King v. Odeco Incorporated ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 95-31171
(Summary Calendar)
____________
BILLY KING,
Plaintiff - Appellant,
versus
ODECO INCORPORATED, ET AL,
Defendants,
and
MURPHY EXPLORATION AND PRODUCTION COMPANY,
Defendant - Appellee,
THE GRAY INSURANCE COMPANY INCORPORATED and
LAFITTE WELDING WORKS INCORPORATED
Intervenors - Appellants.
Appeal from the United States District Court
For the Eastern District of Louisiana
(94-CV-2117 “C”)
January 8, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
Plaintiff Billy King appeals the district court’s judgment in
favor of defendant Murphy Exploration and Production Company
(“Murphy”) dismissing King’s complaint with prejudice. We affirm.
I
Murphy owns and operates an offshore oil production platform
called OCEAN 66 (“OCEAN 66" or “the facility”). In 1993, Murphy
determined that a fuel tank at the facility leaked and needed
repairs. After a bidding process, Murphy awarded this work to
Lafitte Welding Works (“Lafitte”). Lafitte sent a seven-man crew
to the facility, and it completed the job in ten days.
King was a member of the Lafitte repair crew, and was employed
as a “rigger.” To fix the fuel tank, the crew moved its welding
equipment through the mud pump room to the bulk barite room. When
the crew completed the repairs, it moved the equipment to another
area. However, after testing the fuel tank, the crew discovered
that the tank still had a number of leaks. King was told to move
the welding equipment back into the bulk barite room so the crew
could finish the job. Part of this equipment included welding
leads, which are thick cables that supply electricity for welding.
The welding leads were in sections and too heavy to be carried in
a bundle or coil.
After hauling one section of lead into the bulk barite room,
except under the limited circumstances set forth in Local Rule
47.5.4.
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King returned through the mud pump room to fetch another one. At
that point, he alleges that the tip of his boot caught under the
edge of a steel grating, and he toppled forward. As he fell, King
claims that he saw a vertical pipe in his way and, to avoid hitting
it face-first, he pirouetted almost 180 degrees, striking his neck
and back against the pipe.
King then finished the task of positioning the welding leads.
Later, he reported the accident to Murphy.
The grating on which King purportedly tripped was an old one
that had sunk in the middle, causing the edges to protrude up by as
much as an inch. It was in an area of the mud pump room in which
people would normally walk. King testified that the grating was
clearly visible, and that he had passed over it a number of times.
The plaintiff sued Murphy and Odeco, Inc., the former owner of
OCEAN 66, in state court in Louisiana.2 After Murphy removed the
suit to the federal district court, Lafitte and The Gray Insurance
Company (“Gray”) intervened as plaintiffs. The district court
bifurcated the issues of liability and damages. After a bench
trial on liability, the district court entered judgment on behalf
of Murphy, dismissing the claims of King, Lafitte, and Gray.
On appeal, King argues that the district court erred by
refusing to require production of photographs taken by Murphy of
the mud pump room, by concluding that the grating did not pose an
2
King later amended his complaint to delete his claims
against Odeco.
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unreasonable danger, and by making an alternative finding that the
accident was solely caused by King’s negligence. Also, Lafitte and
Gray contend that the district court erred by making a second
alternative finding that the condition of the grating did not
constitute a “ruin” under Louisiana law.
II
King avers that the district court mistakenly declined to
order Murphy to produce photographs it took of the mud pump room.
We review district court rulings on discovery matters for abuse of
discretion. Scott v. Monsanto Co., 868 F.2d 786, 793 (5th Cir.
1989).
King twice demanded production of any photos. More than a
year before trial, he requested that Murphy produce “any and all
photographs” of the accident site. Then, having learned that such
photos existed, he filed an in limine motion on the day of trial
for their production. The district court denied the motion,
determining that the photos were protected from disclosure by the
work product doctrine.
As a preliminary matter, King suggests that Murphy was
precluded from contesting his in limine motion for discovery of the
photos because Murphy did not object to his initial request to
produce “any and all photographs.” However, according to Murphy,
its employee did not take the photos until less than a month before
trial. Murphy claims that, because the photos did not exist at the
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time King made his initial request, it had no basis for objecting
to the request at that time. King does not dispute this. Hence,
his argument has no merit.
King next contends that, even if Murphy was entitled to object
to his in limine motion, the district court should not have
permitted Murphy to shield the photos from discovery under the work
product doctrine. The work product doctrine protects that which an
attorney causes to be created in anticipation of litigation.
United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982),
cert. denied, 466 U.S. 944, 104 S. Ct. 1927, 80 L. Ed. 2d 473(1984). The party who asserts work product protection for an item
sought to be discovered has the burden of establishing that it was
prepared in anticipation of litigation. If the party can satisfy
that requirement, the burden shifts to the party seeking discovery
to overcome that protection. Hickman v. Taylor, 329 U.S. 495, 511-
12, 67 S. Ct. 385, 394, 91 L. Ed. 451 (1947). To overcome work
product protection, a party must show that (1) he has “substantial
need of the materials in the preparation of [his] case” and (2)
that he “is unable without undue hardship to obtain the substantial
equivalent of the materials by other means.” FED. R. CIV. P.
26(b)(3).
Murphy asserts that its counsel arranged to have a Murphy
employee take the photographs shortly before trial. Murphy claims
that this employee was not a witness during the trial, and that the
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company did not show the photos to any witness. Murphy also
maintains that it never introduced the photos into evidence.
King does not dispute any of these contentions. Accordingly, we
find that the district court did not abuse its discretion in
finding that the photographs are work product material.
Parties commonly argue that they have substantial need for
discovery of work product material because it contains information
that can only be found in the material itself. Koenig v.
International Sys. and Controls Corp. Secs. Litig. (In re Int’l
Sys. and Controls Corp. Secs. Litig.), 693 F.2d 1235, 1241 (5th
Cir. 1982). The “[e]xistence of a viable alternative to invading
work product, will, in most situations . . . negate any substantial
need.” Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145,
151-52 (S.D. Ind. 1993). One readily available source is the
plaintiff’s own knowledge and testimony. Id. Another is
deposition testimony. In re International Systems, 693 F.2d at
1241.
King fails to contend that the photos contain information that
he could not have obtained elsewhere. His argument that he had
substantial need for the photographs is entirely conclusory; he
merely claims that the photos were “crucial evidence” and that they
would have had a “bearing . . . on the ultimate liability question
in this case.” In the absence of a statement of exactly what
information King requires from the photos, it is difficult to
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determine if he has substantial need for the photos. Even if King
had made an appropriate legal argument, though, he would still fail
to meet his burden of showing substantial need. For instance, in
lieu of attempting to compel production of the photos, King could
have relied on his own knowledge of the grating and the layout of
the mud pump room. Moreover, he could also have obtained this
information from deposition testimony. Therefore, King cannot show
substantial need for the photos.
King also suggests that he would have faced undue hardship in
acquiring the substantial equivalent of the photos by means other
than attempting to compel their production. While he concedes that
Murphy gave him permission to inspect OCEAN 66, he points out that
it would have been costly for him to fly out or hire a vessel to
take him there.
A plaintiff can claim undue hardship if he cannot obtain the
information he seeks by deposition. Id. at 1240. For instance, if
the plaintiff makes a particularized showing that a witness cannot
recall the event in question or is unavailable, this may constitute
undue hardship. Id. Another aspect of undue hardship is unusual
expense. Id. at 1241. The undue hardship test, though, is
generally not satisfied merely by the expense of obtaining
materials. Pine Top Ins. Co. v. Alexander & Alexander Servs.,
Inc., No. 85 Civ. 9860, 1991 WL 221061, at *2 (S.D.N.Y. Oct. 7,
1991). King does not argue that he was unable to obtain the
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information in the photos by deposition. He also does not present
any evidence that he inquired into the cost of visiting OCEAN 66
before the trial or what this cost would have been. Hence, we find
that he has failed to show undue hardship.
Accordingly, we determine that the district court did not
abuse its discretion in refusing to order Murphy to produce its
photos of the mud pump room.
III
King next contends that the district court erred by
determining that the grating did not pose an unreasonable danger.
We review a district court’s findings of fact for clear error, but
review issues of law de novo. C & B Sales & Serv., Inc. v.
McDonald, 95 F.3d 1308, 1312 (5th Cir. 1996).
In Oster v. Department of Transp. & Development, 582 So.2d
1285 (La. 1991), the Louisiana Supreme Court summarized the test
under Louisiana law to determine negligence and strict liability
where the plaintiff alleges damages resulting from a dangerous
condition on land. It noted that under either theory of liability,
one of the elements the plaintiff must prove is that “the thing
[that caused the damage] contained a ‘defect’ (i.e., it had a
condition that created an unreasonable risk of harm to the
plaintiff).” Id. at 1288. The court stated that “the only
difference between the negligence theory of recovery and the strict
liability theory of recovery is that the plaintiff need not prove
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the defendant were aware of the existence of the ‘defect’ under a
strict liability theory.” Id. (footnote omitted). “Under both
theories, the absence of an unreasonably dangerous condition of the
thing implies the absence of a duty on the part of the defendant.”
Id.In determining whether the condition was unreasonably
dangerous, the Louisiana Supreme Court ruled, a court cannot
conduct a mechanical analysis but, rather, must consider a myriad
of considerations. Id. “In addition to the likelihood and
magnitude of the risk and the utility of the thing, the interpreter
should consider a broad range of social, economic, and moral
factors including the cost to the defendant of avoiding the risk
and the social utility of the plaintiff’s conduct at the time of
the accident.” Id. at 1289.
The district court conducted the appropriate review under
Oster. In examining whether or not the grating was unreasonably
dangerous, it made the following findings: (1) King and his fellow
laborers were working as a specialized welding repair crew under
contract to repair a fuel tank on an offshore facility; (2) the
repair area was not in service as a work area on the facility, and
was not subject to daily use; (3) King and his superintendent was
aware of the condition of the grating and the potential hazard; (4)
the lighting in the room was adequate for its purpose; (5) no
member of the crew, besides King, complained about tripping over
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the grating, despite the fact that the repair crew traversed the
room frequently during the course of the job; (6) the grating was
not designed to be welded in place, but was intended to be
removable in order to provide access to the equipment below; (7)
the surface differential of the grating was an inch or less; (8)
King and his superintendent testified that the condition did not
pose any risk at all to a worker who was conscious of his footing;
and (9) King and his fellow laborers had encountered inconveniences
far more serious than the grating in the mud pump room in order to
carry out their work.
We determine that none of these findings is clearly erroneous.
Moreover, we hold the district court did not err in considering
these findings sufficient to conclude that the grating was not an
unreasonably dangerous condition.
IV
Because we determine that the judgment of the district court
is correct, we need not consider King’s challenge to the district
court’s alternative finding that King’s own negligence was the
cause of the accident or Lafitte and Gray’s challenge to the
district court’s second alternative finding that the grating does
not constitute a “ruin” under Louisiana law.
V
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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