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United States Court of Appeals,
Fifth Circuit.
No. 903800.
Carol Francis DAVIS, Wife of/and Cornelius Louis Davis, III, PlaintiffsAppellants,
CrossAppellees,
and
Loretta Cay Noble, et al., PlaintiffsAppellants,
v.
AVONDALE INDUSTRIES, INC., IntervenorAppellee,
v.
AUFHAUSER BROTHERS CORPORATION and Engelhard Corporation,
DefendantsAppellees, CrossAppellants.
Oct. 16, 1992.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Carol Frances Davis (Davis) appeals the reduction of her jury award for
damages in her product liability and negligence action. Defendants-appellees-cross-appellants
Engelhard Corp. (Engelhard) and Aufhauser Brothers Corp. (Aufhauser), appeal the judgment against
them on the ground that the trial judge refused their requested jury instruction. Because we find that
the trial court erred in refusing to include the substance of this instruction in its charge to the jury,
we reverse and remand. We do not reach the issues raised in Davis' appeal.
Facts and Proceedings Below
Davis, a welder employed by Avondale Industries, Inc. (Avondale), a ship-builder, contracted
various lung diseases from breat hing fumes emitted during the use in her employment of
cadmium-based brazing rods furnished by Avondale. The rods were manufactured by Engelhard and
were distributed by Aufhauser to Avondale. Avondale paid Davis workers' compensation benefits

of roughly $26,000 and medical benefits of roughly $5,000 pursuant to the Longshoremen's and
Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA).
Davis brought a product liability suit against Engelhard and Aufhauser on theories of negligent
failure to warn and the strict liability product defect of insufficient warning. She alleged that
Engelhard and Aufhauser should have warned her about the dangers of fumes emitted during use of
the brazing rods. Evidence adduced at trial tended to show that Davis and Avondale were familiar
with the dangers of exposure to the fumes emitted by the brazing rods. The defendants requested,
and the district court refused, an instruction stating in substance that a manufacturer has no duty to
warn employees of a sophisticated purchaser who furnishes the product to its employees for their use,
is aware of the possible health hazards associated with the product's use, and is under a duty to warn
its employees thereof. The district judge based his refusal on the ground that the substance of the
requested instruction was already covered in the charge as given.
The jury found for the plaintiff in the amount of $250,000 in damages, and for her husband,
for loss of consortium, in the amount of $27,500. In response to a speci al interrogatory, the jury
found Engelhard and Aufhauser collectively forty percent at fault, Avondale twenty-nine percent at
fault and Davis thirty-one percent at fault for Davis' injuries. The district court reduced Davis'
judgment by the proportional amounts of both her own and Avondale's negligence as found by the
jury. The district court then reduced Avondale's reimbursement for LHWCA compensation paid by
its own proportional negligence. Davis appeals the district court's judgment, complaining that her
recovery should not have been reduced by Avondale's proportional negligence.1
Avondale, though it did not file a notice of appeal, has filed a brief arguing that its
reimbursement should not have been reduced by the amount of its proportional negligence because
of an earlier stipulation and because such a reduction is prohibited by the LHWCA.
1Davis appeals the reduction only of her award, not her husband's.

Engelhard and Aufhauser cross-appeal urging that the district court committed reversible error
in refusing to include their requested "sophisticated purchaser" instruction in the jury charge.
Discussion
We initially dismiss any request for relief made by Avondale on appeal because it did not file
a notice of appeal. Fed.R.App.P. 3(a).
Because Engelhard's and Aufhauser's cross-appeal concerns the validity of the jury's verdict
against Engelhard and Aufhauser, we shall consider the cross-appeal first.
Engelhard and Aufhauser requested that the following instruction (among others) be
submitted to the jury:
"When a manufacturer or distributor sells an industrial product to a sophisticated
purchaser, and that purchaser then supplies the product to its employee for use, the
manufacturer and distributor have no legal duty to provide any warnings to the employee/user
concerning possible health hazards associated with the product's use. A sophisticated
purchaser is one who by experience and expertise is aware of the possible health hazards
associated with the use of the product, and who has an obligation to inform its employees of
such potential health hazards. Therefore, if you find that Avondale is a sophisticated
purchaser of brazing alloys, then you must return your verdict in favor of defendants."
The district court overruled t he objection of cross-appellants to the charge for failing to
include this requested instruction because "that instruction is implicit in the other instructions that I
gave."
The charge actually given to the jury by the district court was, in relevant part, as follows:
"In considering the adequacy of the warning, you must consider the knowledge and expertise
of those who may reasonably be expected to use or otherwise come in contact with the
product as it proceeds along its intended marketing chain. The manufacturer or supplier is
obligated to warn the user of potential dangers of which the manufacturer or supplier is
aware, and which it would reasonably anticipate. Adequate warnings are required as to all
foreseeable uses or misuses of the product.

. . . . .
... I also instruct you that a manufacturer and/or supplier has a duty to give notice or warning
of dangerous qualities of the article it manufactures or supplies if those qualities are not
apparent to the user. If the product is dangerous to human life if improperly used and if the
danger is not apparent to the user, and if the manufacturer or supplier can foresee a
substantial risk that the product may be improperly used, the manufacturer or supplier must
notify the public by labels or instructions regarding the manner in which the articles may be
safely used.
However, there is no duty to warn a person of a danger that is obvious or a danger
which he or she knows about. A manufacturer or distributor is not compelled to warn
knowledgeable users or buyers of dangers which the user or buyer either knows or should be
aware of based upon his or her knowledge or experience. The manufacturer's or distributor's
duty extends to non-apparent dangers or foreseeable risks in the use of the product.
You must also consider whether Plaintiff's injuries, if any, resulted in whole or in part
from any negligence on the part of Avondale Industries. The term "negligence' as applied to
Avondale Industries is as defined and previously explained to you. Specifically, Avondale
could be found partly or wholly liable for what happened if it was negligent in training or
failing to pass on the warnings to Plaintiff and such negligence was a proximate cause of
Plaintiff's injuries. Defendants have the burden of proving this defense by a preponderance
of the evidence."
Under Louisiana law, a manufacturer has no duty to warn a sophisticated user. The
Louisiana Products Liability Act provides that: "A manufacturer is not required to provide an
adequate warning about his product when ... [t]he user or handler of the product already knows or
reasonably should be expected to know of the characteristic of the product that may cause damage
and the danger of such characteristic." La.Rev.Stat.Ann. § 9:2800.57(B)(2) (West 1991). See also
Duncan v. Louisiana Power & Light Co., 532 So.2d 968, 972 (La.App., 5th Cir.1988) ("There is no
duty to warn a sophisticated user of dangers of which he may be presumed to know through his
familiarity with the product."); Gautreaux v. TexSteam Co., 723 F.Supp. 1181, 1182
(E.D.La.1989), aff'd, 921 F.2d 274 (5th Cir.1990) (table).
Similarly, a manufacturer has no duty to warn a sophisticated purchaser. "... Louisiana does
not hold a manufacturer is compelled to warn sophisticated purchasers of dangers of which the buyer
either knows or should be aware." Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co., 532
F.2d 501, 504 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1111, 51 L.Ed.2d 542 (1977).

Here, Avondale was clearly both a user and a purchaser of the rods in question.
Finally, though no Louisiana case has clearly addressed the issue, see Mozeke v. International
Paper Co., 933 F.2d 1293, 1297 & n. 2 (5th Cir.1991), we conclude that Louisiana courts would
likely hold that in a setting such as this the product manufacturer owes no duty to the employee of
a purchaser if the manufacturer provides an adequat e warning of any inherent dangers to the
purchaser o r if the purchaser has knowledge of those dangers and the duty to warn its employees
thereof. See West v. Hydro-test, Inc., 196 So.2d 598, 606 (La.App. 1st Cir.1967).2 Many courts
hold that the supplier of a pro duct to an employer discharges any duty to warn the purchaser's
employees by warning their employer, and that no warning to either is required if the employer is
already aware of the hazard. City of Jackson v. Ball, 562 So.2d 1267, 1270 (Miss.1990); Pridgett
v. Jackson Iron & Metal Company, 253 So.2d 837, 84344 (Miss.1971); Cook v. Barnick Mfg., Inc.,
736 F.2d 1442, 1446 (11th Cir.1984) (Alabama law); Martinez v. Dixie Carriers, 529 F.2d 457, 466
(5th Cir.1976);3 Goodbar v. Whitehead Bros., 591 F.Supp. 552, 559 (W.D.Va.1984) ("in Virginia
there is no duty on product suppliers to warn employees of knowledgeable industrial purchasers as
to product-related hazards"), aff'd. sub nom. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985) ("The
district court correctly analyzed this issue under the Restatement (Second) of Torts § 388"); Byrd
v. Brush Wellman, Inc., 753 F.Supp. 1403, 1405 (E.D.Tenn.1990) (same); Higgins v. E.I. DuPont
de Nemours, Inc., 671 F.Supp. 1055, 105859 (D.Md.1987); Morsberger v. Uniking Conveyer
2Though this principle is a creature of the common law and predates the enactment of the
Louisiana Products Liability Act, La.Rev.Stat.Ann. § 9:2800.51 et seq. (West 1991), this Court
has applied in cases governed by Louisiana law other common law products liability doctrines,
such as the learned intermediary doctrine, after the enactment of La.Rev.Stat.Ann. § 9:2800.57.
See Willett v. Baxter Intern., Inc., 929 F.2d 1094, 1098 (5th Cir.1991).
3In Dixie Carriers we relied in part on Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d
1263 (9th Cir.1969), which we described as holding that
"the manufacturer of the cable could not be held strictly liable for the foreman's
death, since the decedent's employer should have known and actually did know the
dangers inherent in the use of the cable in the tightening device. The manufacturer
had no duty to warn the purchaser of its cables of dangers already known by the
purchaser and its supervising personnel." Dixie Carriers at 466.

Corp., 647 F.Supp. 1297, 1299 (W.D.Va.1986) ("in Virginia a manufacturer owes no § 388(c) duty
to warn an employee of a knowledgeable industrial purchaser"). So far as a claim by an employee
of a purchaser is concerned, in any instance where a seller's actual warning to the purchaser would
discharge any duty of the seller to warn the purchaser's employees it logically follows that the seller
is likewise discharged of the duty to warn the employee if the seller has no duty to warn the employer
because of the latter's sophistication.
We recognize, however, that certain courts have indicated that whether the seller has a duty
to warn third parties may depend on whether the seller has reason to assume that the purchaser will
do so. It is usually held that the seller may so assume where the purchaser is a sophisticated user and
the third parties are employees of the purchaser whom it has a duty to warn or protect. In Adams v.
Union Carbide Corp., 737 F.2d 1453, 1457 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545,
83 L.Ed.2d 432 (1984), the court sustained summary judgment for the supplier concluding that
because the employer regularly received updated information from the supplier and had a duty to its
employees to provide them a safe place to work, the supplier as a matter of law could reasonably rely
on the employer to provide its employees adequate warnings or protection. See also Smith v. Walter
C. Best, Inc., 927 F.2d 736, 74044 (3d Cir.1990); Purvis v. PPG Industries, 502 So.2d 714,
72021 (Ala.1987).4 This concept was embodied in the requested instruction's requirement that
Avondale be "one who by experience and expertise is aware of the possible health hazards associated
with the use of the product, and who has an obligation to inform its employees of such potential
health hazards." Davis do es not (and did not) question the accuracy of the requested instruction
under Louisiana law.5 Moreover, the undisputed evidence reflects that one in the position of the
suppliers would have reason to believe that Avondale, which had an extensive work place safety
4But see Willis v. Raymark Industries, 905 F.2d 793, 797 (4th Cir.1990) (supplier must show
not only employer knowledge but also that "it had reason to believe that the employer was or
would be acting to protect the employees").
5And, as noted, the district court refused the instruction only because it concluded that it was
"implicit in the other instructions" given.

program including hazardous substance and brazing operations, would act to protect its employees.
That makes particular sense where, as here, the potentially dangerous item is a consumable product.
Engelhard and Aufhauser do not dispute that the charge as given did adequately inform the
jury of the sophisticated user defense in the context of Davis as a sophisticated user. The crux of the
disagreement between Davis and these defendants, then, and the critical issue in their cross-appeal,
is whether the charge adequately informed the jury that if Engelhard and Aufhauser were successful
in proving that Avondale was a sophisticated purchaser,6 then the defendants owed no duty to warn
Davis.
We agree with Engelhard and Aufhauser that the charge as given did not adequately instruct
the jury on this legal theory. Though the charge addresses the sophisticated user/purchaser doctrine
in the context of Avondale and Davis severally, it does not instruct that Engelhard and Aufhauser
owed no duty to warn Davis if Avondale was, itself, a sophisticated purchaser with a duty to warn
Davis.
At best, the charge as given instructed that Engelhard and Aufhauser owed no duty to Davis
to warn her of dangerous conditions if she was a "knowledgeable user," and owed no duty to
Avondale to warn it of similar dangers if it was a "sophisticated buyer." Even with the further
instruction that Avondale may have been, through its negligence, wholly or partially responsible for
Davis' injuries, the charge as a whole does not even arguably convey the concept that Engelhard's and
Aufhauser's dut y to Davis may be completely discharged by Avondale's status as a sophisticated
purchaser with a duty to warn it s employees of the relevant hazard. What this latter part of the
court's instructions, and the charge as a whole, lacked was any communication of the concept that
6Davis does not dispute that there was sufficient evidence presented at trial to support a
finding that Avondale was a sophisticated purchaser with a duty to warn its employees such as
Davis of the relevant potential health hazards; indeed, the evidence in this respect was, at the
least, extremely strong.

if Avondale was knowledgeable with regard to the relevant hazards and had a duty to warn Davis
thereof, then it was not Engelhard's or Aufhauser's duty to warn Davis, whether or not Davis was a
sophisticated user.
We note that somewhat similar instructions to those given in this case were held by this Court
in Mozeke not to amount to an instruction that the manufacturer of the dangerous product owed no
duty to warn to an employee of the sophisticated purchaser.7
The district court has, of course, broad discretion in formulating the charge. Bradshaw v.
Freightliner Corp., 937 F.2d 197, 200 (5th Cir.1991); Barton's Disposal Service, Inc. v. Tiger
Corp., 886 F.2d 1430, 1434 (5th Cir.1989). It is under no obligation to couch the charge in terms
requested by counsel. Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985). On appeal,
the charge must be considered as a whole, and so long as the jury is not misled, prejudiced, or
confused, and the charge is comprehensive and fundamentally accurate, it will be deemed adequate
and without reversible error. Bradshaw, supra, 937 F.2d at 200. This Court will only reverse when
the charge as a whole leaves us with a substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations. Treadaway v. Societe Anonyme LouisDreyfus, 894 F.2d 161,
16768 (5th Cir.1990); Barton's Disposal Service at 1435.
Nevertheless, a defendant is "entitled to the submission of an appropriate instruction on its
theory of defense," Hornsby Oil Co., Inc. v. Champion Spark Plug Co., 714 F.2d 1384, 1397 (5th
Cir.1983), and we have not hesitated to reverse where, despi te proper request and objection, the
charge fails to in any adequate way present a theory of defense, or recovery, properly raised by
7In Mozeke the verdict was for the defendant, and the plaintiff on appeal contended that the
charge eliminated the defendant's duty to warn the employee if the employer were found to be a
sophisticated purchaser. We held that the charge did not have that effect, but spoke in that
respect only to the duty to warn the employer, so that the charge's general duty to warn language
applied to the duty to warn the employee. We hence did not reach the issue of whether the
charge would have been correct if it had the effect plaintiff claimed.

evidence. See, e.g., Barton's Disposal Service at 143537; Leonard v. Aluminum Co. of America,
800 F.2d 523 (5th Cir.1986); Hornsby Oil Co.; McClendon v. Reynolds Electrical and
Engineering, 432 F.2d 320, 32223 (5th Cir.1970); Lind v. Aetna Casualty and Surety Company,
374 F.2d 377, 380 (5th Cir.1967). That is the situation here, and reversal is accordingly required.
Because of our disposition of Engelhard's and Aufhauser's cross-appeal, we express no
opinion on the issues raised in Davis' appeal, there being no assurance that the jury in any retrial will
find both Avondale and EnglehardAufhauser at fault.
Conclusion
We hold that the district court erred in refusing to in any way cover in the charge the theory
of defense raised by the evidence and presented by Engelhard's and Aufhauser's proffered jury
instruction, and we accordingly reverse and remand for another trial.
REVERSED AND REMANDED.