           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 4, 2007

                                       No. 06-30758                   Charles R. Fulbruge III
                                                                              Clerk

PAUL MAZANT, Individually and on Behalf of Kendall Mazant;
JEANNETTE MAZANT, Individually and on Behalf of Kendall Mazant

                                                  Plaintiffs - Appellees
v.

VISIONEERING INC.

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans
                              USDC No. 2:04-CV-57


Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Visioneering, Inc. appeals the district court’s
judgment in favor of plaintiffs-appellees on their Louisiana products liability
action, arguing (1) that the district court abused its discretion in reconciling the
jury’s special verdicts and (2) in the alternative, that the jury’s reconciled verdict
is unsupported by the evidence presented at trial. For the following reasons, we
AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 06-30758

              I. FACTUAL AND PROCEDURAL BACKGROUND
         Plaintiff-appellee Paul Mazant and Jeannette Mazant, individually and
on behalf of Kendall Mazant, filed a personal injury products liability action
against Defendant-appellant Visioneering, Inc. (“Visioneering”) under the
Louisiana Products Liability Act (“LPLA”), LA. REV. STAT. ANN. §§ 9:2800.51-.59,
in Louisiana state court. After removal to federal court, the case proceeded to
trial.
         Paul Mazant, a production supervisor for Lockheed Martin Manned Space
Systems (“Lockheed”), was injured at work when the scaffolding on which he was
standing partially collapsed. Visioneering designed and manufactured the
scaffolding, referred to as the Unit 5 intertank platform, in accordance with a
Statement of Work (“SOW”) that Lockheed provided to Visioneering. The Unit
5 intertank platform was one of five intertank platforms that Visioneering
manufactured at Lockheed’s direction. Lockheed planned to use these intertank
platforms in constructing the external tanks of the space shuttle. The previous
intertank platforms used by Lockheed inside the fuel tank were aluminum
platforms. However, the new intertank platforms were to be designed using
composite materials for the decking of the platform, thus reducing the weight
and quantity of individual parts. Lockheed sent out a Request for Proposal,
requesting a bid for the design and fabrication of five intertank platforms, and
Visioneering was awarded the contract.
         Under the contract, Visioneering was to adhere to the SOW, the document
produced by Lockheed that outlined the design criteria and responsibilities of
the parties for the intertank platform project. Lockheed directed Visioneering
to base its design of the new intertank platforms on the drawings of the old
aluminum intertank platforms. Visioneering drafted the engineering drawings
for the new intertank platforms, and Lockheed participated by providing
recommendations and specifications on different aspects of the design. The

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contract also required Lockheed and Visioneering to document any changes to
the designs, drawings, or specifications of the intertank platforms in the SOW
or through a Change Order. During the course of the intertank platform project,
there were five separate revisions to the original SOW, all of which reflected
changes in the responsibilities of the parties. Change Order No. 1 involved
Lockheed’s authorization of Visioneering to perform a proof-load test on the
Unit 1 intertank platform as part of its design. After approval of the cost, the
SOW was revised to reflect the change in the contract regarding Visioneering’s
responsibility to perform the proof-load test. A proof-load test focuses on the
overall capacity of the intertank platform to support the weight of multiple
workers on multiple levels, simultaneously, whereas a point-load test analyzes
each point of the three levels of an intertank platform to determine the weight
bearing capabilities of all areas of those three levels.        Plaintiffs’ expert
metallurgist, Dr. Thomas Shelton, provided uncontested testimony that had a
point-load test been performed on the Unit 5 intertank platform, Paul Mazant’s
accident would not have occurred. Dr. Shelton testified that the point-load test
should have been performed as part of the design of the intertank platforms and
if it had been performed, Visioneering would have discovered that the failed
panel on the Unit 5 intertank platform had insufficient strength to support the
required loads.
      Visioneering’s corporate representative, Kevin Yakes, whose employment
responsibilities   included   the     intertank    platform   project,   identified
communications in which he recommended the point-load test be performed on
the intertank platforms. On December 19, 2001, Yakes sent an email to a
business Visioneering used for outsourcing design work that documented his
concerns that point-load testing should be discussed as part of the design concept
of the intertank platforms. Yakes also recommended to Lockheed, during the
design phase of the platforms, that the point-load test be performed. Yakes

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testified that he verbally recommended the test to Lockheed. Yakes also emailed
Lockheed on May 23, 2002 stating: “I recommend an FEA (point load of say 250
lbs.) to make sure all is good. Need your direction to quote that as part of the
SOW.” In response, Larry Cooper of Lockheed forwarded an email simply
stating “Agree” in reference to the point-load test recommendation. Cooper
testified that this response to the Yake’s email recommendation for point-load
testing was an agreement by Lockheed to perform the testing, prompting
Visioneering to submit a Request for Action (“RFA”) and a cost quote to
Lockheed. Visioneering failed to submit either the RFA or cost quote for point-
load testing. In fact, Yakes could not recall any follow-up actions he took with
regard to this email exchange, and prior to Paul Mazant’s accident, neither
Lockheed nor Visioneering had performed the point-load test.
      At trial, Paul Mazant argued that his injury was the result of an
unreasonably dangerous design defect in the Unit 5 intertank platform that
Visioneering manufactured. Specifically, Visioneering’s defective design of the
Unit 5 intertank platform included the use of cantilevered decking panels that
were inadequately supported and the failure to conduct the proper point-load
testing that would have detected this inadequate support. Visioneering argued
that the design specifications, and therefore, any defect regarding the design of
the Unit 5 intertank platform, were solely in Lockheed’s control by the SOW.
Moreover, Visioneering argued that Lockheed’s failure to conduct a point-load
test on the Unit 5 intertank platform was an intervening and superceding cause
of Paul Mazant’s injuries, precluding the plaintiffs’ recovery from Visioneering.
      The jury returned a special verdict finding that the Unit 5 intertank
platform involved in Paul Mazant’s injury was unreasonably dangerous by
design but not unreasonably dangerous in either composition or construction.
Additionally, the jury found that “the failure to perform point[-]load testing on
[the] Unit 5 intertank platform prior to [the] accident was a superceding or


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intervening cause of the existence of any unreasonably dangerous condition of
the Unit 5 intertank platform that proximately caused plaintiffs’ injuries,” and
that both Visioneering and Lockheed failed to perform the point-load test.
Finally, the jury apportioned fault, finding Visioneering 30% at fault for causing
Paul Mazant’s injuries and Lockheed 70% at fault.
      In briefing filed with the court after the jury’s verdict, the plaintiffs
contended that the court should enter judgment in their favor and against
Visioneering for 30% of the total damages awarded.          Visioneering filed a
proposed judgment and contended that the jury’s finding of an intervening cause
necessitated a complete verdict in its favor. The district court entered judgment
in favor of the plaintiffs and against Visioneering in the amount of $297,404.40,
or 30% of the total damage award of $931,348.00, plus interest. The court
upheld the jury’s apportionment of fault, stating:
            [Visioneering] considered point-load testing necessary
            and brought it to Lockheed Martin’s attention. Even
            with the ambiguities surrounding whether Lockheed
            Martin subsequently authorized such testing, given the
            potential harm that could arise from a panel section
            giving away and that [Visioneering] was using a new
            material in construction based on a former design, the
            jury found, based on evidence, that [Visioneering]
            should have performed the testing as part of the design.
            Further the jury’s verdict is based on evidence that
            point-load testing was unreasonably delayed due to
            disagreement and confusion between [Visioneering] and
            Lockheed concerning authorization. The jury’s verdict
            reasonably considered [Visioneering] and Lockheed
            Martin’s conduct to be significant and comparative roles
            in causing this accident. Accordingly, the judgment will
            be entered based on the jury’s findings.

R. 881-82 (emphasis added).




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      Visioneering filed a timely notice of appeal. The district court granted
Visioneering’s unopposed motion to stay the enforcement of the judgment,
pending appeal.
                                II. DISCUSSION
A.    Whether Jury’s Special Verdicts May Be Reconciled
      Visioneering argues that a finding by the jury that there was a
superceding or intervening cause of the accident, namely the failure to perform
point-load testing on the Unit 5 intertank platform, conflicts with the jury’s
finding that Visioneering was 30% at fault and precludes entry of judgment
against Visioneering.
      Visioneering also contends that if the jury’s 30% fault allocation is
premised on Visioneering’s failure to perform the point-load test, that failure is
based on a theory of negligence, which is precluded by the LPLA. Specifically,
since the LPLA provides the exclusive theories of liability for manufacturers for
damage caused by their products, liability based on a negligence claim is not
permitted. Visioneering notes a passage in the district court’s opinion as support
for its proposition. The court stated, “Defendant was found negligent for failing
to perform point-load testing of the product before releasing it into use.”
      “We are required under the Seventh Amendment to make a concerted
effort to reconcile apparent inconsistencies in answers to special verdicts if at all
possible.” Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 343 (5th Cir. 2001) (quoting
Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962);
Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973)). Thus, “courts ‘must
attempt to reconcile the jury’s findings, by exegesis, if necessary, before we are
free to disregard the jury’s verdict.’” Id. (citing Gallick v. Balt. & Ohio R.R., 372
U.S. 108, 119 (1963); Mercer v. Long Mfg. N.C., Inc., 665 F.2d 61, 65 (5th Cir.
1982)).



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             We must ask whether the answers may fairly be said to
             represent a logical and probable decision on the
             relevant issues as submitted, even though the form of
             the issue or alternative selective answers prescribed by
             the judge may have been the likely cause of the
             difficulty and largely produced the apparent conflict.
             Only if there is no view of the case that will make the
             jury’s answers consistent may we set aside its decision.

Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) (citations
omitted)).
      “In considering whether the seemingly inconsistent verdicts may be
reconciled, the court must view the evidence in the light most favorable to
upholding the jury’s decision by a finding of consistency.” Id. (citing Hiltgen v.
Sumrall, 47 F.3d 695, 701 (5th Cir. 1995)). In addition, “the special verdicts
‘must be construed in light of the surrounding circumstances’ of the case.” Id.
(quoting Wright v. Kroeger Corp., 422 F.2d 176, 178 (5th Cir. 1970); Davis v. W.
Cmty. Hosp., 755 F.2d 455, 465 (5th Cir. 1985)). The “constitutional mandate to
create consistency requires that we look beyond the face of the interrogatories
to the court’s instructions as well.” Carr v. Wal-Mart Stores, Inc., 312 F.3d 667,
672 (5th Cir. 2002) (quoting Alverez v. J. Ray McDermott & Co., 674 F.2d 1037,
1040 (5th Cir. 1982)).     Overall, the district court has wide discretion in
determining whether the jury’s answers are clear.         Id. (citing Richard v.
Firestone Tire & Rubber Co., 853 F.2d 1258, 1260 (5th Cir. 1988)).
      In this case, the district court’s jury instructions, to which neither party
objected at trial, included the following on superceding and intervening causes:
             A manufacturer is not liable for damages brought about
             by a later intervention of a separate, independent,
             superseding cause. Where an accident results from two
             negligent acts, one more remote and one an intervening
             cause, the presence of the intervening cause prevents a
             finding of liability on the one responsible for the more
             remote cause.

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R. 792 (emphasis added). However, the interrogatories the jury answered
regarding superceding and intervening causes were phrased differently, and
once again, neither party objected to their submission during trial.1                      In
interrogatory 5,2 the jury was asked whether the failure to perform the point-
load test was a superceding or intervening cause of Paul Mazant’s accident, to
which the jury answered yes.                Immediately following this question, in
interrogatory 5(a), the jury was asked whether point-load testing was a failure
by either or both Visioneering and Lockheed, and the jury answered both. The
combination of interrogatory 5 and 5(a) left open the possibility for the jury to
find that the failure of the point-load test by Lockheed was an intervening cause
of the accident but not a separate, independent, superseding cause that would
vitiate Visioneering’s liability, specifically because Visioneering was also at fault
for failing to conduct the same point-load test.
       Moreover, viewing the evidence in the light most favorable to upholding
the judgment by reconciling the verdicts, we conclude that the jury reasonably
could have found that Visioneering was at fault for failing to conduct the point-
load test on the Unit 5 intertank platform. A reasonable jury could have
determined from the evidence in the record that Visioneering shouldered part
of the design responsibility for the intertank platform project, and this
responsibility included the performance of the point-load test. Visioneering bid
on Lockheed’s contract to design and fabricate the intertank platform units.



       1
         Visioneering merely commented on interrogatory 5, which it self-authored, but did not
specifically object to the language used.
       2
           Interrogatory 5 asked:
                 Did [Visioneering] prove by a preponderance of the evidence that
                 the failure to perform pointload testing on Unit 5 intertank
                 platform prior to Paul Mazant’s accident was a superceding or
                 intervening cause of the existence of any unreasonably dangerous
                 condition of the Unit 5 intertank platform that proximately
                 caused plaintiffs’ injuries?

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Visioneering was directed to base its design of the new intertank platforms on
the drawings of the old aluminum intertank platforms. Even though Lockheed
participated by providing recommendations and specifications on different
aspects of the design, Visioneering drafted the engineering drawings for the new
intertank platforms.
      Plaintiffs’ expert Dr. Shelton provided testimony that the necessary point-
load test should have been conducted by Visioneering during the design of the
intertank platforms. We note from the record that the design process of the
intertank platforms was, to some extent, an ongoing process; modifications of the
design occurred over a considerable period of time. Kevin Yakes, Visioneering’s
corporate representative whose responsibilities included Lockheed’s intertank
platform project, suggested including point-load testing in the design of the
intertank platforms in two separate emails. Yakes sent an email concerning
point-load testing to a business Visioneering used for outsourcing some of its
design work. He sent another email to Lockheed recommending that point-load
testing be part of the design phase of the intertank platform project. Lockheed
presented evidence that it agreed to the recommendation for point-load testing
of the intertank platforms via email but that Visioneering failed to submit the
RFA and cost quote that were required for authorization of the point-load test.
      Finally, although there was undisputed evidence that the SOW did not
provide for point-load testing, some evidence was presented that Visioneering
may not have had to rigidly comply with Lockheed’s SOW. For example, at one
point Visioneering ordered its composite supplier to strengthen one of the
intertank platforms, an order which was not outlined in the SOW or any
revisions thereof. On this evidence, the jury could reasonably have concluded
that Visioneering should have performed the point-load test as part of the design
of the Unit 5 intertank platform, and that the failure to perform the point-load
test resulted in a design defect under the LPLA that proximately caused Paul

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Mazant’s injuries.    Since the jury’s special verdicts may fairly be said to
represent a logical and probable decision on the relevant issues as submitted,
even though the form of the issue or answers prescribed by the judge may have
produced an apparent conflict, we are not free to disregard the verdict. See Ellis,
258 F.3d at 343.
      The foregoing reconciliation of the jury’s verdict is also consistent with
Louisiana law. Under the LPLA, a manufacturer is liable only if the claimants
establish that the product defect proximately caused the plaintiff’s damage. LA.
REV. STAT. ANN. § 9:2800.54(A); Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir.
1994). Proximate cause demands more than a cause-in-fact relationship; there
must also be a substantial connection between the defendant’s actions and the
plaintiff’s damages. See Wheat, 31 F.3d at 342 (explaining that “[a] plaintiff
must prove not only causation in fact, but also that the product defect was ‘the
most probable cause’ of the injury”) (citation omitted).        In Louisiana, the
strength of this causal connection hinges on a duty-risk analytical framework,
namely whether a manufacturer’s duty to provide a safe product encompasses
the risk resulting in the plaintiff’s harm. Ford v. Pennzoil, 974 F. Supp. 559, 566
(E.D. La. 1997). See also Younger v. Marshall Indus., 618 So. 2d 866, 872-73 (La.
1993) (choosing to apply a duty-risk analysis in determining the extent of a
party’s liability); Mitchell v. Fid. & Cas. Co., 488 So. 2d 1089, 1091 (La. Ct. App.
1986); Carter v. City Parish Gov’t, 423 So. 2d 1080, 1087 (La. 1982). The
superceding cause doctrine is a related facet of proximate causation. Ford, 974
F. Supp. at 566. Under that doctrine, a tortfeasor is not liable for damages
brought about by a later, separate, independent, intervening cause, even though
the tortfeasor’s conduct may have created the original peril. Id. Therefore, a
manufacturer of an unreasonably dangerous product will be relieved of liability
only if an intervening cause superseded the original negligence and alone
produced the injury. Masters v. Courtesy Ford Co., 758 So. 2d 171, 193 (La. Ct.

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App. 1999) (emphasis added), judgment vacated on other grounds, 765 So. 2d
1055 (La. 2000). See also Mendoza v. Mashburn, 747 So. 2d 1159, 1168 (La. Ct.
App. 1999); Domingue v. State Dep’t of Pub. Safety, 490 So. 2d 772, 775 (La. Ct.
App. 1986). However, foreseeable intervening forces are within the scope of the
original risk and, therefore, will not relieve the manufacturer of liability.
Masters, 758 So. 2d at 193.
      Under Louisiana’s duty-risk model, the district court concluded that
finding Visioneering 30% at fault did not conflict with the jury’s special verdict
that failure to perform a point-load test was an intervening cause of the accident.
Specifically, Visioneering’s duty under the LPLA to provide intertank platforms
without any unreasonably dangerous characteristics in design included the
foreseeable risk that Lockheed would subsequently fail to perform the necessary
point-load test, and that failure would lead to Paul Mazant’s injury. Evidence
at trial revealed that Visioneering knew of the significance of the point-load test
during the design phase of the intertank platforms and recommended it to
Lockheed. However, the communications between Visioneering and Lockheed
created ambiguity as to which would perform the test.                Additionally,
Visioneering failed to seek proper authorization from Lockheed for the testing
after Lockheed seemingly agreed to it. Based on the evidence presented at trial,
the jury’s comparative fault and intervening cause findings, and the resulting
liability of both Visioneering and Lockheed, are consistent with Louisiana law.
See LA. CIV. CODE ANN. art. 2323 (providing that “[i]n any action for damages
where a person suffers injury, death, or loss, the degree or percentage of fault of
all persons . . . shall be determined”) (emphasis added).
      Furthermore, the “ways of establishing that a product is unreasonably
dangerous [under the LPLA] are predicated on principles of strict liability,
negligence, or warranty.” Jefferson v. Lead Indus. Ass’n, 106 F.3d 1245, 1251
(5th Cir. 1997) (emphasis added). As Visioneering contends, its failure to

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perform the point-load test may have been predicated on “negligence,” but this
“negligence” occurred in the design phase, creating an unreasonably dangerous
product under the LPLA. Therefore, the plaintiffs did not prevail based on a
separate claim of negligence, apart from the LPLA, but instead under the LPLA
by proving that the point-load test should have been performed as part of the
design of the Unit 5 intertank platform. See id. (observing that under the LPLA,
“neither negligence, strict liability, nor breach of an express warranty is any
longer viable as an independent theory of recovery against a manufacturer”)
(emphasis added).
      In sum, because there is a view of the case which makes the jury’s answers
consistent, the district court did not abuse its discretion in entering judgment
for the plaintiffs. See Griffin, 471 F.2d at 915; Atl. & Gulf Stevedores, 369 U.S.
at 364; Gallick, 372 U.S. at 119.
B. Whether Jury’s Verdict is Supported by Evidence
      Visioneering alternatively argues that there was no evidence at trial to
support a finding by the jury that Visioneering should have performed the point-
load test as a part of the design of the intertank 5 platform, specifically because
Lockheed controlled the design of the intertank platforms through its SOW.
      “The standard for appellate review of a jury’s verdict is exacting." Hiller
v. Mfrs. Prod. Research Group of N. Am., 59 F.3d 1514, 1522 (5th Cir. 1995)
(quoting Chem. Distrib., Inc. v. Exxon Corp., 1 F.3d 1478, 1483 (5th Cir. 1993)).
We must uphold the verdict unless the evidence and inferences point so
overwhelmingly in favor of one party that reasonable individuals could not reach
any contrary verdict. Id. (citation omitted). “If there is evidence of such quality
and weight that reasonable and fair minded [individuals] in the exercise of
impartial judgment might reach different conclusions, the jury function may not
be invaded.” Id. Even if we, as the trier of fact, may have come to a different
conclusion, we cannot re-evaluate credibility of witnesses nor re-weigh the

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evidence. Rideau v. Parkem Indus. Serv., Inc., 917 F.2d 892, 897 (5th Cir. 1990)
(citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1559 (5th Cir. 1985)).
      As we previously concluded, based on the record evidence and reasonable
inferences drawn from that evidence, the jury could reasonably have found that
Visioneering should have performed the point-load test as part of the design of
the Unit 5 intertank platform and that its failure to perform the point-load test
resulted in a design defect under the LPLA that proximately caused Paul
Mazant’s injuries. We therefore will not disturb the jury’s verdict.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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