clarity.”). This court must apply Missouri law in d etermining the substance of the jury instructions in this diversity case, whil e federal law governs our review of the discretion exercised in refusing or admitting such instructions. Roth , 737 F.2d at 784.

Inthe instant case, the instructions as a whole correctly set forth Missouri law on strict liability product defect, neglig ent product defect, and comparative fault. Rule 49 of the Federal Rules of Civil Procedure grants district courts the discretion to use special verdi cts. We find no error in the district court’s decision to use the Specia l Verdict Form, even as an eleventh-hour submission. Davis v. Ford Motor Co. (In re Davis) , 128 F.3d 631, 633 (8 Cir. 1997) (holding that the district court’s exercise of th discretion under Rule 49 is virtually unreviewable )

. Moreover, any error in th e omission of comparative fault language in questions 1 and 2 of the Special Verdic t Form is inconsequential in view of t he district court’s curative instruction which refers to instruc tion Nos. 6 and 10 which, in turn, contains a correct statement of law o n comparative

fault. The jury was further instructed on comparative fault in instruction Nos. 9 and 12. In addition, instruction No. 1 directs the jury to consider theBefore proposing a curative instruction to the district court, appellants state d 8 tha t the jury “should be given a general response” and “shouldn’t be given specifi c answers.” Transcript of Instruction Conferen ce at 50. Assuming that these statements amou nt to a specific objection, we hold that the district court did not abuse it s discretion in giving a less general curative instruction. -12- instructions as a whole. We therefore conclude that the jury was not precluded from considering the issue of comparative fault. Moreover, there is no mandate under the Federal Rules or Missouri law that the jury be instructed, in a special verdict form, to view the instructions as a whole if the jury has already been so instructed. The form properly asked the jury to focus at the outset on whether a ppellants had met their initial burden. Appellants suffered no prejudice from this form of inquiry.

As to the district court’s rejection of appellants’ proposed curative instructio n and the propriety of its own cura tive instruction, appellants correctly point out that the district court’s broad discret ion in deciding whether to use a special verdict form does not extend to submitting instructions that mislead, co nfuse, or improperly state the law. This court has made clear, however, that “‘[t]he mere tender of an alternativ e instructio n

without objecting to some specific error in the trial court’s charge o r explaining why the proffered instruction better states the law does not preserve th e
error for appeal.’” Campbell v. Vinjamuri , 19 F.3d 1274, 1277 (8 Cir. 1994 ) 8 th ( Campbell ) (quoting Farmland Indus. v. Frazier-Parrott Commodities, Inc. , 871 F.2d 1402, 1408 (8 Cir. 1 989)). Therefore, we reject their contentions because, while the

th instruction may be subject to alternative interpretations, it is not plain error.
Appellants’ contention that the curat ive instruction improperly directs the jury’s verdict hinges upon the number of “parts” there are to question 2of the Special Verdict Form. The clearer interpretation of question 2, and certainly the interpretation of the jury, is that question 2 has two parts: one, whether Black & Decker designed th e Model 1703 miter saw in a defective manner either because the saw did not have anThe jury’s note that prompted this instruction was based stated that the jury’s 9 confusion was based , in part, on “ the two-part aspect of each question .” Appellants’ Initial Appendix at 95. -13- automatic brake or because it ha d a gravity guard that did not protect from below, and two, w hether Black & Decker failed to use ordinary care to design the Model 170 3 mitersaw to be reasonably safe. This inquiry correctly asks the jury to determin e 9 init ially whether appellants have met their burden. We therefore find no error in th e district court’s curative instruction.

Further more, the district court had broad discretion to reject appellants ’ proposed c urative instruction. We hold that the district court did not abuse it s dis cretion in refusing appellants’ proposed curative instruction In sum, we hold that,
as a whole, the jury instructions in the instant case do not misstate Missouri law and are not so misleading and confusing as to constitute plain error.

We also hold that the district court did not err in dismissin g appellants’ negligent recall claim. We review de novo a district court’s determination of how a forum state’s highest court w ould decide a novel legal issue or cause of action, giving no deference to the district court’s interpret ation of state law. See Salve Regina College v. Russell , 499 U.S. 22 5, 231 (1991); Lindsay Mfg. Co. v. Hartford Accident & Indem. Co. ,118 F.3d 1263, 1267 (8 Cir. 1997). th
The district court dismissed appellants’ negli gent recall claim on the ground that there is no such cause of act ion under Missouri law. Appellants admit that neither the Miss ouri Supreme Court nor the Missouri legislature has recognized such a claim ; nonetheless, app ellants argue that Missouri caselaw supports a negligent recall claim. Appellant s assert that the factual allegations in their complaint establish that Black & Decker owed

a duty to appellants to carry out its recall program under the CPSA and under Missouri common law because of the reasonable likelihood that injury would-14-

occur from its negligent acts or omissions. Appellants apparently base their argument under the CPSA on its general provisions. Appellants also rely on Missouri caselaw that holds that a claim of negligence need only arise out of circumstances in which there is a foreseeable likelihood that a particular act or omission will cause harm or injury. See, e.g

. , Maryland Heights Leasing v. Mallinkrodt, Inc. , 706 S.W.2d 218, 223 (Mo. Ct. App. 1986). F or additional support, appellants rely on Iowa and Minnesota cases that hav e found a post-distribution duty to warn, and on Smith v. Firestone Tire & Rubber Co. , 755 F.2d 129, 135 (8 Cir. 1985) ( Smith ), where this court held tha t th whether a duty to recall exists is a matter of law that must be supported by statute, case law, or the mandate of an appropriate regulatory agency.

In Smith , this court conducted the exact a nalysis of Missouri law that appellants propose in the instant appeal. Id. at 134-35. Like the instant case, Smith involved a pro ducts liability action brought under diversity jurisdiction in which Missouri la w governed. In that case, we recognized that, to establish any cause of action based in negligence under Missouri law, a plaintiff must demonstrate that the defendant owed
a duty to the plaintiff, breached that duty, through act or omission, and thereb y proximately caused the plaintiff’s injury. Id. at 135 (citing Virginia D. v. Madesco Inv. Corp. , 648 S.W.2d 881, 886 (Mo. 1983) (en banc); Nelson v. Freeman , 537 F. Supp. 602, 60 7 (W.D. Mo. 1982), aff'd sub nom. Nelson by Wharton v. Missouri Div. o f Family Servs. , 706 F.2d 276 (8 Cir. 1983)). Furthermore, the court must determine th that a duty in fact existed. Smith , 755 F.2d at 135 (citing Hyde v. City of Columbia , 637 S.W.2d 251, 257 (Mo. Ct. App. 1982), cert. denied , 459 U.S. 1226 (1983)).
Appl ying Missouri law, we held that a manufacturer could not be liable i n negligence for failure to recall defective tire rims because the appellants
provide[d] no statute or case law to support their position that [th e manufactu rer

was] under a legal duty to recall the rims. While such a duty may have existed had the Department of Transportation ordered aIn a recent unpublished opinion, the Missouri Court of Appeals affirmed a jury 10 verdict in a wrongful death action against the m anufacturer and installer of a helicopter engine and the owner and operator of the helicopter. Letz v. Turbomeca Engine Corp. , No. WD 51446, 1997 WL 7 27544 (W.D. Mo. Nov. 25, 1997) ( Letz ) (en banc), reh’g and/or transf

er denied , id. (Jan. 27, 1998), cause ordered transferred to Mo. Sup. Ct. , id. (Mar. 24 , 1998). Among the claims asserted at trial was the claim that th e manufacturer and the install er knew of the defect in the engine before installation and, based on a fully informed, cost-based business decision, failed to recall the engine prior to the regularly scheduled overhaul. Id. at *3. The manufacturer and installe r appe aled, among other things, the submission of the issue of “aggravatin g circumstances” to the jury and the admission of evidence of the cost of recall. Id. at *1. In affirming the trial court on the condition of remittitur, the Missouri Court o f Appeals did not address whether the failure to recall was actionable as a distinct cause of acti on under Missouri law. Letz is now pending review before the Missour i Supreme Court.
To the extent that Letz tends to establish a cause of action for failure to recal l under Missouri law, we note that, in predicting how the Missouri Supreme Court would rule, we may consider, but are not bound by, relevant state precedent, analogou s decisions, considered dicta, and any other reliable data. See Aerotronics, Inc. v

. Pneumo Abex Corp. , 62 F.3d 1053, 1062 (8 Cir. 1995) (holding th at, while decisions th by t he Missouri Court of Appeals may be used as an indication of how the Missour i Supreme Court may rule, we are not bo und to follow those decisions). Because of the uncertain nature of this case in view of its particular factual posture, the Missouri Court -15- recall, . . . no such notification of defect and re medy order had been given pertaini ng to these rims. Since no duty to recall was established, a fundamental prerequisite to establishing negligence was absent.

Id

. at 135. Accordingly, we held that the district court did not err in rejectin g appellants’ request to instruct the jury on a negligent recall theory.
Likewise, in the instant case, we hold that there is no indication, by caselaw , statute, o r otherwise, that the Missouri Supreme Court would create a common la w d u ty to recall under these circumstances. Moreover, in light of the fact that there is 10of Appeals’ decision not to publ ish its opinion, and the fact that the defect was known

at the time of installation, we do not find Letz persuasive. Furthermore, in ou r judgment, it is unlikely that the Missouri Supreme Court will review the propriety of a failure t o recall claim under Missouri law where it was not an issue in the initia l appeal. -16- no recognized duty to recall, we hold such a duty cannot arise as a result of Black & Decker’s v oluntary undertaking to recall certain of its miter saws. Furthermore , Missouri caselaw on failure to warn suggests that, in order for appellants to pursue a negligent recall claim, the defect in the miter saw would have had to exist at the time the product left Black & Decker’s control and entered the stream of commerce. See e.g. , Mo. R ev. Stat. § 537.760 (providing that product defective must have existe d when the product was sold); Welsh v. Bowling Elec. Mach., Inc. , 875 S. W.2d 569, 572 (Mo. Ct. Ap p. 1994) (holding that, in failure to warn cases, the alleged defect mus t have existed when it left the defendant’s control and entered the stream of commerce). Thu s, with the possible except of appellants’ theory of negligent design, appellants ’ gener al reliance on Missouri common law fails. Moreover, because there was n o CPS Amandate that Black & Decker recall the Model 1703, Type 1 miter saw , appel lants’ attempt to establish a duty to recall under the CPSA also fails. But cf

. Santiago v. Group Brasil, Inc. , 83 0 F.2d 413, 415 (1 Cir. 1987) (distinguishing Smith st in part because the plaintiffs alleged that the defendant failed to comply a dequately with a CPSA Commission recall order ).
Accordingly, we affirm the order of the district court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.