Petition for Writ of Certiorari — Denman Rubber Manufacturing Co. v. Hall

—— As eel De til TT i cceialll TP PE

—

“—

39-533 |

NO.

Supreme Court, U.S.

FILED

SEP 2B 1988

JOSEPH F. SPANIOL, JR.

Grek

—_

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

DENMAN RUBBER MANUFACTURING COMPANY

AND CENTRAL NATIONAL INSURANCE

COMPANY OF OMAHA,

PETITIONERS

VS

VERDA D. HALL,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT A. MCMAHON, JR. ESQ.*

HOWARD B. KAPLAN, ESQ.

Bernard, Cassisa, Saporito

& Elliott

1615 Metairie Road

P.O. Box 55490

Metairie, LA 70055-5490

Phone: (504) 834-2612

Attorneys for Petitioners

*Counsel of Record

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

DENMAN RUBBER MANUFACTURING COMPANY

AND CENTRAL NATIONAL INSURANCE

COMPANY OF OMAHA,

PETITIONERS

VS

VERDA D. HALL,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FiFTH CIRCUIT

ROBERT A. MCMAHON, JR. ESQ.*

HOWARD B. KAPLAN, ESQ.

Bernard, Cassisa, Saporito

& Elliott

1615 Metairie Road

P.O. Box 55490

Metairie, LA 70055-5490

Phone: (504) 834-2612

Attorneys for Petitioners

*Counsel of Record

—

——

Whether the United States Court

of Appeals for the Fifth Circuit erred in

reversing the District Court’s grant of

summary judgment by allowing an expert’s

inadmissible and factually unsupported

deposition testimony of a_ possible

‘All parties to the proceeding in the

United States Court of Appeals for the

Fifth Circuit are listed in the caption.

: Corporate parties’ affiliation:

Denman Rubber Manufacturing Company has no

subsidiaries or affiliates. However, the

parent company of Denman Rubber

Manufacturing Company is Jepson

Corporation, which was recently purchased

by the Great American Investment Company.

Apart from its several wholly-owned

subsidiaries, Central National Insurance

Company of Omaha has no subsidiaries or

affiliates. However, Central National

Insurance Company of Omaha is wholly owned

by Drum Financial Corporation, which

itself is wholly owned by Professional

Underwriters Investment Company.

manufacturing defect to defeat a properly

supported motion for summary judgment.

2. Whether the United States Court

of Appeals for the Fifth Circuit erred in

reversing the District Court’s grant of

summary judgment by not holding that

plaintiff had failed to come forward with

sufficient proof of an essential element

of his case under state law, i.e., that

the tire at issue was in normal use at the

time of the accident.

: =< oe

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ... i

TAREE OP QURMORTTINS «wi wt tke UM

ky gk oe See

EEE ee ee

STATUTORY PROVISIONS INVOLVED .... 4

STATEMENT OF THE CASE. ....... 4

- REASONS FOR GRANTING

ge

a

I oc Ca oh aay la

ER oe a ge es 7a

APPENDIX C 5 la ah ek a gine 8a

oS. ; . ae

pr OU Sg a es a

APPENDIX F 5 ae We ee dale a ie a

Se eer na

og agg alia! 8 8 ee

0 ES ee

0 a ae a ee

- iii -

APPENDIX K

APPENDIX L

APPENDIX M

i

CASES:

Anderson -v. Liberty Lobby. Inc. 106 S.Ct.

2505 (1986)... 9, 15, 16, 32-34

Bell_v. Jet Wheel Blast, 462 So.2d 166

EE ES ee rae ean a ee

Celotex Corp. v. Catrett, 106 S.Ct. 2548

(Aeneas ob Ge: Se ee, 13, 32°36, 20-62

Celotex Corp. v. Catrett, 756 \F.2d 181

TE es ache. Cis s ¢ 6 eee” Ee

Clay v. Equifax, Inc., 762 F.2d 952 (11th

GRE 6 0) Gh ak) 4.6 ia, wie a ee

, 659

F.2d 574, 579 and n. 15 (5th Cir. 1981)29

, 770 F.2a

RRO ae eres: Fo

, 542

se ee Be OR of eS

, 782 F.2d

PR EI Se a! ae

TTT rd 780 F.2d 1190 (5th

Cit, 2908s. 4 ks , - « Se ae

Goff v. Continental Oil Co., 678 F.2d 593

(OG eae ee nt Oe ee + tw st we Oe

Marti Jo} Ww. St 4il Distribut

Inc., 819 F.2d 547 (5th Cir. 1987) 10, 40

i ne eee. . 4. . « |6Y, 14, 32-34

-, 569

Toa en eeere ss 6 ee «610, 27,-30

Vi , 876 F.2d 414

i eee co cs . o,f «| «(610, 40

Robertson v. Superior PMI, Inc., 791 F.2d

See eeesy g w kl wt te «C18, 35

Scott v. White Trucks, 699 F.2d 714 (5th

ee ee fs. . . . . «O17, 35

United States v. Bernhardt, 642 F.2d 251,

Sup wees Bea) 4 ew ele Cn Cana oe

United States v. Hollister, 746 F.2d 420

PCT—~Eh os coo 5 . 5 « « « 10, 28

United States v. Johnson, 516 F.2d 209,

214 (8th Cir. 1975), cert. denied 423

U.S. 859, 996 S.Ct. 112, 46 L.Ed.2d 85

(1975) * * * * sd . * > ° * * 7 * . * 26

United Stat — lot hi

Guam, 658 F.2d 697 (9th Cir. 1981) 10, 30

a eee eaeuelty Ine. Co. , 250

$6.28 791 (ie. i974) ..- a, ae, 28

Co., 618 F.2d 332, 337 (5th Cir. 1980) 29

STATUTES :

Pemeueeme mee hos 6 «© © © © © © © eo oe ODD

- vi-

Se IS Ne 6 oe ee

P.R.C.Ps Ruse 56 4, 9, 11, 12, 27, 33-36

PoRsR. REL. 4014 « « « « 2 © 49, 26, Bh

P.R.B. Rule 402...» «© «© «© 4, 9, 28, 31

- vii -

—

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NO.

DENMAN RUBBER MANUFACTURING COMPANY

AND CENTRAL NATIONAL INSURANCE

COMPANY OF OMAHA,

PETITIONERS

VS

VERDA D. HALL,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

A writ of certiorari is respectfully

sought to review the judgment of the

United States Court of Appeals for the

Fifth Circuit which reversed a summary

judgment granted by the United States

District Court for the Eastern District of

Louisiana.

a

, ~

OPINIONS BELOW

The opinion and judgment of the Court

of Appeals reversing the District Court’s

summary judgment in favor of petitioners

(Appendix A) was not reported.

The order of the Court of Appeals

denying the petition for rehearing appears

in Appendix B.

The amended judgment of the District

Court entering a final judgment pursuant

to FRCP 54(b) in favor of Denman Rubber

Manufacturing Company and Central National

Insurance Group of Omaha and dismissing

Verda D. Hall’s claim with prejudice

appears in Appendix C.

The judgment of the District Court

entering a final judgment pursuant to

FRCP 54(b) in favor of Denman Rubber

Manufacturing Company only and dismissing

a

a

the claims of Verda D. Hall with prejudice

appears in Appendix D.

The minute entry and order of the

District Court ordering that a final

judgment be entered appears in Appendix E.

The minute entry and order of the

District Court denying Verda D. Hall’s

motion to reconsider the granting of

summary judgment appears in Appendix F.

The minute entry and order of the

District Court granting the motion for

summary judgment appears in Appendix G.

The transcript of the hearing of the

motion for summary judgment appears in

Appendix H.

JURISDICTION

The judgment of the Court of Appeals

(Appendix A) was entered on May 31, 1989.

A petition for rehearing was denied on

—_e—- —_ —_ ——Eoo oOo _—_— —__— OEE ll =

—

eee

mw en rm ee i er ees ee eee ee ae ew oS we ee we

June 30, 1989. (Appendix 8B). The

jurisdiction of this Court is’ invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

3 F.R.C.P. Rule 56 (Appendix I).

2. F.R.E. Rule 401 (Appendix J).

3. F.R.E. Rule 402 (Appendix K).

STATEMENT OF THE CASE

On July 22, 1985, Verda D. Hail was

injured while attempting to mount a 16

inch tire on a 16 1/2 inch rim. On Margh

5, 1986, he filed a petition for damages

in the Civil District Court for the Parish

of Orleans, State of Louisiana, naming as

defendants the Coats Company, inc.,

manufacturer of the tire changing machine

and their insurer. This cause of action

was thereafter removed by the Coats

Company to the United States District

Court for the Eastern District of

Louisiana on grounds of diversity

jurisdiction. On December 29, 1986,

plaintiff joined Denman Rubber

Manufacturing Company and its insurer,

Central National Insurance Company of

Omaha as additional defendants.

On October 6, 1987, after the second

discovery deadline had passed,

petitioners, Denman Rubber Manufacturing

Company and Central National Insurance

Company of Omaha, timely moved for summary

judgment on the grounds that Verda D. Hall

had failed to come forward with any

admissible evidence that the tire

manufactured by Denran Rubber was

defective at the time it left the control

of the manufacturer.

Hall opposed the motion for summary

judgment by offering part of the

deposition testimony of the Coats

— —

nn nn | DS rq a wr rr re ee ee ee ee ee st

Company’s expert, Jim Holladay. Jim

Holladay, Coats’ expert, testified in his

deposition that, assuming the tire had

been inflated to only 30 PSI when it blew

up and assuming the tire rim remained on

the machine after the explosion, a defect

may have caused the explosion. The Court

of Appeals, in its decision of May 31,

1989, found that both of these assumed

facts were sufficiently disputed to

survive summary judgment under Celotex

Corp. v. Catrett, 106 S.Ct. 2548 (1986).

(Appendix A, p. 4a). For the purposes of

}

petitioners’ motion, these two assumed

facts underlying Mr. Holladay’s opinion

may be taken as true, as it is only with

Mr. Holladay’s opinion where respondent’s

burden of proof founders.’

: Respondent Hall and his co-worker,

Reginald Reese, testified that Hall had

inflated the tire to only 30 PSI. Hall,

Reese and their supervisor all testified

that the rim remained on the machine after

the explosion.

Secitentinees a:

j

a

,

,

3

)

/

‘

Mr. Holladay, after first assuming

these facts to be true, testified in his

deposition that, while the accident tire

was not in normal use at the time of the

accident and while the warning labels on

the tire were adequate, there were three

possible scenarios for the cause of the

accident: (1) gross over-inflation by the

plaintiff; (2) damage by plaintiff during

the mounting process; and (3) a

manufacturing defect in the tire. (R.,

pp. 330-333). However, Mr. Holladay never

set forth any factual basis whatsoever for

his possible scenario of the alleged

manufacturing defect in the tire.

On November 5, 1987, petitioner’s

motion for summary judgment was granted by

the District Court. The District Court

found that Mr. Holladay’s proferred

testimony that "it may have been a

i

defective tire" amounted to nothing more

than a "gratuitous observation,"

"gratuitous and, heretofore at least,

unsupported notions of their (Coats)

alleged expert," and "a gratuitous and

perhaps even irresponsible observation by

this so-called expert." (Appendix H,

pp. 18a, 18a, 23a and 23a, respectively).

After first retaining the services of

a new expert, Verda D. Hall moved for a

reconsideration of the previously granted

motion for summary judgment. This motion

to reconsider was thereafter denied by the

District Court on March 29, 1988. On

August 30, 1988, an amended judgment was

rendered in favor of both petitioners,

Denman Rubber Manufacturing Company and

Central National Insurance Company of

Omaha pursuant to Rule 54(b) entering a

final judgment dismissing respondent’s

claims against petitioners with prejudice.

On September 16, 1988, Verda D. Hall

filed a notice of appeal in the United

States Court of Appeals for the Fifth

Circuit. On May 31, 1989, the Court of

Appeals reversed the decision of the Trial

Court. Petitioners’ application for

rehearing was denied on June 30, 1989.

Petitioners now seek relief from this

Honorable Court.

REASONS FOR GRANTING

WRIT OF CERTIORARI

In addition to misinterpreting the

clear language of Federal Rule of Civil

Procedure 56 and totally ignoring Federal

Rules of Evidence 401 and 402, the

decision below is in conflict with Celotex

Corp. v. Catrett, 106 S.Ct. 2548 (1986);

Matsushita Elec. Ind. Co., Ltd. v. Zenith

Radio Corp., 106 U.S. 1348 (1986) and

Anderson v. Liberty Louby, Inc., 106 S.Ct.

re rr re ee ee ey, ee ee

2505 (1986); with the decisions of other

federal court of appeal on the same

matter, Finn v. Consolidated Rail Corp.,

782 F.2d 13 (lst Cir. 1986); Clay v.

Equifax, Inc., 762 F.2d 952 (11th Cir.

1985); Evers v. General Motors Corp., 770

F.2d 984 (1°*h Cir. 1985); United States

v. Hollister, 746 F.2d 420 (8th Cir.

1984); United States v. Various Slot

Machines on Guam, 658 F.2d 697 (9th Cir.

1981); and Merit Motors, Inc. v. Chrysler

Corp., 569 F.2d 666 (DCC 1977); and even

with other applicable decisions of the

United States Court of Appeals for the

Fifth Circuit, Pennington v. Vistron

Corp., 876 F.2d 414 (5th Cir. 1989),

Inc., 819 F.2d 547 (5th Cir. 1987);

Fontenot v. Upjohn Co., 780 F.2d 1190 (5th

Cir. 1986); and Goff v. Continental Oi]

Co., 678 F.2d 593 (5th Cir. 1982).

- 10 =

%

—

I. WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT ERRED

IN REVERSING THE DISTRICT COURT’S

GRANT OF SUMMARY JUDGMENT BY ALLOWING

AN EXPERT’S INADMISSIBLE AND

FACTUALLY UNSUPPORTED DEPOSITION

TESTIMONY OF A POSSIBLE MANUFACTURING

DEFECT TO DEFEAT A PROPERLY SUPPORTED

MOTION FOR SUMMARY JUDGMENT.

A. CELOTEX, MATSUSHITA AND

ANDERSON .

In this Court’s recent decision of

Celotex Corp. v. Catrett, 106 S.Ct. 2548

(1986) this Court found that under Rule

56(c) of the Federal Rules of Civil

Procedure, summary judgment is proper if

the pleadings, depositions, answers to

interrogatories and admissions on file,

together with the affidavits, if any, show

that there is no genuine issue as to any

material fact and that the moving party is

entitled .5S summary judgment as a matter

of law. Once a Motion for summary

judgment has been properly filed and

Supported, Rule 56(e) requires that the

non-moving party go beyond the pleadings

- jl1-

—-

and by affidavits, depositions, answers to

interrogatories or admissions on file to

designate specific facts showing that

there is a genuine issue for trial. This

Court further found that Rule 56(c)

mandates the entry of summary judgment

after adequate time for discovery and upon

motion, against the party who fails to

make a showing sufficient to establish the

existence of an element essential to that

party’s case and on which that party will

bear the burden of proof at trial.

In such a situation, the Court found

that there could be no genuine issue as to

any material fact because a complete

faiiure of proof concerning an essential

element of the non-moving party’s case

necessarily renders all other’ facts

immaterial. The moving party is entitled

to judgment as a matter of law because the

non-moving party has failed to make a

sufficient showing on an essential element

- 12 -

of its case with respect to which it has

the burden of proof. Celotex Corp. v.

Catrett, 106 S.Ct. 2548 (1986).

This Court properly stated in Celotex

Corp. v. Catrett, 106 S.Ct. 2548 (1986),

that the Federal Rules of Civil Procedure

have for almost fifty years authorized

motions for summary judgment upon proper

showing of lack of genuine, triable issues

of material fact. Summary judgment

procedure is properly regarded not as a

disfavored procedural shortcut, but rather

as an integral part of the Federal Rules

as a whole, which are designed to secure

the just, speedy and inexpensive

determination of every action. Federal

Rules of Civil Procedure 1; see Schwarzer,

Summary Judgment Under the Federal Rules:

Defining Genuine Issues of Material Fact,

99 F.R.D. 465, 467 (1984). Additionally,

one of the principal purposes of the

summary judgment rule is to isolate and

- 13 -

disp»xse of factually unsupported claims or

defenses.

As this Court has previously stated,

a party opposing summary judgment must "do

more than simply show that there is some

metaphysical doubt as to the material

facts." Matsushita Elec. Ind. Co., Ltd.

v. Zenith Radio Corp., 106 U.S. 1348

(1986). The same should be true of

"possible scenarios."

The Court of Appeals in this matter,

as did the Court of Appeals in Celotex

Corp. v. Catrett, 756 F.2d 181 (DCC 1985),

declined to consider petitioners’ argument

that the evidence produced by respondent

in opposition to their motion for summary

judgment would have been inadmissible at

trial. As the dissenting judge of the

Court of Appeals stated i: Celotex Corp.

v. Catrett, 756 F.2d 181 (DCC 1985), the

majority’s decision here also "undermines

the traditional authority of trial judges

- 14 -

to grant summary judgment in meritless

cases." Id., at 756 F.2d 187.

This Court, in reviewing the summary

judgment determination granted in Anderson

v. Liberty Lobby, Inc., 106 S.Ct. 2505

(1986) stated at p. 2512 as follows:

"Progressing to the specific

issue in this case, we are

convinced that the inquiry

involved in a ruling on a motion

for summary judgment or for a

directed verdict necessarily

implicates the substantive

evidentiary standard of proof

that would apply at the trial on

the merits. If the defendant in

a run-of-the-mill civil case

moves for a summary judgment or

for a directed verdict based on

the lack of proof of a material

fact, the judge must ask himself

not whether he thinks’~ the

evidence unmistakably favors one

Side or the other but whether a

fair-minded jury could return a

verdict for the plaintiff on the

evidence presented. The mere

existence of a scintilla of

evidence in support of the

plaintiff’s position will be

insufficient; there must _ be

evidence on which the jury could

reasonably find for the

plaintiff. The judge’s inquiry,

therefore, unavoidably asks

whether reasonable jurors could

find by a preponderance of the

evidence that the plaintiff is

- 15 ~

ce, frre =a OL —— —

entitled to a verdict --

‘whether there is [evidence]

upon which a jury can properly

proceed to find a verdict for

the party. producing it, upon

whom the onus of proof is

imposed.’"

This Court further noted in Anderson

v. Liberty Lobby, Inc., 106 S.Ct.

(1986) at p. 2510:

"In First National Bank of

, ti 3

391 U.S. 253, 88 S.Ct. 1575, 20

L.Ed.2d 569 (1968), we affirmed

a grant of summary judgment for

an antitrust defendant where the

issue was whether there was a

genuine factual dispute as to

the existence of a conspiracy.

We noted Rule 56(e)’s provision

that a party opposing a properly

supported motion for summary

judgment ‘may not rest upon the

mere allegations or denials of

his pleading, but - . . must set

forth specific facts showing

that there is a genuine issue

for trial.’

"We went on to hold that, in the

face of the defendant’s properly

supported motion for summary

judgrent, the plaintiff could

not rest on his allegations of

a conspiracy to get to a jury

without ‘any significant

probative evidence tending to

support the complaint.’ Id., at

290, 88 S.Ct., at 1593."

- 16 -

2505

————

re ee ee ee a ee ee ee ee

a

B. PRODUCTS LIABILITY LAW OF

LOUISIANA.

In order to be successful in a

products liability claim, under Louisiana

law, plaintiff has the burden of proving

the following:

ie That there was a defect in the

product which existed at the time of its

manufacture;

ai That the product was in normal

use at the time of the incident sued upon;

3. That the product was

unreasonably dangerous in that use; and

4. That the plaintiff’s injury was

caused by the defect in the product.

See, Weber v. Fidelity & Casualty Jns.

Co., 250 So.2d 751 (La. 1971), Scott v.

White Trucks, 699 F.2d 714 (5th Cir.

- 17 =

1983); Robertson v. Superior PMI, Inc.,

791 F.2d 402 (5th Cir. 1986); Bell v. Jet

Wheel Blast, 462 So.2d 166 (La. 1985).

Cc. RESPONDENT, HALL, FAILED TO

PRODUCE ANY ADMISSIBLE EVIDENCE

OF DEFECT.

The accident in question occurred on

July 22, 1985. Petitioners’ motion for

summary judgment was filed over two years

after the date of the accident and in that

period of time Hall was unable to come

forward with any admissible evidence

whatsoever to demonstrate that the tire at

issue was defective.

Petitioner’s original motion for

summary judgment (Rh... p. 367) was

supported by the deposition testimony of

plaintiff’s own expert, Robert T. Bell, by

the deposition testimony of the expert of

The Coats Company, Jimmy Holladay, as well

as by the deposition testimony of the

plaintiff himself. Furthermore, the

- 18 -

motion for summary judgment was supported

by the warnings placed on the tire at

issue specifically stating not to mount a

16 inch tire on a 16% inch rin. ¢

pp. 314-315).

At the time of petitioner’s motion

for summary judgment, plaintiff had

retained the expert services of Robert T.

Bell. Mr. Bell testified at his

deposition that:

i. He had never examined the

accident tire. (R., p. 325).

2. He had no opinion as to whether

the accident tire was defective. (R.,

pp. 326-329).

Be Plaintiff was misusing the tire

at the time of the accident. [Re«

pp. 326-329).

4. The warning labels on the tire

were adequate. (R., pp. 326-329).

Therefore, at the time of

petitioners’ motion for summary judgment,

respondent’s own expert, Robert T. Bell,

could not testify regarding any condition

of the tire which rendered it defective.

Respondent Hall also attempted to rely on

the expert testimony of Jimmy Holladay of

The Coats Company, Inc. Mr. Holladay

testified in his deposition that:

i. The accident tire was not in

normal use at the time of the accident.

(R., pp. 330-333).

2. The warning labels on the tire

were adequate. (R., PP. 330-333).

Mr. Holladay further testified in his

deposition that he had developed three

possible scenarios for the cause of the

accident:

i. Gross over-inflation by

respondent Hall (R., pp. 330-333);

26 Damage by respondent Hall during

the mounting process (R., pp. 330-333);

and

- 20 -

——

————_

as A manufacturing flaw in the tire

(R., pp. 330-333).

However, Mr. Holladay set forth no

factual basis for his possible scenario of

the manufacturing flaw in the tire.

At the hearing on petitioner’s motion

for summary judgment, the District Court

found that the statement of Mr. Holladay

regarding a manufacturing flaw in the tire

was nothing more than an _ unsupported

gratuitous observation. (Appendix H,

ip. 23a).

In addition to the lack of any expert

testimony regarding a defect in the tire

at issue, petitioner’s motion for summary

judgment was supported by the testimony of

respondent Hall himself indicating he was

well aware of the dangers of attempting to

mount a 16 inch tire on a 16% inch rim.

(R., pp. 322-324).

In reversing the decision of the

Trial Court, the United States Court of

me Pe, as oad

tte eneienneealt

Appeals for the Fifth Circuit found that

there was a material issue of fact as to

whether the tire at issue was defective

based on the testimony of Coats’ expert,

Jimmy Holladay. Mr. Holladay testified in

his deposition that assuming (1) the tire

had been inflated to only 30 PSI when it

blew up, and (2) the tire remained on the

machine after the explosion, a defect in

the tire MAY have caused the explosion.

(R., pp. 146, 209-210). |

The Court of Appeals found that:

"Both of these assumed facts

were sufficiently disputed to

survive summary judgment under

97

U.S. 317 (1986)." (Appendix A,

p. 4a).

The Court of Appeals further stated

concerning this that:

"The district court did not

reject the contention that

either of these underlying facts

was in dispute or that each may

have been material. Instead, it

simply chose to disregard Hall’s

testimony as purely self-

serving. We agree with

plaintiff that such treatment

- 22-

—_

i

i

was improper at the summary

judgment level." (Appendix A,

p. 5a).

The Court of Appeals further

chastised the District Court as follows:

"The summary judgment’ record

revealed that one of' Coats’s

defenses to its own liability

would be that the tire was

defective. Where its expert

testified to this effect, based

upon assumed facts which

unquestionably were in dispute,

it is not for the trial judge to

reject such testimony out of

hand in excusing a co-defendant

from trial. Such credibility

determinations and weighing of

the evidence are

quintessentially the province of

the jury and should not be

carried out summarily before the

development of the full record."

(Appendix A, p. 5a).

It should be quite apparent that the

District Court was more intimately

familiar with the facts of this case than

was the Court of Appeal. At no time did

petitioners dispute the two assumed facts

above. See Transcript of Hearing of the

Motion for Summary Judgment (Appendix H,

p. 16a). For the purposes of this motion,

- 23-

Set RRB I Rt a TTR TE IC nT ena aa,

ee

these two assumed facts may be taken as

true.

However, the District Court did

astutely recognize two important matters

that the Court of Appeals has ignored:

as That Mr. Holladay’s conclusion

was only that the tire may have been

defective (Appendix H, p. 18a); and

2s Mr. Holladay’s observation that

there was a manufacturing defect in the

tire was wholly unsupported by any factual

evidence (Appendix H, pp. 21a, 23a).

Simply put, the Court of Appeals

erroneously assumed that the facts of the

accident "unquestionably were in dispute"

and that respondent Hall and the expert he

offered in opposition to the motion for

summary judgment had provided specific

facts of a manufacturing defect to support

the conclusory allegations of such

- 24 <

manufacturing defect when the record

clearly shows no such specific supporting

facts were ever offered. While there were

certainly “underlying facts" as to-now the

accident happened, i.e. (1) 30 PSI and

(2) the tire remained on the machine after

the explosion, no real facts probative of

a manufacturing defect were ever produced

by~respondent, e.g. (1) that the tire was

improperly vulcanized or (2) that the

steel belt was broken before’ this

accident.

The District Court, therefore, made

no such credibility determination or

weighing of the evidence, as there was no

such admissible evidence on this essential

element of respondent’s case. While the

District Court may have failed _ to

specifically articulate its reasons during

the hearing, it is obvious that it felt at

that time that the opinion of the "so-

called expert" was inadmissible ("may have

- 25 -

———

—<$— — — —

been defective") and that the "so-called

expert’s" conclusory allegations of a

manufacturing defect were without specific

supporting facts ("gratuitous and

heretofore at least, unsupported notions

of their alleged expert") and had no

probative value whatsoever.

The Court of Appeals, in so

chastising the District Court, failed to

follow its own prior rulings. In Goff v.

Continental Oil Co., 678 F.2d 593 (5th

Cir. 1982), it stated at page 596:

"The determination of the

admissibility of evidence is

within the broad discretion of

the trial court and will not be

disturbed absent an abuse of

discretion resulting in

substantial prejudice to the

rights of a party. Dickerson v.

2 , 659

F.2d 574, 579 and n. 15 (5th

Cir. 1981); Fed.R.Evid. 103(a)."

See also, United States v. Bernhardt, 642

F.2d 251, 253 (8th Cir. 1981) (per

curiam); United States v. Johnson, 516

F.2d 209, 214 (8th Cir. 1975), cert.

- 26 -

~

denied 423 U.S. 859, 996 S.Ct. 112, 46

L.Ed.2d 85 (1975).

It is indisputable that a Rule 56

determination must be made only upon

admissible evidence. FRCP 56(e).

Material that would be inadmissible at

trial cannot be considered on a motion for —

summary judgment because, if offered at

trial, it would not serve to establish a

genuine issue of material fact. Finn v.

Consolidated Rail Corp., 782 F.2d 13 (list

Cir. 1986) at p. 16; Clay v. Equifax,

Inc., 762 F.2d 952 (l1ith Cir. 1985) at p.

956; Merit Motors, Inc. v. Chrysler Corp.,

569 F.2d 666 (DCC 1977); 10(A) C. Wright,

A. Miller & M. Cane, Federal Practice &

Procedure: Civil §2727 at p. 156 (2nd Ed.

1983); and 6 Moore Federal Practice §56.-

15[7].

By accepting Mr. Holladay’s testimony

concerning “possible scenarios" and that

"a defect in the tire may have caused the

- 27 -

explosion," the Court of Appeals totally

ignores the clear expression of Congress

embodied in Federal Rules of Evidence,

Rule 401 and 402. The admission of

testimony phrased in terms of "possible"

and "may" hardly has “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." FRE

401. (emphasis added). Under FRE 402,

such "{(e]jvidence which is not relevant is

not admissible."

In the case of United States v.

Hollister, 746 F.2d 420 (8th Cir. 1984),

the United States Court of Appeals for the

Eighth Circuit stated at aie 422 as

follows:

"Although the definition of

‘relevant evidence’ given in

Federal Rule of Evidence 401 is

broad, it does have limits.

Evidence must be probative of a

fact of consequence in the

matter, and must have a tendency

to make the existence of that

- 28 -

fact more or less probable than

it would have been without the

evidence. See Fed.R.Evid. 401.

Under the Federal Rules of

Evidence, the trial judge has

broad discretion in determining

relevancy and admissibility.

United States v. Bernhardt, 642

F.2d 251, 253 (8th Cir. 1981)

(per curiam); United States v.

Johnson, 516 F.2d 209, 214 (8th

Cir. 1975), cert. denied 423

G28. 959, 996 $.Ct. 112, 46

L.Ed.2d 85 (1975)."™

See also, Young v. Illinois Central Gulf

Railroad Co., 618 F.2d 332, 337 (5th Cir.

1980); Dickerson v. Metropolitan Dade

County, 659 F.2d 574, 579 and n. 15 (5th

Cir. 1981).

The error of the Court of appeals is

further compounded by its failure to

require that respondent’s "adopted" expert

ground his opinion of "possible scenarios"

on some solid factual basis. In its

affirmation of a summary judgment granted

to a manufacturer in a product liability

action not unsimilar to the present action

before the Court, the Court of Appeals for

- 29 -

the Eleventh Circuit in Evers v. General

Motors Corp., 770 F.2d 984 (11th Cir.

1985) stated at p. 986:

COrp.,

and United States v. Various Slot Machines

on Guam, 658 F.2d 697 (9th Cir. 1981) at

"This court has consistently

held that conclusory allegations

without specific supporting

facts have no probative value.

Gordon v. Terry, 684 F.2d 736,

748° 24308 Cit. 3902); cert.

denied 459 U.S. 1203, 103 S.Ct.

1188, 75 L.Ed.2d 434 (1983);

Broadway v. City of Montgomery,

530 F.2d 657, 660 (5th Cir.

1976)."

The Evers court went on to state also

986:

"We agree with our’ sister

circuits and hold that a party

may not avoid summary judgment

solely on the basis of an

expert’s opinion that fails to

provide specific facts from the

record to support its conclusory

allegations."

See also, Merit Motors, Inc. v. Chrysler

569 F.2d 666 (DCC 1977) at p. 672,

700-701.

- 30 -

To paraphrase part of the Ninth

Circuit’s opinion in the above case, where

in the depositions submitted by respondent

does he present specific facts showing

that there is a genuine issue for trial?

No specific factual testimony was ever

adduced from Mr. Holladay or any other

expert of any factual evidence that was

probative of a manufacturing defect in the

tire.

Mr. Holladay’s testimony, offered in

opposition to the summary judgment motion,

axes no more than to suggest that a

manufacturing defect was "theoretically

possible" under his assumed _ facts.

However, Federal Rules of Evidence Rules

401 and 402 mandate that respondent’s

burden of proof is "probability".

Respondent must do more than simply show

that there is some metaphysical doubt on

the issue of whether there was a

/

manufacturing defect in the tire.

- 31-

Mat hita E] Ind. ¢ Ltd it)

Radio Corp., 106 S.Ct. 1348 (1986).

In the present case, respondent has

exhibited a complete failure of proof

concerning the most essential element of

his case. Nowhere has he exhibited any

proof that a manufacturing defect in the

tire, more probably than not, caused the

tire to explode. As such, under Celotex

Corp. v. Catrett, 106 S.Ct. 2548 (1986),

this complete failure of proof necessarily

renders all other facts immaterial.

It is indisputable that a jury

hearing this matter could not return a

verdict for the plaintiff on the basis

that "a manufacturing defect in the tire

may have caused it to explode." Thus,

under Anderson v. Liberty Lobby, Inc., 106

S.Ct. 2505 (1986), since respondent’s

2vidence cannot be said to be

significantly probative on this one most

essential element of his case upon which

- 32 -

ReEE=E—_—"—> ———— eel

=

SS

A a tl ae _

ee ee ee ee ee

he bears the burden of proof, summary

judgment must be granted.

While there have been other instances

where courts of appeal have sanctioned

expert testimony phrased in terms of

possible causes. (Fernandez v. Chios

Shipping Co.;"Ltd., 542 F.2d 145 (2nd Cir.

1976) at p. 154), this case presents this

Court with the opportunity to expand on

its prior opinions in Celotex Corp. v.

Catrett, 106 S.Ct. 2548 (1986), Matsushita

Elec. Ind. Co., Ltd. v. Zenith Radio

Corp., 106 S.Ct. 1348 (1986) and Anderson

vy. Liberty Lobby, Inc., 106 S.Ct. 2505

(1986), so as to definitively articulate

the standards for the admissibility of

evidence in Rule 56 determinations which

has not been addressed by this Court. The

decision of the panel of the Court of

Appeals for the Fifth Circuit in this case

is in substantial conflict with both the

decisions of its sister courts of appeal

- 33 -

and other decisions within the Fifth

Circuit. It disregards the clear dictates

-of the Federal Rules of Evidence.

Further, the decision of the Court of

Appeals serves to undermine this Court’s

decisions in Celotex Corp. v. Catrett, 106

S.Ct. 2548 (1986), Matsushita Elec. Ind.

Co., Ltd. v. Zenith Radio Corp., 106 S.Ct.

2548 (1986), and Anderson v. Liberty

Lobby. Inc., 106 S.Ct. 2505 (1986), which

sought to provide clear directives to the

lower courts and litigants regarding

summary judgment practice. If a

definitive pronouncement is not given by

this Court concerning the admissibility of

evidence in Rule 56 determinations, it

will only serve to further undermine this

Court’s prior pronouncements in 1986 on

summary judgment practice.

- 34 <

II. WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT ERRED

IN REVERSING THE DISTRICT COURT’S

GRANT OF SUMMARY JUDGMENT BY NOT

HOLDING THAT PLAINTIFF HAD FAILED TO

COME FORWARD WITH SUFFICIENT PROOF OF

AN ESSENTIAL ELEMENT OF HIS CASE

UNDER STATE LAW, I.E., THAT THE TIRE

AT ISSUE WAS IN NORMAL USE AT THE

TIME OF THE ACCIDENT.

The decision of the Court of Appeals

for the Fifth Circuit is in material

conflict with this Court’s pronouncement

in Celotex Corp. v. Catrett, 106 S.Ct.

2548 (1986) and FRCP 56(c).

As previously stated in Section I,

one of the elements upon which a plaintiff

has the burden of proof in a product

liability action in Louisiana is that the

product must be in normal use at the time

of the accident sued upon. Weber v.

Fidelity & Casualty Ins. Co., 250 So.2d

751 (La. 1971), Scott v. White Trucks, 699

F.2d 714 (5th Cir. 1983); Robertson v.

Superior PMI, Inc., 791 F.2d 402 (5th Cir.

- 35 -

1986); Bell_v. Jet Wheel Blast, 462 So.2d

166 (La. 1985).

In Celotex Corp. v. Catrett, 106

S.Ct. 2548 (1986), this Court found that

Rule 56(c) mandates the entry of summary

judgment, after adequate time for

discovery and upon motion, against the

party who fails to make a_=e showing

sufficient to establish the existence of

an essential element to that party’s case

and on which that party will bear the

burden of proof at trial. In euch a’

situation, the Court must find that there

can be no genuine issue as to any material

fact because a complete failure of proof

concerning an essential element of the

non-moving party’s case necessarily

renders all other facts immaterial. The

moving party is entitled to judgment as a

matter of law because the non-moving party

has failed to make a sufficient showing on

an essential element of his case with

- 36 -

t

\

\

\

\

respect to which he has the burden of

proof.

Although petitioners strongly contend

that respondent Hail did not come forward

with any admissible evidence whatsoever of

a defect in the tire at issue, even

assuming for the sake of argument that

respondent Hall did come forward with

sufficient evidence of a defect to defeat

petitioners’ motion for summary judgment

on that issue, respondent Hall has further

shown a complete and total failure to

prove that the product was in normal use

at the time of the accident sued upon.

At the time of petitioners’ original

motion for summary Siihiciipht:; respondent

Hall had retained the expert services of

Mr. Robert T. Bell. Mr. Bell testified at

his deposition that:

Ze He had never examined the

accident tire (R. p. 325);

- 37 -

Ze He had no opinion as to whether

the accident tire was defective (R., pp.

326-329);

3 Respondent Hall was misusing the

tire at the time of the accident (R., pp.

326-329); and

4. The warning labels on the tire

were adequate (R., pp. 326-329).

Additionally, Jimmy Holladay, expert

for The Coats Company, whose testimony

respondent Hall adopted, testified that:

A. The tire was not in normal use

at the time of the accident (R., pp. 330-

333);

Zs The warning labels on the tire

were adequate (R., pp. 330-333).

Under Louisiana law, as first

pronounced in Weber v. Fidelity & Casualty

Ins. Co., 250 So.2d 751 (La. 1971), at p.

755, the definition of a defect is a

condition which causes a product to be

"unreasonably dangerous to normal use,"

- 38 -

Mr. Bell’s lack of opinion as to whether

the accident tire was defective

necessarily means he has no opinion as to-

whether the tire was in normal use.

Thus, the only expert testimony presented

at the hearing on the motion for summary

judgment on the issue of whether che tire

was in normal use, that of Jimmy Holladay,

unequivocally found that the accident tire

was not in normal use at the time of the

accident. Respondent Hall presented no

evidence whatscever to the contrary.

Thus, even if there was’7 sufficient

_. evidence to satisfy the first essential

element of plaintiff’s claim, i.e., that

the product was defective, the District

Court’s summary judgment should have been

affirmed by the Court of Appeals on the

. basis that under Celotex Corp. v. Catrett,

106 S.Ct. 2548 (1986), respondent Hall

failed to prove another essential element

- 39 -

of his claim, that the tire was in normal

use at the time of the accident.

The panel of the Court of Appeals for

the Fifth Circuit failed not only to

follow the pronouncement of this Court in

Celotex, but also failed to follow its own

prior decisions in this regard.

Pennington v. Vistron Corp., 876 F.2d 414

(5th Cir. 1989) at pp. 426-427; Martin v.

John W. Stone Oil Distributor, Inc., 819

F.2d 547 (5th Cir. 1987) at p. 549; and

Fontenot v. Upjohn Co., 780 F.2d 1190 (5th

Cir. 1986) at p. 1196.

As the Court of Appeals for the Fifth

Circuit itself stated in Martin v. John W.

Stone Oj] Distributor, Inc., 819 F.2d 547

(5th Cir. 1987), at p. 549:

". . . [A] party seeking summary

judgment may rely upon the

complete absence of proof of an

essential element of the other

party’s cause. Fontenot v.

Upjohn Co., 780 F.2d 1190, 1196

(5th Cir. 1986). ‘*[{T]he movant

may discharge his burden by

demonstrating that if the case

went to trial there would be no

- 40 -

competent evidence to support a

judgment for his opponent.’

Id., ‘quoting 10(a), C. Miller,

A. Wright, M. Cane, Federal

Practice & Procedure: Civil 2d

§2727 at 130 (1983) (hereinafter

Wright))."

Here, the very deposition testimony

which respondent Hall adopted to oppose

your petitioners’ motion for summary

judgment proves petitioners’ entitlement

to the relief sought. Mr. Holladay states

clearly that the tire was not in normal

use. This lack of an essential element of

respondent Hall’s case, upon which he bore

the burden of proof, was also ignored by

the Court of Appeals in its rush to

judgment. By doing so, the Court of

Appeals also ignores this Court’s explicit

pronouncement in Celotex Corp. v. Catrett,

106 S.Ct. 2548 (1986).

- 41 =

CONCLUSITLILON

The Petition for a Writ of Certiorari

should, therefore, be granted. Indeed, so

clear is the error of the Court of

Appeals, it is submitted that_ the

appropriate relief would be the summary

reversal of the decision.

Respectfully submitted,

BERNARD, CASSISA,

SAPORITO & ELLIOTT

A Professional Law

Corporation

Cladeett Attichtaeogf

ROBERT A. MCMAHON,

HOWARD B. KAPLAN

1615 Metairie Road

P.O. Box 55490

Metairie, LA 70055-5490

Phone: (504) 834-2612

Attorneys for Petitioners

. 7 ee = = aa Datel ae = Saad ae —— a asaiil Bacal Dene Di lal —

i

! a oe

{

————

—

APPENDIX A

IN THE UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

NO. 88-3591

Summary Calendar

VERDA D. HALL,

Plaintiff-Appellant

versus

THE COATS COMPANY, INC., ET AL.,

Defendants,

DENMAN RUBBER MANUFACTURING COMPANY AND

CENTRAL NATIONAL INSURANCE COMPANY OF

OMAHA,

Defendants-Appellees.

Appeals from the United States

District Court for the Eastern

District of Louisiana

(CA-86-1729-M)

(May 31, 1989)

Before POLITZ, KING, and SMITH, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:*

* Local Rule 47.5.1 provide: "The

publication of opinions that have no

precedential value and merely decide

particular cases on the basis of well-

settled principles of law imposes needless

expense on the public and burdens on the

legal profession." Pursuant to that rule,

the court has determined that this opinion

should not be published.

- la -

Plaintiff Verda D. Hall was seriously

injured while changing a tire in the

course of his employment. Hall

subsequently brought a products liability

suit in Louisiana state court against the

Coats Company ("Coats") (the manufacturer

of the tite~changine machine), the owners

of: he tire Prin, and the unknown

manufacturer of the rim. Coats removed

the case to federal court based upon

diversity. Denman Rubber Corporation

(sic) ("Denman"), the manufacturer of the

exploded tire, and Central National

Insurance Company of Omaha ("Central"),

its liability insurer, were then brought

into the suit as co-defendants, based upon

testimony by Coats’s expert that a defect

in the tire may have caused the explosion.

Coats (sic) filed a motion for summary

judgment, arguing that there was

insufficient evidence of a _ possible

- 2a -

defect. The trial court granted this

motion. Plaintiff’s subsequent motions to

reconsider and to recall the summary

judgment and to remand the case to state

court were denied. He now appeals from

the entry of final judgment for Denman and

Central.

On appeal, plaintiff contends that

summary judgment was inappropriate because

there was a disputed question of material

fact that the tire may have’ been

defective, and that the trial court erred

in not recalling the summary judgment

after he came forward with new expert

testimony on the question of a possible

defect. We reverse on the ground that the

original summary record reveals a material

question of fact that the tire may have

been defective.’

* Because we conclude that plaintiff

met his burden in defending against the

summary judgment, we need not, and do not,

address the question of whether the trial

court abused its discretion in not

reopening the record in light of the new

expert testimony.

- 3a -

— ———_—_— —_—— —_-

In order to recover against Denman

and Central, plaintiff has to establish,

inter alia, that the tire was defective.

Weber _v. Fidelity & Cas. Ins. Co., 250

So.2G 751, 755-56 (La. 1971). Jim

Holladay, Coats’s expert, testified in his

deposition that, assuming the tire rim

remained on the machine after’ the

explosion and the tire had been inflated

to only thirty PSI when it blew up, a

defect in the tire may have caused the

explosion. Both of these assumed facts

were sufficiently disputed to survive

summary judgment under Celotex Corp. v.

Catrett, 477 U.S. 317 (1986).’

*Plaintiff and Reginald Reese

testified that plaintiff had inflated the

tire to only thirty PSI, while plaintiff,

Reese, and Larry Frost all testified that

the rim remained on the machine after the

explosion.

- 4a -

The district court did not reject the

contention that either of these underlying

facts was in dispute or that each may have

been material. Instead, it simply chose

to disregard Hall’s testimony as purely

self-serving. We agree with plaintiff

that such treatment was improper at the

summary judgment level.

The summary judgment record revealed

that one of Coats’s defenses to its own

liability would be that the tire was

defective. Where its expert testified to

this effect, based upon assumed facts

which unquestionably were in dispute, it

is not for the trial judge to reject such

testimony out of hand in excusing a co-

defendant from trial. Such credibility

determinations and weighing of the

evidence are quintessentially the province

of the jury and should not be carried out

summarily before the development of the

full record. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986); Honore v.

Douglas, $33 F.2d 565, 567 (Sth Cir.

1987).

Accordingly, the summary judgment for

the defendants is VACATED, and the matter

is REMANDED for further proceedings

consistent herewith. In vacating, we of

coures express no view as to the ultimate

merit and disposition of plaintiff’s

claim.

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 88-3591

VERDA D. HALL,

Plaintiff-Appellant,

versus

a

THE COATS COMPANY, INC., ET AL.,

Defendants,

DENMAN RUBBER MANUFACTURING COMPANY, and

CENTRAL NATIONAL INSURANCE COMPANY OF

OMAHA,

Defendants~Appellees.

Appeal from the United States District

Court for the Eastern District

of Louisiana

ON PETITION FOR REHEARING

(June 30, 1989)

Before POLITZ, KING and SMITH, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for

rehearing filed in the above entitled and

numbered cause be and the same is hereby

DENIED.

ENTERED FOR THE COURT:

/s/J. SMITH

United States Circuit Judge

- 7Ja-

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL * CIVIL ACTION

*

VERSUS * NO. 86-1729

*

THE COATS COMPANY, * SECTION M

ET AL *

* MAG. 4

. =e 2 2: 2 2 et Ss Ses

JUDGMENT

WHEREAS, upon consideration of

defendants’ motion and the legal memoranda

filed in connection with the Motion for

Summary Judgment against plaintiff, Verda

D. Hall, \and the Minute Entry opinion

rendered by the Court on November 5, 1988;

WHEREAS, all claims of the plaintiff

asserted against defendants, Denman Rubber

Manufacturing Company and Central National

Insurance Company of Omaha, were

determined in that Minute Entry;

WHEREAS, there is no just reason to

delay entering a final judgment pursuant

to Federal Rule of Civil Procedure 54(b)

- 8a -

a ere OEE OO. ll EE FTE OO

eS Ol

in favor of defendants, Denman Rubber

Manufacturing Company and Central National

Insurance Company of Omaha;

IT IS ORDERED, ADJUDGED, AND DECREED

that pursuant to Federal Rule of Civil

Procedure 54(b) all claims asserted by

Verda D. Hall against Denman Rubber

Manufacturing Company and Central National

Insurance Company of Omaha in this matter

are dismissed, with prejudice.

New Orleans, Louisiana, this 30th day

of August, 1988.

UNITED STATES

DISTRICT JUDGE

DATE OF ENTRY

AUGUST 31, 1988

- Ja -

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL CIVIL ACTION

VERSUS NO. 86-1729

THE COATS COMPANY, SECTION: M

ET AL

JUDGMENT

WHEREAS, upon consideration of

defendant’s motion and the legal memoranda

filed in connection with the Motion for

Summary Judgment against plaintiff, Verda

D. Hall, and the Minute Entry opinion

rendered by the Court on November 5, 1988;

WHEREAS, all claims of the plaintiff

asserted against defendant, the Denman

Rubber Manufacturing Company, were

determined in that Minute Entry;

WHEREAS, there is no just reason to

delay entering a final judgment pursuant

to Federal Rule of Civil Procedure 54(b)

in favor of defendant, Denman Rubber

Manufacturing Company;

- 10a -

IT IS ORDERED, ADJUDGED, AND DECREED

that pursuant to Federal Rule of Civil

Procedure 54(b) all claims asserted by

Verda D. Hall against Denman Rubber

Manufacturing Company in this matter are

dismissed with prejudice.

New Orleans, Louisiana, this 11th day

of August, 1988.

poe Vie ve |

UNITED STATES

DISTRICT JUDGE

DATE OF ENTRY

AUGUST 12, 1988

bul

*<

H

Q

Z

ai

ay

A,

rf

MINUTE ENTRY

BEER, J.

11 AUGUST 1988

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL CIVIL ACTION

VERSUS NO. 86-1729

THE COATS COMPANY, SECTION: M

ET AL

This matter came before the Court on

the joint motion of plaintiff, Verda D.

Hall, and defendant, The Coats Company,

for leave of court to file amended

pleadings, to remand this matter to the

state court, and to recall the order

granting summary judgment in favor of

Denman Rubber Manufacturing Company.

Denman Rubber Manufacturing Company

objects to the recall of the order

granting its motion for summary judgment

entered by this Court on November 5, 1987.

Upon consideration of the legal memoranda,

the oral argument of counsel, the record

- 12a -

and the applicable law, the motion to

recall the summary judgment entered in

favor of Denman Rubber Manufacturing

Company is DENIED.

All claims asserted by Verda D. Hall

against Denman Rubber Manufacturing

Company have been fully and completely

adjudicated and there is no just reason to

delay entering a final judgment in favor

of Denman Rubber Manufacturing Company.

The motion to amend the pleadings and

to remand this action to the state court

is DENIED WITHOUT PREJUDICE.

/s/ PETER BEER

DATE OF ENTRY

AUGUST 12, 1988

- 2,38 =

by

~<

—

Q

z

ee)

Oy

Oy

<

MINUTE ENTRY

BEER, J.

25 MARCH 1988

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL CIVIL ACTION

VERSUS NO. 86-1729

THE COATS COMPANY, SECTION: M

ET AL

This matter came before the Court on

the motion of plaintiff, Verda Hall, to

reconsider the summary judgment granted on

behalf of Denman Tire Company on

November 5, 1987.

Upon consideration of the legal

memoranda, the oral argument of counsel,

and the applicable law, the plaintiff’s

motion to reconsider is DENIED.

Accordingly, counsel for Denman Tire

Company is directed to prepare a judgment.

This judgment, however, is not final for

appeal purposes under Rule 54(b) of the

Federal Rules of Civil Procedure.

DATE OF ENTRY /s/ PETER BEER

MARCH 30, 1988

APPENDIX G

MINUTE ENTRY

BEER, J.

5 NOVEMBER 1987

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL CIVIL ACTION

VERSUS NO. 86-1729

THE COATS COMPANY, SECTION: M

ET AL

This matter comes before the court on

the motion for summary judgment by

defendant, Denman Rubber Manufacturing

Company. After consideration of all the

legal memoranda and oral argument of

counsel, the motion for summary judgment

is GRANTED.

Counsel for defendant is to prepare

a judgment.

/s/ PETER BEER

DATE OF ENTRY

NOVEMBER 6, 1987

Te

a nt es emt

a . . 2 ie eee:

APPENDIX H

UNITED STATES DISTRICT COURT

° EASTERN DISTRICT OF LOUISIANA

VERDA D. HALL CIVIL ACTION

VERSUS NO. 86-1729

THE COATS CO., INC., SECTION M

ET AL

TRANSCRIPT OF HEARING OF THE MOTION

FOR SUMMARY JUDGMENT OF DENMAN RUBBER

MANUFACTURING COMPANY, HEARD BEFORE THE

HONORABLE PETER BEER, U.S. DISTRICT JUDGE,

ON WEDNESDAY, NOVEMBER 4, 1987.

REPORTED BY: RHONDA J. BALLARD, CSR

OFFICIAL COURT REPORTER

PROCEEDINGS

(Wednesday, November 4, 1987)

THE CLERK: 86-1729, Varda D. Hall

versus The Coats Company, Inc., et al.

MR. CAPLAN: Good morning, your

Honor. Howard Caplan, on behalf of Denman

Rubber Manufacturing Company.

We have before you a Motion for

Summary Judgment and --

THE COURT: I am familiar with the

facts and the contentions et cetera. Go

right to the point. I suppose your point

is pretty much made in your brief, but

anything that you want to highlight, go

ahead and do so.

MR. CAPLAN: Well, your Honor, the

only thing I would like to highlight as

far as the Plaintiff’s expert, there was

no evidence anything was wrong with our

tire, the warnings were fine. He said the

tire was being misused when he put it on

the machine, and he came forward with no

opinion whatsoever as to whether this tire

is defective. The only possible thing is

our co-defendant who is Coats Machine, has

not filed an opposition.

THE COURT: He made the gratuitous

observation it may have been a defective

tire.

MR. CAPLAN: There is one thing that

I would want to bring to the attention of

this Court that is not in the memorandun.

The subsequent report that he issued was

issued in October of 1986. His deposition

was taken in September of 1987. He was

asked the following:

"Do you have an opinion whether the

tire, the 16 inch tire you identified in

your report, would have exploded at thirty

pounds per square inch if mounted on a 16

inch rim."

"Do I have an opinion as to whether

it could."

- 18a -

r —_——- —

"The question was whether it would

have exploded at thirty PSI if it would

have been mounted on a 16 inch rim."

His answer was: "With what we know

with the tire right now, I really have no

way of answering the question. I don’t

think there is enough today to support an

answer to that question."

Basically, he has no facts to support

his mere allegation that either the beads

were broke on the tire or that there was

some sort of defect. He has come forward

with no facts to support his allegations

of defect. I don’t think there is any

facts from either expert that suggests

that this tire was defective. Simply a

complete lack of evidence.

In response to Mr. Hardy’s

opposition, it is my understanding from

his argument that it is a question of fact

as to whether this tire, when being

mounted in the manner it was being mounted

- 19a -

in this accident, whether that makes this

tire unreasonably dangerous per se.

I think if you follow his argument to

a logical conclusion, Summary Judgment

could never be granted, there would always

be a question of fact whether any product

Was unreasonably dangerous per se. I

think even under unreasonably dangerous

per se, he still has to come forward with

some facts which suggest that this product

is unusually dangerous per se, such as an

apparatus, in the fact that when it is

used in its normal course and the manner

advised it can still cause injury to

people. ;

There has never been any sort of

facts which would suggest that this

product is unreasonably dangerous per Se.

I think that burden is on the Plaintiff to

come forward with some facts. I simply

think there is no facts in the record or

have been put into evidence that suggests

- 20a -

that this tire was defective and I think

that the Summary Judgment is appropriate.

MR. HARDY: Ford Hardy, for the

Plaintiff. True, my expert does not find

the tire defective. The reason why this

company was brought in as the Defendant,

was because the co-defendant ’s ‘expert made

the comment in a report of September 4,

1986 that if the Plaintiff testified

truthfully at his deposition that he did

over inflate the tire while mounting it on

the machine, then the tire contained the

manufacturing defect. Five or six words

that are as clear as a bell. If you are

not going to believe this expert, you have

to disbelieve him on a trial, not on

Summary Judgment.

We deposed the man they had the

chance to go inte it again. On page 56.

He says:

"Mr. Hall damages the tire or it had

a manufacturing defect.

- 21a -

This man testified that he felt he

was a tire expert. If we go to trial,

assuming I do not settle this case, the

jury is going to sit and hear one expert

saying the tire was bad. I want that

party to be sitting here so the jury

doesn’t think, maybe he is right. MThat

tire could have been bad. That machine

looks safe to me. My opinion the machine

is dangerous as you can get, next to a

chain saw. :

THE COURT: I am familiar with the

machine. I am also familiar with the

contention here that doesn’t seem to me to

be challenged that the guy used a 16 and

a half inch rim up for a 16 inch tire.

‘MR. HARDY: He didn’t use it, your

Honor. He came into the process when --

the mounting process when it was on the

rim. The Plaintiff was not contributory.

his boss was. That is something the jury

is going to have to think about at trial.

- 226 °

I don’t want an empty chair sitting here,

the defense expert saying the machine is

not dangerous, the tire is bad, all kinds

of evidence --

THE COURT: I am not sure I am going

to permit any evidence on that. The

gratuitous observation by their expert

seeking to push the contention of

liability off on the tire people can’t

survive on the gratuitous and heretofore

at least, unsupported notions of their

alleged expert.

It seems to me that that is pretty

far-fetched. I think your pleadings were

in order when you drew them up as you did,

and I really don’t see anything here to

seriously support the notion that there is

any impropriety on the part of the tire

manufacturer except what I perceive to be

a gratuitous and perhaps even

irresponsible observation by this so-

called expert.

- 23a -

MR. HARDY: The bead did break in the

tire, that much is confirmed. Given that

set of facts, I didn’t bring the company

in, because my expert felt that the

machine is dangerous, still dangerous,

will be dangerous, very difficult to put

a tire on the rim without a dangerous

machine.

cuaer Halfin (phonetical) he is

right. It is difficult, almost to lose a

products liability case, if you read

Halfin per se and find a dangerous

product. It says you win. That is the

Supreme Court telling the Fifth Circuit

what to do. If you feel that shouldn’t in

this case, I think you ought to have some

sort of ruling by Motion in Liminae to

instruct this expert who feels he is

qualified and he is qualified, he has been

designing these machines for years. He

has been an engineer and well qualified.

The fact he doesn’t agree with my expert,

- 24a -

——

doesn’t make him any less qualified to say

this.

THE COURT: This guy hasn’t expressed

his expertise to that tire at all. He

hasn’t done any examination of the tire.

MR. HARDY: He did inspect the tire,

and found the bead to be broken.

THE COURT: Well, to the extent of

the circumstance which everybody knew the

bead was broken, after it was examined,

after the event took place. Nobody

contends that the bead wasn’t broken.

Everybody agrees that after the fact, the

event of putting a 16 inch tire on the 16

and a half inch mounting device, the bead

was broken. But so what. That is the

extent of his observation, that the bead

was broken. He isn’t telling us anything

that you or an untrained laymen can look

at it and see that the bead is broken.

MR. HARDY: Think what you are doing,

if I may say this, saying I don’t think

- 25a -

these people are liable and Summary

Judgment may or may not be the proper

remedy. The jury has the right to view

this expert, who says the tire was

defective. I think, by what you are

saying, you may be using a common sense

approach, no way the tire can be bad.

They haven’t put the expert’s report into

evidence yet, making this decision, basing

it on the fact any expert didn’t look at

the tire, their expert did. Co-

defendant’s expert found it bad. They are

moving for Summary Judgment saying they

didn’t say it was bad, he did. The proper

vehicle would be at the jury trial to

argue to the jury.

THE COURT: I am annoyed. It isn’t

your fault that the guy comes out with

this sort of gratuitous musing where he

says it is either this or that and then

suddenly as a good lawyer you are stuck

- 2638 -

.

with that musing to the point where you

say wait a minute, I can’t have an empty

seat.

MR. HARDY: The man has a right to

give his opinion. He qualifies, if he

gives his opinion to the jury, they are

out. The obvious out is the man shouldn’t

put the tire, he didn’t chose the tire or

the rim. He was told to go do it. Let

out the tire company now without the jury

to have the right to see Mr. Holliday who

is the machine’s expert, I think puts me

at an unfair advantage at trial.

THE COURT: I think you made a good

argument in a situation where it really

would be tempting for me to grant the

motion. I think your argument is tenuous.

I think you had to make it in light of

what I think is some sort of gratuitous

observation by the Supreme Court of

Louisiana in terms of going as far as they

went in this.

- 27a -

MR. CAPLAN: In response to his

argument, it is equally unfair to make my

client go to trial and to have to defend

a tire where neither expert has come

forward with any facts supporting the tire

is defective.

THE COURT: Thank you gentlemen.

Call the next case.

s 2k @¢. 3 Rk Re 2 @

REPORTER’ S CERTIFICATE

- I, RHONDA J. BALLARD, CSR, Official

Court Reporter for the -United States

District Court for the Eastern District of

Louisiana, do hereby certify that the

foregoing is a full, true and correct

transcript of proceedings had in the

above-entitled and numbered matter.

_/s/ Rhonda J. Ballard _

RHONDA J. BALLARD, CSR

OFFICIAL COURT REPORTER

- 26a -

APPENDIX I

Rule 56 of the Federal Rules of Civil

Procedure governing summary judgment

provides as follows:

"Rule 56. Summary Judgment

"(a) For Claimant. A party

seeking to recover upon a claim,

| counterclaim, or cross-claim or

to obtain a declaratory judgment

may, at any time after the

¥ expiration of 20 days from the

commencement of the action or

after service of a motion for

$ summary judgment, by the adverse

party, move with or without

supporting affidavits for a

summary judgment in the party’s

§ favor upon all or any part

thereof.

"(b) For Defending Party. A

party against whom a clain,

counterclaim, or cross-claim is

asserted or a declaratory

judgment is sought may, at any

time, move with or without

supporting affidavits for a

summary judgment in the party’s

favor as to all or any part

thereof.

®(c) Motion and Proceedings

Thereon. The motion shall be

served at least 10 days before

the time fixed for the hearing.

The adverse party prior to the

day of hearing may serve

opposing affidavits. The

judgment sought shall be

rendered forthwith a the

pleadings, depositions, answers

- 29a -

to interrogatories, and

admissions on file, together

with the affidavits, if any,

show that there is no genuine

issue as to any material fact

and that the moving party is

entitled to a judgment as a

_ matter of law. A summary

judgment, interlocutory in

character, may be rendered on

the issue of liability alone

although there is a genuine

issue as to the amount of

damages. a

"(d) Case Not Fully Adjudicate =

don Motion. If on motion under

this rule judgment is_ not

rendered upon the whole case or

for all the relief asked and a

trial is necessary, the court at

the hearing of the motion, by

examining the pleadings and the

evidence before it and by

interrogating counsel, shail if

practicable ascertain what

material facts exist without

substantial controversy and what

material facts are actually and

in good faith controverted. It

shall thereupon make an order wal

specifying the facts that appear

without substantial controversy,

including the extent to which

the amount of damages or other a

relief is not in controversy,

and directing such further

proceedings in the action as are

just. Upon the trial of the

action the facts so specified

shall be deemed established, and

the trial shall be conducted

accordina’y.

- 30a -

ee

"(e) Form of Affidavits;

Further Testimony; Defense

Required. Supporting and

opposing affidavits shall be

made on personal knowledge,

shall set forth such facts as

would be admissible in evidence,

and shall show affirmatively

that the affiant is competent to

testify to the matters stated

therein. Sworn or certified

copies of all papers or parts

thereof referred to in an

affidavit shall be attached

thereto or served therewith.

The court may permit affidavits

to be supplemented or opposed by

depositions, answers to

interrogatories, or further

affidavits. When a motion for

summary judgment is made and

supported as provided in this

rule, an &4dverse party may not

rest upon the mere allegations

or denials of the adverse

party’s pleading, but the

adverse party’s response, by

affidavits or as otherwise

provided in this rule, must set

forth specific facts showing

that there is a genuine issue

for trial. If the adverse party

does not so respond, summary

judgment, if appropriate, shall

be entered against the adverse

party.

"(f) When Affidavits are

Unavailable. Should it appear

from the affidavits of a party

opposing the motion that the

party cannot for reasons stated

present by affidavit facts

essential to justify the party’s

- 318 -

opposition, the court may refuse

the application for judgment or

may order a continuance to

permit affidavits to be obtained

or depositions to be taken or

discovery to be had or may make

such other order as is just.

"(g) Affidavits Made in Bad

Faith. Should it appear to the

satisfaction of the court at any

time that any of the affidavits

presented pursuant to this rule

are presented in bad faith or

solely for the purpose of

delay,the court shall forthwith

order the party employing them

to pay to the other party the

amount of the reasonable

expenses which the filing of the

affidavits caused the other

party to incur, including

reasonable attorney’s fees, and

any offending party or attorney

may be adjudged guilty of

contempt."

- 348 -

J

APPENDIX

Rule 401 of the Federal Rules of

Evidence provides as follows:

"Rule 401. Definition of

*Relevant Evidence’

"*Relevant evidence’ means

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."

- 33a -

APPENDIX K

Rule 402 of the Federal Rules of

Evidence provides as follows:

"Rule 402. Relevant Evidence

Generally Admissible; Irrelevant

Evidence Inadmissible

"All relevant evidence is

admissible, except as otherwise

provided by the Constitution of

the United States, by Act of

Congress, by.these rules, or by

other rules prescribed by the

Supreme Court pursuant to

statutory authority. Evidence

which is not relevant is not

admissible."

- 344 -

APPENDIX L

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1989

NO.

DENMAN RUBBER MANUFACTURING COMPANY

AND CENTRAL NATIONAL INSURANCE

COMPANY OF OMAHA,

PETITIONERS

VS

VERDA D. HALL,

RESPONDENT

NOTARIZED STATEMENT

OF MAILING

STATE OF LOUISIANA

PARISH OF JEFFERSON

BEFORE ME, the undersigned authority,

personally came and appeared:

ROBERT A. MCMAHON, JR.,

who, after first being duly sworn by me,

did depose and state that he is counsel of

record in the above matter, that he is a

member of the Bar of the Supreme Court of

- 35a -

the United States; that the Petition for

Writ of Certiorari in the above matter and

all attachments was timely deposited with

the United States Postal Service,

Station A, 701 Metairie Road, Metairie,

Louisiana 70005, with first class postage

prepaid, properly addressed to Honorable

Joseph F. Spaniol, Jr., Clerk of Court,

Supreme Court of the United States,

Washington, DC 20543, on Wednesday,

September 27, 1989, and that to his

knowledge the mailing did so take place on

September 27, 1989.

ROBERT A. MCMAHON, JR. Zi

Sworn to and subscribed

before me this 27th day

of September, 1989.

NOTARY PUBLIC

EUGENE M. McEACHIN, JR.

PANS OF JEFFERSON «STATE OF LOUSNA

My Commission is issued for life

- S684 °

M

APPENDIX

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1989

NO.

DENMAN RUBBER MANUFACTURING COMPANY

AND CENTRAL NATIONAL INSURANCE

COMPANY OF OMAHA,

PETITIONERS

VS

VERDA D. HALL,

RESPONDENT

PROOF OF SERVICE

I, ROBERT A. MCMAHON, JR., counsel of

record in the above matter and a member of

the Bar of the Supreme Court of the United

States, representing Denman Rubber

Manufacturing Company and Central National

Insurance Company of Omaha in the above

matter, do here certify that on Wednesday,

September 27, 1989, three (3) copies of

the Petition for Writ of Certiorari and

= 37a °

——

nee He EF He HEE HE & a

all attachments were deposited with the

United States Postal Service, Station A,

701 Metairie Road, Metairie, Louisiana

70005, with first class postage prepaid,

properly addressed to Ford T. Hardy, Jr.,

Esq., 416 Gravier Street, New Orleans,

Louisiana 70130, counsel for Verda D.

Hall. I further certify that all parties

required to be served have been so served.

Clahet A the thahon.

ROBERT A. MCMAHON, JR.