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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60488
Summary Calendar
MILTON LEE LEVERETTE,
Plaintiff-Appellant,
VERSUS
LOUISVILLE LADDER COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
July 9, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:
Milton Lee Leverette brought suit against Louisville Ladder
Company asserting that manufacturing defects were responsible for
injuries suffered in a work-related fall. The district court,
excluding Leverette's expert's testimony, granted Louisville
Ladder's Motion for Judgment as a Matter of Law. Leverette
appeals. We AFFIRM.
I. FACTS AND PROCEEDINGS
In March, 1995, Milton Lee Leverette was working for Vicksburg
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Video as a cable installer and technician. As a part of his work
duties, Leverette used a 28-foot fiberglass extension ladder to
check and install cable on utility poles. While working on March
25, 1995, Leverette placed his ladder against the utility pole to
check the cable of one of his customers. As he reached the third
rung from the top, the ladder broke in half, and Leverette fell
approximately 30 feet to the ground. Leverette suffered severe
injuries to his shoulder, back, and abdomen, requiring two
surgeries.
Leverette filed a complaint against the manufacturer of the
ladder, Louisville Ladder Company, under the Mississippi Product
Liability Act ("MPLA") alleging that he suffered severe personal
injuries as a result of a manufacturing defect. Leverette enlisted
the assistance of Dr. Shelby Thames, a professor of chemistry and
polymer sciences at the University of Southern Mississippi. Upon
completion of the discovery deposition of Dr. Thames, Louisville
Ladder filed a Motion for Summary Judgment and further, filed a
Motion to Exclude the testimony of Dr. Thames pursuant to Daubert
v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
district court denied both Motions. Louisville Ladder also moved
to strike Dr. Thames' testimony on the ground that Leverette failed
to produce a list of the cases that its expert had testified in the
past four years and the amount that they were paying Dr. Thames,
pursuant to Fed. R. Civ. P. 26. The district court ordered
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Leverette to produce the expert information within five days.
Prior to trial, Louisville Ladder renewed its Daubert motion
and requested the court to strike Dr. Thames' testimony because the
Rule 26 expert information was not provided.
At trial, Leverette called Dr. Thames who opined that the
ladder had a manufacturing defect because there was no adhesion
between the fiberglass and the polymer matrix making up the ladder.
At the conclusion of Dr. Thames' testimony, the district court
ruled that Dr. Thames' testimony was irrelevant and excluded his
testimony. The district court subsequently granted Louisville
Ladder's Motion for Judgment as a Matter of Law under Fed. R. Civ.
P. 50.
II. DISCUSSION
We review the district court's decision to grant a Motion for
Judgment as a Matter of Law de novo. See Garcia v. Woman's Hosp.
of Texas, 97 F.3d 810, 812 (5th Cir. 1996). We consider all the
evidence in the light and with all inferences most favorable to the
party opposed to the motion. See Ikerd v. Blair, 101 F.3d 430, 432
(5th Cir. 1996). We review the district court's decision to
exclude expert testimony for an abuse of discretion. See General
Electric Co. v. Joiner, 118 S. Ct. 512, 517 (1997); Moore v.
Ashland Chemical Inc., 151 F.3d 269, 274 (5th Cir. 1998).
Leverette contends that the district court abused its
discretion in excluding Dr. Thames' testimony on the ladder's
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manufacturing defect. The district court, relying on Daubert, Fed.
R. Evid. 702, and Fed. R. Evid. 703, excluded the testimony, ruling
that the testimony was irrelevant to proving that the ladder had a
manufacturing defect. We hold that the district court did not
abuse its discretion in excluding the expert's testimony for a lack
of relevance.
To prevail in a products liability case under Mississippi law,
the plaintiff must prove, at the time the product left control of
the manufacturer or seller, "[t]he product was defective because it
deviated in a material way from the manufacturer's specifications
or from otherwise identical units manufactured to the same
manufacturing specifications...." Miss. Code. Ann. § 11-1-
63(a)(i)(1).
Louisville Ladder manufactures its ladders to meet
specifications under the American National Standard Institute
("ANSI"). The ANSI standards provide a set of minimum performance
and dimensional requirements for the manufacture of products. ANSI
A14.5 specifies materials to be used in manufacturing, the
properties of the materials, the types of tests to be performed,
and minimum test results. Further, the ANSI relies on the American
Society of Testing and Materials ("ASTM") for performing strength,
physical, and mechanical property tests for fiberglass.
The district court ruled, and we agree, that Dr. Thames failed
to assess whether the ladder met ANSI standards in accordance with
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the requirements under Mississippi law. The district court did
not abuse its discretion.
Leverette now contends that this Court should apply a risk-
utility analysis to the ladder under Sperry-New Holland v.
Prestage, 617 So.2d 248 (Miss. 1993) to find that it was a
defective product. The risk-utility analysis applies to design
defects case, not manufacturing defect cases. See Miss. Code. Ann.
§ 11-1-63(a)(i)(1), (b). "The Court will not allow a party to
raise an issue for the first time on appeal merely because a party
believes that he might prevail if given the opportunity to try a
case again on a different theory." See Forbush v. J.C.Penney Co.,
98 F.3d 817, 822 (5th Cir. 1996). Leverette did not assert a
design defect theory and cannot present this issue on appeal.
Finally, Leverette contends that the district court should
have considered his Motion for Reconsideration to challenge the
constitutionality of the MPLA. This Court will not consider an
issue that a party fails to raise in the district court absent
extraordinary circumstances, see North Alamo Water Supply Corp. v.
City of San Juan Texas, 90 F.3d 910, 916 (5th Cir. 1996) (declining
to consider constitutional challenge to statute on appeal), and
generally speaking, we will not consider an issue raised for the
first time in a Motion for Reconsideration. See Browning v.
Navarro, 894 F.2d 99, 100 (5th Cir. 1990).
III. CONCLUSION
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