ALVIN B. RUBIN, Circuit Judge:
An employee of a small manufacturing concern, after sustaining severe injuries to his hands while working with a machine owned by his employer, brought suit against the manufacturer of the machine, alleging that it was defectively designed in that it lacked adequate operator safeguards. After the district court had granted the manufacturer's supplemental motion for summary judgment on the ground that the device in question was not defective as a matter of law, the employee filed a motion for reconsideration and, in support of that motion, proffered evidentiary materials that he had previously failed to submit. The district court admitted and considered those materials, but concluded that they did not warrant setting aside the original judgment. We affirm both the court's decision to consider the materials and its ruling on the motion for reconsideration.
Niagara Machine & Tool Works has for several decades manufactured a wide variety of hydraulic and electric-powered industrial metal-working machines known as "presses." One such device, the general-purpose "press brake," can be used to bend or to cut metal parts. It presses the metal part between two "dies" (hard metal teeth), one located on a stationary base, the other on a heavy metal "ram" that, when activated by a hand or foot control, descends toward the base. Though the base and the ram of the press brake have slots into which dies can be inserted, the dies are not a part of the press brake itself. The operator of the press brake must select dies that are appropriate for the particular bending or cutting operation to be performed. As manufactured, the press brake also lacks "point of operation" safeguards, that is, some mechanism or device that will either prevent the ram from becoming activated while the operator's hands are between the dies or exclude the operator's hands from that space while the ram is in motion. Niagara, however, manufactures several such safeguards and offers them for sale to its press brake customers.
In 1978 Baker Manufacturing Company, a small manufacturing concern whose facilities are located in Louisiana, purchased from Rex Supply Company a used general-purpose, foot-activated press brake that had been manufactured by Niagara about 1966. Some years later, Baker purchased a point-of-operation safeguard for the press
In the spring of 1985, James Lavespere, a recent high school graduate, went to work for Baker in its metal shop. After he had been on the job a few weeks, his superiors assigned him the task of "knifing" (bending) "verticals," six-foot long pieces of metal used in the construction of lockers. For this purpose, Lavespere employed the Niagara press brake. Lavespere, like the other operators of the machine, found that verticals would sometimes stick to the upper die after having been knifed. Although his supervisors and co-workers had advised him to free the verticals using a rubber mallet, Lavespere found it easier to tear them loose with his hands, a procedure that required him to insert his hands into the point of operation.
Only a few days after he had begun to perform the knifing operation on his own, Lavespere attempted to free a stuck vertical with his hands. As he did so, the ram unexpectedly became activated and descended, pressing his fingers between the vertical and the lower die and causing severe injuries to his hands, including the loss of several fingers. Although none of the parties has established the cause of the ram's activation, they suggest two possibilities: the press brake went through a "double stroke" or Lavespere inadvertently stepped on the foot pedal.
One year later Lavespere filed suit in federal court against Niagara Machine & Tool Works, as manufacturer, and Rex Supply Company, as vendor, of the press brake, contending that the press brake, insofar as it lacked a point-of-operation safeguard, was defectively designed. Baker's workers' compensation insurer, Liberty Mutual Insurance Company, intervened, seeking to recover workers' compensation benefits that it had paid to Lavespere. The district court subsequently dismissed Rex Supply.
Niagara filed a motion for summary judgment, contending that Niagara owed no duty to Lavespere to guard the press brake and that Baker's failure to guard the press brake was a superseding cause of the accident. It accompanied the motion with several attachments, including an affidavit by Stanton Cheyney, an engineer and an officer of Niagara. In the affidavit, Cheyney alleged that it is not possible to design a "universal" point-of-operation safeguard, that is, one single safeguard capable of protecting all operators of the machine in all of its possible applications. According to Cheyney, which safeguard is appropriate and effective varies with the particular bending or cutting operation to be performed. For these reasons, Cheyney explained, it is the custom of the industry not to install point-of-operation safeguards on the machines, but to leave that responsibility to the purchaser. The district court denied the motion.
Niagara then filed a supplemental motion for summary judgment. Although Niagara relied on the same allegations of fact and the same attachments as before, it submitted a new memorandum of authorities based on recent Louisiana jurisprudence, in particular, the decision of the Second Circuit Court of Appeal in Sawyer v. Niagara Machine & Tool Works, Inc.
Shortly thereafter Lavespere filed a motion for reconsideration, seeking to have the ruling overturned. In that motion, Lavespere alleged that "through inadvertence, mistake and excusable neglect," he had failed to file the deposition of Dr. Kenneth Blundell along with his opposition to Niagara's supplemental motion for summary
Lavespere and Liberty Mutual appeal from the summary judgment in favor of Niagara, while Niagara appeals from the ruling granting Lavespere's motion for leave to file Blundell's deposition.
Niagara's objection to the court's decision to admit and consider Blundell's deposition is two-fold: (i) Lavespere did not timely submit the deposition; and (ii) Blundell was not qualified to testify as an expert on the subject of designing point-of-operation safeguards.
Niagara alleges, and Lavespere does not deny, that Blundell's deposition was available to Lavespere two years before Niagara filed its supplemental motion for summary judgment and that Lavespere could have submitted it as an attachment to his opposition to that motion. Because Lavespere failed to do so, Niagara argues, he may not be permitted to file the transcript belatedly unless he can provide an adequate excuse for his default. According to Niagara, Lavespere has not done so.
That Lavespere should have filed Blundell's deposition before the rendition of summary judgment is not disputed. In case after case, the federal courts have declared that if an opponent of a motion for summary judgment wishes the district court to consider certain evidentiary materials in ruling on the motion, then she "must" submit those materials along with her opposition to the motion, or at least before the ruling on the motion.
Unfortunately, the federal courts so far have not provided a uniform answer to this question. In some decisions on this subject one finds statements that, at least on first reading, seem to suggest that a district court has no discretion to admit and consider such belatedly-submitted evidentiary materials unless the evidence they contain is "newly-discovered."
We do not pretend to be able to reconcile all of the apparently conflicting statements set forth in these opinions. Nor do we believe it would be particularly instructive to subject each of these decisions to detailed dissection, noting those statements that we endorse and pointing out instances of loose language and slips of the tongue that have, quite unintentionally, produced apparent inconsistency. Under the circumstances, we prefer to start afresh, setting out what we consider to be the governing principles established by the Federal Rules of Civil Procedure.
When a party files a motion for reconsideration of a summary judgment and submits in support of that motion evidentiary materials that she failed to file on time, the extent of the court's discretion to reopen the case and to consider the materials depends, in the first instance, on the particular Federal Rule of Civil Procedure under which the motion arises. The Federal Rules do not recognize a "motion for reconsideration" in haec verba. We have consistently stated, however, that a motion so denominated, provided that it challenges the prior judgment on the merits, will be treated as either a motion "to alter or amend" under Rule 59(e) or a motion for "relief from judgment" under Rule 60(b).
To reopen the case under Rule 60(b) on the basis of evidence that was available before rendition of judgment but that was not submitted in a timely fashion, the mover has two options. She can proceed under Rule 60(b)(1), in which case she must show that her default was attributable to "mistake, inadvertence, surprise, or excusable neglect."
In determining whether the moving party has established "excusable neglect" under Rule 60(b)(1) or manifest injustice under Rule 60(b)(6), the district court enjoys considerable discretion.
A motion to reopen a case under Rule 59(e), though subject to much more stringent time limitations than a comparable motion under Rule 60(b), is not controlled by the same exacting substantive
Because Rule 59(e) is not subject to the limitations of Rule 60(b), the district court has considerable discretion in deciding whether to reopen a case in response to a motion for reconsideration arising under the former rule. That discretion, of course, is not limitless. In any case in which a party seeks to upset a summary judgment on the basis of evidence she failed to introduce on time, two important judicial imperatives clash: the need to bring litigation to an end and the need to render just decisions on the basis of all the facts.
For this framework for analyzing and evaluating motions for reconsideration to stand, it must, of course, be consistent with this court's prior decisions. Niagara, citing passages from Waltman v. International Paper Co.,
In Waltman the plaintiff, after the district court had granted the defendant's motion for summary judgment, filed a motion for reconsideration under Rule 59(e). Attached to the motion were several evidentiary documents, all but one of which had been at the plaintiff's disposal at the time she filed her opposition. The district court refused to consider the documents on the ground that their submission was untimely. On appeal, this court affirmed. Quoting a federal district court decision, Keene Corp. v. International Fidelity Insurance Co.,
Although the Waltman court's remarks arguably are susceptible of the construction that Niagara attempts to put on them,
Applying those principles to this case, we begin by determining whether Lavespere's motion for reconsideration arose under Rule 59(e) or Rule 60(b). Lavespere served that motion, which challenged the summary judgment on its merits well before 10 days from the entry of judgment had passed. Characterized according to the rule of Harcon Barge, the motion falls under Rule 59(e).
The next step in the inquiry is to determine whether the district court abused its discretion by permitting Lavespere to file the deposition along with his motion for reconsideration and in taking that deposition into account in ruling on the motion. Lavespere's failure to file the deposition on time was attributable to his attorney's negligence, not to strategic considerations. Further, Blundell's deposition, which contains Lavespere's only evidence concerning defective design and causation, is of critical importance to Lavespere's case and is highly relevant to the question whether summary judgment should have been granted. Finally, Niagara has not alleged, nor does it appear likely, that Niagara was injured or prejudiced in any way as a result of the district court's reopening the case to consider Blundell's deposition. Lavespere served the motion and his request to file the deposition within eight days of the court's ruling on the motion for summary judgment. Considering these circumstances, we cannot conclude that the district court abused its discretion by reopening the case and admitting and considering Blundell's deposition.
Although we affirm the district court's decision to rescue Lavespere's case from the peril created by his attorney's blunder, it would be a mistake to infer from our decision that attorneys practicing in this circuit may now ignore deadlines for the submission of evidence with impunity. Our decision means only that a district court faced with circumstances analogous to those present here may reopen the case; it does not mean that a district court faced with such circumstances should or must do so.
Niagara's second attack on the district court's decision to allow Lavespere to file Blundell's deposition is that Blundell was not qualified to give expert testimony on the subject of designing point-of-operation safeguards. In particular Niagara complains that Blundell had had limited practical experience with press brakes and gained his knowledge of the press brake industry and of press brake safety systems through reading articles listed in a bibliography published by one of Niagara's competitors.
As a general rule, the admissibility of evidence on a motion for summary
Blundell's academic credentials are impressive. He holds a doctorate in mechanical engineering and a master's degree in production engineering and, at the time that he was deposed, taught courses on the former subject as a professor at the University of Missouri. Further, although Blundell had never designed a press brake or safeguards for that device, he had had at least some practical experience designing mechanical devices similar to the press brake and safeguards suitable for those devices, both in his capacity as production manager of his family's manufacturing business and in his capacity as associate director of the university's safety design center. While serving in the former capacity, Blundell testified, he had designed several small power presses and had specified and installed safety systems for a variety of power presses, including a forty-ton punch press. Finally, we note that prior to this litigation, Blundell had been qualified in other courts around the country to testify as an expert on the subject of designing safeguards for devices similar to press brakes. Under these circumstances, we cannot fault the district court for its decision to accept Blundell as an expert.
Niagara contends, nevertheless, that because Blundell's knowledge of the particular device under scrutiny here — the press brake — was purely academic, that is, he learned everything he knew about the device and safety systems suitable for it through reviewing technical literature rather than through hands-on experience, Blundell was not an expert on the subject of designing safeguards for that particular device. The legal assumption on which this contention rests is that an "academic" who has had no practical experience designing a particular product cannot be qualified to testify as an expert concerning the design of that product in a product liability action. The assumption is erroneous.
Rule 702 provides that a witness may be qualified as an expert "by knowledge, skill, experience, training, or education."
The rule advocated by Niagara not only is inconsistent with the language of Rule 702, but also would work an undue hardship on plaintiffs in product liability actions. Recognizing this problem, other federal appeals courts have squarely rejected this proposal.
This court's decision in Perkins v. Volkswagen,
For these reasons, we conclude that the district court did not err by accepting Blundell as an expert on the subject of designing safety systems for press brakes.
The next issue presented for our consideration is whether the district court, after taking Blundell's deposition into account, correctly denied Lavespere's motion for reconsideration of the summary judgment. Lavespere and Liberty Mutual attack the district court's decision on two grounds. First, the court misinterpreted and misapplied both the law governing summary judgments and the applicable substantive law. Second, it was improper for the court to grant Niagara's supplemental motion for summary judgment after having denied its original motion for summary judgment, for Niagara presented no new evidence in support of the supplemental motion. We address each of these contentions in turn.
Review of a district court's ruling on a motion for summary judgment is plenary.
Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled
In the summary-judgment context, the rules governing burden of proof are critically important. The moving party bears the burden of establishing that there are no genuine issues of material fact.
Whether summary judgment is appropriate may depend in part on the nature of the issues before the court. For example, this court has consistently declared that "the use of summary judgment is rarely appropriate in negligence or products liability cases, even where the material facts are not disputed."
Nevertheless, this court has upheld summary judgments in products liability actions on finding that the evidence was insufficient to create a genuine issue of material fact concerning the defendant's alleged failure to comply with that normative
Although it is clear that Louisiana law governs Lavespere's right to recovery, it is not clear what Louisiana law governs. After Lavespere's accident and the initiation of this litigation but before the rendition of judgment, the Louisiana Legislature enacted the Louisiana Products Liability Act
The law of products liability in force in Louisiana at the time of Lavespere's accident was set out in the landmark case of Halphen v. Johns-Manville Sales Corp.
Of these theories of recovery, the third defective-design theory best corresponds with Lavespere's claim. Lavespere does not contend that the press brake's danger-in-fact outweighs its utility or that there were other products available to do the same work as that performed by the press brake. Instead, he faults Niagara for failing to incorporate into the press brake various kinds of safety devices such as "dual-hand controls," the "interlock guard," or the "distance bar." Courts inside and outside Louisiana have unanimously concluded that claims regarding the absence of safety devices should be treated as claims of defective design.
The Halphen decision left many important questions unanswered, including precisely what showing a plaintiff who relied on the third defective-design theory was required to make in order to carry his
This interpretation is doubtful at best. The scholars from whose works the Halphen court derived its third defective-design theory suggest, in the very same works, that the balance of costs and benefits associated with switching to the alternative design ought to be a critical element in determining its "feasibility."
It seems unlikely that the state supreme court, having derived its "feasible alternative" design theory from Dean Keeton's works, would have rejected his definition of the key term "feasible." That the Louisiana high court would have adopted this definition appears all the more likely when one considers that several state courts which have recognized liability for failure to use a safer, alternative feasible design have defined feasibility in precisely this manner.
While we therefore are confident that the state supreme court would consider a cost-benefit analysis to be relevant to the plaintiff's right to recover under Halphen's feasible "alternative" design theory, we are not at all certain how the court would apportion the burden of proof on this matter between the plaintiff and the defendant. As we have already suggested, Halphen did not directly address this question. Since the announcement of that decision, neither the supreme court nor any of the state appellate courts has faced the issue. Finally, in those jurisdictions other than Louisiana in which the feasible-alternative design theory has been recognized, there is considerable disagreement.
Before the supreme court could answer this and the other questions left unanswered by Halphen, the Louisiana Legislature enacted the Louisiana Products Liability Act
According to Section 2800.54 D,
Section 2800.56 effects two changes in the law. First, the new section imposes on the plaintiff the requirement of showing that an alternative design was in existence at the time the product left the manufacturer's hands. Although the Halphen decision did not directly address the matter, it was widely believed that the decision would have permitted the plaintiff to recover simply by showing that a design modification capable of preventing the accident was theoretically possible.
Only the second of these changes could make any possible difference to the success of Lavespere's case. Considering the testimony of Blundell that foreign and domestic manufacturers had implemented the design modifications he proposed years before the manufacture of the press that injured Lavespere, we are convinced that he would have satisfied the new "in existence" requirement of section 2800.56(1), assuming that it had applied to him. Whether his evidence was sufficient to satisfy the new "risk-utility" requirement of section 2800.56(2) is a more difficult question. It is therefore necessary to consider whether that provision of the Act should be given retrospective force.
The Louisiana Legislature's most recent expression on the subject of "retroactivity of laws" is found in article 6 of the Louisiana Civil Code:
This article reproduces the substance of former article 8,
We are satisfied that the legislature did not express any intention concerning the temporal effect of section 2800.56(2) or, for that matter, any of the provisions of the LPLA. Indeed, it is clear that the legislature went out of its way to remain mute on this subject. Although the Senate version of the Act contained a provision purporting to make the Act apply prospectively only,
Resolution of the retroactivity question therefore turns on the classification of the legislation. Here we are concerned only with the provision in the LPLA that changes the plaintiff's burden of proof in an alternative design case, section 2800.56(2). It is well settled in Louisiana that laws affecting burden of proof are "procedural" as that term is used in Civil Code article 6.
One might object that our conclusion is at odds with that reached by the Louisiana Court of Appeal, Second Circuit, in McCoy v. Otis Elevator Co., Inc.
The McCoy court was called on to consider whether the Act retroactively eliminated the cause of action for products that are unreasonably dangerous per se. Thus, the only question before the court was a narrow one: whether the "exclusivity of remedies" clause found in Louisiana Revised Statute 9:2800.54,
Having determined that section 2800.56(2) applies retroactively, we are now in a position to determine whether Lavespere presented sufficient evidence to survive Niagara's motion for summary judgment. In order defeat that motion, Lavespere was required to present evidence sufficient to enable a reasonable trier of fact to conclude that he had established the essential elements of his claim, including that the risk avoided by the alternative design outweighed the burden of adopting that design.
Although Lavespere introduced evidence that had some bearing on the risk-utility issue, it was not sufficient to carry the day. Lavespere offered no evidence concerning the extent of the risk that the alternative design would have avoided. In particular, Lavespere offered no evidence concerning the frequency of accidents like his own, the economic costs entailed by those accidents, or the extent of the reduction in frequency of those accidents that would have followed on the use of his proposed alternative design.
Further, Lavespere introduced little, if any, evidence concerning the burden of switching to the alternative design. Neither in Blundell's deposition nor in any other document submitted by the parties is there any indication of the costs that the manufacturer would have incurred had it used the alternative design.
Perhaps the most significant failure of Lavespere's proof, however, was on the matter of the loss of product utility that use of the alternative design would have occasioned. Lavespere did provide information, through the deposition of Blundell, that the safeguards he proposed would be compatible with "the vast majority" and "maybe eighty-five percent" of the press brake's possible applications, information suggesting that the safeguards would be wholly or partly incompatible with at least fifteen percent of its possible applications. The record contains no information, however, on the following crucial points: whether the excluded operations could be performed by another device and, if not, what consequences the loss of those operations might have for the metal works industry; assuming that another device could be used, the additional cost to metal works firms of purchasing and maintaining two devices (the modified general-purpose press brake and the other device) instead of one; and, assuming that the safeguards of the modified press brake could be disengaged so that the excluded operations could be performed, the cost to manufacturers to make the safeguards disengagable and the cost to press brake purchasers to disengage and reengage the safeguards. In short, there is no evidence concerning the nature and extent of the economic problems likely generated by rendering the press brake unfit for at least fifteen percent of its possible uses.
Under the circumstances, we have little difficulty concluding that Lavespere's evidence was insufficient to defeat Niagara's motion for summary judgment. His proof of the risk that might have been avoided by the alternative design and of the burden that switching to that design would have entailed was, to say the least, incomplete. Faced with this meagre evidence, no reasonable trier of fact could have concluded that the balance of those two factors tipped in favor of the risk avoided. One cannot balance items of indeterminate weight.
Because we have disposed of this case on the basis of the LPLA, we find it unnecessary to consider in detail the pre-LPLA state intermediate appellate court decisions that formed the focal point of the parties' and the district court's attention: Leonard v. Albany Machine & Supply Co.,
Liberty Mutual contends that the district court's ruling granting Niagara's supplemental motion for summary judgment was improper given that the court had denied Niagara's original motion for summary judgment and that Niagara presented no new evidence in support of the supplemental motion. According to Liberty Mutual, it is utterly "inexplicable" how a court could one day conclude that there are genuine issues of material fact and later, without the benefit of any additional evidence, conclude to the contrary.
We reject this argument for two reasons. First, we do not find the district court's behavior at all inexplicable. After the ruling on the original motion but before the ruling on the supplemental motion, the Louisiana Court of Appeal, Second
For the reasons presented above, the district court's judgment is AFFIRMED.