United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10019 ____________ FILED March 21, 2024 C. Sidney Johnston; Danette Johnston, Lyle W. Cayce Clerk Plaintiffs—Appellees,

versus Ferrellgas, Incorporated,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-424 ______________________________ Before Higginbotham, Smith, and Higginson, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: A jury found Ferrellgas, Inc. liable for a manufacturing defect and negligence after C. Sidney Johnston was injured using a propane tank it manufactured. During trial, Ferrellgas moved for a judgment as a matter of law (“JMOL”) on both the manufacturing defect and negligence claims, as well as, alternatively, for a new trial or a remittitur. The district court denied the motion for JMOL, conditionally denied the motion for a new trial, and granted the motion for a remittitur, reducing the jury award from $7 million Case: 23-10019 Document: 77-1 Page: 2 Date Filed: 03/21/2024

No. 23-10019

to $1.7 million. 1 On appeal, Ferrellgas argues the district court erred by denying its JMOL motion. Because we find insufficient evidence to support the verdict, we REVERSE and RENDER judgment for Ferrellgas. I. A. On July 26, 2019, Johnston was injured when he used a propane gas tank manufactured and distributed by Ferrellgas. The tank was placed in circulation in 1999, requalified in 2017, and was within its “requalification date” at the time of the incident. Ferrellgas replaced the tank’s valve in 2002, and it refilled and inspected the tank in February 2019. 2 At that time, Ferrellgas placed a blue cap on the tank’s valve and shipped it to Lowe’s, where it sat in an outdoor display until Johnston purchased it approximately five months later on July 24, 2019. Two days later, Johnston attempted to connect the tank to his Char-Broil grill and pushed the igniter, but nothing happened. After he hit the ignitor a second time, a flash fire occurred. Johnston suffered first- and second-degree burns, covering 8% of his body, to his hands, stomach, and face, for which he received outpatient treatment. He returned to work part-time within a month, full-time within two months, and has since “excel[led] at his job.” Johnston’s burn physician

_____________________ 1 These amounts account for the reduction based on the jury’s finding that Johnston was 7% responsible for the incident. 2 Ferrellgas refilled the tank and conducted its four-stage inspection process in early 2019, and the Johnstons did not dispute that Ferrellgas (1) performed its four-stage inspection; (2) found no defect; and (3) successfully refilled the tank under high pressure.

2 Case: 23-10019 Document: 77-1 Page: 3 Date Filed: 03/21/2024

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testified that Johnston has made an “excellent recovery,” has “n