Parekh v. Argonautica Shipping Investments B.V. et al

Filing 63

ORDER AND REASONS granting 40 Motion for Summary Judgment. Signed by Judge Susie Morgan. (Reference: 16-13731)(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NAYANA AMBARISH PAREKH,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-13731
c/w 16-14729

ARGONAUTICA SHIPPING
INVESTMENTS B.V. et al
Defendants

SECTION: “E” (3)

Applies to: 16-13731
ORDER AND REASONS
Before the Court is a motion for summary judgment by Defendant Absolute
Outdoor, Inc. (“Absolute”).1 The motion is unopposed. For the following reasons, the
motion is GRANTED.
BACKGROUND
On July 17, 2016, Captain Ambarish Ramnikari Parekh, a marine cargo surveyor
employed by Maritech Commercial, Inc., fell into the Mississippi River as he was
attempting to board the M/V AFRICAN RAPTOR from the C/B MISS RACHEL. 2 At the
time of his fall, Captain Parekh was wearing an Onyx A/M 24 Type V personal flotation
device (“PFD”) manufactured by Absolute.3
Type V personal flotation devices will inflate automatically or manually when the
wearer is immersed in water. To properly function, however, the PFD must be armed with
a CO2 cartridge.4 If the PFD is not properly armed with a CO2 cartridge, it will not inflate

R. Doc. 40.
R. Doc. 40-15 at 8. The M/V AFRICAN RAPTOR was a 656.10-foot Bahamian flagged bulk cargo vessel.
R. Doc. 6. at 2. The C/B MISS RACHEL, a 42-foot crew boat, was owned and controlled by Defendant Weber
Marine, LLC. Id.
3 R. Doc. 40-15 at 2.
4 R. Doc. 40-9 at 2.
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automatically when immersed in water or when the wearer pulls the manual “Jerk to
Inflate” tab.5 The PFD worn by Captain Parekh, purchased by his son Sandeep Parekh at
Sports Authority in 2011, was packaged with a CO2 cartridge, but sold unarmed.6 Onyx
PFDs are sold with warnings and instructions regarding the need to arm the PFD with the
provided CO2 cartridge prior to use.7
Captain Parekh’s body was recovered in the Mississippi River on July 19, 2016,
wearing the uninflated vest.8 According to the deposition testimony of Sergeant Glenn
Luna, the PFD had not been inflated, and no CO2 cartridge was found in the PFD’s
inflator.9 When Captain Parekh’s PFD was later armed with a CO2 cartridge and tested by
Wayne Walters, Vice President of Kent Sporting Goods, Inc., in the presence of all
counsel, the PFD operated as designed.10 No other defects were discovered.11
On August 9, 2016, the Plaintiff filed this civil action and also an action in rem
against the M/V AFRICAN RAPTOR.12 The Plaintiff pleaded negligence against the M/V
AFRICAN RAPTOR and strict products liability against Absolute as the manufacturer of
the allegedly defective life vest based upon the general maritime law of the United
States.”13
On November 4, 2016, Absolute filed its answer to the Plaintiff’s complaint, in
which it included a jury demand and affirmative defenses relating to the Louisiana

Id.
R. Doc. 40-16 at 2.
7 R. Doc. 40-9 at 4.
8 R. Doc. 40-15 at 2.
9 Id. at 3.
10 R. Doc. 40-9 at 2.
11 Id.
12 R. Doc. 1. The Plaintiff filed an amended complaint on September 1, 2016. R. Doc. 6. The Court
consolidated the Plaintiff’s civil action for damages—No.16-13731—with her in rem action—No. 16-14729.
R. Doc. 16.
13 R. Doc. 6 at 5–6.
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Products Liability Act (“LPLA”).14 The Louisiana Workers Compensation Corporation
filed a motion to intervene on December 12, 2016,15 which the Court granted.16 On August
11, the Court ruled that Plaintiff’s claims sounded solely in maritime law, and as a result
struck Absolute’s jury demand and affirmative defenses under the LPLA.17
On October 17, 2017, Absolute moved for summary judgment on the grounds that
there exists no dispute of material fact, and that Absolute is entitled to judgment as a
matter of law.18 Absolute argues that Plaintiff has failed to make out a maritime products
liability claim against it, and that Plaintiff’s claim against Absolute should thus be
dismissed.19 The motion is unopposed.
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”20 “An issue is material if its resolution could affect the outcome of the action.” 21
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”22 All reasonable inferences are drawn in favor of the nonmoving party.23
There is no genuine issue of material fact if, even viewing the evidence in the light most

R. Doc. 11.
R. Doc. 17.
16 R. Doc. 19.
17 R. Doc. 34.
18 R. Doc. 40.
19 R. Doc. 40-1 at 1.
20 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
21 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
22 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
23 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.24
If the dispositive issue is one on which the moving party will bear the burden of
persuasion 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.’” 25 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.26
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.27 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled

Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
26 Celotex, 477 U.S. at 322–24.
27 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
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to summary judgment as a matter of law.28 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.”29 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant.30 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).”31 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.”32
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.

First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
29 Celotex, 477 U.S. at 332–33.
30 Id.
31 Celotex, 477 U.S. at 332–33, 333 n.3.
32 Id.; see also First National Bank of Arizona, 391 U.S at 289.
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‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”33
LAW AND ANALYSIS
The Fifth Circuit applies the Restatement (Second) of Torts to maritime product
liability cases.34 To make out a maritime product liability claim, a plaintiff must show that
the product was defective and unreasonably dangerous for its normal use. 35 “The
determination that a product is unreasonably dangerous . . . means that, on balance, the
utility of the product does not outweigh the magnitude of the danger . . . In other words,
it must be so dangerous that a reasonable man would not sell the product if he knew the
risk involved.”36
The undisputed facts show that the Onyx A/M Type V Inflatable PFD worn by
Captain Parekh during the accident was not defective. The PFD was sold with the
necessary CO2 cartridge,37 and Captain Parekh’s son testified that he and a deckhand
armed the PFD with the cartridge after it was purchased. 38 When Captain Parekh’s PFD
was found, however, no CO2 cartridge was installed.39 During the May 17, 2017
examination of Captain Parekh’s PFD, the PFD operated normally when armed with a
CO2 cartridge, and no other defect or damage was otherwise discovered.40
Plaintiff does not provide any evidence creating a dispute of material fact as to
whether the Onyx PFD manufactured by Absolute and worn by Captain Parekh at the time
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
34 Vickers v. Chiles Drilling Co., 822 F.3d 535 (5th Cir. 1987).
35 Id. (citing the Restatement (Second) of Torts § 402A).
36 Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330 (5th Cir. 1984).
37 R. Doc. 40-16 at 3.
38 Id. at 4.
39 R. Doc. 40-15 at 3.
40 R. Doc. 40-9 at 2.
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of his death is defective in any way. Accordingly, Plaintiff is unable to assert a maritime
product liability claim against Absolute.
CONCLUSION
IT IS ORDERED that Defendant Absolute Outdoor, Inc.’s motion for summary
judgment is GRANTED.
New Orleans, Louisiana, this 22nd day of November, 2017.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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