Filed: Mar. 12, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals, Fifth Circuit. No. 96-30600. Letetia JEFFERSON, Individually and as Duly Qualified Legal Tutrix for Schanta Jefferson, Plaintiff-Appellant, v. LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.; Atlantic Richfield Company; Sherwin Williams; SCM Corporation; Glidden Company; Fuller-O'Brien Corp., Defendants-Appellees. March 12, 1997. Appeal from the United States District Court for the Eastern District of Louisiana. Before JOLLY, JONES and WIENER, Circuit Judge
Summary: United States Court of Appeals, Fifth Circuit. No. 96-30600. Letetia JEFFERSON, Individually and as Duly Qualified Legal Tutrix for Schanta Jefferson, Plaintiff-Appellant, v. LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.; Atlantic Richfield Company; Sherwin Williams; SCM Corporation; Glidden Company; Fuller-O'Brien Corp., Defendants-Appellees. March 12, 1997. Appeal from the United States District Court for the Eastern District of Louisiana. Before JOLLY, JONES and WIENER, Circuit Judges..
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United States Court of Appeals,
Fifth Circuit.
No. 96-30600.
Letetia JEFFERSON, Individually and as Duly Qualified Legal
Tutrix for Schanta Jefferson, Plaintiff-Appellant,
v.
LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.;
Atlantic Richfield Company; Sherwin Williams; SCM Corporation;
Glidden Company; Fuller-O'Brien Corp., Defendants-Appellees.
March 12, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JOLLY, JONES and WIENER, Circuit Judges.
PER CURIAM:
This diversity jurisdiction case was filed in federal district
court by Plaintiff-Appellant Letetia Jefferson, individually and as
duly qualified legal tutrix of Schanta Jefferson, and as the
purported representative of the class of all Louisiana parents of
children who suffered from lead poisoning resulting from exposure
to lead paint pigment before they attained the age of six years.
The suit implicates the Louisiana Products Liability Act (LPLA),1
under which Jefferson sought recovery against a number of
manufacturers of lead paint pigment (the Manufacturers)2 and their
trade association (the Association).3 She also sought recovery on
1
La.Rev.Stat. Ann. 9:2800.52 et seq. (West 1991).
2
Defendants-Appellees NL Industries, Inc., Atlantic Richfield
Company, Sherwin Williams, SCM Corporation, Glidden Company, and
Fuller-O'Brien Corp.
3
Defendant-Appellee Lead Industries Association, Inc.
1
alternative theories based on non-LPLA grounds. On appeal,
Jefferson seeks reversal of the district court's dismissal of her
complaint against the Manufacturers under Federal Rule of Civil
Procedure 12(b)(6), primarily for failure to state a claim under
the LPLA, due to her inability to identify which of the
Manufacturers actually made the particular lead paint pigment that
caused the alleged injuries, and secondarily due to the
unavailability of a cause of action grounded in civil conspiracy.
She also appeals the dismissal of her claim against the
Association, resulting from the fact that it is not a manufacturer
and thus not amenable to liability under the LPLA. Additionally,
Jefferson now urges on appeal that we should certify two key
questions of law to the Louisiana Supreme Court. For the reasons
set forth below, we decline Jefferson's invitation to certify and
we affirm the order of the district court dismissing her action
pursuant to Rule 12(b).
I
CERTIFICATION
Jefferson has filed a motion with this court asking that,
pursuant to Louisiana Supreme Court Rule XII § 1, we certify
questions to that court, regarding the LPLA and Louisiana Civil
Code Article 2324. Specifically, Jefferson's motion asks us to
certify the following two questions:
1. If a small group of defendants-manufacturers act in concert to
produce a completely fungible product which is defective
within the meaning of the Louisiana Products Liability Act,
La. R.S. 9:2800.52 et seq., and if those defendants are also
guilty of a breach of express warranty under the LPLA, can
those defendants be held liable for damage caused by that
2
product, even if the plaintiff cannot identify the specific
defendant who manufactured that portion of the product that
injured him?
2. Can the defendant be held solidarily liable under the civil
conspiracy provisions of Louisiana Civil Code Article 2324,
or, alternatively, can the defendants be liable for their
share of the market of that wholly fungible product?
In support of certification, Jefferson's brief notes that (1)
"[t]he issue of a completely fungible product in the context of the
LPLA has never been decided by any Louisiana court," (2) the LPLA
does not "specifically address the issue of allocation of fault
among manufacturers who combine to produce a single defective
product," and (3) the question whether defendants should be liable
in solido under Article 2324 is an issue not addressed by the LPLA
or, to date, the jurisprudence of Louisiana. Jefferson contends,
in the alternative, that questions addressing the foregoing issues
should be certified because the Louisiana Supreme Court has never
ruled on the applicability of market share liability.4
In opposing certification, the Defendants contend, inter alia,
that (1) there is no discrete question of law to certify, (2) there
is no genuine uncertainty with respect to state law, (3)
4
The market share theory would abrogate the requirement that
a products liability claimant identify the manufacturer of the
damage-causing product and replace it by imposing pro rata
liability in the ratio of the market share of each manufacturer of
a fungible product that is so generic that the individual
manufacturer cannot be identified. The key element enabling
complainants to recover under the market share theory in a fungible
products case is the shift of the burden of proof from the
plaintiff to the defendants-manufacturers, requiring them to show
that they did not manufacture the offending product. See Sindell
v. Abbott Laboratories, 26 Cal. 3d 588,
163 Cal. Rptr. 132,
607 P.2d
924, cert. denied,
449 U.S. 912,
101 S. Ct. 285,
66 L. Ed. 2d 140
(1980).
3
certification is not available as a means of changing existing
circuit precedent, (4) Louisiana's unique position as a civil law
jurisdiction mandates that the legislature rather than the courts
adopt new theories of liability, and (5) a plaintiff's initial
election to sue in federal court should proscribe his efforts to
turn to the state supreme court for guidance after he loses his
case in federal district court.
As a general proposition we are chary about certifying
questions of law absent a compelling reason to do so; the
availability of certification is such an important resource to this
court that we will not risk its continued availability by going to
that well too often. Alone, the absence of a definitive answer
from the state supreme court on a particular question is not
sufficient to warrant certification. Rather, we must "decide the
case as would an intermediate appellate court of the state in
question if ... the highest court of the state has not spoken on
the issue or issues presented."5 So, absent genuinely unsettled
matters of state law, we are reluctant to certify.6
Before liability may be imposed, under the LPLA, a plaintiff
must show proximate causation ---- a link between the actions of a
5
Transcontinental Gas Pipeline Corp. v. Transportation Ins.
Co., 958 F.2d 622, 623 (5th Cir.1992); see also Swearingen v.
Owens-Corning Fiberglas Corp.,
968 F.2d 559, 564 (5th Cir.1992)
(refusing to certify question even though state supreme court had
not directly confronted issue, when "under the plain language of
[the statute], [the] decisional analysis is relatively
straightforward").
6
See DiPascal v. New York Life Ins. Co., 749 F.2d 255, 260
(5th Cir.1985).
4
manufacturer and the injury-causing product.7 The clear guidance
provided by this requirement counsels against certifying
Jefferson's proffered question to the Louisiana Supreme Court.
Neither is certification a proper avenue to change our binding
precedent.8 Albeit prior to the adoption of the LPLA, we have
previously considered and rejected market share liability in
Louisiana products liability cases.9 Since those precedents were
established, there has been no change in the Louisiana
jurisprudence either before or after adoption of the LPLA, and the
failure of the Louisiana legislature to embrace market share
liability when it confected the LPLA or by subsequent amendment
implies continued rejection of that theory by Louisiana. This, in
turn, weighs heavily against certification.
Although not alone dispositive, Jefferson's choice of forum
cannot be ignored. By filing suit in federal court, Jefferson
consciously exercised her option to litigate in either state or
federal court when she chose the latter. That her electing to file
in federal court might have been done in anticipation of removal by
the defendants is of no moment: "[T]he court should be slow to
7
La.Rev.Stat. Ann. § 2800.54.A (West 1991).
8
See Lee v. Frozen Food Express, Inc., 592 F.2d 271, 272 (5th
Cir.1979).
9
Thompson v. Johns-Manville Sales Corp., 714 F.2d 581, 583
(5th Cir.1983), cert. denied,
465 U.S. 1102,
104 S. Ct. 1598,
80
L. Ed. 2d 129 (1984); Bateman v. Johns-Manville Sales Corp.,
781
F.2d 1132, 1133 (5th Cir.1986) ("Although the plaintiffs request
it, we decline to certify the question to the Louisiana Supreme
Court. Thompson disposes of the question whether to adopt market
share theory....").
5
honor a request for certification from a party who chose to invoke
federal jurisdiction."10
We do not lightly abdicate our mandate to decide issues of
state law when sitting in diversity, and in the same vein "[w]e use
much judgment, restraint and discretion in certifying" cases to the
highest state court.11 When we view the certification sought by
Jefferson in light of the foregoing factors and policy
considerations, we are satisfied that this case is not a viable
candidate for certification. We therefore deny Jefferson's motion
to certify. If the inapplicability of either the market share or
the civil conspiracy theories of recovery in Louisiana products
liability cases is to be changed to make either or both of those
theories pertinent, such change should come from the legislature as
the primary source of Louisiana law or from the highest court of
that state as a secondary source of law, not from a federal court
sitting in diversity.
II
RULE 12(b)(6) DISMISSAL
In our de novo review of the district court's dismissal of
10
17A Charles A. Wright, Arthur R. Miller, Edward H. Cooper,
Federal Practice and Procedure § 4248, at 176 (1988); see also,
e.g., Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C.Cir.1988);
National Bank v. Pearson,
863 F.2d 322, 327 (4th Cir.1988);
Seaboard Sur. Co. v. Garrison, Webb & Stanaland, P.A.,
823 F.2d
434, 438 (11th Cir.1987); Colonial Park Country Club v. Joan of
Arc,
746 F.2d 1425, 1429 (10th Cir.1984); Cantwell v. University
of Mass.,
551 F.2d 879, 880 (1st Cir.1977).
11
Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274 (5th
Cir.), cert. denied,
425 U.S. 930,
96 S. Ct. 1659,
48 L. Ed. 2d 172
(1976) (quoting Barnes v. Atlantic & Pacific Life Ins. Co.,
514
F.2d 704, 705 n. 4 (5th Cir.1975)).
6
Jefferson's claim, we conclude that the district court not only
reached the correct result but did so for the correct reasons.
Moreover, we are satisfied that we could not improve on the
analysis of the district court as set forth in Judge Vance's clear,
concise, and thorough ORDER AND REASONS filed on May 31, 1996. We
therefore incorporate her opinion herein by reference and attach a
copy hereto as Appendix A.
III
CONCLUSION
Jefferson's action is governed by the LPLA which expressly
provides "the exclusive theories of liability for manufacturers for
damage caused by their products. A claimant may not recover from
a manufacturer for damage caused by a product on the basis of any
theory of liability that is not set forth in this chapter."12 Thus
Louisiana law eschews all theories of recovery in this case except
those explicitly set forth in the LPLA. That in turn leaves as the
sole question on appeal whether, under the allegations of her
amended complaint, Jefferson could prove any set of facts that
would entitle her to relief despite the absence of any allegation
identifying the particular manufacturer of the lead paint pigment
products purported to have caused the injury of which she
complains.13 For the reasons more specifically set forth by the
12
La.Rev.Stat. Ann. § 9:2800.52 (West 1991).
13
Jefferson may well be correct in insisting that, without
making either the market share or civil conspiracy theories
available, there will continue to exist a category of products
liability claims that, on the one hand, can look only to the LPLA
as the exclusive source of theories of manufacturers' product
7
district court, we therefore affirm its dismissal of Jefferson's
action; and for the reasons we have set forth above, we decline
her invitation to certify her proposed questions to the Louisiana
Supreme Court.
AFFIRMED; Motion to certify DENIED.
APPENDIX A
United States District Court
Eastern District of Louisiana
Letetia JEFFERSON, et al.
v.
LEAD INDUSTRIES ASSOCIATION, INC., et al.
Civil Action
No. 95-2835
Section "R"
ORDER AND REASONS
liability in Louisiana, but which, on the other hand, can never
state a compensable cause of action under the LPLA. She refers to
those situations in which the plaintiff's injury is alleged to have
been caused by a fungible product made and marketed by two or more
manufacturers, and thereby making it impossible to identify the
particular manufacturer or manufacturers which actually made the
product that caused plaintiff's injury. We agree that under
existing case law and our decision today, the plaintiff's complaint
in such fungible products cases cannot possibly contain allegations
that would satisfy the proximate cause element of the
manufacturer's product liability under the LPLA, and thus can never
state a claim on which relief could be granted to the plaintiff.
But the existence of such a lacuna ---- whether legislatively
intentional or accidental ---- is not a valid reason for us to
alter our conclusion that, as a matter of law, neither the market
share theory nor the civil conspiracy theory is a presently
available alternative to the requirement that, to successfully
plead the proximate cause element in a Louisiana products liability
case, the plaintiff must identify the particular manufacturer of
the product that causes the injury.
8
This matter is before the Court on defendants' Atlantic
Richfield Company, NL Industries, Inc., Sherwin-Williams Company,
SCM Corporation, Glidden Company, Fuller-O'Brien Corporation, and
Lead Industries Association, Inc. ("defendants") Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b), and on the
Motion of defendants Glidden Company, Atlantic Richfield Company,
Fuller-O'Brien Corporation, NL Industries, Sherwin-Williams
Company, and Lead Industries Association, Inc. to Dismiss the
Complaint Based Upon Failure to Identify the Manufacturer. The
Court heard argument on these motions on April 18, 1996. For the
reasons set forth below, defendants' motions are granted.
1. BACKGROUND
Plaintiff Letetia Jefferson, individually and as the duly
qualified legal tutrix of Schanta Jefferson ("plaintiff"), filed
this action for damages resulting from Schanta Jefferson's alleged
lead poisoning by ingestion, absorption or inhalation of lead paint
pigment. Plaintiff purports to represent a class of all Louisiana
parents of children who suffered from lead poisoning from lead
paint pigment before they attained the age of six years. Named as
defendants are six entities that produced and sold lead paint
pigment, together with the Lead Industries Association, Inc., a
trade association to which the pigment defendants allegedly
belonged. Plaintiff's complaint asserts liability against
defendants under a number of legal theories.
Defendants have filed two motions to dismiss the complaint, as
amended. The first motion asserts that the complaint is fatally
9
defective because plaintiff has not identified the manufacturer of
the lead paint pigment whose product caused her injury. The second
motion asserts that the amended complaint is deficient under the
Louisiana Products Liability Act ("LPLA"), which states the
exclusive grounds of recovery against a manufacturer of an
allegedly defective product. Because the Court agrees that the
LPLA states the exclusive theories on which liability may be
imposed on a manufacturer of a defective product, and because
Louisiana law requires that plaintiff identify the manufacturer
whose product caused her injury, the Court orders the amended
complaint dismissed against the paint pigment manufacturers for
failure to state a claim. The amended complaint is likewise
ordered dismissed against the Lead Industries Association, Inc. for
the reasons stated below.
2. THE COMPLAINT
The amended complaint contains hardly any allegations
concerning the circumstances of Schanta Jefferson's lead poisoning,
other than to assert that she contracted lead poisoning before she
reached the age of six because of "ingestion, absorption or
inhalation of lead paint pigment." Complaint at ¶ 10. There are
no allegations of where or how she came into contact with the lead
paint pigment. Further, she does not allege, and states that she
cannot allege, the identity of the manufacturer of the paint
pigment that caused her injury. Nor does she assert when the lead
paint pigment was applied to whatever it was that she came into
contact with containing lead paint pigment. In her opposition
10
memorandum, plaintiff refers to lead paint pigment on the walls of
her apartment as the source of her contamination, but this is not
alleged in the complaint.
Rather, plaintiff alleges that defendants marketed most of the
lead paint pigments used in lead based paints that were sold in the
United States between the early part of the twentieth century and
the early 1970's, when lead paint pigment was outlawed for
residential purposes. Amended Complaint at WW 15, 21 and 36. The
complaint alleges that lead paint pigment remains in a large
majority of residences built before the early 1970's, posing a
health risk to children. Id. at ¶ 21. Plaintiff asserts that from
the early part of the twentieth century through at least the late
1950's, defendants conspired to promote lead paint pigment in
residential paint, despite their knowledge of its unreasonable
health risks to children. Plaintiff claims that defendants
misrepresented the product as safe and failed to disclose or warn
of its known health risks. Plaintiff's asserted theories of
recovery are: the manufacture and sale of an unreasonably
dangerous product, defective design, negligence, failure to warn,
breach of express warranty, breach of express or implied warranty
of fitness for a particular purpose, fraud by misrepresentation,
market share liability and civil conspiracy.
Id. at WW 23-57.
3. LEGAL ANALYSIS
The standard to be applied to a motion to dismiss under
Federal Rule 12(b)(6) is a familiar one. The district court must
take the factual allegations of the complaint as true and resolve
11
any ambiguities or doubts regarding the sufficiency of the claim in
favor of the plaintiff. Fernandez-Montes v. Allied Pilots Ass'n.,
987 F.2d 278, 284 (5th Cir.1993). The complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff cannot prove any set of facts in support
of her claim that would entitle her to relief.
Fernandez-Montes,
987 F.2d at 284, 285; Leffall v. Dallas Independent School
District,
28 F.3d 521, 524 (5th Cir.1994). However, conclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.
Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications
Corp.,
14 F.3d 1061, 1067 (5th Cir.1994).
a. Louisiana Products Liability Act
- Lead Pigment Manufacturers
No party disputes that this motion is to be decided under
Louisiana law or that the Louisiana Products Liability Act applies
to plaintiff's claims.14 At issue is whether plaintiff may assert
theories of recovery against a manufacturer of an allegedly
defective product that are not recognized by the LPLA and whether
plaintiff must identify the manufacturer of the product causing her
14
The LPLA became effective on September 1, 1988 and applies
to those causes of action that accrued on or after September 1,
1988. See La. Acts No. 64, § 2 (West 1988); Brown v. R.J.
Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995). Plaintiff
filed another suit against her landlord, the Housing Authority of
New Orleans ("HANO"), in which she alleges that Schanta Jefferson
was born on July 1, 1992, approximately four years after the
effective date of the LPLA. The Court may take judicial notice of
the contents of public records on a Rule 12(b)(6) motion. E.g.,
Fortney v. Petron, Inc., 1992 WL 236936 at *1 (E.D.La. Sept.1,
1992). Hence, the LPLA clearly applies to Jefferson's claims.
12
injuries in order to recover.
The Louisiana Products Liability Act "establishes the
exclusive theories of liability for manufacturers for damages
caused by their products." La.Rev.Stat. Ann. § 9:2800.52 (West
1988); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th
Cir.1995); Lewis v. Intermedics Intraocular, Inc.,
56 F.3d 703,
706 (5th Cir.1995). A plaintiff may not recover from a
manufacturer for damage caused by a product on the basis of any
theory of liability not set forth in the LPLA. La.Rev.Stat. Ann. §
9:2800.52 (West 1988). The LPLA provides that a manufacturer of a
product is liable to a claimant for damage "proximately caused" by
a characteristic of the product that rendered it "unreasonably
dangerous" when the damage arose from a reasonably anticipated use
of the product by the "claimant or another person or entity."
Id.
at § 9:2800.54A. A claimant may prove that the product was
"unreasonably dangerous" only under one of the following four
theories: (1) that it was unreasonably dangerous in construction
or composition; (2) that it was unreasonably dangerous in design;
(3) that it was unreasonably dangerous because of inadequate
warning; or (4) that it was unreasonably dangerous because of
nonconformity to an express warranty.
Id. at § 2800.54(B)(1-4).
Thus, the elements of a products liability cause of action under
the LPLA are proof of the following:
1. that the defendant is a manufacturer of the product;
2. that the claimant's damage was proximately caused by a
characteristic of the product;
3. that the characteristic made the product unreasonably dangerous
13
in one of the four ways provided in the statute; and
4. that the claimant's damage arose from a reasonably anticipated
use of the product by the claimant or someone else.
Id. § at 2800.54; see generally, J. Kennedy, A Primer on the
Louisiana Products Liability Act, 49 La. L.Rev. 565 (1989)
(hereafter "Kennedy"). While the statutory ways of establishing
that a product is unreasonably dangerous are predicated on
principles of strict liability, negligence, or warranty,
respectively, neither negligence, strict liability, nor breach of
express warranty is any longer viable as an independent theory of
recovery against a manufacturer. See Automatique New Orleans, Inc.
v. U-Select-It, Inc.,
1995 WL 491151 at *3 n. 2 (E.D.La. Aug.15,
1995) (no independent negligence claim); Hopkins v. NCR Corp.,
1994 WL 757510 at *1-2 (M.D.La. Nov.17, 1994) (strict liability
under article 2317 not cognizable theory against manufacturer);
Kennedy, supra, at 589-90. Further, breach of implied warranty or
redhibition is not available as a theory of recovery for personal
injury, although a redhibition action is still viable against the
manufacturer to recover pecuniary loss.
Kennedy, supra, at 588.
It is apparent from the foregoing discussion of the
exclusivity of the LPLA that plaintiff's allegations of negligence,
fraud by misrepresentation, market share liability, breach of
implied warranty of fitness and civil conspiracy fail to state a
claim against the lead paint pigment manufacturers under the LPLA
and must therefore be dismissed. See Brown v. R.J. Reynolds
Tobacco Co., 852 F. Supp. 8 (E.D.La.1994), aff'd,
52 F.3d 524 (5th
Cir.1995) (summarily dismissing claims for fraudulent
14
misrepresentation, concealment and conspiracy); Hopkins v. NCR
Corp., 1994 WL 757510 (M.D.La. Nov.17, 1994), aff'd,
53 F.3d 1281
(5th Cir.1995) (plaintiff could not bring separate strict liability
action against manufacturer as "lessor or owner" under La. Civ.Code
Ann. art. 2317 because of preemptive force of LPLA).
Plaintiff does attempt to assert a claim for defective design,
failure to warn, and breach of express warranty, which are
cognizable liability theories under the LPLA. However, these claims
are likewise defective because nowhere in the complaint does
plaintiff identify the manufacturer whose product caused her
injury. Plaintiff contends that product identification, or
identification of the manufacturer whose product caused her injury,
is not required under the LPLA. She claims that the theory of
market share liability, under which liability is imposed on the
basis of each manufacturer's share of the product market, can serve
as a surrogate for identification of the manufacturer of the
product that caused her damage. Plaintiff also relies on a civil
conspiracy theory to argue that solidary liability may be imposed
on the manufacturers under article 2324 of the Louisiana Civil Code
for conspiring to promote lead paint pigment fraudulently. The
Court has already found that civil conspiracy and fraudulent
misrepresentation are not cognizable liability theories under the
Louisiana Products Liability Act. Nor can market share liability
serve as a liability theory under the Act. The Court now addresses
whether market share theory, if not a cause of action, can
nevertheless serve as an alternative theory of causation under the
15
LPLA. The Court concludes that it cannot.
i. Product Identification -
An Element of a Products Liability Claim
Plaintiff's obligation to identify the manufacturer of the
allegedly defective product is inherent in the LPLA's requirement
that plaintiff prove proximate causation. The statute provides in
Section 2800.54(A) that
the manufacturer of a product shall be liable to a claimant
for damages proximately caused by a characteristic of the
product .... (emphasis added).
Section 2800.54(D) states that plaintiff has the burden of proving
the elements of Subsection 2800.54(A). Plaintiff thus has the
burden of proof that a manufacturer's product proximately caused
her injury. In addition, the statute provides that the LPLA
"establishes the exclusive theories of liability for manufacturers
for damage caused by their products." Id. at § 2800.52 (emphasis
added). Further, Louisiana courts require the identification of a
product's manufacturer in product liability cases. In a pre-LPLA
case, the Fifth Circuit, applying Louisiana law, required
identification of the manufacturer as an element of plaintiff's
product liability claim in Aymond v. Texaco, Inc.,
554 F.2d 206,
211 (5th Cir.1977). Louisiana state courts did so as well. See
Fricke v. Owens-Corning Fiberglas Corp.,
618 So. 2d 473, 475
(La.App.1993) (pre-1988 accident) ("we cannot abandon general rule
of products liability requiring identification of the product with
the manufacturer"); Harrison v. Gulf S. Beverages, Inc., 438 So. 2d
261, 262 (La.App. 4th Cir.), writ denied,
443 So. 2d 582 (La.1983);
16
Simms v. Baton Rouge Coca-Cola Bottling Co., 469 So. 2d 52, 54
(La.App. 1st Cir.1985), writ denied,
470 So. 2d 882 (La.1985);
Roberts v. Louisiana Coca-Cola Bottling Co.,
566 So. 2d 163, 167
(La.App. 4th Cir.1990). After the adoption of the LPLA, Louisiana
courts have likewise required identification of the manufacturer of
the defective product. See, e.g., Baldwin v. Kikas,
635 So. 2d
1324, 1327 (La.App. 4th Cir.1994), writ denied,
643 So. 2d 144
(La.1994) (affirming summary judgment because of insufficient
evidence of identity of manufacturer or seller); see also
Maldanado v. State Through
APPENDIX A—Continued
Dept. of Transportation, 618 So. 2d 537, 538-39 (La.App. 4th
Cir.1993), writ denied,
623 So. 2d 1309 (La.1993) (proof of identity
of manufacturer is element of plaintiff's claim).
Market share liability has never been adopted by a Louisiana
court. The theory was first developed by the California Supreme
Court in Sindell v. Abbott Laboratories, 26 Cal. 3d 588,
163
Cal. Rptr. 132,
607 P.2d 924 (1980), a diethylstilbestorol ("DES")
case. There, plaintiff was unable to identify the manufacturer of
the DES that her mother took while she was pregnant, which caused
the plaintiff's injury. As a result, the court shifted the burden
to the industry defendants to prove that they could not have been
the manufacturer of the product causing plaintiff's injury. If a
defendant could not exculpate itself, it would be liable for a
resulting judgment in proportion to its share of the DES market at
the time at issue.
17
As noted, no Louisiana decision has ever applied this theory
to supplant proof of proximate causation. Moreover, the Fifth
Circuit has twice refused to find that market share theory could be
applied under Louisiana law. In 1983, in Thompson v. Johns-
Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), the Fifth
Circuit, sitting in diversity, refused to apply market share
liability in an asbestos products liability case controlled by
Louisiana law. The court reasoned that Louisiana courts had not
adopted the theory and that such a radical expansion of tort
liability was for Louisiana courts in the first instance.
Id. at
583. Three years later, in Bateman v. Johns-Manville Sales Corp.,
781 F.2d 1132, 1133 (5th Cir.1986), the Fifth Circuit followed its
earlier ruling in Thompson and held that it was for the State of
Louisiana to decide for itself to "make the major policy change of
adopting the market share theory."
Id. at 1133. The Louisiana
legislature adopted the LPLA after both Bateman and Thompson, and
it did not include market share liability as an alternative to
traditional proof of proximate causation. Thus, since there is no
intervening Fifth Circuit or controlling Louisiana precedent to the
contrary, this Court is bound by the Fifth Circuit's decisions in
Thompson and Bateman.
Apart from the constraints imposed by precedent, this Court is
skeptical of the wisdom of imposing market share liability in a
case such as this. Here, the connection between plaintiff's
unfortunate injury and defendants' alleged wrongful conduct is
separated by anywhere from 20 to 70 years. Plaintiff concedes that
18
lead paint pigment has not been applied for residential purposes
since at least 1972, 20 years before this plaintiff was born, and
most of the wrongful conduct in the complaint allegedly took place
between 1917 and the 1950's. Plaintiff does not even allege when
the lead paint pigment was applied to the source of her exposure.
Nor does plaintiff allege that defendant's market share should be
determined as of any particular time. She simply alleges that
"each pigment defendant is liable to plaintiffs for its
proportionate share of lead pigment produced and sold." Complaint
at ¶ 44. This would appear to mean liability based on a
defendant's share of the total production of lead pigment over the
total period it was produced and sold. In Sindell, where market
share liability was applied, plaintiff could narrow the time of her
exposure and of the sale of the DES to the time when her mother was
pregnant, at which point the existing manufacturers could be
ascertained. Here, while Schanta Jefferson was apparently exposed
to lead paint pigment sometime after her birth in 1992, the lead
paint pigment had to have been applied more than 20 years before
that, and plaintiff does not allege when in this century that this
application occurred. Even courts using market share liability
have limited each defendant's liability to the proportion of the
judgment "which reflects the share of the market supplied by the
defendant at the time of said encounter." Santiago v. Sherwin
Williams Co., 3 F.3d 546, 550 (1st Cir.1993) (citing cases)
(emphasis added). Plaintiff apparently contemplates a less finely
tuned application of the doctrine here. Further, as defendants
19
point out, not all manufacturers of lead pigment are defendants in
the case. Eagle-Picher, described in plaintiff's complaint as a
"major producer of white lead and a member of the LIA," is not a
defendant. See Complaint at ¶ 88. In sum, with no allegation of
when the pigment was applied, or that defendants' market shares
were constant over the whole period that lead pigment was used, and
with a "major producer" absent from the case, the Court finds that
market share theory would create too much risk that a defendant
will be held liable for more harm than it caused, or, worse yet,
without causing any harm at all to the plaintiff. See Santiago, 3
F.3d at 550-52 (rejecting market share liability in lead paint case
for similar reasons).
For all of the foregoing reasons, the complaint against the
pigment manufacturers must be dismissed for failure to state a
legally cognizable claim to relief.
b. Lead Industries Association, Inc.
Lead Industries Association, Inc. is alleged to be a New York
corporation. It is not alleged to have manufactured or sold lead
paint pigment. The LPLA applies only to manufacturers, and its
causes of action do not lie against an incorporated trade
association not alleged to have acted as a manufacturer. See
Baldwin v. Kikas, 635 So. 2d 1324 (La.App. 4th Cir.1994)
(nonmanufacturer or nonseller not liable for negligence or strict
liability under LPLA). Further, a warranty action does not lie
against one who neither sells nor manufactures a product. See
Rowell v. Carter Mobile Homes, Inc.,
500 So. 2d 748 (La.1987) (bank
20
not liable in warranty); cf. Allgood v. R.J. Reynolds Tobacco
Co., 80 F.3d 168 (5th Cir.1996) (Texas law). Plaintiff has not
even asserted market share liability against the LIA. See Complaint
at ¶ 44.
The gravamen of plaintiff's allegations against the LIA are
that it conspired with the pigment defendants to promote lead
pigment through fraudulent misrepresentations. Louisiana law does
not recognize an independent cause of action for civil conspiracy.
See Louisiana v. McIlhenny, 201 La. 78,
9 So. 2d 467, 472 (1942);
Junior Money Bags, Ltd. v. Segal,
798 F. Supp. 375, 379
(E.D.La.1990); Silver v. Nelson,
610 F. Supp. 505, 516 n. 15
(E.D.La.1985). Rather, Louisiana Civil Code article 2324 provides
that "he who conspires with another person to commit an intentional
or willful act is answerable in solido with that person for the
damage caused by such act." La. Civ.Code Ann. art. 2324 (West
1988). The actionable element under article 2324 is the
intentional tort the conspirators agreed to commit and committed in
whole or in part causing plaintiff's injury. See Kiva Constr. &
Engineering v. International Fidelity Insurance Co.,
749 F. Supp.
753, 756 (W.D.La.1990);
Silver, 610 F. Supp. at 516. Plaintiff
asserts that the underlying tort here is fraudulent
misrepresentation: "the knowingly fraudulent misrepresentation of
the properties of lead pigment." Plaintiff's Opp. Mem. at 15.
However, plaintiff's conspiracy to commit fraudulent
misrepresentation claim is defective because the underlying
fraudulent misrepresentation claim is defective.
21
Louisiana Civil Code article 1953 defines fraud as "a
misrepresentation or a suppression of the truth made with the
intention to obtain an unjust advantage for one party or to cause
a loss or inconvenience to the other. Fraud may result from
silence or inaction." La. Civ.Code art.1953. An element of a
Louisiana claim for fraudulent misrepresentation is justifiable
reliance. See Abbott v. Equity Group, Inc., 2 F.3d 613, 624 (5th
Cir.1993); Abell v. Potomac Ins. Co.,
858 F.2d 1104, 1131 n. 33
(5th Cir.1988);
Silver, 610 F. Supp. at 516.15 Nowhere in the
complaint does plaintiff allege that she bought, used, or ingested
the lead paint pigment in reliance on defendants'
misrepresentations. Indeed, it would appear impossible for the
injured plaintiff to allege that she ingested the lead pigment in
justifiable reliance on the asserted misrepresentations of
defendants since they were made before she was born, and the
dangers of lead pigment were so publicly known that it was banned
by law for residential use 20 years before her birth. Cf. City of
Philadelphia v. Lead Industries, Inc.,
1992 WL 98482 at *6
(E.D.Pa.1992) (discussing similarly defective fraudulent
misrepresentation claim). Hence, the claim of fraudulent
misrepresentation is defective as a matter of law.
In addition, plaintiff's fraudulent misrepresentation claim
against the LIA is defective because of a failure to allege
causation. Plaintiff's complaint does not allege that the
15
The same is true if the claim were for negligent
misrepresentation. See Abbott v. Equity Group, Inc., 2 F.3d 613,
624 n. 38 (5th Cir.1993).
22
fraudulent promotional activities of the LIA caused her lead
poisoning. See Santiago, supra, 3 F.3d at 552 (noting same
defect). She simply alleges that if defendants had not engaged in
fraudulent activity, lead pigment would not have been sold in
America for residential use. Complaint at ¶ 52. While plaintiff
argues in her brief that "but for" the fraudulent promotional
activities of the LIA and the pigment defendants, no paint would
have been used residentially and hence no paint would have been
used in her apartment, not even this much is alleged in her
complaint.
For all of the foregoing reasons, the amended complaint fails
to state a claim against the LIA.
4. CONCLUSION
The amended complaint is ordered dismissed against all
defendants.
New Orleans, Louisiana, this ____ day of __________, 1996.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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