                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                               _______________

                                  No. 96-30885
                               Summary Calendar
                                _______________



                                 JOSEPH OWENS
                                      and
                             DEBRA LOOMAS OWENS,

                                                   Plaintiffs-Appellants,

                                     VERSUS

                     RHEEM MANUFACTURING COMPANY;
                   RUUD MANUFACTURING CORPORATION,
             a division of Rheem Manufacturing Company;
                       CITIZENS UTILITY COMPANY,
          doing business as Louisiana Gas Service Company;
                                  and
                       WAUSAU INSURANCE COMPANY,

                                                   Defendants-Appellees.


                         _________________________

             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                               94-CV-3078
                       _________________________


                           June 4, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*



      Joseph and Deborah Loomas Owens (collectively, “Owens”) appeal

      *
        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should not be published and is not precedent except under the limited circumstances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.
an adverse jury verdict in their products liability and negligence

actions against Rheem Manufacturing Company, Ruud Manufacturing

Company, and Wausau Insurance Company (collectively, “Rheem”) and

Citizens   Utility   Company   d/b/a    Louisiana    Gas   Service   Company

(“LGS”).   Finding no error, we affirm.



                                   I.

     Owens brought this action against Rheem pursuant to the

Louisiana Products Liability Act, LA. REV. STAT. ANN. § 9:2800.51

et seq. (West 1991), alleging that the water heater manufactured by

Rheem was defective because of Rheem’s failure to attach to the

heater an adequate warning label and because of the heater’s

unreasonably dangerous design.         Owens also alleged that, because

LGS knew that the heater was so defective, it acted negligently in

connecting gas service to the water heater.         Other parties to this

action were dismissed via summary judgment, from which decision

Owens does not appeal.

     The relevant facts are not in dispute. Owens acquired a house

in May 1989 and tore down the detached garage, in which the water

heater had been stored, prior to moving in.            To house the water

heater, Owens   constructed    a   three-sided      make-shift    structure,

approximately 4'x 4', in the center of his backyard.             In November

1989, LGS conducted its customary appliance turn-on procedures and,

after finding no defective conditions, initiated gas service for



                                    2
the house.   LGS did not, however, light the water heater pilot, as

there were no water pipes connected to the heater.

     Shortly after the LGS inspection, Owens began constructing a

beauty salon for his wife in the location that had previously

housed the now-demolished garage. Owens completed the salon in the

summer of 1990 and moved the water heater from its temporary

location in the make-shift structure into a utility room inside the

new structure.    Without the aid of LGS, Owens re-connected the

plumbing and gas lines to the heater and lit the pilot.   The heater

remained in this location until the date of the accident giving

rise to this action.

     In June 1994, Owens decided to replace the existing vinyl tile

flooring in the beauty salon with ceramic tile.     After the vinyl

tile had been removed, various spots of glue residue and vinyl tile

backing remained on the concrete floor.     To remove the residue,

Owens applied gasoline to the concrete floor.     After he had done

so for approximately twenty minutes, the water heater ignited in a

flash-fire explosion.    Owens suffered second- and third-degree

burns to roughly fifty-five percent of his body.

     Owens filed the instant action in Louisiana state court, and

the defendants removed to federal court.   After a four-day trial,

the jury exonerated Rheem and LGS, finding Owens 100% at fault.



                                II.



                                 3
     Owens contends that the district court erred with respect to

several evidentiary rulings and to the jury instructions.         We

review a ruling to exclude evidence for abuse of discretion.      See

Polanco v. City of Austin, 78 F.3d 968, 982 (5th Cir. 1996).      We

will not reverse evidentiary rulings unless they are erroneous and

result in substantial prejudice. See Federal Deposit Ins. Corp. v.

Mijalis, 15 F.3d 1314, 1318-19 (5th Cir. 1994).        To determine

whether an erroneous ruling is prejudicial, we review the record as

a whole.   See Polanco, 78 F.3d at 982.

     We review jury instructions to determine whether, as a whole,

they state the law accurately and completely. See Banc One Capital

Partners Corp. v. Kneipper, 67 F.3d 1187, 1192 (5th Cir. 1995).    To

succeed on a challenge to jury instructions, the proponent must

demonstrate first that the charge as a whole creates “'substantial

and ineradicable doubt whether the jury has been properly guided in

its deliberations.'”    Mijalis, 15 F.3d at 1818 (citation omitted).

Second, even if the instructions were erroneous, we will not

reverse if we determine that, based upon the record as a whole, the

challenged instruction could not have affected the outcome of the

trial.     See id.   As a threshold matter, the challenger must

demonstrate that the requested instruction is itself a correct

statement of the law.     See Mooney v. Aramco Servs. Co., 54 F.3d

1207, 1216 (5th Cir. 1995).




                                  4
                                           A.

       Owens argues that the district court erred in excluding

documentary evidence consisting of memoranda and reports of the

United States Consumer Products Safety Commission (“CPSC”) that

detailed an on-going investigation of the ignition of flammable

vapors by gas-fired water heaters.                  Owens did not proffer the

evidence for the truth of the matters asserted, but rather to

demonstrate Rheem’s knowledge of the extent and severity of the

problems experienced by many gas-fired water heaters. According to

Owens, such proof of knowledge was relevant to its claim under LA.

REV. STAT. ANN. § 9:2800.57(C), which provides:

       A manufacturer of a product who, after the product has
       left his control, acquires knowledge of a characteristic
       of the product that may cause damage and the danger of
       such characteristic, or who would have acquired such
       knowledge had he acted as a reasonably prudent manufac-
       turer, is liable for damage caused by his subsequent
       failure to use reasonable care to provide an adequate
       warning of such characteristic and its danger to users
       and handlers of the product.


       We disagree that this was relevant.             First, Rheem stipulated

that flammable vapors could be ignited by a gas water heater and

that it was aware of this fact as early as 1975, the year in which

the   water   heater     at   issue   was       manufactured.     Thus,   Rheem’s

knowledge of the dangers inherent in its product, as confirmed by

the CPSC memoranda, was never a contested issue.

       Second, § 9:2800.57(C) is inapposite to Owens’s legal claims,

as    subsection   (C)    applies     to    those    situations   in   which   the


                                           5
manufacturer of a product becomes (or should have become) aware of

a hazardous condition after the product has left its control.

Rheem stipulated that it was aware of any hazards before the

product left its control in 1975.       Subsection (A), which applies to

unreasonably dangerous conditions of which the manufacturer is

aware “at the time the product left its manufacturer’s control,”

provides the appropriate cause of action.

     For   substantially   the   same    reasons,   we   dismiss   Owens’s

challenge to the failure to instruct the jury regarding sub-

section (C). Given the fact that Rheem stipulated to its knowledge

regarding the hazards of the gas-fired water heaters as early as

1975, the court’s instructions accurately and completely conveyed

the applicable law.



                                   B.

     Owens contends that the district court erred in excluding two

video tapes that were offered to demonstrate, pursuant to LA. REV.

STAT. ANN. § 9:2800.56(1), the feasibility of two alternative

designs to the heaterSS18" stands and sealed combustion chambers.

The tapes were not intended to depict circumstances substantially

similar to those of the instant accident, but were offered as

evidence of alternative feasible designs only.

     Again, Rheem stipulated that putting the water heater on 18"

stands would lessen the chance of ignition in some circumstances.


                                   6
Rheem did not contest, therefore, that there existed an alternative

design that was capable of preventing the claimant’s damage. Rheem

did argue, however, that, because of the amount of gasoline vapors

present during Owens’s treatment of the concrete floor, the use of

an   18"   stand    would    not   have   prevented     the   instant   accident.

Because, as Owens admitted, the tapes did not depict circumstances

substantially similar to those of the instant accident, they were

relevant to suggest alternative feasible designs onlySSan uncon-

tested     issue   at   trialSSbut    not      to   contest   Rheem’s   proximate

causation argument.




                                          C.

       Owens avers that the district court erred in failing to

instruct the jury that, if it found that the water heater lacked a

warning label, the heater was unreasonably dangerous as a matter of

law.     In support of this instruction, Owens relies upon Toups v.

Sears, Roebuck & Co., 507 So. 2d 809 (La. 1987).

       Because     we   do   not   believe     that   Owens’s   proffered   jury

instruction is a correct statement of law, we find no error.                 See

Mijalis, 15 F.3d at 1318.          The Toups court did not conclude that as

a matter of law the failure to have a warning label on a heater is

per se unreasonably dangerous, but rather concluded that “the

numerous trial errors here resulted in a jury verdict that was


                                          7
clearly wrong.”       507 So. 2d at 819.       Among those errors were

(1) the court’s failure to allow evidence demonstrating that the

manufacturer knew of the dangers inherent in the water heater,

which   knowledge     the   manufacturer   denied   at    trial;    (2)   the

instruction on contributory negligence, which, the court deter-

mined, was inappropriate in light of the fact that the victim was

three years old and that any contributing carelessness of his

twelve-year-old brother fell short of negligence; (3) the instruc-

tion that a product seller is not presumed to know of any latent

defects; and (4) the court’s “simplistic jury charge that a design

is not defective if reasonable care is taken in its adoption.”            Id.

at 817-19.

     Although   the    instant   case    involves   a    similar   explosion

resulting from gasoline fumes being sucked into a water heater, the

similarities with Toups go no further.          Toups involved a three-

year-old childSSwho was incapable of reading a warning and whose

recovery, the court concluded, could not have been reduced by any

contributory negligence of his own or othersSSwho was injured when

a water heater, which been stored continuously from its purchase

and installation in a shed also housing gasoline and a lawn mower,

was ignited by fumes emanating from the lawn mower.           In contrast,

the victim in the instant case was a knowledgeable adult whose

purposeful use of gasoline as a solvent caused an explosion in the

water heater, which heater had been moved (subsequent to its


                                     8
initial installation and inspection) by the victim from a self-

contained storage shelter to the beauty salon that he was con-

structing in his backyard.   Given the distinguishing characteris-

tics of Toups, it would have been erroneous “to use a legal

determination by one court to inculpate these defendants when the

case turns on the [substantially dissimilar] facts.”



                                D.

     Owens urges that the district court misconstrued the duties

imposed on a natural gas supplier under Giordano v. Rheem Mfg. Co.,

643 So. 2d 492, 496 (La. App. 3d Cir. 1994), which error caused the

court to exclude otherwise admissible evidence and to give the jury

faulty instructions.   According to Owens, Giordano places upon a

natural gas supplier a continuing duty to discover a defect in the

customer’s wiring or equipment for as long as the company continues

to supply natural gas to the customer.   Thus, evidence demonstrat-

ing LGS’s knowledge from November 1989 until June 1994 (the period

of its supply of natural gas to Owens’s home) of the dangers

inherent in failing to elevate the heater 18" off the ground or to

provide a flammable vapors warning on the heater should have been

admitted.   LGS concedes that Giordano governs but argues that its

duty to discover defects ends after the initiation of gas service

to the home.

     We agree with LGS; nothing in Giordano imposes upon a natural


                                 9
gas supplier a continuing duty to discover defects.        In fact,

Giordano compels the opposite:

     [The natural gas supplier] was under no duty to discover
     and warn the Giordanos of a design defect in the hot
     water heater. This duty rests with the manufacturer who
     is in a better position to discover such defects. . . .
     The accident, which occurred nearly seven months later,
     was not in any way related to [the natural gas sup-
     plier’s] presence at the Giordano home on September 28,
     1990 for purposes of turning on natural gas service.”

Id. at 497.

     As was the case in Giordano, it is undisputed that, when LGS

arrived at the Owens’s home in November 1989 to initiate gas

service, there were no defects in the operation of the water

heater, nor was the heater stored in such a manner as to create a

dangerous condition. Rather, the heater was stored at that time in

a small shed in Owens’s backyard, and nothing else occupied the

shed.   It was Owens who later moved the heater to the beauty salon,

without the knowledge of LGS, and caused the explosion by using

gasoline to clean the salon floors.     Hence, as in Giordano, the

accident, nearly five years after LGS’s initial installation and

inspection of the heater, was not in any way related to LGS’s

presence at Owens’s home in November 1989.



                                 III.

     Owens contends that the district court erred in granting LGS’s

motion for judgment as a matter of law (“j.m.l.”) with respect to

his prayer for punitive damages against LGS.     Given that we have

                                  10
found no error on the question of liability, we need not address

this issue.

     AFFIRMED.




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