Malbrough v. Crown Equipment Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 23, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-30118
_____________________

TRUDY MALBROUGH,

Plaintiff - Appellee,

versus

CROWN EQUIPMENT CORP.,

Defendant - Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Trudy Malbrough suffered a crippling injury while operating a

forklift manufactured by Crown Equipment Corporation. She brought

suit against Crown under the Louisiana Products Liability Act

(“LPLA”) alleging a defect in the design of the forklift. Crown

filed a motion in limine to exclude Malbrough’s expert witness on

the design defect issue. The district court granted the motion to

exclude, but denied Crown’s motion for summary judgment.

Crown received permission from the district court to appeal

the interlocutory order denying summary judgment. We granted leave

to appeal, under our authority under 28 U.S.C. § 1292(b). Having

reviewed the issue raised in Crown’s petition, we find no

reversible error and therefore AFFIRM.
I

Trudy Malbrough was injured while operating a Crown “stand-up”

forklift at the Wal-Mart warehouse distribution center where she

worked. The injury occurred when Malbrough, in an effort to avoid

a collision with another forklift, applied her brakes, causing her

left foot to swing out of the unenclosed operator compartment and

be crushed between the two machines as they collided.

Malbrough brought suit against Crown under the LPLA, claiming

that the lack of a door to the operator compartment of the stand-up

forklift constitutes a design defect. Malbrough intended to

present expert testimony on the design defect issue at trial, but

the district court granted Crown’s motion in limine to exclude her

expert witness “due to [Malbrough]’s ... failure to timely meet

discovery deadlines”. Crown then moved for summary judgment,

arguing that the LPLA requires expert testimony in order to make

out a prima facie case of defective design. The district court,

however, denied Crown’s motion, concluding that an unassisted

trier-of-fact would be capable of understanding whether a door

should have been incorporated into the forklift.

Crown filed a motion for reconsideration, or in the

alternative, to appeal the denial of its motion for summary

judgment. The district court denied the motion for

reconsideration, but granted permission to appeal. In its order,

the district court observed that “Crown’s motion for summary

2
judgment involves a ‘controlling question of law’”, but did not

specify the precise legal question it was certifying for

interlocutory review. This court nonetheless granted Crown’s

petition for leave to appeal from the district court’s

interlocutory order denying summary judgment.

We review the denial of summary judgment de novo. Walker v.

Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). We

emphasize, however, the limited scope of our review. This court’s

appellate jurisdiction under § 1292(b) extends only to

interlocutory orders that involve a “controlling question of law”.

The underlying issue of whether Malbrough has presented sufficient

evidence to show a “genuine issue ... [of] material fact”, and thus

avoid summary judgment under FED. R. CIV. P. 56(c), is not a question

of law within the meaning of § 1292(b). See Ahrenholz v. Board of

Trustees of University of Illinois, 219 F.3d 674, 676-77 (7th Cir.

2000). As such, although the district court’s order granted Crown

general permission to “appeal the denial of ... summary judgment”,

our review is limited to the narrow question of statutory

interpretation raised by Crown in both its brief before us and its

memorandum in support of the motion for summary judgment.

Crown asserts that the controlling question of law in this

case is whether “[t]he Louisiana Products Liability Act requires

Plaintiff to put forth expert testimony in support of her design

3
defect claim against Crown”. Put more precisely as a purely legal

question, Crown’s argument is that, as a matter of statutory

interpretation, the LPLA requires expert testimony in every

instance in which a design defect is alleged. We are unable to

agree.

First, and most significantly, the plain language of the LPLA

does not support Crown’s position. The LPLA requires that a

plaintiff advancing a design defect claim show, inter alia, that

“[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 manufacturer of adopting such alternative design and

the adverse effect, if any, of such alternative design on the

utility of the product”. LA. REV. STAT. ANN. § 9:2800.56. No

language or provision of the statute requires that a cause of

action alleging a design defect must, as a matter of law, be

supported by expert testimony. To the extent the statute allocates

burdens of proof or production, it simply states that “[t]he

claimant has the burden of proving the elements of [his or her

claim]”. LA. REV. STAT. ANN. § 9:2800.54.

It is therefore unsurprising that Louisiana case law does not

support Crown’s reading of the statute. None of the Louisiana

cases cited by Crown suggests that a plaintiff must always prove

4
her prima facie design defect case with expert testimony and may

never rely on lay testimony alone.1

This lack of Louisiana authority is reflected in Lavespere v.

Niagara Machine & Tool Works, Inc., where we remarked that the LPLA

does not mandate “that the plaintiff ... in every case, introduce

evidence that details and quantifies the risk avoided and the

burden incurred” in order to present a prima facie case of

defective design. 910 F.2d 167, 184 (5th Cir. 1990). We further

observed that “there may be cases in which the judge or jury, by

relying on background knowledge and ‘common sense,’ can ‘fill in

the gaps’ in the plaintiff’s case” and thus undertake the utility

balancing required by the LPLA without the aid of expert

testimony.2 Id.

Although, given the record thus far made, it may be difficult

or impossible for this case to be successfully tried without

plaintiff’s expert testimony, we have no jurisdiction on

interlocutory appeal to review the district court’s weighing of the

1
To be sure, in each case cited by Crown, expert testimony
proved essential to the final disposition. Crown argues that,
because “not one” of these cases “d[id] not require expert
testimony”, we should interpret them as supporting the proposition
that the LPLA requires expert testimony in all design defect cases.
Crown’s argument must be rejected as a matter of simple logic. One
cannot infer from the widespread use of expert testimony that the
LPLA mandates such testimony in every design defect case.
2
Crown argues that both statements in Lavespere are dicta.
We do not rely on those statements for controlling authority; in
any event, we leave that issue for another day.

5
evidence. Consequently, we hold that the district court did not

err in refusing to recognize a per se requirement of expert

testimony in all design defect cases under the LPLA.

III

For the reasons set forth above, the order of the district

court is

1 AFFIRMED.