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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 23, 2004
FOR THE FIFTH CIRCUIT
_____________________
Charles R. Fulbruge III
Clerk
No. 04-30118
_____________________
TRUDY MALBROUGH,
Plaintiff - Appellee,
versus
CROWN EQUIPMENT CORP.,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Trudy Malbrough suffered a crippling injury while operating a
forklift manufactured by Crown Equipment Corporation. She brought
suit against Crown under the Louisiana Products Liability Act
("LPLA") alleging a defect in the design of the forklift. Crown
filed a motion in limine to exclude Malbrough's expert witness on
the design defect issue. The district court granted the motion to
exclude, but denied Crown's motion for summary judgment.
Crown received permission from the district court to appeal
the interlocutory order denying summary judgment. We granted leave
to appeal, under our authority under 28 U.S.C. § 1292(b). Having
reviewed the issue raised in Crown's petition, we find no
reversible error and therefore AFFIRM.

I
Trudy Malbrough was injured while operating a Crown "stand-up"
forklift at the Wal-Mart warehouse distribution center where she
worked. The injury occurred when Malbrough, in an effort to avoid
a collision with another forklift, applied her brakes, causing her
left foot to swing out of the unenclosed operator compartment and
be crushed between the two machines as they collided.
Malbrough brought suit against Crown under the LPLA, claiming
that the lack of a door to the operator compartment of the stand-up
forklift constitutes a design defect. Malbrough intended to
present expert testimony on the design defect issue at trial, but
the district court granted Crown's motion in limine to exclude her
expert witness "due to [Malbrough]'s ... failure to timely meet
discovery deadlines". Crown then moved for summary judgment,
arguing that the LPLA requires expert testimony in order to make
out a prima facie case of defective design. The district court,
however, denied Crown's motion, concluding that an unassisted
trier-of-fact would be capable of understanding whether a door
should have been incorporated into the forklift.
Crown filed a motion for reconsideration, or in the
alternative, to appeal the denial of its motion for summary
judgment. The district court denied the motion for
reconsideration, but granted permission to appeal. In its order,
the district court observed that "Crown's motion for summary
2

judgment involves a `controlling question of law'", but did not
specify the precise legal question it was certifying for
interlocutory review. This court nonetheless granted Crown's
petition for leave to appeal from the district court's
interlocutory order denying summary judgment.
II
We review the denial of summary judgment de novo. Walker v.
Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). We
emphasize, however, the limited scope of our review. This court's
appellate jurisdiction under § 1292(b) extends only to
interlocutory orders that involve a "controlling question of law".
The underlying issue of whether Malbrough has presented sufficient
evidence to show a "genuine issue ... [of] material fact", and thus
avoid summary judgment under FED. R. CIV. P. 56(c), is not a question
of law within the meaning of § 1292(b). See Ahrenholz v. Board of
Trustees of University of Illinois, 219 F.3d 674, 676-77 (7th Cir.
2000). As such, although the district court's order granted Crown
general permission to "appeal the denial of ... summary judgment",
our review is limited to the narrow question of statutory
interpretation raised by Crown in both its brief before us and its
memorandum in support of the motion for summary judgment.
Crown asserts that the controlling question of law in this
case is whether "[t]he Louisiana Products Liability Act requires
Plaintiff to put forth expert testimony in support of her design
3

defect claim against Crown". Put more precisely as a purely legal
question, Crown's argument is that, as a matter of statutory
interpretation, the LPLA requires expert testimony in every
instance in which a design defect is alleged. We are unable to
agree.
First, and most significantly, the plain language of the LPLA
does not support Crown's position. The LPLA requires that a
plaintiff advancing a design defect claim show, inter alia, that
"[t]he likelihood that the product's design would cause the
claimant's damage and the gravity of that damage outweighed the
burden on the manufacturer of adopting such alternative design and
the adverse effect, if any, of such alternative design on the
utility of the product". LA. REV. STAT. ANN. § 9:2800.56. No
language or provision of the statute requires that a cause of
action alleging a design defect must, as a matter of law, be
supported by expert testimony. To the extent the statute allocates
burdens of proof or production, it simply states that "[t]he
claimant has the burden of proving the elements of [his or her
claim]". LA. REV. STAT. ANN. § 9:2800.54.
It is therefore unsurprising that Louisiana case law does not
support Crown's reading of the statute. None of the Louisiana
cases cited by Crown suggests that a plaintiff must always prove
4

her prima facie design defect case with expert testimony and may
never rely on lay testimony alone.1
This lack of Louisiana authority is reflected in Lavespere v.
Niagara Machine & Tool Works, Inc., where we remarked that the LPLA
does not mandate "that the plaintiff ... in every case, introduce
evidence that details and quantifies the risk avoided and the
burden incurred" in order to present a prima facie case of
defective design. 910 F.2d 167, 184 (5th Cir. 1990). We further
observed that "there may be cases in which the judge or jury, by
relying on background knowledge and `common sense,' can `fill in
the gaps' in the plaintiff's case" and thus undertake the utility
balancing required by the LPLA without the aid of expert
testimony.2 Id.
Although, given the record thus far made, it may be difficult
or impossible for this case to be successfully tried without
plaintiff's expert testimony, we have no jurisdiction on
interlocutory appeal to review the district court's weighing of the
1 To be sure, in each case cited by Crown, expert testimony
proved essential to the final disposition. Crown argues that,
because "not one" of these cases "d[id] not require expert
testimony", we should interpret them as supporting the proposition
that the LPLA requires expert testimony in all design defect cases.
Crown's argument must be rejected as a matter of simple logic. One
cannot infer from the widespread use of expert testimony that the
LPLA mandates such testimony in every design defect case.
2 Crown argues that both statements in Lavespere are dicta.
We do not rely on those statements for controlling authority; in
any event, we leave that issue for another day.
5

evidence. Consequently, we hold that the district court did not
err in refusing to recognize a per se requirement of expert
testimony in all design defect cases under the LPLA.
III
For the reasons set forth above, the order of the district
court is
1
AFFIRMED.
6