Hunter on Behalf of Hunter v. Knoll Rig & Equipment Mfg. Co., Ltd.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 94-40822
_____________________

ILENE THURMAN HUNTER, obo Kathy Michelle Hunter,
Claude Kenneth Hunter, Jr., Michael Christopher Hunter, and
Melissa Ilene Hunter, and Donnovan Blaine Hunter,

Plaintiffs-Appellants-
Cross-Appellees,

versus

KNOLL RIG & EQUIPMENT MANUFACTURING CO. LTD.,
A Subsidiary of Draco Group of Companies,
Ltd., Et Al.,

Defendants-Appellees-
Cross-Appellants.

____________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
_____________________________________________________
November 29, 1995

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In this Louisiana wrongful death products liability action

against a manufacturer, and arising out of a drilling rig accident,

the principal issue at hand is whether, under the Louisiana

Products Liability Act, the claimed unreasonably dangerous product

was being used (handled) in a manner that the manufacturer, at the

time of manufacture, should reasonably expect (reasonably

anticipated use). The Hunters appeal the apportionment by the

district court of damages against defendant Knoll Rig & Equipment

Manufacturing Co., Ltd. (KREMCO); it cross-appeals, contending

that, inter alia, the product (drilling rig racking board) was not
being handled in a reasonably anticipated manner at the time of the

accident. Because we conclude that, based on this issue, KREMCO

was entitled to judgment as a matter of law, we REVERSE and RENDER.

I.

In 1981, KREMCO, a Canadian drilling rig manufacturer, sold

one of its rigs to R. L. Long Co.; one component was the racking

board in issue. Long modified the rig and racking board to suit

customer preferences. Long sold the modified rig, with the racking

board, to Hunter's employer, Mosley Well Service, in 1984. Claude

Kenneth Hunter was crushed fatally by falling pipes while he worked

in August 1990 as a derrickman for Mosley on a drilling operation.

Hunter was positioned on the racking board, which was attached,

approximately 50 feet above the ground, to the mast of the drilling

rig. The mast, often referred to as a "derrick", was raised to a

near-vertical position at the drilling site.

The frame of the racking board in issue was rectangular, with

one of the shorter sides being partly open; that open end was

closest to the derrick. Handrails enclosed the two long sides and

the other short side. As hereinafter described, the top ends of

drilling pipes are brought into the racking board through the open

end. Inside the frame of the racking board is a platform, or

"diving board", on which the derrickman stands; it is attached to

the middle of the back frame of the racking board and runs parallel

to its long sides. On an end-racked racking board, such as the one

involved here, there are fingers on each side of, and parallel to,

the diving board; they point toward the mast. On the racking

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board, there were five fingers to the left of the diving board and

seven to the right, between which the drilling pipes were to be

racked (inserted). As manufactured, the racking board did not have

chains or other restraining devices to assist in preventing the

pipes from falling across the mast if they began to lean too much

in that direction.

The back and side handrails of the KREMCO racking board were

modified by another entity subsequent to sale by KREMCO. When the

original KREMCO back handrail was raised to the upright position,

it jutted up against the side handrails. The back handrail was

secured to the side handrails with heavy-duty pins inserted through

the "ears" at an angle vertical to the ground. This design was

modified by removing the ears and attaching a latch on each end to

secure the back handrail. It was these latches that failed,

allowing the handrail to come forward and the pipes tied to it to

fall across the mast, crushing Hunter.

A derrickman racks stands of pipe, which are about 55-60 feet

in length, as they are removed from the drilling hole. When

workers on the ground remove the pipe, the derrickman maneuvers the

top of the pipe between the racking board fingers, and leans it

against the bottom back frame of the racking board. A crew member

on the ground positions the bottom end of the pipe at ground level.

The pipe is leaned away from the mast in a "positive lean", as is

the industry standard, and should be supported by the back frame of

the racking board. Leaning the pipe toward the mast, in a

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"negative lean", is dangerous, because the pipe could fall toward

the mast.

On an end-racked racking board, one pipe after another is

racked in a row from the back to the front of the racking board.

As stated, the derrickman and workers on the ground must ensure

that the pipes maintain a positive lean (away from the derrick and

toward the back of the racking board). At the time of the

accident, Hunter had racked approximately 143 stands of pipe,

weighing approximately 110,000 pounds. Due to the large number of

pipes that had to be racked, the rig workers were concerned that

all of the pipes would not fit into the racking board; accordingly,

in an effort to fit more pipes, they did not give them much

positive lean. In fact, the pipes were given only about three to

four inches of positive lean, whereas normally the lean should be

approximately 12 to 20 inches from the vertical, which is somewhere

in the neighborhood of one to two degrees.

In racking the pipes, Hunter tied the first pipe in each row

to the back handrail of the racking board with a sashcord, and then

tied each successive pipe in each row to the previous pipe. As

noted, when Hunter began racking the pipes, they were leaned away

from the mast (positive lean). However, because the pipes being

racked were larger at the top than at the bottom, and because the

initial positive lean was not great enough, the pipes leaned less

and less toward the back of the racking board as more and more

pipes were racked, until the pipes were vertical and then leaning

toward the mast.

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 In industry terms, "the pipes grew"; when this occurs, the

workers on the ground should "kick out" the bottom ends of the

pipes, so that they do not lean toward the mast (negative lean).

Due to his vantage point, the derrickman (Hunter) is the first

person who would detect a negative lean; it is his responsibility

to notify the workers on the ground that the bottoms of the pipes

need to be moved ("kicked out").

Because the pipes were tied to the back handrail,1 when the

pull from the negative lean of the pipes became too great, the

latches failed, allowing the back handrail and pipes to fall toward

the mast. In the accident, no part of the racking board

manufactured by KREMCO failed. Only the latches failed; but, as

noted, they had been installed by an entity other than KREMCO.

After this action was filed against KREMCO in 1991 in

Louisiana state court under the Louisiana Products Liability Act,

LA. REV. STAT. ANN. § 9:2800.51, et seq. (LPLA), KREMCO removed it to

district court based on diversity jurisdiction. The parties

consented to trial before a magistrate judge; and, following five

days of testimony, the jury returned a verdict for the Hunters. It

found: (1) the racking board was unreasonably dangerous when it

left KREMCO's control; (2) Hunter's death was caused by an

unreasonably dangerous characteristic of the racking board during

1
According to testimony, tying pipes to the back
handrail is a misuse of the racking board, because that rail is
designed only to support the weight of the derrickman should he
fall. In fact, the derrickman's safety wire is attached to that
handrail. According to the testimony, however, pipes are often
tied to the back handrail.

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a reasonably anticipated use; (3) Hunter's death was caused also by

his negligence; (4) the latches were unreasonably dangerous; (5)

Hunter's death was caused also by an unreasonably dangerous

characteristic of the latches; (6) Long caused the latches to be

unreasonably dangerous; (7) Mosley Well Service did not cause any

unreasonably dangerous characteristic of the latches; and (8)

Hunter's death was caused also by the negligence of Mosley Well

Service employees. The jury assessed fault as follows: KREMCO

30%, Hunter 5%, Long 30%, and Mosley 35%.2

Post-verdict, the district court found that Long is insolvent

and that the Hunters had not received any compensation from Long.

Of the stipulated damages of approximately $1.3 million, the court

assessed approximately $652,000 against KREMCO. As it had at the

close of the Hunters' case and of all the evidence, KREMCO moved

for judgment as a matter of law on, inter alia, whether the

2
The dissent implies, incorrectly, that this opinion is
based on the proposition that the comparative fault of other
parties insulates KREMCO from its own fault. While some pre-LPLA
cases have been criticized for going so far under the pre-LPLA
standard of "normal use" as to treat product misuse as a defense
the manufacturer had to prove, rather than something the
plaintiff had to prove did not occur (see e.g. Bell v. Jet Wheel
Blast, 462 So.2d 166, 172 (La. 1985)), the new LPLA standard of
"reasonably anticipated use" is narrower in scope and does not
include reasonably foreseeable misuse, as discussed infra. Daigle
v. Audi of America, Inc., 598 So.2d 1304, 1307 (La. App. 3d Cir.
1992); Lockart v. Kobe Steel Ltd. Const. Mach. Div., 989 F.2d
864, 867 (5th Cir. 1993); John Kennedy, A Primer on the Louisiana
Products Liability Act, 49 LA. L. REV. 565, 584-86 (1989)
(explaining that the LPLA standard of "reasonably anticipated
use" is more narrow than the prior "normal use" standard and,
inter alia, does not include product misuse) (Kennedy was a co-
drafter of the LPLA.). We recognize that there may well be
inherent conflicts between liability under the LPLA and
comparative fault. The parties do not raise this issue, however,
and we do not reach it.

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accident occurred, as required by LPLA, during a "reasonably

anticipated use" of the racking board. The motion was denied.

II.

For this diversity action, the parties do not dispute that

Louisiana law controls. Erie Railroad Company v. Tompkins, 304

U.S. 64 (1938). The threshold issue is whether the manner in which

the racking board was used when the accident occurred was

"reasonably anticipated" by KREMCO at the time of manufacture.3

The LPLA provides that

[t]he 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 by the claimant
or another person or entity.

LA. REV. STAT. ANN. § 9:2800.54(A). Of critical importance here,

"reasonably anticipated use" is defined as "a use or handling of a

product that the product's manufacturer should reasonably expect of

an ordinary person in the same or similar circumstances." LA. REV.

STAT. ANN. § 9:2800.53(7) (emphasis added). Accordingly, KREMCO can

be liable only if the particular use (negative lean) of the racking

board was "reasonably anticipated" by it; and, if it was not, we do

not reach whether the racking board was unreasonably dangerous

because, for example, it did not have a chain, or chains, across

3
Because we conclude that the manner in which the pipes
were racked was not a "reasonably anticipated use", we need not
reach the other issues presented, including whether the design of
the racking board was unreasonably dangerous, whether KREMCO
breached an express warranty, and whether liability and damages
were apportioned properly.

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the open end. Lockart v. Kobe Steel Ltd. Const. Mach. Div., 989

F.2d 864, 867 (5th Cir. 1993).

In Lockart, a products liability action was filed against the

manufacturer of an excavator. Two workers had suspended a pontoon

by looping a chain around the teeth of the excavator's bucket, but

the chain slipped off the bucket and the pontoon fell, killing one

worker and injuring the other. Our court upheld summary judgment,

because using the excavator to suspend the pontoon was not

"reasonably anticipated" within the meaning of the LPLA. The court

rejected the idea that a warning in the operator's manual not to

hang objects from the bucket was evidence that the manufacturer had

reasonably anticipated that the excavator would be used in that

manner.

The fact that there were warnings on the product in Lockart

does not distinguish it from the Hunters' case:

Even if the warning did not reach the users,
the LPLA speaks of "an ordinary person in
[the] same or similar circumstances". These
users had many years experience mining and
working with heavy machinery, and both had
taken company courses in equipment handling in
1986. The dangers of using the bucket to
suspend a heavy pontoon should have been
obvious to the ordinary consumer and certainly
to experienced workers.

Lockart, 989 F.2d at 868 (footnote omitted).4 This was consistent

with the dictates of the LPLA:

A manufacturer is not required to provide an
adequate warning about his product when: ...
The user or handler of the product already

4
In an attempt to distinguish Lockart, the dissent
appears, erroneously, to rely in part on the warning.

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 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. ANN. § 9:2800.57(B)(2); see, e.g., Morgan v. Gaylord

Container Corp., 30 F.3d 586, 591 (5th Cir. 1994).

In noting that the LPLA standard for reasonably anticipated

use (defined in the previously quoted § 9:2800.53(7)) is more

stringent than the pre-LPLA standard, Lockart, 989 F.2d at 867,

cited Daigle v. Audi of America, Inc., 598 So.2d 1304, 1307 (La.

App. 3d Cir. 1992), which recognized that "[t]his definition is

narrower in scope than its pre-LPLA counterpart, 'normal use',

which included all reasonably foreseeable uses and misuses of the

product." As stated in Lockart, "[t]his more restrictive scope of

liability was to avoid prior confusion and because virtually any

conceivable use is foreseeable". 989 F.2d at 867.

To illustrate the meaning of "reasonably anticipated use",

Daigle gives the following examples of what uses a manufacturer

should not reasonably expect of an ordinary person:

"Reasonably anticipated use" ... convey[s] the
important message that the manufacturer is not
responsible for accounting for every
conceivable foreseeable use. It is fore-
seeable that a consumer might use a soft drink
bottle for a hammer, might attempt to drive
his automobile across water or might pour
perfume on a candle to scent it. If he does,
however, the manufacturer of the product
should not be and under the LPLA is not liable
because the uses in the illustrations are not
the sort that a manufacturer should reasonably
expect of an ordinary consumer.

598 So.2d at 1307 (quoting John Kennedy, A Primer on the Louisiana

Products Liability Act, 49 LA. L. REV. 565, 586 (1989)) (Kennedy was

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a co-drafter of the LPLA.). Similarly, in Myers v. American

Seating Co., 637 So.2d 771 (La. App. 1 Cir. 1994), the plaintiff

was injured when a folding chair jackknifed while she was standing

on the rear portion of it. The court denied manufacturer

liability:

Although this use may be a conceivable use, it
is not a reasonably anticipated use. Most
people who use a folding chair as a stepladder
utilize the front portion of the seat upon
which to stand.... [A]ny danger presented by
standing on a folding chair is an obvious
danger to a reasonable person.

Myers, 637 So.2d at 779.

Another example is London v. MAC Corp. of America, 44 F.3d 316

(5th Cir. 1995), in which a worker fell while standing on the

gearbox cover to reach material in a shredder. Pursuant to the

LPLA, our court affirmed judgment as a matter of law at the close

of the case for the manufacturer because, "although the use of the

gearbox cover as a work station may be conceivable, [the

manufacturer] could not reasonably anticipate its use in this

fashion". 44 F.3d at 319. Finally, Delphen v. Dep't of Transp. &

Dev., 657 So.2d 328 (La. App. 4th Cir. 1995) concerned, inter alia,

a bicycle manufacturer sued under the LPLA when a quick release

allowed the front wheel to separate from the bicycle. In reversing

a jury verdict against the manufacturer, the court held:

Danger imposed by the wheel would have been
obvious to a reasonable person who would
recognize that the bicycle was a specialized
product for sophisticated users, and the
ordinary person should inquire into the proper
manner of fastening the quick release
mechanism before using the bicycle again.
Considering the obvious danger posed by the

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 sophisticated bicycle, the fact that [the
plaintiff] rode the bicycle across [a]
drawbridge without obtaining additional
instructions regarding the bicycle's proper
use and knowing that the wheel previously had
become loose, was not a reasonably anticipated
use of the product.

Delphen, 657 So.2d at 333-34.

Likewise, while it is conceivably foreseeable that rig workers

might lean pipes toward the mast so they may fall, at issue is

whether, under § 9:2800.53(7), this is the type use that a

manufacturer of a racking board "should reasonably expect of an

ordinary person in the same or similar circumstances". Restated,

the Hunters had the burden of proving that, at the time of

manufacture, KREMCO "should [have] reasonably expect[ed] ... [that]

an ordinary" user of the racking board would lean the pipes toward

the mast as was done the night of the accident. Lockart, 989 F.2d

at 869.

The well-known standard for judgment as a matter of law is

found in FED. R. CIV. P. 50, as defined more fully by Boeing Co. v.

Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). See United States

Fire Ins. Co. v. Confederate Air Force, 16 F.3d 88, 91 (5th Cir.

1994). Rule 50(a)(1) provides:

If during a trial by jury a party has been
fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on that
issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that party
with respect to a claim ... that cannot under
the controlling law be maintained ... without
a favorable finding on that issue.

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And, Boeing, 411 F.2d at 37, states:

If the facts and inferences point so strongly
and overwhelmingly in favor of one party that
the Court believes that reasonable men could
not arrive at a contrary verdict, granting of
the [motion] is proper. On the other hand, if
there is substantial evidence opposed to the
[motion], that is, evidence of such quality
and weight that reasonable and fair-minded men
in the exercise of impartial judgment might
reach different conclusions, the [motion]
should be denied, and the case submitted to
the jury. A mere scintilla of evidence is
insufficient to present a question for the
jury.

As stated, at issue is whether the manner in which the pipes

were leaned was, to KREMCO at the time of manufacture, a reasonably

anticipated ("should [have been] reasonably expect[ed]") use by "an

ordinary person in the same or similar circumstances". LA. REV.

STAT. ANN. §§ 9:2800.54(A), .53(7). Based on our review of the

record, we conclude that this particular use was not reasonably

anticipated.

At the time of manufacture, KREMCO was aware of the

possibility of negative lean and the attendant risk.5 Likewise,

5
Gerald Knoll, the founder of KREMCO, knew at the time
the racking board was manufactured that, if pipes were not racked
with enough positive lean, they would fall toward the mast.
However, Knoll testified that if you start with a proper positive
lean, you will "never ... have [the] problem" of pipes growing
enough at the top to produce a negative lean; and that "we felt
that we were selling to knowledgeable users and that [it] would
be the responsibility of the end user to come up with the
procedure" for racking the pipe. According to Knoll, KREMCO
didn't make any assumptions when it built the racking boards as
to how the end user would use them. He testified that he does
not think that the manufacturer had a duty to advise the public
as to the proper way to use the equipment; that, at the time,
KREMCO did not have any information or knowledge about how pipe
would be secured in the derrick; and that, although a Canadian
regulation instructed that tubes should be secured at the top by

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Danny Ray (rig operator), Charles Berry (rig operator), and Kenneth

Willoughby (derrickhand), testified that there are times when 3 1/2

inch pipe (used at the time of the accident) starts to lean toward

the mast if a large number of that type are placed in the racking

board. In addition, both Tommy Prince (floorhand and derrickman)

and Ray testified that they had seen this type pipe racked with a

sashcord tied to the rear handrail to secure the pipe.

But, while it may be common for this type pipe to have a

tendency to grow at the top (lean toward the mast), these witnesses

testified that the common practice is that, once the pipes do start

to lean, the negative lean is corrected. Their testimony indicates

that it is not reasonable, but instead is dangerous and against

industry practice, to allow a negative lean to subsist.6

means of tie-back ropes or an equivalent device to prevent them
from falling out of, or across, the derrick, that statement was
directed toward the operator or employer, not the manufacturer.
6
Ray testified that "[j]ust about any time you trip pipe
... it mushrooms at the top. Kind of flares out. Gets bigger."
The dissent erroneously draws the conclusion from Ray's testimony
that a negative lean is common. Although Ray testified that he
had seen pipes racked as depicted in a diagram presented by the
Hunters' counsel, Ray could not tell how much those pipes were
leaning. Ray testified that if a negative lean occurs, you then
"space out the bottom some and it will throw some lean back in
once the pipe starts getting too much on you"; that if the lean
gets too much toward the mast "that's when you would start your
next row"; that you don't want the pipes to lean toward the mast
because you don't want them to fall into it; that "you always
want the pipe to go to the back". It is unreasonable to conclude
from Ray's testimony that a negative lean is commonplace. Ray
testified that a negative lean is something you would be worried
about and that it is the job of the derrickman to notify people
on the ground if there is a problem with the pipes leaning toward
the mast.

Berry testified that the normal practice for Mosley and
other companies in the industry is to lean the pipes away from

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 Contrary to the Hunters' assertion, the evidence does not

the mast, and that this is the safe practice so the pipes will
stay in the racking fingers. The dissent states that Berry
confirmed that pipes are always tied to the handrails. While
Berry testified that he tied pipes to the side or back handrail
every time, he neither testified that pipes were always tied to
the back handrail, nor that tying negatively leaning pipes to the
back handrail was a common or safe practice. And, contrary to
the dissent, Berry never described a negative lean as
commonplace. He testified that the idea is to have the pipes
lean away from the mast, and that you try to lean the pipes away
from the mast enough so that when all the pipes are racked, they
will still be leaning toward the back of the racking board; that,
if you lean pipes toward the mast, you encounter problems.
Though Berry testified that there are times when the weight of
the pipes gets too much toward the mast, he testified that, if
there was trouble with the pipes leaning toward the mast, he
would kick the pipes out at the bottom to prevent a negative
lean. Berry confirmed that it would concern him if the pipes
started leaning toward the mast, because it is not safe. He
testified that it was Hunter's responsibility as derrickman to
notify people on the ground of a negative lean so they could kick
out the pipes.

Willoughby testified that, according to Mosley's practice,
and the practice in the industry, you do not lean pipes toward
the mast during the racking process. He testified that anybody
with years of experience in the oilfield would know that it is
not a safe practice to let pipes lean toward the mast and tie
them that way. Willoughby testified that even when pipes are
racked all the way to the end of the finger, the pipes should
still be leaning away from the mast. He confirmed that the
derrickman should notify the people on the ground if the pipes
are leaning toward the mast, so the ground crew can either remedy
the problem or stop racking. According to Willoughby, the
derrickman is the first one to know there is a problem with the
lean of the pipes, and he ought to do something to take care of
it. Willoughby verified that the only two times when Mosley Well
Service has had a pipe swarming incident (the accident in issue
and an earlier occasion) is when the pipes were leaning toward
the mast.

Although Prince testified that he had seen pipes secured
with sashcord on a number of occasions, he did not testify that
it was common to lean pipes toward the mast. Prince asserted
that Smith (the toolpusher) and Berry (the rig operator) were
worried about the lean of the pipes on the night of the accident.
He admitted that it is the responsibility of the derrickman to
notify the people on the ground if there is a problem with the
lean.

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allow a reasonable juror to find that leaning the pipes toward the

mast was a common occurrence. Kenneth Kaigler, who had worked in

the field for over 40 years, testified for the Hunters as an expert

in the field of rig operations and safety. When asked if he had

"ever seen pipe with a negative lean ... in the racking board", he

replied: "... [M]aybe a half a dozen times, not very often. It's

not a common deal, but I have seen it." In short, a reasonable

juror could not conclude from Kaigler's testimony that a negative

lean was a common occurrence.7

Testimony, in fact, indicates that the lean at the time of the

accident was obviously dangerous.8 Eric Beavers, who was the

floorhand on the rig when the accident occurred and was handling

7
The dissent concedes that Kaigler, the Hunters' own
expert witness, testified that negatively leaning pipe was "not
common". In determining whether the manufacturer at the time of
manufacture should have reasonably expected the dangerous
negative lean, Kaigler's expert testimony is of far greater
importance than that of the rig workers (who, as the dissent
admits, negligently failed to correct the negative lean). Even
assuming that Ray and Berry thought that leaning pipes negatively
was common, the outcome of the case is no different, because,
obviously, "reasonably anticipated use", as applied to KREMCO, is
an objective standard. Daigle, 598 So.2d at 1307; Lockart, 989
F.2d at 867. In other words, what Ray and Berry thought is of
little, if any, import; the question is whether, at the time of
manufacture, KREMCO reasonably anticipated (objective standard)
that the pipes would be leaned toward the mast in a dangerous
manner. Restated, the testimony by Ray and Berry is not a basis
for determining whether the objective standard is satisfied. No
reasonable juror could have found under an objective standard
that KREMCO reasonably anticipated when it manufactured the
racking board that pipes would be racked with the dangerous
negative lean present in this case.
8
Contrary to the dissent's assertion, we do not seize
upon the existence of a mere negative lean. While this type of
pipe may have a tendency to lean toward the mast, it was not
reasonably anticipated that pipes would be racked with an
obviously dangerous negative lean.

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the bottom of the pipes, testified that the toolpusher was "raising

hell" because the lean of the pipes "was ridiculous".9 Beavers

testified that the toolpusher "ought to have been griping" because

the pipes were leaning to the degree that it was dangerous.

The danger of allowing the pipes to lean toward the mast so

that they might fall should have been obvious to the ordinary user

of racking boards. (This was certainly obvious to the experienced

workers at Mosley Well Service. See Lockart, 989 F.2d at 868. As

shown by their testimony, the Mosley employees knew that it was

dangerous, and certainly not the industry practice, to allow the

pipes to have negative lean. Furthermore, as noted, Mosley had had

a swarming incident prior to the accident in issue. See Delphen,

657 So.2d at 333-34.) In light of the unreasonable lean toward the

mast, the manner in which the racking board was used was not a

reasonably anticipated use.10

In sum, the LPLA imposes manufacturer liability only if the

accident occurred during a reasonably anticipated (manufacturer

should have reasonably expected) use, not a reasonably foreseeable

use or misuse. Daigle, 598 So.2d at 1307; Lockart, 989 F.2d at 867

9
Beavers died before trial. Counsel attempted to
clarify whether Beavers' deposition testimony was that the lean
was "ridiculous" or "dangerous", but the clarification only
creates more confusion. This distinction is immaterial; for our
purposes, both words convey the same meaning.
10
Expert witness Howard Elwell, Jr., testified that a
design by a different manufacturer that incorporated chains in
the design "provided insight into the manufacturer's knowledge
about pipe-swarming problems and how to control them". But, a
reasonable juror could not conclude that the existence of such
designs shows that it was reasonably anticipated that pipes would
be racked with a negative lean.

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(citing Daigle). There is no evidence that it was reasonably

anticipated that the pipes would be racked with such a dangerous

lean toward the mast.11 A reasonable juror could not have arrived

at a contrary conclusion. Therefore, judgment as a matter of law

for KREMCO was compelled.

III.

For the foregoing reasons, the judgment is REVERSED and

judgment is RENDERED in favor of Knoll Rig & Equipment

Manufacturing Co., Ltd.

REVERSED and RENDERED

BENAVIDES, Circuit Judge, dissenting:

The majority reviews the evidence and concludes that the

manner in which the racking board was used was not a "reasonable

anticipated use." But because there is evidence from which a

reasonable jury could conclude otherwise, I am compelled to

dissent.

In reviewing a jury verdict, our standard is clear: we must

view all of the evidence in favor of the prevailing party.

11
Despite the dissent's concern that we do, we do not
lose sight of the fact that the standard for reviewing a jury
verdict under Boeing and subsequent cases is very high; but, on
the other hand, we are compelled under Boeing to reverse the jury
when no reasonable juror could have found that, at the time of
manufacture, KREMCO reasonably anticipated the dangerous use to
which the racking board was put. It is true, as the dissent
states, that the jury could have found the testimony of Ray and
Berry credible; however, this is irrelevant because, as noted,
nothing in their testimony supports that racking the pipe with
the dangerous negative lean present in this case is common or was
a reasonably anticipated use of the racking board.

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Weighing the conflicting evidence and the inferences to be drawn

from it is the province of the jury; its decision must be accepted

if the record contains any competent and substantial evidence

tending to support the verdict. Gann v. Fruehauf Corp., 52 F.3d

1320, 1326 (5th Cir. 1995); Knowlton v. Greenwood Indep. Sch.

Dist., 957 F.2d 1172, 1178 (5th Cir. 1992). "If there is an

evidentiary basis upon which the verdict can be supported, the

jury's determinations will be left undisturbed, even where there is

substantial contradictory evidence that could have supported an

opposite verdict." Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d

1275, 1297 (5th Cir. 1988), cert. denied, 490 U.S. 1091 (1989),

accord Knowlton, 957 F.2d at 1178. I believe the majority loses

sight of this standard.

The majority opinion accurately reflects the events

surrounding this drilling rig accident. While acting as

derrickman, Hunter was maneuvering pipe into a racking board. The

floorhands positioned the pipe at ground level. It is undisputed

that the pipes were initially given positive lean, albeit less than

desirable. Hunter tied the pipe to the back handrail of the

racking board with sashcord which, as the majority notes, is

common. As each successive pipe was tied to the previous one, the

pipes grew at the top creating a negative lean. The latches on the

back handrail failed; the pipes crashed forward; Hunter was killed.

In absolving KREMCO of liability, the majority seizes upon the

existence of negative lean and uses it to craft an exclusion from

"reasonably anticipated use." In doing so, it usurps the function

of the jury and Hunter's right to the jury's decision. In its
answer to jury question two, the jury found that Hunter's death was

caused by an unreasonably dangerous characteristic of the racking

board during a reasonably anticipated use. Given our standard of

review, we must uphold this verdict if there exists evidence in the

record to support that conclusion, even if there is substantial

evidence to the contrary. In this case, there is evidence that

both negative lean itself is common and the overall use of the

racking board was routine.

At trial, rig operator Danny Ray testified that pipe is always

tied to the back handrail. Ray examined a diagram showing negative

leaning pipe and testified as follows:

Q: In looking at this diagram, Mr. Ray, in looking at
the way this pipe is racked, is this something that is
common to you or at least seen by you out there in your
work as an oil well service operator?

A: Yes, sir. Just about any time you trip pipe it
always--it's tight at the bottom, but as you (sic)
collars butt up against one another you're coming out of
it, it mushrooms at the top. Kind of flares out. Gets
bigger.12

On cross examination, in direct response to whether it is common

practice to lean pipe toward the mast, Ray testified: "You have to

kind of do it the way you--to get the job done, you know? Not all

wells are perfect and you just kind of gotta do the job the best

you can. If you're tripping 12 or 14 thousand foot of pipe and you

can space out the bottom some and it will throw some lean back in

12
The majority argues that because Ray could not quantify
the degree of negative lean in the diagram that no reasonable jury
could credit this testimony. The majority does not, however, deny
that the diagram does illustrate negative leaning pipe and that the
diagram, Plaintiff's Exhibit 29.16, was introduced into evidence
and was before the jury.

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it once the pipe starts getting too much on you." Further, on

redirect Ray was asked: "You have racked pipe with it leaning

towards the mast before, haven't you?" Ray responded, "yes, sir,

I have."13

In addition to Ray's testimony, rig operator Charles Berry

testified that when they started tripping the pipe the workers used

three to four inches of positive lean. He confirmed that pipe is

always tied to the handrails.14 He also examined the same exhibit

showing negative leaning pipe that Ray described as commonplace and

testified that the pipe looked the same way on the day of the

accident.15

13
The majority claims that it is unreasonable to conclude
from Ray's testimony that negative lean was common. Obviously, the
majority is unpersuaded and readily discounts Ray's testimony. I
quote from the testimony directly to support my view that a
reasonable jury could conclude otherwise.
14
On cross-examination, Berry was asked: "It's true, isn't
it, Mr. Berry, that that handrail isn't meant to take the weight of
all that pipe, is it; isn't that true?" Berry replied: "I'm going
to put it like this if I may, I have tied pipe to handrails every
time I have ever worked derricks on a drilling rig or a workover
whether it's from the side handrail or the back handrail." In
addition to Ray's testimony that pipe was always tied to the back
handrail and Berry's testimony that he always tied to a handrail,
derrickman
Kenneth Willoughby was asked, "How have you secured pipe in the
racking board in your 18 years of experience when there wasn't a
chain up there to secure it in the racking board?" Willoughby
responded: "Tie it off with sash cord or some kind of rope to your
back handrail." The majority likewise concedes that "[a]ccording
to the testimony, however, pipes are often tied to the back
handrail." Maj. op. at 5 n.1.
15
Berry was asked: "I will refer you to Plaintiff's Exhibit
29.16. Mr. Berry, would you say that the pipe looked about as
shown in this illustration that we have marked as Plaintiff's
Exhibit 29.16?" He answered: "From my point of angle, yes, sir,
that would be just about it right there." The majority erroneously
claims that I characterize Berry as stating that negative lean was

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 Unquestionably, there is conflicting evidence. Hunter's own

expert, Kenneth Kaigler, testified that while he had seen negative

leaning pipe it was not common. Likewise there is ample testimony

that negative lean could be corrected by "kicking out" the pipe at

the bottom. Nonetheless, there remains the testimony of Ray and

Berry that a jury could find credible and conclude that the racking

board was being used in a manner that was common.16

Moreover, the majority's focus on the "tree" of negative lean

obscures the "forest" of reasonably anticipated use. The evidence

at trial reflects that the pipe was initially being racked with

positive lean. It was secured to the back handrail as was common.

As the pipe was being racked, it grew larger as expected. As a

result, there was negative lean. At this point, the workers

negligently failed to correct the lean. This failure, however,

does not lead to the conclusion that the overall use of the board

was not a reasonably anticipated one. Rather, the workers' failure

to correct the lean speaks to their comparative fault. The jury

clearly understood this and found both Hunter and his co-workers

common. It was Ray who testified that the diagram showing negative
lean was common. Berry merely confirms that the diagram reflected
the lean of the pipe on the day of the accident.
16
The majority claims that in determining whether the
manufacturer should have reasonably expected negative lean,
Kaigler's testimony "is of far greater importance than that of the
rig workers." Maj. op. at 15 n.7. This is precisely the type of
interference with the jury's province that we should eschew.
Despite the majority's unwillingness to find the workers' testimony
credible, the jury could. This is especially true given the fact
that the founder of KREMCO testified that they did not make any
assumptions as to how the customer would use the racking board.
Maj. op. at 13 n.5.

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partially at fault.17 The workers' negligence should not, however,

insulate KREMCO from its own fault. Viewing the entire context of

the use of the racking board prior to the accident, a reasonable

jury could conclude that it was being used in a manner that was

reasonably anticipated by the manufacturer.

Consequently, I am unpersuaded by the analogy the majority

draws with other examples where a manufacturer would not be liable

under Louisiana law. At issue here is not a foreseeable, yet

bizarre, use of a product such as using a soda bottle as a hammer

or driving a car across water. Maj. op. at 9-10. Rather, the

evidence reflects that the racking board was being used for its

intended purpose (to rack pipe) and in a manner that a jury could

conclude was common.

The majority's reliance on Lockart v. Kobe Steel Ltd. Constr.

Mach. Div., 989 F.2d 864 (5th Cir. 1993), is also unpersuasive

because of its procedural posture. In Lockart, two workers lifted

a steel pontoon by chaining it to the teeth of the bucket scoop of

an excavator. The workers then worked underneath the suspended

pontoon. The chain slipped from the teeth dropping the pontoon on

the workers. While we found that using an excavator to suspend a

pontoon was not a reasonably anticipated use, we did so after

conducting our own independent review of the evidence as is our

standard for summary judgment review. We held that "in this

17
The jury found that Hunter's death was caused by his own
negligence and assessed 5% fault to him. It found that his death
was also caused by the negligence of employees of Mosley Well
Service and apportioned their fault, 35%, against Mosley Well
Service.

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instance in which the manufacturer provided a clear warning, the

product was handled by experienced users, and no hard evidence was

offered to rebut these facts, we must affirm the judgment of the

district court." Lockart, 989 F.2d at 869. Unlike Lockart, in

this controversy we review a jury's verdict and must give deference

to that verdict if there is support in the record. This is true

even if there is substantial contradictory evidence that could

support the opposite. We are not free to review the evidence de

novo and draw our own conclusion on reasonably anticipated use.

Viewing the record in the light most favorable to the verdict,

I would conclude that there is some evidence that the jury could

credit that negative lean itself is common. Moreover, properly

viewed in context, the overall use of the racking board was also

routine. The jury found that Hunter's death occurred during this

reasonably anticipated use of the racking board. I would stay out

of the jury box and affirm.18

18
Because of the majority's resolution of the anticipated
use issue, it did not reach whether the racking board was
unreasonably dangerous. Having reviewed the record, I would
conclude that there is ample evidence to support the jury's verdict
on this issue as well. In an effort not to unnecessarily lengthen
this dissent, I would note that there was expert testimony of
alternative designs and safety mechanisms, existing at the time of
manufacture of the racking board at issue, which would have
prevented Hunter's death. This evidence not only supports the
jury's conclusion on an unreasonably dangerous product, but
provides additional evidence from which a reasonable jury could
conclude that the manufacturer should have anticipated negative
lean; it appears that other manufacturers did.

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