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

                                                                               FILED
                                                                              April 16, 2012

                                         No. 10-31264                        Lyle W. Cayce
                                                                                  Clerk

THOMAS ALLEN MCDANIEL,

                                             Plaintiff–Appellant
v.

TEREX USA, L.L.C., doing business as Terex Drills, formerly known as Terex
Reedrill,

                                             Defendant–Appellee



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 5:09-CV-01721


Before BENAVIDES and PRADO, Circuit Judges, and ALVAREZ,* District
Judge.
EDWARD C. PRADO, Circuit Judge:**
        Plaintiff–Appellant Thomas Allen McDaniel brought this products liability
action against Defendant–Appellee Terex Drills (“Terex”) for injuries he suffered
when a drill bit, attached to an auger drill, crushed him. McDaniel had moved
under the drill bit to pull out a stake, whereupon—according to McDaniel—the


       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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drill operator inadvertently activated a mechanism known as the inner kelly
float pedal, which caused the bit to free fall onto McDaniel. McDaniel sued
under the Louisiana Products Liability Act (“LPLA”), arguing (i) that the drill
was defectively designed because the inner kelly float pedal, positioned near the
operator’s feet and poorly guarded, was susceptible to inadvertent activation,
and (ii) that Terex had inadequately warned against the hazard created by the
poorly-positioned, poorly-guarded pedal. The case proceeded to trial, and after
McDaniel presented his case on liability, the district court granted Terex’s Rule
50(a) motion for judgment as a matter of law. For the reasons provided below,
we AFFIRM the district court’s judgment with respect to McDaniel’s inadequate
warning theory of liability, but REVERSE the district court’s judgment with
respect to McDaniel’s design defect theory of liability.
                              I. BACKGROUND
A. Factual Background
      Terex manufactures the Texoma 800, a truck-mounted auger drill. Several
features of the Texoma 800 are noteworthy. The drill operator of the Texoma
800 sits on a swivel chair that is attached to an elevated platform located at the
rear of the machine. While seated, the operator can drop the drill bit using
either (i) a hand-lever on the control panel in front of him or (ii) a device known
as the inner kelly float pedal, affixed to the platform on which his feet rest. The
hand-lever enables the operator to raise or lower the inner kelly bar—to which
the bit is attached—in a controlled fashion.       The float pedal, however, is
designed to allow the operator to bypass such deliberate, manual maneuvering.
Depressing the pedal will release the tension on the cables that hold up the
inner kelly bar, thus allowing the bit to “float” in the hole being drilled. If the
pedal is depressed while the bit is above ground, however, the inner kelly bar
and the attached bit will fall free; by depressing and holding down the pedal
with his foot, the operator will cause a bit that is suspended above ground to

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crash to the ground. As soon as the operator lifts his foot, the inner kelly bar
and attached bit will stop falling. Although the float pedal is positioned between
two metal bars, there is no cover over it.
      It is also noteworthy that the Texoma 800 comes equipped with numerous
warnings and instructions. A hodgepodge of warnings and instructions are
fastened to the operator’s control panel. One placard warns: “WARNING: THE
AREA WITHIN 15 FEET OF THE KELLY BAR OR MAST IS POTENTIALLY
HAZARDOUS AND MUST BE KEPT CLEAR OF PERSONNEL WHENEVER
POSSIBLE. FAILURE TO HEED THIS WARNING MAY RESULT IN BODILY
INJURY FROM FLYING OBJECTS OR FALLING INTO THE EXCAVATION.”
Another placard warns: “INNER KELLY FLOAT PEDAL[:] DO NOT FREE
FALL.” Yet another placard warns: “BE SURE THE IMMEDIATE WORK
AREA IS CLEAR [AND] ALL BYSTANDERS ARE AT LEAST 20 FEET AWAY
BEFORE STARTING ENGINE OR OPERATING MACHINE.” And: “SWING
AREA[;] KEEP CLEAR.” The operation and maintenance manual for the
Texoma 800, too, contains warnings and instructions. One warning in the
manual states: “The ‘Inner Kelly Float Pedal’ control is not to be used as a free-
fall devise. Operation of this devise as a free-fall function can cause serious
injury.” The manual also warns: “Do keep the area within 15 feet of the Kelly
Bar clear of personnel.” And: “Keep all personnel at least 15 ft. (4.5 m) from the
Kelly Bar when it is operating.”
      On September 10, 2008, the day of the accident, McDaniel was a ground-
person on a three-man drilling crew for Lone Star Drilling Services (“Lone
Star”). The crew was preparing to drill a cellar hole with a Texoma 800. The
location of the planned hole was marked by a stake—a metal T-post. According
to the testimony at trial, once the team centered the drill bit over the stake, the
drill operator—Justin “Judd” Mims—instructed McDaniel to pull the stake from
the ground. McDaniel testified that he shouted to Mims to “hold up,” and then

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reached under the bit in an attempt to pull out the stake with one hand. When
he could not remove the stake with one hand, he crawled under the bit and
attempted to remove the stake with both hands. Mims testified that while
McDaniel was attempting to remove the stake, Mims was not looking at him, but
was instead looking at the drill’s mast to ensure that the machine was level.
While McDaniel was under the bit attempting to remove the stake, and while
Mims was looking away, the bit fell onto him. McDaniel testified that just before
the bit fell onto him, from the corner of his eye, he saw Mims’s “feet rotating” as
Mims “turned in the seat.” Brandon Woods, the third crew member, yelled to
Mims to “pull up.” Mims complied, pulling up the bit and swinging it aside.
      Mims testified that he did not know what caused the bit to fall onto
McDaniel, and that he did not know whether his foot had inadvertently hit the
inner kelly float pedal. He also testified that the particular Texoma 800 that
had injured McDaniel would often malfunction.               According to Mims,
“sometimes,” “every now and then,” the bit on that particular machine would
“unexpectedly” fall to the ground, even though he had not “touch[ed] anything.”
Mims further testified that he had lodged “several” reports about the propensity
of that Texoma 800's bit to fall, and that in response, mechanics had inspected
and fixed the machine “several times.” Furthermore, Mims testified that the day
after the accident, he tested the machine, confirmed that it was working, took
the machine to a job site, and completed a job.
      Mims could not recall whether he had ever before inadvertently activated
the pedal with his foot. Sanders testified that as operator, he would often “catch
[himself]” inadvertently striking the pedal with his foot. He added that such
inadvertent striking would happen “at least once” “on every job.” When that
happened, the bit would fall two or three feet, depending on his reaction time.
      Also at trial, although McDaniel acknowledged that the crew might have
executed another procedure to remove the stake—such as removing the stake

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before the drill bit was raised, and then marking the spot—McDaniel insisted
that the crew’s procedure that day was “standard operating procedure.” He
testified: “[T]hat was the standard operating procedure with every single
employee at that shop, as well as other companies that do the same work.”
Additionally, McDaniel testified that ground-personnel would routinely get
underneath the drill bit to “change the teeth” of the bit. The drilling process
would break and distort the teeth of the bit; to fix the bit, the bit would be raised
and ground-personnel would get underneath it to hammer out and weld broken
teeth. McDaniel explained that these tooth changes were “standard operating
procedure” and occurred “daily”: “You may go one or two days without having to
change teeth, but generally in the East Texas area and western Louisiana,
[given] the soil composition, you would have to change teeth daily. Sometimes
three or four times a day.” Another witness—William E. Sanders, a former
ground-person     and    operator    at    Lone    Star—likewise     testified   that
ground-personnel would routinely go underneath suspended bits to change teeth.
      Although McDaniel conceded that he had been trained not to go under a
suspended load, he stated that he had not been trained not to go under a
suspended bit. But McDaniel confirmed that, at Lone Star, his supervisor Bryan
McDaniel had instructed him “in passing” “not [to] go under that bit for [any]
reason unless [McDaniel] just absolutely, positively, by no other choice, [had] to.”
Regarding the Texoma 800's warnings and instructions, McDaniel testified that
Terex had never provided him with a copy of the manual. Mims testified that
he did not routinely follow the fifteen-foot rule.
      McDaniel called Dr. Stephen H. Batzer, a failure analyst and forensic
engineer, as his expert witness.          Batzer testified that the machine was
defectively designed and unreasonably dangerous because the inner kelly float
pedal was not fully guarded. According to Batzer, the pedal was susceptible to
inadvertent activation because it was placed on the platform, where the operator

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                                   No. 10-31264

naturally rests his feet, and which is not clearly visible and easily accessible to
him—unlike his control panel.
      In addition, Batzer testified that “[i]t is an unreasonably dangerous
machine because it is not responding to deliberate but rather accidental inputs
by the operator, which is completely preventible in a low-tech, low-cost way. . . .
[Y]ou can load a cover over that switch and still operate the machine just fine.”
As for alternative design, Batzer specified that the design could be made safer
by placing an “inverted C-shape guard” or shield over the pedal. According to
Batzer, such a design was “industry standard” and would require the operator
to “carefully put [his] foot in and elevate it onto the pedal.” Batzer also opined
that the pedal could be relocated up from the platform.
      Batzer was cross-examined about whether the alleged design defect
proximately caused McDaniel’s injury. Upon being asked whether it was correct
that no witness had testified that the pedal had been depressed at any time,
Batzer responded that “they said they didn’t know, which is different,” but
agreed that there was no “expression of positive knowledge.” Upon being
asked—“If [Mims] never touched the foot pedal, your alternative design doesn’t
prevent this accident, correct?”—Batzer responded, “That’s a pretty big ‘if,’ but
that’s true.” Finally, upon being asked whether it was possible that Mims
inadvertently pushed the hand-lever too far, Batzer responded: “That did not
happen, to a reasonable degree of engineering probability,” and “the probability
of that is essentially zero, so no.”
B. Procedural Background
      On August 26, 2009, McDaniel filed this LPLA action in the 42nd Judicial
District Court, De Soto Parish, Louisiana. McDaniel alleged two theories of
liability under the LPLA: first, that the drill was defectively designed because
the inner kelly float pedal, positioned near the operator’s feet and poorly
guarded, was susceptible to inadvertent activation; second, that Terex had

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inadequately warned against the hazard created by the poorly-positioned,
poorly-guarded pedal. On October 1, 2009, Terex filed a notice of removal on the
basis of diversity. The case proceeded to a bifurcated trial in the United States
District Court for the Western District of Louisiana.        The liability phase
commenced on November 15, 2010. After McDaniel presented his liability case
and rested, Terex moved for Rule 50(a) judgment as a matter of law. The district
court granted the motion, observing that McDaniel had failed to adequately
show that his use of the drill was reasonably anticipated. McDaniel appeals that
judgment.
                        II. STANDARD OF REVIEW
      Because federal jurisdiction in this case is based on diversity, we follow
Louisiana’s substantive law, but we apply the federal standard of review. Patin
v. Thoroughbred Power Boats, Inc., 294 F.3 d640, 647 n.12 (5th Cir. 2002). We
review a district court’s grant of judgment as a matter of law de novo, applying
the same legal standard that the district court used in first passing on the
motion. McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009). “A district court
may not grant a Rule 50(a) motion unless a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.” Hagan v. Echostar Satellite, LLC, 529 F.3d
617, 622 (5th Cir. 2008) (internal quotation marks omitted). A Rule 50(a) motion
may be granted only if “the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that reasonable
men could not arrive at a contrary verdict”; yet, if “reasonable and fair-minded
[jurors] in the exercise of impartial judgment might reach different conclusions,
the motions should be denied.” McBeth, 565 F.3d at 176 (internal quotation
marks omitted). “Under this standard, we view all the evidence in the light and
with all reasonable inferences most favorable to the party opposed to the
motion.” Hagan, 529 F.3d at 622 (internal quotation marks omitted). “[I]t is the

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function of the jury as the traditional finder of facts, and not the Court, to weigh
conflicting evidence and inferences, and determine the credibility of witnesses.”
Id. (internal quotation marks omitted). Although we review the record as a
whole, we disregard evidence favorable to the moving party that the jury is not
required to believe. Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d
602, 606 (5th Cir. 2007).
      While our review is de novo, we have, on occasion, discouraged district
courts from granting Rule 50(a) motions, indicating our preference for the
practice of submitting the case to the jury and then passing on the sufficiency of
the evidence on a post-verdict motion. See McPhillamy v. Brown & Root, Inc.,
810 F.2d 529, 532 (5th Cir. 1987) (describing this practice as “highly desirable”
and observing that “[t]he primary reason we encourage district courts to reserve
judgment on motions for directed verdict is that if the court grants a judgment
n.o.v., a retrial is avoided if we reverse the j.n.o.v. because there is a jury verdict
that can be reinstated” (citations and internal quotation marks omitted)); Gomez
v. St. Jude Medical Daig Div., Inc., 442 F.3d 919, 938 (5th Cir. 2006) (describing
this practice as “prudent”); see also Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 405 (2006) (“[T]he district courts are, if anything, encouraged
to submit the case to the jury, rather than granting such motions.”).
                                III. DISCUSSION
      The LPLA sets forth “theories of liability for manufacturers for damage
caused by their products under Louisiana law.” La. Rev. Stat. § 9:2800.52. A
product may be unreasonably dangerous in four exclusive ways, two of which are
relevant here: first, a product may be “unreasonably dangerous in design”;
second, a product may be “unreasonably dangerous because an adequate
warning about the product has not been provided.” La. Rev. Stat. § 9:2800.54(B).
Under the LPLA, “[t]he manufacturer of a product shall be liable to a claimant
for damage proximately caused by a characteristic of the product that renders

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the product unreasonably dangerous when such damage arose from a reasonably
anticipated use of the product by the claimant or another person or entity.” La.
Rev. Stat. § 9:2800.54(A). We have thus held that a plaintiff asserting a
products liability action against a manufacturer faces a two-tiered threshold
burden: “the plaintiff must show that (1) his damages were proximately caused
by a characteristic of the product that renders it unreasonably dangerous, and
(2) his damages arose from a reasonably anticipated use of the product.”
Kampen v. Amer. Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998) (en banc)
(citing La. Rev. Stat. § 9:2800.54(D)).
      As discussed below, McDaniel introduced sufficient evidence for a
reasonable jury to find that he satisfied the two-tiered threshold burden for his
design defect theory of liability; with respect to his inadequate warning theory
of liability, however, he failed to introduce legally sufficient evidence.
A. Reasonably Anticipated Use
      1. Applicable Law
      Under the LPLA, a reasonably anticipated use is a “a use or handling of
the product that the product’s manufacturer should reasonably expect of an
ordinary person in the same or similar circumstances.”             La. Rev. Stat.
§ 9:2800.53(7). As we have explained:
      This objective inquiry requires us to ascertain what uses of its
      product the manufacturer should have reasonably expected at the
      time of manufacture. The LPLA’s “reasonably anticipated use”
      standard should be contrasted with the pre-LPLA “normal use”
      standard; “normal use” included all intended uses, as well as all
      reasonably foreseeable uses and misuses of the product. “Normal
      use” also included reasonably foreseeable misuse that is contrary to
      the manufacturer’s instructions.
      It is clear that by adopting the reasonably anticipated use standard,
      the Louisiana Legislature intended to narrow the range of product
      uses for which a manufacturer would be responsible. We know that,



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      under the LPLA, a manufacturer will not be responsible for every
      conceivable foreseeable use of a product.
Kampen, 157 F.3d at 309–10 (citations and internal quotation marks omitted);
accord Payne v. Gardner, 56 So.3d 229, 231 (La. 2011).
      Given the factual similarity of Kampen to our case, we look toward
Kampen to illuminate the issue of “reasonably anticipated use.” There, the
plaintiff used a factory-supplied tire jack to raise the front end of a car and
investigate a noise coming from beneath it. 157 F.3d. at 308. Suspecting that
something was caught behind the front wheel, the plaintiff placed his head and
shoulders beneath the front of the car to examine the back of the wheel. Id. at
309. As the plaintiff was underneath the car, the jack gave way and the car
crushed him. Id. The plaintiff brought an LPLA action against the jack
manufacturer for defective design. Id. at 308. Although the plaintiff had not
read the owner’s manual for the jack, it instructed the user to use the jack only
when changing tires and warned the user never to get beneath the car when
using the jack. Id. at 309.
      In analyzing the threshold question of “reasonably anticipate use,”
Kampen began by delineating the scope of the plaintiff’s conduct that comprised
“use” under the LPLA. Id. at 310. If the plaintiff’s conduct in jacking up the car
constituted his entire “use” of the jack, then the plaintiff’s use of the jack would
of course be reasonably anticipated—“a manufacturer quite reasonably
anticipates his jack to be used for jacking!” Id. However, if the plaintiff’s “use”
of the jack included both (i) his act of jacking up the car and (ii) his subsequent
act of crawling underneath the car, “then reasonably anticipated use becomes a
closer question: manufacturers may or may not reasonably anticipate users of
their products to disregard express warnings about the product and thereby
place themselves in physical danger.” Id. (emphasis omitted). We selected the
latter conception of “use”—a conception of “use” broad enough to encompass


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some of the plaintiff’s negligent conduct. Id. at 311–12. We reasoned:
      [A] plaintiff may act in relation to a product in such a way that,
      while it does not change the physical stresses placed on a product,
      nevertheless increases the risk of injury associated with the
      product. A manufacturer is required to take these kinds of actions
      by product users into account when designing and providing
      warnings for its products.
Id. We then elaborated:
       [The plaintiff] began using the jack when he elevated the car with
       it. When [he] finished jacking the car up, however, his use of the
       jack did not conclude. Thereafter, [he] used the jack by relying on
       the jack to hold the car in its elevated position. When [he] placed
       himself beneath the car, he was still using the jack: he was relying
       on the jack to hold the car above his body.”
Id. Having defined the scope of the plaintiff’s use at a level of generality that
included the plaintiff’s act of crawling under the car, we found that the plaintiff’s
use of the jack was not reasonably anticipated. Id. at 314. Our reasoning relied
on both the warnings and the plaintiff’s failure to demonstrate that the operator
should have been aware that customers were routinely using its jacks contrary
to the warnings. Id. We thus held:
      [W]here a manufacturer provides an express warning cautioning
      against the use of the product for which the product was neither
      designed nor intended, and where the plaintiff acts in direct
      contravention of that warning . . . the plaintiff’s ‘use’ of the product
      will not be a reasonably anticipated one unless . . . the plaintiffs had
      presented evidence that despite the warnings, the manufacturer
      should have been aware that operators were using the product in
      contravention of certain warnings.
Id. (citations and internal quotation marks omitted) (emphasis added); see also
id. at 315–18 (emphasizing that, to establish reasonably anticipated use,
plaintiff who misuses product must present evidence that defendant knew or
should have known that others were similarly misusing the product). Since
Kampen, it has become well-settled that “plaintiffs who used a product in a


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manner that violates clear and express warnings can show that their use was
reasonably anticipated only by presenting evidence that the manufacturer had
reason to know that these warnings were ineffectual.” Broussard v. Procter &
Gamble Co., 517 F.3d 767, 770 (5th Cir. 2008). In Broussard, for example,
although the defendant-manufacturer of a heatwrap warned users not to use the
heatwrap on areas of the body that lacked sensitivity to heat, the plaintiff
nonetheless used the heatwrap on an area that was insensitive to heat due to a
medical condition. Id. at 769–70. We rejected the plaintiff’s LPLA claim and
affirmed summary judgment for the defendant because the plaintiff had “failed
to present even one scintilla of evidence that [the defendant] knew or should
have known that despite the warnings” consumers were similarly misusing the
heatwrap. Id. at 770.
      2. Application
      Applying the framework of Kampen to our case, we first define the “use”
of the drill here to include both (i) the crew’s act of using the drill to raise the
drill bit and (ii) McDaniel’s subsequent act of reaching under the raised bit to
pull out the stake—just as the use of the jack in Kampen included both the act
of using the jack to raise the car and the plaintiff’s subsequent act of crawling
under the raised car to investigate something behind the wheel. To be sure,
McDaniel did not change the “physical stress[]” placed on the machine; by
crawling under it, however, he interacted with the machine “in such a way that”
he “increase[d] the risk of injury associated with the product.” Kampen, 157
F.3d at 311. As in Kampen, the crew “began using” the drill when they
“elevated [the bit] with [the drill],” and McDaniel continued to use the drill “by
relying on the [drill] to hold the [bit] in its elevated position”; when McDaniel
“placed himself beneath the [drill], he was still using the [drill]: he was relying
on the [drill] to hold the [bit] above his body.” Id. Furthermore, the LPLA does
not require that the “use” at issue only involve the plaintiff’s conduct. See La.

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Rev. Stat. § 9:2800.54(A) (“The manufacturer of a product shall be liable to a
claimant for damage proximately caused by a characteristic of the product that
renders the product unreasonably dangerous when such damage arose from a
reasonably anticipated use of the product by the claimant or another person or
entity.”)
      Although we trace Kampen’s delineation of the scope of “use,” unlike in
Kampen, we conclude here that there was legally sufficient evidence that
McDaniel’s use of the drill was reasonably anticipated. A reasonable jury could
have found that it was reasonable for Terex to anticipate that McDaniel would
crawl under the drill bit. McDaniel “presented evidence” that Terex should have
known that drill users were routinely venturing under drill bits, in
contravention of warnings and instructions. See Kampen, 157 F.3d. at 314.
According to McDaniel, for example, it was normal operating procedure to go
under a suspended drill bit to remove a stake. “[T]hat was the standard
operating procedure with every single employee at that shop, as well as other
companies that do the same work.” McDaniel also testified that it was normal
operating procedure to go under a suspended drill bit to change teeth. In fact,
tooth changes occurred daily. Sanders agreed that drill users would routinely
venture under the bit for tooth changes, and would partially venture under the
bit for stake removals. Even Mims conceded that he did not follow the fifteen-
foot rule, because drill personnel needed to be closer to the drill to do their work.
      A reasonable jury could infer from this evidence—i.e., the evidence that
McDaniel’s act of crawling under the drill bit conformed to an industry-wide
custom—that Terex “should have been aware” that drill users were using the
drill contrary to the warnings and instructions. See Kampen, 157 F.3d at 314.
This conclusion emerges from the standard of review for a Rule 50(a) judgment,
pursuant to which we must view the evidence in the light most favorable to
McDaniel. Hagan, 529 F.3d at 622.

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      Indeed, the case for finding reasonably anticipated use is stronger here
than in Kampen or Broussard because of the nature of Terex’s warnings and
instructions. Unlike the explicit warning relevant to the plaintiff in Kampen,
the inexact warnings and instructions here did not specifically caution against
McDaniel's conduct. For example, although a guidebook instruction warned
personnel to stay fifteen feet away from the kelly bar, a placard warned that
“failure to heed the warning could result in injury from flying objects or falling
into the excavation”—a falling drill bit is not among the listed risks. No warning
explicitly stated: “Do not go under a suspended drill bit.” And unlike the
warnings in Kampen and Broussard, Terex’s warnings were not directed at a
person in the plaintiff's position: a ground-man such as McDaniel. Instead, the
warnings were directed at the drill operator, as they were placed on his control
panel, right in front of him, for only him to see. Terex’s warnings are not precise
enough to remove—as a matter of law—McDaniel’s conduct from the domain of
“reasonably anticipated use.” That is, Terex’s warnings do not preclude a finding
that Terex reasonably anticipated that McDaniel would crawl under the bit.
      In light of the standard of review, we hold that a reasonable jury could find
that McDaniel’s use of the drill bit was reasonably anticipated. The jury may
have ultimately disagreed, of course; perhaps the argument that Terex could
have reasonably anticipated McDaniel’s risky crawl was weak. Nonetheless, the
argument was not deficient enough to warrant judgment as a matter of law. The
issue of reasonably anticipated use should have been left for our presumptively
trustworthy, traditional fact-finder: the jury.
B. Theories of Liability
      Although we have held that McDaniel put forth legally sufficient evidence
to satisfy his threshold burden to show reasonably anticipated use, we must still
evaluate whether he has put forth legally sufficient evidence (i) to satisfy his
threshold burden to show causation, and (ii) to establish the substantive

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elements of his theories of liability—design defect and inadequate warning. We
evaluate each theory of liability in turn, starting first with McDaniel’s design
defect theory of liability.
      1. Design Defect Theory of Liability
             a. Causation
      To establish proximate cause under the LPLA, a plaintiff “must prove not
only causation in fact, but also that the product defect was the most probable
cause of the injury.” Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994)
(internal quotation marks omitted). “The plaintiff’s burden is to prove causation
by a preponderance of the evidence.” Llewellyn v. Lookout Saddle Co., 315 So. 2d
69, 71 (La. Ct. App. 1975). The plaintiff may satisfy its burden either by direct
or by circumstantial evidence. Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir.
2002) (citing Joseph v. Bohn Ford Inc., 483 So. 2d 934, 940 (La. 1986)). If the
plaintiff resorts to circumstantial evidence, the evidence “must exclude other
reasonable hypotheses with a fair amount of certainty.” Llewellyn, 315 So. 2d
at 71; accord Pipitone, 288 F.3d at 239 (noting that “plaintiff may prove
causation by establishing ‘with reasonable certainty that all other alternatives
are impossible’” (emphasis omitted) (quoting Todd v. State, 699 So. 3d 35, 43 (La.
1997)); Gomez, 442 F.3d at 936 (noting that plaintiff must “eliminate alternative
causes with ‘reasonable certainty’”). “This does not mean, however, that [the
plaintiff] must negate all other possible causes.         Otherwise, the mere
identification by the record of another possibility, although not shown to be
causally active, would break the chain of causation.” Llewellyn, 315 So. 2d at 71;
accord Pipitone, 288 F.3d at 239 (noting that “plaintiff need not absolutely
negate all other possible causes of the injury to meet his burden on causation”
(citing Joseph, 483 So. 2d at 940)).
      Here, there was sufficient evidence at trial from which the jury could
reasonably find that inadvertent activation of the defectively designed float

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                                  No. 10-31264

pedal was the most probable cause of the accident. McDaniel testified that just
before the bit fell on him, from the corner of his eye, he saw Mims’s “feet
rotating” as Mims “turned in the seat.” This testimony should be considered
alongside evidence that the pedal was located near Mims’s feet, that the pedal
was poorly guarded and uncovered, that the pedal was difficult to see, and that
the pedal was naturally susceptible to inadvertent activation because it was
positioned on the platform, where an operator such as Mims would rest his feet.
In such context, McDaniel’s testimony is circumstantial evidence that Mims
caused the accident by inadvertently activating the pedal when he rotated in his
seat. Lending slight support to McDaniel’s causal explanation for the accident
is Sanders’s testimony that, as operator, he would “catch [himself]” inadvertently
striking the pedal with his foot “at least once” “on every job.” Meanwhile, Mims’s
own testimony that he did not know how the bit fell is consistent with
McDaniel’s causal explanation of inadvertent activation.            If Mims had
mistakenly kicked the pedal, it makes sense that he would not have known that
he had done so. At the very least, Mims’s testimony does not reduce the
probability that Mims inadvertently hit the pedal.
      Because McDaniel failed to present direct evidence that inadvertently
activating the pedal caused the accident, however, we must determine whether
McDaniel adequately undermined alternative explanations for the accident.
Given that only the float pedal and the hand-lever control the inner kelly bar,
plausible alternative causes for the fall include the following: (i) Mims’s
deliberate activation of the float pedal or the hand-lever, (ii) Mims’s inadvertent
activation of the hand-lever, or (iii) an unidentified mechanical failure.
Analyzing each alternative cause in turn, we conclude that there was sufficient
trial evidence for a reasonable jury to find that McDaniel excluded each
alternative cause with reasonable certainty.
      First, it is unlikely that Mims deliberately caused the bit to fall. According

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                                  No. 10-31264

to the testimony at trial, Mims instructed McDaniel to remove the stake, and
McDaniel told him to hold up. Unless Mims intended to harm McDaniel, for
which there is no evidence, there is no reason to believe that he responded to
McDaniel’s warning by purposefully pulling down the hand-lever or depressing
the float pedal. Mims also stated that he did not remember what had happened,
the veracity of which we cannot question; if he had committed a deliberate act,
however, he would have remembered doing so.
      Likewise, it is unlikely that Mims accidentally pulled down on the hand-
lever. The hand-lever is not susceptible to inadvertent activation; the lever is
directly in front of and easily visible to the operator. Accordingly, when Batzer
was asked whether it was possible that Mims inadvertently pushed the hand-
lever too far, he responded: “That did not happen, to a reasonable degree of
engineering probability,” and “the probability of that is essentially zero, so no.”
      The third alternative cause—a mechanical failure—is trickier to dispatch.
Mims testified that the particular Texoma 800 in question was a fickle machine.
On several occasions while Mims was operator, the bit had fallen unexpectedly,
even though he had not “touch[ed] anything.” Mims’s testimony thus supports
a narrative that contradicts McDaniel’s theory of liability—namely, that a
mechanical failure, not inadvertent activation of the float pedal, caused the bit
to fall. On the other hand, Mims testified that the day after the accident, Mims
tested the machine, confirmed that it was working, took the machine to a job
site, and completed the job. From the perspective of a reasonable juror, this fact
could reduce, to some degree, the probability that a mechanical failure caused
the accident on the previous day. What is more, Terex itself never put forward
this alternative explanation, either at trial or in its brief on appeal. Under
Louisiana law on causation, “the mere identification by the record of another
possibility, although not shown to be causally active” by Terex, cannot defeat
McDaniel’s causal story. See Llewellyn, 315 So. 2d at 71.

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                                   No. 10-31264

      Viewing the evidence in the light most favorable to McDaniel, a reasonable
jury could find that McDaniel had eliminated, with reasonable certainty,
alternative explanations for the accident. We hold that there is legally sufficient
evidence that the defective design of the float pedal—which rendered it
vulnerable to inadvertent activation—was the most probable cause of McDaniel’s
injury. While the evidence of causation is not certain to result in a jury finding
that McDaniel met his threshold burden of causation, it is not so overwhelmingly
deficient as to preclude the possibility that a reasonable jury could find that
Mims inadvertently struck the pedal, causing the accident.
            b. Substantive Liability
      Under the LPLA, “a product is unreasonably dangerous in design if, at the
time the product left its manufacturer's control”:
      (1) There existed an alternative design for the product that was
      capable of preventing the claimant's damage; and (2) The likelihood
      that the product’s design would cause the claimant’s damage and
      the gravity of that damage outweighed the burden on the
      manufacturer of adopting such alternative design and the adverse
      effect, if any, of such alternative design on the utility of the product.
      An adequate warning about a product shall be considered in
      evaluating the likelihood of damage when the manufacturer has
      used reasonable care to provide the adequate warning to users and
      handlers of the product.
La. Rev. Stat. § 9:2800.56. We have held that “[i]n applying the risk-utility
analysis, . . . a plaintiff must show evidence concerning the frequency of
accidents like his own, the economic costs entailed by those accidents, or the
extent of the reduction in frequency of those accidents that would have followed
on the use of his proposed alternative design.” Krummel v. Bombardier Corp.,
206 F.3d 548, 551–52 (5th Cir. 2000) (citing Lavespere v. Niagara Machine &
Tool Works, Inc., 910 F.2d 167, 183 (5th Cir.1990)) (internal quotation marks
omitted). In Krummel, we also observed that “[a] plaintiff may not need to detail
and to quantify the risk and utility of a product where the product or the design

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                                  No. 10-31264

feature in question is relatively uncomplicated and must be such that a layman
could readily grasp them.” Id. at 552 n.4 (internal quotation marks omitted).
      Here, Batzer explained that placing the pedal on the platform floor, near
the operator’s feet, rendered accidental activation “normal,” or inevitable. The
platform was a natural place for the operator to rest his feet; the pedal was
positioned on the platform; the pedal was difficult to see; and despite the two
metal bars near the base of the pedal, the pedal was poorly guarded and
uncovered. If the operator lifted his feet and repositioned himself, there was
nothing to prevent him from inadvertently striking the pedal as he rested his
feet on the platform. Consequently, the pedal was naturally susceptible to
inadvertent activation.
      Batzer further explained that an alternative design could have resolved
this problem and prevented McDaniel’s injury: first, Terex could have placed an
industry-standard, inverted, C-shaped shield over the pedal; second, Terex could
have moved the pedal up from the ledge to the control panel. This alternative
design would enhance safety without incurring prohibitive cost or sacrificing
utility: “It is an unreasonably dangerous machine because it is not responding
to deliberate but rather accidental inputs by the operator, which is completely
preventible in a low-tech, low-cost way. . . . [Y]ou can load a cover over that
switch and still operate the machine just fine.” Batzer opined that there was no
reason for the pedal to be placed on the platform floor rather than on the control
panel, and that moving up the pedal would not impair its functionality.
      In light of the standard of review, we hold that McDaniel’s design defect
claim survives judgment as a matter of law. This case does not demand a
complex, statistical risk-utility analysis.    The alternative design here is
“uncomplicated” enough for a layman to “readily grasp”: either cover the pedal
or move it. See Krummel, 206 F.3d at 552 n.4. From the testimony admitted at
trial, a jury could reasonably find that covering or moving the pedal would

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                                   No. 10-31264

enhance safety without incurring prohibitive cost or sacrificing utility. Again,
while the evidence is not certain to result in a favorable jury verdict, it is not so
overwhelmingly deficient as to preclude the possibility that a reasonable jury
might find that the drill, by virtue of the poorly-guarded and improperly placed
pedal, was unreasonably dangerous in design. Accordingly, we REVERSE the
district court’s Rule 50(a) judgment as a matter of law with respect to
McDaniel’s design defect theory of liability.
      2. Inadequate Warning Theory of Liability
      To establish LPLA liability for inadequate warning, the plaintiff “has the
burden of producing evidence and persuading the jury to find by a
preponderance of the evidence that her injury arose from a reasonably
anticipated use of the product and that her damage was proximately caused by
the lack of an adequate warning.” Calvit v. Procter & Gamble Mfg. Co., 207 F.
Supp. 2d 527, 530 (M.D. La. 2002) (citing Ellis v. Weasler Eng’g Inc., 258 F.3d
326, 331–32 (5th Cir. 2001)).
      Here, McDaniel failed to introduce any evidence establishing a causal link
between Terex’s failure to adequately warn McDaniel about the hazard created
by the defectively designed float pedal and his injury. No witness provided
testimony supporting the notion that, but for an inadequate warning, McDaniel
would not have crawled under the drill bit and would not have been injured.
McDaniel presented no evidence of what additional warning Terex should have
provided or how such a warning would have prevented the bit from crushing
McDaniel. There was not sufficient trial evidence for a reasonable jury to find
that inadequate warning caused McDaniel’s injury. Consequently, we AFFIRM
the district court’s Rule 50(a) judgment as a matter of law with respect to
McDaniel’s inadequate warning theory of liability.


      AFFIRMED in part, REVERSED in part.

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