     Case: 17-20631      Document: 00514634552         Page: 1     Date Filed: 09/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-20631                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                   September 10, 2018

RICHARD NORMAN,                                                         Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellant

v.

GROVE CRANES U.S., L.L.C.,

              Defendant – Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-765


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant      Richard     Norman      filed    suit    against           various
defendants as the result of injuries sustained during his employment. A jury
trial was held and at the close of Norman’s case-in-chief, the only remaining
defendant, Grove Cranes, U.S., LLC, moved for judgment as a matter of law
and the district court granted the motion. We affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                      I.     Facts & Procedural History
      On September 6, 2013, Richard Norman sustained injuries while
working as a certified rigger for KBR, Inc. at a facility in LaPorte, Texas owned
by E.I. DuPont de Nemours (“DuPont”).            According to Norman, while
performing his job duties on that date, he suffered severe injuries when a crane
jib rolled onto him and pinned him against the crane. DuPont had purchased
the Grove RT650E crane (“the Crane”) that was involved in Norman’s incident
from H&E Equipment Services, LLC in February 2012.              The Crane was
manufactured and designed by Manitowoc Cranes, LLC.
      Norman filed suit in April 2014 alleging various negligence claims
against DuPont, H&E Equipment Services, LLC, H&E Equipment Services,
Inc. (collectively, “H&E”), Manitowoc Cranes, LLC, Manitowoc Cranes, Inc.
(collectively, “Manitowoc”), and later amended his complaint to add Grove
Cranes, U.S., LLC (“Grove”) as a defendant. In his complaint, Norman claimed
that he had sustained substantial injuries all over his body including his head,
neck, back, shoulder, arm, chest, ribs, kidney, and adrenal gland. Norman also
alleged mental anguish and distress and a loss of current and future earning
capacity as a result of his injuries.         He sought exemplary damages.
      Manitowoc and H&E were eventually dismissed from the suit and the
district court granted summary judgment in favor of Dupont. Thus, the only
remaining defendant at the time of the jury trial was Grove. According to
Norman, during the pre-trial discovery period, he requested that Grove
“produce actual draft design drawings related to the prior design of the crane
at issue and similar Grove cranes.”        Grove never produced the requested
materials, however, and the discovery period closed. One month later, Norman
filed a motion to compel and re-open discovery, which the district court denied.
      When the case was tried in May and June 2017, Norman’s only
remaining claim was for negligent design defect. Norman’s products liability
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                                       No. 17-20631
theory was that the boom extension on the crane was improperly designed
because it required the person storing the boom after deployment to stand
under the extension, i.e., a suspended load, to do so. Norman’s position was
that a safer alternative design would allow the person storing the boom after
deployment to stand to the side of the extension so there would not be a
suspended load above them which could potentially fall and cause injuries to
the person underneath, as Norman alleged happened here. 1
       At trial, Norman sought to introduce the expert testimony of Gregg
Perkin who was to offer his opinion on a safer alternative design for the Crane.
The district court, however, entered an order striking Perkin from testifying
as to a safer alternative design on grounds that he did not complete an analysis
or form any type of opinion on a safer alternative design or the economic
feasibility of one. Instead, the district court allowed Perkin to testify as to a
“single point of failure” which, in essence, was testimony that the Crane was
dangerous because it required a person to stand under a suspended load to
store the boom after deployment.
       Since the district court prohibited Perkin from testifying as to a safer
alternative design, the question became whether Norman could prove that
element of his products liability claim without expert testimony. The district
court solicited from Norman a controlling case where a lay person was
permitted to testify as to a safer alternative design in a products liability case
but Norman failed to produce one. Instead, Norman attempted to use his own
testimony to show that a safer alternative design would be a previous model of




       1On appeal, Grove points to portions of Norman’s deposition wherein he admits that
he “probably didn’t” properly install the hitch pin in the rear stowage bracket before removing
the pins on the boom nose, suggesting that Norman’s failure to do so left the jib unsecured,
causing it to fall and push him against the crane, leading to his injuries. Norman does not
address this issue on appeal.
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a Grove crane that did not require a person to stand under a suspended load
to store the boom after deployment.
      At the close of Norman’s case-in-chief, Grove filed a motion for judgment
as a matter of law on grounds that Norman had failed to produce competent
admissible expert testimony of safer alternative design as required under
Texas law in design defect and products liability cases. The district court
granted the motion and the jury was dismissed. Norman then filed a motion
for a new trial. The district court denied Norman’s motion and Norman filed
this appeal.
      On appeal Norman asserts that the trial court erred in denying his
motion for a new trial and in granting Grove’s motion for judgment as a matter
of law after striking Perkin’s opinion on safer alternative design. Norman
complains that the reason he lacked expert testimony on a safer alternative
design was because Grove would not produce the discovery documents that
Norman had requested. According to Norman, the district court’s decision to
strike his sole liability expert constituted an improper sanction that was fatal
to his case and, in his own terms, a “death penalty sanction.”             In the
alternative, Norman advances that the trial court erred in concluding that
expert testimony was required to prove the element of safer alternative design.
We disagree on all counts.
                             II.    Standard Review
      “Discovery rulings are committed to the sound discretion of the trial
court and will not be reversed on appeal unless arbitrary or clearly
unreasonable.” Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 631
(5th Cir. 2014) (internal quotation marks and citation omitted).
       When this court reviews an evidentiary ruling that precedes a judgment
as a matter of law, the evidentiary ruling is reviewed first, to define the record,
and the judgment as a matter of law is reviewed second. See Allen v. Pa. Eng’g
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Corp., 102 F.3d 194, 196 (5th Cir. 1996). “Regarding the expert testimony, we
review   evidentiary   rulings     ‘under       the   deferential   abuse-of-discretion
standard.’” Johnson v. Thibodaux City, 887 F.3d 726, 736 (5th Cir. 2018)
(quoting Koch v. United States, 857 F.3d 267, 277 (5th Cir. 2017)). The district
court is afforded “wide latitude in determining the admissibility of expert
testimony, and the discretion of the trial judge and his or her decision will not
be disturbed on appeal unless manifestly erroneous.” Id. Our review of a
district court’s ruling on a motion for judgment as a matter of law is de novo
and we apply the same standard as the district court. Carley v. Crest Pumping
Techs., LLC, 890 F.3d 575, 578 (5th Cir. 2018) (citing Heck v. Triche, 775 F.3d
265, 272 (5th Cir. 2014)).
      A district court’s decision to deny a motion for a new trial is reviewed for
abuse of discretion. Carley, 890 F.3d at 578 (citing Pryor v. Trane Co., 138 F.3d
1024, 1026 (5th Cir. 1998)).
                                 III.       Discussion
      Under Texas law, in a products liability action in which a claimant
alleges a design defect, the claimant must prove by a preponderance of the
evidence that there was a safer alternative design and that “the defect was a
producing cause of the personal injury . . . for which the claimant seeks
recovery.” See Tex. Civ. Prac. & Rem. Code § 82.005(a). The Texas Supreme
Court has explained:
            A safer alternative design is one that would have
            prevented or significantly reduced the risk of the
            injury, would not substantially impair the product’s
            utility, and was economically and technologically
            feasible at the time. This design need not be actually
            built and tested; a plaintiff must show only that the
            alternative design was “capable of being developed.”
            Importantly, however, the alternative design must not
            be one that would “under other circumstances, impose
            an equal or greater risk of harm.”
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See Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 7 (Tex. 2015).
      This court has recently acknowledged that “[u]nder Texas law, ‘expert
testimony is generally encouraged if not required to establish a products
liability claim.’” Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 409 (5th Cir.
2016). We have also noted that, “expert testimony is crucial in establishing
that the alleged design defect caused the injury.” Id. (holding that the district
court was correct in concluding that “without admissible expert testimony, the
plaintiffs [could not] raise a genuine issue of material fact concerning key
elements of their products liability claim”). Moreover, numerous intermediate
Texas courts and federal district courts have granted judgments in favor of
defendants where no admissible expert testimony was offered to prove the
existence of a safer alternative design. See Champion v. Great Dane Ltd.
P’ship, 286 S.W.3d 533, 542–43 (Tex. App.—Houston 2009); Guzman v. Synthes
(USA), 20 S.W.3d 717, 722 (Tex. App.—San Antonio 1999); Metropolitan Lloyds
Ins. Co. of Tex. v. Louisiana-Pac. Corp., No. A-16-CA-00424-SS, 2017 WL
4211025, at *4 (W.D. Tex. Sept. 21, 2017); Samuell v. Toyota Motor Corp., No.
MO-13-CV-47, 2015 WL 1925902, at *5–6 (W.D. Tex. Apr. 27, 2015); Reberger
v. Bic Corp., No. CIV. A. 700CV005-R, 2001 WL 1143154, at *7 (N.D. Tex. Sept.
25, 2001).
      Turning to Norman’s first argument, we address whether the district
court erred in striking Norman’s expert from testifying as to a safer alternative
design. We hold that it did not. As the district court stated in its order
granting Grove’s motion to exclude Perkin’s testimony, “Mr. Perkin’s
deposition makes it clear that he has failed to form an opinion regarding safer
alternative designs and economic feasibility.” The district court then notes
Perkin’s responses from his deposition wherein he admits that he has no safer
alternative design. The district court goes on to analyze Norman’s argument

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that Perkin was unable to form an opinion regarding safer alternative design
because Grove failed to produce the documents requested, i.e., the “draft design
drawings related to the prior design of the crane at issue and similar Grove
cranes.” The district court expressed its disagreement with this argument
pointing out that Norman knew at least 83 days prior to the close of discovery
that Perkin needed additional documents to form his expert opinion on safer
alternative design but failed to file a motion to compel until a month after the
close of discovery. The district court noted that Norman’s “failure to seek Court
intervention via a motion to compel before the end of discovery shows a lack of
diligence in seeking documents [he] now claims are indispensable to his
expert’s ability to render a required opinion.”      The district court further
observed that Norman had “completely failed to show good cause for reopening
discovery.”
      Our review of the record indicates that the district court was within its
sound discretion in denying Norman’s motion to compel discovery given the
amount of time Norman had to obtain the requested documents prior to the
discovery deadline or, at bare minimum, to file the motion to compel production
of those documents. See Haase, 748 F.3d at 631 (holding that “[d]iscovery
rulings are committed to the sound discretion of the trial court and will not be
reversed on appeal unless arbitrary or clearly unreasonable”). Additionally,
given that Perkin admitted that he had not formed an opinion regarding a safer
alternative design, much less its economic feasibility, the district court was
clearly warranted in striking Perkin’s testimony on the issue of safer
alternative design. See Johnson, 887 F.3d at 736 (noting that the district court
has “wide latitude in determining the admissibility of expert testimony, and
the discretion of the trial judge and his or her decision will not be disturbed on
appeal unless manifestly erroneous”).


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                                 No. 17-20631
      Finally, on the record before us, we see no merit in Norman’s alternative
argument that the trial court erred in concluding that expert testimony was
required to prove the element of safer alternative design. Norman’s argument
before the district court, and on appeal before this court, is that expert
testimony is not required to prove safer alternative design. Norman suggests
that as an experienced rigger, he can provide lay witness testimony as to a
safer alternative design for the Grove crane because he is aware of a previous
model of a Grove crane where the person storing the boom after deployment
were not required to stand under the extension, i.e., a suspended load, to do so.
   In granting Grove’s motion for judgment as a matter of law, the district
court stated:
            [T]here has not been one case cited to this Court on
            safer-alternative design evidence provided by lay
            witnesses in a case, either in the Southern District of
            Texas or another district court in the State of Texas,
            or by way of the Fifth Circuit, or the Texas—or the
            Texas Supreme Court, or the United States Supreme
            Court where lay witnesses have testified for purposes
            of a design defect as to safer-alternate design in a case
            involving a crane or any other equipment of that ilk;
            and obviously I believe that if they had, if such case
            existed, the Court would have been made aware of it
            through its own research and, more importantly,
            through plaintiff’s counsel pointing that case out to
            this Court. The Court concedes that there are cases in
            which it has been suggested that there are situations
            in which safer-alternative design could be proven up
            by lay witnesses. That case where it has occurred
            hadn’t been provided to this Court.

The district court went on to note that the Crane at issue was a complicated
piece of machinery and that “[c]rane design and feasibility of safer alternative
crane designs is not something within the common experience of the jury.” The
district court also observed that Norman’s lay witness testimony as to safer

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alternative design failed to address economic feasibility as required under the
applicable law.
      Our review of the applicable law and the record evidence reveals that the
district court’s analysis of this issue was correct given the facts and
circumstances of this case—Norman’s lay witness testimony was clearly
insufficient to carry his burden of proof as to his products liability claim against
Grove.   See Tex. Civ. Prac. & Rem. Code § 82.005(a) (providing that the
claimant must prove by a preponderance of the evidence that there was a safer
alternative design); Genie Indust., Inc., 462 S.W. 3d at 7 (noting that “a safer
alternative design is one that would have prevented or significantly reduced
the risk of the injury, would not substantially impair the product’s utility, and
was economically and technologically feasible at the time”). Additionally, as
the district court observed, Norman failed to produce any controlling case law
involving safe alternative design offered by a lay witness to successfully prove
a products liability case. While the district court may have properly concluded
that there is no controlling case law strictly prohibiting a lay witness from
testifying as to safer alternative design, Norman did not succeed in doing so
here, given that the complex nature of crane design is very likely outside of the
common experience of the jury.
      In light of these conclusions, we hold that the district court’s judgment
as a matter of law in favor of Grove was proper. See Carley, 890 F.3d at 578.
                               IV.       Conclusion
      For the aforementioned reasons, we affirm the district court’s judgment
as a matter of law in favor of Grove.        We also affirm the district court’s
judgment denying Norman’s motion for a new trial.




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