                    United States Court of Appeals,

                            Fifth Circuit.

                             No. 93-7706.

 Tony C. EILAND and Darlene Eiland, Plaintiffs-Appellees-Cross-
Appellants,

                                  v.

  WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellant-Cross-
Appellee.

                            July 14, 1995.

Appeals from the United States District Court for the Northern
District of Mississippi.

Before REAVLEY, DUHÉ, and PARKER, Circuit Judges.

     ROBERT M. PARKER, Circuit Judge:

     This product liability action is before us on cross appeals

attacking the jury's verdict for Plaintiffs on liability and

compensatory damages, as well as the trial court's directed verdict

for defendants on Plaintiffs' claims for failure to warn and

punitive damages.    We affirm the verdict on liability issues, and

vacate the damage award, allowing Plaintiffs to accept either

remittitur or a new trial on damages.

                                 FACTS

     On May 19, 1989, Plaintiff-Appellant, Tony Eiland (Eiland) was

injured when an explosion occurred in a high power circuit breaker.

Eiland was employed as a lineman for Starkville Electric Department

(Starkville Electric), a distributor of electricity in Starkville,

Mississippi.   Starkville Electric operated a substation which

utilized high power circuit breakers, including the one at issue

(Breaker 334), a 144GC500 oil circuit breaker manufactured and sold

                                   1
by Defendant-Appellee Westinghouse Corporation (Westinghouse) in

1960 to Tennessee Valley Authority (TVA).                 It was installed at the

Starkville substation which was operated by TVA until Starkville

Electric began operating it in 1983.

      During a storm in the early morning of May 19, 1989, a power

outage occurred and Eiland was dispatched to the substation.                         He

noticed that Breaker 334 was open, and he closed it manually.                      When

requested by another employee to re-open the breaker, he did so.

An explosion followed immediately, severely burning Eiland's hands,

arms, face, and torso.

      Oil circuit breakers are designed to protect other electrical

equipment in a distribution system by interrupting the electrical

current if a short circuit or other fault occurs in the system.

There are three pair of contacts in a large tank filled with oil,

each including a stationary contact and a moving contact.                       The oil

serves as an insulator to help extinguish arcs that occur inside

the   breaker    when       it    trips.   When     the    contacts      are    closed,

electricity is carried through the internal parts.                     When a breaker

operates to interrupt electric current, the contacts open or

separate.       Each    pair      of   contacts    operates     within     a    boxlike

structure    known     as    an    interrupter     grid   which    is    designed    to

extinguish    the    arc     which     naturally    occurs      when    the    contacts

separate.

      At    trial,     Eiland       contended     that    the    arc    escaped     the

interrupter grid, traveled through the oil to the side of the metal

tank (phase-to-ground arcing), puncturing a small whole in the tank


                                           2
and causing the explosion.            Breaker 334 was not equipped with an

insulating tank liner, which would have prevented phase-to-ground

arcing.     Defendants' theory of the case was that due to lack of

proper maintenance corrosion accumulated on the contacts, causing

arcing between the contacts (phase-to-phase arcing) which resulted

in an explosion.       Defendants concede that there was simultaneous

phase-to-ground arcing, but contend that it was not the cause of

the explosion.

     Eiland required five weeks of in-patient hospital care and

several   additional     weeks     of    out-patient     care,    which   included

painful debridement procedures and various surgeries.                He returned

to work part time after eight months, and full time after 21

months.     He developed extensive keloid scarring, and remains

approximately 30% to 40% disabled and badly disfigured. Because he

was unable to return to his job as a lineman, Starkville Electric

gave him a job as warehouse foreman, with a slight reduction in pay

and a ten year freeze on his salary.

     Eiland's lost earnings prior to trial were $30,081.00 and past

medical expenses were $172,744.00.

                                PROCEEDINGS BELOW

     Eiland    and    his   wife      Darlene   Eiland    filed   their   product

liability action on April 28, 1992 in Mississippi state court,

asserting    two     theories    of     liability:       strict   liability    and

post-sale negligent failure to warn. Westinghouse removed the case

to federal court on the basis of diversity.                The district court,

applying Mississippi substantive law, granted a directed verdict


                                          3
for Westinghouse on Eiland's post-sale negligent failure to warn

claim and the claim for punitive damages.               The liability questions

presented to the jury were (1) whether the circuit breaker was

defective and unreasonably dangerous when it left Westinghouse's

hands because its design did not include an insulating tank liner;

(2) whether Eiland was injured while Breaker 334 was being used in

a manner and for the purpose for which the product was intended;

and (3) whether the alleged defective condition of the product was

the sole cause or contributing cause of Eiland's injury.                  After a

six day trial, the jury found Westinghouse liable on the defective

design claim, and awarded Eiland $5,000,000 and Darlene Eiland $-0.

                                  LIABILITY

a. Eiland's expert

         Bill Adams, (Adams) a licensed electrical engineer, was

offered by Eiland as an expert witness to reconstruct the accident.

Eiland did not offer him as an expert in maintenance or design.

Westinghouse objected, and the trial court ruled that Adams was

qualified    to   state   an   opinion       on   how   the   accident   happened.

Westinghouse contends that Adams was not qualified to testify as an

expert.     Further, they contend that he gave opinions concerning

design, an area that was outside his area of expertise.

         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.      The admission or exclusion of expert

testimony is a matter left to the discretion of the trial court,

and that decision will not be disturbed on appeal unless it is


                                         4
manifestly erroneous.        Smogor v. Enke, 874 F.2d 295, 297 (5th

Cir.1989).    See also Phillips Oil Co. v. OKC Corp., 812 F.2d 265,

280 n. 32 (5th Cir.1987) (explaining that the "manifest error"

standard is harmonious with the "abuse of discretion" standard as

applied to this issue in other Fifth Circuit cases).

      Adams began his testimony by explaining how Breaker 334

worked.   Adams then testified that after studying Breaker 334 and

the materials related to it, he formed an opinion that indentations

or craters on the side of the tank wall were caused by arcing over

many years.   He also testified that arcing to the tank wall caused

a hole in the tank which resulted in the explosion that injured

Eiland, and the presence of a tank liner would have prevented arcs

from reaching the tank wall.

      The opinions stated by Adams were based on observations of the

tank wall and the internal equipment of the breaker, and are within

the   expertise    of   an     engineer   with   Adams's   experience.

Westinghouse's objections, in effect, attacked Adams's credibility.

After reviewing the record, we have concluded that Adams was

qualified to give opinions in the areas covered in his testimony,

and that the opinions were helpful to the jury in understanding the

evidence and determining a fact in issue.        Further, a reasonable

jury could have credited Adams's testimony. Therefore, there is no

merit in Westinghouse's contention that the trial court abused its

discretion in admitting Adams's testimony.

b. Post-sale evidence

       Westinghouse contends that the district court abused its


                                    5
discretion in admitting evidence of post-sale incidents involving

similar breakers and post-sale design changes.      Their position is

bottomed on the assertion that the evidence was not admissible

because it was not relevant under Federal Rule of Evidence 401, and

if relevant, its probative value was outweighed by the danger of

unfair prejudice, and therefore inadmissible under Federal Rule of

Evidence 403.    Because of his or her involvement in the trial, a

district court judge often has superior knowledge and understanding

of   the    probative   value   of   evidence.   Therefore,   we   show

considerable deference to the district court's evidentiary rulings,

reviewing them only for abuse of discretion. Johnson v. Ford Motor

Co., 988 F.2d 573, 578 (5th Cir.1993).

     Evidence showed that at least ten other 144GC breakers failed

or exploded prior to the accident that injured Eiland.        In 1966 a

corrective baffle was installed in Breaker 334, as well as most

other 144GC breakers, to prevent "improper arcing."      Westinghouse

characterized the addition of the baffle as a post-sale design

change to correct an unrelated problem, and moved to keep it out of

evidence.    Eiland contends that Westinghouse made the addition of

the baffle relevant by arguing that the breaker's arcing problem

was caused by poor maintenance.          There were two marks on the

breaker that resulted from arcing before the baffle was added in

1966.   The trial court admitted Eiland's evidence which tended to

show that there had been an arcing problem while TVA had the

breaker, and that the arcing problem was therefore not caused by

poor maintenance as Westinghouse argued.


                                     6
       Next, the district court admitted evidence that other 144GC

breakers had failed.       Eiland had to show that the incidents of

failure or explosions were substantially similar to the accident

here in order to establish admissibility under FED.R.EVID. 403,

which requires the trial court to balance probative value against

danger of unfair prejudice.          Johnson v. Ford Motor Co., 988 F.2d

573, 579 (5th Cir.1993).       After hearing the evidence about other

failed breakers, the trial court ruled that the incidents were not

similar   enough   to   the   case    on   trial     to   establish   post   sale

negligence.

       The district court initially admitted evidence of the "Puget

Sound Study" in which Westinghouse conducted tests to determine

whether tank liners were required in the 144GC breakers after one

such   breaker   failed.      The    study    concluded     that   tank   liners

prevented arcing to the tank wall.           Westinghouse contends that the

study is irrelevant because the breakers were being used in a

dissimilar    application:      testing      fuses    instead   of    protecting

against short circuits. Eiland contends that evidence of the study

was relevant to refute Westinghouse's contention that in developing

the breakers during the 1960's and 1970's all testing was done

without a tank liner and to prove that phase-to-ground arcing

occurred in a well maintained breaker, albeit in a different

application. The study itself was excluded, but the district court

allowed Eiland to question experts about aspects of the study.

Later in the trial, the district court ruled that evidence of the

study was not admissible, and it was excluded.


                                       7
      Finally, evidence was admitted concerning the addition of tank

liners to 144GC breaker design. Westinghouse changed the design of

these breakers by adding tank liners in May of 1960.                However, the

new breakers containing liners were not marketed until early 1961.

The breaker involved in this case was placed in the stream of

commerce in October of 1960, after the design change.

      This case involved complex scientific evidence.               The evidence

concerning the addition of baffles, the causes for other failed

breakers,   and    the   effect    of    tank-liners      was   relevant    to     the

question    of    both   the    results       of   the   phase-to-ground        arcing

phenomenon inside 144GC breakers and whether that phenomenon was a

cause, in fact, of the explosion in this case.                  Equally relevant

was   Westinghouse       testimony       attributing      the   cause      to    poor

maintenance and corroded contacts.                 The district court did not

abuse its discretion in admitting the evidence either under Rule

401 or Rule 403.

c. Defect and Causation

       Westinghouse contends that there was not sufficient evidence

that a design defect caused Eiland's injury to warrant submitting

the case to the jury.          Eiland introduced competent evidence that,

if    believed,    would       support    the      liability    finding     against

Westinghouse:      phase-to-ground arcing caused the explosion, and an

insulating tank liner would have prevented such arcing.                          Under

Mississippi law, the jury had to find that the defect, lack of a

tank liner, was a contributing cause of the injury.               Ford Motor Co.

v. Matthews, 291 So.2d 169, 176 (Miss.1974) (citing RESTATEMENT


                                          8
(SECOND)   OF   TORTS § 402A (1965)). There was ample evidence to support

the jury's liability determination.

       In the alternative, Westinghouse argues that to the extent

that Eiland's proof of defect had any probative value, it was

substantially         outweighed   by    proof    that    there   was    no   defect.

Westinghouse relies on the assertion that their experts were better

qualified than Eiland's expert, and their theory of the case more

plausible.       However, the jury could have decided that any or all of

Westinghouse's evidence lacked credibility, including the expert

testimony.        This argument has no merit.

                                        DAMAGES

a. Future Medical Damages

       Westinghouse contends that there was no competent evidence to

support an award of future medical damages. Under Mississippi law,

the general rule is that where it is established that future

consequences from an injury to a person will ensue, recovery

therefor        may   be   had,   but   such     future   consequences        must   be

established in terms of reasonable probabilities.                       Flight Line,

Inc. v. Tanksley, 608 So.2d 1149 (Miss.1992);                     Entex, Inc. v.

Rasberry, 355 So.2d 1102, 1104 (Miss.1978).                 Eiland has developed

extensive keloid scarring over the burned portions of his body.                      He

had surgery to relieve contractures in his wrist, fingers and

thumbs prior to trial, and will, in all reasonable probability,

require additional surgical relief from contractures as the scars

age.    Dr. Love, Eiland's treating physician, testified that a

procedure known as skin culturing was available to correct some of


                                           9
the keloid scarring, but there were some drawbacks in Eiland's case

that would have to be considered.

       The estimates for future medical expenses relating to skin

culturing ranged from $100,000—$500,000, depending on a number of

factors, including the extent to which Eiland subjects himself to

the procedure, its success and the problems encountered in its

application to Eiland.       The evidence also included information

about more traditional surgery that Eiland faces in the future.

Such estimates of future medical expenses, if accompanied by the

range of variables applicable in a given case, permit the jury to

evaluate future    medical   needs    and      to   make   findings    based    on

reasonable probability in accordance with the jury instructions.

The evidence established the reasonable probability that Eiland

will   require   future   surgical   treatment,        and   created    a   fact

question,   properly   circumscribed      by    specifics,    concerning       the

dollar amount of future medical expenses appropriate for resolution

by the jury.

b. Future Lost Earnings

       Eiland offered evidence of future lost earning capacity, but

neither Eiland or Westinghouse offered evidence of work life

expectancy or of a discount rate.         At the charge conference, the

parties and court discussed how to instruct the jury on reducing

future lost earnings to present value.                Eiland submitted, but

withdrew, a request for instructions requiring the jury to reduce

any award of future damage to present value. Westinghouse took the

position that it was Eiland's burden to put on proof to support


                                     10
reduction to present value, and it is not the defendant's burden to

fill in the holes in a plaintiff's case. However, Westinghouse did

not   object   to   the    fact      that    the    charge       did    not    include   an

instruction on reducing future lost earnings to present value.

They argue on appeal that because Eiland failed to present evidence

to support an instruction on reduction to present value, it was

error to allow future lost earnings to go to the jury at all.

Eiland responds that Westinghouse's failure to put on evidence or

request a jury instruction on the issue is fatal to their claim

here.

        Under Mississippi law, an instruction on present value

reduction of lost earnings is proper on request of the defendant if

there is evidence to support it, but is waived without proper

request.       Young      v.    Robinson,          538    So.2d        781    (Miss.1989).

Westinghouse    asks      us    to    hold       that    failure        to    request    the

instruction    in   this       case   did     not       amount    to     waiver   because

Westinghouse was of the opinion that there was no evidence to guide

the jury in deciding the appropriate amount of reduction.                         There is

no Mississippi case that supports that position.

      There was sufficient evidence for the jury to accurately

calculate future work life expectancy and future lost wages.

Westinghouse waived any error in the damage instructions by failing

to object to the instructions or request a specific instruction on

reduction of future damages to present value.

c. Remittitur

        Of the $5 million in compensatory damages awarded to Eiland,


                                            11
approximately     $3.6    is   noneconomic     loss,    including     pain   and

suffering, disfigurement, and impairment not accounted for in lost

wages.    Westinghouse made a post-trial motion for new trial or for

remittitur, which the district court denied.

      Mississippi law provides that a court may grant a remittitur

if it finds that the damages are excessive "for the reason that the

jury or trier of the facts was influenced by bias, prejudice, or

passion,    or   that    the   damages    awarded    were   contrary    to   the

overwhelming weight of credible evidence.             If such ... remittitur

be not accepted then the court may direct a new trial on damages

only."     MISS.CODE ANN. § 11-1-55 (1972).         Likewise, this circuit's

case law provides for remittitur if the award is excessive, and new

trial on damages alone if the plaintiff declines the remitted

award.     Westbrook v. General Tire and Rubber Co., 754 F.2d 1233,

1242 (5th Cir.1985); Caldarera v. Eastern Airlines, Inc., 705 F.2d

778, 786 (5th Cir.1983).

         There is a strong presumption in favor of affirming a jury

award of damages.       The damage award may be overturned only upon a

clear showing of excessiveness or upon a showing that the jury was

influenced by passion or prejudice.           Westbrook v. General Tire and

Rubber Co., 754 F.2d 1233, 1241 (5th Cir.1985).              The decision to

grant or deny a motion for new trial or remittitur rests in the

sound discretion of the trial judge;           that exercise of discretion

can be set aside only upon a clear showing of abuse.            Id.    However,

when this court is left with the perception that the verdict is

clearly excessive, deference must be abandoned.


                                         12
       A verdict is excessive if it is "contrary to right reason" or

"entirely disproportionate to the injury sustained."                    Caldarera v.

Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983).                         While

pain    and   suffering       is    not    easily    susceptible        to    monetary

quantification, and the jury has broad leeway, "the sky is simply

not the limit for jury verdicts, even those that have been once

reviewed."       Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427

(5th Cir.1988).        Eiland no doubt experienced intense pain during

his    initial     treatment,        and     was   left    with     a   lifetime     of

disfigurement and some degree of disability.                    However, he was able

to return to work part time within a few months, and full time by

the end of two years.              After a review of the record, we have

concluded     that     the   $5    million    verdict     was    excessive     and   the

district court abused its discretion in denying Westinghouse's

motion for remittitur.

        Our power to grant a remittitur is the same as the district

court's.      We determine the size of the remittitur in accordance

with this circuit's "maximum recovery rule" by reducing the verdict

to the maximum amount the jury could properly have awarded.                       Dixon

v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985).

Of course, our reassessment of damages cannot be supported entirely

by    rational    analysis,        but   involves    an    inherently        subjective

component.       Id.   In our view, $3 million is the maximum the jury

could properly have awarded in this case.

                                    CROSS APPEAL

       The Eilands cross-appealed, contending that in the event


                                           13
Westinghouse should be granted a new trial on any issue, the new

trial should include evidence excluded in the first trial, and

reconsideration of Darlene's Eiland's claim for damages.              Because

of   our   disposition   of   the   remainder   of   this   appeal,    it   is

unnecessary to address the Eilands' claims.          If Eiland chooses not

to accept the remittitur, and elects a new trial, that trial will

be limited to the question of the appropriate amount of Eiland's

compensatory damages. Darlene Eiland has not raised any issue that

would merit disturbing the jury's verdict of awarding $-0- damages

on her claim.

                                CONCLUSION

      The verdict of the jury and the judgment of the district court

on the issue of liability is AFFIRMED.       We VACATE the jury's damage

award of $5 million.      We offer Eiland a remittitur of the jury

award to $3 million or a new trial on compensatory damages alone.




                                     14
