*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60488

Summary Calendar

MILTON LEE LEVERETTE,

Plaintiff-Appellant,

VERSUS

LOUISVILLE LADDER COMPANY

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

(5:97-CV-58-Br-S)

July 9, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Milton Lee Leverette brought suit against Louisville Ladder

Company asserting that manufacturing defects were responsible for

injuries suffered in a work-related fall. The district court,

excluding Leverette’s expert’s testimony, granted Louisville

Ladder’s Motion for Judgment as a Matter of Law. Leverette

appeals. We AFFIRM. 

I. FACTS AND PROCEEDINGS
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In March, 1995, Milton Lee Leverette was working for Vicksburg

Video as a cable installer and technician. As a part of his work

duties, Leverette used a 28-foot fiberglass extension ladder to

check and install cable on utility poles. While working on March

25, 1995, Leverette placed his ladder against the utility pole to

check the cable of one of his customers. As he reached the third

rung from the top, the ladder broke in half, and Leverette fell

approximately 30 feet to the ground. Leverette suffered severe

injuries to his shoulder, back, and abdomen, requiring two

surgeries.

Leverette filed a complaint against the manufacturer of the

ladder, Louisville Ladder Company, under the Mississippi Product

Liability Act (“MPLA”) alleging that he suffered severe personal

injuries as a result of a manufacturing defect. Leverette enlisted

the assistance of Dr. Shelby Thames, a professor of chemistry and

polymer sciences at the University of Southern Mississippi. Upon

completion of the discovery deposition of Dr. Thames, Louisville

Ladder filed a Motion for Summary Judgment and further, filed a

Motion to Exclude the testimony of Dr. Thames pursuant to Daubert

v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The

district court denied both Motions. Louisville Ladder also moved

to strike Dr. Thames’ testimony on the ground that Leverette failed

to produce a list of the cases that its expert had testified in the

past four years and the amount that they were paying Dr. Thames,

pursuant to Fed. R. Civ. P. 26. The district court ordered

Leverette to produce the expert information within five days.
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Prior to trial, Louisville Ladder renewed its Daubert motion

and requested the court to strike Dr. Thames’ testimony because the

Rule 26 expert information was not provided. 

At trial, Leverette called Dr. Thames who opined that the

ladder had a manufacturing defect because there was no adhesion

between the fiberglass and the polymer matrix making up the ladder.

At the conclusion of Dr. Thames’ testimony, the district court

ruled that Dr. Thames’ testimony was irrelevant and excluded his

testimony. The district court subsequently granted Louisville

Ladder’s Motion for Judgment as a Matter of Law under Fed. R. Civ.

P. 50.

II. DISCUSSION

We review the district court’s decision to grant a Motion for

Judgment as a Matter of Law de novo. See Garcia v. Woman’s Hosp.

of Texas, 97 F.3d 810, 812 (5th Cir. 1996). We consider all the

evidence in the light and with all inferences most favorable to the

party opposed to the motion. See Ikerd v. Blair, 101 F.3d 430, 432

(5th Cir. 1996). We review the district court’s decision to

exclude expert testimony for an abuse of discretion. See General

Electric Co. v. Joiner, 118 S. Ct. 512, 517 (1997); Moore v.

Ashland Chemical Inc., 151 F.3d 269, 274 (5th Cir. 1998).

Leverette contends that the district court abused its

discretion in excluding Dr. Thames’ testimony on the ladder’s

manufacturing defect. The district court, relying on Daubert, Fed.

R. Evid. 702, and Fed. R. Evid. 703, excluded the testimony, ruling

that the testimony was irrelevant to proving that the ladder had a
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manufacturing defect. We hold that the district court did not

abuse its discretion in excluding the expert’s testimony for a lack

of relevance.

To prevail in a products liability case under Mississippi law,

the plaintiff must prove, at the time the product left control of

the manufacturer or seller, “[t]he product was defective because it

deviated in a material way from the manufacturer’s specifications

or from otherwise identical units manufactured to the same

manufacturing specifications....” Miss. Code. Ann. § 11-1-

63(a)(i)(1). 

 Louisville Ladder manufactures its ladders to meet

specifications under the American National Standard Institute

(“ANSI”). The ANSI standards provide a set of minimum performance

and dimensional requirements for the manufacture of products. ANSI

A14.5 specifies materials to be used in manufacturing, the

properties of the materials, the types of tests to be performed,

and minimum test results. Further, the ANSI relies on the American

Society of Testing and Materials (“ASTM”) for performing strength,

physical, and mechanical property tests for fiberglass. 

The district court ruled, and we agree, that Dr. Thames failed

to assess whether the ladder met ANSI standards in accordance with

the requirements under Mississippi law. The district court did

not abuse its discretion.

Leverette now contends that this Court should apply a riskutility analysis to the ladder under Sperry-New Holland v.

Prestage, 617 So.2d 248 (Miss. 1993) to find that it was a
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defective product. The risk-utility analysis applies to design

defects case, not manufacturing defect cases. See Miss. Code. Ann.

§ 11-1-63(a)(i)(1), (b). “The Court will not allow a party to

raise an issue for the first time on appeal merely because a party

believes that he might prevail if given the opportunity to try a

case again on a different theory.” See Forbush v. J.C.Penney Co.,

98 F.3d 817, 822 (5th Cir. 1996). Leverette did not assert a

design defect theory and cannot present this issue on appeal.

Finally, Leverette contends that the district court should

have considered his Motion for Reconsideration to challenge the

constitutionality of the MPLA. This Court will not consider an

issue that a party fails to raise in the district court absent

extraordinary circumstances, see North Alamo Water Supply Corp. v.

City of San Juan Texas, 90 F.3d 910, 916 (5th Cir. 1996) (declining

to consider constitutional challenge to statute on appeal), and

generally speaking, we will not consider an issue raised for the

first time in a Motion for Reconsideration. See Browning v.

Navarro, 894 F.2d 99, 100 (5th Cir. 1990). 

III. CONCLUSION

For the foregoing reasons, the district court’s opinion is

AFFIRMED.