Fernandez v. Tamko Building Products Incorporated et al

Filing 145

RULING granting 115 Motion for Reconsideration. Defendants Motion for Summary Judgment on Plaintiffs construction/composition defect claim, is hereby GRANTED. The trial set for 05/05/ 2014, is hereby cancelled. All pending motions are denied as moot. Signed by Judge Shelly D. Dick on 04/11/2014. (CGP) Modified on 4/11/2014 to edit text (CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JORGE FERNANDEZ AND
RENEE FERNANDEZ

CIVIL ACTION

VERSUS

NO. 12-518-SDD-SCR

TAMKO BUILDING PRODUCTS
INCORPORATED AND STATE
FARM INSURANCE

RULING
This matter is before the Court on the Motions for Reconsideration filed by Plaintiffs,
Jorge and Renee Fernandez1 and Defendant Tamko Building Products2 on the Court’s
Ruling,3 which granted in part and denied in part the Defendant’s Motion for Summary
Judgment. Both parties have opposed the respective motions.4
I.

HISTORY AND PROCEDURAL BACKGROUND
The procedural posture and history of this matter merits discussion. In Plaintiffs’

original Complaint, they asserted claims under three theories of recovery available under
the LPLA, namely, failure to warn, defective design, and defect in composition or
construction. At the summary judgment stage, Plaintiffs put most of their eggs in the
“failure to warn” basket and the Defendant did likewise.

1

Rec. Doc. No. 112.

2

Rec. Doc. No. 115.

3

Rec. Doc. No. 107.

4

Rec. Doc. Nos. 130 & 138.

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On summary judgment, Plaintiffs gave short shrift to their design claim. Plaintiffs
never identified or discussed any alternative design, a necessary element,5 and otherwise
failed to brief the elements of a prima facie case for a design defect under the LPLA.6
Defendant TAMKO correctly pointed out that “plaintiffs have given little indication they
intend to pursue [a design] claim. With the deadline for expert witness disclosures having
passed, not one of plaintiffs’ experts has identified a design defect.”7 Thus, the Court
deemed the Plaintiffs’ defective design claim waived.
As for the Plaintiffs’ construction or composition defect claim, the parties’ briefs on
the summary judgment motion were barely adequate. The sum and substance of TAMKO’s
Motion for Summary Judgment on the Plaintiffs composition and construction claim was
that:
With the product at the center of this dispute no longer available, plaintiff’s
right to recovery is all but eliminated. Any claim that the product was
“unreasonably dangerous in construction or composition” is incapable of

5

La. R.S. 9:2800.56. To establish a design defect under the LPLA, a plaintiff must show that at the
time the product left the manufacturer’s control, (1) “[t]here existed an alternative design for the product that
was capable of preventing the claimant’s damage,” and (2) “[t]he 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.” Milton v. Rapiscan Sec. Prod., No. 04-591, 2005 WL 1400433, at *2 (E.D. La. June 6, 2005)(citing
Krummel v. Bombardier, 206 F.3d 548, 551 (5th Cir. 2000); Lavespere v. Niagara Mach & Tool Works, Inc.,
910 F.2d 167, 178 (5th Cir. 1990)).
6

A plaintiff is required to “identify a specific alternative design in existence at the time of the injury that
was capable of preventing the injury, and they must also perform a risk-utility analysis.” Milton v. Rapiscan
Sec. Prod., No. 04-591, 2005 WL 1400433, at *2 (E.D. La. June 6, 2005)(citing Krummel, 206 F.3d at 551).
Additionally, “[t]he alternative design proposed must be reasonably specific and not based on mere
speculation.” Seither v. Winnebago Industries, Inc., 2002-2091, (La. App. 4 Cir. 7/2/03), 853 So.2d 37, 41.
7

Rec. Doc. No. 68-1, p. 1. In response, Plaintiffs provided only conclusory unsupported arguments
of defective design. Plaintiffs argued that the TAMKO product was defective because it was unreasonably
dangerous when used on steep roofs. ( Rec. Doc. No. 74, p. 7) Plaintiffs relied on their experts’ opinion that
“TAMKO #15 roofing underlayment should never be used on steep sloped roofs, particularly absent the
necessary warning of the dangers presented to roofing installers if it is used in such a dangerous
application”.(Rec. Doc. No. 74, p. 8, citing Householder Deposition p. 14).
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proof. La. R.S. 9:2800.54(B).8
Defendant moved for dismissal of the Plaintiffs’ construction or composition claim
on the sole grounds that the actual roofing felt in place when the Plaintiff fell had been
discarded.9 The Defendant argued that the construction or composition theory of recovery
was not available to the Plaintiff, as a matter of law, because the allegedly defective
product was discarded following the accident. Defendant failed to provide authority for the
legal proposition that a plaintiff may never prove a defective construction/composition claim
when the actual product has been discarded but identical versions of the product are
available for testing. Accordingly, the Court declined to find, as a matter of law, that Plaintiff
could not satisfy his burden of proof by testing and analysis of exemplar rolls of TAMKO
#15. In the absence of argument that the record evidence was insufficient to carry
Plaintiffs’ burden of proof of a construction/composition claim, the Court denied summary
judgment finding that the mere destruction of the actual product did not foreclose Plaintiffs’
possible recovery. On Motion for Reconsideration, Defendant puts meat on the bones of
the argument that the record establishes that Plaintiffs cannot carry their burden of proof
on a construction or composition defect claim.
The Court granted summary dismissal of the Plaintiffs’ failure to warn claim. The
Plaintiffs move for reconsideration.

8

Rec. Doc. No. 68-1, p. 1.

9

Id.

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II.

LAW & ANALYSIS
A.

Motion for Reconsideration

The Motion for Reconsideration was filed within 28 days of the relevant ruling; thus,
it is evaluated pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. “A Rule
59(e) motion calls into question the correctness of a judgment.”10 However, a Rule 59(e)
motion is “not the proper vehicle for rehashing evidence, legal theories, or arguments that
could have been offered or raised before the entry of judgment.”11 Rather, a motion for
reconsideration is for the purpose of correcting “manifest errors of law or fact or to present
newly discovered evidence.”12
B.

Plaintiffs’ Motion for Reconsideration

Plaintiffs make various assertions of error by the Court in its previous Ruling. As
several of Plaintiffs’ arguments are essentially the same arguments presented to the Court
in opposition to the Motion for Summary Judgment, the Court will not engage in “rehashing
evidence, legal theories, or arguments that could have been offered or raised before the
entry of judgment.”13 The Court will, however, make the following observations.
Plaintiffs take umbrage with the Court’s reference to a “heavy burden” regarding the
construction and composition defect claim. In denying the Defendant’s summary judgment
on the construction or composition claim, the Court held that the Plaintiffs could perhaps
prove a defect in construction or composition by evidence adduced from testing exemplars.
10

Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)(citation and quotations omitted).

11

Id. at 479.

12

Id. (citations and quotations omitted).

13

The Court has considered all of Plaintiffs’ contentions whether or not specifically addressed herein.

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The Court did not change the burden of proof in this case as Plaintiffs suggest. Rather, the
Court was merely observing that proving that the subject felt was “defective due to a
mistake in the manufacturing process”14 may be difficult by means of examplar.
Urging reconsideration of the Court’s dismissal of the failure to warn claim, Plaintiffs
suggest that summary judgment is never proper in a product liability case. The wealth of
jurisprudence to the contrary, as well as the multitude of cases cited by the Court in its
Ruling, belie this contention. The Court granted summary judgment dismissing the
Plaintiffs’ failure to warn claims on two grounds; 1) insufficient evidence that “but for” the
allegedly inadequate warning, the accident in question would not have occurred,15 and 2)
no duty to warn a sophisticated user.
It is undisputed that the subject TAMKO #15 felt contained a warning that
“APPROPRIATE FALL PROTECTION METHODS SHOULD BE USED WHENEVER
WORKING ON ROOFS.”16 It is undisputed that the Plaintiff never read the label which
contained the warning.17 Plaintiff argues that the warning, which he concedes he did not
read, should have warned that the subject felt could tear under foot traffic on a steep roof.
However, in light of the established fact that the Plaintiff did not read the warning provided,
the Plaintiff cannot establish that “but for” the allegedly inadequate warning, the accident
in question would not have occurred.18 Plaintiffs argue that the matter of proximate cause

14

Id., quoting Stahl, 283 F.3d at 263 (citing La. R.S. § 9:2800.55)(emphasis added).

15

See Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311 (5th Cir. 1990).

16

Rec. Doc. No. 74-22.

17

Rec. Doc. No. 68-3, Deposition of Jorge Fernandez, p. 89.

18

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See Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311 (5th Cir. 1990).

5

is not to be decided by the Court, but is a question for the jury. The Court would simply
point to the cases it relied on in the Ruling as clear holdings to the contrary.19
Plaintiffs contend the Court’s determination of the actual risk involved in this case,
determined by the Court to be the risk of falling, was a matter for the jury. However, in
Stahl v. Novartis Pharmaceuticals Corp., the Fifth Circuit noted that “[t]his court has
determined that ‘obviousness’ [of the risk] can be appropriately evaluated as a matter of
law in a summary judgment proceeding.”20 Likewise, in Krummel v. Bombardier Corp., the
Fifth Circuit stated on review of a district court ruling in an LPLA case, “[a] court must first
determine what risk, if any, the product created.”21 Regardless of how this Court defined
the risk that caused the Plaintiff’s injury, in light of his admission that he did not read the
warning, the Plaintiff lacks evidence of a necessary element of his warning claim, namely
that “but for” the lack of adequate warning, he would not have fallen.
In any event, the Plaintiff was, as a matter of fact, a sophisticated user. Both the
Plaintiff and his employer described themselves as professional roofers.22 Likewise, Mr.
Mancuso, Regional Sales Manager for Eagle Roofing, who chose and purchased the
subject felt was, as a matter of established fact, is a sophisticated user and purchaser.23
“[M]anufacturers have no duty to warn an end-user of a product’s dangers when the

19

See Peart v. Dorel Juvenile Group, Inc., No. 09-7463, 2011 WL 1336563 (E.D. La. April 7, 2011);
Ortolano v. BDI Marketing, 05-989 (La. App. 5 Cir. 4/25/06), 930 So.2d 192.
20

283 F.3d 254, 268 n. 8 (5th Cir. 2002)(citing Scallan v. Duriron, 11 F.3d 1249, 1252 (5th Cir. 1994).

21

206 F.3d 548, 551 (5th Cir. 2000).

22

See Rec. Doc. No. 68-3, p. 5 (Deposition of Jorge Fernandez, p. 27, lines 1-3).

23

Rec. Doc. No. 68-8.

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product is initially purchased by a sophisticated user that would have the duty to warn the
end-user.”24 Finally, the Plaintiffs’ contention that the “sophisticated user” exception is a
question for the jury is contradicted by the cases on which the Court relied.25
For the first time in their Motion for Reconsideration, Plaintiffs argue that the doctrine
of res ipsa loquitur applies in this case. The Court notes that nowhere in Plaintiffs’
Opposition did they argue the doctrine of res ipsa loquitur, and the Court does not consider
the issue to be appropriately before the Court.26 However, even if this theory had been
offered, Plaintiffs have neither satisfied nor argued the elements of that burden in this case.
Res ipsa loquitur only applies “where direct evidence of defendant’s negligence is not
available to assist the plaintiff to present a prima facie case of negligence.”27 “In order to
apply res ipsa loquitur three criteria must first be satisfied: (1) the injury is of the kind which
does not ordinarily occur in the absence of negligence on someone's part; (2) the evidence
sufficiently eliminates other more probable causes of the injury, such as the conduct of the
plaintiff or of a third person; and (3) the alleged negligence of the defendant must be within

24

Guillot v. Aventis Pasteur, Inc., No. 02-3373, 2013 WL 4508003, at *17 (E.D. La. 8/22/13)(citing
Longo v. E.I. Dupont De Nemours & Co., 632 So.2d 1193 (La.Ct.App.1994); Scallan v. Duriron Co., Inc., 11
F.3d 1249 (5th Cir.1994); Washington v. Dep't of Transp., 8 F.3d 296 (5th Cir.1993); Davis v. Avondale Indus.,
Inc., 975 F.2d 169 (5th Cir.1992); Bates v. E.D. Bullard Co., 76 So.3d 111 (La.Ct.App.2011).
25

See Contranchis v. Travelers Insurance Co., 02-840 (La App. 5 Cir. 1/28/03), 839 So.2d 301
(appellate court affirmed the determination of the trial court that plaintiff was a sophisticated user); Bates
v. E.D. Bullard Company, 2011-187 (La. App. 3 Cir. 10/5/11), 76 So.3d 111 (appellate court affirmed trial
court’s application of the sophisticated user defense and rejected plaintiff’s argument that there was an issue
of fact on this issue).
26

See Bustamente v. U.S. Dept. of Veterans Affairs, No. 03-31160, 107 F. App’x 426, 427, citing Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
27
Shuff v. Brookshire Grocery Company, 45,109 (La. App. 2 Cir. 3/3/10), 32 So.3d 1030, citing
Linnear v. Centerpoint Energy Entex/Reliant Energy, 06-3030 (La. 9/5/07), 966 So.2d 36.

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the scope of the defendant's duty to the plaintiff.”28 Furthermore, the Louisiana Supreme
Court has held that “use of the doctrine of res ipsa loquitur in a negligence case, as in any
case involving circumstantial negligence, does not relieve the plaintiff of the ultimate burden
of proving by a preponderance of the evidence all of the elements necessary for
recovery.”29 Moreover, the Louisiana Supreme Court has emphasized “that the doctrine
of res ipsa loquitur is to be used ‘sparingly’ in products liability cases, and ‘only when the
plaintiff has excluded other “reasonable explanations” for an accident.’”30 For the first time
in this litigation and raised in support of their Motion for Reconsideration, Plaintiffs simply
cite to various cases applying the doctrine, then argue its applicability here for the same
reasons. Plaintiffs have failed to establish any of the three elements listed above to apply
the res ipsa loquitur doctrine to their case.
The Court also finds that the Ruling on Plaintiffs’ warning claims is fully supported
by the analysis, reasoning, and supporting jurisprudence set forth therein. Accordingly,
Plaintiffs’ Motion for Reconsideration31 is DENIED.
C.

Defendant’s Motion for Reconsideration

The Defendant has also moved for reconsideration of the Court’s Ruling denying
summary judgment on Plaintiffs’ construction and composition defect claim. The Defendant
contends that there is no evidence to support this claim, and summary judgment should be

28

Id., citing Linnear, 966 So.2d at 36.

29

Cangelosi v. Our Lady of the Lake Medical Center, 564 So.2d 654,666 (La. 1989) (emphasis

30

Lawson v. Mitsubishi Motor Sales of America, Inc., 2005-0257 (La. 9/6/06), 938 So.2d 35, 45.

31

Rec. Doc. No. 112.

added).

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granted on this claim after reconsideration. The Defendant contends that Plaintiffs cannot
carry their burden of proof on the construction and composition defect claim because none
of Plaintiffs’ liability experts conducted any tests in which they compared exemplars of
TAMKO #15 felt with other samples of the same product. Further, Defendant contends
neither expert rendered any opinion that exemplars of TAMKO #15 deviated from TAMKO’s
specifications or performance standards for that product. While Plaintiffs’ expert, Dr. Jerry
Householder, did test a sample of TAMKO #15 to determine the “tensile strength,” his
report is void of any indication that he compared this sample to any other samples of #15
felt or that the sample tested deviated from TAMKO’s specifications or performance
standards for #15 felt. Likewise, Patrick Heil’s report is void of any reference to conducting
tests of exemplars of TAMKO #15 felt.
Plaintiffs oppose this motion, reiterating their opposition to the Court’s reference to
their “heavy” burden at trial for the construction and composition defect claim. Plaintiffs
also re-urge the doctrine of res ipsa loquitur as set forth in their own Motion for
Reconsideration. As the Court has addressed these issues above, it will not repeat its
findings here. Finally, Plaintiffs argue their experts could not have concluded that tested
samples of TAMKO #15 deviated from TAMKO’s performance standards or specifications
because no such standards or specifications exist.
To prevail on a construction or composition defect claim under the LPLA, “a plaintiff
must show that ‘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

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product or from otherwise identical products manufactured by the same manufacturer.’”32
“In other words, a plaintiff must prove that a product ‘is defective due to a mistake in the
manufacturing process.’”33 Furthermore, “[t]o make this showing, a plaintiff ‘must
demonstrate not only what a manufacturer’s specifications or performance standards are
for a particular product, but how the product in question materially deviated from those
standards so as to render it “unreasonably dangerous.”’”34 The Plaintiff may not defeat
summary judgment by merely professing that no performance standards or product
specifications exist. Plaintiffs fail to point to any evidence in the record that TAMKO has
no performance standards or product specifications for its #15 felt. This burden is clearly
on the plaintiff in a Louisiana products liability case. La. R.S. 9:2800.55 requires proof that:
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.

Plaintiffs fail to point to any record evidence that the exemplar felt failed to conform to the
manufacturer’s performance standards or specifications. Assuming arguendo that TAMKO
had no manufacturing specifications or performance standards for its #15 felt, the Abrogast
v. Timex Corp.,35 case indicates that, at the very least, Plaintiffs should come forward with
evidence of applicable industry or regulatory standards, to which the product failed to

32

Abrogast v. Timex Corp., No. 05-2076, 2010 WL 148288, *5 (W.D. La. Jan. 12, 2010)(quoting La.
R.S. § 9:2800.55).
33

Id., quoting Stahl, 283 F.3d at 263 (citing La. R.S. § 9:2800.55)(emphasis added).

34

Moore v. BASF Corporation, No. 11-1001, 2012 WL 6025917, *3 (E.D. La. Dec. 4, 2012)(quoting
Welch v. Technotrim, Inc., 34,355 (La. App. 2 Cir. 1/24/01), 778 So.2d 728, 733)(emphasis added).
35

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Note 32, supra.

10

conform.
In Abrogast v. Timex Corp., the district court granted summary judgment on
plaintiff’s LPLA construction or composition defect claim, where plaintiff argued that the
Timex watch he purchased contained dangerous levels of hexavalent chromium which
caused plaintiff’s severe skin reaction.36

The court granted summary judgment on this

claim because it found that plaintiff’s expert “fail[ed] to state what the applicable industrial
and regulatory standards are, what the manufacturing specifications of Timex are, what he
expects the manufacturing specifications of Timex to be, or whether the watchband actually
deviates from the manufacturing specifications of Timex.”37 The court further stated that,
“[t]he conclusory affidavits of Plaintiff’s experts are simply insufficient to demonstrate the
existence of a genuine issue of material fact as to whether the watchband is unreasonably
dangerous in construction or composition.”38
Similarly, in Moore v. BASF Corporation,39 plaintiffs alleged claims under the LPLA
due to alleged benzene exposure from plaintiff’s work as a painter for several years.
Plaintiffs sued various companies alleged to manufacture benzene-containing products. On
summary judgment, defendant International Paint argued plaintiffs failed to carry their
burden on their construction/composition defect claim.40 The court noted that, to set forth
36

Abrogast, 2010 WL 148288, at *5.

37

Id. at * 6.

38

Id., citing Grenier v. Med. Engineering Corp., 99 F.Supp.2d 759, 764 (W.D. La. 2000), aff’d, 243
F.3d 200 (wherein the district court dismissed the plaintiff’s claim for a construction defect because plaintiffs
failed to submit any evidence indicating what the manufacturer’s standards were or whether the
product deviated from those standards.)(emphasis added).
39

No. 11-1001, 2012 WL 6025917 (E.D. La. Dec. 4, 2012).

40

Id. at *2.

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a claim for a construction/composition defect, “a plaintiff ‘must demonstrate not only what
a manufacturer’s specifications or performance standards are for a particular product, but
how the product in question materially deviated from those standards so as to render it
“unreasonably dangerous.”’”41 In particular, the court noted that plaintiffs’ expert “did not
purport to test the particular paint products” that were used.42 Thus, the court found that:
“[p]laintiffs have put forth no additional evidence demonstrating that the products that Mr.
Moore encountered deviated from specifications or performance standards or that plaintiffs
even have custody of the paint in question so that tests may be conducted. Therefore,
plaintiffs have failed to put forth evidence that International Paint's products were
unreasonably dangerous in their construction or composition.”43 Importantly, the court
noted, “[b]ecause plaintiffs bear the burden of proof on their LPLA claims at trial, defendant
has satisfied its burden on summary judgment by pointing out that the evidence in the
record contains insufficient proof of an essential element of plaintiffs’ composition claim.”44
After reconsideration, the Court finds that the record in this case warrants the same
result. Despite Plaintiffs’ protestations that “none exist,” it is the Plaintiffs’ burden, as set
forth in the jurisprudence discussed and cited above, to produce either company

41

Id., quoting Welch, 778 So.2d at 733.

42

Id. at 3.

43

Id. (See, e.g., Lacoste v. Pilgrim Int'l, No. 07–2904, 2009 WL 126847 (E.D.La. Jan. 15, 2009)
(granting summary judgment since plaintiffs did not put forth evidence of defendant's manufacturing
specifications or demonstrate how the product in question materially deviated from such standards); Gray v.
Indus. Plant Maint., No. 01–1167, 2004 WL 1661209 (E.D.La. July 23, 2004) (plaintiff did not have custody
of tractor that allegedly injured him and so could not demonstrate how it deviated from the manufacturer's
standards); see also Ortolano, 930 So.2d at 195 (“[Plaintiff] has provided no evidence that this medication
deviated from the manufacturer's specifications ...”).
44

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Id. (emphasis added).

12

specifications and performance standards or at least industry standards and show how the
product deviated therefrom. While the Court did previously hold that this claim survived
summary judgment because of the possibility to test and compare exemplar products in an
effort to make this showing, it is now clear to the Court that no such comparison/tests have
been performed. Furthermore, the law is clear that a composition defect is not to be
inferred simply because the product tore: “Defects are not presumed [to be present] by the
mere happening of an accident.”45 The doctrine of res ipsa loquitur is unavailable to the
Plaintiffs for the reasons set forth above. The Court must find, after careful reconsideration
of the record, that there is simply insufficient evidence which would enable Plaintiffs to carry
their burden on the construction/composition defect claim.

45

Spott v. Otis Elevator Co., 601 So.2d 1355, 1364 (La. 1992); see also Grenier, 243 F.3d at 205
(“Louisiana law does not allow a fact finder to presume an unreasonably dangerous design solely from the
fact that injury occurred.”).
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III.

CONCLUSION
Accordingly, Defendant’s Motion for Reconsideration46 is GRANTED, and

Defendant’s Motion for Summary Judgment47 on Plaintiffs’ construction/composition defect
claim, which was the only remaining claim before the Court, is hereby GRANTED. The trial
set for May 5, 2014, is hereby cancelled. All pending motions are denied as moot.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on April 11, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

46

Rec. Doc. No. 115.

47

Rec. Doc. No. 68.

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