RON WARREN, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DEREK HEBERT
SHELTER MUTUAL INSURANCE COMPANY, ET AL.
OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH
Warren, individually and on behalf of the Estate of Derek
Hebert, filed a petition for damages seeking to recover for
the wrongful death of his son in a recreational boating
accident under general maritime law and products liability. A
jury found the defendant, Teleflex, Inc.
("Teleflex"), liable under the plaintiff's
failure to warn theory of the case and awarded compensatory
damages of $125, 000 and punitive damages of $23, 000, 000.
The court of appeal affirmed. We granted Teleflex's writ
application mainly to review whether the trial court properly
granted the plaintiff a new trial and whether the award of
punitive damages was excessive and resulted in a violation of
the defendant's right to constitutional due process. For
the reasons expressed below, we affirm the lower court's
judgment in part, amend the judgment to award $4, 250, 000 in
punitive damages to the plaintiff, and affirm as amended.
AND PROCEDURAL HISTORY
7, 2005, Daniel Vamvoras was operating a 1998 Champion boat
owned by his father, Glen Vamvoras, on navigable waters
consisting of a former channel of the Calcasieu River. Derek
Hebert was a passenger in the boat along with several other
young people. As the boat was on plane, that is, travelling
at a sufficiently high rate of speed to cause the hull to
rise out of the water, the hydraulic steering system
manufactured by the defendant Teleflex suddenly failed,
causing the boat to turn violently, referred to as a
"J-hook, " ejecting Derek and four of the other
passengers from the boat. Because the kill switch had not
been engaged, the boat spun around and its propeller struck
Derek nineteen times, causing traumatic damage that resulted
in his death. A dive team later recovered his body from the
bottom of the lake.
parents filed survival and wrongful death claims against
various defendants, as well as a punitive damages claim under
general maritime law. Those defendants included Glen Vamvoras
and his son Daniel, as well as the operator of another boat
that had collided with the Vamvoras boat after the latter
lost steering, various marinas, insurers, and manufacturers.
Derek's mother's claims were settled after mediation
and her suit dismissed. Derek's father proceeded with his
wrongful death and survival actions, seeking compensatory
damages, punitive damages, and judicial interest thereon.
matter was tried twice, as explained herein. After years of
litigation, the matter finally came to trial in 2014 against
defendants Glen and Daniel Vamvoras and Teleflex. This trial
was bifurcated as to the issues of liability and exemplary
damages. At the close of the liability portion of that first
trial, the district court granted the Vamvorases' motions
for a directed verdict, dismissing them from the suit and
leaving Teleflex as the only defendant on the verdict form.
The first jury returned with a finding of no liability on the
part of Teleflex; so, the trial court signed a judgment in
September 2014 dismissing the plaintiff's claims.
However, the trial court thereafter granted the
plaintiff's motion for new trial based on what it
believed to be prejudicial error during the first trial.
second trial, which involved only Teleflex as the defendant
and which was not bifurcated as to liability and exemplary
damages, resulted in a jury verdict in favor of the
plaintiff. The jury found liability on the part of Teleflex
and awarded compensatory damages of $125, 000 and exemplary
damages of $23, 000, 000. Based on this verdict, the trial
court signed a judgment in December 2014 awarding these
amounts, as well as prejudgment interest on compensatory
sought a JNOV or, in the alternative, a motion for new trial
or a remittitur on punitive damages. The trial court denied
Teleflex's post-trial motions following a hearing.
Thereafter, Teleflex filed a suspensive appeal. The court of
appeal, as discussed more fully below, affirmed. Warren
v. Shelter Mut. Ins. Co., 15-354 (La.App. 3 Cir.
6/29/16), 196 So.3d 776. We granted Teleflex's writ
application to review that judgment. Warren v. Shelter
Mut. Ins. Co., 16-1647 (La. 1/13/17), 215 So.3d 246.
court, Teleflex asserts six assignments of error.
1. The district court granted a new trial without determining
whether the issue on which it based that grant was material
to the verdict or had prejudiced the plaintiff, or properly
determining that there had been a miscarriage of justice, and
the appellate court erred in affirming that ruling.
2. The court of appeal erred in affirming the trial
court's rejection of proposed jury instructions informing
the jury that the duty of a component part manufacturer to
warn differs from that of the manufacturer of an end product
sold to the public.
3. The court of appeal erred in affirming the trial
court's decision in the second trial to
"un-bifurcate" and allow punitive damages evidence
and argument to be presented during the trial of liability,
and further erred in failing to address the substantial
prejudice and unfairness to Teleflex caused by
4. The court of appeal erred in affirming the trial
court's finding of liability for punitive damages despite
a lack of evidence of reckless, wanton, or callous conduct.
5. The court of appeal erred in affirming the trial
court's acceptance of the amount of punitive damages,
which is grossly excessive as a matter of federal maritime
and constitutional law.
6. The court of appeal erred in failing to scrutinize fully
the fairness and propriety of the verdict and judgment in
this punitive damages case in light of: (a) the lack of
evidence supporting punitive damages; (b) introduction into
the case of passion and prejudice resulting from the failure
to bifurcate liability from punitive damages; (c) erroneous
instructions on the duties of Teleflex; and (d) a grossly
disproportionate punitive damages award.
and Compensatory Damages
we address these individual assignments, we will summarize
the basis on which the jury found liability on the part of
Teleflex, which Teleflex specifically assigned as error in
the court of appeal. Warren, p. 35, 196 So.3d at
799-800. The court of appeal found no manifest error in the
jury's finding that Teleflex had breached a duty owed to
the plaintiff and that such breach had caused the
plaintiff's damages. Id., p. 36, 196 So.3d at
800. Although Teleflex challenges the process that resulted
in that finding of liability as corrupted by the trial
court's failure to bifurcate trial on the liability claim
from trial on the punitive damages claim, and further
corrupted by the trial court's refusal to instruct the
jury on the duty of a component part manufacturer, the court
of appeal nevertheless affirmed the jury's verdict on
liability and compensatory damages for failure to warn.
plaintiff sought damages under general maritime law and the
Louisiana Products Liability Act alleging Teleflex had failed
to warn of the inherent danger in its product. The
plaintiff's theory of liability at trial was that the
steering system itself was defective due to an inherently
dangerous risk that was not obvious to the user such that it
required adequate warnings, and the warnings Teleflex had
provided were not adequate. Teleflex's defense was that
its product was not defective and that such warnings were not
necessary, because the loss of fluid would result in
tell-tale signs indicating to the operator that there was an
issue with the steering system. Teleflex also asserted the
leaks in the system in this case were caused by the
replacement by an unknown party of one of the hydraulic hoses
with a non-Teleflex hose, and that there were obvious signs
of leaking fluid in the boat, which someone had attempted to
resolve by using a pipe-wrench on the hose coupling.
court of appeal cited the law as follows, which Teleflex does
In considering whether a warning in an instruction manual is
inadequate because it should have been placed on the product
itself, a court must consider the nature and severity of
danger to be warned against, likelihood that the product will
be used by persons who have not read the manual, practicality
and effectiveness of placing the warning on the product
itself, and any other relevant factors.
Jaeger v. Auto. Cas. Ins. Co., 95-2448, pp. 8-9
(La.App. 4 Cir. 10/9/96), 682 So.2d 292, 297, writ
denied, 96-2715 (La. 2/7/97), 688 So.2d 498 (citing
Black v. Gorman-Rupp, 94-1494 (La.App. 4 Cir.
5/16/95), 655 So.2d 717).
In Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d
330, 338 (5th Cir.1984) (footnote omitted), the federal Fifth
It is a fundamental principle of the law of product liability
in this Circuit that a manufacturer has a responsibility to
instruct consumers as to the safe use of its product and to
warn consumers of dangers associated with its product of
which the seller either knows or should know at the time the
product is sold. Borel [v. Fibreboard Paper
Prods. Corp.], 493 F.2d [1076, 1088-90 (5th Cir.1973),
cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d
107 (1974)]; see Restatement (Second) of Torts,
Section 402 A. comment j. In assessing what hazards are
foreseeable, a manufacturer is held to the status of an
expert. Borel, 493 F.2d at 1089. The lack of
adequate warnings renders a product defective and
unreasonably dangerous even if there is no manufacturing or
design defect in the product. Martinez v. Dixie Carriers,
Inc., 529 F.2d 457, 465-66 (5th Cir.1976);
Reyes [v. Wyeth Labs., ] 498 F.2d [1264, ]
1272- 73 [(5th Cir.1974), cert. denied, 419 U.S.
1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974).]
In Hooker v. Super Products Corp., 98-1107, pp.
28-29 (La.App. 5 Cir. 6/30/99), 751 So.2d 889, 905, writs
denied, 99-2911, 99-2947 (La.12/17/99), 751 So.2d 880,
884, the court stated:
Under the circumstances of this case, warnings should have
been placed on the truck in such a manner that all operators
could have been aware of the danger of being near the hose or
hose shield on this particular vehicle. If there was any
warning decal on the truck at all, it was definitely not on
the side where plaintiff was working. The danger of being
near a hose which could possibly rupture cannot be considered
open and obvious, since handling a similar hose was part and
parcel of plaintiff's usual occupation.
Once the trier of fact determines that the inherent danger is
not obvious, and the consumer is not aware of or trained to
detect that danger, then the warning, or lack thereof, must
be scrutinized. Clark v. Jesuit High School of New
Orleans, 572 So.2d 830 (La.App. 4th Cir.1990), writ
denied, 576 So.2d 48 (La. 1991). Therefore, the warning
must be: (1) properly worded to signify the intensity of the
inherent danger in the product; (2) properly placed on the
product so that the consumer cannot avoid seeing it; and (3)
it must convey to the consumer that injury or damage can
result from a normal or intended use of the product.
Id. The manufacturer can then present evidence to
show its product either did not require a warning or that the
warning that was provided was adequately worded or placed.
Asbestos Plaintiffs v. Bordelon, Inc., 96-525
(La.App. 4th Cir.10/21/98), 726 So.2d 926.
Plaintiff testified that had he read a warning about the
hose, he would have heeded it. In the present case there was
no warning for plaintiff to see.
Warren, pp. 39-40, 196 So.3d at 801-02.
summary of the applicable jurisprudence comports with the
LPLA. In Jack v. Alberto-Culver USA, Inc., 06-1883,
p. 4 (La. 2/22/07), 949 So.2d 1256, 1258, this court outlined
a plaintiff's burden of proof in a products liability
To maintain a successful products liability action under the
LPLA, a plaintiff must establish four elements: (1) that the
defendant is a manufacturer of the product; (2) that the
claimant's damage was proximately caused by a
characteristic of the product; (3) that this characteristic
made the product "unreasonably dangerous;" and (4)
that the claimant's damage arose from a reasonably
anticipated use of the product by the claimant or someone
else. La. R.S. 9:2800.54(A).
product is 'unreasonably dangerous' under the LPLA if
and only if the product meets at least one of [four]
criteria, " one of which is that "the product is
unreasonably dangerous because an adequate warning about the
product has not been provided as provided in La. R.S.
9:2800.57." Id. In a failure to warn case, the
claimant bears the burden of establishing that "at the
time the product left the manufacturer's control, the
product possessed a characteristic that may cause damage and
the manufacturer failed to use reasonable care to provide an
adequate warning of such characteristic and its danger to
users and handlers of the product." La. R.S. 9:2800.57.
The LPLA defines "adequate warning" as:
a warning or instruction that would lead an ordinary
reasonable user or handler of a product to contemplate the
danger in using or handling the product and either to decline
to use or handle the product or, if possible, to use or
handle the product in such a manner as to avoid the danger
for which the claim is made. La.R.S. 9:2800.53(9).
Id. at 1258-59. Whether a product is unreasonably
dangerous due to an inadequate warning is a question for the
trier of fact that is reviewed under the clearly
wrong/manifest error standard. Brooks v. State ex rel.
Dep't of Transp. and Dev., 10-1908 (La. 7/1/11), 74
case, the Louisiana Department of Wildlife & Fisheries
(Wildlife & Fisheries) investigated the accident and
determined that the boat, which had been purchased pre-owned
by Glen Vamvoras, lost its steering because of a hydraulic
oil/fluid leak in one of the steering system's hydraulic
lines at a hose/nut or coupling assembly. Teleflex
manufactured and supplied the boat's hydraulic steering
system, SeaStar, but one of the original Teleflex hoses had
been replaced by persons unknown with a non-Teleflex
SeaStar hydraulic steering system consists of three major
parts. The helm pump is mounted to the steering wheel
(installed underneath or alongside it; here, underneath).
Connected to the pump are two fluid-filled hydraulic hoses
that run under the boat deck to the back of the boat. There,
the hoses connect to either end of a cylinder that is mounted
horizontally to the front of the outboard motor. When the
wheel is turned left or right, additional hydraulic fluid is
pumped into the corresponding hose, which then forces the
cylinder's piston to move the motor. The SeaStar is a
system designed to move fluid, not consume it. If there is
fluid loss, there is a leak, which may eventually happen due
to connections using metal couplings and rubber O-rings. Air
then gets into the line and changes the steering response,
causing what is referred to as a spongy feeling by the
compression of air.
point, the system can still be operated and the boat
controlled, the court of appeal noted. But with enough fluid
loss, control of the boat will be taken completely out of the
hands of the driver, and the motor will go into a free spin,
kicking completely to one side. The boat turns suddenly on
its own axis, referred to in the industry as a
"J-hook" or "kill spin." Occupants are
often ejected and are immediately in danger of being struck
by the spinning propeller, even if the throttle is shut down.
The court of appeal found the evidence clearly revealed that
Teleflex, a very sophisticated boating industry manufacturer,
was well aware of this phenomenon.
Fetchko, Vice President and General Manager of SeaStar
Solutions, Richmond, British Columbia, went to work for
Teleflex in 1986, and invented the SeaStar hydraulic steering
system. He testified that Teleflex knew about the fluid loss
consequences but that they could not be designed out of the
system. Teleflex had performed tests in 1989 and 2004 that
confirmed that a very small loss of fluid in the hydraulic
system could result in total failure of the steering system.
There was a warning on the bottom of the steering cylinder,
but the court of appeal found the warning did not warn of the
risk of leaks, fluid loss, ejection, or death, nor was it
visible from within the boat. Mr. Fetchko, and Teleflex
expert Augusto Villalon, a consultant for the Coast Guard,
each testified that "bumpy" or "mushy"
steering should have adequately forewarned the Vamvorases of
the imminent danger before noticing a leak in the hydraulic
system. Mr. Fetchko testified he thought it had adequate
warning in the noise and reduction and the degradation of
steering. He stated the "mushy" feeling would be
felt at the helm alerting the driver.
Villalon testified that, given his background, he knew what
to expect with fluid loss in a hydraulic steering system. He
later conceded that a click or mushiness means different
things to different people and that people who do not
understand it as a warning lack experience.
Killingsworth, an expert tendered and accepted in mechanical
engineering, testified the "clicking" sound heard
by the Vamvorases was normal according to Teleflex's own
documents. He testified that, not only were these descriptive
words subjective, but that the manual also failed to
explicitly use any of these words to describe the malfunction
Liles of Wildlife & Fisheries, an experienced boating
professional, testified that all of the Wildlife &
Fisheries boats had this type of hydraulic steering system,
and no one knew that this could happen. He indicated the
department was going to cover this issue in its future
teaching program because the motoring public was unaware of
and Daniel Vamvoras testified that they did not know of the
danger from loss of fluid. Glen purchased the boat pre-owned;
he testified that an owners' manual had not come with the
boat, and that he had had the boat annually inspected. Glen
stated that, while doing routine maintenance eight months
prior to the accident, a friend suggested he add fluid to the
system. Glen also stated that, though he added a few
teaspoons of fluid, he did not believe this to be part of
routine maintenance, and did not serve as an indicator of any
issues with the steering system. Glen admitted that on more
than one occasion the boat made an unidentifiable clicking
sound, but only in reverse, and he had never had any issues
with the steering system. Glen said that he never would have
let his son Daniel drive the boat or put his friends in the
boat if he had known of the danger. Daniel filed an affidavit
stating that he would have heeded a warning if one had been
testified that on the day of the accident he had detected a
leak at the point of connection between a hydraulic hose line
and a mechanical housing at a nut on the boat's outboard
motor. He stated he then tightened the nut, believing he had
solved the problem, and proceeded to take the boat out for
the day. Daniel admitted he had heard a clicking sound coming
from the boat on the day of the accident, but denied knowing
the source of the sound or having any other issues with the
finding no manifest error in the jury's finding, the
court of appeal noted that the American National Standard
Product Safety Signs and Labels ("ANSI")
publication provides guidance for manufacturers to alert
users of their products to potential personal injury hazards
inherent in their products. The court found the July 2006
manual, published a few months after this suit was filed, had
partially complied with the 1991 ANSI standards, but
concluded it was too late and too little to satisfy the
warning requirements, because warnings in a manual are
insufficient. The court of appeal concluded the warnings
should have been on the steering system itself, citing the
ANSI definitions and provisions.
court of appeal noted that Mr. Killingsworth testified that,
when a product has an inherently dangerous feature that
cannot be designed out of the product, the manufacturer has a
duty to warn of the specific danger. In this case, the court
noted, the inherent danger was that a very small loss of
fluid would result in loss of steering that could cause
ejection and death. The court reasoned the warning needed to
contain a signal or key word to get the user's attention,
and the text needed to instruct the user to stop and repair
fluid loss immediately to avoid the consequences. The court
also found the warning needed to be placed where it would be
seen and in proximity to the hazard. The court cited Mr.
Killingsworth's testimony that Teleflex had a duty to put
a sticker or decal on the front helm pump where the driver
would see it at the wheel and where the oil is actually
added. The court cited his testimony that another decal
should be placed on the back cylinder of the steering system
in a position so that it could be seen at the site of the
leak. The court found such warning labels would have been
consistent with the ANSI standards, and were required by
the court reasoned, the driver of the boat attested that he
would have heeded a warning had there been one, but the only
text on the helm of the boat advised the operator to check
the fluid level and hoses without any mention of the loss of
steering resulting in ejection from the boat and possible
death. The court of appeal found that, based on the evidence
and the law presented, the jury was not manifestly wrong in
finding that the Teleflex system had an inherent danger
unknown to users, that Teleflex had a duty to warn users of
such dangers, and that Teleflex was negligent in its failure
to warn. Thus, the court of appeal affirmed the finding of
liability for compensatory damages. Teleflex has not assigned
error in the court of appeal's conclusion.
turn to the issues raised by the defendant, which it claims
infected the fact-finding process. With regard to the grant
of the new trial, some background is in order. During the
first trial, the plaintiff introduced a manual on the SeaStar
steering system, which the plaintiff's expert used to
refer to diagrams therein to explain his testimony about the
hydraulic steering system. When that manual came to be
introduced in evidence, there was some discussion as to which
manual: the 1997 version that would have been supplied with
the boat at its original sale in 1998, except that Mr.
Vamvoras testified there was no manual in the boat when he
purchased it used, or a 2006 revision. Counsel for Teleflex
indicated the plaintiff could use either one. It was later
determined the 2006 revision was the manual ultimately
introduced in evidence as P-24, though there was no reference
to the date of the manual at the time it was introduced.
After the jury retired to deliberate, it sent in a written
request for a copy of the SeaStar steering system manual and
the ANSI guidelines. Approximately forty minutes later, the
jury sent the judge a question asking whether it had been
given the 1997 manual that would have been available with the
original purchase of the boat in 1998. The trial court then
called a bench conference, at which Teleflex's attorney
assured the court that the jury had the manual provided with
the boat in 1998. The jury foreman informed the trial court
that the manual looked to be a 2006 revision and pointed out
to the court the back of the manual, which had the following:
©1997 TELEFLEX CANADA LIMITED PARTNERSHIP PRINTED IN
FORM NO.296784 10000-07/06 Rev AK
The following exchange then occurred:
MR. FROHN: That's just a printer's code of ...