United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 21, 2003
____________________
Charles R. Fulbruge III
02-30582 Clerk
____________________
KEITH H. JONES,
Plaintiff-Appellant,
versus
FLOWSERVE FCD CORP.; FLOWSERVE FSD CORP.; FLOWSERVE, INC.,
formerly known as Duriron Company, Inc.; FLOWSERVE RED CORP.,
Defendants-Intervenor Defendants-Appellees,
versus
PPG INDUSTRIES, INC.,
Intervenor Plaintiff-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-1621)
_________________________________________________________________
Before WIENER and BARKSDALE, Circuit Judges, and FURGESON,
District Judge*.
PER CURIAM:**
Keith Jones and his employer, PPG Industries, Inc.
(Plaintiffs), challenge the summary judgment awarded Defendants
*
District Judge of the Western District of Texas, sitting
by designation.
**
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that this opinion should not be published and is not precedent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.
(Duriron) against claims under the Louisiana Product Liability Act,
LA. REV. STAT. § 9:2800.51, et seq. (LPLA). Primarily at issue is
whether, for the failure-to-warn claim, PPG was a “sophisticated
user”. AFFIRMED.
I.
Jones worked in PPG’s Lake Charles, Louisiana, chemical plant.
In 1998, he opened a valve on a tank containing hot brine. Because
of stress corrosion cracking (SCC), the bolting securing the top
portion of the valve failed; Jones was sprayed with the brine and
injured. The bolting was susceptible to SCC because it was
stainless steel and the valve was used in a high-chloride
environment.
The valve, the Durco T-41, had been manufactured between 1977
and 1983 by Duriron (now known as Flowserve). Duriron marketed and
sold similar valves to industrial and chemical plants, including
PPG. During this period, Duriron issued a catalog insert to its
purchasers noting, inter alia, the stainless steel nature of the
bolting. Concerning the valve at issue, PPG’s Lake Charles plant
specified it would accept any of three valve models, including the
Durco T-41. The plant did not, however, specify the type bolting
— stainless or carbon steel — to be used for those valves.
Stainless steel bolting was the industry standard before 1984.
Prior to then, however, Duriron had made carbon steel bolting
available to PPG as an option. (Carbon steel is not susceptible to
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SCC; it is, however, susceptible to general corrosion.) In fact,
since 1969, PPG had refused to use stainless steel bolting at its
plant in Natrium, West Virginia; prior to 1984, that plant
specified carbon steel bolting.
In 1984 (after the valve in question had been sold to PPG),
the chemical process industry recognized the risk of SCC for
stainless steel bolting in high-chloride environments and
recommended that carbon steel be used instead. After the industry
standard changed, Duriron began using carbon steel bolting in its
standard Durco T-41 model. Duriron did not, however, notify PPG of
this change.
Jones filed this action in Louisiana state court, claiming
Duriron violated the LPLA through: (1) the valve’s defective
design; (2) its defective manufacture; and (3) Duriron’s failure to
warn PPG of the dangers of stainless steel bolting in a high-
chloride environment. After Duriron removed this action to federal
court, PPG intervened to recoup workers’ compensation paid Jones.
Duriron moved: (1) to strike an affidavit in opposition to
summary judgment by one of Plaintiffs’ experts, Dr. Morse; and (2)
for summary judgment. Pursuant to an extremely comprehensive
opinion, both motions were granted.
II.
Plaintiffs challenge the summary judgment against their
defective design and failure-to-warn claims. In conjunction with
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the design claim, they contend the district court erred in striking
Dr. Morse’s affidavit; it was the primary basis for that claim.
A summary judgment is reviewed de novo, “employing the same
analysis as the district court”. Wyatt v. Hunt Plywood Co., Inc.,
297 F.3d 405, 408 (5th Cir. 2002), cert. denied, 123 S. Ct. 1254
(2003). The judgment is proper only if there is no genuine issue
of material fact and the movant is entitled to a judgment as a
matter of law. FED. R. CIV. P. 56(c); e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Under Louisiana law, the LPLA “establishes the exclusive
theories of liability for manufacturers for damage caused by their
products”. LA. REV. STAT. § 9:2800.52. To be liable under the LPLA,
a manufacturer must produce an item that is, inter alia,
“unreasonably dangerous”. LA. REV. STAT. § 9:2800.54(A). Along this
line, a product may be unreasonably dangerous: (1) in construction
or composition; (2) in design; (3) because of failure to warn about
the product; or (4) because of non-conformity with a manufacturer’s
express warranty. LA. REV. STAT. § 9:2800.54(B). Again, Plaintiffs
present design and failure-to-warn issues.
A.
Under the LPLA, a product is “unreasonably dangerous in
design” if: (1) an alternative design existed; and (2) “[t]he
likelihood that the product’s design would cause the claimant’s
damage and the gravity of that damage outweighed the burden on the
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manufacturer of adopting such alternative design and the adverse
effect ... of such alternative design on the utility of the
product”. LA. REV. STAT. § 9:2800.56. A plaintiff has the burden
of proof for these elements. LA. REV. STAT. § 9:2800.54(d).
Regarding possible alternative designs for the valve, Plaintiffs
contend the affidavits and deposition testimony of Drs. Morse,
Shelton, and Slater provide sufficient evidence to withstand
summary judgment.
In his affidavit in Plaintiffs’ amended opposition to summary
judgment, Dr. Morse maintained, inter alia, that the valve was
“unreasonably dangerous and could and should have been changed
under the circumstances that the valve was sold”. The affidavit
listed four alternative designs: (1) use of carbon, as opposed to
stainless, steel bolting; (2) addition of Teflon coating to the
bolting; (3) addition of a Teflon sleeve around the bolting; and
(4) expansion of the crevice (where the chloride contacted the
bolting) between valve pieces connected by the bolting, in order to
alert maintenance workers to the possibility of SCC. (In district
court, Plaintiffs referred to their “material choice” claim as one
for a defect in construction or composition. See LA. REV. STAT. §
2800.55. Now they group this claim with their design claims, along
the lines of Dr. Morse’s affidavit.)
Plaintiffs also contend: (1) the deposition of Dr. Shelton
(their other expert) raised a material fact issue for two of the
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claimed design defects (stainless, instead of carbon, steel; and
crevice size); and (2) the deposition of Dr. Slater (Defendants’
expert) created a material fact issue concerning the crevice size.
1.
In striking Dr. Morse’s affidavit, the district court ruled
that “these alternative designs were not disclosed to the
Defendants during discovery”, insofar as neither Dr. Morse’s report
nor his deposition provided opinions on alternative designs. See
FED. R. CIV. P. 26(a)(2)(B) (expert witnesses required to submit
report containing a “complete statement of all opinions to be
expressed and the ... reasons therefor....”).
A district court’s refusal to admit an affidavit is reviewed
for abuse of discretion. E.g., Valdez v. Cockrell, 274 F.3d 941,
957-58 (5th Cir. 2001), cert. denied, 123 S. Ct. 106 (2002). In
addition, an abuse of discretion is further reviewed under the
harmless error doctrine: “[W]e will affirm the evidentiary rulings
unless they affect a substantial right”. United States v.
Hefferon, 314 F.3d 211, 222 (5th Cir. 2002).
Plaintiffs contend Dr. Morse’s report and deposition disclosed
the alternative designs about which he opined in his subsequent
affidavit in opposition to summary judgment. In his report, Dr.
Morse stated in pertinent part: “Duriron should have specified
carbon steel bolts instead of stainless steel bolts, since the
carbon steel bolts are not subject to SCC. [Carbon steel bolts] are
6
subject to general corrosion, but it is much easier to detect and
easier to predict”. He concluded: “It is my opinion that the
valve was defective and unreasonably dangerous”.
When deposed, Dr. Morse was questioned about this conclusion.
He stated that the only defect he had been describing was the
stainless steel bolting “[t]hat w[as] susceptible to [SCC] under
the conditions ... that the valve was in”. Immediately thereafter,
he agreed that the type bolting — stainless steel — was the only
design defect to which his report had referred.
Along this line, concerning the three earlier-described
alternative designs in addition to using carbon steel, Plaintiffs
contend: (1) Dr. Morse noted the fact of the crevice in his report
and deposition; and (2) regarding the two Teflon alternatives, Dr.
Morse’s report put Defendants on notice that design defects were
generally at issue. Neither contention satisfies Rule 26(a)(2)(B).
In the light of Dr. Morse’s above-described deposition testimony,
the only design defect addressed in his report and deposition was
the type bolting used in the valve.
Accordingly, the other three design defects described in Dr.
Morse’s affidavit (small crevice and lack of Teflon coat and
sleeve) were not disclosed to Defendants as required. Therefore,
the district court did not abuse its discretion by striking those
three new alternative designs described in the affidavit.
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Dr. Morse’s affidavit contained the entirety of Plaintiffs’
evidence regarding the Teflon design alternatives; therefore,
summary judgment for Defendants on those two sub-claims was proper.
As discussed infra: (1) the exclusion of the “material choice”
portion of Dr. Morse’s affidavit was harmless error; and (2)
Plaintiffs offered other evidence in support of their crevice-size
claim.
2.
Because Dr. Morse had earlier stated in his report and
deposition that carbon steel bolting would have been a more
suitable alternative design, the district court may have abused its
discretion by striking that portion of his affidavit. However, as
discussed supra, the abuse of discretion, if any, is subject to
harmless error analysis. Hefferon, 314 F.3d at 222.
As noted, for an LPLA design defect claim: (1) an alternative
design must have existed; and (2) the likelihood and gravity of the
product’s design causing damage must have outweighed the burden of
adopting the alternative design, including the adverse effect that
design would have on the product’s utility. LA. REV. STAT. §
9:2800.56. In this regard, a plaintiff must produce evidence
regarding
the frequency of accidents like his own, the
economic costs entailed by those accidents, or
the extent of the reduction in frequency of
those accidents that would have followed on
the use of his proposed alternative design ...
the burden of switching to the alternative
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design ... [or] the loss of product utility
that the use of the alternative design would
have occasioned.
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 183
(5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994).
Although Dr. Morse’s affidavit might present a material fact
issue on the existence of an alternative design capable of
preventing the damage at issue (the first prong of LA. REV. STAT. §
9:2800.56), it does not provide any evidence for whether the
potential for damage created by using stainless steel “outweighed”
the attendant burden on Duriron and the adverse effect of the
carbon steel on the valve’s utility. See LA. REV. STAT. §
9:2800.56(2).
As stated earlier, Plaintiffs contend that the affidavit of
their other expert, Dr. Shelton, created a material fact issue on
Duriron’s choice of stainless, over carbon, steel. Dr. Shelton’s
affidavit did not state, however, that Duriron should have used
only carbon steel in its T-41 valves or that stainless steel
bolting did not have unique benefits. Instead, he only stated:
Duriron should have warned PPG not to use stainless steel bolting
in valves placed in high-chloride environments; and Duriron should
have “considered” SCC in its selection of stainless steel bolting.
In sum, Plaintiffs have produced no evidence that the putative
benefits of Duriron’s use of carbon steel bolting would have
9
outweighed the benefits of using stainless steel. This absence is
especially noteworthy in the light of other parts of the summary
judgment record. PPG Senior Design Engineer Alfred Spencer
testified that, in non-chloride environments, he would choose
stainless, instead of carbon, steel bolting. Presumably, this is
because, as PPG Principal Project Engineer, Don Haines, wrote, the
use of stainless steel “g[o]t around” the problem of carbon steel’s
vulnerability to general corrosion. Along this line, Dr. Slater
(Defendants’ expert) stated: “A valve manufacturer typically
manufactures a valve for the broadest spectrum of use”. This
spectrum would include use in non-chloride environments. Finally,
Plaintiffs do not dispute that stainless steel was the prevailing
type bolting used by the industry pre-1984, when the valve at issue
was manufactured and sold to PPG.
Therefore, Duriron was entitled to summary judgment on
Plaintiffs’ “material choice” design claim. Accordingly, the
district court’s refusal to admit that portion of Dr. Morse’s
affidavit opining that the valve’s stainless steel bolting was an
unreasonably dangerous design was harmless error.
3.
As noted, the stricken Dr. Morse affidavit recommended a
larger crevice. Again, the crevice was the gap between the
portions of the valve connected by the stainless steel bolting. As
also noted, Plaintiffs contend that, regarding crevice size, Dr.
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Shelton’s deposition established a material fact issue to preclude
summary judgment. The relevant colloquy was:
Q. Did you find any general corrosion?
A. There was plenty of general corrosion on
the valve body.
Q. On the bolts.
A. Generally speaking, it looked more like
it was crevice corrosion type of —
Q. I’m not familiar with that term. Is
crevice corrosion not general corrosion?
A. No, it’s not.
Q. What is it?
A. Crevice corrosion is an accelerated
corrosion mechanism, in which you have a
confined space in which the environment cannot
be readily flushed or changed.
For example, a gap between the shank of
the bolt body and the valve flange, the hole
in the back of the valve flange, would be a
crevice. That is not an area that’s readily
accessible, readily changed in the environment
that exists.
Unlike Dr. Morse’s affidavit (stricken), Dr. Shelton did not
recommend in his deposition that the crevice be expanded in order
to allow Plaintiffs to more easily observe SCC. Nor did he even
mention crevice size in his subsequent affidavit in Plaintiffs’
amended opposition to summary judgment. Therefore, Dr. Shelton’s
testimony is insufficient to preclude summary judgment against the
“crevice” portion of Plaintiffs’ design claims.
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Finally, with regard to crevice size, Plaintiffs contend that
the deposition of Defendants’ expert, Dr. Slater, precluded summary
judgment. Dr. Slater testified that the ideal design for a valve
would have no crevice (not a larger one) in order to prevent
contact between the bolting and the brine. This testimony does not
support Plaintiffs’ design defect theory which criticized the
narrowness of the crevice. Moreover, Plaintiffs’ counsel prefaced
the pertinent question by saying: “I don’t think I’m asking [Dr.
Slater] to talk about the design issue, I’m simply asking him the
physical question of whether ...[,] if there wasn’t a crevice[,]
would there be a place for the material to stay in contact with the
bolt”. Dr. Slater’s testimony does not create a material fact
issue on this design claim.
B.
Plaintiffs’ remaining claim is that Duriron failed to
adequately warn PPG against using stainless steel bolting in high-
chloride environments when it was reasonably foreseeable that PPG
would so use the valves.
A manufacturer of a product who, after the
product has left his control, acquires
knowledge of a characteristic of the product
that may cause damage and the danger of such
characteristic ... is liable for damage caused
by his subsequent failure to use reasonable
care to provide an adequate warning of such
characteristic and its danger to users and
handlers of the product.
LA. REV. STAT. § 9:2800.57(C).
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A manufacturer, however, does not have a duty to warn if
“[t]he user or handler of the product already knows or reasonably
should be expected to know of the characteristic of the product
that may cause damage and the danger of such characteristic”. LA.
REV. STAT. § 9:2800.57(B)(2). Such users are “sophisticated users”
or “sophisticated intermediaries”. E.g., Swope v. Columbian Chems.
Co., 281 F.3d 185, 205-06 (5th Cir. 2002). The summary judgment
against the failure-to-warn claim was based on PPG’s being such a
user.
Plaintiffs maintain PPG was not a sophisticated user of
stainless steel bolting in high-chloride environments.
Essentially, they contend: PPG did not know of the danger of
stainless steel bolting in such an environment; and, at the very
least, Duriron should have warned of that danger in 1984, when it
changed its standard Durco T-41 bolting from stainless to carbon
steel. (Again, the valve at issue was manufactured and sold to PPG
between 1977 and 1983; the injury was in 1998.)
Plaintiffs rely on Swope, in which our court reversed a
summary judgment awarded a generator manufacturer, rejecting a
“sophisticated user” defense. 281 F.3d at 205-11. The
manufacturer had claimed plaintiff, a carbon black manufacturer,
was a sophisticated user of ozone generators. Id. at 190. The
generator manufacturer offered two contentions to support its
“sophisticated user” defense: (1) because plaintiff had experience
13
with ozone generators, it should have known of their dangerousness;
and (2) because plaintiff was experienced in using ozone to produce
carbon black, it should have known of the dangerous characteristics
of the ozone generator. Id. at 208-09. Our court rejected the
latter contention: “The argument begs the question because it
bases a conclusion on an assumption that is as much in need of
proof or demonstration as the conclusion itself”. Id. at 209
(internal quotation and alteration omitted). (Our court dismissed
the former contention because, although a jury might infer
knowledge from experience with the particular generator, it also
might not. Id. at 208.)
Had Duriron merely contended, similar to the contention in
Swope, that PPG was a sophisticated user of stainless steel bolting
because it had extensively used it in its chemical processing,
Swope would be apposite. Duriron offered significantly more,
however, in support of its defense.
First, PPG’s West Virginia plant had rejected stainless steel
bolting (also from Duriron) for use in its high-chloride
environment since 1969 and had specified carbon steel prior to
1984. Plaintiffs contend this differing behavior by two PPG plants
shows PPG was not a sophisticated user. To the contrary, it
demonstrates that PPG’s Lake Charles plant knew, or certainly
should have known, of such dangers in using stainless steel bolting
when it purchased the valve from Duriron, and certainly before
14
Duriron changed the standard bolting on the Durco T-41. Although,
in retrospect, PPG’s Lake Charles plant may have erred, the fact
that another PPG plant specified carbon steel shows that PPG
qualified as a sophisticated user of valve bolting.
Second, PPG produced a Teflon coating “intended for use on
austenitic stainless and carbon steel to provide protection against
... [SCC] ....” In short, PPG was aware of the danger posed by
using non-coated stainless steel bolting in high-chloride
environments.
Finally, Haines, PPG’s employee, testified that PPG’s Lake
Charles plant had experienced SCC in stainless steel bolting only
six months before Jones’ incident. In that earlier incident, the
valve involved was also made by Duriron and had been exposed to a
higher level of chloride than the valve at issue here. The earlier
incident should have put PPG’s Lake Charles plant on notice of the
danger of such use of stainless steel bolting (as discussed, that
plant had known, or should have known, of the danger for many
years).
Plaintiffs point to language in Swope that a user must have
known of the danger at the time it purchased the product. First,
that language (in a footnote) is dicta. See Swope, 281 F.3d 209
n.81 (“We do not base our decision ... on this statutory nuance,
however, because there is no evidence that [the user] ever acquired
15
actual or constructive knowledge of the dangerous characteristic
prior to [the incident].” (emphasis added)).
Second, the language in Swope was an interpretation of §
9:2800.57(A), which mandates adequate warning for a dangerous item
when it leaves the manufacturer’s control. Plaintiffs rely instead
on § 9:2800.57(C), which requires a manufacturer that learns of the
danger after the product leaves its control to warn users. The §
9:2800.57(B) “sophisticated user” defense is tied to the general
requirement that the manufacturer provide an adequate warning. It
stands to reason that, for the “sophisticated user” defense, the
time of the user’s actual or constructive knowledge is tied to when
the duty to warn falls upon the manufacturer. Therefore, at best,
Plaintiffs might argue that the Swope dicta requires PPG to have
had actual or constructive knowledge of the danger at the time
Duriron changed its standard bolting in 1984. As discussed, PPG
had such knowledge prior to then.
Finally, Jones contends: even if PPG was a sophisticated
user, Duriron is not absolved from shouldering its proportionate
share of liability. This contention has no basis in law, Davis v.
Avondale Indus., Inc., 975 F.2d 169, 173 (5th Cir. 1992)
(manufacturer has no duty to warn employee of user that has
knowledge of danger); the “sophisticated user” defense, if
applicable, protects manufacturers from claims made by the user’s
employees.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
17