F & S Offshore, Inc. v. K. O. Steel Castings, Inc.

• Decision Date: 09 November 1981
• Docket Number: No. 80-3401,80-3401
• Parties: 9 Fed. R. Evid. Serv. 718 F & S OFFSHORE, INC., et al., Plaintiffs-Appellants, v. K.O. STEEL CASTINGS, INC., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1104

662 F.2d 1104

9 Fed. R. Evid. Serv. 718

F & S OFFSHORE, INC., et al., Plaintiffs-Appellants, v. K.O. STEEL CASTINGS, INC., et al., Defendants-Appellees.

No. 80-3401

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 9, 1981.

Clayton G. Ramsey, New Orleans, La., for plaintiffs-appellants.

James M. Tompkins, New Orleans, La., for K.O. Steel.

J. Dwight LeBlanc, Jr., James R. Holmes, New Orleans, La., for Lowery Bros.

Samuel Richard Exnicios, New Orleans, La., for Lowery Brothers of La., Inc. and Gator Supply, Inc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CHARLES CLARK, Chief Judge, RUBIN and SAM D. JOHNSON, Circuit judges.

PER CURIAM:

This case involves the admissibility of expert witness testimony in a trial before the court without a jury, which decided an indemnification dispute in favor of a defendant product manufacturer. Plaintiffs assert on this appeal that reversible error was committed when the district court admitted the testimony of the expert witness and that such error requires reversal and entry of judgment in the plaintiffs' favor. Although the plaintiffs present several issues for review, the central issue is whether the crucial testimony of the defense expert witness constituted unfair surprise, thus creating reversible error. It appears that plaintiffs' contentions are without merit.

I. Background

On January 13, 1976, Luke Lintzen, an employee working aboard a drilling rig (the Penrod 53) in the Gulf of Mexico, was killed when a shackle which was to be used by a tug in towing the rig suddenly broke. A piece of the broken shackle struck Lintzen in the head, and he died from the resulting injury. An agreement was reached whereby Lintzen's personal representative was paid $260,000 in complete settlement of any claim she may have had against the tug owner or the owners of the movable drilling rig. After settling with the personal representative, F & S Offshore, Inc. (the tug owner) and its insurers, along with Penrod Drilling Company and Louisiana International Marine, Inc. (the drilling rig owners), brought a suit for indemnity and attorney's fees against Lowery Brothers of Louisiana, Inc., Gator Supply Company, and K.O. Steel Castings, Inc. (manufacturers and distributors of the shackle).

On the occasion in question, the plan was to use four or five vessels to tow the movable drilling rig to a new location in the Gulf of Mexico. One of these vessels was a 4000 horsepower tug, the M/V MISS PATRICIA. While the drilling rig's legs were still in their stationary and jacked-up position, the MISS PATRICIA was to pay out her towing line. When all other tugs had also paid out their respective lines, the drilling rig's legs were to be raised to set the barge afloat for towing. The wire line from the MISS PATRICIA's wench was connected to a nylon "snatch line," which was coiled on the tug's deck. The other end of the snatch line was attached to a horseshoe-shaped shackle. The shackle, in turn, was attached to a wire towing bridle which extended to the drilling rig. The connecting shackle was advertised to withstand at least forty tons of stress.

As the captain pulled away from the drilling rig, the wire towing bridle began to feed out. The tug moved rapidly enough that one deckhand had to jump to avoid being entangled in the towing bridle, and the shackle bounced across the coiled snatch line and became lodged under the "lip" of the tug at the stern. When the slack was taken out of the wire bridle connected to the drilling rig, the shackle broke, throwing a piece of the shackle toward the drilling rig and causing the injury and death of Lintzen.

After a three-day trial, applying maritime products liability law, the district court ruled that the accident resulted not from improper design or manufacture of the shackle, but from the negligence of the MISS PATRICIA, her owners, master, or crew. The determinative factor cited was that the ship captain pulled away from the rig at too high a speed, causing the shackle to become lodged in a twisted fashion in the grating on the tug's stern-an unforeseeable use of the product.

On the one hand, there was damaging testimony about the design and manufacture of the shackle. Archie Lowery, owner of the defendant Lowery Brothers, Inc., designed the shackle that broke. To provide the towing industry with a wider mouth shackle that would accommodate larger towing lines, Lowery took a standard towing shackle, made the mouth wider, and had blueprints drawn up. Lowery did not consult with an engineer on the design, nor was he an engineer himself. The blueprints were presented to a foundry with no steel strength specifications. Furthermore, the shackle was sold and advertised by Lowery as a forty-ton wedge-type marine towing shackle, with an ultimate strength of 160 tons at which point the shackle would be expected to break, but not before. While being sold as a shackle that could withstand the stress of 160 tons or less without breaking, Lowery's shackle was tested before sale to eighty tons, rather than 160 tons. Lowery possessed no testing equipment that would test a shackle to the 160-ton advertised limit. Even the defendants' expert witness agreed that the break was a "brittle fracture," and brittleness is an undesirable characteristic to have in a load bearing item like a shackle. The testimony indicates that it would have been preferable to use a ductile material to better absorb stress.

On the other hand, there was other testimony that the unforeseeable position of the shackle, not its improper design, was responsible for the accident. A key example was testimony by defense witness John Pfeffer, who qualified at trial as an expert in the field of structural engineering. Prior to trial, Pfeffer had submitted a written report which outlined the substance of his opinion that the Lowery Brothers shackle was properly rated as having a safe working load of forty tons. The thrust of Pfeffer's testimony was that such a shackle was structurally adequate and possessed an ultimate strength of four times the safe working load of forty tons, or 160 tons. As part of his trial testimony, Pfeffer was asked to calculate "the approximate force that would have to be exerted to stop the tug which had a length of approximately one hundred feet, a beam of thirty feet, and a draft of ten feet, which is moving at a speed approximately one mile per hour in calm water." Pfeffer gave a complicated mathematical answer with the ultimate opinion that the shackle would have failed at a tonnage of less than the safe working load of forty tons, because of the twisted position it was in when it broke. The normal use of the shackle involved a pull in the longitudinal direction with one line running more or less from the center pin at the open end of the horseshoe and the other line pulling from the center of the rounded end. When the shackle became hung on the stern of the tug, the stress was placed almost ninety degrees from the intended direction of the pull, causing the shackle to break, as in pulling apart a wishbone.

Despite objections by the plaintiffs, the district court allowed Pfeffer's testimony. Judgment was granted in favor of defendants Lowery Brothers of Louisiana, Inc., Gator Supply Company, Inc., and K.O. Steel Castings, Inc. The plaintiffs, F & S Offshore, Inc., Penrod Drilling Company, and Louisiana International Marine, Inc., are now appealing.

II. The Unfair Surprise Claim

Plaintiffs attack the admission of Pfeffer's expert testimony. First, plaintiffs assert unfair surprise and prejudicial error arising from Pfeffer's testimony that the shackle would have broken below its forty-ton stress capacity because of its "bizarre" wishbone position at the time of the accident. Pfeffer's reports submitted before trial dealt only with how much stress the shackle would withstand under normal use. Since plaintiffs assert the district court could not have held in favor of the defendants without Pfeffer's testimony on the position of the shackle, they ask this Court to reverse the judgment and enter a new judgment in favor of the plaintiffs.

Fed.R.Evid. 403 states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Because of its considerable discretion in admission of evidence, reversible error is found only in exceptional circumstances. Excel Handbag Co. v. Edison Bros. Stores, 630 F.2d 379, 388 (5th Cir. 1980); United States v. Johnson, 585 F.2d 119, 125 (5th Cir. 1978); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978). In reviewing the district court decision, an appellate court should assume the maximum probative force and the minimum prejudice to be reasonably expected. Weinstein's Evidence P 401(01). In this context, unfair surprise is a particularly problematic ground for exclusion of...