Jowers v. Lincoln Electric Co.

• Decision Date: 26 August 2010
• Docket Number: No. 09-60396.,09-60396.
• Citation: 617 F.3d 346
• Parties: Robert E. JOWERS; Donna A. Jowers, Plaintiffs-Appellees,v.LINCOLN ELECTRIC COMPANY; BOC Group; ESAB Group, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

617 F.3d 346

Robert E. JOWERS; Donna A. Jowers, Plaintiffs-Appellees,v.LINCOLN ELECTRIC COMPANY; BOC Group; ESAB Group, Inc., Defendants-Appellants.

No. 09-60396.

United States Court of Appeals,

Fifth Circuit.

Aug. 26, 2010.

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Scott Oliver Nelson, Christopher Tarver Robertson (argued), Maples & Lomax, P.A., Pascagoula, MS, Richard Runft Barrett, Law Offices of Richard R. Barrett, P.L.L.C., Lexington, MS, David Wayne Shelton, Oxford, MS, for Plaintiffs-Appellees.

Michael W. Ulmer, Lewis William Bell, Hugh Ruston Comley, James Joseph Crongeyer, Jr., Watkins & Eager, P.L.L.C., Washington, DC, John H. Beisner (argued), Stephen J. Harburg, Geoffrey M. Wyatt, Skadden, Arps, Slate, Meacher & Flom, L.L.P., Washington, DC, for Defendants-Appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The BOC Group, Inc., the ESAB Group, Inc. (“ESAB”), and the Lincoln Electric Company (“Lincoln”) (collectively, the “Manufacturers”) appeal the jury verdict and judgment in favor of Robert and Donna Jowers (collectively, “Jowers”) on Jowers' failure-to-warn claim under Mississippi law. Specifically, the Manufacturers argue the district court improperly instructed the jury on their government contractor affirmative defense; improperly admitted certain pieces of historical evidence at trial; and erred in refusing to permit any apportionment of fault to Robert Jowers' employer. Finally, the Manufacturers argue the district court erred in denying their Fed.R.Civ.P. 50(b) motion for judgment as a matter of law on punitive damages.

I

From 1972 through 2005, Jowers worked as a shipfitter and, later, as a supervisor and foreman for Ingalls, a U.S. Navy shipbuilding contractor. Though he was never a full-time production welder, one of Jowers' primary tasks was mild-steel welding. He used “stick” and “wire” welding consumables during his career, both of which emit fumes containing manganese in the welding process. Manganese is a known neurotoxin, and inhalation of welding fumes that contain manganese could result in serious neurological disease, such as manganese-induced Parkinsonism (“MIP” or “manganism”). Jowers was exposed to welding fumes from his own and others' work for approximately six to seven hours each day. Jowers testified that he had no knowledge during his career that manganese in welding fumes could cause neurological injury, though the Manufacturers presented evidence that they had conformed with the required warning labels for manganese consumables during the duration of Jowers' career and had provided both him and Ingalls with material safety data sheets that detailed specific chemical risks. Prior to bringing suit against the Manufacturers, two neurologists diagnosed Jowers with MIP. His symptoms include a tremor, affected speech, bradykinesia (slow movements), rigidity, and poor balance. This disease is incurable, permanent, and progressive.

Based on the large number of welding fume cases in district courts, the Judicial Panel on Multidistrict Litigation (“JPML”) created a multi-district litigation (“MDL”) before Judge Kathleen M. O'Malley in the Northern District of Ohio to coordinate welding fume cases for pre-trial proceedings. See In re Welding Rod Prods. Liab. Litig., 269 F.Supp.2d 1365 (J.P.M.L.2003). Jowers' suit against the Manufacturers, alleging a failure to warn regarding the dangers of manganese neurotoxicity and manganism, is one of the MDL's “bellwether trials.” However, despite an earlier concession that venue in Ohio was proper, Jowers requested remand of the case to his home district prior to trial. Judge O'Malley agreed, and the JPML remanded the case to the Southern District of Mississippi, but Judge O'Malley continued to preside over the case by designation.

Prior to trial, the district court denied the Manufacturers' motion to exclude historical documents that they alleged had no connection to Jowers' claim. Jowers moved for summary judgment on the Manufacturers' joint tortfeasor defense, which the district court granted, finding that apportionment of fault to Jowers' employer, Ingalls, was barred as a matter of law. At the close of evidence, the district court rejected the Manufacturers' proposed jury instruction on its government contractor defense. The district court also denied the Manufacturers' motion for judgment as a matter of law on punitive damages.

The jury found in favor of Jowers on his failure-to-warn claim and awarded him $1,200,000 in compensatory damages and $1,700,000 in punitive damages. The jury apportioned 40% of the fault to Jowers, thereby reducing the compensatory award to $720,000. The district court denied the Manufacturers' post-trial motions asking the court to set aside the compensatory and punitive damages verdicts. The Manufacturers now appeal on four grounds: (1) the district court erroneously instructed the jury on their government contractor defense; (2) the district court improperly admitted evidence of historical documents; (3) the district court erred by not permitting the jury to apportion fault to Ingalls; and (4) the punitive damages verdict is insupportable.

II

The Manufacturers first contend the district court erred in instructing the jury regarding the government contractor defense, which, if proven, would immunize the Manufacturers from suit. We review a district court's jury instructions for abuse of discretion. Waco Int'l, Inc. v. KHK Scaffolding Houston, Inc., 278 F.3d 523, 528 (5th Cir.2002). “We afford trial judges wide latitude in fashioning jury instructions and ignore technical imperfections.” Bender v. Brumley, 1 F.3d 271, 276 (5th Cir.1993). However, “[r]eversal is ... appropriate whenever the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations” and “the challenged instruction ... affected the outcome of the case.” Id. at 276-77 (internal quotation marks and citation omitted).

The government contractor defense preempts state law and provides a total bar to liability in a failure-to-warn case if a defendant establishes three elements: (1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the defendant provided about the product conformed to the federal government specification; and (3) the defendant warned the federal government about dangers known to the defendant but not the government. Boyle v. United Techs. Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

The Manufacturers argue that the district court improperly added another element to this defense in its jury instruction. Specifically, the district court instructed the jury that for the government contractor defense to apply, the Manufacturers must establish that “the United States Government had an identifiable Federal interest or policy in the existence or methods of warnings on welding products” and that “there was a significant conflict between this Federal interest or policy and the requirements of Mississippi law regarding the provision of adequate warnings.” The Manufacturers contend that this added element erroneously required them to show physical impossibility to comply with both the state law standard of care and the federal government's specifications in order to prevail on the government contractor defense.

The Supreme Court first recognized the government contractor defense in Boyle, holding that federal law preempted state law to immunize government contractors despite the absence of legislation specifically immunizing these contractors from liability. 487 U.S. at 507, 108 S.Ct. 2510. The Boyle court noted that without a statutory mandate to do so, preemption of state law by federal law “will occur only where, as we have variously described, a ‘significant conflict’ exists between an identifiable federal policy or interest and the operation of state law, or the application of state law would frustrate specific objectives of federal legislation.” Id. (internal quotation marks and citations omitted). The Manufacturers acknowledge in their brief that a tension between state and federal interests must exist for preemption to occur (making a government contractor defense viable), but contend the Boyle court found that demonstrating the first two elements of the defense would establish this conflict as a matter of law. Indeed, after detailing the three-element test for determining whether immunity applies in a government contractor defense, the Supreme Court stated:

The first two of these conditions assure that the suit is within the area where the policy of the “discretionary function” would be frustrated- i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability.

Id. at 512, 108 S.Ct. 2510. If a plaintiff brings a failure-to-warn case alleging a failure to conform to state law requirements, and the defendant subsequently establishes that the federal government was involved in the decision to give (or not to give) a warning and that the defendant complied with the federal government's provisions, there necessarily exists a conflict between state law and federal policy in this area. See

id. at 511-12, 108 S.Ct. 2510; see also

Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 438 (5th Cir.2000) (citing In re Air Disaster at Ramstein Air Base, 81 F.3d 570, 576 (5th Cir.1996)). Thus, an additional instruction that the jury find a “significant conflict” between federal interests and...