Sullivan v. Rowan Companies, Inc.
| Decision Date | 31 January 1992 |
| Docket Number | No. 91-3197,91-3197 |
| Citation | 952 F.2d 141 |
| Parties | 34 Fed. R. Evid. Serv. 1161, Prod.Liab.Rep. (CCH) P 13,036 Billy Eugene SULLIVAN, Plaintiff-Appellant, v. ROWAN COMPANIES, INC., Defendant-Third-Party-Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Third-Party-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard M. Simses and Carolina M. Broers, Abbott, Best & Meeks, New Orleans, La., for Rowan Companies, Inc.
Blake G. Arata, Jr., Davis & Saunders, Metairie, La., for Billy Eugene Sullivan.
Patricia S. LeBlanc and Jerry L. Saporito, Bernard, Cassisa, Saporito & Elliott, Metairie, La., for defendant-third-party-defendant-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before REYNALDO G. GARZA and BARKSDALE, Circuit Judges, and LIVAUDAIS, District Judge. 1
The pivotal issue in this appeal by Billy Eugene Sullivan, a Jones Act seaman, and his employer, Rowan Companies, Inc., is whether the district court committed reversible error in not permitting expert testimony by a witness for Rowan. That testimony was vital to Sullivan's product liability claim (tried to the jury) and to Rowan's similar cross-claim (tried to the court) against Sears, Roebuck & Company. In large part because of that ruling, the district court rendered judgment against Rowan and judgment notwithstanding the verdict against Sullivan. We AFFIRM.
Sullivan, employed by Rowan as a mechanic aboard an off-shore drilling rig, was using tools, including a Sears Craftsman socket, to loosen bolts. The socket split in half; Sullivan fell and injured his back.
Sullivan sued Rowan and Sears. His claims against Rowan, brought under both the Jones Act, 46 U.S.C. § 688, et seq., and general maritime law, were that his injury was a result of Rowan's negligence and its failure to provide him with a seaworthy vessel and tools. And, under diversity jurisdiction, he claimed, based on Louisiana product liability law, that Sears had manufactured a defective socket and had failed, inter alia, to adequately warn him about the dangers inherent in its use. Rowan cross-claimed against Sears, under general maritime law, seeking indemnity and/or contribution for maintenance and cure benefits paid to Sullivan. It alleged that Sullivan's injuries were the result of Sears' failure to provide a product free from defects.
On the eve of trial, Sullivan settled with Rowan, entering into a "Mary Carter" agreement. 2 Rowan and Sullivan then proceeded against Sears. Sullivan's claim was tried before a jury; Rowan's maritime cross-claim, before the district court, with the jury in an advisory capacity.
At both the close of Rowan's and Sullivan's case and of the evidence, Sears moved for a directed verdict on Sullivan's claims and for dismissal of Rowan's cross-claim. On each occasion, the district court reserved ruling, except that at the close of the evidence, it directed a verdict for Sears on failure to warn. In response to interrogatories, the jury found that when the socket left Sears' control, it was unreasonably dangerous in normal use because it was defectively manufactured; that the socket was a cause of Sullivan's injuries; and that the acts and/or omissions of Rowan and Sullivan were also a cause of Sullivan's injuries. Accordingly, it returned a verdict for Sullivan, awarding $622,000; but it assigned liability as follows: Rowan--68.5%; Sullivan--30%; and Sears--1.5%. 3
Following the verdict, the district court entered findings of fact and conclusions of law on the cross-claim, rendering judgment against Rowan. 736 F.Supp. 722 (E.D.La.1990). In so doing, it noted [B]oth [Sullivan's] claim and the cross-claim involve the same primary issue: Was the evidence offered at trial sufficient to support a finding that Sears' socket was defective, and that Sears was, therefore, 1.5% at fault for [Sullivan's] injuries.
Id. at 724. Based on the expert testimony, it held that "there was not enough evidence presented ... to reasonably conclude that the socket in question failed for any reason other than unforeseeable abuse." Id. at 726.
Following judgment being entered for Sullivan against Sears for $9,330 (1.5% of $622,000), the court granted Sears' motion for judgment notwithstanding the verdict, holding that "reasonable jurors could not have concluded that a manufacturing defect in the subject socket caused the injury to ... Sullivan." It "base[d] this finding on the reasons stated in" its opinion, as amended, awarding Sears judgment on Rowan's cross-claim. 4
Rowan and Sullivan contend that the district court erred: (1) in ruling that Rowan's expert witness was not qualified to testify in the field of metallurgical failure analysis; (2) in excluding several Sears' television advertisements; (3) in directing a verdict on failure to warn and granting judgment against Rowan's cross-claim and judgment notwithstanding the verdict against Sullivan's claim; and (4) in instructing the jury. (As discussed in part II.F., because we affirm the judgment notwithstanding the verdict, we need not address the jury instruction contentions.)
Rowan tendered Dr. Jendrzejewski as an expert in metallurgical failure analysis to support the theory that the cause of the failure was hydrogen embrittlement that existed in the socket when it left the manufacturer. 5 Several issues turn on the ruling that Jendrzejewski was not qualified to so testify.
Is the witness--because of his specialized knowledge, skill, experience, training, or education in the relevant field--qualified to express an expert opinion on the topic at issue? Fed.R.Evid. 702. The Advisory Committee Note accompanying Rule 702 reads the broad language of the rule to permit expert testimony not only by experts carrying formal credentials such as university degrees and professional memberships but also by so-called skilled witnesses, whose experiences permit them to testify with authority on a given topic. .... At this [threshold] stage, the only question for the trial court is whether the expert is generally qualified to render an opinion on the question in issue.
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1110 (5th Cir.) (en banc), petition for cert. filed, (U.S. Nov. 12, 1991) (No. 91-785). 6
"Trial judges must be sensitive to the qualifications of persons claiming to be expert." In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233-34 (5th Cir.1986). "Whether a witness is qualified to testify as an expert is left to the sound discretion of the trial judge, who is in the best position to determine both the claimed expertise of the witness and the helpfulness of his testimony." Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1135 (5th Cir.1985).
A trial court has wide discretion to admit or exclude expert testimony. We review challenges to rulings on expert testimony under the "manifestly erroneous" standard. Even when an error is shown, a party is not entitled to relief unless the error substantially prejudices its rights.
Edmonds v. Illinois Central Gulf R.R., 910 F.2d 1284, 1287 (5th Cir.1990) (footnotes omitted).
On voir dire, Jendrzejewski testified that he has a bachelor's degree in earth science education, and a master's and Ph.D. in geology. His master's thesis was in micropaleontology; for his Ph.D., microfossils. 7 After receiving the latter, he taught in the Earth Sciences Department at Tulane University for one year. He admitted that he is not a metallurgical engineer; that he has no other type of engineering background; and that his only formal study in metallurgy was a three-day seminar involving metallurgy and scanning electron microscopes that he had attended ten years earlier. On the other hand, he testified that, since 1976 (immediately following his year at Tulane), he had been employed in private laboratories performing material failure analyses using scanning electron microscopes. He estimated that he had performed between 1,000 and 2,000 projects involving failure analysis, approximately 75 to 80 percent of which involved metals.
The district court ruled that Jendrzejewski was not qualified to give expert testimony in the metallurgical field. Under Fed.R.Evid. 701, however, it allowed him to testify as a lay witness on his observations from his microscopic examination and testing of the socket. This notwithstanding, Jendrzejewski was prevented from opining whether there was a defect in the socket and on the cause of its failure.
Rowan and Sullivan contend that, based on Jendrzejewski's extensive practical experience in metal failure analysis, the district court erred in not allowing him to testify as a metallurgical expert. 8 The district court determined, however, that additional academic or other training or experience in the metallurgical field was needed before Jendrzejewski could qualify to give an opinion regarding the cause of the socket's failure. In this regard, Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), is most instructive:
[A]n expert may be qualified on any of the five bases listed [in Fed.R.Evid. 702]. A witness therefore can qualify as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. Thus, although the absence of hands-on experience is certainly relevant to the determination whether to accept a witness as an expert, it is not determinative. .... The affirmation of the district court's ruling therefore means merely that if a district court refuses to allow one who has received only academic training to testify as an expert concerning product design, its decision may be affirmed. It clearly does not mean that if a district court faced with the same circumstances rules the other way, its decision will be overturned.
Id. at 176-77 (footnote omitted).
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