Lee v. E.I. Du Pont De Nemours & Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-60886

GARY LEE and AMANDA LEE,

Plaintiffs-Appellants,

versus

E.I. DU PONT DE NEMOURS AND COMPANY,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Mississippi

Before GARWOOD, JONES, and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:*

In this diversity case, plaintiffs Gary and Amanda Lee appeal

the district court’s grant of summary judgment in favor of

defendant DuPont. We affirm.

Facts and Proceedings Below

*
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should not be published and is not precedent except under the limited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.
 On September 7, 1993, Gary Lee, an employee of independent

contractor Brown & Root, was injured while disassembling a scaffold

in DuPont’s facility in DeLisle, Mississippi. As Lee and other

Brown & Root employees were disassembling the scaffold inside

DuPont’s chlorinator, Lee stepped on a piece of scaffold flooring1

that then gave way, causing him to fall onto another piece of the

scaffold flooring that was still in place.2

At the time of the accident, Brown & Root was under contract

with DuPont to perform routine scaffold construction, assuming

responsibility for, inter alia, (1) “the employment, control, and

conduct of its employees and for the injury of such employee or

employees,” (2) “moving . . . the materials and equipment delivered

to the job site,” and acknowledging that (3) “it is familiar with

the nature and location of the authorized work and has ascertained

the general and local conditions bearing on the performance of such

work.”

Lee brought suit against DuPont, claiming strict liability,

breach of implied warranties, and negligence based on a theory of

premises liability. His wife, Amanda Lee, joined him in the suit

and claimed loss of consortium. In its initial grant of summary

1
The scaffold flooring consisted of fiberglass plates called “decking”
laid on “grating.” These were then laid on the scaffold frame itself.
2
Lee testified in his deposition that he did not fall from the scaffold
to the ground, but that he fell onto the same level of the scaffold upon which
he was working and upon which the piece of flooring that caused the fall gave
way.

2
judgment in February 1998, the district court dismissed all of the

Lees’ claims and entered a final judgment in favor of DuPont. In

March 1999, however, the district court granted in part the Lees’

timely motion for reconsideration and reopened the case to allow

for the possibility that the Lees might show that DuPont had

retained de facto (as opposed to contractual) control over the

scaffold and that the scaffold was defective. On March 20, 2000,

the district court granted DuPont’s second motion for summary

judgment, not having found any genuine issues of material fact as

to DuPont’s de facto control, any evidence of defects in the

scaffold at the time it was turned over to Brown & Root, or any

facts that would have put DuPont on notice of any dangerous

condition in the scaffold. On March 27, 2000, the district court

dismissed the case.

On the Lees’ appeal, this Court initially affirmed the

district court’s grant of summary judgment. Lee v. E.I. duPont de

Nemours & Co., 230 F.3d 822, 823 (5th Cir. 2000) (Lee I).

Following the Lees’ petition for rehearing, however, the panel

revised its opinion and vacated the judgment. Lee II, 249 F.3d

361, 362 (5th Cir. 2001); Lee III, 249 F.3d 362, 364 (5th Cir.

2001).

In its revised opinion, the panel explained that Mississippi

law generally insulated owners from liability in suits by a

contractor’s employee. Lee III, 249 F.3d at 364. If, however, the

3
owner “retained a substantial ‘right of control over the

performance of that aspect of the work that has given rise to the

injury,’” the owner could be held liable. Id. (quoting Magee v.

Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989)).

As the Lees had not appealed the district court’s holding that the

contractual control over the scaffold had been delegated to Brown

& Root, the panel explained that the right of control could still

be established by de facto control. Lee III, 249 F.3d at 364–65.

The panel went on to hold that neither DuPont’s ownership of the

scaffold nor its right to audit Brown & Root’s work were sufficient

to establish such de facto control. Id. at 365. The panel also

pointed out that under Mississippi law, evidence of subsequent

remedial measures was generally admissible and relevant to the

issue of past control. The panel then remanded the case to the

district court with the instruction to consider “the effect of the

Lees’ remedial measures allegations on its grant of summary

judgment.” Id. at 366.

On September 24, 2002, the district court on remand granted

DuPont’s motion for summary judgment on the issue of subsequent

remedial measures. The Lees timely filed a notice of appeal,

purporting to appeal both the district court’s September 24, 2002

order and its March 27, 2000 order. DuPont moved for dismissal of

the appeal as it pertains to the March 27, 2000 order, and we

granted that motion on January 27, 2003.

4
 Discussion

The Lees argue that the district court erred by granting

summary judgment on the issues of whether DuPont 1) had de facto

control of the assembly and disassembly of the scaffold and the

area encompassing the scaffold, 2) supplied a defective scaffold to

Brown & Root, and 3) negligently failed to maintain the scaffold.

The Lees’ de facto control argument is based on the combination of

DuPont’s alleged remedial measures following Lee’s injury, the

safety regulations that DuPont established and with which Brown &

Root had to comply, DuPont’s right to audit and inspect the

scaffold, and DuPont’s ownership of the scaffold.3

As to the Lees’ de facto control argument, we affirm the

district court’s grant of summary judgment. With respect to the

Lees’ other arguments, we hold that they are precluded by the law

of the case doctrine and the mandate rule and, therefore, we

decline review.

I. Law of the Case Doctrine and Mandate Rule

“An appellate court decision rendered at one stage of a case

constitutes the ‘law of the case’ in all succeeding stages.”

Knotts v. United States, 893 F.2d 758, 761 (5th Cir. 1990). An

issue will be precluded from reconsideration by the law of the case

3
Even though the Lees allocate a significant portion of their brief to
highlight evidence of DuPont’s ownership, safety regulations, and right to audit,
they do correctly clarify that they are not arguing that de facto control can be
established solely upon these bases. Our previous opinion would preclude such
an argument. Lee III, 249 F.3d at 365.

5
“regardless of whether the issue was decided explicitly or by

necessary implication.” Crowe v. Smith, 261 F.3d 558, 562 (5th

Cir. 2001).

A corollary of the law of the case doctrine, the “mandate rule

provides that a district court on remand must implement both the

letter and spirit of the [appellate court’s] mandate, and may not

disregard the explicit directives of that court.” Id. (internal

quotations and citations omitted). Where “further proceedings in

the district court are specified in the mandate [of the Court of

Appeals], the district court is limited to holding such as are

directed.” Id. (internal quotations and citations omitted).

On March 20, 2000, the district court held that the Lees had

failed to meet their summary judgment burden with respect to

whether DuPont had turned over a defective scaffold to Brown & Root

or whether there was a latent defect in the scaffold about which

DuPont should have known and of which it failed to warn Brown &

Root. On March 27, 2000, the district court dismissed the case

with prejudice, and on April 7, 2000, the Lees filed their notice

of appeal.

In our original opinion in this case on October 31, 2000, we

explicitly rejected the Lees’ argument that DuPont had supplied a

defective scaffold to Brown & Root. We stated that the district

court found “no evidence of the alleged defect in the scaffold at

the time it was turned over to Brown & Root, nor any facts that

6
would have put DuPont on notice of any dangerous condition in the

scaffold. We affirm.” Lee I, 230 F.3d at 823. We also stated

that evidence of remedial measures was admissible under Mississippi

law as to the issue of past control, but that it was “unclear . .

. whether in this context such remedial evidence would be

sufficient on its own to establish de facto control.” Id. at 825.

We did not, however, decide the issue, “because even assuming that

de facto control existed, DuPont is still insulated from suit

because of the ‘intimately connected’ exception to premise owner

liability.” Id.

Following our initial opinion, the Lees timely filed a

petition for rehearing, in which they argued that the panel had

erred in its interpretation and application of the “intimately

connected” exception with respect to DuPont’s alleged de facto

control. The crux of the Lees’ argument was that control by

DuPont, de facto or otherwise, was still relevant—regardless of the

“intimately connected” exception.

On April 19, 2001, we granted the Lees’ petition in part and

issued a revised opinion, replacing “We affirm” with “We vacate and

remand.” Lee II, 249 F.3d at 361; Lee III, 249 F.3d at 364. Our

revised opinion omitted any discussion of the “intimately

connected” exception and rewrote and expanded the remedial measures

analysis, holding that the evidence of remedial measures “must be

considered in conjunction with the plaintiffs’ broader allegation

7
of de facto control.” Lee II, 249 F.3d at 361–62; Lee III, 249

F.3d at 365–66. As the district court had yet not addressed the

remedial measures issue, we vacated the grant of summary judgment

and remanded the case with the specific instruction for the

district court to consider the “effect of the Lees’ remedial

measures allegations on its grant of summary judgment.” Lee III,

249 F.3d at 366.

Other than these changes, our revised opinion was identical to

our original opinion. See Lee II, 249 F.3d at 361. Just as in the

original opinion, other than to acknowledge the district court’s

finding that there was no evidence of a defective scaffold, we did

not discuss any further the issues of supplying a defective

scaffold or DuPont being on notice of any dangerous conditions in

the scaffold. Lee I, 230 F.3d at 823; Lee III, 249 F.3d at 364.

Our previous opinion in this case, because of the law of the

case doctrine and the mandate rule, forecloses the Lees’ arguments

that DuPont supplied a defective scaffold to Brown & Root and that

DuPont negligently failed to maintain the scaffold. In light of

the Lees’ arguments in their petition for rehearing—which dealt

exclusively with the proper relationship between de facto control

and the “intimately connected” exception to premises owner

liability—the lack of variation between the two opinions indicates

that we have already decided the issue of whether DuPont supplied

a defective scaffold to Brown & Root. Our revised opinion, just as

8
the original, would still have affirmed the district court’s

decision on this issue were it not for the then-unconsidered

remedial measures allegations. Furthermore, our mandate from the

previous opinion instructed the district court to consider “the

effect of the Lees’ remedial measures allegations on its grant of

summary judgment,” thus limiting the scope on remand to that issue

alone.4 Lee III, 249 F.3d at 366.

Moreover, the issue of DuPont supplying a defective scaffold

to Brown & Root is also precluded by our grant of DuPont’s motion

for a partial dismissal of this appeal as it pertains to the March

27, 2000 order. The district court granted DuPont’s motion for

summary judgment on September 24, 2002, addressing only the issue

of remedial measures, as directed by our mandate. The Lees

subsequently filed their notice of appeal on October 23, 2002,

appealing both the district court’s September 24, 2002 order and

its March 27, 2000 order. The district court’s March 27, 2000

order granted summary judgment in favor of DuPont on several

issues, including the defective scaffold issue. By granting

4
Both the law of the case doctrine and the mandate rule have the same
exceptions to their application: “(1) The evidence at a subsequent trial is
substantially different; (2) there has been an intervening change of law by a
controlling authority; and (3) the earlier decision is clearly erroneous and
would work a manifest injustice.” United States v. Matthews, 312 F.3d 652, 657
(5th Cir. 2002). None of these exceptions apply here, and the Lees do not make
any argument otherwise. No evidence concerning whether DuPont had supplied a
defective scaffold to Brown & Root was before the district court on September 24,
2002, or is before us now, which was not before the district court on March 20,
2000. The Lees merely argue that our previous opinion did not decide the issue
of whether DuPont supplied a defective scaffold. This argument is simply
incorrect.

9
DuPont’s motion for partial dismissal, we have expressly limited

the scope of this appeal to the district court’s September 24, 2002

order granting summary judgment on the issue of subsequent remedial

measures.

In any event, we have found no evidence that the scaffold was

defective when it was turned over to Brown & Root and no facts that

would have put DuPont on notice of latent defects in the scaffold

and of which DuPont failed to warn Brown & Root.

II. De Facto Control and Subsequent Remedial Measures

A. Standard of Review

We review a district court’s ruling on a motion for summary

judgment de novo. Lee III, 249 F.3d at 364. Summary judgment is

proper if the court determines that there are no genuine issues of

material fact and that the moving party is entitled to judgment as

a matter of law. Id; FED. R. CIV. P. 56(c). The court views the

“evidence in the light most favorable to the nonmoving party.” Lee

III, 249 F.3d at 364. A material fact is one that “‘might affect

the outcome of the suit under the governing law,’ and a ‘dispute

about a material fact is ‘genuine’ . . . if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Sulzer Carbomedics, Inc. v. Oregon Cardio-Devices, Inc.,

257 F.3d 449, 456 (5th Cir. 2001) (quoting Anderson v. Liberty

Lobby, Inc., 106 S.Ct. 2505, 2507 (1986)).

B. Material Facts under Mississippi Law

10
 “Because this is a Mississippi-based diversity action, we look

to the substantive law of Mississippi to determine whether . . .

genuine issues of material fact exist.” Lee III, 249 F.3d at 364.

Under Mississippi law, evidence of subsequent remedial measures is

relevant to show that an owner had control, and therefore may be a

material fact. Id. The evidence must show that “‘the owner

maintained substantial de facto control over those features of the

work,’” or in other words, “‘control over the performance of that

aspect of the work,’” “‘out of which the injury arose.’” Id. at

364–65 (quoting Magee, 551 So. 2d at 186). The “feature of the

work” out of which Lee’s injury arose is the process of

disassembling the scaffold. The evidence must also tend to show

that DuPont had such control at the time of the accident. Sumrall

v. Mississippi Power Co., 693 So. 2d 359, 365 (Miss. 1997).

Furthermore, while remedial measures evidence is relevant to the

issue of de facto control at the time of the accident, and

therefore admissible, it is not conclusive. Id. Thus, evidence of

subsequent remedial measures may create a genuine issue of material

fact if, when seen in the light most favorable to the Lees, a

reasonable jury could find that such measures, along with other

evidence, indicate that DuPont did have control over the

disassembly process at the time of Lee’s injury.

C. Evidence of Subsequent Remedial Measures

11
 Having read the summary judgment evidence, we hold that, even

when viewed in the light most favorable to them, the Lees have not

produced evidence of subsequent remedial measures by DuPont that,

alone or together with other evidence, creates a genuine issue of

material fact as to DuPont’s de facto control over the disassembly

process when Lee was injured. Lee’s accident occurred on September

7, 1993. Immediately after the accident, the disassembly process

was halted briefly, and DuPont and Brown & Root personnel began an

investigation inside the chlorinator.5 This initial investigation

inside the chlorinator appears to have involved only asking in

general terms what had happened—with the work crew describing what

they thought had happened—and the taking of photographs by a Brown

& Root employee. Later that day and following the initial on-site

investigation, the same Brown & Root crew that had begun the

disassembly process recommenced that project—without any further

safety instructions or modifications to the disassembly procedures

from either DuPont or Brown & Root—and the crew finished the

disassembly either that day or the next.

Some days thereafter, a committee was formed to investigate

Lee’s accident. The committee was chaired by a DuPont employee and

consisted of both DuPont and Brown & Root personnel, but it was

5
In addition to this initial on-the-scene investigation, the investigation
also involved a meeting on the day of Lee’s accident.

12
apparently run by a Brown & Root employee.6 In time, the committee

issued an injury investigation report with three recommendations:

(1) publicize at all Brown & Root safety meetings; (2) provide a

method to secure the grating to the supporting structure to prevent

the scaffold from shifting during assembly and disassembly; and (3)

develop a standard maintenance procedure (SMP) for assembly and

disassembly of the scaffold, with a daily usage check sheet.7 The

responsibility for the first recommendation (publicizing) was

assigned to a Brown & Root employee (Ed Cooper), while the other

recommendations (providing a method to secure the grating and

developing a SMP) were each coassigned to one DuPont employee

(Rubilynn Tucker) and one Brown & Root employee (Jay Funderburk).

When the report was issued, the first two recommendations were

listed as “Done,” and the recommendation to develop a SMP had a

target date of October 30, 1993.

Some days following Lee’s accident and the disassembly of the

scaffold, at the request of Rubilynn Tucker, Brown & Root employees

reassembled the scaffold to see if it could be “made better.”

While reassembling the scaffold, the Brown & Root employees came up

6
Gerald Van Pelt, a DuPont employee, testified in his deposition that
while he was the committee chairman—because of being the manager over the area
involved with the investigation—the committee was actually run by Ed Cooper, a
Brown & Root employee. The Lees do not present any evidence to show otherwise,
other than the report itself, which lists Van Pelt as the chairman.
7
It appears that the report was issued on or after October 8, 1993. The
report lists the second recommendation as “Done.” Other evidence indicates that
when the report was issued, the second recommendation was indeed complete and the
recommendation was closed in DuPont’s corrective action reporting system on
October 8, 1993.

13
with the idea of making the fiberglass pieces comprising the

decking lighter and bolting these pieces to the grating and to the

scaffold frame. The Brown & Root crew developed the specific ideas

and decided how to do it, but the modifications had to be reviewed

and approved by Tucker of DuPont. The method to secure the grating

to the supporting structure was provided by October 8, 1993, and

the actual modifications to the scaffold design were made sometime

before January 1994.

The evidence shows that the third recommendation—a new

procedure for the assembly and disassembly of the scaffold—was

never implemented. In fact, the evidence indicates that the Brown

& Root employee responsible, Funderburk, told Tucker that the SMP

that was in place at the time of Lee’s accident was sufficient.8

In addition to actions that came out of the injury

investigation report, DuPont also implemented other remedial

changes regarding the chlorinator and the scaffold: (1) installing

and requiring the use of retractable safety lines in the

chlorinator to provide fall protection; (2) sandblasting all

scaffold structural steel to check it for cracks prior to assembly;

and (3) requiring everyone who works on the scaffold to be

certified. Although the safety lines were installed by January

8
One witness, Van Pelt of DuPont, testified in his deposition that he
thought that the SMP had been developed. His testimony, however, was based
merely upon the fact that the recommendation had been closed in DuPont’s
corrective action reporting system and not upon any personal knowledge concerning
the SMP. In fact, one of the persons that he assumed would know about its
development, Tucker, expressly testified that the SMP had not been developed.

14
1994, before the scaffold was assembled again in the chlorinator,

the sandblasting and certification procedures were not implemented

until early 1996—nearly two and a half years after Lee’s accident.

None of these remedial measures subsequent to Lee’s injury

could justify a finding by a reasonable jury that DuPont had de

facto control over the performance of the scaffold disassembly work

at the time of Lee’s injury. At best, these measures are merely

evidence of DuPont’s ownership of the scaffold and chlorinator area

and its right to impose safety regulations and to conduct periodic

inspections. We have already held in this case, however, that

alone, DuPont’s ownership and its safety regulations and inspection

rights are not evidence of de facto control. Lee III, 249 F.3d at

365.

A comparison of this case with the Mississippi Supreme Court’s

decision in Sumrall v. Mississippi Power Co., 693 So. 2d 359, 365

(Miss. 1997), guides our analysis. In Sumrall, Mississippi Power

hired an independent contractor to install a new discharge system

for its fly ash pond. During the project, which involved digging

a deep trench, Sumrall, an employee of the independent contractor,

was injured when a dam retaining water began to leak. Sumrall sued

Mississippi Power to recover damages under the theory that

Mississippi Power would be liable for the negligence of the

independent contractor if Mississippi Power retained or exercised

control or had the right to control the manner and method of the

15
work. Id. at 361-62. The jury returned a verdict in favor of

Mississippi Power. Id. at 362.

On appeal, the Mississippi Supreme Court held that the trial

court had abused its discretion by excluding evidence of subsequent

remedial measures by Mississippi Power. Id. at 365–66. The

excluded evidence indicated that after the accident, the project

was shut down while a Mississippi Power project engineer sought

technical support from engineers employed by Southern Company

Services, the company hired by Mississippi power to design the new

discharge system. Id. at 361, 364. Southern Company Services’s

engineers then designed “sheet pilings” to prevent the walls of the

excavation from caving in. Id. at 364–65. The independent

contractor then installed the sheet pilings and proceeded to finish

the discharge system installation project. Id. at 365. The court

found “that the 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 [over the

installation project] at the time of the accident.” Id. The court

then remanded for a new trial, instructing that the evidence of the

subsequent remedial measures be admitted under a limiting

instruction. Id. at 366.

The evidence in the case sub judice is quite different from

that in Sumrall. Although the scaffold disassembly project was

16
halted following Lee’s accident, there is no evidence that DuPont,

or anyone else for that matter, did anything to ensure its safe

completion. The evidence shows that following a brief delay, the

project resumed the same day as the accident—without any further

instructions or modification to the process or to the personnel

doing the work—and was completed that day or the next. When

compared to Sumrall, the evidence before us does not create a

genuine issue of material fact as to DuPont’s de facto control over

the disassembly process at the time of Lee’s accident.

Conclusion

For the reasons set forth herein, the district court’s grant

of summary judgment is

AFFIRMED.

17