                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                      __________________________

                             No. 02-30035
                           Summary Calendar
                      __________________________


R.H. CROMWELL,
                                   Plaintiff-Appellee-Cross-Appellant

versus

WAL-MART STORES, INC., etc., ET AL,
                                                               Defendants


WAL-MART STORES, INC., doing business as Sam’s Wholesale Club;
KLI, INC., formerly known as Keller Ladders, Inc.,

                                Defendants-Appellants-Cross-Appellees

         ___________________________________________________

           Appeals from the United States District Court
      For the Western District of Louisiana, Monroe Division
                           (No. 99-0480)
        __________________________________________________

                          August 9, 2002
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

     A jury awarded plaintiff R.H. Cromwell approximately $200,000

in damages for injuries he suffered in a fall from a stepladder

manufactured by defendant KLI, Inc. and sold by defendant Wal-Mart

Stores, Inc. The District Court granted defendants’ motion for a

remittitur,    reducing   the   award   by   almost   half,   or   in   the


     *
      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this opinion should not be published and is not precedent except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.
alternative, new trial. In this appeal, defendants challenge the

trial court’s decision to admit testimony from plaintiff’s expert

and the sufficiency of the evidence at trial. Plaintiff challenges

the remittitur and the sufficiency of the evidence supporting his

comparative fault. We find no reversible error on either challenge

and AFFIRM for the foregoing reasons.

           I. Background Facts and Procedural History

     While welding a shed from atop a fiberglass stepladder on

February 12, 1998, Cromwell fell to the ground, became entangled in

the stepladder, and injured his shoulder. A rivet attaching a

spreader bar to the corresponding front rail had torn through the

rail. He brought this lawsuit against defendants, alleging that the

ladder was defectively designed. Cromwell’s expert, mechanical

engineer Dr. Leighton Sisson, submitted a report and testified that

the ladder twisted in a counter-clockwise direction (viewed from

above). In other words, the rear rails shifted with respect to the

front rails, a phenomenon known as “racking.” Sisson testified that

the racking was caused by a defective joint connecting the spreader

bar to the front rail; that the portion of the front rail connected

to the joint was bearing too much weight; and that the defect could

be remedied by either fitting the joint with a larger washer, to

spread to load, or by thickening the rail.

     The jury found that plaintiff’s injuries warranted $300,000 in

general damages and $27,185.47 in medical expenses. But, they also

determined that Cromwell was 35 per cent at fault and reduced his

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award accordingly. The trial judge ordered a remittitur, lowering

the general damages amount to $150,000, or in the alternative, a

new trial. Plaintiff did not respond and the remittitur took

effect.

                         II. Expert Testimony

     Expert opinion testimony is admissible if it is helpful to the

jury in understanding the evidence or determining a fact in issue.

FED. R. EVID. 702. Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Phamaceuticals, Inc., 509 U.S. 579 (1993) establish

that federal trial judges are to serve as gatekeepers by excluding

the testimony of experts offering “junk science.” In particular,

the trial judge must consider whether “(1) the testimony is based

upon sufficient facts or data, (2) the testimony 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.

     We reverse the admission of expert testimony only for abuse of

discretion. See Rushing v. Kansas City Southern Ry. Co., 185 F.3d

496, 505   (5th   Cir.   1999).   “A       trial   court’s   ruling   regarding

admissibility of expert testimony is protected by an ambit of

discretion and must be sustained unless manifestly erroneous.”

Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir. 1995)

(quoting Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109

(5th Cir. 1991)).


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       Appellants assert that it was an abuse of discretion to

qualify Sisson as an expert because he had never worked in the

ladder-making industry and had never published research on ladders

or    ladder   joints.     The   trial   judge       concluded     that   Sisson,       an

engineering         consultant   and   former        engineering    professor,      was

qualified      to    evaluate    the   relatively        simple    structure       of   a

stepladder.     Sisson     testified     that    he     had   designed      mechanical

components far more complicated than stepladders. Qualifying Sisson

as an expert was not an abuse of discretion.

       Appellants argue that it was abuse of discretion to admit

Sisson’s testimony, over objection, because Sisson did not perform

any tests on the accident ladder (because it was broken) nor other

ladders of the same make. Accordingly, he could not have known

whether the force of Cromwell’s weight could have cause the break,

or whether it must have been some other, greater force. In other

words, appellants argue that Sisson improperly “assumed that the

bar rivet was torn through the rail while Cromwell was standing on

the    ladder.”       However,   experts       are    permitted     to    assume    the

underlying facts that form the basis for their opinions. See

Daubert, 509 U.S. at 592 (“[A]n expert is permitted wide latitude

to offer opinions, including those that are not based on firsthand

knowledge      or    observation.”).     Sisson’s       report     states    that   his

conclusions are based on Cromwell’s own statements, indicating,

quite properly, that his conclusions assume that Cromwell was atop


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the ladder when it fell—— a fact the jury apparently believed from

the other testimony.

       Appellants also assert that it was an abuse of discretion to

admit the testimony of Sisson, over objection, once it became known

that Cromwell had changed his account of the facts. At trial,

Cromwell gave a different account of his position on the ladder

than    he   had   given   at   his   deposition.    Cromwell     admitted   his

reassessment, and defendants’ counsel exploited that fact on cross-

examination.       Appellants    assert     that    Cromwell’s    story-change

triggered a duty, under Federal Rule of Civil Procedure 26(e), to

amend   Sisson’s     report;    and   since   it    never   was   amended,   his

testimony should have been excluded, as required by Federal Rule of

Civil Procedure 37(c). Review of the record reveals that Sisson’s

assessment that the stepladder was defective did not depend on the

exact position of the defendant or the stepladder. His report and

testimony were consistent in concluding simply that excessive

racking had occurred. It was up to the jury to determine, looking

to other evidence, whether Cromwell was on the ladder, and whether

he had put himself in a dangerous position. We find no abuse of

discretion in the trial court’s overruling defendants’ objections

to Sisson’s testimony.

                     III. Sufficiency of the Evidence

       Appellants argue that there was insufficient evidence to

support the jury’s award, and that the trial judge should have

granted a post-trial judgement as a matter of law, or a new trial.

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We review a sufficiency of the evidence challenge for abuse of

discretion. Dixon v. Int’l Harvester Co., 754 F.2d 572, 586 (5th

Cir. 1985).    “We review ‘the evidence in its strongest light in

favor’ of the plaintiffs, giving them ‘the advantage of every fair

and   reasonable   inference      which   the   evidence    justifies.’”      See

Bartley v. Euclid, Inc., 180 F.3d 175, 179 (5th Cir. 1999) (en

banc) (citations omitted).

      It was reasonable for the jury to believe Cromwell’s testimony

that the ladder buckled from under him. And it was also reasonable

for   the   jury   to   believe    Cromwell’s     expert,    and     disbelieve

defendants’ expert, that the ladder was defective and could have

been made more safe by simply adding a larger washer. See LA. REV.

STAT. § 9:2800.56. The evidence was sufficient to support the jury’s

determination.

      Cromwell asserts that there was insufficient evidence to

support the jury’s decision to apportion him 35 per cent of the

fault. However, he conceded at trial that while on the ladder he

was “overreaching” and in an “unsafe position.” The evidence was

sufficient to support his comparative fault.

                               IV. Remittitur

      The decision to grant a remittitur is in the sound discretion

of the trial judge and is reviewed for abuse of discretion. See

Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998). Under

Louisiana   law,   “much   discretion      is   left   to   the...    jury”    in


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determining general damages. LA. CIV. CODE       ART.   2324.1. “Only after

a determination that the trier of fact has abused its ‘much

discretion’ is a resort to prior awards appropriate and then only

for the purpose of determining the highest or lowest point which is

reasonably within that discretion.” See Duncan v. Kansas City

Southern Ry. Co., 773 So.2d 670, 682 (La. 2000) (citation omitted).

In sum, we must determine whether the trial court abused its

discretion by determining that the members of the jury abused their

discretion. We conclude that it did not.

     Cromwell cites Detraz v. Hartford Accident & Indemnity Co.,

647 So.2d 576 (La. Ct. App. 1994), in which an $800,000 general

damages award was upheld, in part because of Detraz’ loss of

enjoyment   of   life.   The   analogy   to   Detraz    is   not   persuasive,

however, because the large award was attributable to Detraz’ severe

injuries: “a fractured and dislocated left hip, a dislocated right

shoulder, with a torn rotator cuff, a deep laceration to the left

arm, a fractured sternum, fractured ribs, and abrasions to the

head.”   Id. at 578. Detraz endured a “grueling month long hospital

stay” and permanent impairments. Id. at 580.

     The trial judge discovered that the highest award for a

shoulder injury comparable to Cromwell’s was $150,000, see J.B.

Saucier v. Players Lake Charles, 751 So.2d 312, 320 (La. Ct. App.

2000), and reduced Cromwell’s award accordingly. This comports with

the Louisiana Supreme Court’s instructions to look to prior awards

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for the outer bounds of jury discretion, see Duncan 773 So.2d at

682, and was not an abuse of the trial court’s discretion.

                          V. Conclusion

     The judgment of the district court is AFFIRMED.




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