applying Restatement (Third) of Torts
How later courts described this case
- applying Restatement (Third) of Torts
- truck 28 brake pedal assembly
- defectively designed shut-off valve designed for use in boilers
- conveyor components always presented a risk to users
Written by the judges who cited it.
The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-354 consolidated with 15-838 & 15-1113
RON WARREN, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF DEREK HEBERT
VERSUS
SHELTER MUTUAL INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-385
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
John E. Conery, Judges.
CONERY, J., concurs in part, dissents in part and assigns reasons.
AFFIRMED.
Anthony M. Fazzio
4906 Ambassador Caffery – Suite 1000
Lafayette, LA 70508
Telephone: (337) 406-1122
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert
Barton W. Bernard
117 Caillouet Place
Lafayette, LA 70501
Telephone: (337) 989-2278
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert
Steven Broussard
Steven R. Hart
Aaron Broussard
Broussard & Hart, LLC
1301 Common Street
Lake Charles, LA 70601
Telephone: (337) 439-2450
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert
David R. Frohn
Manion Gaynor & Manning LLP
2201 Lake Street - Suite 106
Lake Charles, LA 70601
Telephone: (337) 419-1929
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.
H. Alston Johnson, III
Phelps Dunbar LLP
II City Plaza
400 Convention Street - Suite 1100
Baton Rouge, LA 70802
Telephone: (225) 346-0285
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.
Jeffery D. Fruge
The Thibodeaux Law Firm, LLC
P. O. Box 2090
Lake Charles, LA 70602-2090
Telephone: (337) 433-5523
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.
Rudie R. Soileau, Jr.
Lundy, Lundy, Soileau & South, LLP
P. O. Box 3010
Lake Charles, LA 70602
Telephone: (337) 439-0707
COUNSEL FOR:
Defendant/Appellee - Glen D. Vamvoras
Richard D. Chappuis, Jr.
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
Telephone: (337) 232-9700
COUNSEL FOR:
Defendant/Appellee - Bowtie Marina
Maurice L. Tynes
Maurice L. Tynes & Associates
4839 Ihles Road
Lake Charles, LA 70605
Telephone: (337) 479-1173
COUNSEL FOR:
Defendant/Appellee - Daniel Vamvoras
Vernon Ed McGuire, III
Plauche', Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
Telephone: (337) 436-0522
COUNSEL FOR:
Defendants/Appellees - Richard Gandy, Michael Torres, Progressive
Security Insurance Company, and Logan Gandy
James Ryan, III
James Ryan III & Associates, LLC
201 St. Charles Avenue – Suite 2420
New Orleans, LA 70170
Telephone: (504) 599-5990
COUNSEL FOR:
Defendant/Appellant – Harold Dyke d/b/a Harold’s Marine
Joshua S. Force
Kevin M. McGlone
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
909 Poydras Street – Suite 2800
New Orleans, LA 70112
Telephone: (504) 299-2100
COUNSEL FOR OTHER:
National Marine Manufacturers Association
Francis P. Manchisi
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, NY 10604
Telephone: (914) 872-7000
COUNSEL FOR OTHER:
National Marine Manufacturers Association
Iain L. Kennedy
Shook, Hardy & Bacon L.L.P.
Miami Center - Suite 3200
201 S. Biscayne Boulevard
Miami, FL 33131-4332
Telephone: (305) 358-5171
COUNSEL FOR OTHER:
Louisiana Association of Business and Industry
Mark A. Behrens
Cary Silverman
Shook, Hardy & Bacon L.L.P.
1155 F Street NW – Suite 200
Washington, DC 20004
Telephone: (202) 783-8400
COUNSEL FOR OTHER:
Louisiana Association of Business and Industry
THIBODEAUX, Chief Judge.
Plaintiff-appellee Ron Warren, individually and on behalf of the
Estate of Derrek Hebert, filed a petition for damages seeking to recover for the
wrongful death of his son, Derek Hebert, in a recreational boating accident under
general maritime law and products liability. The defendant, Teleflex, Inc.
(Teleflex), was found liable and appeals various judgments casting it for
compensatory damages of $125,000, punitive damages of $23,000,000, and legal
interest. Mr. Warren also appeals a judgment on judicial interest. There are three
consolidated appeals. For the reasons expressed below, we affirm the judgments
of the trial court on all issues.
I.
ISSUES
We must decide:
(1) whether the trial court erred in granting directed verdicts to
defendants Glen and Daniel Vamvoras in the first trial;
(2) whether the trial court abused its discretion in granting the
plaintiff a new trial;
(3) whether the trial court erred in failing to instruct the jury on the
duties of a component part manufacturer;
(4) whether the trial court erred in failing to bifurcate the
adjudication of compensatory and punitive damages in the
second trial;
(5) whether the jury abused its discretion or manifestly erred in
awarding punitive damages in the second trial;
(6) whether the jury abused its discretion in awarding excessive
punitive damages;
(7) whether the trial court erred in awarding prejudgment interest
on compensatory damages; and
(8) whether the trial court erred in denying prejudgment interest on
punitive damages.
II.
FACTS AND PROCEDURAL HISTORY
This accident occurred on May 7, 2005, on the navigable inland
waters of Louisiana, between the Lake Charles Country Club and the home of
Lake Charles attorney Glen Vamvoras, located on a former channel of the
Calcasieu River. Derek Hebert was a passenger in a Champion boat owned by
Glen Vamvoras and operated by his son Daniel Vamvoras. The Champion’s
steering failed while the boat was on plane. The boat went into a spin, throwing
Derek Hebert overboard. The boat’s propeller struck him nineteen times, causing
his death. His parents brought survival and wrongful death claims and sought
punitive damages against several defendants.
The defendants included Glen and Daniel Vamvoras, as well as
drivers of another boat which collided with the Vamvoras boat after Derek was
ejected, various marinas, insurers, and three manufacturers. The mother’s claim
was settled after mediation, and her suit was dismissed. The father, Ron Warren,
proceeded with his wrongful death and survival action under general maritime law,
seeking compensatory damages, punitive damages, and judicial interest thereon.
Litigation continued for approximately nine years. By the time of trial, the
remaining defendants were Glen Vamvoras, Daniel Vamvoras, and Teleflex.
The Louisiana Department of Wildlife & Fisheries (Wildlife &
Fisheries) investigated the accident and determined that the boat, which had been
purchased pre-owned by Glen Vamvoras, lost its steering because of a hydraulic
oil/fluid leak in one of the steering system’s hydraulic lines at a hose/nut or
2
coupling assembly. Teleflex manufactured and supplied the boat’s hydraulic
steering system, but one of the original Teleflex hoses had been replaced by
persons unknown with a non-Teleflex hydraulic hose. The remaining claim
against Teleflex at the time of trial was not for construction or design defects. The
claim asserted is that the steering system is defective because it contains an
inherent danger unknown to users, and Teleflex breached its duty to warn
unsuspecting users of a dangerous risk in using its product.
As a result of the proceedings below, including two trials and various
post-trial motions and hearings, there are three consolidated appeals pending
before this court under docket numbers 15-354, 15-838, and 15-1113.
The trial court granted directed verdicts to Glen Vamvoras and Daniel
Vamvoras, and to Bowtie Marina, one of the marina defendants, dismissing them
from the suit in the first jury trial. These dismissals left Teleflex as the only
defendant on the jury verdict form. The jury found in favor of Teleflex, and the
trial court signed a September 30, 2014 judgment dismissing Mr. Warren’s claims
against Teleflex. However, the trial court subsequently granted Mr. Warren’s
motion for new trial based on prejudicial error during the first trial.
At the conclusion of the second trial, the jury rendered a verdict in
favor of Mr. Warren and against Teleflex, awarding compensatory damages of
$125,000 and punitive damages of $23,000,000. Based on the jury’s verdict, the
trial court entered a December 29, 2014 judgment in favor of Mr. Warren awarding
the above amounts. Although neither party had introduced evidence on the issue
of judicial interest, and that issue was not submitted to the jury, the trial court also
awarded prejudgment interest on compensatory damages from the date of judicial
demand.
3
Both Mr. Warren and Teleflex filed post-trial motions after the second
trial. Teleflex sought a JNOV, or in the alternative a new trial or a remittitur on
punitive damages. Mr. Warren sought a JNOV confirming the award of interest on
compensatory damages and sought prejudgment interest on punitive damages from
the date of the accident or, alternatively, from the date of judicial demand.
While the post-trial motions on the second trial were pending,
Teleflex appealed from the directed verdicts in the first trial. Teleflex’s first
appeal is docketed in this court as appeal No. 15-354.
Following a hearing on June 17, 2015, the trial court entered two
judgments. One judgment denied Teleflex’s post-trial motions for JNOV or new
trial or remittitur on the punitive damage award. Another judgment granted Mr.
Warren’s motion for JNOV as to legal interest on compensatory damages but
denied his JNOV as to interest on punitive damages.
Mr. Warren filed a devolutive appeal from the December 29, 2014
judgment and the June 17, 2015 judgment, regarding legal interest on punitive
damages. His appeal is docketed in this court as No. 15-838.
Teleflex filed a suspensive appeal from the December 29, 2014
judgment awarding compensatory and punitive damages to Mr. Warren, and from
the June 17, 2015 judgment denying its post-trial motions for JNOV or new trial or
remittitur on punitive damages. Teleflex’s appeal from the second trial is docketed
in this court as No. 15-1113.
We have consolidated Teleflex’s appeal No. 15-354 from the directed
verdicts in the first trial with Mr. Warren’s devolutive appeal No. 15-838 on legal
interest and with Teleflex’s suspensive appeal No. 15-1113 on various issues,
including the granting of the new trial to the plaintiff and four assigned errors
4
arising from the second trial. We will address all issues raised in the three
consolidated appeals, by docket number. However, because Teleflex’s appeal No.
15-1113 appeals two judgments and covers five issues, we will address it second,
and we will address Mr. Warren’s appeal No. 15-838 last. We begin with
Teleflex’s appeal No. 15-354.
III.
LAW AND DISCUSSION
APPEAL NUMBER 15-354
Directed Verdicts
Teleflex contends that the trial court erred in granting directed
verdicts in favor of Glen and Daniel Vamvoras in the first trial, arguing the
Vamvorases either knew or should have known of the unreasonable risk of harm
associated with a loss of fluid in the hydraulic system. We find that the trial court
properly granted the directed verdicts.
On appeal, “legal sufficiency of the evidence challenges, such as
those presented by . . . motions for directed verdict . . . are subject to the de novo
standard of review that is used for all legal issues.” Hall v. Folger Coffee Co., 03-
1734, p. 10 (La. 4/14/04), 874 So.2d 90, 99. “[T]he applicable standard of review
on a motion for directed verdict is whether the evidence in the record is such that a
reasonable person could not reach a verdict to the contrary.” Richard v. Artigue,
11-1471, p. 4 (La.App. 3 Cir. 4/4/12), 87 So.3d 997, 1001.
In order to find Glen or Daniel at fault for Derek Hebert’s death,
Teleflex must have satisfied the requirements of La.Civ.Code art. 2317.1, which
states in pertinent part:
5
The owner or custodian of a thing is answerable
for damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care.
Further, this court has maintained that it is proper to grant a motion
for directed verdict where there is no evidence that the defendant knew or should
have known that a product was defective due to inadequate warnings. See LeBleu
v. Homelite Div. of Textron, Inc., 509 So.2d 563 (La.App. 3 Cir. 1987) (affirming
directed verdict for non-manufacturer seller of the product, where there was no
evidence that the seller knew or should have known of the defect).
Here, there is no direct or circumstantial evidence that Glen or Daniel
knew of the unreasonable risk of harm associated with a leak in the SeaStar
hydraulic system. Glen testified that while doing routine maintenance eight
months prior to the accident, a friend suggested that he add fluid to the system.
Glen further stated that although he added a few teaspoons of fluid, he believed
this to be part of routine maintenance, and did not serve as an indicator of any fault
with the system. The Champion boat had been inspected annually with no
indication of any defects and with no repairs made to its hydraulic system. While
Glen admitted that on more than one occasion his Champion made an
unidentifiable clicking sound, he testified that this sound only occurred when the
boat was in reverse. Otherwise, he never had any issues with the steering system.
Similarly, Daniel testified that on the day of the accident he detected a
leak at the point of connection between a hydraulic hose line and a mechanical
housing at a nut on the boat’s outboard motor. He then tightened the nut, believing
he had solved the problem, and proceeded to take the boat out for the day.
6
Although Daniel also testified he heard a clicking sound coming from the boat on
the day of the accident, he denied knowing the source of the sound or having any
other cognizable issues with the boat.
Furthermore, there is no evidence to suggest Glen or Daniel should
have known of the unreasonable risk of harm associated with a leak in the
hydraulic system. Although Teleflex performed tests in 1989 and 2004 which
confirmed that a very small loss of fluid in the hydraulic system could result in
total failure of the steering system, users were not adequately warned of the
associated risks. The warning on the bottom of the steering cylinder not only
failed to warn of the risk of leaks, fluid loss, ejection, or death; it was also not
visible from within the boat. Moreover, no warning label was placed near the
steering wheel or near the steering pump where steering fluid is refilled. The
manual was also void of adequate warnings. It mentioned nothing of system
failure and the risk of ejection, and simply warned of leaks. Due to inadequate
warnings, it is likely that a normally prudent boat owner would not have been
aware of the risks. 1 Thus, we cannot conclude that Glen and Daniel should have
known of the risk of harm associated with a loss of fluid in the hydraulic system.
Experts for Teleflex, Augusto Villalon and Eric Fetchko, each
testified that “bumpy” or “mushy” steering should have adequately forewarned
Glen and Daniel of the imminent danger before noticing a leak in the hydraulic
system. Mr. Fetchko, inventor of the SeaStar hydraulic system, testified he
“thought [it] had adequate warning in the noise and the reduction and the
degradation of steering.” He described that “mushy” steering would be felt at the
helm, thus alerting the driver.
1
The adequacy of warnings will be discussed in greater detail in appeal No. 15-1113.
7
No evidence, however, was presented to demonstrate that Glen or
Daniel experienced these indicators, either in the weeks prior to the accident or on
the day of the accident. Glen and Daniel both denied feeling “bumpy,” “mushy,”
or any abnormal steering at any time prior to the accident. Moreover, had Glen or
Daniel detected a steering issue, there is no evidence that a normally prudent
person would have anticipated the impending failure of the system and risk of
death.
Despite his earlier testimony, Mr. Villalon later conceded that a “click
or a mushiness, means different things for different people[,] and that “[t]he people
who do not understand it as a warning lack experience.” Significantly, Mr.
Villalon’s testimony suggests that even if Glen or Daniel detected a steering issue,
that they may not have found it to be significant, as there is also no evidence to
suggest that Glen or Daniel were particularly experienced boaters. Additionally,
and as confirmed by Stephen Killingsworth, an expert tendered and accepted in
mechanical engineering, the “clicking” sound heard by Glen and Daniel was
completely normal according to Teleflex’s own documents. Mr. Killingsworth
further testified that not only were these descriptive words subjective, but that the
manual also failed to explicitly use any of these words to describe the steering
malfunction indicators. Consistent with Teleflex’s own documents, there is no
evidence Glen or Daniel ignored any warning signs.
We are also persuaded by the testimony of Wildlife & Fisheries
investigator, Sgt. David Liles. In his testimony, Sgt. Liles maintained that despite
his extensive experience in working with boats, particularly ones with the same
SeaStar hydraulic system, he was unaware of the risks associated with losing a
mere 2.7 ounces of fluid in the hydraulic system—approximately 5% of the
8
system’s capacity. Accordingly, there is no basis to conclude that Glen or Daniel,
both far less experienced, were aware of the risks associated with diminished fluid
levels.
Moreover, although Glen added fluid to the system and Daniel
tightened a loose connection prior to the accident, we find that due to the lack of
warnings, there is no evidence that they, or any prudent boat owner, would have
consequently been alerted to the risk of a total system failure or grave injury.
Therefore, the scope of duty to maintain the boat in reasonable repair does not
extend far enough to hold Glen or Daniel liable for Derek’s death.
Specifically, “[s]ome risks that arise because of a defendant’s conduct
are not within the scope of the duty owed to a particular plaintiff simply because
they are unforeseeable.” Todd v. State Through Dep’t of Soc. Servs., Office of
Cmty. Servs., 96-3090, p. 7 (La. 9/9/97), 699 So.2d 35, 39. “The critical test in
Louisiana, however, is phrased in terms of ‘the ease of association’ which melds
policy and foreseeability into one inquiry: Is the harm which befell the plaintiff
easily associated with the type of conduct engaged in by the defendant?” Roberts
v. Benoit, 605 So.2d 1032, 1054 (La.1991) (citing Timothy J. McNamara, The
Duties and Risks of the Duty–Risk Analysis, 44 La.L.Rev. 1227, 1234 (1984)).
In determining the limitation to be placed on
liability for a defendant’s substandard conduct—i.e.,
whether there is a duty-risk relationship—we have found
the proper inquiry to be how easily the risk of injury to
plaintiff can be associated with the duty sought to be
enforced. Hill [v. Lundin & Assocs., Inc., 260 La. 542,
256 So.2d 620 (1972).] Restated, the ease of association
inquiry is simply: “How easily does one associate the
plaintiff’s complained-of harm with the defendant’s
conduct? . . . Although ease of association encompasses
the idea of foreseeability, it is not based on foreseeability
alone.” Crowe, [The Anatomy of a Tort–Greenian, as
Interpreted by Crowe who has been Influenced by
9
Malone–A Primer, 22 Loy.L.Rev. 903 (1976).] Absent
an ease of association between the duty breached and the
damages sustained, we have found legal fault lacking.
Hill, supra; Sibley v. Gifford Hill and Co., Inc., 475
So.2d 315, 319 (La.1985); See also Williams v.
Southfield School, Inc., 494 So.2d 1339, 1342 (La.App.
2d Cir.1986).
Roberts, 605 So.2d at 1045.
Here, we find no significant ease of association between Glen and
Daniel’s conduct and Derek Hebert’s death, as it was not foreseeable that the
hydraulic system would fail and that Derek would be ejected from the boat.
Despite Glen and Daniel’s actions prior to the accident, Teleflex offered no
evidence to suggest that either of them knew or should have known of the
unreasonable risk of harm associated with a de minimis loss of fluid. Thus, the
trial court properly granted the directed verdicts in favor of Glen and Daniel
Vamvoras.
For the foregoing reasons, the judgment of the trial court in appeal
number 15-354 is affirmed.
APPEAL NUMBER 15-1113
In this appeal, Teleflex asserts that the trial court erred in (1) granting
a new trial to the plaintiff after the jury found no liability against Teleflex in the
first trial; in (2) failing to instruct the jury in the second trial on the differing legal
duties of a component part manufacturer and an end product manufacturer; and in
(3) trying compensatory and punitive damages together in the second trial, instead
of bifurcating the damage issues. Teleflex also assigned error in (4) the jury’s
finding that the evidence supported a punitive damage award; and in the
alternative, in (5) the jury’s excessive award of punitive damages.
10
Mr. Warren answered this appeal, asserting errors regarding legal
interest in the December 2014 and June 2015 judgments, which are addressed
below in the discussion of Mr. Warren’s appeal, No. 15-838. In his answer, Mr.
Warren also asserts error in the September 2014 judgment dismissing Teleflex, if
this court finds that a new trial should not have been granted.
New Trial
Teleflex contends that, following the jury’s verdict in its favor after
the first trial, the trial judge erred in granting a new trial because the issue on
which he based the new trial, the SeaStar steering system manual, was not relevant
and material to the verdict, and it did not prejudice the plaintiff. Mr. Warren
responds that the trial court correctly granted a new trial because the jury’s verdict
was tainted by improperly admitted and prejudicial evidence, and a factually
incorrect instruction.
More specifically, at the end of the first trial, after jury deliberations
had begun, the jury sent a written request to the judge for a copy of the SeaStar
steering system manual and the American National Standard Product Safety Signs
and Labels (ANSI) publication. Approximately forty minutes later, the jury sent
the judge a question asking whether it had been given the 1997 SeaStar Manual
made available with the original purchase of the boat in 1998. The trial court
called a bench conference with counsel, and Teleflex’s attorney assured the court
that the jury had the manual provided with the boat in 1998. The jury was
reseated, and the jury foreman told the judge that the manual indicated that it was a
2006 revision; he showed the judge the back of the manual, bearing the following:
©1997 TELEFLEX CANADA LIMITED PARTNERSHIP
PRINTED IN CANADA
11
FORM NO.296784 10000-07/06 Rev AK
Counsel for Teleflex indicated to the jury and to the court that the
numbers on the last line were just the printer’s code. The judge so advised the
jury:
MR. FROHN:
That’s just a printer’s code of some kind.
THE COURT:
That’s not a revision date?
MR. FROHN:
No, that’s a – that’s got to be a printer’s code –
THE COURT [ADRESSING THE JURY]:
No. This is what purports to be the manual that was
available, or that was produced in connection with the
device that was in the boat. Yeah.
(Whereupon the jury exit[ed] the courtroom to
deliberate.)
Thirty minutes later, the jury brought back a verdict finding no
liability against Teleflex for a failure to warn.
Mr. Warren filed a motion for a new trial attaching excerpts from Eric
Fetchko’s deposition wherein various manuals were being discussed. During the
deposition, for clarity, the manuals were identified by their revision dates on the
last page, as follows:
Q. Is there a revision date on the document?
A. Yes.
Q. Can you show me where that would be?
12
A. I’m trying to find it. The very last page. It says the
form number which is the form and if you look, you’ll
see date and rev.
....
Q. So you’re basically saying if you go to the last page
and you look for the form number and to the right of that
--for example, looking at 47, you see the numbers 15000-
03/02 Rev R.
A. That’s correct.
Q. That means it was revised in March of 2002?
A. That is correct.
Thus, the manual given to the jury bearing “07/06 Rev” was the July
2006 revision of the steering system manual. At the hearing on the motion for a
new trial, it was revealed that the 1997 SeaStar Manual distributed with the sale of
the boat in 1998, the manual that the jury asked for, was never introduced into
evidence at trial. It was discussed at the hearing as being approximately thirty-two
pages in length, while the 2006 revision given to the jury was approximately sixty
pages in length.
In his motion for a new trial, Mr. Warren asserted both peremptory
grounds and discretionary grounds for granting a new trial pursuant to La.Code
Civ.P. arts. 1972(1) and 1973. Regarding peremptory grounds: “A new trial shall
be granted, upon contradictory motion of any party . . . [w]hen the verdict or
judgment appears clearly contrary to the law and the evidence.” La.Code Civ.P.
art. 1972(1). Regarding discretionary grounds: “A new trial may be granted in
any case if there is good ground therefor, except as otherwise provided by law.”
La.Code Civ.P. art. 1973.
In a motion for new trial under either La.Code Civ.
Proc. arts. 1972 or 1973, the trial court may evaluate the
13
evidence without favoring either party; it may draw its
own inferences and conclusions; and evaluate witness
credibility to determine whether the jury had erred in
giving too much credence to an unreliable witness. Smith
v. American Indem. Ins. Co., 598 So.2d 486 (La.App. 2
Cir.), writ denied, 600 So.2d 685 (La.1992). The
applicable standard of review in such matter is whether
the trial court abused its discretion. Anthony v. Davis
Lumber, 629 So.2d 329 (La.1993).
Lawson v. Mitsubishi Motor Sales of America, Inc., 05-257, p. 28 (La. 9/6/06), 938
So.2d 35, 54-55 (quoting Joseph v. Broussard Rice Mill, Inc., 00-628 (La.
10/30/00), 772 So.2d 94, 104-05).
The trial court’s standard for granting a new trial pursuant to Article
1973 is well-settled:
La.C.C.P. art. 1973 provides that the trial court
may grant a new trial if there exists good grounds
therefor. A proper application of this article necessitates
an examination of the facts and circumstances of the
individual case. When the trial judge is convinced by his
examination of the facts that the judgment would result in
a miscarriage of justice, a new trial should be ordered.
Lamb v. Lamb, 430 So.2d 51, 53 (La.1983) (citations omitted).
“A trial court has virtually unlimited discretion to grant a
new trial when it is convinced that a miscarriage of
justice has resulted, and, unless an abuse of discretion
can be demonstrated, a trial court’s action in granting or
denying a new trial on discretionary grounds will not be
reversed.” Heritage Worldwide, Inc. v. Jimmy Swaggart
Ministries, 95-0484, p. 3 (La.App. 1 Cir. 11/16/95); 665
So.2d 523, 526; writ denied, 96-0415 (La.3/29/96); 670
So.2d 1233. See also, Watson v. Nelson, 97-474
(La.App. 3 Cir. 10/29/97); 702 So.2d 1002; writ denied,
97-2958 (La. 2/6/98); 709 So.2d 738. Still, “the
discretionary power to grant a new trial must be
exercised with considerable caution, for a successful
litigant is entitled to the benefits of a favorable jury
verdict.” Burris v. Wal-Mart Stores, Inc., 94-921, p. 6
(La.App. 1 Cir. 3/3/95); 652 So.2d 558, 561, writ denied,
95-0858 (La. 5/12/95); 654 So.2d 352.
14
Johnson v. Mo. Pac. R.R. Co., 00-980, p. 5 (La.App. 3 Cir. 7/25/01), 792 So.2d
892, 896, writ denied, 01-2445 (La. 12/7/01), 803 So.2d 33.
Mr. Warren asserted that the jury’s verdict was clearly contrary to the
law and the evidence because the jury specifically asked for the manual that went
with the steering system that failed, and they relied on the assurances by defense
counsel and by the court that they were given the 1997 manual; and thus the
relation of the manual to the system at issue was based upon multiple false
assertions. He further asserts that the jury gave great significance to the
authenticity and relevance of the manual they were given, and because it was
factually impossible that the 2006 manual came with the 1998 steering system, the
resulting verdict was tainted and contrary to the evidence in the case. He further
asserts that this resulted in great prejudice and in a miscarriage of justice.
Teleflex contends that the adequacy of the manual was legally
irrelevant because the Vamvorases testified that they never received a manual. We
find this argument untenable because the jury was given a manual, and there was
much testimony regarding tests on the steering mechanism that were done
according to the manual. There was also testimony that the manual used was the
one in the boat. At trial, the entire focus of this case was a failure to warn. The
2006 manual that the jury was given was a 60-page manual, approximately twice
the length of the original manual. The 2006 manual stated that it was the
“Installation Instructions and Owner’s Manual.” The entire first page was devoted
to warnings and the admonition to “Observe Them Carefully!” It explained four
levels of warnings and set forth four bolded blocks entitled “Danger,” “Warning,”
“Caution,” and “Notice.” The “Danger” warning stated that it pertained to
“Immediate hazards which WILL result in severe personal injury or death.” The
15
“Warning” label stated that it pertained to “Hazards or unsafe practices which
COULD result in severe personal injury or death.” The last two warnings
pertained to minor injury and property damage. The “Danger,” “Warning,” and
“Caution” labels each contained the standardized safety symbol, a triangle with an
exclamation point, located to the left of the signal word in the heading.
We counted seventy-nine “Warning” labels in the 2006 manual, with
seventy-five of them occurring in the first fifty pages. A jury in a “failure to warn”
case looking at such a manual after specifically asking for, and being told that it
had received, the only manual that mattered, could have concluded that the
manufacturer of the steering system had fulfilled its duty to warn by the sheer
number of warnings, even if the warning decal on the system itself did not meet
ANSI standards. This is particularly true where the ANSI publication given to the
jury contained the following definitions on the first few pages. Definition 4.7
states that each safety sign may include up to three panels: one each for the signal
word, the message, and the symbol. Section four then provided the following
definitions:
4.10 safety alert symbol: A symbol which indicates a
potential personal safety hazard. It is composed of an
equilateral triangle surrounding an exclamation mark and
conforms to ANSI Z535.3-1991, Criteria for Safety
Symbols.
....
4.14 sign classifications: Various categories of signs,
each with a distinct signal word and colors, which
represent different levels of hazards.
4.15 signal word: The word or words that designate a
degree or level of hazard seriousness. The signal words
for product safety signs are DANGER, WARNING and
CAUTION.
16
4.15.1 DANGER: Indicates an imminently hazardous
situation which, if not avoided, will result in death or
serious injury. This signal word is to be limited to the
most extreme situations.
4.15.2 WARNING: Indicates a potentially hazardous
situation which, if not avoided, could result in death or
serious injury.
4.15.3 CAUTION: Indicates a potentially hazardous
situation which, if not avoided, may result in minor or
moderate injury. It may also be used to alert against
unsafe practices.
On page three of the ANSI publication, the section on “Sign or Label
Format” contained the following mandates:
6.3 Safety alert symbol
A safety alert symbol, when used with the signal word,
shall precede the signal word. The base of the safety
alert symbol shall be on the same horizontal line as the
base of the letters of the signal word. The height of the
safety alert symbol shall equal or exceed the signal word
letter height.
The 2006 Teleflex manual given to the jury adheres to the above
instructions, plus others we have omitted to avoid repetition. By comparison, the
1997 manual, which the first jury never saw, contained only nine (rather than
seventy-nine) “warning” labels, only three of which mentioned “property damage
and/or personal injury,” and none of which mentioned the possibility of death or
even serious injury. None of the labels contained the triangle safety symbol; nor
did they explain the levels of seriousness. The jury asked for both the 1997
manual and the ANSI standards for warnings; it is clear that the jury was trying to
weigh the evidence. They came back a second time to make sure that they had the
1997 manual, and not a 2006 revision that was published a year after the accident
and approximately four months after this suit was filed. Thirty minutes after being
17
assured that they had the 1997 manual, the jury, with false information and the
wrong manual––a manual indicating repeated adherence to and compliance with
many of the ANSI standards for product warnings––rendered a verdict for Teleflex
finding no failure to warn.
Quoting Lawson v. Mitsubishi, 938 So.2d at 55, Teleflex states that a
new trial, “is not to be used to give the losing party a second bite at the apple
without facts supporting a miscarriage of justice that would otherwise occur.” The
actual quote from Lawson states: “A conditional grant of a new trial is not to be
used to give the losing party a second bite at the apple without facts supporting a
miscarriage of justice that would otherwise occur.” Id. The statement in Lawson
appears at the bottom of a paragraph discussing La.Code Civ.P. art. 1811(C)(1)
and the procedure to employ after a JNOV is granted. The Lawson comment
regarding “a second bite at the apple” refers to the requirement that the trial judge
rule conditionally on a new trial, if any is filed, in case his grant of a JNOV is
overturned. The JNOV is the first bite at the apple. Mr. Warren did not file a
JNOV on the new trial issue.
Further, the Lawson case is significantly distinguishable because in
the present case, the trial court provided good grounds for granting the new trial, as
did the record on appeal. More specifically, in Lawson, a factually disparate and
complex case involving evidence tampering, the doctrine of res ipsa loquitur, the
granting of a JNOV, and the trial court’s own motion for a new trial, the supreme
court looked at the trial court’s reasons for granting the new trial. Those reasons
stated:
This Court will also grant a new trial as to the
issues of causation and damages. If the JNOV on
18
liability is vacated or reversed on appellate review, a new
trial is alternatively granted as to that issue.
The motion for new trial requires a less stringent
test than for a JNOV as such a determination involves
only a new trial and does not deprive the parties of their
right to have all disputed issues resolved by a jury.
Whether to grant a new trial requires a discretionary
balancing of many factors. Unlike the standard
applicable to a motion for JNOV, the trial judge may
evaluate evidence without favoring any party and draw
his own inferences and conclusions. Furthermore, the
Louisiana Supreme Court has held that “when the trial
judge is convinced by his examination of the facts that
the judgment would result in a miscarriage of justice, a
new trial should be ordered.”
Lawson, 938 So.2d at 55 (quoting the trial court’s “Judgment and Reasons”).
Pursuant to the supreme court’s review, it found that while the trial
court cited the law supporting its discretionary authority to order new trials, the
supreme court was unable to glean any “good grounds” for ordering a new trial
from either the judgment or the record and trial transcripts. Id. It further found
nothing in the record to indicate a miscarriage of justice resulting from the jury’s
verdict.
Conversely here, the trial court explained its reasons, with great
factual detail, for believing that a miscarriage of justice would result from the
jury’s reliance upon the wrong evidence:
The Court recollects the conversation that we had when
the jury came back and had some concerns about the
manual that they were looking for and whether it was the
actual manual that would have been in the boat at the
time it was shipped out and would have been the manual
that would have been available for the Champion boat
with the Teleflex steering when it was manufactured.
In some respects I feel responsible for saying that
this is the manual that is – that is applicable to this
particular case. I did so based upon the assurances by
counsel for Teleflex that the markings were not revision
19
dates at all, but were, in fact, printer’s marks or words to
that effect. It’s now my belief that that information was
inaccurate. Although it was not objected to, it obviously
was important to the jury in making a determination
about whether or not they believed that there was any
fault committed by Teleflex in connection with this case.
How they would have viewed the actual manual
compared to what they did view, I don’t have a clue. But
I do feel like that it’s basically a miscarriage of justice
that they were given the wrong information and had they
had the right information -- had I said, “You’ve got to
rely on your memory. I can’t tell you what it is.” What
they would have done with that manual that they had that
was revised in ‘06, I don’t know. I can’t speculate, but it
was important enough to them that they came back and
asked about it. It was important enough to them that they
looked at it. And if it was important enough to them,
then it’s important enough that we give them accurate
information or we tell them to rely on their memory. I
didn’t do that, so I’m going to grant the motion for a new
trial only as against Teleflex.
For all of the reasons discussed, we find no abuse of discretion in the
trial court’s granting of a new trial in this case.
Jury Instructions
Because this accident occurred on navigable waters, it is properly
brought under general maritime law. Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 116 S.Ct. 619 (1996).
“[A]bsent a controlling statute, maritime law is
‘developed by the judiciary’ and is an ‘amalgam of
traditional common-law rules, modifications of those
rules, and newly created rules.’” Conner v. Alfa Laval,
Inc., 842 F.Supp.2d 791, 796 (E.D.Pa. 2012) (quoting E.
River Steamship, 476 U.S. 858, 864-65 (1986). Within
the context of a products liability case, a court may
therefore “examine the development of products-liability
law[] under both admiralty and state common law.” Id.
Gendelman v. Blumenstein, No. 12-6976 (JEI), 2015 WL 3489883, at *4, (D.N.J.
6/2/15) (second alteration in original).
20
The applicable substantive law of products liability in admiralty is
“informed by the American Law Institute’s Restatement of Torts.” Oswalt v.
Resolute Indus., Inc., 642 F.3d 856, 860 (9th Cir. 2011) (applying Restatement
(Third) of Torts); see also Dehring v. Keystone Shipping Co., No. 10-cv-13959,
2013 WL 3879619 (E.D. Mich. 7/26/13) (finding that the plaintiff was incorrect in
its position that federal admiralty law only applied the product liability rules of the
Restatement (Second) of Torts); Regan v. Starcraft Marine LLC, No. 06-1257,
2010 WL 996424 (W.D. La. 3/17/10) (applying the Restatement (Third) of Torts).
Under maritime law, a manufacturer is liable for
“harm caused by a product sold ‘in a defective condition
unreasonably dangerous.’” Conner v. Alfa Laval, Inc.,
842 F. Supp. 2d 791, 796 (E.D. Pa. 2012) (quoting
Restatement (Second) of Torts § 402A (1965)).
“Liability for defective products has grown into three
distinct theories of liability: manufacturing defects,
design defects, and defects based on inadequate
warnings.” Id. (citing Restatement (Third) of Torts:
Prods. Liab. § 2 (1998)). “A manufacturer is also liable
for the harm resulting from the negligent failure to warn
of the risks created by its products.” Id.
Dandridge v. Crane Co., No. 2:12-cv-00484-DCN, 2016 WL 319938, at *2
(D.S.C. 1/27/16).
The trial court’s instructions and charges to the jury2 came from the
Restatement of Torts, the Louisiana Product Liability Act (LPLA), 3 and cases
thereunder.
2
The jury instructions stated in pertinent part:
A DEFENDANT ACTS NEGLIGENTLY IF THE DEFENDANT DOES
NOT EXERCISE REASONABLE CARE UNDER ALL THE
CIRCUMSTANCES. PRIMARY FACTORS TO CONSIDER IN
ASCERTAINING WHETHER A DEFENDANT’S CONDUCT LACKS
REASONABLE CARE ARE THE FORESEEABLE LIKELIHOOD THAT THE
DEFENDANT'S CONDUCT WILL CAUSE HARM, THE FORESEEABLE
SEVERITY OF ANY HARM THAT MAY ENSUE, AND THE BURDEN OF
21
PRECAUTIONS TO ELIMINATE OR REDUCE THE RISK OF HARM.
[RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 3 (2010).]
....
ANY PERSON ORDINARILY HAS A DUTY TO EXERCISE
REASONABLE CARE WHEN THE PERSON’S CONDUCT CREATES A
RISK OF PHYSICAL HARM. [RESTATEMENT (THIRD) OF TORTS: PHYS. &
EMOT. HARM § 7(a) (2010).]
IF A DEFENDANT HAS SKILLS OR KNOWLEDGE THAT EXCEED
THOSE POSSESSED BY MOST OTHERS, THESE SKILLS OR
KNOWLEDGE ARE CIRCUMSTANCES TAKEN INTO ACCOUNT IN
DETERMINING WHETHER THE DEFENDANT HAS BEHAVED AS A
REASONABLY CAREFUL PERSON. [RESTATEMENT (THIRD) OF TORTS: PHYS.
& EMOT. HARM § 12 (2010).]
A DEFENDANT WHOSE CONDUCT CREATES A RISK OF
PHYSICAL OR EMOTIONAL HARM CAN FAIL TO EXERCISE
REASONABLE CARE BY FAILING TO WARN OF THE DANGER IF (I)
THE DEFENDANT KNOWS OR HAS REASON TO KNOW OF THAT RISK,
AND THAT THOSE ENCOUNTERING THE RISK WILL BE UNAWARE OF
IT; AND (2) A WARNING MIGHT BE EFFECTIVE IN REDUCING THE
RISK OF HARM. [RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §
18(a) (2010).]
....
A MANUFACTURER MUST USE REASONABLE CARE TO
PROVIDE AN ADEQUATE WARNING OF DANGEROUS
CHARACTERISTICS OF ITS PRODUCTS. IT IS A DUTY PLACED
DIRECTLY UPON THE MANUFACTURER, AND IT CANNOT BE
DELEGATED. [La.R.S. 9:2800.57(C); Marks v. OHMEDA, Inc., 03-1446
(La.App. 3 Cir. 3/31/04), 871 So.2d 1148, writs denied, 04-1653, 04-1617 (La.
10/8/04), 883 So.2d 1019, 1020.]
A PRODUCT IS DEFECTIVE BECAUSE OF INADEQUATE
WARNINGS WHEN THE FORESEEABLE RISKS OF HARM POSED BY
THE PRODUCT COULD HAVE BEEN REDUCED OR AVOIDED BY THE
PROVISION OF REASONABLE WARNINGS BY THE MANUFACTURER
AND THE OMISSION OF THE WARNINGS RENDERS THE PRODUCT
NOT REASONABLY SAFE. [RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. §
2(c) (1998).]
THE DETERMINATION OF WHETHER A WARNING IS
ADEQUATE DEPENDS UPON A BALANCING OF CONSIDERATIONS,
INCLUDING, AMONG OTHER FACTORS, THE SEVERITY OF THE
DANGER, THE LIKELIHOOD THAT THE WARNING WILL CATCH THE
ATTENTION OF THOSE WHO WILL FORESEEABLY USE THE PRODUCT
AND CONVEY THE NATURE OF THE DANGER TO THEM, THE
INTENSITY AND FORM [OF] THE WARNING AND THE COST OF
IMPROVING THE STRENGTH OR MODE OF THE WARNING. [Williams v.
Super Trucks, Inc., 36,993 (La.App. 2 Cir. 4/9/03), 842 So.2d 1210, writ denied,
03-1303 (La. 9/5/03), 852 So.2d 1042.]
22
AN ADEQUATE WARNING IS A WARNING THAT WOULD LEAD
AN ORDINARY USER OR HANDLER OF THE PRODUCT TO
UNDERSTAND THE DANGER OF USING THE PRODUCT AND TO
EITHER (1) DECIDE NOT TO USE OR HANDLE THE PRODUCT OR (2) TO
USE OR HANDLE THE PRODUCT SAFELY. [La.R.S. 9:2800.53(9).]
3
The pertinent portions of LPLA are located at La.R.S. 9:2800.51-59; in particular:
Louisiana Revised Statutes 9:2800.54 states:
A. The 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.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition
as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S.
9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning
about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to
an express warranty of the manufacturer about the product as provided in R.S.
9:2800.58.
C. The characteristic of the product that renders it unreasonably
dangerous under R.S. 9:2800.55 must exist at the time the product left the control
of its manufacturer. The characteristic of the product that renders it unreasonably
dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product
left the control of its manufacturer or result from a reasonably anticipated
alteration or modification of the product.
D. The claimant has the burden of proving the elements of Subsections A,
B and C of this Section.
Louisiana Revised Statutes 9:2800.57 states:
A. A product is unreasonably dangerous because an adequate warning
about the product has not been provided if, at the time the product left its
manufacturer’s control, the product possessed a characteristic that may cause
damage and the manufacturer failed to use reasonable care to provide an adequate
warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about
his product when:
(1) The product is not dangerous to an extent beyond that which would be
contemplated by the ordinary user or handler of the product, with the ordinary
knowledge common to the community as to the product’s characteristics; or
23
Component Parts Manufacturer
Teleflex contends that the trial court erred in failing to instruct the
jury that the duties of a component part manufacturer to provide warnings to the
user are crucially different from those of the manufacturer of an end product sold
to the public. Mr. Warren responds that the trial court correctly refused to give a
component part instruction because Teleflex manufactured a steering “system,”
with a manual and warnings of its own, rather than a component part such as a raw
material like sand or a nut or bolt.
It is well settled in Louisiana jurisprudence that “an appellate court
must exercise great restraint before it reverses a jury verdict because of erroneous
jury instructions.” Nicholas v. Allstate Ins. Co., 99-2522, p. 8 (La. 8/31/00), 765
So.2d 1017, 1023.4 “The basis for this rule of law is that trial courts are given
broad discretion in formulating jury instructions and it is well accepted that a trial
court judgment will not be reversed as long as the charge correctly states the
substance of the law.” Id. “However, when the jury verdict is based on
instructions which were faulty in a critical regard, the verdict is tainted and is not
entitled to a presumption of regularity.” Billiot v. Terrebonne Parish Sheriff’s
Office, 98-246, p. 4 (La.App. 1 Cir. 2/19/99), 735 So.2d 17, 21, writ denied, 99-
1376 (La. 7/2/99), 747 So.2d 22. “The general rule . . . is that where an erroneous
(2) The user or handler of the product already knows or reasonably should
be expected to know of the characteristic of the product that may cause damage
and the danger of such characteristic.
C. A manufacturer of a product who, after the product has left his control,
acquires knowledge of a characteristic of the product that may cause damage and
the danger of such characteristic, or who would have acquired such knowledge
had he acted as a reasonably prudent manufacturer, is liable for damage caused by
his subsequent failure to use reasonable care to provide an adequate warning of
such characteristic and its danger to users and handlers of the product.
4
Nicholas involved, as here, the rejection by the trial court of a proposed jury instruction.
24
jury instruction is given that constitutes reversible error, the jury decision should
be thrown out and the appellate court should undertake a de novo review of the
record and implement its own judgment based on the evidence.” Id.
“In a jury trial, the judge is not required to give the instructions
submitted by either party; however, the trial judge is obligated to give instructions
which properly reflect the law applicable in light of the pleadings and facts in each
case.” Id. Adequate instructions are those which fairly and reasonably point out
the issues presented by the pleadings and evidence and which provide correct
principles of law for the jury’s application to the facts.” Id. “It is the judge’s
responsibility to reduce the possibility of confusing the jury, and he may exercise
the right to decide what law is applicable to prevent counsel from arguing law that
the trial judge deems inappropriate.” Abadie v. Metro. Life Ins. Co., 00-344, p. 44
(La.App. 5 Cir. 3/28/01), 784 So.2d 46, 79, writs denied, 01-1533, 01-1534, 01-
1543, 01-1544, 01-1629, 01-1853, 01-1931, (La. 12/14/01), 804 So.2d 642, 643,
644, cert. denied, Territo v. Adams, 535 U.S. 1107, 122 S.Ct. 2318 (2002).
The adequacy of jury instructions must be determined in
light of the instructions as a whole and the manifest error
standard of review may not be ignored unless the
instructions were so incorrect or inadequate as to
preclude the jury from reaching a verdict based on the
law and the facts.
Id. at 77-78 (citing Fisher v. River Oaks, Ltd., 93-677 (La.App. 5 Cir. 3/16/94),
635 So.2d 1209, writ denied, 94-0932 (La. 6/3/94), 637 So.2d 503).
“Ultimately, the determinative question is whether the jury
instructions misled the jury to the extent that it was prevented from dispensing
justice.” Nicholas, 765 So.2d at 1023. The failure to give an instruction, even if
erroneous, is not automatically prejudicial, nor does it automatically justify an
25
appellate court’s de novo review. An appellate court must go one step further and
assess the gravity of the error and consider the entirety of the instructions and
circumstances of the case. Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d
507.
The instruction urged by Teleflex is drawn from RESTATEMENT
(THIRD) OF TORTS: PROD. LIAB. § 5 (emphasis added) which states:
One engaged in the business of selling or
otherwise distributing product components who sells or
distributes a component is subject to liability for harm to
persons or property caused by a product into which the
component is integrated if:
(a) the component is defective in itself, as defined in this
Chapter, and the defect causes the harm; or
(b) (1) the seller or distributor of the component
substantially participates in the integration of the
component into the design of the product; and
(2) the integration of the component causes the
product to be defective, as defined in this
Chapter; and
(3) the defect in the product causes the harm.
Because the plaintiff’s theory of liability at trial was that the steering
system itself was defective due to an inherently dangerous risk that was not
obvious to the user such that it required adequate warnings, and the warnings were
not adequate, only part (a) above is applicable. However, the jury charge that
Teleflex asked the judge to provide to the jury stated as follows:
Product component parts include products that can
be put to different uses depending on how they are
integrated into other parts. The manufacturer of a
component part is ordinarily not liable for failing to
incorporate a safety feature that is peculiar to the specific
adaptation for which another manufacturer utilizes the
component part. A safety feature important for one
adaptation may be wholly unnecessary or inappropriate
26
for a different adaptation. The same considerations also
weigh against imposing a duty on the manufacturer of the
component part to warn purchasers of the component
part, or end-users of the completed part, of dangers
arising from special adaptations of the component part by
other manufacturers.
Teleflex attributed this language to the RESTATEMENT (THIRD) OF
TORTS: PROD. LIAB. § 5 cmt. d (1998). The above text is a partial paraphrase of
Comment (d), one of the five comments, not the blackletter law of § 5 as
previously quoted. The isolated comment above is not a fair representation of the
law. It is indeed misleading where the Teleflex SeaStar hydraulic steering system
at issue was specifically designed and marketed for installation in boats with single
engine and twin engine motors of 300-600 horsepower. Reference to a “specific
adaptation” is not relevant in this case. Moreover, comment d actually states:
Incomplete products. Product components include
products that can be put to different uses depending on
how they are integrated into other products. For
example, the chassis of a truck can be put to a variety of
different uses. A truck chassis may ultimately be used
with a cement mixer or a garbage compaction unit or in a
flat-bed truck. Similarly, an engine for industrial
machines may be adapted to a variety of different
industrial uses. A seller ordinarily is not liable for failing
to incorporate a safety feature that is peculiar to the
specific adaptation for which another utilizes the
incomplete product. A safety feature important for one
adaptation may be wholly unnecessary or inappropriate
for a different adaptation. The same considerations also
militate against imposing a duty on the seller of the
incomplete product to warn purchasers of the incomplete
product, or end-users of the integrated product, of
dangers arising from special adaptations of the
incomplete product by others.
In the present case, the steering system was not put to different uses.
It was made for boats, and it was installed in a boat. The reporters’ notes under
comment d indicate that the truck chassis referenced immediately above is drawn
27
from cases like Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978), holding that
the chassis cab manufacturer had no duty to install a back-up alarm that was
needed to make the ultimate end product, a garbage truck, safe. The steering
system in the present case bears no resemblance to the generic chassis exemplified
above. The court in Woods v. Graham Engineering Corp., 539 N.E.2d 316, 320
(Ill. App. Ct. 1989) (emphasis added), held that “the manufacturer is to be held
liable only when it is . . . responsible for the design of the final product or the
component part of the product that caused the injury.” To give only the partial
language from one comment is not an adequate statement of the law.
We note that comment b on the other hand follows the language of the
actual RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 5(a), where it states:
“Liability when a product component is defective in itself. A commercial seller or
other distributor of a product component is subject to liability for harm caused by a
defect in the component.” It references the other sections of RESTATEMENT
(THIRD) OF TORTS: PROD. LIAB.––§§ 2(a), 2(b), 3, and 19––to illustrate that the
liability for a component part manufacturer is the same as the liability of the
product manufacturer if the component part is defective and caused the plaintiff’s
harm. Comment b under § 5 further states that “[t]he same principles apply in
determining a component seller’s duty to supply reasonable instructions and
warnings to the component buyer.” The reporters’ notes provide examples under
comment b illustrating the component part manufacturer’s liability.
For example, if the component has a manufacturing defect that causes
the plaintiff’s harm, the fact that it was integrated into another product does not
relieve the component-part manufacturer of liability. See Bradford v. Bendix-
Westinghouse Auto. Air Brake Co., 517 P.2d 406 (Colo. Ct. App. 1973) (truck
28
brake pedal assembly). Further, if the component is defectively designed for its
designated use, liability may attach. See Fleck v. KDI Sylvan Pools, 981 F.2d 107
(3d Cir. 1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1645 (1993) (swimming
pool liner with no depth markers); Dougherty v. Edward J. Meloney, Inc., 661
A.2d 375 (Pa. Super. Ct. 1995) (defectively designed shut-off valve designed for
use in boilers); Parkins v. Van Doren Sales, Inc., 724 P.2d 389, 392 (Wash. Ct.
App. 1986) (conveyor components always presented a risk to users).
Here, the trial judge did not think the steering system “fit” into the
definition of a component part in the context of the suggested jury charge, stating
that:
[A]lthough it was part of the boat sold as a whole, the
system itself was a system in and of itself that was
designed to do a certain part. And just because it was a
component part of the boat [it] doesn’t fit it into that
definition for me.
We make no ruling regarding the official classification of the system
because we do not have to in deciding this case. The jury charge is not
representative of the substance of the law on component parts.
We find Aubin v. Union Carbide Corp., 12-2075 (Fla. 10/29/15), 177
So.3d 489, instructive as it is factually and legally analogous to the applicable
principles on jury instructions in this failure-to-warn product liability case. There,
a laborer who developed mesothelioma from exposure to construction materials
containing asbestos received a jury verdict in the amount of $6,624,150.5 The jury
attributed 46.25% of the fault to Union Carbide and 53.75% of the fault to several
intermediary manufacturers listed on the jury verdict form. At trial, both parties
had asked for a jury instruction on the asbestos manufacturer’s duty to warn end-
5
The jury’s award was $14,191,000, but the trial court reduced it to $6,624,150.
29
users of the dangers in products containing asbestos. The trial court accepted the
plaintiff’s suggested jury charge and rejected the defendant’s jury charge on the
“learned intermediary” defense. The court of appeal reversed, finding that the trial
court erred in its findings on design defect and causation, and, in failing to give the
requested jury charge on the learned intermediary defense.
The Florida Supreme Court ordered reinstatement of the trial court’s
judgment. The supreme court agreed with the appellate court that the defendant
was entitled to a jury charge on the learned intermediary defense, but found no
reversible error in the trial court’s failure to give the charge because the jury
charge requested by Union Carbide did not accurately reflect the law. We find the
supreme court’s analysis particularly instructive in this case where a component
part charge might have been applicable if properly stated. The court articulated as
follows:
A party is entitled to have the jury instructed on
the theory of its case when the evidence supports that
theory. See OB/GYN Specialists of Palm Beaches, P.A.
v. Mejia, 134 So.3d 1084, 1091 (Fla. 4th DCA 2014);
Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA
2005). To demonstrate that the trial court erred in failing
to give a requested jury instruction, a party must show
“the requested instruction contained an accurate
statement of the law, the facts in the case supported a
giving of the instruction, and the instruction was
necessary for the jury to properly resolve the issues in the
case.” Barkett, 908 So.2d at 1086; see also Force [v.
Ford Motor Co.], 879 So.2d [103,] 106; Smith v. Hugo,
714 So.2d 467, 468 (Fla. 4th DCA 1998).
Aubin, 177 So.3d at 517.
In Aubin, Union Carbide’s requested jury charge and the court’s
rejection of it are similar to our analysis above. The defendant’s charge read:
In considering what constitutes reasonable care in
connection with William Aubin’s failure to warn claim,
30
your consideration may include, but is not limited to, the
following factors:
• the warnings Union Carbide provided to its
customers who used Union Carbide’s
asbestos in making joint compound or
ceiling sprays,
• whether Union Carbide asbestos customers
were aware of the dangers involving
asbestos,
• whether Union Carbide had access to joint
compound and ceiling spray end customers,
and
• whether Union Carbide had the ability to
require customers to give specific warnings
to users of the products incorporating Union
Carbide’s asbestos.
Id. at 518.
The Florida Supreme Court rejected the charge, reasoning as follows:
After examining the record and comparing the
cases in support of the proposed jury instructions with the
proposed instructions themselves, we reject Union
Carbide’s argument that the trial court committed
reversible error in failing to instruct on this theory. The
special jury instructions requested by Union Carbide did
not provide an accurate statement of the law as to this
defense. In order to show that the trial court erred in
failing to give its requested jury instruction, Union
Carbide must show “the requested instruction contained
an accurate statement of the law, the facts in the case
supported a giving of the instruction, and the instruction
was necessary for the jury to properly resolve the issues
in the case.” Barkett [v. Gomez], 908 So.2d [1084,] 1086
[(Fla. 3d DCA 2005)].
This Union Carbide has not done. In fact, some of
the factors that Union Carbide proposed are directly
contrary to principles of law established in other asbestos
litigation and in the cases that the proposed jury
instructions relied upon. For example, one of the factors
proposed by Union Carbide was whether the
intermediaries were aware that asbestos is dangerous.
However, as the Fourth District correctly recognized in
31
McConnell [v. Union Carbide Corp.], 937 So.2d [148,]
154 [(Fla. 4th DCA 2006),] a jury would be reasonably
misled by such a jury instruction that strongly implies
that a learned intermediary’s specific knowledge about a
defect, rather than the end user’s knowledge, is the focus
of Florida’s strict liability law. Likewise, the factor that
the jury should consider whether Union Carbide had
access to the learned intermediary’s customers is
misleading, as neither the caselaw nor the Second
Restatement have recognized that manufacturers must
have direct access to the end user. . . .
....
“When non-standard instructions are proposed,
trial courts face an analytical task similar in kind to that
performed by the thirty-two member Florida Standard
Jury Instructions Committee—without the luxury of
time.” R.J. Reynolds Tobacco Co. v. Jewett, 106 So.3d
465, 469 (Fla. 1st DCA 2012). Thus, non-standard
proposed instructions must be legally accurate and
factually relevant. Id.
A party cannot complain on appeal that a trial
court committed reversible error by failing to correct
that party’s own inaccurate and misleading proposed
instructions. In fact, permitting parties to raise such
issues on appeal would invite parties to deliberately
propose inaccurate instructions so that such a party could
either complain that the trial court committed reversible
error in failing to correct the error or that the trial court
erred in how it corrected the inaccurate instructions.
Since Union Carbide’s proposed jury instructions did not
contain an accurate statement of the law, the trial court
did not err in failing to give these instructions.
After reviewing the jury instructions as a whole,
we conclude that the instructions given by the trial court
were not misleading.
Id. at 518-19 (emphasis added).
Similarly here, in reviewing the jury charges as a whole, we find that
the trial court’s instructions correctly stated the substance of the law on defective
products and the duty to warn and did not mislead the jury or prevent it from
dispensing justice. In fact, the jury charge proposed by Teleflex would have
32
misled the jury because it omitted the essence of the section of law that it
referenced. We find no abuse of discretion or reversible error in the trial court’s
refusal to accept Teleflex’s proposed jury charge in this case.
Bifurcated Damages
Teleflex contends that the trial court erred in failing to bifurcate the
adjudication of compensatory damages from the adjudication of punitive damages,
resulting in substantial prejudice to Teleflex such that the judgment must be
vacated. Mr. Warren responds that, contrary to Teleflex’s suggestion, the law does
not require, or even recommend the bifurcation of liability and punitive damages.
He points out that the first trial was bifurcated because there were multiple
defendants, some of whom were subject to punitive damages and some who were
not. Thus, the trial court bifurcated the damages to avoid confusion and prejudice
to other parties. The second trial, on the other hand, involved only one defendant,
Teleflex.
“A new trial may be granted, upon contradictory motion of any party
or by the court on its own motion, to all or any of the parties and on all or part of
the issues, or for reargument only.” La.Code Civ.P. art. 1971. Pursuant to Article
1971, the trial court has the power to define and limit the scope of the new trial.
Devillier v. Traders & Gen. Ins. Co., 321 So.2d 55 (La.App. 3 Cir. 1975), writ
denied, 325 So.2d 273 (La.1976); Russell v. McDonald’s Corp., 576 So.2d 1213,
(La.App. 5 Cir. 1991). “The court has the power to require that the proceedings
shall be conducted with dignity and in an orderly and expeditious manner, and to
control the proceedings at the trial, so that justice is done.” La.Code Civ.P. art.
1631(A).
33
In Myers v. National Union Fire Insurance Co. of Louisiana, 11-751
(La.App. 4 Cir. 4/4/12), 90 So.3d 522, writ denied, 12-1017 (La. 6/22/12), 91
So.3d 975, a helicopter pilot made a forced landing in the Gulf of Mexico. The
injured passengers sued various parties and insurers and brought a product liability
case against the helicopter manufacturer. When the trial court ordered that
punitive and compensatory damages would be tried together, the manufacturer
appealed, arguing that the order was improper because the manufacturer’s liability
for punitive damages pursuant to maritime law would have to be tried along with
compensatory damages. In support it cited La.Code Civ.P. art. 1562, which states
(emphasis added):
A. If it would simplify the proceedings or would
permit a more orderly disposition of the case or otherwise
would be in the interest of justice, at any time prior to
trial the court may order, with the consent of all parties,
separate trials on the issues of liability and damages,
whether or not there is to be a jury trial on either issue.
B. If a defendant has been found liable by a jury,
the court shall proceed with the trial on the remaining
issues before the same jury unless all parties consent to a
trial before a different jury.
C. Notwithstanding the provisions of Paragraph B
of this Article, in a jury trial, the court may order, with
the consent of all the parties, that a separate trial on the
issue of damages shall precede a trial on the issue of
liability.
D. If it would simplify the proceedings or would
permit a more orderly disposition of the case or otherwise
would be in the interest of justice, at any time prior to
trial on the merits, the court may order, with the consent
of all parties, a separate trial on the issue of insurance
coverage, unless a factual dispute that is material to the
insurance coverage issue duplicates an issue relative to
liability or damages. The issue of insurance coverage
shall be decided by the court alone, whether or not there
is to be a jury trial on the issue of liability or damages.
34
The court in Myers found nothing in Article 1562 to prohibit trying
the damages before the same jury. Nor was it convinced that the jury would be
unduly influenced or confused by trying the issues together.
Here, it is Mr. Warren who invokes Article 1562, pointing out that
bifurcating the damages cannot be ordered without the consent of both parties.
The statute plainly states this in all four of its Paragraphs (A)–(D). Teleflex argues
that Article 1562 does not address a case such as Dugas v. Automotive Casualty
Insurance Co., 98-807 (La.App. 5 Cir. 2/10/99), 729 So.2d 25, where a trial court
can bifurcate the issues, using the same jury, by limiting the details in voir dire and
then obtaining a verdict on liability before allowing evidence of punitive damages.
The operative quote, however, from Dugas states, “The trial court has great
discretion in the manner in which proceedings are conducted before his court, and
it is only upon a showing of gross abuse of discretion that appellate courts have
intervened.” Dugas, 729 So.2d at 27 (citing Harris v. West Carroll Parish School
Bd., 605 So.2d 610 (La.App. 2 Cir. 1992), writ denied, 609 So.2d 255 (La.1992)).
We find no abuse of discretion in the trial court’s decision to try the compensatory
and punitive damages together.
Liability and Compensatory Damages for Failure to Warn
Teleflex appealed the jury verdict finding it liable for compensatory
damages for its failure to warn of the inherent danger in its product. In finding that
Teleflex was negligent and that its negligence was a cause-in-fact of Derek’s death,
the jury implicitly found that Teleflex had a duty, and breached the duty, to warn
users that a hydraulic fluid leak in the steering system would cause the boat to spin
35
out of control, eject its passengers, and possibly throw them into the propeller. The
evidence and testimony at trial supported this finding.
Teleflex’s SeaStar hydraulic steering system consists of three major
parts. The helm pump is mounted to the steering wheel (installed underneath or
alongside it; here, underneath). Connected to the pump are two fluid-filled
hydraulic hoses which run under the boat deck to the back of the boat. There, the
hoses connect to either end of a cylinder which is mounted horizontally to the front
of the outboard motor. When the wheel is turned left or right, additional hydraulic
fluid is pumped into the corresponding hose which then forces the cylinder’s piston
to move the motor. The SeaStar is a closed system, which means that it is
designed to move fluid, not consume it. If there is fluid loss, there is a leak, which
may eventually happen due to connections using metal couplings and rubber O-
rings. Air then gets into the line and changes the steering response, causing what is
referred to as a spongy feeling by the compression of air.
At this point, the system can still be operated and the boat controlled.
With enough fluid loss, however, control of the boat is taken completely out of the
hands of the driver, and the motor goes into a free spin, kicking completely to one
side. The boat turns suddenly on its own axis, referred to in the industry as a “J-
hook” or “kill spin.” Occupants are often ejected and are immediately in danger of
being struck by the spinning propeller, even if the throttle is shut down. The
evidence clearly revealed that Teleflex, a very sophisticated boating industry
manufacturer,6 was well aware of this phenomenon.
Eric Fetchko, currently Vice President and General Manager of
SeaStar Solutions, Richmond, British Columbia, went to work for Teleflex in
6
Teleflex is in fact the largest steering system manufacturer in the world.
36
1986, and invented the SeaStar hydraulic steering system in this case. He testified
that Teleflex knew about the problem but that the problem could not be designed
out of the system. Expert Augusto Villalon, a consultant for the Coast Guard,
testified that, given his background, he knew what to expect with fluid loss in a
hydraulic steering system. However, Sgt. Liles, a very experienced boating
professional, testified that all of the Wildlife & Fisheries boats had this type of
system, and no one knew that this could happen. He indicated that they were going
to cover this issue in their future teaching program because the motoring public
was unaware of the danger. Glen and Daniel Vamvoras testified that they certainly
did not know of the danger. Glen Vamvoras said that he never would have let his
son Daniel drive the boat or put his friends in the boat if he had known of the
danger. Daniel filed an affidavit stating that he would have heeded a warning if
one had been provided.
ANSI provides guidance for manufacturers to alert users of their
products to potential personal injury hazards inherent in their products. We have
already discussed the July 2006 manual, published a few months after this suit was
filed, that partially complied with the 1991 ANSI standards, although it was too
late and too little to satisfy the warning requirements. This is because warnings in
a manual are not sufficient. The warnings should have been on the steering system
itself, which the following definitions and provisions make clear (emphasis added):
4.11 safety sign: A visual alerting device in the form of
a decal, label, placard, or other marking such as an
embossing, stamping, etching, or other process which
advises the observer of the nature and degree of the
potential hazard(s) which can cause injury or death. It
can also provide safety precautions or evasive actions to
take, or provide other directions to eliminate or reduce
the hazard.
37
....
4.11.2 product safety sign or label: Sign, label, or
decal affixed to a product that provides hazard and safety
information about that product.
4.11.2.1 permanent safety sign or label: Information
affixed to a product to warn against potential exposure to
hazards inherent in the normal use of or associated with
the product, or which might be created during
reasonably anticipated product use. The sign or label is
to be permanently affixed to the product so that it cannot
be easily removed.
5.1 Hazard classification
Product safety signs and labels are classified according to
the relative seriousness of the hazard situation. The
determination is based upon an estimation of the
likelihood of exposure to the hazardous situation and
what could happen as a result of exposure to the hazard.
For products, there are three hazard classifications which
are denoted by the signal works DANGER, WARNING
or CAUTION.
....
9.1 Location
Product safety signs and labels shall be placed such that
they will: (1) be readily visible to the intended viewer
and (2) alert the viewer to the potential hazard in time to
take appropriate action.
Engineering and safety expert Stephen Killingsworth testified that
when a product has an inherently dangerous feature that cannot be designed out of
the product, the manufacturer has a duty to warn of the specific danger. In this
case the inherent danger was that a very small loss of fluid would result in loss of
steering that could cause ejection and death. The warning needed to contain a
signal or key word to get the user’s attention, and the text needed to instruct the
user to stop and repair fluid loss immediately to avoid the consequences. The
warning needed also to be placed where it would be seen and in proximity to the
38
hazard. In Mr. Killingsworth’s opinion, Teleflex had a duty to put a sticker or
decal on the front helm pump where the driver would see it at the wheel and where
the oil is actually added. He also testified that another decal had to be put on the
back cylinder of the steering system in a position that it could be seen at the site of
the leak. This is consistent with the ANSI standards and the applicable law in this
case:
In considering whether a warning in an instruction
manual is inadequate because it should have been placed
on the product itself, a court must consider the nature and
severity of danger to be warned against, likelihood that
the product will be used by persons who have not read
the manual, practicality and effectiveness of placing the
warning on the product itself, and any other relevant
factors.
Jaeger v. Auto. Cas. Ins. Co., 95-2448, pp. 8-9 (La.App. 4 Cir. 10/9/96), 682 So.2d
292, 297, writ denied, 96-2715 (La. 2/7/97), 688 So.2d 498 (citing Black v.
Gorman-Rupp, 94-1494 (La.App. 4 Cir. 5/16/95), 655 So.2d 717).
In Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th
Cir. 1984) (footnote omitted), the federal Fifth Circuit stated:
It is a fundamental principle of the law of product
liability in this Circuit that a manufacturer has a
responsibility to instruct consumers as to the safe use of
its product and to warn consumers of dangers associated
with its product of which the seller either knows or
should know at the time the product is sold. Borel [v.
Fibreboard Paper Prods. Corp.], 493 F.2d [1076, 1088-
90 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct.
127 (1974)]; see Restatement (Second) of Torts, Section
402 A. comment j. In assessing what hazards are
foreseeable, a manufacturer is held to the status of an
expert. Borel, 493 F.2d at 1089. The lack of adequate
warnings renders a product defective and unreasonably
dangerous even if there is no manufacturing or design
defect in the product. Martinez v. Dixie Carriers, Inc.,
529 F.2d 457, 465-66 (5th Cir.1976); Reyes [v. Wyeth
Labs.,] 498 F.2d [1264,] 1272-73 [(5th Cir. 1974), cert.
denied, 419 U.S. 1096, 95 S.Ct. 687 (1974).]
39
In Hooker v. Super Products Corp., 98-1107, pp. 28-29 (La.App. 5
Cir. 6/30/99), 751 So.2d 889, 905, writs denied, 99-2911, 99-2947 (La. 12/17/99),
751 So.2d 880, 884, the court stated:
Under the circumstances of this case, warnings
should have been placed on the truck in such a manner
that all operators could have been aware of the danger of
being near the hose or hose shield on this particular
vehicle. If there was any warning decal on the truck at
all, it was definitely not on the side where plaintiff was
working. The danger of being near a hose which could
possibly rupture cannot be considered open and obvious,
since handling a similar hose was part and parcel of
plaintiff’s usual occupation.
Once the trier of fact determines that
the inherent danger is not obvious, and the
consumer is not aware of or trained to detect
that danger, then the warning, or lack
thereof, must be scrutinized. Clark v. Jesuit
High School of New Orleans, 572 So.2d 830
(La.App. 4th Cir.1990), writ denied, 576
So.2d 48 (La.1991). Therefore, the warning
must be: (1) properly worded to signify the
intensity of the inherent danger in the
product; (2) properly placed on the product
so that the consumer cannot avoid seeing it;
and (3) it must convey to the consumer that
injury or damage can result from a normal or
intended use of the product. Id. The
manufacturer can then present evidence to
show its product either did not require a
warning or that the warning that was
provided was adequately worded or placed.
Id.
Asbestos Plaintiffs v. Bordelon, Inc., 96-525 (La.App. 4th
Cir.10/21/98), 726 So.2d 926, 1998 WL 790680.
Plaintiff testified that had he read a warning about
the hose, he would have heeded it. In the present case
there was no warning for plaintiff to see.
Similarly, in this case, the driver of the boat testified that he would
have heeded such a warning. But the only text on the helm in this case advised to
40
check the fluid level and hoses without any mention of the loss of steering
resulting in ejection from the boat and possible death. Based upon the evidence
and the law presented to them, the jury found that the Teleflex system had an
inherent danger unknown to users, that Teleflex had a duty to warn users of such
dangers, and that Teleflex was negligent in its failure to warn. We find no error in
the jury’s finding of liability against Teleflex.
Punitive Damages
With admiralty jurisdiction comes the application of substantive
admiralty law. Yamaha Motor Corp., 516 U.S. 199. Because Derek was a non-
seafarer, and therefore not subject to an overlapping federal statute such as the
Merchant Marine Act of 1920 (Jones Act), the Longshore and Harbor Workers’
Compensation Act (LHWCA), or the Death on High Seas Act (DOHSA), punitive
damages are available under general maritime law. Doxey v. Lake Charles Pilots,
Inc., 00-530 (La.App. 3 Cir. 1/31/01), 781 So.2d 589, writ denied, 01-614 (La.
5/4/01), 791 So.2d 654, cert. denied, 534 U.S. 895, 122 S.Ct. 215 (2001).
“Punitive damages are rarely imposed but have long been recognized
as an available remedy in general maritime actions where defendant’s intentional
or wanton and reckless conduct amounted to a conscious disregard for the rights of
others.” Poe v. PPG Indus., 00-1141, p. 6 (La.App. 3 Cir. 3/28/01), 782 So.2d
1168, 1173. In Poe we stated:
This court has held on numerous occasions that
punitive damages are available under a general maritime
claim. In Jenkins v. Kerr–McGee Corp., 613 So.2d 1097
(La.App. 3 Cir.), writs denied, 616 So.2d 701, 702
(La.1993), this court noted that punitive damages are
meant to punish and deter and are recoverable under the
general maritime law on a showing of willful and wanton
misconduct by the shipowner. “In order to recover
41
punitive damages in a maritime case, a plaintiff must
establish a higher degree of fault than simple
negligence.” Bergeron v. Mike Hooks, Inc., 626 So.2d
724, 728 (La.App. 3 Cir.1993). This court further held
that “[p]unitive damages are recoverable under general
maritime law for acts which are willful, wanton, and in
callous disregard for the safety of others; this requires a
showing of bad faith.” Id. (citing Harper v. Zapata Off-
Shore Co., 741 F.2d 87 (5th Cir.1984)). Furthermore,
this court in Strawder v. Zapata Haynie Corp., 94–453,
94–454 (La.App. 3 Cir. 11/2/94); 649 So.2d 554 held that
plaintiffs, crew members who died aboard a fishing
vessel that exploded after it struck an unmarked
submerged natural gas pipeline, were not precluded from
recovering punitive damages.
Teleflex contends that there was no evidence of wanton, reckless, or
callous conduct. Consequently, it argues, an award of punitive damages is not
supported. Mr. Warren responds that Teleflex recklessly chose not to warn users
of its product’s inherently deadly risk that was not obvious to the public. He
asserts that the trial court correctly instructed the jury on Teleflex’s liability for
punitive damages under the general maritime law. We agree. Here, again, the
evidence in the record supports the jury’s finding that an award of punitive
damages was appropriate.
The evidence revealed that Teleflex not only knew about the steering
loss, but it had tested the system and documented the test results in 1989, nine
years before this system was sold, and approximately sixteen years before this
accident. The jury was likely influenced by the startling results of the tests and
considered it wanton and reckless to ignore such results when an inexpensive stick-
on warning decal costing thirty ($.30) cents could have saved a life. Additionally,
the jury could have found callous disregard for the safety of others in the
terminology and testimony of the system’s designer.
42
More specifically, the record reveals that the hydraulic steering
system at issue held approximately 2000 milliliters of hydraulic fluid. The hand-
written test results, dated July 19, 1989, stated that its purpose was to “test the
effect that oil loss has on the function of the compact helm.” The procedure
consisted of testing the steering by removing 8 milliliters of fluid at a time
(approximately .25 ounces or 1.5 teaspoons). Since the helm pump could be
installed in three configurations––vertically, horizontally, or at a 45 degree angle––
the test was performed on the helm pump in all three positions. In this case, the
helm pump was installed vertically, underneath the steering wheel, so that it
appeared as if the pump were part of a steering column. The test results for the
vertical installation were as follows:
When 24 ml was removed, the oil loss was noticeable.
At 48 ml the helm was bumpy at hard over.
At 64 ml total loss of steering.
Thus, the steering felt slightly different when fluid loss reached 4.8
teaspoons, or .78 ounces. When fluid loss reached 9.6 teaspoons, or 1.56 ounces,
the steering helm felt bumpy when turning hard left or hard right, but the driver
could still control the boat. When fluid loss reached 12.8 teaspoons, or 2.08
ounces, there was no control of the steering whatsoever. Thus, the difference
between operational and a deadly loss of control was, by our calculations 3.2
teaspoons. Mr. Warren’s counsel demonstrated the fluid loss to the jury using a
Nyquil-type measuring cup and explaining that the difference between being able
to drive the boat and losing all control of the boat was only a matter of a few
teaspoons.
43
The jury was likely influenced by the magnitude of the risk––that
losing only a few percent of the system’s overall fluid content could result in
ejection from the boat and death. Yet, the system’s designer admitted that the
system was designed so that a user could drive a boat with the SeaStar system and
never have to add fluid for the lifetime of the boat. The jury heard much testimony
regarding the unknowability of the seriousness and magnitude of the risk by the
motoring public. And, the jury implicitly considered the ease with which the
problem could have been remedied by simply putting a warning sticker on the
product itself, which had been a well-established safety standard for some time.
The jury could have also interpreted a callous disregard for the safety
of others based upon the testimony of Teleflex SeaStar designer, Eric Fetchko,
who testified that Teleflex did not want to cause “mass hysteria” by putting a more
specific warning on the product itself. He analogized the present situation to the
lack of a warning on an airline boarding pass that, if the motor stopped, the plane
would fall out of the sky. Mr. Fetchko also compared the need for a warning
regarding the risk of death after fluid loss, measured by teaspoons, to the need for a
warning not to slam your knuckles in a car door. He repeatedly testified that, at the
time this system was sold in 1998, Teleflex assumed that the different feel in the
steering response would alert users that they had a problem. He stated that
hindsight was a “wonderful thing” and repeatedly said that “times change.”
Yet, the standards for warnings applicable at the time were published
in 1991, seven years before this system was sold. And Teleflex’s own testing gave
it the knowledge, even earlier in 1989, of the total failure of its system depending
on minor amounts of fluid loss in the increments of teaspoons. Mr. Fetchko
44
admitted that the 1989 testing, accomplished by removing small amounts of fluid
at a time, was performed with an eye-dropper. He also admitted that the company
had received thousands of complaints regarding fluid loss, but said the numbers
must be kept in context because Teleflex had sold millions of the systems. The
jury could have found the murky soup of logic hard to swallow, that is, that the
same company that received thousands of complaints of fluid loss also knew that a
minimal amount of fluid loss could end in death; but the frequency was not high
enough to justify a valid and effective warning. In responding to questions
regarding the action that Teleflex took in other matters of malfunction, Mr.
Fetchko’s cross-examination concluded with the following colloquy:
A. Okay. For sure, the -- the tubing we got from a
supplier was -- had cut lines in it or something. It was
quite a large amount. We contacted the Coast Guard.
They said, “What was the frequency?” We told them
how much. They said, “That’s a lot. Find all the
customers. Notify everyone. Send them a registered
letter. Get the stuff back.” We did. If I went -- or our
liability people went and said Okay, we’ve got a boat. It
wasn’t maintained. Lost steering. Guy got thrown out,
ejected, terrible accident.” The first thing the Coast
Guard would say, “How many have you built?” “Two
million.” “How many times has this happened?” “Oh it
happened this once.” That’s -- so the first thing they’ll
look at is the frequency.
Q. Are you telling the jury that this is the only –
A. No, I’m not.
Q. -- death case?
A. -- no, I’m not. Hold a sec. Hold a sec. I was making
a point that the first thing they’ll ask is frequency.
Whether it’s one death or five deaths in two million. The
first thing they’ll look at is frequency. And they’ll look
at it and say, “That’s probably not a -- I don’t work for
the Coast Guard, but in the past we’ve gone to them and
said Four frequency out of 10,000.” “No, just,” you
know, “deal with it.” I -- I don’t think they would have
45
put something up on their website even if we’d have
asked them. But, again, I don’t work for the Coast
Guard.
....
Q. You made it clear, Mr. Fetchko, you’re not a
warnings expert, but you’re an engineer?
A. Yes.
Q. And you agree that at some point in the operation of a
system that has a steering fluid leak, one more drop and
you lose total control?
A. Correct.
Q. So if you don’t know how much you’ve lost, that
means if you’ve got a steering fluid leak you need to stop
operation of the boat now, right then. You don’t drive it
back from the Country Club, do you?
A. If you do, you drive at a very slow speed.
Q. Because if you do drive it back and get up on plane
you don’t appreciate the harm. You can be ejected and
killed?
A. Yes.
Q. And nowhere on any of the SeaStar products on that
boat or any other boat that was built back then does it
say, “Steering fluid leak means stop.”
A. In hindsight, that’s correct.
Based upon the foregoing, we find that the record supports the jury
award of punitive damages.
Excessiveness
Teleflex contends alternatively that if we find support for punitive
damages, the jury’s award of punitive damages is grossly excessive as a matter of
federal maritime and constitutional law. Mr. Warren responds that the punitive
46
damage award is constitutionally permitted, supported by the law and the record,
and within the jury’s vast discretion.
The purpose of exemplary damages is to punish the
defendant and deter future similar behavior. These
damages are regarded as a fine or penalty for the
protection of the public interest. Mosing v. Domas, 02-
12 (La. 10/15/02), 830 So.2d 967. The following factors
are considered in determining whether the award is too
high or low: (1) the nature and extent of the harm to the
plaintiff; (2) the wealth or financial situation of the
defendant; (3) the character of the conduct involved; (4)
the extent to which such conduct offends a sense of
justice and propriety; and (5) the amount necessary to
deter similar conduct in the future. Id. The amount of
exemplary damages is the result of a fact-intensive
inquiry into the case. These awards should only be
disturbed if the damages are such that “all mankind at
first blush would find [them] outrageous.” Id. at 972
(quoting Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415,
421-22, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994)).
Rachal v. Brouillette, 12-794, p. 10 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137,
1145 (alteration in original), writ denied, 13-690 (La 5/3/13), 113 So.3d 217.
Historically, in Louisiana, the amount of an exemplary damage award
has been reviewed by the appellate courts for abuse of discretion. Riser v.
Acadiana Limousine Serv., Inc., 96-1687 (La.App. 3 Cir. 4/30/97), 693 So.2d 330,
writ denied, 97-1420 (La. 9/19/97), 701 So.2d 173. This practice is similar to the
review that has evolved under the common law. However:
In recent years, the U.S. Supreme Court has
decided a number of cases raising exemplary damages
issues. Most significantly, in BMW of North America,
Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d
809 (1996), the Court ruled that exemplary damage
awards that are “grossly excessive” violate the Due
Process Clause of the Fourteenth Amendment. The
Court then provided three “guideposts” for gauging when
an exemplary damage award crosses the constitutional
line: (1) the reprehensibility of the defendant’s conduct;
(2) the ratio between the exemplary damage award and
the harm the defendant’s conduct caused, or could have
47
caused; and (3) the size of any civil or criminal penalties
that could be imposed for comparable misconduct. These
constitutional constraints on the amount of exemplary
damage awards were afforded more significance in
Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,
[532 U.S. 424, 121 S.Ct. 1678 (2001)]. Therein, the
Supreme Court ruled that state and federal appellate
courts must conduct a de novo review of claims that
exemplary damage awards are grossly excessive in
violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Cooper,
532 U.S. at 433-434, 121 S.Ct. at 1685-1686.
Mosing v. Domas, 02-12, p. 6 (La. 10/15/02), 830 So.2d 967, 972-73 (emphasis
added).
Teleflex has raised the constitutionality of the $23,000,000 punitive
damage award in the court below. We will conduct a de novo review of the record
and a constitutional analysis of the punitive damage award to determine whether
the punitive damages awarded by the jury in this case violated either procedural or
substantive due process. In so doing we will first provide a summary of the United
States Supreme Court cases which have developed the modern analysis of punitive
damages under the Due Process Clause of the Fourteenth Amendment to the
Constitution.
Development of Constitutional Analysis
Under modern constitutional theory, it is acknowledged that states
have broad discretion regarding the imposition of criminal penalties and punitive
damages. However, the Due Process Clause of the Fourteenth Amendment to the
United States Constitution imposes limits on that discretion. The rationale is that
where an award is grossly excessive, it furthers no legitimate state purpose and
constitutes an arbitrary deprivation of property. See Pac. Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 111 S.Ct. 1032 (1991). Haslip involved the city’s
48
misappropriation of its employees’ health insurance funds by a city agent. It
established the framework for addressing procedural due process. There, the
Court examined Alabama’s law on punitive damages and determined that it
comported with the procedural limitations in the Due Process Clause where its
purposes for the imposition of punitive damages were (1) retribution and (2)
deterrence.
The Court further found that the jury instructions and Alabama’s post-
trial scrutiny procedure, by the trial court and by the Alabama Supreme Court,
assured that the jury’s discretion was constrained to the severity of the offense, and
the stated purposes were served without grossly excessive awards. The $1,040,000
award in Haslip was interpreted as $840,000 in punitive damages and $200,000 in
compensatory damages, a ratio slightly above 4:1. The Court intimated that there
could be substantive due process limitations as well and stated that the 4:1 ratio
(with a 200:1 ratio for actual out-of- pocket expenses for plaintiffs) might be close
to the line. However, the Court said there was no mathematical bright line for
establishing excessiveness and allowed the award to stand because it did not lack
objective criteria.
Two years later, in TXO Production Corp. v. Alliance Resources
Corp., 509 U.S. 443, 113 S.Ct. 2711 (1993), a case involving mineral rights fraud,
the Court addressed substantive due process limitations on punitive damage
awards. There, the jury awarded the defrauded company (Alliance) $10,000,000 in
punitive damages and $19,000 for actual harm. The court also considered the
$1,000,000 of harm that could have occurred to the victims if the plan had
succeeded. Thus, the ratio in TXO has been expressed as 526:1 (for actual harm)
and also as 10:1 (for potential harm). See BMW, 517 U.S. 559. The United States
49
Supreme Court in TXO granted certiorari to determine whether the Due Process
Clause was violated because the amount was excessive or because it was a product
of unfair procedure. The result was a plurality opinion, with three justices in full
agreement on the decision to affirm; three justices concurring and agreeing to
uphold the lower court; and three justices dissenting. The decision is much cited
because the dissenting justices agreed with the analysis and the rationale of the
decision, but not the holding.
TXO is also important because all agreed that the Due Process Clause
of the Fourteenth Amendment imposed substantive limitations on the amount of
punitive damages a state could award. The standard announced was that the award
could not be so “grossly excessive” as to violate the Due Process Clause. TXO,
509 U.S. at 458. However, the Court reiterated the Haslip pronouncement that
there was no rigid formula or mathematical bright line to establish excessiveness,
just a general concern of reasonableness. The TXO Court also said that it was
appropriate to consider the potential harm to the victim as well as possible harm to
other victims in the future if the behavior was not deterred. The Court noted that
the $10,000,000 punitive damage award there was dwarfed by the potential income
that Alliance would have realized if TXO had performed in good faith. The Court
established four factors for determining excessiveness: (1) the amount of money
potentially at stake; (2) the bad faith of the offender; (3) whether there was a larger
pattern of fraud, trickery, and deceit; and (4) the wealth of the offender. The Court
dismissed the disparity between the $10,000,000 punitive and the $19,000 actual
damage awards in light of the potential harm to the victims and TXO’s bad faith,
pattern of fraud, and considerable wealth.
50
Next, in Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 114 S.Ct.
2331 (1994), involving personal injury and product liability for a three-wheeler
accident, the Court returned to procedural due process. There, the jury had
awarded $5,000,000 in punitive and $919,390.39 in compensatory damages. The
compensatory damage award had been reduced by 20%, to $735,512.31, for the
plaintiff’s fault in the accident, but the punitive damage award was not reduced.
The final ratio was almost 7:1. The U.S. Supreme Court found that Oregon’s
procedural framework, which prohibited judicial review of the jury’s award unless
the court could say there was no evidence to support the verdict, as violative of due
process because it removed the minimum protections required to prevent
unreasonable jury verdicts:
Punitive damages pose an acute danger of arbitrary
deprivation of property. Jury instructions typically leave
the jury with wide discretion in choosing amounts, and
the presentation of evidence of a defendant’s net worth
creates the potential that juries will use their verdicts to
express biases against big businesses, particularly those
without strong local presences. Judicial review of the
amount awarded was one of the few procedural
safeguards which the common law provided against that
danger. Oregon has removed that safeguard without
providing any substitute procedure and without any
indication that the danger of arbitrary awards has in any
way subsided over time. For these reasons, we hold that
Oregon’s denial of judicial review of the size of punitive
damages awards violates the Due Process Clause of the
Fourteenth Amendment.
Id. at 432.
While the Court was focused on procedural due process and limited
its discussions accordingly, it was clear that the Court found the Due Process
Clause to impose a substantive limit on the size of punitive awards as well.
51
However, again, the Court articulated that there were no absolutes and no
mathematical bright lines in determining excessiveness.
In BMW, 517 U.S. 559, in 1996, the dealer failed to disclose pre-
delivery damages and repainting of a new car, resulting in a $4,000,000 punitive
award and a $4,000 compensatory award by an Alabama jury. The Court ruled
that the punitive award was grossly excessive and substantively violated the Due
Process Clause of the Fourteenth Amendment, even though the punitive award had
been reduced to $2,000,000 by the Alabama Supreme Court. The Court endorsed
the TXO standard for excessiveness, stating:
Punitive damages may properly be imposed to
further a State’s legitimate interests in punishing
unlawful conduct and deterring its repetition. In our
federal system, States necessarily have considerable
flexibility in determining the level of punitive damages
that they will allow in different classes of cases and in
any particular case. Most States that authorize exemplary
damages afford the jury similar latitude, requiring only
that the damages awarded be reasonably necessary to
vindicate the State’s legitimate interests in punishment
and deterrence. Only when an award can fairly be
categorized as “grossly excessive” in relation to these
interests does it enter the zone of arbitrariness that
violates the Due Process Clause of the Fourteenth
Amendment.
BMW, 517 U.S. at 568 (citations omitted).
The Court found that due process requires fair notice to the defendant
of (1) the conduct that is punishable and (2) the severity of the penalty that the
state may impose for that conduct. It also established three guideposts for
determining whether an award is “grossly excessive”: (1) the degree of
reprehensibility of the misconduct; (2) the ratio, or disparity between the punitive
award and the harm, or potential harm, suffered by the plaintiff; and (3) the
52
difference between this remedy and the civil penalties authorized or imposed in
comparable cases. Id. at 575-85.
The Court articulated that the most important factor is
reprehensibility, and it discussed aggravating factors that were not present there.
As to ratio, the Court found that there was not a reasonable relationship between
the punitive and compensatory awards and that the 500:1 ratio was too high.
Finally, under sanctions for comparable misconduct, it found that the $2,000,000
punitive award was substantially greater than Alabama’s $2,000 civil penalty for
deceptive trade practices, or other state’s $5,000–$10,000 penalties for the same
conduct. While holding fast to its no-bright-line position, the Court found the
award unconstitutional, reversed the judgment, and remanded the case for further
proceedings.
In State Farm Mutual Automobile Insurance Co. v. Campbell, 538
U.S. 408, 123 S.Ct. 1513 (2003), a case involving bad faith, fraud, and infliction of
emotional distress, the Court held that a punitive damage award of $145,000,000,
with $1,000,000 in compensatory damages, was excessive and violative of the Due
Process Clause. The Court upheld the three BMW guideposts, finding that the
reasonableness goal focusing on reprehensibility was still the most important and
required a subjective focus on the jury’s actions, its reasons, the evidence before it,
the facts it found, and its overall justification for the award. In evaluating
reprehensibility, the Court re-urged the primary factors from BMW, instructing
courts to consider whether
[1] the harm caused was physical as opposed to
economic; [2] the tortious conduct evinced an
indifference to or a reckless disregard of the health or
safety of others; [3] the target of the conduct had
financial vulnerability; [4] the conduct involved repeated
53
actions or was an isolated incident; and [5] the harm was
the result of intentional malice, trickery, or deceit, or
mere accident.
Id. at 419. The Court found that the Utah Supreme Court had punished State Farm
for out-of-state conduct and conduct dissimilar to the harm inflicted on the
Campbells, due to extensive, unrelated testimony regarding State Farm’s policy of
corrupting its employees and a nationwide adjusting policy. The Court articulated
that the reprehensibility guidepost does not permit a court to expand the scope of
the case to punish a defendant for “any malfeasance” committed over a 20-year
period. Id. at 424. Nor can a state “punish a defendant for conduct that may have
been lawful [in another state] where it occurred.” Id. at 421.
The Court further articulated that the proportionality goal, focusing on
the second and third guideposts, ratio and comparison, supplied the objective
component to the excessiveness analysis of a punitive damage award. As to ratio,
the Court reiterated its reluctance to identify concrete constitutional limits and
again eschewed a bright line ratio. The Court did, however, state that a single digit
ratio was more likely to satisfy due process than a 500:1 or a 145:1 ratio. Where
the Campbells were awarded compensatory damages of $1,000,000 for a year and
a half of emotional distress, and the harm had arisen from a transaction in the
economic realm, and there were no physical injuries or trauma, the Court thought
the compensatory damages were probably based on a component which was
duplicated in the punitive award. The Court believed that much of the distress was
caused by humiliation the Campbells suffered due to the actions of their insurer,
then stated, “Compensatory damages, however, already contain this punitive
element. See Restatement (Second) of Torts § 908, Comment c, p. 466 (1977)[.]”
Id. at 426.
54
Under guidepost three, comparable penalties, the court found that
Utah’s statute for fraud imposed only $10,000 per incident, “an amount dwarfed by
the $145 million punitive damages award.” Id. at 428. Ultimately, the judgment
was reversed and the case remanded.
In Phillip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057
(2007), involving the death of a heavy smoker by lung cancer who had been led to
believe that smoking was safe, the jury awarded $79,500,000 in punitive damages
and $821,000 in compensatory damages, a ratio of almost 100:1. The majority did
not rule on excessiveness but returned to the factor of potential harm and found
that the Oregon Supreme Court had applied the wrong standard. The Court found
that the Oregon award amounted to a taking of property from the defendant
without due process because it punished Phillip Morris for harm to non-party
victims whom the defendant had no opportunity to defend against and no means to
discern what the non-parties knew or upon what they relied. Thus, the court
vacated the judgment and remanded the case (Justices Stevens, Thomas, Ginsburg,
and Scalia dissented).
Importantly, the majority in Williams clarified in this case the proper
application of the “harm or potential harm factor,” making it clear that the
potential harm considered was “harm potentially caused the plaintiff.” Id. at 354.
The Court referenced its statement in State Farm: “[W]e have been reluctant to
identify concrete constitutional limits on the ratio between harm, or potential harm,
to the plaintiff and the punitive damages award.” Id. (alteration in original). The
Court further referenced its plurality opinion in TXO using the same kind of
comparison as a basis for finding a punitive award not unconstitutionally
excessive. The Court further explained:
55
Respondent argues that she is free to show harm to
other victims because it is relevant to a different part of
the punitive damages constitutional equation, namely,
reprehensibility. That is to say, harm to others shows
more reprehensible conduct. Philip Morris, in turn, does
not deny that a plaintiff may show harm to others in order
to demonstrate reprehensibility. Nor do we. Evidence of
actual harm to nonparties can help to show that the
conduct that harmed the plaintiff also posed a
substantial risk of harm to the general public, and so
was particularly reprehensible—although counsel may
argue in a particular case that conduct resulting in no
harm to others nonetheless posed a grave risk to the
public, or the converse. Yet for the reasons given above,
a jury may not go further than this and use a punitive
damages verdict to punish a defendant directly on
account of harms it is alleged to have visited on
nonparties.
Williams, 549 U.S. at 355 (emphases added).
In Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605,
(2008), an oil spill case, the punitive damage award was $4.5 billion, reduced to
$2.5 billion, and the compensatory damage award was $507.5 million. There, the
Court discussed the upper limits for punitive damage awards in maritime cases of
that type, acknowledging that the inquiry was very specific to the facts of that case.
The Court articulated that its effort to find such a limit was relevant only to cases
“with no earmarks of exceptional blameworthiness within the punishable spectrum
. . . and cases . . . without the modest economic harm or odds of detection that have
opened the door to higher awards.” Id. at 513. Based upon the facts in Exxon,
where the damage was economic and involved an accidental running aground by a
tanker, the Court ultimately arrived at a 1:1 ratio but discussed higher awards,
distinguishing itself from cases that involve egregious conduct and dangerous
activity “carried on for the purpose of increasing a tortfeasor’s financial gain.” Id.
at 510. By comparison, the Exxon Court said, “We confront, instead, a case of
56
reckless action, profitless to the tortfeasor, resulting in substantial recovery for
substantial injury.” Id. at 510-11.
We now turn to the constitutional analysis of the punitive damage
award in this case.
Procedural Due Process
Teleflex does not challenge Louisiana’s purposes of punishment and
deterrence, which are identical to those approved repeatedly by the U.S. Supreme
Court. Nor does Teleflex object to the trial court’s jury instructions on punitive
damages; in fact, at the hearing on Teleflex’s JNOV, Teleflex stated that the jury
was properly instructed and charged on punitive damages at trial. Rather, Teleflex
asserts that the trial court in this case refused to review the jury’s award and that
lack of judicial review is a constitutional violation pursuant to Haslip, 499 U.S. 1,
whose procedural requirements we have already discussed above. In bringing this
contention, Teleflex references the trial court’s statement that where reasonable
minds could differ, he was not going to disturb the jury’s verdict. What Teleflex
fails to include is that this statement arose at the hearing on Teleflex’s request for
JNOV or remittitur on the punitive damage award. The hearing itself was a
judicial review by the trial court, and the trial judge’s reference to reasonable
minds differing is the standard for denying a motion for JNOV. In TXO, the Court
stated:
The only basis for criticizing the trial judge’s
review of the punitive damages award is that he did not
articulate his reasons for upholding it. He did, however,
give counsel an adequate hearing on TXO’s postverdict
motions, and during one colloquy indicated his
agreement with the jury’s appraisal of the egregious
character of the conduct of TXO’s executives. While it is
always helpful for trial judges to explain the basis for
57
their rulings as thoroughly as is consistent with the
efficient dispatch of their duties, we certainly are not
prepared to characterize the trial judge’s failure to
articulate the basis for his denial of the motions for
judgment notwithstanding the verdict and for remittitur
as a constitutional violation.
TXO, 509 U.S. at 464-65 (citation omitted).
We find accordingly because the trial court in this case was very
similarly vocal during the hearing about Teleflex’s knowledge of the magnitude of
the risk, the foreseeability of the boat being used by someone who was not given a
manual, and Teleflex’s egregious conduct in still refusing to warn that a small loss
of fluid would result in total loss of steering that could result in ejection and death.
When Teleflex indicated at the hearing that it would have had to anticipate a more
specific fact pattern than was reasonable, the trial court disagreed and reviewed the
evidence showing that Teleflex did in fact anticipate the loss of steering control
when oil leaked out because of the testing in 1989:
THE COURT:
Here is the scenario as I see it. I think it was Mr.
Fetchko. He’s the designer of this thing; right?
MR. FROHN:
Right.
THE COURT:
My recollection is that he or someone under his direction
did these tests of the different orientations. He was
aware of the potential to lose steering altogether and at
certain levels, depending upon what [the] orientation
was. And, he was fully aware of what the consequences
would be if you lost control and the boat happened to be
up on plane. Is that a fair statement?
MR. FROHN:
I think that’s a fair statement.
58
....
THE COURT:
Mr. Frohn, I don’t think we can say that they didn’t think
about it. I think the testing made them aware that there
was this risk that if you -- they tested it to see what was
going on.
MR. FROHN:
Right, right.
THE COURT:
Because they were aware that oil leaks out.
The hearing transcript reveals that after hearing and considering full
argument on the Exxon case and ANSI standards, the trial court looked at the
evidence and expressed its reasons for finding that it should not overturn the jury’s
verdict, implicitly finding Teleflex’s conduct reckless and callous:
THE COURT:
So, there is nothing in this warning that tells you that, if
you’re losing steering fluid, it’s going to take more than
two turns to get you to full left or right. There’s nothing
in this instruction that tells you clicking might make a
difference. There is nothing in this instruction, or
warning I should say, that talks about leaking fluid. It
says, “Install and maintain in accordance with Teleflex
instructions. Use approved oil. Do not use brake fluid.”
It doesn’t say anything about, if you’ve got a leak, you
know, go check the level. . . .
....
And, the issue for me and for the jury is was your
warning sufficient to – you know, this is a standard, but
that’s a reasonable standard. Whether you think it
applies or not, it’s entirely reasonable that you would
anticipate that a manufacturer that’s going to put into the
stream of commerce a product that has the potential to
kill somebody would tell somebody that this product has
59
a potential to kill you if you don’t do this or if this
happens. And, I think this jury looked at that . . . .
....
I do not think this is a judgment that I can reverse or
change. I think it was reasonably made based upon the
evidence that was presented.
Accordingly, Teleflex’s argument that it did not receive judicial
review in violation of procedural due process requirements has no merit.
Substantive Due Process
The Court established three guideposts in BMW, 517 U.S. 559, for
determining the excessiveness of punitive damage awards.
Degree of Reprehensibility
The United States Supreme Court in the cases discussed above
repeatedly stated that reprehensibility is the most important factor in the
constitutional analysis. In Exxon, where the running aground of the tanker was
inadvertent, the Court stated that an action taken or omitted “in order to augment
profit represents an enhanced degree of punishable culpability.” Exxon, 554 U.S at
494. As we discussed, the jury in this case found Teleflex’s conduct in failing to
warn of an unknown and inherently dangerous condition that became deadly with a
few drops of oil loss to show a reckless and callous disregard for the safety of its
users. This is particularly egregious conduct where Teleflex alone had this
knowledge in 1989, and where the cost of avoiding the risk was a thirty-cent label
on the system itself.
The jury heard the designer of the SeaStar system trivialize the duty to
warn of this life-threatening risk by comparing it to open and obvious risks such as
60
slamming one’s hand in a car door or falling out of the sky if an airplane’s motor
fails. The jury also heard Mr. Fetchko say that to provide a real warning about loss
of steering, ejection, and possible death after only a very minor loss of oil would
cause “mass hysteria,” which Teleflex did not want to do. He admitted that
Teleflex wanted to dominate the market of boating industry steering systems with
its hydraulic design and that it was very successful in doing so.
Additionally, while there was no actual evidence of other deaths
before the jury, the jurors heard Mr. Fetchko quickly retract a statement that this
was the only incident of its kind. This came after admitting that there were
thousands of complaints about hydraulic fluid loss, and that this frequency was too
small to justify a warning when put in the correct context that Teleflex sold
millions of the systems. The jury implicitly found callousness in making
frequency the determinative factor in placing a simple, inexpensive, but life-saving
warning on a product where loss of life was the consequence.
The BMW and State Farm/Campbell aggravating factors for
evaluating reprehensibility were satisfied: the harm here was physical, not
economic, and of the worst kind, as it encompassed the violent taking of the life of
a promising young man of twenty-two; the evidence before the jury showed
tortious conduct evincing indifference and reckless disregard for the safety of
others; the target of the conduct may not have been financial vulnerability, but the
evidence clearly indicated a vulnerability through inexperience with regard to the
users who buy this product. Further, given the thousands of complaints about oil
loss, the decision not to warn was made repeatedly; and while the conduct may not
equate with trickery, the decision not to warn was intentional for the purpose of
61
avoiding “mass hysteria,” which would of course reduce profits. Thus, the profit
motive was established.
Moreover, in Exxon, 554 U.S. 471, the Court found that hard-to-detect
wrongdoing, which is more reprehensible, subjects the more culpable tortfeasor to
greater punishment. It is viewed as concealment and bad faith when a company
has knowledge through its own testing that its product is dangerous and still
withholds the knowledge from those who purchase the product and create the very
wealth the defendant enjoys. See id.
We find that the reprehensibility factor is fully realized in this case,
unlike most of the seminal cases decided by the U.S. Supreme Court as outlined
above. Accordingly, the reprehensibility factor in this case weighs heavily in favor
of sustaining a high punitive damage award.
Ratio
The objective component of the analysis in this case, the ratio of the
$23,000,000.00 punitive damage award as compared to the $125,000
compensatory damage award, is 184:1, without considering the potential harm
factor of the BMW analysis; but is less than 3:1 when potential harm is included in
the calculus. Derek’s death was violent but mercifully he died fairly quickly. The
propeller blades cut him deeply from his beltline to his head. The jury awarded
$100,000 to Mr. Warren for Derek’s survival damages. His mother had settled
before trial, and thus her loss was not before the jury. Because Derek was not
raised by his father, the jury awarded Mr. Warren only $25,000 for his wrongful
death loss. The compensatory awards were, therefore, unusually low and likely
62
difficult for the jury, but the small awards clearly indicate that the jury was not
influenced by “passion or prejudice.” Exxon, 554 U.S. at 503.
Teleflex asserts that the ratio is impermissibly high for maritime cases
and points to Exxon which limited the punitive award to a 1:1 ratio. Teleflex
further asserts that the ratio violates the Due Process Clause as an excessive
punitive award. However, the jurisprudence from the U.S. Supreme Court which
shows the development of the constitutional analysis from Haslip in 1991 to Exxon
in 2008 has repeatedly adhered to its position that there is no bright line
mathematical formula for determining what is “grossly excessive” under the facts
of any case.
The Court in Exxon repeatedly narrowed its findings to the facts in
that case where the harm was economic loss, the conduct was unintentional and
inadvertent, there was no motive for financial gain, and the compensatory damages
were substantial at $507,500,000. It also involved a shipowner’s liability, the
Clean Water Act, and regulatory sanctions. The Court poignantly noted that
Exxon had already paid millions in clean-up costs, and distinguished Exxon from
cases involving a tortfeasor’s egregious conduct and a motive for gain. Its opinion
was again consistent with its prior holdings:
Of course, we have consistently rejected the notion
that the constitutional line is marked by a simple
mathematical formula, even one that compares actual
and potential damages to the punitive award. TXO, 509
U.S. at 458, 113 S.Ct. at 2720. Indeed, low awards of
compensatory damages may properly support a higher
ratio than high compensatory awards, if, for example, a
particularly egregious act has resulted in only a small
amount of economic damages. A higher ratio may also
be justified in cases in which the injury is hard to detect
or the monetary value of noneconomic harm might have
been difficult to determine. It is appropriate, therefore, to
reiterate our rejection of a categorical approach. Once
63
again, “we return to what we said ... in Haslip: ‘We need
not, and indeed we cannot, draw a mathematical bright
line between the constitutionally acceptable and the
constitutionally unacceptable that would fit every case.
We can say, however, that [a] general concer[n] of
reasonableness ... properly enter[s] into the constitutional
calculus.’” Id. at 458, 113 S.Ct. at 2720 (quoting Haslip,
499 U.S. at 18, 111 S.Ct. at 1043).
BMW, 517 U.S. at 582-83 (emphasis added) (alteration in original).
Maritime cases following Exxon have also held that Exxon’s ratio of
1:1 was limited to the facts in that case.
In Clausen v. Icicle Seafoods, Inc., 174 Wash.2d 70, 272 P.3d 827
(2012), cert. denied, ___ U.S. ___, 133 S.Ct. 199, a case involving the employer’s
withholding of maintenance and cure to the severe detriment of an injured seaman,
the court disagreed with the defendant’s reading of the scope of the Exxon case as
imposing a 1:1 ratio in all maritime cases:
We find nothing in the Exxon case establishing a
general rule limiting the jury’s role in determining
appropriate damages. The Exxon case cannot be read as
establishing a broad, general rule limiting punitive
damage awards, primarily because nowhere in the
opinion can such a rule be found. To the contrary, the
United States Supreme Court expressly limits its holding
to the facts presented. In the first paragraph of the
opinion, the issue is framed as “whether the award ... in
this case is greater than maritime law should allow in the
circumstances.” Exxon, 554 U.S. at 476, 128 S.Ct. 2605
(emphasis added).
Id. at 835.
The Clausen jury awarded punitive damages of $1,300,000 and
compensatory damages of $37,420, a ratio of almost 35:1. After trial, however, the
trial judge awarded attorney fees of $387,558 for the employer’s misconduct in
withholding maintenance and cure. The Washington Supreme Court found the
attorney fees to be compensatory. It also upheld the punitive damage award of
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$1,300,000 for callous, willful, or wanton withholding of maintenance and cure as
proper, and, as necessary as a deterrent. The court found the awards not
duplicative in nature and cited other cases which included the attorney fees as part
of the compensatory award when considering the punitive damages award ratio.
When the attorney fees were added to the jury’s compensatory damage award, the
ratio of punitive to compensatory became 3:1.
The Clausen court found that, unlike the conduct of Exxon, the
conduct of the employer, Icicle, was more than reprehensible; it was egregious.
The court discussed its rationale for a variable punitive damage award that is not
bound to a ratio from another case with different facts:
The availability of punitive damages, without a 1:1
ratio to compensatory damages, for willful withholding
of maintenance and cure is necessary because it also
serves as a deterrent. A variable punitive damages
award creates a disincentive to employers who would
otherwise prefer to hold out on paying maintenance and
cure until a suit is filed, if at all.
Id. at 836 (emphasis added).
In McWilliams v. Exxon Mobile Corp., 12-1288 (La.App. 3 Cir.
4/3/13), 111 So.3d 564, writ denied, 13-1402 (La. 11/8/13), 125 So.3d 451, a
maritime and Jones Act case involving a worker’s exposure to benzene resulting in
leukemia, the jury awarded $5,498,391 in compensatory damages and $12,000,000
in punitive damages. This court agreed with the Clausen analysis of Exxon,
finding that the Supreme Court did not therein establish a general rule pertaining to
punitive damages, “but rather, [it] narrowly tailored that result to the unique case
before it.” Id. at 579. In McWilliams, after the punitive award was affirmed, and
the compensatory award was reduced by $244,909 (future and past medical
expense reductions), the resulting ratio was approximately 2.3:1.
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In both Clausen and McWilliams, the maritime workers were severely
injured by the defendants’ conduct, but they lived and were awarded compensatory
damages for medical expenses and lost earnings, and in Clausen that included
substantial attorney fees. Mr. Warren cites cases suggesting that, if Derek had
survived his injuries, his potential damages would easily have been in the millions.
Teleflex argues that potential harm is not an appropriate consideration in a
maritime case because the factor was omitted from the Exxon decision, but
Teleflex fails to cite any case finding that potential harm is forbidden in maritime
cases. The second BMW guidepost clearly states that the ratio factor considers the
disparity between the punitive award and the harm or potential harm suffered by
the plaintiff. The BMW Court referenced its decision in TXO:
In Haslip we concluded that even though a
punitive damages award of “more than 4 times the
amount of compensatory damages” might be “close to
the line,” it did not “cross the line into the area of
constitutional impropriety.” 499 U.S. at 23–24, 111 S.Ct.
at 1046. TXO, following dicta in Haslip, refined this
analysis by confirming that the proper inquiry is
“‘whether there is a reasonable relationship between the
punitive damages award and the harm likely to result
from the defendant’s conduct as well as the harm that
actually has occurred.’” TXO, 509 U.S. at 460, 113
S.Ct., at 2721 (emphasis in original), quoting Haslip, 499
U.S. at 21, 111 S.Ct. at 1045. Thus, in upholding the $10
million award in TXO, we relied on the difference
between that figure and the harm to the victim that would
have ensued if the tortious plan had succeeded. That
difference suggested that the relevant ratio was not more
than 10 to 1.
BMW, 517 U.S. at 581. In explaining the 10:1 ratio, the Court indicated in a
footnote that the lowest amount of potential harm in TXO would have been
$1,000,000. Id. at 581 n.34.
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In this case, the potential harm to Derek, had he lived and suffered
amputation or severe disability, could reasonably have exceeded $10,000,000. See
Soileau v. Smith True Value & Rental, 11-1594 (La.App. 3 Cir. 1/30/14), 130
So.3d 1060, writ denied, 14-435 (La. 4/17/14), 138 So.3d 627, where
compensatory damages of $9,429,758 (including $7,500,000 in general damages)
were awarded to a plaintiff whose right leg was shattered resulting in permanent
disability. See also Forbes v. Cockerham, 05-1838 (La.App. 1 Cir. 3/7/08), 985
So.2d 86, rev’d allocation of fault against DOTD, 08-762 (La. 1/21/09), 5 So.3d
839, awarding $10,800,00 in general damages to a child for traumatic amputation
of his left arm and fractures of the legs and ankles; and see Netecke v. State ex rel.
Dep’t of Transp. & Dev., 97-974 (La.App. 3 Cir. 4/1/98), 715 So.2d 439, rev’d
allocation of fault against DOTD, 98-1182 (La. 10/19/99), 747 So.2d 489,
awarding $7,944,200 for a plaintiff who suffered a partial leg amputation and other
injuries.
In considering the potential harm, even at $8,000,000, the resulting
ratio is 2.8:1, a number within even Exxon’s generalized upper limits, and well
below the due process requirements discussed by the Supreme Court in the
constitutional analyses outlined above. Accordingly, the jury’s verdict on punitive
damages is supported under the ratio analysis as well as the reprehensibility
analysis, the two most important factors to be considered.
Further, under TXO and under Louisiana law the wealth of the
defendant is a factor in determining an amount that would deter future commission
of the same actions and misconduct. See Mosing, 830 So.2d 967; see also Rachal,
111 So.3d 1137. We note in this case, where Eric Fetchko affirmed that Teleflex’s
worth in 2013 was over $4 billion, the punitive damage award of $23,000,000
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represents only 1/174 of the company’s worth. We now turn to the third BMW
guidepost.
Comparable Penalties
The final guidepost requires a comparison of the punitive damages
award to the civil or criminal penalties that could be imposed for comparable
misconduct. BMW, 517 U.S. 559. We can think of no statutes or codal authority
that impose monetary civil or criminal penalties for the deprivation of life that
occurred in this case. Some courts interpret this guidepost as calling for a
comparison with other punitive damage awards in order to satisfy the requirement
that the tortfeasor receive “fair notice” that his wrongful conduct could entail a
substantial punitive award when “penalties for comparable conduct are middling.”
Lee v. Edwards, 101 F.3d 805, 811 (2d Cir. 1996). In Flax v. DaimlerChrysler
Corp., 272 S.W.3d 521 (Tenn. 2008), cert denied, 556 U.S. 1257, 129 S.Ct. 2433
(2009), a product liability case, the plaintiffs were awarded $13,367,345 in
punitive damages for the wrongful death of a child, and the mother was awarded
$6,632,655 in punitive damages on her negligent infliction of emotional distress
claim. There was no negligent infliction of emotional distress claim in this case,
and the compensatory damages were nominal. By contrast, the compensatory
damages in Flax were $7,500,000; thus, the total award was approximately
$27,000,000. As repeatedly indicated by the Supreme Court above, higher
punitive damages are often warranted in cases involving nominal compensatory
damages. Accordingly, comparable cases demonstrate that the award here is
reasonable.
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For all of the reasons expressed above, we find that the punitive
damages awarded by the jury in this case do not violate constitutional due process
under the guideposts articulated in BMW, nor are they excessive under the
reasoning of Exxon. Accordingly, we affirm the judgments of the trial court in all
respects on the issues raised in appeal number 15-1113.
APPEAL NUMBER 15-838
Finally, we address the trial court’s decision to partially grant Mr.
Warren’s motion for JNOV and award him prejudgment interest on compensatory
damages, but deny the portion of the JNOV that sought prejudgment interest on
punitive damages. Mr. Warren appeals the judgment insofar as it denied
prejudgment interest on the punitive damages. Teleflex argues on appeal that
prejudgment interest is not allowed on either the compensatory or the punitive
damages. We conclude that Mr. Warren is entitled to prejudgment interest on
compensatory damages from the date of judicial demand, but is not entitled to
prejudgment interest on the award of punitive damages.
Applicable Law and Standard of Review
As previously discussed, because this case involves a watercraft
collision on navigable waters, it falls within the domain of general federal maritime
law. Yamaha Motor Corp., 516 U.S. 199. When a state court exercises
jurisdiction over maritime claims, that court is generally “bound to apply
substantive federal maritime statutory law and to follow United States Supreme
Court maritime jurisprudence.” Milstead v. Diamond M Offshore, Inc., 95-2446, p.
7 (La. 7/2/96), 676 So.2d 89, 94 (emphasis added). A law is “substantive” if it
“establishes new rules, rights and duties or changes existing ones.” Id. at 95. “On
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matters of procedure, however, the state court is generally free to follow the state’s
own rules.” Lejano v. Bandak, 97-388, p. 7 (La. 12/12/97), 705 So.2d 158, 163,
cert. denied, 525 U.S. 815 (1998). “A ‘procedural law’ is one that prescribes a
method for enforcing a substantive right and relates to the form of the proceeding
or the operation of the laws.” Milstead, 676 So.2d at 95.
The question of the applicable standard of review is procedural, and
it is governed by Louisiana law. Id. In this case, both parties seek review of the
trial court’s judgment partially granting and partially denying Mr. Warren’s motion
for JNOV on the issue of prejudgment interest. Normally, in reviewing a JNOV,
an appellate court must determine whether “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.” Anderson v. New Orleans
Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This is because a JNOV “should
be granted only when the evidence points so strongly in favor of the moving party
that reasonable men could not reach different conclusions[.]” Id. Yet, in this case,
on the matter of prejudgment interest, there was no evidence presented; there were
no facts or inferences that pointed in favor of either party. Since the
appropriateness of a JNOV is dependent on a jury’s findings of fact, and there was
none in this case, a motion for JNOV was the incorrect procedural device to use
here. Accordingly, we decline to use the traditional standard of review for a JNOV
to address the legal questions raised by the parties. Instead, we shall focus on the
substance, not the form, of Mr. Warren’s motion, which raised purely legal issues.
Questions of law are reviewed de novo. Wooley, 61 So.3d 507. Since the trial
court here ruled solely on legal questions, we review the trial court’s judgment de
novo.
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Prejudgment Interest on Compensatory Damages
We first address Teleflex’s argument that the trial court should not
have awarded Mr. Warren prejudgment interest on compensatory damages because
the issue of interest was never submitted to the jury. Teleflex claims that
prejudgment interest is an issue of fact that, in a jury trial, must be decided by the
jury; when Mr. Warren failed to submit the question of interest to the jury, the
court was precluded from awarding it. We find, however, that the applicable law
permitted the trial court to grant prejudgment interest on compensatory damages.
The issue of prejudgment interest is substantive, so this court must
first look to federal maritime law. Milstead, 676 So.2d 89. In general,
prejudgment interest on damages awarded in maritime cases is granted from the
date of loss. Mayo v. Nissan Motor Corp. in U.S.A., 93-852 (La.App. 3 Cir.
6/22/94), 639 So.2d 773, determination sustained, 94-1990 (La. 11/11/94), 644
So.2d 661. The trial court has some discretion to deny prejudgment interest, but
“only when there are ‘peculiar circumstances’ that would make it inequitable for
the losing party to be forced to pay prejudgment interest.” Noritake Co., Inc. v.
M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir. 1980). Teleflex does not
claim that there were any such “peculiar circumstances” here. Rather, Teleflex
claims that the trial court made a procedural error by granting prejudgment interest
when that issue was not considered by the jury. Since this concerns the method for
enforcing a party’s right to prejudgment interest, Louisiana procedural law applies.
See Milstead, 676 So.2d 89.
Teleflex asserts that Louisiana law requires the issue of prejudgment
interest in a jury trial to be submitted to the jury; if not, it cannot be awarded by the
judge. Teleflex relies on Ellender v. Texaco, Inc., 425 So.2d 291 (La.App. 3 Cir.
71
1982), and Morris v. Schlumberger, Ltd., 436 So.2d 1178 (La.App. 3 Cir. 1983),
writ denied, 441 So.2d 1221 (La.1983), where this court affirmed the decisions of
the trial courts to deny prejudgment interest when that issue had not been
submitted to the jury. However, neither of those cases was based on Louisiana
procedural law, but instead on Havis v. Petroleum Helicopters, Inc., 664 F.2d 54
(5th Cir. 1981). The Fifth Circuit in Havis did not cite Louisiana law either; rather,
that court based its decision to deny prejudgment interest on Robinson v.
Pocahontas, Inc., 477 F.2d 1048 (1st Cir. 1973). The First Circuit, naturally, did
not rely on Louisiana law in Robinson.
The procedural law of Louisiana is of overriding importance here
because La.Code Civ.P. art. 1812(A) states (emphasis added):
The court may require a jury to return only a
special verdict in the form of a special written finding
upon each issue of fact. In that event, the court may
submit to the jury written questions susceptible of
categorical or other brief answer, or may submit written
forms of the several special findings which might
properly be made under the pleadings and evidence, or
may use any other appropriate method of submitting the
issues and requiring the written findings thereon. The
court shall give to the jury such explanation and
instruction concerning the matter submitted as may be
necessary to enable the jury to make its findings upon
each issue. If the court omits any issue of fact raised by
the pleadings or by the evidence, each party waives his
right to a trial by jury of the issue omitted unless, before
the jury retires, he demands its submission to the jury.
As to an issue omitted without such demand the court
may make a finding, or if it fails to do so, it shall be
presumed to have made a finding in accord with the
judgment on the special verdict.
The plain language of the La.Code Civ.P. art. 1812(A) gives the trial judge in a
jury trial the discretion to rule on the issue of prejudgment interest when that issue
was raised by the pleadings, but not submitted to the jury. In this case, Mr. Warren
72
raised the issue of interest in his original and amended petitions. The trial judge
required the jury to return a special verdict form, but neither Mr. Warren nor
Teleflex asked that the issue of prejudgment interest be submitted to the jury.
Under La.Code Civ.P. art. 1812(A), the parties waived their right to have the issue
of prejudgment interest decided by the jury, and, therefore, it was within the
authority of the trial judge to award prejudgment interest. We determine that trial
judge’s award of prejudgment interest on compensatory damages in this case must
stand.7
Prejudgment Interest on Punitive Damages
We next address Mr. Warren’s argument that the trial judge erred in
denying the portion of his motion for JNOV requesting prejudgment interest on
punitive damages. Mr. Warren argues that there is no reason to deviate from the
general rule allowing prejudgment interest on awards in maritime cases when it
comes to punitive damages. After reviewing the relevant jurisprudence on
prejudgment interest, however, we find that the law does not allow Mr. Warren to
recover prejudgment interest on the award of punitive damages.
Once again, on the substantive issue of prejudgment interest, this
court must first look to federal maritime law. Milstead, 676 So.2d 89. And again,
we note that prejudgment interest on damages awarded under general maritime law
is generally allocated from the date of loss. Mayo, 639 So.2d 773. However, we
could not find any federal statute, nor any state or federal jurisprudence, directly
authorizing prejudgment interest on punitive damages awarded under general
7
The trial court award grants prejudgment interest on compensatory damages “from the
date of judicial demand until paid.” Generally, prejudgment interest on damages in maritime
cases is awarded from the date of loss. Mayo, 639 So.2d 773. However, this issue was not
raised by Mr. Warren in his motion for JNOV or on appeal, and we decline to address it now.
73
maritime law. On the other hand, several cases have cast doubt on the proposition
that federal maritime law permits prejudgment interest on punitive damages. See
e.g. McPhillamy v. Brown & Root, Inc., 810 F.2d 529 (5th Cir. 1987) (noting that
while the court did not need to decide if the plaintiff was entitled to prejudgment
interest on punitive damages, it was “at least highly doubtful” that he would have
been able to so recover); In re P & E Boat Rentals, Inc., No. 83-690, 1987 WL
5987 (E.D. La. Jan. 23, 1987), rev’d on other grounds, 872 F.2d 642 (5th Cir. 1989)
(finding that prejudgment interest was not permitted on the punitive damages
portion of a jury award to plaintiffs in an admiralty and maritime action); Jordan v.
Intercontinental Bulktank Corp., 621 So.2d 1141, 1158 (La.App. 1 Cir. 1993),
writs denied, 623 So.2d 1335, 1336 (La.1993), cert. denied, 510 U.S. 1094, 114
S.Ct. 926 (1994) (holding that an injured seaman could recover interest on punitive
damages only from the date of judgment). There are also non-maritime cases in
Louisiana state and federal courts where courts refused to award prejudgment
interest on punitive damages. See e.g. George v. Foster, 129 F.3d 610 (5th Cir.
1997) (finding that prejud
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