                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-3741.

                             Alastair WASHINGTON, Plaintiff-Appellant,

                                                    v.

                    DEPARTMENT OF TRANSPORTATION, et al., Defendants,

                              Shop-Vac Corporation, Defendant-Appellee.

                                     Nathaniel THOMAS, Plaintiff,

                                                    v.

                          SHOP-VAC CORPORATION, Defendant-Appellee.

                                              Dec. 6, 1993.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WIENER and EMILIO M. GARZA, Circuit Judges, and LITTLE,* District Judge.

          EMILIO M. GARZA, Circuit Judge:

          Alastair Washington brought a products liability suit against Shop Vac Corporation ("Shop

Vac"), seeking damages for injuries he sustained when a spark from a Shop Vac vacuum ignited

acetone vapors in the freshwater tank of a ship where Washington was working. Washington claimed

that Shop Vac's failure to provide an adequate warning label on its vacuum was a proximate cause

of his injuries. The district court, sitting in diversity, entered judgment for Shop Vac in accordance

with the jury's answers to two special interrogatories. On appeal, Washington contests several of the

district court's evidentiary rulings. Finding no reversible error, we affirm.

                                                     I

          On December 28, 1989, Washington and Nathaniel Thomas were working on board the

United States Coast Guard Cutter M/V POINT BARNES, as employees of Ocean Technical Services

("OTECH"). Their supervisor, James McDonner, a superintendent for OTECH, had told them to

remove paint from the walls of a freshwater tank with the use of acetone and rags. To collect the

   *
       District Judge of the Western District of Louisiana, sitting by designation.
paint peelings loosened by the acetone, Thomas used a Shop Vac wet-dry vacuum cleaner. OTECH

owned the vacuum cleaner and furnished it to Washington and Thomas for use on the job. Affixed

on the black plastic power-head of the Shop Vac vacuum was a black warning label which provided:

       Warning. To avoid electrical shock, do not expose to rain. Store indoors to avoid personal
       injury or property damage. Do not pick up flammable, combustible or hot materials. Do not
       use around explosive liquids or vapors.... Read owners manual and safety rule before
       operating or attempting repairs.

The owner's manual to the Shop Vac vacuum also warned against using the vacuum in the presence

of explosive vapors. When Thomas turned on the Shop Vac vacuum, the resulting sparks ignited the

acetone vapors, causing severe injuries to both Thomas and Washington.1

         Washington brought suit in federal district court against Shop Vac, pursuant to

La.Rev.Stat.Ann. §§ 9:2800.54, 2800.57 (West 1991), claiming that Shop Vac failed to provide an

adequate warning of the dangers of using such a product in the presence of explosive vapors.2

Section 9:2800.54 provides t hat "[t]he 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." A product is unreasonably dangerous under § 9:2800.57 because "an adequate warning

about the product has not been provided if, at the time the product left its manufacturer's control, the

product possessed a characteristic that may cause damage and the manufacturer failed to use

reasonable care to provide an adequate warning of such characteristic."

       At trial, Washington offered no evidence contesting the adequacy of the warning in the

owner's manual. Thus, the only issues before the jury were whether the content and design of the

black-on-black warning label was adequate and whether any inadequacy in the design of the warning

label proximately caused Washington's accident. In its answers to two special interrogatories, the jury

   1
    Washington later testified that he neither saw the warning label on the vacuum nor was
provided with the owner's manual by his employer. McDonner testified that despite knowing of
the dangers of using power equipment in the presence of acetone fumes, he failed to relay this
knowledge to either Washington or Thomas.
   2
    The district court had diversity jurisdiction over this action as Washington was a resident of
Louisiana and Shop Vac was a foreign corporation. The district court properly applied Louisiana
substantive law because Louisiana was the forum state. See Ideal Mut. Ins. Co. v. Last Days
Evangelical Ass'n, Inc., 783 F.2d 1234, 1238 (5th Cir.1986) (applying substantive law of forum
state to diversity suit).
found neither an inadequate warning nor proximate cause. In accordance with the jury's answers, the

district court entered judgment for Shop Vac, from which Washington timely appealed. He

specifically contends that the district court erred in: (a) admitting evidence of OTECH's fault; (b)

excluding the testimony of Thomas as to what he would have done had he seen the warning label on

the Shop Vac vacuum; and (c) excluding evidence of alternative warnings on other products.3

                                                   II

                                                   A

        Washington first contends that the district court erred in admitting evidence of the fault of

OTECH, a statutorily immune employer. Under La.Civ.Code art. 2324 (West Supp.1993), "a joint

tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of

such other person, ... regardless of such other person's insolvency, ability to pay, degree of fault, or

immunity by statute or otherwise."4 Pursuant to this article, the district court admitted evidence of

OTECH's fault so that the jury could quantify and apportion such fault. Citing the Louisiana Court

of Appeals decision in Gauthier v. O'Brien, 606 So.2d 915 (La.App. 3 Cir.1992), rev'd, 618 So.2d

825 (1993), Washington argues that OTECH's fault cannot be assessed under article 2324 because

OTECH's liability is governed by the Louisiana worker's compensation scheme, a separate body of

law from the state's tort (product liability) statutes. In O'Brien, the court held that extending article

2324 to employers immune under the worker's compensation statutes would "violate the

compensation principle by implication."5 We review a district court's evidentiary rulings for abuse

   3
    Washington also contends that we should disregard the jury's finding of no proximate cause.
Because we do not rely upon that finding in affirming the district court's judgment, we do not
address the issue.
   4
     Article 2324 was amended in 1987 to reflect the termination of solidary liability between joint
tortfeasors, including those statutorily immune from liability. Washington's injuries occurred in
1989, long after the 1987 amendment's effective date.
   5
    O'Brien, 606 So.2d at 917 (citing Guidry v. Frank Guidry Oil Co., 579 So.2d 947 (La.1991),
overruled by, 618 So.2d 825 (1993)). In Guidry, the court addressed the conflict between a
scheme of comparative negligence and an employer's tort immunity under a worker's
compensation scheme, stating:

                In the employee/employer bargain of a worker's compensation scheme, the
                employer surrenders the possibility of tort recovery for the certainty of
of discretion, and will reverse a judgment on the basis of an evidentiary ruling only where the

challenged ruling affects a substantial right of a party.6

        The Louisiana Court of Appeals decision Washington cites is no longer valid in light of the

Louisiana Supreme Court's recent decision in Gauthier v. O'Brien, 618 So.2d 825 (La.1993), which

reversed the lower court's decision in the same action. The Supreme Court held in Gauthier that

article 2324, as amended in 1987, requires that fault of the employer be assessed in apportioning fault

for an employee's injury in an action against third-party tortfeasors, even though the employer is

immune from tort liability under the Louisiana workers' compensation scheme.7 We therefore find

no abuse of discretion in the district court's admission of evidence relating to OTECH's fault, and

consequently reject Washington's first contention on appeal.

                                                   B

        Washington next contends that the district court erred in refusing to allow Thomas to testify

as to what he would have done had he seen the warning label on the Shop Vac vacuum. Thomas's

testimony was being offered to show that the inconspicuousness of the warning label caused

Washington's injuries. In a diversity action, we apply federal procedural law, such as the Federal

Rules of Evidence.8 Under the Federal Rules of Evidence, speculative opinion testimony by lay


                compensation and the employer receives tort immunity in exchange for paying
                compensation. The claim of the employee against the employer is solely for
                statutory benefits; his claim against the third person is for damages. The two are
                different in kind and cannot result in a common liability. The compensation
                principle is independent of fault.

        Guidry, 579 So.2d at 953 (citation omitted) (attribution omitted) (relying upon pre-1987
        version of article 2324).
   6
    See Fed.R.Evid. 103(a); Sullivan v. Rowan Companies, Inc., 952 F.2d 141, 146 (5th
Cir.1992); Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1400 (5th Cir.1986).
   7
    See Gauthier, 618 So.2d at 831 ("We overrule Guidry ... in so far [it] preclude[s] the
assessment of employer fault. Specifically, we find that the assessment of employer fault is made
mandatory by the 1987 amendment to La.Civ.Code art. 2324 ... and to that extent Guidry ... [is]
no longer the law.").
   8
     See Fed.R.Evid. 101; Morris v. Homco Intern., Inc., 853 F.2d 337, 341 (5th Cir.1988)
(stating that "diversity cases in federal court are ... governed by federal, not state, rules of
evidence"); see also Hanna v. Plummer, 380 U.S. 460, 473-74, 85 S.Ct. 1136, 1145, 14 L.Ed.2d
8 (1965).
witnesses—i.e., t estimony not based upon the witness's perception—is generally considered

inadmissible.9 At trial, Thomas attempted to testify as to what he would have done had he seen the

warning label on the Shop Vac vacuum. Because such testimony would not have been based upon

Thomas's perception, but upon his self-serving speculat ion, we hold that the district court did not

abuse its discretion in excluding this evidence.10

                                                     C

          Lastly, Washington contends that the district court erred in excluding evidence of alternative

warning found on a Dayton dry vacuum cleaner, a Sears wet-dry vacuum cleaner, and various other

products, such as a power sander and gas pump. The district court excluded most of this evidence,

presumably because Washington had not shown that the other products were similar to the Shop Vac

vacuum in their function and intended market. Assuming arguendo that the district court's

evidentiary ruling was erroneous, such error could not have affected any substantial right of

Washington because Shop Vac owed no duty to provide OTECH's employees an adequate warning.

In Davis v. Avondale Indus., Inc., 975 F.2d 169 (5th Cir.1992), we addressed the issue of whether

a manufacturer has a duty under Louisiana law to provide an adequate warning to an employee of a

sophisticated purchaser.11 Although no Louisiana case had clearly addressed the issue, we held that

"Louisiana courts would likely hold that ... the product manufacturer owes no duty to the employee

of a purchaser if the manufacturer provides an adequate warning of any inherent dangers to the


   9
       Fed.R.Evid. 701 provides:

                 If the witness is not testifying as an expert, the witness' testimony in the form of
                 opinions or inferences is limited to those opinions or inferences which are (a)
                 rationally based on the perception of the witness and (b) helpful to a clear
                 understanding of the witness' testimony or the determination of a fact in issue.
   10
     See Kloepfer v. Honda Motor Co., Ltd., 898 F.2d 1452, 1459 (10th Cir.1990) (citing
Fed.R.Evid. 701(a) for its conclusion that speculative lay testimony by the plaintiff—as to
whether she would have obeyed a warning—was properly excluded because such testimony
would not have been based on the witness's perception.); see also Fed.R.Evid. 701 Note ("If ...
attempts are made to introduce meaningless assertions which amount to little more than choosing
up sides, exclusion for lack of helpfulness is called for by this rule.").
   11
     The parties do not dispute that OTECH, through its superintendent McDonner, purchased
the Shop Vac vacuum for the use of its employees.
purchaser or if the purchaser has knowledge of those dangers and the dut y to warn its employees

thereof."12 Applying Davis to the facts developed at trial, we think it clear that Shop Vac owed no

duty to provide OTECH's employees an adequate warning. McDonner testified that he knew of the

dangers of using power equipment, such as the Shop Vac vacuum, in the presence of acetone vapors.

He further acknowledged that under certain Occupational Safety Health Administration ("OSHA")

regulations,13 he had the duty to warn Washington and Thomas of those dangers.14 We therefore hold

   12
        Avondale, 975 F.2d at 173 (citing cases).
   13
    See 29 C.F.R. § 1926.30 (stating that ship repairing and maintenance performed on ships
under Government contract is work subject to OSHA, specifically 29 C.F.R. § 1915). Section
1915.99 provides:

                  This section requires chemical manufacturers or importers to assess the hazards of
                  chemicals which they produce or import, and all employers to provide information
                  to their employees about the hazardous chemicals to which they are exposed, by
                  means of a hazard communication program, labels and other forms of warning,
                  material safety data sheets, and information and training.

          29 C.F.R. § 1915.99(b)(1) (emphasis added).
   14
        McDonner testified as follows:

                  Q. That sentence that says "keep away from heat, sparks and open flames," isn't it
                  true, Mr. McDonner, that that provision of the [material safety data sheet] means
                  that you don't take any power equipment or things of that nature in and around an
                  acetone environment where the fumes are concentrated in an enclosed area,
                  correct?

                  A. That's correct.

                  Q. And isn't it also true, Mr. McDonner, that you're required under OSHA
                  regulations to take this material safety data sheet and make this information
                  available to your employees, isn't that true?

                  A. Yes, sir.

                  Q. Okay. And that information would include that sentence which says "keep
                  away from heat, sparks and open flame," correct?

                  A. Correct.

                  Q. And isn't it true, Mr. McDonner, that you didn't say anything to Nathaniel
                  Thomas or Alastair Washington about the dangers of using power equipment in
                  the area of acetone?

                  A. No, sir. I set forth a specific job and told them what I wanted them to do and
                  that was it.
that Shop Vac owed no duty to provide an adequate warning to the employees of a sophisticated

purchaser such as OTECH. Consequently, any error in the exclusion of evidence offered to show the

inadequacy of the warning on the Shop Vac vacuum did not affect any substantial right of

Washington.

                                               III

       For the foregoing reasons, we AFFIRM.




              Q. My question is, Mr. McDonner, you didn't tell them that using power
              equipment, to use your words, in an acetone environment is a no-no?

              A. No. I gave them a specific job and I didn't—I set forth guidelines and that was
              it.

       Record on Appeal vol. 5, at 337-38.
