                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                    August 21, 2003
                              ____________________
                                                                  Charles R. Fulbruge III
                                   02-30582                               Clerk
                             ____________________

                                KEITH H. JONES,

                                                         Plaintiff-Appellant,

                                      versus

   FLOWSERVE FCD CORP.; FLOWSERVE FSD CORP.; FLOWSERVE, INC.,
formerly known as Duriron Company, Inc.; FLOWSERVE RED CORP.,

                            Defendants-Intervenor Defendants-Appellees,

                                      versus

                            PPG INDUSTRIES, INC.,

                                  Intervenor Plaintiff-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                            (99-CV-1621)
_________________________________________________________________

Before WIENER and BARKSDALE, Circuit Judges, and FURGESON,

District Judge*.

PER CURIAM:**

     Keith      Jones     and   his    employer,   PPG     Industries,      Inc.

(Plaintiffs), challenge the summary judgment awarded Defendants



     *
          District Judge of the Western 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that this opinion should not be published and is not precedent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.
(Duriron) against claims under the Louisiana Product Liability Act,

LA. REV. STAT. § 9:2800.51, et seq. (LPLA).            Primarily at issue is

whether, for the failure-to-warn claim, PPG was a “sophisticated

user”.    AFFIRMED.

                                     I.

       Jones worked in PPG’s Lake Charles, Louisiana, chemical plant.

In 1998, he opened a valve on a tank containing hot brine.             Because

of stress corrosion cracking (SCC), the bolting securing the top

portion of the valve failed; Jones was sprayed with the brine and

injured.      The bolting was susceptible to SCC because it was

stainless    steel    and   the   valve   was   used    in   a   high-chloride

environment.

       The valve, the Durco T-41, had been manufactured between 1977

and 1983 by Duriron (now known as Flowserve). Duriron marketed and

sold similar valves to industrial and chemical plants, including

PPG.     During this period, Duriron issued a catalog insert to its

purchasers noting, inter alia, the stainless steel nature of the

bolting.    Concerning the valve at issue, PPG’s Lake Charles plant

specified it would accept any of three valve models, including the

Durco T-41.    The plant did not, however, specify the type bolting

— stainless or carbon steel — to be used for those valves.

       Stainless steel bolting was the industry standard before 1984.

Prior to then, however, Duriron had made carbon steel bolting

available to PPG as an option.       (Carbon steel is not susceptible to


                                      2
SCC; it is, however, susceptible to general corrosion.)                In fact,

since 1969, PPG had refused to use stainless steel bolting at its

plant   in   Natrium,    West     Virginia;    prior   to    1984,   that   plant

specified carbon steel bolting.

     In 1984 (after the valve in question had been sold to PPG),

the chemical process industry recognized the risk of SCC for

stainless    steel      bolting    in     high-chloride      environments     and

recommended that carbon steel be used instead.               After the industry

standard changed, Duriron began using carbon steel bolting in its

standard Durco T-41 model.         Duriron did not, however, notify PPG of

this change.

     Jones filed this action in Louisiana state court, claiming

Duriron violated the LPLA through:              (1) the valve’s defective

design; (2) its defective manufacture; and (3) Duriron’s failure to

warn PPG of the dangers of stainless steel bolting in a high-

chloride environment. After Duriron removed this action to federal

court, PPG intervened to recoup workers’ compensation paid Jones.

     Duriron moved:       (1) to strike an affidavit in opposition to

summary judgment by one of Plaintiffs’ experts, Dr. Morse; and (2)

for summary judgment.           Pursuant to an extremely comprehensive

opinion, both motions were granted.

                                         II.

     Plaintiffs      challenge     the    summary   judgment     against    their

defective design and failure-to-warn claims.                In conjunction with


                                          3
the design claim, they contend the district court erred in striking

Dr. Morse’s affidavit; it was the primary basis for that claim.

      A summary judgment is reviewed de novo, “employing the same

analysis as the district court”.         Wyatt v. Hunt Plywood Co., Inc.,

297 F.3d 405, 408 (5th Cir. 2002), cert. denied, 123 S. Ct. 1254

(2003).   The judgment is proper only if there is no genuine issue

of material fact and the movant is entitled to a judgment as a

matter of law.      FED. R. CIV. P. 56(c); e.g., Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

      Under Louisiana law, the LPLA “establishes the exclusive

theories of liability for manufacturers for damage caused by their

products”.    LA. REV. STAT. § 9:2800.52. To be liable under the LPLA,

a   manufacturer    must   produce   an    item   that   is,   inter   alia,

“unreasonably dangerous”. LA. REV. STAT. § 9:2800.54(A). Along this

line, a product may be unreasonably dangerous: (1) in construction

or composition; (2) in design; (3) because of failure to warn about

the product; or (4) because of non-conformity with a manufacturer’s

express warranty.    LA. REV. STAT. § 9:2800.54(B).      Again, Plaintiffs

present design and failure-to-warn issues.

                                     A.

      Under the LPLA, a product is “unreasonably dangerous in

design” if:     (1) an alternative design existed; and (2) “[t]he

likelihood that the product’s design would cause the claimant’s

damage and the gravity of that damage outweighed the burden on the


                                     4
manufacturer of adopting such alternative design and the adverse

effect ... of such alternative design on the utility of the

product”.    LA. REV. STAT. § 9:2800.56.       A plaintiff has the burden

of proof for these elements.              LA. REV. STAT. § 9:2800.54(d).

Regarding possible alternative designs for the valve, Plaintiffs

contend the affidavits and deposition testimony of Drs. Morse,

Shelton,    and   Slater   provide   sufficient    evidence   to   withstand

summary judgment.

     In his affidavit in Plaintiffs’ amended opposition to summary

judgment, Dr. Morse maintained, inter alia, that the valve was

“unreasonably dangerous and could and should have been changed

under the circumstances that the valve was sold”.             The affidavit

listed four alternative designs:          (1) use of carbon, as opposed to

stainless, steel bolting; (2) addition of Teflon coating to the

bolting; (3) addition of a Teflon sleeve around the bolting; and

(4) expansion of the crevice (where the chloride contacted the

bolting) between valve pieces connected by the bolting, in order to

alert maintenance workers to the possibility of SCC.           (In district

court, Plaintiffs referred to their “material choice” claim as one

for a defect in construction or composition.           See LA. REV. STAT. §

2800.55. Now they group this claim with their design claims, along

the lines of Dr. Morse’s affidavit.)

     Plaintiffs also contend:        (1) the deposition of Dr. Shelton

(their other expert) raised a material fact issue for two of the


                                      5
claimed design defects (stainless, instead of carbon, steel; and

crevice size); and (2) the deposition of Dr. Slater (Defendants’

expert) created a material fact issue concerning the crevice size.

                                     1.

       In striking Dr. Morse’s affidavit, the district court ruled

that    “these   alternative    designs     were   not   disclosed   to    the

Defendants during discovery”, insofar as neither Dr. Morse’s report

nor his deposition provided opinions on alternative designs.               See

FED. R. CIV. P. 26(a)(2)(B) (expert witnesses required to submit

report containing a “complete statement of all opinions to be

expressed and the ... reasons therefor....”).

       A district court’s refusal to admit an affidavit is reviewed

for abuse of discretion.       E.g., Valdez v. Cockrell, 274 F.3d 941,

957-58 (5th Cir. 2001), cert. denied, 123 S. Ct. 106 (2002).               In

addition, an abuse of discretion is further reviewed under the

harmless error doctrine: “[W]e will affirm the evidentiary rulings

unless   they    affect   a   substantial   right”.      United   States    v.

Hefferon, 314 F.3d 211, 222 (5th Cir. 2002).

       Plaintiffs contend Dr. Morse’s report and deposition disclosed

the alternative designs about which he opined in his subsequent

affidavit in opposition to summary judgment.             In his report, Dr.

Morse stated in pertinent part:           “Duriron should have specified

carbon steel bolts instead of stainless steel bolts, since the

carbon steel bolts are not subject to SCC. [Carbon steel bolts] are


                                     6
subject to general corrosion, but it is much easier to detect and

easier to predict”.     He concluded:     “It is my opinion that the

valve was defective and unreasonably dangerous”.

     When deposed, Dr. Morse was questioned about this conclusion.

He stated that the only defect he had been describing was the

stainless steel bolting “[t]hat w[as] susceptible to [SCC] under

the conditions ... that the valve was in”. Immediately thereafter,

he agreed that the type bolting — stainless steel — was the only

design defect to which his report had referred.

     Along   this   line,   concerning   the   three   earlier-described

alternative designs in addition to using carbon steel, Plaintiffs

contend:   (1) Dr. Morse noted the fact of the crevice in his report

and deposition; and (2) regarding the two Teflon alternatives, Dr.

Morse’s report put Defendants on notice that design defects were

generally at issue. Neither contention satisfies Rule 26(a)(2)(B).

In the light of Dr. Morse’s above-described deposition testimony,

the only design defect addressed in his report and deposition was

the type bolting used in the valve.

     Accordingly, the other three design defects described in Dr.

Morse’s affidavit (small crevice and lack of Teflon coat and

sleeve) were not disclosed to Defendants as required.        Therefore,

the district court did not abuse its discretion by striking those

three new alternative designs described in the affidavit.




                                   7
     Dr. Morse’s affidavit contained the entirety of Plaintiffs’

evidence regarding      the   Teflon    design   alternatives;      therefore,

summary judgment for Defendants on those two sub-claims was proper.

As discussed infra:      (1) the exclusion of the “material choice”

portion of Dr. Morse’s affidavit was harmless error; and (2)

Plaintiffs offered other evidence in support of their crevice-size

claim.

                                       2.

     Because   Dr.    Morse   had   earlier   stated     in   his   report   and

deposition   that    carbon   steel    bolting   would    have   been   a    more

suitable alternative design, the district court may have abused its

discretion by striking that portion of his affidavit.               However, as

discussed supra, the abuse of discretion, if any, is subject to

harmless error analysis.       Hefferon, 314 F.3d at 222.

     As noted, for an LPLA design defect claim: (1) an alternative

design must have existed; and (2) the likelihood and gravity of the

product’s design causing damage must have outweighed the burden of

adopting the alternative design, including the adverse effect that

design would have on the product’s utility.                   LA. REV. STAT. §

9:2800.56.     In this regard, a plaintiff must produce evidence

regarding

            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 ...
            the burden of switching to the alternative

                                       8
              design ... [or] the loss of product utility
              that the use of the alternative design would
              have occasioned.

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 183

(5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994).

     Although Dr. Morse’s affidavit might present a material fact

issue    on   the   existence     of   an       alternative   design   capable   of

preventing the damage at issue (the first prong of LA. REV. STAT. §

9:2800.56), it does not provide any evidence for whether the

potential for damage created by using stainless steel “outweighed”

the attendant burden on Duriron and the adverse effect of the

carbon    steel     on   the   valve’s   utility.        See   LA. REV. STAT.     §

9:2800.56(2).

     As stated earlier, Plaintiffs contend that the affidavit of

their other expert, Dr. Shelton, created a material fact issue on

Duriron’s choice of stainless, over carbon, steel.                 Dr. Shelton’s

affidavit did not state, however, that Duriron should have used

only carbon steel in its T-41 valves or that stainless steel

bolting did not have unique benefits.                 Instead, he only stated:

Duriron should have warned PPG not to use stainless steel bolting

in valves placed in high-chloride environments; and Duriron should

have “considered” SCC in its selection of stainless steel bolting.

     In sum, Plaintiffs have produced no evidence that the putative

benefits of Duriron’s use of carbon steel bolting would have


                                            9
outweighed the benefits of using stainless steel.            This absence is

especially noteworthy in the light of other parts of the summary

judgment   record.      PPG    Senior    Design   Engineer   Alfred   Spencer

testified that, in non-chloride environments, he would choose

stainless, instead of carbon, steel bolting.            Presumably, this is

because, as PPG Principal Project Engineer, Don Haines, wrote, the

use of stainless steel “g[o]t around” the problem of carbon steel’s

vulnerability to general corrosion.          Along this line, Dr. Slater

(Defendants’ expert) stated:            “A valve manufacturer typically

manufactures a valve for the broadest spectrum of use”.                  This

spectrum would include use in non-chloride environments.              Finally,

Plaintiffs do not dispute that stainless steel was the prevailing

type bolting used by the industry pre-1984, when the valve at issue

was manufactured and sold to PPG.

     Therefore,      Duriron   was   entitled     to   summary   judgment   on

Plaintiffs’ “material choice” design claim.                Accordingly, the

district court’s refusal to admit that portion of Dr. Morse’s

affidavit opining that the valve’s stainless steel bolting was an

unreasonably dangerous design was harmless error.

                                        3.

     As noted, the stricken Dr. Morse affidavit recommended a

larger crevice.       Again, the crevice was the gap between the

portions of the valve connected by the stainless steel bolting.             As

also noted, Plaintiffs contend that, regarding crevice size, Dr.


                                        10
Shelton’s deposition established a material fact issue to preclude

summary judgment.   The relevant colloquy was:

          Q.   Did you find any general corrosion?

          A.   There was plenty of general corrosion on
          the valve body.

          Q.   On the bolts.

          A.   Generally speaking, it looked more like
          it was crevice corrosion type of —

          Q.   I’m not familiar with that term.       Is
          crevice corrosion not general corrosion?

          A.   No, it’s not.

          Q.   What is it?

          A.   Crevice corrosion is an accelerated
          corrosion mechanism, in which you have a
          confined space in which the environment cannot
          be readily flushed or changed.

               For example, a gap between the shank of
          the bolt body and the valve flange, the hole
          in the back of the valve flange, would be a
          crevice. That is not an area that’s readily
          accessible, readily changed in the environment
          that exists.

     Unlike Dr. Morse’s affidavit (stricken), Dr. Shelton did not

recommend in his deposition that the crevice be expanded in order

to allow Plaintiffs to more easily observe SCC.   Nor did he even

mention crevice size in his subsequent affidavit in Plaintiffs’

amended opposition to summary judgment.   Therefore, Dr. Shelton’s

testimony is insufficient to preclude summary judgment against the

“crevice” portion of Plaintiffs’ design claims.




                                11
     Finally, with regard to crevice size, Plaintiffs contend that

the deposition of Defendants’ expert, Dr. Slater, precluded summary

judgment.    Dr. Slater testified that the ideal design for a valve

would have no crevice (not a larger one) in order to prevent

contact between the bolting and the brine. This testimony does not

support Plaintiffs’ design defect theory which criticized the

narrowness of the crevice.      Moreover, Plaintiffs’ counsel prefaced

the pertinent question by saying:        “I don’t think I’m asking [Dr.

Slater] to talk about the design issue, I’m simply asking him the

physical question of whether ...[,] if there wasn’t a crevice[,]

would there be a place for the material to stay in contact with the

bolt”.   Dr. Slater’s testimony does not create a material fact

issue on this design claim.

                                    B.

     Plaintiffs’    remaining    claim    is   that   Duriron   failed   to

adequately warn PPG against using stainless steel bolting in high-

chloride environments when it was reasonably foreseeable that PPG

would so use the valves.

            A manufacturer of a product who, after the
            product has left his control, acquires
            knowledge of a characteristic of the product
            that may cause damage and the danger of such
            characteristic ... is liable for damage caused
            by his subsequent failure to use reasonable
            care to provide an adequate warning of such
            characteristic and its danger to users and
            handlers of the product.

LA. REV. STAT. § 9:2800.57(C).


                                    12
     A manufacturer, however, does not have a duty to warn if

“[t]he user or handler of the product already knows or reasonably

should be expected to know of the characteristic of the product

that may cause damage and the danger of such characteristic”.          LA.

REV. STAT. § 9:2800.57(B)(2).   Such users are “sophisticated users”

or “sophisticated intermediaries”. E.g., Swope v. Columbian Chems.

Co., 281 F.3d 185, 205-06 (5th Cir. 2002).            The summary judgment

against the failure-to-warn claim was based on PPG’s being such a

user.

     Plaintiffs maintain PPG was not a sophisticated user of

stainless   steel    bolting     in      high-chloride       environments.

Essentially, they contend:      PPG did not know of the danger of

stainless steel bolting in such an environment; and, at the very

least, Duriron should have warned of that danger in 1984, when it

changed its standard Durco T-41 bolting from stainless to carbon

steel. (Again, the valve at issue was manufactured and sold to PPG

between 1977 and 1983; the injury was in 1998.)

     Plaintiffs rely on Swope, in which our court reversed a

summary judgment awarded a generator manufacturer, rejecting a

“sophisticated   user”   defense.        281   F.3d    at   205-11.    The

manufacturer had claimed plaintiff, a carbon black manufacturer,

was a sophisticated user of ozone generators.            Id. at 190.   The

generator manufacturer offered two contentions to support its

“sophisticated user” defense: (1) because plaintiff had experience


                                    13
with ozone generators, it should have known of their dangerousness;

and (2) because plaintiff was experienced in using ozone to produce

carbon black, it should have known of the dangerous characteristics

of the ozone generator.        Id. at 208-09.         Our court rejected the

latter contention:        “The argument begs the question because it

bases a conclusion on an assumption that is as much in need of

proof or demonstration as the conclusion itself”.                    Id. at 209

(internal quotation and alteration omitted).               (Our court dismissed

the   former   contention     because,     although    a    jury    might   infer

knowledge from experience with the particular generator, it also

might not.     Id. at 208.)

      Had Duriron merely contended, similar to the contention in

Swope, that PPG was a sophisticated user of stainless steel bolting

because it had extensively used it in its chemical processing,

Swope would be apposite.         Duriron offered significantly more,

however, in support of its defense.

      First, PPG’s West Virginia plant had rejected stainless steel

bolting   (also    from    Duriron)   for     use     in    its    high-chloride

environment since 1969 and had specified carbon steel prior to

1984. Plaintiffs contend this differing behavior by two PPG plants

shows PPG was not a sophisticated user.                To the contrary, it

demonstrates that PPG’s Lake Charles plant knew, or certainly

should have known, of such dangers in using stainless steel bolting

when it purchased the valve from Duriron, and certainly before


                                      14
Duriron changed the standard bolting on the Durco T-41.         Although,

in retrospect, PPG’s Lake Charles plant may have erred, the fact

that another PPG plant specified carbon steel shows that PPG

qualified as a sophisticated user of valve bolting.

     Second, PPG produced a Teflon coating “intended for use on

austenitic stainless and carbon steel to provide protection against

... [SCC] ....”        In short, PPG was aware of the danger posed by

using     non-coated     stainless   steel   bolting   in   high-chloride

environments.

     Finally, Haines, PPG’s employee, testified that PPG’s Lake

Charles plant had experienced SCC in stainless steel bolting only

six months before Jones’ incident.        In that earlier incident, the

valve involved was also made by Duriron and had been exposed to a

higher level of chloride than the valve at issue here.        The earlier

incident should have put PPG’s Lake Charles plant on notice of the

danger of such use of stainless steel bolting (as discussed, that

plant had known, or should have known, of the danger for many

years).

     Plaintiffs point to language in Swope that a user must have

known of the danger at the time it purchased the product.         First,

that language (in a footnote) is dicta.         See Swope, 281 F.3d 209

n.81 (“We do not base our decision ... on this statutory nuance,

however, because there is no evidence that [the user] ever acquired




                                     15
actual or constructive knowledge of the dangerous characteristic

prior to [the incident].” (emphasis added)).

     Second, the language in Swope was an interpretation of §

9:2800.57(A), which mandates adequate warning for a dangerous item

when it leaves the manufacturer’s control. Plaintiffs rely instead

on § 9:2800.57(C), which requires a manufacturer that learns of the

danger after the product leaves its control to warn users.                The §

9:2800.57(B) “sophisticated user” defense is tied to the general

requirement that the manufacturer provide an adequate warning.               It

stands to reason that, for the “sophisticated user” defense, the

time of the user’s actual or constructive knowledge is tied to when

the duty to warn falls upon the manufacturer.             Therefore, at best,

Plaintiffs might argue that the Swope dicta requires PPG to have

had actual or constructive knowledge of the danger at the time

Duriron changed its standard bolting in 1984.              As discussed, PPG

had such knowledge prior to then.

     Finally, Jones contends:          even if PPG was a sophisticated

user, Duriron is not absolved from shouldering its proportionate

share of liability.    This contention has no basis in law, Davis v.

Avondale    Indus.,   Inc.,    975    F.2d   169,   173    (5th    Cir.   1992)

(manufacturer has no duty to warn employee of user that has

knowledge    of   danger);    the    “sophisticated    user”      defense,   if

applicable, protects manufacturers from claims made by the user’s

employees.


                                      16
                         III.

For the foregoing reasons, the judgment is

                                             AFFIRMED.




                          17
