     Case: 17-60458   Document: 00514585989       Page: 1   Date Filed: 08/03/2018




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

                                                                       FILED
                                                                    August 3, 2018
                                   No. 17-60458
                                                                    Lyle W. Cayce
                                                                         Clerk
WANDA WILLIAMS, individually and as Conservator for John Robert
Williams, Jr., incapacitated,

             Plaintiff–Appellee,

v.

MANITOWOC CRANES, L.L.C.,

             Defendant–Appellant.


                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      A crane accident in Mississippi left John Williams Jr. physically and
mentally incapacitated. Wanda Williams, his wife, sued the crane
manufacturer, Manitowoc Cranes, under Mississippi’s products liability
statute. Following a lengthy trial, a jury found that Manitowoc failed to warn
Model 16000 Series crane operators that, if the crane tips over, large weights
stacked on the rear of the crane can slide forward and strike the operator’s cab.
      We AFFIRM.
                               I. BACKGROUND
A.    The Accident
      John Williams Jr. worked as a certified crane operator at VT Halter
Marine shipyard in Pascagoula, Mississippi. John typically operated a
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                                       No. 17-60458
Manitowoc Model 16000 Series crawler crane. 1 Crawler cranes are so-named
because they crawl along tracks in order to move. They can typically lift
hundreds of tons of weight. The Model 16000 has a counterweight tray on its
rear; the tray holds a stack of large, steel counterweights. Each counterweight
is roughly seven-feet wide, eight-feet long, nine-and-a-half-inches tall, and
weighs 18,000 pounds.
      On June 25, 2014, John participated in a “tandem lift,” which involved
multiple cranes moving a bow section of a ship. As usual, John operated a
Manitowoc Model 16000. Three total cranes participated at the start of the lift.
As planned, the lift caused the bow to rotate. Soon after, one crane
disconnected from the load, as planned.
      Two cranes remained. John operated one, and David Smith operated the
other. The two remaining cranes continued the lift by moving the bow unit
forward toward the hull of the ship under construction. But, unexpectedly, the
cranes began to separate from one another. Smith’s crane pulled John’s crane
forward, causing the tracks on John’s crane to rise up. John, however, stayed
in the operator’s cab in a last-ditch attempt to control the load.
      As John’s crane tipped, the nine-ton counterweights stacked in the rear
of the crane began to rain down. At least one slid forward, striking the operator
cab. The collision propelled John from the cab to the ground—an eight-foot,
head-first fall onto concrete.
      John survived. But his physical and mental capacities were permanently
impaired.




      1   A diagram of the crane is available in the Appendix.
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B.    The Preceding Proceedings
      In the wake of the accident, Wanda Williams sued Manitowoc. 2 Focusing
on the crane’s counterweight system, she raised failure-to-warn, defective-
design, and negligence claims under the Mississippi Products Liability Act. 3
She also brought a loss-of-consortium claim.
      In September 2016, the district court granted partial summary judgment
for Manitowoc and dismissed Williams’s design-defect claims with prejudice.
The defective-warning and loss-of-consortium claims proceeded to a jury trial,
which took place the next month.
      On October 17, after Williams presented her case-in-chief, Manitowoc
moved orally for judgment as a matter of law. Manitowoc claimed Williams
failed to prove her failure-to-warn claim as a matter of law; that is, she did not
show that the warnings were inadequate or that any inadequacy proximately
caused John’s injuries. The district court denied the motion.
      The trial continued. Days later, the jury ruled for Williams, finding that
Manitowoc failed to warn John about the falling counterweights. 4 The jury
awarded $7 million in economic damages and $1 million in non-economic
damages. It also awarded $500,000 for the loss-of-consortium claim. But the
jury found that negligence contributed to the injuries, so it apportioned fault
as follows: 50% to VT Halter, 40% to Manitowoc, and 10% to John. So the
district court entered a final judgment against Manitowoc for $2.8 million in
actual economic damages and $600,000 in non-economic damages—resulting
in a total judgment of $3.4 million plus post-judgment interest.




      2  Williams filed individually and as John’s Conservator.
      3  MISS. CODE ANN. § 11-1-63.
       4 The jury found for Manitowoc with regard to Williams’s claim that the Model 16000

lacked adequate warnings about how to safely perform tandem lifts.
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       Nearly a month later, Manitowoc filed a renewed motion for judgment
as a matter of law, or, in the alternative, motion for a new trial. Manitowoc
asserted that it deserved judgment as a matter of law because Williams failed
to prove her failure-to-warn claim. Manitowoc claimed that (1) it adequately
warned about causing a tip-over, (2) John’s misuse of the crane caused the tip-
over, and (3) the proposed additional warning would not have prevented John’s
injuries. Manitowoc also asserted, in the alternative, that it deserved a new
trial because the district court improperly qualified Dr. William Singhose as
an expert, and the court erred in admitting evidence regarding prior accidents
involving other Manitowoc cranes and in excluding evidence about John’s
character. The district court denied Manitowoc’s motions, and Manitowoc
timely appealed.
                              II. STANDARDS OF REVIEW
A.     Judgment as a Matter of Law
       “We review de novo the district court’s denial of a motion for judgment
as a matter of law, applying the same standards as the district court.” 5
Judgment as a matter of law is proper if “a party has been fully heard on an
issue during a jury trial and . . . a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” 6
       “We review all the evidence in the record in the light most favorable to
the nonmoving party and draw all reasonable inferences in favor of the
nonmoving party; we do not make credibility determinations or weigh the
evidence.” 7 Also, our court “cannot reverse a denial of a motion for judgment
as a matter of law unless the jury’s factual findings are not supported by


       5  Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013) (citing Ill. Cent.
R.R. Co. v. Guy, 682 F.3d 381, 392–93 (5th Cir. 2012)).
        6 FED R. CIV. P. 50(a).
        7 Homoki v. Conversion Servs., Inc., 717 F.3d 388, 395 (5th Cir. 2013) (citing Poliner

v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir. 2008)).
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substantial evidence, or if the legal conclusions implied from the jury’s verdict
cannot in law be supported by those findings.” 8 In other words, the party
moving for judgment as a matter of law can prevail only “if the facts and
inferences point so strongly and overwhelmingly in favor of the moving party
that reasonable jurors could not have arrived at a contrary verdict.” 9 Although
our review is de novo, “[a]fter a jury trial, [the] standard of review is especially
deferential.” 10
B.     Motion for a New Trial
       We review the denial of a motion for a new trial for an abuse of
discretion. 11 “The district court abuses its discretion by denying a new trial
only when there is an absolute absence of evidence to support the jury’s
verdict.” 12 “If the evidence is legally sufficient, we must find that the district
court did not abuse its discretion in denying a motion for new trial.” 13
C.     Expert Testimony
       “Whether an individual is qualified to testify as an expert is a question
of law.” 14 “However, we review the admission or exclusion of expert testimony
for an abuse of discretion,” 15 and we afford the trial court “[w]ide latitude” in




       8  OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir. 2016)
(quoting Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 488 (5th Cir.
2004)).
        9 Homoki, 717 F.3d at 395 (citing Poliner, 537 F.3d at 376).
        10 Abraham, 708 F.3d at 620 (second alteration in original) (quoting Brown v.

Sudduth, 675 F.3d 472, 477 (5th Cir. 2012)).
        11 Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016).
        12 OneBeacon Ins., 841 F.3d at 676 (cleaned up).
        13 Id. (citations omitted). It is more difficult to satisfy the standard for reversing the

denial of a motion for a new trial than the standard for reversing the denial of judgment as
a matter of law. See Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 & n.2 (5th Cir.
1998).
        14 Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citing Mathis v. Exxon Corp., 302

F.3d 448, 459 (5th Cir. 2002)).
        15 Id. (citation omitted).

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its determination. 16 Given the district court’s “broad discretion in deciding”
whether to admit expert testimony, this court “will not find error unless the
ruling is manifestly erroneous.” 17 “Manifest error is one that is plain and
indisputable, and that amounts to a complete disregard of the controlling
law.” 18
D.     Evidentiary Rulings
       This court applies a “deferential abuse of discretion standard” when
reviewing a district court’s evidentiary rulings. 19 “A district court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” 20 “The harmless error doctrine applies
to the review of evidentiary rulings, so even if a district court has abused its
discretion, [this court] will not reverse unless the error affected ‘the substantial
rights of the parties.’” 21 “The party asserting the error has the burden of
proving that the error was prejudicial.” 22
                                     III. DISCUSSION
A.     The Failure-to-Warn Claim
       The Mississippi Products Liability Act (MPLA) codifies a failure-to-warn
cause of action. 23 To prevail, the plaintiff must prove by a preponderance of the
evidence that when the product left the manufacturer’s control:



       16 Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012).
       17 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (citations omitted).
       18 Id. (cleaned up).
       19 Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 233 (5th Cir. 2016); see

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (“In deference to a district
court’s familiarity with the details of the case and its greater experience in evidentiary
matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.”).
       20 Heinsohn, 832 F.3d at 233 (quoting Nunez v. Allstate Ins. Co., 604 F.3d 840, 844

(5th Cir. 2010)).
       21 Id. (quoting Nunez, 604 F.3d at 844); see FED. R. EVID. 103.
       22 Ball v. LeBlanc, 792 F.3d 584, 591 (5th Cir. 2015) (citations omitted).
       23 See MISS. CODE ANN. § 11-1-63(a)(i)–(iii) (2014). We are sitting in diversity, so we

apply Mississippi’s substantive law. See Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999).
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       1.   the product “failed to contain adequate warnings or
            instructions” about a dangerous condition that the
            manufacturer knew or reasonably should have known about;
       2.   “the ordinary user or consumer would not realize [the]
            dangerous condition”;
       3.    the inadequate warning “rendered the product unreasonably
             dangerous to the user or consumer”; and
       4.    the inadequate warning “proximately caused the damages for
             which recovery is sought.” 24
       Manitowoc claims Williams failed to prove her failure-to-warn claim as
a matter of law, thus the district court should have granted Manitowoc
judgment as a matter of law. On appeal, Manitowoc trains its sights on two
components 25 of Williams’s failure-to-warn claim: (1) the existing warning’s
adequacy; and (2) whether the allegedly inadequate warning proximately
caused John’s injuries.
       1. Adequacy
       Under Mississippi law,
       An adequate product warning or instruction is one that a
       reasonably prudent person in the same or similar circumstances
       would have provided with respect to the danger and that
       communicates sufficient information on the dangers and safe use
       of the product, taking into account the characteristics of, and the
       ordinary knowledge common to an ordinary consumer who
       purchases the product. 26
“In Mississippi, a warning may be held adequate as a matter of law where the
adverse effect was one that the manufacturer specifically warned against.” 27




       24 Id. § 11-1-63(a), (c); see Johnson & Johnson, Inc. v. Fortenberry, 234 So. 3d 381, 390
(Miss. 2017), reh’g denied (Feb. 1, 2018); Union Carbide Corp. v. Nix, Jr., 142 So. 3d 374, 385
(Miss. 2014).
       25 Manitowoc concedes that it knew about the hazards of falling counterweights and

that ordinary users would not have realized the dangerous condition.
       26 MISS. CODE ANN. § 11-1-63(c)(ii).
       27 Austin v. Will-Burt Co., 361 F.3d 862, 868 (5th Cir. 2004) (citation omitted).

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But there is no bright-line rule for whether a warning is adequate. 28 Typically,
the jury resolves this fact question. 29
       The (in)adequacy dispute here centers on whether Manitowoc needed to
warn operators about the specific hazard that counterweights could fall during
a tip-over.
       Manitowoc asserts that warning about the general hazards of tipping
over (severe injury or death, for example)—combined with instructions about
how to avoid a tip-over—is adequate. In other words: no tip-over, no sliding
counterweights, no problems. 30 Separately, Manitowoc argues that its
warnings were adequate as a matter of law because they “complied with all
federally mandated OSHA requirements and industry standards.” If we agree
with either of Manitowoc’s arguments, then the district court erred by failing
to grant judgment as a matter of law. 31
       Williams sees things differently. Manitowoc never warned operators that
unsecured counterweights could slide forward during a tip-over, striking the
cab and potentially injuring the operator. Manitowoc knew about this risk yet
said nothing. And multiple crane operators testified during trial that they were
unaware of the falling counterweight risk. Thus, Williams contends, the
warning was inadequate.




       28    See Hankins v. Ford Motor Co., No. 3:08-CV-639-CWR-FKB, 2011 WL 6291947, at
*5 (S.D. Miss. Dec. 15, 2011).
          29 See Fortenberry, 234 So. 3d at 391.
          30 Manitowoc asserts it adequately warned operators about the risks of using the

Model 16000. The Model 16000 Operator’s Manual warns that unsafe operation “can result
in . . . death or injury.” The Manual describes various hazards that could result from unsafe
operation, including tipping over. And the Manual outlined the potential consequences of
tipping over; thus, the operators knew “a tip-over could result in serious injury or death.”
Also, Manitowoc warned operators about what may cause a tip-over—for example, by
overloading the crane or operating the crane on a slope.
          31 See FED. R. CIV. P. 50(a); Homoki, 717 F.3d at 395.

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       We hold that Manitowoc was not entitled to judgment as a matter of law
on the failure-to-warn claim. The jury had an adequate basis for finding
Manitowoc’s warning inadequate—that is, for finding that a reasonably
prudent person would have informed crane operators about the unique danger
posed by falling counterweights. 32
       We are guided in part by our court’s decision in Austin v. Will-Burt
Company. 33 There, we found a warning adequate where “the adverse effect was
one that the manufacturer specifically warned against.” 34 Accordingly, we
affirmed summary judgment in favor of a telescoping mast manufacturer 35 in
a failure-to-warn case because the manufacturer adequately warned about the
hazards of raising the mast near electrical power lines. 36
       Manitowoc, however, failed to warn about the specific “adverse effect” of
a counterweight falling, crushing the operator cab, and ejecting the operator
from the cab. The Model 16000 Operator’s Manual provided no guidance about
precautions for avoiding the falling counterweight hazard. Instead, it
discussed only in broad terms the harms that could result from a tip-over.
       We cannot conclude as a matter of law that Manitowoc adequately
warned crane operators about the falling counterweight danger. Typically, the
jury is responsible for evaluating a warning’s adequacy. 37 Here, the jury had a



       32  See MISS. CODE ANN. § 11-1-63(c)(ii).
       33  361 F.3d 862 (5th Cir. 2004).
        34 See id. at 868. This does not mean, however, that a warning must identify all known

hazards in order to be deemed adequate. Under Mississippi law, juries engage in a fact-
intensive analysis of a warning’s adequacy. See MISS. CODE ANN. § 11-1-63(c)(ii)
        35 The telescoping mast, designed for mounting on top of a news van, helped to

facilitate news broadcasts. The mast was constructed of aluminum tubes “nestled inside each
other that could be extended by air pressure.” Id. at 864. On the day of the accident, “[w]hen
the mast was raised, it became entangled with the power lines, sending 8,000 volts through
the mast and electrifying the van and its appurtenances. When [the decedent] touched the
van, he received a fatal electric shock.” Id.
        36 See id. at 868–69.
        37 See Fortenberry, 234 So. 3d at 391.

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sufficient evidentiary basis for finding Manitowoc’s warning inadequate. 38
Manitowoc knew that counterweights could fall during a tip-over but failed to
mention it in the Manual. Also, crane operators were apparently unaware of
the falling counterweight hazard. Plus, the jury could have found Manitowoc’s
purported compliance with industry standards insufficient to render the
warning adequate. 39 We are unwilling to supplant the jury’s conclusion about
the warning’s adequacy with our own—especially when we are so far removed
from the witnesses and evidence. 40
       2. Proximate Cause
       Manitowoc contends that any failure to warn did not proximately cause
William’s injuries, so Williams’s claim fails as a matter of law. 41
       The MPLA does not define proximate cause. The Mississippi Supreme
Court, however, has filled in the statutory gaps. 42 The plaintiff must show the
failure to warn was the “cause in fact” and the “legal cause” of the injuries. 43
To be the “cause in fact,” the plaintiff must show that “but for the defendant’s




       38 See FED. R. CIV. P. 50(a); OneBeacon Ins., 841 F.3d at 676.
       39 See Will-Burt, 361 F.3d at 868. Manitowoc cites no record evidence detailing the
practices of other crane manufacturers, nor does it cite evidence about industry standards.
This may be because, as Williams’s expert Dr. William Singhose testified, “this falling
counterweight phenomena is relatively new in cranes, so . . . it has [not] made its way through
the government process yet.” Also, the MPLA does not say that complying with industry
standards renders a warning adequate as a matter of law; the statute says that an adequate
warning “is one that a reasonably prudent person” would provide about the dangers and safe
uses of the product. See MISS. CODE ANN. § 11-1-63(c)(ii). Compliance, therefore, is one piece
of evidence for the jury to consider, but it is not dispositive in a failure-to-warn claim. Union
Carbide Corp., 142 So. 3d at 387. (“[C]ompliance with OSHA standards may be used as
evidence of the reasonableness of [the defendant’s] actions, but it is not dispositive.”).
       40 See OneBeacon Ins., 841 F.3d at 676 (quoting Am. Home Assurance Co., 378 F.3d at

488); Homoki, 717 F.3d at 395.
       41 See 3M Co. v. Johnson, 895 So. 2d 151, 166 (Miss. 2005) (“[T]he failure to warn must

be the proximate cause of the injuries suffered or it is irrelevant.”).
       42 See, e.g., Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss. 2007); 3M Co.,

895 So. 2d at 166.
       43 See Berry v. E-Z Trench Mfg., Inc., 772 F.Supp.2d 757, 759–60 (S.D. Miss. 2011).

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negligence, the injury would not have occurred.” 44 To be the “legal cause,” the
plaintiff’s damages must have been a reasonably foreseeable result of the
failure to warn. 45 Generally, the jury decides the proximate cause component
of a products liability case. 46
       As part of the proximate cause inquiry, the Mississippi Supreme Court
requires plaintiffs to prove that an alternative warning would have conveyed
the information necessary for the victim to avoid the accident. 47
       Manitowoc raises two points for why its alleged failure to warn did not
proximately cause John’s injuries: (a) John’s misuse of the crane caused the
injuries, and (b) no alternative warning would have helped John avoid the
counterweights.
            a. Misuse
       Courts seek “to apportion fairly the costs of the harm arising out of the
use of a product.” 48 Thus, in products liability cases misuse is a defense 49 that
“will bar recovery when a jury finds the plaintiff’s unforeseeable misuse of the
product substantially changed the condition of the product, and that change,
and not the alleged defect, is the proximate cause of the alleged injury.” 50




       44  Id. at 760 (quoting Glover, 968 So. 2d at 1277).
       45  Id.
        46 See Whittley v. City of Meridian, 530 So. 2d 1341, 1348 (Miss. 1988); see also Mine

Safety Appliance Co. v. Holmes, 171 So. 3d 442, 456 (Miss. 2015) (finding that the “misuse”
inquiry, which bears on proximate cause, is “generally” a jury question).
        47 See 3M Co., 895 So. 2d at 166; Windham v. Wyeth Labs., Inc., 786 F. Supp. 607, 612

(S.D. Miss. 1992) (“[I]f a further warning would not have altered [the physician’s] conduct,
then any failure to warn would not be the proximate cause of [the plaintiff’s] injuries.”).
        48 Mine Safety, 171 So. 3d at 454.
        49 Id. (observing that if the “plaintiff’s injuries resulted from product misuse . . . then

the plaintiff is the proximate cause of the injuries and the manufacturer is not liable”).
        50 Id. (citations omitted) (emphasis added). The plaintiff in Mine Safety raised both

failure-to-warn and design-defect claims. The court in Mine Safety performed the misuse
analysis only in the context of the design-defect claim—not the failure-to-warn claim. See id.
at 452–57. Nevertheless, Williams apparently accepts that misuse is a defense to a failure-
to-warn claim.
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Generally, the jury is responsible for determining “whether misuse of a product
caused the plaintiff’s injury.” 51
       Manitowoc believes John misused the crane in three ways:
       1.   the crane was overloaded; 52
       2.   he operated the crane on a slope; 53 and
       3.   the crane’s operational aid was not working. 54
Absent misuse, Manitowoc argues, the crane would not have tipped over, and
the counterweight would not have struck the cab. According to Manitowoc,
holding it accountable for John’s misuse would undercut Mississippi’s products
liability laws, which seek to fairly apportion responsibility between
manufacturers and consumers.
       Manitowoc cites Mine Safety Appliance Company v. Holmes 55 to support
its argument. In Mine Safety, the plaintiff sued a respirator manufacturer,
alleging design and failure-to-warn defects. The Mississippi Supreme Court
held the manufacturer was entitled to judgment as a matter of law because
“the evidence regarding misuse and the altered condition of the product was of
such quality and weight that no reasonable and fair-minded juror could have”
blamed the manufacturer for the plaintiff’s injuries. 56 There, the plaintiff




       51  Id. at 456.
       52   John allegedly overloaded the crane, which Manitowoc warned against in the
Operator’s Manual. According to testimony offered at trial, the crane tips over only when the
load exceeds 133% of the crane’s load chart.
        53 Manitowoc alleges that John’s crane was operating on a 2% slope—which

contravened the Manual’s clear instructions to avoid operation on a slope greater than 1%.
        54 John failed to ensure that his digital operational aids—devices that help operators

avoid tip-overs—were functioning correctly before the lift. Indeed, according to testimony
elicited during trial, John’s “RCI/RCL capacity warning system” was not working on the day
of the tip-over, and the device had been malfunctioning for the five months preceding the
accident. Manitowoc contends that it advised operators to immediately repair malfunctioning
warning systems.
        55 171 So. 3d 442 (Miss. 2015).
        56 Id. at 457–58 (citations omitted).

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“unequivocally testified” that during the six years he used the product, 57 “he
never changed the filter in his respirator” 58—even though the respirator came
with replacement filters and with instructions to replace the filter when the
wearer “noticed resistance when breathing through the respirator.” 59 To the
Mississippi Supreme Court, the plaintiff misused the product to the point
where it was “not in the same condition as when it left [the manufacturer’s]
control.” 60 Manitowoc believes John’s similar “unequivocal violations of the
manufacturer’s instructions” entitles it to judgment as a matter of law.
      Williams, in response, implores this court to preserve the jury’s fact-
finding role. The jury heard the competing testimony about misuse, evaluated
the credibility of the witnesses, received instruction on the failure-to-warn
cause of action, and then rendered a verdict. Namely, during cross-
examination, one of Manitowoc’s experts admitted that John was not
responsible for the tip-over. 61 Also, the jury received instruction on the misuse
issue. 62 Accordingly, Williams believes that the jury considered John’s alleged
misuse when deciding how to apportion fault for the accident. 63
      Williams also refutes each specific misuse allegation. First, she asserts
that the crane was not overloaded six minutes prior to the tip-over. 64 Also, the




      57  Id. at 454.
      58  Id. at 456.
       59 Id. at 455.
       60 Id. at 456.
       61 Q: Sir, my question is, is it your testimony to this jury that this tip-over was

             Johnny Williams’ fault; yes or no?
          [Mike Parnell]: No. No, it wasn’t.
       62 Manitowoc does not challenge the instruction on appeal.
       63 The jury disagreed with Manitowoc’s arguments that misuse should bar recovery,

the jury apparently found that John was, to an extent, contributorily negligent. Manitowoc
does not argue that finding any misuse absolutely bars recovery.
       64 Manitowoc disputes the relevance of this timeframe, arguing that John’s crane

became overloaded when the cranes separated.
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                                      No. 17-60458
load on John’s crane would have affected the other crane involved in tandem
lift—but that crane’s (functioning) computer did not signal it was overloaded.
      Second, the tip-over did not occur while the crane was moving along a
slope. An eyewitness testified that John’s crane was stationary at the time of
the accident. And Manitowoc’s expert admitted that it was “very close to the
case” that John’s crane was stationary at the time of the tip-over.
      Third, using the crane with a malfunctioning operator aid—and
neglecting to repair the aid before the incident—does not constitute misuse.
Manitowoc’s own witness admitted during cross-examination that the Manual
says it is “100 percent acceptable to operate the crane without the computer
and without that operator aid.”
      Generally, the jury should answer the misuse question. 65 Our role is to
decide whether the jury had a sufficient evidentiary basis to find for Williams.
We view the record evidence in the light most favorable to her, drawing
reasonable inferences in her favor and remaining agnostic about the credibility
and weight of the evidence. 66 Nothing demonstrates “the facts and inferences
point so strongly and overwhelmingly” in Manitowoc’s favor that “reasonable
jurors could not have arrived at a contrary verdict.” 67
      Contrary to Manitowoc’s suggestion, this situation is a far cry from Mine
Safety. There, the plaintiff conceded that he misused the product. Here,
Williams rebutted the misuse arguments by citing testimony and record
evidence that the jury heard before reaching a verdict. And, on top of that, this
record evidence supports finding that Manitowoc could reasonably foresee
John’s alleged misuse.




      65 See Mine Safety, 171 So. 3d at 456.
      66 See Homoki, 717 F.3d at 395.
      67 See id.

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                                      No. 17-60458
         Manitowoc’s misuse allegations do not convince us that John’s alleged
misuse proximately caused his injuries. This means the district court did not
err in denying Manitowoc’s motion for judgment as a matter of law on this
point.
              b. Alternative Warning
         The Mississippi Supreme Court, interpreting the MPLA’s proximate
cause element for failure-to-warn claims, requires plaintiffs to “demonstrate
that some other warning would have given them additional information that
they did not already know and that they would have acted upon that new
information in a manner that would have avoided the injuries.” 68




         683M Co., 895 So. 2d at 166. There is a distinction between absent warning and
inadequate warning cases. Plaintiffs alleging that a warning was entirely absent are not
required to prove that they saw and heeded the warnings that were present because “it would
be absurd to require a plaintiff to show reliance on a warning where no warnings were given.”
Mine Safety, 171 So. 3d at 452. Plaintiffs alleging that a warning was present but inadequate
must prove that they “read and relied upon the defective warning to complain of it.” Id.
(quoting Union Carbide Corp., 142 So. 3d at 390). This is an inadequate warning case:
Williams criticizes the existing warnings as inadequate because they failed to warn of the
specific falling counterweight hazard.
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                                         No. 17-60458
      During trial, Williams displayed the “Singhose warning” as a potential
alternative warning:




      So we ask:
      1.        Does the warning provide operators new information?
      2.        Does that additional information instruct crane operators to
                act differently, such that they would avoid injury?
      Manitowoc answers each question in the negative. Manitowoc’s primary
objection is that the warning does not tell operators how to avoid falling
counterweights—even if it apprises them of the counterweight danger.
Because the warning is silent on how operators can safely escape the cab (and
avoid the counterweight danger), operators are left to “jump and run.” This is
dangerous: A fleeing operator could be struck by a falling counterweight, or the
operator may injure himself while exiting the cab. Given the shortcomings of
the Singhose warning, operators may be safer remaining in the cab during a
tip-over. Also, according to Manitowoc, John’s failure to follow the Manual’s
warnings about safe crane operation demonstrates he likely would not have
followed the Singhose warning, anyway. 69 Thus, according to Manitowoc,



      69   See Part III(A)(2)(a) for the misuse discussion.
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                                         No. 17-60458
John’s injuries were not proximately caused by problems with its own
warning. 70
          According to Williams, however, the Singhose warning communicates
the specific danger that counterweights could fall during a tip-over, giving
operators        unique,     valuable,     and    potentially     life-saving    information.
Responding to Manitowoc’s derisive “jump and run” commentary, Williams
claims the warning “alerts the operator the counterweights will strike (and
crush) the rear of the cab.” So instead of remaining in the cab when the crane
starts to tip, any crane operator with “common sense” would swiftly exit.
Harold Abbott, a crane operator at VT Halter, testified that had he seen the
warning, he would know that he should flee the cab as quickly as possible
during a tip-over. Here, it took over three minutes for the crane to topple, which
likely would have given John adequate time to leave the cab, walk down the
catwalk, and descend the crane’s stairs. Williams concludes her argument on
this point by emphasizing that the jury saw the warning and heard the
accompanying testimony, so we should respect the jury’s conclusion on the
proximate cause element. 71
          We conclude the jury had an adequate basis for finding that an
alternative warning could have communicated valuable additional information
about the falling counterweight danger, allowing John to avoid injury. Thus,
the district court correctly ruled on the motion for judgment as a matter of
law. 72
          Williams bore the burden of persuading the jury that an alternative
warning would have given John “additional information that [he] did not
already know” and that he “would have acted upon that new information in a


          70 See 3M Co., 895 So. 2d at 166; Windham, 786 F. Supp. at 612.
          71 We note that there was no specific jury instruction discussing the Singhose warning.
          72 See FED. R. CIV. P. 50(a); Homoki, 717 F.3d at 395.

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                                      No. 17-60458
manner that would have avoided the injuries.” 73 We review the evidence in the
light most favorable to Williams, drawing all reasonable inferences in her
favor—while avoiding credibility determinations and evidence weighing. 74 We
cannot reverse the district court’s decision to deny the motion for judgment as
a matter of law unless “the facts and inferences point so strongly and
overwhelmingly in favor of [Manitowoc] that reasonable jurors could not have
arrived at a contrary verdict.” 75
       Many questions surround an alternative warning’s efficacy. Where
would it have been placed? Would operators have noticed it? Did it adequately
advise operators how to avoid the falling counterweight hazard? And there is,
of course, speculation involved in predicting whether John would have followed
the warning and safely exited the operator’s cab.
       We must trust, however, that the jury considered these issues in
evaluating whether an alternative warning would have reduced the likelihood
of John severely injuring himself during the tip-over. 76 Based on the testimony
of other crane operators and Dr. Singhose, the jury could have inferred that an
alternative warning would have prompted John to exit the operator’s cab
during a tip-over. In other words, given the potentially severe harm of
remaining in the cab, the jury could have predicted that—had he known of the
falling-counterweight danger—John would have followed his “common sense”
and swiftly exited before a counterweight struck the cab. Our reservations




       73 See 3M Co., 895 So. 2d at 166.
       74 Homoki, 717 F.3d at 395.
       75 See id.
       76 Generally, the proximate cause inquiry in a products liability case is reserved for

the jury. See Whittley, 530 So. 2d at 1348.
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                                       No. 17-60458
about the warning notwithstanding, we are unwilling to hold as a matter of
law that an alternative warning would have been ineffective. 77
B.     The District Court Did Not Abuse Its Discretion.
       1. Qualifying Dr. Singhose as a Warnings Expert
       Williams proffered Dr. William Singhose as an expert in mechanical
engineering, human factors, and warnings. Manitowoc claims the district court
abused its discretion by finding Dr. Singhose qualified to testify as a warnings
expert.
       “Whether an individual is qualified to testify as an expert is a question
of law.” 78 Our court “review[s] the admission or exclusion of expert testimony
for an abuse of discretion.” 79 We afford the trial court “[w]ide latitude” in
deciding the admissibility of expert testimony. 80 Given the district court’s
“broad discretion,” we “will not find error unless the ruling is manifestly
erroneous.” 81 “Manifest error is one that is plain and indisputable, and that
amounts to a complete disregard of the controlling law.” 82




       77  When a plaintiff claims that a warning is inadequate, the plaintiff must show
reliance on the actual warning to establish proximate cause. That is because “[i]nadequate
warnings cannot serve as the proximate cause of injuries where adequate warnings would
have resulted in the same injuries.” Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077, 1094
(Miss. 2005); see also Mine Safety, 171 So. 3d at 453 (finding an alternative warning
insufficient as a matter of law because “there was no evidence whatsoever this [alternative
warning] would have changed [the plaintiff’s] behavior” because the plaintiff failed to show
that he would have read the alternative warning); 3M Co., 895 So. 2d at 166 (finding the
inadequate warning did not proximately cause the plaintiffs’ injuries and reversing the
district court’s refusal to enter a judgment notwithstanding the verdict because “[n]o plaintiff
testified that they ever read any warnings . . . placed on [the defendant’s] products,” so no
alternative warning could have been adequate).
        78 Huss, 571 F.3d at 452 (citing Mathis, 302 F.3d at 459).
        79 Id.
        80 Roman, 691 F.3d at 692.
        81 Guy, 394 F.3d at 325 (citations omitted) (emphasis removed).
        82 Id. (cleaned up).

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                                    No. 17-60458
      Rule 702 controls the admissibility of Dr. Singhose’s testimony. 83
“Experts qualified by ‘knowledge, skill, experience, training or education’ may
present opinion testimony to the jury.” 84 An expert may testify as long as:
      a.    the expert’s scientific, technical, or other specialized
            knowledge will help the trier of fact to understand the
            evidence or to determine a fact in issue;
      b.    the testimony is based on sufficient facts or data;
      c.    the testimony is the product of reliable principles and
            methods; and
      d.    the expert has reliably applied the principles and methods to
            the facts of the case. 85
The district court has “broad latitude in weighing the reliability of expert
testimony for admissibility.” 86 The district court performs a “gate-keeping
function: the court must ensure the expert uses reliable methods to reach his
opinions; and those opinions must be relevant to the facts of the case.” 87
Crucially, however, the district court “does not judge the expert conclusions
themselves.” 88
      “Rule 702 does not mandate that an expert be highly qualified in order
to testify about a given issue.” 89 Although an expert’s qualifications may be
less-than-sterling, she may still be certified. This is because “[d]ifferences in
expertise bear chiefly on the weight to be assigned to the testimony by the trier
of fact, not its admissibility.” 90 The Supreme Court in Daubert emphasized the



      83   See Roman, 691 F.3d at 692 (“Before certifying an expert and admitting his
testimony, a district court must ensure that the requirements of Federal Rule of Evidence
702 have been met.” (citing Mathis, 302 F.3d at 459)).
       84 Huss, 571 F.3d at 452 (quoting FED. R. EVID. 702).
       85 FED. R. EVID. 702.
       86 Guy, 394 F.3d at 325 (citations omitted).
       87 Id.
       88 Id.
       89 Huss, 571 F.3d at 452.
       90 Id. (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)).

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                                       No. 17-60458
“capabilities of the jury and of the adversary system generally” 91 as the
appropriate antidotes to “absurd and irrational pseudoscientific assertions.” 92
Chiefly,    the   “conventional       devices”    of   “[v]igorous     cross-examination,
presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” 93
       Manitowoc claims Dr. Singhose lacks the credentials necessary to be a
warnings expert. First, his curriculum vitae lacks any references to or
discussion of “the word ‘warning.’” Second, he does not sit on the American
National Standards Institute Z535 committee, which develops standards for
designing warnings (e.g., selecting colors and symbols). Third, Dr. Singhose
has experience with drafting warnings for particular components of cranes and
small-scale cranes—but not crawler-crane warnings.
       Williams defends Dr. Singhose by reciting his formal qualifications: He
has worked as a full-time, tenured professor of mechanical engineering at
Georgia Tech for the past eighteen years. Before that, he received an
undergraduate degree in mechanical engineering from MIT, a Master’s degree
in mechanical engineering from Stanford University, and a Ph.D. in
mechanical engineering from MIT. According to Williams, Dr. Singhose also
has extensive practical experience. 94




       91  Daubert, 509 U.S. at 596.
       92  Id. at 595.
        93 Id. at 596.
        94 Dr. Singhose has: (1) researched and taught courses related to human–factors

analysis—that is, analyzing human–machine interactions; (2) published articles on hazard
analysis; (3) lectured about hazard analysis, risk assessment, and safe operation of machines;
(4) “worked with and researched cranes and crane controls for the past twenty years”; (5)
designed small-scale cranes and drafted safety warnings for components of those cranes; and
(6) researched warnings, generally, and read crane warnings, specifically, throughout his
career.
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                                     No. 17-60458
      Williams then invokes our decision in Roman v. Western Manufacturing.
There, the district court permitted two experts—one with a Ph.D. in
mechanical engineering and the other with a Ph.D. in material science—to
testify regarding a stucco pump’s design. 95 The appellant challenged the
district court’s decision to qualify those individuals as experts, arguing that
the two so-called experts could “not testify about a stucco pump because stucco
is not their trade.” 96 We concluded that “[t]he district court was within its wide
discretion to conclude that these offered witnesses had the qualifications to
state a reliable opinion on the subjects for which they were certified.” 97 We
firmly rejected the appellant’s “conception of expertise” in which the experts
“could not testify about a stucco pump because stucco is not their trade.” 98 Such
conception of expertise, we reasoned, “could make expert certification decisions
a battle of labels—label the needed expertise narrowly and the offered expert’s
field broadly.” 99 This would elevate labels over substance.
      Williams also cites our decision in Huss v. Gayden for the proposition
that “the Daubert standards are flexible, and the most important question is
not whether one party’s expert is more qualified than the other’s, but rather,
whether an expert’s testimony is reliable.” 100 The Huss court found there were
“sufficient indicia” that a doctor “would provide a reliable opinion,” so the
district court abused its discretion by prohibiting the doctor from testifying
about an area related to his primary realm of expertise. 101




      95  Roman, 691 F.3d at 692. A “stucco pump” is a mechanical device used for applying
stucco, a coating typically used to cover exterior walls.
       96 Id. at 693.
       97 Id. (emphasis added).
       98 Id.
       99 Id. (citing Huss, 571 F.3d at 455–56).
       100 571 F.3d at 455.
       101 Id. at 455–56.

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                                     No. 17-60458
      We conclude that the district court did not abuse its discretion to qualify
Dr. Singhose as a warnings expert. The district court has wide latitude when
navigating the expert-qualification process. 102 And we will reverse only
“manifestly erroneous” determinations. 103
      Here, the district court’s decision was not “manifestly erroneous”;
sufficient evidence supports its ruling. Dr. Singhose is an experienced
mechanical engineering professor who has conducted research and taught
courses relating to hazard analysis and human–machine interactions. He has
worked with cranes and crane controls for the past two decades. He has also
designed small-scale cranes and drafted accompanying safety warnings. Over
his lengthy career, he has researched and read warnings about many types of
cranes. And he understands industry standards for warnings.
      Manitowoc cites no Fifth Circuit case where we held that a district court
abused its discretion by qualifying someone as an expert on the basis of an
imprecise match between the expert’s qualifications and the issue she planned
to testify about. Manitowoc’s conception of expertise could turn the expert-
qualification process into a “battle of labels” where expertise is defined so
narrowly that qualified experts are irrationally excluded from testifying. 104
The absurdity of this approach is apparent here: Manitowoc seeks to exclude a
mechanical engineer with a background in warnings and small-crane design
from testifying as an expert about warnings for a crawler crane. We decline to
adopt this approach. As long as there are “sufficient indicia” that an individual
will “provide a reliable opinion” on a subject, a district court may qualify that
individual as an expert. 105



      102 See Roman, 691 F.3d at 692; Huss, 571 F.3d at 452.
      103 See Guy, 394, F.3d at 325 (citations omitted) (emphasis removed).
      104 See id. at 693.
      105 See Huss, 571 F.3d at 455–56.

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                                      No. 17-60458
       Manitowoc’s quibbles about qualifications are better characterized as
arguments about the weight of Dr. Singhose’s testimony—not about its
admissibility. 106 But this battle should be fought with the conventional
weapons of cross-examination and competing testimony—not the nuclear
option of exclusion. 107 Thus, the district court did not manifestly err by
qualifying Dr. Singhose as a warnings expert.
       2. Admitting Evidence of 18000 Model Series Crane Accidents
       Manitowoc claims the district court improperly admitted evidence of
Manitowoc 18000 Model Series crane accidents and compounded the error by
constraining Manitowoc’s ability to challenge this evidence.
       “We afford the district court broad discretion in its evidentiary rulings
on relevance,” 108 so we review the court’s rulings for an abuse of discretion. 109
“A district court abuses its discretion when its ruling is based on an erroneous
view of the law or a clearly erroneous assessment of the evidence.” 110
Manitowoc also bears the burden of proving that the district court’s error
affected it substantial rights. 111
       We have previously advised district courts that “[w]hen evidence of other
accidents or occurrences is offered for any purpose other than to show notice,
the proponent of that evidence must show that the facts and circumstances of
the other accidents or occurrences are ‘closely similar’ to the facts and




       106See Huss, 571 F.3d at 452.
       107See Daubert, 509 U.S. at 596.
      108 Hicks-Fields v. Harris Cty., 860 F.3d 803, 809 (5th Cir.) (citing United States v.

Young, 655 F.2d 624, 626 (5th Cir. 1981)).
      109 See Heinsohn, 832 F.3d at 233.
      110 Id. (quoting Nunez, 604 F.3d at 844).
      111 See id.; Ball, 792 F.3d at 591.

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                                     No. 17-60458
circumstances at issue.” 112 And “even when it is offered solely to show notice,
the proponent of such evidence must establish reasonable similarity.” 113
      Manitowoc asserts that the district court erred in admitting evidence
about two accidents involving a different type of crane: the Manitowoc Model
18000 Series. To Manitowoc, the Model 18000 cranes and the circumstances
surrounding these accidents differ meaningfully from the crane and accident
in this case. For one, the Model 18000’s counterweight tray is designed
differently. Second, the accidents are dissimilar. Namely, “the counterweights
on the Model 18000 accidents did not hit the cab[,] and the individuals who
stayed in the cab during those accidents were uninjured.” These accidents, says
Manitowoc, are not relevant to Williams’s theory of the case, which focuses on
the danger of the counterweight hitting the cab and the corresponding injury
to the operator.
      Manitowoc summarily asserts these rulings amount to manifest,
prejudicial error.
      Williams raises both procedural and substantive responses to
Manitowoc’s position. Procedurally, Williams asserts Manitowoc waived these
evidentiary objections because it failed to raise them during trial.
      Assuming that Manitowoc did not waive the objections, the district court
did not err by admitting evidence about the Model 18000 crane accidents. 114
Those accidents involved similar circumstances and a similarly designed
crane. Both models were equipped with identical counterweights that were
similarly positioned, and both accidents involved unsecured counterweights
falling toward the cab during a tip-over. As the district court recognized,
admitting evidence regarding the prior accidents was relevant to determining


      112 Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir. 1993) (citations omitted).
      113 Id. at 580.
      114 See Heinsohn, 832 F.3d at 233.

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                                       No. 17-60458
what Manitowoc “knew, or in light of reasonably available information should
have known, about the alleged danger” that Williams asserts caused the
injuries. This is central to a failure-to-warn claim. Also, as the district court
acknowledged, the degree of similarity between the models (and the
circumstances surrounding the accidents) speaks to the weight of the
evidence—not the admissibility.
      Even if the district court had abused its discretion, Manitowoc failed to
carry its burden of proving that the court’s error was prejudicial. The jury
heard evidence about a 2009 crane collapse involving a Model 16000 crane. The
crane in that collapse was equipped with similarly configured unsecured
counterweights. The 2009 collapse also involved a tip-over where “one or more
of the unsecured counterweights fell toward the crane cab, striking the rear of
the cab”—the same thing that happened here. This alone supports Williams’s
position that Manitowoc failed to warn operators about the falling-
counterweight risk, despite knowing about it. So any error regarding the
admission of the Model 18000 Series accidents was harmless: The similar
Model 16000 accident provided the jury sufficient evidence to find Manitowoc
liable for its failure to warn about the falling counterweights. 115
      3. Excluding Evidence about Specific Instances of John’s Prior
         Conduct
      Manitowoc asserts that the district court abused its discretion by
denying Manitowoc the opportunity to introduce evidence about specific
instances of John’s prior conduct.
      Williams put John’s character as a crane operator at issue during the
direct examination of her witness, Willie Horne. Mr. Horne described John as
a “by-the-book” operator. During cross-examination, Manitowoc asked whether



      115   See Heinsohn, 832 F.3d at 233.
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                                        No. 17-60458
Mr. Horne knew that John had regularly overloaded his crane in the months
leading to the accident. Mr. Horne said “No.” 116
      Manitowoc was not satisfied with that response. Later, during a direct
examination, the company sought to elicit additional testimony about John’s
prior conduct. Specifically, Manitowoc wanted its witness to authenticate
evidence relevant to John’s “by-the-book” personality. Williams objected, and
the district court sustained the objection.
      Manitowoc thinks the district court abused its discretion. And
Manitowoc believes it has Federal Rule of Evidence 405(a) on its side. The Rule
states:
      When evidence of a person’s character or character trait is
      admissible, it may be proved by testimony about the person’s
      reputation or by testimony in the form of an opinion. On cross-
      examination of the character witness, the court may allow an
      inquiry into relevant specific instances of the person’s conduct. 117
      Under the plain language of Rule 405(a), the district court may allow
Manitowoc to cross-examine Mr. Horne about specific instances of John’s
character as a by-the-book operator. Indeed, the district court permitted this
line of questioning. Rule 405(a) does not, however, mandate that the trial court
allow a party to use direct examination of one of its own witnesses to elicit
specific character evidence about an opposing party. Thus, the district court
did not abuse its discretion in sustaining the objection to Manitowoc’s attempt
to elicit character evidence about John during the direct examination of one of
the company’s own witnesses.
      More important, Manitowoc did not demonstrate any prejudicial impact
of the district court’s alleged error. Manitowoc presented evidence that John’s
crane was overloaded at the time of the accident and that he misused the crane


      116   Williams admits she opened the door to that line of questioning.
      117   FED. R. EVID. 405(a) (emphasis added).
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                                        No. 17-60458
in other ways. 118 This evidence also speaks to John’s character as a crane
operator. Yet, the jury still concluded in John’s favor.
                                        CONCLUSION
      We AFFIRM the district court in full.




      118   See supra Part III(A)(2)(a) for discussion of Manitowoc’s argument about “misuse.”
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                                No. 17-60458
                                 APPENDIX
The Manitowoc Model 16000 Crane
     This diagram is adapted from the Operator’s Manual. To aid
comprehension, we added color to the components relevant to this appeal:
counterweights and the operator’s cab.




     This is a different view from the Manual. Again, we added color to one
counterweight and to the operator’s cab.




                                     29
