     Case: 10-31183     Document: 00511713937         Page: 1     Date Filed: 01/04/2012




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

                                                                            FILED
                                                                          January 4, 2012

                                       No. 10-31183                        Lyle W. Cayce
                                                                                Clerk

JAMES J. AYO, III; ROBERT F. BOYKIN; CLARK DAVIS, III; DEQUAL D.
PLEASANT,

                                                  Plaintiffs–Appellants,
v.

TRIPLEX, INCORPORATED,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-688


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
        James Ayo, Robert Boykin, Clark Davis, and DeQual Pleasant (the
Workers) filed suit against Triplex, Inc. They alleged that Triplex was liable to
them for injuries they sustained after a chlorine gas leak occurred at their
workplace. Triplex sold the chlorine hose that ruptured in the incident. The
United States District Court for the Middle District of Louisiana granted
summary judgment in favor of Triplex. The Workers now appeal. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       No. 10-31183


                                               I
      The Workers contend that they were injured when chlorine gas leaked
from a hose at a Honeywell International, Inc. facility. At the time, they were
working for another company, Proserve Hydro, that is not a party to this suit.
The Workers asserted that the chlorine gas leaked from a hose sold to Honeywell
by Triplex. The Workers filed suit under Louisiana law against Honeywell,
Triplex, Lee Hunsucker (a Honeywell plant manager), and the Illinois Central
Railroad Company. The Workers argued that Triplex was liable for their
injuries, either by virtue of negligence or as the manufacturer of the failed hose.
The non-Triplex defendants are not parties to this appeal.
      Triplex moved for summary judgment below, arguing that it was not a
“manufacturer” within the meaning of the Louisiana Products Liability
Act1 (LPLA) and had not acted negligently in distributing the hose. The Workers
filed a cross-motion for summary judgment. According to the declarations
attached to Triplex’s motion, Crane Resistoflex manufactures hoses comprised
of a Teflon “‘inner-core,’” described as “a plastic tube in the center of the hose,”
surrounded by Hastelloy-braided material, described as “the reinforcing cover
of the hose.” Together, these are known as “Resistoflex Part # HB30HB30HB-
1560.” These parts are shipped in bulk to Triplex and other distributors.
Triplex, upon placement of an order by a customer, “cuts it to the desired length,
and then installs Resistoflex-approved fittings on each end. The hose is then
visually inspected, pressure-tested and all information is recorded on the test
certificate.” If a customer requests, Triplex wraps the hose with a “spiral scuff
guard made by F&R Manufacturing” that protects it “from being scraped,
nicked[,] or cut.” The record includes a “RESISTOFLEX CHLORINE HOSE


      1
          LA. REV. STAT. ANN. § 9:2800.53(1) (2009).

                                              2
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                                  No. 10-31183

ASSEMBLY         TEST     CERTIFICATE”          listing    “MANUFACTURER:
RESISTOFLEX” for the hose involved in the instant incident. The record also
includes a declaration from a Honeywell employee that Honeywell specified the
parts of the hose: “Honeywell’s specifications called for use of a Teflon®
Hastelloy-braided hose (Resistoflex Part #HB30HB30HB-1560) that is
manufactured by Resistoflex and supplied by Triplex, and with 300# ANSI Hast-
C flanges on each end of the hose.”
      Additionally, the parties attached declarations to their motions regarding
the potential causes of the rupture in the hose. James Lloyd, P.E., a reliability
engineering leader at Honeywell, declared that the hose ruptured “at least a foot
away from the closest end-fitting.” This view was echoed by the Workers’ expert,
Ara Nalbandian, P.E. In his deposition, Nalbandian affirmed that he believed
the rupture occurred two to three feet from the end fittings and that Triplex’s
installation of the end fittings on the finished hose had not played any role in the
rupture.
      Both parties also attached Appendix A of the Chlorine Institute’s
Pamphlet 6 (Institute Pamphlet) to their summary judgment briefs. In their
briefs on appeal, both parties reference the Institute Pamphlet to demonstrate
what the general industry practices were for those considered “manufacturers”
or “assemblers” within industry parlance.
      The district court granted Triplex’s motion for summary judgment and
denied the Workers’ cross-motion. The court concluded that Triplex was not a
“manufacturer” within the meaning of the LPLA; that—insofar as the Workers
had argued it by implication—Triplex was not an apparent manufacturer; and
that Triplex was not liable in tort. With regard to the merits of the district
court’s rulings, the Workers appeal only the district court’s determination that
Triplex was not a “manufacturer” within the meaning of the LPLA.



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                                          No. 10-31183

                                                II
       As a threshold issue, Triplex contends that the Workers’ notice of appeal
is infirm. It contends that defects in the notice of appeal may have rendered this
court without jurisdiction to consider the Workers’ appeal. We review our
subject matter jurisdiction de novo.2 The notice of appeal stated:
             PLEASE TAKE NOTICE that Walter C. Dumas and Dumas
       & Associates Law Corporation hereby appeal to the United States
       Court of Appeals for the Fifth Circuit the District Court’s October
       13, 2010, Judgment granting defendants Motion for Summary
       Judgment.
Dumas and his law firm were counsel of record for all four of the Workers. All
of the Workers’ names were listed in the case caption included in the notice of
appeal. The district court’s ruling granting summary judgment in favor of
Triplex was, in fact, dated October 13, 2010.
       The notice of appeal was sufficient. Federal Rule of Appellate Procedure
3(c)(4) states, “An appeal must not be dismissed . . . for failure to name a party
whose intent to appeal is otherwise clear from the notice.” Moreover, we have
held that the “‘primary purpose’” of the Federal Rules of Appellate Procedure is
“‘the securing of speedy and inexpensive justice in a uniform and well ordered
manner’” rather than “‘to set traps and pitfalls by way of technicalities for
unwary litigants.’”3 Accordingly, our inquiry is not whether specific individuals
are named, but rather whether a notice of appeal “contains the identity of the
party or parties appealing.”4 Here, though perhaps inartfully, the notice of
appeal indicated that the counsel of record for the four Workers intended to
appeal the order granting summary judgment, providing the date included on


       2
           Garcia-Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003).
       3
        Hernandez v. Thaler, 630 F.3d 420, 425 (5th Cir. 2011) (per curiam) (quoting Des Isles
v. Evans, 225 F.2d 235, 236 (5th Cir. 1955)).
       4
           Bailey v. Cain, 609 F.3d 763, 765 (5th Cir. 2010), cert. denied, 131 S. Ct. 931 (2011).

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                                         No. 10-31183

the district court’s ruling. Indeed, under the Rules “an attorney representing
more than one party may describe those parties with such terms as ‘all
plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except
X.’”5 Given the permissibility of such blanket terms, and that the rules do not
set “traps” for the unwary, the statement that “Walter C. Dumas” intended to
appeal the instant summary judgment and the inclusion of all four of the
Workers’ names in the case caption sufficed.
                                             III
       Addressing the merits of this appeal, the Workers contend that the district
court improperly granted summary judgment to Triplex. They argue that
Triplex is a manufacturer within the meaning of the LPLA, and they argue that
they are entitled to summary judgment in their favor. We review a grant of
summary judgment de novo.6
       The Louisiana Supreme Court has identified four elements that a plaintiff
must establish to maintain an action for products liability under the LPLA:
       (1) that the defendant is a manufacturer of the product; (2) that the
       claimant’s damage was proximately caused by a characteristic of the
       product; (3) that this characteristic made the product “unreasonably
       dangerous;” and (4) that the claimant’s damage arose from a
       reasonably anticipated use of the product by the claimant or
       someone else.7
The district court concluded that the first requirement was not met. As is
relevant here, the LPLA provides the following definition of “manufacturer”:
       (1) “Manufacturer” means a person or entity who is in the business
       of manufacturing a product for placement into trade or commerce.


       5
           FED. R. APP. P. 3(c)(1)(A).
       6
       Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (citing Whitt v.
Stephens County, 529 F.3d 278, 282 (5th Cir. 2008)).
       7
         Jack v. Alberto-Culver USA, Inc., 2006-1883, p. 4 (La. 2/22/07); 949 So. 2d 1256, 1258
(citing LA. REV. STAT. ANN. § 9:2800.54(A)).

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       “Manufacturing a product” means producing, making, fabricating,
       constructing, designing, remanufacturing, reconditioning or
       refurbishing a product. “Manufacturer” also means:
       (a) A person or entity who labels a product as his own or who
       otherwise holds himself out to be the manufacturer of the product.
       (b) A seller of a product who exercises control over or influences a
       characteristic of the design, construction or quality of the product
       that causes damage.
       (c) A manufacturer of a product who incorporates into the product
       a component or part manufactured by another manufacturer.8
Sitting in diversity, this court seeks to determine “what the highest court of the
state would decide,”9 and we have recognized that a “‘decision by an intermediate
appellate state court is a datum for ascertaining state law.’”10
       The decision of a Louisiana court of appeals in Haley v. Wellington
Specialty Insurance Co.,11 relied upon by both the district court and Triplex, is
instructive. In that case, Haley was fatally electrocuted while installing an
electric sign. The sign was sold by retailer Ward, who ordered it from Sign
Builders. Ward contended that he was not a “manufacturer” of the sign within
the meaning of the LPLA.12 The court had the following facts before it:
       (1) Ward ordered the sign from Sign Builders; (2) Sign Builders
       manufactured the sign, including the installation of the ballast and
       shipped the sign to Ward; (3) Ward performed certain acts with
       regard to the sign, including extending the power cord of the sign to


       8
           LA. REV. STAT. ANN. § 9:2800.53(1) (2009).
       9
         Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992)
(citations omitted).
       10
          First Nat’l Bank of Durant v. Trans Terra Corp. Int’l, 142 F.3d 802, 809 (5th Cir.
1998) (quoting Tex. Dep’t of Hous. & Cmty. Affairs v. Verex Assurance, Inc., 68 F.3d 922, 928
(5th Cir. 1995)) (internal quotation marks omitted).
       11
            44,014 (La. App. 2 Cir. 2/25/09); 4 So. 3d 307.
       12
            Id. at 310.

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                                    No. 10-31183

      the mounting plate, placing the light bulbs in the sign, installing the
      facing on the sign, applying lettering on the sign, fabricating the
      pole to hold the sign, constructing the mounting plate to mount the
      sign, bolting the mounting plate to the sign and plugging the sign
      in to see if it worked properly.13
The evidence revealed that the Haley’s electrocution resulted from a pinched
ballast; accordingly, though “Ward clearly assembled the sign, as well as
performed other actions necessary to prepare the sign for installation,” the court
held Ward was not a “manufacturer” because there was “no indication in the
record that any of the actions taken by Ward had anything to do with the
installation of the inner workings of the sign, including the inner wiring and/or
installation of the ballasts, or that Ward contributed in any way to the pinching
of the wire.”14
      Here, analogously, though Triplex cut the Resistoflex hose and installed
the end fittings, even the Workers’ expert conceded that the rupture did not
arise as a result of those modifications. This is akin to Haley, in which it was not
dispositive that a number of significant structural changes were made to the
sign—for instance, constructing the mounting plate and installing the
facing—when those changes were not linked to the product’s failure. Similarly,
there was no evidence here to suggest that the pressure testing caused the hose’s
subsequent failure. Indeed, the Workers have not argued that pressure testing
altered the hose or caused damage that made the hose susceptible to rupture.
As in Haley, in which the seller tested the sign “to see if it worked properly,”15
the simple act of testing a product after modifications does not transform a seller
into a statutory “manufacturer.”



      13
           Id. at 311.
      14
           Id. at 312.
      15
           Id. at 311.

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                                            No. 10-31183

       Further, the argument that Triplex is a “manufacturer” by virtue of
exercising “control over or influenc[ing] a characteristic of the design,
construction or quality of the product that causes damage”16 is unavailing,
insofar as the Workers advance it. Louisiana’s Fifth Circuit Court of Appeals
rejected the plaintiffs’ argument that K-Mart exercised such control over a shirt
that caught fire by selecting its material mixture, color, and some of its
dimensions.17 Here, Triplex exerted even less control: the record indicates that
Honeywell specified the exact Resistoflex part number and the end fittings. Nor
was there any evidence that the scuff guard contributed to the hose’s failure.
       Concluding that Triplex was not a “manufacturer” under the LPLA is also
consistent with our previous allusion to the LPLA in this context. In Brooks v.
Vitek, Inc.,18 we considered the proper statute of limitations under Louisiana law
to apply to a dentist, Akin, who inserted a Proplast implant during surgery. The
Brooks family contended that Akin was a “manufacturer” of the implant under
Louisiana law and that the prescriptive period for malpractice was inapplicable
in that context.19 In that case, the record indicated that “the Proplast material
used by Dr. Akin came to him in square pieces and that Dr. Akin fitted the
material specifically for the TMJ implant.”20 Though the LPLA was enacted
during the time between the injury and the filing of the appeal, this court cited
not only to the Louisiana common law, but also to the LPLA.21 As a result, we


       16
            LA. REV. STAT. ANN. § 9:2800.53(1)(b) (2009).
       17
         Parks ex rel. Parks v. Baby Fair Imports, Inc., 98-626, p. 6 (La. App. 5 Cir. 12/16/98);
726 So. 2d 62, 64.
       18
            875 F.2d 499 (5th Cir. 1989).
       19
            Id. at 500.
       20
            Id.
       21
            Id. at 501 (citing LA. REV. STAT. ANN. § 9:2800.52(1), .53(1) (West Supp. 1989)).

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                                          No. 10-31183

concluded that “Dr. Akin’s manipulation of the Proplast material does not
transform him from a doctor providing patient care into a ‘manufacturer’ of a
product.”22 Similarly, Triplex’s converting of the Resistoflex hose into a finished
hose does not transform Triplex, ipso facto, into a “manufacturer” under the
LPLA without a link between its actions and the failure of the hose.
      This conclusion is not altered by the Workers’ discussion of discrepancies
in the pressure testing listed for the hose. Though that evidence may show a
contested issue of fact, it is not an issue of material fact with respect to the
district court’s conclusion that Triplex was not an LPLA “manufacturer” because
there is no suggestion that this testing damaged the hose. This is also true of
the Workers’ discussion of the relative thickness of various parts of the hose
because it does not address Triplex’s role as a purported “manufacturer” of the
hose—the sole question raised on appeal.                     Similarly, the parties’ debate
regarding the Institute Pamphlet’s use of “manufacturer” is of little import,
standing alone, in determining what the Louisiana Legislature meant by the use
of the same term in a broadly-applicable statute. Insofar as this could be
theoretically linked to the apparent-manufacturer doctrine, the Workers do not
discuss that doctrine on appeal. This constitutes waiver of that issue.23
                                      *        *         *
      We AFFIRM.




      22
           Id.
      23
           United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam).

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