New Longshore Case from Fifth Circuit Court of Appeals – Jowers v. Lincoln Elec. Co.

New welding fume/government contractor defense case (with LHWCA discussion) from the Fifth Circuit Court of Appeals. The case is Jowers v. Lincoln Elec. Co., 2010 U.S. App. LEXIS 17862 and can be found here. Facts: A worker was exposed to manganese fumes while working on Navy ships. He developed Manganese-induced Parkisonism and brought suit against the manufacturers of the welding rods alleging state law claims of failure-to-warn. Originally set in Multi-District Litigation, the court remanded the case to Mississippi for trial. The jury found for plaintiff, albeit with a comparative negligence reduction of the award. Law: The appeal asserted four grounds: 1) erroneous jury instruction on the government contractor defense; 2) improper admission of documentary evidence; 3) erroneous denial of apportionment to the worker's employer; and 4) punitive damages were unsupported. On the government contractor defense, the Court said: The government contractor defense preempts state law and provides a total bar to liability in a failure-to-warn case if a defendant establishes three elements: (1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the defendant provided about the product conformed to the federal government specification; and (3) the defendant warned the federal government about dangers known to the defendant but not the government. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). The trial court instructed the jury that in order for the government contractor defense to be operative, the contractor had to establish that the "United States Government had an identifiable Federal interest or policy in the existence of methods of warnings on welding products" and that "there was a significant conflict between this Federal interest or policy and the requirements of Mississippi law regarding the provision of adequate warnings." The appeals court rejected this instruction as a matter of law for the court to decide and not within the jury's purview. The appeals court, however, found that the defendants had not established that they were factually entitled to the defense since their warning labels failed to comply with the federal government's specifications. The defendants argued that the court improperly admitted documents that were over 20 years old, asserting that they were too temporally remote to be relevant. Finding them probative and relevant under the Federal Rules of Evidence and Mississippi law, the court found no error. The defendants argued that fault for the plaintiff's injuries should have been apportioned with his employer and that failure to let the jury do so was error. The plaintiff could not bring state law claims against his employer because of the Longshore and Harbor Workers Compensation Act. The Act does permit suit against third parties that contribute to injuries. The appeals court found that the trial court had improperly failed to allow the jury to allocate among all tortfeasors, even ones immune from suit like a Longshore employer. As such, the compensatory damage award was vacated. Because the compensatory damages award was vacated, the court vacated the punitive damage award too. Side note: apparently the plaintiff's counsel alleged that the defendants "misrepresented the record." The court cautioned: Misrepresentation of the record is a very serious charge and this court does not take such allegations lightly. This was a highly contested case with compelling evidence supporting both sides' arguments. The Manufacturers were within their right to present evidence in their briefing as persuasively as possible, which in no way constitutes a misrepresentation of the record. We caution Jowers' counsel against making such unfounded claims in the future.

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