Moyer v. Siemens VAI Services, L.L.C. et al

Filing 275

ORDER & REASONS denying #259 Motion for New Trial. Signed by Judge Susie Morgan on 10/29/2013. (gbw, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROXANNE MOYER,
Plaintiff

CIVIL ACTION

VERSUS

No. 11-3185

SIEMENS VAI SERVICES, LLC, et al.,
Defendants

SECTION “E”

ORDER AND REASONS
Before the Court is a Motion for New Trial filed by plaintiff Roxanne Moyer ("Ms.
Moyer").1 Defendants Siemens Industry, Inc. ("Siemens")2 and Signal Metal Industries, Inc.
("Signal")3 oppose plaintiff's motion. For reasons set forth below, plaintiff's Motion for New
Trial is DENIED.
BACKGROUND
On February 1, 2011, Samuel Moyer ("Mr. Moyer") was killed during an industrial
accident at the ArcelorMittal LaPlace steel mill (referred to herein as the “steel plant”) in
LaPlace, Louisiana.4 Mr. Moyer was working at the steel plant as an ArcelorMittal
employee.5 At the moment of Mr. Moyer’s accident, he was preparing to manually
disconnect an argon hose from a ladle, standing with one foot on the stir station and one
foot on the transfer car. The molten steel in the ladle erupted, knocking Mr. Moyer to the
1

R. Doc. 259.

2

R. Doc. 270.

3

R. Doc. 271.

4

5

See R. Doc. 1. Complaint.

Id.

1

floor and covering most of his body in molten steel.6 Mr. Moyer sustained severe burns to
most of his body and died approximately thirty hours after the accident.7
Plaintiff, Ms. Moyer, filed a lawsuit for damages under the Louisiana Products
Liability Act (“LPLA”) in December 2011.8 In her complaint, Ms. Moyer named several
entities she claimed were responsible for Mr. Moyer’s accident and the damages resulting
from that accident,9 including Siemens, Signal, Danieli Corporation (“Danieli”), North
American Refractories Company, Inc. (“NARCO”), and Black Diamond Capital
Management, LLC (“Black Diamond”). Plaintiff alleged these entities manufactured
various component parts of the steel plant that were: (1) unreasonably dangerous in
construction or composition; (2) unreasonably dangerous in design; (3) unreasonably
dangerous because adequate warnings about the products had not been provided; and (4)
unreasonably dangerous because the products did not conform to an express warranty of
the manufacturer.10 Plaintiff voluntarily dismissed her claims against Danieli, Black
Diamond, and NARCO.11 Plaintiff did not sue Bayou Steel Corporation, ArcelorMittal

6

Id.

7

Id.

8

Id.

9

Plaintiff seeks the following survival action damages on behalf of Mr. Moyer: (1) conscious
physical pain and suffering; (2) conscious mental pain and suffering; (3) medical expenses; and (4) funeral
expenses. Plaintiff also seeks the following wrongful death damages on her own behalf: (1) loss of love; (2)
loss of affection; (3) loss of services; (4) loss of support; (5) loss of society; and (6) grief.
10

R. Doc. 1.

11

See R. Doc. 64; R. Doc. 67; R. Doc. 82.

2

LaPlace, or ArcelorMittal USA12 (the "non-parties")because those entities are immune from
liability under the Louisiana Workers' Compensation Statutes. Siemens and Signal
remained the only defendants at trial.
Jury Instruction 21 advised the jurors regarding the allocation of fault to Siemens
and Signal based on the LPLA and to the non-parties based on general principles of
negligence law:
Plaintiff's claims against Siemens and Signal Metal are governed solely
by the provisions of the Louisiana Products Liability Act as I have just read
them to you. If you allocate fault to Siemens or Signal Metal, you may only
allocate fault pursuant to these provisions.
The fault of any other person or entity who you believe was a
substantial factor in causing the plaintiff's injuries is governed under general
negligence principles. Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it. Louisiana courts
resolve most negligence cases by employing a duty/risk analysis, under which
five separate elements must be shown: (1) whether the person or entity had
a duty to conform his conduct to a specific standard of care; (2) whether the
person's or entity's conduct failed to conform to the appropriate standard of
care; (3) whether the person's or entity's substandard conduct was a cause-infact of the plaintiff's injuries; (4) whether the person's or entity's substandard
conduct was a legal cause of the plaintiff's injuries; and (5) whether the
plaintiff was damaged.
If you find that a substantial contributing factor to the causation of
plaintiff's injuries was the negligence of Bayou Steel Corporation,
ArcelorMittal USA, and/or ArcelorMittal LaPlace, then you must allocate
fault respectively upon it or them.13
Jury Instruction 22 advised the jury that fault must be determined even with respect
to a non-party or a person or entity which is immune by statute:

12

Bayou Steel is the former employer/operator of the facility. ArcelorMittal LaPlace was the
employer/operator of the facility at the time of the accident. ArcelorMittal USA is the parent company of
ArcelorMittal LaPlace. See R. Doc. 195.
13

1124.

R. Doc. 247. Instruction 21; R. Doc. 252. Transcript of Afternoon Session of July 19, 2013, p.

3

In an action for damages where a person suffers injury, death, or loss, the
degree or percentage of all persons or entities causing or contributing to the
injury, death or loss shall be determined, regardless of whether the person or
entity is a party to the action or a non-party and regardless of the person's or
entity's insolvency, ability to pay, immunity by statute or that the other
person's or entity's identity is not known or reasonably ascertainable.14
Section C of the jury verdict form read as follows:15
Please allocate on a percentage basis the degree of fault, if any, which
you attribute to each of the following entities. All numerical percentages you
enter in this question should add up to a total of 100%. The arrangement of
the names does not suggest any priority of the allocation of fault.
Bayou Steel Corporation
ArcelorMittal LaPlace
ArcelorMittal USA (LCNA)
Signal Metal Industries
Siemens Industry, Inc.

______ %
______ %
______ %
______ %
______ %

After a five day jury trial, the jury rendered a verdict in the defendants' favor finding
no liability on behalf of Siemens or Signal. On Section C of the jury verdict form, the jury
allocated one-third fault each to Bayou Steel, ArcelorMittal LaPlace, and ArcelorMittal USA
and found damages totalled $2,602,314.00.16 Plaintiff filed a motion for a new trial under
Federal Rules of Civil Procedure 59(a) and 51(d)(2), arguing the jury instructions and jury
verdict form created juror confusion because the fault allocation and the damages
calculation by the jury were unnecessary. The plaintiff maintains that having the jury
perform these tasks constituted legal error because the instructions and verdict form misled
the jury causing it to "render a verdict of $2.7 million against the non-parties," when such

14

Id.

15

R. Doc. 245-3. Completed Jury Verdict Form.

16

Id.

4

a verdict could never be collected.17 Plaintiff asserts that the jury should have been
prohibited from allocating fault and calculating damages if the jury found Siemens and
Signal not liable in Sections A and B of the jury verdict form. Plaintiff also argues the jurors
should have been instructed regarding the Workers' Compensation immunity enjoyed by
the non-parties.18
LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 59(a), a new trial may be granted "for any
reason for which a new trial has heretofore been granted in an action at law in federal
court." Fed. R. Civ. P. 59(a). See Smith v. Transworld Co., 773 F.2d 610, 613 (5th Cir. 1985).
Although the rule does not specify the exact grounds for granting a new trial, Rule 59(a)
allows a court to grant a new trial if it "finds the verdict is against the weight of the
evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was
committed in its course." See Smith v. Transworld Co., 773, F.2d at 613 (citing Reed Bros.,
Inc. v. Monsato Co., 525 F.2d 486, 499-50 (8th Cir. 1975).
Plaintiff argues the Court committed prejudicial error by failing to instruct the jury
the non-parties were immune from liability under Louisiana's Workers' Compensation
Statutes and by directing the jury to decide damages and allocate fault even though the jury
"had checked 'No' regarding plaintiff's claims under the Louisiana Product Liability Act."19
Under Federal Rule of Civil Procedure 51(d), a party must object at trial to a jury instruction
or else the right to challenge the instruction is waived. See Engler v. Winfrey, 201 F.3d

17

R. Doc. 259, p. 2.

18

19

R. Doc. 259-1, p. 2.

R. Doc. 259-1, p. 1.

5

680, 689 (5th Cir. 2000); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.
1999). If a challenge is waived, the court may only grant relief under Rule 51(d)(2), which
provides: "A court may consider a plain error in the instructions that has not been
preserved as required by Rule 51(d)(1) if the error affects substantial rights." Fed. R. Civ.
P. 51(d)(2). Under Rule 51 , objections must be preserved with respect to both jury verdict
forms and jury instructions. See generally Farley v. Nationwide Mut. Ins. Co., 197 F.3d at
1329. The plain error standard requires the objecting party to show "an incorrect statement
of law was probably responsible for an incorrect verdict, leading to substantial injustice."
Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1169 (5th Cir. 1990). To justify a new trial, the
jury instructions and/or jury verdict form must contain a plain error in the form of an
incorrect statement of law that was probably responsible for an incorrect verdict. Id.
The parties first submitted proposed jury instructions and a proposed jury verdict
form on June 28, 2013, prior to trial.20 The proposed jury verdict form was characterized
as "joint," but the parties actually submitted two separate verdict forms in the same
document.21 The proposed jury instructions contained some instructions that were mutually
agreed upon, and others that were identified as "Plaintiff's" or "Defendant's," with various
objections from both parties.22 The plaintiff did not propose a jury instruction regarding
Workers' Compensation immunity of the non-parties or object to the fact that one had not
been included. Neither did plaintiff object to proposed Instruction 23 (Instruction 22 in the
final version), which advised the jury to allocate fault to non-parties that may have caused

20

R. Doc. 199; R. Doc. 200

21

See R. Doc. 199. Proposed Jury Verdict Form.

22

R. Doc. 200. Proposed Jury Instructions.

6

or contributed to the injury.23
The defendants' proposed jury verdict form included all three non-parties,
ArcelorMittal LaPlace, Bayou Steel, and ArcelorMittal USA, in the list of entities eligible for
allocation of fault and required the allocation of fault and calculation of damages,
regardless of whether Siemens or Signal were found to be liable under the LPLA.24 The
plaintiff objected, arguing that fault should be allocated to the non-parties only if there is
"sufficient proof to justify that the entity is at fault, and that fault contributed to Mr.
Moyer['s] damages."25 The plaintiff did not object to the inclusion of the non-parties based
upon their immunity under Workers' Compensation Statutes or based upon whether or not
Siemens and Signal were held liable under the LPLA. The plaintiff's proposed jury verdict
form directed the jury to allocate fault to only two of the non-parties, ArcelorMittal LaPlace
and Bayou Steel.26 Plaintiff's proposed jury verdict form did not direct the jury to skip the
fault allocation or damages calculation if it found no liability on behalf of Signal or Siemens.
After the Court's June 28, 2013 order denying defendants' motion for summary
judgment,27 the parties were required to submit a revised joint proposed jury verdict form.28
Again, parties submitted two separate jury verdict forms in the same document.29 The
defendants' proposed verdict form again listed all three non-parties in the allocation of fault
23

R.Doc. 200, p. 34.

24

R. Doc. 199, p. 9.

25

Id.

26

R. Doc. 199. Section G, "Apportionment of Fault" (p. 18).

27

R. Doc. 195.

28

29

R. Doc. 213.

R. Doc. 227.

7

section.30 Plaintiff lodged the same objection as she had to the defendants' earlier proposed
form, arguing that only those entities proven to be at fault should be listed in the allocation
of fault section.31 Plaintiff failed to object to the inclusion of the non-parties based upon
Workers' Compensation immunity or based upon whether or not Siemens and Signal were
liable under the LPLA. Plaintiff's proposed jury verdict form again required the jury to
allocate fault to only two of the non-parties, ArcelorMittal LaPlace and Bayou Steel, but the
form required that allocation to be made and damages to be calculated regardless of the
jury's finding of liability against Siemens or Signal.32
On July 18, 2013, the day before the final day of trial, the parties submitted to the
Court a third proposed joint jury verdict form which required the jury to allocate fault to
all three non-parties, whether or not the jury found Siemens and/or Signal liable under the
LPLA.33 Plaintiff objected to parts of the proposed joint verdict form, but did not object to
the allocation of fault to non-parties based on immunity, or to the fact that the jury was to
allocate fault and calculate damages regardless of the jury's finding of liability against
Siemens or Signal. On the morning of the last day of trial, after considering the parties'
third proposed jury verdict form and objections, the Court sent to the parties the jury
verdict form the Court planned to provide to the jury.34 In this version, the Court made

30

R. Doc. 227. Defendant's Section C, "Allocation of Fault/Damages" (p. 8).

31

Id.

32

R. Doc. 227. Plaintiff's Section G, "Apportionment of Fault" (p. 17).

33

R. Doc. 273.

34

R. Doc. 274.

8

minor changes and altered the order of the questions.35 The Court's verdict form directed
the jury to allocate fault to all three non-parties and to calculate damages regardless of
whether Siemens or Signal was found liable.36
On the last day of trial, before closing arguments, plaintiff's counsel was offered an
opportunity to put plaintiff's objections to the jury instructions and jury verdict form on the
record.37 Plaintiff's counsel lodged three objections, none of which included a request to
instruct the jury that the non-parties were exempt from liability or to remove the nonparties from the jury verdict form. Neither did plaintiff request that the jury be instructed
not to allocate fault or calculate damages if it found no liability against Siemens or Signal.
First, plaintiff raised the issue of whether Instruction 11 should have read "a proximate
cause" or "the proximate cause."38 Second, plaintiff raised the issue of which party should
bear the burden of proof under Instruction 21.39 Third, plaintiff raised the issue of whether
the ArcelorMittal LaPlace's parent corporation should be included in Section C of the
verdict form.40 Plaintiff argued that ArcelorMittal USA should not be included in Section
C because the trial testimony established it had not assumed a duty over workplace safety
at the plant, and its status as a parent corporation alone did not create a duty of workplace

35

R. Doc. 274. For example, the Court changed the "substantially contributed" language in the
joint proposed verdict form to "proximate cause."
36

R. Doc. 274.

37

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1042).

38

39

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1043).

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1044).
R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1045).

40

9

safety over its subsidiary.41 The Court overruled all of plaintiff's objections.42
Additionally, after closing arguments, but before charging the jury, the Court again
discussed the jury verdict form with counsel.43 Plaintiff's motion for new trial suggests that
the jury should have been instructed to skip the allocation of fault and damages calculation
entirely if the jury did not find Siemens and Signal liable in Sections A and B, because
plaintiff could not recover against the non-parties even if they were allocated fault.44
However, plaintiff did not propose this alternative when the Court discussed with counsel
how to handle the allocation of fault in Section C if the jury did not find liability against
Siemens or Signal in Sections A or B. In fact, plaintiff's counsel even suggested the Court
could simply enter judgment even if the jury allocated fault in Section C inconsistently with
the answers in Sections A and B.45
The Court sent the parties a copy of the final verdict form before charging the jury
on the afternoon of July 19, 2013.46After the jury began deliberations, the Court afforded
the parties an additional opportunity to further document or explain their objections to the

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1045).

41

42

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1046).

43

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1104). Section A contained
questions determining the liability of Signal. Section B contained questions determining the liability of
Siemens. Section C required the jury to allocate fault amongst the parties.
44

R. Doc. 259-1, p. 2.

45

R. Doc. 257. Transcript of the Morning Session of July 19, 2013 (p. 1106). The Court suggested a
jury verdict form instructing the jury not to allocate fault to Signal or Siemens if the jury did not find
Signal or Siemens liable in Sections A and B. In response, plaintiff's attorney remarked: "Your Honor, I
think it does get complicated. The only other suggestion I could add is that post-verdict the Court could
enter a judgment in according with the questions in accordance with the law [sic]. So I mean, if there is a
bunch of no's [in Sections A and B] and a hundred percent fault, I think it's time to enter a judgment on
the questions." (p. 1106)(emphasis added).
46

R. Doc. 245-3. Final Jury Verdict Form.

10

instructions or the verdict form on the record. Plaintiff reiterated the same three objections
made earlier that day.47
There can be no doubt that the plaintiff failed to object timely to the portion of the
jury instructions and the jury verdict form now at issue, and that as a result the plain error
standard of Rule 51(d)(2) applies. Indeed, plaintiff concedes as much.48 To prove plain
error, the plaintiff must show the jury instruction or the jury verdict form included an
incorrect statement of law. See ARA Auto. Group v. Cent. Garage, 124 F.3d 720, 730 (5th
Cir. 1997); United States v. Curbelo, 726 F.3d 1260, 1270 (11th Cir. 2013). Plaintiff has
failed to show the jury was incorrectly instructed on Louisiana's law of negligence,
comparative fault, the LPLA, or Workers' Compensation, or that the verdict form
incorporated an incorrect principle of law. Nor has the plaintiff shown that the jury
instructions or the jury verdict form resulted in an incorrect verdict. Instead, the
instructions correctly instructed, and the verdict form correctly required, the jurors to
allocate fault to all persons who may have caused or contributed to the damage, regardless
of whether such persons were parties or non-parties.
The jury verdict form required the jury to allocate fault to the non-parties pursuant
to Louisiana Code of Civil Procedure article 1812. The article provides in part:
C. In cases to recover damages for injury, death, or loss, the court at the
request of any party shall submit to the jury special written questions
inquiring as to:
...
(2)(a) If appropriate under the facts adduced at trial, whether any party or
nonparty, other than the person suffering injury, death or loss, was at fault,
and if so:

47

R. Doc. 252. Transcript of the Afternoon Session of July 19, 2013 (p. 1133).

48

See R. Doc. 259-1. Plaintiff's Memorandum in Support of Plaintiff's Motion for New Trial, p. 5.

11

(i) Whether such fault was the legal cause of the damages, and, if so:
(ii) The degree of such fault, expressed in percentage.
(b) For purposes of this paragraph, nonparty means a person alleged by any
party to be at fault, including but not limited to:
(i) A person who has obtained a released from liability from the person
suffering injury, death, or loss.
(ii) A person who exists but whose identity is unknown.
(iii) A person who may be immune from suit because of immunity
granted by statute.
La. C.C.P. art. 1812
Furthermore, Instruction 21 correctly explained the principles of Civil Code article
2323(A), advising the jurors to allocate fault to the non-parties if they found them to be
responsible for plaintiff's injuries.49 Louisiana Civil Code article 2323(A) provides in part:
In an action for damages where a person suffers injury, death, or loss, the degree or
percentage of fault of persons causing or contributing to the injury, death, or loss
shall be determined, regardless of whether the person is a party to the action or a
nonparty, and regardless of the person's insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S. 23:1032 [Workers'
Compensation Immunity], or that the other person's identity is not known or
reasonably ascertainable.
La. C.C. art. 2323(A)
The Fifth Circuit has held that article 2323(A) requires "the fact finder to apportion
fault among all negligent parties regardless of whether the plaintiff can recover from a
particular party or not ... Therefore, fault must be attributed to a negligent employer even
though the employer is immune from suit under the Louisiana Workers' Compensation
Statute." Fontenot v. Dual Drilling Co., 179 F.3d 969, 973 (5th Cir. 1999). Moreover,
plaintiff has not pointed to any authority, and the Court cannot find any authority,
requiring the jury to be instructed than an employer is immune from liability under

49

R. Doc. 247. Instructions read to the jury. See also Doc. 252. Transcript of Afternoon Session of
July 19, 2013 where the Court read the instructions to the jury (p. 1124).

12

Louisiana Workers' Compensation law. There was no plain error in the jury verdict form
or the jury instructions in the form of an incorrect statement of the law.
Additionally, there is no indication that the instructions or the verdict form created
jury confusion or resulted in an incorrect verdict. The jurors filled out the verdict form
consistently, and fully, and did not ask the Court any questions during deliberations. The
fact that the jury allocated fault and calculated damages, even though the jury "had checked
'No' regarding plaintiff's claims under the Louisiana Products Liability Act,"50 does not
establish that the verdict was incorrect as the result of an incorrect statement of the law.
Certainly the accident that befell Mr. Moyer was a tragedy for him and his family and
the plaintiff has the sympathy of the Court. But without plain error in the form of an
incorrect statement of law that was probably responsible for an incorrect verdict, a new trial
is not justified under the law. The Court must be and is guided by the law.
CONCLUSION
For all the reasons set forth herein, IT IS ORDERED that plaintiff's Motion for
New Trial is DENIED.

29th
New Orleans, Louisiana, this ____ day of October, 2013.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

50

R. Doc. 259-1, p. 1.

13