Ayala v. Gabriel Building Supply et al
Filing
154
ORDER AND REASONS granting 96 , 124 Motions for Partial Summary Judgment; denying as moot 97 , 111 , 126 , 140 , 141 , 142 , 143 , 144 , 145 Motions in Limine. Plaintiff's claims are DISMISSED. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA HAMAKER AYALA
CIVIL ACTION
VERSUS
NO: 12‐577
GABRIEL BUILDING SUPPLY, ET AL.
SECTION: “H”(5)
ORDER AND REASONS
Before the Court are two Motions for Partial Summary Judgment (R. Docs. 96; 124) and
nine Motions in Limine (R. Docs. 97; 111; 126; 140; 141; 142; 143; 144; 145). For the following
reasons, the Motions for Partial Summary Judgment are GRANTED and Plaintiff's claims are
DISMISSED. Since no cognizable claims remain against Defendants, the Motions in limine are
DENIED AS MOOT.
BACKGROUND
This products liability action stems from the alleged malfunction of a Model MH12T heating
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unit (the "subject heater") manufactured by Defendants Enerco Group, Inc. and Mr. Heater, Inc.
Louis Ayala ("Ayala") purchased the subject heater on January 28, 2011. On February 2, 2011, the
subject heater exploded, severely burning Ayala and causing significant damage to the surrounding
building. Ayala was hospitalized and treated for 2nd and 3rd degree burns. During this time, Ayala
endured multiple surgeries, intubations, and other uncomfortable procedures. Ayala fought for
his life for approximately six months but eventually succumbed to his injuries on August 4, 2011.
On January 31, 2012, Ayala's wife filed a wrongful death and survival action in State court.
(R. Doc. 1, Ex. A.) Defendants removed the matter on March 2, 2012 (R. Doc. 1), invoking this
Court's diversity jurisdiction and alleging improper joinder of former Defendant Gabriel Building
Supply ("Gabriel"). On May 4, 2012, the Court dismissed Plaintiff's claims against Gabriel. (R. Doc.
24.) On March 7, 2013, the Court dismissed Plaintiff's claims for negligence, strict liability, and
manufacture of an ultra hazardous project, holding that Plaintiff's theories of recovery are limited
to the Louisiana Products and Liability Act ("LPLA"), La. Rev. Stat. §§ 2800.51–.60. (R. Doc. 107.)
Defendants seek dismissal of Plaintiff's remaining claims through two Motions for Partial
Summary Judgment (R. Docs. 96; 124). Both Motions are opposed (R. Docs. 112; 138).
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c) (). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In determining whether the movant is entitled to summary judgment, the Court views facts
in the light most favorable to the non‐movant and draws all reasonable inferences in his favor.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997). “If the moving party meets the
initial burden of showing that there is no genuine issue of material fact, the burden shifts to the
non‐moving party to produce evidence or designate specific facts showing the existence of a
genuine issue for trial.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995). Summary judgment is appropriate if the non‐movant “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). “In response to a properly supported motion for summary judgment, the
nonmovant must identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in
favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof
at trial.” John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted). “We do not . . . in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts.” Badon v. R J R Nabisco, Inc., 224 F.3d
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382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise
properly supported motion.” Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
LAW AND ANALYSIS
In this diversity case, Louisiana law controls. Seacor Holdings, Inc. v. Commonwealth Ins.
Co., 635 F.3d 675, 681 (5th Cir. 2011). Under Louisiana law, the LPLA provides the exclusive remedy
against manufacturers in a products liability action. La. Rev. Stat. § 9:2800.52; Demahy v. Schwarz
Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012). To maintain a successful action under the LPLA,
a plaintiff must prove: "(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 this
characteristic made the product 'unreasonably dangerous'; and (4) that the claimant's damage
arose from a reasonably anticipated use of the product . . . . " Stahl v. Novartis Pharms. Corp., 283
F.3d 254, 261 (5th Cir. 2002) (citing La. Rev. Stat. § 9:2800.54). A product can be "unreasonably
dangerous" in four ways: (i) in construction or composition; (ii) in design; (iii) for failure to provide
an adequate warning; and (iv) for failure to conform to an express warranty. La. Rev. Stat. §
9:2800.54(B). The plaintiff bears the burden of proving all elements. La. Rev. Stat. § 9:2800.54(C).
Defendants seek dismissal of Plaintiff's claims on the basis that the subject heater is not
"unreasonably dangerous" under the LPLA. In their first Motion for Partial Summary Judgment,
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Defendants move to dismiss any claim for defective design or breach of express warranty. (R. Doc.
96.) In their Second Motion for Partial Summary Judgment, Defendants move to dismiss any claim
for inadequate warning or construction defect. (R. Doc. 124.) The Court addresses each Motion
separately.
After reviewing the summary judgment record in a light most favorable to Plaintiff, the
Court agrees with Defendants that no triable issue exists under the LPLA. Accordingly, the Motions
for Partial Summary Judgment are granted and Plaintiff's claims are dismissed.
I.
First Motion for Partial Summary Judgment (R. Doc. 96)
Although styled as a motion for judgment on the pleadings and in the alternative for partial
summary judgment, the Court reviews the instant Motion under Rule 56, given the imminence of
the trial date, the attachment of materials outside the pleadings, and the ample opportunity for
each party to present such materials in support of their position.1 See Fed. R. Civ. P. 12(c); 12(d);
56; see further United States v. 2008 Ford Expedition SUV, C.A. No. C–12–133, 2012 WL 6115655,
*2 (S.D. Tex. Oct. 26, 2012) (citations omitted).
Defendants argue that Plaintiff fails to carry her summary judgment burden as to whether
the subject heater was unreasonably dangerous due to defective design or breach of express
warranty. Plaintiff filed a one‐paragraph opposition in response to this Motion, arguing that
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At the time the Motion was filed, discovery had been ongoing for several months. Moreover,
at Plaintiff's request, the submission date was continued for two weeks. (R. Doc. 104.) Thus, Plaintiff
was given approximately one month to respond to the Motion.
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Defendants seek judgment in vain "concerning claims which were never brought by plaintiffs." (R.
Doc. 112.) Given the ambiguity in Plaintiff's State court petition, the Court addresses these claims
in an abundance of caution.
A. Whether the Heater was Unreasonably Dangerous in Design
A product is unreasonably dangerous in design if, at the time the product left the
manufacturer's control:
(1) There existed an alternative design for the product that was
capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the
claimant's damage and the gravity of that damage outweighed the
burden on the manufacturer of adopting such alternative design and
the adverse effect, if any, of such alternative design on the utility of
the product
La. Rev. Stat. § 9:2800.56. The summary judgment record is devoid of any evidence that an
alternative design existed that could have prevented Plaintiff's injuries. Even assuming arguendo
the existence of such design, there is no evidence regarding the burden of adopting the design and
any adverse effect on the utility of the heater. Given the foregoing, Plaintiff cannot prove that the
subject heater was unreasonably dangerous in design.
B. Whether the Heater was Unreasonably Dangerous Due to Breach of Express Warranty
A product is unreasonably dangerous when it does not conform to a manufacturer's express
warranty about the product if the warranty "induced the claimant . . . to use the product and the
claimant's damage was proximately caused because the express warranty was untrue." La. Rev.
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Stat. § 9:2800.58. The conditio sine qua non for a breach of warranty claim is the existence of an
express warranty. Since the record does not reveal that any such warranty was made, the heater
was not unreasonably dangerous under La. Rev. Stat. § 9:2800.58.
II.
Second Motion for Partial Summary Judgment (R. Doc. 124)
Defendants argue that no triable issue exists as to whether the subject heater was
unreasonably dangerous due to a defect in construction or the failure to provide an adequate
warning regarding a potentially damage‐causing characteristic. The Court addresses each of these
arguments in turn.
A. Whether the Heater was Unreasonably Dangerous Due to a Defect in Construction or
Composition
"To prevail under the construction or composition theory, Louisiana courts require the
plaintiff to (i) set forth the manufacturer's specifications for the product and (ii) demonstrate how
the product materially deviated from those standards so as to render it unreasonably dangerous."
Roman v. W. Mfg, Inc., 691 F.3d 686, 698 (5th Cir. 2012.); see also La. Rev. Stat. § 2800.55. Courts
may not infer the existence of a product defect based solely on the fact that an accident occurred.
Weiss v. Mazda Motor Corp., 54 So. 3d 724, 726 (La. Ct. App. 5th Cir. 2010) (citations omitted).
Plaintiff's expert—A.J. McPhate ("McPhate")—opined that the most probable cause of the
fire and Ayala's injuries was a propane leak in the subject heater. McPhate identified several
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potential defects in the subject heater.2 However, since all non‐ferrous components of the subject
heater melted in the fire, McPhate based his opinion on an examination of another MH12T heater.
Accordingly, McPhate conceded that there was no evidence to suggest the subject heater itself was
defective. In fact, McPhate admitted that he could not conclusively rule out other potential
sources of a propane leak, such as a faulty propane tank or Ayala's failure to properly secure the
POL fitting. McPhate testified in his deposition, however, that it was highly improbable that the
source of the propane leak was a faulty propane tank.
Based on the record before it, the Court finds that Plaintiff has failed to carry her summary
judgment burden. This conclusion finds support in Louisiana jurisprudence. In Gladney v. Milam,
the plaintiffs brought a product liability action against a tire manufacturer after one of the tires
failed, causing the plaintiffs' vehicle to roll over several times. 911 So. 2d 366, 368 (La. Ct. App. 2d
Cir. 2005). In opposition to a motion for summary judgment, the plaintiffs submitted photographs
of the damaged tire, the police accident report, a witness statement, and the testimony of two
experts. Id. at 371. Although he was unable to examine the damaged tire itself, the plaintiffs'
engineer expert testified that the most probable cause of the tire failure was fatigue of the
polyester cords in the sidewall resulting from a manufacturing defect. Id. The expert conceded,
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McPhate identified five potential defects: (1) a faulty connection on the propane bottle; (2)
failure of the pressure regulator; (3) failure of the safety shutoff valve; (4) a crack in the fitting between
the safety shutoff valve and the pressure regulation body; and (5) a crack in the fitting between the
safety shutoff valve and the mixing tube.
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however, that cord fatigue may have been caused by improper maintenance or alternatively by a
design defect. Id. The plaintiffs' other expert concurred that a construction defect caused the tire
to fail but acknowledged that he could not identify the source of the defect. Id. The Louisiana
appellate court affirmed the district court's grant of summary judgment, finding that the opinions
of plaintiffs' experts were too speculative in nature to create a genuine factual dispute regarding
a defective condition in the tire. Id.
The marked similarities between Gladney and the instant matter support the entry of
summary judgment in favor of Defendants. Experts in both cases opined that the most probable
cause of the accident was a construction defect despite not having meaningfully examined the
damaged product itself. Furthermore, both experts were unable to rule out non‐defect‐related
causes of the accident, such as user negligence. In fact, whereas the plaintiffs in Gladney opposed
summary judgment with photographs of the allegedly defective product, the police accident report,
a witness statement, and the testimony of two experts, Plaintiff herein relies mostly on the
testimony of one expert witness.3 Thus, Gladney supports this Court's decision a fortiori.
Given the lack of direct evidence of a manufacturing defect in the subject heater, Plaintiff
appears to argue that there is sufficient circumstantial evidence to establish a genuine issue of
material fact under the doctrine of res ipsa loquitur. This doctrine is a rule of circumstantial
3
Plaintiff does not attach any documents to his opposition memorandum. Rather, he excerpts
various portions of the McPhate deposition and vaguely references other documents, which may or may
not be in the record.
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evidence that assists the plaintiff in presenting a prima facie case when direct evidence is lacking.
Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So. 2d 36, 42 (La. 2007). It permits the
factfinder to infer fault based on the circumstances surrounding the injury. See Cangelosi v. Our
Lady of the Lake Reg'l Med. Ctr., 564 So. 3d 654, 665 (La. 1989). The Louisiana Supreme Court has
held that a products liability plaintiff may utilize res ipsa loquitur to establish the inference that a
product was unreasonably dangerous. Lawson v. Mitsubishi Motor Sales of America, Inc., 938 So.
2d 35, 49 (La. 2006). In order to use this special rule of circumstantial evidence, a plaintiff must
"sufficiently exclude inference of the plaintiff's own responsibility or the responsibility of others
besides defendant in causing the accident." Id. at 50 (internal quotations and citations omitted).
Because res ipsa loquitur is an exception to the general rule that fault should not be presumed, it
should be sparingly applied. Linnear, 966 So. 2d at 44.
Plaintiff may not avail herself of the doctrine of res ipsa loquitur, because she has not
sufficiently excluded other plausible causes of the propane leak. Plaintiff's expert acknowledged
in his deposition that the propane leak may have been caused by Ayala's failure to sufficiently
secure the POL fitting. Plaintiff does not identify any evidence in the summary judgment record,
nor can this Court find any, which sufficiently excludes user negligence as a possible cause of the
accident. Courts routinely reject the application of res ipsa loquitur under such circumstances. See,
e.g., Glascock v Medical Depot, Inc., No. 11–305–JJB, 2013 WL 6310021, at *7 (M.D. La. Jan. 29,
2013); Lacassin v. Virco, Inc., No. 6:11–CV–2104, 2012 WL 6183682, at *5 (W.D. La. Dec. 11, 2012);
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Gladney, 911 So. 2d at 372.
B. Whether the Heater was Unreasonably Dangerous due to Inadequate Warning
"To maintain a failure‐to‐warn claim, a plaintiff must demonstrate 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 (quoting La. Rev. Stat. § 9:2800.57(A)). A plaintiff need not
prove a design or construction defect in order to prevail on a failure‐to‐warn claim. Grenier v. Med.
Eng'g Corp., 243 F.3d 200, 205 (5th Cir. 2001) (citations omitted). In all cases, however, a
manufacture is liable for inadequate warning only if such defect was a proximate cause of the
plaintiff's injury. Peart v. Dorel Juvenile Grp., Inc., No. 09–7463, 2011 WL 1336563, at *3 (E.D. La.
Apr. 7, 2011) (citations omitted); La. Rev. Stat. § 9:2800.54(A). In addition to proving causation in
fact, a plaintiff must also demonstrate that the inadequate warning was the most probable cause
of his injury. See Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994) (citations omitted); Lacoste
v. Pilgrim Int'l, No. 07–2904, 2009 WL 1565940, at *5 (E.D. La. June 3, 2009) (citations omitted).
Cf. Peart, 2011 WL 1336563, at *3.
Plaintiff fails to meet his burden of establishing causation. Indeed, Plaintiff's expert testified
in his deposition that the only defect in the subject heater which caused Plaintiff's injuries was the
alleged defect in construction and composition. Having identified nothing in the record to establish
a causal connection between the alleged failure to provide an adequate warning and Plaintiff's
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injuries, the Court enters summary judgment in favor of Defendants.4
CONCLUSION
For the reasons previously stated, the Motions for Partial Summary Judgment are
GRANTED. Having dismissed all cognizable claims against Defendants, the Motions in Limine are
DENIED AS MOOT. Judgment shall be entered in accordance with this Order.
New Orleans, Louisiana, on this 26th day of April, 2013.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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As Plaintiff's failure to establish causation is dispositive, this Court makes no finding as to
whether Defendant failed to use reasonable care in providing an adequate warning.
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