Robert E Jowers, et al v. Airgas-Gulf States, Inc., et al

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Robert E Jowers, et al v. Airgas-Gulf States, Inc., et al

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Case: 09-60396

Document: 00511216047

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Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 26, 2010 N o . 09-60396 Lyle W. Cayce Clerk

R O B E R T E. JOWERS; DONNA A. JOWERS P la in t iffs - Appellees v. L IN C O L N ELECTRIC COMPANY; BOC GROUP; ESAB GROUP, INC. D e fe n d a n t s - Appellants

A p p e a ls from the United States District Court fo r the Southern District of Mississippi

B e fo r e BARKSDALE, GARZA, and DENNIS, Circuit Judges. E M I L I O M. GARZA, Circuit Judge: T h e BOC Group, Inc., the ESAB Group, Inc. ("ESAB"), and the Lincoln E le c t r ic Company ("Lincoln") (collectively, the "Manufacturers") appeal the jury v e r d ic t and judgment in favor of Robert and Donna Jowers (collectively, " J o w e r s " ) on Jowers' failure-to-warn claim under Mississippi law. Specifically, t h e Manufacturers argue the district court improperly instructed the jury on t h e ir government contractor affirmative defense; improperly admitted certain p ie c e s of historical evidence at trial; and erred in refusing to permit any a p p o r t io n m e n t of fault to Robert Jowers' employer. Finally, the Manufacturers a r g u e the district court erred in denying their FED. R. CIV. P. 50(b) motion for judgment as a matter of law on punitive damages.

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No. 09-60396 I F r o m 1972 through 2005, Jowers worked as a shipfitter and, later, as a s u p e r v is o r and foreman for Ingalls, a U.S. Navy shipbuilding contractor. Though he was never a full-time production welder, one of Jowers' primary tasks w a s mild-steel welding. He used "stick" and "wire" welding consumables during h is career, both of which emit fumes containing manganese in the welding p r o c e s s . Manganese is a known neurotoxin, and inhalation of welding fumes t h a t contain manganese could result in serious neurological disease, such as m an g a n ese-in d u ce d Parkinsonism ("MIP" or "manganism"). Jowers was exposed t o welding fumes from his own and others' work for approximately six to seven h o u r s each day. Jowers testified that he had no knowledge during his career t h a t manganese in welding fumes could cause neurological injury, though the M a n u fa c t u r e r s presented evidence that they had conformed with the required w a r n in g labels for manganese consumables during the duration of Jowers' career a n d had provided both him and Ingalls with material safety data sheets that d e t a ile d specific chemical risks. Prior to bringing suit against the

M a n u fa c t u r e r s , two neurologists diagnosed Jowers with MIP. His symptoms in c lu d e a tremor, affected speech, bradykinesia (slow movements), rigidity, and p o o r balance. This disease is incurable, permanent, and progressive. Based on the large number of welding fume cases in district courts, the J u d ic ia l Panel on Multidistrict Litigation ("JPML") created a multi-district lit ig a t io n ("MDL") before Judge Kathleen M. O'Malley in the Northern District o f Ohio to coordinate welding fume cases for pre-trial proceedings. See In re W e ld in g Rod Prods. Liab. Litig., 269 F. Supp. 2d 1365 (J.P.M.L. 2003). Jowers' s u it against the Manufacturers, alleging a failure to warn regarding the dangers o f manganese neurotoxicity and manganism, is one of the MDL's "bellwether t r ia ls ." However, despite an earlier concession that venue in Ohio was proper, J o w e r s requested remand of the case to his home district prior to trial. Judge 2

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No. 09-60396 O 'M a lle y agreed, and the JPML remanded the case to the Southern District of M i s s is s ip p i, but Judge O'Malley continued to preside over the case by d e s ig n a tio n . Prior to trial, the district court denied the Manufacturers' motion to e x c lu d e historical documents that they alleged had no connection to Jowers' c la im . Jowers moved for summary judgment on the Manufacturers' joint

t o r t fe a s o r defense, which the district court granted, finding that apportionment o f fault to Jowers' employer, Ingalls, was barred as a matter of law. At the close o f evidence, the district court rejected the Manufacturers' proposed jury in s t r u c t io n on its government contractor defense. The district court also denied t h e Manufacturers' motion for judgment as a matter of law on punitive damages. T h e jury found in favor of Jowers on his failure-to-warn claim and a w a r d e d him $1,200,000 in compensatory damages and $1,700,000 in punitive d a m a g e s . The jury apportioned 40% of the fault to Jowers, thereby reducing the c o m p e n s a to r y award to $720,000. The district court denied the Manufacturers' p o s t -t r ia l motions asking the court to set aside the compensatory and punitive d a m a g e s verdicts. The Manufacturers now appeal on four grounds: (1) the d is tr ic t court erroneously instructed the jury on their government contractor d e f e n s e ; (2) the district court improperly admitted evidence of historical d o c u m e n t s ; (3) the district court erred by not permitting the jury to apportion fa u lt to Ingalls; and (4) the punitive damages verdict is insupportable. II T h e Manufacturers first contend the district court erred in instructing the ju r y regarding the government contractor defense, which, if proven, would i m m u n iz e the Manufacturers from suit. We review a district court's jury

in s t r u c t io n s for abuse of discretion. Waco Int'l, Inc. v. KHK Scaffolding Houston, I n c ., 278 F.3d 523, 528 (5th Cir. 2002). "We afford trial judges wide latitude in fa s h io n in g jury instructions and ignore technical imperfections." Bender v. 3

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No. 09-60396 B r u m le y , 1 F.3d 271, 276 (5th Cir. 1993). However, "[r]eversal is . . . appropriate w h e n e v e r the charge as a whole leaves us with substantial and ineradicable d o u b t whether the jury has been properly guided in its deliberations" and "the c h a lle n g e d instruction . . . affected the outcome of the case." Id. at 276­77 (in t e r n a l quotation marks and citation omitted). T h e government contractor defense preempts state law and provides a t o t a l bar to liability in a failure-to-warn case if a defendant establishes three e le m e n t s : (1) the federal government exercised discretion and approved w a r n in g s for the product; (2) the warnings the defendant provided about the p r o d u c t conformed to the federal government specification; and (3) the defendant w a r n e d the federal government about dangers known to the defendant but not t h e government. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). The Manufacturers argue that the district court improperly added another e le m e n t to this defense in its jury instruction. Specifically, the district court in s t r u c t e d the jury that for the government contractor defense to apply, the M a n u fa c t u r e r s must establish that "the United States Government had an id e n tifia b le Federal interest or policy in the existence or methods of warnings on w e ld in g products" and that "there was a significant conflict between this Federal in t e r e s t or policy and the requirements of Mississippi law regarding the p r o v is io n of adequate warnings." The Manufacturers contend that this added elem en t erroneously required them to show physical impossibility to comply with b o th the state law standard of care and the federal government's specifications in order to prevail on the government contractor defense. The Supreme Court first recognized the government contractor defense in B o y le , holding that federal law preempted state law to immunize government c o n t r a c to r s despite the absence of legislation specifically immunizing these c o n t r a c to r s from liability. 487 U.S. at 507. The Boyle court noted that without a statutory mandate to do so, preemption of state law by federal law "will occur 4

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No. 09-60396 o n ly where, as we have variously described, a `significant conflict' exists between a n identifiable federal policy or interest and the operation of state law, or the a p p lic a t io n of state law would frustrate specific objectives of federal legislation." Id. (internal quotation marks and citations omitted). The Manufacturers

a c k n o w le d g e in their brief that a tension between state and federal interests m u s t exist for preemption to occur (making a government contractor defense v ia b le ), but contend the Boyle court found that demonstrating the first two e le m e n t s of the defense would establish this conflict as a matter of law. Indeed, a ft e r detailing the three-element test for determining whether immunity applies in a government contractor defense, the Supreme Court stated: T h e first two of these conditions assure that the suit is within the a r e a where the policy of the "discretionary function" would be fr u s t r a t e d ) ) i.e ., they assure that the design feature in question was c o n s id e r e d by a Government officer, and not merely by the c o n t r a c t o r itself. The third condition is necessary because, in its a b s e n c e , the displacement of state tort law would create some in c e n t iv e for the manufacturer to withhold knowledge of risks, since c o n v e y in g that knowledge might disrupt the contract but w it h h o ld in g it would produce no liability. Id. at 512. If a plaintiff brings a failure-to-warn case alleging a failure to c o n fo r m to state law requirements, and the defendant subsequently establishes t h a t the federal government was involved in the decision to give (or not to give) a warning and that the defendant complied with the federal government's p r o v is io n s , there necessarily exists a conflict between state law and federal p o lic y in this area. See id. at 511­12; see also Kerstetter v. Pac. Sci. Co., 210 F.3d 4 3 1 , 438 (5th Cir. 2000) (citing In re Air Disaster at Ramstein Air Base, 81 F.3d 5 7 0 , 576 (5th Cir. 1996)). Thus, an additional instruction that the jury find a " s ig n ific a n t conflict" between federal interests and Mississippi law in the instant m a t t e r is superfluous and forces the jury to construe an issue of law, which is o u ts id e its purview as fact-finder.

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No. 09-60396 J o w e r s distinguishes Boyle on the grounds that it concerns a design defect c la im and not a failure-to-warn claim, but in this court's decision in Kerstetter, w e applied the three elements of Boyle to a failure-to-warn claim without also r e q u ir in g a separate finding of "significant conflict" between state law and fe d e r a l policy. Kerstetter, 210 F.3d at 438 (finding "[s]tate law is displaced" if the t h r e e Boyle elements are proven in a failure-to-warn claim). Jowers argues that K e r s te tte r is inapposite because it involved a failure-to-warn claim that was " p a r t " of a design defect theory of liability. Regardless of the interplay between t h e claims, Kerstetter analyzed the design defect and failure-to-warn claims in d e p e n d e n tly . The Kerstetter court did not require a separate finding of

" s ig n ific a n t conflict" between federal interests and state law in its analysis of the t h r e e Boyle elements under the failure-to-warn claim. Thus, based on the h o ld in g s in Boyle and Kerstetter, neither of which require a "significant conflict" e le m e n t in the analysis of a government contractor defense, the district court e r r e d in instructing the jury on this issue. H o w e v e r , this error is only reversible if "the challenged instruction . . . a ffe c t e d the outcome of the case." Bender, 1 F.3d at 277. Jowers argues that the v e r d ic t need not be vacated because there was insufficient evidence to establish t h a t the Manufacturers met their burden of proving each of the three Boyle e le m e n t s . For the first Boyle element to apply, the federal government must h a v e "exercised discretion" by meaningfully participating in the drafting of the w a r n in g . Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1479­81 (5th Cir. 1 9 8 9 ). The government must not have merely "rubber stamped" the contractor's d e c is io n s ; rather, there must be evidence in the record that the government a c t u a lly chose a warning through its discretion. Id. at 1480. J o w e r s argues that the Manufacturers presented no evidence of a " c o n t in u o u s back and forth review process" between the government and the c o n t r a c to r , and that this demonstrates a lack of discretion on the part of the 6

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No. 09-60396 g o v e r n m e n t . See Tate v. Boeing Helicopters, 55 F.3d 1150, 1154 (6th Cir. 1995). Separate evidence of a dialogue between the government and the contractor is n e e d e d when the government approves rather than prepares a warning because t h e government's mere acceptance of a manufacturer's warning does not e s t a b lis h its interest in that particular warning. Kerstetter, 210 F.3d at 435. Jowers presented evidence at trial that the national consensus standard for m a n g a n e s e fume warnings was developed by the Manufacturers as members of t h e American Welding Society ("AWS") and later adopted by the Secretary of L a b o r under the Occupational Safety and Health Act ("OSHA").1 This warning d id not mention the serious neurological hazards known to some of the M a n u fa c t u r e r s in the `60s when the warning was first promulgated))and, in fa c t , the Secretary of Labor has not issued an updated regulation to change the m a n d a t o r y "minimum" warning language. Likewise, the warning issued by the U n ite d States Navy agency NAVSEA in 19812 is substantially similar to the la n g u a ge the entire welding consumable manufacturing industry had voluntarily a d o p t e d as their own in 1979.3 Compliance with a minimum standard which the M a n u fa c t u r e r s themselves initially drafted does not indicate that the g o v e r n m e n t exercised discretion and meaningfully participated in crafting the w a r n in g .

This warning states, in pertinent part: "CAUTION Welding may produce fumes and gases hazardous to health. Avoid breathing these fumes and gases. Use adequate ventilation." This warning states, in pertinent part: "WARNING: Protect yourselves and others. Read and understand this label. FUMES AND GASES can be dangerous to your health. . . . Keep your head out of the fumes. Use enough general ventilation or exhaust at the arc or both to keep fumes and gases form your breathing zone and the general area." MIL-spec MIL-E24403A(SH), § 5.3.1 (Dec. 21, 1981). This warning states, in pertinent part: "FUMES AND GASES can be dangerous to your health. Keep your head out of fumes. Use enough ventilation or exhaust at the arc or both. Keep fumes and gases from your breathing zone and general area."
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No. 09-60396 W it h regard to the second Boyle element, the Manufacturers are required t o provide warnings about the dangers of mild-steel manganese weld fumes that c o n fo r m to federal government specifications. Kerstetter, 210 F.3d at 438. However, for a period of time the Manufacturers added language about a v o id a n c e of "excessive" fumes and "concentrations" of fumes that weakened the w a r n in g s , causing them to fall below the government-required minimum w a r n in g . Jowers' warning expert testified that these words weakened the effect o f the warning, suggesting that a welder might be able to breathe more fumes, o r even any fumes, and still avoid negative health effects. Thus, the

M a n u fa c t u r e r s ' warnings did not wholly conform to federal government s p e c ific a tio n s . A s to the third Boyle element, Jowers argues that there is no evidence that t h e Manufacturers shared with the government their own internal admissions a b o u t the real risks of welding, nor that the government was aware of such risks. However, the Manufacturers offered testimony showing that the Navy was " s o p h is t ic a t e d " and had "state-of-the-art knowledge" regarding the hazards p o s e d by welding fumes and how to protect against them. The Manufacturers a ls o point out that the government has, in the past, funded large-scale studies o f welders assessing the potential risk of neurological injury. While the studies t h e Manufacturers cite date to 1941 and the aftermath of World War II, these s t u d ie s at the very least indicate some government awareness of the possibility o f neurological hazards from welding. In short, the Manufacturers contend there w e r e no welding dangers known to them but not to the government, and that t h e r e fo r e there was no need to convey any additional information about the d a n g e r s of manganese welding fumes. T h is argument is unpersuasive. While the jury may have concluded that t h e government knew everything the defendants did, the Manufacturers have n o t presented testimony that they shared any of their internal information 8

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No. 09-60396 r e g a r d in g welding fume hazards with the government, much of which d e m o n s t r a t e d a deeper knowledge of potential harms from manganese in h a la tio n than the approved warnings encompassed. A c c o r d in g ly , we find the district court failed to properly instruct the jury o n the elements of the government contractor defense, but as the Manufacturers fa ile d to elucidate a factual basis for the defense, this error was harmless. III T h e Manufacturers contend that the district court erred by allowing J o w e r s to introduce evidence of documents and testimony related to conduct that h a d nothing to do with the actual warnings Jowers and his employer received. These internal documents, one of which dates back to 1949, related to hazards a s s o c ia t e d with fluorides and high-manganese consumables, substances which t h e Manufacturers argued were not at issue in this case and therefore made the d o c u m e n t s irrelevant to the instant litigation. Nevertheless, the district court d e n ie d the Manufacturers' motion in limine because it believed that historical d o c u m e n t s in general were relevant to "show knowledge that existed in the in d u s t r y and that would have carried over to that later point in time." The M an u fa ctu rers argue that Jowers only admitted these documents to suggest that a n y prior misconduct is evidence that, more than twenty years later, the M a n u fa c t u r e r s continued to engage in misconduct affecting Jowers. W e review a district court's evidentiary rulings for abuse of discretion. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 992 (5th Cir. 2008). Any e r r o r in the admission or exclusion of evidence "should not be the basis for s e t t in g aside the judgment" unless "the substantial rights of the parties were a ffe c t e d ." EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (citing FED. R. CIV. P . 61). Moreover, where the trial judge "has conducted, on the record, a carefully d e t a ile d analysis of the evidentiary issues and the court's own ruling, appellate c o u r ts are chary about finding an abuse of discretion." Kelly v. Boeing Petroleum 9

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No. 09-60396 S e r v s ., Inc., 61 F.3d 350, 356 (5th Cir. 1995). Here, the district court judge has b e e n reviewing these documents since 2005, when she conducted over two days o f document-admissibility hearings, culminating in an extensive written opinion. See Ruth v. A.O. Smith Corp., 615 F. Supp. 2d 648, 650­51 (N.D. Ohio 2005). Accordingly, we give the district court's judgment on these evidentiary issues c o n s id e r a b le deference. See Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir. 2000) ( " T h e considerable deference accorded to the judgment of the district court is h e ig h t e n e d where the trial judge's experience has imparted to the judge a p a r tic u la r ly high degree of knowledge."). F e d e r a l Rule of Evidence 402 excludes from admission any evidence that i s not relevant. Rule 401 defines relevant evidence as "evidence having any t e n d e n c y to make the existence of any fact that is of consequence to the d e t e r m in a t io n of the action more probable or less probable than it would be w it h o u t the evidence." The pertinent portion of the Mississippi Products

L ia b ilit y Act ("MPLA") governing Jowers' failure-to-warn claim states that a c la im a n t must prove by the preponderance of the evidence that at the time the product le ft the control of the manufacturer or seller, the manufacturer or s e lle r knew or in light of reasonably available knowledge should h a v e known about the danger that caused the damage for which r e c o v e r y is sought and that the ordinary user or consumer would not r e a liz e its dangerous condition. M ISS. CODE ANN. § 11-1-63(c)(i) (2004). Per the MPLA's plain language, critical t o the court's inquiry into a failure-to-warn claim is the question of what the M a n u fa c t u r e r s knew and what knowledge was reasonably available to them. As k n o w le d g e accumulates over time, prior knowledge of harm that predates J o w e r s ' employment is relevant to a question of current knowledge. See, e.g., N o a h v. Gen. Motors Corp., 882 So. 2d 235, 237­39 (Miss. Ct. App. 2004) (" [E ]v id e n c e of prior accidents has long been admissible in state courts for . . .

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No. 09-60396 t h e purpose of showing the existence of a dangerous condition." (citations o m it t e d )). The Manufacturers argue that the documents, dated up to two decades p r io r to Jowers' employment, are too remote in time to be relevant to the k n o w le d g e the Manufacturers had about the dangers of manganese fumes. This c o u r t has previously rejected such an argument in Jackson v. Johns-Manville S a le s Corp., 750 F.2d 1314, 1317­19 (5th Cir. 1985). The Jackson defendants s o u g h t to exclude documents as irrelevant in a failure-to-warn case regarding a s b e s t o s because the documents were written twenty years prior to the plaintiff's c o m m e n c e m e n t of work. The court was not persuaded by this argument, noting t h a t "[e]vidence that the defendants had such knowledge in 1935 clearly makes [t h e plaintiff's] allegation that the dangers of the asbestos products were fo r e s e e a b le in 1953 more probable than it would have been without such e v id e n c e ." Id. at 1319. The same argument supports admission of the instant d o c u m e n t s : they are relevant to knowledge of the danger of welding fumes in the in d u s t r y in the twenty years prior to Jowers' employment. T h e Manufacturers also argue that the substances (fluorides and h ig h -m a n g a n e s e consumables) discussed in the documents are too far removed fr o m the mild-steel welding substances at issue in the instant matter for the d o c u m e n t s to be relevant. However, these documents go to the Manufacturers' k n o w le d g e of the dangers of working with all potentially hazardous types of w e ld in g products and the fumes these products create. In Jackson, the

d e fe n d a n t s argued that the documents they sought to exclude had "no probative v a lu e " because they referred only to workers who were exposed to raw asbestos, w h e r e a s the plaintiff "worked solely with finished asbestos products." Id. at 1 3 1 8 . This court concluded that the documents were admissible because they w e r e "at least suggestive of the fact that other groups of workers who were also e x p o s e d to asbestos fibers face similar dangers." Id. Following Jackson, we 11

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No. 09-60396 lik e w is e conclude that whether knowledge of the harms from the consumables a t issue in the instant documents is probative of the Manufacturers' failure to w a r n Jowers of the harms involved in his mild-steel welding work goes to the w e ig h t of the evidence, not its admissibility. See id. A lt e r n a t iv e ly , the Manufacturers argue that these documents are e x t r e m e ly prejudicial and thus should have been excluded under Federal Rule o f Evidence 403, which permits exclusion of relevant evidence if its probative v a lu e is substantially outweighed by the danger of unfair prejudice. "Relevant e v id e n c e is inherently prejudicial; but it is only [u]nfair prejudice, [s]ubstantially o u tw e ig h in g probative value, which permits exclusion of relevant matter under R u le 403." United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). The M a n u fa c t u r e r s contend that these documents generally, and the 1949 fluoride m e m o r a n d u m in particular, were introduced for the sole purpose of arguing that a t least one manufacturer put profits ahead of safety, despite the fact that this c o m p a n y included warnings on its products prior to Jowers' joining the welding w o r k fo r c e . However, the Manufacturers' arguments that they gave sufficient w a r n in g s regarding the potential harms of their products open the door to an e x a m in a t io n of the quality of their welding fume warnings more generally, in c lu d in g warnings about substances (such as fluorides or high-manganese c o n s u m a b le s ) not directly implicated in this action. The motivations for deciding n o t to include a warning regarding welding fumes of any kind are directly r e le v a n t to the instant matter and not unduly prejudicial. For instance, the M a n u fa c t u r e r s ' expert witness, Dr. Jane Welch, testified that the warnings on w e ld in g products in 1967 were state-of-the-art and "cutting edge," in part, b e c a u s e "manufacturers were not anticipating putting warnings on their p r o d u c t s " at that time. Evidence that some members of the welding industry h a d warnings on their products as far back as the 1940s, which were later 12

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No. 09-60396 r e m o v e d due to concerns about the financial implications of such warnings, is d ir e c t ly relevant to rebut this testimony. Accordingly, given the relevance of t h e s e documents to Jowers' failure-to-warn claim under Mississippi law, the d is t r ic t court did not abuse its discretion in admitting them over the M a n u fa c t u r e r s ' objection. IV T h e Manufacturers contend that the district court erred in refusing to p e r m it the jury to apportion fault to Jowers' employer, Ingalls, and that t h e r e f o r e the compensatory verdict must be vacated. Specifically, the

M a n u fa c t u r e r s argue that the district court erred in finding that Jowers' e lig ib ilit y for benefits under the Longshore and Harbor Workers' Compensation A c t ("LHWCA"), 33 U.S.C. §§ 901 et seq., precluded the ordinary operation of M is s is s ip p i's joint tortfeasor law.4 We review de novo the legal issue of whether t h e district court properly ruled that the Manufacturers' joint-tortfeasor defense w a s foreclosed. Fontenot v. Dual Drilling Co., 179 F.3d 969, 972 (5th Cir. 1999). L H W C A guarantees workers' compensation for qualified beneficiaries, like J o w e r s , who are injured while assisting in the construction of large ships on or n e a r federal navigable waters. Accordingly, a person who receives LHWCA b e n e fits may not sue his employer under state law for any additional c o m p e n s a to r y damages related to his on-the-job injury. See 33 U.S.C. §§ 905(a),

As a threshold matter, Jowers contends that the Manufacturers have waived this argument by failing to present it to the district court in response to Jowers' motion for summary judgment on this issue. Jowers points to Ruth, in which the district court initially ruled that Mississippi law precluded the allocation of fault to that plaintiff's employer because he was covered by LHWCA. Jowers argues that the Manufacturers have never previously contended, as they do now, that the Ruth court's ruling was erroneous. However, the district court expressly incorporated its Ruth rulings into the instant record, which includes all rulings in earlier cases. The Manufacturers' argument here is the same argument it advanced in Ruth: that Mississippi's apportionment rule, which permits allocation of fault to immune joint tortfeasors, applies notwithstanding LHWCA's proscription against suing the beneficiary's employer for damages. Accordingly, the Manufacturers have preserved this argument for appeal.

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No. 09-60396 9 3 3 (i); Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001) (L H W C A "provides nonseaman maritime workers . . . with no-fault workers' c o m p e n s a tio n claims" and "expressly pre-empts all other claims."). Though an in ju r e d LHWCA beneficiary cannot sue his employer for damages related to his in ju r y , the statute permits the employee to sue a third party that contributed to h is injury. At issue in Ruth, a prior case in the MDL whose rulings were in c o r p o r a t e d into the instant matter, was whether any verdict against such a t h ir d -p a r t y defendant can be reduced by the amount of fault attributable to the im m u n e employer. 416 F. Supp. 2d at 587. T h e Manufacturers argue that the district court erred in its interpretation o f federal and Mississippi law by determining that LHWCA prevented the jury fr o m apportioning any of the fault to Ingalls. The district court analyzed three k e y cases to come to this conclusion: Fontenot; Accu-Fab & Construction v. L a d n e r , 778 So. 2d 766 (Miss. 2001); and Mack Trucks, Inc. v. Tackett, 841 So. 2 d 1107 (Miss. 2003), which overruled Accu-Fab in part. I n Fontenot, this court held that allocation of fault between an employer a n d a third-party defendant under LHWCA depends on "whether the third party . . . is a vessel or is a non-maritime entity." 179 F.3d at 974. If the third party is a "vessel," then LHWCA provides that the employee may bring a "third-party c a u s e of action against [the] vessel based on negligence." Id. at 975. In such a c a s e , "the employer shall not be liable to the vessel for such damages directly or in d ir e c t ly ." Id. at 974 (quoting 33 U.S.C. § 905(b)). However, if the third-party d e fe n d a n t is a "non-maritime entity" (anything other than a "vessel"), LHWCA is silent on the question of allocation of fault and the employee's claim against a non-maritime entity necessarily depends on the relevant state law's allocation o f fault. Id. at 976. In the instant matter, because the third-party

d e fe n d a n t ))I n g a lls ) ) is not a vessel, we must look to Mississippi law to d e t e r m in e whether the court may allocate fault to Ingalls. 14

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No. 09-60396 I n so doing, the district court proceeded to analyze the Mississippi S u p r e m e Court case Accu-Fab. Despite the Fontenot holding that state law a llo c a t io n of fault should be applied where the third-party defendant is a n o n -v e s s e l, Accu-Fab referred back to LHWCA and federal law to hold that " fe d e r a l maritime standards govern" even though no vessels were involved in t h a t dispute. Ruth, 416 F. Supp. 2d at 589 (quoting Accu-Fab, 778 So. 2d at 7 6 9 ­ 7 0 ). This interpretation of LHWCA is incorrect under Fontenot. Indeed, the d is t r ic t court noted that this analysis is somewhat circular because it "assume[s] t h a t , if LHWCA benefits are paid, a vessel must be involved, so the trial court s h o u ld not assess the fault of the employer and should not reduce an award a c c o r d in g ly ." Id. at 590. Moreover, the Accu-Fab court noted in dicta that it " w o u ld reach the same conclusion even if [LHWCA] was not implicated," d e t e r m in in g that § 85-5-7 would not permit apportionment of fault to immune p a r tie s . H o w e v e r , a subsequent Mississippi Supreme Court case, Tackett, r e a ffir m e d that MISS. CODE ANN. § 85-5-7 permits apportionment of liability not o n ly to settling defendants, but also to immune defendants, and consequently o v e r r u le d Accu-Fab's dicta in pertinent part. 841 So. 2d at 1115. Perplexingly, h o w e v e r , the Tackett court found that "[t]he holding in Accu-Fab was predicated o n the controlling precedents of federal case law, since [the employee] was a b e n e fic ia r y under [LHWCA]," and that therefore § 85-5-7 was inapplicable in t h a t case. Id. at 1115 n.2. The district court below noted that this analysis s e e m e d faulty in light of Fontenot, but found that it "cannot correct the M is s is s ip p i Supreme Court's reasoning by fiat, nor ignore its reaffirmation in [T a c k e tt] of Accu-Fab's result." Ruth, 416 F. Supp. 2d at 592. Consequently, the d is t r ic t court held that in Mississippi, "when an employee covered by LHWCA s u e s a third party for damages, the trial court does not apportion fault to the e m p lo y e r ." Id. (emphasis in original). 15

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No. 09-60396 N e it h e r party disputes that Fontenot controls the instant case. However, t h e Manufacturers contend that the district court in Ruth improperly followed A c c u -F a b rather than Mississippi law, which states that "[i]n actions involving jo in t tort-feasors, the trier of fact shall determine the percentage of fault for each p a r ty alleged to be at fault without regard to whether the joint tort-feasor is i m m u n e from damages." MISS. CODE ANN. § 85-5-7(5). A 2002 amendment to t h is statute was a reaction to the Mississippi Supreme Court's holding in A c c u -F a b , which the legislature found to have misconstrued the "original intent" o f the statute. Tackett, 841 So. 2d at 1114 n.1. A federal court sitting in d iv e r s it y is not "bound under Erie . . . to defer [to state courts] on issues of fe d e r a l law," FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63 (1st Cir. 2 0 0 8 ), even when the state court is deciding whether its own laws are preempted b y federal law. Osterneck v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 841 F .2 d 508, 511 (3d Cir. 1988), abrogated on other grounds by Gulfstream A e r o s p a c e Corp. v. Mayacamas Corp., 485 U.S. 271 (1988). In light of Fontenot a n d § 85-5-7(5), Mississippi law supports allocation of fault to immune parties, s u c h as an employer in a non-vessel LHWCA claim, and the district court should n o t have deferred to the Mississippi Supreme Court's improper LHWCA a n a ly s is . J o w e r s contends that even if the district court's refusal to permit the jury t o apportion fault to Ingalls was incorrect, any error therefrom was harmless. Jowers argues that the Manufacturers' own industrial hygiene expert testified t h a t Ingalls should bear no fault in the litigation. However, this witness simply t e s t ifie d that he did not personally know of evidence that Ingalls failed to adhere t o their established policies and procedures. The mere fact that one witness la c k e d knowledge of Ingalls' potential fault in the litigation does not prove that n o such fault existed.

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No. 09-60396 J o w e r s also argues that the Manufacturers had the opportunity to present t h e "sophisticated user" affirmative defense, for which the jury was instructed: " T h e defendants claim that a warning about the threat of neurological injury w a s unnecessary because the defendants had reason to believe that [Ingalls] a lr e a d y knew, or had reason to know, about this danger, and would c o m m u n ic a t e that danger to Mr. Jowers." The jury rejected this defense, which in c lu d e s the "knew or had reason to know" element that corresponds with the " fo r e s e e a b ilit y " element in a negligence action and for apportionment of fault. See Miss. Dep't of Mental Health v. Hall, 936 So. 2d 917, 924 (Miss. 2006) (d is c u s s in g foreseeability requirement in the allocation of fault and noting that " t o be held negligent, an injury must be `reasonably foreseeable'" (citation o m it t e d )). Thus, Jowers argues the sophisticated user defense instructed the ju r y to consider whether Ingalls could foresee Jowers' injuries, a central element in the Manufacturers' negligence theory. Because the jury rejected the

s o p h is t i c a te d user defense and its constituent elements, Jowers contends the z e r o -fa u lt allocation to Ingalls had no effect on the verdict. H o w e v e r , the jury's rejection of the sophisticated user defense does not n e c e s s a r ily mean that they rejected any apportionment of fault to Ingalls. The d is t r ic t court instructed the jury on the three elements of the sophisticated user d e fe n s e as follows, noting that the Manufacturers had to prove all three e le m e n t s by a preponderance of the evidence: (1) [Ingalls] received adequate warnings and instructions from [the M a n u fa c t u r e r s ], or had the same level of expertise and knowledge a b o u t the dangers of welding fumes as did [the Manufacturers] th e m s e lv e s ; (2 ) [Ingalls] could be reasonably expected to convey that information t o Mr. Jowers; and (3 ) at the time [the Manufacturers] were selling to the employers t h e products that allegedly injured Mr. Jowers, [the Manufacturers] t h e m s e lv e s had reason to believe that [Ingalls] had this knowledge 17

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No. 09-60396 a n d expertise about neurological injury and welding fumes, and had r e a s o n to believe that [Ingalls] would convey that information to Mr. Jow ers. T h e jury could have rejected the sophisticated user defense on any one of these e le m e n t s , not merely the foreseeability element. Thus, the jury readily could h a v e decided that Ingalls was not sufficiently "sophisticated" to absolve d e fe n d a n t s of any duty to warn, but had they been instructed on apportionment o f fault, the jury may have determined that Ingalls bore some responsibility for J o w e r s ' injury. Indeed, the jury found Jowers 40% at fault for his own injuries. It is entirely conceivable that the jury may have found that Ingalls, which was r e s p o n s ib le for providing Jowers with a safe workplace, shared some fault as w e l l . Evidence at trial demonstrated that welding fume exposure levels at I n g a lls sometimes exceeded regulatory limits, and that Ingalls did not teach w e ld e r s about the individual chemicals comprising a welding fume, but rather a b o u t the fume in general. This evidence might indicate a failure to provide a s a fe working environment or complete knowledge about the possible dangers of t h e working environment. Moreover, this court has, in the past, affirmed

a llo c a t io n of fault to an employer despite rejection of the sophisticated user d e fe n s e . See In re Incident Aboard the D/B Ocean King, 813 F.2d 679, 687­89 (5 t h Cir. 1987) (affirming allocation of 55% fault to employer despite rejection o f sophisticated user defense), amended on other grounds, 877 F.2d 322 (5th Cir. 1 9 8 9 ). Accordingly, the district court's improper refusal to instruct the jury on a joint-tortfeasor defense permitting allocation of fault to Ingalls was not h a r m le s s error, and we vacate the compensatory damages verdict. V F in a lly , the Manufacturers argue that district court erred in denying their m o t io n for judgment as a matter of law on punitive damages. We need not a d d r e s s the merits of this issue because our vacating the compensatory damages

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No. 09-60396 v e r d ic t requires that we also vacate the punitive damages verdict. Further, b e c a u s e our ruling in Part IV requires Ingalls' allocation of fault, if any, we r e m a n d for retrial on the issues of compensatory and punitive damages, in c lu d in g , but not limited to, the threshold issue, on this new record, of whether t h e claim for punitive damages should be submitted to the jury. VI F o r the foregoing reasons, we affirm the jury's finding of liability against t h e Manufacturers because the district court's error in instructing the jury on t h e Manufacturers' government contractor defense was harmless, and the d is t r ic t court properly admitted the historical evidence at trial. However, we v a c a t e both the compensatory and punitive damages awards and remand this c a s e for a new trial on damages that includes a jury instruction permitting a llo c a t io n of fault to Ingalls. We also vacate Jowers' fees award, which rests e x c lu s iv e ly on the punitive damages verdict. See Pride Oil Co. v. Tommy Brooks O il Co., 761 So. 2d 187, 192 (Miss. 2000) (finding that "fees are not recoverable a b s e n t proof of conduct which would permit an award of punitive damages"). F in a lly , we must admonish Jowers' counsel for alleging in the briefing that t h e Manufacturers "misrepresented" the record. Misrepresentation of the record i s a very serious charge and this court does not take such allegations lightly. T h is was a highly contested case with compelling evidence supporting both sides' a r g u m e n t s . The Manufacturers were within their right to present evidence in t h e ir briefing as persuasively as possible, which in no way constitutes a m is r e p r e s e n t a t io n of the record. We caution Jowers' counsel against making

s u c h unfounded claims in the future. A F F I R M E D IN PART, VACATED AND REMANDED IN PART.

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