State Farm Fire and Casualty Company as subrogee of Peter and Susan Fox, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1925

State Farm Fire and Casualty Company
as subrogee of Peter and Susan Fox,
Respondent,

vs.

Homewerks Worldwide, LLC,
Appellant.

Filed August 14, 2017
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CV-14-20844

Timothy S. Poeschl, Hanson Lulic & Krall, LLC, Minneapolis, Minnesota (for respondent)

Cody C. Krieg, Nicole R. Weinand, Law O ffices of Thomas P. Stilp, Golden Valley,
Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this appeal from a judgment in favor of respondent following a jury trial on its
strict-products-liability claims, appellant asserts that the district court erred by denying its
motion for judgment as a matter of law or a new trial on the grounds that (1) appellant

2
substantially complied with the procedure for obtaining dismissal as a passive seller under
Minn. Stat. § 544.41 (2016), (2) the district court erred in not granting respondent’s motion
to voluntarily dismiss its claims before trial, (3) the evidence was insufficient to prove the
sale and defect of the product, (4) resp ondent’s expert testim ony lacked foundational
reliability, (5) the district cour t abused its discretion in ques tioning respondent’s expert
witness, and (6) attorney misconduct deprived appellant of a fair trial. We affirm.
FACTS
In August 2013, a brass va lve attached to a washi ng machine failed, causing
property damage in a house owned by Susan and Peter Fox. In December 2014, the Foxes’
insurer, respondent State Farm Fire & Casualty Co. (State Farm), initiated this strict-
products-liability action against appellant Homewerks Worldwid e LLC (Homewerks),
whose name was branded into the valve at i ssue. State Farm’s complaint alleged that
Homewerks was both the manufacturer and the di stributor of the valve. In its answer,
Homewerks denied having manufactured the va lve and identified the party it believed to
be the manufacturer.
In May 2015, Homewerks’s co unsel asked State Farm’s counsel to agree to extend
certain deadlines, stating, “I need permi ssion to add [the alleged manufacturer] as a
defendant in this case, and n eed to certify that we are not the manufacturer.” The parties
filed a stipulation to amend th e scheduling order to extend so me deadlines so the alleged
manufacturer could be added as a defendant, and the district court amended the scheduling
order pursuant to the stipulation. The alleged manufacturer was never added as a party.

3
On February 29, 2016, State Farm moved to preclude Homewerks from arguing that
it was not the manufacturer or, in the alternative, to amend th e case caption to name the
alleged manufacturer as an additional defendant. The district court denied the motions.
On March 11, Homewerks filed an affi davit pursuant to Minn. Stat. § 544.41
certifying that it was not the manufacturer of the product and identifying the company it
believed to be the manufacturer.
On March 14, in a pretrial hearing the day before trial was scheduled to begin, State
Farm moved to voluntarily dismiss its claims . The district court questioned whether the
motion was based on a misundersta nding of the law, as State Farm’s counsel appeared to
mistakenly believe that Homewerks could not be held liable in strict liability if it was not
the manufacturer and did not cause or know of the defect. The district court engaged in
extensive discussion with both parties regard ing the law and explained why it questioned
whether both parties were misinterpreting the la w. The district court asked the parties to
submit briefs on the issues discussed at the pretrial hearing.
On March 15, State Farm filed a brief arguing that it had a valid claim against
Homewerks and asking to proceed to trial. The district court interpreted this brief as
effectively withdrawing the motion for voluntary dismissal.
A jury trial was held on Ma rch 16 to 18. The jury retu rned a special verdict with
the following findings: (1) the valve was in a defective condition unreasonably dangerous
to the ordinary user or consumer’s property; (2) the defective condition was a direct cause
of the flooding in August 2013; (3) Homewerks sold the valve; (4) the defective condition
existed at the time the valve left the contro l of Homewerks; (5) the installer was not

4
negligent in the installation of the valve; (6) the manufacturer was 15% at fault for the
flooding and Homewerks was 85% at fault; and (7) the amount of money that would fairly
and adequately compensate State Farm was $44,479.90. Judgment was entered in favor of
State Farm against Homewerks in the amount of $44,479.90.
Homewerks moved for judgment as a matte r of law or a new trial, arguing that
(1) the district court should have granted State Farm’s motion to voluntarily dismiss its
claims, (2) there was insufficient evidence to establish that Homewerks sold the product or
that the product was defective, (3) the jury should have been instructed about the seller’s-
exception statute because Homewerks subs tantially complied with the statute’s
requirements, (4) Homewerks’s expert te stimony lacked foundational reliability and
should have been excluded, and (5) Home werks was deprived of a fair trial by
“irregularities of the proceedings” and “pa ssion and prejudice of the Jury” resulting from
judicial bias and attorney misconduct. The district court rejected all of Homewerks’s
arguments and denied the motion.
Homewerks appeals.
D E C I S I O N
I. Homewerks is not entitled to dismi ssal under the seller’s-exception statute.
Homewerks argues that the district court erred in denying its motion for judgment
as a matter of law based on the seller’s-exception statute. We review the denial of a motion
for judgment as a matter of law de novo, viewing the evidence in the light most favorable
to the nonmoving party and affirming if the verdict can be sustained on any reasonable
theory of th e evidence. Pouliot v. Fitzsimmons , 582 N.W.2d 221, 224 (Minn. 1998).

5
Homewerks asserts that the district court erred by determining that Homewerks was not
entitled to dismissal 1 of the strict-products-liability claim against it under Minn. Stat.
§ 544.41 because Homewerks is not the manufacturer of the product. Homewerks argues
that, although it did not file an affidavit ce rtifying nonmanufacture with the court upon
answering, it “substantially complied” with Minn. Stat. § 544.41 by identifying the alleged
manufacturer in its answer dated January 15, 2015, and by serving State Farm with an
affidavit of nonmanufacture on May 20, 2015.
Common-law principles of strict products liability a llow a plaintiff injured by a
defective product to sue not only the manufacturer, but also a “faultless” commercial seller
or distributor of the product, on a st rict-products-liability theory in tort. In re Shigellosis
Litigation, 647 N.W.2d 1, 5-6 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).
Under the common law, a seller or distributor may be held jointly and severally liable for
damages caused by a product defect, even if the seller or distributor did not cause or know
of the defect. Id. at 6.
The seller’s-exception statute, Minn. Stat. § 544.41, sets forth a procedure allowing
a seller or distributor to seek dismissal of a strict-products- liability claim against it if the
plaintiff can recover from the manufacturer instead. Id. First, the defendant “shall upon
answering or otherwise pleading file an affi davit certifying the co rrect identity of the
manufacturer of the product.” Minn. Stat. § 54 4.41, subd. 1. Then, “[o]nce the plaintiff

1 Homewerks never moved for dismissal under s ection 544.41. Instead, it asks this court
to reverse the district court’s “determination” in its denial of Homewerks’s posttrial motion
for judgment as a matter of law that Homewerks did not comply with the statute and was
not entitled to dismissal.

6
has filed a complaint against a manufacturer and the manufacturer has or is required to
have answered . . . , the court shall order the dismissal” of the strict-products-liability claim
against the certifying defendant. Id., subd. 2. “Due diligence shall be exercised by the
certifying defendant in providing the plaintiff with the correct identity of the manufacturer
and due diligence shall be exer cised by the plaintiff in filing a law suit and obtaining
jurisdiction over the manufacturer.” Id. At any time after dismissal, the plaintiff may move
to vacate the order and reinstate the certifying defendant if it can show that it cannot recover
against the manufacturer for certain reasons such as a statute of limitations or the
manufacturer’s insolvency. Id.
Homewerks argues that State Farm failed to exercise due d iligence to sue the
manufacturer as required by subdivision 2. But Homewerks did not follow the necessary
steps to initiate the statutory procedures and trigger any obligation on State Farm’s part to
act diligently to sue the manuf acturer. Homewerks did not “u pon answering . . . file an
affidavit certifying the correct identity of the manufacturer.” Id., subd. 1. Because
Homewerks never initiated section 544.41 procedures with the court, a duty on State Farm
to sue the manufacturer did not attach.
Homewerks argues, however, that it “substa ntially complied” with the statute by
identifying the manufacturer in its answer, se rving an affidavit of nonmanufacture, and
filing the affidavit shortly before trial. The language in section 544.41, however, is clear—
it requires the defendant to file the affi davit with the court upon answering. Id. While
substantial compliance may suffice when statutory language is unclear, it does not suffice

7
when a statute identifies an unambiguous prerequisite to an action. Safety Signs, L.L.C. v.
Niles-Wiese Constr. Co., 840 N.W.2d 34, 41 (Minn. 2013).
Moreover, Homewerks not only failed to timely file the affidavit of
nonmanufacture, it never asked the district court to dismiss the claim under the seller’s-
exception statute. Instead, Homewerks asked to proceed through tria l, requested a jury
instruction on the seller’s-excepti on statute, and, in a posttria l motion, asked the district
court to overturn the verdict based on the statute. Homewerks’s approach is not authorized
by the seller’s-exception statute. The dist rict court did not e rr in concluding that
Homewerks was not entitled to dismissal or judgment as a matter of law based on the
seller’s-exception statute.
II. The district court did not abuse its di scretion by not granting State Farm’s
motion for voluntary dismissal.
Homewerks argues that the district court abused its discretion when it did not grant
State Farm’s motion to voluntarily dismiss its claims the day be fore trial. Because of the
procedural posture and the fact that the parties did not stipulate to dismissal, Minn. R. Civ.
P. 41.01(b) governs. That rule states that “an action shall not be dismissed at the plaintiff’s
instance except upon order of the court and upo n such terms and cond itions as the court
deems proper.” Minn. R. Civ. P. 41.01(b). In determining whether to grant a plaintiff’s
motion to dismiss under this rule, district cour ts consider: (1) the defendant’s effort and
the expense of trial preparation, (2) the plai ntiff’s excessive delay and lack of diligence,
(3) insufficient explanation of the plaintiff’s need for dismissal, and (4) whether the
defendant moved for summary judgment. Altimus v. Hyundai Motor Co., 578 N.W.2d 409,

8
411 (Minn. App. 1998). District courts have “wide discretion” in determining whether to
grant a plaintiff’s motion for dismissal. Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 716
N.W.2d 366, 376 (Minn. App. 2006), aff’d, 763 N.W.2d 313 (Minn. 2007). We will not
reverse a decision on a rule 41.01(b) motion unless the district court abused its discretion.
Altimus, 578 N.W.2d at 411.
Homewerks argues that it was improper for the district court to try to convince State
Farm’s counsel that she had a viable claim against Homewerks, rather than allowing her to
dismiss the claims based on her mistaken belie f that her client could not prevail. The
district court explained why it questioned whether both par ties were misinterpreting the
law and asked counsel to submit additional brie fing on those issues. State Farm later
submitted a brief arguing that it did have a viable claim, and the case proceeded to trial.
Given the late date on which State Farm brought the rule 41.01(b) motion, the lack
of a sufficient explanation for the need for dismissal, and State Farm’s effective withdrawal
of its motion, we cannot conclude that the district court abused its discretion in refusing to
grant voluntary dismissal. See Minn. R. Civ. P. 41.01(b); Hoyt Props., 716 N.W.2d at 376.
III. The record contains su fficient evidence to support the jury’s findings.
We will affirm a district court’s denial of a postverdict moti on for judgment as a
matter of law if the record contains “any competent evidence reasonably tending to sustain
the verdict.” Pouliot, 582 N.W.2d at 224 (q uotation omitted). We view the evidence in
the light most favorable to the prevailing party and will not set aside the verdict if it can be
sustained on any reasonable theory of the evidence. Id.

9
A. The record contains sufficient ev idence to prove that the valve was
Homewerks’s product and had been in Homewerks’s control.
Homewerks argues that the record contai ns insufficient eviden ce to prove that
Homewerks sold the valve. According to Homewerks, State Farm was required to present
evidence that Homewerks sold the product, that a particular buyer bought the product, that
title passed, and that a particular price was paid. As authority for this proposition,
Homewerks cites cases involving the sale of goods under the UCC, which defines “sale”
as “the passing of title from the seller to the buyer for a price.” See Minn. Stat. § 336.2-
106(1) (2016). We are not aware of any au thority requiring that a product satisfy the
UCC’s definition of sale or a ppellant’s list of elements in order to prove a defendant’s
liability in a strict-products-liability case.
Instead, to recover on a theory of strict pr oducts liability, the plaintiff must establish
three elements: “(1) that the defendant’s product was in a defective condition unreasonably
dangerous for its intended use, (2) that the defect existe d when the product left the
defendant’s control, and (3) that the defe ct was the proximate cause of the injury
sustained.” W. Sur. & Cas. Co. v. Gen. Elec. Co., 433 N.W.2d 444, 447 (Minn. App. 1988)
(quotation omitted), review denied (Minn. Feb. 22, 1989). The special-verdict form
covered all three of these elements, asking (1) whether the valve was in a defective
condition unreasonably dangerous to the ordinary user or consumer’s property, (2) whether
the defective condition existed at the time the valve left the control of Homewerks, and
(3) whether the defective condition was a direct cause of the damage. The jury responded

10
in the affirmative to all three of these questions, thus finding that the plaintiff proved the
three elements of the strict-products-liability claim.
The special-verdict form also asked, “Did Homewe rks Worldwide LLC sell the
boiler drain valve,” to which th e jury also responded, “Yes.” But whether the defendant
“sold” the product in question is not one of the three elements that Minnesota cases identify
as the elements of a strict-products-liability claim. See id. With respect to the defendant’s
involvement, it is enough that the plaintiff prove that the product is “the defendant’s
product” and had been in “the defendant’s control” at some point, in accordance with the
elements of the claim. See id. Therefore, we need not address whether there is sufficient
evidence to support the jury’s finding that Homewerks “sold” the product, as that finding
is of no legal significance to the ultimate finding of liability on the claim.
Instead, we evaluate the suffi ciency of the evidence su pporting the jury’s finding
that the valve was Homewerks’s product and had been in Homewerks’s control. To
establish these elements, State Farm offered photographs showing that Homewerks’s name
is printed on the valve. Viewing the evidence in the light most favorable to the verdict, we
conclude that the record contains sufficien t evidence reasonably tending to sustain the
verdict. See Pouliot, 582 N.W.2d at 224.
B. The record contains sufficient ev idence to prove that the valve was
defective.
Homewerks argues that the record contains insufficient evidence to prove that the
valve was defective because State Farm did not present evidence of the specific percentage
of zinc in the valve, which could have been determined through metallurgical testing.

11
State Farm’s expert witness testified that he did not believe that metallurgical testing
was necessary “[b]ecause you wo n’t get and you cannot get th at failure, okay, without a
susceptible material.” He testified about his qualifications and that he had inspected “well
into the hundreds” of this type of valve in his career. He testified that it is “well known in
the industry” that the stress corrosion cracking that caused the failu re in this case is
common in brass components that are made with susceptible material. He further testified
that it is “pretty easy to diagnose” the problem because the failure in this case “has all the
characteristics needed” to determine that it was caused by a susceptible valve material. We
conclude that there is suffici ent evidence to sustain the jury’s find ing that the valve was
defective. See id.
IV. State Farm’s expert testimony di d not lack foundational reliability.
Homewerks argues that the district cour t abused its discretion in admitting the
expert testimony because it lack ed “foundational reliability.” Echoing its sufficiency-of-
the-evidence argument, Homewerks contends that the expert testimony was speculative
and unreliable because the expert did not know how much zinc was in the valve. Expert
testimony must “assist the trier of fact to understand the evidence or to determine a fact in
issue” and “must have foundationa l reliability.” Minn. R. Evid . 702. An expert opinion
must be based on “readily ascertainable facts” and not mere specula tion or conjecture.
Whitney v. Buttrick , 376 N.W.2d 274, 277 (Minn. App. 1985), review denied (Minn.
Jan. 23, 1986). Evidentiary rulings concerni ng foundation are within the district court’s
discretion and will be reversed only “when that discretion ha s been clearly abused.”
Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).

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Although the expert did not know the pr ecise amount of zinc in the valve, his
testimony was not based on mere speculation. The expert testified that the kind of failure
that occurred “cannot” happen without a suscep tible material. He cited his experience
inspecting “well into the hundreds” of similar valves and working with the “common”
problem of stress corrosion cracking in brass components. This testimony reflects a basis
in readily ascertainable facts. The district court therefore did not abuse its discretion in
admitting the expert testimony and concluding that it had sufficient foundational reliability.
See Id.
V. The district court did not abuse its discretion in questioning State Farm’s
expert witness.
Homewerks argues that it was deprived of a fair trial becaus e the district court
questioned State Farm’s expert witness in order to help State Farm establish the degree of
certainty to which he held his opinions. After the cross examination of the expert and out
of the presence of the jury, the district court noted that the e xpert “hasn’t really testified
much about whether he holds anything that he said to a reasonable degree of engineering
certainty, so I would give you leave to as k him that question.” Homewerks’s counsel
remarked that that was “kind, ” but she did not object. When State Farm’s counsel stated
that she was finished with redirect, the distri ct court asked, “You’re not going to ask him
about the reasonable degree of engineering cer tainty?” State Farm ’s counsel asked the
expert how he can state that he knows how the product failed, and the expert responded
that it was “[b]ecause of the reasonable engineering—or degree of engineering certainty.”
The district court then asked the expert to clarify whether he held all of the opinions he had

13
testified to that day to a re asonable degree of engineering cer tainty, to which the expert
responded in the affirmative.
“The court may interrogate witnesses, whether called by itself or by a party.” Minn.
R. Evid. 614(b). It is genera lly not improper for a district court to question witnesses in
order to clarify their testimony. Teachout v. Wilson, 376 N.W.2d 460, 465 (Minn. App.
1985), review denied (Minn. Dec. 30, 1985). But a judge must avoid “assum[ing] the role
of the advocate.” Block v. Target Stores, Inc. , 458 N.W.2d 705, 713 (Minn. App. 1990),
review denied (Minn. Aug. 7, 1990). A new trial is warranted if the district court abused
its discretion in questioning a witness. Id. at 712.
In Block, the court of appeals noted that a district court judge’s conduct was
“disturbing” where the court had engaged in “sarcastic questioning” and “extensive cross
examination” of one party’s expert witness that “destroye d the witness’s credibility and
demeaned his qualifications.” Id. at 712-13. Here, the district court’s questioning helped
State Farm establish the level of confidence the expert had in his opinions. But Homewerks
did not object to the district court’s questioning or make any record that, but for the
additional testimony elicited by the court, the expert’s testimony would not have met the
foundational requirement that it be based on readily ascertainable facts. See Whitney, 376
N.W.2d at 277. Given the brevity of the additional testimony, which followed extensive
testimony by the expert explaining the basis for his opinions, and the absence of objection
by Homewerks, we cannot conclude that the district court abused its discretion in
questioning the expert.

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VI. The district court did not abuse its discretion in denying Homewerks a new
trial based on attorney misconduct.
Homewerks asserts that it was deprived of a fair tr ial because of misconduct and
irregularities by State Farm’s counsel in closing arguments. See Minn. R. Civ. P. 59.01(b).
The decision whether to grant a new trial due to counsel misconduct “rests almost wholly
in the discretion of the [district] court, wh ich is in a better position to assess [the
misconduct’s] impact on the jury.” Hall v. Stokely-Van Camp, Inc., 259 Minn. 101, 105,
106 N.W.2d 8, 11 (1960). An appellate court will reverse such a decision “only where
there has been a clear abuse of that discretion.” Id. If the party asserting closing-argument
misconduct did not timely object or request a ju ry instruction correcting the misleading
statement at trial, the standard of mi sconduct required for reversal is raised. Russell v.
Strohochein, 305 Minn. 532, 535, 233 N.W.2d 289, 292 (1975). Unobjected-to misconduct
“must have been so reprehensible as to require the action of the [district] court on its own
motion.” Id.
A. The district court did not abuse its discretion in declining to grant a new
trial because State Farm’s counsel commented on the lack of evidence of
negligent installation.
Homewerks argues that State Farm’s counsel improperly asked the jury to draw a
negative inference from Homewerks’s failure to produce certain evid ence regarding its
theory that improper installation caused the damage. Specifically, State Farm’s counsel
noted that Homewerks did not call a valve installer as a witness to testify about what should

15
have been done in installing the valve, and stated that, “if the defendant wanted to present
a case that this is an installation error, they should have done so and they didn’t.”
“[C]omments by a plaintiff’s counsel drawing an adverse inference from the
defendant’s failure to call a particular witness are improper where the witness was equally
available to both parties and equally likely to favor either party.” Springfield Farmers
Elevator Co. v. Hogenson Constr. Co. , 268 N.W.2d 80, 83 n.1 (Minn. 1978). Because
Homewerks did not object to th is statement, however, it only warrants reversal if it was
“so reprehensible as to require the action of the [district] court on its own motion.” See
Russell, 305 Minn. at 535, 233 N.W.2d at 292.
Throughout trial, Homewerks suggested th at the company that installed the valve,
which was not a party, was liable. Homewerks noted in its opening statement that the valve
was “supplied and installed by” the inst aller and “came from who knows where.”
Homewerks hinted at the installer’s liability when questioning witnesses. And Homewerks
requested and received a jury instruction and special-verd ict-form question about the
installer’s liability. In light of Homewerks’s repeated references to the installer’s role,
State Farm’s statement that there had been no testimony about whether the installation was
actually negligent was not im proper. Furthermore, the Springfield rule does not apply to
State Farm’s comment because testimony about negligent installation would not have been
“equally likely to favor either party.” Springfield, 258 N.W.2d at 83 n.1. State Farm was
entitled to strict-products-liability recovery against Homewerks, so only Homewerks stood
to benefit from shifting blame toward the installer. We therefore conclude that the district
court did not abuse its discretion in declinin g to grant a new trial based on State Farm’s

16
comment on the lack of testimony regarding the installer’s negligence. See Hall, 259 Minn.
at 105, 106 N.W.2d at 11.
B. The district court did not abuse its discretion in declining to grant a new
trial based on an unsupported statement in closing arguments.
Homewerks asserts that it was deprived of a fair trial because State Farm’s counsel
made a statement unsupported by the evid ence in her closing-argument rebuttal.
Specifically, Homewerks challenges State Farm ’s assertion that metallurgical testing
destroys the product and would never be part of an expert’s initial assignment. This
comment was in response to Homewerks’s statement in its closing argument that the expert
could not say what percentage of zinc was in the valve because State Farm had not asked
him to conduct metallurgical testing. Thus , the jury heard the expert testify that
metallurgical testing was not necessary, it he ard Homewerks argue that it was necessary,
and it heard State Farm give a reason, unsup ported by the record, why one might avoid
such testing.
An attorney “should not introduce into his argument to the jury statements and
conclusions unsupported by the evidence.” Hall, 259 Minn. at 104, 106 N.W.2d at 10. But
the decision whether to grant a new trial due to counsel misconduct in closing arguments
“rests almost wholly in the discretion of the [district] court, which is in a better position to
assess its impact on the jury.” Id. at 105, 106 N.W.2d at 11. We conclude that the district
court did not abuse its discreti on in declining to grant a new trial based on this comment,
which it implicitly concluded was likely harmless.

17
C. The district court did not abuse its discretion in declining to grant a new
trial based on an incorrect statement of law in closing arguments.
Homewerks argues that it was deprived of a fair trial because State Farm’s counsel
misstated the law in her closing argument wh en she said: “You will see in the jury
instructions what ‘sold’ means. Basical ly this question is asking did Homewerks
Worldwide, LLC put this product into the chain of distribution?”
Homewerks did not object to this statement at trial, so the heig htened standard of
review applies. See Russell, 305 Minn. at 535, 233 N.W.2d at 292. Because the jury
received instructions on the law and directed the jury to refe r to them, it is unlikely that
counsel’s statement had much impact on the jury. Furthermore, we are not persuaded that
State Farm’s comment is inaccurate. It is not inconsistent with the jury instruction that
“[a]n intermediary in the chain of manuf acture and distribution, other than the
manufacturer, has a duty to sell a product that is not in a defective condition unreasonably
dangerous to users of the product.” 2 We therefore conclude that the district court did not
abuse its discretion in declining to grant a new trial based on this statement.
D. State Farm’s counsel did not comment improperly on the valve’s
country of origin.
Homewerks asserts that passion and prejudice of the jury deprived it of a fair trial
because, according to Homewerks, State Farm encouraged the jury to punish Homewerks
for selling a product made in China. State Farm never mentioned where the product was
made, but Homewerks argues that because “Made in China” was printed on the valve, State

2 Homewerks does not challenge the use of this jury instruction.

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Farm’s request that the jury not “let th em off the hook for th is” invited passion and
prejudice. The district cour t did not abuse its discretion by declining to grant a new trial
based on this allegation, which has no basis in the record.
Affirmed.