UPDATE ON PRODUCTS LIABILITY IN LOUISIANA
By: Michael C. Palmintier
“Consumption is the sole end and purpose of production; and the interest of the producer
ought to be attended to only so far as it may be necessary for promoting that of the
consumer.” Adam Smith, Wealth of Nations, 1776
“Caveat emptor – [Let the buyer beware].” Roman Proverb
There was a time, not so long ago, when man’s use of mechanical devices was limited mostly to the kitchen, cultivation and the field of battle. Of course, this all changed with the coming of the Industrial Revolution, in which a virtual explosion of gadgetry – which continues with a vengeance to this day – left the world awash in products for every imaginable purpose. It is not surprising that, along with immeasurable improvements in the quality of life, came the unfortunate consequence of injury as a result of the use of these products. Nor is it surprising that a parallel revolution in statutory and jurisprudential law pertaining to liability for injury caused by products followed the advent of our consumer age.
The area of Torts known as Products Liability Law has presented tremendous challenge to the practitioner, whether on the plaintiff or defense side of the bar. Perhaps this is so because of the evermore complex nature of manufacturing, whether in design, composition, assembly or otherwise. Add to this complexity the national and even international implications of defects in widely distributed products and we have a formula for nearly unlimited legal entanglement. Louisiana has certainly been no exception to the evolution of Products Liability litigation. In fact, our jurisprudence and eventually the legislative reaction to it has yielded a statute which has been seen as a model for progressive treatment of this very challenging area. Although criticized in certain spheres as overly protective of manufacturing interests above those of injured consumers, the Louisiana Products Liability Act of 1988 has become a well-know fixture in the realm of injury litigation.
It is this Act and the jurisprudence interpreting it which is the subject of this brief paper. In it, we focus on recent developments in Products law in order to get a feel for the current state of affairs in this area. We also take a quick look at the history of the statute as a way to better understand the present rule. Finally, we consider the implications of recent Federal Court pronouncements as they impact statutory and common law rights in the states.
To better understand recent holdings in Louisiana Products Liability Law, we should first consider the cases through which this area has found definition. Two seminal cases are glimpsed here. The first, Weber v. Fidelity & Casualty Insurance Co. of New York, 250 So.2d 754 (La. 1971) is credited with introducing to our jurisprudence the principles of modern products liability law. The second, Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La. 1986), helped expand those concepts to a point at which the legislature stepped in to give us the statute which controls this area
In Weber, plaintiff alleged that the deaths of seven of his cows and the illness of two of his sons were caused by their exposure to “Cooper’s Cattle Dip”, manufactured by the defendant. The trial court ruling in plaintiff’s favor was reversed by the 1 Circuit, which found that he had not met his burden of proof. The Supreme Court reversed in a holding, authored by Justice Al Tate, which established the elements of a modern products liability cause of action in our state:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
As one of the Act’s authors, John N. Kennedy (Currently Louisiana State Treasurer), points out in his 1989 Article, “A Primer on the Louisiana Products Liability Act”, 49 La. L. Rev. 565:
Weber has been interpreted to mean that a products liability plaintiff, in order to recover from a manufacturer, must prove by a preponderance of the evidence that (1) the plaintiff’s harm was caused by a condition of the manufacturer’s product, (2) this condition existed at the time the product left its manufacturer’s control, and (3) this condition made the product unreasonably dangerous to normal use.
Since Weber was handed down the issue receiving the most attention in Louisiana products liability litigation and literature has been the appropriate meaning of ‘unreasonably dangerous.’ This concern is well- placed, because the ‘unreasonably dangerous’ cognomen is meant to express the degree of product deficiency that gives rise to legal liability. As such, it is the basis for delictual ‘fault’ under Civil Code article 2315, the foundation on which all legal theories of products liability in tort rest and the essence of a products liability cause of action.
The debate over this issue reached its jurisprudential zenith in Halphen v. Johns-Manville Sales Corp. In Halphen, the United States Fifth Circuit Court of Appeals certified a products liability question to the Louisiana Supreme Court:
In a strict products liability case, may a manufacturer be held liable for injuries caused by an unreasonably dangerous product if the manufacturer establishes that it did not know and reasonably could not have known of the inherent danger posed by its product?
Halphen v. Johns-Manville Sales Corp., 752 F.2d 124, 755 F.2d at 393 (5th Cir.1985) (en banc).
Writing for the Court, Justice Jim Dennis (Ultimately of the U.S. 5 Circuit Court of the Appeal) reached the conclusion that a Louisiana court could, under certain circumstances, hold a manufacturer liable for injuries caused by a product that was unreasonably dangerous at the time of trial, but not at the time of manufacture. The product would be ‘unreasonably dangerous per se’ (emphasis ours) if the ‘danger in fact’ it posed was greater than its utility. Under such circumstances, the fact that a risk was neither known nor knowable when the product left the manufacturer’s control would become irrelevant and inadmissible. What’s more, in such cases, a court could exclude state of the art evidence. This was an affirmation of the adoption of strict products liability in Louisiana, and it created a controversy which ended in legislative action. That action was the Louisiana Products Liability Act, La. Rev. Stat. §§9:2800.51-60 (The LPLA), which now provides the exclusive guidelines for products liability recovery in the state.
Aspects of the LPLA relevant to our discussion include Section 2800.54(A), which provides:
The 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 when such damage arose from a reasonably anticipated use of the product by a claimant or another person or entity.
Thus, plaintiff’s initial burden of proof now requires him to show the following:
1. The defendant is the manufacturer of the product.
2. The claimant’s damage was proximately caused by a characteristic of the product.
3. This characteristic made the product unreasonably dangerous.
4. The claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else
But the Act does not stop there in its precise delineation of plaintiffs burden. Section 2800.54(B) sets forth the meaning of ‘unreasonably dangerous’ as that term is used in section 2800.54(A). Significantly, 2800.54(B) limits the ways in which a product may be unreasonably dangerous to only four:
1. § 2800.54. Manufacturer responsibility and burden of proof
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of its manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product.
D. The claimant has the burden of proving the elements of Subsections A, B and C of this Section.
Thus, plaintiff must show that the product was unreasonably dangerous in :
• Construction or composition,
• Failure to provide proper warning
• Failure to comply with express warranty
The case law interpreting these limitations has consistently affirmed the narrow boundaries of plaintiffs’ remedy. If it doesn’t fall into these categories, no remedy exists.
The case law has also established requirements both specific to the Act and implicit in it. These practical requirements define the issues which repeat themselves in the case law and present the practitioner with the basic requirements for trying products liability cases. For example:
• The “reasonably anticipated use” language of section “A” has been the subject of debate in cases in which the consumer has used the product in unorthodox ways. [See Broussard v. Proctor and Gamble Company, 463 F.Supp.2d 596, (W.D. La. 2006)]
• In “design defect” cases, the Act specifically requires – among other things- that plaintiff demonstrate that:
“(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage;”
In practice, this requirement has meant that plaintiff must put on the stand a “Daubert- worthy” expert, who must demonstrate an alternative design which meets the other requirements of that section [See State Farm v. Ford Motor Company, 925 So2d 1(1st Cir. 2005)]
• In “warnings” cases plaintiff must demonstrate efficacy of the warning, which, in turn, often requires expert testimony.
• Who is a Manufacturer? [See Coulon v. Wal-Mart Stores, Inc., 734 So.2d 916, 98-1141 La.App. 1 Cir. 5/14/99]
• Risks of spoliation; on both sides [Deepwater Horizon blowout preventer; MDL2179, E.D. La.; Lawson v. Mitsubishi Motor Sales of America]
• Removal to federal court
Below, we consider recent cases and their implications for the trial practitioner:
Lawson v. Mitsubishi Motor Sales of America, 2005-0257 (La. 9/6/06) 938 So.2d 35:
The Supreme Court granted writs after the third circuit affirmed the trial court JNOV against the defendant. After a two week jury trial, a unanimous verdict had been returned in favor of Defendants. Plaintiffs had alleged that the air- bag went off when driver honked the horn. Defendants also challenged the application of the doctrine of res ipsa loquitur.
As to res ipsa, the Court held:
Traditionally, the evidentiary doctrine of res ipsa loquitur has been used in tort actions to establish negligence on the part of a defendant; however, we conclude that this evidentiary doctrine may also be utilized in the context of a products liability action. (emphasis ours) We see no reason why a plaintiff cannot use circumstantial evidence in order to make the inference that a product was unreasonably dangerous when that product left a manufacturer’s control…..
However, the Court went on to remind us that, in applying the doctrine, the plaintiffs must “exclude inference of the plaintiff’s own responsibility or the responsibility of others besides defendant in causing the accident.” Because of the way the evidence was handled (presumably, before litigation was contemplated) it found that these other possible explanations could not be excluded and that res ipsa did not apply.
Then the Court found:
The only reason JNOV could be granted in the instant case is because the doctrine of res ipsa loquitur was erroneously applied, thereby creating a situation in which the evidence did “point so strongly and overwhelmingly in favor of” Plaintiffs. Accordingly, we find that JNOV should not have been granted in this matter.
State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 2004-1311, 925 So.2d 1 (La. App. 1 Cir. 6/15/05) :
The plaintiff auto insurer pursued the auto manufacturer after it paid its insured for a car damaged by fire. State Farm alleged the vehicle fire was caused by a defective speed control deactivation switch and that Ford, who designed, manufactured, assembled, and sold the Town Car, was liable for the resultant damages based on the Louisiana Products Liability Act, Louisiana Revised Statutes 9:2800.51 et seq.
The trial court ruled in plaintiff’s favor.
On appeal, Ford argued among other things that proof of alternative design had not been made. The trial court and the Court of Appeal held that plaintiff’s expert’s reference to Ford’s own previous and subsequent designs of the subject device – which did not catch the engine compartment on fire – met plaintiffs burden of proof of alternative design.
Fields v. Walpole Tire Service, L.L.C., 45,206 (La. App. 2 Cir. 5/19/10) 37 So.3d 549:
Plaintiff truck driver was injured when his trucks tire blew out after he had parked his employer’s truck and while he was walking past. He was knocked to the ground and seriously injured. The tire was manufactured by Goodyear and recently retreaded by Walpole (originally made a defendant, but later dismissed). Plaintiff’s suit contended, among other things, that the tire was unreasonably dangerous because the it failed to conform to an express warranty and/or was unreasonably dangerous because Goodyear failed to provide an adequate warning about the tire. At the close of plaintiff’s case in chief, the court granted Goodyear’s directed verdict. Plaintiff appealed. Held, affirmed.
One of plaintiff’s arguments was that Goodyears’ datasheet claiming “excellent retread-
ability” was an express warranty under (B)(4) of 9:2800.54. Good try, but the court held:
“…even if the data sheet and Tielking’s (plaintiff’s expert) testimony did show that Goodyear issued an express warranty with regard to the tire, plaintiff presented no evidence to show that the warranty “induced the claimant or another person or entity to use the product,” as required by LSA-R.S. 9:2800.58. “
Payne v. Gardner, 2010-0021 (La.App. 3 Cir. 10/27/10) — So.3d —- :
In this case of catastrophic injury to a 13year old special ed student who tried to “ride” an oil well pump like a carnival ride, summary judgment was granted to the product manufacturer. Defendant’s argument centered upon the “reasonably anticipated use” requirement of (A) of section 2800.54 and sought dismissal. Plaintiff countered that the manufacturer should have known that the product was an attractive nuisance and that failure to warn and guard constituted actionable causes under the Act. Held: reversed and remanded
The court noted the “scanty” record, but found that plaintiff had at least created a genuine issue of material fact. Judge Amy’s dissent urges that the majority improperly harks back to pre-LPLA notions of “foreseeable misuse”, which he says (in agreement with Treasurer Kennedy) that this notion was eliminated by the Act.
Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254 (U.S. 5 Cir. 2002):
This not so recent U.S. Fifth Circuit case is one of the most cited among the numerous federal district court pronouncements on the LPLA. It involved alleged injury to plaintiff’s liver from administration of the anti-fungal drug, Lamisil. Plaintiff sued, originally alleging 2315 negligence and intentional act. These were dismissed on MSJ, but the court allowed plaintiff (?in proper person?) to amend. In his amendment he alleged defective construction and warning under the LPLA. After extensive discovery these claims too were dismissed. Stahl appealed, including the issue of dismissal of his intentional act claim.
On the latter issue, the court found that the Act “limits a plaintiff’s theories of recovery against a manufacturer of an allegedly defective product to those established by the LPLA. See, e.g., Jefferson, 930 F.Supp. at 244. The court rejected Stahl’s creative analogy to the La. Workers Compensation Statute [23:1032 (B)] which creates an exception to the immunity of comp employers for “intentional acts”. It held:
There is no language in the LPLA indicating that its exclusive remedy provision does not preclude intentional tort claims, and both federal and Louisiana courts have read the Act’s exclusive remedy provision to prevent plaintiffs from bringing intentional tort claims. See, e.g., Grenier, 243 F.3d at 203-06 (affirming the district court’s dismissal of a fraud claim and other tort claims not among the exclusive theories of liability in the LPLA); Arabie v. R.J. Reynolds Tobacco Co., 96-0978 (La.App. 5 Cir. 6/30/97), 698 So.2d 423, 424-25 (1997) (granting summary judgment to defendants because plaintiffs’ battery, fraud, and wrongful death claims were not among the exclusive theories of liability enumerated in the LPLA). Further, there is no reason to read an intentional acts exception into the LPLA, as manufacturers are subject to suit under the Act for both intentional and unintentional acts.
Ayo v. Honeywell International, 2010 WL 4117726 (M.D. La 2010):
In this products liability case involving exposure to chlorine gas as a result of the rupture of a transfer hose, plaintiffs sued alleging the defendant distributor was a manufacturer of the hose. After discovery, cross motions for summary judgment were filed. The court denied plaintiffs’ and granted defendant’s motion. Among the theories put forth by the plaintiff was that of the “apparent manufacturer doctrine”. The court correctly cited Louisiana law on that doctrine:
Though Plaintiffs do not mention the apparent-manufacturer doctrine by name, Plaintiffs’ memoranda appear to implicate the doctrine. Under the apparent-manufacturer doctrine, a court may find a distributor or seller liable for a defective product, inter alia, if it “held the product out to the public as its own.” Chevron USA, Inc. v. Aker Maritime, Inc., 604 F.3d 888, 895-896 (5th Cir.2010) quoting Chappuis v. Sears Roebuck & Co., 358 So.2d 926, 928-29 (La.1978). Plaintiffs argue that Defendant “affixed” a name plate to the hose (docs. 62 & 64). However, it is undisputed that the hose was also marked with “Crane Resistoflex.” The Fifth Circuit in Chevron synthesizes the Louisiana jurisprudence regarding the apparent-manufacturer doctrine:
Thus, these Louisiana cases tend to demonstrate that when the distributor’s actions give the buying public a basis to assume that it may be the manufacturer of a product it distributes, a jury will usually be within its province to conclude that the distributor held itself out as the product’s manufacturer, even though the indications may be less than clear and the ambiguity as to the actual manufacturer may subsequently be clarified.
Nonetheless, the court goes on to find that the facts do not support application of the doctrine and grants defendants motion.
Matthews v. Remington Arms Co., Inc., 2009 WL 2970441 (W.D. La. 2009):
Plaintiffs sue for serious personal injuries caused when Mr. Matthews fire a rifle manufactured by Remington. The bolt assembly of the gun had two parts which were held together by a pin which would be removed for cleaning. If the pin were not in place, the danger of an explosion upon firing was very real. Matthews was using the gun for target practice and was injured when the bolt assembly failed to properly engage and a round exploded in the partially opened chamber. Parts of the bolt hit him in the eye and head. He sued under LPLA. The district court granted Remington’s
After finding that Matthews had not used the gun dangerously, the court went on to state:
This conclusion, however, does not end the Court’s inquiry. Mr. and Mrs. Matthews bear the burden of showing that Remington should have anticipated that an ordinary user would fire the rifle in its altered condition. For the following reasons, the Court finds that Mr. Matthews’ use of the rifle in an out-of-battery condition was not reasonably anticipated……
The Court, therefore, finds that Remington was entitled to expect that an ordinary user would reassemble the rifle with all its parts, absent special circumstances not present in this case.
Tatum v. Southern Systems Inc., 2010 WL 2874406 (W.D. La. 2010):
This is a rare denial of summary judgment in a products case removed to federal court. The plaintiff, an assembly plant worker, was stationed on a conveyor system, performing a specific, assigned function. Her hand was caught in the conveyor system when she reached into the apparatus and she was seriously injured. She sued in state court and was removed to federal court. The manufacturer filed its motion arguing that, among other things, the use of its product by plaintiff was not “reasonably anticipated” as contemplated in the act. The Judge reviewed applicable Louisiana law beginning as follows:
“Reasonably anticipated use” is an objective standard. Green v. BDI Pharm., 803 So.2d 68, 75 (La.App. 2d Cir.2001). However, the parameters of the term remain inexact:
“[R]easonably anticipated use” is a term of art, the scope of which is imprecise and lacking set criteria for its application. When determining whether a use was reasonably anticipated, courts have previously considered factors such as: (1) whether the injured party used the product in a manner that was obviously dangerous; (2) what the user was instructed to do and warned not to do with respect to the use of the product; (3) whether the use of the product was expressly warned against in the product’s labeling (or operations manual) and the language of that warning; and (4) the sophistication/experience of the user-purchaser.
Broussard v. Procter & Gamble Co., 463 F.Supp.2d 596, 606 (W.D.La.2006) (citing 70 F.3d 803, 806 (5th Cir.1995); Lockart v. Kobe Steel Ltd. Const. Mach. Div., 989 F.2d 864, 866 (5th Cir.1993); Laird v. Deep Marine Tech., Inc., No. Civ.A. 03-2211, 2005 WL 22949, at *2 (E.D.La. Jan.4, 2005); Frith v. John Deere Co., 955 F.Supp. 663 (W.D.La.1996)).4
After an extensive analysis of the applicable case law the court held:
We recognize that our denial of summary judgment rests on narrow factual footing in light of Louisiana jurisprudence interpreting the “reasonably anticipated use” standard. Yet such intricate factual determinations are better suited for trial. Therefore, we will not preclude Ms. Tatum’s claims at this early stage.