1 REVISED, JANUARY 11, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41038

RODGER NELSON SMITH, JR.,

Plaintiff-Appellee,

v.

LOUISVILLE LADDER CORP.,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

January 11, 2001

Before DAVIS, SMITH and DENNIS Circuit Judges.

DAVIS, Circuit Judge:

This is an appeal from a judgment entered on a jury verdict

for the plaintiff, Rodger Nelson Sm ith (“Smith”), in a products

liability action against Louisville Ladder Corp. (“Louisville”).

Following a four day trial, the jury found in favor of Smith, and,

after taking Smith’s 1 5% contributory negligence into account,

awarded Smith $1,4 87,500. We conclude that the record evidence

does not support any of Smith’s theories of recovery. We therefore2

reverse and render judgment for Louisville.

I.

Rodger Smith worked as a technician for Longview Cable Company

( “Longview”), which provided cable television service in the

Longview, Texas area. At the time of his accident in April 1995,

Smith had been employed by Longview for approximately one and onehalf years. Longview purchased the extension ladder and hook

assembly in use at the time of Smith’s accident from Louisville.

On the day of Smith’s injury, he was assigned a routine repair

job that required him to rest the ladder against a cable strand

located some twenty feet off the gr ound. Smith placed the cable

line inside the U-shaped hooks that extended from the top of the

ladder and rested the ladder against the cable. The base of the

ladder was on the ground approximately five feet from a utility

pole to which t he overhead cable was attached. Because of its

weight, the cable sloped down slightly as it moved from the pole.

Smith climbed the ladder without s ecuring the ladder to the

pole or a ny other stationary object. Smith’s plan was to secure

himself to the ladder with his safety belt when he reached the top

of the ladder and then use a hand line to attach the ladder to the

utility pole. After Smith climbed to the top of the ladder, he

reached for his safety belt and his weight shifted, causing the

ladder to slide to his left down the natural slope of the cable.

The ladder slid sideways for some distance with Smith hanging onto1 We disagree with the dissent that Louisville Ladder is raising

a “new ground” for JMOL. Louisville Ladder sought JMOL on the

ground that plaintiff’s evidence was insufficient to establish a

“safer alternative design”. This preserved the issue for appeal.

3 the ladder. When the ladder reached a position at or near the low

point of the line between the two utility poles to which it was

attached, o ne of the hooks came off the line, and the ladder

twisted and came to an abrupt halt. Unable to maintain his grip on

the ladder, Smith fell to the ground and was seriously injured.

Lateral slides of ladders along cables were well recognized

risks in the telecommunications industry, and Smith, himself, had

experienced sever al of these slides during his employment with

Longview. However, in the earlier slides Smith had attached his

safety belt to the ladder before the slide began and because he did

not fall from the ladder he suffered no injury.

Smith’s product liability suit against Louisville sought

recovery on three theories: defective design, failure to warn, and

breach of implied warranty of mer chantability. Following trial,

the jury fo und in favor of Smith on all three theories and after

taking Smith’s 15% contributory negligence into accou nt, awarded

Smith $1,487,500. The district court entered judgment on the

v e rdict and denied Smith’s post-judgment motions. This appeal

followed. 1

II

A. Design Defect4

Smith focused most of his time and attention at trial on his

theory that the Louisville extension ladder with hook assembly was

defective because of the hook’s ability to come off the cable

during a slide. Smith’s expert, Dr. Packman, testified that when

the hook disengaged from the cable near the end of Smith’s slide,

the ladder to which Smith was clinging twisted more violently than

it would had the hook remained attac hed to the cable and he

concluded that this additional twist contributed to Smith’s fall.

Packman introdu ced the concept of a simple latching device that,

when engaged, would close the opening in the hook, encircle the

cable and prevent the hook from disengaging from the strand. Under

Dr. Packman’s concept, the latch remains disengaged until the hook

is placed over the cable and the ladder is resting on t he cable.

The operator, from his position on the ground, would then remotely

activate a spring loaded latch by pulling a line running from the

latch to the bottom of the ladder. Once the latch was engaged, the

hook would no longer be open and in the event of a slide, the hook

could not disengage from the cable.

Louisville Ladder argues that Smith did not establish that the

hook with Dr. Packman’s latch was a “safer alternative design”

within the meaning of the Texas statute. To establish a design

defect, Section 82.005 of the Texas Civil Practice and Remedies

Code requires a claimant “to prove by a preponderance of the

evidence that: (l) there was a safer alternative design; and (2)5

the defect was a producing cause of the personal injury property

damage or death for which the claimant seeks recovery.” Subsection

(b) states:

(b) In this section, “safer alternative design” means a

product design other than the one actually used that in

reasonable probability:

(l) would have prevented or significantly

reduced the risk of the claimant’s personal

injury, property damage, or death without

substantially impairing the product’s utility;

and

(2) was economically and technologically

feasible at the time the product lef t the

c ontrol of the manufacturer or seller by the

application of existing or reasonably

achievable scientific knowledge.

We found only one Texas case discussing the proof necessary to

establish a safer alternative design under this sta tute. In

General Motors Corp. v. Sanchez , 997 S.W. 2d 584 (Tex. 1999), the

plaintiff’s expert testified that his altern ative design of the

General Motors transmission would prevent internal fo rces in the

transmission from moving the gear selector toward “reverse” rather

than “park” when the driver inadvertently leaves the lever in a

position between “reverse” and “park.” According to plaintiff’s

expert, his proposed design change would eliminate this spontaneous

movement 99% of the time. The court held that this testimony was

sufficient to allow the jury to conclude that plaintiff had

established a safer alternative design. Id. at 592.

In our case, Smith completely relies on Dr. Packman’s evidence2 As stated below , Dr. Packman never produced his proposed

impro vement--the spring loaded latching device. For this

experiment he simply drilled holes in the hook, ran a bolt through

the holes and closed the open end of the hook so that it would not

disengage from the cable.

6 and testimony to establish a safer alternate design. Packman

testified that his spring loaded latch, by preventing the hook from

disengaging from the cable, would make the jolt at the end of the

slide less violent, and, therefore, the worker would have a better

chance of hanging onto the ladder. He conducted videotaped

experiments for the purpose of establishing this fact. In the

first experiment, he placed a 200-pound weight on a ladder with

hooks like those found on the Louisville Ladder and then

precipitated a slide to demonstrate the jerk that would occur when

one of the hooks disengaged fromthe strand. For the second

experiment, Dr. Packman videotaped a slide involving hooks that

encircled the cable. 2 This experiment demonstrated a less violent

jerk at the end of the slide.

The only conclusion Dr. Packman was able to reach was that his

alternative design would result in a less violent jerk on the

ladder at the end of the slide. Unlike the expert who testified in

General Motors

, Dr. Packman was unable to quantify this reduction

in force and was unable to say that Smith or another worker could

stay on the ladder in a slide where the hook was prevented from

disengaging f rom the cable. The most Dr. Packman could say was7

that his design alteration would diminish the possibility of the

worker’s falling off because there was some reduction in the jerk.

Furthermore, Dr. Packman’s concept of the latching device to

close the open end of the hook around the cable was a preliminary

concept. At the time of trial he admitted that he had considered

several possible ways a man on the ground (or some distance up the

ladder) could operate the latch mechanism but had not settled on

any particular method. He agreed that his design was preliminary

and that he was not ready to recommend it to a manufacturer. In

addition, Packman conceded that a person climbing the ladder would

find his proposed mechanism somewhat awkward and that using the

mechanism could cause the ladder to get out of balance and slide.

He was also questioned about a concern that the line to operate the

latch mechanism running the length of the ladder has the potential

of being a hazard to the person climbing the ladd er. Packman

agreed th at he never evaluated the risks associated with his

proposed alternate design due in part to the fact that it was never

completed. Packman also conceded that he did not purport to

conduct a risk-benefit analysis of his proposed redesign.

In addition to the Texas Supreme Court’s interpretation of the

statute in General Motors

, we look to decisions of this court

considering whether such proof was adequate to sa tisfy a similar

statutory burden imposed by Louisiana. In L awrence v. General

Motors Corp

., 73 F. 3d 587, 590 (5th Ci r. 1996), we considered3 La. R .S. 9:2800.56 requires that a plaintiff attempting to

establish a design defect prove that:

(1) There existed an alternative design for the product

that was capable of preventing the claimant’s damage; and

(2) The likelihood that the product’s design would cause

the claimant’s damage and the gravity of that da mage

outweighed the burden on the manufacturer of adopting

such alternative design and the adverse effect, if any,

on the utility of the product ....

8 whether the evidence was suff icient to satisfy a very similar

Louisiana statute, 3 and concluded that a declaration by the

plaintiff’s expert that a proposed alternative design could have

prevented the plaintiff’s accident was insufficient to establ ish

the statutory requirement. We stated that this expert failed to

“elaborate on the actual likelihood of avoiding the probable damage

through an alte rnative design,” “address the burdens or adverse

utility effects of his proposed changes, or counter the defendant’s

claim that thes e alterations would not have been compatible with

the product in its current form. I d. at 590. As a result, we held

that the evidence was insufficient as a matter of law to support a

finding of design defect. I d

. S ee also, Watkins v. Telsmith,

Inc. , 121 F. 3d 984 (5th Cir. 1997) (Miss. statute).

After careful review of the record, w e conclude that no

reasonable jury could have found from the evidence that the

latching device Dr. Packman proposed adding to the ho ok assembly4 The dissent quarrels with the standard we applied in reviewing

the sufficiency of the evidence. This sentence makes it clear that

we applied the correct federal standard. R eeves v. Sand erson

Plumbing Products , 120 S.Ct. 2097, 2102 (2000).

5 This disposition makes it unnecessary for us to reach

appellant’s argument that the district court erred in admitting Dr.

Pack man’s testimony as reliable under D aubert v. Merrell Dow

Pharmaceuticals, Inc. , 509 U.S. 579 (1993).

9 w as a safer alternative design as defined by the Texas statute. 4

Dr. Packman conceded that his proposed alternate design would not

assist in preventing the hook from sliding on the cable. He also

agreed that the only benefit a worker would derive from the

alternate design was a reduced jerk at the end of the slide. He was

therefore unable to say that his alternate design would have

prevented Mr. S mith’s fall. Therefore, we conclude that the

evidence fails to establish that the alternative design would have

“significantly” reduced the risk of Mr. Smith’s injury.

Furthermore, Dr. Packman conceded that he made no risk-benefit

analysis including what a dditional hazards would be created in

implementing his proposed alternative design. Thus, Dr. Packman’s

testimony does not es tablish that his proposed design would not

have substantially impaired the ladder’s utility. The jury’s

finding of design defect, therefore, cannot stand. 5

B. Breach of Implied Warranty

Louisville Ladder argues that S mith’s breach of implied

warranty claim fails for the same reason as his design defect

claim: Smith failed to produce su fficient evidence that a safer10

a lternative design of the extension ladder with cable hook

accessory exists. As the above discussion reflects, our review of

the record leads us to conclude that Smith failed to establish a

s afer alternate design to the Louisville Ladder involved in t his

accident. Texas Civil Practice & Remedies Code § 82.005, which

requires a claimant to prove a safer alternative design, applies to

all products liability actions whether brought as strict liability,

as breach of implied warranty, or a combination of those theories.

See Tex. Civ. Practice & Remedies Code § 82.001(2).

The Texas Supreme Court made this point clear in Hyundai Motor

Co. v. Rodriguez

, 995 S.W.2d 661 (T ex. 1999). In that case, the

plaintiff was injured in a crash of a Hyundai. She sued on a

theory that the vehicle was not crash-worthy and was defective for

that reason. The trial court submitted the plaintiff’s negligence

and design defect theories to the jury, but refused to submit the

plaintiff’s breach of warranty theory on grounds that this was

duplicative of the design defect theory.

Although this case was tried before 1993, the year § 82.005

was adopted, the court held that even under the pre-1993 law, the

issues regarding the existence of design defect and breach of

warranty were identical. Consequently, the Supreme Court of Texas

concluded that the trial court had properly declined to submit the

breach of warranty claim to the jury.

Wit h respect to post-1993 claims under § 82.005, the court11

stated: “for cases tried since the 1993 effective date of Chapter

82 of the Civil Practice and Remedies Code, the findings required

to establish a design defect claim are identical, regardless of the

legal theory asserted.” H yundai Motor Co.

, 995 S.W.2d at 667; Tex.

Civ. Practice & Remedies Code § 82.001(2), 82.005.

In sum, because Smith failed to establish a safer alternative

design for the ladder in use at the time of the accident, his claim

predicated on breach of implied warranty must fail, along with his

design defect claim.

III

Louisville challenges the jury’s finding of marketing defect

on the ground that it had no duty to warn of the risk of lateral

cable slides and specific precautions to prevent such slides beyond

the statements it provided on its ladder. The warning label on its

ladder directed users to “[s]ecure top and bottom of the ladder

from movement where possible” and that “serious personal injuries”

could result from failure to follow instructions. Louisville

states that the ladder was marketed to users in the

telecommunications industry who possessed special knowledge of

slide hazards and expertise in stabilizing the ladder to avoid this

hazard.

Smith does not dispute that Louisville’s ladders are marketed

solely to the telecommunica tions industry, that he works in that

industry, or that his profession has knowledge of the hazards of6 See Lucas v. Texas Industries, Inc.

, 696 S.W.2d 372, 377 (Tex.

1984).

7 American Tobacco Co. v. Grinnell

, 951 S.W.2d 420, 426 (Tex.

1997) ( quoting Joseph E. Seagram & Sons v. McGuire

, 814 S.W.2d 385,

38 8 (Tex. 1991)). S ee also Koonce v. Quaker Safety Products &

Mfg.

, 798 F.2d 700 (5th Cir. 1986) (ruling that a manufacturer has

no duty to warn a user who should reasonably have knowledge of the

dangers involved and may rely on the user’s special expertise or

knowledge in making this determination).

8 See Sauder Custom Fabrication, Inc. v. Boyd

, 967 S.W.2d 349,

350 (Tex. 1998) (citing Texas precedent and the Restatement (Third)

of T orts: Prod. Liab. § 2, cmt. j); P avlides v. Galveston Yacht

Basin, Inc.

, 727 F.2d 330, 338-39 (5th Cir. 1984) (holding that

where a “product is marketed solely to professionals experienced in

using the product, the manufacturer may rely on the knowledge which

a reasonable professional would apply in using the product.”).

12 lateral cable slides. He argues that, nevertheless, the jury was

entitled to find that workers in his industry do not have expertise

relative to how these ladders can be secured to avoid the sliding

d uring initial ladder ascent; that is, before the worker reac hes

the stran d and ties the ladder to the strand or to an adjacent

utility pole. Furthermore, Smith asserts that Louisville’s

warnings were vague and failed to provide an answer to this

problem.

Even a product that is safely designed and manufactured may be

unreasonably dangerous as marketed because of a lack of a dequate

warnings or instructions. 6 However, under Texas law, “there is no

duty to warn when the risks associated with a particular product

are mat ters ‘within the ordinary knowledge common to the

community’” 7

, and a supplier may rely on the professional expertise

of the user in tailoring its warning. 8 Moreover, while industry9 See Sauder Custom , 967 S.W.2d at 350.

10 See Hamilton v. Motor Coach Industries, Inc.

, 569 S.W.2d 571,

577 (Tex. Civ. App.-Texarkana 1978, no writ).

13 knowledge is an objective inquiry, 9 it is a question of fact to be

resolved by the jury in cases involving conflicting evidence on the

issue. 10

The jury in this case was cha rged with determining whether

Louisville Ladder’s warnings were adequate in light of the

telecommunications industry’s knowledge of lateral cable slides and

available techniques for avoiding such slides. Smith does not

dispute industry knowledge that such slides are a common hazard;

thus, the question narrows to whether the jury was entitled to find

that the telecommunications industry was unaware of procedures to

avoid this hazard during a user’s initial ascent of a cable

extension ladder. We therefore turn to the record to assess

whether, based on the evidence presented at trial, a reasonable

jury could have found inadequate industry knowledge of this hazard

and the appropriate precaution to avoid it.

Louisville introduced extensive evidence bearing on industry

expertise on this hazard: (1) The Longview Cable TV Safety Manual

(“ Longview Safety Manual ”); (2) The Society of Cable Tel evision

Engineer’s Health and Safety Manual Book III: Field and Plant

Safety (“ Society Safety Manual ”); (3) Two industry videotapes on

ladder safety; and (4) The AT&T Company S tandard, Bell System11 Weh co Media, Inc., S afety

, Ch. 2, 5 (“ Position: Proper

positioning of ladders can greatly reduce the risk of accident by

assuring a ‘climbing space’ of thirty square inches, being aware of

slack spans which could cause a ladder to sli de, looking up to

identify hazards before positioning the ladder, adjusting the

ladder for the proper height and support ratio (for each four feet

of height, the base should be out one foot), and by securing the

ladder with a rope if necessary .”) (emphasis added).

14 Practices Manual for the Use of Extension Ladders and Attachments

(“ AT&T Ladder Manual ”). Taken together, these documents and videos

provide such compelling proof that Smith’s industry had c ommon

knowledge of adequate pre-ascent stabilization techniques that no

reasonable fact finder could have found to the contrary.

First, Longview’s own safety manual has a section concerning

ladder placement, which stresses the importance of “proper

positioning” and indicates that it may be “necessary” to “secur[e]

the ladder with a rope” during placement. 11 Second, relevant

portions of the S ociety Safety Manual emphasize that “[n]umerous

accidents may occur each year due to the improper use of ladders [,

and, thus,] employees are expected to use ladders carefully and

deliberately, paying close attention to their own safety as well as

the safety of others” and “[w]hen used on a strand, extension

ladders should be securely lashed to the strand, or guarded by an

employee at the bottom of the ladder.” Third, the two industry

safety videos repeatedly underscore the importance of establishing

appropriate ladder stability during positioning and illustrate

numerous possible pre-ascent stabilization techniques that would12 Ladder Safety (Safety Short Production 1988) (running

approximately 5.5 minutes); Videotape T-1043 on Extension Ladders:

Extension Ladder Training Course developed by the Atlee Cullison

Training School (Society of Cable T elevision Engineers) (running

approximately 32 minutes).

13 Ladder Safety , at running time 3:10 (emphasis added).

14 Extension Ladder Training Course

, at running time 24:20 e t

seq

.

15 Id.

16 Id. at running time 30:50.

15 have been applicable to Smith’s accident. 12 For example, in L adder

Safety

, the more cursory of the two videos, the narrator states

that when placing ladders, users should “make sure that [they]

won’t slip; lash [them] if necessary

, or get someone else to hold”

them during use. 13 Furthermore, Extension Ladder Training Course

,

t he more lengthy and thorough videotape, extensively deals with

using hook extensio n ladders against cable strands and instructs

operators to “secure the ladder to the strand” with the hooks alone

only if the job does not require “pushing, pulling, or excessive

strain.” 14 Otherwise, the video directs users to “raise the ladder

two or three rungs above the strand” before climbing. 15 Moreover,

in a broader discussion of general ladder placement on slippery

surfaces, this tape explains that “ladders can be prevented from

sliding by tying the base of the ladder to a stable struc ture or

hav[ing] someone ‘foot’ the ladder.” 16 Finally, the A T&T Manual

strongly illustrates the prevalence of pre-ascent ladder17 The AT&T Company Standard, Bell System Practices Manual for

the Use of Extension Ladders and Attachments

, Section 081-740-105,

28 (“The craft person shall always remember to first make the

ladder secure, and then secure oneself on the ladder, to avoid

falling, in the event of slipping, loss of balance, or if something

else goes wrong. The manner in which the craft person is secured

to the ladder will depend on the security of the ladder, and the

nature of the work to be done.”).

18 Id. at 35.

19 Id.

20 Id. at 31.

16 s tabilization techniques by: (1) Cautioning operators to “alway s

remember to first make the lad der secure;” 1 7 (2) Instructing them

to “make certain the ladder is placed on firm and level footing to

prevent the ladder from twisting or sliding along the strand;” 18 (3)

Indicating that “[l]adder strand hooks shall be used on lashed,

ring-supported, a nd self-supporting cable when the ladder is not

lashed to the strand;” 19 and most signif icantly (4) Providing the

following explana tion of how to prevent cable extension ladder

slides:

When using a ladder on a strand having a fairly steep

slope, secure the ladder with rope to prevent the top of

the ladder from sliding along the strand. Before raising

the ladder, throw or place a handline over the strand and

secure one end of the handline to the second rung from

the top of the fly section. After placing the ladder on

the strand, pull the other end of the handline taut and

secure it to an adequate support on the uphill side of

the ladder, such as a pole, tree, or digging bar firmly

anchored in the ground. If no such anchorage is

obtainable, secure the ladder to the cable strand by

throwing the handline over the strand again, so the rope

passes twice around the cable

. . . strand. Then tie the

rope securely to a rung on the base section of the

ladder. 2017

The overwhelming evidence of industry knowledge of the dangers

of extension ladders’ sliding on a strand, leads us to question

whether Louisville was obliged to give any warning of this hazard.

We need not decide whether a warning was requ ired because

Louisville supplied a warning that was plai nly adequate when

considered in light of industry knowledge of this danger and how to

avoid it. We co nclude, therefore, that Smith did not present

sufficient evidence for the jury to find that Louisville failed to

adequately warn of this hazard.

IV

For the above stated reasons, we conclude that Smith failed to

present sufficient evidence at trial to support any of his theories

of recovery. The district court’s judgment is, therefore, reversed

and judgment is rendered in favor of Louisville.

REVERSED and RENDERED.18

DENNIS, Circuit Judge, dissenting.

This diversity case was tried under Texas products liability

law to a correctly instructed jury that returned a $1.5 million

verdict for the plaintiff. Applying Texas substantive law and this

Circuit’s federal test for the sufficiency of evidence to create a

jury question, the district court denied the defendant’s motion for

judgment as a matter of law (“JMOL”) and rendered judgment on the

verdict for the plaintiff. On appeal, the defendant improperly

asserts, for the first time, a new gro und for a JMOL: Defendant

avers that, because “no Texas court has directly addressed the

quantum of proof necessary to satisfy” section 82.005 of Texas’s

Products Liability Act, T EX

. C IV

. P RAC

. & R EM

. C OD E A NN . § 82.005

(Vernon 2000) (hereinaf ter “TPLA § 82.005"), this court, in

deciding whether the record contains sufficient evidence to sustain

the jury’s verdict, should apply a standard of review based by

analogy on section 2800.56 of the Louisiana Products Liability Act

(“LPLA”), L A

. R EV

. S TAT

. A NN

. § 2800.56 (West 2000), and section 11-

1-63(f)(ii) of the Mississippi Products Liabili ty Act (“MPLA”),

M ISS

. C ODE A NN

. § 11-1-63(f)(ii) (West 1999), and two federal E rie

guesses as to those statutes’ substantive meaning.

The majority ad o pts whole hog the defendant’s improperly

proffered ground for JMOL, reverses the district court judgment,

and renders a JMOL in favor of the defendant. Instead of Texas

subst antive law, the majority applies by analogy the defendant’s21 Erie R.R. Co. v. Tompkins

, 304 U.S. 64 (1 938). Under E rie

, when confronted with a

diversity case arising under state law, we must apply the law of that state as the state’s highest court

would apply it. I d. at 78. If the decisions of that court are silent on an issue, we must conscientiously

determine how that court would decide the issue before us, looking to the sources of law–including

intermediate appellate court decisions of that state–that the state’s highest court would look to for

persuasive authority. Transcontinental Gas v. Transportation Ins. Co.

, 953 F.2d 985, 988 (5 th Cir.

1992) ; see also 19 C HARLES A LAN W RIGHT

, A RTHUR R. M ILLER & E DWARD H. C OOPER

, F EDERAL

P RACTICE AND P ROCEDURE § 4507, at 126 (2d ed. 1996).

19 suggested extension of a prior Erie guess as to the meaning of LPLA

§ 2800.56. Furthermore, instead of the federal test for

sufficiency of evidence to creat e a jury question, the majority

applies a suf ficiency of quantification of risk and utility

evidence test derived from the same extension of a prior Erie guess

as to the substantive meaning of LPLA § 2800.56.

I respectf ully dissent. The majority’s approval of the

defendant’s assertion of a ground for JMOL that was not included in

its motions for JMOL in the district court is a constitutionally

impermissible re-examination of the jury’s verdict. The majority’s

adoption of the defendant’s assertion causes the court to disregard

the controlling principles of Texas an d federal law. T he

Constitution as interpreted by Erie dictates that this court apply

the law of Texas defining the substantive rights and obligations of

the parties as that state’s highest court would apply it, not

Louisiana substantive la w as we determine how its highest court

would apply that sister state’s law. 21 Furthermore, it is firmly

established that courts in this Circuit, in diversity cases, employ

a federal rather than a state-law-based test t o determine the20

sufficiency of evidence to create a jury question. Boeing Co. v.

Shipman

, 411 F.2d 365, 368 (5 th Cir. 1969) (en banc) (“It is well

settled in this Circuit that in diversity cases federal courts

apply a fede ral rather than a state test for the sufficiency of

evidence to create a jury question.”), overruled in part on other

grounds

, Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331 (5 th Cir.

1997) (en banc); see also, e.g.

, In re Air Crash Disaster Near New

Orleans

, 821 F.2d 1147, 1159 (1987) ( en banc) v acated in part on

other grounds sub nom. Pan American World Airways, Inc. v. Lopez

,

490 U.S. 1032 (1989); Borel v. Fibreboard Paper Products Corp.

, 493

F.2d 1076, 1092 (5 th Cir. 1973). Faithful adherence to the

foreg oing principles of federal constitutional and state law

requires that we affirm the judgment of the district court.

1.

The plaintiff, a cable television lineman, was thrown from the

top of a twenty-foot ladder manufactured by the defendant, and

suffered severe, disabling spinal injuries. He was hurled to the

ground with great centrifugal force after the l adder, which was

attached with open U-shaped hooks to a cable near t he one he was

preparing to repair, slid sideways, causing one of the hooks to

become unhooked. This in turn made the ladder twist forcefully at

the end of its slide, causing the plaintiff to lose hold and be

thrown violently to the street below. The district court, in

denying the defendant’s mot i on for JMOL, rejected defendant’s22 Rule 50 of the Federal Rules of Civil Procedure provides for JMOL motions at the close

of evidence and renewed JMOL motions post verdict, which were formerly referred to as motions

for directed verdict and moti o ns fo r judgment n.o.v. (“JNOV”), respectively; the change in

21 arguments that the evidence as a whole (including circumstantial

evidence, testimony of defendant’s witnesses, and plaintiff’s

expert design engineer’s tests, explanations, and opinions) was not

l egally sufficient to support the jury’s findings that (1) th ere

was a safer alternative closable cable hook design that would have

reduced the risk of the personal injury, making the cable hook, as

designed, unreasonably dangerous; (2) the defendant fai l ed to

adequately warn users of the danger that, during a ladder slide,

the open U-shaped cable hook could come loose from the cable, cause

the ladder to twist violently, and hurl a user to the ground with

extra-gravitational force ; and (3) the ladder’s cable hooks as

designed were unfit to fulfill their ordinary purpose and use.

2.

On appeal, the defendant asserts a new ground in support of

its motion for a JMOL, based on the Louisiana and Mississippi

statutes, which was not included in its JMOL motions in the

district court. The majority deprives the plaintiff of his Seventh

Amendment right to a jury trial by granting a JMOL on a non-Texas

and non-federal ground not asserted in the district court.

It is well-settled in this circuit that a motion for JMOL

filed post verdict cannot assert a ground that was not included in

the motion for JMOL made at the close of the evidence. 22 S ee, e.g.

,terminology did not change the substance or purpose behind the rul e. S ee F ED

. R. C IV

. P. 50

Advisory Committee’s Note s (“If a motion is denominated a motion for directed verdict or for

judgment notwithstanding the verdict, the party’s error is merely formal. Such a motion should be

treated as a motion for judgment as a matter of law in accordance with this rule.”).

22 Brown v. Bryan County, Ok.

, 219 F.3d 450, 465-66 (5 th Cir. 2000);

Morante v. Am. Gen’l Fin. Center

, 157 F.3d 1006, 101 0 (5 th Cir.

1998); see also Allied Bank-West, N.A. v. Stein

, 996 F.2d 111, 115

(5 th Cir. 1993) (explaining that, under Ru le 50, a motion for

directed verdict is “virtually jurisdictional” so that a motion for

judgment n.o.v. cannot assert a ground that was not included in the

motion for directed verdict); Perricone v. Kansas City Southern Ry.

Co.

, 704 F.2d 1376, 1380 (5 th Cir. 1983). In S ulmeyer v. Coca Cola

Co. , we held that “[i]t would be a constitutionally impermissible

re-examination of the jury’s verdict for the district court to

enter judgment n.o.v. on a ground not raised in the motion for

directed verdict.” 5 15 F.2d 835, 846 n.17 (5 th Cir. 1975); see also

9A C HARLES A LAN W RIGHT & A RTHUR R. M ILLER

, FEDERAL PRACTICE AND PROCEDURE

§ 2537 at 344-45, § 2540 at 368-69 (West 1995 & supp. 2000).

In McCann v. Texas City Refining, Inc.

, 984 F.2d 667 (5 th Cir.

1993), this court gave e xpression to the self-evident principle

that a court of appeals’ re-examination of a jury’s verdict to

enter a JMOL on a ground not raised in the party’s JMOL motion at

the close of evidence is also constitutionally impermissible. The

McCann court held that (1) “Rule 50(a) requires a motion for a23 At this point, the McCann cou rt ’s footnote 6 explains: “Rule 50(a)’s ‘specific grounds’

requirement serves both to make the trial court aware o f the movant’s position and to give the

opposing party an opportun it y t o mend its case.” 984 F.2d at 672 n.6 (citing H all v. Crown

Zellerbach Corp. , 715 F.2d 983, 986 (5 th Cir. 1983)).

23 directed verdict to state the specific grounds 23 for g ranting the

motion[;] [a] party may not base a motion for JNOV on a ground that

was not included in a prior motion for a directed verdict”; and (2)

“‘It would be a constitutionally impermissible re-examination of

the jury’s verdict for the district court [or this Court] to enter

judgment n.o.v. on a ground not raised in the motion for directed

verdict.’” 984 F.2d at 672 (quoting S ulmeyer

, 515 F.2d at 846

n .17) (brackets and included material added by M cCann court)

(emphasis added). Under the clear mandate of this court’s previous

decisions, the majority here should not have even conside red the

ground for JMOL urged on appeal by defendant–that it was entitled

to JMOL under this court’s Erie guesses r egarding Louisiana and

Mississippi products liability law–which was not includ ed in its

JMOL motions at the close of plaintiff’s case and at the close of

all the evidence. S ee id. at 671 (citing Scheib v. WilliamsMcWilliams Co.

, 628 F.2d 509, 511 n.1 (5 th Cir. 1980)), and at 672;

see also Alcatel USA, Inc. v. DGI Technologies, Inc.

, 166 F.3d 772,

780 (5 th Cir. 1999); Purcell v. Seguin State Bank & Trust Co. , 999

F.2d 950, 956-57 (5 th Cir. 1993).

3.

“It clearly is settled that the right of jury trial in a case24

lodged in a federal court is governed by federal law and that state

law has no application.” 9A W RIGHT & M ILLER

, supra

, § 2525 at 266;

see also id. § 2303 at 63 (“The complete dominance of federal law

in the area of jury trial rights is clear.”) (citing G oar v.

Compania Peruana de Vapores

, 688 F.2d 417, 423 (5 th Cir . 1982);

Hensley v. E.R. C arpenter Co. , 633 F.2d 1106, 1110 n.5 (5 t h Cir.

1980); Nunez v. Superior Oil Co. , 572 F.2d 1119, 1125 (5 t h Cir.

1978); Ammons v. Franklin Life Ins. Co.

, 348 F.2d 414, 416 (5 th Cir.

1965)). In this Circuit, it is equally well established “that in

diversity cases federal courts apply a federal rather than a state

test for the sufficiency of evidence to create a jury question.”

Boeing

, 411 F.2d at 368 (5 th Cir. 19 69) (citing H elene Curtis

Indus., Inc. v. Pruitt

, 385 F.2d 841 (5 th Cir. 1967); Planters Mfg.

Co. v. Protection Mut. Ins. Co.

, 380 F.2d 869 (5 t h Cir. 1967);

Revlon, Inc. v. Buchanan

, 271 F.2d 795, (5 th Cir. 1959); Reuter v.

Eastern Air Lines

, 226 F.2d 443 (5 th Cir. 1955) ). In Boeing

, this

court explained: “Federal courts must be able to control the

fact-finding processes by which the rights of litigants are

determined in order to preserve ‘the essential char acter’ of the

federal judicial system. Of course, we do not contend that this

control will not affect state-created substantive rights in some

cases. Ultimately, however, the integrity of our factfinding

processes must outweigh considerations of uniformity.” 411 F.2d at

369-70 (citing Herron v. Southern Pac. Co.

, 283 U.S. 91 (1931);25

Byrd v. Blue Ridge Rural Elec. Coop. , 356 U.S. 525 (1958); Note,

State Trial Procedure and the Federal Courts: Evidence, Juries, and

Direct ed Verdicts Under the E rie Doctrine

, 66 H ARV

. L. R EV

. 1516,

1525 (1953)). There are many other persuasive statements of the

reasons for the rule. S ee, e.g.

, Wratchford v. S.J. Groves & Sons

Co.

, 405 F.2d 1061, 1065-66 (4 th Cir. 1969) (“An equa lly grave

disruption of the federal system would result from the application

of state law rules as to the sufficiency of evidence to go to the

jury. Indeed, it has been suggested, not without reason, that the

Seventh Amendment commands application of federal rather than state

law here. Faith in the ability of a jury, selected from a crosssection of the community, to choose wisely among competing rational

inferences in the resolution of factual questions lies at the heart

of the federal judicial system. That faith requires consistency

within the system and does not permit the accommodation of more

restrictive state laws.”); 9A W R IGHT & M ILLER

, supra § 2525, at 271

(“In the occasional case in which there is a measurable difference

between the state and federal rules on the sufficiency of evidence

to create a jury issue, principle seems to require that the federal

court apply the federal test. Any other result would be difficult

to reconcile with the Herron case and with the pronouncement in

Byrd v. Blue Ridge Rural Electric Cooperative, Inc.

, that there is

‘a strong federal policy ag ainst allowing state rules to disrupt

the j udge-jury relationship in the federal courts’ and that this24 This court observed in McCann that “[r]eviewing a denial of a motion for directed verdict

made at the end of trial and reviewing the sufficiency of the evidence are one and the same thing.”

984 F.2d at 671.

26 policy outweighs the policy of the Erie doctrine.”). In many other

c ircuits it is now settled that a federal test controls on the

questi on of sufficiency of the evidence. S ee 9A W RIGHT & M ILLER

,

supra § 2525 at 272 & n.19.

4.

The Supreme Court, in Reeves v. Sanderson Plumbing Products,

Inc. , articulated the federal test for sufficiency of evidence to

create a jury issue in a case concern ing “the kind and amount of

evidence necessary to sustain a jury’s verdict that an employer

unlawfully discriminated on the b asis of age.” 2 4 — U.S. —, —,120

S.Ct. 2097, 2102 (2000). “Under Rule 50, a court should render

judgment as a matter of law when ‘a party has been fully heard on

an issue and there is no legally sufficient evidentiary basis for

a reasonable jury to find for that party on that issue.’” Id. at

2109 (quoting F ED

. R. C IV

. P. 50(a) and cit ing Weisgram v. Marley

Co. , 528 U.S. 440,—, 120 S. Ct. 1011, 1016-18 (2000)). In Reeves

,

the Court noted that the courts of appeals have articulated

differing formulations as to what evidence a court is to consider

in ruling on a Rule 50 motion, although “most have held that review

extends to the entire record, drawing all reasonable inferences in

favor o f the nonmovant.” I d. at 2110 (citing Tate v. Government

Emplo yees Ins. Co. , 997 F.2d 1433, 1436 (11 t h Cir. 1993); Boeing

,25 The test set forth by this court in Boeing closely resembles the Supreme Court’s Reeves

standard:

27 411 F.2d at 374). Moreover, the Reeves Court observed, “[i]n the

analogous context of summary judgment under Rule 56, we have stated

that the court must review the record ‘taken as a whole.’” I d.

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

, 475 U.S.

574, 587 (1986)). “And,” the Court stated, “the standard for

granting summary judgment ‘mirrors’ the standard for judgment as a

matter of law, such that ‘the inquiry under each is the same.’”

Id. (quoting Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 250-251

(1986); citing Celotex Corp. v. Catrett

, 477 U.S. 317, 323 (1986)).

Accordingly, the Court concluded that “in entertaining a motion for

judgment as a matter of law, the court should review all of the

evidence in the record.” Id.

Further, the Court in Reeves set forth principles for courts

to follow in reviewing all of the evidence in the record:

[T]he court must draw all reasonable inferences in favor

of the nonmoving party, and it may not make credibility

determinations or weigh the evidence. Credibility

determinations, the weighing of the evidence, a nd the

drawing of legitimate inferences from the facts are jury

functions, not those of a judge. Thus, although the

court should review the record as a whole , it must

disregard all evidence favorable to the moving party that

the jury is not required to believe. That is, the court

should give credence to the evidence favoring the

nonmovant as well as that evidence supporting the moving

party that is uncontradicted and unimpeached, at least to

the extent that that evidence comes from disint erested

witnesses.

Id. (internal quotations and citations omitted). 25On moti o ns fo r directed verdict and for judgment notwithstanding the verdict the

Court should consider all of the evidence–not just that evidence which supports the

non-mover’s case–but in the light and with all reasonable inferences most favorable

to the party opposed to the motion. If the facts and inferences point so strongly and

o verwhelmingly in favor of one party that the Court believes that reasonable men

could not arrive at a contrary verdict, granting of the motions is proper. On the other

hand, if there is substantial evidence opposed to the motions, that is, evidence of such

quality and wei ght that reasonable and fair-minded men in the exercise of impartial

judgment might reach different conclusions, t he mo t ions should be denied, and the

case submitted to the jury. A mere scintilla of evidence is insufficient to present a

question for the jury. The motions for directed verdict and judgment n.o.v. should

not be decided by which side has the better of the case, nor should they be granted

only when there is a complete absence of probative facts to s upport a jury verdi ct.

There must be a conflict in substantial evidence to create a jury question. However,

it is the function of the jury as the traditional finder of the facts, and not the Court, to

weigh conflicting evidence and inferences, and determine the credibility of witnesses.

411 F.2d at 374-75 (f

ootnote omitted); see also Rhodes v. Guiberson Oil Tools , 75 F.3d 989, 993

(5 th Cir. 1996) (quoting and using the Boeing standard for sufficie ncy o f t he evidence) ; S hipp v.

General Motors Corp.

, 750 F.2d 418, 420 (5 th Cir. 1985) (“We begin by noting that the jury’s verdict,

rendered after eleven days of trial, will not be light ly disregarded. Its findings must be upheld if this

court, considering all of the evidence and all of its reasonable inferences in the light most favorable

to the winning party, finds that there is substantial evidence ‘of such quality and weight that

reas o nable and fair-minded men in the exercise of impartial judgment might reach different

conclusions....” (quoting Boeing

, 411 F.2d at 374) (citing Liberty Mut. Ins. Co. v. Falgoust

, 386 F.2d

248, 253 (5 th Cir. 1967)); H&W Indus., Inc. v. Occidental Chem. Corp.

, 911 F.2d 1118, 1123 (5 th

Cir. 1988); Stewart v. Thigpen , 730 F.2d 1002, 1007 (5 th Cir. 1984).

28 5.

a.

Before applying the feder al test articulated by the Supreme

Court in R eeves for the sufficiency of evidence to create a j ury

question to the relatively few factual issues in dispute, the

Constitution, per Erie

, requires th at we focus on the pertinent

Texas substantive law. Contrary to the majority opinion, the Texas29

jurisprudence on safer alternative design is richly developed.

The Texas Supreme Court and appeals courts have drawn on

common law, statutes, and the Restatements in expounding the

state’s products liability laws. The basic principles of section

402A of the Restatement (Second) of Torts govern claims of strict

liability in tort by users or consumers for physical harm caused by

a seller’s defective and unreasonably dangerous product. T he

American Tobacco Co. v. Grinnell

, 951 S.W.2d 420, 426 (Tex. 1997);

McKisson v. Sales Affiliates, Inc. , 416 S.W.2d 787, 788-789 (Tex.

1967). A product may be unreasonably dangerous because of a defect

in marketing, design, or manufacturing. C aterpillar, Inc. v.

Shears , 911 S.W.2d 379, 382 (Tex. 1995).

The alleged design defe ct of the defendant’s cable hook was

causally related to Mr. Smith’s being thrown from the ladder with

centrifugally increased gravitational acceleration and not to the

lateral slide that began the ladder accident. Nevertheless, the

same rules of strict liability govern cases in which the defect

caused the initial accident and cases in which the defect caused or

aggravated the injuries. B oatland of Houston, Inc. v. Bailey

, 609

S.W.2d 743, 745 (Tex. 1980); Turner v. General Motors Corp.

, 584

S.W.2d 844, 848 (Tex. 1979).

In Turner v. General Mo tors Corp. , the Texas Supreme Court

discussed the strict liability standard of “defectiveness” as

applied in design defect cases. The court held that, in a design26 The court’s approved jury instruction reads:

SECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that at the time the (product) in question

was manufactured by (the manufacturer) the (product) was defectively designed?

By the term ‘defectively designed’ as used in this issue is meant a product that is unreasonably

dangerous as designed, taking into consideration the utility of the pro duct and the ri sk

involved in its use.

Answer: “We do” or “We do not.”

584 S.W.2d at 847 n.1. The court went on to state:

30 defect case, evidence is admissible upon the factors of risk and

utility, such as the product’s utility to users and to the public

as a whole balanced against the likelihood and severity of injury

from its use; the availability of an alternative product that would

fill the same need without being unsafe or unreasonably costly; the

ability to eliminate the product’s unsafe charac ter without

significantly i mpairing its utility or increasing its cost; the

consumer’s awareness of the product’s inherent dangers; the

avoidability of those dangers because of their obvious nature or

because of warnings supplied by the manufacturer; and the ordinary

consumer’s expectations. 584 S.W.2d at 846. However, the court

also held that the jury must be instructed only in general terms to

consider the utility of the product and the risks involved in its

use, and that the jury should not be instructed to balance

specifically enumerated factors. I d. at 847-48. The court set

forth an approved jury instruction for this purpose. 26 I d. at 847Accordingly, we approve the form of jury submission stated in the forepart of this opinion to

be effective in the trial of design defect strict liabilit y cases after the date on whi ch our

judgment herein becomes final. The issue and inst ruct io n will be in this form when the

considerations of utility and risks are present in the state of the evidence, and in such cases

should serve as an appropriate aid to the jury in its deliberations.

Id. at 851.

31 n.1; 849. This requirement of the Texas court regarding the

factors to be considered in Texas products liability cases has been

recognized by this court. S ee Shipp , 750 F.2d at 421-22 (5 th Cir.

1983) (“Texas courts have a dvanced balancing criteria to which

strict liability parties should direct their evidence, but as the

district judge did here, have only required that the jury be

instructed in general terms to consider the utility of the product

and the risk involved in its use.

... The Texas Supreme Court has

never explicitly made proof of each ba lancing factor a distinct

element of a stric t liability claim. ...And certainly, that the

jury is instructed in ultimate terms without detailing the criteria

is at odds with the notion that pro of of each is required.”

(citations, footnotes and internal quotations omitted)).

In Boatland , the Texas Supreme Court held that the jury in a

design defect case may consider evidence of a safer design that

would have prevented the injury. 609 S.W.2d at 746 (citing T urner

and the factors listed therein). “Because defectiveness of the

product in question is determined in relation to safer

alternatives, the fact that its risks could be diminished easily or

cheaply may greatly influence the outcome of the case.” I d.32

Further, the Boatland court stated:

A plaintif f may advance the argument that a safer

alternative was feasible with evidence that it was in

actual use or was available at the time of manufacture.

Feas ibility may also be shown with evidence of the

scientific and economic capacity to develop the safer

a lternative. Thus, evidence of the actual use of, or

capacity to use, safer alternatives is relevant insofar

as it depicts the available scientific knowledge and the

practicalities of applying that knowledge to a product's

design. This method of presenting evidence of defective

design is not new to the Texas law of product liability.

Id. (citing Rourke v. Garza

, 530 S.W.2d 794 (Tex. 1975); H enderson

v. Ford Motor Co.

, 519 S.W.2d 87 (Tex. 1974); W illiams v. General

Motors Corp.

, 501 S.W.2d 930 (Tex. App.–Houston 1973); H artzell

Propeller Co. v. Alexander

, 485 S.W.2d 943 (Tex. App.–Waco); Pizza

Inn, Inc. v. Tiffany

, 454 S.W.2d 420 (Tex. App.–Waco 1970)); see

also Cantrell v. Hennessy Indus., Inc. , 829 S.W.2d 875, 877 (Tex.

App.–Tyler 1992) (“Courts must determine whether a product is

defectively designed in relation to safer alternatives.”);

R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2 Reporters’ Note at 59

(“The longstanding reasonable alternative design requirement in

Texas has been codified by statute.” (quoting and citing TPLA §

82.005)).

In 1993, Texas codified the safer alternative design factor,

making it an essential element of a design defect claim. TPLA §

82.005; see also Uniroyal Goodrich Tire Co. v. Martinez

, 977 S.W.2d

328,334 n.3 (Tex. 1998); American Tobacco Co. , 951 S.W.2d at 433

n. 9. Section 82.005 does not attempt to state all the elements of27 As explained by the Hernandez court:

Section 82.005 reflects t he t rend in our common-law jurisprudence of elevating the

availabilit y of a safer alternative design from a factor to be cons idered in the risk-utility

analysis to a requisite element of a cause of action for defective design. The Restatement

(Third) of Torts: Products Liabilit y also makes a reasonable alternative design a prerequisite

to design-defect liability, as does the law in most jurisdictions.

Id. at 256-57 (footnotes omitted); see also Uniroyal Goodrich

, 977 S.W.2d at 334 n.4 (pointing out

that the court in Caterpillar

, 911 S.W.2d at 384 (Tex. 1995), which did not mention § 82.005, made

clear t hat a safer alternative is a prerequisite to a finding of design defect, and that the C aterpillar

court’s approach is reflected in the Restatement (Third)).

33 a design defect claim, however. H ernandez v. Tokai Corp.

, 2 S.W.3d

251, 256 (Tex . 1999). For example, it does not define design

defect or negate the common law requirement that such a defect

render the product unreasonably dangerous. I d. The statute was

not intended to, and does not, supplant the Texas common law riskutility analysis Texas has fo r years employed in determining

whether a defectively designed product is unreasonably dangerous.

I d. at 256 n.5 (citing legislative debates), and n.6 (citing

Turner

, 584 S.W.2d at 847). That analysis still permits strict

liability parties to direct their evidence to the various balancing

criteria listed in Turner

, while the jury can be instructed only in

general terms and cannot be required to perform a balancing of

enumerated factors. Id. at 256 n.6. The only change rendered by

section 82.005 is that it converts two elements–a safer alternative

design and producing cause–to necessary, tho ugh not sufficient,

elements in proving a defective design claim. 2 7 I d. at 256.

Essentially, section 82.005(b), which is fully quoted in the34

majority opinion, defines “safer alternative design” so as to

require a plaintiff proving a design defect to show that (1) there

was an alternative design; (2) which wo uld, “in reasonable

probability,” have prevented or significantly reduced the risk of

injury; (3) without substantially impairing the product’s utility;

and (4) which was technologically and economically feasible when

the product left the control of the manufacturer. See TPLA §

82.005.

Subsequent to the enactment of section 82.005, the Texas

Supreme Court, in expounding Texas’s strict tort liability design

defect law, has often relied upon other sources consistent with

secti on 82.005, especially the Restatement (Third) of Torts:

Products Liability. For example, in G eneral Motors Corp. v.

S anchez , the court affirmed judgment upholding plaintiffs’ jury

verdict based on an expert’s testimony as to an untested and

unbuilt alternative design for the transmission of a pickup truck.

997 S.W.2d 584. 592 (Tex. 1999). Relying in part on the new

Restatement, the court held:

[T]he plaintiffs did not have to build and test an

automobile transmission to prove a safer alternative

design. A design need only prove “capable of being

developed[,]” [quoting Boatland

, 609 S.W.2d at 748]. The

Restatement (Third) of Torts: Products Liability takes

the position that “qualified expert testimony on the

issue suffices, even though the expert has pr oduced no

prototype, if it reasonably supports the conclusion that

a reasonable alternative design could have been

practically adopted at the time of sale.”

Id. (citing and quoting R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY §35

2 cmt. f (1998)).

In Uniroyal Goodrich

, the court adopted and applied

Restatement (Third) of Torts: Products Liability § 2 cmt. l in

affirming judgment holding a tire manufacturer strictly liable

based on defective design, although there was evidence that the

cause of the accident was mounting and inflating a tire in

contravention of a warning on the product:

“Reasonable designs and instructions or warnings both

play important roles in the production and distribution

of reasonably safe products. In general, when a safer

design can reasonably be implemented and risks can

reasonably be designed out of a product, adoption of the

s afer design is required over a warning that le aves a

significant residuum of such risks. For example,

instructions and warnings may be ineffective because

users of the product may not be adequately reached, may

be likely to be inattentive, or may be insuffic iently

motivated to follow the instructions or heed the

warnings . However, when an alternative design to avoid

risks cannot reasonably be implemented, adequate

instructions and warnings will normally be sufficient to

rende r the product reasonably safe. Warnings are not,

however, a substitute for the provision of a reasonably

safe design.”

977 S.W.2d at 336 (quotin g R E STATEMENT (T HIRD ) OF T ORTS : P RODUCTS

L IABILITY § 2 cmt. l); see also Hernandez

, 2 S.W.3d at 257 & n.9

(comp aring § 82.005 with similar provisions of the Restatement

(Third) of Torts: Products Liability § 2(b): “A product

... is

defective in design when the foreseeable risks of harm posed by the

product could have been reduce d or avoided by the adoption of a

reasonable al ternative design ..., and the omission of the

alternative design renders the product not reasonably safe”).36

We have recognized that “[t]he Texas Supreme Cour t has long

looked to the Restatement of Torts as an influential guide in

products liability law, and has recently heavily relied on the

refinements in such law ref lected in Restatement Third, Torts:

Products Liability.” C imino v. Raymark Industries, Inc.

, 151 F.3d

297, 334 (5 th Cir . 1998) (citing M cKisson

, 416 S.W.2d at 788-89;

Caterpillar

, 911 S.W.2d at 381-83 & nn.2&3; Firestone Steel Prods.

C o. v. Barajas

, 927 S.W.2d 608, 613, 616 (Tex. 1996)); see also

Un iroyal Goodrich , 977 S.W.2d at 335. In C imino

, after

distinguishing the Texas case relied upon by the district court and

reviewing the comme nts under the new Restatement, this court

concluded: “W e believe that the Texas Supreme Court would follow

the Restatement Third, Torts: Products Liability § 5 [governing the

liability of component sellers for harm to a person or property by

a product i nto which the component is integrated].” 151 F.3d at

334.

For all of the foregoing reasons, I believe that the Texas

Supreme Court would follow Restatement Third: Products Liability §

2 and its comments with respect to design defects, especially when

those p rovisions are consistent with and complementary to Texas

statutory and common law. In addition to those already adopted or

followed by the Texas Supreme Court, other pr ovisions of the

section 2 comments have particular relevance in the present case.

Comment f, in pertinent part, provides:37

Subsection (b) states that a product is defective in

design if the omission of a reasonable alternative design

renders the product not reasonably safe. A broad range

of factors may be considered i n determining whether an

alternative design is reasonable and whether its omission

renders a product not reasonably safe. ...A plaintiff is

not necessarily required to introduce proof on all of

these factors; t heir relevance, and the relevance of

other factors, will vary from case to case.

* * *

While a plaintiff must prove that a reasonable

alternative design would have reduced the foreseeable

risks of harm, Subsection (b) does not require the

plaintiff to produce e xpert testimony in every case.

Cases arise in which th e feasibility of a reasonable

alternative design is obvious and understandable to

laypersons and therefore expert testimony is unnecessary

to support a fin ding that the product should have been

designed differently and more safely. ...Furthermore,

other products already available on the market may serve

the same or very similar function at lower risk and at

comparable c ost. Such products may serve as reasonable

alternatives to the product in question.

In many cases, the plaintiff must rely on expert

testimony. Subsection (b) does not, however, require the

plaintiff to produce a prototype in order to make out a

prima facie case. Thus, qualified expert testimony on the

issue suffices, even though the expert has produced no

prototype, if it reasonably supports the conclusion that

a reasonable alternative design could have been

practically adopted at the time of sale.

* * *

A test that considers such a broad range of factors in

deciding whether the omission of an alternative design

renders a product not reasonably safe requires a fair

allocation of proof between the parties. To establish a

prima facie case of defect, the plaintiff must prove the

availability of a technologically feasible and practical

alternative design that would have reduced or prevented

the plaintiff's harm. Given inherent limitations on

access to relevant data, the plaintiff is not required to

establish with particularity the costs and benefits

associated with adoption of the suggested alternative

design.

R ESTATEME NT ( T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2 cmt. f (1998).

Comment m of section 2, in pertinent part, provides:38

[A] seller bears responsibility to perform reasonable

testing pr ior to marketing a product and to discover

risks and risk-avoidance measures that such testing would

reveal. A seller is charged with knowledge of what

r easonable testing would reveal. If testing is not

undertaken, or is performed in an inadequate manner, and

this failure results in a d efect that causes harm, the

seller is subject to liabi lity for harm caused by such

defect.

R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2 cmt. m (1998). Comment

n of section 2, in pertinent part, provides:

[T]he evidence that the defendant did or did not

conduct adequately reasonable research or testing before

marketing the product may be admissible (but is not

necessarily required) regardless of whether the claim is

based on negligence, strict liability, or implied

warranty of merchantability. Although a defendant is held

objectively responsible for having knowledge that a

reasonable seller would have had, the fact that the

defendant engaged in substantial research and testing may

help to support the contention that a risk was not

reasonably foreseeable. Conversely, the fact that the

defendant engaged in little or no research or t esting

may, depending on the circumstances, help to support the

contention that, had reasonable research or testing been

performed, the risk could have been foreseen.

R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2 cmt. m (1998).

b.

In view of the wealth of decisions by the Texas Supreme Court

and appeals courts, I am be wildered by the majority’s assertion

that “[n]o Texas court has elaborated on the nature of the proof a

plaintiff must produce to meet the burden placed on him by [Texas’s

section 82.005.]” The Texas courts have frequently expanded on

the elements of proof and s ufficiency of evidence required under

section 82.005 and other products liability rules of law. S ee,39

e.g.

, Hernandez

, 2 S.W.3d at 258 (“Section 82.005

... was not

intended to, and does not, supplant the risk-utility analysis Texas

has for years employed in determining whether a defectively

designed product is unreasonably dangerous.” (footnotes omitted));

Sanchez

, 997 S.W.2d at 591-92 (“‘qualified expert testimony on the

issue suffices, even though the expert has produced no prototype,

i f it reasonably supports the conclusion that a reasonabl e

alternative design could have been practically adopted at the time

of sale.’” (quoting and adopting R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS

L IABILITY § 2 cmt. f (1998))); Uniroyal Goodrich

, 977 S.W.2d at 339

(“The rule

... that expert testimony is generally not conclusive []

follows not because the testimony is from an expert, but because it

is opinion testimony. Unless the subject matter is solely for

experts, jurors are capable of forming their own opinions from the

record as a whole.”); McGalliard , 722 S.W.2d at 697 (holding that

expert testimony is conc lusive only where the subject matter is

such that “the jury or court cannot properly be assumed to have or

be able to form correct opinions of their own based upon evidence

as a whole and aided by their own experience and knowledge of the

subject of inquiry.”); Boatland

, 609 S.W.2d at 746 (observing that

“feasibility is a relative, not an absolute, concept.”); Coxson v.

Atlanta Life Ins. Co.

, 179 S.W.2d 943, 945 (Tex. 1944) (noting that

expert testimony, although persuasive, is rarely conclusive proof) ;

Sipes v. General Motors Corp.

, 946 S.W.2d 143, 154-55 (Tex. App.40

1997) (finding that lay testimony will often suffice in design

defect case where design concept was simple and easy to grasp)

(cited approvingly by Perez-Trujillo v. Volvo Car Corp. , 137 F.3d

50, 56 (1 st Cir. 1998)); see also Turner

, 548 S.W.2d at 848 (holding

that design defect may be proved through circumstantial evidence)

(citing Darryl v. Ford Motor Co.

, 440 S.W.2d 630 (Tex. 1969));

Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder , 443

S.W.2d 546, 548 (Tex. 1969) (same); Ford Motor Co. v. Gonzalez , 9

S.W.3d 195, 199 (Tex. App. 1999) (same); accord Ayres v. Sears,

Roebuck & Co.

, 789 F.2d 1173, 1175 (5 th Cir. 1986) (observing that

a Texas design defect is “provable by direct or circumstantial

evidence, based on fact or opinion testimony.”), abrogated on other

grounds

, Torres v. Oakland Scavenger Co. , 487 U.S. 312 (1988).

Equally perplexing is the majority’s seeming Erie guess that

the Texas S upreme Court would depart from its own well-developed

jurisprudence and embrace the LPLA to decide the present case. The

Texas courts have looked to the Second and Third Restatements of

Torts for guidance in products liability cases, but I have not

found any Texas case adverting to the LPLA. Such an event seems

highly unlikely, cons idering that section 82.005 “is not

declarative, by implication or otherwise, of the common law of

Texas with respect to any product[.]” TPLA § 82.005(e).

Moreover, the LPLA differs markedly from section 82.005 in

that the LPLA requires a “weighing” of likelihood and gravity of28 The decision the majority relies on– Lawrence v. General Motors Corp. , 73 F.3d 587 (5 th

Cir. 1996)–involved a case in which the plaint iff’s car suddenly accelerated and crashed into a tree.

Aft er examining the wreckage, the plaintiff’s expert observed that the cruise control cable had

become exposed and been crimped in the open-throttl e position, and merely “suggested” that the

accident “might have [been] prevented” by a longer cruise control cable sleeve; the defense expert

countered that the cruise control cable sleeve’s length was adequate, and that the wrecked car’s

cruise control cable was exposed and crimped as a result of the wreck and not as a cause of the

wreck. Id. at 589. After quoting from the LPLA’s language that a design could be “‘unreasonably

dangerous’” if the “‘likelihood’” that the damages were caused by the product’s design, coupled with

the severity of the damage, “‘outweighed the burden on the manufacturer’” of incorporating an

alternative design, this court observed that the plaint iff’s expert conclusorily stated that the alternative

design “could have prevented” the damag es and did not “elaborate on the actual likelihood of

avoiding the probable damage through an alternative design.” I d. at 590. When read in context, the

term “elaborate” in Lawrence does not mean “mathematically quantify.” Rather, it was a comment

upon the need for the plaint iff’s expert t o expand on his bare conclusion that a defective product

design possibly caused the collision, in order to counter the defense expert’s opinion that the collision

caused the damage to the product. In L awrence

, the plaint iff’s causation theory was highl y

improbable because the car that the plaint iff had been driving, before accelerating suddenly into a tree,

had previously been flooded and had accumulated more than 97 ,000 miles under two different

owners.

41 the claimant’s damage against the burde ns of the alternative

design, not just economic and technological “feasibility”; requires

the claimant to show that the alternative design was capable of

“preventing,” not just “significantly reducing the risk of,” the

claimant’s injury; and the LPLA is the exclusive products liability

law in its jurisdiction, not merely a partial, non-expansible

codification.

The majority’ s most audacious claim, however, is that the

Texas Supreme Court would read the word “elaborate” in one of our

opinions 28 under the LPLA as meaning “mathematically quantify,” that

the Texas Supreme Court in turn wou ld read that meaning into the

LPLA, and that the Texas Supreme Court would then follow that42

convoluted interpretation as its lodestar in deve loping and

applying Texas law in the present case. I eschew further comment.

The majority clearly errs in proceeding to decide this case as

if, under Texas law, the plaintiff in a de sign defect case is

absolutely required to present an expert to mathematically quantify

risk and utility evidence and to balance risk and utility factors.

In a Texas design defect case, evidence is admissible as to many

factors, including risk and utility, such as utility of the product

to the user, usefulness to the public, and the gravity and

likelih ood of injury from its use, availability of a suitable

substitute product taking into consideration cost of production and

any impairmen t to usefulness, public knowledge or obviousness of

dangers of the product, suitable warnings, and expectations of the

ordinary consumer. A plaintiff is not necessarily required to

introduce proof on all of these factors; their relevance and the

relevance of other factors, will vary from case to case. S ee

Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd.

, 848 S.W.2d

724, 731 (Tex. App.–Dallas 1992); R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS

L IABILITY § 2, comment f (1 998); accord Shipp

, 750 F.2d at 421.

Moreover, under Texas law, it is the jury’s function to weigh risks

and utilities by deciding whether the product was defectively

designed, taking into consideration the utility of the product and

the risk involved in its us e. Turner , 584 S.W.2d at 847; a ccord

Shipp

, 750 F.2d at 421. The jury can be instructed only in general43

terms, however, and cannot be required to balance specifically

enumerated factors. I d. at 847-48. The notion of mathematical

“quantification” appears to be t he majority’s own invention; no

Texas case o r law demands expert mathematical quantification of

risk or utility factors as a sufficiency of evidence or proof

requirement in a products liability case. In fact, Texas applies

a “no evidence” test for sufficiency of evidence, s ee, e.g.

,

Sanchez , 997 S.W.2d at 588 & n.7, an even more deferential review

standard than the federal test that the majority displaces with its

erroneous “mathematical quantification” standard.

The majority departs from Texas law again in holding that the

alternative design presented by Dr. Packman was not valid because

he had not introduced a model of a spring loaded cable hook. The

Texas produ cts liability law does not, however, require the

plaintiff to produce a prototype in order to make out a prima facie

case. “‘[Q]ualified expert testimony on the issue suffices, even

though the expert has produced no prototype, if it reasonably

supports the conclusion that a reasonable alternative design could

have been practically adopted at the time of sale.’” S anchez

, 997

S.W.2d 584, 592 (Tex. 1999) (quoting R ESTATEMENT (T HIRD ) OF T ORTS :

P RODUCTS L IABILITY § 2, cmt. f (1998)).

6.

It is apparent here, as it was in Reeves , that the defendant

is not entitled to a JMOL. See Reeves , — U.S. —, —, 120 S.Ct. at44

2110. In this case, the relevant facts concerning the physical

characteristics of the product, the envir onment of the accident,

and the resulting injuries are not in dispute. The causation

question is mostly undisputed. The open or unclosed cable hook did

not cause the ladder to slide. But it is undisputed that if the

hook had been closed in some manner it would not have become

disengaged from the cable during the slide. And the evidence

overwhelmingly supports the jury’s finding that the disengagement

of the open cable hook during the slide caused an abrupt jerk and

twist of the ladder; that the resulting torsional force caused Mr.

Smith to loose his grip and be flung violently to the ground; and

that consequently he suffered much more s evere injuries than he

would have sustained in a less accelerated fall. The jury

reasonably could have chosen not to credit the testimony of the

defendant’s witness who opined that Mr. Smith would have fallen

off even if the cable hook had stayed hitched. None of the defense

witnesses contested the conclusion of the plaintiff and his

witnesses that a closed cable hook would have reduced the force of

the ladder’s twist and jerk and in turn the acceleration of his

descent.

Dr. Paul F. Packman, the plaintiff’s expert, has a bachelor’s

deg r ee in mechanical engineering, a master’s degree in

metallurgical engineering and a Ph.D. in solid state science. He

has investigated accidents for Lockheed Aircraft Corporation; acted45

as a Senior Resident Fellow for the National Academy of Sciences;

investigated airplane crashes, battle fatigue, and o ther battle

damage issues for the United States Air Force; chaired the

Department of Material Sciences and Metallurgical Engineering at

Vanderbilt University; chaired the Civil and Mechanical Engineering

Department at Southern Methodist University; and taught mechanical

engineering design for thirty years at those universities and as an

adjunct professor at Georgia Tech University. He is a professor of

Mechanical and Materials Engineering at Southern Methodist

University and has published nume rous articles on mechanical

engineering and related topics.

Dr. Packman testified that a safer alternative design could be

devised by converting the open U-shaped cable hook to a closable

one by adding a spring latch to prevent disengagement of the hook

from the cable during a lateral slide. Dr. Packman conducted a

series of three comparative tests with a ladder identical to the

one involved in Mr. Smith’s accident on the same type of cable and

slope, with 200 pounds of steel weights attached to platform atop

the ladder simulating the inertia created by Mr. Smith’s body. The

first test was performed with an open cable hook like the one

attached to the ladder when it was manufactured. As the ladder

slid down the slope of the cable, the trailing ho ok came off the

cable, causing the ladder to spin violently. The torsional force

cause d the weights to break loose and be thrown from the ladder.46

The second test was performed under the same conditions except that

t he open end of the cable hook was closed with a bolt. In the

slide during this test the ladder’s twist and jerk was

significantly reduced and the weights stayed in place on the

ladder. The third test was a repeat of the first but also included

a close-up video-taping of the open cable hook’s disengagement from

the cable during the slide. According to Dr. Packman, the tests

demonstrated that the torsion created by the cable hook’s

disengagement c aused Mr. Smith to lose hold of the ladder and be

flung to the ground. If the cable hook had been equipped with a

closed spring latch during Mr. Smith’s slide, Dr. Packman

testified, the prevention of its disen gagement would have

significantly reduced the risk of his injury by either enabling him

to hang on or to prepare for a softer, more controlled landing.

The defendants ’ counsel were present during Dr. Packman’s

tests, and defendants’ personnel and witnesses were able to review

the vide-recording of the tests prior to the litigation. The

defendants’ witnesses did not criticize the fairness or accuracy of

Dr. Packman’s tests but had different opinions about what they

showed. The defendant did not conduct any tests of its own

regarding the latch-closure design for purposes of the litigation.

In fact, the defendant did not present any documentation or

definite t estimony showing that it had ever tested the ladder’s

performance in a lateral slide at all. If the defendant was aware47

of the propensity of the open cable hook to become disengaged and

cause the ladder to twist and jerk violen tly, it did not present

any evidence to this effect or provide any warnings or instructions

regarding that particular risk with the product.

Based on the foregoing data, Dr. Packman testified that in his

opinion the alter native design that he proposed, consisting of a

cable hook held closed during engagement by a spring latch, would

have prevented or significantly reduced the risk of Mr. Smith’s

injury; that the alternative design was feasibl e because the

technology of the spring latch was simple, well-known and had been

in existence for a very long time; that spring latches were readily

available–indeed, agreeing to the statement that they were

“available in hardware stores pretty much everywher e”–when the

ladder was manufactured; that its attachment to the cable hook

would not have impaired the utility of the product significantly;

and that a spring-loaded latch was already incorporat ed into the

ladder’s design by Louisville Ladder in t he ladder’s rung-lock

mechanism, making the spring latch concept an “absolutely obvious”

one o f which the defendant was fully aware. Mr. Van Bree, the

defendant’s representative, testified that Louisville Ladder did,

indeed, incorporate the spring- latch design into its rung-lock

mechanism, though it had not tested the idea of incorporating the

concept into the cable hook.

“In holding that the record contained insufficient evidence to48

sustain the jury’s verdict, the [majority] misapp lie[s] the

[federal] standard of review dictated by Rule 50.” R eeves

, — U.S.

—, —, 120 S. Ct. at 2111. The court disregards critical evidence

f avorable to the plaintiff—-all of the witnesses agreed that the

closure of the cable hook would prevent its disengagement and

reduce the force of the ladder’s twisting and jerk during or at the

end of its slide; likewise, all agreed that it was impossible to

compare with certainty the risks and gravity of injuries likely to

result from use of closed and open hooks due to the dynamic nature

of the event and the variable conditions of cable slopes, positions

of users on ladders during slides, and muscular stre ngths and

stamina of the accident victims. The court also fails to draw all

reasonable inferences in favor of Mr. Smith. S ee id. For

instance, the jury reasonably could have found that the closure of

the cable hook would have reduced the risk or sev erity of Mr.

Smith’s injury by retarding the speed of his fall and ameliorating

the force and nature of his imp act. And the majority discredits

the evidence that clearly shows that Mr. Smith was never warned

about the risk of the open cable hook becoming disengaged during a

lateral slide and producing overwhelming torsional forces; that the

instructions about “securing” the “bottom” of the ladder were

ambiguous and did not clearly inform him of how to prevent the top

of the lad der from sliding during his ascent; that prior to his

injury Mr. Smith was not provided with the information from the49

AT&T Manual that the majority quotes in its opinion; that the jury

reasonably could have concluded that this was a case in which the

feasibility of a reasonable alternative desig n was obvious and

understandable to laypersons and therefore no expert testimony was

necessary to support a finding that the product should have been

designed differently and more safely, see Sipes

, 946 S.W.2d at 154-

55, and R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IAB ILITY § 2, cmt. f

(1998); that the defendant was already using this spring-l oaded

latch technology on the ladder’s rung-lock assembly; that the

testimony of Dr. Packman, and to some extent of the defendants’ own

experts, reasonably supports the conclusion that a r e asonable

alternative design could have been practically adopted at the time

of sale, see R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2, cmt. f

(1998); that the plaintiff established a prima facie case of defect

by proving the availabililty of a technologically feasible and

practical alternative design that would have reduced or prevented

the plaintiff’s harm, see Herna ndez , 2 S.W.3d at 255-56 (quoting

TPLA § 82.005), and R ESTATEMENT ( T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2,

cmt. f (1998); that given inherent limitations on access to

relevan t data, the plaintiff was not required to establish with

particu larity the costs and benefits associated with adoption of

the suggested alternative design, see R ESTATEMENT ( T HIRD ) OF T ORTS :

P RODUCTS L IABILITY § 2, cmt. f (1998); that the defendant breached its

duty to perform reasonable testing pior to marketing the ladder and50

to discov er risks and risk-avoidance measures that such testing

w ould have revealed, viz., the risk of open-hook disengagement

producing overwhelming torsional force during a lateral slide that

could be pra ctically avoided by using closable cable hooks, s ee

R ESTATEMENT (T HIRD ) OF T ORTS : P RODUCTS L IABILITY § 2, cmt. m (1998); that

the defendant is charged with the knowledge of what reasonable

testing would have revealed, see id. ; and because the defendant did

n ot undertake such testing, or performed it in an inadequate

manner, that this failure resulted in Mr. Smith’s injuries, and

defendant is subject to liability for harm caused by the defect,

see id.

Moreover, the evidence upon which t he majority relies—-that

due to the imponderable variables none of the experts, including

Dr. Packman, were able to mathematica lly quantify either the

likelihood and gravity of the risk or the amount of risk reduction

through the use of the alternative design; that Dr. Packman did not

manufacture a prototype of his suggested alternative design; that

Dr. Packman testified only that the alter native design would

prevent cable hook disengagement and thereby r e duce torsional

forces and in turn reduce the risk and severity of accidents; and

that Dr. Packman frankly conceded that he could not testify as to

whether the alternative design would have prevented Mr. Smith’s

accident altogether—-“although relevant, is certainly not

dispositi ve.” Reeves , — U.S. —, —, 120 S. Ct. at 2111. In29 My review of the full record has also convinced me that the majority’s reversal of the jury’s

verdict regarding Mr. Smith’s marketing defect claim was in error. As it did in regards to the design

defect claim, the majority reviews only the evidence presented by Louisville Ladder, rather than the

whole record, and re views t hat evidence in a light hostile to, rather than supportive of, the jury’s

verdict.

51 concluding that this testimony so overwhelmed the evidence favoring

Mr. Smith that no rational trier of fact could have found that Mr.

Smith proved that the defendant’s open cable hook was defectively

designed for the purposes for which it was sold, the majority

impermissibly substitutes its judgment concerning the weight of the

evidence for the jury’s. Cf. id. I must dissent. 29