Davis v. Avondale Industries, Inc.
| Decision Date | 16 October 1992 |
| Docket Number | No. 90-3800,90-3800 |
| Citation | 975 F.2d 169 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,323, 15 O.S.H. Cas. (BNA) 1954 Carol Francis DAVIS, Wife of/and Cornelius Louis Davis, III, Plaintiffs-Appellants, Cross-Appellees, and Loretta Cay Noble, et al., Plaintiffs-Appellants, v. AVONDALE INDUSTRIES, INC., Intervenor-Appellee, v. AUFHAUSER BROTHERS CORPORATION and Engelhard Corporation, Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lawrence D. Wiedemann, Lloyd Bowers, Wiedemann & Wiedemann, New Orleans, La., for Carol Davis, Cornelius Davis and Loretta Cay Noble.
Howard Daigle, Jr., New Orleans, La., Barbara L. Arras, Phelps, DunBar, New Orleans, La., for Aufhauser and Engelhard Corp.
Thomas G. Buck, Richard S. Vale, Christopher M. Landry, Blue, Williams & Buckley, Metairie, La., for Avondale.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.
Plaintiff-appellant Carol Frances Davis (Davis) appeals the reduction of her jury award for damages in her product liability and negligence action. Defendants-appellees-cross-appellants Engelhard Corp. (Engelhard) and Aufhauser Brothers Corp. (Aufhauser), appeal the judgment against them on the ground that the trial judge refused their requested jury instruction. Because we find that the trial court erred in refusing to include the substance of this instruction in its charge to the jury, we reverse and remand. We do not reach the issues raised in Davis' appeal.
Davis, a welder employed by Avondale Industries, Inc. (Avondale), a ship-builder, contracted various lung diseases from breathing fumes emitted during the use in her employment of cadmium-based brazing rods furnished by Avondale. The rods were manufactured by Engelhard and were distributed by Aufhauser to Avondale. Avondale paid Davis workers' compensation benefits of roughly $26,000 and medical benefits of roughly $5,000 pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA).
Davis brought a product liability suit against Engelhard and Aufhauser on theories of negligent failure to warn and the strict liability product defect of insufficient warning. She alleged that Engelhard and Aufhauser should have warned her about the dangers of fumes emitted during use of the brazing rods. Evidence adduced at trial tended to show that Davis and Avondale were familiar with the dangers of exposure to the fumes emitted by the brazing rods. The defendants requested, and the district court refused, an instruction stating in substance that a manufacturer has no duty to warn employees of a sophisticated purchaser who furnishes the product to its employees for their use, is aware of the possible health hazards associated with the product's use, and is under a duty to warn its employees thereof. The district judge based his refusal on the ground that the substance of the requested instruction was already covered in the charge as given.
The jury found for the plaintiff in the amount of $250,000 in damages, and for her husband, for loss of consortium, in the amount of $27,500. In response to a special interrogatory, the jury found Engelhard and Aufhauser collectively forty percent at fault, Avondale twenty-nine percent at fault and Davis thirty-one percent at fault for Davis' injuries. The district court reduced Davis' judgment by the proportional amounts of both her own and Avondale's negligence as found by the jury. The district court then reduced Avondale's reimbursement for LHWCA compensation paid by its own proportional negligence. Davis appeals the district court's judgment, complaining that her recovery should not have been reduced by Avondale's proportional negligence. 1
Avondale, though it did not file a notice of appeal, has filed a brief arguing that its reimbursement should not have been reduced by the amount of its proportional negligence because of an earlier stipulation and because such a reduction is prohibited by the LHWCA.
Engelhard and Aufhauser cross-appeal urging that the district court committed reversible error in refusing to include their requested "sophisticated purchaser" instruction in the jury charge.
We initially dismiss any request for relief made by Avondale on appeal because it did not file a notice of appeal. Fed.R.App.P. 3(a).
Because Engelhard's and Aufhauser's cross-appeal concerns the validity of the jury's verdict against Engelhard and Aufhauser, we shall consider the cross-appeal first.
Engelhard and Aufhauser requested that the following instruction () be submitted to the jury:
The district court overruled the objection of cross-appellants to the charge for failing to include this requested instruction because "that instruction is implicit in the other instructions that I gave."
The charge actually given to the jury by the district court was, in relevant part, as follows:
"In considering the adequacy of the warning, you must consider the knowledge and expertise of those who may reasonably be expected to use or otherwise come in contact with the product as it proceeds along its intended marketing chain. The manufacturer or supplier is obligated to warn the user of potential dangers of which the manufacturer or supplier is aware, and which it would reasonably anticipate. Adequate warnings are required as to all foreseeable uses or misuses of the product.
. . . . .
... I also instruct you that a manufacturer and/or supplier has a duty to give notice or warning of dangerous qualities of the article it manufactures or supplies if those qualities are not apparent to the user. If the product is dangerous to human life if improperly used and if the danger is not apparent to the user, and if the manufacturer or supplier can foresee a substantial risk that the product may be improperly used, the manufacturer or supplier must notify the public by labels or instructions regarding the manner in which the articles may be safely used.
However, there is no duty to warn a person of a danger that is obvious or a danger which he or she knows about. A manufacturer or distributor is not compelled to warn knowledgeable users or buyers of dangers which the user or buyer either knows or should be aware of based upon his or her knowledge or experience. The manufacturer's or distributor's duty extends to non-apparent dangers or foreseeable risks in the use of the product.
You must also consider whether Plaintiff's injuries, if any, resulted in whole or in part from any negligence on the part of Avondale Industries. The term 'negligence' as applied to Avondale Industries is as defined and previously explained to you. Specifically, Avondale could be found partly or wholly liable for what happened if it was negligent in training or failing to pass on the warnings to Plaintiff and such negligence was a proximate cause of Plaintiff's injuries. Defendants have the burden of proving this defense by a preponderance of the evidence."
Under Louisiana law, a manufacturer has no duty to warn a sophisticated user. The Louisiana Products Liability Act provides that: "A manufacturer is not required to provide an adequate warning about his product when ... [t]he user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic." La.Rev.Stat.Ann. § 9:2800.57(B)(2) (West 1991). See also Duncan v. Louisiana Power & Light Co., 532 So.2d 968, 972 (La.App., 5th Cir.1988) (); Gautreaux v. Tex-Steam Co., 723 F.Supp. 1181, 1182 (E.D.La.1989), aff'd, 921 F.2d 274 (5th Cir.1990) (table).
Similarly, a manufacturer has no duty to warn a sophisticated purchaser. "... Louisiana does not hold a manufacturer is compelled to warn sophisticated purchasers of dangers of which the buyer either knows or should be aware." Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co., 532 F.2d 501, 504 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1111, 51 L.Ed.2d 542 (1977).
Here, Avondale was clearly both a user and a purchaser of the rods in question.
Finally, though no Louisiana case has clearly addressed the issue, see Mozeke v. International Paper Co., 933 F.2d 1293, 1297 & n. 2 (5th Cir.1991), we conclude that Louisiana courts would likely hold that in a setting such as this the product manufacturer owes no duty to the employee of a purchaser if the manufacturer provides an adequate warning of any inherent dangers to the purchaser or if the purchaser has knowledge of those dangers and the duty to warn its employees thereof. See West v. Hydro-test, Inc., 196 So.2d 598, 606 (La.App. 1st Cir.1967). 2 Many courts hold that the supplier of a product to an employer discharges any duty to warn the purchaser's employees by warning their employer, and that no warning to either is required if the employer is already aware of the hazard. City of Jackson v. Ball, 562 So.2d 1267, 1270 (Miss.1990); Pridgett v. Jackson Iron & Metal Company, 253 So.2d...
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