     Case: 16-30993      Document: 00514011564         Page: 1    Date Filed: 05/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-30993                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                          May 30, 2017
BILLY STEWART; SHARON GILBERT,
                                                                         Lyle W. Cayce
              Plaintiffs - Appellants                                         Clerk


v.

CAPITAL SAFETY U S A; D B INDUSTRIES, INCORPORATED, incorrectly
designated as Capital Safety U S A, doing business as Capital Safety U S A,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CV-904


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal is from a district court’s grant of summary judgment in favor
of Capital Safety USA in a products liability suit brought by Billy Stewart and
Sharon Gilbert (“Appellants”) on behalf of their son Ty Stewart (“Stewart”), an
oil rig derrickman who fell to his death from the mast of a drilling rig while
wearing a Capital Safety fall protection body harness with a self-retracting
lifeline. Appellants challenge the district court’s holdings that they did not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30993
provide competent summary judgment evidence that would raise a genuine
dispute of material fact as to: (1) proximate causation on their defective design
and inadequate warning claims; and (2) any of the other elements of their
inadequate warning claim. We AFFIRM.
                                        I.
      On May 10, 2012, Stewart died after falling from a land-based oil rig in
Caddo Parish, Louisiana. On the night of the incident, a crew had been pulling
up the rig’s drill pipe in order to replace a dull bit at the leading edge of the
pipe. This process required a derrickman to climb up to the “monkey board”
(the derrickman’s working platform that is roughly 90 feet up the rig’s 142-foot
mast), remove strands from the drill pipe, and rack the strands on the monkey
board’s “fingerboard” (a comb-like structure containing steel “fingers” with
slots between them that hold in place the tops of the drill pipe strands).
      Typically, Stewart was the derrickman. But, on the night in question, a
less experienced crewmember was performing his role. The crewmember was
having difficulty moving some pipe strands, so Stewart volunteered to help
him. Stewart put on a Capital Safety body harness, climbed up to the monkey
board, and attached his harness to a Capital Safety self-retracting lifeline.
This lifeline, which contained a braking mechanism and an eighty-five foot
spool of 3/16th inch wire rope, was anchored to the top of the rig above the large
traveling block and “top drive” motor, which together drive the drill pipe into
the well.
      After Stewart and the crewmember finished racking the pipe strands,
Stewart radioed “I got it. Get out of here.” to Jamie Womack, who was
operating the drill controls at the base of the rig.       Womack interpreted
Stewart’s statement as meaning that Stewart and the crewmember had




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                              No. 16-30993
completed their work and were out of harm’s way, so he began lowering the
traveling block and top drive to the rig’s floor.
       Shortly thereafter, Womack looked up, saw Stewart falling, and
immediately engaged the brake that halts the traveling block and top drive’s
progress. By that time, however, the top drive had already descended past the
monkey board, and Stewart fell until he hit the rig’s floor. Based on the fact
that the cable on Stewart’s lifeline was severed, crewmembers and safety
investigators concluded that the top drive had caught the lifeline’s cable, pulled
Stewart off balance, and severed the cable as it fell past the monkey board.
       Appellants subsequently sued Capital Safety, raising defective design
and inadequate warning claims under the Louisiana Products Liability Act
(“LPLA”).      Capital Safety moved to exclude the testimony of Appellants’
engineering expert, Stephen Killingsworth, pursuant to Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and simultaneously moved for summary judgment.
       The district court first granted Capital Safety’s Daubert motion.                  It
excluded Killingsworth’s testimony on causation, defective design, failure to
provide adequate warnings, and alternative anchoring systems because, the
court held, Appellants did not “establish[] the admissibility of Killingsworth’s
opinions.” 1
       Five months later, the district court granted Capital Safety’s motion for
summary judgment. The court primarily predicated its decision on its holding
that Appellants did not “come forward with [any] competent summary



       1The court had “major concerns’ about [Killingsworth’s] ability to satisfy any of [the
Daubert] requirements” because, the court found, Killingsworth “made wide-ranging, blanket
statements . . . without any data or methodology to back [them] up” and “his theories on
product defects and accident causation lack[ed] the reliability and testability that is
required.”


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                               No. 16-30993
judgment evidence to raise a genuine dispute of material fact as to proximate
causation, as required for any claim made under the LPLA.”
       With respect to Appellants’ defective design claim, the court explained
that Appellants “must be able to establish that the failure of the [lifeline] to
prevent Stewart’s fall was proximately caused by the defective design of the
[lifeline].” Appellants “rel[ied] on Killingsworth’s conclusion that [Stewart’s
lifeline] was severed upon coming in contact with the top drive because the
[lifeline] was defective,” but this argument “is now unsupported” because the
court excluded Killingsworth’s opinion. Moreover, the court found, none of the
additional pieces of evidence that Appellants pointed to “in support of their
causation position” raised a genuine dispute of material fact as to causation.” 2
       As for their inadequate warning claim, the court found that Appellants
again “rel[ied] on the expert testimony of Killingsworth,” which the court had
already excluded under Daubert.              Furthermore, the court held, without
Killingsworth’s testimony, Appellants were “unable to raise any genuine
dispute of material fact in relation to the requisite elements of a failure to warn
under the LPLA.”
       Appellants have timely appealed. While their argument is not pellucid,
Appellants appear to argue that the district court erred in granting summary
judgment because: (1) expert testimony is not required to show causation in
this case given that they may rely upon circumstantial evidence generally and
res ipsa loquitur specifically; and (2) based on international safety standards


       2  Appellants cited to: (1) “standards published by the Canadian Standards
Association” and “a report published by the German Institute for Occupation[al] Safety and
Health in support of their argument that an alternative design exists”; (2) “Capital Safety’s
manufacturing of another type of [lifeline]” in support of what appears to be the argument
that this “necessarily means that there was an alternative design available”; and (3) “an
article published in ‘Industrial Safety News’ and authored by Capital Safety’s Australia/NZ
technical manager, Ric[k] Millar,” in support of their argument “that the alternative design
fall protection devi[c]e was capable of preventing Stewart’s death.”


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                                 No. 16-30993
and an article written by one of Capital Safety’s managers, a reasonable jury
could find that Capital Safety knew that its lifeline was not safe and did not
provide a warning.
                                       II.
      “This court reviews ‘a grant of summary judgment de novo, applying the
same standard as the district court.’” Kinsale Ins. Co. v. Ga.-Pac., L.L.C., 795
F.3d 452, 454 (5th Cir. 2015) (citation omitted). But we “may ‘affirm the
district court’s judgment on any grounds supported by the record.’” U.S. ex rel.
Farmer v. City of Hous., 523 F.3d 333, 338 n.8 (5th Cir. 2008) (citation omitted).
                                       A.
      To prevail under any theory under the LPLA, Appellants must establish
four elements: (1) Capital Safety manufactured the lifeline at issue; (2)
Stewart’s death “was proximately caused by a characteristic of the [lifeline]”;
(3) “this characteristic made the [lifeline] ‘unreasonably dangerous’”; and (4)
Stewart’s death “arose from a reasonably anticipated use of the [lifeline] by
[Stewart] or someone else.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 260–
61 (5th Cir. 2002); accord LA. STAT. ANN. §§ 9:2800.54(A), (D).          Thus, if
Appellants have not raised a genuine dispute of material fact as to each
element, that failure is fatal to both their defective design and inadequate
warning claims.
      We begin with the overarching issue in this appeal: whether the district
court erred in holding that Appellants have not raised a genuine dispute of
material fact as to the second element—proximate causation.
      We first address whether Appellants must adduce expert testimony to
show causation in this case. Expert testimony is, Appellants argue, neither
required in LPLA cases generally nor needed in this case, even though it
involves technical matters. After all, “Products’ Liability claims nearly always



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                                No. 16-30993
involve technical, arcane matters, and it is in precisely that context that courts
have repeatedly held that Plaintiffs are permitted to rely on circumstantial
evidence.” The district court therefore erred, they conclude, by “fail[ing] to
follow or in any way acknowledge the well-established precedent holding that
circumstantial evidence may suffice in demonstrating” LPLA liability. We
disagree.
       To be sure, expert testimony is not required in every LPLA case.
Plaintiffs may sometimes “rely on lay testimony alone.” Malbrough v. Crown
Equip. Corp., 392 F.3d 135, 137 (5th Cir. 2004). But Appellants read too much
into this Court’s statement “that ‘there may be cases in which the judge or the
jury, by relying on background knowledge and ‘common sense,’ can ‘fill in the
gaps’ in the plaintiff’s case’ . . . without the aid of expert testimony.” Id.
(citation omitted); accord, e.g., McKey v. Gen. Motors Corp., 691 So. 2d 164, 170
n.2 (La. Ct. App. 1997) (citation omitted). As both this Court and Louisiana
courts have recognized, for expert testimony not to be required in a products
liability case, “the product itself, or at least the . . . feature in question, must
be relatively uncomplicated, and the implications . . . such that a layman could
readily grasp them.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d
167, 184 (5th Cir. 1990) (citations omitted), abrogated on other grounds by
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc)); accord, e.g.,
McKey, 691 So. 2d at 170 n.2. Consequently, courts consistently require expert
testimony in products liability cases, even when the products in question are
in common use. 3

       3 E.g., Winstead v. Ga. Gulf Corp., 77 F. App’x 267, 271 (5th Cir. 2003) (requiring the
appellant to present expert testimony to raise a fact question on causation “because the cause
of [a] chemical release is beyond the understanding of an untrained lay person and because
specialized, technical knowledge would assist the trier of fact in determining the cause of the
chemical release”); Krummel v. Bombardier Corp., 206 F.3d 548, 552 n.4 (5th Cir. 2000)
(requiring expert testimony because “a layperson obviously could not have grasped the
adequacy of [a] footwell design [in a watercraft] and the need, if any, for warnings”);


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                                  No. 16-30993
       To find injury causation here, a jury would at least have to conclude that
a different lifeline cable or a different warning would have, under the
circumstances of this accident, prevented Stewart’s death. Thus, a jury would
be confronted with questions that require a degree of familiarity with such
subjects as physics, engineering, and oil rig practices and procedures. This
case therefore raises questions that are of “sufficient complexity to be beyond
the expertise of the average judge and juror” and that “common sense” does not
“make[] obvious.” See Morgan v. Gaylord Container Corp., 30 F.3d 586, 590–
91 (5th Cir. 1994). Accordingly, Appellants were required to provide the jury
with expert testimony related to causation in order to survive summary
judgment in this case. 4


Underwood v. Gen. Motors LLC, No. CV 14-00188-BAJ-RLB, 2015 WL 5475610, at *3 (M.D.
La. Sept. 17, 2015), aff’d sub nom. Underwood v. Gen. Motors, L.L.C., 642 F. App’x 468 (5th
Cir. 2016) (requiring expert testimony on, among other things, causation because “[w]hether
or not a fuel tank or an automobile electrical system was . . . the proximate cause of driver or
passenger injury, is not part of the everyday experience of the average finder of fact”);
Graham v. Hamilton, No. CIV.A. 3:11-609, 2012 WL 1252590, at *7 (W.D. La. Apr. 12, 2012)
(requiring expert testimony because “redesigning a [car’s] fuel system is well beyond the
realm of common sense”); Gray v. Indus. Plant Maint., No. CIV.A. 01-1167, 2004 WL 1661209,
at *6 n.2 (E.D. La. July 23, 2004) (requiring expert testimony “because a tractor is relatively
complicated”); Scordill v. Louisville Ladder Grp., LLC, No. CIV.A. 02-2565, 2003 WL
22427981, at *10 (E.D. La. Oct. 24, 2003) (requiring expert testimony when the product at
issue was a ladder); Clark v. Bohn Ford, Inc., 213 F. Supp. 2d 957, 961 (S.D. Ind. 2002)
(applying Louisiana law and relying on Fifth Circuit precedent to require expert testimony
because “[t]he design features of tires are not ‘uncomplicated’”); Bourgeois v. Garrard
Chevrolet, Inc., 811 So. 2d 962, 966–67 (La. Ct. App. 2002) (holding that res ipsa loquitur was
inapplicable and requiring expert testimony to show a genuine issue of material fact in a case
involving a car’s allegedly defective air brake system); Batiste v. Gen. Motors Corp., 802 So.
2d 686, 689–90 (La. Ct. App. 2001) (holding that res ipsa loquitur was inapplicable and
requiring expert testimony to show a genuine issue of material fact as to causation when the
product at issue was a car’s air bags); McKey, 691 So. 2d at 166–67, 170 n.2 (requiring expert
testimony when the allegedly defectively designed product was a car that uncontrollably
accelerated).
        4 Appellants contend that Batiste and Bourgeois—Louisiana appellate cases standing

for the proposition that expert testimony is required in LPLA cases involving “technical
matters”—are no longer good law in the wake of Lawson v. Mitsubishi Motor Sales of Am.,
Inc., 938 So. 2d 35 (La. 2006), a Louisiana Supreme Court case which recognized that res ipsa
loquitur may be used in products liability actions. Appellants’ contention is without merit.
All three decisions are consistent. Both Batiste and Bourgeois recognized that expert


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                                 No. 16-30993
       While Appellants initially proffered a purported expert’s testimony on
causation, the district court excluded that testimony under Daubert.
Appellants have clarified that they are not appealing the Daubert order and
have never tendered another expert.
       To conclude: because the causation element of their causes of action can
only be established through expert testimony and Appellants have not
proffered any competent expert testimony on causation, Appellants have not
shown a genuine dispute of material fact as to proximate causation. And
because proximate causation is an essential element of both of their LPLA
claims, e.g., LA. STAT. ANN. §§ 9:2800.54, Appellants’ defective design and
inadequate warning claims fail as a matter of law. Accordingly, the district
court did not err in granting Capital Safety summary judgment.
                                            III.
       For the forgoing reasons, the judgment of the district court is
AFFIRMED.




testimony is not required in every LPLA case and that res ipsa loquitur may be used in some
cases, placing restrictions on the doctrine’s use that are fully consistent with Lawson.
Lawson, 938 So. 2d at 43–51; Bourgeois, 811 So. 2d at 966–67; Batiste, 802 So. 2d at 689–90.
Moreover, cases decided after Lawson still cite Batiste and Bourgeois as good law. E.g.,
Underwood, 2015 WL 5475610, at *4 (citing Bourgeois); Bennett v. MillerCoors, LLC, 838 F.
Supp. 2d 470, 473 (M.D. La. 2011) (citing Batiste).


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