UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 00-60275
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GARY LEE; AMANDA LEE,
Plaintiffs - Appellants,
versus
E I DUPONT DE NEMOURS & COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
April 19, 2001
ON PETITION FOR REHEARING
(Opinion October 31, 2000, 5th Cir., 2000, _____F.3d_____)
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:
The Petition for Rehearing of Plaintiffs-Appellants Gary and Amanda Lee is GRANTED in
part. The last sentence of the first paragraph in our previous opinion is revised from “We affirm.”
to “We vacate and remand.” We also strike the last three paragraphs and replace them with the
following:
“Finally, the Lees highlight the remedial measures taken by DuPont since the accident as
evidence of de facto control at the time of the accident. The Lees allege that following the accident,
DuPont shut down the chlorinator, headed an investigation into the cause of the fall, and instituted
changes in both the design of the scaffold and the assembly/disassembly procedures. These
allegations were presented to the district court in the Memorandum in Support of Plaintiffs’ Response
to Defendant’s Second Motion for Summary Judgment. The district court’s summary judgment order
does not, however, address the Lees’ remedial measures allegations.
Mississippi generally permits evidence of subsequent remedial measures as relevant to the
issue of past control. See Sumrall v. Mississippi Power Co., 693 So.2d 359, 365 (Miss. 1997) (“We
find that evidence that Mississippi Power shut down the project after the accident and brought in
engineers to ensure the safe completion of the project, although not conclusive, was relevant to
whether Mississippi Power had control at the time of the accident.”). In Sumrall, the plaintiff, an
employee of an independent contractor, sued Mississippi Power for injuries sustained during an
excavation project. The case went to trial, and the jury returned a verdict in favor of Mississippi
Power on the issue of de facto control. Before the Mississippi Supreme Court, Sumrall argued that
the trial court erroneously excluded the evidence of remedial measures taken by Mississippi Power
after the accident. The Supreme Court agreed, and granted a new trial with instructions to the trial
court to admit the evidence under a limiting instruction.1
1
The Supreme Court’s decision was based upon Mississippi Rule of Evidence 407, which
provides that “[w]hen, after an event, measures are taken which, if taken previously, would have
made the event less likely to occur, evidence of subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event. This rule does not require the exclusion
of evidence of subsequent measures when offered for another purpose, such as proving...control....”
Sumrall, 693 So.2d at 365.
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Although Mississippi law is unclear o n the extent to which evidence of remedial measures
alone may be probative of de facto control, under Sumrall it appears that at a minimum such evidence
must be considered in conjunction with the plaintiffs’ broader allegation of de facto control.
Accordingly, we remand to the district court for consideration of the effect of the Lees’ remedial
measures allegations on its grant of summary judgment. See, e.g., Rokohl v. Texaco, Inc., 77 F.3d
126, 130-31 (5th Cir. 1996) (“[e]ven though, in our de novo review, we could consider summary
judgment on that issue, we think it advisable to remand the claim to the district court for it to give
this issue its initial consideration.”).
The district court’s grant of summary judgment to DuPont is VACATED and REMANDED.”
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