Filed: Jun. 27, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT June 27, 2007 Charles R. Fulbruge III Clerk No. 06-60163 LARRY JAMES, Plaintiff-Appellee, versus CINCINNATI INCORPORATED, an Ohio Corporation, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Mississippi (3:03-CV-525) Before SMITH, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* In this Mississippi diversity action, a jury found in favor of Larry J
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT June 27, 2007 Charles R. Fulbruge III Clerk No. 06-60163 LARRY JAMES, Plaintiff-Appellee, versus CINCINNATI INCORPORATED, an Ohio Corporation, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Mississippi (3:03-CV-525) Before SMITH, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* In this Mississippi diversity action, a jury found in favor of Larry Ja..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 27, 2007
Charles R. Fulbruge III
Clerk
No. 06-60163
LARRY JAMES,
Plaintiff-Appellee,
versus
CINCINNATI INCORPORATED, an Ohio Corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:03-CV-525)
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
In this Mississippi diversity action, a jury found in favor of
Larry James on his design-defect claim under the Mississippi
Products Liability Act, MISS. CODE ANN. § 11-1-63 et seq. (MPLA).
Cincinnati Incorporated seeks judgment as a matter of law (JMOL)
and, in the alternative, a new trial or remittitur, claiming, inter
alia, the district court erroneously admitted the testimony of
James’ expert. AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
In 2001, James was injured at work while operating a press
brake: a hydraulic machine for forming sheet metal into shapes
dictated by dies placed in the machine. The press brake was
manufactured by Cincinnati to the specifications of James’
employer, Hunter Engineering. Cincinnati delivered and installed
it in 1988. As delivered, the press brake was not equipped with
certain safeguards for its point of operation: the point at which
the die contacts the metal. The machine could be placed into
operation by either a foot switch or dual palm buttons.
Use of those buttons, by requiring the operator’s hands to be
employed in activating the machine, ensures their removal from the
point of operation. On the other hand, use of the foot switch
leaves the operator’s hands free, if not otherwise prevented by
safeguards, to be in the point of operation when the die descends.
This is what happened to James, who was aligning a piece of metal
(piece part) in the machine when his hand was caught in the point
of operation.
Subsequently, Cincinnati assisted Hunter in its safeguarding
the subject press brake with a “light curtain”: a presence-sensing
device utilizing beams of light which, when broken, cause the press
brake to stop.
James sued Cincinnati in Mississippi state court under the
MPLA, claiming the press brake was defectively designed.
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Cincinnati removed this action to federal court, based on diversity
jurisdiction.
In support of his MPLA claim, James intended to present expert
testimony through L.D. Ryan that the press brake was defectively
designed because it had not been manufactured with a light curtain.
Cincinnati moved in limine to exclude that testimony, asserting:
Ryan was unqualified; and his testimony was unreliable, and
therefore inadmissible, under Federal Rule of Evidence 702
(testimony by experts) and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). The motion was denied; but, the court
did impose some limitations on that testimony.
The jury found for James on his MPLA claim, awarding him
compensatory damages of $850,000 and assessing 60% fault to
Cincinnati, 30% to Hunter, and 10% to James. Cincinnati, having
moved for JMOL at the close of James’ evidence and at the close of
all the evidence, again moved for JMOL, or, alternatively, for a
new trial or a remittitur. This post-verdict motion was denied.
II.
Primarily at issue is whether the district court erred in:
admitting Ryan’s testimony; and denying Cincinnati JMOL. Also at
issue is whether it erred in denying Cincinnati’s alternative
motion for a new trial or remittitur, in the light of: its
refusing a jury instruction requested by Cincinnati; a cross-
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examination question by James’ counsel; and the amount of the jury
award. Each contention fails.
A.
In deciding whether JMOL should have been awarded, an
appellate court must consider only admissible evidence. Therefore,
before reviewing the JMOL-denial, the contested admission of Ryan’s
testimony must be addressed. See Hodges v. Mack Trucks, Inc., 474
F.3d 188, 193 (5th Cir. 2006).
1.
The admission of expert testimony is reviewed only for abuse
of discretion. E.g., Guy v. Crown Equip. Corp., 394 F.3d 320, 324-
25 (5th Cir. 2004). For reversible error, the ruling must affect
a substantial right. FED. R. CIV. P. 61 (harmless error); FED. R.
EVID. 103(a), (d) (evidentiary rulings); e.g.,
Guy, 394 F.3d at 324.
Moreover, “[b]ecause a district court has broad discretion in
deciding the admissibility vel non of expert testimony, we will not
find error unless the ruling is manifestly erroneous”.
Guy, 394
F.3d at 325 (emphasis in original) (citations omitted). “‘Manifest
error’ is one that ‘is plain and indisputable, and ... amounts to
a complete disregard of the controlling law’.”
Id. (quoting
Venegas-Hernandez v. Sonolux Records,
370 F.3d 183, 195 (1st Cir.
2004)). For the reasons that follow, there was no manifest error.
Federal Rule of Evidence 702, as amended post-Daubert,
requires a party seeking to introduce expert testimony to show:
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“(1) [it] is based upon sufficient facts or data, (2) [it] is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the
case”. FED. R. EVID. 702. Cincinnati challenges Ryan’s testimony
as unreliable for several reasons, including: he is a specialist
in neither press brakes nor light curtains; he has previously been
found an unreliable expert witness; he failed to subject his theory
to peer review; he failed to examine the subject press brake or
piece part; and he failed to examine or test any light curtains to
determine, inter alia, if they would have prevented James’ injury.
(It bears noting that, during Ryan’s testimony, despite
Cincinnati’s numerous challenges to its bases, it objected only
twice. Moreover, many of those challenges were developed through
its extensive cross-examination of Ryan.)
“[W]hether a proposed expert should be permitted to testify is
case, and fact, specific”. Hodges, 474 F.3d at 194. Ryan, an
engineer with an advanced degree in mechanical engineering and many
years experience in product design, opined, inter alia: James’
injury was not caused by a press-brake malfunction, but by his
inadvertently activating the press brake using its foot switch;
accordingly, there was no need to examine the subject press brake;
the duty to safeguard the press brake should be imposed on
Cincinnati, the manufacturer; and the addition of light curtains
was a feasible design alternative, appropriate for most press-brake
5
operations, that would have prevented James’ injury. In
formulating his opinion, Ryan interviewed James and, inter alia,
reviewed: depositions of other Hunter employees; pictures of the
subject press brake; Cincinnati’s relevant product literature;
relevant regulations and industry standards; and patents for light
curtains and other press-brake safeguards.
Among other things, Ryan did not test his proposed design
alternative. Light curtains, which are sold by third-party
vendors, are specifically listed, however, as a safeguarding option
in Cincinnati’s relevant product literature. Along that line, as
noted, subsequent to James’ injury, Cincinnati assisted Hunter in
safeguarding the subject press brake with a light curtain.
Accordingly, Ryan’s failure to test is not fatal to his testimony.
See Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997)
(“[t]esting is not an absolute prerequisite to the admission of
expert testimony on alternative designs” (internal quotation marks
omitted)).
2.
Regarding the JMOL-denial, Cincinnati primarily contends there
was insufficient evidence to establish, as required for an MPLA
design-defect claim: the product “was designed in a defective
manner”, MISS. CODE ANN. § 11-1-63(a)(i); or “there existed a
feasible design alternative that would have to a reasonable
probability prevented the harm ... without impairing the utility
6
..., practicality, or desirability of the product”, § 11-1-
63(f)(ii).
A JMOL-denial is reviewed de novo. E.g., Hodges, 474 F.3d at
195. JMOL is proper when “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for
the party on that issue”. FED. R. CIV. P. 50(a)(1) (as amended
effective 1 December 2006); see also FED. R. CIV. P. 50(b) (as
amended effective 1 December 2006) (post-trial JMOL). All of the
admissible evidence is reviewed, of course; but, we may not make
credibility determinations or weigh evidence. E.g., Arsement v.
Spinnaker Exploration Co., LLC,
400 F.3d 238, 249 (5th Cir. 2005).
Further, that evidence, and all reasonable inferences from it, are
viewed in the light most favorable to the verdict. E.g.,
id.
Viewed in that light, a reasonable jury could find for James
on the contested MPLA design-defect elements. In addition to
Ryan’s above-described testimony and Cincinnati’s relevant product
literature, Cincinnati’s expert: testified that the press brake
had been subsequently safeguarded with a functioning light curtain;
and acknowledged the possibility that an operator’s arm could have
broken the beams of a safeguard light curtain while reaching into
the point of operation during the subject bending operation.
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B.
Cincinnati contests the denial of its alternative motion for
a new trial or remittitur. The denial of a new-trial motion is
reviewed for abuse of discretion. E.g., Whitehead v. Food Max of
Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998). The remittitur
standard of review is discussed in part II.B.3.
Cincinnati advances three bases in support of its alternative
claim, each of which is unavailing. (Because the district court
did not err in denying JMOL, to the extent Cincinnati challenges
the denial of a new trial based on insufficient evidence, such
challenge fails. See id. (noting our JMOL-denial standard of
review “is far easier to satisfy than” that for denial of a new
trial based on insufficient evidence)).
1.
Cincinnati contests the district court’s not allowing its
requested instruction regarding intervening or superseding
negligence. Such a refusal is reviewed for abuse of discretion.
Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir.
2004). An instruction-refusal is reversible error “only if the
[requested] instruction 1) was a substantially correct statement of
law, 2) was not substantially covered in the charge as a whole, and
3) concerned an important point in the trial such that the failure
to instruct the jury on the issue seriously impaired the [party’s]
ability to present a given [defense]”.
Id. (second alteration in
8
original) (internal quotation marks omitted). There was no abuse
of discretion.
Consistent with its claim that Hunter violated OSHA
regulations by failing to safeguard the press brake, Cincinnati
requested a jury instruction that Hunter’s negligence could
constitute an intervening or superseding cause of James’ injury,
relieving Cincinnati of liability. The instruction was refused
because the district court found, as a matter of law: Hunter’s
failure to safeguard was not so unforeseeable as to relieve
Cincinnati of potential liability.
The requested instruction, which focused primarily on
foreseeability, was a substantially correct statement of law. See,
e.g., Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (Miss.
2002). Nonetheless, it was covered substantially in the charge as
a whole, which, inter alia: stated “[n]egligence is a proximate
cause of an injury if it directly, and in natural and continuous
sequence, produces or contributes substantially to producing such
injury”; stated “[a]n element or test of proximate cause is that an
ordinarily prudent person should reasonably have foreseen that some
injury might probably occur”; and allowed the jury, in determining
whether the press brake was defectively designed, to “consider[,
inter alia,] ... [Cincinnati’s] foreseeability that [Hunter] would
not supply proper safety accessories even though aware of the
machine’s danger without them”.
9
2.
Cincinnati next maintains a new trial should be granted
because of a question by James’ counsel while cross-examining
Cincinnati’s product-safety manager. Counsel asked the following
about an unrelated, but factually similar, case: “[Y]our company
was assessed damages in the amount of $450,000, were [sic] they
[sic] not?” The witness responded: “I don’t know. Don’t
remember.” Cincinnati did not object, but now maintains the
question was meant to mislead, prejudice, and confuse the jury.
As Cincinnati concedes, its not having objected in district
court dictates only plain-error review. E.g., Tompkins v. Cyr, 202
F.3d 770, 779 (5th Cir. 2000); see also FED R. EVID. 103(d). Under
such review, Cincinnati must show a clear or obvious error that
affected its substantial rights. E.g.,
Tompkins, 202 F.3d at 779.
Even then, we retain discretion to correct the error; ordinarily,
we will not do so unless it “would seriously affect the fairness,
integrity or public reputation of judicial proceedings if left
uncorrected”.
Id.
Needless to say, the question falls far short of constituting
reversible plain error, particularly in the light of: its isolated
nature; the witness’ not confirming the prior verdict; and the jury
instructions, which specified that “any statements ... made by the
lawyers are not evidence in the case” and “what the lawyers say is
not binding upon you”. See, e.g., Dixon v. Int’l Harvester Co.,
10
754 F.2d 573, 586 (5th Cir. 1985) (where plaintiff’s counsel
requested jury to “send a message”, there was no plain error “[i]n
view of the [statement’s] context ... and the court’s lengthy
instructions to the jury making clear that it was to decide the
case based solely upon the evidence”).
3.
Finally, Cincinnati contends, particularly in the light of the
above-discussed question by James’ counsel, that the jury award was
against the overwhelming evidence and indicated speculation,
passion, and confusion.
In reviewing a jury award, we are reviewing the denial of a
motion for a new trial or remittitur. E.g., Green v. Adm’rs of the
Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002). “A jury
award is entitled to great deference and should not be disturbed
unless it is entirely disproportionate to the injury sustained.”
Id.
The award was supported by adequate evidence. The jury was
presented with: medical-expenses and lost-wages evidence; and
evidence that James’ injury resulted in a permanent impairment to
his dominant hand. Further, the jury was instructed to consider,
inter alia, James’ pain and suffering, mental anguish, and loss of
enjoyment of life.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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