515

Rodger Nelson SMITH, Jr., Plaintiff-Appellee, v. LOUISVILLE LADDER CO., Defendant-Appellant.

No. 99-41038.

United States Court of Appeals, Fifth Circuit.

Jan. 11, 2001.

Richard Ernest Swift, Jr. (argued), Jeffrey Don Herrington, Swift & Herrington, Palestine, TX, for Plaintiff-Appellee.

Scott J. Atlas (argued), Vinson & Elkins, Houston, TX, Thomas S. Leatherbury, Vinson & Elkins, David M. Ellis, Clark, West, Keller, Butler & Ellis, Dallas, TX, for Defendant-Appellant.

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

Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge: This is an appeal from a judgment entered on a jury verdict for the plaintiff, Rodger Nelson Smith ("Smith"), in a products liability action against Louisville Ladder Corp. ("Louisville")- Following a four day trial, the jury found in favor of Smith, and, after taking Smith's 15% contributory negligence into account, awarded Smith $1,487,500. We conclude that the record evidence does not support any of Smith's theories of recovery. We therefore reverse and render judgment for Louisville.

I.

Rodger Smith worked as a technician for Longview Cable Company ("Longview"), which provided cable television service in the Longview, Texas area. At the time of his accident in April 1995, Smith had been employed by Longview for approximately one and one-half years. Longview purchased the extension ladder and hook assembly in use at the time of Smith's accident from Louisville.

On the day of Smith's injury, he was assigned a routine repair job that required him to rest the ladder against a cable strand located some twenty feet off the ground. Smith placed the cable line inside the U-shaped hooks that extended from the top of the ladder and rested the ladder against the cable. The base of the ladder was on the ground approximately five feet from a utility pole to which the overhead cable was attached. Because of its weight, the cable sloped down slightly as it moved from the pole.

Smith climbed the ladder without securing the ladder to the pole or any other stationary object. Smith's plan was to secure himself to the ladder with his safety belt when he reached the top of the ladder and then use a hand line to attach the ladder to the utility pole. After Smith climbed to the top of the ladder, he reached for his safety belt and his weight shifted, causing the ladder to slide to his left down the natural slope of the cable. The ladder slid sideways for some distance with Smith hanging onto the ladder. When the ladder reached a position at or near the low point of the line between the two utility poles to which it was attached,

one of the hooks came off the line, and the ladder twisted and came to an abrupt halt. Unable to maintain his grip on the ladder, Smith fell to the ground and was seriously injured.

Lateral slides of ladders along cables were well recognized risks in the telecommunications industry, and Smith, himself, had experienced several of these slides during his employment with Longview. However, in the earlier slides Smith had attached his safety belt to the ladder before the slide began and because he did not fall from the ladder he suffered no injury.

Smith's product liability suit against Louisville sought recovery on three theories: defective design, failure to warn, and breach of implied warranty of merchantability. Following trial, the jury found in favor of Smith on all three theories and after taking Smith's 15% contributory negligence into account, awarded Smith $1,487,500. The district court entered judgment on the verdict and denied Smith's post-judgment motions. This appeal followed.¹

II

A. Design Defect Smith focused most of his time and attention at trial on his theory that the Louisville extension ladder with hook assembly was defective because of the hook's ability to come off the cable during a slide. Smith's expert, Dr. Packman, testified that when the hook disengaged from the cable near the end of Smith's slide, the ladder to which Smith was clinging twisted more violently than it would had the hook remained attached to the cable and he concluded that this additional twist contributed to Smith's fall. Packman introduced the concept of a simple latching device that, when engaged, would close the opening in the hook, encircle the cable and

1. We disagree with the dissent that Louisville Ladder is raising a "new ground" for JMOL.

Louisville Ladder sought JMOL on the ground prevent the hook from disengaging from the strand. Under Dr. Packman's concept, the latch remains disengaged until the hook is placed over the cable and the ladder is resting on the cable. The operator, from his position on the ground, would then remotely activate a spring loaded latch by pulling a line running from the latch to the bottom of the ladder. Once the latch was engaged, the hook would no longer be open and in the event of a slide, the hook could not disengage from the cable.

Louisville Ladder argues that Smith did not establish that the hook with Dr. Packman's latch was a "safer alternative design" within the meaning of the Texas statute. To establish a design defect, Section 82.005 of the Texas Civil Practice and Remedies Code requires a claimant "to prove by a preponderance of the evidence that: (I) there was a safer alternative design; and (2) the defect was a producing cause of the personal injury property damage or death for which the claimant seeks recovery." Subsection (b) states: (b) In this section, "safer alternative design" means a product design other than the one actually used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and (2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

We found only one Texas case discussing the proof necessary to establish a safer alternative design under this statute. In General Motors Corp. v. Sanchez, 997 that plaintitt s evidence was insufficient to establish a "safer alternative design". This preserved the issue for appeal.

S.W.2d 584 (Tex. 1999), the plaintiffs expert testified that his alternative design of the General Motors transmission would prevent internal forces in the transmission from moving the gear selector toward "reverse" rather than "park" when the driver inadvertently leaves the lever in a position between "reverse" and "park." According to plaintiffs expert, his proposed design change would eliminate this spontaneous movement 99% of the time. The court held that this testimony was sufficient to allow the jury to conclude that plaintiff had established a safer alternative design. Id. at 592.

In our case, Smith completely relies on Dr. Packman's evidence and testimony to establish a safer alternate design. Packman testified that his spring loaded latch, by preventing the hook from disengaging from the cable, would make the jolt at the end of the slide less violent, and, therefore, the worker would have a better chance of hanging onto the ladder. He conducted videotaped experiments for the purpose of establishing this fact. In the first experiment, he placed a 200-pound weight on a ladder with hooks like those found on the Louisville Ladder and then precipitated a slide to demonstrate the jerk that would occur when one of the hooks disengaged from the strand. For the second experiment, Dr. Packman videotaped a slide involving hooks that encircled the cable.^{Footnote 2} This experiment demonstrated a less violent jerk at the end of the slide.

The only conclusion Dr. Packman was able to reach was that his alternative design would result in a less violent jerk on the ladder at the end of the slide. Unlike the expert who testified in General Motors, Dr. Packman was unable to quantify this reduction in force and was unable to say that Smith or another worker could stay on the ladder in a slide where the hook was prevented from disengaging from the cable. The most Dr. Packman could say was that his design alteration would diminish the possibility of the worker's falling off because there was some reduction in the jerk.

Furthermore, Dr. Packman's concept of the latching device to close the open end of the hook around the cable was a preliminary concept. At the time of trial he admitted that he had considered several possible ways a man on the ground (or some distance up the ladder) could operate the latch mechanism but had not settled on any particular method. He agreed that his design was preliminary and that he was not ready to recommend it to a manufacturer. In addition, Packman conceded that a person climbing the ladder would find his proposed mechanism somewhat awkward and that using the mechanism could cause the ladder to get out of balance and slide. He was also questioned about a concern that the line to operate the latch mechanism running the length of the ladder has the potential of being a hazard to the person climbing the ladder. Packman agreed that he never evaluated the risks associated with his proposed alternate design due in part to the fact that it was never completed. Packman also conceded that he did not purport to conduct a risk-benefit analysis of his proposed redesign.

In addition to the Texas Supreme Court's interpretation of the statute in General Motors, we look to decisions of this court considering whether such proof was adequate to satisfy a similar statutory burden imposed by Louisiana. In Lawrence v. General Motors Corp.,  73 F.3d 587, 590 (5th Cir.1996), we considered whether the evidence was sufficient to satisfy a very similar Louisiana statute,^{Footnote 3} and

237

FEDERAL REPORTER, 3d SERIES concluded that a declaration by the plaintiffs expert that a proposed alternative design could have prevented the plaintiffs accident was insufficient to establish the statutory requirement. We stated that this expert failed to "elaborate on the actual likelihood of avoiding the probable damage through an alternative design," "address the burdens or adverse utility effects of his proposed changes, or counter the defendant's claim that these alterations would not have been compatible with the product in its current form." Id. at 590. As a result, we held that the evidence was insufficient as a matter of law to support a finding of design defect. Id. See also, Watkins v. Telsmith, Inc.,  121 F.3d 984 (5th Cir.1997) (Miss, statute).

After careful review of the record, we conclude that no reasonable jury could have found from the evidence that the latching device Dr. Packman proposed adding to the hook assembly was a safer alternative design as defined by the Texas statute.* Dr. Packman conceded that his proposed alternate design would not assist in preventing the hook from sliding on the cable. He also agreed that the only benefit a worker would derive from the alternate design was a reduced jerk at the end of the slide. He was therefore unable to say that his alternate design would have prevented Mr. Smith's fall. Therefore, we conclude that the evidence fails to establish that the alternative design would have "significantly" reduced the risk of Mr. Smith's injury.

Furthermore, Dr. Packman conceded that he made no risk-benefit analysis including what additional hazards would be created in implementing his proposed alternative design. Thus, Dr. Packman's testimony does not establish that his proposed design would not have substantially impaired the ladder's utility. The jury's finding of design defect, therefore, cannot stand. ^{Footnote 5}

B. Breach of Implied Warranty

Louisville Ladder argues that Smith's breach of implied warranty claim fails for the same reason as his design defect claim: Smith failed to produce sufficient evidence that a safer alternative design of the extension ladder with cable hook accessory exists. As the above discussion reflects, our review of the record leads us to conclude that Smith failed to establish a safer alternate design to the Louisville Ladder involved in this accident. Texas Civil Practice & Remedies Code § 82.005, which requires a claimant to prove a safer alternative design, applies to all products liability actions whether brought as strict liability, as breach of implied warranty, or a combination of those theories. See Tex. Civ. Practice & Remedies Code § 82.001(2).

The Texas Supreme Court made this point clear in Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex.1999). In that case, the plaintiff was injured in a crash of a Hyundai. She sued on a theory that the vehicle was not crash-worthy and was defective for that reason. The trial court submitted the plaintiffs negligence and design defect theories to the jury, but refused to submit the plaintiffs breach of

LADDER CO.

2001) warranty theory on grounds that this was failure to duplicative of the design defect theory.

Although this case was tried before 1993, the year § 82.005 was adopted, the court held that even under the pre-1993 law, the issues regarding the existence of design defect and breach of warranty were identical. Consequently, the Supreme Court of Texas concluded that the trial court had properly declined to submit the slides. He argues that, nevertheless, the breach of warranty claim to the jury.

With respect to post-1993 claims under § 82.005, the court stated: "for cases tried since the 1993 effective date of Chapter 82 of the Civil Practice and Remedies Code, the findings required to establish a design defect claim are identical, regardless of the legal theory asserted." Hyundai Motor Co., 995 S.W.2d at 667; Tex. Civ. Practice & Remedies Code § 82.001(2), 82.005.

In sum, because Smith failed to establish a safer alternative design for the ladder in use at the time of the accident, his claim predicated on breach of implied warranty must fail, along with his design defect claim.

Ill

Louisville challenges the jury's finding of marketing defect on the ground that it had no duty to warn of the risk of lateral cable slides and specific precautions to prevent such slides beyond the statements it provided on its ladder. The warning label on its ladder directed users to "[s]ecure top and bottom of the ladder from movement where possible" and that "serious personal injuries" could result from follow instructions. Louisville states that the ladder was marketed to users in the telecommunications industry who possessed special knowledge of slide hazards and expertise in stabilizing the ladder to avoid this hazard.

Smith does not dispute that Louisville's ladders are marketed solely to the telecommunications industry, that he works in that industry, or that his profession has knowledge of the hazards of lateral cable jury was entitled to find that workers in his industry do not have expertise relative to how these ladders can be secured to avoid the sliding during initial ladder ascent; that is, before the worker reaches the strand and ties the ladder to the strand or to an adjacent utility pole. Furthermore, Smith asserts that Louisville's warnings were vague and failed to provide an answer to this problem.

Even a product that is safely designed and manufactured may be unreasonably dangerous as marketed because of a lack of adequate warnings or instructions. ^{Footnote 6}

However, under Texas law, "there is no duty to warn when the risks associated with a particular product are matters 'within the ordinary knowledge common to the community'" ^{Footnote 7} , and a supplier may rely on the professional expertise of the user in tailoring its warning. ^{Footnote 8}

Moreover, while industry knowledge is an objective inquiry, ^{Footnote 9} it is a question of fact to be resolved by the jury in cases involving conflicting evidence

on the issue. ^{Footnote 10}

The jury in this case was charged with determining whether Louisville Ladder's warnings were adequate in light of the telecommunications industry's knowledge of lateral cable slides and available techniques for avoiding such slides. Smith does not dispute industry knowledge that such slides are a common hazard; thus, the question narrows to whether the jury was entitled to find that the telecommunications industry was unaware of procedures to avoid this hazard during a user's initial ascent of a cable extension ladder. We therefore turn to the record to assess whether, based on the evidence presented at trial, a reasonable jury could have found inadequate industry knowledge of this hazard and the appropriate precaution to avoid it.

Louisville introduced extensive evidence bearing on industry expertise on this hazard: (1) The Longview Cable TV Safety Manual {"Longview Safely Manual"); (2) The Society of Cable Television Engineer's Health and Safety Manual Book III: Field and Plant Safety {"Society Safety Manual"); (3) Two industry videotapes on ladder safety; and (4) The AT&T Company Standard, Bell System Practices Manual for the Use of Extension Ladders and Attachments {"AT&T Ladder Manual"). Taken together, these documents and videos provide such compelling proof that Smith's industry had common knowledge of adequate pre-ascent stabilization techniques that no reasonable fact finder could have found to the contrary.

First, Longview's own safety manual has a section concerning ladder placement, which stresses the importance of "proper positioning" and indicates that it may be "necessary" to "secur[e] the ladder with a rope" during placement. ^{Footnote 11}

Second, relevant portions of the Society Safety Manual emphasize that "[njumerous accidents may occur each year due to the improper use of ladders [, and, thus,] employees are expected to use ladders carefully and deliberately, paying close attention to their own safety as well as the safety of others" and "[w]hen used on a strand, extension ladders should be securely lashed to the strand, or guarded by an employee at the bottom of the ladder." Third, the two industry safety videos repeatedly underscore the importance of establishing appropriate ladder stability during positioning and illustrate numerous possible pre-ascent stabilization techniques that would have been applicable to Smith's accident. ^{Footnote 12}

For example, in Ladder Safety, the more cursory of the two videos, the narrator states that when placing ladders, users should "make sure that [they] won't slip; lash [them] if necessary, or get someone else to hold" them during use. ^{Footnote 13}

Furthermore, Extension Ladder Training Course, the more lengthy and thorough videotape, extensively deals with using hook extension ladders against cable strands and instructs operators to "secure the ladder to the strand" with the hooks alone only if the job does not require "pushing, pulling, u or excessive strain." Otherwise, the vid-

eo directs users to "raise tne ladder two or three rungs above the strand" before climbing.

15

Moreover, in a broader discussion of general ladder placement on slippery surfaces, this tape explains that "ladders can be prevented from sliding by tying the base of the ladder to a stable structure or hav[ing] someone 'foot' the ladder." 16

Finally, the AT&T Manual strongly illustrates the prevalence of preascent ladder stabilization techniques by: (1) Cautioning operators to "always remember to first make the ladder secure;" 17 (2) Instructing them to "make certain the ladder is placed on firm and level footing to prevent the ladder from twisting or sliding along the strand;" 18 Indicating that "[ljadder strand hooks shall be used on lashed, ring-supported, and self-supporting cable when the ladder is not lashed to the strand;" 19 and most significantly (4) Providing the following explanation of how to prevent cable extension ladder slides: When using a ladder on a strand having a fairly steep slope, secure the ladder with rope to prevent the top of the ladder from sliding along the strand. Before raising the ladder, throw or place a handline over the strand and secure one end of the handline to the second rung from the top of the fly section. After placing the ladder on the strand, pull the other end of the handline taut and secure it to an adequate support on the uphill side of the ladder, such as a pole, tree, or digging bar firmly anchored in the ground. If no such anchorage is obtainable, secure the ladder to the cable strand by throwing the handline over the strand again, so the

15.

Id.

16.

Id. at running time 30:50.

17.

The AT&T Company Standard, Bell System Practices Manual for the Use of Extension Ladders and Attachments, Section 081-740105, 28 ("The craft person shall always remember to first make the ladder secure, and then secure oneself on the ladder, to avoid falling, in the event of slipping, loss of ba]- 20. Id. at 31. rope passes twice around the cable ... strand. Then tie the rope securely to a rung on the base section of the ladder.

20

The overwhelming evidence of industry knowledge of the dangers of extension ladders' sliding on a strand, leads us to question whether Louisville was obliged to give any warning of this hazard. We need not decide whether a warning was required because Louisville supplied a warning that was plainly adequate when considered in light of industry knowledge of this danger and how to avoid it. We conclude, therefore, that Smith did not present sufficient evidence for the jury to find that Louisville (3) failed to adequately warn of this hazard.

IV

For the above stated reasons, we conclude that Smith failed to present sufficient evidence at trial to support any of his theories of recovery. The district court's judgment is, therefore, reversed and judgment is rendered in favor of Louisville.

REVERSED and RENDERED.

DENNIS, Circuit Judge, dissenting:

This diversity case was tried under Texas products liability law to a correctly instructed jury that returned a $1.5 million verdict for the plaintiff. Applying Texas substantive law and this Circuit's federal test for the sufficiency of evidence to create a jury question, the district court denied the defendant's motion for judgment as a matter of law ("JMOL") and rendered judgment on the verdict for the plaintiff.

On appeal, the defendant improperly asserts, for the first time, a new ground for a ance, or if something else goes wrong. The manner in which the craft person is secured to the ladder will depend on the security of the ladder, and the nature of the work to be done.").

18.

Id. at 35.

19.

Id.

JMOL: Defendant avers that, because "no Texas court has directly addressed the quantum of proof necessary to satisfy" section 82.005 of Texas's Products Liability Act, TEX.

CIV.

PRAC. & REM.CODE ANN. § 82.005 (Vernon 2000) (hereinafter "TPLA § 82.005"), this court, in deciding whether the record contains sufficient evidence to sustain the jury's verdict, should apply a standard of review based by analogy on section 2800.56 of the Louisiana Products Liability Act ("LPLA"), LA.REV. STAT. ANN. § 2800.56 (West 2000), and section ll-l-63(f)(ii) of the Mississippi Products Liability Act ("MPLA"), MISS.CODE ANN. § ll-l-63(f)(ii) (West 1999), and two federal Erie guesses as to those statutes' substantive meaning.

The majority adopts whole hog the defendant's improperly proffered ground for JMOL, reverses the district court judgment, and renders a JMOL in favor of the defendant. Instead of Texas substantive law, the majority applies by analogy the defendant's suggested extension of a prior Erie guess as to the meaning of LPLA § 2800.56. Furthermore, instead of the federal test for sufficiency of evidence to create a jury question, the majority applies a sufficiency of quantification of risk and utility evidence test derived from the same extension of a prior Erie guess as to the substantive meaning of LPLA § 2800.56.

I respectfully dissent. The majority's approval of the defendant's assertion of a ground for JMOL that was not included in its motions for JMOL in the district court is a constitutionally impermissible re-examination of the jury's verdict. The majority's adoption of the defendant's assertion causes the court to disregard the controlling principles of Texas and federal law. The Constitution as interpreted by Erie dictates that this court apply the law of Texas defining the substantive rights and obligations of the parties as that state's highest court would apply it, not Louisiana substantive law as we determine how its highest court would apply that sister state's law.^{Footnote 1} Furthermore, it is firmly established that courts in this Circuit, in diversity cases, employ a federal rather than a state-law-based test to determine the sufficiency of evidence to create a jury question. Boeing Co. v. Shipman,  411 F.2d 365, 368 (5th Cir.1969) (en bane) ("It is well settled in this Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question."), overruled in part on other grounds, Gautreaux v. Scurlock Marine, Inc.,  107 F.3d 331 (5th Cir.1997) (en bane); see also, e.g., In re Air Crash Disaster Near New Orleans,  821 F.2d 1147, 1159 (1987) (en bane) vacated in part on other grounds sub nom. Pan American World Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989); Borel v. Fibreboard Paper Products Corp.,  493 F.2d 1076, 1092 (5th Cir. 1973). Faithful adherence to the foregoing principles of federal constitutional and state law requires that we affirm the judgment of the district court.

1.

The plaintiff, a cable television lineman, was thrown from the top of a twenty-foot ladder manufactured by the defendant, and suffered severe, disabling spinal injuries. He was hurled to the ground with great centrifugal force after the ladder, which was attached with open U-shaped hooks to a cable near the one he was

preparing to repair, slid sideways, causing one of the hooks to become unhooked. This in turn made the ladder twist forcefully at the end of its slide, causing the plaintiff to lose hold and be thrown violently to the street below. The district court, in denying the defendant's motion for JMOL, rejected defendant's arguments that the evidence as a whole (including circumstantial evidence, testimony of defendant's witnesses, and plaintiffs expert design engineer's tests, explanations, and opinions) was not legally sufficient to support the jury's findings that (1) there was a safer alternative closable cable hook design that would have reduced the risk of the personal injury, making the cable hook, as designed, unreasonably dangerous; (2) the defendant failed to adequately warn users of the danger that, during a ladder slide, the open U-shaped cable hook could come loose from the cable, cause the ladder to twist violently, and hurl a user to the ground with extra-gravitational force; and (3) the ladder's cable hooks as designed were unfit to fulfill their ordinary purpose and use.

2.

On appeal, the defendant asserts a new ground in support of its motion for a JMOL, based on the Louisiana and Mississippi statutes, which was not included in its JMOL motions in the district court. The majority deprives the plaintiff of his Seventh Amendment right to a jury trial by granting a JMOL on a non-Texas and non-federal ground not asserted in the district court.

It is well-settled in this circuit that a motion for JMOL filed post verdict cannot assert a ground that was not included in the motion for JMOL made at the close of the evidence.^{Footnote 2} See, e.g., Brown v. Bryan

County, OK,  219 F.3d 450, 465-66 (5th Cir.2000); Morante v. Am. Gen'l Fin. Center,  157 F.3d 1006,1010 (5th Cir.1998); see also Allied Bank-West, N.A. v. Stein,  996 F.2d 111, 115 (5th Cir.1993) (explaining that, under Rule 50, a motion for directed verdict is "virtually jurisdictional" so that a motion for judgment n.o.v. cannot assert a ground that was not included in the motion for directed verdict); Perricone v. Kansas City Southern Ry. Co.,  704 F.2d 1376, 1380 (5th Cir. 1983). In Sulmeyer v. Coca Cola Co., we held that "[i]t would be a constitutionally impermissible re-examination of the jury's verdict for the district court to enter judgment n.o.v. on a ground not raised in the motion for directed verdict."  515 F.2d 835, 846 n. 17 (5th Cir.1975); see also 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2537 at 344-45, § 2540 at 368-69 (West 1995 & supp.2000).

In McCann v. Texas City Refining, Inc.,  984 F.2d 667 (5th Cir.1993), this court gave expression to the self-evident principle that a court of appeals' re-examination of a jury's verdict to enter a JMOL on a ground not raised in the party's JMOL motion at the close of evidence is also constitutionally impermissible. The McCann court held that (1) "Rule 50(a) requires a motion for a directed verdict to state the specific grounds^{Footnote 3} for granting the motion[;] [a] party may not base a motion for JNOV on a ground that was not

included in a prior motion for a directed verdict"; and (2) " 'It would be a constitutionally impermissible re-examination of the jury's verdict for the district court [or this Court] to enter judgment n.o.v. on a ground not raised in the motion for directed verdict.'" 984 F.2d at 672 (quoting Sulmeyer, 515 F.2d at 846 n. 17) (brackets and included material added by McCann court) (emphasis added). Under the clear mandate of this court's previous decisions, the majority here should not have even considered the ground for JMOL urged on appeal by defendant-that it was entitled to JMOL under this court's Erie guesses regarding Louisiana and Mississippi products liability law-which was not included in its JMOL motions at the close of plaintiffs case and at the close of all the evidence. See id. at 671 (citing Scheib v. WilliamsMcWilliams Co.,  628 F.2d 509, 511 n. 1 (5th Cir.1980)), and at 672; see also Alcatel USA, Inc. v. DGI Technologies, Inc.,  166 F.3d 772, 780 (5th Cir.1999); Purcell v. Seguin State Bank & Trust Co.,  999 F.2d 950, 956-57 (5th Cir.1993).

3. "It clearly is settled that the right of jury trial in a case lodged in a federal court is governed by federal law and that state law has no application." 9A WRIGHT & MILLER, supra, § 2525 at 266; see also id. § 2303 at 63 ("The complete dominance of federal law in the area of jury trial rights is clear.") (citing Goar v. Compania Peruana de Vapores,  688 F.2d 417, 423 (5th Cir.1982); Hensley v. E.R. Carpenter Co.,  633 F.2d 1106,1110 n. 5 (5th Cir.1980); Nunez v. Superior Oil Co.,  572 F.2d 1119, 1125 (5th Cir.1978); Ammams v. Franklin Life Ins. Co.,  348 F.2d 414, 416 (5th Cir. 1965)). In this Circuit, it is equally well established "that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question." Boeing, All F.2d at 368 (5th Cir. 1969) (citing Helene Curtis Indus., Inc. v. Pruitt,  385 F.2d 841 (5th Cir.1967); Planters Mfg. Co. v. Protection Mut. Ins. Co.,  380 F.2d 869 (5th Cir.1967); Revlon, Inc. v. Buchanan,  271 F.2d 795, (5th Cir.1959); Renter v. Eastern Air Lines,  226 F.2d 443 (5th Cir. 1955)). In Boeing, this court explained: "Federal courts must be able to control the factfinding processes by which the rights of litigants are determined in order to preserve 'the essential character' of the federal judicial system. Of course, we do not contend that this control will not affect state-created substantive rights in some cases. Ultimately, however, the integrity of our factfinding processes must outweigh considerations of uniformity." 411 F.2d at 369-70 (citing Herron v. Southern Pac. Co.,  283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Byrd v. Blue Ridge Rural Elec. Coop.,  356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Note, State Trial Procedure and the Federal Courts: Evidence, Juries, and Directed Verdicts Under the Erie Doctrine, 66 HARV.

L.REV. 1516, 1525 (1953)). There are many other persuasive statements of the reasons for the rule. See, e.g., Wratchford v. S.J. Groves & Sons Co.,  405 F.2d 1061, 1065-66 (4th Cir.1969) ("An equally grave disruption of the federal system would result from the application of state law rules as to the sufficiency of evidence to go to the jury. Indeed, it has been suggested, not without reason, that the Seventh Amendment commands application of federal rather than state law here. Faith in the ability of a jury, selected from a cross-section of the community, to choose wisely among competing rational inferences in the resolution of factual questions lies at the heart of the federal judicial system. That faith requires consistency within the system and does not permit the accommodation of more restrictive state laws."); 9A WRIGHT & MILLER, supra § 2525, at 271 ("In the occasional case in which there is a measurable difference between the state and federal rules on the sufficiency of evidence to create a jury issue, principle seems to require that the federal court apply the federal test. Any other result would be difficult to reconcile with the Herron case and with the pro-

nouncement in Byrd v. Blue Ridge Rural Electric Cooperative, Inc., that there is 'a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts' and that this policy outweighs the policy of the Erie doctrine."). In many other circuits it is now settled that a federal test controls on the question of sufficiency of the evidence. See 9A WRIGHT & MILLER, supra § 2525 at 272 & n. 19.

4.

The Supreme Court, in Reeves v. Sanderson Plumbing Products, Inc., articulated the federal test for sufficiency of evidence to create a jury issue in a case concerning "the kind and amount of evidence necessary to sustain a jury's verdict that an employer unlawfully discriminated on the basis of age." ^{Footnote 4}

 530 U.S. 133, 120 S.Ct. 2097, 2102, 147 L.Ed.2d 105 (2000). "Under Rule 50, a court should render judgment as a matter of law when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Id. at 2109 (quoting FED. CIV.

P. 50(a) and citing Weisgram v. Marley Co.,  528 U.S. 440, 120 S.Ct. 1011, 101618, 145 L.Ed.2d 958 (2000)). In Reeves, the Court noted that the courts of appeals have articulated differing formulations as to what evidence a court is to consider in ruling on a Rule 50 motion, although "most have held that review extends to the entire record, drawing all reasonable inferences in favor of the nonmovant." Id. at 2110 (citing Tate v. Government Employees Ins. Co.,  997 F.2d 1433, 1436 (11th Cir.1993); Boeing, 411 F.2d at 374). Moreover, the Reeves Court observed, "[i]n the analogous context of summary judgment under Rule 56, we have stated that the court must review the record 'taken as a whole.' " Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,  475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "And," the Court stated, "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that 'the inquiry under each is the same.' " Id. (quoting Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 250-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); citing Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Accordingly, the Court concluded that "in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record." Id.

Further, the Court in Reeves set forth principles for courts to follow in reviewing all of the evidence in the record: [T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.

Credibility determinations, the weighing R. of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.

That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.

Id. (internal quotations and citations omitted). ^{Footnote 5}

5. a.

Before applying the federal test articulated by the Supreme Court in Reeves for the sufficiency of evidence to create a jury question to the relatively few factual issues in dispute, the Constitution, per Erie, requires that we focus on the pertinent Texas substantive law. Contrary to the majority opinion, the Texas jurisprudence on safer alternative design is richly developed.

The Texas Supreme Court and appeals courts have drawn on common law, statutes, and the Restatements in expounding the state's products liability laws. The basic principles of section 402A of the Restatement (Second) of Torts govern claims of strict liability in tort by users or consumers for physical harm caused by a seller's defective and unreasonably dangerous product. The American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex.

1997); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-789 (Tex.1967). A product may be unreasonably dangerous because of a defect in marketing, design, or manufacturing. Caterpillar, Inc. v.

Shears, 911 S.W.2d 379, 382 (Tex.1995).

The alleged design defect of the defendant's cable hook was causally related to Mr. Smith's being thrown from the ladder with centrifugally increased gravitational acceleration and not to the lateral slide that began the ladder accident. Nevertheless, the same rules of strict liability govern cases in which the defect caused the initial accident and cases in which the defect caused or aggravated the injuries. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 745 (Tex.1980); Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex.1979).

In Turner v. General Motors Corp., the Texas Supreme Court discussed the strict liability standard of "defectiveness" as applied in design defect cases. The court held that, in a design defect case, evidence is admissible upon the factors of risk and utility, such as the product's utility to users and to the public as a whole balanced against the likelihood and severity of injury from its use; the availability of an alternative product that would fill the same need without being unsafe or unreasonably costly; the ability to eliminate the product's unsafe character without significantly impairing its utility or increasing its cost; the consumer's awareness of the product's inherent dangers; the avoidabili-