Woodling v. Hubbell Incorporated

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-30947
Summary Calendar
__________________________
Russell Woodling,
Plaintiff-Appellee,
versus
Hubbell Incorporated,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
(No. 99-cv-1193)
___________________________________________________
April 8, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM*:
Hubbell Incorporated (“Hubbell”) challenges the district
court’s order finding it 70% liable following an accident involving
an electrical switch manufactured by Hubbell. Russell Woodling
(“Woodling”), an electrical contractor, was injured while
connecting a switch wire to wires for an overhead flourescent
fixture. Woodling filed suit against Hubbell under the Louisiana
Products Liability Act (“LPLA”), La.R.S. §9:2800.54, alleging that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
the electrical switch manufactured by Hubbell was unreasonably
dangerous in construction or composition and/or design. Hubbell
argued that there was no evidence that there was a malfunction in
the switch and that it should be absolved from liability because
Woodling failed to follow safety procedures for handling electrical
switches. Because we find that the district court did not err in
concluding that there was a defect in the switch or in its
allocation of fault, we affirm the decision.
I. Facts and Proceedings
On April 16, 1998, Woodling was working as an electrician for
SECO Industries, Inc. (“SECO”) installing electrical switches on an
oil platform. The switch at issue was a single on/off toggle
switch manufactured by Hubbell and installed on the morning of the
accident. Woodling was utilizing the switch as a means of de-
energizing the circuit on which he was working in order to connect
the wires. At the time of the accident the switch was toggled down
in the “off” position. The circuit, however, remained active as
other crews were working on the platform and were relying on it for
electricity. When Woodling made contact with the switch he
sustained a shock resulting in severe injuries. Following the
accident, an examination of the switch revealed that the contacts
had been welded together effectively causing the switch to be “on”
regardless of the position of the toggle. It was determined that,
for the contacts to have been welded together, a temperature of
2
1,750 degrees Fahrenheit would have to have been attained.
SECO has certain safety policies outlined in its employee
safety manual. Two of the safety procedures required turning the
circuit breakers off before handling wires and testing the switches
with a voltage tester before use. Woodling failed to do both.
Woodling filed suit in the Eastern District of Louisiana on
April 15, 1999 alleging that the switch was defectively
manufactured by Hubbell. The trial was bifurcated and the district
court held a bench trial on the liability issue on June 1, 2000.
The main issue before the district court was whether the cause of
the contacts being welded together occurred at Hubbell’s factory or
during the accident. The district court concluded that the defect
occurred at Hubbell’s factory and found it liable for the
manufacture of the defective switch, assigning 70% fault to Hubbell
and 30% fault to Woodling for his comparative negligence. Hubbell
timely filed a notice of appeal.
II. Analysis
There are two issues on appeal. First, Hubbell argues that
the expert testimony provided by Woodling at trial was insufficient
proof of a defect under the LPLA. Second, the district court erred
in its fault allocation based on the evidence presented at trial
that the accident could have been completely avoided had Woodling
followed SECO’s safety precautions.
A. Standard of Review
3
Judgment was entered following a bench trial on the issue of
liability. We review the district court’s findings of fact for
clear error and its legal determinations de novo. See Canal Barge
Co., Inc. v. Torco Oil Co., 220 F.3d 370 (5th Cir. 2000)(citations
omitted). Hubbell and Woodling agree that, in a product liability
action, the determination of fault under the LPLA is a question of
fact subject to the manifest error standard of review. However,
Hubbell submits that the district court’s determination that
Woodling’s expert testimony was sufficient under the LPLA to
support a finding of a manufacturer’s defect was a conclusion of
law and subject to de novo review. We disagree. Whether a defect
existed while under the manufacturer’s control is an element of
proof under the LPLA. The existence of an element of proof under
the LPLA is a factual finding subject to the manifest error
standard of review. See Ellis v. Weasler Engineering, Inc., 258
F.3d 326, 332 (5th Cir. 2001); Precht v. Case Corp., 756 So. 2d 488,
495 (La. App. 3rd Cir. 2000).
B. Louisiana Products Liability Act
Woodling’s claim arises under the LPLA, the sole ground for
recovery against the manufacturer of an allegedly defective
product. Of the exclusive theories of recovery under the LPLA,
Woodling filed suit alleging that the switch was unreasonably
dangerous in construction or composition and/or design. La.R.S.
§9:2800.54(B). Under the LPLA, the plaintiff bears the burden of
4
proving the elements of his claim. Therefore, Woodling had the
burden of proving that a defect existed in the switch when it left
the manufacturer’s control. Hubbell argues that Woodling failed to
prove that the defect existed at the time the product left
Hubbell’s factory. The defect in the switch occurred because the
contacts were welded together after exposure to a significant
amount of heat. The parties stipulated that the heat required to
melt the contacts causing them to weld together was 1,750 degrees.
Both Hubbell and Woodling introduced testimony to support
their respective theories as to when the defect occurred. The
experts that testified on this issue gave conflicting explanations
as to the most probable cause of the defect. Hubbell’s position
was that the contacts of the switch were welded together at the
time of the accident. Woodling’s expert concluded that the amount
of electricity required to melt the contacts could only have
occurred at the factory.
The switch was made from an automated assembly machine.
Trial testimony revealed that the switches undergo a multiple step
testing process prior to being deemed sufficient. Hubbell’s
engineer, Robert Carlson (“Carlson”) explained the assembly and
testing process of the switches. The final automatic inspection
test consists of ten steps which detects any malfunction or defect
without damage to the switch. There is no dispute that the tests
conducted by Hubbell ordinarily do not generate sufficient heat to
melt the contacts. Step eight, the continuity and dielectric test,
5
verifies that the switch will stop the flow of electricity when the
toggle is in the “off” position. This test subjects the switch to
1,800 volts, and, if there is any problem with a switch at any
stage of the testing, the switch is kicked off the line and placed
in a rejection pile.
Woodling’s expert, George Cassellas (“Cassellas”), concluded
that, more likely than not, the switch contacts were welded
together at Hubbell’s factory and not at the time of the accident.
Cassellas opined that the welding probably occurred through an
anomaly in the testing process. In reference to the dialectic
test, Cassellas explained to the court that a common type of
failure in a high voltage situation is arcing. He defined an arc
as “an ionization of the air gap between the two electrical
contacts...in high voltage...[which] will generate high energy, but
very little current.” It was a high surge of electrical energy
which caused the contacts to become welded rendering the switch on
regardless of the position of the toggle according to Cassellas.
In response to this hypothesis, Carlson explained to the court
that, had there been an arc, it would show “as a continuity on the
tester, and...the tester automatically trips, the part is indicated
as a bad part, and the switch is rejected and kicked off the line.”
However, there was no test performed at Hubbell which would have
indicated whether an arc had occurred after the dialectic test had
it not been removed from the line. The last two steps of the
inspection process do not check for arcing.
6
In concluding that the welding occurred at Hubbell’s factory,
Cassellas explained that the switch had only been installed the
morning of the accident. As a result “[t]here was a very small
window of opportunity for any electrical fault to have occurred
that would have caused the amount of energy necessary...to cause
the welding of the contacts.” Additionally, Cassellas’ conclusion
was based on the fact that there did not appear to be any damage
around the area which would have indicated a short or fault in the
circuit. Cassellas admitted that there was no physical evidence
that an anomaly occurred during manufacture or testing.1 However,
Cassellas concluded that the defect occurred at the factory because
Woodling was not killed or more severely injured and there was no
damage at the site of the accident precluding the possibility that
a surge generating enough heat to weld the contacts occurred at the
time of the accident.
Carlson and Cassellas also based their respective conclusions
as to when the defect occurred on the severity of the shock
suffered by Woodling. Cassellas explained that the amount of
electricity that the human body can sustain without resulting in
death is less than the amount of electricity it would take to weld
the contacts together. Based on the average resistance of the
1
Hubbell has a policy of disposing of documents after ninety
days. Additionally, there was a hurricane in Puerto Rico where
the factory was located which destroyed any documents that were
not disposed of pursuant to this policy.
7
human body to electrical encounters of this sort, Cassellas
concluded that the amount of electricity that went through Woodling
was not enough to weld the contacts regardless of what the maximum
amount of electricity was that could have contacted Woodling. The
amount of electricity necessary to weld the contacts together at
the time of the accident would have killed Woodling.
Carlson opined that there was a parallel path through which
the energy traveled which caused the welding to occur without
killing Woodling. Woodling had a tool in his right hand which he
was using to strip the wire while his left hand was free. He was
also surrounded by metal parts while installing the fixtures.
Carlson testified that his left hand probably came in contact with
something which was grounded providing a ground path for Woodling.
As a result, there was enough energy to weld the contacts without
causing more serious damage to Woodling.
Based on the testimony of Cassellas and Carlson, the district
court concluded that it was “more probable than not under all the
evidence and circumstances that the fusion did occur during the
manufacturing and/or production and/or...inspection process.” We
agree. While Wooding bore the burden of proving that the defect
occurred while under the control of Hubbell, he was not required to
show absolutely that the defect occurred at the factory. We are
mindful that “'Louisiana law does not allow a fact finder to
presume an unreasonably dangerous [condition] solely from the fact
that injury occurred;'” however, the district court did not err in
8
its determination. Krummel v. Bombardier Corp., 206 F.3d 548, 551
(5th Cir. 2000)(quoting McCarthy v. Danek Medical, Inc., 65
F. Supp. 2d 410, 412 (E.D.La. 1999)). “Circumstantial evidence may
be sufficient under the facts of a case to establish a
manufacturing defect for purposes of liability under the LPLA.”
Jurls v. Ford Motor Co., 752 So. 2d 260, 266(La.App. 2 Cir. 1/6/00);
See also Joseph v. Bohn Ford, Inc., 483 So. 2d 934, 940 (La. 1986).
Louisiana imposes liability on the manufacturer of an unreasonably
dangerous product when the characteristic of that product, which
renders it unreasonably dangerous, proximately causes the
complained of injuries. La.R.S. § 9:2800.54(A). A plaintiff must
prove not only causation in fact, but also that the product defect
was "the most probable cause" of the injury. Wheat v. Pfizer, Inc.
31 F.3d 340, 342 (5th Cir. 1994); Brown v. Parker-Hannifin Corp.,
919 F.2d 308, 311 and n. 9, 312 (5th Cir. 1990). Mere proof that
a particular occurrence possibly caused a defect should not be
determinative of an issue of fact. Todd v. State, through Social
Services, 699 So. 2d 35, 43 (La. 1997). However, if “it is
established with reasonable certainty that all other alternatives
are impossible,” such possibilities may be sufficient to establish
causation. Id. It was the duty of the district court, as fact
finder, to determine whether the totality of the evidence, either
direct or circumstantial, was sufficient to show that the fact or
causation sought to be proved was more probable than not. Based on
9
the record, the district court did not err in its determination
that it was more probable than not that the contacts were welded
together during the manufacturing and/or testing process.
A major contention between the parties was whether the switch
was “on” or “off” at the time of the accident. The district
court’s ultimate determination of causation rested on this issue.2
Hubbell’s position that the contacts were welded together at the
time of the accident was dependent on the switch being in the “on”
position. Hubbell’s specifications require the switches to be
installed the European way: toggled down while “on” and toggled up
while “off”. Hubbell contends that the switch was toggled down but
in the “on” position. The district court concluded that the switch
was toggled down in the “off” position based on the testimony of
several witnesses. We agree. The switches were not installed in
the European way. They were installed the American way: toggled up
for “on” and toggled down for “off”. Both Woodling and Bill
Garland testified that they installed the switches the American way
not realizing the specifications required them to be installed the
European way. Because the district court determined that the
switches were off, Hubbell’s causation theory cannot succeed.
2
The district court stated: “[m]y understanding of the
defense theory of the melting of the contacts occurring at the
time of the accident, that that required the switch to be, in
fact, in the on position, and since my finding of fact is that it
was, in fact, in the off position, then the defense theory goes
by the wayside as a result of that.”
10
C. Allocation of Fault
Hubbell submits that the district court’s allocation of 70%
fault to it was clearly erroneous. It argues that the evidence
clearly demonstrated that Woodling’s own negligence caused the
accident. Had he turned the circuit breaker off before commencing
the wiring and tested the switch with the voltage tester, the
accident would have been prevented. Woodling as well as other
witnesses at trial testified that, had he followed the safety
procedures, the accident probably would have been avoided.
The district court’s allocation of fault is a finding of fact
and will not be set aside unless clearly erroneous. Fed.R.Civ.P.
52(a). Due regard is owed to the district court in judging the
credibility of the witnesses. Tokio Marine & Fire Ins. Co., Ltd.
v. FLORA MV, 235 F.3d 963, 970 (5th Cir. 2001). The district court
found Woodling’s comparative negligence to be 30%. This allocation
of fault was based on Woodling’s failure to use a voltage tester as
required by the safety manual to determine whether the wire was
live. The court did not, however, allocate fault for Woodling’s
failure to disengage the circuit breaker before beginning the
wiring work. It is with this determination that Hubbell takes
exception.
The district court did not allocate fault for disconnecting
the circuit because it found, as a practical matter, that Woodling
was not in a position to disconnect the circuit breaker which was
providing electricity to other areas of the platform. Hubbell
11
argues that this conclusion was not supported by the evidence and
that it was in fact possible for Woodling to disengage the circuit
before commencing work. SECO’s safety procedures require employees
to lock out or tag out the electricity when working on a particular
line. To tag out a line is the equivalent of placing a “do not
operate” sign on it to ensure that the line is not turned on.
However, Craig Duplantis, a senior superintendent with SECO,
testified that it is not necessary to tag out a switch when it is
visible and another person is monitoring it. There was a competent
person standing by the switch during the installations which was
the equivalent of a tag out. Additionally, the work was performed
in a room where the door was closed precluding the possibility that
the switch could have accidentally been turned on. The switches
had been installed that morning by Woodling and Garland. They
assumed that the switches were off, and it was safe to proceed.
While safety procedures mandated turning the circuits off before
commencing wiring, the facts indicated that safety procedures were
in place, although concedingly not the most effective. Under the
facts of this case, the district court did not clearly err in its
allocation of fault.
AFFIRMED.
12
13