Ron Warren, Ind & Obo Est. of D. Hebert v. Shelter Mutual Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1113 consolidated with 15-354 & 15-838

RON WARREN, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF DEREK HEBERT

VERSUS

SHELTER MUTUAL INSURANCE COMPANY, ET AL.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-385
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
John E. Conery, Judges.

CONERY, J., concurs in part, dissents in part and assigns reasons.

AFFIRMED.

Anthony M. Fazzio
4906 Ambassador Caffery – Suite 1000
Lafayette, LA 70508
Telephone: (337) 406-1122
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert

Barton W. Bernard
117 Caillouet Place
Lafayette, LA 70501
Telephone: (337) 989-2278
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert

Steven Broussard
Steven R. Hart
Aaron Broussard
Broussard & Hart, LLC
1301 Common Street
Lake Charles, LA 70601
Telephone: (337) 439-2450
COUNSEL FOR:
Plaintiff/Appellee - Ron Warren, Individually and on Behalf of the
Estate of Derek Hebert

David R. Frohn
Manion Gaynor & Manning LLP
2201 Lake Street - Suite 106
Lake Charles, LA 70601
Telephone: (337) 419-1929
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.

H. Alston Johnson, III
Phelps Dunbar LLP
II City Plaza
400 Convention Street - Suite 1100
Baton Rouge, LA 70802
Telephone: (225) 346-0285
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.

Jeffery D. Fruge
The Thibodeaux Law Firm, LLC
P. O. Box 2090
Lake Charles, LA 70602-2090
Telephone: (337) 433-5523
COUNSEL FOR:
Defendant/Appellant - Teleflex, Inc.

Rudie R. Soileau, Jr.
Lundy, Lundy, Soileau & South, LLP
P. O. Box 3010
Lake Charles, LA 70602
Telephone: (337) 439-0707
COUNSEL FOR:
Defendant/Appellee - Glen D. Vamvoras

Richard D. Chappuis, Jr.
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
Telephone: (337) 232-9700
COUNSEL FOR:
Defendant/Appellee - Bowtie Marina

Maurice L. Tynes
Maurice L. Tynes & Associates
4839 Ihles Road
Lake Charles, LA 70605
Telephone: (337) 479-1173
COUNSEL FOR:
Defendant/Appellee - Daniel Vamvoras

Vernon Ed McGuire, III
Plauche', Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
Telephone: (337) 436-0522
COUNSEL FOR:
Defendants/Appellees - Richard Gandy, Michael Torres, Progressive
Security Insurance Company, and Logan Gandy

James Ryan, III
James Ryan III & Associates, LLC
201 St. Charles Avenue – Suite 2420
New Orleans, LA 70170
Telephone: (504) 599-5990
COUNSEL FOR:
Defendant/Appellant – Harold Dyke d/b/a Harold’s Marine

Joshua S. Force
Kevin M. McGlone
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
909 Poydras Street – Suite 2800
New Orleans, LA 70112
Telephone: (504) 299-2100
COUNSEL FOR OTHER:
National Marine Manufacturers Association

Francis P. Manchisi
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, NY 10604
Telephone: (914) 872-7000
COUNSEL FOR OTHER:
National Marine Manufacturers Association

Iain L. Kennedy
Shook, Hardy & Bacon L.L.P.
Miami Center - Suite 3200
201 S. Biscayne Boulevard
Miami, FL 33131-4332
Telephone: (305) 358-5171
COUNSEL FOR OTHER:
Louisiana Association of Business and Industry

Mark A. Behrens
Cary Silverman
Shook, Hardy & Bacon L.L.P.
1155 F Street NW – Suite 200
Washington, DC 20004
Telephone: (202) 783-8400
COUNSEL FOR OTHER:
Louisiana Association of Business and Industry

THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Warren v.

Shelter Mutual Insurance Company, et al., 15-354 (La.App. 3 Cir. ___/___/___);

____ So.3d ____, the judgments of the trial court are affirmed in all respects.

All costs are assessed to Teleflex, Inc.

AFFIRMED.

NUMBER 15-354 consolidated with 15-838 & 15-1113

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

RON WARREN, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF DEREK HEBERT

VERSUS

SHELTER MUTUAL INSURANCE COMPANY, ET AL.

CONERY, J., concurs in part, dissents in part, and assigns reasons.

I respectfully dissent from the majority’s decision to affirm the trial court’s

ruling to grant a new trial from the first jury verdict in favor of Teleflex. I would

reverse and render judgment in favor of Teleflex, dismissing all of plaintiff’s

claims with prejudice at his cost. This decision renders moot all remaining

assignments of error. There are three separate appeals consolidated and considered

together. I will discuss only the appeal in docket number 15-1113 alleging trial

court error by granting a new trial from the first jury verdict finding for Teleflex

and resulting in a judgment dated September 30, 2014, in its favor, dismissing all

plaintiff’s claims with prejudice and at plaintiff’s cost, which I would propose to

reinstate.

Should the trial court’s and majority decision become final, I concur only

with the majority decision in docket number 15-838 to affirm the trial court’s

decision to award prejudgment interest on compensatory damages and deny

prejudgment interest on punitive damages.

Page 1 of 26

ASSIGNMENT OF ERROR NO. 2

NEW TRIAL

Louisiana code of Civil Procedure Articles 1972 and 1973 set forth the basis

upon which a new trial can be ordered.1 None of the mandatory grounds found in

La.Code Civ.P. art. 1972 apply here. The trial judge articulated that he granted a

new trial in this case under the discretionary grounds found in La.Code Civ.P. art.

1973 in order to prevent a “miscarriage of justice.”

The majority accurately quotes Lamb v. Lamb, 430 So.2d 51 (La.1983), as to

the law generally applicable to the issue of the grant of a new trial. However,

where, as here, the jury heard all of the evidence, significant weight must be given

to the jury’s decision. In Lamb, the supreme court set forth the well-settled

standard for granting a new trial and emphasized the need to examine all of the

“facts and circumstances of the individual case”.

[Louisiana Code of Civil Procedure Article] 1973 provides that
the trial court may grant a new trial if there exists good grounds
therefor. A proper application of this article necessitates an
examination of the facts and circumstances of the individual case.
When the trial judge is convinced by his examination of the facts
that the judgment would result in a miscarriage of justice, a new trial
should be ordered. Deliberto v. Deliberto, 400 So.2d 1096 (La.App.

1
Louisiana Code of Civil Procedure Article 1972 provides:

A new trial shall be granted, upon contradictory motion of any party, in the
following cases:

(1) When the verdict or judgment appears clearly contrary to the law and the
evidence.

(2) When the party has discovered, since the trial, evidence important to the
cause, which he could not, with due diligence, have obtained before or during the
trial.

(3) When the jury was bribed or has behaved improperly so that impartial justice
has not been done.

Louisiana Code of Civil Procedure Article 1973 provides, “A new trial may be granted in
any case if there is good ground therefor, except as otherwise provided by law.”

Page 2 of 26

1st Cir.1981); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980);
Shows v. Williamson, 256 So.2d 688 (La.App. 2nd Cir.1972); See
Hardy v. Kidder, 292 So.2d 575 (La.1973); Succession of Robinson,
186 La. 389, 172 So. 429 (1936).

(Emphasis added.)

Further, the first circuit has more recently stated, “the discretionary power to

grant a new trial must be exercised with considerable caution, for a successful

litigant is entitled to the benefits of a favorable jury verdict.” Burris v. Walmart

Stores, Inc., 94-0921 (La.App. 1 Cir. 3/3/95), 652 So.2d 558, 560, writ denied, 95-

0858 (La. 5/12/95), 654 So.2d 352. The reviewing court must balance the great

deference given to the jury’s fact-finding role and the discretion of the trial judge

in deciding whether to grant a new trial from a favorable jury verdict. See Davis v.

Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84. In doing so, “The

scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial

court is left with a breadth of discretion which varies with the facts and events of

each case.” Id. at 94. “The trial record must be examined carefully to

determine if the trial court abused its discretion in deciding that the jury verdict

was not supportable by ‘any fair interpretation of the evidence.’” Campbell v.

Tork, Inc., 03-1341, p. 5 (La. 2/20/04), 870 So.2d 968, 971 (emphasis added)

(citing Id.).

In Campbell v. Tork, 870 So.2d at 971 (footnotes omitted), our supreme

court articulated the standard of review to be used by an appellate court in

reviewing a trial court ruling on a motion for new trial:

The applicable standard of review in ruling on a motion for new
trial is whether the trial court abused its discretion. Martin[ v.
Heritage Manor South Nursing Home, []00-1023 (La.4/3/01), 784
So.2d 627, [632]]. In order to apply this standard, “we are faced with
the balancing of two very important concepts: the great deference
given to the jury in its fact[-]finding role and the great discretion

Page 3 of 26

given to the trial court in deciding whether to grant a new trial.”
Davis, [] 774 So.2d. at 93-94. Though the “[trial] court has much
discretion [in determining whether to grant a new trial], this [c]ourt
will not hesitate to set aside the ruling of the trial judge in a case of
manifest abuse.” Lamb v. Lamb 430 So.2d 51 (1983). Thus, although
“the scales are clearly titled in favor of the survival of the jury’s
verdict, the trial court is left with a breadth of discretion which varies
with the facts and events of each case.” Davis, [] 774 So.2d at 94.

Although our standard of review is relatively straight-forward,
the application of this standard is more complicated. Martin, [] at
632. In order to enable this Court to correctly apply this standard of
review, the facts and evidence presented in each case are very
important. The trial record must be examined carefully to determine
if the trial court abused its discretion in deciding that the jury verdict
was not supportable by “any fair interpretation of the evidence.”
Thus, the evidence and testimony is hereafter examined in order to
correctly apply our standard of review.

Thus, it is clear that it is the duty of the trial judge to review all of the

evidence before making a decision to grant a new trial and only if the trial court

finds that the jury’s verdict was not supportable by any fair interpretation of the

record as a whole may a new trial be granted.

In Davis v. Wal-Mart, our supreme court found that the “jury’s verdict was

supportable by a fair interpretation of the evidence” and found no good grounds for

the grant of a new trial. Id. at 95. The court stated:

The fact that a determination on a motion for new trial involves
judicial discretion, however, does not imply that the trial court can
freely interfere with any verdict with which it disagrees. The
discretionary power to grant a new trial must be exercised with
considerable caution, for a successful litigant is entitled to the
benefits of a favorable jury verdict. Fact finding is the province
of the jury, and the trial court must not overstep its duty in
overseeing the administration of justice and unnecessarily usurp
the jury’s responsibility. A motion for new trial solely on the basis
of being contrary to the evidence is directed squarely at the accuracy
of the jury’s factual determinations and must be viewed in that light.
Thus, the jury’s verdict should not be set aside if it is supportable
by any fair interpretation of the evidence.

Id. at 93 (emphasis added) (citations omitted).

Page 4 of 26

In Davis v. Witt, 02-3102, p. 23 (La. 7/2/03), 851 So.2d 1119, 1134

(emphasis added), the supreme court quoted Davis v. Walmart throughout and

reversed the trial court’s grant of a new trial and reinstated the jury verdict.

Finding that the evidence fully supported the jury’s verdict, the supreme court

stated:

When any fair interpretation of the evidence supports the
jury’s verdict, the grant of a new trial must be reversed. - - - “It is
well accepted a party may not assign as error the giving or the
failure to give a jury instruction unless he objected at trial. . . . As
such, we have said that the failure to object to the inclusion of a jury
charge precludes a party from raising a claim[.]

Our court has further stated that “the requirement of a simultaneous

objection would be meaningless if a party could reserve the right to register an

objection until after an adverse verdict.” Pitard v. Davis, 599 So.2d 398 (La.App.

5 Cir. 1992) (emphasis added) (citing Mobley v. General Motors Corp., 482 So.2d

1056, 1061 (La.App. 3[] Cir. 1986), writ denied, 486 So.2d 735 (La.1986).

In Johnson v. H.W. Parson Motors, Inc., 231 So.2d 73, 79 (La.App. 1 Cir.

1970), counsel did not object to the trial court making a comment about the

characterization of a witness in the presence of the jury. The first circuit stated:

We also note that no effort was made by counsel for appellants either
at that stage of the trial or in conjunction with the trial court’s
charging of the jury to bring this matter to the attention of the trial
court so that the jury could be expressly admonished to disregard the
comment. We feel counsel for appellants should have made his
objection before the trial court or if he felt the statement so
prejudicial, he should have moved for a mistrial; instead, counsel for
appellants was willing to permit the jury to consider the case and only
after appellants have received an unfavorable verdict and judgment is
this error urged as a basis for reversal and a new trial. We feel under
the circumstances appellants waived the objection and cannot now be
heard to complain[.]

The recent Louisiana Supreme Court decision in Logan v. Schwab, 15-1508

(La. 5/27/16), _____ So.3d _____, is instructive on this issue. The majority per

Page 5 of 26

curiam opinion granted plaintiff a new trial because of a “miscarriage of justice”

caused by the outrageous behavior of the trial judge as described in detail by Chief

Justice Johnson in her concurrence. The majority stated “Considering the unique

and narrow facts presented, we conclude a new trial must be granted.” Three

justices dissented. The dissents pointed out that the behavior of the trial judge,

however outrageous, had not been properly documented in the record and no

contemporaneous objection was made as to the judge’s behavior during the trial:

This examination required by law must be based on evidence,
not conjecture, and begins with the trial record. In the trial record,
there is nothing to substantiate the plaintiffs’ allegations of
inappropriate behavior. Most significantly, there is not even an
objection in the trial record for any of the allegations leveled against
the judge. This court has previously found that the lack of a
contemporaneous objection about a judge’s conduct reveals a lack of
prejudice.

....

However, the law also contains the counsel of great care and caution
in resorting to a juror’s impressions. Specifically and directly,
[La.Code Evid.] art. 606(B) limits a juror’s testimony to “whether any
outside influence was improperly brought to bear upon any juror” and
prohibits testimony as to the “effect of anything upon his or any other
juror’s mind or emotions as influencing him” or “concerning his
mental processes” as to reaching a verdict.

....

As this court previously recognized, there are two rationales
behind the contemporaneous objection rule: “(1) to put the trial judge
on notice of the alleged irregularity so that he may cure the problem
and (2) to prevent a defendant from gambling for a favorable verdict
and then resorting to appeal on errors that might easily have been
corrected by objection.” State v. Thomas, 427 So.2d 428, 433
(La.1982) (on reh’g). A party should not be entitled to stash an
objection in his back pocket and sit on it, only to pull it out after
an adverse judgment.

Id. at pp. 2-3 (emphasis added). Though contained in the dissents, the points of

law at issue accurately quote settled jurisprudence.

Page 6 of 26

In Mitchell v. Diamond Offshore Drilling, Inc., 05-396, pp. 9-10 (La.App. 3

Cir. 11/2/05), 916 So.2d 465, 472, our court stated, “Even assuming the trial judge

may have committed a ‘borderline’ error in commenting upon the testimony in the

manner in which he did, upon our review of the record, we find the comments did

not deny the jury adequate and meaningful deliberations or deprive [defendant] of

a fair trial.”

The supreme court, in a recent decision authored by Justice Knoll dealing

with the manifest error rule had this to say about the duty of a reviewing court

when considering whether to overturn a jury verdict: “The issue to be resolved on

review is not whether the judge or jury was right or wrong, but whether the judge’s

or jury’s factfinding conclusion was a reasonable one.” Hayes Fund for First

United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC,

14-2592, p. 4 (La. 12/8/15), ___ So.3d ___. Further, the court stated:

Rather in reversing a trial court’s factual conclusions with regard to
causation, the appellate court must satisfy a two-step process based on
the record as a whole: there must be no reasonable factual basis for
the trial court’s conclusion, and the finding must be clearly wrong.
Stobart v. State through Dept. of Transp. and Development, 617 So.2d
880, 882 (La. 1993).

This test requires a reviewing court to do more than simply
review the record for some evidence, which supports or controverts
the trial court’s findings. The court must review the entire record to
determine whether the trial court’s finding was clearly wrong or
manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La.
2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review
is not whether the judge or jury was right or wrong, but whether the
judge’s or jury’s factfinding conclusion was a reasonable one. Rosell
v. ESCO, 549 So.2d 840, 844 (La. 1989); Canter v. Koehring Co., 283
So.2d 716, 724 (La.1973).

Notably, reasonable persons frequently can and do disagree
regarding causation in particular cases. But where there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be manifestly erroneous or clearly wrong. Rosell, 549
So.2d at 844.

Page 7 of 26

Id. at pp. 4-5.

In reviewing the jury’s verdict and deciding whether to grant a new trial, the

trial judge in this case had an even greater standard. He is not to overturn the

jury’s verdict when any fair interpretation of the evidence would support it.

In this case, the only grounds for the motion for new trial was the claim that

the trial judge, in response to a jury question, and after consulting with all the

attorneys, mistakenly gave inaccurate information to the jury about the effective

date of an owner’s manual for the steering system in question. In effect, the

allegation is that because the trial judge, without objection, and in fact, by

agreement of all counsel, inaccurately commented upon or added to the evidence

already in the record in violation of the prohibition against a judge commenting

upon or attempting to recapitulate the evidence in a jury trial contrary to La.Code

Civ.P. art. 1791,2 there was a “miscarriage of justice” under the discretionary

grounds of La.Code Civ.P. art. 1973 such that a new trial should be ordered.

The record shows the following occurred:3

(Whereupon the jury returns to the courtroom.)

THE COURT:

You asked two things. You asked for photographs. We’re
going to send you with two photographs. Okay? And you said
manuals. We didn’t know which ones you wanted, or you wanted all
2
Louisiana Code of Civil Procedure Article 1791 provides: “The judge in the presence of
the jury shall not comment upon the facts of the case, either by commenting upon or
recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to
what has been proved, not proved, or refuted.”
3
The exhibits mentioned throughout this opinion will be identified as follows:

P-2 Photo of Boat Pump
P-5 Photo of Cylinder Warning
P-22 Warning Sign (Cylinder)
P-23 Warning Sign (Pump)
P-24 SeaStar Manual for Outboard

Page 8 of 26

three:

JURY FOREMAN:

The copy of the two - - or the manuals that came with
the - -

THE COURT:

I got a manual on SeaStar, a manual the Champion boat, and a
manual on the OMC motor.

JUROR:

We want the manual for the helm cylinder, that - - the steering
one.

THE COURT:

SeaStar.

JUROR:

Yeah.

THE COURT:

Okay.

JURY FOREMAN:

And the pictures of it too.

THE COURT:

Got it. This is “P-5”. That’s what you wanted? And
“P-2”.

Okay. The bailiff will bring it back to you in the courtroom
(sic).

THE CLERK:

“P-24.”

THE COURT:

“P-24” is the one they’ve got, the SeaStar manual.

Page 9 of 26

(Whereupon the jury exists the courtroom to deliberate.)

(Whereupon the jury returns to the courtroom.)

THE COURT:

Okay. My appreciation of the question is; “Is this the ‘97
SeaStar manual that would have been in the boat available in 1998?”
That’s my understanding of that.

Were you looking at this to give you the 2006?

The back of it says was revised in 2006.

JURY FOREMAN:

The back of it says was revised in 2006.

THE COURT:

I don’t see that he’s talking about.

(Whereupon the juror approaches to point it out.)

JURY FOREMAN:

It says, “0706 Rev.” at the bottom. Or is that maybe just a
code, or . . .

THE COURT:

Okay. Come see.

Form number - - it’s - - no, that’s just a - - that’s probably just
a code. What they were looking for here - - see, ‘07, ‘06.

MR. FROHN:

That’s just printer’s code of some kind.

THE COURT:

That’s not a revision date:

MR. FROHN:

No, that’s a - - that’s got to be a printer’s code - -

THE COURT:

Page 10 of 26

No. This is what purports to be the manual that was
available, or that was produced in connection with the device
that was in the boat. Yeah.

(Emphasis added.)

The manual in question, introduced by plaintiff and identified as P-24, was

the only steering system manual in evidence. Arguably, when the question arose,

the judge should have simply instructed the jurors that they must rely on their

memory of the witness testimony as to the date and relevance of the manual.

Instead, the trial judge called the lawyers to the bench for a bench conference. The

trial record confirms that plaintiff’s counsel was at the very depositions at which

the experts testified as to when the applicable manuals were printed and when they

were revised. Most importantly, at the moment the jury asked the question and the

court answered it after consulting with both attorneys, there was no

contemporaneous objection made by plaintiff’s counsel when the judge asked

the attorneys what answer to give the jury. When the judge did answer the

question, Teleflex’s attorney and the trial judge were wrong about the effective

date of the manual, but since that manual was the only manual in evidence that

pertained to the steering system, the full answer given by the trial judge, as noted

above, was factually correct. This was the manual (the only manual in evidence)

that pertained to the steering system, regardless of the date.

Plaintiff’s counsel, Mr. Bernard, alleged in the motion for new trial filed

with the trial court that co-counsel, Mr. Fazzio, “handled that part of the case,” and

was not in the courtroom when the jury’s question arose. However, the attorney in

question, Mr. Fazzio, stated the following on the record at the motion for new trial:

When I come in Mr. Dewees (the jury foreman) and other are
walking through the door and apparently somebody was focused on

Page 11 of 26

that date stamp. Mr. Dewees walks to the jury box - - - and he shows
the Court what it is he’s looking at. I’m standing back at counsel
table and I’m watch this go on and then Mr. Frohn says to the - - to
the jury or says in front of the jury, “It’s a printer’s code.”

Though Mr. Fazzio may not have been in court when the jury first came in and

asked about the manual, clearly, Mr. Fazzio was in court and able to object before

the jury went back in to deliberate.

In this case, it was plaintiff’s burden to prove that a new trial was warranted.

In that connection, it is especially difficult to discern what effect, if any, the answer

to the jury’s question may have had on the jury’s decision. Any effort to delve into

the minds of the jurors post trial would be prohibited by the Louisiana Code of

Evidence. Indeed, La.Code Evid. art. 606(B) states:

Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of anything upon
his or any other juror’s mind or emotions as influencing him to assent
to or dissent from the verdict or indictment or concerning his mental
processes in connection therewith, except that a juror may testify on
the question whether any outside influence was improperly brought to
bear upon any juror, and, in criminal cases only, whether extraneous
prejudicial information was improperly brought to the jury’s attention.
Nor may his affidavit or evidence of any statement by him concerning
a matter about which he would be precluded from testifying be
received for these purposes.

The record further reflects that immediately after the trial judge answered

the jury’s question, with no objection from plaintiff’s counsel, the judge had

second thoughts about whether he was improperly commenting on the evidence

and he specifically addressed the attorneys:

THE COURT:

Do you have (any) objection to my response to them.

MR. FROHN:

None whatsoever.

Page 12 of 26

MR. BERNARD:

None for the plaintiff either.

THE COURT:

It came close to commenting on the evidence and telling them
what it was, but I got the impression the testimony said that this was
the manual that went with the thing; is what the testimony was, right?
Okay. (No response.)

(Whereupon the jury exits the courtroom to deliberate.)

Again, plaintiff’s counsel did not object while there was still time to correct

any perceived error. Mr. Fazzio, the attorney who handled the questioning of Mr.

Killingsworth and all of the experts as to the manual, was at counsel table. At that

point, had there been an objection, the judge could have simply instructed the

jurors to rely on their memories and judgment as to what plaintiff’s own exhibit

meant and whether the effective date of that “manual revision” was relevant.

The very notion that the trial judge informing the jury by agreement of all

counsel that the wrong revision date on plaintiff’s own exhibit can then be used to

establish a “miscarriage of justice” warranting a new trial is especially contradicted

where, as here, the testimony at trial was that neither the boat owner or operator

had ever received or read any manual on the hydraulic steering system. Plaintiff’s

own expert, Stephen Killingsworth said of the relevance of the manual:

Q. You talked about this manual - - well, let’s start kind of
backwards here. The manual that we now have into evidence,
just to be sure of what it is entitled, it is entitled not only
installation instructions, but it is an owner’s manual, correct?

A. That’s correct.

Q. And you’ve been around this case long enough to know that
this [P-24] is the manual that the Vamvoras family did not get
when they bought the boat?

Page 13 of 26

A. That’s what I understood.

Q. Okay. So, for all your quarreling with the manual, it doesn’t
matter because they didn’t have it to read anyway.

A. I don’t know if that’s a question.

Q. I’m sorry. Isn’t it true that they didn’t have it in the first
instance to even refer to if they so chose?

A. That’s correct. But the manual - - when I take on a task and
look at this I look at – they may not have had access to it, but I
look at the population, and it’s been discussed by Mr. Fetchko
in regard to it, we’ve got to take into account the entire
population. The entire population would have been using that -
- that purchased the helm and the other information.

Q. Well, this is not a - -

A. Well, I know. What I’m saying is that I’m not just singling out
Mr. Vamvoras. I’m simply saying, as a writer of manuals,
writer of warning, as a designer, I would have expected that
information to be there, period.

Q. Okay. But isn’t it logical that, no matter how much you
quarrel with the manual, if the person who is supposed to
get it didn’t get it, it’s sort of immaterial to a particular
case?

A. That I’ll agree to.

(Emphasis added.)

The adequacy of the warnings in the Teleflex manual was never at issue. In

Bloxom v. Bloxom, 512 So.2d 839, 850-51 (La.1987),4 the Louisiana Supreme

Court had this to say about adequate warnings in an owner’s manual,

“Accordingly, even if an adequate warning of the particular danger in this case had

been given by a proper provision in the manual, such a warning would have been

futile because Lonnie Bloxom did not read the manual before parking his car over

combustible materials.”

Page 14 of 26

In fact, during this trial counsel for plaintiff attempted to question Mr. Glen

Vamvoras about warnings in general, which would include any warnings that may

have appeared in the Teleflex steering system manual.

Q. All right. Let’s suppose you had had a warning that said, “Be
careful of leaks, because the leak can put the system in trouble.”
Would you have let your son take the boat if Derek had told
you he saw leaking?

MR. FROHN:

Your Honor, I object to the question that it’s now been
established he did not receive a manual, he did not receive any -
-

THE COURT:

Objection. Sustained.

The trial judge recognized that warnings in the manual were irrelevant and

quickly sustained the objection.

In a motion for new trial, the burden remains on the mover. Here, there was

no evidence introduced at the new trial motion as to how the erroneous answer to

the jury’s question may have possibly influenced the jury’s verdict, much less

proof of a “miscarriage of justice.” No affidavits, no testimony from an expert or

even from plaintiff’s counsel – NOTHING! There definitely was no showing of a

“miscarriage of justice.”

Assuming arguendo that the trial judge had the authority to grant a new trial

in the absence of a contemporaneous objection during trial, an assumption with

which I strongly disagree, did the trial judge in this case examine the entire record

as required by Lamb and its progeny before overturning this jury’s decision and

granting a new trial? For whatever reason, the record shows that the trial judge did

4
Bloxom v. Bloxom, 512 So.2d 839, 850-51 (La.1987) has been superseded by statute on

Page 15 of 26

not examine the entire record to determine whether the supposed “erroneous”

answer to the jury’s question caused a “miscarriage of justice.” Instead, the trial

judge seemed to attempt to shoulder most of the blame. He focused on only one

issue, the so-called “erroneous” answer on the effective date of an owner’s manual

for the steering system, that, admittedly, the owner, Glen Vamvoras, and the

operator, Glen’s son, Daniel, had never seen or read. It bears repeating that the

plaintiff’s own expert, Mr. Killingsworth, did not opine that the warning in the

manual was lacking. To the contrary, he testified that a manual warning was not

relevant because the owner and the operator had never seen the manual.

Q. Okay. But isn’t it logical that, no matter how much
you quarrel with the manual, if the person who is supposed to get
it didn’t get it, it’s sort of immaterial to a particular case?

A. That I’ll agree to.

(Emphasis added.)

His was the only testimony that defendant was obligated to post a separate warning

near the steering wheel and on the helm cylinder. It was that “failure to warn” that

Mr. Killingsworth said was in “gross violation of the standard of care” and was

“reckless” behavior.

In this case, the trial judge focused only on the trial court’s answer to the

jury’s question about the effective date of plaintiff’s exhibit 24, the manual. There

was no “careful” review, or any review, of the trial record by the trial court. Nor

did the majority review all of the evidence in the record to determine whether “the

trial court abused its discretion in deciding that the jury verdict was not supportable

by ‘any fair interpretation of the evidence.’” Campbell, 870 2d at 971. The

majority quoted only the trial judge’s self- blame for giving the jury the “wrong

other grounds by Payne v. Gardner, 10-2627 (La. 2/18/11), 56 So.3d 229.

Page 16 of 26

answer” about the effective date of the manual.

A full examination of the record amply demonstrates that the “manual issue”

was not the basis for the plaintiff’s claim. First of all, to repeat, only one manual

was introduced in evidence, P-24 by plaintiff. Hypothetically, if there was an

alleged insufficient warning in that manual, it could have had no effect on the

jury’s ultimate decision, as both the owner and the operator never received or read

the manual in question. See Bloxom, 512 So.2d 839. Plaintiff’s entire case against

Teleflex was based on the failure to post a conspicuous warning within easy

eyesight of the boat operator, or design an audible warning the operator could hear.

The only witness who testified that such a warning should have been posted was

plaintiff’s expert, Stephen Killingsworth.

In opening and closing arguments, plaintiff’s counsel focused on the failure

to post a visible warning as recommended by Mr. Killingsworth as the basis for its

“failure to warn” products liability claim against Teleflex. No mention whatsoever

was made of the adequacy or inadequacy of any “warnings,” or lack thereof in the

Teleflex Steering System Manual.

In this case, it is clear that someone replaced the original Teleflex

manufactured port hose on the hydraulic steering system. It was established by the

expert testimony from Mr. Augusto “Kiko” Villalon, the experienced expert hired

by the Coast Guard to investigate the accident, that the port hose at the point of

connection to the helm cylinder on the hydraulic steering system had been

changed, and that a non-Teleflex hose and nut had been used to replace it. That

“aftermarket” hose and nut was leaking hydraulic fluid at the connection with the

helm cylinder. He opined that someone (whom we now know by his late

admission to be Daniel Vamvoras) had attempted to tighten the nut at that

Page 17 of 26

connection with vice grip pliers in a failed attempt to stop the leak of hydraulic

fluid. Photographs show the hydraulic fluid leak occurred in the non-Teleflex hose

and nut. The component which leaked hydraulic fluid, ultimately leading to a loss

of steering, was not a Teleflex product.

Plaintiff’s counsel spent a great deal of time trying to challenge Mr. “Kiko”

Villalon’s credibility by implying that he had done considerable prior work for

Teleflex. However, his actual findings were uncontradicted and corroborated by

the video of the leaks,5 as well as by all the pictures in evidence, including

plaintiff’s exhibits P-2 and P-5, which the jury had specifically asked to see.

Mr. Killingsworth, plaintiff’s expert, did not challenge the testimony of how

the leak originated and its eventual effect on the boat steering. Nor did the plaintiff

allege or argue otherwise. Their point, as testified to by Mr. Killingsworth, was

that Teleflex should have displayed a prominent warning that a hydraulic fluid leak

of a small amount of fluid could result in a total loss of steering with the possibility

of a violet j-turn that could result in property damage, ejection of occupants and

serious personal injury or death. Plaintiffs were even allowed to introduce into

evidence the exact warnings that Mr. Killingsworth recommended: “WARNING:

PARTIAL HYDRAULIC FLUID LOSS can cause total loss of steering, a sudden

spin, ejection of occupants, and in injury or death!!!!” Teleflex did install new

warnings after the accident, which the trial judge also admitted into evidence in a

questionable ruling as the new warnings were clearly “subsequent remedial

measures.” Those warnings are depicted on P-22 and P-23 and were shown to the

jury.

5
Teleflex 3.3 – DVD Villalon Video.

Page 18 of 26

Plaintiff’s counsel did an exceptional job of attempting to prove the case, but

the jury heard all of Mr. Killingworth’s testimony and obviously rejected his

theory that failure to post a visible warning by Teleflex or design an audible

warning, was a cause of the accident. Again, credibility calls and the duty to

weigh the evidence, find the facts and assign fault is within the unique province of

the jury.

This jury also heard the testimony of Eric Fetchko, the engineer at Teleflex

who had designed and patented the hydraulic steering system, who testified at

length at the trial. He was clear that the system had been tested and retested and

was much safer than the prior cable system used to steer recreational vessels of this

type. This was “power steering” for boats. The system had been in use fifteen

years with no prior complaints of a total failure such as this. Mr. Fetchko was

adamant that any operator of this vessel would immediately notice and feel a tactile

change in the steering of the vessel should there be “air in the system” due to a

hydraulic fluid leak. Such a leak would make the steering feel “spongy” or

“mushy.” The operator may also hear a distinct “clicking sound” as he turned the

steering wheel, and more rotations of the wheel would be required to execute a

turn. Those signs, that could easily be seen, heard, and felt, would be sufficient to

warn any prudent boat operator that something was wrong with the steering such

that it should be brought to a qualified mechanic to check it out. If such signs were

present, as they clearly were in this case, under no circumstances should an

operator run the vessel on plane at high speed.

Mr. Walter Laird, Teleflex’s expert, went into great detail in describing that

there was supposed to be an “O-ring” seal that would be present in a Teleflex hose

that would prevent leaks in the hydraulic steering system. He concluded that either

Page 19 of 26

the O-ring in this aftermarket hose was leaking or absent, and that was the cause of

the hydraulic fluid leak and the eventual cause of the steering failure which caused

this tragedy.

Mr. Laird even set up a demonstration for the jury to see how the steering

would be affected if there was such a leak. He reiterated that if the fluid leaked, air

would enter the system and would cause pronounced “clicking.” The vessel

operator would feel a “bumpy” or “mushy” feeling and, as time went on, it would

take more turns of the steering wheel to turn the boat. This would happen

gradually and any boat operator would immediately be able to feel the difference in

steering. Contrary to what would happen in a cable system where, if a steering

cable broke, there would be no warning before a complete loss of steering, the

Teleflex system would not suddenly fail without warning. The tactile sensation,

“clicking” and “spongy feeling,” “bumpiness,” or “mushy feeling” could

immediately be felt and would gradually get worse over time if the system

continued to leak hydraulic fluid.

Testimony and records from both marinas that performed general

maintenance on this boat was that no one had done work on the hydraulic steering

system, and both were dismissed from this case after extensive attempts during

pre-trial discovery produced no records of work on the hydraulic steering system.

Someone obviously changed that hose and the nut at that leaking port hose

connection.

Mr. Glen Vamvoras testified that a few months before this accident, he and

a friend, Mr. Ronnie Gibbs, were fishing and Mr. Gibbs told him the steering “felt

different.” They discussed adding hydraulic fluid to the steering system. Mr.

Vamvoras claimed that Mr. Gibbs called another person, Mr. “Buck” Fellows, who

Page 20 of 26

told them where to add hydraulic fluid. Mr. Vamvoras went to Wal-Mart,

purchased the fluid, and added it himself without consulting a hydraulic steering

system mechanic located near his home. There is conflicting evidence that he may

have added even more hydraulic fluid just two months before this tragedy. The

jury could have easily concluded that Glen Vamvoras knew or should have known

that there was a leak in the hydraulic steering system and problems with the

steering. The pictures in evidence and the video tell the tale!

The LDWF agent, Sgt. Liles, and “Kiko” Villalon confirmed that there was

evidence of poor maintenance and a visible leak at the non-Teleflex hose

connection, and a video shown to the jury depicted the leak.

Mr. Glen Vamvoras certainly knew that there were qualified boat mechanics

located just a short distance from his home as he had used two of them for general

maintenance. Still, he decided that in order to correct a steering problem with his

boat, he would use “self-help” and added the hydraulic fluid he purchased from

Wal-Mart. He denied replacing the hose. Obviously, the jury could have made a

decision based on all the evidence and determined that Mr. Vamvoras or his friend,

or someone had improperly replaced the Teleflex hose with an after-market hose.

Mr. Vamvoras admittedly added hydraulic fluid to the steering system without

proper training. He certainly did not “stop the leak” in the hydraulic steering

system, as the photos and video in evidence so clearly show.

On the very day of this tragedy, Mr. Glen Vamvoras told Captain Buatt, one

of the investigators for LDWF, that he noticed something was wrong with the

steering and that he heard a “clicking noise.” He initially denied knowing of a

hydraulic fluid leak. He said that no one else worked on the boat other than the

two marinas and he and Daniel.

Page 21 of 26

Daniel Vamvoras at first denied to the LDWF investigators that he had tried

to fix the hydraulic steering system leak by tightening a nut at the port hose

connection with vice grip pliers on the day of the accident. He also denied telling

his friend, Blaine Teter, that he noticed steering problems with the boat on the

morning of the accident as he drove the boat to and from the fuel dock near his

house, and as he was pulling someone behind the boat on an inner tube earlier that

day.

The pictures introduced in evidence clearly showed that the vise grips were

in the boat and had been used to tighten the nut on the non-Teleflex hose to try and

stop a hydraulic fluid leak. The photos and a video of the leak introduced in

evidence told the story. Though both Daniel and his father, Glen, at first outright

denied to the LDWF agents that either of them knew of a steering problem or a

fluid leak, Daniel eventually admitted that he was aware of the leak and Glen was

questioned about a conflicting statement he made to the LDWF investigator,

Captain Buatt, shortly after the accident about his knowledge of prior steering

problems.

LDWF agent Sgt. Liles testified at trial that Daniel eventually admitted that

he had, in fact, attempted to “fix the leak by tightening the nut” on the day of the

accident. At trial, Daniel continued to deny that he noticed anything wrong with

the steering, but did admit he heard a “clicking sound.” He said his father, Glen

Vamvoras, had used the boat only days prior.

Glen Vamvoras testified that as he was putting up political signs for his

D.A.’s campaign just three days prior to the accident, he noticed an unusual

“clicking” sound in the steering, but did nothing to have it checked before allowing

Daniel to take on six passengers three days later to party on “Contraband Days.”

Page 22 of 26

He claimed he did not notice what the photos the jury saw and what the video

introduced at trial clearly demonstrated was an obvious leak, and he continued to

deny any problems with the steering.

Again, expert testimony from Mr. Fetchko and Mr. Laird at trial established

that the “clicking sound” was caused by too much air in the system which

indicated a loss of hydraulic fluid which would cause very noticeable, tangible

problems with the steering. The boat operator would feel a “mushiness” or

“spongy feeling” and would have to turn the wheel more to control the steering.

The operator would hear “clicking.” This “tactile sensation” and “clicking” was

the “warning” that something was wrong with the steering and those signs would

get more pronounced as more fluid was lost.

The jury was faced with a credibility determination and could easily have

rejected the testimony of Daniel and his father as to their knowledge of steering

problems and attempts to “fix” those problems before this accident and concluded

that Teleflex was not liable for “failure to post visible warnings.”

Indeed, the first question the jury asked during deliberations was:

You had two questions: Are we making any judgments on
Vamvoras or Bowtie?

JURY FOREMAN:

Right.

THE COURT:

This answer is, no. Okay?

And then you second question: Are – I think it reads, “Or are
they released from any responsibility.”

JURY FOREMAN:

Yeah. We didn’t know if they were released from just the

Page 23 of 26

courtroom, from questioning or just released from this.

THE COURT

I made a decision that they’re relieved from any responsibility.
Okay? So you’re just to make a determination insofar as - - I
lost my head, Teleflex - - Teleflex is concerned.

Okay, you can go back. Thanks you, folks.

(Whereupon, the jury exits the courtroom to deliberate.)

This writer is not suggesting that Glen Vamvoras intentionally lied or tried

to deceive the court or jury. However, it is undisputed that at the time of these

events, Mr. Vamvoras was distracted as he was engaged in a hotly contested

D.A.’s race. Faced with a lawsuit against him and his son after this terrible

tragedy, he and his son, like most humans, may have had a tendency to minimize

their involvement or rationalize their decisions. The jury had full opportunity to

see and hear Mr. Vamvoras and Daniel, as well as all the other witnesses. They

also saw all the pictures and the video.

Daniel explained his decision to load his friends in a boat when the steering

was “clicking” and when he knew there was a hydraulic fluid leak. It was

Contraband Days, a big party on the river. There were fourteen of his friends there

and they needed two boats. Though both Daniel and his father testified that had

they realized a small loss of hydraulic fluid could eventually lead to a complete

loss of steering, Glen would not have permitted Daniel to take the boat out and

Daniel would not have done so.

The trial judge and majority focused on the lack of “ease of association”

between loss of hydraulic fluid and complete loss of steering. The plaintiff’s case

was based solely on the claim that since neither realized the risk, a “visible

warning” could have alerted them.

Page 24 of 26

Such a conclusion assumes that the jury found their testimony that they did

not notice problems with the steering and an obvious leak of hydraulic fluid

credible. Most importantly, though both Daniel and his father were not

experienced boat mechanics, they were experienced boat operators of

recreational boats in general and this boat in particular. Each was acutely aware

that a loss of steering while a vessel was underway at high speed could cause

disastrous consequences.

Good judgment and common sense dictates that if the boat is having steering

problems, you don’t load seven people in the boat and operate the boat at high

speed on a plane. Both Daniel and his father had operated this particular boat for

over six years (purchased in 1999, accident in 2005). Both were experienced

operators of recreational vessels and had enough experience with this particular

boat to know, and indeed they admitted, that if there were steering problems, it was

unsafe to operate the vessel at high speed on plane. Sgt. Liles, the LDWF agent,

confirmed at trial that even though he didn’t know that a loss of a small amount of

hydraulic fluid could result in a complete loss of steering control, he testified that if

he “felt” or “experienced” a problem with the steering, he would take the boat to

the shop. The first jury verdict in favor of Teleflex was and is fully supported by

the law and evidence and should be reinstated.

CONCLUSION

To paraphrase Shakespeare, A Miscarriage of Justice “should be made of

sterner stuff.”6 The only “miscarriage of justice” here was the trial judge’s failure

to recognize that there was no objection to his answer to the jury’s question as to

Page 25 of 26

the effective date of the only manual in evidence. No contemporaneous objection,

no new trial!

After carefully reviewing the entire record in this case, it is clear that the

trial judge abused his discretion in granting a new trial. He did not apply the

contemporaneous objection rule. He did not review all of the evidence and make a

fact based determination that the jury verdict was not supportable by “any fair

interpretation of the evidence” pursuant to the mandates of our jurisprudence.

Likewise, the majority did not apply the contemporaneous objection rule and

focused on the trial judge’s self-admitted “error” in answering the jury’s question

about the effective date of a hydraulic steering owner’s manual that neither the

owner nor operator had seen and that plaintiff’s expert had opined was not

relevant. The majority did not articulate, based on a review of all of the evidence

in the record, how it determined the jury’s verdict was not supportable by “any fair

interpretation of the evidence” before affirming the trial court’s decision to vacate

this jury’s verdict.

Most importantly, the trial judge overturned a jury’s verdict whose job it was

to evaluate credibility and assign fault. After comprehensive study of the

applicable law and careful review of all the evidence, I would reverse the decision

of the trial court to grant a new trial and render judgment reinstating the verdict of

the first jury and reinstating the original judgment of the trial court dated

September 30, 2014 dismissing plaintiff, Ron Warren’s, claims, with prejudice, at

his cost.

6
Julius Caesar “Ambition should be made of sterner stuff.” (Act 3, Scene 2).

Page 26 of 26