Turnage v. General Elec. Co., 90-3414

Decision Date11 February 1992
Docket NumberNo. 90-3414,90-3414
Citation953 F.2d 206
Parties, 22 Fed.R.Serv.3d 83 David TURNAGE, Plaintiff-Appellant, v. GENERAL ELECTRIC CO., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Camilo K. Salas, III, Robert E. Winn, Sessions & Fishman, New Orleans, La., William E. Andrews, III, Purvis, Miss., for David Turnage.

Lawrence J. Ernst, Charles M. Lanier, Jr., Christovich & Kearney, New Orleans, La., for General Elec.

Arthur A. Crais, Jr., New Orleans, La., for Shell Offshore, Inc.

Michael D. Carbo, Didriksen & Carbo, New Orleans, La., for P & S Diesel.

Russell M. Cornelius, James C. Murphy, Jr., Cornelius, Sartin & Murphy, New Orleans, La., for Boyce Machinery.

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

Before BROWN, DAVIS and BARKSDALE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

In a suit for damages brought as a result of burns he suffered while employed on an offshore rig, Plaintiff-Appellant David Turnage appeals a jury verdict in favor of Defendants-Appellees General Electric Company (GE), P & S Diesel Services, Inc. (P & S), and Boyce Machinery Corporation (Boyce). Specifically, Turnage appeals (i) the denial of his discovery motion requesting an internal examination of a circuit breaker and (ii) the court's charge concerning the identity of a shut-off mechanism and an instruction describing the liability of the shut-off mechanism's remanufacturer. Turnage also appeals the district court's grant of summary judgment in favor of Shell Offshore, Inc. (Shell).

Because the district court did not abuse its wide discretion in denying the discovery request, we affirm the district court's discovery ruling. Because there are no genuine issues of material fact regarding Shell's liability such that a reasonable finder of fact could hold in Turnage's favor, we affirm the granting of summary judgment as to Shell. Finally, however, because the court's instruction concerning the identity of the shut-off mechanism was in error, we reverse the judgment in favor of Boyce and P & S and remand Turnage's claim against them for a new trial.

A Wild Hose

Turnage was injured on November 27, 1986 while working as an electrician for Pool Company (Pool) on Pool's Rig 455. At the time of the accident, the rig was engaged in drilling activities for Shell on a Shell platform on the Outer Continental Shelf of the Gulf of Mexico. Turnage was severely burned when a coolant-intake hose disengaged from an overheated engine used to power one of the rig's generators and spewed hot coolant and steam into the engine room where Turnage had gone to investigate a malfunctioning radiator.

Three electric generators powered the rig; each generator was driven by a Caterpillar diesel engine. The rig had four radiators to circulate coolant through the three engines. Each radiator was itself cooled by a belt-driven fan, one mounted behind each radiator. An electric motor, which drew its current from a GE Motor Control Center, drove the belt that propelled each fan. The Motor Control Center was equipped with four circuit breakers, one for each of the four electric motors; these circuit breakers protected against a short circuit. The Motor Control Center also featured four "overload heaters," designed to shut the motors down if heat built up due to a circuit overload.

Discovery Brouhaha

Among the disputed theories advanced by Turnage which attempted to explain the cause of the accident, the parties agreed that the hose disengaged because the engine to which it was attached overheated. One explanation for the overheating of the engine, Turnage claims, is that the radiator fan stopped because the circuit breaker for the corresponding electric motor had tripped. From the inception of this suit, Turnage has maintained that the GE circuit breaker was internally defective. Prior to trial, he proceeded to notify all parties that on November 20, 1989, the circuit breaker would be opened, disassembled for investigation and discovery, and photographed. Presumably to avoid the charge of tampering with evidence, Turnage cautiously filed a Notice of Intention to Perform Test on November 14, 1989, and, in response, GE filed a motion for a protective order on November 17, 1989. Following a hearing, a magistrate judge granted GE's motion because the pre-trial and trial dates were imminent and the deadline for the exchange of expert reports had passed. 1 Turnage moved for review of the magistrate's order by the district court; his motion was denied as violative of the court's scheduling order.

Turnage submits that the proposed inspection would have taken place within the proper period for discovery and would not have destroyed the circuit breaker. He adds that the passage of the date for exchanging expert reports was not a valid reason for denying the inspection. On the contrary, Turnage argues, the circuit breaker's condition was a critical issue, and its inspection would have "assisted the search for truth."

Regardless of how helpful this inspection may have been to Turnage's case, this court will reverse the district court's discovery ruling only if such ruling constitutes an abuse of discretion. Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007, 1012 (5th Cir.1986). As this Court pointed out recently:

Rule 16(b) of the Federal Rules of Civil Procedure authorizes the district court to control and expedite pretrial discovery through a scheduling order. Consistent with the authority vested in the trial court by rule 16, our court gives the trial court 'broad discretion to preserve the integrity and purpose of the pretrial order.' Moreover, a trial court's decision to exclude evidence as a means of enforcing a pretrial order 'must not be disturbed' absent a clear abuse of discretion.

Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.1990) (citations omitted).

Turnage had over two years to request his inspection of the circuit breaker but waited until a month before trial to file his Notice of Intention to Perform Test. Initially, in its rule 16 scheduling order of January 13, 1989, the district court ordered Turnage to exchange his experts' reports within 90 days, and the defendants to exchange their experts' reports within 60 days before the Pre-Trial Conference which was originally scheduled for May 2, 1989, later extended to May 25, 1989. The cut-off date had passed long before Turnage sought to examine the circuit breaker, therefore, the district court clearly felt that, given (i) the imminence of trial, (ii) the impending discovery deadline, and (iii) Turnage's failure to request an inspection earlier, Turnage's request to inspect the circuit breaker lacked merit. No matter how much we might believe that allowing the inspection might have been helpful--perhaps decisively so--or that such an allowance would not have adversely affected the imminent trial, we cannot find that the district court abused its discretion in denying the request.

Charge!

Turnage claimed at trial that the circuit breaker or the shut-off mechanism connected to engine No. 1, or both, malfunctioned, thus causing the engine to overheat and the hose to disengage. The primary thrust of Turnage's case was that Boyce, approximately four months before the accident, remanufactured Engine No. 1 with a defective shut-off mechanism and that P & S failed to detect the shut-off's defect when it tested Engine No. 1 three months prior to the accident. Turnage contended that the mechanism's specific defect was that it contained an "incorrect shaft." 2 Turnage, in fact, introduced two shut-off mechanisms at trial, exhibits 95 and 96, one of which had an incorrect shaft. The shut-offs were introduced as demonstrative devices to enable Turnage's witnesses to describe how the shut-off on engine No. 1 malfunctioned on the day of the accident.

Indeed, Turnage's witness Burlon Bateman, explaining that a normally functioning shut-off device protects the engine from overheating and from low oil pressure, was positive in his opinion that the particular shut-off within engine No. 1, which he had examined two to four days after the accident, was defective. Referring generally to the shut-off mechanism on Engine No. 1 and not to exhibits 95 and 96, Bateman testified that an "arm" to which both the pressure and temperature sensors report did not operate properly, thus causing the engine to overheat. That is, Bateman found that the shut-off device installed on engine No. 1 would not react to a high coolant temperature as it should have. The point of Bateman's testimony was that the shut-off mechanism actually on Engine No. 1 was defective, not that exhibit 95 or 96 was actually on the engine. Turnage correctly points out that Bateman's testimony alone put before the jury the question whether engine No. 1 overheated due to a malfunctioning shut-off device. But the jury was not given that issue to decide. Rather, the question was turned into whether exhibit 95 or 96 was actually on Engine No. 1 on the day of the accident.

The court's instruction to the jury read as follows:

[I]f you find that the shut-off mechanism introduced in this trial was not on engine # 1 on the day of the accident, you must find that defendants Boyce Machinery and P & S Diesel are not responsible for plaintiff's injuries on the claim that the shut-off mechanism on engine # 1 was defective. (emphasis added).

Turnage correctly complains that the court's charge gave the impression that if the jury was not convinced that the shut-off mechanism introduced as an exhibit was actually removed from engine No. 1, then the jury should absolve Boyce and P & S from liability on the claim that the shut-off mechanism on engine No. 1 was faulty. In contrast to the charge as given to the jury, Turnage sought, and was denied, the following instruction:

If you find that a shut-off mechanism with the wrong shaft was not on engine # 1 on the Pool rig on the day...

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