Butler v. Denka Performance Elastomer LLC et al
Filing
198
ORDER AND REASONS - IT IS ORDERED that Department of Health's 188 Motion to Dismiss is GRANTED and DISMISSED WITH PREJUDICE, as set forth herein. Signed by Judge Martin L.C. Feldman on 1/11/2022. (sa)
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 1 of 10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUANEA L. BUTLER, individually and as
representative of all others similarly situated
CIVIL ACTION
v.
NO. 18-6685
DENKA PERFORMANCE ELASTOMER, LLC, ET AL.
SECTION F
ORDER AND REASONS
Before the Court is a Rule 12(b)(6) motion to dismiss filed
by defendant Louisiana Department of Health.
For the reasons that
follow, the motion is GRANTED and the Department of Health is
DISMISSED WITH PREJUDICE.
Background
This environmental tort litigation arises from the production
of neoprene at the Pontchartrain Works Facility (“PWF”) in St.
John the Baptist Parish.
Neoprene production allegedly exposes
those living in the vicinity of the PWF to concentrated levels of
chloroprene above the upper limit of acceptable risk and allegedly
may result in a risk of cancer more than 800 times the national
average.
Juanea L. Butler has lived in LaPlace, Louisiana since 1998.
She sued the Louisiana Department of Health (“LDH”), the Louisiana
Department of Environmental Quality (“DEQ”), Denka Performance
Elastomer LLC (“Denka”), and E.I. DuPont de Nemours and Company
1
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 2 of 10
(“DuPont”) seeking class certification, damages, and injunctive
relief in the form of abatement of chloroprene releases from her
industrial neighbor, the PWF.
Ms. Butler’s Class Action Petition
for Damages was filed on June 5, 2018 in the 40th Judicial District
Court for St. John the Baptist Parish.
Effective November 1, 2015, DuPont sold the PWF to Denka, but
DuPont retained ownership of the land underlying the facility.
December
2015,
released
a
the
Environmental
screening-level
Protection
National
Air
Agency
Toxics
In
(“EPA”)
Assessment
(“NATA”), and classified chloroprene as a likely human carcinogen.
EPA's
NATA
threshold
evaluation
for
suggested
chloroprene:
an
0.2
acceptable
μg/m3;
that
risk
is,
exposure
chloroprene
emissions should stay below .2 micrograms per cubic meter2 to
comply with the limit of acceptable risk threshold (which is a
risk of 100 in one million people).
The EPA's National Enforcement Investigation Center (“NEIC”)
conducted a Clean Air Act (“CAA”) inspection of the Pontchartrain
Works facility in June 2016.
A copy of the redacted inspection
report from the EPA's CAA inspection was publicized on April 3,
2017.
The NEIC inspection report revealed various areas of non-
compliance by both DuPont and Denka in their operation of the
facility,
including
failure
to
adhere
to
monitoring,
recordkeeping, and reporting requirements for the chloroprene vent
condenser; failure to replace leaking valves; failure to include
2
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 3 of 10
appropriate emissions factors in air permit application materials;
and failure to institute appropriate emissions controls for the
chloroprene Group I storage tank.
In her original and amended class action petition, Ms. Butler
alleges that DuPont and Denka have and continue to emit chloroprene
at levels resulting in concentrations exceeding the upper limit of
acceptable risk.
The plaintiff further alleges that DEQ and LDH
failed to warn the plaintiff and her community about chloroprene
exposure.
She alleges that:
Due to the Plaintiff's exposure to the chloroprene
emissions, she has experienced symptoms attributable to
exposure of said chemical. Since April 2012 until current
date, the Plaintiff has continually sought medical
attention for the following conditions: acute bronchitis;
coughing; throat irritation; redness and swelling; nasal
blockage, congestion, and sneezing; sinusitis and nasal
polyps; exacerbation of pre-existing asthma; shortness of
breath; wheezing; rhinosinusitis; thyroid enlargement;
cardiac problems; nausea; vomiting; headaches; fatigue;
epistaxis (nose bleeds); anxiety; depression; insomnia;
and temporary hair loss.
Seemingly at random, the plaintiff invokes as causes of action
Louisiana state constitutional provisions.
She seeks injunctive
relief in the form of abatement of chloroprene releases to “comply”
with
the
EPA's
suggested
0.2
μg/m3
threshold;
damages
for
deprivation of enjoyment of life; damages for medical expenses;
damages for loss of wages; damages for pain and suffering; punitive
damages; and additional damages including medical monitoring to
the extent personal injury claims become mature.
3
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 4 of 10
Denka and DuPont jointly removed the lawsuit, invoking this
Court's diversity jurisdiction under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d).
motion to remand.
The Court denied the plaintiff's
See Order and Reasons dtd. 1/3/19 (denying
motion to remand); see Order and Reasons dtd. 2/20/19 (denying
motion to reconsider). This Court granted motions to dismiss filed
by DuPont, Denka, DEQ, and LDH.
The plaintiff appealed, and the
Fifth Circuit affirmed in part and reversed in part, remanding
this case for the Court’s review.
The Fifth Circuit affirmed this
Court’s dismissal of custodial liability claims against DuPont and
Denka, this Court’s dismissal of all claims against Denka for
failure to state a claim, and this Court’s dismissal of declaratory
relief
claims
against
the
Louisiana
DEQ.
The
Fifth
Circuit
reversed the Court’s finding that the claims against Denka, DuPont,
and the LDH were prescribed and remanded.
The Court now considers
the LDH’s motion to dismiss for failure to state a claim.
Analysis
I. Rule 12(b)(6) Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
for the dismissal of a complaint for failure to state a claim upon
which relief can be granted.
Such motions are rarely granted
because they are viewed with disfavor.
See Lowrey v. Tex. A & M
Univ. Sys., 117 F.3d 242, 247 (5 Cir. 1997) (quoting Kaiser
4
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 5 of 10
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5 Cir. 1982)).
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8).
“[T]he
pleading
‘detailed
standard
factual
Rule
8
allegations,’
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a motion to dismiss under Rule 12(b)(6), the
Court “accept[s] all well-pleaded facts as true and view[s] all
facts in the light most favorable to the plaintiff.”
See Thompson
v. City of Waco, Texas, 764 F.3d 500, 502 (5 Cir. 2014) (citing
Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675
F.3d 849, 854 (5 Cir. 2012) (en banc)).
The Court will not accept
conclusory allegations in the complaint as true.
Id. at 502-03
(citing Iqbal, 556 U.S. at 678).
To survive dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”
Gonzalez v. Kay, 577 F.3d 600, 603 (5
Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted).
“Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
5
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 6 of 10
doubtful in fact).”
footnote omitted).
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff's obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ ”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
II. Plaintiff Alleges no Legally Cognizable Duty
“Every act whatever of man that causes damages to another
obliges him by whose fault it happened to repair it.”
Code art. 2315(A).
La. Civ.
“Every person is responsible for the damage he
occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill.”
6
La. Civ. Code art. 2316.
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 7 of 10
Courts employ the duty-risk analysis to determine whether to impose
liability based on these broad negligence principles.
See Lemann
v. Essen Lane Daiquiris, 923 So. 2d 627, 633 (La. 2006).
The
analysis requires proof by the plaintiff of five separate elements:
(1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant's conduct failed to
conform to the appropriate standard (the breach element); (3) the
defendant's
substandard
plaintiff's
injuries
defendant's
substandard
conduct
(the
was
a
cause
cause-in-fact
conduct
was
a
in
fact
element);
legal
of
the
(4)
cause
the
of
the
plaintiff's injuries (the scope of liability or scope of protection
element); and (5) the actual damages (the damages element).
Id.
“A negative answer to any of the inquiries of the duty-risk
analysis results in a determination of no liability.”
Id.
Here, the LDH submits that Butler has failed to demonstrate
the existence of a legally cognizable duty.
As a Department of
the State of Louisiana, the LDH submits, it has only the duties
and responsibilities delegated to it by the Louisiana Legislature.
The LDH asserts that it has not been given such a duty with regard
to the issues in this case.
noted
in
a
footnote,
The Court agrees.
“[The
LDH]
is
As it previously
responsible
for
state
environmental quality functions only as delegated to it by the
legislature.
The legislature has specifically delegated powers
7
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 8 of 10
and duties with respect to air quality control to DEG, not [the
LDH].”
Order and Reasons dtd. 3/13/19 at 15 n.7.
Plaintiff raises two counterarguments to this conclusion,
neither of which the Court finds compelling.
First, plaintiff
cites to animating statutes and Louisiana Supreme Court precedent
in an attempt to locate a legally cognizable duty.
Plaintiff
asserts that the LDH is required to “take such action as is
necessary to accomplish the subsidence and suppression of diseases
of all kinds,” and “perform functions … which relate to the general
health of the people of the state,” among other purported duties.
La. R.S. § 40:5A(1), La. R.S. § 36:251B.
While these statutes
describe the LDH’s general role in this state, they do not suffice
to show a specific, legally cognizable duty on which a private
plaintiff can rely for a negligence claim.
As the LDH properly
notes in a reply brief, plaintiff’s theory of the LDH’s duties
would allow for a prima facie negligence claim in almost any case
in which an individual has suffered from a disease in this state.
Alternatively, the plaintiff again relies on a purported
general duty of care created by the Louisiana Supreme Court. 1 This
so-called general duty does not suffice.
As the Fifth Circuit
Plaintiff cites Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151,
1157 (La. 1988), which reads in part: “each person owes a duty to
take reasonable care to avoid acts or omissions which he can
reasonably foresee would be likely to injure a present or future
member of society…” (citations omitted).
1
8
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 9 of 10
noted in affirming this Court’s reasoning dismissing the claims
against another party in this same case, “Butler's retreat to
generalized grievances is unavailing.
While Louisiana law does
impose a ‘universal duty’ on defendants in a negligence action to
use ‘reasonable care,’ … plaintiffs are still required to assert
a ‘specific standard’ of care.”
Butler, 16 F.4th at 444–45.
Without allegations suggesting the source of an enforceable duty,
the plaintiff is unable to plead a plausible claim for negligence.
As with the plaintiff’s responses to other motions to dismiss
before this Court, plaintiff’s counsel – inexcusably – declines to
even acknowledge the Fifth Circuit’s binding decision in this very
case.
It seems kind to point out that counsel should know better.
III. The Motion is Properly Before the Court
Alternatively, the plaintiff requests that the Court strike
the LDH’s motion as redundant. First, she submits that this motion
is in violation of Rule 12(g)(2), which reads in part: “a party
that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.”
The LDH raised
– and this Court did not reach – the failure to state a claim in
its earlier motion to dismiss.
It was not omitted from the earlier
motion; this argument fails.
Alternatively, plaintiff’s counsel
asks this Court to reject the motion as redundant.
Again, the
Court did not reach this question in its previous Order and
9
Case 2:18-cv-06685-MLCF-KWR Document 198 Filed 01/11/22 Page 10 of 10
Reasons, and so the motion is patently not redundant.
Plaintiff’s
responses to this motion border on the frivolous, to say the least.
*
Accordingly,
Department
of
IT
IS
Health’s
*
*
ORDERED:
motion
to
that
dismiss
defendant
is
Louisiana
GRANTED.
The
Department of Health is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, January 11, 2022
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?