Valenza v. Wal-Mart Stores, Inc. et al

Filing 34

ORDER & REASONS: granting 17 Defendants' Motion for Summary Judgment; All of Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 12/22/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOHN VALENZA, III

CIVIL ACTION

VERSUS

NO: 16-2469

WAL-MART STORES, INC.,
ET AL.

SECTION: “J”(3)

ORDER & REASONS
Before the Court is Defendants’ Motion for Summary Judgment
(R. Doc. 17), an opposition thereto filed by Plaintiff, John
Valenza, III (R. Doc. 20), and Defendants’ reply to Plaintiff’s
Opposition (R. Doc. 25). 1

Having considered the motion and legal

memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
The facts of this lawsuit are not in dispute. 2 This lawsuit
stems from injuries Plaintiff allegedly suffered after he was
exposed to bleach. On February 9, 2015, Plaintiff purchased a box

1 Defendants also filed a Motion in Limine to Exclude Plaintiff’s Medical Expert
Witnesses (R. Doc. 16). Defendants then filed a reply brief in which they agreed
to permit Plaintiff’s medical experts to testify to the information contained
in their medical records, but maintained that Plaintiff may not offer any
opinion-testimony from non-retained medical experts that is not expressly
disclosed in the medical records. (R. Doc. 26-1.) The Court held oral argument
on December 7, 2016, and granted Defendants’ motion in limine in part. (R. Doc.
28.) Specifically, this Court held that Plaintiff’s medical expert witnesses
would only be permitted to testify as to the information set forth in their
medical records. Id. Accordingly, Defendants’ Motion for Summary Judgment is
the only remaining motion before the Court. (R. Doc. 17.)
2 Plaintiff concedes that “[t]he dynamics of this accident are not in dispute.
Plaintiff will not waste the Court’s time with a regurgitation of the facts as
laid out by Defendants.” (R. Doc. 20 at 1.) Accordingly, the Court shall assume
that Plaintiff agrees with Defendants’ representation of the facts as set forth
in Defendants’ Motion for Summary Judgment (R. Doc. 17-1).

of three bleach bottles from a Sam’s Club located in Metairie,
Louisiana. Each bottle was approximately one gallon in size.
Plaintiff asserts that the box was sealed and in good condition
when he purchased it. Plaintiff placed the box of bleach bottles
on the floor of the back-seat area of his truck. However, Plaintiff
placed the box of bleach bottles on its side, so that the three
bleach bottles were lying on their sides and on top of one another.
Plaintiff left the bleach in his truck over night, and when he
returned to his truck in the morning, he smelled a strong bleach
odor. Plaintiff saw that there was liquid in the truck and that
the

carpet

was

wet.

Plaintiff

opened

the

box

of

bleach

and

discovered that the bottle at the bottom of the stack leaked.
Plaintiff reported the incident to Sam’s Club, and they asked him
to come to the store. Plaintiff agreed to come to the store, left
the box and bottle as they were, and drove to the store with his
windows down. At Sam’s Club, an employee took photographs of
Plaintiff’s truck, the box, and the bottle of bleach. During this
interaction, either Plaintiff or the Sam’s Club employee moved the
box of bleach bottles to the bed of Plaintiff’s truck. Plaintiff
left Sam’s Club with the bleach bottles in the bed of his truck
and went to work. Plaintiff left the truck at work and did not
drive the truck until the carpet was repaired.
Plaintiff alleges that he suffered injuries from exposure to
the fumes from bleach that leaked in his truck. (R. Doc. 1-3.)
2

Further, Plaintiff alleges Defendants are responsible for the
improper packaging of the bleach, which was the sole and proximate
cause of Plaintiff’s injuries (e.g., emergency room visits and
multiple surgeries). Id. at 17; see also (R. Doc. 20 at 6.)
Plaintiff’s Opposition to Defendants’ motion asserts causes of
action under the Louisiana Products Liability Act (“LPLA”) for
design,

construction,

and

failure

to

warn

defects,

Louisiana

Revised Statute § 9:2800 and Louisiana Civil Code article 2317 for
general negligence and res ipsa loquitur, and Louisiana Civil Code
article 2520 for redhibition. Id.
On March 24, 2016, this case was timely removed to this Court
on the basis of diversity jurisdiction. (R. Doc. 1.) On November
23, 2016, Defendants filed the present Motion for Summary Judgment.
(R. Doc. 17.) Plaintiff filed a timely opposition thereto. (R.
Doc. 20.) The Court held oral argument on December 7, 2016.
Defendants’ Motion for Summary Judgment (R. Doc. 17) is the only
remaining motion before the Court.
PARTIES’ ARGUMENTS
1. Defendants’ Arguments
First, Defendants argue that Plaintiff has not produced any
evidence of a defect in the design of the Clorox bleach bottle.
(R. Doc. 17-1 at 5.) Specifically, Defendants argue that Plaintiff
has not designated any experts or served any expert reports;
therefore,

Plaintiff

cannot

present
3

any

opinion

testimony

to

establish a design defect or establish the statutory requirements
of a safer alternative design capable of preventing the claimed
damage. Id. Defendants also argue that there is no evidence that
the incident occurred because of a defect in the product’s design.
Second,

Defendants

argue

that

Plaintiff

cannot

offer

or

identify any evidence to show that the bleach bottle that leaked
deviated in a material way from the specifications or standards
for such bottles. Id. at 6. Third, Defendants argue that Plaintiff
has not alleged any facts or circumstances that would cause the
“Retailer Defendants” 3 to be classified as statutory manufacturers
of the bleach bottles. Id. at 7. Fourth, to the extent Plaintiff
asserts negligence claims against Defendants, other than under the
LPLA, Defendants argue that such claims are preempted and that
Plaintiff has not produced any evidence of negligent behavior. Id.
at

8.

Further,

Defendants

argue

that

Plaintiff’s

LPLA

and

negligence claims should be dismissed because he has not produced
admissible evidence of damages. Id. at 9-11. Defendants also argue
that Plaintiff is asserting a claim for damage to his truck, but
Plaintiff has not designated any experts to prove the value or
cost of the alleged property damage. Id. Finally, Defendants argue
that Plaintiff’s redhibition claim should be dismissed because

3

Wal-Mart Stores, Inc.; Wal-Mart Louisiana, LLC; and Sam’s East, Inc.

4

Plaintiff has neither disclosed nor claimed any economic-loss
damages. Id. at 9.
2. Plaintiff’s Arguments
First, Plaintiff argues that his LPLA claim need not be
supported by expert testimony. (R. Doc. 20 at 3.) Plaintiff asserts
that the facts of this case are clear, “[i]f Clorox had seals on
their bleach bottles, this accident likely does not occur.” Id.
Plaintiff asserts that the bleach bottles should contain a seal
under the cap, and that this is a safer alternative design.
Plaintiff also argues that the bottles should have contained a
“this side up” label. Thus, Plaintiff argues that he should not be
required to retain an expert to testify “about such simple and
reasonable alternatives that Clorox could have implemented to
protect the consumer of its products. Clorox should not be allowed
to skirt liability in an accident such as this simply because an
injured victim does not have sufficient resources to obtain experts
to testify as to ‘common sense’ fixes that could have protected
the consumer from harm.” Id. at 4.
Second, Plaintiff argues that Defendants are liable under res
ipsa loquitur because Plaintiff did nothing to cause his own
injury. Id. at 6. Plaintiff asserts that the bleach from the Clorox
bleach bottle leaked on its own and caused Plaintiff’s injuries.
Id. Plaintiff argues that there is no other potential cause of

5

this incident except for Clorox’s actions, or lack thereof. Id. at
7.
Third,

Plaintiff

argues

that

his

property

damages

were

reported and produced by an expert. Id. at 7. Plaintiff argues
that he removed the carpet from the truck himself, but that
Causeway

Custom

Collision

provided

an

estimate

to

repair

Plaintiff’s carpet. Accordingly, Plaintiff argues that he has
produced sufficient property damage evidence. Id. Finally, as to
medical causation of Plaintiff’s injuries, Plaintiff asserts that
he is entitled to a Housley presumption because he was in good
health prior to the accident, his symptoms occurred after the
accident,

and

there

is

a

reasonable

possibility

of

a

causal

connection between the accident and the disabling condition. Id.
at 9. Further, Plaintiff reiterates the arguments presented in his
Opposition to Defendants’ Motion to Exclude Plaintiff’s Medical
Experts (R. Doc. 18) to why he has presented sufficient evidence
of medical damages and why Plaintiff’s experts should be permitted
to testify should this case proceed to trial. Id. at 8-10.
3. Defendants’ Reply
In response to Plaintiff’s Opposition, Defendants argue that
Plaintiff

has

abandoned

multiple

claims.

(R.

Doc.

25.)

Specifically, Defendants argue that Plaintiff’s Opposition does
not

address

Plaintiff’s

LPLA

claims

6

against

the

Retailer

Defendants, 4 redhibition claim, and general negligence claim. Id.
at

1.

Accordingly,

Defendants

argue

that

these

claims

are

abandoned, which leaves only Plaintiff’s LPLA claims against the
Clorox Defendants. 5 Id. at 2.
As to Plaintiff’s design defect claim, Defendants again argue
that Plaintiff has offered no evidence to support his assertion
that adding a small white seal, like those said to be found on
milk cartons, would have prevented this accident from occurring.
Id. Further, Defendants argue that there is no evidence that such
seals are intended to prevent leaks. Rather, Defendants assert
that

the

alteration

seals

may

before

be

intended

purchase.

In

to

prevent

all,

contamination

Defendants

argue

or

that

Plaintiff has not put forth any evidence, rather than his own
statement, that his proposed packaging change could be feasibly
implemented without having any adverse implications.
As to Plaintiff’s construction or composition defect claim.
Defendants again argue that Plaintiff has not even attempted to
offer evidence that the bleach bottle in question deviated in any
material way from the specification or standards for such bottles.
Rather, Plaintiff focuses on the design of the bottle. Accordingly,
Plaintiff’s construction or composition defect claim should be
dismissed.

4

See supra note 3.
Clorox Company; Clorox International Company; Clorox Manufacturing Company;
Clorox Sales Company; Clorox Services Company.

5

7

Defendants assert that Plaintiff’s Opposition attempts to
advance a product warning claim under the LPLA, but that he failed
to raise a failure to warn claim in his Complaint. Id. at 3. Thus,
Defendants argue that Plaintiff’s failure to warn claim fails for
two reasons. First, Plaintiff did not plead a failure to warn
claim. Second, even assuming Plaintiff properly raised a failure
to warn claim, Plaintiff’s argument that there are no warnings on
the bottles as to the proper storage is “demonstrably false.” Id.
at 4. Defendants argue that the box of bleach bottles has two
warning labels.
Similarly, Defendants argue that Plaintiff did not plead res
ipsa loquitur and that this claim should be dismissed. Id. at 5.
However, even if Plaintiff pleaded res ipsa loquitur, Defendants
argue that the circumstances surrounding this incident indicate
that the bleach bottle leaked because of Plaintiff’s actions, not
Defendants’

negligence.

Finally,

Defendants

again

argue

that

Plaintiff has failed to put forth competent evidence of damages
for his property and medical damages. Id. at 7-10. Defendants argue
that Plaintiff’s evidence of property damage is hearsay, which is
inadmissible at trial and for summary judgment purposes. As to
Plaintiff’s medical damages, and medical causation, Defendants
argue that Plaintiff has not produced any Rule 26 reports nor
offered any evidence of medical causation. Moreover, Defendants
argue that Plaintiff is not entitled to a Housley presumption
8

because he has not demonstrated any of the requisite elements one
must for such presumption.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
9

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
Foremost,

Plaintiff

has

abandoned

several

of

the

claims

raised in his Complaint by failing to address them in response to
Defendants’ motion for summary judgment. Specifically, Plaintiff’s
Opposition to Defendants’ motion for summary judgment did not
address his redhibition claim, negligence claim, nor his LPLA claim

10

against the Retailer Defendants. 6 Accordingly, these claims are
dismissed and Plaintiff’s only remaining claims are under the LPLA
against the Clorox Defendants. 7 Venezia v. ConcoPhillips Co., No.
12-2168, 2014 WL 107962, at *13 (E.D. La. Jan. 8, 2014) (citing
Vela v. City of Houston, 276 F.3d 659, 678-79 (5th Cir. 2001)
(“Failure to address a claim in response to a defendant’s summary
judgment motion constitutes abandonment of the claim.”).
Second,

Plaintiff’s

Opposition

to

Defendants’

motion

for

summary judgment raised a failure to warn claim under the LPLA.
(R. Doc. 20 at 4.) Defendants argue that this claim must be
dismissed

because

this

argument

goes

beyond

the

scope

of

Plaintiff’s complaint, and the box of bleach bottles includes
warning labels. (R. Doc. 25 at 3-4.) Plaintiff’s Complaint states
that

his

injuries

were

“caused

by

negligence

in

design,

construction, assembly or packaging of the bleach. . . .” (R. Doc.
17-6

at

3.)

Further,

Plaintiff’s

Complaint

states

that

the

Defendants “are responsible for the improper packaging of the
bleach, which was the sole and proximate cause of plaintiff’s
injuries.” Id. Accordingly, the Court finds that Plaintiff has
failed to plead a failure to warn claim under the LPLA and this

6 Under the LPLA, recovery is not available against a manufacturer if the
manufacturer did not produce the offending product. Stahl v. Novartis Pharms.
Corp., 283 F.3d 254, 260–61 (5th Cir. 2002) (explaining that an element of an
LPLA claim is “that the defendant is a manufacturer of the product”).
7 See supra note 5.

11

“claim” is dismissed. See Jolliff v. United States, No. 11-1150,
2012 WL 2449952, at *6 (E.D. La. June 27, 2012).
Nevertheless,
pleaded

a

even

if

to

warn

failure

Plaintiff’s
claim,

complaint

this

claim

sufficiently

must

still

be

dismissed. “To successfully maintain a failure to warn claim under
the LPLA, a plaintiff must demonstrate that the product in question
has

a

potentially

damage-causing

characteristic

and

that

the

manufacturer failed to use reasonable care to provide an adequate
warning about this characteristic.” Stahl v. Navartis Pharma.
Corp., 283 F.3d 254, 264 (5th Cir. 2002). To satisfy the first
prong of this test, Plaintiff must allege facts as to the “cause,
frequency, or consequences” of the dangerous characteristic at
issue. Id.

However,

“mere

allegation[s]

of

inadequacy”

are

insufficient for a plaintiff to survive summary judgment on a
failure to warn claim. Id. Plaintiff argues that “Clorox does not
have a warning on its box that states, ‘this side up’ or ‘do not
place on side.’” (R. Doc. 20 at 4.) However, the bleach box in
this case contains a “Storage and Disposal Warning” which reads
“store this product upright.” (R. Doc. 25-1 at 2.) Additionally,
the front of the box has an arrow which reads “UP” to demonstrate
the proper storage method for the box. Id. at 4, 5. Accordingly,
Plaintiff’s failure to warn claim must be dismissed because he has
produced nothing more than mere allegations that these warnings
are inadequate, let alone prove that these warnings are inadequate.
12

See Guidroz v. Crown Equip. Corp., No. 09-1204, 2011 WL 6171134,
at *2 (W.D. La. July 11, 2011) (citing Stahl, 283 F.3d at 264-65)
(holding that “[p]laintiff’s legal memorandum, with the subject
warnings attached as exhibits to Defendant’s Motion, [did] not
create a genuine dispute of material fact as to the sufficiency of
the subject warnings”).
Similarly, Plaintiff did not plead res ipsa loquitur in his
Complaint. See (R. Doc. 1-3 at 7-11, 13.) Accordingly, Plaintiff’s
res ipsa loquitur claim should be dismissed on this ground alone.
See Jolliff, 2012 WL 2449952, at *6. However, even if Plaintiff’s
Complaint sufficiently pleaded res ipsa loquitur, Plaintiff has
not excluded the inference of his own responsibility as the cause
of this accident. Plaintiff admits that he placed the box of bleach
bottles on its side with the bottles stacked on top of each other.
It is uncontroverted that this is not the proper storage method
for the bleach bottles. The pictures submitted by Defendants reveal
that the box contains a warning that the box should be stored
“upright” and without the bottles stacked on top of each other,
and that the box contains an “UP” arrow demonstrating the proper
storage method. Because there are several reasonable hypotheses as
to what caused the bleach to leak, Plaintiff may not rely on the
doctrine of res ipsa loquitur, and this “claim” must be dismissed.
See Ayala v. Enerco Grp., Inc., 569 F. App’x 241, 250 (5th Cir.
2014) (explaining that a plaintiff must “sufficiently exclude
13

inference

of

the

plaintiff’s

own

responsibility

or

the

responsibility of others besides [the] defendant in causing the
accident”).
Plaintiff’s only remaining claims are for construction and
design defect under the LPLA against the Clorox Defendants. The
Court shall address each in turn.
1. Construction Defect
A

product

is

unreasonably

dangerous

in

construction

or

composition if, at the time the product left its manufacturer’s
control,

the

product

deviated

in

a

material

way

from

the

manufacturer’s specifications or performance standards for the
product or from otherwise identical products manufactured by the
same manufacturer. Reynolds v. Bordelon, 2014-2371, (La. 6/30/15);
172 So. 3d 607 (La. 2015). To prove this theory, Plaintiff must
demonstrate (1) what the Clorox Defendants’ specifications or
performance standards were for the Clorox bleach bottle, and (2)
how the Clorox bottle that leaked materially deviated from these
standards so as to render it unreasonably dangerous. Id. at 613.
Plaintiff

has

produced

no

evidence

of

the

correct

specifications or standards for Clorox bleach bottles. Further,
Plaintiff has produced no evidence that the bleach bottle at issue
deviated in a material way from the manufacturer’s specifications
or

performance

standards

for

such

14

bottles

or

from

otherwise

identical

products

manufactured

by

the

Clorox

Defendants.

Accordingly, Plaintiff’s construction defect claim is dismissed.
2. Design Defect
A product is unreasonably dangerous in design if, and only
if, at the time the product left its 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.
Reynolds, 172 So. 3d at 614 (citing La. Rev. Stat. § 9:2800.56).
Accordingly, Plaintiff is first required to show an alternative
design for the Clorox bleach bottle existed at the time it left
the manufacturer’s control. See id. The LPLA requires all elements
to be proven. Id. If a plaintiff fails to propose another design
for the product or develop an alternative design, it is unnecessary
to address the remaining elements of this theory. Id. “Without
expert or technical evidence to support the contention that the
design was defective or to establish an alternative design” the
plaintiff cannot create an issue of fact to be left to a jury.
Brown v. Home Depot USA, Inc., No. 14-545, 2016 WL 1583646, at *3
n.32 (M.D. La. Apr. 19, 2016) (citing McCarthy v. Danek Med., Inc.,
65 F. Supp. 2d 410, 412 (E.D. La. 1999)).

15

Plaintiff contends that Clorox bleach bottles are not fitted
with

“the

small

white

seal

that

is

found

on

so

many

other

substances, i.e., milk. . . . If Clorox had seals on their bleach
bottles, this accident likely does not occur.” (R. Doc. 20 at 3.)
However, Plaintiff has provided no expert or technical evidence to
support his contention that the design of the bleach bottle was
defective. Accordingly, Plaintiff cannot support his design defect
claim by merely arguing that the bottle was defective. See Brown,
2016 WL 1583646, at *3 n.32 (granting defendant’s motion for
summary judgment where plaintiff did not identify any experts who
would offer their expert or technical opinions to support his
design defect claim or to establish that an alternative design
existed that would have prevented plaintiff’s injuries). Further,
even if the Court were to assume the existence of an alternative
design,

Plaintiff

has

not

argued

nor

produced

any

evidence

regarding the burden of adopting such an alternative design and
any adverse effect that such design may have on the utility of
Clorox bleach bottles. See (R. Doc. 20.) Accordingly, Plaintiff
cannot prove that the subject Clorox bleach bottle was unreasonably
dangerous in design. See Brown, 2016 WL 1583646, at *3 n.32.

16

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment is GRANTED. All of Plaintiff’s claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 22nd day of December, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

17