United States Court of Appeals,

Fifth Circuit.

No. 94-30239

Summary Calendar.

Cleveland LONDON, Plaintiff-Appellant,

v.

MAC CORPORATION OF AMERICA, Defendant-Appellee.

Feb. 13, 1995.

Appeal from the United States District Court for the Middle

District of Louisiana.

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

ROBERT M. PARKER, Circuit Judge:

Plaintiff-Appellant Cleveland London ("London") appeals the

district court's granting of Defendant-Appellee MAC Corporation of

America's ("MAC") motion for judgment as a matter of law on the

ground that there was no evidentiary basis for the jury to find

that MAC should have reasonably anticipated that the gearbox cover

on the shredder MAC designed and manufactured would be used as a

work station. London also appeals the court's ruling that London's

expert was not qualified to give opinion testimony on the design of

the shredder. We affirm.

FACTS AND PROCEDURAL HISTORY

In September 1989, MAC sold and shipped a Saturn Shredder

consisting of the shredder head and the electrical control panel to

Schuylkill Metals Corporation ("Schuylkill") in Baton Rouge,

Louisiana. The construction department at Schuylkill installed the

shredder, using its own equipment to build a platform, frame, feed

conveyor and hopper to go with the shredder. Sometime later
Schuylkill added an access platform and an overhead shed to

facilitate the operation of the shredder.

A service technician from MAC was present at the start-up of

the shredder. No problems were reported at start-up, except for a

broken sprocket on the conveyor belt built by Schuylkill. In

October 1989, Schuylkill contacted MAC's service department about

two hydraulic leaks in the shredder. A service technician from MAC

inspected the shredder and made the necessary repairs.

On April 23, 1991, London, a trained employee at Schuylkill,

was operating the shredder when some of the material he was

shredding clogged in the feed hopper of the shredder and caused the

shredder to jam. London turned the shredder off, climbed over the

motor drive of the shredder and stepped on top of the gear box

cover to reach the clogged material. The shredder was elevated

about ten feet off the ground. While attempting to dislodge the

clogged material, London lost his balance, fell to the ground and

severely injured his back.

London filed suit against MAC under the Louisiana Product

Liability Law for designing the shredder without safe access to

clogged materials and for failure to warn. At trial, the district

court judge ruled that London's expert, a safety consultant, was

not qualified to give an opinion regarding the design of the

shredder because he was not an engineer and refused to allow him to

testify.

At the close of the case, MAC moved for judgment as a matter

of law pursuant to Federal Rule of Civil Procedure 50(a). The

district court granted the motion, concluding that there was no
legally sufficient evidentiary basis that would allow the jury to

find that MAC should have reasonably anticipated that the gearbox

cover on the shredder would be used as a work station. The court

subsequently entered judgment in favor of MAC and dismissed the

suit.

EXPERT QUALIFICATIONS

London contends that the district court erred in refusing to

allow his expert witness, Michael Frenzel ("Frenzel"), to be

qualified as an expert or to testify. He argues that in accordance

with Federal Rule of Evidence 702, Frenzel had specialized

knowledge with regard to the safety of the shredder itself, whether

the shredder could be operated safely and if it could not be

operated safely, how to make it safe.

The district court is given wide discretion to admit or

exclude expert testimony under Rule 702, and any challenges to the

court's ruling are reviewed under the "manifestly erroneous"

standard. Edmonds v. Illinois Cent. Gulf R. Co., 910 F.2d 1284,

1287 (5th Cir.1990). The district court found that because Frenzel

was not an engineer he did not have the expertise to address the

design of the shredder, how it operates, or the function and use of

its parts. Additionally, the court found that what Frenzel could

testify to—that it would not be safe to work on top of a gearbox

cover ten feet off the ground—was common knowledge. Our review of

the record supports the district court's finding. Therefore, we

find no manifest error in the court's ruling.

JUDGMENT AS A MATTER OF LAW

London contends that the district court mistakenly decided
factual issues that the Seventh Amendment has decreed should be

decided by the jury which prejudiced him by not allowing his case

to be fairly deliberated by a jury. Specifically, he argues that

the court erroneously decided the issue of fact regarding the

intended use of the gearbox cover and MAC's reasonable anticipation

that the gearbox cover would be used as a work station.

 We apply the same standard of review as the district court

did in reviewing the court's grant of judgment as a matter of law

in this case. Robertson v. Bell Helicopter Textron, Inc., 32 F.3d

948, 950 (5th Cir.1994) (citing Crosthwait Equip. Co. v. John Deere

Co., 992 F.2d 525, 528 (5th Cir.), cert. denied, --- U.S. ----, 114

S.Ct. 549, 126 L.Ed.2d 451 (1993)). We must consider all the

evidence presented, with all reasonable inferences in the light

most favorable to London. Id. The motion is properly granted when

the facts and inferences point so strongly in favor of the movant

that a rational jury could not arrive at a contrary verdict. Id.

at 950-51. "If there is substantial evidence—that is, evidence of

such quality and weight that reasonable and fair-minded jurors

might reach a different conclusion—then the motion should have been

denied." Id. at 951.

After reviewing the entire record, we conclude that, based on

the evidence presented to the jury, a rational jury could not

arrive at a contrary verdict. The Louisiana Products Liability Act

of 1988 ("LPLA") establishes:

The manufacturer of a product shall be liable to a claimant

for damage proximately caused by a characteristic of the

product that renders the product unreasonably dangerous when

such damage arose from a reasonably anticipated use of the

product by the claimant or another person or entity.
LSA-R.S. 9:2800.54. "Reasonably anticipated use" is defined as:

[A] use or handling of a product that the product's

manufacturer should reasonably expect of an ordinary person in

the same or similar circumstances.

LSA-R.S. 9:2800.53(7). The inclusion of the phrase "reasonably

anticipated use" conveys the message that the manufacturer is not

responsible for accounting for every conceivable foreseeable use.

See Myers v. American Seating Company, 637 So.2d 771, 775 (La.App.

1st Cir.), writ denied, 644 So.2d 631 (La.1994). We find that

although London's use of the gearbox cover as a work station may be

conceivable, MAC could not reasonably anticipate its use in this

fashion. Therefore, we find that London failed to establish that

MAC was liable under the LPLA.

CONCLUSION

For the reasons articulated above, the judgment of the

district court is AFFIRMED.