                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that this opinion should not be published and is not precedent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.




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