IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-30172
__________________________
MARGIE B. BROWN; DIANNE DUGUE;
LORRAINE HUNTER; GLENN BUTLER,
Plaintiffs-Appellants,
v.
CATERPILLAR, INC.,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
(01-CV-1186-N)
___________________________________________________
December 6, 2002
Before JOLLY, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM*:
Margie B. Brown, Dianne Dugue, Lorraine Hunter, and Glenn
Butler (“Plaintiffs-Appellants”) appeal from the district court’s
grant of summary judgment dismissing their products-liability
action against Caterpillar, Inc. (“Caterpillar”). Plaintiffs-
Appellants sued Caterpillar under the Louisiana Products Liability
Act (“LPLA”) as representatives of the estate of George Butler, who
was killed while operating a backhoe manufactured by Caterpillar.
*
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that this opinion should not be published and is not precedent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.
Concluding that Plaintiffs-Appellants have not met their burden of
proffering material evidence of a genuine factual dispute that
would require a jury trial under the LPLA, we affirm.
I. FACTS & PROCEEDINGS
During the course of his employment with Barriere Construction
Company, Inc. (“Barriere”), Butler was killed while operating a
Model 416B backhoe front-end loader (“backhoe”) manufactured by
Caterpillar. No one witnessed Butler’s death, but he apparently
was crushed between the backhoe’s boom and the rear stabilizer.
Butler’s supervisor, David McDaniel, discovered the body
shortly after the accident occurred. When McDaniel reached the
accident scene, he saw that (1) Butler was outside the operator’s
cab, pinned in a standing position between the boom and the rear
stabilizer; (2) the backhoe’s engine was still running; (3) a long
metal bar, neither manufactured nor furnished by Caterpillar, was
protruding from the operator’s cab; and (4) this metal bar was
pressing the swing control lever that activates the boom.
McDaniel does not know why Butler was outside the operator’s
cab, why the metal bar was inside the cab, or why Butler left the
backhoe’s engine running when he dismounted the vehicle. McDaniel
had previously instructed Butler to turn off the backhoe’s engine
when dismounting the vehicle and never to keep tools and supplies
in the operator’s cab. To this date, it is unknown why Butler
dismounted the backhoe, and Barriere’s repeated inspections of the
vehicle following the accident revealed no malfunctions or
2
operational problems.
As part of its manufacturing process, Caterpillar affixes
various warning labels to the Model 416B backhoe. One such
factory-installed decal was affixed in the area where Butler was
killed. It warns: “Stay Clear of this area when machine is
operating. You can be crushed by swinging boom.” Each backhoe is
equipped with a “boom swing lock pin,” which, when enabled, renders
the boom swing inoperative. In addition, an Operation and
Maintenance Manual provided with each backhoe manufactured by
Caterpillar instructs operators to turn off the engine whenever
dismounting. Finally, a decal in the operator’s cab warns users:
“Do not operate or work on this machine unless you have read and
understand the instructions and warnings in the Operation and
Maintenance Manual.”
Plaintiffs-Appellants alleged that Caterpillar was liable for
Butler’s death under the LPLA. They asserted claims based on
allegations of defective design and failure to warn. The district
court granted Caterpillar’s motion for summary judgment and
dismissed the suit against it, finding that Plaintiffs-Appellants
had produced no material evidence that Butler’s death was caused by
either a defective design or a failure to warn users of the
backhoe. Plaintiffs-Appellants timely filed a notice of appeal.
II. ANALYSIS
We review a grant of summary judgment de novo, applying the
3
same standard as the district court.1 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.2 In reviewing all the evidence, the court
must disregard all evidence favorable to the moving party that the
jury is not required to believe, and should give credence to the
evidence favoring the nonmoving party.3 The nonmoving party,
however, cannot satisfy his summary judgment burden with
conclusional allegations, unsubstantiated assertions, or only a
scintilla of evidence.4
The LPLA provides that a “manufacturer of a product shall be
liable to a claimant for damage proximately caused by a
characteristic of the product that renders the product unreasonably
dangerous when such damage arose from a reasonably anticipated use
of the product.”5 To be “unreasonably dangerous,” a product must,
inter alia, suffer from a defect in its design or provide
inadequate warnings.6 Furthermore, “[t]he characteristic of the
1
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
2
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
3
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
151 (2000).
4
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc).
5
LA. REV. STAT. ANN. § 9:2800.54(A) (West 1997).
6
Id. at § 9:2800.54(B)(2)-(3). A product may also be
“unreasonably dangerous” under the LPLA because of its
4
product that renders it unreasonably dangerous must exist at the
time the product left the control of its manufacturer or result
from a reasonably anticipated alteration or modification of the
product.”7
This statute specifies four elements required to make out a
prima facie case against a manufacturer of a product: A “claimant
must show (1) damage, that (2) was proximately caused by (3) a
characteristic of an unreasonably dangerous product during (4) a
reasonably anticipated use of that product.”8 At the summary
judgment stage, plaintiffs typically face a “two-tiered burden”
under the LPLA: they must proffer material evidence indicating that
(1) damage was “caused by a characteristic of the product that
renders it unreasonably dangerous,” and (2) damage occurred during
a “reasonably anticipated use” of the product.9 Having carefully
reviewed the record, the parties’ briefs, and the relevant case law
pertaining to the LPLA, we agree with the district court’s
conclusion that Plaintiffs-Appellants failed to meet both of these
burdens.
construction, id. at § 9:2800.54(B)(1), or its failure to conform
to an express warranty provided by the manufacturer, id. at §
9:2800.54(B)(4).
7
Id. at § 9:2800.54(C).
8
Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir.
1997).
9
Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309
(5th Cir. 1998) (en banc).
5
The principal means by which a products-liability plaintiff
submits material evidence of either a defective design or a failure
to warn is through an expert witness’s report. Yet at the time
Caterpillar filed its motion for summary judgment, Plaintiffs-
Appellants had not produced an expert’s report indicating either
the availability of an alternative design or a risk-utility
analysis indicating the reasonableness of adopting such an
alternative design. A court cannot assess whether a product is
“unreasonably dangerous” without such information.10 The
Plaintiffs-Appellants attempted to remedy this fatal omission by
belatedly filing a letter from their expert, but that
letter——comprising eight brief, summary paragraphs —— does nothing
more than reiterate the conclusional allegations and
unsubstantiated inferences of Plaintiffs-Appellants’ complaint.
In contrast, Caterpillar provided extensive evidence through
its submissions of copies of the warning decals, backhoe
operational manual, deposition testimony, and affidavits, all
showing that the backhoe, at the time it left Caterpillar’s
control, was reasonably safe and provided adequate warnings.
Simply put, Plaintiffs-Appellants have utterly failed to provide
factual support for a single, specific material allegation that
10
See Lavespere v. Niagara Machine & Tool Works, Inc., 910
F.2d 167, 183 (5th Cir. 1990) (affirming, under the LPLA,
summary judgment for manufacturer because plaintiff’s “proof of
the risk that might have been avoided by the alternative design
and of the burden that switching to that design would have
entailed was, to say the least, incomplete”)
6
would satisfy their burden under either the LPLA or Rule 56.11
Furthermore, Plaintiffs-Appellants have not offered any
material evidence indicating that Butler was engaged in a
“reasonably anticipated use” of the backhoe when he was killed.
Under the LPLA, “a manufacturer will not be responsible for
accounting for every conceivable foreseeable use of a product.”12
“If a plaintiff’s damages did not arise from a reasonably
anticipated use of the product, then the ‘unreasonably dangerous’
question need not be reached.”13 Thus, if at the time of the
accident, Butler was using the backhoe in a manner that could not
reasonably have been anticipated by Caterpillar, neither we nor the
district court need even reach the issue whether the backhoe is
“unreasonably dangerous.”
Plaintiffs-Appellants submitted only pure conjecture —— their
self-admitted suspicion —— that Butler may have been attempting to
investigate or fix a mechanical failure on the backhoe. They offer
no evidence for this theory beyond a purely speculative inference,
11
Green v. BDI Pharmaceuticals, 803 So. 2d 68, 72 (La. Ct.
App. 2001) (affirming summary judgment for defendant because
plaintiff’s “opposition to the motion for summary judgment, and
the attached documents, contained nothing related to any
alternative design”).
12
Butz v. Lynch, 762 So. 2d 1214, 1218 (La. Ct. App. 2000).
13
Kampen, 157 F.3d at 309. See also Johnson v. Black &
Decker U.S., Inc., 701 So. 2d 1360, 1366 (La. Ct. App. 1997) (“A
manufacturer can be liable only if the damage arose from a
reasonably anticipated use of the product, and if not, then a
court need not reach the issue of whether the product is
unreasonably dangerous.”).
7
based on their interpretation of a photograph of the backhoe taken
after the accident, that there might have been an “implied leak” of
hydraulic fluid. It remains essentially unknown, however, why
Butler dismounted from the backhoe; and Barriere’s documented
inspections of the backhoe after the accident revealed no evidence
of such a fluid leak —— or of any other malfunctions or operational
problems for that matter.
III. CONCLUSION
Like their summary judgment submissions, Plaintiffs-
Appellants’ briefs contain a dearth of substantiated material
facts, but a plethora of unsubstantiated assertions and speculative
inferences piled on top of speculative inferences. Under both the
LPLA and Rule 56,14 a products-liability plaintiff’s “burden is not
satisfied [by asserting] ‘some metaphysical doubt as to the
material facts.’”15 Because Plaintiffs-Appellants have submitted
nothing more than bald assertions that are tantamount to
“metaphysical doubt” concerning Caterpillar’s design of the backhoe
and Butler’s actions at the time of the accident, the district
14
“When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party’s pleading, but
. . . must set forth specific facts showing that there is a
genuine issue for trial.” FED. R. CIV. P. 56(e) (emphasis added).
See also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.
1993) (“Summary judgment is appropriate where critical evidence
is so weak or tenuous on an essential fact that it could not
support a judgment in favor of the nonmovant.”).
15
Little, 37 F.3d at 1075 (quoting Matsushita Elec. Indust.
Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 (1988)).
8
court’s grant of summary judgment dismissing Plaintiffs-Appellants’
action against Caterpillar is, in all respects,
AFFIRMED.
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