Opinion
Civil Action No. 02-1677, Section "A" (2)
October 17, 2002
ORDER AND REASONS
MINUTE ENTRY
Before the Court is defendant Dow Agrosciences, L.L.C.'s Motion to Dismiss (Rec. Doc. 3.) the First Cause of Action (negligence), Paragraph 17 of the Second Cause of Action (strict liability), the Third Cause of Action (redhibition) to the extent it asserts a claim for personal injury, the Fourth Cause of Action (breach of implied warranty) and the Fifth Cause of Action (fraud and misrepresentation). Plaintiff opposes the motion. The motion is before the Court on briefs without oral argument. For the reasons that follow, the motion is GRANTED.
The defendant has, in actuality, presented a Motion for Partial Dismissal.
BACKGROUND
On or about August 6, 2001, Plaintiff, Keith Barrette (Barrette) was diagnosed as suffering from toxic neurotropy, nerve damage, leg weakness, liver problems, tremors, and nausea allegedly caused by Dursban. Dursban is a pesticide and/or insecticide manufactured and sold by Dow Agrosciences, L.L.C. Home Depot U.S.A., Inc. is a retail seller of Dursban. Until June 8, 2000, when the Environmental Protection Agency banned the use of Dursban in residential and commercial buildings, Dursban was the most widely used pesticide in the United States. During the years 2000 and 2001, Barrette purchased Dursban from the Home Depot in Kenner, Louisiana and used it at his home in Metairie, Louisiana.After prolonged exposure from use, he became symptomatic. On April 25, 2002, Barrette filed suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana against Dow Agrosciences, L.L.C. and Home Depot U.S.A., Inc.
According to the state court petition, Barrette seeks past, present, and future pain and suffering; past, present, and future mental pain and suffering; medical expenses; lost wages; and loss of enjoyment of life under theories of negligence, strict products liability, fraud and misrepresentation, redhibition, and breach of implied warranty. On May 31, 2002, Dow Agrosciences removed to federal court pursuant to 28 U.S.C. § 1441 as the amount in controversy most likely will exceed $75,000 and there is diversity of citizenship between the parties. On June 7, 2002, Dow filed this Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
DISCUSSION
In the Motion to Dismiss, the Defendant argues that the majority of the Plaintiff's causes of action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because they are barred by the Louisiana Products Liability Act (LPLA). La Rev. Stat. 9:2800.51-6.0. The Defendant argues that the LPLA establishes exclusive theories of liability for the damages caused by a manufacturer's products. Specifically, the Defendant claims that the negligence, fraud and misrepresentation, and breach of implied warranty claims in the Plaintiff's petition are barred by the LPLA and case law.
Further, the defendant asks this Court to dismiss paragraph 17 of Plaintiff's Petition stating a cause of action for strict liability, as well as the parts of the Plaintiff's Petition stating a cause of action for redhibition to the extent damages for personal injury are sought. Alternatively, the Defendant argues that the Plaintiff's fraud and misrepresentation action should be dismissed because it is not pleaded with the particularity that Federal Rule of Civil Procedure 9(b) requires.
In opposition to the Defendant's Motion to Dismiss, the Plaintiff argues that he is pursuing a strict products liability cause of action which is acceptable under the LPLA. The Plaintiff further argues that an action for redhibition to recover economic loss is not barred by the LPLA. Finally, the Plaintiff claims that fraud and misrepresentation actions are not barred by the LPLA because they are intentional acts not subject to the LPLA's exclusivity provisions. Plaintiff argues that the Defendant's motion should be denied.
It is unclear from the Plaintiff's Motion in Opposition whether he believes the Defendant's Motion should be denied in its entirety. The Plaintiff only refutes the Defendant's contentions with regard to the strict liability, fraud and misrepresentation, and redhibition claims.
In evaluating a motion to dismiss, the complaint is construed in favor of the plaintiff and all facts pleaded should be taken as true. Southern Christian Leadership Conference v. Supreme Court of the State of Louisiana, 252 F.3d 781, 786 (5th Cir. 2001) (citing Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999)). A motion to dismiss for failure to state claim should only be granted if it "appears beyond a doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Id.
The Louisiana Products Liability Act (LPLA) became effective on September 1, 1988 and applies to causes of action that accrued on or after September 1, 1988. Brown v. R.J. Reynolds Tobacco Company, 52 F.3d 524 (5th Cir. 1995); Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 261 (5th Cir. 2002). The LPLA establishes exclusive theories of liability for manufacturers for damages caused by their products. La. Rev. Stat. 9:2800.52. Accordingly, plaintiffs may not recover from a manufacturer for damages caused by a product on the basis of any theory of liability not set forth in the LPLA. Id.
Under the LPLA "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.'" Jefferson v. Lead Industries Association, Inc., 106 F.3d 1245, 1251 (5th Cir. 1997). A claimant may prove a product was "unreasonably dangerous" because of a (1) construction or composition defect; (2) design defect; (3) inadequate warning; or (4) nonconformity to express warranty. 9:2800.54(B) (1-4). The following are elements of a products liability cause of action under the LPLA:
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 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.
The exclusivity of LPLA does not allow for theories of liability based on fraud, breach of implied warranty, or redhibition for personal injury. Jefferson v. Lead Industries Association, Inc., 106 F.3d 1245, 1251 (5th Cir. 1997) (affirming district court's dismissal of complaint against lead paint manufacturer under theories of negligence, fraud by misrepresentation, market share liability, breach of implied warranty of fitness and civil conspiracy); Lee v. Bayer Corp., 2002 WL 1058893, at * 2 (E.D. La. May 24, 2002) (dismissing complaint against manufacturer based on strict liability, negligence, fraud, misrepresentation, negligent and reckless misrepresentation and conspiracy for failure to state a claim).
Redhibition is available to recover economic loss. J. Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 588 (1989).
In the instant matter, the LPLA applies to the Plaintiff's claims as they arose well after September 1, 1988. As a result of the exclusivity of the LPLA, Barrette's theories of liability are restricted to those provided in the Act. Thus, Barrette's negligence, breach of implied warranty, and fraud and misrepresentation claims must be dismissed in their entirety.
Although Barrette argues that his allegation of fraud is allowed by the LPLA because of its intentional nature, this Circuit has specifically rejected that argument. In Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 261 (5th Cir. 2002), the Fifth Circuit affirmed the district court's dismissal of the plaintiff's intentional tort claim holding that there is no intentional tort exception in the LPLA's exclusive remedy provisions.
Because the Court finds the Plaintiff's claim for fraud barred by the LPLA, it will not reach the merits of the Defendant's argument regarding the Rule 9(b) requirement of pleading fraud with specificity.
As both parties acknowledge in their motions, redhibition is still a viable claim against a manufacturer to the extent the recovery sought is limited to economic loss. Grenier v. Medical Engineering Corp., 243 F.3d 200, 206 n. 5 (5th Cir. 2001). However, the Defendant claims that paragraph 38 of Barrette's Petition expands the recovery sought under the redhibition claim. Barrette alleges in his Petition that Dow is liable to the petitioner under each of his theories of recovery for mental and physical pain and suffering, medical expenses, lost wages, and loss of enjoyment of life. However, redhibition is only available for recovery of economic loss. Paragraph 38, as written, suggests that liability based on a claim for redhibition would allow damages beyond economic loss. Thus, the defendant's motion to dismiss the redhibition claim to the extent that it asserts a claim for personal injury must be granted.
Finally, the defendant argues that Paragraph 17 of Barrette's Petition should be stricken because an independent theory of "strict products liability" is not allowed under the LPLA. The Defendant argues that it is improper for Barrette to allege dangerous design, inadequate warning, and nonconformity to express warranty under the rubric of strict products liability. The Defendant contends that Barrette has to allege each of his unreasonably dangerous product claims specifically and independently limiting them to the specific liability requirements set forth in the LPLA.
To the extent the Defendant argues that Paragraph 17 of the Plaintiff's Petition should be stricken because it references strict liability, the Court does not find that Barrette is attempting to assert a strict liability claim. Barrette insists in his Motion in Opposition that the claims under the heading Strict Products Liability are LPLA claims. Based on the allegations in the paragraphs following Paragraph 17, the Court agrees with the Plaintiff.
As discussed previously, a plaintiff is limited to four theories of proof when arguing that a product was unreasonably dangerous: (1) construction or composition defect; (2) design defect; (3) inadequate warning; or (4) breach of express warranty. Triche v. Overnite Transportation Co., 1996 WL 272270, at *5 (E.D. La. March 17, 1996). The LPLA lists the elements of each of the four theories of recovery. In order to maintain a cause of action under any of the four theories, the Petition must allege the elements required by the LPLA. For example, to maintain a claim based on inadequate warning, a plaintiff must allege that 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 and its danger to users and handlers of the product.'" Stahl, 283 F.3d at 261; La Rev. Stat. 9:2800.55-58. Thus, because the four theories of liability under the LPLA require independent elements of proof and must be specifically alleged, the Court agrees that an attempt to tie them all together under one heading is improper and must dismiss Paragraph 17 of the Petition.
Accordingly;
IT IS ORDERED that the Defendant's Motion to Dismiss (Rec. Doc. 3) the First Cause of Action (negligence), Paragraph 17 of the Second Cause of Action (strict liability), the Third Cause of Action (redhibition) to the extent it asserts a claim for personal injury, the Fourth Cause of Action (breach of implied warranty) and the Fifth Cause of Action (fraud and misrepresentation) should be and is hereby GRANTED. IT IS FURTHER ORDERED that plaintiff amend his complaint within twenty (20) days from entry of this order to plead, in good faith, the state tort claims available to him consistent with this order.