* District Judge of the Northern District of Cali fornia,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30141

GWENDOLYN LAWRENCE AND

NOLES LAWRENCE, JR.,

Plaintiffs-Appellees,

versus

GENERAL MOTORS CORPORATION,

Defendant-Appellant,

and

UNIDENTIFIED PARTY, and Its Insurer XYZ

Insurance Co.,

Defendant.

Appeal from the United States District Court

for the Eastern District of Louisiana

January 16, 1996

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER *

, District Judge.

HIGGINBOTHAM, Circuit Judge:

Gwendolyn and Noles Lawrence sued General Motors Corporation

under Louisiana law, al leging that Mrs. Lawrence's auto-accident

injuries were caused by construction and design defects in their

Pontiac Bonneville, which GM manufactured in 1987. The jury found

that the car was defective in both construction and design and

returned a verdict awarding damages to the Lawrences. GM appeals.

We conclude that the evidence was insufficient to support a finding2

of a construction defect or a design defect in the Lawrences' car.

We reverse and render judgment for GM.

I.

In August 1989, Noles Lawrence paid $3,000 at an auto auction

for a used Pontiac Bonneville that General Motors Corporation had

manufactured in 1987. The Bonneville had been partially submerged

in water in a May 1989 accident and had accumulated 47,252 miles.

Mr. Lawrence made some repairs to the car, and the Lawrences drove

it for approximately 50,000 additional miles.

On October 5, 1993, Mrs. Lawrence suffered severe injuries

when she started the Bonneville and accelerated unexpectedly into

a tree. According to Mrs. Lawrence, she turned on the car engine

and waited briefly for it to warm u p. She then put the car in

drive and placed her right foot on the accelerator, at which time

the car suddenly accelerated to a "vertiginous speed"

— apparently

up to around forty to fifty miles per hour — crashing into a tree

located about twenty-five yards away from where the car had been

parked. Mrs. Lawrence indicated that she had put her foot on the

brake but was unable to stop the car.

The Lawrences sued GM, alleging that Mrs. Lawrence's injuries

and Mr. Lawrence's resulting loss of consortium were caused by

defects in GM's construction and design of the Lawrences'

Bonneville. See La. Rev. Stat. Ann §§ 9:2800.55-.56 (West 1995).

The Lawrences submitted a mechanica l engineer, Dr. Frederick J.

Brown, Ph.D., as their expert witness. Over GM's objections, the

district court qualified Dr. Brown as an expert witness and allowed3

him to offer opinion testimony on the role of the construction and

design of the Bonneville's engine in causing Mrs. Lawrence's

accident.

Dr. Brown testified that he had examined the car and concluded

that it had accelerated unexpectedly because the engine's throttle

was stuck in an open position. He opined that the cruise control

cable had been pulling on the throttle blades, noting a gap between

the plastic sleeve on the cruise control cable and the bracket at

the end of the cable. Dr. Brown determined that the sleeve on the

cruise control cable was lodged behind the cable sheath so that it

could not retract. He suggested that a longer sleeve might have

prevented Mrs. Lawrence's accident.

GM's expert, Richard Maiers, testified that he had examined

the car as well. He noted that the bracket for the cruise control

servo was bent and opined that Mrs. Lawrence's accident had caused

the servo and bellows to move away from the bracket, pulling the

throttle blades open and causing the sleeve on the cruise control

cable to move to where it was caught on the cable sheath. Maiers

observed that the bracket had been bent approximately 1.5 inches,

leaving a gap not ordinarily present. He testified that there

would be no space for a longer sleeve on the cruise control cable

with an undamaged bracke t. He concluded that the force of Mrs.

Lawrence's crash into the tree was responsible for the state of the

sleeve and cable after her accident.

At the close of evidence, the seven-person jury found that the

Bonneville was "unreasonably dangerous" in both construction and4

des ign when it left GM's control, and that Mrs. Lawrence and GM

were each 50% at fault. The jury awarded $475,000 in damages to

Mrs. Lawrence and $12,500 to Mr. Lawrence.

GM argued in its post-trial motion for judgment as a matter of

law that there was no evidence of a construction or design defect.

The district court "agree[d] that there was little evidence tending

to show a defect in the construction of the mushroom sleeve," but

concluded that, "even if the jury erred in concluding that a defect

in construction existed, the jury award remains unaffected because

the jury properly concluded that there was a defect in the design

of a mushroom sleeve." After reducing Mrs. Lawrence's damage award

to $420,000, in part to reflect stipulations as to her past medical

expenses, the district court entered judgment against GM awarding

$210,000 to Mrs. Lawrence and $6,250 to Mr. Lawrence.

II.

GM raises two arguments on appeal. First, GM contends that

the district court committed reversible error in allowing Dr. Brown

t o testify as an expert on automotive design. Second, GM argues

that the evidence was insufficient to support a finding that the

Bonneville was defective in either construction or design. We need

not decide whether the district court abused its discretion in

admitting Dr. Brown's expert testimony. We agree with GM that,

even with Dr. Brown's testimony, the evidence is insufficient as a

matter of law to support a finding under Louisiana law of a

construction or design defect in the Lawrences' Bonneville.5 A.

Louisiana law provides:

A product is unreasonab ly dangerous in construction or

composition if, at the ti me the product left its

manufacturer's control, the product deviated in a

material way from the manufacturer's specifications or performance standards for the product or from otherwise

identical products manufactured by the same manufacturer.

La. Rev. Stat. Ann. 9:2800.55. In reviewing a court’s denial of a

motion for judgment as a matter of law following a jury verdict, we

must consider all the evidence in the light most favorable to the

nonmoving party, to determine whether there was sufficient evidence

to permit any reasonable fact finder to arrive at the jury’s

verdict. T exas Farm Bureau v. United States

, 53 F.3d 120, 123 (5th

Cir. 1995). The Lawrences presented no evidence demonstrating that

the sleeve on the cruise control cable in their Bonneville deviated

from GM’s specifications or performance standards, or from

components in identical GM vehicles. In the absence of such

evidence, a reasonable jury could not have concluded that there was

a defect in the construction of the sleeve in the Lawrences' car.

B.

We likewise agree that a reasonable jury could not have found

that, under Louisiana law, the Lawrences' Bonneville was defective

in design. Louisiana law provides:

A product is unreasonably dangerous in design if, at

the time the product left its manufacturer's control:

(1) There existed an alte rnative design for the

product that was capable of preventing the claimant's

damage; and1 Dr. Brown testified at trial: "Well, if the little plastic

sleeve had been a little longer, then there wouldn't have been room for the sheath of the cable to catch on it and hang up the way it

did."

6

(2) The likelihood that the product's design would

cause the claimant's damage and the gravity of that

damage outweighe d the burden on the manufacturer of

adopting such alternative design and the adverse effect,

if any, of such alternative design on the utility of the

product. . . .

La. Rev. Stat. Ann. § 2800.56. In other words, a plaintiff suing

in Louisiana must demonstrate "that the risk avoided by using the

alternative design (magnitude of damage dis counted by the

likelihood of its occur rence) would have exceeded the burden of

switching to the alternative design (added construction costs and

loss of product utility)." L avespere v. Niagara Mach. & Tool

Works, Inc. , 910 F.2d 167, 181 (5th Cir. 1990).

Even assuming that the jury cou ld have credited Dr. Brown's

opinion that the sleeve on the cruise control cable was responsible

for Mrs. Lawrence's accident, the evidence as to an alte rnative

design is insufficient to establish GM's liability under Louisiana

law. The only suggestion of an alternative design was Dr. Brown's

recommendation of a longer sleeve. 1 There is scant evidence,

however, showing that the "likelihood that [the sleeve used] would

caus e [Mrs. Lawrence's] damage and the gravity of that damage

outweighed the burden on [GM] of adopting [a longer sleeve] and the

adverse effect, if any, of [a longer sleeve] on the utility of the

product." S ee La. Rev. Stat. Ann. § 2800.56. Though Dr. Brown

concluded that a longer sleeve could have prevented Mrs. Lawrence's

accident, he did not elaborate on the actual likelihood of avoiding2 The Lawrences urge that Maiers admitted at trial that GM

installed defecti ve Speareflex cables in 1987 Bonnevilles. This

argument is unavailing. The Speareflex cable refers to the

accelerator cable, which is distinct from the cruise control cable.

Dr. Brown, however, testified only that the sleeve on the cruise

control cable was responsible for Mrs. Lawrence's accident; he did

not suggest that the accelerator cable caused the accident, nor did

he indicate there was anything de fective about the accelerator

cable in the Lawrences' car.

7 the probable damage through an alternative design. Moreover, Dr.

Brown did not address the burdens or adverse utility effects of a

longer sleeve, nor did he counter Maiers' explanation that a longer

sleeve would not fit in an undamaged engine. Since there was no

other evidence of a feasible alternative design apart from Dr.

Brown's longer-sleeve testimony, the judgment holding GM liable for

a design defect cannot be sustained. S ee Morgan v. Gaylord

Container Corp.

, 30 F.3d 586, 590-92 (5th Cir. 1994) (applying La.

Rev. Stat. Ann. § 9:2800.56 and holding that opinion by plaintiff's

expert t h at alternative design would have been "`obvious[ly]'

inexpensive and easily implemented" was insufficient to withstand

manufacturer’s motion for summary judgment in absence of ot her

evidence on alternative design's feasibility and utility effects);

Lavespere , 910 F.2d at 183. 2

III.

For the foregoing reasons, we REVERSE the judgment of the

district court RENDER judgment for GM.