38 Fed. R. Evid. Ser v. 1529, Prod.liab.rep. (cch) P 13,737alastair Washington, Plaintiff-appellant, v. Department of Transportation, et al., Defendants,shop-vac Corporation, Defendant-appellee.nathaniel Thomas, Plaintiff, v. Shop-vac Corporation, Defendant-appellee, 8 F.3d 296 (5th Cir. 1993)

Alastair Washington brought a products liability suit against Shop Vac Corporation ("Shop Vac"), seeking damages for injuries he sustained when a spark from a Shop Vac vacuum ignited acetone vapors in the freshwater tank of a ship where Washington was working. Washington claimed that Shop Vac's failure to provide an adequate warning label on its vacuum was a proximate cause of his injuries. The district court, sitting in diversity, entered judgment for Shop Vac in accordance with the jury's answers to two special interrogatories. On appeal, Washington contests several of the district court's evidentiary rulings. Finding no reversible error, we affirm.

* On December 28, 1989, Washington and Nathaniel Thomas were working on board the United States Coast Guard Cutter M/V POINT BARNES, as employees of Ocean Technical Services ("OTECH"). Their supervisor, James McDonner, a superintendent for OTECH, had told them to remove paint from the walls of a freshwater tank with the use of acetone and rags. To collect the paint peelings loosened by the acetone, Thomas used a Shop Vac wet-dry vacuum cleaner. OTECH owned the vacuum cleaner and furnished it to Washington and Thomas for use on the job. Affixed on the black plastic power-head of the Shop Vac vacuum was a black warning label which provided:

Warning. To avoid electrical shock, do not expose to rain. Store indoors to avoid personal injury or property damage. Do not pick up flammable, combustible or hot materials. Do not use around explosive liquids or vapors.... Read owners manual and safety rule before operating or attempting repairs.

The owner's manual to the Shop Vac vacuum also warned against using the vacuum in the presence of explosive vapors. When Thomas turned on the Shop Vac vacuum, the resulting sparks ignited the acetone vapors, causing severe injuries to both Thomas and Washington.¹ 

Washington brought suit in federal district court against Shop Vac, pursuant to La.Rev.Stat.Ann. §§ 9:2800.54, 2800.57 (West 1991), claiming that Shop Vac failed to provide an adequate warning of the dangers of using such a product in the presence of explosive vapors.²  Section 9:2800.54 provides that " [t]he manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous." A product is unreasonably dangerous under § 9:2800.57 because "an adequate warning about the product has not been provided if, at the time the product left its 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."

At trial, Washington offered no evidence contesting the adequacy of the warning in the owner's manual. Thus, the only issues before the jury were whether the content and design of the black-on-black warning label was adequate and whether any inadequacy in the design of the warning label proximately caused Washington's accident. In its answers to two special interrogatories, the jury found neither an inadequate warning nor proximate cause. In accordance with the jury's answers, the district court entered judgment for Shop Vac, from which Washington timely appealed. He specifically contends that the district court erred in: (a) admitting evidence of OTECH's fault; (b) excluding the testimony of Thomas as to what he would have done had he seen the warning label on the Shop Vac vacuum; and (c) excluding evidence of alternative warnings on other products.³ 

II

* Washington first contends that the district court erred in admitting evidence of the fault of OTECH, a statutorily immune employer. Under La.Civ.Code art. 2324 (West Supp.1993), "a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, ... regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise."⁴  Pursuant to this article, the district court admitted evidence of OTECH's fault so that the jury could quantify and apportion such fault. Citing the Louisiana Court of Appeals decision in Gauthier v. O'Brien, 606 So. 2d 915 (La.App. 3 Cir. 1992), rev'd, 618 So. 2d 825 (1993), Washington argues that OTECH's fault cannot be assessed under article 2324 because OTECH's liability is governed by the Louisiana worker's compensation scheme, a separate body of law from the state's tort (product liability) statutes. In O'Brien, the court held that extending article 2324 to employers immune under the worker's compensation statutes would "violate the compensation principle by implication."⁵  We review a district court's evidentiary rulings for abuse of discretion, and will reverse a judgment on the basis of an evidentiary ruling only where the challenged ruling affects a substantial right of a party.⁶ 

The Louisiana Court of Appeals decision Washington cites is no longer valid in light of the Louisiana Supreme Court's recent decision in Gauthier v. O'Brien, 618 So. 2d 825 (La.1993), which reversed the lower court's decision in the same action. The Supreme Court held in Gauthier that article 2324, as amended in 1987, requires that fault of the employer be assessed in apportioning fault for an employee's injury in an action against third-party tortfeasors, even though the employer is immune from tort liability under the Louisiana workers' compensation scheme.⁷  We therefore find no abuse of discretion in the district court's admission of evidence relating to OTECH's fault, and consequently reject Washington's first contention on appeal.

B

Washington next contends that the district court erred in refusing to allow Thomas to testify as to what he would have done had he seen the warning label on the Shop Vac vacuum. Thomas's testimony was being offered to show that the inconspicuousness of the warning label caused Washington's injuries. In a diversity action, we apply federal procedural law, such as the Federal Rules of Evidence.⁸  Under the Federal Rules of Evidence, speculative opinion testimony by lay witnesses--i.e., testimony not based upon the witness's perception--is generally considered inadmissible.⁹  At trial, Thomas attempted to testify as to what he would have done had he seen the warning label on the Shop Vac vacuum. Because such testimony would not have been based upon Thomas's perception, but upon his self-serving speculation, we hold that the district court did not abuse its discretion in excluding this evidence.¹⁰ 

C

Lastly, Washington contends that the district court erred in excluding evidence of alternative warning found on a Dayton dry vacuum cleaner, a Sears wet-dry vacuum cleaner, and various other products, such as a power sander and gas pump. The district court excluded most of this evidence, presumably because Washington had not shown that the other products were similar to the Shop Vac vacuum in their function and intended market. Assuming arguendo that the district court's evidentiary ruling was erroneous, such error could not have affected any substantial right of Washington because Shop Vac owed no duty to provide OTECH's employees an adequate warning. In Davis v. Avondale Indus., Inc., 975 F.2d 169 (5th Cir. 1992), we addressed the issue of whether a manufacturer has a duty under Louisiana law to provide an adequate warning to an employee of a sophisticated purchaser.¹¹  Although no Louisiana case had clearly addressed the issue, we held that "Louisiana courts would likely hold that ... the product manufacturer owes no duty to the employee of a purchaser if the manufacturer provides an adequate warning of any inherent dangers to the purchaser or if the purchaser has knowledge of those dangers and the duty to warn its employees thereof."¹²  Applying Davis to the facts developed at trial, we think it clear that Shop Vac owed no duty to provide OTECH's employees an adequate warning. McDonner testified that he knew of the dangers of using power equipment, such as the Shop Vac vacuum, in the presence of acetone vapors. He further acknowledged that under certain Occupational Safety Health Administration ("OSHA") regulations,¹³  he had the duty to warn Washington and Thomas of those dangers.¹⁴  We therefore hold that Shop Vac owed no duty to provide an adequate warning to the employees of a sophisticated purchaser such as OTECH. Consequently, any error in the exclusion of evidence offered to show the inadequacy of the warning on the Shop Vac vacuum did not affect any substantial right of Washington.

III

For the foregoing reasons, we AFFIRM.