                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      June 27, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-60163


                             LARRY JAMES,

                                               Plaintiff-Appellee,

                                versus

          CINCINNATI INCORPORATED, an Ohio Corporation,

                                              Defendant-Appellant.



          Appeal from the United States District Court
            for the Southern District of Mississippi
                          (3:03-CV-525)


Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     In this Mississippi diversity action, a jury found in favor of

Larry James on his design-defect claim under the Mississippi

Products Liability Act, MISS. CODE ANN. § 11-1-63 et seq. (MPLA).

Cincinnati Incorporated seeks judgment as a matter of law (JMOL)

and, in the alternative, a new trial or remittitur, claiming, inter

alia, the district court erroneously admitted the testimony of

James’ expert.   AFFIRMED.




     *
       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this opinion should not be published and is not precedent except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.
                                     I.

     In 2001, James was injured at work while operating a press

brake:    a hydraulic machine for forming sheet metal into shapes

dictated by dies placed in the machine.                The press brake was

manufactured     by   Cincinnati    to    the    specifications     of   James’

employer, Hunter Engineering.       Cincinnati delivered and installed

it in 1988.     As delivered, the press brake was not equipped with

certain safeguards for its point of operation:            the point at which

the die contacts the metal.          The machine could be placed into

operation by either a foot switch or dual palm buttons.

     Use of those buttons, by requiring the operator’s hands to be

employed in activating the machine, ensures their removal from the

point of operation.         On the other hand, use of the foot switch

leaves the operator’s hands free, if not otherwise prevented by

safeguards, to be in the point of operation when the die descends.

This is what happened to James, who was aligning a piece of metal

(piece part) in the machine when his hand was caught in the point

of operation.

     Subsequently, Cincinnati assisted Hunter in its safeguarding

the subject press brake with a “light curtain”: a presence-sensing

device utilizing beams of light which, when broken, cause the press

brake to stop.

     James sued Cincinnati in Mississippi state court under the

MPLA,    claiming     the   press   brake       was   defectively   designed.



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Cincinnati removed this action to federal court, based on diversity

jurisdiction.

       In support of his MPLA claim, James intended to present expert

testimony through L.D. Ryan that the press brake was defectively

designed because it had not been manufactured with a light curtain.

Cincinnati moved in limine to exclude that testimony, asserting:

Ryan   was   unqualified;    and   his        testimony    was    unreliable,       and

therefore    inadmissible,       under        Federal    Rule    of   Evidence      702

(testimony by experts) and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993).         The motion was denied; but, the court

did impose some limitations on that testimony.

       The jury found for James on his MPLA claim, awarding him

compensatory    damages     of   $850,000       and     assessing     60%   fault   to

Cincinnati, 30% to Hunter, and 10% to James.                    Cincinnati, having

moved for JMOL at the close of James’ evidence and at the close of

all the evidence, again moved for JMOL, or, alternatively, for a

new trial or a remittitur.         This post-verdict motion was denied.

                                         II.

       Primarily at issue is whether the district court erred in:

admitting Ryan’s testimony; and denying Cincinnati JMOL.                     Also at

issue is whether it erred in denying Cincinnati’s alternative

motion for a new trial or remittitur, in the light of:                              its

refusing a jury instruction requested by Cincinnati; a cross-




                                          3
examination question by James’ counsel; and the amount of the jury

award.    Each contention fails.

                                      A.

     In   deciding      whether   JMOL       should      have   been    awarded,   an

appellate court must consider only admissible evidence. Therefore,

before reviewing the JMOL-denial, the contested admission of Ryan’s

testimony must be addressed.        See Hodges v. Mack Trucks, Inc., 474

F.3d 188, 193 (5th Cir. 2006).

                                      1.

     The admission of expert testimony is reviewed only for abuse

of discretion.    E.g., Guy v. Crown Equip. Corp., 394 F.3d 320, 324-

25 (5th Cir. 2004).       For reversible error, the ruling must affect

a substantial right.         FED. R. CIV. P. 61 (harmless error); FED. R.

EVID. 103(a), (d) (evidentiary rulings); e.g., Guy, 394 F.3d at 324.

Moreover, “[b]ecause a district court has broad discretion in

deciding the admissibility vel non of expert testimony, we will not

find error unless the ruling is manifestly erroneous”.                     Guy, 394

F.3d at 325 (emphasis in original) (citations omitted). “‘Manifest

error’ is one that ‘is plain and indisputable, and ... amounts to

a complete disregard of the controlling law’.”                         Id. (quoting

Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir.

2004)).   For the reasons that follow, there was no manifest error.

     Federal     Rule   of    Evidence       702,   as    amended      post-Daubert,

requires a party seeking to introduce expert testimony to show:

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“(1) [it] is based upon sufficient facts or data, (2) [it] is the

product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the

case”.   FED. R. EVID. 702.        Cincinnati challenges Ryan’s testimony

as unreliable for several reasons, including:             he is a specialist

in neither press brakes nor light curtains; he has previously been

found an unreliable expert witness; he failed to subject his theory

to peer review; he failed to examine the subject press brake or

piece part; and he failed to examine or test any light curtains to

determine, inter alia, if they would have prevented James’ injury.

(It   bears       noting   that,     during   Ryan’s    testimony,     despite

Cincinnati’s numerous challenges to its bases, it objected only

twice.   Moreover, many of those challenges were developed through

its extensive cross-examination of Ryan.)

      “[W]hether a proposed expert should be permitted to testify is

case, and fact, specific”.           Hodges, 474 F.3d at 194.         Ryan, an

engineer with an advanced degree in mechanical engineering and many

years experience in product design, opined, inter alia:                 James’

injury was not caused by a press-brake malfunction, but by his

inadvertently activating the press brake using its foot switch;

accordingly, there was no need to examine the subject press brake;

the   duty   to    safeguard   the   press    brake   should   be   imposed   on

Cincinnati, the manufacturer; and the addition of light curtains

was a feasible design alternative, appropriate for most press-brake


                                        5
operations,    that    would     have   prevented          James’         injury.        In

formulating his opinion, Ryan interviewed James and, inter alia,

reviewed:    depositions of other Hunter employees; pictures of the

subject press brake; Cincinnati’s relevant product literature;

relevant regulations and industry standards; and patents for light

curtains and other press-brake safeguards.

     Among other things, Ryan did not test his proposed design

alternative.     Light    curtains,       which      are   sold       by      third-party

vendors, are specifically listed, however, as a safeguarding option

in Cincinnati’s relevant product literature.                    Along that line, as

noted, subsequent to James’ injury, Cincinnati assisted Hunter in

safeguarding    the    subject    press      brake    with       a    light      curtain.

Accordingly, Ryan’s failure to test is not fatal to his testimony.

See Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997)

(“[t]esting is not an absolute prerequisite to the admission of

expert testimony on alternative designs” (internal quotation marks

omitted)).

                                        2.

     Regarding the JMOL-denial, Cincinnati primarily contends there

was insufficient evidence to establish, as required for an MPLA

design-defect claim:       the product “was designed in a defective

manner”, MISS. CODE ANN. §        11-1-63(a)(i);           or    “there        existed    a

feasible    design    alternative   that      would    have          to   a   reasonable

probability prevented the harm ... without impairing the utility


                                        6
...,   practicality,   or   desirability   of    the   product”,   §   11-1-

63(f)(ii).

       A JMOL-denial is reviewed de novo.       E.g., Hodges, 474 F.3d at

195. JMOL is proper when “a party has been fully heard on an issue

during a jury trial and the court finds that a reasonable jury

would not have a legally sufficient evidentiary basis to find for

the party on that issue”.       FED. R. CIV. P. 50(a)(1) (as amended

effective 1 December 2006); see also FED. R. CIV. P. 50(b) (as

amended effective 1 December 2006) (post-trial JMOL).          All of the

admissible evidence is reviewed, of course; but, we may not make

credibility determinations or weigh evidence.           E.g., Arsement v.

Spinnaker Exploration Co., LLC, 400 F.3d 238, 249 (5th Cir. 2005).

Further, that evidence, and all reasonable inferences from it, are

viewed in the light most favorable to the verdict.          E.g., id.

       Viewed in that light, a reasonable jury could find for James

on the contested MPLA design-defect elements.             In addition to

Ryan’s above-described testimony and Cincinnati’s relevant product

literature, Cincinnati’s expert:       testified that the press brake

had been subsequently safeguarded with a functioning light curtain;

and acknowledged the possibility that an operator’s arm could have

broken the beams of a safeguard light curtain while reaching into

the point of operation during the subject bending operation.




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                                  B.

     Cincinnati contests the denial of its alternative motion for

a new trial or remittitur.      The denial of a new-trial motion is

reviewed for abuse of discretion.       E.g., Whitehead v. Food Max of

Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998).         The remittitur

standard of review is discussed in part II.B.3.

     Cincinnati advances three bases in support of its alternative

claim, each of which is unavailing.       (Because the district court

did not err in denying JMOL, to the extent Cincinnati challenges

the denial of a new trial based on insufficient evidence, such

challenge fails.     See id. (noting our JMOL-denial standard of

review “is far easier to satisfy than” that for denial of a new

trial based on insufficient evidence)).

                                  1.

     Cincinnati contests the district court’s not allowing its

requested     instruction   regarding    intervening   or   superseding

negligence.    Such a refusal is reviewed for abuse of discretion.

Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir.

2004).   An instruction-refusal is reversible error “only if the

[requested] instruction 1) was a substantially correct statement of

law, 2) was not substantially covered in the charge as a whole, and

3) concerned an important point in the trial such that the failure

to instruct the jury on the issue seriously impaired the [party’s]

ability to present a given [defense]”.       Id. (second alteration in


                                   8
original) (internal quotation marks omitted).                 There was no abuse

of discretion.

     Consistent      with      its    claim     that    Hunter    violated      OSHA

regulations by failing to safeguard the press brake, Cincinnati

requested    a    jury   instruction       that    Hunter’s    negligence      could

constitute an intervening or superseding cause of James’ injury,

relieving Cincinnati of liability.                The instruction was refused

because the district court found, as a matter of law:                       Hunter’s

failure to       safeguard    was    not   so   unforeseeable     as   to    relieve

Cincinnati of potential liability.

     The    requested        instruction,       which   focused    primarily      on

foreseeability, was a substantially correct statement of law. See,

e.g., Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.

2002).   Nonetheless, it was covered substantially in the charge as

a whole, which, inter alia:           stated “[n]egligence is a proximate

cause of an injury if it directly, and in natural and continuous

sequence, produces or contributes substantially to producing such

injury”; stated “[a]n element or test of proximate cause is that an

ordinarily prudent person should reasonably have foreseen that some

injury might probably occur”; and allowed the jury, in determining

whether the press brake was defectively designed, to “consider[,

inter alia,] ... [Cincinnati’s] foreseeability that [Hunter] would

not supply proper safety accessories even though aware of the

machine’s danger without them”.


                                           9
                                 2.

     Cincinnati next maintains a new trial should be granted

because of a question by James’ counsel while cross-examining

Cincinnati’s product-safety manager.   Counsel asked the following

about an unrelated, but factually similar, case: “[Y]our company

was assessed damages in the amount of $450,000, were [sic] they

[sic] not?”      The witness responded:    “I don’t know.      Don’t

remember.”      Cincinnati did not object, but now maintains the

question was meant to mislead, prejudice, and confuse the jury.

     As Cincinnati concedes, its not having objected in district

court dictates only plain-error review. E.g., Tompkins v. Cyr, 202

F.3d 770, 779 (5th Cir. 2000); see also FED R. EVID. 103(d).   Under

such review, Cincinnati must show a clear or obvious error that

affected its substantial rights.   E.g., Tompkins, 202 F.3d at 779.

Even then, we retain discretion to correct the error; ordinarily,

we will not do so unless it “would seriously affect the fairness,

integrity or public reputation of judicial proceedings if left

uncorrected”.    Id.

     Needless to say, the question falls far short of constituting

reversible plain error, particularly in the light of: its isolated

nature; the witness’ not confirming the prior verdict; and the jury

instructions, which specified that “any statements ... made by the

lawyers are not evidence in the case” and “what the lawyers say is

not binding upon you”.    See, e.g., Dixon v. Int’l Harvester Co.,


                                 10
754 F.2d 573, 586 (5th Cir. 1985) (where plaintiff’s counsel

requested jury to “send a message”, there was no plain error “[i]n

view of the [statement’s] context ... and the court’s lengthy

instructions to the jury making clear that it was to decide the

case based solely upon the evidence”).

                                   3.

      Finally, Cincinnati contends, particularly in the light of the

above-discussed question by James’ counsel, that the jury award was

against   the   overwhelming   evidence   and   indicated   speculation,

passion, and confusion.

      In reviewing a jury award, we are reviewing the denial of a

motion for a new trial or remittitur.     E.g., Green v. Adm’rs of the

Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002).           “A jury

award is entitled to great deference and should not be disturbed

unless it is entirely disproportionate to the injury sustained.”

Id.

      The award was supported by adequate evidence.         The jury was

presented with:      medical-expenses and lost-wages evidence; and

evidence that James’ injury resulted in a permanent impairment to

his dominant hand.    Further, the jury was instructed to consider,

inter alia, James’ pain and suffering, mental anguish, and loss of

enjoyment of life.




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                         III.

For the foregoing reasons, the judgment is

                                             AFFIRMED.




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