Opposition Brief — Lavergne v. Cameron Iron Works

rt, US

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is 91-1205 WAR 2 1992 |

| FFIC E CLERK

In the oFFice @F THE CL

Supreme Court of the United States

Sunrem: Cou

OCTOBER TERM, 1991

CATHY LAVERGNE,

Petitioner,

VERSUS

CAMERON IRON WORKS, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION

HOWARD L. MURPHY

DEUTSCH, KERRIGAN & STILES

755 MAGAZINE STREET

NEW ORLEANS, LOUISIANA 70130

TELEPHONE: (504) 581-5141

ATTORNEYS FOR CAMERON

IRON WORKS, INC.

A B Letter Service, Inc., 327 Chartres St... New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED

Whether the appellate court properly affirmed a

directed verdict entered in favor of the defendant manufac-

turer, pursuant to the guidelines set out by this Court in

Anderson v. Liberty Lobby, Inc., where plaintiff failed to

adduce any evidence, substantial or otherwise, in support

of the essential elements of her product liability claim.

il

TABLE OF CONTENTS

Question Presented.................

cause of Comtente ..... 2.505155 455

Table of Authorities................

Opinions Below ...

Statement of the Case...

Summary of Argument .

Argument .

Conclusion

Certificate of Service

Appendix

Opinion of United States Court of Appeals for

the Fifth Circuit

Opinion of United States District Court for the

Western District of Louisiana

—

lll

9

A-1

A-9

iii

TABLE OF AUTHORITIES

CASES PAGE

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986) ............... 1,3

Beck v. Somerszt Technologies, Inc., 882 F.2d 993

(5th Cir. 1989) .......... pe Ce aay ..4

Bloxom v. Bloxom, 512 So.2d 839 (La. 1987) ........ 6

Boudreaux v. Jack Eckerd Corp., 854 F.2d 85 (5th

Cir. 1988) ..... OS 0 Oe gee oo ce

Brown v. Parker-Hannifin Corp., 919 F.2d 308 (5th

so ay chee x enw bw sess tneecic ee |

Galloway v. United States, 319 U.S. 372, 63 S.Ct.

1077, 87 L.Ed. 1458 (1943)... . ete 2

Goldsmith v. Olon Andrews, Inc., 941 F.2d 423 (6th

a 7

Johns v. Jarrard, 927 F.2d 551 (11th Cir. 1991) . 7

Kaplan v. Burroughs Corp., 611 F.2d 286 (9th Cir.

RS Me et ee - 3

Liberty Leather Corp. v. Callum, 653 F.2d 694 (1st

Cir. 1981) ..... 7a ee A Ae Re ee Ase 3

Owens v. International Paper Co., 528 F.2d 606 (5th

Oe I rae Lp 3

iv

TABLE OF AUTHORTIES (continued)

CASES PAGE

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99

S.Ct. 645, 58 L.Ed.2d 552 (1979) ............. oe

Reilly v. Dynamic Exploration, Inc., 571 So.2d 140

i CE ec ne ee ee ee ee aoe

Richardson v. City of Indianapolis, 658 F.2d 494

(ee SNE. oe ae eee ae bm, Fe eats 3

Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir.

FOR oa hie er ee ra eof ATE 6

Weber v. Caterpillar Machinery Corp., 542 So. 2d

544 (La. App. 5th 1989)............. | 6

OTHERS

€

United States Constitution, Seventh Amendment 2

~

Federal Rules of Civil Procedure, Rule 50(a) . 3

Rules of the United States Supreme Court, Rule 10. 8

Vv

OPINIONS BELOW

The opinions of the United States District Court and

the United States Court of Appeals for the Fifth Circuit

were not officially reported. Both opinions are reprinted in

the appendix.

l

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. 199]

NO. 91-1205

CATHY LAVERGNE,

Petitioner,

VERSUS

CAMERON IRON WORKS, INC.,

Respondents.

BRIEF OF RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

The facts of the case are stated fully in the decisions

of the district court and appellate court, both of which ap-

pear in the appendix. !

SUMMARY OF ARGUMENT

The appellate court strictly adhered to the guidelines

set forth in Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

| The interested parties consist of Cathy Lavergne; her minor son. Quin-

ton Lavergne; Cameron Iron Works, Inc.: and Cooper Industries, Inc.

Cameron was purchased by Cooper Industries following the accident.

The merger of the two companies was finalized on November 29, 1989.

2

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) in affirming the

directed verdict granted by the district court. Although

Lavergne insists that factual questions were presented for

a jury to decide. both the district and appellate courts con-

cluded that Lavergne had adduced no evidence to create a

factual dispute eligible for jury submission. Nor did the

directed verdict contravene Lavergne’s Seventh Amend-

ment right to a jury trial. The Seventh Amendment has

never been interpreted in the manner advocated by

Lavergne. To the contrary, this Court long ago held that a

motion for directed verdict is not inconsistent with the

Seventh Amendment. Galloway v. United States, 319 U.S.

372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); Parklane Hosiery

Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552

(1979). Because Lavergne’s petition fails to raise any issue

worthy of review by this Court, it should be denied.

ARGUMENT

The appellate court affirmed the trial court’s finding

that Lavergne had adduced ‘‘no substantial probative

evidence that the accident was caused by anything other

than the inadequate threading on the substitute bolts.’’*

Furthermore, the appellate court held that Lavergne

presented no evidence that the clamp would have failed due

to the excess pressure regardless of the size and threads of

the bolts used; no evidence suggesting that the alteration

occurred before the clamp left the Cameron plant; no

evidence that Cameron had knowledge of any improper

substitution of bolts prior to the accident; and no evidence

that the altered bolts, which clearly weakened the clamp,

were not the cause of its failure.®

2 Fifth Circuit's opinion, p. A-7.

3 Fifth Circuit's opinion, p. A-7 through A-8.

ae |

3

Under Federal Rule of Civil Procedure 50(a), a trial

judge must direct a verdict if, under the governing law,

there can be but one reasonable conclusion as to the ver-

dict. Anderson, 477 U.S. at 250; 106 S.Ct. at 2511 (1986).

The focus of the inquiry is: whether the evidence presents

a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law. Jd., 477 U.S. at 251-52, 106 S.Ct. at 2512.

The mere existence of a scintilla of evidence in support of

the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff. Jd., 477 U.S. at 252, 106 S.Ct. at 2512.4 Based on

the absence of controvertible evidence presented by

Lavergne, the appellate court properly sustained the

directed verdict.

Lavergne, however, contends that the appellate

court misinterpreted Anderson and improperly weighed

the evidence.° These contentions are meritless. In order for

there to be a weighing of evidence, one party must present

facts that dispute those adduced by the opponent. Here,

4 That a scintilla of evidence is not enough is especially true in cases

where the party against whom a directed verdict is entered had the

burden of proof. Liberty Leather Corp. v. Callum, 653 F.2d 694 (2nd Cir.

1981); Owens v. International Paper Co., 528 F.2d 606 (5th Cir. 1976).

reh. den. 532 F.2d 186.

5 A party against whom a verdict is directed has the onus of

demonstrating the existence of a conflict in the evidence, or inferences

to be drawn therefrom, sufficient to justify submission of the question

to the jury. Richardson v. City of Indianapolis, 658 F.2d 494 (7th Cir.

1981), cert. den. 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657. Further-

more, in order to claim the benefit of favorable inferences, the party

against whom the verdict is directed must present ‘‘substantial

evidence’’ in support of its claim, i.e., evidence which a reasonable mind

might accept as adequate to support a conclusion. Kaplan v. Burroughs

Corp., 611 F.2d 286 (9th Cir. 1979), cert. den. 447 U.S. 924, 100 S.Ct.

3016, 65 L.Ed.2d 1116.

4

two courts found on the critical issues of manufactured

condition, subsequent alteration, causation, misuse,

sophisticated user and failure to warn, that Lavergne of-

fered no evidence to contradict the evidence advanced by

Cameron.

Manufactured Condition - Lavergne introduced no

evidence to establish what the condition of the clamp was

when it left Cameron’s control, or that the clamp’s

manufactured condition posed an unreasonable risk of

danger. The only evidence adduced in this regard was from

Cameron, which established that the clamp’s bolts had

been materially altered after it was sold.®

Subsequent Alterations - Only Cameron introduced

evidence demonstrating the extent and effect of the altera-

tions. Cameron showed that three out of the four bolts were

replaced with bolts that were not of the type that originally

came with the clamp, that the bolts probably came from a

different size Cameron clamp, and that they had to be

machined to fit this clamp. Cameron also showed that the

altered bolts were shorter than the bolts designed to be us-

ed with the clamp, and that their thread length was only

2.2” compared to the 5.5” thread length of a correct bolt.

Because of this, the bolts could not be completely inserted

through the nuts, thereby allowing less than full thread

engagement. None of this evidence was controverted by

Lavergne.

Causation - Lavergne offered no evidence to dispute

the effect the altered bolts had on the clamp’s ability to

6 Under Louisiana law, to recover from a manufacturer in strict liability

for a defective product, the plaintiff must prove that the defective condi-

tion existed at the time the product left the manufacturer's control as

well as that the condition made the product unreasonably dangerous to

normal use. Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th

Cir. 1989).

ee

5

perform, or that the accident would not have occurred if the

clamp had been outfitted with the correct bolts. The reduc-

tion in thread engagement of almost 1”, or 32%, subjected

the threads that were engaged to greater stress and

substantially weakened the connection to the point that

the threads of the two altered bolts on the same side of the

clamp gave way. In contrast, the nuts and bolts on the op-

posite side of the clamp, which had one correct bolt and one

altered boit, sustained no damage. The testimony was un-

contradicted that the altered bolts caused the clamp to

come apart, and had the clamp been equipped with the cor-

rect bolts, it would not have separated even at 15,000 psi.

Misuse - Because the wellhead had a rated working

pressure of 10,000 psi, industry standards required that it

be tested at 15,000 psi. Since the clamp and the other

equipment used for the test were not the object of the test,

but only instruments to perform it, all should have had a

minimum rated working pressure of 15,000 psi. Never-

theless, Vetco chose to use the clamp, because the recom-

mended equipment listed in Vetco’s specifications was

unavailable, and the clamp was the only fastening

mechanism at Vetco’s facility that would fit the other

equipment needed to seal the wellhead. Furthermore, Vet-

co's use of the clamp in this fashion was not an isolated oc-

currence. Vetco personnel testified that for a year prior to

the accident, the clamp was subjected to repeated

pressurizations at 15,000 psi. Once again, Lavergne ad-

duced no evidence to controvert these facts.

Sophisticated User - Lavergne never rebutted

evidence adduced by Cameron that Vetco and Cameron

were the oil industry’s ‘‘two big manufacturers” of high

pressure clamps. Cameron further showed that Vetco’s

knowledge of clamps and their capabilities was extensive.

Cameron adduced evidence that Vetco maintained an in-

6

house engineeering staff, whose expertise was ‘‘as

sophisticated’’ as Cameron’s, to design its own line of

clamps; that Vetco listed the same information regarding

size and rated working pressure on the clamps it made; and

that the Vetco specifications for wellhead testing, prepared

by its engineers, contained extensive information on the

Cameron clamp in question, including its dimensions and

its rated working pressure of 10,000 psi.

Failure to Warn - To defeat this issue, Cameron

showed that the 10,000 psi limitation, cast into the top of

the clamp halves, conveyed simple and straightforward in-

formation regarding the clamp’s pressure limitation. The

warning traveled with the clamp, was not subject to

removal or obliteration, and was easy to observe. Further-

more, it conformed to the universal standard used by oil in-

dustry manufacturers to designate an equipment’s max-

imum working pressure. No other designation but 10,000

psi was placed on the clamp to avoid confusion, or the

possible supposition that the clamp could be safely used on

a routine basis at a pressure level greater than 10,000 psi.’

Most important of all, the Vetco witnesses who worked on

the test testified that they knew the clamp was rated at

7 The cases cited by Lavergne in an attempt to establish a failure to

warn claim are inapposite. In all but one, no warning was provided by

the manufacturer, whereas here there was a clear and concise warning;

in the one exception, the user never read the warning that was given.

Boudreaux v. Jack Eckerd Corp., 854 F.2d 85 (5th Cir. 1988) (no warning

that eyeglasses could shatter); Vickers v. Chiles Drilling Co., 822 F.2d

535 (5th Cir. 1987) (no notice on compressor advising of the presence of

an internal ladder); Reilly v. Dynamic Exploration, Inc., 571 So.2d 140

(La. 1990) (no warning against Surying valve); Weber v. Caterpillar

Machinery Corp., 542 So.2d 544 (La. App. 5th 1989), writ den. 548 So.2d

332 (no warning against removal of doors on forklift); Bloxom v. Blox-

om, 512 So.2d 839 (La. 1987) (although warning given of catalytic con-

verter’s incendiary propensities, when car parked over combustible

materials, owner did not read owner’s manual containing warning and

manufacturer was exonerated).

7

10,000 psi and that it was unsafe to ignore the limitation.

Although Lavergne contends Cameron should have warned

against using the clamp at 15,000 psi, this would have been

superfluous in light of the lower 10,000 psi limitation.

Likewise, Lavergne’s argument that Cameron knew the

bolts would be replaced misses the mark. Replacing the

original bolts with the correct bolts was not the issue, but

whether Cameron could have foreseen that bolts apparent-

ly salvaged from another clamp and drastically altered

would be used in this manner. On the point, Lavergne ad-

duced no evidence that Cameron had knowledge of an im-

proper substitution of bolts or that it was foreseeable that

smaller bolts from another clamp would be machined to fit

this clamp.

Due to Lavergne’s failure to dispute each of these

issues with any probative evidence, there was no disagree-

ment to submit to the jury and the trial court, as required,

directed a verdict in Cameron’s favor, which the appellate

court under Anderson correctly affirmed. Furthermore, the

affirmance is in accord with decisions rendered by this and

other circuits. In Goldsmith v. Olon Andrews, Inc., 941

F.2d 423 (6th Cir. 1991), a directed verdict in favor of a

helicopter manufacturer in a wrongful death action was af-

firmed, where the helicopter which crashed was built from

spare parts, and there was insufficient evidence for a jury

to hold the manufacturer responsible for placing the pro-

duct in commerce. Similarly, in Johns v. Jarrard, 927 F.2d

551 (11th Cir. 1991), the court affirmed a directed verdict

in a medical malpractice case where plaintiffs failed to

create a jury question on the issue of causation. And, in

Brown v. Parker-Hannifin Corp., 919 F.2d 308 (5th Cir.

1990), a products liability action against a coupling

manufacturer was dismissed on directed verdict, because

the injured plaintiff failed to present sufficient evidence to

establish that the coupling was defective or that the

8

manufacturer’s failure to label the coupling with its

pressure rating was the most probable cause of its failure.

CONCLUSION

Lavergne seeks to relitigate in this court factual

assertions not supported by the trial record, that have been

carefully reviewed by the appellate court and rejected.

Beyond this, Lavergne’s petition fails to raise any ‘‘special

and important’’ reason that could mandate this Court’s

review of this matter, nor does the petition demonstrate

that the appellate court’s decision is in conflict with

another appellate court on the same matter, or has so far

departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s power

of supervision.2 Accordingly, Lavergne’s petition should

be denied.

Respectfully submitted,

Qe rare ~ . ‘enten ti Be 2

ae |

HOWARD L. MURPHY

of

DEUTSCH, KERRIGAN & STILES

755 MAGAZINE STREET

NEW ORLEANS, LOUISIANA 70130

TELEPHONE: (504) 581-5141

ATTORNEYS FOR CAMERON

IRON WORKS, INC.

8 Rule 10 of Rules of the Supreme Court of the United States.

idecienionhdetendemmmesinimmimnniainbaa iin aaa ae

9

CERTIFICATE OF SERVICE

I hereby certify that this brief has been served on

petitioner through her counsel of record, Arthur Cobb,

Esq., Cobb & Cobb, 300 Louisiana Avenue, Suite 101,

Baton Rouge, Louisiana 70802-5803, by placing same in

the United States mail, postage prepaid and properly ad-

dressed, this 2nd day of March, 1992.

=

HOWARD L. MURPHY

A-]

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-4558

Summary Calendar

CATHY LAVERGNE,

Plaintiff-Appellant,

versus

CAMERON IRON WORKS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Louisiana

(CA-87-2595 c/w 88-1089-‘‘L’’)

(September 11, 1991)

Before KING, GARWOOD, and DUHPE’, Circuit Judges.!

GARWOOD, Circuit Judge:

Plaintiff-appellant Cathy Lavergne (Lavergne)

! Local Rule 47.5 provides: “‘The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.”’ Pursuant to that Rule, the court has

determined that this opinion should not be published.

A-2

brought this products liability action against defendant-

appellee Cameron Iron Works (Cameron) to recover

damages for the death of her late husband, Glen Lavergne

(decedent), who was killed by the failure of a clamp

manufactured by Cameron. Lavergne alleged that Cameron

was strictly liable because the accident was caused either

by Cameron’s failure to warn against using the clamp at

pressures exceeding its rated working pressure or by a

manufacturing defect in the clamp. The district court

granted a directed verdict in favor of Cameron holding that

Lavergne had failed to adduce sufficient evidence to enable

a reasonable jury to find that a manufacturing defect or a

failure to warn caused the accident. We agree and accord-

ingly affirm.

Facts and Proceedings Below

Decedent, an employee of BOP Pressure Testers,

Inc., was killed on the premises of Vetco Gray, Inc. (Vetco)

on October 30, 1986. Decedent was at Vetco to assist in the

pressure testing of a Shell Offshore, Inc. (Shell) wellhead

that had been refurbished by Vetco. Vetco employees, in

order to seal off the wellhead for the test, had attached a

connector to the top of the wellhead. A blind hub was

secured to the connector using an 18-3/4”, Cameron #27

swing bolt clamp (the clamp). The clamp, which had a rated

working pressure of 10,000 psi, consisted of two C-shaped

halves that were connected by two bolts on each side. One

end of each bolt was attached to the clamp by a pin and the

other end of each bolt swung into slots located on the op-

posite clamp half. The bolts were secured with nuts that

fastened to the end of each bolt. The wellhead was placed

in front of two metal safety screens owned and erected by

Vetco. They were positioned at a ninety degree angle to

each other. The entire test assernbly had been constructed

before decedent arrived at the Vetco yard.

A-3

When decedent arrived, he parked his truck behind

the screens. He connected a hose between a high volume

pump on his truck and a valve on the blind hub. He had in-

structions from Vetco to test the wellhead up to 15,000 psi,

one and one-half times the rated working pressure of both

the clamp and the wellhead. Decedent repeatedly attempt-

ed to apply pressure to the wellhead but was unsuccessful

due to various equipment problems. On several occasions,

he changed the hose between the pump and the wellhead

because of leaks.

A Vetco employee, Gerald Elter (Elter), saw decedent

standing on the wellhead while it was under pressure of

15,000 psi. Elter immediately told another Vetco employee

to release the pressure on the wellhead and he told decedent

not to leave the area behind the safety screens while

pressure was on the wellhead. Elter left the area and dece-

dent finished his repairs and continued testing. Decedent

subsequently reapplied pressure to the wellhead and the

clamp blew off. The nuts were stripped from two of the

bolts on one side of the clamp and half of the clamp struck

decedent, instantly killing him. Decedent apparently was

on top of the wellhead when the accident occurred.

Lavergne, on behalf of herself and decedent’s and her

minor son, Quinton Lavergne, brought a products liability

claim against Vetco, Shell, and Cameron, the manufacturer

of the clamp. The district court granted summary judg-

ment in favor of Shell on the ground that it did not control

the work of its independent contractor, Vetco. The court

granted summary judgment in favor of Vetco on the

ground that Vetco was decedent’s statutory employer.

Lavergne’s claim against Cameron went to trial.

Cameron moved for a directed verdict at the close of

Lavergne’s case. The court took the motion under advise-

A-4

ment. At the close of all of the evidence, Cameron again

moved for a directed verdict. The court granted the motion

and entered judgment for Cameron on May 21, 1990.

Following denial of her timely motion for a new trial,

Lavergne timely brought this appeal.

Discussion

The subject matter jurisdiction of this case is based

on diversity; the case therefore is controlled by Louisiana

law. In Louisiana, to recover under a strict products liabili-

ty theory the plaintiff must prove ‘‘(1) that the injury or

damage resulted from the condition of the product; (2) that

the condition made the product unreasonably dangerous to

normal use; and (3) that the condition existed at the time

the product left the control of the [defendant] manufacturer

or supplier.”’ Bell v. Jet Wheel Blast, Div. cf Ervin Indust.,

462 So.2d 166, 168 (La. 1985).

The district court held that Lavergne had failed to

make a sufficient showing that Cameron was responsible

for the failure of the clamp, determining that the following

matters were established by the undisputed evidence or

that there was not sufficient evidence to the contrary on

which a verdict for Lavergne could be rationally based.

The district court found that the clamp was clearly

marked to show that its rated working pressure was 10,000

psi and that this marking was sufficient to warn any

knowledgeable user that the clamp was not to be used

regularly above that level of pressure. The court found that

Cameron marketed the clamp only to knowledgeable users

such as Vetco.

The court found that Vetco misused the clamp in

disregard of the warning. The court reasoned that

A-5

although, under industry custom, equipment including a

clamp may be occasionally tested at pressure levels ex-

ceeding its maximum rated level, it is not proper regularly

to subject 2 clamp to pressure in excess of its rated level.

The court found that the clamp had been repeatedly sub-

jected to pressures exceeding 10,000 psi and decedent

repeatedly subjected the clamp to a pressure of 15,000 psi.

The court therefore held that there was no failure to warn

because a manufacturer is not required to warn a

sophisticated or knowledgeable user of dangers of which

they are or should be aware. Bradco Oil & Gas Co. v.

Youngstown Sheet & Tube Co., 532 F.2d 501, 504 (5th Cir.

1976) (applying Louisiana law), cert. denied, 97 S.Ct. 1111

(1977).

The court also found that the clamp was not new and

had been substantially altered since the date of its

manufacture. Cameron manufactured the clamp some time

between 1974 and 1976. Three of the bolts on the clamp

were not of the type that originally came with the clamp

that failed. These two bolts were apparently manufactured

by Cameron but they were intended to be used with a dif-

ferent size clamp. They were shorter both in overall length

and in the length of their threading than the original

bolts.2 The bolts had been machined down to fit in the

clamp used on the wellhead. The threading engagement

was considerably weakened and the overall strength of the

clamp was materially reduced by the use of the smaller

bolts.

A “manufacturer is under no duty ‘to make a pro-

duct that will last forever or will withstand abuse or lack

of maintenance’ or that is ‘foolproof,’ nor one whose compo-

nent ‘parts do not wear out.’ ”’ Scott v. White Trucks, 699

2 The thread length of the replacement bolts was 2.2”, compared with

the 5.5” length of the threading on the correct bolts.

A-6

F.2d 714, 717 (5th Cir. 1983) (applying Louisiana law) (cita-

tions omitted). “‘[L]apse of time, inadequate ‘accounting’

for use between manufacture and accident, and alterations

and repairs by persons other than the manufacturer will

tend to negate the inference of a defect existing at the time

of manufacture.” Norris v. Bell Helicopter Textron, 495

So.2d 976, 978 (La. Ct. App. 1986).

The district court concluded that no one knew how

and where the clamp had been used during the minimum of

ten years it was in existence. Nor did any one know when

or how the clamp was altered. The court found that the

clamp was not in the same condition it was in when it first

left Cameron. The court found that the age, alterations to

the clamp, and its misuse in disregard of the warning

caused the accident and that Lavergne had failed to make

a contrary showing sufficient for a reasonable jury to im-

pose liability on Cameron.

The proper standard to apply in reviewing a directed

verdict is ‘“‘ ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of

law.’ 3 Chiari v. City of League City, 920 F.2d 311, 314-15

(5th Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc.,

106 S.Ct. 2505, 2512 (1986)). ‘‘[T]he trial judge must direct

a verdict if, under the governing law, there can be but one

reasonable conclusion as to the verdict.’’ Anderson, 106

S.Ct. at 2511.

We agree with the district court’s determinations

respecting the role of the alteration to the clamp in causing

the accident and we conclude that these determinations

3 Ina diversity case, we apply a federal rather than a state standard for

determining whether there is sufficient evidence to create a jury ques-

tion. Hagan v. EZ Mfg. Co., 674 F.2d 1047, 1051 (5th Cir. 1982).

A-7

constitute sufficient grounds to support the directed ver-

dict. In Louisiana, ‘‘a manufacturer can not be held liable

for injuries caused by a defective product where the defect

was created by an alteration which amounts to an interven-

ing or superseding cause.’’ St. Pierre v. Gabel, 351 So.2d

821, 824 (La. Ct. App. 1977). We determine that the record

evidence does not reasonably support the conclusion that

the accident was caused by a manufacturing defect in the

ten-year-old clamp as opposed to being caused by the

substantial alterations made to the clamp after it left

Cameron’s control.

We have previously stated that ‘“‘[i]f [a plaintiff] fails

to introduce sufficient evidence to enable a jury to find that

either a defect in the product or defendant's negligence

most probably caused the accident, then the trial court

should enter a directed verdict in favor of the defendant.”

Brown v. Parker-Hannifin Corp., 919 F.2d 308, 312 (5th Cir.

1990). Lavergne adduced no substantially probative

evidence that the accident was caused by anything other

than the inadequate threading on the substitute bolts.

Lavergne introduced evidence that the same type of clamp

that Vetco was using had failed on two prior occasions

while being tested at pressures in excess of 10,000 psi by

Cameron employees at two different Cameron plants. In

one instance, the clamp failed when the threading on the

bolts stripped.

The evidence of the two prior failures is not adequate

to support Lavergne’s speculation that this accident would

have occurred even if the correct bolts had been used. The

existence of a mere scintilla of evidence in support of the

nenmovant’s position is insufficient to survive the motion

for a directed verdict. Anderson, 106 S.Ct. at 2512.

Lavergne presented no evidence that the clamp would have

failed due to the excess pressure regardless of the size and

A-8

threads of the bolts used.

Lavergne also presented no evidence to dispute

Cameron's claim that the replacement bolts caused the ac-

cident. Lavergne contends that this claim was an issue of

fact properly reserved for jury consideration. However, it

was Lavergne’s burden to adduce evidence sufficient to

support a reasonable finding that the replacement of the

bolts by weaker ones with shorter threads was not the

cause of the accident or that they were replaced before the

clamp left Cameron's control. Lavergne presented no

evidence suggesting that the alteration occurred before the

clamp left the Cameron plant or that the replaced, altered

bolts, which clearly weakened the clamp, were not the

cause of its failure.

Lavergne alternatively claims that the use of the

wrong bolts with the clamp was foreseeable misuse for

which Cameron was liable. Lavergne adduced no evidence,

however, that Cameron had knowledge of any improper

substitution of bolts prior to decedent’s accident or that

Cameron should have foreseen that the bolts originally

issued with the clamp would be replaced with smaller bolts

with inadequate threading that had been machine altered.

Thus, there was no evidentiary basis on which a jury could

have found that the improper use of such replacement bolts

was foreseeable.

Conclusion

We find that Lavergne failed to adduce sufficient

evidence to support a reasonable jury finding that

Cameron was responsible for the accident. Accordingly, the

judgment of the district court is

AFFIRMED.

A-9

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

FILED

MAY 02 1990

DIANNE MYERS : CIVIL ACTION

-VS- : NO. 87-2595-L

CAMERON IRON WORKS : JUDGE SCOTT

RULING

This case was tried before us for four days beginning

March 5, 1990. At the close of plaintiff's evidence defend-

ant moved for a directed verdict pursuant to F. R. Civ. P.

50(a). The motion was taken under advisement at that

time. At the close of defendant’s evidence the motion was

re-urged and we granted the motion. We now assign

reasons for our decision.

This case arose out of a fatal accident which occurred

on October 30, 1986 at the Vetco Gray, Inc. (Vetco) yard at

Broussard, Louisiana. Decedent, Glen Lavergne, an

employee of BOP Pressure Testers, Inc., was at Vetco on

that day to pressure test a Shell Offshore, Inc. wellhead

that had been refurbished by Vetco. Vetco employees, to

seal off the wellhead for the test, had attached a connector

A-10

to the wellhead’s top. A blind hub was then secured to the

connector using an 18-3/4”, 10,000 psi Cameron #27 swing

bolt clamp. The Cameron clamp, which is the subject of this

litigation, consisted of two halves with two bolts on each

half. The bolts swung into slots located on the other clamp

half and were then secured with nuts that fastened to the

end of each bolt. The entire test assembly was put together

before decedent arrived at the Vetco yard.

When decedent arrived at Vetco he connected a hose

between a high volume pump on his truck and a valve on

the blind hub. Decedent had instructions from Vetco to

test the wellhead up to 15,000 psi, which is one and a half

times the rated working pressure of both the Cameron

clamp and the wellhead. Decedent attempted numerous

times to apply pressure but encountered many equipment

problems. On several occasions he changed the hose be-

tween the pump and the wellhead because of leaks and on

one occasion he tightened a fitting.

The wellhead was placed in front of two metal safety

screens owned and erected by Vetco and which were posi-

tioned at a 90 degree angle. The decedent’s truck was park-

ed behind the screens. Several Vetco employees testified at

trial that they were present in the test area when decedent

set up the test and began applying pressure to the

wellhead. Gerald Elter, a Vetco shop foreman, arrived in

the area after the testing had begun and saw decedent

standing on the wellhead while it was under pressure of

15,000 psi. Mr. Elter immediately ordered another Vetco

employee, Dennis Ceasar, to release the pressure. Mr. Elter

told decedent not to leave the area behind the safety

screens while pressure was on the wellhead. Mr. Elter then

left the area, decedent finished his repairs and continued

testing. After this point no one saw the decedent until after

the accident. It is apparent, however, that decedent reap-

A-11

plied pressure to the wellhead and, in absolute violation of

Elter’s warning, was in the immediate area of the wellhead

when the nuts stripped from the two bolts located on one

of the clamp halves and the clamp halves flew apart. Dece-

dent was apparently-struck by one half of the clamp and

died instantly.

Plaintiff, Cathy Lavergne sued Cameron Iron Works

and others on her own behalf and on the behalf of her minor

son Quinton Lavergne. At the time of trial the only remain-

ing claim was a products liability claim against Cameron

Iron Works. Specifically plaintiff claimed that the

Cameron Iron Works clamp did not include a_ suf-

ficient warning of the dangers of using the clamp at

pressures higher than its rated working pressure.

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court

repeated the standard to be used by the District Court

when determining whether there is sufficient evidence to

submit a case to the jury in connection with a Motion for

Directed Verdict:

The trial judge must direct a verdict if, under the

governing law, there can be but one reasonable

conclusion as to the verdict. ... If reasonable

minds could differ as to the import of the evidence

however, a verdict should not be directed. ...As

the Court long ago said in Improvement Co. v.

Munson, 14 Wall 442, 448, 20 L.Ed. 867 (1872),

and has several times repeated:

Nor are judges any longer required to

submit a question to a jury merely because

some evidence has been introduced by the

party having the burden of proof, unless the

evidence be of such a character that it would

A-12

warrant the jury in finding a verdict in favor

of that party. Formerly it was held that if it

was held what is called a scintilla of evidence

is left to the jury, there is a preliminary ques-

tion for the judge, not whether there is

literally no evidence, but whether there is

any upon which a jury could properly pro-

ceed to find a verdict for the party producing

it, upon whom the onus of proof is imposed.”’

(footnotes omitted).

Id., at 250-251 (citations omitted). See also Boeing Co. ».

Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).

In this case plaintiff's primary allegation was that

Cameron Iron Works manufactured a defective clamp in

that it failed to warn users of the potential dangers

resulting from using the clamp above its rated working

pressure. See Chappuis v. Sears Roebuck & Co., 358 So.2d

926 (La. 1978). We disagree.

To recover under a strict products liability theory

the plaintiff must prove ‘‘(1) that the injury or damage

resulted from the condition of the product; (2) that the con-

dition made the product unreasonably dangerous to normal

use; and (3) that the condition existed at the time the pro-

duct left the control of the manufacturer or supplier.’’ Bell

v. Jet Wheel Blast, 462 So.2d 166, 168 (La. 1985). Failure

to warn of potential dangers can make a _ product

unreasonably dangerous to normal use. Chappuis, supra.

First, we do not believe that defendant Cameron Iron

Works failed to warn of potential dangers resulting from

using the clamp regularly at pressures above its rated

working pressure. The clamp was clearly marked that its

rated working pressure was 10,000 psi. This was a warning

and it was a sufficient warning to any knowledgeable user

A-13

that the clamp was to be used at or below that pressure.

Further, Cameron only marketed the clamp to

knowledgeable users; this is not a product that is available

to users outside the oil and gas industry. Vetco was clearly

a knowledgeable user. In fact, Vetco is Cameron’s main

competitor in the oilfield clamp business. A more explicit

warning was not necessary. No reasonable jury could find

that the cause of this accident was a failure to warn. Vetco,

who set up the test assembly and decided on the amount of

pressure to be applied, already knew or should have known

of the dangers of using a clamp, such as this one, regularly

at a rate one and one half times its rated working pressure.

A manufacturer is not required to warn a sophisticated or

knowledgeable user of dangers of which they are or should

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

1983); Bradco Oil & Gas Co. v. Youngstown Sheet & Tube

Co., 532 F.2d 501 (5th Cir. 1976). Thus, we find that there

was no failure to warn by Cameron.

Similarly, we find that the clamp was being misused.

A manufacturer is entitled to assume that its product will

not be put to extraordinary uses or unreasonably misused.

Christofferson v. Haliburton Co., 617 F.2d 403 (5th Cir.

1980). Although, it is common in the oilfield to test equip-

ment at one and one half times its rated working pressure,

it is not proper or reasonably expected for equipment to be

used regularly at pressures above its rated working

pressure. Testimony was offered that the clamp had been

used in tests of 15,000 psi repeatedly since it had been at

Vetco’s Broussard yard. However, on each occasion the

clamp was not the subject of the test, it was merely part of

the test assembly. This constituted a serious misuse of the

clamp. In designing tests to 15,000 psi, a clamp with a

rated working pressure of 15,000 psi could have and should

have been used.

A-14

Third, we find that the clamp had been substantially

altered since the date of its manufacture. The clamp was

not new. The only evidence we have to determine when it

was manufactured is from its markings. Each clamp half

was marked with a small inspectors stamp which indicated

that it was manufactured at Cameron’s Oklahoma City

plant. The Oklahoma City plant only manufactured the

10,000 psi #27 clamp from 1974 through 1976. Examina-

tion of the clamp also revealed that three of the bolts on the

clamp were not the type bolts the clamp came with original-

ly. The two bolts which stripped out were apparently

Cameron bolts for a different size Cameron clamp. These

bolts had been ‘“‘turned down”’ or machined to fit in this

clamp. These bolts were shorter than the bolts the clamp

was designed to use. The result from using shorter bolts

was that thread engagement was considerably lessened

and the strength of the connection and ultimately the

clamp was greatly reduced.

A “manufacturer is under no duty ‘to make a pro-

duct that will last forever or will withstand abuse or lack

of maintenance’ or that is ‘foolproof,’ nor one whose compo-

nent ‘parts do not wear out’ ’’. Scott at 717 (citations omit-

ted). ‘‘Lapse of time, inadequate ‘accounting’ for use bet-

ween manufacture and accident, and alterations and

repairs by persons other than the manufacturer will tend to

negate the inference of defect existing at the time of

manufacture.”’ Norris v. Bell Helicopter Textron, 495 So.2d

976, 978 (La. App. 3d Cir. 1986). In this case no one knew

what kind of use the clamp had been subjected to, nor

where it had been used prior to its arrival at the Broussard

facility. Additionally, no one knew when or how the altered

bolts came to be on the clamp. These changes as well as the

repeated misuse of the product substantially reduced the

safety factors and efficiency of the clamp as it was

manufactured and were factors in the accident. The con-

A-15

dition of the clamp at the time of the accident was not the

same as it was when it left the manufacturer’s control.

We find that plaintiff failed to make a showing con-

cerning essential elements of her case and that there is no

genuine issue as to material fact upon which a jury could

properly proceed to find a verdict for the plaintiff. Defend-

ant Cameron therefore is entitled to a directed verdict as a

matter of law and judgment will be entered in Cameron's

favor and against plaintiff Lavergne, dismissing plaintiff's

claims with prejudice.

DONE AND SIGNED at Alexandria. Louisiana,

this 2d day of May, 1990.

s/_ Nauman S. Scott _

UNITED STATES DISTRICT JUDGE

COPY SENT

DATE 5-2-90

BY PA

TO: Johnson

Bott/Murphy

Ayo/Fontana

Cobb

Raymond