     Case: 18-30812      Document: 00515001350         Page: 1    Date Filed: 06/18/2019




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

                                      No. 18-30812                            FILED
                                                                          June 18, 2019
                                                                         Lyle W. Cayce
THOMAS F. HEBERT; DAWN HEBERT,                                                Clerk

              Plaintiffs - Appellants

v.

TITAN INTERNATIONAL, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CV-1706


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Thomas Hebert appeals the district court’s denial of his renewed motion
for judgment as a matter of law or, in the alternative, for a new trial. We
AFFIRM.
                                        I. Background
       Thomas Hebert was injured when a multi-piece wheel exploded as he
was inflating the tire around the wheel.             Hebert had been asked by his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30812
employer to dissemble the wheel on a piece of farm equipment because the tire
was losing air. As Hebert reassembled the wheel, it exploded, shooting metal
pieces at Hebert’s face and throwing him backwards several feet. Hebert
suffered serious injuries as a result of the explosion.
       Hebert sued Titan International, Inc. (“Titan”), the manufacturer of the
wheel, under the Louisiana Products Liability Act (“LPLA”). He alleged the
multi-piece wheel was unreasonably dangerous based on design defect and
inadequate warning. The case proceeded to trial; prior to submission to the
jury, Hebert filed a motion for judgment as a matter of law, which was denied. 1
Thereafter, the jury found for Titan.            Hebert filed a renewed motion for
judgment as a matter of law (using the terminology of “judgment
notwithstanding the verdict”) (hereinafter “RJMOL”) or in the alternative, for
a new trial. Hebert argued the jury’s verdict was against the great weight of
the evidence and that the issues of whether Hebert’s use of the wheel was
reasonably anticipated, whether there was an alternative design available, and
whether his damages were caused by a defect in the product were undisputed
and should not have been submitted to the jury. He argued a new trial was
warranted because the district court impermissibly allowed evidence to be
admitted that he tested positive for methamphetamine. The district court
denied the motions, and Hebert timely appealed.




       1  To the extent that Hebert’s renewed motion exceeds his original pre-verdict motion,
we “lack power” to address it, as a party cannot a renew a motion he never made. OneBeacon
Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 680 (5th Cir. 2016). Even if we were to
consider the arguments under a plain error standard, however, it would not change the
result. McLendon v. Big Lots Stores, Inc.,749 F.3d 373, 374–75 & n.2 (5th Cir. 2014) (per
curiam) (not designated for publication) (concluding the court lacked power to address Rule
50 argument, but determining it would fail in the alternative under plain error review, in
any event).
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                                         II. Discussion
      On appeal, Hebert advances the same arguments he made below. We
first consider his arguments about the sufficiency of the evidence at trial and
then his argument about the drug-test testimony. We conclude that neither
justifies reversal.
      A. The district court did not err in denying Hebert’s motion for
RJMOL.
      Hebert argues that the district court erred in denying his motion for
RJMOL because the “overwhelming amount of evidence required a verdict in
Plaintiffs’ favor” that the multi-piece wheel was unreasonably dangerous based
on its design and because Titan provided inadequate warnings.                     In the
alternative, he argues that several of the issues submitted to the jury were
undisputed and asks us to remand for a trial excluding those issues.
      We review a district court’s denial of a motion for RJMOL de novo.
Allstate Ins. Co. v. Receivable Fin. Co., L.L.C., 501 F.3d 398, 405 (5th Cir. 2007).
“A court should grant a post-judgment motion for judgment as a matter of law
only when ‘the facts and inferences point so strongly in favor of the movant
that a rational jury could not reach a contrary verdict.’” Id. (quoting Pineda v.
United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004)); see FED R. CIV. P.
50. We “view all evidence and draw all reasonable inferences in the light most
favorable to the verdict.” Id. (quoting Thomas v. Tex. Dep’t of Criminal Justice,
220 F.3d 389, 392 (5th Cir. 2000)).
      A plaintiff must establish four elements under the LPLA: “(1) that the
defendant is a manufacturer of the product; 2 (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


      2   The parties stipulated that Titan manufactured the wheel at issue.
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claimant’s damage arose from a reasonably anticipated use of the product by
the claimant or someone else.” Stahl v. Novartis Pharm. Corp., 283 F.3d 254,
261 (5th Cir. 2002). A product is unreasonably dangerous in design if there is
an alternative design “capable of preventing the claimant’s damages,” and the
likelihood and severity of damages outweighs, in relevant part, the adverse
effect the alternative design might have on the utility of the product. See LA.
REV. STAT. ANN. § 9:2800.56.
      Hebert produced a great deal of evidence that multi-piece wheels are
inherently dangerous and that single-piece wheels are not and could have
prevented the injuries he suffered. But Titan produced some evidence that
single-piece wheels are also dangerous and would not have provided the same
utility; Titan averred that large tires such as those used on some agricultural
equipment do not fit on single-piece wheels.
       In addition, Titan produced evidence that Hebert did not use the multi-
piece wheel in a reasonably anticipated way.         Hebert did not take the
recommended precautions, such as airing up the tire in a cage or using a clip-
on air chuck to inflate the tire, that would have allowed him to inflate the tire
outside the wheel’s trajectory path. Instead, he stood directly in front of the
tire while he inflated it.   Thus, we cannot conclude that “the facts and
inferences point so strongly in favor of the movant that a rational jury could
not reach a contrary verdict.” Allstate Ins. Co., 501 F.3d at 405 (quoting
Pineda, 360 F.3d at 486).
      We reach the same conclusion about Hebert’s inadequate warning claim.
Hebert argues Titan failed to provide an adequate warning about the dangers
of multi-piece wheels because there was no warning on the wheel itself;
instead, Titan provided warnings only on its website and in the catalog that
accompanied the wheel at purchase. But Titan was not required to provide a
warning on the wheel. See Lockart v. Kobe Steel Ltd. Constr. Mach. Div., 989
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F.2d 864, 868 (5th Cir. 1993) (noting that a warning may be adequate when
not affixed to the product when it would be impractical to put all warnings on
the product); Broussard v. Cont’l Oil Co., 433 So. 2d 354, 355–56, 358 (La. Ct.
App. 1983) (holding that a “small notice” on the side of a drill instructing the
user to refer to the owner’s manual for safe operation was an adequate
warning). The adequacy of a warning is usually a fact issue, Bloxom v. Bloxom,
512 So.2d 839, 844 (La. 1987) superseded by statute on other grounds as stated
in Payne v. Gardner, 56 So. 3d 229, 231 (La. 2011), and the jury could have
found that the warnings on the website and in the catalog were adequate.
      Further, a warning is not required to reach the end user if the user
would have known how to properly handle the product. Lockart, 989 F.2d at
868; see also LA. REV. STAT. ANN. § 9:2800.57(B). Here, Hebert’s testimony that
he had experience assembling multi-piece wheels and Hebert’s boss’s
testimony that he understood the safety precautions relating to multi-piece
wheels because of his experience working on a farm could have led the jury to
find that Titan’s warnings were adequate because Hebert would have known
how to properly handle the product.
      In the alternative, Hebert urges that there were several undisputed
issues that were submitted to the jury and asks us to remand for a new trial
that excludes those issues. Hebert claims that it was undisputed that an
alternative design existed that was capable of preventing his injuries, his use
was reasonably anticipated, and he suffered damages. We disagree.
      First, as noted above, it was not undisputed that a viable alternative
existed because Titan produced some evidence that single-piece wheels were
also dangerous and would not have provided the same utility.            Second,
although Titan’s corporate representative admitted that it was foreseeable
that a user could have reassembled the multi-piece wheel without fully
inserting the lock ring, allegedly the only way to cause an explosion,
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“foreseeable” is not analogous to “reasonably anticipated” under the LPLA.
What a manufacturer should reasonably expect is narrower than what a
manufacturer might foresee. See Matthews v. Remington Arms Co., Inc., 641
F.3d 635, 646–47 (5th Cir. 2011) (“‘Reasonably anticipated use is more
restrictive than the broader, pre-LPLA standard of normal use,’ and it does not
suggest manufacturer liability ‘for every conceivable foreseeable use of a
product.’” (brackets omitted) (quoting Delphen v. Dep’t. of Transp. & Dev., 657
So. 2d 328, 333 (La. App. 4th Cir. 1995))); Kampen v. Am. Izuzu Motors, Inc.,
157 F.3d 306, 309 (5th Cir. 1998) (en banc) (“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.”).   Finally, although it is undisputed that Hebert suffered
damages, as noted above, it is not undisputed that the multi-piece wheel was
unreasonably dangerous. See LA. REV. STAT. ANN. § 9:2800.54.A (noting that
damages must be “proximately caused by a characteristic of the product that
renders the product unreasonably dangerous”).
      B. The district court did not err in denying Hebert’s motion for
a new trial.
      Hebert argues that the district court erred in denying his motion for a
new trial because the district court should not have admitted evidence that he
tested positive for methamphetamine. “We review the denial of a motion for a
new trial for an abuse of discretion.” Williams v. Manitowoc Cranes, L.L.C.,
898 F.3d 607, 614 (5th Cir. 2018).     The district court determined that the
evidence was “relevant in that it relates to treatment sought as a result of the
injuries that are the subject of this case.”   The district court concluded that
Dr. Bozzelle, who administered the test, could testify as to the positive drug
screen because he “is a pain management physician, who in the regular course
of his treatment of patients, would require drug screens to determine the
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nature and extent of the treatment that he would prescribe.”                 Hebert
challenges the admission on two grounds. First, he argues that evidence of the
drug test should not have been admitted at all because Dr. Bozzelle was not
qualified to discuss toxicology reports. Second, Hebert argues that Titan used
evidence of the drug test to imply that Hebert took illegal drugs and acquired
drugs illegally, prejudicing his case.
      We review the admission of expert testimony for an abuse of discretion
and grant the district court broad discretion in determining whether to admit
expert testimony. Williams, 898 F.3d at 615. Evidentiary rulings are also
reviewed for an abuse of discretion. Stover v. Hattiesburg Pub. Sch. Dist., 549
F.3d 985, 992 (5th Cir. 2008). “We will reverse a judgment for an evidentiary
ruling only if it affected the substantial rights of the parties.” Id. “The party
asserting the error has the burden of proving that the error was prejudicial.”
Ball v. LeBlanc, 792 F.3d 584, 591 (5th Cir. 2015).
      As to Hebert’s first argument, even assuming arguendo that Dr. Bozzelle
was not qualified to render toxicology opinions, Dr. Bozzelle did not do so. His
testimony   regarding    Hebert’s     drug   test   concerned    his   reasons    for
administering the test, the process for confirming the test results, and his
description of the lab results. As Hebert pointed out, Dr. Bozzelle was qualified
to testify about what the lab results said. Thus, we conclude that the district
court did not abuse its discretion.
      Hebert’s second argument also fails.          The district court has broad
discretion to weigh the relevance of evidence against its potentially prejudicial
effect and determine if the probative value is substantially outweighed by its
prejudicial effect. FED. R. EVID. 403; see United States ex rel. Colquitt v. Abbott
Labs., 858 F.3d 365, 377 (5th Cir. 2017) (noting that district courts have broad
discretion in making Rule 403 determinations). Even if Titan’s questions
about Hebert’s drug test results implicate use of illegal drugs, Hebert has not
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proved that the prejudicial effect substantially outweighed the probative value.
Additionally, Hebert has pointed only to speculation that the jury must have
disregarded evidence concerning the viability of Hebert’s LPLA claim and
found in favor of Titan because it believed Hebert had a drug problem. But Dr.
Bozzelle testified that he did not assume Hebert had a substance abuse
problem because of his drug test results, and Dr. Weir testified that the result
for methamphetamine could have been a false positive, such that any
prejudicial effect was mitigated. We have pointed to the evidence that supports
the verdict in favor of Titan. Thus, we conclude the district court did not abuse
its discretion in denying the motion for new trial.
      We AFFIRM.




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