# Opposition Brief — Lavergne v. Cameron Iron Works

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 937

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0096%3A2. Public record. Not legal advice.