KEVIN LOU [Note 1] & others [Note 2] vs. OTIS ELEVATOR COMPANY.

GREEN, J. In October 1998, while traveling with his parents to visit his grandparents in the People's Republic of China, then-four year old Kevin Lou (a resident of Worcester County) was injured after catching his hand between the skirt panel and treads of an escalator in the Changzhou Tianyuan Department Store. The escalator was manufactured and sold by China Tianjin Otis Elevator Company, Ltd. (CTOEC), under license from the defendant, Otis Elevator Company (Otis). Kevin and his parents sought damages against Otis in a suit filed in the Superior Court, and after a lengthy trial, a jury returned a verdict awarding $3.35 million in damages; judgment entered thereafter in that amount, plus prejudgment interest in the amount of $3.3 million. [Note 3] Among the issues raised by the defendant on appeal is a question of first impression: does the Restatement (Third) of Torts: Products Liability § 14 (1998) (Third Restatement), and, specifically, comment d thereto, reflect the law of Massachusetts? [Note 4] We conclude that the trial judge correctly instructed the jury in accordance with § 14, comment d, and discern no merit in the defendant's separate claim that the judge erred in awarding prejudgment interest. We accordingly affirm the judgment.

Background. We summarize the facts the jury could have found.

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While descending an Otis E510 escalator with his grandmother in the Changzhou Tianyuan Department Store, Kevin's hand became trapped between the skirt panel and step tread of the escalator. As a result, Kevin was dragged a considerable distance down the escalator; his hand was almost completely severed at the mid- palm, and he has suffered a permanent thirty-one percent whole-body impairment. [Note 5]

Otis is incorporated in New Jersey and has its principal place of business in Farmington, Connecticut. CTOEC is a joint venture formed in 1984 among Otis, Tianjin Elevator Company, and China International Trust & Investment Corporation, directed toward the manufacture in the People's Republic of China of elevators and escalators pursuant to Otis design standards and bearing the Otis trademark. Shortly after forming the joint venture, Otis entered into a trademark license agreement (trademark agreement) and a technical cooperation agreement (technical agreement) with CTOEC. Under the trademark agreement, Otis licensed to CTOEC the right to use the Otis trademark within China. Under the technical agreement, Otis agreed to furnish to CTOEC "Otis' Know-How," defined as: "(a) engineering and product design drawings, data, and information; (b) process, production, installation, maintenance, testing, and inspection methods; (c) quality standards; (d) factory and general management methods; and (e) any other data, documents, and information owned and furnished" to CTOEC by Otis. A "Technical Annex" appended to the technical agreement specified a broad range of technical and managerial support that Otis would provide to CTOEC in support of CTOEC's manufacture of elevators and escalators bearing the Otis trademark, including renovation of the Tianjin factory facility, modernization of factory production and management methods, and detailed technical specifications for products manufactured under the agreement. By amendment to the technical agreement in 1994, Otis added the E510 escalator to the list of product technology it agreed to furnish to CTOEC under that agreement. Key components specified for the E510 escalator were manufactured and supplied by Otis GmbH, a wholly-owned subsidiary of Otis incorporated in Germany. Otis

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assigned management personnel to the CTOEC factory, including individuals responsible for management of escalator production. [Note 6] The escalator that caused Kevin's injuries was manufactured by CTOEC, pursuant to the trademark agreement and the technical agreement. It prominently bore the Otis trademark, embossed in metal on the comb plates at the top and bottom of the escalator, and the escalator bore no other trade name or mark.

Discussion. 1. Waiver. Before addressing the merits of the defendant's two claims of error, we must consider the plaintiffs' contention that Otis waived them both. Under Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974), "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The plaintiffs direct us to the fact that, during the charge conference, Otis submitted proposed instructions which included instruction under comment d to § 14 of the Third Restatement. On the subject of prejudgment interest, the plaintiffs observe that Otis did not object to the substance of the judge's instruction on compensatory damages, and raised no claim concerning prejudgment interest until filing its motion to amend the judgment.

As we have observed, the trial was lengthy: it began on November 5, 2007, and concluded on December 20 of that year. At the close of the plaintiffs' evidence, Otis moved for a directed verdict, based on its contention that Otis (which did not manufacture the escalator in question) could not be held liable without evidence that Otis was a seller at any point in the distribution chain; according to Otis, the fact that it was not a seller necessarily excluded it from the "apparent manufacturer doctrine" described in § 400 of the Restatement (Second) of Torts (1965) (Second Restatement). [Note 7]

The charge conference involved several lengthy discussions

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among the trial judge and the parties, over the span of one week, concerning how the jury should be instructed. Both parties initially asked the judge to instruct the jury under Chinese law, but presented sharply different versions of how Chinese law on liability should be described. The trial judge concluded that he was unable to determine applicable Chinese law with confidence, and informed the parties that he would instruct the jury under Massachusetts law. See Restatement (Second) of Conflicts of Law § 6(g) (1971). [Note 8] The judge then invited the parties to submit proposed instructions under Massachusetts law. The proposed instructions submitted by Otis included instruction on the plaintiffs' claim that it could be held liable as an "apparent manufacturer." The instruction was principally directed to the law on parent and subsidiary corporations and the requisites necessary to pierce the corporate veil, but also included language from a portion of the Third Restatement § 14 comment d.

At the continuation of the charge conference thereafter, Otis expressed its view that application of the apparent manufacturer doctrine to it, on the facts of this case, would constitute an unwarranted piercing of the separate corporate identities between it and CTOEC, and sought to excise from the jury charge any instruction suggesting that Otis could be held liable as an apparent manufacturer. The plaintiffs disagreed. The trial judge attempted to reconcile the parties' disagreement, acknowledged their respective positions, and stated his intention to instruct the jury on the apparent manufacturer doctrine. The judge advised the parties that their objections were noted, and that his instructions would incorporate portions of the language submitted by each of the parties. At that point, Otis indicated that, to the extent that the judge had decided, despite Otis's objection, to instruct the jury that Otis could be found liable as an apparent manufacturer, the wording that the judge intended to employ in his instruction on § 14 comment d was acceptable.

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Following the charge to the jury, [Note 9] but before the jury retired to deliberate, the judge convened a conference for the purpose of placing the parties' objections formally on the record. Otis renewed its objection to the judge's instruction under the apparent manufacturer doctrine.

We are satisfied that the repeated objections by Otis to instruction under comment d to § 14, and particularly its formal repetition of that objection at the conference convened by the judge for the specific purpose of recording the parties' respective objections to the charge, were sufficient to satisfy the purpose of Mass.R.Civ.P. 51, and to preserve its rights on appeal. [Note 10] See Rotkiewicz v. Sadowsky, 431 Mass. 748, 751-752 (2000).

There is likewise no merit to the plaintiffs' contention that Otis waived any objection to the assessment of prejudgment

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interest by agreeing that the case should be submitted to the jury under Massachusetts law on damages. During the charge conference, the parties appear to have agreed that the laws of China and Massachusetts are congruent on the issue of the measure of damages. Without waiving its contention that Chinese law should apply, Otis then agreed that it would not object to the proposed instruction on damages, which was based on Massachusetts law, and that it could be given to the jury "as though" it were Chinese law. [Note 11] As expressed to the jury, the instruction on damages made no reference to either jurisdiction. Though Otis did not raise any question concerning the availability of prejudgment interest until after the jury returned their verdict, there was no reason to address the question during the charge conference as the issue did not bear on the jury function in determining compensatory damages. [Note 12] A postjudgment motion in fact appears to be a rather typical procedural vehicle to raise a question concerning the choice of law on an issue of prejudgment interest. See, e.g., Salvi v. Suffolk County Sheriff's Dept., 67 Mass. App. Ct. 596, 598 (2006); DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. 759, 771 (2007). See also Jasty v. Wright Med. Technology, Inc., 528 F.3d 28, 39 n.15 (1st Cir. 2008) (rejecting argument that assertion of prejudgment interest

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claim for the first time in postjudgment motion waived the claim). [Note 13] Though (as we shall discuss infra) we conclude that Massachusetts law should govern the issue of prejudgment interest, we conclude that Otis has adequately preserved its right to consideration of the issue on its merits.

2. Apparent manufacturer doctrine. Otis does not dispute that Massachusetts recognizes the "apparent manufacturer doctrine," as originally set forth under the Second Restatement § 400. [Note 14] See, e.g., Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 596-597 (1915) [Note 15]; Fahey v. Rockwell Graphic Sys., Inc., 20 Mass. App. Ct. 642, 650 (1985). Instead, Otis contends that the instruction administered by the trial judge in the present case represents an unwarranted extension of the doctrine, inconsistent with Massachusetts law.

Section 14 of the Third Restatement is a direct lineal descendant of the rule expressed in Second Restatement § 400. See Third Restatement § 14 comment a. By its terms, § 400 did not transparently limit its scope to parties in the distribution or supply chain; instead of using such terms as "sells" or "supplies," it applies to persons or entities that "put out" a product. Comment

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a to § 400 nonetheless appears to confine its scope to sellers in the distribution chain, stating that "[t]he words 'one who puts out a chattel' include anyone who supplies it to others for their own use or for the use of third persons, either by sale or lease or by gift or loan." However, comment d to § 400 supports a broader reading, insofar as it explains that an "actor puts out a chattel as his own product in two types of cases. The first is where the actor appears to be the manufacturer of the chattel. The second is where the chattel appears to have been made particularly for the actor." Comment d goes on to explain that "one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark. When such identification is referred to on the label as an indication of the quality or wholesomeness of the chattel, there is an added emphasis that the user can rely upon the reputation of the person so identified."

As observed by the Reporters' Note to § 14 of the Third Restatement, by the time of the Third Restatement a clear majority of jurisdictions (including Massachusetts) had recognized the rule stated in § 400 of the Second Restatement. Included among the cases developed under § 400 were many that considered application of the apparent manufacturer doctrine to nonsellers who were trademark licensors. Those cases, in turn, fall roughly into three categories. In one category are cases holding that a nonseller trademark licensor could be held liable as an apparent manufacturer if it exercised substantial control over the production of the product. See, e.g., Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 94 (1990); Connelly v. Uniroyal, Inc., 75 Ill. 2d 393, 410-411 (1979); Kasel v. Remington Arms Co., 24 Cal. App. 3d 711, 723-725 (1972). The second category includes cases holding that a nonseller trademark licensor may be held liable as an apparent manufacturer, despite having had little or no participation in the design or manufacture of a product, by reason of the likelihood that buyers or users of the product would rely on the trademark as an assurance of the product's quality. See, e.g., Carter v. Joseph Bancroft & Sons Co., 360 F. Supp. 1103, 1107 (E.D. Pa. 1973); Brandimarti v. Caterpillar Tractor Co., 364 Pa. Super. 26, 35-37 (1987). [Note 16] The third category stands in contrast to the second: cases which declined to hold

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trademark licensors liable under the apparent manufacturer doctrine in circumstances in which they had little or no involvement in the design or manufacture of the product. See, e.g., Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 78-79 (1990); Hebel v. Sherman Equip., 92 Ill. 2d 368 (1982); Harrison v. B.F. Goodrich Co., 881 So. 2d 288, 291-292 (Miss. Ct. App. 2004); Harrison v. ITT Corp., 198 A.D.2d 50 (N.Y. 1993); Firestone Steel Prods. Co. v. Barajas, 927 S.W. 2d 608, 616 (Tex. 1996).

Against that backdrop, the defendant's contention that § 400 of the Second Restatement limited application of the apparent manufacturer doctrine to sellers of a product seems at odds both with comment d to that section and with a substantial body of law developed prior to the issuance of the Third Restatement. Indeed, contrary to the defendant's contention that comment d to § 14 of the Third Restatement represents an unwarranted extension of the apparent manufacturer doctrine, comment d appears instead to have developed in response to those cases which held, under § 400 of the Second Restatement, that the doctrine could be applied to mere trademark licensors who had little or no involvement in product design or manufacture; it appears designed to resolve the inconsistency between the second and third categories described in the preceding paragraph, precluding application of the doctrine to those cases in which the licensor had limited or no involvement in the design or manufacture of the product, while leaving intact its application to cases in which the licensor had substantial participation in the design or manufacture.

The fact that comment d to § 14 of the Third Restatement represents a limitation, rather than an expansion, of the apparent manufacturer doctrine under § 400 does not, however, conclude our inquiry. "To the contrary, while this court often considers the various Restatements of the Law as prestigious sources of

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potentially persuasive authority, we have never taken the position that this court should abdicate to the views of the American Law Institute as set forth in its various Restatements." Bongaards v. Millen, 440 Mass. 10, 29 (2003). Though as we have observed Massachusetts cases have previously applied the apparent manufacturer doctrine, no reported Massachusetts case has previously applied the doctrine to a person or entity outside the distribution chain (i.e., a nonseller). We are, however, persuaded by the reasoning in the cases from other jurisdictions which have done so. See Back v. Wickes Corp., 375 Mass. 633, 640 (1978) ("[W]e find the strict liability cases of other jurisdictions to be a useful supplement to our own warranty case law"). For the reasons that follow, we accordingly conclude that there was no error in the instruction by the trial judge in the present case that a nonseller trademark licensor who participates substantially in the design, manufacture, or distribution of the licensee's products may be held liable under Massachusetts law as an apparent manufacturer.

We consider Torres v. Goodyear Tire & Rubber Co., supra, particularly instructive. In Torres, the plaintiffs were injured in an accident allegedly caused by defects in a tire manufactured in Great Britain by a wholly-owned subsidiary of Goodyear Tire and Rubber Co., Inc. (Goodyear). Goodyear's ability to control the subsidiary's production of Goodyear tires was "pervasive," 163 Ariz. at 91, and the facts supported a finding that "Goodyear participated significantly in the design, manufacture, promotion, and sale that resulted in the product reaching the consumer." Id. at 94. After reviewing the various ways in which Goodyear had participated in the development, marketing, and distribution of Goodyear tires, and the various ways in which Goodyear benefited from that enterprise, the court rejected Goodyear's argument that it should not be held liable because its participation in the design, manufacture, and sale of Goodyear tires was accomplished entirely through wholly-owned subsidiaries:

"The parent company owns the subsidiaries, designates their directors and officers, allocates the capital needed and used by the subsidiaries, and enjoys the profits made by them. Certainly the brain that so competently and

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thoroughly directs the entire enterprise must be liable for the acts of its appendages."

Id. at 94. We agree. We also reject the defendant's contention that application of the apparent manufacturer doctrine in these circumstances ignores the separate corporate identities of the various entities involved in the present case. [Note 17] To the contrary, a trademark licensor who is held liable by virtue of its substantial participation in design, manufacture, or distribution of a product is held liable as a result of its own role in placing a dangerous product into the stream of commerce. See generally Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355-356 (1983) (explaining theory of strict liability for breach of warranty).

We likewise reject the defendant's contention that imposing product liability on nonsellers violates the statutory limitations on liability under Article 2 of the Uniform Commercial Code as adopted in Massachusetts. See G. L. c. 106, § 2-103, inserted by St. 1957, c. 765, § 1 (defining "seller" as one "who sells or contracts to sell" goods). Massachusetts has long rejected contractual privity as an essential element for recovery in a case seeking recovery for damages suffered by reason of a defective product. See Back v. Wickes Corp., supra at 639-640. Under G. L. c. 106, § 2-318, liability may be imposed not merely on sellers but on manufacturers. We see no reason to construe the term "manufacturer" as used in § 2-318 in such a manner as to exclude entities which, by reason of substantial participation in design or manufacture of a product, are recognized as apparent manufacturers under the Restatement, simply by reason of the fact that they have not also participated directly as sellers in the chain of distribution.

The two cases on which the defendant places primary reliance in urging a contrary conclusion are distinguishable. In Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 68 (1990), the Connecticut Supreme Court refused to apply the

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apparent manufacturer doctrine to General Motors Corporation in circumstances in which its "role as a trademark licensor was unusually limited." In reaching its conclusion, the court went to considerable lengths to distinguish cases in which a trademark licensor had substantial involvement in the design, manufacture, or other activities which placed an item in the stream of commerce. See id. at 79-82. In Iragorri v. United Technologies Corp., 285 F. Supp. 2d 230, 239-240 (D. Conn. 2003), vacated, in part, on other grounds by 314 F. Supp. 2d 110 (D. Conn. 2004), the Federal District Court for the District of Connecticut, relying on Burkert, supra, declined to impose liability on Otis under the apparent manufacturer doctrine. However, in opposing summary judgment, the plaintiff in Iragorri failed to submit any evidence that Otis had exerted control over the subsidiary that manufactured the elevator that caused the plaintiff's injuries; the court observed that the plaintiff offered no evidence, beyond the placement of the Otis name and trademark on the elevator, that "Otis was engaged in the actual manufacture, distribution, or marketing of the elevators, or that the Supply, Technical Assistance, and Licensing Agreements gave Otis a role in such matters." Id. at 237. [Note 18] The evidence in the present case, in contrast to Burkert and Iragorri, supra, included ample evidence on which the jury could find that Otis participated substantially in the design or manufacture of the escalator. [Note 19]

3. Prejudgment interest. Under Massachusetts law "an award of prejudgment interest is a substantive remedy." Militello v. Ann & Grace, Inc., 411 Mass. 22, 26 n.4 (1991). Massachusetts generally follows a functional approach to resolving choice of law questions on substantive matters, eschewing reliance on any particular choice-of-law doctrine. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631 (1985). For examples of the functional approach applied to particular areas of law, see, e.g., Pevoski v. Pevoski, 371 Mass. 358, 359- 361 (1976) (torts); Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535,

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540-542 (1979) (contracts); Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 646-650 (1994) (statute of repose); New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. 658, 664 (1995) (statute of limitations). Though we do not tie our analysis to any single doctrine, examination of our cases reveals that we often find useful guidance in the Restatement (Second) of Conflict of Laws.

As a first step in our analysis, we consider whether the choice between the laws of the involved jurisdictions will affect the legal result. See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 332 n.7 (1983). In the present case the conflict appears to be clear: pursuant to G. L. c. 231, § 6B, Massachusetts directs the addition of prejudgment interest at a statutorily prescribed annual rate of twelve percent to an award of damages in a tort action, while Chinese law includes no provision for an award of prejudgment interest. [Note 20]

We accordingly look to Restatement (Second) of Conflict of Laws § 171 comment c, [Note 21] which in turn directs us to § 145. [Note 22]

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"Section 145 of the Restatement provides the general principle 'applicable to all torts and to all issues in tort,' . . . and § 146 of the Restatement [Note 23] provides a principle applicable in issues concerning causes of action involving personal injury" (footnote omitted). Cosme v. Whitin Mach. Works, Inc., supra at 646- 647. "Each section requires that the relevant issue be examined in accordance with the principles stated in § 6 of the Restatement." [Note 24] Dasha v. Adelman, 45 Mass. App. Ct. 418, 423 (1998).

We begin by examining the contacts that China and Massachusetts have with the parties and the occurrence giving rise to the present action. China is where the injury occurred and where the escalator was manufactured and put into use. [Note 25] Massachusetts is where the plaintiffs are domiciled. The defendant

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has its principal place of business in Connecticut, and does business in both Massachusetts and China. [Note 26]

"In accordance with § 146 of the Restatement, the law of [China] (the [place] where the injury occurred) applies, unless Massachusetts has a more significant relationship to the occurrence and the parties under the principles stated in § 6. We, therefore, consider the factors listed in § 6 to decide if Massachusetts has a more significant relationship." Dasha v. Adelman, supra at 424. In so doing, we are mindful of the admonition in the applicable Restatement (Second) of Conflict of Laws sections, and particularly in § 145, to evaluate the prescribed factors according to their relative importance to the particular issue involved. [Note 27]

The purpose of prejudgment interest under G. L. c. 231, § 6B, is "to compensate for the delay in the plaintiff's obtaining his money." Bernier v. Boston Edison Co., 380 Mass. 372, 388 (1980). [Note 28] Accordingly, the policy and purpose underlying the issue of prejudgment interest is one of compensation or loss distribution, rather than conduct regulation. [Note 29] See generally

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Symeonides, The American Choice of Law Revolution: Past, Present and Future 123-140 (Martinus Nijhoff 2006). Though as we have observed Chinese law does not provide for an award of prejudgment interest, that posture appears to arise from a difference in the way it regards the nature of the relationship between the parties as of the time of suit, rather than a difference in its interest in, or concern with, seeing that victims of injuries caused by defective products are fully compensated for their losses. [Note 30] According to the affidavit submitted on behalf of the defendant by Jacques deLisle, until an action in tort reaches judgment, the civil relationship between a plaintiff and a defendant remains "indeterminate and undetermined"; the defendant's liability, and consequent obligation to the plaintiff, accordingly does not arise until the entry of judgment, and the plaintiff's legal entitlement to damages correspondingly does not arise until that point. It is of course conceivable that the failure to recognize a tort plaintiff's entitlement to damages until the entry of judgment reflects a policy choice. But in the present case the defendant's liability was determined under Massachusetts law, so that any policy judgment inherent in the Chinese conception of the legal relationship between the defendant and the victim is not implicated. It accordingly is appropriate (consistent with Massachusetts law) to recognize the defendant's obligation to pay damages, and the plaintiffs' corresponding entitlement to receive them, as having accrued at the time of the complaint.

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Weighing the respective interests of China and Massachusetts on the issue of prejudgment interest, we conclude that Massachusetts has the stronger interest, and that the trial judge correctly awarded interest on the judgment in accordance with G. L. c. 231, § 6B.

Conclusion. For the foregoing reasons, we conclude that the judge correctly instructed the jury on Massachusetts law in accordance with Restatement (Third) of Torts: Products Liability § 14 comment d, and that he correctly applied Massachusetts law to the issue of the plaintiffs' entitlement to prejudgment interest on the jury award.

Judgment affirmed.