Lisа Varano appeals from the judgment as a matter of law entered against her on her products liability claim against Michael Jabar, and also from the judgment entered against her on a jury verdict on her negligence claim. Varano claimed she became ill from fumes released when Jabar, doing business as Mike’s Roofing, used an adhesive containing isocyanates to repair the roof above the store where Varano was working. After Varano presented her case, the district court entered judgment as a matter of law against her on her strict liability failure-to-warn claim because the court concluded that Jabar was not a “seller” of the adhesive, which is a statutory element of Varano’s claim under Maine law. The court permitted Jabar to introduce evidence that he had used the adhesive in the past without any problems. The court submitted Varano’s negligence claim to the jury, but refused Varano’s requested res ipsa loquitur instruction on the ground that Varano had not adduced evidence that would warrant the instruction. The jury returned a verdict for Ja-bar. On appeal, Varano argues that the district court erred in entering judgment against her on her strict liability claim, in permitting Jabar to introduce evidence of his past use of the adhesive without injuries, and in denying her requested res ipsa loquitur instruction. We affirm.
Varano testified that on February 17, 1995, she was working in her office in the back of the Nautica store in a mall in Kittery, Maine. She heard some banging on the roof of the store, followed by the presence of a strong odor of glue or adhesive. She went outside the store and saw that employees of Jabar’s company, Mike’s Roofing, were working on the roof. Back inside the store, Varano found that the odor had grown stronger, so she called the property management company to report the problem. As the day went on, the odor became stronger until Varano сould see a “vapor” and a “haze” in the room.
By the next day, Varano had a sore throat and chest discomfort. She was admitted to the emergency room on March 2 and March 8, 1995 because she was experiencing chest pains and could not breathe.
On Marсh 9, 1995, Jabar’s employees were back at work on the roof of the mall. When Varano arrived at work, one of her coworkers told her that the odor had returned. Varano again called the management company to complain. In response, two of Jаbar’s employees and Jabar’s wife, Wendy Collins, came to the Nautica store. Varano asked them what they were using on the roof. One of Jabar’s employees left and returned with a can of Firestone Splice Adhesive. He opened the can, and Varano idеntified the odor as the one she had smelled in the store on February 17.
After the incidents at the store in February and March 1995, Varano was diagnosed with occupational asthma, induced *3 by exposure to isocyanates. Splice Adhesive contains isocyanates.
Varano sued Jabar, alleging a products liability claim for failure to warn of the danger posed by exposure to Splice Adhesive and negligence 1 in failing to warn her. Varano’s theory was that there was a “release” of Splice on the roof that worked its way down through the decking of the roof into the back of the Nautica store where Varano was working. Jabar’s expert testified that Varano could not have been exposed to levels of isocyanates sufficient to cause asthma in connection with the use of Splicе Adhesive on the roof. Jabar’s medical expert testified that Varano’s medical condition was not caused by isocyanate exposure, but rather by recurrent infections. The district court granted judgment as a matter of law against Varano on the ground that Jabar was nоt a “seller” of Splice Adhesive within the meaning of Maine’s products liability statute, Me.Rev. Stat. Ann. tit. 14, § 221 (West 1997). The court submitted Varano’s negligence claim to the jury, which found for Jabar.
I.
Varano argues that the district court erred in entering judgment as a matter of law against her on her strict liability сlaim on the ground that Jabar was not a seller of Splice Adhesive within the meaning of Me.Rev.Stat. Ann. tit. 14, § 221, We conclude that, whether or not Jabar was a seller under Maine law, the court submitted to the jury the same elements in the negligence instruction as Var-ano would have been еntitled to under a strict liability failure-to-warn instruction. Therefore, any possible error in denying Varano the chance to submit her strict liability failure-to-warn claim to the jury was harmless.
Varano’s complaint pleaded a strict liability claim based only on failure to warn of danger associated with the use of Splice Adhesive. 2 Varano’s tendered strict liability instruction included a statement that the “roofing products may be defective and unreasonably dangerous because of a failure to provide adequate warnings regarding potential dangers involved in the use of the products.” Varano’s tendered instruction did not contain any indication that the jury had to find that Jabar knew or should have known of the danger to find Jabar liable for failure to warn of that danger. Jabar contends that, even assuming the district court erred in failing to submit the strict liability failure-to-warn claim to the jury, the error is harmless as a matter of law because the court instructed the jury on negligent failure to warn. Jabar argues that the two claims are so similar under Maine law that the jury’s rejection of the negligence claim establishes that it wоuld have also rejected the strict liability claim.
In
Cheshire Medical Center v. W.R. Grace & Co.,
The Maine Supreme Judicial Court has stated that the duty imposed by Maine’s products liability statute, Me.Rev.Stat. Ann. tit. 14, § 221, in a duty to warn context, is the “responsibility to inform users and consumers of dangers about which [the seller] either knows or should know at the time the product is sold.”
Bernier v. Raymark Indus., Inc.,
Thus, while the Maine Court indicated that there are differences in the defenses and limitations on liability applicable to the two causes of action, both causes spring from an identical duty of сare:
Regardless of whether a failure to warn claim is phrased in terms of negligence [or] strict liability, the analysis ... is basically the same. [T]he general rule [is] that the supplier of a product is liable to expected users for harm that results from foreseeable uses of the product if the supplier has reason to know that the product is dangerous and fails to exercise reasonable care to so inform the user.
Pottle v. Up-Right, Inc.,
Varano’s proposed strict liability instruction did not include the conсept that Jabar would only be liable for failure to warn of dangers of which he knew or should have known. On appeal, Varano continues to argue that strict liability does not require a breach of a duty of care. However, under Maine law it is clear that strict liability failurе-to-warn cases do require breach of such a duty.
See Pottle,
II.
Varano next argues that the district court erred in allowing Jabar to introduce evidence that he and his employees had used Splice Adhesive in the past and had never experienced problems or had complaints. Varano argues that this testimony was irrelevant, because Jabar contended at trial that his employees did not use Splice Adhesive on February 17, 1995, but only cleared ice and snow off the roof. In a similar vein, Varano argues that the nonoccurrence evidence wаs unduly prejudicial under Federal Rule of Evidence 403. Ordinarily, we review for abuse of discretion the district court’s relevance determination and its weighing of probative value versus unfair prejudice.
See Espeaign-nette v. Gene Tierney Co.,
Varano says that since Jabar denies using the Splice on the date in ques
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tion, evidence of what happened on other occasions when he did use it is irrelevant. To the contrary, such еvidence is directly relevant to Varano’s claim that Jabar’s use of Splice on February 17 caused her injuries.
See Espeaignnette,
III.
Varano contends that the district court erred in denying her requested res ipsa loquitur instruction.
A district court is bound to instruct the jury on all issues of fact raised by the evidence adduced at trial.
See Wilson v. Maritime Overseas Corp.,
The standard for determining whether a factual issue is sufficiently contested to require an instruction is identical to the standard for determining whether a factual controversy prevents the entry of judgment as a matter of law.
In neither situation may the court weigh the evidence, make credibility determinations, or resolve conflicts in the proof. Instead, the court must determine whether the evidence presented at trial, along with all inferences that may reasonably be drawn therefrom, could plausibly support a finding for either party on any given issue of material fact.
Id. Our review of the district court’s decision not to instruct on an issue is plenary. Id. If the court erroneously fails to instruct on a material issue of fact, we still may not grant a new trial on the basis of that error if the error is harmless. Id. at 6.
The right to a res ipsa loquitur instruction is determined by Maine law in this diversity case.
See, e.g., DiPalma v. Westinghouse Elec. Corp.,
The district court denied the res ipsa loquitur instruction, stating:
I think the evidence does not show that this accident could happen only as a result of the conduct on the part of the defendant, and that there is no showing, no basis on which a jury could conclude there is no other explanation [than] the conduct of the defendant in bringing about the injury complained of in this case.
The evidence in this case included possible alternative explanations for the odor in the Nautica store and for Varano’s medical condition. Where thе record establishes possible explanations for the accident oth
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er than the defendant’s negligence, res ipsa loquitur does not apply.
See Wellington Assocs., Inc. v. Capital Fire Protection Co.,
We affirm the judgment of the district court.
Notes
. She pleaded both negligent failure to warn and negligent failure to turn off the HVAC system, but the parties stipulated that failure to turn off the HVAC system was no longer an issue.
. Varano tendered a broader products liability instruction that was not limited to liability for failure to warn, but she does not argue that she made a case for any sort of products liability claim other than failure to warn.