* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should

not be published and is no t precedent except under the limited circumstances set

forth in 5 TH C IR . R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30858

Summary Calendar

JOHN D. MAYNARD; HOPE OLLIS MAYNARD,

Individually and as Administrators of the Estate of

their Minor Child, John David Maynard, II,

Plaintiffs-Appellants,

versus

DIAMOND SHAMROCK RIFINING AND MARKETING

COMPANY; MARATAHON OIL COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(96-CV-1069-B)

May 24, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

POLITZ, Circuit Judge: *

John and Olive Maynard appeal an adverse judgment and the district court’s

denial of their motion for judgment as a matter of law after an adverse jury verdict

in their products liability claim against Diamond Shamrock Refining and

Marketi ng Company and Marathon Oil Company. For the reasons assigned, we

affirm.2 BACKGROUND

On April 23, 1995 John Maynard bought gasoline from Diamond Shamrock

stati on 375 in the Houma, Louisiana area. Immediately thereafter the engine of

Maynard’s van began to perfo rm badly. Maynard, who was familiar with auto

engines, decided to attempt to correct the situation. After initially tapping the fuel

line to start up the engine, Maynard decided to remove the engine cover to explore

the carburetor and fuel syste m. Unlike other vehicles, Maynard’s model had a

portion of its engine compartment actually in the occupant’s area of the van and as

a consequence, the engine, with the carburetor on top, was within arm’s reach of

the driver when the engine cover was removed. Believing that the fuel filter was

plugged, Maynard removed the air filter cover and the air filter and rehooked the

fuel line to the connection near the carburetor. After this attempt at repair the

vehicle ran badly. Maynard then removed small flakes on a valve connecting the

carburetor to the fuel line and then rehooked the line. He did not replace the airfilter cover or the engin e cover during his several attempts to repair his vehicle.

During this time, Maynard was transporting his lawnmower, a full gasoline can,

and painting supplies, all located immediately behind the engine.

The final relevant incident occurred when the van engine st arted to “die”

again. Maynard claimed that he pumped the accelerator in an effort to keep the

engine going but the engine suddenly backfired, throwing fire and possibly burning

gasoline on him. Evidence at trial revealed, however, that Maynard, while driving

the vehicle, attempted to keep the engine running by pouring gasoline directly into1 La. Rev. Stat. Ann. 9:2800.51 et seq.

3 the carburetor. Maynard jumped from his van engulfed in flames and extinguished

the fire. He was brought to the hospital and treated for burns on over 40% of his

body.

Maynard subsequently learned that Diamond Sha mrock had received

complaints of defective gasoline from customers in the Houma-Thibodaux area

during mid-April. This problem existed in nine stations, including the one from

which Maynard purchased his gasoline. In response to these complaints, Diamond

Shamrock ident ified the problem as being caused by gasoline supplied by Marathon

Oil company and began buying gasoline from Citgo. Diamond Shamrock’s first

shipment of Citgo gasoline occurred on April 22, 1995, the day before Maynard’s

purchase.

Mayn ard and his wife then sued Diamond Shamrock and Marathon, both

individually and in their capacity as administrators for their minor child. After

removal, a trial was held and the jury entered a verdict in favor of the defendants,

finding Marathon did not manufacture the gasoline purchased by Maynard and that

Maynard’s injuries were not proximately caused by a characteristic of the gasoline

purchased. The district court then granted the defendant’s motion for judgment as

a matter of law, ruling that John Maynard was not engaged i n a reasonably

anticipated use of the product as required by the Louisiana Products Liability Act. 1

The Maynards timely appealed.

ANALYSIS2 Ensley v. Cody Resources, Inc. 1999 WL 170142 (5 th Cir. Tex).

3 Smith v. The Berry Co.

, 165 F.3d 390 (5 th Cir. 1999) (intern a l citations

omitted).

4 Kampen v. American Isuzu Motors, Inc. , 157 F.3d 306 (5 t h Cir. 1998) (en

banc).

4 On appeal, the Maynards challenge the district court’s ruling that John

Maynard’s use of the gasoline was not a reasonably anticipated use. They contend

that the defective gasoline caused the engine to malfunction , and that the

manufa cturers of gasoline reasonably should anticipate that defective gasoline may

lead a person to self-help remedies.

We review de novo the grant of a judgment as a matter of law, applying the

same standard as the district court and considering all the evidence with all

reasonable inferences in the light most favorable to the non-moving party. 2

Judgment as a matter of law is proper when the fac ts and inferences point so

strongly and overwhelmingly in favor of one part y that the court believes that

reasonable men could not arrive at a contrary verdict. 3

Our review of the record persuades that the evidence is overwhelming that

Maynard’s use of the gasoline was not a reasonably anticipated use. Maynard was

not merely, as he contends, using the fuel t o propel his engine when his injuries

occurred. Rather, he was pouring fuel into an uncovered engine located within the

passenger compartment of his vehicle in an effort to prime the carburetor. Such

a use of the produ ct clearly is not within the appropriate range of product uses

which the reasonably anticipated use standard encompasses. 4 Further, the question5 Fed. R. Evid. 403; Leefe v. Air Logistics, Inc. , 876 F.2d 409 (5 th Cir. 1989).

5 whether Maynard’s actions constitute a reasonably anticipated use is foreclosed by

the jury’s finding on the causation issue. In answering the interrogatories, the jury

found that the defective gasoline was not the proximate caus e of Maynard’s

injuries. The jury’s decision obviously was based on the overwhelming evidence

of Maynard’s attempts at self-repairs, of his disregard of the risks of traveling with

an exposed engine and carburetor, and of his attempts to prime the carburetor while

driving a vehicle laden with gasoline, flammable equipment and supplies.

The Maynards also challenge numerous evidentiary decisions of the district

court during the course of the trial proceedings. Specifically, they contend that the

distri ct court erred in refusing to allow them to call several witnesses who had

purchased bad gasoline from Station 375; in excluding testimony that Marathon’s

gasoline may have been in a Diamond Shamrock t ank when Maynard purchased

gasoline; and in excluding the claim forms and other documents of approximately

280 customers who made claims against Diamon d Shamrock for defective gasoline.

We conclude, however, that this evidence was properly disallowed as irrelevant.

The gasoline in Maynard’s tank was not consumed in the fire and was tested by

both the Maynards’ and the defendants’ experts. From this direct evidence, the jury

was able to discern whether the gasoline was Marathon’s defectiv e gasoline.

Because of

the existence of this direct evidence, the circumstantial evidence in

question held little, if any, probative value. 5

The judgment appealed is AFFIRMED.