Petition for Writ of Certiorari — Batts v. Tow-Motor Forklift Co.

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

MYRON BATTS,

Petitioner

Vv.

TOW-MOTOR FORKLIFT COMPANY and

CATERPILLAR INDUSTRIAL, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Charles M. Merkel, Jr.

P.O. Box 1388

Clarksdale, Mississippi 38614

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

This Petition presents the

following important question:

i. Whether a federal district

court has authority pursuant to Fed. R.

Civ. P. 60(b) (6) to grant an

unsuccessful litigant relief from a

final judgment where a_ subsequent

decision of a state’s highest court in

an unrelated case makes clear that the

federal district court improperly

instructed the jury on state substantive

law at the time of trial, over

Petitioner’s ttimely objections, and

where the Petitioner was unsuccessful on

appeal raising these identical issues?

In this case there are additional

extenuating circumstances in that the

appellant unsuccessfully moved the Court

of Appeals to stay the appeal pending

the expected forthcoming decision of the

Mississippi Supreme Court in an

unrelated case which raised identical

issues and questions of law as those

presented in the instant case, the

decision of the Mississippi Supreme

Court was expected to be rendered in the

immediate future and would clarify any

uncertainties as to the application of

state law in the context of the federal

appeal, and the subsequent decision of

the Mississippi Supreme Court, in fact,

made clear Appellant was correct all

along in his interpretation of state law

which would have mandated that he be

given a new trial had the case been

stayed as requested.

TABLE OF CONTENTS

Page

Questions

Presented......-. Pree ee ee i

Table of AuthoritiesS.......++s+.5. ii

Citations to Opinions Below..... vi

Jurisdiction...... Pe ee er ee vi

Statement of the CaS@....--+eee: 1

Argument for Allowance of the

Writ. sces b0306 6688 Terey rr. TE 11

Conc lusiOh. < «sss ss seeeees 06.05 05 14

APPENdix...ceeeeeeeereeeeeeceees 15

A. re) s v. Tow-

Forkli ompany an

Caterpillar, Inc., 978 F.2d

1386 (5th Cir. 1992) «cece 15

B. Myron Batts v. Tow-Motor

Forklift Company and

Caterpilar Industrial, Inc.,

153 F.R.D. 103

(N.D. Miss. 1994).....+-- 35

Cc. Myron Batts v. Tow-Motor

Forklift Company and

Ca j ustri ;

F.3rd (No. 94-60606)

(Sth Cir. 1995) ...cecsese 82

TABLE OF AUTHORITIES

CASES

Page

790 F.Supp 1234 (S.D.N.Y.

Bes 66 be0b en beses BeHBhK & . eeeeeeeeeeé 13

130 F.R.D. 625 (S.D. Miss.

ee ee 13

Vv - fe) :

978 F.2d 1386 (5th Cir.

2992) ccc *e © ff c= eenwee 8&6 6 6 64 8 & & 4, Q

Batts v. Tow-Motor Forklift Co.,

153 F.R.D. 103

Prema MEMES BOOED ic aececccecccccec 8

Batts v. Tow-Motor Forklift Co.,

F.3rd

SIME CID wok Nga bv cececc ee 11

s cti Vv. Goodwin,

116 F.R.D. 281 (E.D. Mo.

DPPC RPeeeL aD cea Ghct sk beh eececee 13

Vv. W ,

873 F.2d 200 (8th Cir. 1989)

cert. denied 110 S.Ct. 105....... 13

Digicourse, Inc. v. AMA

Distribut I

113 F.R.D. 35 (E.D. La. 1986).... 13

First Amer: Nationa) ae

Vv Vv 27

Bak FiRios 74 (W.D.Ky. 1988)..... 13

Hal] Mi : ic ical

Express, Inc.

528 So.2d 796 (Miss. SESS) ecccec » §

iii

' eek aie a

anin iad ej vere, _—

776. F.2d 1277 (5th Cir. 1985)... 11

In Re: Disclosure Of Grand

821 F.2d 1290 (7th Cir. 1987).... 13

- j j Vv.

’

634 F.Supp. 656 (E.D.Cal. 1986).. 13

Vv j s,

335 U.S. 601 (1949)... eee eeee ka, 4

. V. a ,

350 F.2d 817 (5th Cir. 1965)..... an

McGrath v. Potash,

199 F.2d 166 (D.C. Cir. 1952).... 13

Matarese v. LeFevre,

801 F.2d 98 (2nd Cir. 1986) cert.

denied 480 U.S. 908 (1987)....... 13

Melton Vv. ere & Co.,

887 F.2d 1241 (5th Cir. 1989) ..ce- 2

Pierce v. Cook & Co.,

518 F.2d 720 (10th Cir. 1975)

cert. denied

423 GaSe TOTS C2976) «occ sc ces 13, 14

Vv ;

811 F.2d 1398 (11th Cir. 1987)... 12

’

883 F.2d 1418 (9th Cir. 1989).... 13

Vv Vv Vv ’

635 F.2d 396 (5th Cir. 1981)...... 7

Sperry-New Holland v. Prestage,

617 So.2d 248 (Miss. 1993)....

Marine, Inc.,

805 F.2d 599, 604

(Sth Cir. 1986)... ccsccccccees Li, 12

whitt] v. Cit € Meridian,

530 So.2d 1341 (Miss. 1988)....... 5

Wilson v. Fenton,

684 F.2d 249 (3rd Cir. 1982)..... 12

RULES

Fed. R. Civ. P. 60(b) (6)......00- 6, 9,

26:0. 80 SEO iC ee 8, 10

CITATIONS TO OPINIONS BELOW

The relevant opinions on this

Petition for Certiorari are the

following: (1) The opinion of the United

States Court of Appeals for the Fifth

Circuit affirming the jury verdict in

favor of the Defendant Caterpillar,

Inc., being

Co., 978 F.2d 1386 (5th Cir. 1992); (2)

The opinion of the United States

District Court for the Northern District

of Mississippi granting Myron Batts

relief from the final judgment in favor

of Caterpillar pursuant to Fed. R. Civ.

Pro. 60(b) (6), being Batts v. Tow-Motor

Forklift Co., 153 F.R.D. 103 (N.D. Miss.

1994); and (3) The opinion of the United

States Court of Appeals for the Fifth

Circuit reversing the decision of the

District Court granting Myron Batts

relief from the original final judgment,

being Batts v. Tow-Motor Forklift Co.,

F.3d (No. 94-60606) (5th Cir.

———— ee

1995).

JURISDICTION

This cause of action was originally

filed by Plaintiff Myron Batts against

Defendants Tow-Motor Forklift Company

("Tow-Motor") and Caterpillar, Inc.

("Caterpillar") in the United States

District Court for the Northern District

of Mississippi based on a diversity of

citizenship between the parties. After

the jury verdict in favor of Defendant

Caterpillar,? the Plaintiff filed a

1Tow-Motor was purchased by

Caterpillar with assumed liability for

products manufactured prior to. the

purchase.

timely appeal to the United States Court

of Appeals for the Fifth Circuit. On

November 25, 1992, the United States

Court of Appeals for the Fifth Circuit

rendered its opinion affirming judgment

in favor of the Defendant. On December

23, 1992, the Court entered an order

denying Appellant Myron Batts’ petition

for rehearing and rehearing en banc. On

or about January 4, 1993, following the

decision of the Mississippi Supreme

Court in Sperry-New Holland v. Prestage,

617 So.2d 248 (Miss. 1993), Plaintiff

Myron Batts moved the district court for

relief from the judgment pursuant to

Fed. Rule Civ. Proc. 60(b)(6) on the

basis that Prestage made clear that the

Plaintiff was correct all along in his

interpretation of Mississippi

substantive law and that the jury was

Clearly improperly instructed. The

district court agreed and granted the

Plaintiff’s motion, vacated the judgment

and restored the case to its active

docket. The district court allowed

Defendant leave, however, to file an

interlocutory appeal pursuant to 28

U.S.C. § 1292(b), which the Fifth

Circuit initially denied, then agreed to

hear. On October 3, 1995, the Fifth

Circuit rendered its opinion reversing

the decision of the district court

granting Plaintiff relief under Fed. R.

Civ. Proc. 60(b)(6) as being an abuse of

discretion. No petition for rehearing

was filed. Plaintiff Myron Batts now

files this Writ of Certiorari seeking

review of the decision of the Fifth

Circuit reversing the district court’s

order granting Plaintiff relief from the

final judgment in favor of Defendant.

vii

STATEMENT OF THE CASE

Plaintiff instituted this action

against Defendant Caterpillar on or

about April 27, 1988. In his Complaint

and Amended Complaint, Plaintiff alleged

that on April 17, 1984, the Plaintiff

was employed by Flavorite Laboratories

in Horn Lake, Mississippi and was

injured when a forklift manufactured by

the Defendant backed into him, crushing

his leg. Plaintiff charged that the

Defendant was negligent in its design of

the forklift and that the forklift was

defective and unreasonably dangerous in

failing to provide backup warnings,

lights, mirrors and other devices so as

to prevent Plaintiff’s injury.

Plaintiff’s Complaint and = Amended

Complaint alleged both strict liability

in tort and negligence.

This matter was subsequently tried

by the United States District Court for

the Northern District of Mississippi,

per District Judge Glen Davidson with a

jury, commencing in April 1991. At the

conclusion of the proof, over

Plaintiff’s objections, the district

court instructed the jury that under

Mississippi law any "alleged danger

which is open and obvious cannot be

considered to be unreasonably

dangerous." The Court further

instructed the jury that:

If you find from a

preponderance of the evidence

in this case that’ the

operation of a forklift truck

without the driver facing in

the direction of travel and

without sounding the manual

horn to warn a pedestrian

presents an open and obvious

danger, regardless of whether

the forklift was equipped with

an audible backup alarm

device, flashing warning

lights, and/or rear view

mirrors, then in that event,

it is your sworn duty to

return a verdict in favor of

the Defendant.

These instructions, given over

Plaintiff’s objections, were apparently

predicated on prior decisions of the

United States Court of Appeals for the

Fifth Circuit, applying Mississippi law,

which held that Mississippi followed,

exclusively, the “consumer expectations

test" in determining whether a product

was defective and unreasonably

dangerous. Under this test, any product

which contained a defect which was “open

and obvious" could not, as a matter of

law, be more dangerous than contemplated

by the ordinary consumer and thus could

not be considered defective and

unreasonably dangerous under §402A as

applied in Mississippi. See, e.g.,

Melton v. Deere & Co., 887 F.2d 1241

(Sth Cir. 1989).

Because the dangers of a mov.ny

forklift are without doubt “open and

obvious," the jury, as so instructed,

naturally returned a verdict in favor of

the Defendant. In a timely fashion,

Plaintiff moved for judgment

notwithstanding the verdict or, in the

alternative, for a new trial contending

that the district court had erred in

instructing the jury that it must find

for the Defendant as a matter of law in

the event that the jury found the

dangers of operating a forklift without

backup warning devices, flashing

signals, or a mirror to be open and

obvious. This motion was denied by

order of the district court dated April

30, 1991.

On May 7, 1991, Plaintiff filed a

timely appeal to the Fifth Circuit from

the jury verdict entered in favor of the

Defendant on March 29, 1991 and from the

order of the district court overruling

Plaintiff’s motion for judgment

notwithstanding the verdict, or in the

alternative, for a new trial dated April

30, 1991. On appeal, Plaintiff again

asserted the district court erred in

instructing the jury as to the consumer

expectation test and to the effect that

a open and obvious danger constituted a

complete bar to Plaintiffs’ claims.

Plaintiff also filed with the Fifth

Circuit a motion requesting the court to

stay the appeal pending the expected

forthcoming decision of the Mississippi

Supreme Court in a case styled Sperry-

New Holland, a Division of Sperry

Corporation v. John Paul Prestage and

Pam Prestage, Docket No. 90-CA-0657 (now

reported at 617 So.2d 248 (Miss. 1993)).

In his motion, Plaintiff noted that

Prestage involved identical issues to

those presented by Plaintiff in the

instant appeal’, that Prestage had been

?Prestage was tried before Hinds

County Mississippi Circuit Judge (now

Mississippi Supreme Court Justice) Fred

Banks. At trial, Judge Banks denied

almost identical “open and obvious"

instructions offered by Sperry-New

Holland. At trial, the Prestages were

represented by the Clarksdale,

fully briefed and argued to the

Mississippi Supreme Court well in

advance of the instant appeal to the

Fifth Circuit and that the expected

forthcoming decision of the Mississippi

Supreme Court would make clear whether

under Mississippi law an open and

obvious danger would preclude recovery

under Mississippi product liability

law.? By Order dated June 10, 1991,

the Fifth Circuit denied Plaintiff’s

motion to stay. The Court also denied

the Plaintiff’s motion to certify the

case to the Mississippi Supreme Court.

On November 25, 1992, a three judge

panel of the Fifth Circuit, ina 2 tol

decision, rendered an opinion affirming

the jury verdict below. See Batts v.

Tow-Motor Forklift Co., 978 F.2d 1386

(5th Cir. 1992).

Mississippi firm of Merkel & Cocke. The

defendant Sperry-New Holland was

represented by the Jackson, Mississippi

firm of Watkins & Eager. Ironically,

these same firms represent the Plaintiff

and Defendant, respectively, in the

instant matter. Because of this

representation, obviously both counsel

for Myron Batts and Caterpillar were

well aware of the exact issues and

arguments in the Prestage appeal, and

its obvious impact on the identical

issues raised in Batts. The Fifth

Circuit was informed of all of this in

Plaintiff’s motion to stay.

3prestage was tried beginning April

9, 1990. Batts was not tried until

April 1, 1991, almost a full year later.

Thus, by the time Batts was even tried

the Prestage appeal had been fully

perfected.

On December 7, 1992, the Plaintiff

served a petition for rehearing and

rehearing of en banc requesting that the

Court reconsider its decision en banc.

By decision dated December 23, 1992,

Plaintiff’s suggestion for re-hearing en

banc was denied. The Fifth Circuit’s

mandate issued January 4, 1993.

On March 25, 1993, Mississippi

Supreme Court rendered its expected

decision in Sperry-New Holland v.

Prestage, 617 So.2d 248 (Miss. 1993).

In Prestage, as argued by Myron Batts in

the instant case, the Mississippi

Supreme Court expressly recognized that

it had previously adopted a "risk-

utility" analysis in Whitley v. City of

Meridian, 530 So.2d 1341 (Miss. 1988)

and Hall] _v. Mississippi Chemical

Express, Inc., 528 So.2d 796 (Miss.

1988). The Court further expressly

rejected the analysis of a long line of

Fifth Circuit decisions, including the

decision cf the Fifth Circuit in Batts,

that Mississippi had adhered solely to

the “consumer expectations" standard

articulated by the Fifth Circuit.

» 617 So.2d at 256. The Court

further noted that:

Having here reiterated this

Court’s adoption of a "risk-

utility” analysis for products

liability cases, we hold,

necessarily that the "patent

danger" bars no longer

applicable in Mississippi.

Under a "risk-utility"

analysis, the “patent danger"

rule does not apply. In

"“risk-utility," the openness

and obviousness of a products

design is simply a factor to

consider in determining

whether a product is

unreasonably dangerous.

Prestage, Id. at n. 4.

As is evident from the Mississippi

Supreme Court’s decision in Prestage,

the jury in the instant action was

improperly instructed on the law,

particularly to the effect that if the

jury found that the danger associated

with the forklift in question was open

and obvious it must find for the

Defendant as a matter of law. As is

evident from the foregoing, Plaintiff

properly objected to the Defendant’s

jury instructions incorporating the

patent danger rule. Upon the Court’s

granting of the Defendant’s requested

instructions, and the subsequent verdict

in favor of the Defendant, Plaintiff

took every step necessary to preserve

the issue on appeal, including a direct

request that the Fifth Circuit stay its

decision and/or certify the case pending

the expected outcome of the Mississippi

Supreme Court’s decision in Prestage.

As evident, all of Plaintiff’s timely

efforts to preserve the issue

nevertheless failed.

On the heels of Prestage, however,

on April 19, 1993, Myron Batts moved the

district court pursuant to Fed. R. Civ.

P. 60(b)(6) for relief from the final

judgment in favor of Caterpillar. This

rule, of course, provides that "on

motion and upon such terms as are just,

the court may relieve a party or a

party’s legal representative from a

final judgment, order, or proceeding

for...any other reason justifying relief

from the operation of the judgment." In

his motion, Myron Batts noted that he

had raised identical issues to those

presented in Prestage, that he had done

everything within his power to convince

the Fifth Circuit and the district court

below that the jury had been improperly

instructed, that but for the Fifth

Circuit’s unreasonable refusal to stay

his appeal, Plaintiff would be entitled

to a new trial, and that justice

dictated that he be given a new trial on

proper jury instructions.

On February 8, 1994, United States

District Judge Glen Davidson entered an

order and memorandum opinion granting

the Plaintiff’s motion for relief from

the court’s final judgment. In his

memorandum opinion, the district judge

concluded:

The Court has considered

Batts’ Motion for Relief from

Judgment in light of the

(Seven Elves, Inc. Vv,

Eskenazi, 635 F.2d 396 (5th

Cir. 1981) } factors and

mindful that Rule _ 60(b) (6)

relief from judgment is

reserved for extraordinary

circumstances. Obviously, the

respect for the finality of

judgment must be weighed

against the Court’s principle

interest that substantial

justice be achieved with each

case. To this end, this case

falls within that

"extraordinary" category....

For reasons which are

explained in this Opinion,

Myron Batts’ Motion for Relief

from Final Judgment pursuant

to Rule 60(b) (6) is well taken

and the same will be granted

by separate order to issue

this date. This Court’s final

judgment in this case sub

entered on or about

April 3, 1991 is vacated and

the case is returned to the

undersigned’s active docket.

Defendant Caterpillar subsequently

moved the district court to reconsider,

or in the alternative, amend the order

granting relief from the final judgment

and/or to certify an interlocutory

appeal to the Fifth Circuit. On April

11, 1994, the district court entered an

order denying the Defendant’s motion to

reconsider but granting the Defendant’s

motion to amend the February 8, 1994

order to allow an interlocutory appeal.

In granting the Defendant’s request for

an interlocutory appeal the court held:

This case squarely presents

a controlling question of law

for which there is a

substantial ground for 4a

difference in opinion.

Specifically, the key inquiry

concerns the time, or date,

when Mississippi products

liability law changed from the

consumer expectation test for

defining "unreasonably

dangerous--defective

condition" to the risk utility

approach.

From this order, Defendant Caterpillar

filed with the Fifth Circuit a petition

for permission to appeal under 28 U.S.C.

§1292(b).

On May 24, 1994, the Fifth Circuit

entered an order denying Caterpillar’s

petition to appeal from an interlocutory

order. In its order, the Court stated:

The question certified by

the district court with

respect to the date on which

the risk-utility test became

applicable under Mississippi’s

products-liability law does

not involve ae_ée controlling

question of law to which there

is a substantial ground for a

difference of opinion. This

issue has been determined by

the Mississippi Supreme Court,

and this Court is bound by

that determination. See

w- iv. oO

Sperry Corp. v. Prestage, 617

So.2d 248, 253 (Miss. 1993);

Vv. w-Mot klift

Co., 978 F.2d 1386, 1389 (5th

Cir. 1992).

This Court may consider

issues other than the

certified question only if the

interlocutory appeal has been

properly filed and

accepted.... Because the

certified question does not

present a question of law to

which there is a substantial

ground for difference of

opinion, the Petitioner cannot

obtain an interlocutory appeal

of the Rule 60(b) issue.

From this order, Caterpillar

subsequently moved the district court to

restate the controlling question and to

re-certify the issue to the Fifth

Circuit.

On August 1, 1994, the district

court entered a further order re-stating

the controlling question of law and re-

certifying an interlocutory appeal. In

his order, the district judge stated:

This case presents a

controlling question of law

for which there is a

substantial ground for a

difference of an opinion and

from which an immediate appeal

would materially advance the

ultimate termination of this

litigation as well as_ the

progress of other cases which

are similarly situated.

Specifically, the controlling

question of law is as follows:

was it proper for this

district court to grant

Plaintiff’s Rule 60(b) (6)

motion for relief from

judgment, in light of the

Mississippi Supreme cCourt’s

——— in Sperry-New Holland

Prestage, 617 So.2d 248

ieee 1993), after the

judgment had been entered by

the district court and

confirmed by the Circuit Court

of Appeals on direct review?

From this order, Defendant

Caterpillar again filed a petition for

permission to appeal under 28 U.S.C.

§1291(b). This petition was granted by

the Fifth Circuit on September 2, 1994.

On October 3, 1995, the Fifth

Circuit rendered its opinion reversing

the district court and reinstating the

original judgment in favor of

Caterpillar See Batts v. Tow-Motor

Forklift, Co, F.3d (Sth Cir.

1995). By this writ, Plaintiff now

seeks review of the decision of the

Fifth Circuit.

ARGUMENT FOR ALLOWANCE OF WRIT

Federal Rule of Civil Procedure

60(b) (6) provides:

On motion and upon such

terms as are just, the court

may relieve a party or a

party’s legal representative

from a final judgment, order

or proceeding for...(6) any

other reason justifying relief

from the operation of the

judgment.

Rule 60(b) was intended to confer

broad discretion on the trial court to

grant relief when appropriate to

accomplish justice. See, e.g.,

Sti vi Vv a oo.

805 F.2d 599, 604 (5th Cir. 1986) citing

Laguna Royalty Co. v. Marsh, 350 F.2d

817, 822 (5th Cir. 1965) ("[{R]Jule 60(b)

is to be liberally construed to do

substantial justice.") Cf. Hibernia

National Bank v. Administracion Central

Sociedad Anonima, 776 F.2d 1277, 1279

(Sth Cir. 1985) ("[R]ule 60(b) (6) is to

be liberally construed so that doubtful

cases may be resolved upon the merits.")

"Clause (6) is a residual clause used to

cover unforeseen contingencies; that is,

it is a means for accomplishing justice

in exceptional circumstances."

, 805 F.2d at 604-5 (cites

omitted). It is properly invoked where

there are extraordinary circumstances,

or where the judgment may work an

extreme and undue hardship and should be

liberally construed when substantial

justice will thus be served.

, 805 F.2d at 604. As noted

by United States Supreme Court Justice

Black:

In simple English, the

language of the “other reason"

clause, for all reasons except

the five particularly

specified, vests power in

courts adequate to enable them

to vacate judgments whenever

such action is appropriate to

accomplish justice.

Klapprot v. United States, 335 U.S. 601,

614-615 (1949). As recognized by Judge

Davidson below, numerous courts have

recognized that a post-decision change

or clarification in controlling law may,

in appropriate cases, constitute

"extraordinary circumstances" warranting

Rule 60(b) (6) relief. See, e.g., Ritter

v. Smith, 811 F.2d 1398, 1401-1403 (11th

Cir. 1987) (subsequent decision of U.S.

Supreme Court made appellate decision

clearly erroneous; factors, including

the fact that prior judgment remained

unexecuted, minimal delay between

finality of judgment and motion for Rule

60(b)(6) relief, close relationship

between issues decided, and

considerations of comity constituted

"extraordinary circumstances" warranting

60(b) (6) relief); Wilson v. Fenton, 684

F.2d 249, 261 (3rd Cir. 1982) ("a

decision of the Supreme Court of the

United States or a court of appeals may

provide the extraordinary circumstances

for granting a Rule 60(b) (6)

motion...."); Pierce v. Cook & Co., 518

F.2d 720 (10th Cir. 1975) cert. denied

423 U.S. 1079 (1976). See also Matarese

vy. LeFevre, 801 F.2d 98, 106 (2nd Cir.

1986); McGrath v. Potash, 199 F.2d 166

(D.C. Cir. 1952); Adler v. Berg Harmon

Associates, 790 F.Supp 1235 (S.D.N.Y.

1992). See

Ponmona, 883 F.2d 1418, 1423 (9th Cir.

1989); Cox v. Wyrick, 873 F.2d 200, 201

(8th Cir. 1989) cert. denied 110 S.Ct.

105;

Material, 821 F.2d 1290 (7th Cir. 1987)

(independent action in equity based

change in law; consideration same as

Rule 60(b) (6)); Kern-Tulare Water

j 7 j , 634

F.Supp. 656 (E.D.Cal. 1986) aff'd in

part, rev’d in part, 828 F.2d 514 (court

may reconsider ruling based on change in

controlling law) ; First American

National Bank of Nashville v. Bonded

Elevator, Inc., 111 F.R.D. 74 (W.D.Ky.

1988) (defendant entitled to relief from

final judgment where law relied upon by

district court subsequently overturned

by state supreme court); Atkins v.

Marathon Le Tourneau Co., 130 F.R.D. 625

(S.D. Miss. 1990) (change in controlling

law may provide basis to alter or amend

judgment under Rule 59(e)); Digicourse,

inc, v. AMA Distributors, Inc., 113

F.R.D. 35 (E.D. La. 1986) (under Rule

60(b) (6), change in applicable law may

dictate relief in extraordinary

circumstances) ; Ben Hur Construction Co.

v. Goodwin, 116 FRD 281 (E.D. Mo. 1987)

(decision of U.S. Supreme Court may

provide extraordinary circumstances

under Rule 60(b) (6)).

CONCLUSION

The decision of the Fifth Circuit

in the instant case is that the District

Judge abused his discretion in granting

Plaintiff relief from the final judgment

pursuant to Rule 60(b) (6). This holding

is inconsistent with the stated purpose

of the rule, see Klapprot v. United

States, 335 U.S. at 614-615, and with

decisions of other appellate decisions,

see, e.g., Pierce v. Cook, 518 F.2d at

720. There are no decisions of this

Court known to Petitioner which

specifically address the scope of a

federal judge’s discretion under Rule

60(b) (6). Because of the importance of

this issue, and the inconsistency by

which it has been interpreted and

applied by lower federal courts,

guidance is needed from this Court.

Petitioner urges the Court to grant

certiorari on this important issue.

Respectfully submitted,

MERKEL & COCKE

A Professional Association

Post Office Box 1388

Clarksdale, Mississippi 38614

(601) 627-9641

Attorne r Plain

By:

CHARLES M. MERKEL, J

(MSB #2884)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 94-60606

MYRON BATTS,

Plaintiff-Appellee,

versus

TOW-MOTOR FORKLIFT COWANY and

CATERPILLAR, INC.,

Defendants,

CATERPILLAR, INC.,

Defendant-Appellant.

Appeal from the United States

District Court for the Northern

District of Mississippi

Before JOLLY and BENAVIDES, Circuit

Judges, and FITZWATER, District Judge.*

FITZWATER, District Judge:

*District Judge of the Northern District

of Texas, sitting by designation.

We are asked to decide in this case

Erie’ whether a change in_ state

decisional law - in this’ instance,

Mississippi’s conversion from the

"consumer expectations" to the

“risk-utility"” test in products

liability actions--constituted an extra

ordinary circumstance that vested the

district court with discretion to grant

Fed. R. Civ. P. 60(b)(6) relief.

Because we hold that it did not, we

reverse.

The relevant background facts are

set out in our prior opinion in this

case, see Batts v. Tow-Motor Forklift

Co., 978 F.2d 1386, 1387-88 (5th Cir.

1992) ("Batts I"), and in the district

court’s decision below. See Batts v.

Tow-Motor Forklift Co., 153 F.R.D. 103,

104-05 (N.D. Miss. 1994) ("Batts II").

We therefore recount them only briefly,

adding subsequent procedural facts that

necessarily were not set out in those

opinions.

In 1984 plaintiff-appellee Myron

Batts ("Batts") was injured when a

coworker using a forklift collided with

Batts. Batts [, 978 F.2d at 1388. The

coworker hit Batts as he was operating a

"tugger"--a type of motorized forklift

that a person walks’ behind = and

guides--as the coworker was operating

his forklift in reverse, but without

sounding the equipment’s manual horn.

Id. at 1387-88. The forklift was

‘Erie R.R. Co. v. Thompkins, 304

U.S. 64 (1938).

generally maneuvered equally in reverse

and in forward. Jd. at 1387.

In 1988 Batts brought a diversity

action against defendant Tow-Motor

Forklift Company, the manufacturer of

the Ferkiiee, and its

successor-in-interest,

defendant-appellant Caterpillar

Industrial, Inc. ("Caterpillar"),

alleging inter alia theories of

negligence and strict liability. Id. at

1388. The case was tried in March 1991.

Batts II, 153 F.R.D. at 104. Batts

introduced evidence at trial to prove

that the forklift should have been

equipped with a back-up alarm, flashing

warning lights, and/or rearview mirrors,

and that this failure entitled him to

recover on the basis of strict liability

(defective and unreasonably dangerous

product) or negligence (negligent

design). Batts JI, 978 F.2d at 1388.

Caterpillar presented evidence that

there was no restriction on the

operator’s visibility to the rear, and

that there was a danger in the

operator’s relying on alarms, lights, or

mirrors rather than simply looking in

the direction of travel. Id.

One of Caterpillar’s principal

defenses was that the absence of the

devices on which Batts’ relied to

establish liability, coupled with the

danger of the forklift operator’s not

facing the direction of travel, was open

and obvious to the forklift owner

(Batts’ employer) and to users (the

employee operators), thus barring

recovery by Batts under Mississippi law.

Id.; See Batts IJ, 153 F.R.D. at 104 (To

this end, such open and obvious danger

was a complete bar to recovery under

Mississippi law.). Over Batts’

objection, the trial court instructed

the jury on Caterpillar’s "open and

obvious" defense, Batts II, 153 F.R.D.

at 104-05, charging the jury that an

open and obvious danger could not render

the product unreasonably dangerous.

Batts I, 978 F.2d at 1391. The court

also directed the jury to find whether

the defect was open and obvious to a

reasonable and prudent user, and

instructed the jury that if it so found,

it was to render a verdict in favor of

Caterpillar. Id. at 1392. The jury

returned a verdict for Caterpillar.

Following denial of his

post-verdict motions, Batts appealed to

this court and moved the court to stay

the appeal pending the Mississippi

Supreme Court’s expected decision in

-New Vv. » 6a?

So.2d 248 (Miss. 1993), an unrelated and

as yet undecided case then pending

before that court. A panel of this

court denied the motion in June 1991.

We later affirmed the judgment in favor

of Caterpillar. Batts I, 978 F.2d at

1397. We filed our opinion on November

25, 1992, and denied a petition for

rehearing and rehearing en banc on

December 23, 1992. Our mandate issued

on January 4, 1993.

In 1991, when the case was tried,

and in 1992, when we decided Batts’

appeal, we understood Mfississippi to

follow the consumer expectations rather

than risk-utility test in strict

liability actions. See Id. at 1392;

Me Vv. -, 887 F.2d 1241,

1243 (5th Cir. 1989). In Batts I we

noted that “our court has held...

that there is no strict liability in

tort under Mississippi law for a

patent--open and obvious--danger." Batts

qt, 978 F.24 et 1392. Batts conceded

that our decisions "support (ed)

Caterpillar’s contention that the

consumer expectation test applies, as

opposed to a risk utility analysis." Id.

(footnote omitted). He urged, however,

that we had misinterpreted Mississippi

law. Jd. at 1392-93. We disagreed with

Batts’ analysis, holding that the cases

on which he relied "do not persuade us

that Mississippi has fundamentally

shifted its test from one of consumer

expectation to risk utility." Jd. We

also held that even if we agreed with

Batts, we were still bound by the prior

panel opinion in Melton. Id. & n. 15.

We declined to certify the issue to the

Mississippi Supreme Court, noting that

"(ojur law is clear" and that "the

Mississippi law upon which our precedent

is based is unchanged." Id. at n. 16.

2 Judge Reaviley disagreed with this

circuit’s interpretation of Mississippi

law. See Melton, 887 F.2d at 1246-48

(Reavley, J., dissenting) (urging that

Mississippi does not apply "consumer

expectations" test to determine whether

product design is defective); Satcher v.

Honda Motor, F.3d 1311, 1314 n.2 (5th

Cir. 1995) (Reavley, J.). Our more

recent opinions recognize the change to

risk utility analysis. See, ¢@.g.,

Williams V. Briggs Co. 62 F.3d 703, 705

(Sth Cir. 1995).

On March 25, 1993--subsequent to

issuance of our mandate on January 4,

1993--the Mississippi Supreme Court

filed its opinion in Prestage holding

that Mississippi applied the risk--

utility test of products liability, and

that it had done so _ since 1988.

Prestage, 617 So.2d at 252, 254-55.

Prestage involved a suit for injuries

caused when the plaintiffs leg was

caught in a combine manufactured by

Sperry-New Holland, requiring amputation

of the lower portion of the plaintiff’s

leg. Prestage sued Sperry-New Holland

on strict liability and negligent design

theories. The trial court instructed

the jury using risk-utility analysis,

and it returned a verdict for the

plaintiff. Id. at 251.

On appeal, the Mississippi Supreme

Court affirmed, reasoning that it had

moved away from consumer expectations

analysis in two 1988 decisions, Hall _v.

Mississippi Chemical, Inc., 528 So.2d

796 (Miss. 1988), and Whittley v. City

of Meridian, 530 So.2d 1341 (Miss.

1988). Prestage, 617 So.2d at 254-55.

The court noted that most courts employ

the risk-utility test, and that this

standard protects both manufacturers and

consumers by requiring that

manufacturers make products that are

reasonably safe under all circumstances,

as opposed to absolutely safe unless the

danger is facially apparent. Id. at

256. The court expressly rejected this

court’s conclusion in Melton, 887 F.2d

at 1243, that Whittley had not altered

the test for strict liability. Prestage,

617 So.2d at 255. The court held that

an open and obvious danger was not an

absolute bar to recovery. Id. at 256

n.4.

On April 19, 1993 Batts filed in

the district court below a Rule 60(b) (6)

motion, urging the court on the basis of

Prestage to relieve him from the adverse

judgment. See Batts JJ, 153 F.R.D. at

109. The district court granted Batts’

motion, vacated the judgment in favor of

Caterpillar, and restored the action to

the court’s active docket. Id. at 104,

109-10. The court stated that it had

considered the factors of Seven Elves,

Inc. v. Eskenazi, 635 F.2d 396, 402 (5th

Cir. 1981), but did not explain how it

had weighed any particular factor in

reaching its decision. See Batts JI, 153

F.R.D. at 109-10. It is otherwise clear

from the district court’s opinion,

however, that the court granted Rule

60(b)(6) relief on the ground that it

had applied the consumer expectations

test at trial in March 1991,

notwithstanding that Mississippi law had

converted to the risk-utility test in

1988. Id. at 104 (holding "that the

jury was improperly instructed on

Mississippi products liability law when

this case went to trial in March of

1991"), id. (recognizing "the

retroactive rule of Prestage"), & 106-07

(observing that Prestage announced that

Mississippi products liability law had

changed in 1988).

The district court’ thereafter

granted Caterpillar leave to take an

interlocutory appeal of the order, and

stayed all proceedings below. A panel

of this court first denied, and later

granted, leave to appeal.

Caterpillar asks us to reverse the

order of the district court and

reinstate the prior judgment in its

favor.

II.

Rule 60(b) (6) provides that a court

may “relieve a party ... from a final

judgment ... for ... any other reason

justifying relief from the operation of

the judgment." Rule 60(b) sets out five

specific bases for granting relief from

a final judgment, followed by clause

(b) (6). We have held that this clause’s

"“‘any other reason’ language refers to

any other reason than those contained in

the five enumerated grounds on which a

court may grant a Rule 60(b) motion."

Partnership v. Peylon Place, Inc., 62

F.3d 767, 773 (5th Cir. 1995) (citing

cases). Although we frequently have

recognized that "’Rule 60(b)(6) is a

grand reservoir of equitable power to do

justice in a particular case when relief

is not warranted by the preceding

clauses,’" e.g., id. (quoting Harre] v.

DcS Equip. Leasing Corp., 951 F.2d 1453

(Sth Cir. 1992)), we have also narrowly

circumscribed its availability, holding

that Rule 60(b)(6) relief will be

granted only if extraordinary

circumstances are present." Bailey v.

, 894 F.2d 157, 160

(Sth Cir.) (affirming order denying Rule

60(b)(6) motion based on change in

federal law) (citing Ackermann v. United

States, 340 U.S. 193 (1950)), cert.

denied 498 U.S. 829 (1990); Government

Fin. Servs. 62 F.3d at 774; American

Totalisator Co. v. Fair Grounds Corp., 3

F.3d 810, 815-16 (5th Cir. 1993).

The district court granted Batts’

Rule 60(b) (6) motion on the ground that

the case had been tried under the

consumer expectations test, when

Mississippi had in fact converted

earlier to the risk-utility test. See

Batts IJ, 153 F.R.D. at 104, 106-07. We

review the district court’s decision for

abuse of discretion. New Hampshire Ins.

Co, Vv. Martech USA, Inc., 993 F.2d 1195,

1200 (5th Cir.1993).

At the time this case was tried,

the law of this circuit--reiterated in

1989 in Melton--was that Mississippi

followed the consumer expectations test.

Melton was decided after the 1988

decisions in Hal] and Whittlev, which

the Mississippi Supreme Court said in

Prestage changed the state’s products

liability law. Prestage, 617 So.2d at

255. Subsequent to Melton no case was

rendered that indicated that Melton’s

analysis of Mississippi law was

incorrect. Batts I, 978 F.2d at 1393.

In 1991 the district court was therefore

obligated to try the case under the

consumer expectations test, because it

was bound by our interpretation of state

law absent a subsequent state court

decision or statutory amendment that

rendered this court’s prior decision

clearly wrong. See Ginsberg 1985 Real

Estate Partnership v. Cadle Co., 39 F.3d

528, 534 (Sth Cir. 1994). Our

affirmance of the district court’s

instructions based on the consumer

expectations test makes pellucid that

the trial court correctly followed state

law as we had interpreted it. See Batts

I, 978 F.2d at 1392-93.

The district court vacated the

judgment in favor of Caterpillar on the

basis of a change in decisional law

announced after the 1991 trial and 1992

affirmance. In Bailey, we stated that

"ta) change in decisional law after

entry of judgment does not constitute

exceptional circumstances and is not

alone grounds for relief from a final

judgment."° Bailey, 894 F.2d at 160

(citing

Corn,, 726 F.2d 333, 336 (7th Cir.

1984); Title v. United States, 263 F.2d

28, 31 (9th Cir.), cert. denied, 359

U.S. 989 (1959).* Accordingly, because

this change from the consumer

expectations test to the risk-utility

test did not constitute an extraordinary

circumstance sufficient to justify Rule

60(b)(6) relief, we hold that’ the

district court abused its discretion

when it granted Batts’ motion and

vacated the judgment. See id. at 160.°

3This statement is dicta because

the panel had already held that Rule

60(b)(6) relief was unavailable to

appellant because he had also sought

relief on the basis of Rule 60(b) (5).

“In Picco v. Global Marine Drilling

Co., 900 F.2d 846, 851 (5th Cir. 1990),

we cited Bailey with approval in

determining that it was an abuse of

discretion for the district court to

grant relief where the Supreme Court had

changed the applicable rule of law.

Sour decision in Satcher v. Honda

Motor Co., 993 F.2d 56 (5th Cir. 1993),

is not to the contrary. Although in

We think a proper understanding of

the limited circumstances in which

post-judgment relief is available when

decisional law changes, and of our role

as an Erie court attempting to determine

and apply state law, supports’ the

conclusion that a change in state

decisional law, rendered after this

court makes an Erie prediction, will not

normally constitute an extraordinary

circumstance, and cannot alone be

grounds for relief from a fmal judgment

pursuant to Rule 60(b) (6) .°

Satcher we vacated our opinion after the

Prestage decision was announced, we did

so while the appeal was pending on

rehearing. Id. at 57. The Mississippi

Legislature had enacted House Bill 1270,

codifying various elements of

Mississippi conunon law regarding

products liability, and the Mississippi

Supreme Court had decided Prestaple

while the petition for rehearing in

Satcher was still pending. Id. We held

that these events, occurring after the

panel decision but prior to a ruling on

rehearing, had the potential to alter

drastically Mississippi products

liability law. Accordingly, we vacated

and remanded so that the district court

could address the parties’ arguments and

apply the new law to the facts of the

case. Id. at 57-58.

SWe do not hold that a change in

decisional law can never be an

extraordinary circumstance. Courts may

find a special circumstance warranting

relief where a change in the law affects

a petition for habeas corpus, where

notions of finality have no place.

Matarese v. LeFevre 801 F.2d 98, 106 (2d

Cir. 1986) (denying relief where

subsequent Supreme Court decisions

indicated that change in law had not, in

fact, occurred), cert. denied, 480 U.S.

908 (1987). Relief has also been found

appropriate where the erroneous judgment

has not yet been executed, where an

appeal or remand of the case is still

pending, or the judgment is not final.

See Adams V. Merrill Lynch Pierce Fenner

& Smith, 888 F.2d 696, 702 (10th Cir.

1989) (affirming district court relief

from judgment where Supreme Court

altered law regarding arbitration of

securities claims while claims were

pending); Wilson v. Al McCord Inc., 858

F.2d 1469, 14787-79 (10th Cir. 1988)

(vacating and remanding where change in

state law while appeal was pending made

it neccesary for parties to develop more

fully the factual record); OQverbee v.

Van Waters & Rogers 765 F.2d 578, 580

(6th Cir. 1985) (holding on the basis of

"the unique facts of this case" that

district court abused its discretion in

denying Rule 60(b)(6) relief where, at

time plaintiff filed motion, judgment

was not final, and action of Ohio

Supreme Court of reversing itself within

one year was certainly unusual). Rule

60(b) (6) may also warrant relief where

the subsequent court decision is closely

related to the case in question, such as

where the Supreme Court resolves a

conflict between another circuit ruling

and that case. See, e.g., Ritter v.

Smith 811 F.2d 1398, 1402-03 (11th

Cir.), cert. denied, 483 U.S. 1010

(1987). Similarly, where two cases

"Numerous courts have held that the

mere showing of a change in the law is

not enough to demonstrate such an

extraordinary situation when the

judgment has become final." Qverbee V.

, 765 F.2d 578, 580

(6th Cir. 1985).

Absent some showing of

extraordinary circumstances, courts have

refused to vacate their prior judgments

where they correctly applied federal

law, and a subsequent Supreme Court

ruling changed the law. See, e.g.,

Travelers Indem. Co. v. Sarkisian, 794

F.2d 754, 757 (2d. Cir.) (denying Rule

60(b) (6) relief where Supreme Court

reversed ruling on claims for indemnity

under RICO statute after entry of final

judgment), cert. denied, 479 U.S. 885

(1986). A party seeking relief under

Rule 60(b) cannot simply cite a new

Supreme Court decision to support its

motion; it must present proof that

enforcement of the judgment would work

an injustice. DeFillips v. United

States, 567 F.2d 341, 344 (7th Cir.

1977) .

, 663

F.2d 1354 (7th Cir. 1981). The required

showing is substantial. See Dowell v.

Sch., 8 F.3d 1501, 1509 (10th Cir.

arising out of the same transaction

result in conflicting judgments, relief

has been found to be warranted. See

Pierce v. Cook & Co., 518 F.2d 720, 723

(10th Cir. 1975), cert. denied, 423 U.S.

1079 (1976).

1993). Even where the judgment provides

injunctive relief, and thus has an

ongoing effect, courts may refuse a Rule

60(b) (6) motion founded upon the Supreme

Court’s announcement of a new rule of

law. Id.

Changes in decisional law based on

constitutional principles are not of

themselves extraordinary circumstances

sufficient to justify Rule 60(b) (6)

relief. For instance, in

City of Wichita, 254 F.2d 837 (10th Cir.

1958), a plaintiff challenged the

constitutionality of a Kansas statute

relating to the notice landowners

received in condemnation actions. The

plaintiff lost at trial and on appeal.

Over one year later, the Supreme Court

held the Kansas statute unconstitutional

and plaintiff sought reiief from the

adverse judgment. The Tenth Circuit

affirmed the district court’s denial of

the motion, finding that "a judicial

change in the court’s view of the law

after its entry, does not justify

setting it aside." Id. at 839.

A circuit court’s announcement of a

new rule of federal law, like a Supreme

Court pronouncement, is similarly

insufficient without more to justify

Rule 60(b) (6) relief. See

, 806 F.2d

1031, 1033-34 (Fed. Cir. 1986) (denying

relief where no evidence presented that

continued operation of judgment would

cause unjust result). In Tomlin v.

McCaniel, 865 F.2d 209 (9th Cir. 1989),

for example, plaintiff s 42 U.S.C. §1983

action was dismissed pursuant to a Ninth

Circuit ruling that the statute of

limitations for such suits was one year.

After the Supreme Court denied plaintiff

s petition for a writ of certiorari, the

circuit court held in P

733° F.2d 642 (9th Cir. 1984), that

imprisonment tolled the statute. The

Supreme Court announced in

Garcia, 471 U.S. 261 (1985), that the

limitations period should be equal to

that for state personal injury actions.

Under either case, plaintiffs action

would have been timely. In affirming

the district court’s denial of plaintiff

s motion for Rule 60(b)(6) relief, the

court stated, "(plaintiff] appealed and

the judgment against him became final

before the laws changed. That is the

rock on which his arguments founder."

Tomlin, 865 F.2d at 211.

Our role as an_e Erie court

strengthens, rather than undermines, the

proposition that a change in decisional

law is insufficient to constitute an

extraordinary circumstance. "In

diversity cases, we apply substantive

state law."

inc., 42 F.3d 292, 295 (5th Cir.), Gert.

denied _—iU.S. » 115 S.Ct. 2614

(1995). Our position is analogous to a

state intermediate court.

Transcontine

~] , 953 F.2d 985,

988 (5th Cir. 1992). "This court is

Erie-bound to apply state law as it

currently exists, and may not change

that law or adopt innovative theories of

recovery.” Solomon v. Walgreen Co., 975

F.2d 1086, 1089 (5th Cir. 1992) (per

curism) (citing cases).

"In order to determine state law,

federal courts look to final decisions

of the highest court of the state. When

there is no ruling by the state’s

highest court, it is the duty of the

federal court to determine as best it

can, what the highest court of the state

would decide." i

Ins. Co., 31 F.3d 350, 351 (Sth Cir.

1994) (per curism) (quoting

Transcontinental, 953 F.2d at 988). “In

deciding an unsettled point of

(Mississippi) state law, Erie requires

that we determine how the Mississippi

Supreme Court would interpret its own

law if presented with the question."

Lawrence v. Virginia Ins. Reciprocal,

979 F.2d 1053, 1055 (5th Cir. 1992)

(citing Ww

Control Co. v. Browning-Ferris Inc., 949

F.2d 1384, 1")86 (5th Cir. 1991)); Batts

1, 978 F.2d at 1389. “When we are

required to make an Erie guess, it is

not our role to create or modify state

law, rather only to. predict it.

Lawrence, 979 F.2d at 1055; Batts I 978

F.2d at 1389.

The general rule that a change in

decisional law will not ordinarily

warrant Rule 60(b) (6) relief has greater

force in an Erie case because in this

context a federal court is doing no more

than fulfilling its obligation

scrupulously to determine how a state

court would decide a question. We find

the Second Circuit’s well-reasoned

opinion in DeWeerth v. Baldinger, 38

F.3d 1266 (2d Cir.), “em

U.S. __, 115 S.Ct. 512 (1994), to be

particularly instructive.

Erie requires that diversity courts

follow state law on substantive matters

not govemed by the Constitution or by

federal law. Id. at 1272. The court is

not required to be prescient. Instead,

"(wjhen confronted with an unsettled

issue of state law, a federal court

sitting in diversity must make its best

effort to predict how the state courts

would decide the issue." Jd. at 1273.

Erie and its progeny require no more of

@ federal court than conscientiously to

satisfy its duty to predict how the

state court will decide a question. See

Id. at 1274.

“However, the fact that federal

courts must foliow state law when

deciding a diversity case does not mean

that a subsequent change in the law of

the state will provide grounds for

relief under Rule 60(b)(6)." Id. at

1272-73. Erie contemplates that on any

open question of state law, a federal as

opposed to a state court will determine

the applicable rules of law. See id. at

1273. That a subsequent state court

resolves the question differently does

not render the federal diversity court

decision invalid, or mar the proceeding

as unfair. Id.

The very nature of

diversity jurisdiction leaves

open the possibility that a

state court will subsequently

disagree with a federal

court’s interpretation of

state law. However, this

aspect of our dual justice

system does not mean that all

diversity judgments are

subject to revision once a

state court later addresses

the litigated issues. Such a

rule would be tantamount to

holding that the doctrine of

finality does not apply to

diversity judgments, a theory

that has no basis in Erie or

its progeny.

Id. at 1273-74.

Consistent with the reasoning and

result of DeWeerth are cases such as

Dowel] _v. State Farm Fire and Cas. Auto

Ins. Co., 993 F.2d 46 (4th Cir. 1993),

and Seese vy. Volkswagenwerk A.G., 679

F.2d 336 (3d Cir. 1982). In Dowel] the

Fourth Circuit affirmed the district

court’s denial of a Rule 60(b) motion

where a plaintiff sought relief on the

basis of a West Virginia Supreme Court

ruling that changed the uninsured

motorist law. Analyzing the motion

under both Rule 60(b)(5) and (6), the

Fourth Circuit held, in relevant part,

that "a change in decisional law

subsequent to a final judgment provides

no basis for relief under Rule

60(b) (6)." Id. at 48. The Third Circuit

held in Seese that after the court of

appeals affirms a judgment and the

Supreme Court denies a petition for a

writ of certiorari, the case is no

longer sub judice, and a Rule 60(b) (6)

motion provides no basis for relief.

Seese, 679 F.2d at 337. The court

affirmed the district court’s denial of

a defendant’s Rule 60(b)(6) motion,

which was based on a Fourth Circuit

ruling that North Carolina would not

recognize the negligent design theory

upon which the plaintiff had recovered.

The Third Circuit rejected the argument

that Erie required that it apply the new

law to a case no longer sub judice. Id.

It quoted with approval the district

court’s opinion, in which the court

stated that, "Even if it were true...

that we have incorrectly guessed as to

what North Carolina law would ultimately

ois Geen

be, that would not be cognizable under

Rule 60 this time." Id.

Batts emphasizes that this case

presents an extraordinary circumstance

because he requested that this court

stay the appeal in Batts I pending the

Mississippi Supreme Court’s anticipated

ruling in Prestage. We find nothing in

the district court’s opinion to indicate

that it exercised its discretion on the

basis of Batts’ motion for a stay of the

appeal. The district court’s opinion

does not mention the request. Instead,

as we have noted, the court below

granted relief on the ground that it had

incorrectly instructed the jury

conceming the consumer expectations

test, which had been replaced by the

risk-utility test three years prior to

the Batts trial. Because we are

reviewing the district court’s decision

under an abuse of discretion standard,

and since this factor apparently played

no role in the court’s exercise of its

discretion, we hold that Batts’ request

for a stay does not change our

analysis.’

"Batts also relies on Pierce, in

which the Tenth Circuit granted relief

from summary judgment where the state

law precedent upon which the district

court relied was subsequently overruled.

presented extraordinary

circumstances in that separate state and

federal actions arose from the same

incident and involved the same parties.

In DeWeerth, 38 F.3d at 1274-75, the

Second Circuit distinguished on grounds

with which we agree.

* *«&

Batts did not present an

extraordinary circumstance that

warranted Rule 60(b)(6) relief. The

district court therefore abused its

discretion in,granting Batts’ motion.

The order vacating the final judgment

below is therefore

REVERSED.

—— ee

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1511

MYRON BATTS,

Plaintiff-Appellant,

VERSUS

TOW-MOTOR FORKLIFT COMPANY

and CATERPILLAR INDUSTRIAL, INC.,

Defendants-Appellees.

Appeal from the United States District

Court

for the Northern District of

Mississippi

Before BRIGHT,’ JOLLY, and BARKSDALE,

Circuit Judges.

BARKSDALE, Circuit Judge:

At issue in this Mississippi

diversity action is whether, under its

products liability law, recovery against

a product’s manufacturer by an injured

non-user of that product (a bystander)

is barred if the product defect or

danger is open and obvious to an

ordinary user, regardless of whether the

1Senior Circuit Judge of the Eighth

Circuit, sitting by designation.

bystander knew, or should have known, of

the danger. Myron Batts was injured

when a forklift operated by a

co-employee backed into him. Batts sued

the forklift manufacturer, claiming that

the lack of any mirror or back-up

warning device on the forklift rendered

the manufacturer liable under’ the

theories of negligence and_ strict

liability in tort. A jury returned a

verdict for the manufacturer, after

being instructed that Batts, a

bystander, could not recover under

either theory if it found that the

danger was open and obvious. For both

theories of liability, this ws a correct

statement of the law; we AFFIRM.

Batts was employed in Mississippi

by Flavorite Laboratories, Inc. His

duties included operatin a type

forklift called a "tugger"* in a room

which was often noisy. In that room, at

least one forklift operated in addition

to Batts’ tugger. On the day Batts was

injured in 1984, a co-employee, Charles

Johnson, was operating a_ forklift

manufactured in 1965 by Towmotor

Corporation. ? (Towmotor was purchased

by Caterpillar.) The forklift was

operated by a seated driver using

controls to his front, as are the lift

forks, and is generally operated in

reverse as often as forward. At the

time of manufacture, Towmotor produced

2 A tugger is motorized; and the

operator walks behind and guides it.

3Flavorite purchased the forklift

from a third party in 1980.

forklifts with load capacities ranging

from 2,000 to 60,000 pounds. The

forklift in issue had a 2,500-pound

capacity and was designed for use in |

warehouses and other indoor areas. The

forklift collided with Batts when Batts

was backing, and walking beside, the

tugger; and Johnson was operating the

forklift in reverse, but without

sounding its manual horn.

Although neither party contends

that a back-up alarm sounded on the

forklift before it hit Batts, whether

any such device was then in place is

disputed (as discussed in note 6, infra,

concerning Caterpillar’s superseding

proximate cause defense). After the

accident, electrical alarms and flashing

lights were installed on the forklifts

at Flavorite. These items were

available when the forklift was

manufactured in 1965 and could be

installed at customer request. However,

they were not standard options. on

Towmotor forklifts of the capacity

involved in this case. Indeed, no

American manufacturer so offered then.

Caterpillar’s witnesses opined that the

need for back-up warning devices depends

on the customer’s application and that

their use is appropriate when an

operator’s visibility is restricted.

At trial in 1991, Batts relied on

Claims of negligence and strict

liability in tort;* but the jury, by

special interrogatories, found for

Caterpillar on both theories. Following

‘prior to trial, a breach of

warranty claim was dismissed as time-

barred and is not in issue on appeal.

the denial of his motion for JNOV or new

trial, Batts brought this appeal.

Batts presented proof that the

forklift should have had a back-up

alarm, flashing warning lights, and/or

rearview mirrors, and asserted that this

failure entitled him to recover under

either strict liability in | toet

(defective and unreasonably dangerous)

or negligence (negligent design). On

the other hand, Caterpillar presented

evidence that there was no restriction

on the forklift operator’s visibility to

the rear and that there was a danger in

an operator relying on alarms, lights,

or mirrors, as opposed to looking in the

direction of travel. One of its

principal defenses was that the absence

of such devices, and the concomitant

danger of the operator not facing in the

direction of travel, was open and

obvious to the forklift owner and its

employee operator (users) and that,

under Mississippi law, this. barred

recovery by Batts.

Several of the jury instructions

and a special interrogatory incorporated

this open and obvious bar. (As discussed

infra, the jury was instructed that

Batts could not recover under negligence

or strict liability in tort if the

danger was open and obvious.) Batts’

challenge to those items is the primary

thrust of his appeal. (In notes 5 and 6,

we quickly dispose of the other issues

—_

raised by Batts® and Caterpillar (which

did not cross-appeal)®.) In reviewing

*Batts contends that several

instructions and a special interrogatory

improperly commented on the evidence.

(We reject Caterpillar’s contention that

Batts did not preserve these

objections.) The items so challenged

were consistent with the evidence and

the various claims and theories in

issue. Contrary to Batts’ contention,

they were not peremptory; and, taken as

a whole, the charge was proper, as

discussed infra.

®caterpillar contends on two bases

that the district court erred in denying

it summary judgment or a directed

verdict. First, it relies on the theory

of superseding proximate cause. The

jury was instructed on that defense and

given a special interrogatory. The lead

person in the blending department and a

co-employee who sometimes operated the

tugger testified that no back-up alarms

were in place. On the other hand, the

plant engineer testified that a back-up

alarm bell was installed on the Towmotor

forklift in 1980 or 1981. But, he had

no knowledge that the alarm was

functional on the day of the accident,

or even six months or a year prior to

at. And, the mechanic in charge of

maintaining Flavorite’s forklifts

testified that the forklift Johnson was

driving had a back-up bell; that it was

Flavorite’s practice to check the alarm

bells every 30 days; that replacement

bells were needed for the forklift one

or two times a year, because they would

get knocked off or operators would

tamper with them; that he examined the

this challenge to jury instructions, "we

view the [jury charge) as a whole in the

context of the entire case. The judge

must instruct the jurors fully and

correctly on the law applicable to the

case, including defensive theories

raised by the evidence." Crist v.

Dickson Welding, Inc., 957 F-2d 1281,

1287 (5th Cir. 1992). However, the

district court is given broad discretion

in formulating the charge and special

interrogatories, and our review on

appeal is deferential. Bradshaw v.

forklift on the day after the accident;

and that the back-up bell was working at

that time. Accordingly, Caterpillar

asserts the proof showed that several

years before the accident it equipped

the forklift with a back-up warning

device; it was in place within a month

before the accident; and, if it was not

operable at the time of the accident,

that fact -- including its removal or

destruction -- cannot be charged to

Caterpillar.

Second, Caterpillar contends that

reasonable minds could not differ

regarding warning devices not being

needed on the forklift, as demonstrated

by the proof that the forklift complied

with all industrial standards = and

consumer expectations. (As discussed

infra, “consumer expectations" is a

critical issue in a Mississippi strict

liability in tort action.)

Caterpillar did not cross-appeal

from these rulings. Assuming that we

can reach these issues, they were for

the jury; the district court did not err

in denying the motions.

Preightliner Corp., 937 F.2d 197, 200

(Sth Cir. 1991). "’A judgment will be

reversed only when the charge as a whole

leaves us with substantial and

ineradicable doubt whether the jury has

been properly guided in its

deliberations.’" Hall v. State Farm Fire

& Casualty Co., 937 F.2d 210, 214 (5th

Cir. 1991) (citation omitted).

Needless to say, we apply

Mississippi law in deciding whether the

instructions correctly stated the

applicable law. a! Bie FA:

Tompkins, 304 U.S. 64 (1938); Allison v.

ITH Imperial Cozp., 928 F.2d 137, 138

(Sth Cir. 1991). And, we review de novo

the district court’s interpretation of

that law. Salve Regina College v.

Waeeass - Ule.,, Bad ©, Ge; Aah7,

1221 (1991). In deciding an unsettled

point of state law, Erie requires that

we determine how the Mississippi Supreme

Court would interpret its own law if

presented with the question. American

Waste & Pollution Control Co. ov.

Browning-Ferris, Inc., 949 F.2d 1384,

1386 (5th Cir. 1991). When we are

required to make an Erie guess, it is

not our role to create or modify state

law, rather only to predict it. Id.

Under products liability law,

recovery by a bystander against a

manufacturer for an injury caused by its

product can be an elusive, complex, and

difficult concept, especially because of

the many terms and defenses and other

rules established for Mississippi

products liability, and because of

resulting inconsistent, if not

conflicting, precedent. Batts asserts

that only under the theory of assumption

of risk, with its subjective standard,

can an open and obvious’ danger

associated with the forklift bar his

recovery; that is, the jury would have

to find that he knowingly'== and

voluntarily encountered a known risk --

the forklift backing up. But, although

a subjective standard is used for

assumption of _ risk, an objective

standard, which concerns an ordinary

user, not the person(s) actually using

or injured by the product, is applied

for the open and obvious defense to

claims under negligence and strict

liability in tort. Toney v. Kawasaki

Heavy Industries, Ltd., 975 F.2d 162,

168-69 (Sth Cir. 1992); Gray v.

Manitowoc Co., 771 F.2d 866, 871 (5th

Cir. 1985) ("both the Restatement’s

theory of strict liability and

Mississippi’s theories of negligence and

implied warranty require an objective

appraisal of the obviousness of a

product’s hazard"); Restatement (Second)

of Torts §402A cmt. i (1965) (the

product "must be dangerous to an extent

beyond that which would be contemplated

by the ordinary consumer ... with the

ordinary knowledge common to the

community"). This objective standard is

all that is in issue here.

As discussed infra, we hold that an

open and obvious danger to an ordinary

user precludes recovery against the

product manufacturer under negligence

and strict liability in tort.

Accordingly, an open and obvious defect

precludes Batts’ recovery against

Caterpillar {the manufacturer),

Batts maintained that assumption

of risk had no application to this case.

That bar is not in issue.

regardless of whether he knew, or should

have known, of that danger .®

Therefore, we reject Batts, contention

that a bystander’s awareness of an open

and obvious danger would simply reduce

any recovery under Mississippi’s

comparative negligence standard. 9 Wwe

®In issue is only recovery by an

injured bystander against a product

manufacturer where the open and obvious

bar is raised. Therefore, we are not

concerned with, nor do we discuss, other

defenses or claims that might be raised.

For example, contrary to the position

taken by the able dissent, although an

open and obvious danger bars recovery

against the product manufacturer by an

injured bystander, he or she still has a

Claim against the product user, unless,

as here (workers’ compensation bar),

that avenue of recovery is foreclosed.

(In this case liability is shifted not

to Batts, but to the user, and hence,

workers’ compensation. ) And, of course,

for such a claim, assumption of risk or

contributory negligence by the injured

bystander could be asserted. But,

again, we are not concerned in this

appeal wit the seemingly limitless

array of claims, defenses, bars, and

other theories inherent in products

liability actions.

*The Mississippi comparative

negligence statute provides in

relevant part:

In all actions hereafter

brought for personal injuries,

--. the fact that the person

injured ... may have been

eee ee

now address the bases in Mississippi

law for this holding.

It is more than well-established

that, for strict liability in tort,

Mississippi adheres to the Restatement

(Second) of Torts §402A.!° e.g., Toney,

guilty of contributory

negligence shall not bar a

recovery, but damages shall be

diminished by the jury in

proportion to the amount of

negligence attributable to the

person injured

Miss. Code Ann. §11-7-15. The jury was

instructed on comparative negligence, as

part of the standard charge. See note

10rmhat section provides in part:

§402A. Special Liability of Seller of

Product for Physical Harm to User or

Consumer

(1) One who sells any product

in a defective condition

unreasonably dangerous to the

user or consumer or to his

property is subject to

liability for physical harm

thereby caused to the ultimate

user or consumer, or to his

property, if

(a) the seller is engaged

in the business of selling

Eee

975 F.2d at 165; Lloyd v. John Deere

Co., 922 F.2d 1192, 1194 (5th Cir.

1991); Coca Cola Bottling Co. v. Reeves,

486 So.2d 374, 377-78 (Miss. 1986) (en

banc). Moreover, Mississippi law

interprets §402A to permit recovery by a

"bystander". Hall v. Mississippi Chen.

Express, Inc., 528 So.2d 796,, 799

(Miss. 1988) ("Though a _ bystander,,

(plaintiff) is... eligible under"

$402A.); Reeves, 486 So.2d at 378 ("fact

that (plaintiff) may arguably be

Classified as a bystander" is not bar to

§402A action).

In Reeves, a bottle fell through a

carton being removed from a shelf by

someone in the vicinity of the

plaintiff, who was injured when the

bottle shattered upon hitting the floor.

A threshold issue was whether the

plaintiff, neither a purchaser nor other

form of user, could recover under strict

liability in tort. The Mississippi

Supreme Court held that he could,

noting:

; the duty imposed . by

Restatement §402A to the

extent that same has. been

incorporated into the positive

such a product, and

(b) it is expected to and

does reach the user or

consumer without substantial

change in the condition in

which it is sold.

Restatement (Second) of Torts §402A

(1965).

law of this state exists -in

favor of anyone who may

reasonably be expected to be

in the vicinity of the

product’s probable use and to

be endangered by it if it is

defective. Therefore, the

fact that [plaintiff] may

arguably be classified as a

bystander avails [defendant

bottler] nothing inasmuch as

children accompanying their

parents, relatives or persons

in loco parentis while

shopping or otherwise on the

premises may generally be

expected to be in the vicinity

of the handling of soft drink

cartons and to be endangered

if those cartons are

defective.

486 So.2d at 378 (citations omitted) .}?

In so holding, the court noted:

llnikewise, in an “Erie guess"

shortly before Reeves, our en banc court

reinstated the panel’s vacated holding

that, under Mississippi law, a

manufacturer can owe bystanders a strict

liability "duty" that "grows out of the

contemplated or normally intended use of

its defective product and extends at

least to those persons within the area

of that use who can reasonably be

foreseen to be endangered." Jackson v.

Johns-Manville Sales Corp., 727 F. 2d

506, 514 (5th Cir. 1984), reinstated in

relevant part on reh’g, 750 F.2d

1314,-1317 (5th Cir. 1985) (en banc),

cert. denied, 478 U.S. 1022 (1986).

ies

The justness of allowing

bystanders to recover on a

strict products liability

theory is demonstrably greater

than is the case with almost

any other potential plaintiff,

for the bystander is less able

to avoid the accident than

almost any other.

Id. at 378 n.2. The open and obvious bar

was not in issue in Reeves. But, in any

event, this footnote is indicative of

the competing interests in products

liability law that clouds the issue in

Batts’ case.

The forklift was for indoor use.

For that and other reasons, Batts could

arguably “reasonably be expected to be

in the vicinity of the [forklift’s)

probable use and to be endangered by it

if it is defective." Id. at 378.

Several of the instructions included

"bystanders" among those to be

considered; and much of the language

used was similar to that in Reeves. The

jury was instructed that Batts was a

bystander (Caterpillar does not contest

that here) and could "recover for

injuries[{,]} consistent with all of the

instructions". The court instructed the

jury:

Manufacturers of products have

a legal duty to design

products that are not in a

defective condition

| unreasonably dangerous to

users, consumers, or

bystanders. This duty

includes the obligation to

install safety and warning

devices which will prevent

accidents or injuries which

are reasonably foreseeable

from occurring.

(Emphasis added.) }?

12tn fact, one of the instructions

given for Batts, over Caterpillar’s

objection, erroneously conflated

“ordinary consumer" and “ordinary

bystander":

If you find ... that the

forklift was in a defective

condition, unreasonably dangerous

when sold by ([Caterpillar)

because it failed to have mirrors,

audible back-up alarms, and/or

flashing warning lights, and that

the danger from the forklift in its

defective condition, unreasonably

dangerous, was not’ reasonably

foreseeable by the ordinary

consumer or bystander with the

ordinary knowledge common to the

community as to the characteristics

in common usage of forklift

products ... and that Myron Batts

was injured while the forklift was

being used in a manner which was

reasonably foreseeable by

[Caterpillar], and that the lack of

mirrors, audible back-up alarms,

and/or flashing warning lights was

the sole proximate cause or a

proximate contributing cause of

Myron Batts’s injuries, then in

that event your verdict should be

for (Myron Batts].

In any event, taken as a whole, the

charge does not constitute

For the strict liability in tort

Claim, the district judge, as requested

by Caterpillar, charged that an open and

obvious danger cannot render the product

unreasonably dangerous. Over Batts

objections, the district judge

instructed, in part, that

the plaintiff has alleged that

| the absence of a back-up

alarn, flashing warning

lights, and/or rearview

mirrors on the forklift ...

entitles him to recover

against the defendant on the

theory of strict products

liability. ... {I])n order for

the plaintiff to prevail on

this theory he must prove by a

preponderance of the evidence

that the forklift ... was ina

defective condition when it

was sold in 1965 and

unreasonably dangerous to the

user of the forklift and that

the defective condition, if

any, was a proximate cause of

the ... accident ....

eee [T]o find the

forkiift ... to be in a

defective condition means that

you find that there’ was

something wrong with the

(forklift). To find that the

forklift was unreasonably

dangerous means that_ the

forklift posed some danger

beyond the contemplation of

, the ordinary user of _ the

forklift.

reversible error.

... [A])ny alleged danger

which is open and obvious

cannot be considered to be

unreasonably dangerous.

(Emphasis added.) After giving the

strict liability instruction, the

district judge later reemphasized --

without specifying under which theory of

recovery -- the preclusion to recovery

if the following danger was open and

obvious:

If you find ... that the

operation of the forklift ...

without the driver facing in

the direction of travel and

without sounding the manual

horn to warn a_ pedestrian

presents an open and obvious

danger, regardless of whether

the forklift was equipped with

(a mirror or warning device],

then ... it is your sworn duty

to return a verdict for the

defendant.

Finally, a special interrogatory asked

correctly whether, on the date of the

accident, "the defect, if any,, was open

and obvious to a reasonable and prudent

user.... ™ (Emphasis added. )33 The

13phis was the third interrogatory;

the first two, which the jury answered

in the negative, asked whether

"Caterpillar was negligent in its design

of the forklift" and whether "the

forklift as manufactured and sold by

Caterpillar was defective and

unreasonably dangerous at the time of

the sale and delivery". The jury was

instructed to stop if it answered "no"

to these two. Accordingly, it did not

_—

searaospeimemaauhdcaasana aaa

jury was instructed properly that if it

so found, it was to find for

Caterpillar. Concerning the challenged

instructions that incorporated open and

obvious danger elements, as well as the

corresponding special interrogatory, the

charge, as a whole, was correct; we are

not left "with substantial and

| ineradicable doubt whether the jury

} {was} properly guided in its

deliberations. Hall, 937 F.2d at 214.

Batts admits that "the patent

danger doctrine ... has been embraced by

Mississippi jurisprudence in the past",

but contends that the Mississippi

Supreme Court has now "laid to rest" the

notion that an open and obvious danger

exonerates the product manufacturer from

strict liability in tort. Along that

line, the Mississippi Supreme Court has

adhered to a "consumer expectation"

test. In Ford Motor Co. v. Matthews,

291 So.2d 169, 172 (Miss. 1974), it

stated that liability lies under §402A

"only when the product is, at the time

it leaves the seller’s hands, in a

condition not contemplated by the

ultimate consumer, which will be

unreasonably dangerous to hin. eas

(Quoting Restatement (Second) of Torts 5

402A cmt. g (1965)). As a gloss on the

terms “unreasonably dangerous", it

quoted comment i, stating: "The article

sold must be dangerous to an extent

beyond that which would be contemplated

by the ordinary consumer who purchases

reach the open and obvious danger

interrogatory.

it, with the ordinary knowledge common

to the community as to its

characteristics." Id. (quoting

Restatement (Second) of Torts §402A cmt.

i (1965)). As discussed infra, the

Mississippi Supreme Court has continued

to use this approach. £.g, Toliver v.

General Motors Corp., 482 So.2d 213, 218

(Miss. 1985) (citing §402A cmt. g and

Ford Motor, 291 So.2d at 169).

Accordingly, based on Mississippi’s

choice to define "unreasonably

dangerous" by reference to a reasonable,

or ordinary, consumer’s expectations of

product performance, our court has held,

as discussed infra, that there is no

strict liability in tort under

Mississippi law for a patent -- open and

obvious -- danger. "(A) product that

has an open and obvious danger is not

more dangerous than contemplated by the

consumer, and hence cannot, under the

consumer expectations test applied in

Mississippi, be unreasonably dangerous."

Melton v. Deere & Co., 887 F.2d 1241,

1243 (5th Cir. 1989). (As quoted above,

Batts’ jury was so instructed.) See also

Gray, 771 F.2d at 869 ("the consumer

expectation test of section 402A

requires that harm and liability flow

from a product characteristic that

frustrates consumer expectations"; "the

patent danger bar adopted by the

Restatement was incorporated into

Mississippi’s doctrine of strict

liability"). This rule is discussed

fully in this court’s recent decision in

Toney, 975 F.2d at 165-66 (motorcycle

owner injured in collision; claimed

motorcycle should have had leg guards).

Batts concedes that decisions by

our court support Caterpillar’s

ait ate

contention that the consumer expectation

test applies, as opposed to a risk

utility analysis.}4 He asserts,

however, that our interpretation is at

odds with the position taken by the

Mississippi Supreme Court in two

decisions in 1988, Whittley v. City of

Meridian, 530 So.2d 1341 (miss. 1988)

and Hall v. Mississippi Chemical

Express, Inc., 528 So.2d 796 (Miss.

1988), as well as in Toliver, rendered

in 1986.

First, these cases do not persuade

us that Mississippi has fundamentally

shifted its test from one of consumer

expectation to risk utility. Second,

even if we agreed with Batts, we would

be bound by the interpretation given by

a prior panel of this court in Melton

(which rejected a similar contention,

4For example, the Supreme Courts

of New Jersey and Texas have applied the

latter. See, e.g., Ryan v. KDI Sylvan

Pools, Inc., 121 N.J. 276, 290, 579 A.2d

1241, 1248 (1990); Turner v. General

Motors Corp., 584 S.W.2d 844, 851 (Tex.

1979). Under the risk-utility approach,

"a product can be said to be defective

in the kind of way that makes it

unreasonably dangerous, if a reasonable

person would conclude that the

danger-in-fact, whether foreseeable or

not, outweighs the utility of the

product. " W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts

§99, at 699 (5th ed. 1984).

887 F.2d at 1243) and Toney.!5 No

Mississippi case has appeared since

Melton was rendered in 1989 to indicate

that its analysis of Mississippi law was

incorrect. ?®

As noted, there is no contention

that Batts was a "user". At trial,

Caterpillar repeatedly stated that the

owner was the "user"; there is no charge

that Batts, in performing his duties

with the tugger, or otherwise, was

working in conjunction with the

forklift, so as to make him a "user" of

it; and, in fact, the district court

instructed that Batts was a "bystander".

As discussed earlier, Batts status as a

"bystander" does not prevent him from

asserting a §402A claim that’ the

forklift was defective and unreasonably

dangerous. Among other things, he had

1S"’Tn this circuit one "panel may

not overrule the decision, right or

wrong, Of a prior panel, in the absence

of en banc reconsideration or

Ssuperseding decision of the Supreme

Court. °’* Burlington M. R.R. Vv.

Brotherhood of Maintenance of Way

Employees, 961 F.2d 86, 89 (5th Cir.

1992) (citations omitted).

16Batts also requests, in the

alternative, that we certify this

question to the Mississippi Supreme

Court. Our law is clear; the

Mississippi law upon which our precedent

is based is unchanged. We thus decline

to do so.

to prove that (1) he could "reasonably

be expected to be in the vicinity of the

(forklift’s]) probable use and to be

endangered by it if it is defective",

Reeves, 486 So.2d at 378; and (2) "the

(forklift) was defective and ... its

defective condition made the [forklift]

unreasonably dangerous to him", Toliver,

482 So.2d at 216 (emphasis in original).

As discussed and quoted supra, in

proving that a product was "defective

and unreasonably dangerous", Mississippi

applies the consumer expectation test --

the product is (1) "defective" when, at

the time it leaves the seller’s hands,

it is in a condition not contemplated by

the ultimate consumer, which will be

unreasonably dangerous to him; and (2)

"unreasonably dangerous" when it is

dangerous to an extent beyond that which

will be contemplated by the ordinary

consumer, with the ordinary knowledge

common to the community as to its

characteristics.

Simply put, products liability,

whether under negligence or _ strict

liability in tort, does not focus on the

status of the plaintiff; instead, it

focuses on the product. The focus is

not on whether the injured party is a

consumer, or user, or bystander, or

whether the product is unreasonably

dangerous to a particular person. £.g.,

Toney, 975 F.2d at 169; Gray, 771 F.2d

at 869 (discussed infra); Page v. Barco

Hydraulics, 673 F-2d 134, 138 (5th Cir.

1982) .2?? Moreover, as discussed, the

17This court stated in Page:

-++ [I]n strict liability the focus

is on the safety of the product

Eee

inquiry for strict liability is not

whether the product was dangerous; it is

whether it was both defective «end

unreasonably dangerous. For example, an

ordinary kitchen knife is dangerous,

simply because of its blade; but, it is

not unreasonably dangerous, because the

ordinary consumer understands that the

blade, due to its sharpness or point,

can cause injury. In products liability

cases, by which we impose liability on a

manufacturer, among others, it is the

product -- the item placed in commerce

for use or consumption -- on which

liability turns.

Accordingly, even when the

bystander is the injured party, the test

must remain the same -- the product is

defective if, when it leaves’ the

seller’s hands, it is in a condition not

contemplated by the ordinary consumer,

which will be unreasonably dangerous to

him; and, it is unreasonably dangerous

if it is dangerous to an extent beyond

that which will be contemplated by the

ordinary consumer, with the ordinary

knowledge common to the community as to

its characteristics. This is

essentially how the district court

instructed the jury.

itself. The question is whether

the product meets the reasonable

expectations of the ordinary

consumer as to its safety,

irrespective of all... the care

that the manufacturer might have

put into making it.

673 F.2d at 138 (citations omitted).

Our decision in Gray, followed in

Melton and Toney, controls an open and

obvious danger precluding strict

liability in tort recovery by a

bystander against a manufacturer. (All

three cases concerned injured users, not

injured bystanders.) While Gray was

changing sections of a crane boom, the

crane operator swung the boom, striking

Gray.1/8 771 ‘F.2d at 867. He sued

under strict liability in tort, implied

warranty, and negligence, contending,

inter alia, that there was a design

defect in the crane, because the

operator’s vision was obscured to the

left side, and that the crane should

have provided mirrors or other devices

to compensate.

The defendant manufacturer

contended that the hazard was “open and

obvious to ordinary users of the crane"

and constituted a bar under any theory

of products liability. Id. at 868.

(Gray’s holding for negligence is

discussed in part II.B.) As for strict

liability in tort, our court felt "bound

to apply" the consumer expectation test,

and stated: “the consumer expectation

test of section 402A is rooted in the

warranty remedies of contract law, and

requires that harm and liability flow

from a product characteristic that

frustrates consumer expectations." Id.

at 869 (emphasis added).

Gray was rendered six months before

the Mississippi Supreme Court expressly

18Recause Gray was working with, or

on, the boom, we consider him a user,

not a bystander.

held in Reeves what earlier Mississippi

cases had implied -- that a bystander

could recover under §402A. Gray does

not make a distinction between “users"

and “bystanders"; the latter is not

mentioned. It is true, as noted in the

dissent, that a bystander’s

expectations, if any, about a product

would not necessarily include knowledge

of a danger that is open and obvious to

an ordinary consumer; but, again, the

test under Mississippi law for whether a

product is defective and unreasonably

dangerous do not focus on the actual

user or the actual bystander (the person

actually using or injured by the

product) but, instead, focuses on the

ordinary consumer with ordinary

knowledge common to the community as to

its characteristics. For this reason,

Gray held that “the Grays’ right to

recover under the theory of strict

liability depends upon whether the

evidence was sufficient to permit the

jury to find that the ... crane was

dangerous to an extent not contemplated

by the ordinary consumer who purchased

it, with the ordinary knowledge common

to the community as to its

characteristics.’ Id. at 870 (emphasis

added). Again, this rule is solidified

in Toney.?

As noted, in the challenged strict

liability instructions, the district

19~he dissent posits that we fail

to explain why the consumer expectation

test applies to bystanders. In short,

as discussed above, Mississippi law and

our circuit precedent require it. The

same is true for our holding on the

negligence clain.

court instructed that “any alleged

danger which is open and obvious cannot

be considered to be unreasonably

dangerous" and that the jury was to

return a verdict for Caterpillar if it

found “that the operation of the

forklift ... without the driver [user]

facing in the direction of travel and

without sounding the manual horn to warn

a pedestrian presents an open and

obvious danger, regardless of whether

the forklift was equipped with [a mirror

or warning device]. ..." In addition, as

also noted, in a special interrogatory,

the jury was instructed that if it found

"(t)hat the defect, if any, was open and

obvious to a reasonable and prudent user

on" the date of the accident, then it

must return a verdict for Caterpillar.

This was a correct statement of the law,

even for a bystander plaintiff.

For the negligence claim, as

discussed, whether the danger is open

and obvious is also measured by an

objective -- reasonable person --

standard, e.g., Toney, 975 F. 2d at

168-69; Gray, 771 F. 2d at 871. In

instructing the jury, over Batts’

objections, on that claim, the district

judge stated:

(T)he duty of a manufacturer is

to provide a product which is

reasonably fit. There is no duty

to provide ae perfectly’ safe

product. (Batts) alleges negligence

in the design of the forklift

involved in the accident.... In

order for [him] to recover under

this theory, ... the burden of

proof is upon [him) to prove...

that the absence of [a mirror or

warning device) constituted a

concealed or hidden dangerous

condition, thereby making’ the

forklift defective and unreasonably

dangerous. If you find ... that

the alleged danger of the forklift

... was open and obvious, and that

the forklift functioned properly

for its intended use, then ... you

must return a verdict for the

defendant as to [Batts’) claim of

negligent design.

As quoted earlier, the district court

also gave a general instruction that the

jury had to find for Caterpillar 1f:-2%

found that a driver operating the

forklift without facing in the direction

of travel and without sounding his horn

presented an open and obvious danger.

And, it gave the special interrogatory

on open and obvious danger.

The district court’s instruction is

consistent with Toney and Gray.?° And,

Gray relied on decisions by the

Mississippi Supreme Court in Harrist v.

Spencer-Harris Tool Co., 244 Miss. 84,

140 So.2d 558 (1962) and Jones v. Babst,

323 So.2d 757 (Miss. 1975). As in Gray,

those Mississippi cases concerned

injured users, not injured

bystanders. ?+

20rndeed, at the charge conference,

the district judge placed

considerable reliance on Gray.

2ltn Harrist, decided before the

adoption of strict liability in tort in

Mississippi, the plaintiff

¥ 60

"employee-user" alleged negligence in

the design of steps aboard an oil rig.

140 So.2d at 559. He requested that the

court abolish the privity of contract

rule for products cases grounded in

negligence and implied warranty. Id. at

561. The court found it unnecessary to

do so because, assuming it would, it

{sic}

would be required to affirm

the trial court because the

alleged defects are not

considered to be latent or

concealed. If we assume there

were defects, we think they

were apparent and obvious to a

casual observer.

Id. (emphasis added). Despite the

opportunity presented for the court to

hold that the obviousness of the danger

was a comparative negligence factor, it

held instead that the defendant’s

negligence vel non in designing the

steps was not even a jury question.

In Jones, the court quoted with

approval this court’s opinion in Ward v.

Hobart Manufacturing Co., 450 F.2d 1176,

1180 (5th Cir. 1971), stating that Ward

set out the general rule for

negligent design cases followed by

this Court; "(Wjhere the alleged

danger is open and obvious and the

manufacturer has done everything

necessary to insure that’ the

machine will function properly for

its designed purpose any duty owed

co .62C(lU«@S future user has been

fulfilled."

Gray held that:

a manufacturer’s liability for

product defects under Mississippi’s

doctrines of negligence and implied

Warranty may not, as a matter of

law, be premised on the existence

of an obvious hazard in a product

which functions properly for its

intended purpose.

323 So.2d at 759 (emphasis added). The

court affirmed a directed verdict for

the manufacturer on strict liability and

negligence claims, because there was no

evidence supporting those theories; it

found the evidence instead supported a

hypothesis that the subject accident

resulted from improperly attaching lug

nuts in repairing an automobile tire.

Accordingly, a jury verdict against the

defendants involved in the repair was

affirmed.

In applying Mississippi law, we, of

course, are controlled by decisions by

the Mississippi Supreme Court; but, it

does appear that Jones overstates the

holding in Ward, a pure negligent design

case brought by a plaintiff injured

while cleaning a meat grinder. 450 F.2d

at 1178, 1180. Gray, however, ruled

that the Mississippi Supreme Court would

follow Jones. 771 F.2d at 868 n.1l.

Gray, 771 F.2d at 868.7% Toney repeats

this rule. 975 F.2d at 169. We are not

cited to, nor have we found, a

Mississippi case holding that an open

and obvious danger, without more, can

bar recovery for a products liability

negligence claim by a bystander. But,

as- discussed supra, the focus. in

products liability is on the product.

Moreover, for negligence, and as the

Batts’ jury was instructed, the

manufacturer’s duty is to produce a

reasonably safe product. Therefore,

Gray controls.

Batts contends, however, that

recent premises liability decisions by

the Mississippi Supreme Court control.

Liability for negligently designed

products is, of course, merely one form

of common law negligence, to which the

ordinary rules of negligence apply.

22Toney and Gray are this court’s

latest pronouncements on the open and

obvious defense in a Mississippi

negligent design case. Melton concerned

only strict liability in tort, 887 F.2d

at 1242; and in Lloyd (1991) (open and

obvious danger to injured user; improper

design and failure to warn claims;

directed verdict granted), "while we ...

applied the standard for a directed

verdict as to all three theories, or

bases, for liability {[negligence,

warranty, strict liability in tort], and

[found] it correctly granted for each,

our analysis [was] couched in the

language of §402A strict liability." 922

F.2d at 1194 n.2.

E.g., Toliver, 482 So.2d at 219

("(S)trict liability "does not preclude

liability based upon the alternative

ground of negligence ..." .... Under

this theory, the usual defenses to a

charge of negligence would apply."

(citations omitted)). And, in some

types of negligence cases in Mississippi

involving open and obvious dangers, the

jury may find for the plaintiff, and

then apply comparative negligence.

E.g-, Goodwin v. Derryberry Co., 553

So.2d 40, 43 (Miss. 1989). In Goodwin,

a premises liability case, the

Mississippi Supreme Court cited its

earlier premises liability decision in

Bell v. City of Bay St. Louis, 467 So.2d

657, 664 (Miss. 1985), which stated:

In prior cases involving hazards

that were extremely “open and

obvious", this Court has not barred

injured parties from recovery, but

rather has left the issue to the

jury properly instructed regarding

comparative negligence.

We have repeatedly condemned

jury instructions which, if

followed by the jury, would

completely deny a negligent

plaintiff recovery, even though the

defendant may also be negligent.