Scallan v. Duriron Co., Inc.
| Decision Date | 19 January 1994 |
| Docket Number | No. 92-9562,92-9562 |
| Parties | Prod.Liab.Rep.(CCH)P. 13,743 John A. SCALLAN, et al., Plaintiffs-Appellants, Travelers Insurance Company, et al., Intervenors-Appellants, v. The DURIRON COMPANY, INC., a/k/a Durco, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John E. Heinrich, Breazeale, Sachse & Wison, Baton Rouge, LA, for intervenors-appellants.
R. Loren Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, LA, for Scallan.
C. Michael Hart, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for defendant-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before HIGGINBOTHAM, DAVIS and SMITH, Circuit Judges.
In this products liability case, plaintiffs-appellants, John Scallan and his wife Irene, (collectively Scallan) appeal the district court's grant of summary judgment in favor of defendant-appellee, The Duriron Company (Duriron). We affirm.
The accident which spawned this case occurred at the Allied-Signal (Allied) chemical plant when a pump manufactured by Duriron exploded and released chlorine into the air. Mr. Scallan was injured when he inhaled chlorine while cleaning up after the explosion. The pump that exploded was used to produce freon at the Allied plant, Scallan's place of employment. The pump operated with a "two-diaphragm" system, in which a clear, inert fluid separated two Teflon diaphragms. Behind one diaphragm was the fluid being pumped, liquid chlorine. The other diaphragm contained the hydraulic fluid in the pump mechanical drive mechanism. Because Teflon has limitations, the chlorine or the hydraulic fluid will eventually permeate the diaphragm and mix with the inert fluid. To monitor for this dangerous and inevitable leakage, the pump in this case was equipped with a manual sight glass through which an observer can see a change of color in the clear inert fluid when it is contaminated with one of the other fluids.
Several hours before the accident, the railroad tank car holding the liquid chlorine was pumped dry and the chlorine flow to the pump was diminished or possibly cut off completely. Later, the chlorine flow was again disrupted when the nitrogen supply used to pressurize the railroad tank car ran low. When the nitrogen supply was refurbished, the chlorine flow resumed to its normal rate. Within minutes, however, the pump exploded, dispersing chlorine into the air.
Scallan concedes that before the explosion an Allied employee had sealed the sight glass detector, rendering inoperable the only leak detection system on the pump. However, Scallan insists that the sight glass was sealed because it was useless. Scallan claims that because the sight glass was not equipped with an internal illumination system anyone looking into it would see only blackness. Scallan also asserts that the sight glass continually leaked.
When Duriron sold the pumps to Allied, Duriron also manufactured an automatic sensing annunciator, which, if supplied on a pump, would give an audible warning of any chlorine leak. Duriron asserts that Allied was aware of the availability of the automatic sensing annunciator and chose to have its pumps equipped with a manual sight glass detector.
The district court granted Duriron's summary judgment motion, because as a matter of law plaintiff could not establish that the pump was unreasonably dangerous in design. The court focused on two uncontested facts: Allied had knowingly selected the manual sight glass detection system over the automatic annunciator and had disabled the system prior to the explosion.
"We review a summary judgment de novo, applying the same criteria as the district court." Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir.1991). Although summary judgment is rarely appropriate in products liability cases, Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), it is nonetheless appropriate if there is "no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue is not genuine when there is nothing more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In sum, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Id. at 587, 106 S.Ct. at 1356.
The parties agree that this case is governed by Louisiana products liability law as set forth in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986). 1 In Halphen, the Louisiana Supreme Court set forth the four available theories of recovery for products liability cases in Louisiana:
1. A product may be unreasonably dangerous per se;
2. A product may be unreasonably dangerous in construction or composition;
3. A product may be unreasonably dangerous due to the manufacturer's failure to warn;
4. A product may be unreasonably dangerous in design because
(a) a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product;
(b) Although the product is not unreasonably dangerous per se under the risk-utility balancing test, alternative products were available to serve the same needs with less risk of harm; or
(c) Although the product is not unreasonably dangerous per se under the risk-utility balancing test, there was a feasible way to design the product with less harmful consequences.
Scallan does not argue that the pump was unreasonably dangerous per se, but does assert claims based on the remaining three theories. We examine each theory in turn to determine if a genuine issue of fact exists.
To prevail on the theory that the pump was unreasonably dangerous in construction or composition, Scallan must show that the pump contained a flaw at the time it left Duriron's control. More specifically, Scallan must show that the pump deviated from the design or plan because of an error in the manufacturing process and that the deviation made the pump more dangerous than it was originally designed to be. See Weber v. Fidelity & Casualty Ins. Co. of N.Y., 250 So.2d 754 (La.1971); Halphen, 484 So.2d at 114. Scallan seeks to prevail under this theory by pointing to the fact that Duriron knew the pump was to be used to meter chlorine flow and that the pump was not equipped with an automatic sensing annunciator. Even assuming these facts to be true, Scallan's reliance on the construction or composition defect theory is misplaced; Scallan does not allege that the pump deviated from its design. In fact, plaintiff's pump expert, Mr. Heinz Bloch, testified that the pump contained no defects in composition or manufacture. The significance of the lack of an automatic annunciator is properly treated under the design defect theory, discussed below.
Scallan contends next that Duriron had a duty to warn that, "when used in a chlorine feed system, the pump should either be used in conjunction with the automatic sensing annunciator system and/or used with an inert hydraulic fluid."
Duriron responds that a manufacturer does not have a duty to warn of dangers that are obvious "to the ordinary user" and has only a limited duty to warn a sophisticated user of a danger if it knew or should have known of the risk involved. See Beck v. Somerset Technologies, Inc., 882 F.2d 993, 997 (5th Cir.1989); Davis v. Avondale Indus., Inc., 975 F.2d 169 (5th Cir.1992). First, it cannot seriously be contended that Allied is not a sophisticated user. Scallan's own expert, Mr. Heinz Bloch, recognized that Allied "ranks among the world leaders" in chemical process.
Moreover, the record is replete with evidence demonstrating that Allied knew that a diaphragm failure could cause hydraulic fluid and chlorine to leak, which could lead to an explosion. The record is also conclusive that Allied knew of the danger of using hydrocarbon-based hydraulic fluid. 2 Halphen only imposes a duty to warn "of any danger inherent in the normal use of the product which is not within the knowledge of or obvious to the ordinary user." The danger inherent in pumping chlorine through a hydraulic pump is obvious to an ordinary user of hydraulic pumps, such as Allied. Consequently, no genuine issue of material fact exists as to whether Duriron had a duty to warn that the pump should be fitted with an automatic sensing mechanism or used with an inert hydraulic fluid.
Under Halphen, "a product may be unreasonably dangerous because of its design for any of three reasons:" (1) the danger-in-fact of the machine outweighs the utility of the product; (2) alternative, less dangerous products were available; or (3) there was a feasible, safer, alternative design for the product. Halphen, 484 So.2d at 115.
Scallan first argues that an alternative, less dangerous product was available in the form of the single-diaphragm "Pulsafeeder pump." Scallan claims the Pulsafeeder pump was less dangerous because the chlorine diffused through a vent built into the pump, allowing the chlorine to escape without reaction with the hydraulic fluids. Moreover, according to Scallan, the Pulsafeeder single-diaphragm pumps had been used at Allied for many years without incident, proving that single-diaphragm pumps offer substantially less risk of harm than dual-diaphragm pumps.
Scallan's argument is without merit for two reasons. First, the record does not support the inference that venting chlorine into the atmosphere is a safer design. In fact, Scallan's injuries resulted from his inhalation of chlorine which had vented to the atmosphere after the explosion. Our reluctance to...
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