UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 00-60275

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GARY LEE; AMANDA LEE,

Plaintiffs - Appellants,

versus

E I DUPONT DE NEMOURS & COMPANY,

Defendant - Appellee.

Appeal from the United States District Court

For the Southern District of Mississippi

April 19, 2001

ON PETITION FOR REHEARING

(Opinion October 31, 2000, 5 th Cir., 2000, _____F.3d_____)

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:

The Petition for Rehearing of Plaintiffs-Appellants Gary and Amanda Lee is GRANTED in

part. The last sentence of the first paragraph in our previous opinion is revised from “We affirm.”

to “We vacate and remand.” We also strike the last three paragraphs and replace them with the

following:1 The Supreme Court’s decisio n was based upon Mississippi Rule of Evidence 407, which

provides that “[w]hen, after an event, measures are taken which , if t aken previously, would have

made the event less likely to occur, evidence of subseque nt measures is not admissible to prove

negligence or culpable conduct in connection with the event. This rule does not require the exclusion

of evidence of subsequent measures when offered for another purpose, such as proving...control....”

Sumrall , 693 So.2d at 365.

-2- “Finally, the Lees highlight th e remedial measures taken by DuPont since the accident as

evidence of de facto control at the time of the accident. The Lees allege that following the accident,

DuPont shut down the chlorinator, headed an investigation into the cause of the fall, and instituted

changes in both the design of the scaffold and the assembly/disassembly procedures. These

allegations were presented to the district court in the Memorandum in Support of Plaint iffs’ Response

to Defendant’s Second Moti on for Summary Judgment. The district court’s summary judgment order

does not, however, address the Lees’ remedial measures allegations.

Mississippi generally permits evidence of subsequ ent remedial measures as relevant to the

issue of past control. S ee Sumrall v. Mississippi Power Co.

, 693 So.2d 359, 365 (Miss. 1997) (“We

find that evidence that Mississippi Power shut down the proj ect after the accident and brought in

eng ineers to ensure the safe completion of the project, although not conclusive, was relevant to

whether Mississippi Power had control at the time of the acciden t.”). In S umrall

, the plaint iff, an

employee of an independent contractor, sued Mississippi Power for injuries sustained duri ng an

excavation project. The case went to trial, and the jury returned a verdict in favo r of Mississippi

Power on the issue of de facto control. Before the Mississippi Supreme Court, Sumrall argued that

the trial court erroneously excluded the evidence of remedial measures taken by Mississippi Power

after the accident. The Supreme Court agreed, and granted a new trial with instructions to the trial

court to admit the evidence under a limiting instruction. 1-3-

Although Mississippi law is unc lear o n t he extent to which evidence of remedial measures

alone may be probative of de facto control, under Sumrall it appears that at a minimum such evidence

must be considered in conjunction wit h t he plaintiffs’ broader allegation of d e facto control.

Accordingly, we reman d t o the district court for consideration of the effect of the Lees’ remedial

measures allegations on its grant of summary judgment. See, e.g., Rokohl v. Texaco, Inc. , 77 F.3d

126, 130-31 (5th Cir. 1996) (“[e]ven though, i n our d e novo review, we could consider summary

judgment on that issue, we think it advisable to remand the claim to the district court for it to give

this issue its initial consideration.”).

The district court’s grant of summary judgment to DuPont is VACATED and REMANDED.”