Myers v. Union Carbide Corporation et al
ORDER AND REASONS granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. The Court GRANTS plaintiff leave to file a second amended complaint within seven days of this Order. Signed by Judge Sarah S. Vance on 11/21/2022. (mm)
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 1 of 18
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNION CARBIDE CORPORATION,
SECTION “R” (4)
ORDER AND REASONS
Before the Court is defendants’ motion to dismiss plaintiff’s amended
complaint for failure to state a claim. 1 Plaintiff opposes the motion. 2 For the
following reasons, the Court grants in part and denies in part defendants’
This case arises out of plaintiff’s alleged exposure to ethylene oxide
(“EtO”) near a petrochemical plant in Hahnville, Louisiana (the “facility”),
owned and operated by defendants The Dow Chemical Company (“Dow”)
and Union Carbide Corporation (“Union Carbide”).3 Plaintiff, a 65-year-old
R. Doc. 3. Unless otherwise indicated, all record document citations
refer to civil action number 22-797.
R. Doc. 9.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 1-1 ¶ 1.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 2 of 18
woman who lives near the facility,4 was one of seven plaintiffs who sued Dow,
Union Carbide, and five individual employees for negligence, civil battery,
and nuisance in the Civil District Court for the Parish of St. Charles, alleging
that inhalation of EtO emitted from the facility was a substantial factor in
causing plaintiffs’ breast cancer.5
On June 2, 2021, defendants Dow and Union Carbide removed the case
to federal court, contending that the non-diverse employee defendants were
improperly joined, and that, therefore, this Court has diversity jurisdiction
under 28 U.S.C. § 1332. 6 Plaintiffs moved to remand the case to state court.7
This Court denied plaintiffs’ remand motion and dismissed plaintiffs’ claims
against the five employee defendants.8 In so doing, the Court held that
plaintiffs had failed to state cognizable claims against any of the employee
Plaintiffs moved for reconsideration, which this Court
denied. 10 Soon thereafter, this Court severed the case into seven separate
R. Doc. 2 at 3 ¶ 10.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 53 at 1-2.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 1.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 21.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 38.
Cambre v. Union Carbide Corp., et al., No. 21-1067, R. Doc. 53.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 3 of 18
actions based on “the significant differences in the factual and legal issues
involved in each plaintiff’s claims.” 11
After plaintiff’s case was severed, plaintiff filed her amended complaint
in this section, in which she reasserted her claims for negligence, civil
battery, and nuisance against Dow and Union Carbide. 12 In support of her
claims, she contends that defendants operate the facility without sufficient
pollution controls to limit EtO emissions, which caused her to develop breast
cancer and continues to pose a risk to her health. 13
She alleges that
defendants emit state-authorized amounts of EtO into the atmosphere,
which endanger people who live and work near the facility, in addition to
unauthorized emissions caused by “leaks, faulty equipment, and other
Defendants moved to dismiss plaintiff’s amended complaint for failure
to state a claim. 15 Defendants argue that plaintiff failed to state a claim for
negligence because she has not identified a specific duty that defendant
breached. 16 They argue that because she failed to establish a claim for
R. Doc. 1 at 4.
R. Doc. 2.
Id. at 7 ¶ 34.
Id. ¶ 36.
R. Doc. 3.
R. Doc. 3-1 at 2.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 4 of 18
negligence, she has likewise failed to establish a claim for nuisance, which,
defendants contend, requires a showing of negligence.17 Finally, they argue
that plaintiff’s civil battery claim must be dismissed because “battery-byomission” is not a cognizable theory under Louisiana law. 18
Plaintiff opposes defendants’ motion. The Court considers the motion
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. The Court
must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 5 of 18
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
On a Rule 12(b)(6) motion, the Court must limit its review to the
contents of the pleadings, including attachments. Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court
may also consider documents attached to a motion to dismiss or an
opposition to that motion when the documents are referred to in the
pleadings and are central to a plaintiff’s claims. Id. “In addition to facts
alleged in the pleadings, however, the district court ‘may also consider
matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.
App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,
78 F.3d 1015, 1017-18 (5th Cir. 1996)).
Defendants contend that plaintiff failed to state a claim for negligence,
nuisance, and civil battery. The Court will address each cause of action in
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Under article 2315 of the Louisiana Civil Code, “[e]very act whatever of
man that causes damage to another obliges him by whose fault it happened
to repair it.” La. Civ. Code art. 2315(A). Louisiana courts conduct a dutyrisk analysis to determine whether to impose liability under article 2315.
Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 632-33 (La. 2006).
Liability requires satisfaction of five elements: (1) the defendant had a duty
to conform his conduct to a specific standard; (2) the defendant’s conduct
failed to conform to the appropriate standard; (3) the defendant’s
substandard conduct was a cause in fact of the plaintiff’s injuries; (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s injuries;
and (5) actual damages. Id. at 633. In her amended complaint, plaintiff has
failed to plausibly allege that defendants “had a duty to conform to a specific
standard.” Id. Accordingly, she fails to state a claim for negligence.
In support of her negligence claim, plaintiff contends that defendants
owe a duty of care to reduce their EtO emissions to levels that do not “pose
an unreasonable risk of harm.”19 She argues defendants breached this duty
by emitting EtO in “amounts that create an unreasonable and foreseeable
risk of harm” to the neighboring community. 20
R. Doc. 2 at 11-12 ¶ 52.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 7 of 18
A recent Fifth Circuit decision persuades this Court that plaintiff’s
allegations are inadequate to state a duty under article 2315. In Butler v.
Denka Performance Elastomer, LLC, the Fifth Circuit considered plaintiff’s
appeal of the district court’s dismissal of her claims arising from allegedly
unsafe emissions of chloroprene in the community. 16 F.4th 427, 432 (5th
Much like here, the plaintiff in that case alleged that the
defendant’s “unreasonably excessive” chloroprene emissions “violated
Louisiana’s general duty to use reasonable care to avoid injury to another.”
Id. at 444. The Fifth Circuit affirmed the lower court’s dismissal of plaintiff’s
negligence claim. In so doing, the court explained that the plaintiff’s “retreat
to generalized grievances [was] unavailing,” and that “[w]hile Louisiana law
does impose a universal duty on defendants in a negligence action to use
reasonable care,” plaintiffs still must “assert a specific standard of care.” Id.
at 444-45. Accordingly, courts must determine whether the plaintiff “has
any law (statutory, jurisprudential, or arising from general principles of
fault)” to support the claim that the defendant owed a duty. Id. at 445. The
court held that the plaintiff failed to point to any source of law—statutory,
jurisprudential, or otherwise—in which “generalized references to excessive
emissions, acceptable risk threshold, and unreasonable dangerous
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 8 of 18
emissions” constitute a sufficient legal duty to support a negligence claim.
Id. (internal quotation marks omitted).
Here, too, plaintiff has cited no cognizable source or articulation of the
duty alleged. She instead rests on the notion that defendants have a duty to
exercise “ordinary care” and to “reduce emissions to a level that do[es] not
pose an unreasonable risk of harm.”21 These allegations fail to to specify a
“specific standard” of care with which defendants should have complied. See
Lemann, 923 So. 2d at 633.
Plaintiff attempts to sidestep Butler and demonstrate divided circuit
authority in this issue by citing the Fifth Circuit’s decision in Cedar Lodge
Plantation, LLC v. CSHV Fairway View I, LLC, 753 F. App’x 191 (5th Cir.
2018). Specifically, plaintiff points to the court’s discussion in Cedar Lodge
of the distinction between regulatory and tort standards. There, the court
[R]egulatory standards do not establish the requirements for
recovery by one private party against another for property
damage. Rather, the Louisiana Civil Code provides much
broader relief, through claims for negligence and nuisance, to a
landowner whose neighbor damages his property. Defendant
has cited no authority for the proposition that plaintiff cannot
state a claim for allowing contaminants to come onto his
property unless those contaminants exceed state regulatory
standards, and we have found none.
R. Doc. 2 at 11-12 ¶ 52.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 9 of 18
Id. at 197-98. But this proposition does not conflict with Butler’s instruction
that a tort plaintiff must identify a specific standard of care that the
defendant breached. Indeed, in Cedar Lodge, the court explained that, while
regulatory compliance is not a defense to tort liability, “Louisiana law is clear
that negligently allowing sewage to drain onto another person’s property
entitles the landowner to relief.” Id. at 197. In so stating, the court cited a
Louisiana case involving negligent operation of a sewage treatment system.
See Smith v. Cutts, 759 So. 2d 851, 855 (La. App. 3 Cir.), writ denied, 763 So.
2d 598 (La. 2000).
In other words, the court recognized a specific,
jurisprudential source of the tort duty breached in the case before it. And the
Fifth Circuit was clear in Butler that a plaintiff must identify such a standard
in order to state a negligence claim. Here, plaintiff does not identify a specific
standard to which defendants should have conformed their conduct. That
deficiency in her complaint warrants dismissal under Butler and Rule
12(b)(6). Compare Joseph v. Evonik Corp., et al., No. 22-1530, 2022 WL
16721888, at *8 (E.D. La. Nov. 4, 2022) (finding that plaintiff’s allegations
that defendant failed to conform to the requirements L.A.C. 33:III.905 and
33.III.2121 stated a claim for negligence).
Finding no specific standard of care with which defendants ought to
have complied, the Court finds, consistent with the Fifth Circuit’s decision in
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Butler, that plaintiff has not stated a claim for negligence under Louisiana
law. Defendants’ motion to dismiss is granted as to plaintiff’s negligence
claim. This claim is dismissed without prejudice. The Court grants plaintiff
leave to amend her negligence allegations to articulate a specific duty or
standard of care that defendants are alleged to have breached.
Plaintiff also alleges that defendants are liable for nuisance under
Louisiana’s vicinage articles. Under article 667 of the Louisiana Civil Code:
Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may deprive
his neighbor of the liberty of enjoying his own, or which may be
the cause of any damage to him. However, if the work he makes
on his estate deprives his neighbor of enjoyment or causes
damage to him, he is answerable for damages only upon a
showing that he knew or, in the exercise of reasonable care,
should have known that his works would cause damage, that the
damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.
La. Civ. Code art. 667. Mere inconvenience, though, may be permissible.
Under article 668, “every one has the liberty of doing on his own ground
whatsoever he pleases, although it should occasion some inconvenience to
his neighbor.” La. Civ. Code art. 668. But article 669 provides that not all
inconveniences need be tolerated:
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 11 of 18
If the works or materials for any manufactory or other operation,
cause an inconvenience to those in the same or in the
neighboring houses, by diffusing smoke or nauseous smell, and
there be no servitude established by which they are regulated,
their sufferance must be determined by the rules of the police, or
the customs of the place.
La. Civ. Code art. 669.
These Code articles collectively “embody a balancing of rights and
obligations associated with the ownership of immovables.” Badke v. USA
Speedway, LLC, 139 So. 3d 1117, 1126 (La. App. 2 Cir.), writ denied, 151 So.
3d 606 (La. 2014). “As a general rule, the landowner is free to exercise his
rights of ownership in any manner he sees fit.” Id. Indeed, a proprietor “may
even use his property in ways which occasion some inconvenience to his
neighbors.” Id. But under article 667, “his extensive rights do not allow him
to do ‘real damage’ to his neighbor.” Id. (citing Rodrigue v. Copeland, 475
So. 2d 1071 (La. 1985)). “[A] finding of liability under Article 667 requires
either proof of personal injury or physical damage to property or proof of the
presence of some type of excessive or abusive conduct.” Harmonia, LLC v.
Felicity Prop. Co., LLC, 311 So. 3d 521, 528 (La. App. 4 Cir. 2020) (quoting
Lodestro Co. v. City of Shreveport, 768 So. 2d 724, 727 (La. App. 2 Cir.
With the exception of the “ultrahazardous” activities of pile driving and
blasting with explosives—neither of which is at issue here—a claim under any
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 12 of 18
or all of these three Code articles requires a showing of negligence. See
Brown v. Olin Chem. Corp., 231 F.3d 197, 200 (5th Cir. 2000) (“[T]he 1996
amendment to Article 667 applies to Articles 668 and 669 as well, so that
stating a claim under one or more of these articles now requires a showing of
negligence.”). Accordingly, to assert a nuisance claim under any or all of
these articles, a plaintiff must show that “a defendant is (1) a proprietor who
(2) negligently (3) conducts ‘work’ on his property (4) that causes damage to
his neighbor.” See Ictech-Bendeck v. Progressive Waste Sols. of LA, Inc.,
No. 18-7889, 2019 WL 4111681, at *2 (E.D. La. Aug. 29, 2019) (citing Bd. of
Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., LLC, 88
F. Supp. 3d 615, 643 (E.D. La. 2015)).
Here, plaintiff has plausibly alleged that defendants are proprietors
whose activities on their property caused “real damage” to its neighbors.
Badke, 139 So. 3d at 1126. Plaintiff also plausibly alleges the negligence
requirement, the terms of which are prescribed by the text of the Code—
namely, that defendants “knew or, in the exercise of reasonable care, should
have known that [their] works would cause damage, that the damage could
have been prevented by the exercise of reasonable care, and that [they] failed
to exercise such reasonable care.” La. Civ. Code art. 667. Specifically,
plaintiff points to longstanding industry knowledge of the carcinogenic
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 13 of 18
effects of EtO, 22 and alleges that defendants failed to prevent the damage
caused by their EtO emissions.23 The Court finds that these allegations are
sufficient at the pleadings stage to support a nuisance claim under the
vicinage articles of the Louisiana Civil Code.
See Taylor v. Denka
Performance Elastomer LLC, No. 17-7668, 2018 WL 5786051, at *4-5 (E.D.
La. Nov. 5, 2018) (denying defendant’s motion to dismiss plaintiffs’ nuisance
claims arising out of community exposure to chloroprene from defendant’s
Defendants’ arguments in support of dismissal of plaintiff’s nuisance
claim are unpersuasive.
Defendants’ primary argument is that under
Louisiana law, plaintiff must establish negligence in order to prevail on her
claim for nuisance.24 They argue that because plaintiff fails to plausibly
allege a negligence duty, her nuisance claim must be dismissed. 25 This
argument conflates the general negligence standard under article 2315 with
the distinct negligence requirement for a nuisance claim under Louisiana’s
vicinage articles, which deal specifically with a proprietor’s relationship to
his neighbors. In the context of general negligence, liability requires that the
R. Doc. 2 at 4-6 ¶¶ 16-31.
Id. at 14-15 ¶ 67.
R. Doc. 3-1 at 15-16.
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defendant had a duty to conform his conduct to some specific standard.
Lemann, 923 So. 2d at 633.
In the vicinage context, the Code itself
establishes the standard of conduct between a proprietor and his neighbors.
Specifically, the Code provides that the proprietor’s liability for damages
arises if he “knew or, in the exercise of reasonable care, should have known
that his works would cause damage, that the damage could have been
prevented by the exercise of reasonable care, and that he failed to exercise
such reasonable care.” La. Civ. Code art. 667. Accordingly, unlike her article
2315 general-negligence claim, plaintiff’s nuisance claim does not require an
allegation of a separate source of duty. The proprietor’s duty to his neighbors
is established by the Code itself, and it stems from the nature of the parties’
relationships as neighbors. See A.N. Yiannopoulous, 4 La. Civ. L. Treatise,
Predial Servitudes § 3:16 (4th ed. 2021) (“[E]very landowner is bound by
certain obligations of vicinage prohibiting him from causing damage or
inconvenience to neighbors . . . .”); see also Badke, 139 So. 3d at 1126 (noting
“the obligations of neighborhood established by [articles] 667-669”).
Defendants also contend that plaintiff was not even aware of the fact
that she was exposed to the EtO because it is colorless and odorless. 26 They
thus conclude that there is no way such exposure could cause her
R. Doc. 3-1 at 16.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 15 of 18
inconvenience, discomfort, or property interference. 27
ignores the core of plaintiff’s complaint: that she developed cancer as a result
of defendants’ operations. The Court finds that plaintiff’s cancer diagnosis
constitutes “real damage.” See Ellis v. Evonik Corp., et al., No. 21-1089,
2022 WL 1719196, at *13 (E.D. La. May 27, 2022) (finding that a cancer
diagnosis qualifies as “real damages” for purposes of a nuisance claim under
Accordingly, defendants’ motion to dismiss plaintiff’s negligence claim
Plaintiff also alleges that defendants are liable for civil battery.28
Under Louisiana law, a battery is a “harmful or offensive contact with a
person, resulting from an act intended to cause the plaintiff to suffer such a
contact.” Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987). For the act to be
intentional, the actor must either “(1) consciously desire the physical result
of his act, whatever the likelihood of that result happening from his conduct;
or (2) know that the result is substantially certain to follow from his conduct,
R. Doc. 2 at 13-14 ¶¶ 59-64.
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whatever his desire may be as to that result.” Batiste v. Bayou Steel Corp.,
45 So. 3d 167, 168 (La. 2010). Substantial certainty “requires more than a
reasonable probability that an injury will occur,” and plaintiff must allege
that defendants’ actions made her contracting cancer “inevitable or
incapable of failing.” Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213
(La. 1999) (internal citations omitted).
Plaintiff has not pleaded any facts supporting her conclusory recitation
of the elements of battery. While plaintiff broadly asserts that the defendants
knew that members of the community would inhale the EtO they emitted
from the facility and that they “knew to a substantial certainty that inhalation
of EtO would cause serious health risks and increased risks of cancer to those
living in close proximity to the facility,” 29 these allegations amount to “naked
assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678
(citations omitted); see also In re Oil Spill by the Oil Rig Deepwater Horizon
in the Gulf of Mexico, on April 20, 2010, 2011 WL 4575696, at *12 (E.D. La.
Sept. 30, 2011) (dismissing claim for battery when plaintiffs alleged that
defendants willfully applied dispersant “in the vicinity” of some plaintiffs).
Although plaintiff asserts that defendants “knew, or should have known, that
the EtO it was releasing was dangerous, toxic, carcinogenic, mutagenic, and
Id. ¶¶ 60-61.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 17 of 18
harmful to local residents,”30 mere knowledge of a possible danger does not
give rise to a battery claim. See Reeves, 731 So. 2d at 213 (“Mere knowledge
and appreciation of risk does not constitute intent . . . .” (citations omitted));
cf. Armstead v. Schwegmann Giant Super Markets, Inc., 618 So. 2d 1140,
1142 (La. App. 4 Cir. 1993), writ denied, 629 So. 2d 347 (La. 1993) (“[M]ere
knowledge . . . that a machine is dangerous and that its use, therefore, creates
a high probability that someone will eventually be injured is not sufficient to
meet the ‘substantial certainty’ requirement.” (citations omitted)).
For these reasons, the Court finds that plaintiff’s claims for civil battery
must be dismissed. Because plaintiff’s civil battery theory is implausible, and
any amendment would be futile, the Court dismisses the claim with
prejudice. See Forman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave
to amend should be denied when an amendment would be futile).
Id. at 4 ¶ 15.
Case 2:22-cv-00797-SSV-KWR Document 17 Filed 11/21/22 Page 18 of 18
For the foregoing reasons, defendants’ motion is GRANTED IN PART
and DENIED IN PART. The Court GRANTS plaintiff leave to file a second
amended complaint within seven days of this Order.
21st day of November, 2022.
New Orleans, Louisiana, this _____
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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