UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30965
ELTON FITZGERALD ELLIS
Plaintiff - Appellee
VERSUS
WEASLER ENGINEERING INC; ET AL
Defendants
NUT HUSTLER INC
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
July 11, 2001
Before SMITH and DENNIS, Circuit Judges, and HARMON,* District
Judge.
DENNIS, Circuit Judge:
In this diversity jurisdiction civil action based on Louisiana
products liability law, the manufacturer, Nut Hustler, Inc.,
*
District Judge of the Southern District of Texas, sitting by
designation.
1
challenges the sufficiency of the evidence to support the jury’s
verdict in favor of the plaintiff, Elton Fitzgerald Ellis, on the
single issue of whether Mr. Ellis’s injury, the traumatic
amputation of his arm, arose from a reasonably anticipated use of
the product, a mechanized pecan harvester. Alternatively, Nut
Hustler seeks reversal of the district court’s denial of its motion
for a new trial because of an alleged inconsistency between special
verdicts. At the outset, we stress the limited nature of the
principal issue on appeal: we are not here presented with a
challenge to the jury’s determination that Mr. Ellis’s injury was
proximately caused either by a characteristic of the product that
rendered it unreasonably dangerous in design or by an inadequate or
unprovided warning about the product’s danger. Rather, we are to
consider only whether the evidence presented at trial was
sufficient to create an issue of fact for the jury as to the
reasonably anticipated use element of Mr. Ellis’s claim or whether
the district court was required to enter a judgment as a matter of
law against him on that issue. On the issues appealed we affirm
the judgment on verdict of the district court.
I. Facts and Procedural History
In the pecan-harvesting season of 1996-1997, the plaintiff,
Elton Ellis, worked for Clarence Spotsville harvesting pecans on
Mr. Spotsville’s farm in Colfax, Louisiana. Mr. Ellis’s job
2
entailed operating Mr. Spotsville’s tractor and mechanized pecan
picker. Mr. Spotsville had purchased the pecan harvester machine
from its manufacturer, the defendant Nut Hustler, Inc.
On the day of the accident, February 6, 1997, Mr. Spotsville
picked up Mr. Ellis in his truck and bought each of them a can of
beer on their way to the pecan orchard. After drinking “two sips”
or a can of beer,2 Mr. Ellis started the tractor and set out to
collect fallen pecans with the Nut Hustler machine attached to the
tractor. The harvester’s pecan-picking function was powered by a
spinning drive shaft attached to a power take-off on the tractor.
As he was circling the first pecan tree, Mr. Ellis noticed that the
harvester was not ejecting leaves, twigs, and debris as it should
when properly harvesting pecans. Mr. Ellis testified:
It wasn’t blowing out the leaves. It was stopped up, so
I did my normal routine, what I always do, that’s the way
I was taught, was to stop the tractor, leave the P.T.O.
running and get off the tractor, walk back there and see
what was not spinning back there on the spinner, see what
was stopped up, what was causing it.
Thus, to identify the part of the harvester that was not working
properly, Mr. Ellis left the tractor motor idling in neutral gear
and the drive shaft spinning, so that he could see where the
2
Mr. Ellis testified that before driving the tractor he had taken
only two sips from the can of beer that Mr. Spotsville had
purchased for him on the way to the pecan orchard. Defense counsel
asked Mr. Ellis if he had said in his deposition that he had drunk
a whole can of beer before operating the tractor. He did not
flatly deny making the statement, but he insisted that he had only
taken two sips and that somewhere in his deposition he had so
testified.
3
mechanism was broken, stuck, or not properly functioning.
Mr. Ellis testified that both Mr. Spotsville and Mr. Valle,
another pecan farmer for whom he had worked, taught him to follow
this procedure to determine the nature of the problem when the
harvester was not performing effectively. The plaintiff’s expert
witness, Mr. Mansel Mayeux, a retired Louisiana State University
professor of agricultural engineering who had extensive experience
in research, design, and safety of agricultural machinery,
testified that Mr. Ellis had not engaged in an unexpected or
improper use of the pecan harvester: “When you inspect a machine
like that when you have a problem, you may have to leave it running
in order to tell what the problem is. You turn it off and nothing
is happening, so you don’t know what’s wrong, so you’ve got to
leave it on.”3 The defendant’s expert witness, Dr. Gerald
Whitehouse, who had three degrees in mechanical engineering and
specific expertise in mechanical design, testified that pecan
harvesting was the reasonably anticipated use of the pecan
harvester and that this was his understanding of what Mr. Ellis was
doing at the time of the accident. Nut Hustler did not present any
evidence that it reasonably should not have expected ordinary
persons to troubleshoot a malfunctioning harvester in the field by
3
Mr. Mayeux further testified that, “Once you’ve isolated what
to repair, you turn it off and then do whatever it is you need to
do.” Mr. Ellis testified that he was not attempting to repair the
harvester when the accident happened.
4
visually inspecting its moving parts while it was being operated by
a power take-off from a stationary tractor.
Mr. Ellis walked around the pecan harvester and inspected its
working parts, but he was not able to identify the cause of the
malfunction. Because of the cold weather, Mr. Ellis was wearing a
long flannel jacket over his trousers and undergarments. This was
not unusual garb for pecan harvesting, as he testified without
contradiction that Mr. Spotsville and Mr. Valle wore similar
jackets in the field. As he headed back to the tractor, he noticed
that a bolt on the front of the harvester was loose and dangling.
(This was a different bolt from the one on the drive shaft involved
in the accident.) He walked over and looked at the dangling bolt
for a moment. Then he turned and walked toward the tractor again.
Suddenly, the spinning drive shaft caught some part of his clothing
and pulled him back into the machinery. Mr. Ellis testified:
So I walked back there and I looked and I couldn’t
seem to find what the problem was, so I said, well, I’ll
go cut the machine off and come back and look again. So
as I headed back to the tractor, I noticed that another
bolt was loose. I heard it dangling. So I walked over
and I looked over at it, and as I glanced and I turned
around and I headed back to the tractor, that’s when—I
don’t know. I don’t know what happened to me. I just
felt something grab me from the back, and as it grabbed
me from the back, it made me lose my balance, you know,
and it pulled me into it.
After the clothing covering Mr. Ellis’s arm became tightly wrapped
around the spinning drive shaft, his body was thrown away from the
shaft, tearing off his arm at the shoulder.
5
Mr. Ellis filed this products liability suit against three
defendants, including Nut Hustler. The district court dismissed
the claims against all defendants except Nut Hustler. A jury trial
was held on May 17-18, 1999. Nut Hustler moved for judgment as a
matter of law at the close of the plaintiff’s case and re-urged the
motion upon completion of its case. The district court withheld
ruling on the motion. The jury returned a verdict finding Nut
Hustler 70% at fault and Mr. Spotsville 30% at fault. The jury
found that Mr. Ellis was negligent in his use of the harvester but
determined that his negligence was not a cause of the accident.
The jury quantified damages in the amount of $730,000. Nut Hustler
again moved for judgment as a matter of law on the issue of whether
Mr. Ellis was engaged in a reasonably anticipated use of the
harvester at the time of the accident. Nut Hustler also moved for
a new trial on the issue of whether Mr. Ellis was guilty of
negligence that was a cause of the accident. The district court
denied the motions and rendered judgment for Mr. Ellis on the
verdict. Nut Hustler appealed.
The district court’s ruling on the post-trial motions
succinctly describes the evidence from which it concluded that the
jury reasonably found in favor of Mr. Ellis on the issues of
reasonably anticipated use, unreasonably dangerousness in design
and lack of adequate warning, and proximate causation of injury.
The pertinent part of the district court’s ruling provides:
6
In this case, there was sufficient evidence that Ellis
used the pecan harvester for the exact purpose for which
it was intended, gathering pecans. Further, there was
testimony that Ellis was inspecting the machine when his
shirt became twisted in the rotating machine. Such a use
is consistent with the purpose of the product. See
[Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309
(5th Cir. 1998)(en banc)]. The defendant argues that the
placement of a large bolt on the drive shaft was an
unreasonable and unanticipated use of the pecan
harvester. Consideration of the placement of the bolt is
more appropriate when analyzing the issue of alteration
and modification of the product.
The unreasonably dangerous question encompasses the
reasonably anticipated alteration or modification issue.
See 9:2800.54(C)(1997). That is the issue before this
court: whether there is legally sufficient evidentiary
basis for a reasonable jury to find that the
modifications made to the machine could be reasonably
anticipated by the defendant.
. . . From the evidence presented, the jury could
have found that the pecan harvester was unreasonably
dangerous when it left the Nut Hustler’s control. Basil
Savage, the majority shareholder in Nut Hustler,4
testified that he had developed a shield for the drive
shaft in the early 1980's. He placed this shield on the
pecan harvester of his other company, Savage Equipment
Company. He discussed the need for the shield with Jimmy
Goforth, another shareholder of Nut Hustler and manager
of the company, but Goforth would not place the shield on
the Nut Hustler equipment. Savage admitted that a guard
could have been manufactured and installed at a
reasonable cost and would provide protection for an
operator. In addition, Savage testified that [the
designer] sent Nut Hustler a blueprint of the pecan
harvester in 1978 that warned them that the drive shaft
had no shield and such a shield should be provided by the
implement manufacturer, Nut Hustler.
Mansel Mayeux, plaintiff’s expert in agricultural
4
Footnote 2 in the district court’s ruling at this point states:
“Savage testified that he and Jimmy Goforth incorporated Nut
Hustler in 1978. Goforth and Savage were also major shareholders
of Savage Equipment Company. Mr. Savage operated Savage Equipment
Company while Mr. Goforth managed Nut Hustler. At some time in the
late 1980's Mr. Savage acquired 100% ownership of both companies.”
7
engineering, testified that in March 1987 the American
Society of Agricultural Engineers, the Society of
Automotive Engineers, and the American National Standards
Institute generated standards that required a shield to
cover any protruding object on a drive shaft.5 See Basil
Savage’s testimony. The standard was issued prior to the
production of the equipment involved in this case.
Savage testified that he knew that standards existed but
had no knowledge of the requirements of the standards.
In addition, Mayeux estimated the cost of such a shield
to be $20-50.
Mayeux also opined that the unshielded drive shaft
would be dangerous absent any protruding objects.
Further, he stated that the two nut projection designed
by Nut Hustler was unreasonably dangerous if unprotected
by a shield. In this case, the jury could have found
that the pecan harvester was unreasonably dangerous in
design and that the addition of the large bolt was not
unreasonable or unforeseeable.6 There was sufficient
evidence that both the lack of the shield and the
addition by the owner of a large bolt contributed to
Ellis’ injury. Nonetheless, the culprit, according to
believable testimony, is the lack of a protective shield.
There is ample evidence that without a shield, the
accident would have occurred with or without the presence
of the awkward bolt added by the owner. This is
supported in the jury’s finding of Mr. Spotsville as
being 30% at fault.7 For these reasons, the defendant’s
motion for a new trial or for a judgment as a matter of
law is denied.
5
Footnote 3 of the district court’s ruling at this point observes
that “[a]lthough such a standard is not determinate of Nut
Hustler’s liability, it is relevant to the jury’s determination.
See Dunne v. Wal-Mart Stores, Inc., 679 So.2d 1034 (La. App. 1st
Cir. 1996).”
6
Footnote 4 of the district court’s ruling here states that
“[f]rom the evidence, the jury could have concluded, in the
alternative, that the large bolt was not a cause of the accident
and that Spotsville was negligent in other respects.”
7
Footnote 5 of the district court’s ruling notes that “the above
analysis applies similarly to the inadequate warning claim.”
8
II. Judgment as a Matter of Law
A. Louisiana Products Liability Act
The Louisiana Products Liability Act (LPLA), La. Rev. Stat. §
9:2800.51 et seq., provides that the manufacturer of a product is
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. Id. §
9:2800.54. Under the LPLA, a product is unreasonably dangerous if,
inter alia, the product is unreasonably dangerous in design as
provided in § 9:2800.56 or the product is unreasonably dangerous
because an adequate warning about the product has not been given as
provided in § 9:2800.57. LPLA § 9:2800.54(B)(2), & (3). The term
“reasonably anticipated use” means 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. Id. §
9:2800.53(7).
The claimant has the burden of proving the elements of
reasonably anticipated use, unreasonable dangerousness in design or
lack of adequate warning, and proximate causation. Id., §
2800.54(D). Thus, Mr. Ellis had the burden of producing evidence
and persuading the jury to find by a preponderance of the evidence
the facts that his injury arose from a reasonably anticipated use
of the product, and that his damage was proximately caused by a
9
characteristic of the product that rendered it unreasonably
dangerous in design or by the lack of an adequate warning. The
existence of each of these elements is a question of fact or of
mixed fact and policy to be decided by the jury based upon the
evidence and circumstances presented by the particular case.8 The
factual findings of the existence or non-existence of each of these
elements is subject to appellate review in Louisiana under the
8
See Hooker v. Super Prods. Corp., 98-1107 (La. App. 5 Cir.
6/30/99), 751 So. 2d 889, 904-05 (plaintiff met initial burden of
proof on reasonably anticipated use in jury trial); Dunne v. Wal-
Mart Stores, Inc., 95-2047 (La. App. 1 Cir. 9/10/96), 679 So. 2d
1034, 1036-37 (trial court’s finding that use of product was not
reasonably anticipated was manifestly erroneous; contrary de novo
finding by appellate court); Bernard v. Ferrellgas, Inc., 96-621
(La. App. 3 Cir. 2/5/97), 689 So. 2d 554, 559 (reasonable jurors
could find lack of safety device was a significant causal factor);
Perez v. Brown Mfg., 1999 WL 527734, *4 (E.D. La.) (unreasonably
dangerous in design); Hines v. Remington Arms Co., 648 So. 2d 331,
335 (La. 1994)(same); Precht v. Case Corp., 99-1296 (La. App. 3
Cir. 2/16/00), 756 So. 2d 488, 495, 497-498 (same); Guillory v.
Int’l Harvester Co., Inc., 99-593 (La. App. 3 Cir. 10/13/99), 745
So.2d 733, 736, writ denied 99-3237 (La. 1/14/00), 753 So. 2d 220
(same); Thomas v. Sport City, Inc., 31-994 (La. App. 2 Cir.
6/16/99), 738 So.2d 1153, 1155 (same); Johnson v. Black & Decker
U.S., Inc., 29-996 (La. App. 2 Cir. 10/31/97), 701 So. 2d 1360,
1363, writ denied, 97-2971 (La. 2/6/98), 709 So. 2d 741 (same);
Morehead v. Ford Motor Co., 29-399 (La. App. 2 Cir. 5/21/97), 694
So. 2d 650, 654, reh’g denied, writ denied 97-1865 (La. 11/7/97),
703 So. 2d 1265 (same); Bernard, 689 So. 2d 554, 559 (same); Ballam
v. Seibels Bruce Ins. Co., 97-1444 (La.App. 4 Cir. 4/1/98), 712
So.2d 543, 549 (unreasonably dangerous for failure to provide an
adequate warning); Coulon v. Wal-Mart Stores, Inc., 98-1141 (La.
App. 1 Cir. 5/14/99), 734 So. 2d 916, 920 & 921 (unreasonably
dangerous in composition or construction). Cf. Reed v. Wal-Mart
Stores, Inc., 708 So. 2d 362, 364 (La. 1998)(“whether a defect
presents an unreasonable risk of harm ‘is a disputed issue of mixed
fact and law or policy that is peculiarly a question for the jury
or trier of the facts.’")(quoting Tillman v. Johnson, 612 So. 2d 70
(La. 1993)).
10
manifest error standard.9
B. Distinguishing Between Decisions
on Law and Facts in Louisiana Cases
Under the Louisiana state constitution, the general rule as to
the scope of appellate review in civil cases is that the
jurisdiction of the supreme court and the courts of appeal extend
to questions of fact as well as to questions of law. La. Const.
Art. V §§ 5(C) & 10(B). Jurisdiction to review findings of facts,
resulting from Louisiana’s history as a hybrid civil and common law
jurisdiction, has been interpreted as giving the supreme court and
courts of appeal the power to decide factual issues de novo. See,
e.g., Rosell v. Esco, 549 So. 2d 840, 844 n.2 (La. 1989).10 The
exercise of this power is limited by the jurisprudential rule of
practice that the factual finding by a trial judge or jury will not
be upset unless it is manifestly erroneous or clearly wrong. Id.
When an appellate court finds that a reversible error of law was
9
Precht, 756 So. 2d at 495; Thomas, 738 So. 2d at 1155; Coulon,
734 So.2d at 920 (citing Reed, 708 So. 2d at 364-65; Ballam, 712
So. 2d at 549. Cf. Reed, 708 So.2d at 365 (“[T]he findings of the
jury or trial court should be afforded deference and we therefore
hold that the ultimate determination of unreasonable risk of harm
is subject to review under the manifest error standard. A
reviewing court may only disturb the lower court’s holding upon a
finding that the trier of fact was clearly wrong or manifestly
erroneous.”).
10
See also Melancon v. McKeithen, 345 F. Supp. 1025, 1029 (E.D.
La. 1972)(Wisdom, J. for three-judge court)(citing Abat v.
Doliolle, 4 Mar.(O.S.) 136 (1816)); accord Powell v. Reg’l Transit
Auth., 695 So. 2d 1326, 1328 (La. 1997); Andrews v. Williams, 281
So. 2d 120, 121 (La. 1973).
11
made in the trial court or a manifest error of material fact was
made by the trial court or jury, however, the reviewing court is
required to redetermine the facts de novo from the entire record
and render a judgment on the merits. Id. (citing Gonzales v. Xerox
Corp., 320 So. 2d 163 (La. 1975); McLean v. Hunter, 495 So. 2d 1298
(La. 1986); Otto v. State Farm Mut. Ins. Co., 455 So. 2d 1175 (La.
1984); Ragas v. Argonaut Southwest Ins. Co., 388 So. 2d 707 (La.
1980)). The manifest error doctrine also makes it possible for
different triers of fact to validly reach different conclusions
concerning the same set of facts. See Knighten v. Am. Auto. Ins.
Co., 121 So. 2d 344, 349 (La. Ct. App. 1st Cir. 1960)
“[C]onflicting decisions upon the same issue of fact do
not necessarily connote erroneous judicial action.
Differences in proof and the latitude necessarily allowed
to the trier of fact in each case to weigh and draw
inferences from evidence and to pass upon the credibility
of witnesses, might lead an appellate court to conclude
that in none is the judgment erroneous.”
Id. (quoting Worcester County Trust Co. v. Riley, 302 U.S. 292, 299
(1937))(discussing how the court reached a different result from
that in Johnson v. Wilson, 97 So. 2d 674, 679 (La. 1957), rev’d on
other grounds, 118 So. 2d 450 (La. 1960), when the basic facts in
the two cases were the same). See also State, Dep’t of Highways v.
Martin, 215 So. 2d 142, 143 (La.Ct.App. 3rd Cir. 1968); Wright v.
Paramount-Richards Theatres, 198 F. 2d 303, 308 (5th Cir. 1952).
Unlike the Seventh Amendment to the United States
Constitution, the Louisiana Constitution contains no guarantee, in
12
civil cases, of a right to trial by jury and no restriction upon
appellate reexamination of facts tried by a jury. As this court
observed in Wright, 198 F.2d at 306, “As a consequence of [the
appellate review of facts in Louisiana], in civil jury cases
federal courts evaluating decisions of Louisiana state courts as
precedents have the difficult task of separating the decisions of
the Louisiana courts on the law from their review of the facts.”
(emphasis added). Accord Miskell v. S. Seafood Co., 439 F.2d 790,
792 (5th Cir. 1971); see also Shirey v. Louisville & Nashville
R.Co., 327 F.2d 549, 552 (5th Cir. 1964); Great Am. Indem. Co. v.
Inkenbrandt, 306 F.2d 117, 119 (5th Cir. 1962); St. Paul Fire &
Marine Insurance Company v. Heath, 302 F.2d 326, 328 (5th Cir.
1962); Gov’t Employees Ins. Co. v. Davis, 266 F.2d 760, 764 (5th
Cir. 1959); LaBuff v. Texas & New Orleans R.R. Co., 126 F.Supp.
759, 763 (W.D. La. 1954); Boeing Co. v. Shipman, 411 F.2d 365, 379
n.4 (5th Cir. 1969)(en banc)(Rives, J., concurring), overruled on
other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331,
337 & 339 (5th Cir. 1997); William E. Crawford, Life on a Federal
Island in the Civilian Sea, 15 MSCLR 1, 7-8 (1994).
Thus, in diversity cases, a federal court or jury can be
bound by a Louisiana court’s creation or interpretation of state
law but not by a state court’s finding or decision on the facts of
a particular case. Wright, 198 F.2d at 308. Indeed, it is an
error of law for a federal district court in a diversity case to
13
base its ruling on a motion for judgment as a matter of law (or,
formerly, on a judgment notwithstanding the verdict) on the
findings of Louisiana courts on facts as distinguished from their
decisions on law. Id. at 307-08.11
Accordingly, in evaluating the Louisiana decisions cited by
Nut Hustler in support of its motion for judgment as a matter of
law, we must first determine whether the state decisions upon which
it relies make or interpret state law on point. After carefully
studying those Louisiana cases, we conclude that none of them do
so. Rather, each decision relied upon by Nut Hustler constitutes
only a finding of an adjudicative fact12 specific to that particular
case, viz., whether the claimant’s damage in that particular case
11
In a federal civil jury case, “[i]t is the jury, not the
[federal or state] court, which is the fact-finding body.” Wright,
198 F.2d at 307-308 (quoting Tennant v. Peoria & P. U. Ry. Co., 321
U.S. 29, 35 (1944)). Moreover, “[t]hat conclusion [is true]
whether it relates to negligence, causation or any other factual
matter[.]” Id. at 308 (quoting Tennant, 321 U.S. at 35).
12
See Fed. R. of Evid. 201 advisory committee notes
(“Adjudicative facts are simply the facts of the particular case.
Legislative facts, on the other hand, are those which have
relevance to legal reasoning and the lawmaking process, whether in
the formulation of a legal principle or ruling by a judge or court
or in the enactment of a legislative body.”); Black’s Law
Dictionary (7th ed. 1999)(“adjudicative fact . . . A controlling
or operative fact, rather than a background fact; a fact that
concerns the parties to a judicial or administrative proceeding and
that helps the court or agency determine how the law applies to
those parties. . . . For example, adjudicative facts include those
that the jury weighs.”); id. at 610-11 (“legislative fact. A fact
that explains a particular law’s rationality and that helps a court
or agency determine the law’s content and application. . . .
Legislative facts are not ordinarily specific to the parties in a
proceeding.”)
14
arose from a reasonably expected use of the specific product.
Because each of the Louisiana decisions relied upon by Nut Hustler
with respect to the issue of reasonably anticipated use is a
decision making a finding of fact, rather than a decision making or
interpreting law, the jury, the district court, and this court are
not bound in this diversity case by those state cases on their
findings of facts with respect to the issue of reasonably
anticipated use.
Actually, Nut Hustler does not contend that the Louisiana
cases it cites make or interpret state law with respect to the
reasonably expected use of a product. Nut Hustler argues instead
that we must grant its motion for judgment as a matter of law
because in a number of cases Louisiana courts have found that a
claimant’s injury did not arise from a reasonably expected use of
a product based on facts that were “closely analogous” or
“strikingly similar to the present circumstances.” That argument
is based on a faulty notion of binding factual precedents, however,
which is contrary to the well-settled jurisprudence of this circuit
that in diversity cases we are bound by Louisiana courts’ decisions
making or interpreting state law but not by their findings of facts
in particular cases. See Wright, 198 F.2d at 307-08; Miskell, 439
F.2d at 791; Shirey, 327 F.2d at 552 (5th Cir. 1964); Inkenbrandt,
306 F.2d at 119; St. Paul Fire & Marine Ins. Co., 302 F.2d at 328;
Davis, 266 F.2d at 764; LaBuff, 126 F.Supp. at 763; Boeing, 411
15
F.2d at 379 n.4 (Rives, J., concurring).
That the Louisiana cases cited by Nut Hustler represent only
findings of facts in particular cases with respect to reasonably
expected use of a product, not the making or interpreting of law on
that issue, is evident from a brief survey of them. (Also evident
is the questionableness of Nut Hustler’s contention that the
Louisiana decisions it cites are “closely analogous” or “strikingly
similar” to the present case on the facts. The Louisiana cases
involve a wide array of dissimilar products and uses, and none of
them involves the use of a pecan harvester. We pretermit
discussion of the factual analogies or contrasts between those
decisions and the case at bar, however. They are not relevant to
our decision, because we are not bound by the state courts’
findings of facts in our review of this federal diversity civil
jury trial.)
In Myers v. American Seating Co., 93-1350 (La. App. 1 Cir.
5/20/94), 637 So. 2d 771, relied upon heavily by Nut Hustler, the
court of appeal reversed a directed verdict for the manufacturer on
the issues of the “unreasonable dangerousness” and “reasonably
anticipated use” of a folding chair because “based on the evidence
presented to the jury, reasonable people could have reached a
different conclusion.” Id. at 778. After conducting a trial de
novo on the record, the court of appeal found that the plaintiff’s
use of the folding chair as a step ladder by standing on the rear
16
part of the chair’s seat was not a reasonably anticipated use of
the chair and that the product was not unreasonably dangerous in
design or otherwise. This case illustrates that the Louisiana
courts regard the question of whether a particular use of a product
was reasonably anticipated as a question of fact for the jury when
reasonable people could disagree as to the answer; and that if the
trial judge errs in not sending the issue to the jury, the court of
appeal will decide that question of fact as the trier of the facts
in a trial de novo on the entire record. Thus, the court of appeal
in Myers made a finding of fact, and did not make or interpret
state law, on the issue of reasonably expected use of a product.
In Kelley v. Hanover Ins., 98-506 (La. App. 5 Cir. 11/25/98),
722 So. 2d 1133, 1137, a teenage boy died as the result of his
intentional inhalation of propane gas to get high. The appellate
court upheld summary judgment for the defendant manufacturers on
the issue of whether intentional inhalation was a reasonably
anticipated use of the product because the evidentiary basis in
that case was not sufficient to support a reasonable trier of
fact’s finding to the contrary. Again, this case does not
establish a rule of law or change the LPLA’s legal definition of
reasonably anticipated use; it merely decides that based on the
summary judgment evidence presented in that particular case a
reasonable trier of fact could not have found for the claimant on
that issue.
17
In Ford v. Beam Radiator, Inc., 96-2787 (La. App. 1 Cir.
2/20/98), 708 So. 2d 1158, 1162, a radiator cap’s cast-iron “boss”
was welded to the stainless steel stud after it was sold,
eliminating the taper lock feature. The appellate court upheld the
jury’s factual finding for the defendant manufacturer on the issue
of reasonably anticipated use because “the record provided a
reasonable basis for the jury to conclude that the improper
modification by welding was not a misuse that could be reasonably
anticipated.” Id. Again, Nut Hustler does not and cannot point to
any law established or interpreted by the decision but mistakenly
claims that we are bound by its case-specific factual finding.
In Johnson v. Black & Decker U.S., Inc., 29-996 (La. App. 2
Cir. 10/31/97), 701 So. 2d 1360, 1365, after reviewing the record,
the appellate court affirmed the jury’s factual finding that the
plaintiff’s use of a power miter saw without the safety guard,
which was attached at the time of the sale, should not have been
reasonably anticipated by the defendant manufacturer. Far from
being a creation of law or a gloss on the LPLA, this was simply an
appellate determination that the jury’s finding of fact was not
unreasonable; the appeals court did not address whether a contrary
finding also would have been reasonable based on that particular
evidentiary record. In other words, the appellate court made no
law because it merely reviewed the jury’s findings of fact for
manifest error and, finding none, affirmed.
18
In Hoyt v. Wood/Chuck Chipper Corp., 92-1498 (La. App. 1 Cir.
1/6/95), 651 So. 2d 1344, 1352, the appellate court, upon its own
review of the record, made a finding of fact de novo that the
manufacturer should not have reasonably expected the replacement of
the key-activated starter switch on a woodchipper with a less safe
flip-on toggle switch. Moreover, Peterson v. G.H. Bass and Co.,
Inc., 97-2843 (La. App. 4 Cir. 5/20/98), 713 So. 2d 806, affirmed
a summary judgment that, on the particular evidentiary basis in
that case, in which the plaintiffs presented no evidence to the
contrary, the manufacturer reasonably should not have expected
teenage girls to intentionally inhale vapors from products
expressly designed and labeled for the care of shoes.13
The foregoing analysis of the Louisiana court decisions and
13
The federal cases cited by Nut Hustler applying the LPLA are to
the same effect. They involved either a summary judgment or a
judgment as a matter of law that there was not a legally sufficient
evidentiary basis in that particular case for a reasonable juror or
trier of fact to find for the plaintiff on the issue of reasonably
anticipated use. See Hunter v. Knoll Rig & Equip. Mfg. Co., Ltd.,
70 F.3d 803 (5th Cir. 1995)(racking pipe with a negative lean was
not reasonably anticipated use of drilling rig racking board
because it was commonly known to be dangerous and contrary to
industry practice); London v. MAC, 44 F.3d 316 (5th Cir.
1995)(climbing atop a ten-foot high gearbox and standing on its
cover while attempting to dislodge clogged material from a shredder
was not a reasonably anticipated use of the gear box cover);
Lockhart v. Kobe Steel Ltd. Const. Mach. Div., 989 F.2d 864 (5th
Cir. 1993)(suspension of a heavy pontoon from a chain looped around
the teeth of an excavator bucket designed for scooping, not
lifting, was not a reasonably anticipated use of excavator and
bucket); Frith v. John Deere Co., 955 F.Supp. 663 (W.D. La.
1996)(purposeful deactivation of safety switch that prevented the
starting of a tractor while in gear so as to allow the very type of
hazard protected against was not a reasonably anticipated use).
19
the federal Louisiana diversity decisions relied upon by Nut
Hustler demonstrates that each case presents only a finding of fact
on the issue of reasonably anticipated use with respect to the
evidentiary basis of that particular case. None of those cases
represents a creation or interpretation of Louisiana law with
respect to reasonably anticipated use. Consequently, Nut Hustler’s
sample of Louisiana cases presents no decision on state law that is
binding on the jury, the district court, or this court in the
present diversity case with respect to the reasonably anticipated
use issue.14
C. Sufficiency of Evidence and Judgment
As a Matter of Law in Federal Diversity Cases
“We review de novo the district court’s ruling on a motion for
judgment as a matter of law, applying the same legal standard as
the trial court.” Flowers v. S. Reg’l. Physician Servs., No. 99-
31354, 2001 WL 314603, at *4 (5th Cir.(La. 2001)) (citing Ford v.
Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir. 2000); Brown v. Bryan
14
It is interesting that Nut Hustler did not include within its
case sample a number of Louisiana decisions favorable to claimants
on the issue of reasonably anticipated use. See, e.g., Simon v.
Am. Crescent Elevator Co., 99-2058 (La. App. 4 Cir. 4/26/00), 767
So. 2d 64; Hooker, 751 So. 2d 889; Dunne, 679 So. 2d 1034; State
Farm Mut. Auto. Ins. Co. v. Wrap-On Co., Inc., 626 So. 2d 874 (La.
Ct. App. 3rd Cir. 1993). Nut Hustler does not explain why those
cases were excluded or how, if at all, their inclusion would have
affected the analogy it evidently claims should be drawn from a
synthesis of Louisiana cases, each involving a decision of a
question of fact of reasonably anticipated use based on the
specific, unique evidentiary record of that particular case.
20
County, Oklahoma, 219 F.3d 450, 456 (5th Cir. 2000), cert. denied,
121 S.Ct. 1734 (2001)).
Whether the evidence presented at trial is sufficient to
create an issue of fact for the jury or will permit the court to
enter judgment as a matter of law is governed by federal rather
than state law. Thrash v. State Farm Fire & Cas. Co., 992 F.2d
1354 (5th Cir. 1993); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.
1969)(en banc), overruled on other grounds by Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331, 337 & 339 (5th Cir. 1997). This is the
majority rule of the federal circuits. 9A CHARLES A. WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2525 (2d ed. 1994)(“WRIGHT &
MILLER”); id. at 118 (Supp. 2001); 9 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 50.66 (3d ed. 1999). Moreover, “[c]oncerning
matters covered by the Federal Rules of Civil Procedure, . . . [i]t
is settled that if the Rule on point is consonant with the Rules
Enabling Act, 28 U.S.C. § 2072, and the Constitution, the Federal
Rule applies regardless of contrary state law.” Gasperini v. Ctr.
For Humanities, Inc., 518 U.S. 415, 428 n.7 (1996)(citing Hanna v.
Plumer, 380 U.S. 460, 469-74 (1965); Burlington No. R. Co. v.
Woods, 480 U.S. 1, 4-5 (1987)). See also Rosales v. Honda Motor
Co., Ltd., 726 F.2d 259 (5th Cir. 1984); Affholder, Inc. v. So.
Rock, Inc., 746 F.2d 305 (5th Cir. 1984). In the absence of Nut
Hustler’s demonstration of the invalidity of Federal Rule of Civil
Procedure 50, and our own inability to detect any, we conclude that
21
Rule 50 clearly applies to the present case for purposes of
determining whether a judgment as a matter of law should be
granted. Id.
Under Rule 50, a court may not render judgment as a matter of
law unless 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. Fed. R. Civ. P. 50(a); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149
(2000). In entertaining a Rule 50 motion for judgment as a matter
of law the court must review all of the evidence in the record,
draw all reasonable inferences in favor of the nonmoving party, and
may not make credibility determinations or weigh the evidence. Id.
at 150 (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55
(1990); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51,
254 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “‘Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.’” Reeves, 530
U.S. at 150-51 (quoting Liberty Lobby, 477 U.S. at 255). Although
the court must review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not
required to believe. Id. at 151 (citing 9A WRIGHT & MILLER § 2529).
Thus, the court must give credence to the evidence favoring the
nonmovant as well as that “evidence supporting the moving party
22
that is uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.” Id. (quoting
WRIGHT & MILLER § 2529).
D. There Was a Legally Sufficient Evidentiary Basis For
A Reasonable Jury to Find for Mr. Ellis on the Issue of
Reasonably Anticipated Use; The District Court Correctly
Denied Nut Hustler’s Motion for Judgment as a Matter of
Law.
In denying Nut Hustler’s motion for a judgment as a matter of
law, the district court stated:
In this case, there was sufficient evidence that Ellis
used the pecan harvester for the exact purpose for which
it was intended, gathering pecans. Further, there was
testimony that Ellis was inspecting the machine when his
shirt became twisted in the rotating machine. Such a use
is consistent with the purpose of the product.
(citing Kampen v. Am. Isuzu Motors, Inc., 157 F.3d 306, 309 (5th
Cir. 1998)(enbanc)(The LPLA’s “objective inquiry requires us to
ascertain what uses of its product the manufacturer should have
reasonably expected at the time of manufacture.”)).15 After
15
This court in Kampen expressed its view that the term
“reasonably anticipated use” may reasonably be interpreted at some
level of generality:
[A] plaintiff may act in relation to a product in
such a way that, while it does not change the physical
stresses placed on a product, nevertheless increases the
risk of injury associated with the product. A
manufacturer is required to take these kinds of actions
by product users into account when designing and
providing warnings for its product. Surely the
manufacturer, Isuzu, was required to contemplate not only
the risks associated with the proper physical
manipulation of the jack, but also the risks associated
with the purpose for which the jack would be employed
23
reviewing the record, we conclude that the district court correctly
analyzed the evidence and applied Rule 50, not simply for the
district court’s stated reasons, but also because of additional
evidence in the record from which the jury reasonably could have
(i.e., whether the jack would be used for changing tires
or instead as a support for repairs to the car's
undercarriage).
Certainly lines must be drawn between those actions
of a plaintiff which will and will not constitute "use"
of a product: we would not say, for example, that the
brand of shirt Kampen was wearing when he was crawling
under the car should figure into his "use" of the jack.
Isuzu was not required to anticipate whether potential
users of its jack would be wearing Polo, Izod or J.C.
Penney sportswear because those aspects of Kampen's
behavior have nothing to do with the risks contemplated
in designing a jack. But whether or not Kampen was going
to jack the car up and then crawl under it bears directly
on the decisions Isuzu must make in designing a product
that is not unreasonably dangerous.
We thus define Kampen's "use" of the jack at a level
of generality that will take into account the risks Isuzu
must (or should) have reasonably contemplated when
designing the jack and providing warnings for its use.
Kampen began using the jack when he elevated the car with
it. When Kampen finished jacking the car up, however,
his use of the jack did not conclude. Thereafter, Kampen
used the jack by relying on the jack to hold the car in
its elevated position. When Kampen placed himself
beneath the car, he was still using the jack: he was
relying on the jack to hold the car above his body.
There is no requirement in the LPLA that "use"
necessarily involve a physical touching of the product.
"Handling" does indeed seem to suggest some physical
contact with the product, but we observe that "reasonably
anticipated use" is defined in terms of a "use or
handling" of the product. See La.Rev.Stat.Ann. S
9:2800.53(7)(emphasis added). The disjunctive implies
that "use" need not always involve the physical
manipulation of the product.
157 F.3d at 311-12.
24
found that Nut Hustler should have reasonably expected or actually
did expect that an ordinary person operating the pecan harvester
would inspect the harvester or walk between the tractor and the
harvester while the harvester machinery was running.
For example, Mr. Ellis testified that in inspecting the
malfunctioning pecan harvester he followed the procedure that he
had been taught by two experienced pecan farmers. He was
instructed to leave the tractor motor running in neutral gear, with
the drive shaft engaged to the power take-off, while he inspected
the harvester. The purpose of leaving the harvester operational
during the inspection was to distinguish working from non-working
parts, so as to facilitate identification of the part of the
harvester that was broken, stuck, or otherwise impaired. The
plaintiff’s expert in agricultural machinery also testified that
this was the normal procedure for detecting the trouble with such
machinery in the field. He said that many problems could not be
detected unless the machine was activated. The jury reasonably
could have inferred that it would not have been practicable or
reasonably expected for a farm worker to haul the harvester to the
shop each time it malfunctioned without first performing a field
inspection. Further, the jury reasonably could have found that the
manufacturer’s own expert agreed that Mr. Ellis’s use of the
harvester during his inspection of it was a reasonably anticipated
use.
25
The jury also could have reasonably drawn the inference that
Nut Hustler actually anticipated or should have expected that the
harvester’s users would leave it running while inspecting it for
problems because Nut Hustler presented no evidence to the contrary.
Nut Hustler did not ask any of its witnesses, which included its
owners, officers, and farm machinery expert, whether the type of
operational field inspection conducted by Ellis was a use of the
product that the manufacturer should reasonably expect of an
ordinary person in the same or similar circumstances. Finally, the
jury reasonably could have inferred that Mr. Savage and Mr.
Goforth, Nut Hustler’s owners and operators, actually anticipated
or reasonably should have expected farm hands to walk near the
tractor and the harvester while these machines were operating in
idling mode for inspections for the following reasons: The
designer of the machinery had given them notice on the design
drawings that they used in manufacturing the harvesters that a
shield should be placed over the drive shaft at the point where Mr.
Ellis was pulled into it; Mr. Savage placed such a shield on all
harvesters made in the Oklahoma plant; Mr. Savage told Mr. Goforth
that he should place such shields on the harvesters manufactured in
the Texas facility; and Mr. Savage and Mr. Goforth attached similar
shields in many places on the Nut Hustler harvesters other than on
the drive shaft to prevent farm workers from being injured by
moving parts. Also, Mr. Mayeaux testified that at the time of Nut
26
Hustler’s manufacture of the pecan harvester the American Society
of Agricultural Engineers, the Society of Automotive Engineers, and
the American National Standards Institute had generated standards
that required a shield to cover any protruding object on a drive
shaft.
Nut Hustler’s principal argument on appeal appears to be that
Mr. Ellis’s “leaving the machinery fully operational while he
walked around the harvester with loose-fitting clothing to look for
a possible malfunction” was a “use” but not a “reasonably
anticipated use” of the product.16 In its main argument, however,
Nut Hustler does not directly address the evidence in attempting to
explain why a reasonable jury could not have found for Mr. Ellis on
that issue. Instead, Nut Hustler presents an argument based on a
complex inexplicit analogy drawn from a detailed survey of
16
Nut Hustler’s brief is ambivalent, however. Within the space
of a single page, page 12, it concedes that “plaintiff’s ‘use’ of
the pecan harvester was not simply its deployment during the actual
harvesting of pecans,” but also included his inspection of the
harvester as described above. Next, Nut Hustler appears to concede
that “[b]ased on the reasoning in Kampen, the ‘reasonably
anticipated use’ of the machinery included plaintiff’s behavior
subsequent to the intitial stages of pecan-harvesting, when he
chose to trouble-shoot the machinery in its fully-operational
state[.]” (italics and bold in original). Finally, however, Nut
Hustler states that the “legal question is whether such a use can
be considered to be ‘reasonably anticipated use’ under the LPLA.”
Because Nut Hustler’s brief as a whole does not evince an intention
to concede the reasonably anticipated use issue, we believe its
second statement partially quoted above is either a misprint or an
inadvertent misstatement. Thus, ultimately, we conclude that Nut
Hustler’s argument is that Mr. Ellis’s inspection of the harvester
was a “use” but not a “reasonably anticipated use” of the machine.
27
Louisiana court opinions containing factual findings for
manufacturers on the reasonably anticipated use issue. In Nut
Hustler’s case sample, however, the facts and circumstances, the
products, the product uses, and the product users differ
considerably from those in the present case. Nevertheless, Nut
Hustler argues that these Louisiana court decisions, none of which
involved a pecan harvester, somehow show that the jury was
unreasonable in finding for Mr. Ellis on the reasonably anticipated
use issue in the present case.
Nut Hustler asserts that “[t]he Louisiana decisions over the
last ten years leave no doubt that the answer to that question must
be in the negative” and that “[t]here is a pattern in all of these
cases, and the pattern dictates the result in this case.” Thus,
there is an excluded middle in Nut Hustler’s argument. Nut Hustler
does not even attempt to explain exactly how the widely-varying
facts and circumstances of its sample of cases demonstrate that no
reasonable jury could have found for Mr. Ellis on the quite
different anticipated use issue created by the unique
circumstances, product, and use in the present case.
More important, as indicated in our discussion of the
distinction between interpretations of law and findings of fact in
Louisiana cases, the findings of fact on the issue of reasonably
anticipated use in Nut Hustler’s case sample do not constitute
creations or interpretations of Louisiana law. Therefore, those
28
factual findings are not binding on federal courts or juries in
diversity cases. Furthermore, as noted previously it has long been
settled in this circuit that a federal court may not base its
ruling upon a motion for judgment as a matter of law (or, formerly,
for a judgment notwithstanding the verdict) upon findings of facts
in Louisiana cases in a diversity civil jury action. See Wright,
198 F.2d at 307-08; Miskell, 439 F.2d at 791; Shirey, 327 F.2d at
552 (5th Cir. 1964); Inkenbrandt, 306 F.2d at 119; St. Paul Fire &
Marine Ins. Co., 302 F.2d at 328; Davis, 266 F.2d at 764; LaBuff,
126 F.Supp. at 763; Boeing, 411 F.2d at 379 n.4 (Rives, J.,
concurring).
Nut Hustler’s other argument in support of its motion for
judgment as a matter of law is also without merit; it alludes to
several different theories but fully develops none, perhaps because
they are not supported by the evidence and the applicable law.
Essentially, Nut Hustler recounts evidence tending to show that (1)
Mr. Spotsville had removed and failed to replace some of the
original shields covering other moving parts (different from the
spinning drive shaft) of the pecan harvester, and (2) after the
original bolt in the drive shaft and several of its replacements
had broken, Mr. Spotsville inserted a longer bolt that protruded
further out of the drive shaft than the original bolt. From this
premise Nut Hustler leaps to the conclusion that “[t]he sum total
of all of the foregoing testimony, when compared to the results in
29
analogous cases, requires the conclusion that plaintiff was not
engaged in a ‘reasonably anticipated use’ of the product at the
time of this incident.”
This argument seems to be an amalgam of Nut Hustler’s main
argument based on factually “analogous” Louisiana cases (discussed
and rejected above), impermissible attacks upon the verdict’s
finding that the product was unreasonably dangerous and a proximate
cause of the accident not challenged on appeal, and the notion that
the manufacturer reasonably should not have expected an ordinary
farm worker like Mr. Ellis to use the pecan harvester with a long
replacement bolt in its drive shaft, a slightly different approach
from its earlier argument that a field inspection during the
harvester’s dysfunctional operation was not reasonably expected.
Nut Hustler did not challenge the jury’s verdict that Mr.
Ellis’s injury was proximately caused by Nut Hustler’s product that
was unreasonably dangerous in design or in its lack of an adequate
warning. Consequently, Nut Hustler’s second argument is precluded
insofar as it suggests that Mr. Spotsville’s negligence was the
sole proximate cause of the accident; or insofar as it suggests
that the product was not unreasonably dangerous at the time it left
the control of the manufacturer but was rendered unreasonably
dangerous only because of an alteration or modification of the
product that reasonably should not have been anticipated. These
arguments cannot be entertained for two reasons. First, they are
30
outside the scope of Nut Hustler’s sole appeal from the denial of
judgment as a matter of law based exclusively on the contention
that Mr. Ellis’s injury did not arise from a reasonably anticipated
use of the product. Second, they are inconsistent with the
unchallenged jury verdicts that assigned only 30% of the fault to
Mr. Spotsville and that found that the pecan harvester was
unreasonably dangerous in its design or because of an inadequate
warning and that the unreasonably dangerous nature of the pecan
harvester was the cause of Mr. Ellis’s accident.
Moreover, there was a legally sufficient basis for rejecting
Nut Hustler’s arguments and finding that Mr. Ellis’s injury arose
from a reasonably anticipated use of the pecan harvester. The
evidence is undisputed that the accident was not caused by the
missing original equipment shields but by the drive shaft which was
uncovered or unshielded when it left the control of the
manufacturer. The record contains evidence from which a reasonable
jury could find that Nut Hustler’s owners actually or reasonably
should have anticipated that farmers would replace broken bolts in
the harvester’s drive shaft by using longer bolts if they did not
have bolts of the exact length as the original bolts on hand. One
of Nut Hustler’s owners, Mr. Goforth, stated that replacing a
broken bolt on a harvester by “rigging” it with a larger bolt was
“a typical farmer deal”–one that was common among “all your
farmers.” There also was a legally sufficient basis for the jury’s
31
finding that at the time the product left the manufacturer’s
control there existed an effective alternative design, i.e., an
economical and feasible safety shield covering the open drive
shaft, that was capable of preventing Mr. Ellis’s injury regardless
of the length of the bolt in the drive shaft. Furthermore, there
was sufficient evidence from which the jury reasonably could find
that because of the absence of a drive shaft safety shield, Mr.
Ellis’s jacket would have become caught in the open drive shaft
even if the original bolt had not been replaced: there was
evidence that the original bolt was not flush with the shaft but
also protruded, although to a lesser extent than the replacement
bolt; and there was evidence from which a reasonable jury could
find that the spinning drive shaft, even if its surface had been
smooth, would have been capable of catching and wrapping a farm
worker’s clothing. There was legally sufficient evidence from
which a reasonable jury could have concluded that the breaking of
the original bolt in the drive shaft and its replacement with the
more protrusive bolt was either a change arising from ordinary wear
and tear or a change that Nut Hustler should reasonably expect to
be made by an ordinary person in the same or similar
circumstances.17 Finally, for all of the foregoing reasons,
17
As indicated above, Mr. Goforth, one of Nut Hustler’s owners,
gave testimony from which a reasonable jury could have concluded
that the replacement of broken bolts in the harvester’s drive shaft
happened frequently, constituted changes “arising from ordinary
wear and tear,” and that the type of change effected by Mr.
32
including the reasons given in our discussion concluding that the
type of field inspection used by Mr. Ellis was a reasonably
expected use of the harvester, the evidence was legally sufficient
to support a finding that Nut Hustler reasonably should have
expected ordinary farm workers to use the harvester with a longer
bolt in the drive shaft in the circumstances presented by this
case.
Nut Hustler also argues that Mr. Ellis’s conduct in wearing a
loose-fitting coat while inspecting the harvester was not
reasonably expected in connection with his use of the machine.
However, there was no evidence that the jacket was either unusual
apparel for a pecan farm worker or extremely ill-fitted for Mr.
Ellis. Mr. Ellis testified without contradiction that Mr.
Spotsville and Mr. Valle wore similar jackets in the pecan
orchards. No witness testified that the jacket was unusual or
unreasonably big or long for Mr. Ellis or his work. Pecans are
harvested in the fall and winter. The jury reasonably could have
found that Nut Hustler reasonably should have expected that farm
workers using the harvester to pick up pecans in February would
wear long, heavy jackets during their work on cold days. See
Johnston v. Hartford Ins. Co., 623 So. 2d 35, 36-37 (La.Ct.App. 1st
Spotsville was a “[r]easonably anticipated alteration or
modification.” See La. Rev. Stat. § 9:2800.53(8). This finding
was also supported by Mr. Ellis’s testimony that the drive shaft
bolt had broken and had been replaced by Mr. Spotsville on a number
of occasions.
33
Cir. 1993) (“[T]he manufacturer is obligated to anticipate the
environment in which the product will be used and to give notice of
the potential risks arising from [reasonably anticipated] use in
the foreseeable environment.”)(citing Bloxom v. Bloxom, 512 So. 2d
839, 843 (La. 1987)).
Applying the standards dictated by Rule 50 and Reeves it is
apparent that Nut Hustler is not entitled to a judgment as a matter
of law. After reviewing all of the evidence in the record, drawing
all reasonable inferences in favor of the nonmoving party,
refraining from credibility determinations or weighing the
evidence, and disregarding all evidence favorable to the moving
party that the jury was not required to believe, we conclude that
there was a legally sufficient evidentiary basis for a reasonable
jury to find for Mr. Ellis on the issue of reasonably anticipated
use.
III. Motion For a New Trial
The jury answered affirmatively interrogatory number three
(“Do you find from a preponderance of the evidence that Elton Ellis
was negligent in his use of the pecan harvester?”) and negatively
interrogatory number four (“Do you find from a preponderance of the
evidence that Elton Ellis’[s] negligence was a cause of the
accident?”). Nut Hustler moved for a new trial on these questions,
arguing that these answers are inconsistent and irreconcilable.
34
The trial court rejected the argument and the motion.
The trial court’s ruling on a motion for a new trial must be
given deference and will only be reversed if the trial court abused
its discretion. See Browning-Ferris Indus. of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 278 (1989); Smith v. Riceland
Foods, Inc., 151 F.3d 813, 821 (8th Cir. 1998) (“A district court
has discretion to decide whether a jury’s findings on a verdict
form are incomplete, confusing, or inconsistent and whether to
resubmit the claim to the jury. The district judge, who has
observed the jury during the trial, prepared the special verdict
questions and explained them to the jury, is in the best position
to determine whether the answers reflect confusion or
uncertainty.”)(citations and quotations omitted); see also
Cantellops v. Alvaro-Chapel, 234 F.3d 741, 744 (1st Cir. 2000). We
conclude that the trial court’s ruling was not an abuse of its
decision.
“We are required under the Seventh Amendment to make a
concerted effort to reconcile apparent inconsistencies in answers
to special verdicts if at all possible.” Atlantic & Gulf
Stevedores, Inc. v. Ellerman Lines Ltd., 369 U.S. 355, 364 (1962);
Griffin, 471 F.2d 911, 915 (5th Cir. 1973). See also Watkins v.
Fibreboard Corp., 994 F.2d 253, 256 (5th Cir. 1993), overruled on
other grounds by White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir.
1987); Davis v. W. Cmty. Hosp., 755 F.2d 455, 465 (5th Cir. 1985);
35
Crossland v. Canteen Corp., 711 F.2d 714, 725 (5th Cir. 1983);
Mercer v. Long Mfg. N.C., Inc., 665 F.2d 61, 65 (5th Cir. 1982);
Wright v. Kroeger Corp., 422 F.2d 176, 178 (5th Cir. 1970).
Therefore, courts “must attempt to reconcile the jury’s findings,
by exegesis, if necessary, before we are free to disregard the
jury’s verdict and remand the case for new trial.” Gallick v. B &
O R.R. Co., 372 U.S. 108, 119 (1963); Mercer, 665 F.2d at 65.
This court in Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir.
1998), set forth our test for whether seemingly inconsistent jury
verdicts may be reconciled as follows:
In reviewing jury answers to special verdicts, we must
make a “concerted effort to reconcile apparent
inconsistencies . . . if at all possible.” Alverez v. J.
Ray McDermott & Co., 674 F.2d 1037, 1040 (5th Cir. 1982).
We must ask whether "the answers may fairly be said to
represent a logical and probable decision on the relevant
issues as submitted, even though the form of the issue or
alternative selective answers prescribed by the judge may
have been the likely cause of the difficulty and largely
produced the apparent conflict.” Griffin v. Matherne,
471 F.2d 911, 915 (5th Cir. 1973). Only if there is no
view of the case that will make the jury’s answers
consistent may we set aside its decision. Id.
In considering whether the seemingly inconsistent verdicts may
be reconciled, the court must view the evidence in the light most
favorable to upholding the jury’s decision by a finding of
consistency. See Hiltgen v. Sumrall, 47 F.3d 695, 701 (5th Cir.
1995). Additionally, the special verdicts “must be construed in
light of the surrounding circumstances” of the case. Kroeger, 422
F.2d at 178; Davis, 755 F.2d 465.
36
For example, in Hiltgen, 47 F.3d at 698-703, the jury returned
separate special verdicts finding that the plaintiff’s deceased
husband had been negligent but that his negligence was not the
legal cause of his injuries. We found no abuse of discretion in
the trial court’s entry of judgment in favor of the plaintiff
because the evidence presented to the jury, when viewed in the
light most favorable to finding consistency between the verdicts,
supported the reconciliation of the jury’s findings. Id. at 701-
703. The evidence showed that when his van rear-ended a tractor
trailer, the decedent was traveling at night on an interstate
highway at sixty-five miles per hour with only one functioning
headlight. While reasonable jurors would certainly find that
driving at night with one headlight is negligent, the jury also
heard evidence that the defendant tractor-trailer driver had just
pulled onto the interstate from the shoulder and was traveling at
twenty to twenty-five miles per hour, with no lights on, when the
accident occurred. On the basis of that evidence, we decided,
reasonable jurors could also conclude that it was solely the
defendant’s negligence that caused the accident.
In Mr. Ellis’s case the jury was presented with evidence that
he had consumed alcohol before he began operating the harvester on
the day of the accident. The jury’s verdict finding him negligent
may be reasonably interpreted as reflecting that his consumption of
alcohol before operating farm machinery was a form of negligence.
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However, when viewed in the light most favorable to upholding the
judgment by reconciling the verdicts, the jury reasonably could
have concluded that although Ellis may have been negligent in this
respect, the amount of his consumption had not been sufficient to
be a likely cause of his accident. Therefore, the jury’s “answers
may fairly be said to represent a logical and probable decision on
the relevant issues as submitted, even though the form of the issue
or alternative selective answers prescribed by the judge may have
been the likely cause of the difficulty and largely produced the
apparent conflict.” Alverez, 674 F.2d at 1040.
We must be especially careful when reviewing the
sufficiency of the evidence where the party seeking
relief, the defendant[] in this case, had the burden of
proof on the issue in question. We reiterate that
defendants had the burden of establishing that [Ellis]’s
negligence was a proximate cause of the . . . accident.
Although we must uphold the jury’s findings that [Ellis]
acted negligently, we cannot say that the defendant[]
presented such proof that a reasonable jury could only
conclude that [Ellis]’s negligence was a factual and
legal cause of the accident. Therefore, we hold that the
jury’s findings regarding negligence and proximate
causation are supported by legally sufficient evidence.
Hiltgen, 47 F.3d at 703 (citations omitted).
The foregoing reconciliation of the jury’s verdicts is
consistent with Louisiana law. Under Louisiana Civil Code article
2323, juries are asked to allocate fault among the parties
responsible for the plaintiff’s injury. To be attributed “fault”
under Louisiana law, (1) one must have taken action that falls
below the standard of care for a reasonable person under the
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circumstances, and (2) one’s substandard conduct must have caused
the injury. See La. Civ. Code art. 2323 (requiring the trier of
fact to allocate fault to a person only if he caused or contributed
to the injury); La. Code Civ. P. art. 1812(C) (same). In common
vernacular, one’s “substandard conduct” is often referred to as
“negligence,” even when that conduct does not cause injury such
that the law attributes fault to the actor. See Turner v. Parish
of Jefferson, 721 So. 2d 64, 67 (La.Ct.App. 5th Cir.
1998)(“La.C.C.P. Art. 1812(C) directs the jury to attribute a
percentage of fault to a party only after it has determined that
such party is negligent and that this negligence was a . . . cause
of the accident.”); see also FRANK L. MARAIST & THOMAS C. GALLIGAN,
LOUISIANA TORT LAW § 3.1 (1st ed. 1993) (“Frequently . . . the term
‘negligence’ is used to describe careless conduct (duty and
breach); thus, it sometimes is said that a defendant, although
negligent, is not liable, because . . . causation . . . is
lacking.”). Thus, Louisiana law permits a jury to find a party
negligent but also find that his negligence was not a legal cause
of the accident. Furthermore, the form of the verdict clearly left
open this possibility, and Nut Hustler did not object to it during
the trial.
In conclusion, because it is possible to reconcile the jury’s
special verdicts, the district court did not abuse its discretion
in denying Nut Hustler’s motion for new trial and entering judgment
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on the jury’s verdict. Atlantic & Gulf Stevedores, 369 U.S. at
364; Gallick, 372 U.S. at 119.
Conclusion
For the reasons assigned, the judgment of the district court
is AFFIRMED.
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