Patsy Ann Collins Domingue v. Excalibar Minerals of La

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1018

PATSY ANN COLLINS DOMINGUE, ET AL.

VERSUS

EXCALIBAR MINERALS OF LOUISIANA, LLC, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 95415
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Elizabeth
A. Pickett, and Billy H. Ezell, Judges.

Pickett, J., dissents and assigns written reasons.

Ezell, J., dissents for the reasons assigned by Judge Pickett.

AFFIRMED.

J. Louis Gibbens
Dennis Stevens
Gibbens & Stevens
222 W. St. Peter Street
New Iberia, LA 70560
Counsel for Plaintiffs/Appellees:
Patsy Ann Collins Domingue, et al.

Cole A. Wist
Willa Perlmutter
Marci Fulton
Patton, Boggs, LLP
1660 Lincoln St., Suite 1900
Denver, CO 80264
Counsel for Plaintiffs/Appellees:
Patsy Ann Collins Domingue, et al.

Ralph E. Kraft
F. Douglas Gatz, Jr.
Jessica A. Devitt
Preis, Kraft & Roy
P. O. Drawer 94-C
Lafayette, LA 70509
Counsel for Defendant/Appellant:
Cameco Industries, Inc.

Kirk Lindsay Landry
Keogh, Cox & Wilson
P. O. Box 1151
Baton Rouge, LA 70821
Counsel for Intervenor/Appellee:
Valley Forge Insurance Company

DECUIR, Judge.

In the workplace accident giving rise to this lawsuit, the plaintiffs’ decedent

was run over by a dump truck operated by his co-employee. The manufacturer of the

dump truck, Cameco Industries, Inc., appeals the judgment of the trial court granting

the plaintiffs’ motion for judgment notwithstanding the verdict and finding Cameco

30% at fault in causing the accident. For the reasons which follow, we affirm the

JNOV and deny both the plaintiffs’ and the intervenor’s answer to appeal.

FACTS

The decedent, Russell Domingue, was killed in an industrial accident on the

afternoon of June 14, 2000. Mr. Domingue and two other employees of M. Matt

Durand, Inc. (MMD), Charles Judice and Brent Gonsoulin, were stockpiling barite

ore at a mine site operated by Excalibar Minerals of Louisiana, L.L.C. and located at

the Port of Iberia. MMD was a contractor hired by Excalibar to offload the ore.

Judice and Gonsoulin were operating Cameco 405-B articulated dump trucks (ADTs)

to offload the ore from a barge and transport it to a pile being built up by Mr.

Domingue with a bulldozer. The two ADTs would make several trips, passing each

other on the way to and from the barge and the stockpile where they would drop their

loads. Mr. Domingue would then push the barite onto the growing pile of ore.

Sometime after 2:00 p.m., Gonsoulin, who was new to the job, had trouble

dumping a large load of barite. Mr. Domingue, who was an experienced ADT

operator, got off the bulldozer and walked over to Gonsoulin’s ADT to give his co-

worker some advice on how to dump the heavy load. If a load was too heavy, the bed

of the dump truck would not go up without some assistance. Mr. Domingue

instructed Gonsoulin to back toward the pile, hit the brakes, and pull the lever.

Gonsoulin explained in his testimony, “The velocity of it’s going to make the dump

pull up.” This maneuver should be done repeatedly until the bed goes up and the load

can be dumped.

While this conversation between Mr. Domingue and Gonsoulin took place,

Judice continued on to the stockpile to dump another load. As he finished dumping

his load, he turned his truck away from the pile and started to pull forward. Judice

testified that he then saw “a pair of sunglasses and cigarettes fly.” Judice

immediately stopped his truck and discovered Mr. Domingue’s body which he had

run over.

TRIAL COURT PROCEEDINGS

Plaintiffs are the widow and major children of the decedent: Patsy Ann Collins

Domingue, individually, and as the administratrix of the estate of Russell Domingue

and the natural tutrix of the minors, Adam, Elaine, and Rusty Domingue; Crystal L.

Domingue; Chantelle Domingue Theriot; Angela S. Domingue; and Theresa Marie

Domingue. The widow and her seven children brought suit against Cameco, alleging

defects in the manufacture of the ADT which caused Mr. Domingue’s death. Also

named as defendant was Excalibar Minerals, which settled with the plaintiffs prior

to trial and is no longer a party to this litigation. Valley Forge Insurance Company,

the workers’ compensation carrier for Mr. Domingue’s employer, intervened seeking

reimbursement for benefits paid on behalf of MMD. The case was tried to a twelve-

person jury over five days. The verdict form submitted to the jury instructed the jury

to assess fault among the following: Mr. Domingue; his co-worker, Judice; his

employer, MMD; the lessor of the ADT, Barras & Durand, Inc.; the manufacturer of

the ADT, Cameco; and the mine operator, Excalibar.

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The jury found MMD 60% at fault in causing the death of Mr. Domingue. The

jury also found the decedent was 35% at fault and Judice was 5% at fault. Barras &

Durand, Cameco, and Excalibar were absolved of any liability. Damages were set at

$1,101,050.00. The plaintiffs moved for judgment notwithstanding the verdict, which

was granted by the trial court, reallocating fault as follows: Judice, 35%; Mr.

Domingue, 35%; Cameco, 30%; and no fault on the part of MMD, Barras & Durand,

and Excalibar. The judgment also gave Valley Forge a credit against the plaintiffs’

award.

Cameco appeals the judgment of the trial court, seeking reinstatement of the

jury verdict. The plaintiffs answered the appeal, arguing the 35% fault allocated to

Judice should have been allocated to Cameco and the 35% fault allocated to the

decedent should be reduced. Valley Forge also answered the appeal seeking to have

this court “precisely state the dollar amount rendered in [its] favor,” and award

“additional recovery against the Defendants for any workers’ compensation payments

made between the date of the trial and the rendition of Judgment.”

ANALYSIS

The law applicable to this case was recently reviewed by this court in Williams

v. W.O. Moss Regional Medical Center, 05-022, pp. 2-3 (La.App. 3 Cir. 6/1/05), 903

So.2d 1150, 1152:

Louisiana Code of Civil Procedure Article 1811(F) is the authority for
a JNOV. The article provides that a motion for JNOV may be granted
on the issue of liability or on the issue of damages or on both. In Smith
v. Lee, 00-1079, pp. 2-3 (La.App. 5 Cir. 4/11/01), 783 So.2d 642, 644,
writ denied, 01-1731 (La. 9/28/01), 798 So.2d 116, the court noted:

A judgment notwithstanding the verdict is warranted
when the facts and inferences point so strongly and
overwhelmingly in favor of one party that the court
believes that reasonable men could not arrive at a contrary

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verdict. The motion should be granted when the evidence
points so strongly in favor of the moving party that
reasonable men could not reach different conclusions, not
merely when there is preponderance of evidence for the
mover. If there is evidence opposed to the motion which
is of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment
might reach different conclusions, the motion should be
denied. In making this determination, the court should not
evaluate the credibility of the witnesses, and all reasonable
inferences of factual questions should be resolved in favor
of the non-moving party. See Anderson v. New Orleans
Public Services[Service], Inc., 583 So.2d 829 (La.1991),
LSA-C.C.P. art. 1811 and Davis v. Wal-Mart Stores, Inc.,
00-445[,] 774 So.2d 84 (La. 11/28/00).

The standard of review for a JNOV on appeal is a two part
inquiry: first, the appellate court must determine if the trial court erred
in granting the JNOV, which is done by using the same criteria used by
the trial judge in deciding whether to grant the motion. Second, after
determining that the trial court correctly applied its standard of review
as to the jury verdict, the appellate court reviews the JNOV using the
manifest error standard of review. Martin v. Heritage Manor South
Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627.

Accordingly, our first inquiry is whether the trial court erred in granting the

JNOV.

For the following reasons, our review of the record convinces us that the trial

court correctly granted the plaintiffs’ motion for JNOV. In apportioning fault, the

jury regarded the employer as primarily at fault. The employer’s fault was not based

on vicarious liability for the actions of its employee, since the employee was listed

separately on the verdict form. Rather, the employer’s fault as found by the jury was

independent of the fault of Judice. The employer’s fault, if it is to be construed as

knowledge of the ADT’s hazards, existed in isolation, without regard for the conduct

of the ADT manufacturer or the mine site operator. The trial court could not

reconcile these findings, and in granting the motion for JNOV, the court determined,

as was stated in Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336

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(La.App. 2 Cir. 1991), that “there was no valid line of reasoning and permissible

inferences which could possibly lead rational men and women to the conclusion

reached by the jury.”

As did the trial court, we have reviewed the evidence to determine if the record

supports a finding of 60% fault on the part of the employer. Because of the workers’

compensation scheme, the employer cannot be found liable in tort to the plaintiffs and

was not a party to this litigation or represented at trial. Consequently, evidence of

MMD’s actions was minimal. There was no evidence that MMD, a contractor at the

mine site, was primarily responsible for safety at the site. There was insufficient

evidence that additional employees at the site or further training of employees would

have prevented this accident. Suggestions that MMD had knowledge of the ADT’s

significant blind spot, as well as other alleged design defects, necessarily implicates

the manufacturer of the ADT, not its lessee. Finally, the proposition that MMD or

Barras & Durand may have made modifications to the ADT, or may not have properly

maintained it, were not causally linked to the accident which caused Mr. Domingue’s

death. Accordingly, in considering the plaintiffs’ motion for JNOV, the trial court

properly determined the evidence did not support a finding of the employer’s 60%

fault. Our review of the record convinces us that the trial court correctly granted the

plaintiffs’ motion for JNOV.

We turn now to the trial court’s reapportionment of fault. Both the plaintiffs

and Cameco presented a wealth of expert testimony regarding the issue of Cameco’s

alleged fault. The history and design of the 405-B ADT, including its advantages and

shortcomings, were discussed at length. Essentially, the testimony and evidence

presented by the plaintiffs’ witnesses, O. Peter Smith, H. John Head, and Michael

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Sutton, support the conclusion that Cameco shared the fault for Mr. Domingue’s

death. Conversely, while the testimony and evidence presented by Cameco’s expert

witnesses implicated both the decedent and his co-worker in causing the accident,

their testimony did not exonerate Cameco.

Evidence of Cameco’s liability, as found by the trial judge in granting the

JNOV, is so strong and overwhelming that reasonable persons could not have found

otherwise. The trial court found “the expert testimony presented by Mike Sutton and

Peter Smith demonstrated that the blind spot on the 405B truck was caused by a

[design defect] and was a proximate cause of Domingue’s death.” The trial court

found the blind spot was exceptionally large, causing a driver to be unable to see, at

all, a person of Domingue’s height in the location of the accident. The court also

found the design defect which causes the blind spot was not necessary to the

functioning of the truck and could have been easily modified at minimal cost.

Finally, the trial court explained that the driver’s ability to articulate the truck in such

a way so as to alleviate the blind spot is irrelevant in a situation such as this where the

driver was already in the process of turning when the danger arose.

These factual conclusions are not manifestly erroneous and are supported by

the evidence before us. Cameco acknowledged an “area of restricted visibility” for

the driver of its ADT, an area much greater than that calculated for the truck used as

a model for the design of the 405-B. Evidence of the blind spot was clear and showed

that a person of the decedent’s height could not be seen by the driver until he was

more than sixteen feet in front of the truck. He could not be seen from head to toe

until he was standing over fifty-two feet in front of the truck. The configuration of

the truck which created the blind spot was not necessary for the proper functioning

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of the truck, and, in fact, design modifications costing about $5,000.00 could have

eliminated or greatly reduced the blind spot. Finally, the unrefuted testimony of the

plaintiffs’ accident reconstruction expert showed that the design defect of a

significant forward blind spot was a direct cause of the accident at issue. The trial

court considered this evidence and determined Cameco was 30% at fault in causing

the accident which resulted in Mr. Domingue’s death. We find no manifest error in

this conclusion.

In two additional assignments of error, Cameco questions the trial court’s

exclusion of certain expert testimony of which the plaintiffs had no knowledge until

after they had rested their case, and Cameco complains of improper communication

between the trial judge and the jury following the verdict. We have reviewed the

record and find no manifest error in the actions of the trial court.

We now address the plaintiffs’ answer to appeal wherein they seek to have the

percentage of fault attributed to Mr. Domingue reduced or eliminated. The record

establishes that Mr. Domingue was an experienced heavy machinery operator. He

had extensive experience in the operation of the 405-B ADT and, in fact, had

operated one the week before this tragic accident. As the bulldozer operator at the

Excalibar site, Mr. Domingue was responsible for building up the stockpile of barite

ore and, thus, to a large extent determined the pathway used by the ADTs between the

barge and the stockpile. He was also responsible for the placement of the bulldozer

at the time of the accident. His placement of the bulldozer, in close proximity to the

stockpile, necessitated that the operators of the ADTs make sharp right hand turns

after dropping their loads in order to return to the barge for more barite ore. When

Mr. Domingue left his bulldozer to assist Gonsoulin, he knew he was placing himself

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in an area of danger. As an experienced ADT operator, he was well acquainted with

the characteristics of the 405-B, including the areas of restricted visibility.

In reviewing the fact finder’s allocation of fault, we are guided by the

following standard of review:

The applicable standard of review regarding the factual consideration of
respective degrees of fault is the manifest error or clearly wrong
standard. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d
607. This well-known standard prohibits an appellate court from
altering a fact finder’s determinations, unless those determinations and
findings have been found to be clearly wrong upon review of the trial
court record. While applying this standard, great deference must be
given to the fact finder’s results; however, the appellate court is required
to simultaneously remain mindful of its constitutional duty to review the
facts. La.Const. art. 5, §§ 5(C), 10(B); Clement, 666 So.2d 607;
Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099,
93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216. In doing so, should it be
determined that the record supports a finding that the fact finder was
clearly wrong or that it abused its wide discretion, this court is
empowered to reallocate fault. Clement, 666 So.2d 607. The deference
we continue to owe to the fact finder, however, restrains us in any such
reallocation, in that we are allowed to adjust fault only to the extent of
lowering or raising it to the highest or lowest point, respectively, which
would have been reasonably within the jury’s discretion. Id.

Yellott v. Underwriters Ins. Co., 04-1342, p. 12 (La.App. 3 Cir. 8/31/05), 915 So.2d

917, 926, writ denied, 05-2439 (La. 4/24/06), 926 So.2d 540. Considering all the

facts—Mr. Domingue’s experience, his familiarity with the 405-B ADT, that he

determined the path of the ADTs by his manipulation of the ore pile and his

placement of the bulldozer, and that he placed himself in a location of known

danger—we cannot say that the jury’s allocation of 35% comparative fault is

manifestly erroneous. Accordingly, the plaintiffs’ answer to the appeal is denied.

We also deny the answer to appeal filed by Valley Forge, the workers’

compensation intervenor. As an appellate court, we cannot take new evidence but

may properly consider only evidence and testimony which is part of the record

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submitted from the trial court. We find insufficient evidence in the record to allow

us to render a money judgment in favor of Valley Forge reflecting the amount of

benefits paid prior and subsequent to the judgment rendered herein. A final

determination of what credit is due Valley Forge can be made only by the trial court.

For the above and foregoing reasons, the judgment notwithstanding the verdict

issued by the trial court is affirmed. Costs of this appeal are assessed to Cameco

Industries, Inc.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1018

PATSY ANN COLLINS DOMINGUE, ET AL.

VERSUS

EXCALIBAR MINERALS OF LOUISIANA, LLC, ET AL.

PICKETT, J., dissenting.

I respectfully dissent. A thorough review of the record leads to the conclusion

that the trial court erred in granting the Motion for JNOV.

The majority correctly cites jurisprudence which sets forth the standard to be

applied when determining whether a JNOV is appropriate. In the matter before us,

however, the evidence does not point so strongly in favor of the moving party that

reasonable men could not reach different conclusions. In fact, there was ample

evidence before the jury to support its verdict.

The jury in this case attributed 60% of the fault in causing Mr. Domingue’s

death to his employer, MMD, 5% to Charles Judice, the driver of the ADT which ran

over Mr. Domingue, and 35% to Mr. Domingue. The jury found Cameco to be free

from fault, finding no design defect in the ADT involved in the accident. Since the

trial judge’s JNOV reversed the jury’s finding on the issue of Cameco’s fault, and

Cameco is the lone appellant, our sole inquiry should be whether the evidence points

so strongly in favor of finding Cameco at fault that reasonable men could not reach

a different conclusion. Our jurisprudence tells us that a mere preponderance of

evidence in favor of the mover is insufficient. In order for the JNOV to be properly

1

granted, the facts and inferences must be so strongly and overwhelmingly in favor of

finding Cameco at fault that reasonable men could not have found otherwise. If,

however, reasonable persons, in the exercise of impartial judgment, could have found

Cameco free from fault, then it was error for the trial court to grant the motion and

this court further errs by affirming the trial court’s judgment.

My review of the record convinces me that the trial judge erred in granting the

plaintiffs’ motion for JNOV. While the testimony and evidence presented by

plaintiffs’ witnesses O. Peter Smith, H. John Head and Michael Sutton do in fact

support a finding that Cameco shared the fault for Mr. Domingue’s death, unlike the

majority, I find the testimony and evidence presented by Cameco’s witnesses, Ronald

Adams, Ken Rodrigue, and Ronald Brass, exonerated Cameco. The fact that the jury

obviously chose to accept the testimony of the Cameco witnesses does not, as the

majority seems to believe, make them unreasonable.

Mr. Ronald Adams, who owned his own contracting business, testified that in

the mid-1980s he was using DJB articulated dump trucks, touted by the plaintiffs’ O.

Peter Smith for their superior visibility. Mr. Adams stated that he was dissatisfied

with the DJBs because of their short, narrow wheel base which caused oscillation,

road rutting and instability. He testified that, when attempting to turn corners with

a fully loaded DJB, the vehicle had a tendency to turn over. He further explained that

the short wheel base would cause the rear tires to fall into the same ruts the front tires

had just vacated, thus tearing up the roadway and causing the vehicle to oscillate.

Because of his dissatisfaction with the DJB and his positive experience with Cameco

405-B tractors, he approached Cameco and asked if they could modify their 405-B

tractor to accept a dump truck bed. He explained that he was interested in a stable

2

vehicle with a large “foot print” and a longer wheel base than the DJB. Cameco

agreed to take on the project and converted three 405-B tractors to 405-B articulated

dump trucks (hereafter ADTs or 405-Bs). The Cameco ADTs had dual tires on each

side of its axles, both front and rear, giving it a large foot print. This large foot print

increased its stability and decreased the amount of load placed on each tire. This not

only allowed the vehicle to carry heavy loads but also increased the life of the tires.

Mr. Adams was so impressed with the performance of the 405-Bs that the next year

he ordered three more of the vehicles. He testified that he used those six machines

from the mid-80s until he went out of business and auctioned them off in 1999. He

stated that during that time none of the vehicles turned over or became involved in

any accident because of poor operator visibility. When the ADTs were auctioned in

1999, they were equipped with large rear-view mirrors mounted on the roof on each

side of the cab where the operator sat.

Ken Rodrigue, who started at Cameco, retired from John Deere (who acquired

Cameco) as President of Cameco Industries. Mr. Rodrigue was one of the founders

of Cameco and was serving as Executive Vice President of Production and

Engineering at the time John Deere acquired the company. Mr. Rodrigue was Vice

President of Production and Engineering at Cameco when the 405-B ADT was

conceived and manufactured and was responsible for modification of the 405-B

tractor into the 405-B ADT. He stated that Mr. Adams had purchased some 405-B

tractors to use with some Cameco 12-C scrapers, was impressed with the tractors and

inquired about the possibility of Cameco producing a 405-B ADT. Mr. Adams took

Mr. Rodrigue to a building site, showed him the DJBs they were using and explained

the problems he was having with the DJBs—tearing up the haul roads, getting stuck,

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and the biggest problem, turning over. Cameco then designed and built the 405-B

ADT to overcome the problems Mr. Adams was having with the DJBs. Hence, the

longer and wider wheel base and the dual tires front and rear. Mr Rodrigue testified

that Cameco equipped the ADTs with dual outside mirrors to permit the operator to

see as much as possible and used hydrostatic power steering to make the ADT as easy

to handle as possible.

The plaintiffs’ experts were of the opinion that the dual front tires were

unnecessary and were a design defect and a safety hazard as they decreased visibility

and increased the turning radius of the 405-B. When queried about the necessity of

dual front tires, Mr. Rodrigue explained that the ADT had to be designed to operate

over different types of terrain. He stated that on soft ground, the dual front tires were

necessary to provide sufficient “flotation” or ground pressure which he defined as

“the force imposed . . . by the weight of the vehicle through the tire to the ground . .

. usually measured in pounds per square inch.” Insufficient flotation would cause the

ADT to sink into soft ground, increasing rolling resistance thus making the machine

inefficient. He also testified that on hilly terrain, the combined weight of the vehicle

and its load would be principally on the rear axle and tires while going uphill, but

would then shift to the front axle and tires when going downhill, i.e., weight

distribution was not static, but a function of the grade which the ADT was traversing.

Finally, he stated that, the dual tires front and rear, increased the ADTs footprint,

greatly adding to its stability, thereby making it almost impossible to turn over.

The plaintiffs’ claim that the vehicle was defective in design because of poor

visibility due to the dual tires and a long hood. Mr. Rodrigue testified that the vehicle

came equipped with large rear view mirrors mounted on the outside-top of the cab.

4

He explained that Cameco was aware of some limited visibility to the direct front of

the ADT and included a warning in the manual which came with the vehicle that

before proceeding, “make sure you have sufficient room to maneuver and the area is

clear of personnel.” “[A] product is not unreasonably dangerous or defectively

designed where the evidence shows that the product can be safely used if the

instructions in the operations manual are followed.” Delphen v. Dep’t of Transp. and

Dev., 94-1261, p. 8 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 334, writs denied,

95-2116, 95-2124 (La. 11/17/95), 663 So.2d 716, 717. He went on to say that, to

increase visibility, a driver could stand up and/or look around the side or simply

articulate the ADT to either side to see any area in which his visibility was restricted.

The defense’s final witness was Mr. Ronald Brass, a retired John Deere

engineering specialist who now owns his own consulting firm. He also addressed the

plaintiffs’ allegations of design defects. As to the dual tires, he explained that not

only do they greatly increase stability, but they provide the vehicle with superior

flotation characteristics. Mr. Brass stated that on a hard surface it takes

approximately forty pounds of force per ton of a vehicle to over-come rolling

resistance. Accordingly, if you wanted to push an automobile which weighed 4,000

pounds or two tons, you would have to apply eighty pounds of effort to move the car

across a hard surface. He explained that on a soft surface, like mud or sand, the force

required increases quickly and may reach 400-500 pounds per ton. He testified

another advantage of dual tires is the increased useful life of the tires. He noted that

industrial tires are quite expensive and that most tire failure is due to sidewall failure

cause by flexing of the sidewall. Dual tires decrease sidewall flexing, thereby

increasing tire life. He went on to say that dual tires also provide greater traction by

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placing more tire surface in contact with the ground. As an example, he noted that

in some parts of the country one finds some farm tractors with four-wheel-drive and

triple tires.

In addressing the question of restricted visibility, Mr. Brass agreed “that when

the machine is pointed in a particular direction and you look only across the very top

of the hood that there is an area of restricted visibility ahead of the machine.” Mr.

Brass went on to say that he agreed with Mr. Rodrigue “that all you need to do is, is

turn the steering wheel a bit and then you can see the area that would formerly have

been hidden and you can turn the wheel the other way and you can see that area

without difficulty.” In addition, Mr. Brass explained, the seat on the ADT is fully

adjustable, up and down, fore and aft, and even has “a weight adjustment which allows

you to basically crank up the spring force to increase the height of the operator as he

sits in the cab.”

One of the plaintiffs’ experts had opined that visibility was restricted because

of inferior material in the windshield which permitted scratching and pitting. when

questioned about this allegation, Mr. Brass replied:

[T]he windows that were provided by Cameco, the windshield and the
two quarter windows were made of a material identified as lexan. Lexan
is one of the acrylic families. That’s the clear kind of plastic that you see
and it’s very break resistance [sic]. That’s the reason it was used here.
It was not only lexan, but it was a special version of lexan called
marguard, which has a scratch resistance [sic] surface, so it, it is the kind
of material that you might use in the dirty, dusty kind of environment
which this machine would be found in [sic].

In sum, Mr. Rodrigue stated, “I do not believe that the [design of the] 405B dump

truck was a cause of the accident that involved Russell Domingue.”

These witnesses’ testimony as to the visibility is bolstered by a review of the

video tape presented to the jury that clearly shows, when sitting in the driver’s seat,

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an unimpeded view of the area in front of the tires that ultimately ran over Mr.

Domingue.

The majority relies, in affirming the JNOV, on the trial court’s finding that “the

expert testimony presented by Mike Sutton and Peter Smith demonstrated that the

blind spot on the 405B truck was caused by a [design defect] and was a proximate

cause of Domingue’s death.” The majority, however, ignores the evidence presented

to the jury to the contrary.

The majority further notes that “[t]he trial court found the blind spot was

exceptionally large, causing a driver to be unable to see, at all, a person of

Domingue’s height in the location of the accident. The court also found the design

defect which causes the blind spot was not necessary to the functioning of the truck

and could have been easily modified at minimal cost.” A review of the record shows

that these conclusions by the trial court are reached not by relying on uncontroverted

evidence but on evidence that was highly controverted. For example, Mike Sutton,

upon who’s testimony the trial court relied in reaching its conclusion, testified on

direct that Mr. Domingue was entirely in a blind spot from the time the ADT operator

began moving the machine forward until Mr. Domingue was struck and killed. On

cross-examination, however, it was established that Sutton did not necessarily have

the correct information as to Mr. Domingue’s location before the ADT pulled forward,

and Sutton admitted that when Mr. Domingue was struck and killed by the left,

outside tire he was not in a blind spot.

It is the jury’s function to determine what testimony to accept and what to

reject. Its is error on the part of the trial court to substitute its judgment for that of the

jury when the jury verdict is clearly supported by the evidence. It is clear that

7

reasonable persons, in the exercise of impartial judgment, could have found Cameco

free from fault and it was error for the trial court to grant the plaintiffs’ motion for

JNOV.

Accordingly, I would reverse the trial court’s JNOV and reinstate the jury

verdict.

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