Tammy Lou FONTENOT, as Administratrix of the Estate of Darryl Wayne Turner, Plaintiff-Appellee, and Devoid Turner, Plaintiff, v. TASER INTERNATIONAL, INC., Defendant-Appellant, 736 F.3d 318

Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Chief Judge TRAXLER wrote a dissenting opinion. BARBARA MILANO KEENAN, Circuit Judge: Darryl Wayne Turner, age seventeen, died from cardiac arrest after a confrontation with police in which he was struck in the chest by electrical current emitted from a device commonly known as a “ta-ser,” manufactured by TASER International, Inc. (TI).

The police officer who discharged the taser aimed the device at Turner’s chest based on training provided by the Charlotte Mecklenburg Police Department (CMPD or the department), which used instructional materials supplied by TI. The particular taser employed in the incident, the Model X26 device (X26 taser), had been the subject of several academic studies. TI knew about these studies, in which researchers had concluded that the device posed a risk of ventricular fibrillation, a cause of cardiac arrest, especially when the electrical current from the taser was applied near the subject’s heart.

Nevertheless, TI failed to warn taser users to avoid deploying the taser’s electrical current in proximity to the heart. Tammy Lou Fontenot, Turner’s mother and the administrator of his estate, initiated a product liability action against TI in a North Carolina state court. In the complaint, Fontenot alleged that TI negligently failed to warn users of the risk posed by the X26 taser and, in particular, to warn them to avoid applying the taser’s electrical current near a subject’s heart. She further alleged that TI’s negligence was the proximate cause of Turner’s death.

A jury found in Fontenot’s favor, awarding her $10 million in compensatory damages, which amount the district court remitted to about $6.15 million before deducting certain offset amounts received by Fonte-not, resulting in a final award of about $5.5 million. In this appeal, TI raises several arguments, including that the district court erred in barring from the jury’s consideration TI’s defense that Turner was con-tributorily negligent by engaging in the dispute and in refusing to comply with the police officer’s directives.

TI also contends that the damages award, even as remitted, is not supported by the evidence. Upon our review, we hold that the district court did not err in entering judgment in favor of Fontenot on the liability aspect of the negligence claim in accordance with the jury’s verdict. However, we also hold that the damages award is not supported by the evidence, and we remand the matter to the district court for a new trial limited to that issue. Accordingly, we affirm the district court’s judgment in part, vacate it in part, and remand the matter for further proceedings with respect to damages. I. A.

Turner was an employee of a Food Lion supermarket located in Charlotte, North Carolina, where he had worked for about a year. On March 20, 2008, Turner was confronted by a Food Lion loss prevention investigator after Mary Blackert, one of Turner’s supervisors, “reported” Turner for eating a convenience food item and drinking a bottle of water that he had obtained from the store. Turner admitted that he had consumed those items without paying for them, and he was allowed to return to work while his supervisors discussed the matter.

After eating lunch at his home, Turner returned to the supermarket dressed in a manner that did not comply with the store’s employee dress code. Blackert told Turner to “clock out and to get himself together.” Turner refused, using profanity addressed to Blackert. Blackert contacted the store manager, who instructed Blackert to terminate Turner’s employment for insubordination. When Blackert informed Turner that he was fired, Turner refused to leave the store and continued arguing with her.

Thereafter, Blackert placed a telephone call to a 911 operator and requested police assistance in removing Turner from the supermarket. During the entire incident, Turner acted in an aggressive manner and argued loudly with Blackert and the store manager. Turner also threw an umbrella and pushed a store display off a counter, but he did not make physical contact with anyone during the dispute. CMPD Officer Jerry Dawson arrived at the Food Lion in response to Blackert’s request for assistance. Upon entering the store, Officer Dawson heard yelling and cursing.

He removed his X26 taser from its holster while approaching Turner, who continued to argue with his supervisors. Officer Dawson instructed Turner to “calm down,” but Turner continued behaving in an aggressive manner. Officer Dawson aimed the taser’s red “laser dot” at Turner’s chest, the location where Officer Dawson had been trained to aim. When Turner stepped toward Officer Dawson, he deployed the taser on Turner. The X26 taser, which is shaped like a pistol, discharges two darts, one above the other, from a cartridge attached to the front of the device when its trigger is pulled.

One dart struck Turner in the center of his chest, very close to his heart, and the other dart struck him near his ribcage. Because the taser is designed to incapacitate an individual by causing that person’s muscles to “lock up,” Officer Dawson expected Turner to collapse, but Turner stayed on his feet and walked toward the store’s exit while the taser’s darts continued delivering an electrical current.

Officer Dawson followed Turner as he walked with the taser’s darts still attached to his body, instructing Turner to “get down.” During this period, Officer Dawson held down the taser’s trigger, causing the device to continue emitting an electrical current, until Turner eventually collapsed 37 seconds after the device initially was activated. Officer Dawson discharged his taser on Turner for an additional five seconds because Turner did not comply with commands to put his hands behind his back after he had fallen to the ground.

When firefighters and paramedics arrived at the supermarket, they observed that Turner was experiencing ventricular fibrillation and was unresponsive. The rescue team performed CPR and defibril-lation on Turner but, despite these efforts, Turner was pronounced dead after being taken to a hospital. B. TI primarily markets and sells its conducted electrical weapons products, including the X26 taser, to law enforcement agencies. One such law-enforcement purchaser of the X26 taser was the CMPD, which purchased X26 tasers for use by all the officers in the department.

From the introduction of the X26 taser in 2003, through the events at issue in this case, TI instructed taser users that the electrical current emitted by the X26 taser had no effect on heart rhythm when tested on animals. Captain Michael Campagna, who administered the CMPD’s taser training program, received training from TI that use of the taser could not cause fibrillation of the human heart or cardiac arrest.

TI also provided Captain Campagna and other users an “instructor’s note” stating that even when “[t]he X26 was applied across the chest with the two probes in a ‘worst case’ scenario (the points most likely to stimulate the heart) ... the heart beat continues normally.... It is important to note that the heart rate does not change at all.” Captain Campagna used this information and other material provided by TI to train CMPD officers, including Officer Dawson, on use of the X26 taser.

Officer Dawson recalled that the training materials provided by TI stated that application of the X26 taser had no effect on a subject’s heart rates. TI also provided Captain Campagna other training materials, which instructed users of the X26 taser to aim for the “center of mass,” and used visual depictions of the taser’s darts being fired at the middle of a person’s chest. Based on this information, Officer Dawson and other CMPD officers were trained to aim the taser at a suspect’s chest.

Officer Dawson testified that, therefore, he had no reason to think that the act of firing the X26 taser at Turner’s chest was more dangerous than aiming the device elsewhere, or that using the device in that manner could cause significant cardiac injury or death. As relevant to this case, the primary warning that TI provided to users of the X26 taser was included as part of the “TASER International Training Bulletin 12.0-04,” which TI issued in June 2005. In that document, TI cautioned that “[r]e-peated, prolonged, and/or continuous exposure(

s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable.... ” (Emphasis added.) Notably, this TI Training Bulletin, which the CMPD provided to its officers, discussed only the potential for respiratory harm, rather than the risk of severe cardiac problems, resulting from the use of the X26 taser.

Shortly after TI issued the June 2005 Training Bulletin, TI received the results of a TI-funded study conducted by Dr. Dhanunjaya Lakkireddy concerning additional testing of the X26 taser. This study, which was published in the Journal of the American College of Cardiology, showed that the taser’s electrical pulses can “capture” cardiac rhythms, potentially leading to ventricular fibrillation.

The study further noted that if users avoided striking the subject’s chest area with the taser’s darts, the risk of ventricular fibrillation would be reduced significantly. ' TI received the results of another study in 2006, which was conducted by Dr. Ku-maraswamy Nanthakumar and was published in the same medical journal. Dr. Nanthakumar’s study likewise showed a risk of ventricular fibrillation in test animals when darts fired from the X26 taser lodged near the subject animal’s chest.

Notably, the study showed that when the darts struck the animal in areas away from the chest, such as in the abdomen, the taser did not capture heart rhythms and, thus, using the taser in this manner avoided the risk of causing ventricular fibrillation. These conclusions reached by Dr. Lakki-reddy and Dr. Nanthakumar conflicted with TI’s representations in its training materials that the X26 taser could not capture heart rhythms and was safe even when applied directly to a person’s chest.

Nevertheless, as confirmed by TI’s chief executive officer and the company’s vice president of training, TI did not alter its training materials to warn users of the X26 taser that shots to a person’s chest could result in ventricular fibrillation, or that use of the taser near a person’s heart should be avoided based on that risk. Accordingly, up until the time of Turner’s death, Captain Campagna and Officer Dawson continued to think that electrical current emitted by the X26 taser, even when applied near a person’s heart, did not affect heart rhythms or entail risks of cardiac arrest. C.

Fontenot, as administrator of Turner’s estate, filed a complaint against TI in a North Carolina Superior Court alleging negligence under North Carolina’s product liability act, N.C. Gen.Stat. §§ 99B-1 through 99B-11 (the product liability act). As reflected in the complaint, Fontenot’s primary theory was that TI was negligent in failing to warn users of the X26 taser that the device could cause an adverse cardiac event, particularly when at least one of the taser’s darts is positioned on a person’s chest. TI removed the action to federal district court asserting diversity jurisdiction under 28 U.S.C. § 1332(a).

In the district court, Fontenot filed a pretrial motion seeking to exclude from the jury’s consideration TI’s affirmative defense of contributory negligence. TI contended that Turner was con-tributorily negligent by failing to exercise ordinary care for his own safety in instigating the dispute at the supermarket, and in failing to comply with Officer Dawson’s directions after the police arrived at the scene. The district court granted Fontenot’s motion and barred TI from submitting its contributory negligence defense to the jury.

The court later explained that the statutory language at issue bars any recovery when the “[t]he claimant failed to exercise reasonable care under the circumstances in the use of the product. ” See N.C. GemStat. 99B-4(-3) (emphasis added). The district court also noted that the North Carolina product liability cases addressing contributory negligence all involved plaintiffs who actually had used the allegedly defective products, and that, in this case, Turner did not “use” the taser.

Additionally, the court reasoned that: Finding contributory negligence in this circumstance would immunize [TI] from ever being liable for a product defect. Police officers do not deploy a taser unless a suspect has acted at least unreasonably. Therefore, a person who has been tased would always be barred by contributory negligence from suing [TI]. The case proceeded to a jury trial. After Fontenot presented her case, TI made a motion seeking judgment as a matter of law on several bases, including that the evidence established as a matter of law that Officer Dawson misused the taser.

The district court denied the motion and the case was submitted to the jury, which returned a verdict in Fontenot’s favor and awarded her $10 million in compensatory damages. The jury specified on the verdict form that TI unreasonably failed to provide an adequate warning or instruction, thereby creating an unreasonably dangerous condition about which TI knew or should have known, and that such failure to provide an adequate warning or instruction proximately caused Turner’s death.

The jury further stated on the verdict form that, with respect to TI’s product misuse defense, Officer Dawson did not use the taser in a manner contrary to TI’s instructions, that TI’s instructions and warnings were not adequate, and that Turner’s death was not caused by Officer Dawson’s use of the taser contrary to TI’s instructions or warnings. After the trial, TI renewed its earlier motion for judgment as a matter of law and, in the alternative, sought a new trial under Rule 59 of the Federal Rules of Civil Procedure.

The district court declined to disturb its previous ruling excluding TI’s contributory negligence defense. The court further held that substantial evidence supported the jury’s verdict on causation and the inadequacy of TI’s warnings. Addressing the $10 million damages award, the district court characterized the evidence of damages as “relatively thin,” and the court ultimately concluded that the award was excessive.

The court initially remitted the award to $7.5 million, further remitted the award to about $6,156,503.65 after adjusting it for present value, and reduced that amount to $5,491,503.65 after deducting $40,000 Fontenot received from a Food Lion workers’ compensation award and $625,000 that she received from a settlement with the City of Charlotte. After Fontenot accepted the reduced amount of $5,491,503.65, the district court entered final judgment in that amount. TI timely filed a notice of appeal. II.

On appeal, TI raises four primary arguments, contending that the district court erred: (1) in barring TI’s contributory negligence defense; (2) in refusing to award judgment in TI’s favor when the evidence purportedly did not show that Officer Dawson would have used the taser differently had TI provided warnings about the risk of ventricular fibrillation; (3) in refusing to award judgment in TI’s favor because Officer Dawson’s use of the taser constituted product misuse; and (4) in entering judgment in an amount that was excessive and not supported by the evidence. We discuss these arguments in turn. A.

We first address TI’s contention that the district court erred in barring TI’s contributory negligence defense. TI asserts that under the plain language of the product liability statute, and under general principles of North Carolina law, a claimant in a product liability action need not have “used” the product in order for the doctrine of contributory negligence to apply. We disagree with TI’s argument. Initially, we observe that the question before us raises an issue of first impression under North Carolina law.

Our Court has on occasion certified state law questions to the highest court of a state in similar circumstances, but we are unable to do so here because North Carolina currently has no mechanism by which we may certify such questions. See Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir.2013). Accordingly, we must attempt to determine how the Supreme Court of North Carolina would decide the issue. See McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 328 (4th Cir.1996).

We consider whether contributory negligence may be raised as a defense under North Carolina law in a product liability action when the claimant has not “used” the product. This question presents an issue of law, which we review de novo. See Solis v. Malkani, 638 F.3d 269, 275 (4th Cir.2011); United States v. Perrin, 45 F.3d 869, 871 (4th Cir.1995). In

Section 99B-4 of the General Statutes of North Carolina, the legislature codified the common law doctrine of contributory negligence as it applies in product liability actions. See Nicholson v. Am. Safety Util. Corp., 346 N.C. 767, 488 S.E.2d 240, 243-14 (1997). In relevant part,

Section 99B-4(3) provides: No manufacturer or seller shall be product liability action if: ... failed to exercise reasonable circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage complained of. N.C. Gen.Stat. § 99B-4(3) (emphasis added). We consider the plain words of

Section 99B-4(3) in interpreting the statute. See Frye Reg’l Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 510 S.E.2d 159, 163 (1999). We are guided by the principle of statutory construction that a statute should be “construed, if possible, so that none of its provisions shall be rendered useless or redundant. It is presumed that the legislature intended each portion to be given full effect and did not intend any provision to be mere surplusage.” Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443, 447 (1981) (citation omitted); accord City of Concord v. Duke Power Co., 346 N.C. 211, 485 S.E.2d 278, 282 (1997). Applying these principles, we agree with Fontenot that

Section 99B-4(3) requires that the claimant have “used” the product before the defense of contributory negligence can arise. The statute plainly provides that, in a product liability action, a manufacturer or seller may not be held liable if “[t]he claimant failed to exercise reasonable care under the circumstances in the use of the product.” N.C. Gen. Stat. § 99B-4(3) (emphasis added). TI urges us to interpret the statute as merely requiring that a claimant failed to exercise reasonable care during an incident involving anyone’s use of the product causing injury to the claimant, without regard to whether the claimant actually used the product at issue. That

interpretation, however, would render superfluous or redundant the phrase “in the use of the product.” Under TI’s suggested construction, we would consider only whether “[t]he claimant failed to exercise reasonable care under the circumstances,” thereby ignoring the additional words “in the use of the product” that the legislature included in

Section 99B-4(3). We cannot reach such a result. See Porsh Builders, 276 S.E.2d at 447; cf. In re Hayes, 199 N.C.App. 69, 681 S.E.2d 395, 403 (2009) (rejecting proffered

interpretation of statutory provision that would render a term redundant). Instead, we conclude that the statute unambiguously bars recovery by a claimant in a product liability action on the ground of contributory negligence when the claimant has used the product in some manner and has failed to exercise reasonable care under the circumstances. We acknowledge that

Section 99B-4(3) was amended by the North Carolina General Assembly, effective January 1, 1996, along with other more substantive changes to various sections of the product liability act. See

An Act of July 29, 1995, ch. 99B, 1995 N.C. Sess. Laws 522 (amending product liability act). In relevant part, the prior version of

Section 99B — 4(3) provided that contributory negligence operates to bar recovery in a product liability action if “the claimant failed to exercise reasonable care under the circumstances in his use of the product.” N.C. GemStat. § 99B-4(3) (1995) (emphasis added). TI correctly observes that an amendment to a statute indicates that the legislature “intended to add to or to change the existing enactment.” State v. Mabry, 720 S.E.2d 697, 701 (N.C.Ct.App. 2011).

However, TI cites no legislative history showing that this change in statutory language from “his” to “the” was anything other than the legislature’s decision to make the language of that provision gender-neutral. Moreover, under North Carolina law, a court interpreting a statute may rely on the statute’s legislative history only in instances in which the statutory language is ambiguous. See In re Vogler Realty, Inc., 365 N.C. 389, 722 S.E.2d 459, 462 (2012). Because we conclude that the language of

Section 99B-4(3) is unambiguous, we do not further consider TI’s argument concerning the legislative history of that provision. See Diaz v. Div. of Soc. Servs., 360 N.C. 384, 628 S.E.2d 1, 3 (2006) (judicial construction of legislative intent is not required when statutory language is clear). As the district court and the North Carolina Court of Appeals both have observed, every North Carolina product liability case addressing contributory negligence, whether under the current or former version of

Section 99B-4(3), has involved a claimant’s actual use of the allegedly defective product. See Fontenot v. Taser Int'l, Inc., 2012 WL 1379054, at *5 (W.D.N.C. Apr.20, 2012) (citing Nicholson v. Am. Safety Util. Corp., 124 N.C.App. 59, 476 S.E.2d 672, 679-680 (1996), aff'd on other grounds, 346 N.C. 767, 488 S.E.2d 240 (1997)). The cases cited by TI do not undermine the import of this observation. In the two primary product liability cases on which TI relies, our decision in Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712 (4th Cir.1995), and the Supreme Court of North Carolina’s decision in Nicholson v.

American Safety Utility Corp., 346 N.C. 767, 488 S.E.2d 240 (1997), the respective claimants used the products at issue. In Jones, the claimants, workers in a factory in which products containing asbestos insulation were manufactured, sued the insulation’s manufacturer after they developed asbestosis and lung cancer. Jones, 69 F.3d at 715-16. The defendant manufacturer asserted contributory negligence under

Section 99B-4(3), arguing that the plaintiffs failed to exercise reasonable care “in their use of the asbestos-containing products” by continuing to smoke cigarettes, despite the hazards relating to smoking and asbestos exposure being “widely known.” Id. at 719. This Court held that contributory negligence could be applicable under the defendant’s theory, but observed that the defendant’s “only possibility of prevailing ... require[d] proof that [the claimants] were given such a warning” about “the synergistic effect of cigarette smoking and asbestos exposure.” Id. at 721. Thus, we stated in Jones that the “statutory focus” of

Section 99B-4(3) was not the claimants’ use of the product “per se,” but, instead, was whether the claimants failed to exercise reasonable care under the circumstances in their “use of the product.” Id. at 721-22. Our holding in Jones therefore cannot be read as more than a statement that contributory negligence may bar a claimant’s recovery in a product liability action, in North Carolina if the evidence shows that the defendant warned the claimant of the injury that may result from the claimant’s use of a product.

We neither held nor implied in Jones that a contributory negligence defense could be asserted in cases in which the claimant did not use the product in any manner. In the present case, the record is devoid of any evidence that Turner knew or should have known that police deployment of the taser could cause him to suffer severe cardiac injury. Indeed, the record is undisputed that neither Officer Dawson nor any other members of the CMPD knew that such injury could be caused by use of the taser near a subject’s heart.

Thus, this crucial factual distinction between the present case and the circumstances discussed in Jones renders inappo-site the ultimate result we reached there. In Nicholson, an electrical lineman was injured when an energized power line came in contact with his head after his helmet was “blown off.” 488 S.E.2d at 241-42. That contáct resulted in electricity surging through his body and exiting through his hand, on which he was wearing a rubber safety glove manufactured and sold by the defendants. Id. at 242.

In the product liability action filed by Nicholson, the defendants asserted a contributory negligence defense, arguing that Nicholson failed to keep his helmet properly secured and continued working after it fell off. 476 SiE.2d at 679. After the trial court granted

summary judgment to the defendants, the North Carolina Court of Appeals reversed, concluding that any negligence on Nicholson’s part must relate to his use of the gloves, and that the evidence did not establish that Nicholson was negligent in such use. Id. at 679-80. On appeal, the Supreme Court of North Carolina agreed that

summary judgment in favor of the. claimant on the contributory negligence defense was not appropriate, holding that issues of fact needed to be resolved. 488 S.E.2d at 245. Departing from the rationale, adopted by the court of appeals, the court explained that a claimant’s negligent behavior need not be confined to the claimant’s use of the product itself for contributory negligence to lie, but that “all of the circumstances during the plaintiff’s use, of the product must be considered, not just plaintiffs conduct with respect to the product itself.” Id. at 244 (emphasis added).

Thus, the decision in Nicholson, like the decision in Jones, did not hold that contributory negligence may apply even in cases in which the defendant did not make any use of the product at issue. Instead, the holdings in Jones and Nicholson stand for the unremarkable proposition, not at issue in this case, that so long as the claimant was using the product during the events that led to the injury, the claimant’s negligence need not arise solely with respect to use of that product for a contributory negligence defense to be available.

We further note that in two other product liability cases cited by the parties involving a contributory negligence defense, decided after

Section 99B-4(3) was amended, the claimants “used” the product at issue. See Muteff v. Invacare Corp., — N.C.App.-, 721 S.E.2d 379 (2012) (electric wheelchair manufacturer asserted contributory negligence defense after decedent’s wheelchair caught fire when charging overnight while her metal necklace was in contact with the live blades of the wheelchair’s charger cord); Lashlee v. White Consol.

Indus., Inc., 144 N.C.App. 684, 548 S.E.2d 821 (2001) (chainsaw manufacturer asserted contributory negligence defense based on plaintiffs operation of the chainsaw while standing on a ladder without being secured to the tree). TI nevertheless asserts that its position is supported by various North Carolina court decisions outside the product liability context that cite principles applicable to negligence claims generally. However, the three North Carolina Court of Appeals cases on which TI relies are inapposite. TI first cites Hinton v.

City of Raleigh, in which a robbery suspect was shot and killed by police officers following the robbery. 46 N.C.App. 305, 264 S.E.2d 777, 778 (1980). The suspect’s mother brought an action against the City of Raleigh and other defendants alleging a variety of claims, including negligent supervision and training. Id. The court of appeals affirmed the award of

summary judgment in favor of the defendants, noting that the evidence established that the decedent participated in an armed robbery in which a gun was used, and that he “went into a crouching position and pointed toward the officers” when he was ordered to halt. Id. at 779. In explaining its decision, the court observed, among other things, that the decedent’s own actions contributed to the killing. Id.

Here, in contrast, the evidence showed that Turner’s actions did not proximately contribute to his killing, which was caused by the application of electrical' force to his chest rather than to other parts of his body. Nothing that Turner did caused Officer Dawson to aim the taser at Turner’s chest, rather than at another area of his body. Thus, the decision in Hinton fails to support TI’s position. TI next relies on Braswell v.N.C.

A & T State University, which involved a claimant who was injured when a security officer fired his pistol into the ground to disperse a crowd seeking to break into a college gymnasium. 5 N.C.App. 1, 168 S.E.2d 24, 29 (1969). The court of appeals held that the plaintiff was contributorily negligent because he joined the crowd despite knowing that the members of the crowd were “acting in an unruly and unlawful manner and that the officer had warned them to stop trying to break in the doors.” Id. at 31.

Notably, the court stated that by joining the unruly crowd, “plaintiff assumed the risk of whatever injury he might receive as a result.” Id. (emphasis added). Accordingly, Braswell is inapposite because the “assumption of risk” doctrine on which the Braswell court focused has not been raised by TI, and, indeed, has no application in a case involving a theory of negligent failure to warn a product user of risks associated with use of a product. Finally, TI relies on Benton v.

Hillcrest Foods, Inc., a case in which the claimants were shot in a restaurant by other patrons during a confrontation, but were barred from recovering damages from the restaurant’s owner on the ground of contributory negligence. 136 N.C.App. 42, 524 S:E.2d 53, 58 (1999). The facts in Benton included the claimants’ acts of intentional provocation toward the shooters, and the claimants’ refusal to leave the restaurant through an available back door despite their knowledge that the shooters had left temporarily to obtain loaded guns from their car. Id.

Thus, the facts in Benton are starkly different from those before us, rendering its holding inapposite to the present case. We again note the absence of any North Carolina cases finding contributory negligence in a product liability action in which the claimant did not use the product at issue. This absence of analogous North Carolina case law is significant because, in construing the common law of a state, we have declined to expand state common law principles to encompass novel circumstances when the courts of that state have not done so first. See Time Warner Entm’t-Advance/Newhouse P’ship v.

Carr teret-Craven Elec. Membership Corp., 506 F.3d 304, 314-15 (4th Cir.2007) (“Time Warner has proffered no cases interpreting North Carolina law to extend the common law prohibition ... and we have found none.... We conclude accordingly that as a court sitting in diversity, we should not create or extend the North Carolina common law.”); Burris Chem., Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir.1993) (federal courts adjudicating issues of state law “rule upon state law as it exists and do not surmise or suggest its expansion”).

In our view, it would be an expansion of North Carolina law if we permitted a contributory negligence defense here, when such a defense is not supported by the plain language of

Section 99B4(3), and when there are no analogous North Carolina cases supporting the availability of that defense under the novel circumstances presented. Finally, we observe that application of the contributory negligence doctrine under the present circumstances would absolve TI of its responsibility to provide adequate warnings to persons using TI’s tasers, and effectively would grant TI immunity from suit in North Carolina negligence actions that are based on police use of a taser on a suspect resisting arrest.

At its core, TI’s position is that contributory negligence should be applied as a blanket proposition to bar recovery for all incidents in which a person is involved in a dispute, does not surrender to authorities, and is subdued or killed by a police officer’s use of a taser. Such a situation, however, will be present in nearly every instance in which a taser is deployed by a law enforcement officer. Moreover, such circumstances are the very reason why law enforcement agencies use products like the X26 taser.

Accepting TI’s argument would have additional significant consequences, as TI essentially would have no duty in North Carolina to safely design its products or to provide adequate warnings to law enforcement customers such as the CMPD. We do not think that the Supreme Court of North Carolina would create such an extreme result based on the facts presented here. For these reasons, we hold that the district court did not err in precluding TI from asserting contributory negligence as an affirmative defense. B.

We next consider TI’s argument that the district court erred in failing to direct a verdict in TI’s favor because the evidence purportedly failed to establish that an appropriate warning about the dangers of the X26 taser would have caused Officer Dawson to use the taser in a different manner. We disagree with TI’s argument. We review de novo the district court’s denial of a Rule 50 motion for judgment as a matter of law, considering the evidence in the light most favorable to Fontenot as the nonmoving party. See Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489-90 (4th Cir.2005).

If a verdict in favor of the nonmoving party “would necessarily be based upon speculation and conjecture,” judgment as a matter of law must be entered in the moving party’s favor. Id. at 489. However, “[i]f the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created and a motion for judgment as a matter of law should be denied.” Id. at 489-90.

Under North Carolina law, a claimant bringing a product liability action under a failure to warn theory must establish that the defendant’s failure to provide an adequate warning or instruction was “a proximate cause of the harm.” N.C. Gen. Stat. § 99B-5(a). After reviewing the present record, we hold that there is sufficient evidence from which the jury could have concluded that Officer Dawson would have used the X26 taser in a different manner had TI provided an adequate warning concerning the dangers of firing the taser to make contact near a person’s heart.

Officer Dawson testified that he read Taser’s training materials, which stated that when the X26 taser was tested the device was found to have had no effect on heart rhythms. Officer Dawson stated that he received such information concerning the taser’s safety during a “refresher” training course as recently as a month before the incident occurred. He also testified about instructions that he received from CMPD trainers, who used TI’s training materials, to aim the taser at a suspect’s chest.

In sum, the gravamen of Officer Dawson’s testimony was that he deployed the taser on Turner based on the information provided by TI that the X26 taser was safe to use, could not cause cardiac arrest, and did not present an elevated risk of injury when the device’s darts were positioned near a person’s heart. Additionally, Captain Campagna, who administered the CMPD’s taser program, testified that until Turner’s death, officers were instructed that TI’s testing showed that the X26 taser did not affect heart rhythms, even when applied to a suspect’s chest.

Captain Campagna further testified that he “absolutely” would have wanted to know if testing showed a risk that application of the X26 taser to the chest of a suspect could affect the suspect’s heart rhythms. Given that Captain Campagna had issued a memorandum to CMPD officers relaying the additional safety information provided by TI in its June 2005 Training Bulletin, the jury reasonably may have inferred that Captain Campagna would have informed Officer Dawson and other CMPD officers of warnings concerning a risk of serious cardiac injury from use of TI’s tasers near a person’s heart.

Further, the jury reasonably may have inferred that such information would have affected Officer Dawson’s understanding of the risks involved in use of the taser, and would have caused Officer Dawson to aim the taser at a different location on Turner’s body. Therefore, we conclude that the evidence supports the jury’s finding that TI’s failure to provide an adequate warning was a proximate cause of Turner’s death.

For these reasons, we reject TI’s argument that Fontenot did not establish a causal link between TI’s failure to issue warnings concerning the risk of cardiac arrest and Officer Dawson’s use of the taser on Turner’s chest. Accordingly, we hold that the district court did not err in denying this aspect of TI’s motion for judgment as a matter of law. C. TI also argues that the district court erred in failing to award judgment in TI’s favor on the basis of product misuse.

TI contends that, as a matter of law, Officer Dawson misused the X26 device by employing it on Turner for 37 continuous seconds, and that such misuse was contrary to the instructions and warnings provided by TI. We disagree with TI’s argument. We review de novo the district court’s denial of TI’s motion for judgment as a matter of law on the issue of product misuse. See Myrick, 395 F.3d at 489.

Judgment as a matter of law should not be entered unless the court concludes, after reviewing the entire record and considering it in the nonmoving party’s favor, that “the evidence presented supports only one reasonable verdict, in favor of the moving party.” Dotson v. Pfizer, 558 F.3d 284, 292 (4th Cir.2009) (citation omitted). North Carolina General Statutes

Section 99B-4(1) provides, in relevant part, that “[n]o manufacturer or seller shall be held liable in any product liability action if:

(1) The use of the product giving rise to the product liability action was contrary to any express and adequate instructions or warnings delivered with, appearing on, or attached to the product....” (Emphasis added.) See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 148 (4th Cir.2001) (under N.C. Gen.Stat. § 99B-4(1), failure to follow “express and adequate instructions” precludes recovery in product liability action). TI asserts that its warnings, including the June 2005 Training Bulletin, adequately informed users that the taser should not be employed for an extended duration. TI’s warning on this point in the Bulletin stated as follows: Repeated, prolonged, and/or continuous exposure(

s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm.

Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable in order to minimize the potential for over-exertion of the subject or potential impairment of full ability to breathe over a protracted time period. (Emphasis added.) Our review of this warning, in conjunction with the other evidence in the case, leads us to conclude that the jury had ample grounds on which to find that the warning was not “adequate.” As an initial matter, the warning pertains to a temporary breathing problem, rather than to the more serious risk of cardiac arrest.

More fundamentally, however, the terms “prolonged” and “continuous” found in the warning are not further defined and, thus, are vague in the absence of further clarification, which was not provided by TI.

Instead, TI’s Chief Executive Officer Patrick Smith conceded during his testimony that TI did not give “precise guidance” to users of the X26 taser concerning “the safe length of a discharge cycle.” Smith further testified that “we don’t set a hard and fast limit,” and agreed that “[a] cop can’t look and say, don’t go beyond 15 seconds or 20 or 30 or 40 or anything like that.” Additionally, a jury also could conclude that the warning’s “whenever practicable” clause rendered the warning vague and inadequate.

Captain Campagna testified that he interpreted the “whenever practicable” language to mean that the taser could be applied continuously until the suspect fell to the ground or otherwise was secured. Likewise, Officer Dawson testified that he did not think that it was “practicable” to release the taser’s trigger while Turner remained standing in defiance of a command to “get down.” Thus, based on the present record, TI’s warnings concerning prolonged application of the X26 taser cannot be deemed “adequate” as a matter of law under

Section 99B — 4(1). Accordingly, we hold that the district court did not err in denying TI’s motion for judgment as a matter of law on the issue of product misuse. D. Finally, we consider TI’s argument that the district court’s remittitur decision resulted in an excessive award that was not supported by the evidence. TI contends that Fontenot failed to prove to a reasonable level of certainty her entitlement to an award of that amount.

Fontenot argues in opposition that the damages at issue in this case are not capable of precise measurement, and that the district court acted within its discretion in its decision on the remittitur. We review for abuse of discretion a district court’s decision with respect to a motion alleging that a jury’s compensatory damages award is excessive as a matter of law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435-39, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th Cir.1999).

In a diversity action, federal courts apply state law standards in considering whether the district court abused its discretion when ruling on a motion relating to a jury’s damages award. Konkel, 165 F.3d at 280-81. In undertaking this review, we give “the benefit of every doubt to the judgment of the trial judge.” Id. (citation omitted). In the present case, Fontenot sought compensatory damages under North Carolina General Statutes

Section 28A-18-2, on behalf of herself and Turner’s father whom Fontenot had divorced when Turner was about four years old. In relevant part, that statute allows for “compensation for the loss of the reasonably expected ... [s]ervices, protection, care and assistance of the decedent,” and for the “[s]ociety, companionship, comfort, guidance, kindly offices and advice of the decedent” (collectively, services, care, and companionship), in addition to hospital and funeral expenses. N.C. GemStat. § 28A-18-2 (b)(4)(b-c).

North Carolina courts recognize that such damages often are not capable of “exact ascertainment.” Bowen v. Constructors Equip. Rental Co., 288 N.C. 395, 196 S.E.2d 789, 806 (1973). Nevertheless, “damages available under the statute are not automatic,” and instead “must be proved to a reasonable level of certainty, and may not be based on pure conjecture. ” DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, 493 (1987) (emphasis added).

As an initial matter, we observe that the only methodology suggested by Fontenot to aid the jury’s calculation of compensatory damages was counsel’s suggestion that the jury take just some arbitrary, small, conservative number, like $1,000 for a week. Or if we were to take a bigger number like $2,000 for a week of this loss.

And multiply it out [over a 40 year life expectancy], being conservative, rounding it down, you would get for each plaintiff, a range of let’s say between [$]2 and [$]4 or $5 million. (Emphasis added.) In initially reducing the damages award from $10, million to $7.5 million, the district court referenced counsel’s suggested methodology in determining the “highest amount the jury could have properly awarded,” and stated that the evidence supporting damages was “relatively thin.” Notably, Fontenot failed to. present any evidence showing that Turner’s services, care, and companionship had a value approaching $1000-$2000 per week, per parent.

Additionally, there was no testimony concerning whether, and for what duration, Turner’s parents reasonably expected Turner to continue providing services such as babysitting his younger siblings and assisting with household chores. Accordingly, Fontenot essentially invited the jury and the district court to engage in the type of “pure conjecture” that North Carolina courts have prohibited. See DiDonato, 358 S.E.2d at 493. We nonetheless observe that the testimony of Turner’s parents demonstrated their close relationships with Turner, as well as Turner’s good character.

We have no doubt that Turner had significant value to his parents, and that they are entitled to a substantial award for the loss of his services, care, and companionship. However, we cannot agree that the evidence, viewed in the light most favorable to Fon-tenot, met the required “reasonable level of certainty” to establish that such services, care, and companionship had a monetary value approaching $6.15 million. See id. In reaching a contrary conclusion, the district court abused its discretion. Accordingly, we hold that TI is entitled to a new trial on damages. III.

For these reasons, we affirm the district court’s judgment upholding the jury verdict imposing liability on TI for its negligence. We vacate the district court’s judgment with respect to the remitted award of compensatory damages, and we remand the case to the district court for a new trial limited to the issue of damages. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . Each of the taser’s darts must make contact with the target in order to form an electric circuit that will deliver an electrical current designed to incapacitate the target.

The taser automatically delivers a five-second electrical current when the trigger is pulled, and delivery of the current may be extended by holding or repeatedly pulling the trigger. . “Ventricular fibrillation is the most serious cardiac rhythm disturbance,” and occurs when the “heart’s electrical activity becomes disordered.” American Heart Association, Ventricular Fibrillation (Sept. 5, 2012), http:// www.heart.org/HEARTORG/Conditions/ Arrhythmia/AboutArrhythmia/V entricular-Fibrillation_UCM_324063_Article.jsp. Ventricular fibrillation causes collapse and cardiac arrest.

Id. .The CMPD investigated the incident and found that Officer Dawson’s "prolonged use of the [taser] was not” in accordance with CMPD procedures. Officer Dawson was suspended from duty for five days and was required to undertake additional training. . Although TI later revised its training materials and the X26 taser operating manual before Turner’s death, those revised documents did not provide warnings concerning the risk of ventricular fibrillation or cardiac arrest when the taser is fired at a suspect’s chest.

In particular, the revised X26 training material also included a visual depiction of a police officer aiming the taser at the suspect’s chest. . Fontenot also sought punitive damages on the basis that TI’s conduct was malicious, willful, and wanton, but the district court granted

summary judgment in TI's favor with respect to that aspect of her claim. Fontenot does not appeal from that ruling. . Although the district court instructed the jury to reduce to its present value the monetary value that Turner had to his parents over their expected lifetimes, the court nevertheless concluded that the size of the verdict suggested that the jury did not make that reduction. Therefore, the district court applied a one-percent discount value, as requested by Fontenot, which resulted in an award of $6,156,503.65. Neither party challenges on appeal the district court’s present value determination. .

The term "claimant” is defined in the statute to include a decedent if the claim has been asserted on behalf of the decedent's estate. N.C. Gen.Stat. § 99B-1(1). . For this reason, we reject TI's argument concerning the significance of the legislature’s use of the term "claimant” in

Section 99B-4(3), rather than the term "user.” . Our colleague in dissent relies principally on several North Carolina common law cases which, as discussed in this opinion, are readily distinguishable. In our view, however, any analysis of the issue whether Turner could be found contributorily negligent under

Section 99B-4 should begin with the plain language of that statutory provision. As the Supreme Court of North Carolina has held, "[s]tatutory

interpretation properly begins with an examination of the plain words of the statute." Ocean Hill Joint Venture v. N.C. Dep’t of Env’t, Health, & Natural Res., 333 N.C. 318, 426 S.E.2d 274, 277 (1993) (citation omitted). . The observation that North Carolina product liability cases applying contributory negligence have involved the claimant's use of the allegedly defective product is consistent with the discussion of contributory negligence in this context as stated by well-recognized treatises. See, e.g., Am. L. Prod.

Liab.3d § 40:9 (explaining that in the product liability context, "the plaintiff is required to act reasonably with respect to the product he or she is using ” for purposes of contributory negligence) (emphasis added); Restatement (Second) of Torts § 388 cmt. f (noting that "[t]he person using the chattel may disable himself from bringing an action [ ] by his contributory negligence”) (emphasis added). . The assumption of risk doctrine is distinct from the contributory negligence doctrine under North Carolina law. See Sasser v. Hales Bryant Lumber Co., 165 N.C. 242, 81 S.E. 320, 321 (1914). .

Officer Dawson's receipt and understanding of the information provided by TI distinguishes this case from Edwards v. ATRO SpA, 891 F.Supp. 1074 (E.D.N.C.1995), on which TI relies. In Edwards, the court held that the plaintiff could not prevail on a failure-to-warn theory against a manufacturer of a nail gun that had been discharged accidentally, because neither the plaintiff nor his co-worker had read or obtained the owner’s manual for the nail gun. See id. at 1078. . We are not persuaded by TI's reliance on Marquez v.

City of Phoenix, 693 F.3d 1167, 1172-73 (9th Cir.2012), in which the Ninth Circuit held that TI’s warnings concerning the X26 taser were adequate and ’’capturefd] the circumstances of [that] case.” Among other distinguishable facts, at issue in Marquez was the repetitive use of the X26 taser, rather than the duration of the continuous taser use that is at issue here. Notably, the police officers in Marquez pulled the taser’s trigger 22 times, and the record was unclear concerning the total duration for which Marquez was subjected to the taser’s electrical current. Id. at 1171-72. .

As discussed previously, the district court reduced the jury's initial award of $10 million in compensatory damages to $7.5 million, further remitted the award to about $6.15 million after accounting for present value, and reduced that total to about $5.5 million after deducting money Fontenot received from Food Lion's workers compensation fund and the City of Charlotte. . The statute also allows for the recovery of the decedent's pain and suffering and the net income of the decedent, see N.C. Gen.Stat. § 28A-18-2(b)(2), (b)(4)(a), but Fontenot did not seek such damages in this case.

Additionally, the parties stipulated that Turner's medical and funeral expenses totaled $10,843.52. . In view of our holding that TI is entitled to a new trial on the issue of compensatory damages, we do not consider TI's additional argument that the district court abused its discretion in declining to give certain jury instructions related to the determination of damages.