Jowers v. Lincoln Electric Co.

Case: 09-60396 Document: 00511216047 Page: 1 Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 26, 2010

No. 09-60396 Lyle W. Cayce

Clerk

ROBERT E. JOWERS; DONNA A. JOWERS

Plaintiffs - Appellees

v.

LINCOLN ELECTRIC COMPANY; BOC GROUP; ESAB GROUP, INC.

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Mississippi

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The BOC Group, Inc., the ESAB Group, Inc. (“ESAB”), and the Lincoln

Electric Company (“Lincoln”) (collectively, the “Manufacturers”) appeal the jury

verdict and judgment in favor of Robert and Donna Jowers (collectively,

“Jowers”) on Jowers’ failure-to-warn claim under Mississippi law. Specifically,

the Manufacturers argue the district court improperly instructed the jury on

their government contractor affirmative defense; improperly admitted certain

pieces of historical evidence at trial; and erred in refusing to permit any

apportionment of fault to Robert Jowers’ employer. Finally, the Manufacturers

argue the district court erred in denying their F ED. R. C IV. P. 50(b) motion for

judgment as a matter of law on punitive damages.

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I

From 1972 through 2005, Jowers worked as a shipfitter and, later, as a

supervisor and foreman for Ingalls, a U.S. Navy shipbuilding contractor.

Though he was never a full-time production welder, one of Jowers’ primary tasks

was mild-steel welding. He used “stick” and “wire” welding consumables during

his career, both of which emit fumes containing manganese in the welding

process. Manganese is a known neurotoxin, and inhalation of welding fumes

that contain manganese could result in serious neurological disease, such as

manganese-induced Parkinsonism (“MIP” or “manganism”). Jowers was exposed

to welding fumes from his own and others’ work for approximately six to seven

hours each day. Jowers testified that he had no knowledge during his career

that manganese in welding fumes could cause neurological injury, though the

Manufacturers presented evidence that they had conformed with the required

warning labels for manganese consumables during the duration of Jowers’ career

and had provided both him and Ingalls with material safety data sheets that

detailed specific chemical risks. Prior to bringing suit against the

Manufacturers, two neurologists diagnosed Jowers with MIP. His symptoms

include a tremor, affected speech, bradykinesia (slow movements), rigidity, and

poor balance. This disease is incurable, permanent, and progressive.

Based on the large number of welding fume cases in district courts, the

Judicial Panel on Multidistrict Litigation (“JPML”) created a multi-district

litigation (“MDL”) before Judge Kathleen M. O’Malley in the Northern District

of Ohio to coordinate welding fume cases for pre-trial proceedings. See In re

Welding Rod Prods. Liab. Litig., 269 F. Supp. 2d 1365 (J.P.M.L. 2003). Jowers’

suit against the Manufacturers, alleging a failure to warn regarding the dangers

of manganese neurotoxicity and manganism, is one of the MDL’s “bellwether

trials.” However, despite an earlier concession that venue in Ohio was proper,

Jowers requested remand of the case to his home district prior to trial. Judge

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O’Malley agreed, and the JPML remanded the case to the Southern District of

Mississippi, but Judge O’Malley continued to preside over the case by

designation.

Prior to trial, the district court denied the Manufacturers’ motion to

exclude historical documents that they alleged had no connection to Jowers’

claim. Jowers moved for summary judgment on the Manufacturers’ joint

tortfeasor defense, which the district court granted, finding that apportionment

of fault to Jowers’ employer, Ingalls, was barred as a matter of law. At the close

of evidence, the district court rejected the Manufacturers’ proposed jury

instruction on its government contractor defense. The district court also denied

the Manufacturers’ motion for judgment as a matter of law on punitive damages.

The jury found in favor of Jowers on his failure-to-warn claim and

awarded him $1,200,000 in compensatory damages and $1,700,000 in punitive

damages. The jury apportioned 40% of the fault to Jowers, thereby reducing the

compensatory award to $720,000. The district court denied the Manufacturers’

post-trial motions asking the court to set aside the compensatory and punitive

damages verdicts. The Manufacturers now appeal on four grounds: (1) the

district court erroneously instructed the jury on their government contractor

defense; (2) the district court improperly admitted evidence of historical

documents; (3) the district court erred by not permitting the jury to apportion

fault to Ingalls; and (4) the punitive damages verdict is insupportable.

II

The Manufacturers first contend the district court erred in instructing the

jury regarding the government contractor defense, which, if proven, would

immunize the Manufacturers from suit. We review a district court’s jury

instructions for abuse of discretion. Waco Int’l, Inc. v. KHK Scaffolding Houston,

Inc., 278 F.3d 523, 528 (5th Cir. 2002). “We afford trial judges wide latitude in

fashioning jury instructions and ignore technical imperfections.” Bender v.

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Brumley, 1 F.3d 271, 276 (5th Cir. 1993). However, “[r]eversal is . . . appropriate

whenever the charge as a whole leaves us with substantial and ineradicable

doubt whether the jury has been properly guided in its deliberations” and “the

challenged instruction . . . affected the outcome of the case.” Id. at 276–77

(internal quotation marks and citation omitted).

The government contractor defense preempts state law and provides a

total bar to liability in a failure-to-warn case if a defendant establishes three

elements: (1) the federal government exercised discretion and approved

warnings for the product; (2) the warnings the defendant provided about the

product conformed to the federal government specification; and (3) the defendant

warned the federal government about dangers known to the defendant but not

the government. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

The Manufacturers argue that the district court improperly added another

element to this defense in its jury instruction. Specifically, the district court

instructed the jury that for the government contractor defense to apply, the

Manufacturers must establish that “the United States Government had an

identifiable Federal interest or policy in the existence or methods of warnings on

welding products” and that “there was a significant conflict between this Federal

interest or policy and the requirements of Mississippi law regarding the

provision of adequate warnings.” The Manufacturers contend that this added

element erroneously required them to show physical impossibility to comply with

both the state law standard of care and the federal government’s specifications

in order to prevail on the government contractor defense.

The Supreme Court first recognized the government contractor defense in

Boyle, holding that federal law preempted state law to immunize government

contractors despite the absence of legislation specifically immunizing these

contractors from liability. 487 U.S. at 507. The Boyle court noted that without

a statutory mandate to do so, preemption of state law by federal law “will occur

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only where, as we have variously described, a ‘significant conflict’ exists between

an identifiable federal policy or interest and the operation of state law, or the

application of state law would frustrate specific objectives of federal legislation.”

Id. (internal quotation marks and citations omitted). The Manufacturers

acknowledge in their brief that a tension between state and federal interests

must exist for preemption to occur (making a government contractor defense

viable), but contend the Boyle court found that demonstrating the first two

elements of the defense would establish this conflict as a matter of law. Indeed,

after detailing the three-element test for determining whether immunity applies

in a government contractor defense, the Supreme Court stated:

The first two of these conditions assure that the suit is within the

area where the policy of the “discretionary function” would be

frustrated))i.e., they assure that the design feature in question was

considered by a Government officer, and not merely by the

contractor itself. The third condition is necessary because, in its

absence, the displacement of state tort law would create some

incentive for the manufacturer to withhold knowledge of risks, since

conveying that knowledge might disrupt the contract but

withholding it would produce no liability.

Id. at 512. If a plaintiff brings a failure-to-warn case alleging a failure to

conform to state law requirements, and the defendant subsequently establishes

that the federal government was involved in the decision to give (or not to give)

a warning and that the defendant complied with the federal government’s

provisions, there necessarily exists a conflict between state law and federal

policy in this area. See id. at 511–12; see also Kerstetter v. Pac. Sci. Co., 210 F.3d

431, 438 (5th Cir. 2000) (citing In re Air Disaster at Ramstein Air Base, 81 F.3d

570, 576 (5th Cir. 1996)). Thus, an additional instruction that the jury find a

“significant conflict” between federal interests and Mississippi law in the instant

matter is superfluous and forces the jury to construe an issue of law, which is

outside its purview as fact-finder.

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Jowers distinguishes Boyle on the grounds that it concerns a design defect

claim and not a failure-to-warn claim, but in this court’s decision in Kerstetter,

we applied the three elements of Boyle to a failure-to-warn claim without also

requiring a separate finding of “significant conflict” between state law and

federal policy. Kerstetter, 210 F.3d at 438 (finding “[s]tate law is displaced” if the

three Boyle elements are proven in a failure-to-warn claim). Jowers argues that

Kerstetter is inapposite because it involved a failure-to-warn claim that was

“part” of a design defect theory of liability. Regardless of the interplay between

the claims, Kerstetter analyzed the design defect and failure-to-warn claims

independently. The Kerstetter court did not require a separate finding of

“significant conflict” between federal interests and state law in its analysis of the

three Boyle elements under the failure-to-warn claim. Thus, based on the

holdings in Boyle and Kerstetter, neither of which require a “significant conflict”

element in the analysis of a government contractor defense, the district court

erred in instructing the jury on this issue.

However, this error is only reversible if “the challenged instruction . . .

affected the outcome of the case.” Bender, 1 F.3d at 277. Jowers argues that the

verdict need not be vacated because there was insufficient evidence to establish

that the Manufacturers met their burden of proving each of the three Boyle

elements. For the first Boyle element to apply, the federal government must

have “exercised discretion” by meaningfully participating in the drafting of the

warning. Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1479–81 (5th Cir.

1989). The government must not have merely “rubber stamped” the contractor’s

decisions; rather, there must be evidence in the record that the government

actually chose a warning through its discretion. Id. at 1480.

Jowers argues that the Manufacturers presented no evidence of a

“continuous back and forth review process” between the government and the

contractor, and that this demonstrates a lack of discretion on the part of the

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government. See Tate v. Boeing Helicopters, 55 F.3d 1150, 1154 (6th Cir. 1995).

Separate evidence of a dialogue between the government and the contractor is

needed when the government approves rather than prepares a warning because

the government’s mere acceptance of a manufacturer’s warning does not

establish its interest in that particular warning. Kerstetter, 210 F.3d at 435.

Jowers presented evidence at trial that the national consensus standard for

manganese fume warnings was developed by the Manufacturers as members of

the American Welding Society (“AWS”) and later adopted by the Secretary of

Labor under the Occupational Safety and Health Act (“OSHA”).1 This warning

did not mention the serious neurological hazards known to some of the

Manufacturers in the ‘60s when the warning was first promulgated))and, in

fact, the Secretary of Labor has not issued an updated regulation to change the

mandatory “minimum” warning language. Likewise, the warning issued by the

United States Navy agency NAVSEA in 19812 is substantially similar to the

language the entire welding consumable manufacturing industry had voluntarily

adopted as their own in 1979.3 Compliance with a minimum standard which the

Manufacturers themselves initially drafted does not indicate that the

government exercised discretion and meaningfully participated in crafting the

warning.

1

This warning states, in pertinent part: “CAUTION Welding may produce fumes and

gases hazardous to health. Avoid breathing these fumes and gases. Use adequate

ventilation.”

2

This warning states, in pertinent part: “WARNING: Protect yourselves and others.

Read and understand this label. FUMES AND GASES can be dangerous to your health. . . .

Keep your head out of the fumes. Use enough general ventilation or exhaust at the arc or both

to keep fumes and gases form your breathing zone and the general area.” MIL-spec MIL-E-

24403A(SH), § 5.3.1 (Dec. 21, 1981).

3

This warning states, in pertinent part: “FUMES AND GASES can be dangerous to

your health. Keep your head out of fumes. Use enough ventilation or exhaust at the arc or

both. Keep fumes and gases from your breathing zone and general area.”

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With regard to the second Boyle element, the Manufacturers are required

to provide warnings about the dangers of mild-steel manganese weld fumes that

conform to federal government specifications. Kerstetter, 210 F.3d at 438.

However, for a period of time the Manufacturers added language about

avoidance of “excessive” fumes and “concentrations” of fumes that weakened the

warnings, causing them to fall below the government-required minimum

warning. Jowers’ warning expert testified that these words weakened the effect

of the warning, suggesting that a welder might be able to breathe more fumes,

or even any fumes, and still avoid negative health effects. Thus, the

Manufacturers’ warnings did not wholly conform to federal government

specifications.

As to the third Boyle element, Jowers argues that there is no evidence that

the Manufacturers shared with the government their own internal admissions

about the real risks of welding, nor that the government was aware of such risks.

However, the Manufacturers offered testimony showing that the Navy was

“sophisticated” and had “state-of-the-art knowledge” regarding the hazards

posed by welding fumes and how to protect against them. The Manufacturers

also point out that the government has, in the past, funded large-scale studies

of welders assessing the potential risk of neurological injury. While the studies

the Manufacturers cite date to 1941 and the aftermath of World War II, these

studies at the very least indicate some government awareness of the possibility

of neurological hazards from welding. In short, the Manufacturers contend there

were no welding dangers known to them but not to the government, and that

therefore there was no need to convey any additional information about the

dangers of manganese welding fumes.

This argument is unpersuasive. While the jury may have concluded that

the government knew everything the defendants did, the Manufacturers have

not presented testimony that they shared any of their internal information

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regarding welding fume hazards with the government, much of which

demonstrated a deeper knowledge of potential harms from manganese

inhalation than the approved warnings encompassed.

Accordingly, we find the district court failed to properly instruct the jury

on the elements of the government contractor defense, but as the Manufacturers

failed to elucidate a factual basis for the defense, this error was harmless.

III

The Manufacturers contend that the district court erred by allowing

Jowers to introduce evidence of documents and testimony related to conduct that

had nothing to do with the actual warnings Jowers and his employer received.

These internal documents, one of which dates back to 1949, related to hazards

associated with fluorides and high-manganese consumables, substances which

the Manufacturers argued were not at issue in this case and therefore made the

documents irrelevant to the instant litigation. Nevertheless, the district court

denied the Manufacturers’ motion in limine because it believed that historical

documents in general were relevant to “show knowledge that existed in the

industry and that would have carried over to that later point in time.” The

Manufacturers argue that Jowers only admitted these documents to suggest that

any prior misconduct is evidence that, more than twenty years later, the

Manufacturers continued to engage in misconduct affecting Jowers.

We review a district court’s evidentiary rulings for abuse of discretion.

Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir. 2008). Any

error in the admission or exclusion of evidence “should not be the basis for

setting aside the judgment” unless “the substantial rights of the parties were

affected.” EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (citing F ED. R. C IV.

P. 61). Moreover, where the trial judge “has conducted, on the record, a carefully

detailed analysis of the evidentiary issues and the court’s own ruling, appellate

courts are chary about finding an abuse of discretion.” Kelly v. Boeing Petroleum

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Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995). Here, the district court judge has

been reviewing these documents since 2005, when she conducted over two days

of document-admissibility hearings, culminating in an extensive written opinion.

See Ruth v. A.O. Smith Corp., 615 F. Supp. 2d 648, 650–51 (N.D. Ohio 2005).

Accordingly, we give the district court’s judgment on these evidentiary issues

considerable deference. See Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir. 2000)

(“The considerable deference accorded to the judgment of the district court is

heightened where the trial judge’s experience has imparted to the judge a

particularly high degree of knowledge.”).

Federal Rule of Evidence 402 excludes from admission any evidence that

is not relevant. Rule 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” The pertinent portion of the Mississippi Products

Liability Act (“MPLA”) governing Jowers’ failure-to-warn claim states that a

claimant must prove

by the preponderance of the evidence that at the time the product

left the control of the manufacturer or seller, the manufacturer or

seller knew or in light of reasonably available knowledge should

have known about the danger that caused the damage for which

recovery is sought and that the ordinary user or consumer would not

realize its dangerous condition.

M ISS. C ODE A NN. § 11-1-63(c)(i) (2004). Per the MPLA’s plain language, critical

to the court’s inquiry into a failure-to-warn claim is the question of what the

Manufacturers knew and what knowledge was reasonably available to them. As

knowledge accumulates over time, prior knowledge of harm that predates

Jowers’ employment is relevant to a question of current knowledge. See, e.g.,

Noah v. Gen. Motors Corp., 882 So. 2d 235, 237–39 (Miss. Ct. App. 2004)

(“[E]vidence of prior accidents has long been admissible in state courts for . . .

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the purpose of showing the existence of a dangerous condition.” (citations

omitted)).

The Manufacturers argue that the documents, dated up to two decades

prior to Jowers’ employment, are too remote in time to be relevant to the

knowledge the Manufacturers had about the dangers of manganese fumes. This

court has previously rejected such an argument in Jackson v. Johns-Manville

Sales Corp., 750 F.2d 1314, 1317–19 (5th Cir. 1985). The Jackson defendants

sought to exclude documents as irrelevant in a failure-to-warn case regarding

asbestos because the documents were written twenty years prior to the plaintiff’s

commencement of work. The court was not persuaded by this argument, noting

that “[e]vidence that the defendants had such knowledge in 1935 clearly makes

[the plaintiff’s] allegation that the dangers of the asbestos products were

foreseeable in 1953 more probable than it would have been without such

evidence.” Id. at 1319. The same argument supports admission of the instant

documents: they are relevant to knowledge of the danger of welding fumes in the

industry in the twenty years prior to Jowers’ employment.

The Manufacturers also argue that the substances (fluorides and

high-manganese consumables) discussed in the documents are too far removed

from the mild-steel welding substances at issue in the instant matter for the

documents to be relevant. However, these documents go to the Manufacturers’

knowledge of the dangers of working with all potentially hazardous types of

welding products and the fumes these products create. In Jackson, the

defendants argued that the documents they sought to exclude had “no probative

value” because they referred only to workers who were exposed to raw asbestos,

whereas the plaintiff “worked solely with finished asbestos products.” Id. at

1318. This court concluded that the documents were admissible because they

were “at least suggestive of the fact that other groups of workers who were also

exposed to asbestos fibers face similar dangers.” Id. Following Jackson, we

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likewise conclude that whether knowledge of the harms from the consumables

at issue in the instant documents is probative of the Manufacturers’ failure to

warn Jowers of the harms involved in his mild-steel welding work goes to the

weight of the evidence, not its admissibility. See id.

Alternatively, the Manufacturers argue that these documents are

extremely prejudicial and thus should have been excluded under Federal Rule

of Evidence 403, which permits exclusion of relevant evidence if its probative

value is substantially outweighed by the danger of unfair prejudice. “Relevant

evidence is inherently prejudicial; but it is only [u]nfair prejudice, [s]ubstantially

outweighing probative value, which permits exclusion of relevant matter under

Rule 403.” United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). The

Manufacturers contend that these documents generally, and the 1949 fluoride

memorandum in particular, were introduced for the sole purpose of arguing that

at least one manufacturer put profits ahead of safety, despite the fact that this

company included warnings on its products prior to Jowers’ joining the welding

workforce.

However, the Manufacturers’ arguments that they gave sufficient

warnings regarding the potential harms of their products open the door to an

examination of the quality of their welding fume warnings more generally,

including warnings about substances (such as fluorides or high-manganese

consumables) not directly implicated in this action. The motivations for deciding

not to include a warning regarding welding fumes of any kind are directly

relevant to the instant matter and not unduly prejudicial. For instance, the

Manufacturers’ expert witness, Dr. Jane Welch, testified that the warnings on

welding products in 1967 were state-of-the-art and “cutting edge,” in part,

because “manufacturers were not anticipating putting warnings on their

products” at that time. Evidence that some members of the welding industry

had warnings on their products as far back as the 1940s, which were later

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removed due to concerns about the financial implications of such warnings, is

directly relevant to rebut this testimony. Accordingly, given the relevance of

these documents to Jowers’ failure-to-warn claim under Mississippi law, the

district court did not abuse its discretion in admitting them over the

Manufacturers’ objection.

IV

The Manufacturers contend that the district court erred in refusing to

permit the jury to apportion fault to Jowers’ employer, Ingalls, and that

therefore the compensatory verdict must be vacated. Specifically, the

Manufacturers argue that the district court erred in finding that Jowers’

eligibility for benefits under the Longshore and Harbor Workers’ Compensation

Act (“LHWCA”), 33 U.S.C. §§ 901 et seq., precluded the ordinary operation of

Mississippi’s joint tortfeasor law.4 We review de novo the legal issue of whether

the district court properly ruled that the Manufacturers’ joint-tortfeasor defense

was foreclosed. Fontenot v. Dual Drilling Co., 179 F.3d 969, 972 (5th Cir. 1999).

LHWCA guarantees workers’ compensation for qualified beneficiaries, like

Jowers, who are injured while assisting in the construction of large ships on or

near federal navigable waters. Accordingly, a person who receives LHWCA

benefits may not sue his employer under state law for any additional

compensatory damages related to his on-the-job injury. See 33 U.S.C. §§ 905(a),

4

As a threshold matter, Jowers contends that the Manufacturers have waived this

argument by failing to present it to the district court in response to Jowers’ motion for

summary judgment on this issue. Jowers points to Ruth, in which the district court initially

ruled that Mississippi law precluded the allocation of fault to that plaintiff's employer because

he was covered by LHWCA. Jowers argues that the Manufacturers have never previously

contended, as they do now, that the Ruth court’s ruling was erroneous.

However, the district court expressly incorporated its Ruth rulings into the instant

record, which includes all rulings in earlier cases. The Manufacturers’ argument here is the

same argument it advanced in Ruth: that Mississippi’s apportionment rule, which permits

allocation of fault to immune joint tortfeasors, applies notwithstanding LHWCA’s proscription

against suing the beneficiary’s employer for damages. Accordingly, the Manufacturers have

preserved this argument for appeal.

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933(i); Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001)

(LHWCA “provides nonseaman maritime workers . . . with no-fault workers’

compensation claims” and “expressly pre-empts all other claims.”). Though an

injured LHWCA beneficiary cannot sue his employer for damages related to his

injury, the statute permits the employee to sue a third party that contributed to

his injury. At issue in Ruth, a prior case in the MDL whose rulings were

incorporated into the instant matter, was whether any verdict against such a

third-party defendant can be reduced by the amount of fault attributable to the

immune employer. 416 F. Supp. 2d at 587.

The Manufacturers argue that the district court erred in its interpretation

of federal and Mississippi law by determining that LHWCA prevented the jury

from apportioning any of the fault to Ingalls. The district court analyzed three

key cases to come to this conclusion: Fontenot; Accu-Fab & Construction v.

Ladner, 778 So. 2d 766 (Miss. 2001); and Mack Trucks, Inc. v. Tackett, 841 So.

2d 1107 (Miss. 2003), which overruled Accu-Fab in part.

In Fontenot, this court held that allocation of fault between an employer

and a third-party defendant under LHWCA depends on “whether the third party

. . . is a vessel or is a non-maritime entity.” 179 F.3d at 974. If the third party

is a “vessel,” then LHWCA provides that the employee may bring a “third-party

cause of action against [the] vessel based on negligence.” Id. at 975. In such a

case, “the employer shall not be liable to the vessel for such damages directly or

indirectly.” Id. at 974 (quoting 33 U.S.C. § 905(b)). However, if the third-party

defendant is a “non-maritime entity” (anything other than a “vessel”), LHWCA

is silent on the question of allocation of fault and the employee’s claim against

a non-maritime entity necessarily depends on the relevant state law’s allocation

of fault. Id. at 976. In the instant matter, because the third-party

defendant))Ingalls))is not a vessel, we must look to Mississippi law to

determine whether the court may allocate fault to Ingalls.

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In so doing, the district court proceeded to analyze the Mississippi

Supreme Court case Accu-Fab. Despite the Fontenot holding that state law

allocation of fault should be applied where the third-party defendant is a

non-vessel, Accu-Fab referred back to LHWCA and federal law to hold that

“federal maritime standards govern” even though no vessels were involved in

that dispute. Ruth, 416 F. Supp. 2d at 589 (quoting Accu-Fab, 778 So. 2d at

769–70). This interpretation of LHWCA is incorrect under Fontenot. Indeed, the

district court noted that this analysis is somewhat circular because it “assume[s]

that, if LHWCA benefits are paid, a vessel must be involved, so the trial court

should not assess the fault of the employer and should not reduce an award

accordingly.” Id. at 590. Moreover, the Accu-Fab court noted in dicta that it

“would reach the same conclusion even if [LHWCA] was not implicated,”

determining that § 85-5-7 would not permit apportionment of fault to immune

parties.

However, a subsequent Mississippi Supreme Court case, Tackett,

reaffirmed that M ISS. C ODE A NN. § 85-5-7 permits apportionment of liability not

only to settling defendants, but also to immune defendants, and consequently

overruled Accu-Fab’s dicta in pertinent part. 841 So. 2d at 1115. Perplexingly,

however, the Tackett court found that “[t]he holding in Accu-Fab was predicated

on the controlling precedents of federal case law, since [the employee] was a

beneficiary under [LHWCA],” and that therefore § 85-5-7 was inapplicable in

that case. Id. at 1115 n.2. The district court below noted that this analysis

seemed faulty in light of Fontenot, but found that it “cannot correct the

Mississippi Supreme Court’s reasoning by fiat, nor ignore its reaffirmation in

[Tackett] of Accu-Fab’s result.” Ruth, 416 F. Supp. 2d at 592. Consequently, the

district court held that in Mississippi, “when an employee covered by LHWCA

sues a third party for damages, the trial court does not apportion fault to the

employer.” Id. (emphasis in original).

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Neither party disputes that Fontenot controls the instant case. However,

the Manufacturers contend that the district court in Ruth improperly followed

Accu-Fab rather than Mississippi law, which states that “[i]n actions involving

joint tort-feasors, the trier of fact shall determine the percentage of fault for each

party alleged to be at fault without regard to whether the joint tort-feasor is

immune from damages.” M ISS. C ODE A NN. § 85-5-7(5). A 2002 amendment to

this statute was a reaction to the Mississippi Supreme Court’s holding in

Accu-Fab, which the legislature found to have misconstrued the “original intent”

of the statute. Tackett, 841 So. 2d at 1114 n.1. A federal court sitting in

diversity is not “bound under Erie . . . to defer [to state courts] on issues of

federal law,” FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63 (1st Cir.

2008), even when the state court is deciding whether its own laws are preempted

by federal law. Osterneck v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 841

F.2d 508, 511 (3d Cir. 1988), abrogated on other grounds by Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988). In light of Fontenot

and § 85-5-7(5), Mississippi law supports allocation of fault to immune parties,

such as an employer in a non-vessel LHWCA claim, and the district court should

not have deferred to the Mississippi Supreme Court’s improper LHWCA

analysis.

Jowers contends that even if the district court’s refusal to permit the jury

to apportion fault to Ingalls was incorrect, any error therefrom was harmless.

Jowers argues that the Manufacturers’ own industrial hygiene expert testified

that Ingalls should bear no fault in the litigation. However, this witness simply

testified that he did not personally know of evidence that Ingalls failed to adhere

to their established policies and procedures. The mere fact that one witness

lacked knowledge of Ingalls’ potential fault in the litigation does not prove that

no such fault existed.

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Jowers also argues that the Manufacturers had the opportunity to present

the “sophisticated user” affirmative defense, for which the jury was instructed:

“The defendants claim that a warning about the threat of neurological injury

was unnecessary because the defendants had reason to believe that [Ingalls]

already knew, or had reason to know, about this danger, and would

communicate that danger to Mr. Jowers.” The jury rejected this defense, which

includes the “knew or had reason to know” element that corresponds with the

“foreseeability” element in a negligence action and for apportionment of fault.

See Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 924 (Miss. 2006)

(discussing foreseeability requirement in the allocation of fault and noting that

“to be held negligent, an injury must be ‘reasonably foreseeable’” (citation

omitted)). Thus, Jowers argues the sophisticated user defense instructed the

jury to consider whether Ingalls could foresee Jowers’ injuries, a central element

in the Manufacturers’ negligence theory. Because the jury rejected the

sophisticated user defense and its constituent elements, Jowers contends the

zero-fault allocation to Ingalls had no effect on the verdict.

However, the jury’s rejection of the sophisticated user defense does not

necessarily mean that they rejected any apportionment of fault to Ingalls. The

district court instructed the jury on the three elements of the sophisticated user

defense as follows, noting that the Manufacturers had to prove all three

elements by a preponderance of the evidence:

(1) [Ingalls] received adequate warnings and instructions from [the

Manufacturers], or had the same level of expertise and knowledge

about the dangers of welding fumes as did [the Manufacturers]

themselves;

(2) [Ingalls] could be reasonably expected to convey that information

to Mr. Jowers; and

(3) at the time [the Manufacturers] were selling to the employers

the products that allegedly injured Mr. Jowers, [the Manufacturers]

themselves had reason to believe that [Ingalls] had this knowledge

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No. 09-60396

and expertise about neurological injury and welding fumes, and had

reason to believe that [Ingalls] would convey that information to Mr.

Jowers.

The jury could have rejected the sophisticated user defense on any one of these

elements, not merely the foreseeability element. Thus, the jury readily could

have decided that Ingalls was not sufficiently “sophisticated” to absolve

defendants of any duty to warn, but had they been instructed on apportionment

of fault, the jury may have determined that Ingalls bore some responsibility for

Jowers’ injury. Indeed, the jury found Jowers 40% at fault for his own injuries.

It is entirely conceivable that the jury may have found that Ingalls, which was

responsible for providing Jowers with a safe workplace, shared some fault as

well. Evidence at trial demonstrated that welding fume exposure levels at

Ingalls sometimes exceeded regulatory limits, and that Ingalls did not teach

welders about the individual chemicals comprising a welding fume, but rather

about the fume in general. This evidence might indicate a failure to provide a

safe working environment or complete knowledge about the possible dangers of

the working environment. Moreover, this court has, in the past, affirmed

allocation of fault to an employer despite rejection of the sophisticated user

defense. See In re Incident Aboard the D/B Ocean King, 813 F.2d 679, 687–89

(5th Cir. 1987) (affirming allocation of 55% fault to employer despite rejection

of sophisticated user defense), amended on other grounds, 877 F.2d 322 (5th Cir.

1989). Accordingly, the district court’s improper refusal to instruct the jury on

a joint-tortfeasor defense permitting allocation of fault to Ingalls was not

harmless error, and we vacate the compensatory damages verdict.

V

Finally, the Manufacturers argue that district court erred in denying their

motion for judgment as a matter of law on punitive damages. We need not

address the merits of this issue because our vacating the compensatory damages

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verdict requires that we also vacate the punitive damages verdict. Further,

because our ruling in Part IV requires Ingalls’ allocation of fault, if any, we

remand for retrial on the issues of compensatory and punitive damages,

including, but not limited to, the threshold issue, on this new record, of whether

the claim for punitive damages should be submitted to the jury.

VI

For the foregoing reasons, we affirm the jury’s finding of liability against

the Manufacturers because the district court’s error in instructing the jury on

the Manufacturers’ government contractor defense was harmless, and the

district court properly admitted the historical evidence at trial. However, we

vacate both the compensatory and punitive damages awards and remand this

case for a new trial on damages that includes a jury instruction permitting

allocation of fault to Ingalls. We also vacate Jowers’ fees award, which rests

exclusively on the punitive damages verdict. See Pride Oil Co. v. Tommy Brooks

Oil Co., 761 So. 2d 187, 192 (Miss. 2000) (finding that “fees are not recoverable

absent proof of conduct which would permit an award of punitive damages”).

Finally, we must admonish Jowers’ counsel for alleging in the briefing that

the Manufacturers “misrepresented” the record. Misrepresentation of the record

is a very serious charge and this court does not take such allegations lightly.

This was a highly contested case with compelling evidence supporting both sides’

arguments. The Manufacturers were within their right to present evidence in

their briefing as persuasively as possible, which in no way constitutes a

misrepresentation of the record. We caution Jowers’ counsel against making

such unfounded claims in the future.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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