Petition — Rucker Co. v. Shell Oil Co.

NO. 80 - “383 2 Supreme Court, U.S.

FILED

| SEP 26 1980

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

THE RUCKER COMPANY

Petitioners

VERSUS

SHELL OIL COMPANY, GARDNER-DENVER COMPANY,

AND HAROLD LEE ENGINEERING COMPANY

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMES E. DIAZ

ONEBANE, DONOHOE, BERNARD,

TORIAN, DIAZ, MCNAMARA & ABELL

666 Jefferson Street

Lafayette, Louisiana 70502

(318) 237 - 2660

Counsel for Petitioner

The Rucker Company

|<

QUESTION PRESENTED

Whether the decision of the United States Court of Appeals

reversing the directed verdict in favor of The Rucker Company,

was arbitrary and capricious, and so far departed from normal

judicial process as to constitute a denial of due process.

Y

The following parties were involved in this case but did not

appeal this decision with reference to petitioners, thus are not

pertinent to this appeal;

Ernest J. Ramos, Leon C. Fontenot, Booker Drilling Company,

Inc., Liberty Mutual Insurance Company, Hartford Accident

and Indemnity Company, Livingston Corporation, Gulf States

Fishing and Rental Tools, Inc., Oil Field Rental Service Com-

pany, Stewart and Stevenson Services, Inc., and Pittsburgh

Testing Laboratories.

TABLE OF CONTENTS

Page

Ae Sd pk eevee eh sep eke as eek ees i

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FOP TEE eee ET EER PY 2

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A Sa a 2

Cee ee kg 6 kw tin Wb & 0.8 So 86 84 e we we 4

Jurisdiction of The Court Below ...............2.02000- 7

Reasons For Granting Writs .............. 02002 c eee eeee 7

I. THE STANDARD BY WHICH DI-

RECTED VERDICTS ARE GRANT-

ED IS AN IMPORTANT QUESTION

eign ob a hwete Wee eee verses ese 7

Il. THE UNITED STATES COURT OF

APPEALS IN REVERSING THE

TRIAL COURTS DIRECTED VER-

DICT IN FAVOR OF PETITIONER

SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE

IN JUDICIAL PROCEEDINGS AS

TO CALL FOR AN EXERCISE OF

THIS HONORABLE COURT'S

POWER OF SUPERVISION ..................0.. 9

Ill. THE DECISION OF THE UNITED

STATES COURT OF APPEALS WAS

li

TABLE OF CONTENTS CONTINUED

Page

SO ARBITRARY AND CAPRICIOUS

AS TO CONSTITUTE A DENIAL OF

PR iin sae wea Vb nee eee vod ee 12

I tacos: Soa Cae eee Meee ena Sek ee rewrs 15

fk kg PROPEL ETRE T OPEL URR TT: Tera 16

SE hry, Lack ng Wee Cet ke ERR has Cee A-1

SB Sh tac Aaa civ ek Tae ee A-2

SI os Nk sews WN Ok kw Rd ee ees A-24

TABLE OF AUTHORITIES

Page

CASES:

Aetna Casualty & Surety Co. 122 F. 2d 350

EI I a) A es gy area fy wks. wy Basa 8

Armstrong v. Commerce Tankers Corp. 311

F. Supp. 1236, aff'd 423 F.2d 957 (2nd

Cir.), cert denieu 91 S. Ct. 67, 400 U. S.

es ee Gis ee PT og ks ha ee ves eee 9

Brady v. Southern Railway Company, 64S. °

Ct. 38, 320 U. S. 476, SB L. Ed. 239 C5943) ... icc aee 10

Canty v. Board of Education, City of New

York, 312 F. Supp. 254 (S.D.N.Y., 1970) ............. 12

Galloway v. United States, 63 S. Ct. 1077,

Bee Oey Oras A Bc es POOLED 5 ccc cie ee ceenss 10

Gunning v. Cooley, 50 S. Ct. 231, 281 U. S.

en ee oe a ae Va eae ews we)

Hart v. Blakemore, 410 F. 2d 218 (Sth Cir., 1969) ......... 9

Martin K. Eby Construction Company uv.

Neely 344 F. 2d 482 (10th Cir.) aff'd

87 S. Ct. 1072, 382 U. S. 914, 15 L. Ed.

MP bs AR ee ry dS iy a pia 8 11

Mooney v. Stainless, Inc. 338 F. 2d 127

(6th Cir.) cert. denied 85 S. Ct. 1561,

ae Se ee yk) er re 9

iv

TABLE OF AUTHORITIES CONTINUED

CASES:

Petition of Atluss 350 F. 2d 592 (7th Cir.)

cert. denied

Muth v. Atlass, 86 S. Ct. 551, 382 U.S. 988,

TP ae OD 6 ow hing wae beh Bw eo ale

Rutherford v. Central Illinois Railroad 278

F. 2d 310 (Sth Cir.) cert. denied, 81 S. Ct.

OR Re eer ry

Whitney v. Brann 394 F. Supp. 1, aff'd 530

F. 2d 966 (3rd Cir.), cert. denied 96 S. Ct.

2628, 426 U. S. 922, 49 L. Ed. 2d 374

(1976), rehearing denied 97 S. Ct. 194,

ee Ose Og Oe Be WO. BORIS on cca iceen

Wilkerson v. McCarthy 69 S. Ct. 413, 336

we eg eR a) Seen

Wood v. Conneaut Lake Park, Inc. 386 F. 2d

Se Rs BED 6A cbc cee eeeetcaeeeane

Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO:

ERNEST J. RAMOS AND LEON C, FONTENOT

VERSUS

BOOKER DRILLING COMPANY, INC., LIBERTY

MUTUAL INSURANCE COMPANY, HAROLD LEE

ENGINEERING COMPANY, GARDNER - DENVER

COMPANY, SHELL OIL COMPANY, LIVINGSTON

CORPORATION, GULF FISHING AND RENTAL TOOLS,

INC., OIL FIELD RENTAL SERVICE COMPANY,

STEWART AND STEVENSON SERVICES,

INC., THE RUCKER COMPANY AND PITTSBURGH

TESTING LABORATORIES

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Rucker Company, a defendant in the captioned cause

respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on April 11, 1980 (original

decision) and on June 30, 1980 (per curiam denial of rehearing).

CITATIONS TO OPINIONS BELOW

The judgment and opinion of the District Court are unreport-

ed and are reproduced in the supplement at Appendix 1, Brief

page A-1. The opinion of the United States Court of Appeals

for the Fifth Circuit dated April 11, 1980, (Circuit Judges

Tuttle, Fay and Thomas), is reproduced in the supplement

beginning at Appendix 2, Brief page A-2 and is reported in 615

F. 2d 334. The opinion of the United States Court of Appeals

for the Fifth Circuit denying rehearing, dated June 30, 1980,

is reproduced in the supplement beginning at Appendix 3, Brief

page A-24.

JURISDICTION

The opinion of the United States Court of Appeals for the

Fifth Circuit denying rehearing in this cause was entered on

June 30, 1980. This petition of certiorari was filed within

ninety (90) days of that date. This Court’s jurisdiction is

invoked under 28 U. S. C. Section 1254(1), 62 Stat. 928.

STATEMENT OF THE CASE

Plaintiffs, Ernest Ramos and Leon Fontenot instituted

proceedings in the United States District Court for the Western

District of Louisiana to recover damages for personal injuries

allegedly sustained as a result of the collapse of the mast of an

offshore oil-drilling rig. Plaintiffs sued:

1) Harold Lee Engineering Company (mast manu-

facturer)

2) Shell Oil Company (platform owner)

’%

3)

4)

5)

6)

7)

8)

Gardner-Denver Company (vendor of the mast)

Bethlehem Steel (supplier of some steel in the

mast)

The Rucker Company (manufacturer of the blow-

out preventer)

Oil Field Rental Service Company (lessor of the

blowout preventer)

Tideland Welding Services

Schlumberger Offshore Services

By intervention and third party practice, other parties

were added:

1)

2)

3)

Booker Drilling Company’s (the employer work-

men’s compensation insurer, Liberty Mutual

Insurance Company

Stewart and Stevenson Se.vices, Inc. (manufactur-

er of the accumulator system that was used to

operate the blowout preventer)

Livingston Corporation (formerly Gulf States

Fishing and Rental Tools, Inc.)

By other third party pleadings, other parties were joined but

were dismissed by summary judgments which have become

final and are not material to the case as it presently exists.

By the time the Trial on the Merits took place on July 6,

1977, the only remaining parties to the trial were Shell Oil

Company, Gardner-Denver Company, Harold Lee Engineering,

The Rucker Company and Stewart and Stevenson Services.

a

At the conclusion of all of the evidence in the principal demand

and all of the evidence gy third party plaintiffs, the trial court,

on the basis that there was no evidence on which to establish

a cause of action, granted a directed verdict in favor of The

Rucker Company and Stewart and Stevenson Services, Inc.

The jury, at the conclusion of the trial, found in favor of the

remaining defendants because only Booker Drilling Services,

the plaintiffs employer and immune from tort liability, was

alone guilty of negligence.

Plaintiff perfected an appeal against the other defendants,

but dismissed their appeal against The Rucker Company,

petitioner herein, recognizing that there was no evidence in

the record of any fault against petitioner. However, Shell,

Gardner-Denver and Harold Lee perfected a “‘protective appeal”

against petitioner herein. On appeal, the United States Court

of Appeal for the Fifth Circuit found that evidence of failures

of other masts designed by Harold Lee Engineering had been

improperly excluded and reversed and accordingly remanded

the jury’s verdict for a new trial as to Harold Lee Engineering

and Gardner-Denver. The Court sustained the summary judg-

ment granted to Oil Field Rentals. The Court reversed and

remanded the jury’s verdict with respect to Shell, finding that

it could be held liable under a Louisiana Law theory of strict

liability. Then without discussion, ordered “other final judg-

ments are REVERSED; and the matter remanded for trial.”

A Petition for Rehearing was filed on behalf of The Rucker

Company on the basis that the facts in the record dictated

that the judgment rendered by the District Court in its favor

be affirmed, but this petition was denied.

FACTS

The drilling crew, which included the plaintiffs, Messrs.

Ramos and Fontenot, was drilling a well for Shell Oil Company

on a platform located on the Outer Continental Shelf in the

Gulf of Mexico off the Louisiana Coast. As the driller was

-4-

4

pulling the pipe out of the hole, the pipe was blocked, either

because the driller was negligent: the rams, manufactured by

Rucker, malfunctioned; or the closing unit, manufactured by

Stewart and Stevenson, malfunctioned. The jury found in

answering Jury Interrogatory Number Five, that the driller was

negligent, this caused the blockage of the pipe, and the block-

ing of the pipe caused the derrick to collapse.

The plaintiffs sued Shell Oil Company as platform owner,

Harold Lee Engineering Company as the derrick manufacturer.

Gardenr-Denver Company as seller of the derrick, The Rucker

Company which manufactured the blowout preventers, Oil

Field Rental, which was the lessor of the blowout preventer

stack, Bethlehem Steel Manufacturers, which had manufactured

some of the steel which was in the mast, Tidelands Welding

Services, Inc. and Schlumberger Offshore Services.

The Trial on the Merits began July 6, 1977 and lasted almost

two weeks. A total of twenty-eight (28) witnesses, lay-persons

and experts, testified on behalf of the palintiffs, third party

plaintiffs and intervenors. Not a single one of these witnesses

testified that the blowout preventers manufactured by The

Rucker Company had malfunctioned. To the contrary, the

evidence established that:

a) The blowout preventers worked perfectly before

the accident.

b) The blowout preventers were checked immediate-

ly after the accident and were found to be in per-

fect condition.

c) The blowout preventers were checked immediate-

ly after the accident and worked perfectly.

d) The blowout preventers were used to complete

taking the string out of the hole after the accident

i

'%

without any incident whatsoever.

e) The blowout preventers then went on to another

job for Shell Oil Company and worked perfectly,

f) The blowout preventers were dismantled and

checked by all interested parties, including Shell

Oil Company and Booker Drilling Company

approximately a month after the accident and were

found to be in perfect condition.

g) The blowout preventers were subsequently check-

ed by experts on behalf of The Rucker Company

and were ‘ound to be in perfect condition.

h) The blowout preventers have been used ever

since without any incident.

On motion of The Rucker Company and after hearing all the

evidence presented by the plaintiffs, defendants, third party

plaintiffs and cross-complaintants, the trial judge granted a

directed verdict in favor of The Rucker Company. At the close

of the trial, the issues with reference to the remaining defen-

dants were submitted to the jury, who returned a verdict in

their favor.

Plaintiffs appealed the jury verdict, but did not appeal the

directed verdict in favor of The Rucker Company. The defend-

ants against whom the plaintiffs appealed, appealed against

The Rucker Company. At the argument in the Court of Appeals

and in the briefs, no mention was ever made of any legal or

factual bases of any fault on the part of The Rucker Company

or any defect in its product. The United States Court of Ap-

peals for the Fifth Circuit rendered an opinion on April 11,

1980, which without discussing The Rucker Company, “‘revers-

ed” all final judgments.

,%

The Rucker Company applied for rehearing and in an opinion

rendered June 30, 1980, the Court of Appeals withoui any

factual basis arbitrarily reversed the directed verdict in favor of

Petitioner who now seeks redress to the Supreme Court of the

United States for the reversal of the Fifth Circuit’s decision

and a reinstatement of the directed verdict in its favor.

JURISDICTION OF THE COURT BELOW

Jurisdiction of this action is grounded upon 43 U. S. C.

1333, the Outer Continental Shelf Lands Act, which extends

jurisdiction to accidents occurring on fixed platforms such as

the one involved here.

REASON FOR GRANTING CERTIORARI

I.

THE STANDARD BY WHICH DIRECTED VERDICTS ARE

GRANTED IS AN IMPORTANT QUESTION OF LAW.

The words written in Rutherford v. Central Illinois Railroad,

278 F. 2d 310 (Sth Cir.) cert. denied, 81 S. Ct. 288. 3604

U. S. 922, (1960) are more true today than ever before:

‘“*A directed verdict is a device to save time and trouble

involved in lengthy jury determination. It is something

more. It is a method for protecting neutral principals

of law from porerful forces outside the scope of law- -

compassion and prejudice”’.

There is little doubt that today’s society is an extremely liti-

gious one. Many unfounded claims are filed every single day.

No one can seriously question the fact that the Courts of the

United States face seriously overcrowded dockets.

Cost of litigation are rising astronomically and when a

9.

judicial claim is made against a person, that person, loses much

of the use, and therefore the value of his property until that

litigation is concluded.

Theré is little doubt that juries are sometimes swayed, not

by the law, but by prejudice, compassion, speculation and con-

jecture. In fact, the court’s power to control jury verdicts has

been held to be an inportant safeguard of the Seventh Amend-

ment.

In Aetna Casualty & Surety Co., 122 F. 2d 350 (4th Cir.

1941), speaking of the Seventh Amendment and the Courts

power of supervision over jury verdicts, the court said this

power wa°:

“. - a power to be exercised in pursuance of sound

judicial discretion, without which the jury system would

be capricious and intolerable tyranny, which no people

could long endure. This court has had occasion more

than once recently to say that it was a power the courts

ought to exercise unflinchingly””.

Mr. Justice Frankfurter, in Wilkerson v. McCarthy, 69 S. Ct.

413, 419; 336 U. S. 53, 65; 93 L. Ed. 497, 506 (1949) warned:

“The easy, but timid way out is for a trial judge to leave

all cases tried to a jury for jury determination, but

in doing so he fails in his duty to take a case from the

jury when evidence would not warrant a verdict by it.

A timid judge, like a biased judge, is intrinsically a

lawless judge’”’.

Clearly, the legal standards by which directed verdicts are

granted by trial courts and reviewed by appellate courts is an

important legal question before this Honorable Court. Without

clear standards, ungrounded claims would further flood the

court dockets; every frivilous claim would mean massive litiga-

-8-

tion expenses, lengthy trials, and submission to a possibly

Capricious jury.

THE UNITED STATES COURT OF APPEALS IN REVERS-

ING THE TRIAL COURTS DIRECTED VERDICT IN FAVOR

OF PETITIONER SO FAR DEPARTED FROM THE ACCEPT-

ED AND USUAL COURSE IN JUDICIAL PROCEEDINGS

AS TO CALL FOR AN EXERCISE OF THIS HONORABLE

COURTS POWER OF SUPERVISION.

It is clear in a negligence action that there is a presumption

favoring the defendant. To prevail, the plaintiff must shoulder

the burden of producing a preponderance of the evidence

to establish his claim. Mooney v. Stainless, Inc., 338 F. 2d 127

(6th Cir.) cert. denied, 85 S. Ct. 1561, 381 U. S. 925, 14

L. Fd. 2d 684 (1965); Armstrong v. Commerce Tankers Corp.,

311 F. Supp. 1236. aff'd 423 F. 2d 957 (2nd Cir.) cert denied,

91 S. Ct. 67, 400 U. S. 833, 27 L. Ed. 2d 65 (1970): Petition

of Atlass, 350 F. 2d 592 (7th Cir.) cert. denied, Muth v. Atlass,

86 S. Ct. 551, 382 U. S. 988, 15 L. Ed. 2d 476 (1966): Whitney

v. Brann, 394 F. Supp. 1, aff'd 530 F. 2d 966 (3rd Cir.) cert.

denied 96 S. Ct. 2628, 426 U.S. 922, 49 L. Ed. 2d 374 (1976)

rehearing denied, 97 S. Ct. 194, 429 U. S. 874, 50 L. Ed. 2d

156; Hart v. Blakemore, 410 F. 2d 218 (Sth Cir., 1969).

When the evidence produced is such that no reasonable

jury could find that the plaintiff has met his burden, a directed

verdict should be granted in favor of the defendant.

In Gunning v. Cooley, 50 S. Ct. 231, 281 U.S. 90, 74 L. Ed.

720 (1930) it was said that directed verdicts should be granted

when the evidence is “overwhelmingly on one side’’ and that

“any evidence, however slight’, on the other side will not

preclude a directed verdict.

In Galloway v. United States, 63 S. Ct. 1077, 319 U. S.

372, 87 L. Ed. 1458 (1943) prohibited ‘‘mere speculation” to

“supply essential elements” of proof.

In Brady v. Southern Railway Company, 64 S. Ct. 38, 320

U. S. 476, 88 L. Ed. 239 (1943) a plaintiff claimed to have

been continuously disabled since an accident several years

before, but he did not produce evidence with respect to a

certain three (3) years period. This Honorable Court held that

“mere speculation” was not allowable ‘‘to fill vagueness or

supply essential elements omitted or withheld,” thus a directed

verdict should be granted:

“When the evidence is such that without weighing the

creditibility of witnesses there can be but one reason-

able conclusion as to the verdict, the court should

determine the proceeding by non-suit, directed verdict

or otherwise in accordance with the applicable practice

without submission to the jury, or by such judgment

not withstanding the verdict. By such direction, the

result is saved from the mischance speculation over

legally unfounded claims.

* * *

“bare possibility is not sufficient to submit case to

jury”

“mere speculation of whether that negligence is chargi-

able to the decedent or another.”

The United States Court of Appeals for the Fifth Circuit in

the case at hand, violated the well settled legal principals

relating to a directed verdict when it reversed the trial court’s

-10-

grant of a directed verdict in favor of The Rucker Company.

THERE IS NO EVIDENCE IN THE RECORDS, WHATSO-

EVER, THAT THE RUCKER COMPANY WAS NEGLIGENT

OR THAT ITS PRODUCT MALFUNCTIONED OR WAS

DEFECTIVE IN ANY WAY. The jury in answer to Jury

Interrogatory Number Five specifically held that the cause

of the accident was the negligence of the driller. The trial

judge recognizing that not a single witness testified that the

rams had malfunctioned and that there was no evidence what-

soever to implicate the rams, granted a directed verdict in tavor

of The Rucker Company; and the United States Court of

Appeals erred by reversing it on the basis of conjecture.

Compare the case of Martin K, Eby Construction Company v.

Neely, 344 F. 2d 482, (10th Cir.) affirmed 87 S. Ct. 1072.

382 U. S. 914, 15 L. Ed. 2d 230 (1967). In that case. an em-

ployee of Eby had fallen to his death from a scaffold built by

Eby. Evidence showed that the scaffold’s railing did not break

and that there was no grease spot on the platform. The Court

conceded that:

“The platform might possibly have had something to

do with his fall, but there is nothing in the record

to show what it was.”’

The Court entered a judgment directing a verdict in favor

of the defendant opining:

“No number of mere possibilities will establish a proba-

bility”’.

“It is a fundamental rule of law that the burden is

upon the one asserting negligence to prove it by a pre-

ponderance of the evidence and that such burden is

not sustained by surmise, speculation or conjecture”’.

-| ]-

#4

What is so clearly wrong and unjust with the Court of Ap-

peal’s decision against Rucker is that the jury, in answer to

Jury Interrogatory Number Five, decided why the pipe in the

hole became obstructed. It answered that Booker, the driller,

was negligent, and that this caused the mast to collapse.

In contrast to this reality, the only factor imaginable against

The Rucker Company rests on pure speculation; that is, since

The Rucker Company had a piece of equipment on site, this

equipment might possibly have malfunctioned. This is clearly a

gross departure from the standards enunciated by this Honor-

able Court and therefore requires an exercise of this Court’s

supervisory power.

THE DECISION OF THE UNITED STATES COURT OF

APPEALS WAS SO ARBITRARY AND CAPRICIOUS AS TO

CONSTITUTE A DENIAL OF DUE PROCESS.

In Canty v. Board of Education, City of New York, 312

F. Supp. 254, (S. D. N. Y., 1970) the Court said:

“The terms ‘arbitrary’ and ‘capricious’ embrace a

concept which emerges from the due process clauses

of the Fifth and Fourteenth Amendments of the

United States Constitution and operates to guarantee

that acts of the government will be grounded on es-

tablished legal principals and have a rational factual

basis. A decision is arbitrary, and capricious when it

is not supported by evidence or when there is no reason-

able justification for the decision”’,

In Wood v, Conneaut Lake Park, Inc., 386 F. 2d 121 (3rd

Cir., 1967). the Court stated:

“However, if a case between private parties is arbitrari-

ly and capriciously decided, in violation of settled

principles of law and contrary to undisputed facts.

though the court so deciding has jurisdiction over the

suit, the judgment may be in violation of the Fourteen-

th Amendment”.

In its denial of rehearing, part D, the United States Court of

Appeals did, finally, attempt to articulate its reasoning for

reversing the directed verdict in favor of The Rucker Company.

In its reasoning, the Fifth Circuit exhibited unfairness and

totally fallacious logic.

The Court mentions five possible theories, brought out at

the trial, that might have caused the mast collapse.

a) Defective design or construction of the mast:

b) Operator error, failing to open the rams;

c) Defective rams or accumulator system;

oo

d) Junk-in-the-hole catching on the pipe; and

e) Defective casing in the well hole.

Theory ‘‘e”’ is summarily dismissed, see denial of rehearing,

footnote 1, because “no evidence’? was presented on this

theory.

Theory ‘‘d” is dismissed in Part C of the denial of rehearing

opinion. The Fifth Circuit said:

“The only evidence that supports in any way a ‘junk’

theory is that . . . operations fishing for ‘junk’ had

gone on, . . . that the driller opened the rams, . .

that the rams worked after the incident, ... that one

1%.

expert claims the indentations on the tool joint do not

match those on the rams.

Can such evidence negativing the joint hitting-the-rams

theory raise sufficient inferences that the pipe caught

on ‘junk’ in the hole raise sufficient inferences that

make this a jury issue? We think not. . . . did not err in

granting summary judgment to Livingston and Gulf

States’’.

Clearly, the Fifth Circuit opined that although there were

four separate pieces of evidence against Livingston and Gulf

States, relating to, and negativing the joint-hitting-the-rams

theory, did not create a positive inference that there was

“junk” in the hole.

Yet, when discussing The Rucker Company, in Part D,

evidence relating to other defendants is ‘‘relevant’’ to Rucker:

“The evidence for and against the second theory (opera-

tor error) is also relevant to the third (defective rams)’.

Clearly, this is arbitrary and capricious. The Fifth Circuit re-

versed the directed verdict in favor of The Rucker Company

because evidence as to other theories was relevant, but it

sustained the summary judgment of other defendants (Livings-

ton-Gulf States) despite the relevance of their evidence to the

theory that The Rucker Company might be liable for. Clearly,

this cross-relevance of theories is totally fallacious logic.

The arbitrariness and injustice of the Court of Appeals

decision against the petitioner is clearly and emphatically

shown in the uncontroverted facts:

a) There is not one shred of evidence in this record

that The Rucker Company was guilty of any negli-

gence or that the rams were defective.

-14-

=

b) The jury found, in answer to Jury Interrogatory

Number Five, that the driller’s negligence was the

cause of the obstruction of the pipe, completely

ruling out any defect in the rams.

CONCLUSION

Why is petitioner herein asking this Court which is over-

burdened with social, legal and political issues to review this

case? The stated and justified basis is that the Court of Appeals

violated this Honorable Court's procedural standards, and acted

arbitrarily and capriciously enough to constitute a due process

violation, But the important reason is that what the Court of

Appeals did, considering the facts, the law and equities involved

was wrong - an obvious and undisputed wrong. When a decision

of the Circuit Court of Appeals is a constitutional violation,

only this Honorable Court can remedy the injustice, Nothing is

more important to the fabric of American society than pro-

cedural due process, without which there can be no guarantee

for the redress of any wrongs. By righting this one wrong, this

court has an opportunity to set precedent, concerning the

important question of directed verdicts that is as important as

the more publicized political, social and economic issues which

face this Honorable Court today,

For the foregoing reasons, petitioner respectfully prays that

its Petition for Writs of Certiorari be granted and that after

consideration by the Honorable Court that the summary judg-

ment in favor of The Rucker Company be reinstated,

September 28, 1980,

Respectfully submitted,

/ JAMES E, DIAZ

“Counsel for Petitioner

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-*

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a copy of the above and fore-

going has this day been forwarded to all attorneys of record by

depositing the same in the United States Mails, postage prepaid

and properly addressed to the said attorneys,

Lafayette, Louisiana, this 28 day of September, 1980,

JAMES E, DIAZ

Counsel for Petitioner

ays

. -

APPENDIX 1

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

ERNEST J, RAMOS, et al

VERSUS

LIBERTY MUTUAL INSURANCE CO,, et al

CIVIL ACTION

NO, 74-449

Filed Aug. 1977

JUDGMENT

After the close of the evidence presented by all other parties,

the Court being of the opinion that there is no evidence in the

record upon which reasonable men could base the finding of

liability as to the Rucker Company or Stewart & Stevenson

Services, Inc,, a verdict is directed in their favor.

It is ORDERED, ADJUDGED AND DECREED that there

be judgment in favor of the defendants, The Rucker Company

and Stewart & Stevenson Services, Inc., rejecting all main

demands, cross-claims and third-party demands,

JUDGMENT RENDERED at Lake Charles, Louisiana, on

the 18th day of July, 1977.

JUDGMENT SIGNED at Alexandria, Louisiana, on this the

5th day of August, 1977,

/s/ Nauman §, Scott

NAUMAN §, SCOTT - Chief Judge

APPENDIX 2

ERNEST J. RAMOS et al., Plaintiffs,

Cross-Claimants and

Intervenors-Appellants,

v.

LIBERTY MUTUAL INSURANCE

COMPANY et al., Defendants,

Shell Oil Company, et al.,

Defendants-Appellees.

HAROLD LEE ENGINEERING CO. et al.,

Cross-Claimants and Third Party

Plaintiffs-Appellants,

v.

LIVINGSTON CORPORATION et al.,

Cross-Claimants and Third Party

Defendants-Appellees.

No. 78-1549

United States Court of Appeals,

Fifth Circuit.

April 11, 1980.

Rehearing and Rehearing En Banc

Denied June 30, 1980.

Action was brought arising out of collapse of mast of off-

shore oil-drilling rig. The United States District Court for the

District of Louisiana, Nauman S. Scott, Chief Judge, entered

judgment in favor of engineering firm which designed and

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manufactured mast, granted directed verdict to owner of

mast, and entered summary judgment for bailor of certain

equipment, and appeals were taken. The Court of Appelas,

Fay, Circuit Judge, held that: (1) trial court erred in excluding

evidence of prior, similar collapse of other mast; (2) evidence

presented jury question as to whether owner of rig could be

held liable under Louisiana statute governing liability of owner

of blowout preventer and rams used on rig could not be held

liable.

Affirmed in part, reversed in part, and remanded.

1. Federal Courts key 421

Under Outer Continental Shelf Lands Act, law of Louisiana.

the adjacent state, applied in suit arising out of injuries to

offshore oil-drilling rig employees. Outer Continental Shelf

Lands Act, § 4, 43 U.S. C.A, §1333.

2. Negligence key 125

Evidence of similar accidents might be relevant to defen-

dant’s notice, magnitude of danger involved, defendant's

ability to correct known defects, lack of safety for intended

uses, strength of a product, the standard of care, and causation.

Fed. Rules Evid. Rule 401, 28 U.S.C.

3 Negligence key 125

In action arising out of collapse of mast of offshore oil-

drilling rig, trial court erred in excluding evidence concerning

similar mast which had collapsed approximately two years

before, as previous collapse was relevant to manufacturer's

notice of defect, its ability to correct defect, mast’s safety

under foreseeable conditions, strength of the mast, and causa-

tion and in view of lack of indication in the record that any

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unfair prejudice would accrue to defendants if evidence were

admitted, Fed Rules Evid. Rules 401, 403, 28 U.S.C.A.,.

4 Evidence key 99

Trial court has generally broad discretion in the admission

of evidence, but that discretion does not sanction exclusion of

competent evidence without sound, practical reason.

5 Evidence key 99

Trial court is usually accorded broad discretion in determin-

ing potential prejudice based upon full array of evidence.

Red. Rules Evid. Rule 403, 28 U.S.C.A.

6 Witnesses key 404

In action arising out of collapse of mast of offshore oil-

drilling rig, in view of testimony of representative of designer

and manufacturer of mast to the effect that certain rig had not

fallen, trial court should have admitted evidence concerning

previous collapse of similar mast to impeach witness.

7. Negligence key 131

Grounds for rule requiring exclusion of evidence of subse-

quent remedial measures when offered to prove negligence or

culpable conduct are that remedial conduct is not an admission

and that admission of evidence might discourage steps to im-

prove safety; however, subsequent design modifications can be

admissible to prove, for example, feasibility of precautionary

measures. Fed. Rules Evid. Rule 407, 28 U.S.C.A.

8. Negligence key 131

In action arising out of collapse of mast of offshore oil-

drilling rig, evidence concerning design changes on other mast

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was not necessarily inadmissible as subsequent remedial mea-

sure, in view of testimony indicating that mast with design

changes was not produced after collapse, as design changes, if

made significant period of time prior to collapse, were rele-

vant to cause of collapse, defendants, failure to warn despite

preaccident knowledge of probiem, and feasibility of alterna-

tives. Fed. Rules Evid. Rule 407, 28 U.S.C.A.

9. Negligence key 44

Under Louisiana statute relating to liability of owner of

building for damage occasioned by its ruin, offshore oil-drilling

platform qualified as a “building” and mast of platform was

appurtenant to platform and therefore included within mean-

ing of term “building.”’ LSA - C.C, art. 2322.

10 Negligence key 44

Under Louisiana statute governing liability of owner of

building for damage occasioned by its “ruin,” offshore oil-

drilling rig mast which collapsed was “ruined.”’ LSA - C. C,

art. 2322.

See publication Words and Phrases for other judicial con-

structions and definitions.

11 Negligence key 136(22)

Evidence presented jury question as to offshore oil-drilling

rig owner’s liability under Louisiana statute governing liability

of owner of building for damage occasioned by its ruin, despite

owner’s contention that third person’s actions were sole cause

of the damage and despite jury’s findings of no defect in mast

and of negligence on third party’s part, in view of erroneous

exclusion of evidence relevant to question of defects which

rendered directed verdict judicial error. LSA - C. C. art. 2322.

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12. Bailment key 9

Under Louisiana law, bailor of rams and blowout preventer

used on offshore oil-drilling rig could not be held liable as

bailor, in view of evidence that lessor reasonably inspection

and tested bailed equipment approximately one month before

collapse of rig’s mast.

Francis E. Mire, Lake Charles, La.. for Ernest J. Ramos.

J. L. Cox, Jr., Lake Charles, La., for Booker Drilling Co.

and Liberty Mutual Ins. Co.

Jones Patin, Harper, Tete & Nolen William M. Nolen, Lake

Charles, La., for Harold Lee Engineering Co.

Raggio, Farrar, Cappel & Chozen, Richard B. Cappel, Lake

Charles, La., for Gardner-Denver Co.

Woodley & Fenet, Edmund E. Woodley, Lake Charles, La.,

for Shell Oil Co.

Brame, Bergstedt & Brame, Frank M. Brame, Lake Charles,

La., for Oil Field Rental Service Co.

James E. Diaz, Lafayette, La., for The Rucker Co.

Appeals from the United States District Court for the Wes-

tern District of Louisiana.

Before TUTTLE, FAY and THOMAS A. CLARK, Circuit

Judges.

FAY, Circuit Judge:

On this appeal, we review the district court’s exclusion of

evidence, its ruling that an oil rig is not subject to Louisiana

strict tort liability, and its grant of summary judgment to one

party. We affirm the grant of summary judgment. As to the

other issues, we reverse and remand to the district court.

1. FACTS AND PARTIES’ POSITIONS

[1] Ernest J. Ramos and Leon C. Fontenot were injured

when the mast of the off-shore oil drilling rig on which they

were working collapsed, telescoping within itself. Shell Oil

Company (Shell) owned the oil drilling platform, and had con-

tracted with Booker Drilling Company (Booker), the injured

parties’ employer, for Booker to perform services there. Ramos

and Fontenot brought suit to recover for their injuries.

The case mushroomed to include numerous parties. Because

virtually each party has a claim against all other parties, we will

only attempt to highlight the roles these parties had in the suit.

Booker claims its economic loss as a third-party plaintiff, and

Liberty Mutual Insurance Company has intervened to recover

the Longshoremen and Harbor Workers’ benefits it paid Ramos

and Fontenot. .2/The defendants remaining in this action 3

1/ Jurisdiction is grounded on the Outer Continental Shelf Lands Act,

43 U.S.C.A. § 1333 (West 1979). Under that act, the law of Louisiana,

the adjacent state, applies. Rodrigue v. Aetna Casualty & Surety Co.,

395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1968).

2/ Ramos and Fontenot originally sued Booker and Liberty Mutual,

but those actions were dismissed and that decision has not been appealed.

Cf. Longmire v. Sea Drilling Corp., 610 F. 2d 1342 (1980) (floorhand on

drilling platform entitled to section 905 action against vessel under long-

shoremen’s and Harbor Workers’ Compensation Act).

3/ Orders of summary judgment and dismissal were granted to numerous

other parties-defendant who will not be enumerated here.

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are Shell, the owner of the platform; Harold Lee Engineering

Company (Lee), designer and manufacturer of the mast; Gard-

ner-Denver Company, manufacturer of the drilling rig in-

corporating the Lee mast; Rucker Company, manufacturer

of the pipe rams: Stewart & Stevenson Services, Inc., manu-

facturer of the accumulator which operates the blowout system;

and Oil Field Rental Service Company, bailor to Shell of the

rams and blowout preventor.

Lee constructs three-piece telescoping oil derricks or masts.

Of the many it has sold, one went to Gulf Offshore Company

(GO-4) in 1972, and one to Booker (B-30) in 1973. In the

spring of 1972, the GO-4 rig collapsed because of a failure in

the pins connecting the upper third of the telescoping mast to

the top of the middle third. On March 29, 1974, the B-30

collapsed when the pins failed which connected the lower

end of the middle third to the top of the bottom third. Persons

injured in the GO4 failure sued and recovered. In this trial

over the B-30 collapse, Mr. Harold Lee testified that the same

design calculations were used for GO-4 and B-30. When asked

if the GO4 had collapsed, Mr. Lee answered, ‘‘No.”’ Appellants

were not allowed to admit evidence of the GO-4 collapse, or

of the failure to warn Booker of the GO4 collapse, and the

jury was not instructed to disregard Lee’s answer, which went

unimpeached because of the court’s ruling on the collapse of

GO4.

Approximately ten days after the B-30 collapse, another

mast, called B-40, was delivered to Booker. The B-40 mast

incorporated design features that strengthened the mast in ways

that would prevent collapses such as those occurring in the

GO-4 and B-30 masts. The trial court excluded evidence of

these imporvements.

The trial court granted Shell a directed verdict on the ap-

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pellants’ actions for strict liability under Louisiana Civil Code

Ann. Art. 2322 because Shell did not own the mast. The jury,

by special verdict, found that Shell, Gardner-Denver, and Lee

were not negligent, that the B—30 mg was not defective, and

that Booker was negligent. The jury found that a tool joint had

hit the rams causing the mast capacity to be exceeded s

4/ The full jury verdict is as follows:

“VERDICT OF THE JURY

We, the jury, hereby return our unanimous findings from a preponder-

ance of the evidence in the case in answer to the interrogatories pro-

pounded to us by the Court, as follows, to-wit:

INTERROGATORY NO. 1:

Was Shell Oil Company guilty of any negligence which was a proximate

cause of the accident?

Answer “Yes” or “No”. ANSWER: No

INTERROGATORY NO. 2:

Was Gardner-Denver Company guilty of any negligence which was a

proximate cause of the accident?

Answer “‘Yes” or “No”. ANSWER: No

INTERROGATORY NO, 3:

Was Harold Lee Engineering Company guilty of any negligence which was

a proximate cause of the accident?

Answer “Yes” or “No”. ANSWER: No

INTERROGATORY NO. 4(A):

Was the mast as manufactured by Harold Lee Engineering and incorporat-

ed into the rig sold by Gardner-Denver defective?

Answer “Yes” or “No”. ANSWER: No

If the answer to 4(A) is “‘no’’, then do not answer 4(B), 4(C), and 4(D).

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Ramos, Fontenot, Booker, and Liberty Mutual appeal from the

judgment. Shell, Lee, and Gardner-Denver perfected their

appeals from the summary judgment for Oil Field Rental for

4/ Continued

INTERROGATORY NO. 4(B):

Was the mast in normal use at the time of the accident?

Answer “Yes” or “No”, ANSWER:

INTERROGATORY NO, 4(C)-

If so, was the mast unreasonably dangerous in normal use?

Answer “Yes” or No”, ANSWER:

INTERROGATORY No, 4(d):

Was the accident proximately caused by the defect?

Answer “Yes” or ‘‘No”,. ANSWER: —___

INTERROGATORY NO, 5:

Was Booker Drilling Company guilty of negligence which was a proximate

cause of the accident?

Answer “Yes” or “No”, ANSWER: Yes

INTERROGATORY NO. 6:

Do you find that the tool joint struck the rams?

Answer “Yes” or “‘No’’", ANSWER: Yes

INTERROGATORY NO, 7:

If your answer to number 7 is “Yes”, do you find the blow to the rams

caused the represented capacity of the mast to be exceeded?

Answer “Yes” or “No”, ANSWER: Yes

Lake Charles, Louisiana, July 20, 1977

Mrs. Warrene Boyd Adams

FOREMAN OF THE JURY”

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consideration in the event this court reverses the judgment

No one disputes that at the time of the B-30 collapse, Booker

was cementing and abandoning an oil well. During this process.

the drilling pipes are withdrawn and at times the pipe rams of

the blowout preventor system are closed. The pipe rams are

doughnut-shaped pieces of metal and rubber that can contract

to encircle the drilling pipe at its narrowest diameter. closing

off the well. Where one piece of drilling pipe connects with

another, the pipe’s shape flares, increasing the diameter. If the

drilling pipe is pulled up, the flared end will not pass through

closed pipe rams.

The bulk of the trial transcript records the testimony of

drilling experts. The appellees attempted to prove that when

the Booker driller began to reverse out the drilling pipe. he

forgot to reopen the rams or began to pull up the pipe at high

speed before the rams were fully opened. Acording to appel-

lees, the flared end of the drilling pipe crashed into the closed

or partially opened rams, exceeding the mast’s wieght capacity

and causing the collapse. Appellees’ experts testified that

although the rated capacity of the B-30 was 234,600 pounds,

the shock load of the collision was about 700,000 pounds.

The gist of appellees’ argument is that operator error was

the sole cause of the collapse.

Experts for appellants painted another picture of the occur-

rence, Appellants’ experts testified that the indentation on the

pipe ram did not match up with the drilling pipe. Alternative

theories for the shock were that a hole in the outer casing

caused the drilling pipe to snag, or that “junk”’ was left in the

5/ Ramos, Fontenot, Booker, and Liberty Mutual will be referred to as

“appellants” in this opinion, Shell, Lee, Gardner-Denver and the other

defendants, cross-claimants,, and third-party defendants will be called

“appellees,” even though some of them are also third-party plaintiff

appellants.

drilling hole by one of the defendants. According to appellants’

experts, even if the tool joint hit the rams, calculations made

from the indentations with all factors taken at their worst

possible values indicated that the load was below the rated

maximum, at between 198,000 and 220,000 pounds. Appel-

lants’ theory on the main cause of the collapse was defective

design of the mast. Appellants’ experts testified that the front

legs of the mast were not designed to carry a sufficient load.

The front legs crumpled, pulling out the front pins of the mid-

dle section and putting all the weight on the back legs, which

caused the load to rest on the remaining two back pins. These

pins and the saddles then ripped out of the back legs, collaps-

ing the rig. Experts testified that small metal plates near the

pins, better securing of the pins, and slight reinforcement to

the front legs might have prevented the collapse. Experts also

testified that under the American Petroleum Institute guid-

lines, all mast designs should include a safety factor. If a safety

factor has been included, the mast would have held approxima-

tely 437,000 pounds. The core of appellants’ argument is that

operator error did not occur, but even if it did, a correctly

designed mast would not have collapsed. Defects in design were

the cause of the injuries.

Il, EVIDENCE OF SIMILAR ACCIDENT

Appellants claim the trial court erred in excluding evidence

of the prior, similar collapse of a Lee mast. Although the trial

court’s ruling is not in the record, it apparently believed that

evidence of the prior collapse was irrelevant, or that it would

have been prejudicial.

{2,3] Appellants contend that the prior GO-4 collapse is

relevant,

“Relevant evidence’? means evidence having any tendency

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

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determination of the action more probable or less probable than

it would be without the evidence.

Fed. R. Evid. 401, Evidence of similar accidents might be

relevant to the defendant's notice, magnitude of the danger

involved, the defendant's ability to correct a known defect,

the lack of safety for intended uses, strength of a product, the

standard of care, and causation, See Dollar v, Long Mfg., N. C.,

Inc., 561 F. 2d 613, 617 (Sth Cir. 1977), cert denied, 435

U.S, 996, 98 S. Ct. 1648, 56 ' Ed, 2d 85 (1978); Nelson v.,

Brunswick Corp,, 503 F. 2d 376, 380 (9th Cir, 1974); Wojciec-

howski v, Long-Airdox 488 F, 2d 1111, 1116 (3rd Cir, 1973);

Julander v. Ford Motor Co,, 488 F. 2d 839, 846 (10th Cir.

1973); Bailey v, Kawasaki-Kisen, K. K., 455 F. 2d 392 (Sth

Cir. 1972); Greyhound Lines, Inc, v, Miller, 402 F. 2d 134

(8th Cir, 1968); Jones & Laughlin Steel Corp, v, Matherne,

348 F. 2d 394, 400 (Sth Cir, 1965), In the context of this

case’s factual disputes, obviously the GO-4 collapse could be

relevant to Lee’s notice of the defect, its ability to correct the

defect, the mast’s safety under forseeable conditions, the

strength of the mast, and, most especially, causation.

Because of the impact similar failures can have, the courts

have developed principles governing their admissibility:

Whether a reasonable inference may be drawn as to the

harmful tendency or capacity [of a product] from prior failur-

es depends upon whether the conditions operating to produce

the prior failures were substantially similar to the occurrence

in question, The requirement that the prior accident not have

occurred at too remote a time is a special qualification of the

rule requiring similarity of conditions. The admission of such

evidence is also subject to the reasonable discretion of the

trial court as to whether the defendant is taken by unfair sur-

prise and as to whether the prejudice or confusion of issues

which may probably result from such admission is dispropor-

tionate to the value of such evidence,

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Jones & Laughlin Steel Corp, v. Matherne, 348 F. 2d at 400

(footnotes omitted), See Roundtree v, Seaboard Coast Line

R. Co,, 418 F: Supp, 220, 223 (M.D. Fla. 1976). Appellants

argue that the GO-4 and B-30 failures were similar and were

not remote in time, They also claim that no unfair prejudice

or confusion results from the admission.

The evidence does indicate similarity between the masts

and their failures, Appellants’ expert Mr. Green had inspected

both the GO-4 and B-30, 9 Mr. Green had testified in the

trial concerning the GO-4, in which those plaintiffs recovered.

During appellants’ offer of proof. Mr. Green testified in this

matter that the masts and the failures leading to the collapses

were virtually identical, In both, the derrick sprang out, causing

the back pins to break. In both, according to Mr. Green, the

mast was lifting less than its rated capacity. The differences

between the GO-4 and its failure, and the B-30 mast and its col-

lapse were insubstantial, The GO-4 mast had a rated capacity of

340,000 pounds, but failed at about 160,000. B-30 was rated

at 234,600 and failed at 198,000 pounds. The GO-4 failure

occurred at the connection between the top and middle sec-

tions; the B-30 between the middle and bottom sections, The

GO seats or saddles did not fail; the GO-4 broke at the pins

and the housing on the pin connection to the supporting

members, In B-30, both the pins and seats or saddles failed,

Transcript at 538-44, Green also testified that Go-4 failed after

about one month of operation, GO-4 was delieverd in March,

1972, approximately two years before the B-30 collapse,

Id, at 1137. Green related that before the B-30 collapse, GO-4

had been modified with a truss around the back, and is now

6/ Mr, Green had been called in to inspect four failures involving Lee

masts, three of which were collapses in which the mast retelescoped

within itself,

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in operation,

Although this should have been enough to establish the

similarity between the masts and failures, other testimony from

Mr. Lee of Harold Lee Engineering highlighted the similarity

of the two masts, Transcript at 20-27. He stated that nothing

in B-30 was new; some of the calculations for GO4 were used

in the manufacture of B-30, Jd. at 1124-63, Lee testified that

both GO-4 and B-30 had the same type legs and leg stress cal-

culations, The basic difference is that GO-4 was installed verti-

cally with a crane, while B-30 was scoped out horizontally

and then lifted, Lee admitted there was very little difference

between the two designs. When the plaintiffs requested produc-

tion of the diagrams and documents for the B-30, at least two

of the documents delivered by appellees were designs and cal-

culations for GO-4, Record at 931-32,

[4] We hold that the evidence of the GO-4 failure was rele-

vant and that the mast and collapse were sufficiently similar

to be admitted, In addition, the GO-4 failure was not too

remote in time from the B-30 collapse. The trial court generally

has broad discretion in the admission of evidence, but that

discretion does not sanction exclusion of competent evidence

without a sound, practical reason, Bailey v, Kawasaki-Kisen,

K. K,, 455 F, 2d 392, 398 (Sth Cir, 1972),

[5] The probative value of the GO-4 evidence also was not

outweighed by the possibility of unfair prejudice to appellees.

The federal rule reads as follows:

Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless pre-

sentation of cumulative evidence,

Fed, R. Evid, 403, This was not an occasion, however, for the

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application of rule 403. Of course, “unfair prejudice”’ as used

in Rule 403 is not to be equated with testimony simply adverse

to the opposing party. Virtually all evidence is prejudicial or

it isn’t material, The prejudice must be “unfair.”

Dollar v. Long Mfg., N.C., Inc., 561 F. 2d at 618. Any prejudice

accuring from admission of the GO-4 evidence would not be

unfair, Again, the trial court is usually accorded broad dis-

cretion in determing potential prejudice based upon the full

array of evidence, Minnesota Farm Bureau Marketing Corp.

v. North Dakota Agricultural Marketing Ass’n, Inc., 563 F. 2d

906, 911 (8th Cir. 1977); Moran v, H. W. S. Lumber Co., Inc.,

538 F. 2d 238, 243 (9th Cir. 1976); Wallace v, Ener, 52)

F, 2d 215, 222 (Sth Cir. 1975); Construction, Ltd. v. Brooks-

Skinner Building Co., 488 F. 2d 427 (3rd Cir. 1973). Yet here

the record does not disclose that any unfair prejudice would

accrue to appellees if the evidence were admitted.

[6] Another basis exists for admitting evidence of the GO-4

collapse: impeachment of Mr. Lee. On cross-examination

Harold Lee testified as follows:

Q.{by Mr. Mire, plaintiffs’ counsel] Well, actually, Mr. Lee.

I see this [exhibit] is marked GO Number 4. Isn't that for the

Gulf Offshore Number 4 Rig that you built prior to this?

A.{by Mr. Lee] Very possibly so.

Q.And that rig actually fell, did it not, this Gulf Offshore

Number 4?

A.No =

[Followed by objection and in-chambers, off-record discussion

by court and counsel].

Transcript at 24-25. Further evidence on the collapse was

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excluded, No charge was given to the jury to soften the blow of

the witness’s false statement. -2/We agree with appellants that

the evidence should have been admitted to impeach Mr. Lee. Cf.

Dollar b. Long Mfg., N.C., Inc., 561 F. 2d at 618 (under rule

407, evidence of repairs admissible for impeachment).

III. EXCLUSION OF B-40 CHARGES

[7] The trial court also excluded evidence of the B-40

mast’s new design 8/Mr, Booker would have testified that the

‘7/ ~~ The transcript provided on appeal is not the best. Not only are

witnesses’ testimonies reproduced incompletely and out of order, but

the transcript also omits opening arguments, legal discussions, closing

arguments, and the jury charges, It is therefore often unclear why the

trial judge made many rulings or whether the trial court instructed the

jury on a particular point. Evidently both parties agree, however, that

the jury was not instructed to disregard the question and answer, and that

the evidence was excluded as a dissimilar accident after the offer of proof

by witness Green.

8/ On the admission of the B-40 evidence, the court stated the follow-

ing:

THE COURT: _ All right. In justification the Court’s interpretation of

this matter, the Court feel that the day of the accident is a matter that is

particularly the matter in point; that if in fact an improvement was made

in the manufacturer [manufacture?] of one Rig 30 to the manufactur-

er - to the manufacturer and delivery of Rig 40, And the Court, regard-

less of when the accident happened, would rule the same way. In other

words, I feel that the date of the accident is not important, The product

is what I am comparing.

Transcript at 549-50, While the ruling is not entirely clear, it was in re-

sponse to the following objection, which is clearly grounded on rule 407:

MR. NOLEN: Yes, sir, I objected to that line of questioning on the

grounds that it was an attempt to show a post accident change in a similar

product for the purpose of showing a defect in this product, which we

felt was improper. Jd. at 549.

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B40 mast had extra plates and more welding than the B-30.

Transcript at 5) '-54. The Federal Rules of Evidence require

exclusion of evidence of subsequent remedial measures when

offered to prove negligence or culpable conduct:

When, after an event, measures are taken which, if taken

previously, would have made the event less likely to occur,

evidence of the subsequent measures is not admissible to prove

negligence or culpable conduct in connection with the event.

This rule does not require the exclusion of evidence of subse-

quent measures when offered for another purpose, such as prov-

ing ownership, control, or feasibility of precautionary measures,

if controverted, or impeachment.

Fed. R. Evid. 407. The grounds for the rule are that remedial

conduct is not an admission, -2/ and that admission of the evi-

dence might discourage steps to improve safety. Advisory

Committee’s Note, 46 F.R.D. 161, 236-37 (1969); Bailey v,

Kawasaki-Kisen, K. K., 455 F. 2d 392 (Sth Cir. 1972). Subse-

quent design modifications can be admissible to prove, for

example, the feasibility of precautionary measures. £. g.,

Boeing Airplane Co, v. Brown, 291 F. 2d 310 (9th Cir. 1961).

See Advisory Committee’s Note, 46 F.R.D. at 237.

[8] But we need not wrestle with the rule’s exceptions

because it appears the B-40 changes do not come within rule

407’s proscription. The B-40 was delivered approximately ten

days after the B-30 collapse. Given Lee's extensive testimony

on the time required to manufacture a mast, the B-40

mast apparently was not produced “after [ the B - 30]

9/ [T]he rule rejects the notion that “because the world gets wiser

as it gets older, therefore it was foolish before.”” Hart v. Lancashire &

Yorkshire Ry, Co., 21 L. T. R. NaS, 261, 263 (1869).

Advisory Committee's Note, 46 F, R. D. 161, 236 (1969),

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events.” 10/ If these are the facts, the B-40 changes should

not have been excluded as subsequent remedial measures.

If the B-40 design changes were made a significant period

of time prior to the collapse of B-30, they were certainly rele-

vant to the cause of the collapse, appellees’ failure to warn

despite preaccident knowledge ot the problem, and the feasi-

bility of alternatives. On retrial, the district court should

develop fully the time interval involved as well as all other

pertinent factors and articulate those reasons allowing or

precluding such evidence under theFederal Rules of Evidence.

IV. SHELL’S STRICT LIABILITY

Although the grounds for the ruling are not in the record,

the district court granted Shell’s motion for a directed verdict

on the strict liability action under Louisiana Civil Code Art.

2322, apparently because Shell was not the “owner” of the

mast. That code section states:

The owner of a building is answerable for the damage oc-

casioned by its ruin, when this is caused by neglect to repair

it or when it is the result of a vice in its original construction.

_—_

La. Civil Code Ann. Art, 2322 (West 1979). At the time of the

ruling the Louisiana courts had not ruled on the applicability

of Art. 2322 to a situation like this one. Unfortunately, the

trial court erred in guessing which way the Louisiana court

would rule. In Olsen v, Shell Oil Company, 365 So.2d 1285

(1978), the Supreme Court of Louisiana answered certified

questions from this court on facts similar to Ramos.

10/ Neither party discusses whether the B-40 changes should be

excluded as subsequent to the GO-4 collapse.

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The court, in an opinion by Justice Tate, first held that a drill-

ing platform is a “building” within the meaning of Art. 2322.

Id. at 1289-90. The court reaffirmed that appurtenances to

structures can be included within the meaning of the term

“building.” Id. at 1291. The court then held that while an

owner could contract with an occupant to regulate relative

“ownership” of incorporated appurtenances and to provide

for indemnification, an owner cannot limit by contract his

nondelegable duties to third persons injured by defects in the

building. Jd. at 1291-92. The court held that the explosion in

Olsen was a “ruin” Id, at 1292-93. The court noted that if the

fault in the building were caused by some third person, the

person injured, or some irresistible or unforeseeable force, the

owner might not be liable. Jd. at 1289. The court rejected

however, the argument that actions by the tenant-independent

contractor in Olsen absolved the owner of its nondelegable

duties. Jd. at 1293. Only when the third person’s actions are

the sole cause of the damage, in the nature of a superseding

cause, will the owner be exonerated. When the “third person”’

is a stranger, not one acting with the owner’s consent, the

owner cannot avoid 2322 liability. Jd. at 1293-94.

[9-11] As in Olsen, Shell owns a drilling platform which

qualifies as a “building” under 2322, and the mast is appurten-

ant to the platform. See McIlwain v, Placid Oil Co., 472 F. 2d

248, 250 (Sth Cir.), ceré denied, 412 U.S. 923, 93 S. Ct. 2734,

37 L. Ed. 2d 150 (1973). The derrick collapsed, and was

therefore “ruined’”’ within the statute’s meaning. See Moczy-

gemba v. Danos & Curole Marine Contractors, 561 F. 2d 1149,

1152 n. 6 (Sth Cir. 1977). Appellants claim the derrick had

defects in its repair and original construction. A Shell argues,

i1/ We note that Olsen, unlike Ramos,definitely dealt with a defect

in repair, not construction. Neither party cites to precedent distinguish-

ing repair and construction although logically one might expect that

construction defects might be more likely to entail superseding causes

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however, that in this case, unlike Olsen, a third person’s actions

were the sole cause of the damage. Even if we were to accept

Shell’s position, we do not believe that all the evidence pointed

so strongly and overwhelmingly in Shell’s favor that the court

should have removed the question from the jury. Boeing Com-

pany v, Shipman, 411 F. 2d 365, 374-77 (Sth Cir. 1969) (en

banc). Shell points to the jury’s findings of no defect in the

mast and of negligence on Booker’s part as rendering the court’s

error harmless. See Moczygemba v. Danos & Curole Marine

Contractors, 561 F. 2d at 1152. As discussed earlier, however,

the trial court.erred in excluding certain evidence relevant to

the question of defects. Because this evidence touches on the

cause of the collapse, the error in directing the verdict is not

harmless. See Bailey v. Kawasaki-Kisen, K.K., 455 F. 2d 392

(Sth Cir. 1972).

V.BAILOR’S LIABILITY

[12] Lee, -1.2/ Gardner-Denver, and Shell appeal the

granting of summary judgment to Oil Field Rental Service

Company (OFR), which had leased the blowout preventor.

rams, and accessory equipment to Shell. OFR inspected and

tested the bailed equipment approximately one month before

the collapse. The district court held that there was no evidence

11/ Continued

Wholly unrelated to duties of the owner.

12/ Despite its present appeal, Lee did not oppose the motion for

summary judgment at the time it was made. Record at 3708. Gardner-

Denver argued that despite OF R’s affidavits, whether the inspection satis-

fied the bailor’s burden is a question of fact. Jd, at 3971-72.

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that OFR’s inspections were performed in a manner which

would not disclose present defects, and therefore OFR was

not liable under Louisiana law. Lyons v. Jahncke Service, Inc.,

125 So. 2d 619 (La. App. 1960).

Louisiana law is settled on a bailor’s liability: a bailor for

value received who delivers such a vehicle or machine to his

bailee possessed of a defect of which he was aware o1 could

have detected by ordinary examination, without warning

bailee thereof, is liable in damages to bailee or any third party

injured thereby, provided such injury is the reasonably foresee-

able result of such failure.

Lyons v, Jahncke, 125 So. 2d 619, 631 (La. App. 1960). See

also Blandino v. Brown Erection Co., Inc., 341 So. 2d 577

(La. App. 1977); Jenkins v. Dixie Rental Tools and Casing

Crews, Inc., 283 So. 2d 271 (La. App. 1973), cert. denied,

285 So. 2d 542 (La. 1973); Dore v. Hartford Accident &

Indemnity Co., 180 So. 2d 434 (La. App. 1965); White uv.

Huspeth, 147 So. 2d 874, 879 (La. App. 1962), cert. denied,

243 La. 1018, 149 So. 2d 768 (1963).

Our review of the evidence must be in the light most favor-

able to Lee, Gardner-Denver, and Shell. United States v. Die-

bold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962);

Marshall v. Victoria Transportation Co., 603 F. 2d 1122, 1123

(Sth Cir. 1979). When viewed in this fashion, the evidence

discloses that OFR satisfied its duty by making a reasonable

inspection. The award of summary judgment to OFR was

proper. °

VI. CONCLUSION

After a long and hotly fought trial, an appellate court is

reluctant to overturn the rulings of a district judge. Neverthe-

less, relevant evidence which engenders no unfair prejudice and

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._

which relates to the core of the dispute should not be sum-

marily excluded. In addition, the recent clarification of Art.

2322’s applicability requires reversal of the directed verdict

for Shell. The district court’s grant of summary judgment to

Oil Field Rental is AFFIRMED; the directed verdict and other

final judgments are REVERSED; and the matter is remanded

for retrial.

WEST KEY NUMBER SYSTEM

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APPENDIX 3

ERNEST J. RAMOS et al., Plaintiffs,

Cross-Claimants and Intervenors - Appellants,

Vv.

LIBERTY MUTUAL INSURANCE COMPANY et al.,

Defendants,

SHELL OIL COMPANY et al.,

Defendants-Appellees

HAROLD LEE ENGINEERING CO. et al.,

Cross-Claimants and Third Party Plaintiffs-Appellants,

v.

LIVINGSTON CORPORATION et al.,

Cross-Claimants and Third Party

Defendants-Appellees.

No. 78-1549

United States Court 01 Appedls, Fifth Circuit.

June 30, 1980

Action was brought arising out of collapse of mast of off-

shore oil-drilling rig. The United States District Court for the

District of Louisiana, Nauman §, Scott, Chief Judge, entered

Judgment in favor of engineering firm which designed and

manufactured mast, granted directed verdict to owner of rig,

and entered summary judgment for bailor of certain equip-

ment, and appeals were taken. In opinion clarifying its previous

decision which affirmed in part, reversed in part, and remanded

the action, 615 F. 2d 334, and on petitions for rehearing filed

by manufacturers of components of the rig, the Court of

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Appeals held that: (1) remand was required of issue of duty of

rig’s owner to indemnify designers and manufacturers of the

rig and mast under Louisiana statute relating to liability of

owner of building for damage occasioned by its ruin; (2) Dis-

trict Court did not err in granting summary judgment to de-

fendant which allegedly left ‘‘junk in the hole’’ which, under

one theory, allegedly caused the mast to collapse; (3) judgments

rendered in favor of various parties on contribution or indemnity

claims were required to be reversed since the jury verdict

against plaintiffs was reversed; and (4) there was conflicting

substantial evidence sufficient to create jury issue on liability

for contribution or indemnity of manufacturers of compo-

nents of the rig to owner of the rig and designers and manu-

facturers of the rig and its mast.

Petitions for rehearing denied; Judgment of District Court

affirmed in part and reversed in part; cause remanded.

1. Federal Court key 939

Remand to district court of action arising out of collapse of

mast of offshore oil-drilling rig was required on issue of duty

of rig’s owner to indemnify designers and manufacturers of the

mast and the rig under Louisiana statute governing liability

of owner of building for damage occasioned by its ruin. LSA-

C.C. art 2322.

2. Negligence key 136(22)

In action arising out of collapse of mast of offshore oil-

drilling rig, evidence was insufficient to present to jury theo-

ry that reason for collapse of the mast was shock force to

the rig caused by presence of “junk in the hole” left there

by one of the defendants.

3. Federal Courts key 933

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+

Judgments on contribution or indemnity claims rendered

in favor of various parties, in action arising out of collapse of

mast of offshore oil-drilling rig, on basis that such third-party

claims were rendered moot by jury verdict against plaintiffs

were required to be reversed since the jury verdict was re-

versed on appeal.

4. Contribution key 9(7)

Indemnity key 15(9)

In action arising out of collapse of mast of offshore oil-

drilling rig, sufficient conflict existed in substantial evidence

to raise jury issue on liability for contribution or idemnity of

manufacturers of components of the rig to owner of the rig and

designers and manufacturers of the rig and mast.

Appeals from the United States District Court for the West-

ern District of Louisiana.

ON PETITION FOR REHEARING

AND PETITION FOR REHEARING EN BANC

(Opinion April 11, 1980, 615 F. 2d 334 (Sth Cir. 1980)

Before TUTTLE, FAY and THOMAS A. CLARK, Circuit

Judges.

PER CURIAM:

This action concerns the claims and cross-claims of multi-

tudinous parties over the collapse of a mast on an offshore

oil rig. On appeal, this court affirmed the grant of summary

judgment to Oil Field Rental Service Company, and reversed

and remanded the other final judgments. 615 F. 2d 334 (Sth

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Cir. 1980). Rucker Company and Stewart & Stevenson Services,

Inc, petition for rehearing of the reversal of directed verdicts

in their favor. Harold Lee Engineering Company and Gardner-

Denver Company request that their cross-claims against Shell

be decided favorably for them without remand, and that this

court reconsider its reversal of the trial court’s evidentiary

rulings. Livingston Corporation, formerly Gulf-States Fish-

ing & Rental Tools, Inc, moves for clarification of whether the

summary judgment in its favor has been reversed. Other parties

who did not petition for rehearing have cross-appeals and judg-

ments affected by the decision. We now clarify our previous

decision to specify which judgments have been reversed.

A. Lee and Gardner-Denver

[1] Lee and Gardner-Danver urge that Shell’s liability to

indemnify them should be decided by this court without

remand. Because the district court has not ruled on the duty

of any owner to indemnify parties under Louisiana Civil Code

Art. 2322, we remand that issue to the district court for deter-

mination during the retrial of this case.

Requests by Lee and Gardner-Denver for rehearing on the

reversal of the trial court’s evidentiary rulings are denied.

B. Livingston Corporation

[2] Lee, Gardner-Denver, and Shell appealed the grant of

summary judgment to Livingston Corporation, formerly Gulf

States Fishing & Rental Tools, Inc., although none of the

parties discussed Livingston’s liability in their briefs, at oral

argument, or in petitions for rehearing. One theory advanced

for why the mast collapsed was that a shock force to the rig

was caused by the presence of “junk in the hole,” left there

by Gulf States after its “down hole” operations. The district

court found that

after exhaustive discovery, there is no evidence of

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“junk.” In fact, the only viable evidence disclosed .. .

establishes that there was no ‘‘junk”’ in the hole.

Record, vol. 14, at 4076-77. Experts which Lee and Gardner-

Denver themselves supplied stated that the ‘‘junk”’ theory was

“very unlikely,” was “not a viable possibility,” and was ex-

cluded by the joint-hitting-the-rams theory. Record, vols.

12 & 13, at 3526, 3551, 3559-63, 3628-29, & 3631-33. The

pipe being moved at the time of the accident was at the 370

to 450-foot level. Earlier that day, Booker employees had used

a cementing squeeze tool to the 890-foot level without meet-

ing resistance, which indicates that no ‘‘junk”’ was in the hole.

Record, vols. 11 & 12, at 3456, 3559-63. The only evidence

that supports in any way a “‘junk”’ theory is that operations

fishing for ‘‘junk”’ had gone on, that the driller claims to have

opened the rams, that the rams worked after the incident,

and that one expert claims the indentations on the tool do not

match those on the rams. Can such evidence negativing the

joint-hitting-the-rams theory raise sufficient inferences that

the pipe caught on “junk” in the hole to make this a jury issue?

We think not. The undisputed positive fact that the drilling

hole was clear to a level of at least 890 feet eliminates any

doubt about the presence of ‘“‘junk’’ at a higher level. The

district court did not err in granting summary judgment to

Livingston and Gulf States.

C. Contribution and Indemnity Claims

[3] Although not all of the cross-appellees petitioned for

rehearing, to remove further doubt about the scope of this

court’s earlier decision, the judgments on the contribution or

indemnity claims in favor of Gardner-Denver, Lee, Shell Oil,

Booker Drilling Company, and Pittsburgh Testing Lab are

reversed. The district court granted these verdicts because the

jury verdict against the plaintiffs rendered the third-party claims

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moot. Record, vol. 14, 4220-21. Since the jury verdict is revers-

ed, these claims are again viable.

D. Rucker and Stewart & Stevenson

[4] After presentation of the evidence, the trial court

granted directed verdicts to Rucker, the pipe rams manufactur-

er, and Stewart & Stevenson, the accumulator system manu-

facturer. Docket Entry for July 18, 1977. Shell, Lee. and

Gardner-Denver cross-appealed these verdicts to protect them-

selves in the event of reversal of the jury verdict. The plaintiffs

dismissed their appeals of the verdicts for Rucker and Stewart

& Stevenson. Therefore, the only question before this court

is whether there was a conflict in substantial evidence sufficient

to create a jury issue on the liability for contribution o1 in-

demnity of Rucker and Stewart & Stevenson to Shell. Lee, and

Gardner-Denver.

This question distills to an inquiry into evidence presented

on the cause of the drilling mast’s collapse. Once the “junk’’-

in-the-hole theory is eliminated, three hypotheses on the cause

remain -!

The first is that design or construction defects are the main

cause of the mast’s collapse. Supporting this theory was testi-

mony by plaintiffs’ experts that the design load was below the

mast’s capacity. On retrial, evidence of failure of GO. a mast

1/ ‘At one point, some experts proffered a fourth hypothesis, that the

pipe caught on a hole in the casing, but no evidence was presented on this

theory.

Although the theories are listed separately, the amount of the shock

load interconnects the design theory and the pipe ram theories. If the load

exceeded the mast’s capacity, it may be irrelevant whether Lee designed

a faulty mast. If the load was less than capacity, the question ic whether

the incident was proximately caused by a design defect, some negligence

connected with the rams, or both.

A-29

of similar design, will also be used to support this theory.

Experts for Lee and Gardner-Denver contradicted testimony

on design and construction defects and stated that the shock

load was above the mast’s capacity.

The second theory is that operator error caused the collapse.

Under this theory either the driller did not pull the switch

to open the rams, he did not allow enough time for the rams

to open before pulling up the pipe, he moved the switch into

the neutral - not- open - position, or someone at the remote

control station closed the rams after the driller had opened

them. Because of one of these errors, the tool joint hit the

closed or partially opened rams, causing the shock load which

led to the mast’s collapse. The indentations on the pipe rams

and the defendants’ experts’ testimony that the angle of inden-

tation on the tool joint matches that on the rams support this

theory. Opposing this theory was evidence of one expert that

the markings and indentations of the joint and rams did not

match, evidence that the rubber portion of the rams was not

scarred as would be expected if this occurred, and the driller’s

testimony that he opened the rams, started up the pipe a suf-

ficient time later, and observed that the rams were open about

one-half hour after the accident.

The third theory is that the driller did throw the switch,

but that some defect in the rams or accumulator caused the

rams not to open or to open too slowly. Under this theory,

Rucker or Stewart & Stevenson caused the collapse. The evi-

dence for and against the second theory is also relevant to the

third. In addition, a government inspector may have found

a defect in the blowout preventor earlier during the day of the

accident, but the system was reportedly brought to government

standards. Rucker and Stewart & Stevenson contend that

testing which showed that the rams worked perfectly both

before and after the incident negatives this theory.

As should be apparent, the proof on causation is replete with

A-30

the conflicting testimony of experts and the haunting possibili-

ties raised by circumstantial evidence. For our purposes, the

question is the extent to which these conflicts and circum-

stances are substantial enough to create a jury issue precluding

a directed verdict.

Rucker and Stewart & Stevenson argue that the perfect

performance of the rams both before and after the collapse

leads to the inference that no defect was present. Furthermore,

they claim that because the cross-claimants proved no specific

defect in the rams or accumulator, the directed verdict was

proper. The cross-claimants argue that no specific defect need

be shown. They assert that it is the jury’s province to decide

whether operator error or mechanical defect caused the shock

load.

Viewing all reasonable inferences in the light most favorable

to the cross-appellants we hold that more than ‘“‘a mere scintilla

of evidence”’ has been presented against Rucker and Stewart &

Stevenson and that a sufficient conflict exists in the substantial

evidence to raise a jury question.See, Boeing Company v. Ship-

man, 411 F. 2d 365, 374-75 (Sth Cir. 1969) (en banc). The

directed verdicts for Rucker and Stewart & Stevenson are re-

versed.

E. Conclusion

The petitions for rehearing by Lee and Gardner-Denver

are DENIED. The district court’s grants of summary judgment

to Oil Field Rental Service and Livingston Corporation - Gulf

States Fishing & Rental Tools, Inc. are AFFIRMED. The other

verdicts and judgments are REVERSED and the matter is

remanded for retrial in accordance with this court's earlier

opinion.

No member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled on

A-31

rehearing en banc, (Rule 35 Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 12) the Petition for Rehearing

En Banc is DENIED.

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