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United States Court of Appeals,
Fifth Circuit.
No. 924139
Summary Calendar.
Timothy C. COTITA, PlaintiffAppellant,
v.
PHARMAPLAST, U.S.A., INC., DefendantAppellee.
Oct. 8, 1992.
Appeal from the United States District Court for the Western District of Louisiana.
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
This is a products liability action. Timothy C. Cotita ("Cotita") seeks review of a jury verdict
in his favor, contesting the amount of damages awarded to him. We find no error and affirm.
Background and Procedural History
Cotita is a registered nurse. While providing nursing services to an AIDS patient, Cotita was
stuck by a syringe manufactured by the DefendantAppellee, PharmaPlast, U.S.A., Inc.
("PharmaPlast"). The syringe, although still in its sterile packaging, was missing the protective cap
that normally covers the tip of the needle. This improper packaging allowed the needle to pierce its
sterile plastic covering and penetrate the protective gloves that Cotita was wearing. Because of the
presence of the patient's blood on his gloves at the time of the needle stick, Cotita feared that he had
been exposed to the HIV virus. Subsequent tests revealed that Cotita was not HIV-positive;
nevertheless, he sued PharmaPlast seeking damages for mental anguish stemming from his fear of
contracting AIDS.
PharmaPlast admitted defective packaging and the district court granted summary judgment
in Cotita's favo r on the issue of the defective state of the syringe. The issue of damages was

specifically reserved for trial.
PharmaPlast then moved for leave to amend its answer to assert for the first time the defense
of Cotita's negligence. With the trial set for the following month, the district court denied this
motion. Later trial in this matter was continued. Thereafter, PharmaPlast re-submitted its motion
for leave to amend, which was granted over Cotita's obj ection. Cotita also objected to the
introduction of evidence concerning his negligence, contending that the issue of fault was closed by
the court's previous entry of summary judgment on the issue of PharmaPlast's liability as the
manufacturer of the defectively packaged syringe.
The damage issue was tried before a jury which returned a verdict for $150,000 in Cotita's
favor. This amount was reduced by 30 percent, a figure which the jury found reflected Cotita's
negligence. Cotita maintains that the issue of his negligence should not have been considered by the
jury, nor used to reduce the amount of his award.
Issues
There are two basic issues presented. First, did the district court err in allowing PharmaPlast
to amend its answer to assert Cotita's negligence? Second, was it error for the district court to
preclude Cotita from presenting any additional evidence of PharmaPlast's fault.
Discussion
1. Amendment of the Pleadings.
Federal Rule of Civil Procedure 15(a), states in pert inent part, "[A] party may amend the
party's pleading only by leave of court ... and leave shall be freely given when justice so requires."
This Court has consistently held that the "granting or denial of leave to amend lies within the sound
discretion of the trial court and is subject to reversal only for an abuse of discretion." Carter v.
Procunier, 755 F.2d 1126, 1129 (5th Cir.1985); accord Galvan v. Bexar County, Tex., 785 F.2d

1298, 1304 (5th Cir.1986), reh'g den., 790 F.2d 890 (5th Cir.1986) (en banc).
If, after a review of the record, we find no abuse of discretion by the district court our inquiry
is ordinarily over. In the case of an amendment allowing for the application of comparative fault,
however, we must undertake a somewhat more exact ing examination: "Whether to apply
comparative fault is a question of law, freely reviewable on appeal." Cates v. Sears, Roebuck & Co.,
928 F.2d 679, 683 (5th Cir.1991) (citing Robertson v. Superior PMI, Inc., 791 F.2d 402 (5th
Cir.1986)).
The Louisiana Supreme Court addressed the interplay between comparative fault and
products liability in Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985).1 From Bell and its progeny,
a two-pronged test has been distilled to ascertain whether comparative fault should be used to reduce
a plaintiff's award in a products liability action: (1) Would the reduction of the award realistically
provide incentive for user care? If this query is affirmatively answered, a court must then ask (2)
would the application of comparative fault drastically undermine the manufacturer's incentive to make
a safe product? If this latter question is answered affirmatively, "Louisiana law prohibits the
application of comparative fault." Nicholas v. Homelite Corp., 780 F.2d 1150, 1153 (5th Cir.1986);
see Cates v. Sears, Roebuck & Co., 928 F.2d 679, 68384 (5th Cir.1991); Davis v. Commercial
Union Ins. Co., 892 F.2d 378, 38283 (5th Cir.1990); Robertson v. Superior PMI, Inc., 791 F.2d
402, 40708 (5th Cir.1986).
In determining what effect a reduction of the award will have on the user's care, Davis v.
Commercial Union Ins. Co. provides us the proper analytical framework:
This inquiry leads us to consider the type of activity being performed and the cause of the
1Our review, as an appellate court reviewing a claim grounded in diversity, must be guided by
applicable Louisiana law. Bell was in response to a certified question from this Court. See Bell v.
Jet Wheel Blast, 717 F.2d 181 (5th Cir.1983).

injury. In Bell and Robertson, where the courts declined to apply comparative negligence,
the plaintiff was engaged in monotonous and routine assembly line work. The courts
determined that the imposition of comparative negligence would not deter acts that were the
result of momentary neglect or inattention.
892 F.2d at 383. The Davis Court concluded that the plaintiff's injuries did not result from mere
inattention or momentary neglect while he was engaged in repetitive tasks, but were "directly related
to his failure to follow established procedures, [and] reduction of his award for his own fault should
encourage user care." Id.
In the present case, PharmaPlast presented evidence that the procedures used by Cotita were
in violation of the universal precautions and procedures which are standard in the health care field.
See R. 4, at 7376. Like the trial court in Davis, the district court here was entitled to determine that
the application of comparative fault will ultimately encourage workers in the health care field to
follow the established procedures for handling syringes. This is perhaps even more applicable in the
present context, considering the activity in which Cotita was engaged.
The second prong of the Bell analysis requires the court to evaluate what impact the
application of comparative fault will have on the manufacturer's incentive to make a safe product.
The appellant contends that such a reduction will "only tend to defeat the basic goals of strict
products liability by reducing the incentive for product quality control." Brief for Appellant at 20.
The mandate of the Louisiana Supreme Court, as found in its Bell v. Jet Wheel Blast decision, reflects
the opposite view:
[C]omparative fault principles would seem to coincide with and further the goals of products
liability doctrine in some cases. Where the threat of a reduction in recovery will provide
consumers with an incentive to use a product carefully, without exacting an inordinate
sacrifice of other interests, comparative principles should be applied for the sake of accident
prevention.
462 So.2d 166, 171 (La.1985).
Indeed, the argument that a reduction in the manufacturer's liability will reduce its incentive

to produce safer products could be made any time comparative fault principles are applied. This
would negate "Bell's instruction to us that comparative fault does have a place in products liability
law...." Nicholas v. Homelite Corp., 780 F.2d 1150, 115455 (5th Cir.1986). The Nicholas Court
observed further that comparative fault will not ultimately alter the manufacturer's duty to make safe
products "because it does not alter the manufacturer's liability." Id. at 1153. Likewise, no reasonably
prudent manufacturer will "rely on future careless use of its products to offset its full liability with any
predictability that would alter the manufacturer's duty to produce the safest product possible." Id.
In sum, the district court was within its discretion in allowing the amendment of the pleadings
to enable the defendant to allege the plaintiff's comparative fault. While the application of
comparative fault principles is generally subject to de novo appellate review, Bell indicates that trial
judges are to be granted broad discretion in applying these principles. See Bell v. Jet Wheel Blast,
462 So.2d 166, 17273 (La.1985). This persuaded this court to recently conclude, "The question
thus remains one of law, but it is one inextricably tied to specific factual findings which implicates the
customary deference on review." Cates v. Sears, Roebuck & Co., 928 F.2d 679, 684 (5th Cir.1991).
Because we find no error in the district court's application of comparative fault, we defer to its
judgment and affirm its holding on this point.
2. Evidentiary Ruling.
The appellant contends that the district court also erred in refusing to let him present
additional evidence regarding the fault of PharmaPlast. Evidentiary matters are within the sound
discretion of the trial judge, and will be reversed o nly upon a showing of a clear abuse of that
discretion. See Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1474 (5th Cir.1992); Nicholas v.
Homelite Corp., 780 F.2d 1150, 1155 (5th Cir.1986).
Again, we are faced with a "twist" on what would normally be a routine matter. Cotita
contends that the district court should have allowed additional evidence of PharmaPlast's fault

because PharmaPlast was permitted to amend its answer to allege the comparative fault of Cotita.
This amendment was allowed after granting summary judgment on PharmaPlast's liability. Cotita
maintains that this is error, in that "the trier of fact was not properly allowed to compare the fault of
the respective parties...."
We do not agree with Cotita's characterization of this decision. In its summary judgment
order, the trial court decided the issue of liability. The question whether the defectively manufactured
syringe caused any damage to Cotita was specifically reserved for trial. Cotita's argument that the
trier of fact was not allowed to consider the true respect ive fault of the parties misconstrues the
connection between products liability and comparative fault. The damage phase of the proceeding
was separate and apart from the previously decided liability phase. As the Court in Nicholas v.
Homelite Corp. stated, "Comparative fault provides an episodic post-manufacturer reduction in the
final economic assessment against the manufacturer based on the user's actions, without regard to the
prior actions and responsibilities of the manufacturer." 780 F.2d 1150, 1153 (5th Cir.1986)
(emphasis added). The actions of Cotita in his use of the defective syringe were properly considered
in evaluating the damages awarded. Finding no error in the district court's handling of this issue, we
affirm its decision to not allow the introduction of further evidence on the fault of PharmaPlast.
AFFIRMED.