Gooch v. Packaging Corp. of America, Inc. et al
Filing
63
MEMORANDUM OPINION AND ORDER granting 57 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOE GOOCH, Individually and
as Personal Representative
of the ESTATE OF JODY LYNN
GOOCH,
Plaintiff,
V.
PACKAGING CORP. OF AMERICA,
INC. and ELITE SPECIALTY
WELDING, LLC,
Defendants.
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ENTERED
July 17, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1673
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant Packaging Corporation of
America's Motion for Summary Judgment ("PCA's MSJ") (Docket Entry
No.
57).
After considering the Plaintiff's and Intervenors'
Response to Defendant Packaging Corp.
of America's Motion for
Summary Judgment ("Plaintiff's Response") (Docket Entry No. 5 9),
Defendant Packaging Corporation of America's Reply to Plaintiff and
Intervenors' Response to Its Motion for Summary Judgment ("PCA's
Reply") (Docket Entry No. 60), the state court pleadings, and the
applicable law,
the court concludes that PAC's MSJ should be
granted.
I.
Factual and Procedural Background
On April 25, 2017, plaintiff, Joe Gooch, initiated this action
individually and as the personal representative of the estate of
his son,
Jody Lynn Gooch
("Decedent"),
District Court of Harris County,
Texas,
in the 129th Judicial
Cause No. 2017-27526,
against defendants, Packaging Corporation of America ("PAC") and
Elite Specialty Welding, L.L.C. ("Elite"), asserting claims for
negligence and gross negligence and seeking damages arising from
the Decedent's wrongful death on February 8, 2017. 1
Plaintiff's
petition describes the factual background of this case as follows:
12. An explosion occurred at approximately 11 am CST on
at
the
PCA
DeRidder
Wednesday,
February
8th
Containerboard Mill owned by [PCA] . The facility was
located in DeRidder, LA
Jody Lynn Gooch was a
contractor working for Elite
. at the time of the
explosion. Elite .
. is principally located in Texas
and hired decedent Jody Gooch in Texas. He was killed in
the blast along with two other men, William Rolls, Jr[.]
and Sedrick Stallworth, while they were engaged in
contract work at the DeRidder facility.
13. It is presently unclear exactly what the cause of
the blast was, but both the United States Chemical Safety
Board ("CSB") and OSHA are invest[igat] ing the blast.
The preliminary results from the CSB indicate that a 30
foot tall tank exploded killing Jody Lynn Gooch. It also
intimates that welding or "hot work" was being performed
and it is likely that the Defendants failed to assure the
workers that the equipment being worked on had been
purged, blocked or otherwise "cleared" of any potential
combustible materials. The Defendant PCA is no stranger
to such tragedies and had a similar incident for possibly
similar reasons only a few years ago which resulted in
fatalities. 2
The Decedent is survived by his father
Gooch),
his
mother
(Intervenor
(plaintiff Joe E.
Evelyn Tauber),
two
siblings
Plaintiff's Original Petition, Jury Demand and Request for
Disclosure ("Plaintiff's Original Petition"), Exhibit 3 to Notice
of Removal, Docket Entry No. 1-3.
1
2
Id. at 4 �� 12-13.
-2-
(Intervenors Bobby Gooch and Lameshia Machelle Springfield), and by
one son (Derrick G. Gooch).3
Decedent's son has an action pending
in the United States District Court for the Western District of
Louisiana. 4
PAC removed plaintiff's action to this court on June 5, 2017.5
On
July
5,
2017,
plaintiff
filed
a
motion
to
remand.6
On
August 14, 2017, the court denied plaintiff's motion to remand upon
concluding
that
defendant
Elite
had
been
improperly
joined.7
On September 28, 2017, plaintiff filed a motion seeking to
voluntarily dismiss defendant Elite, 8 which the court granted. 9
On January 10, 2018, PCA filed a motion seeking to consolidate
the action styled Estate of William Rolls, Jr. and Jackie Cormier
See Complaint in Intervention of Bobby Gooch and Lameshia
Machelle
Springfield,
and
Evelyn
Tauber
("Complaint
in
Intervention"), Docket Entry No. 32, p. 1 111-3; and Plaintiff Joe
Gooch's Response to Interrogatory No. 6, Exhibit A to PCA's MSJ,
Docket Entry No. 57-1, p. 4.
3
PCA's MSJ, Docket Entry No. 57, p. 7 1 11 & n.4 (citing
Exhibit B-1, Derrick Gooch's Petition for Damages, Docket Entry
No. 58, pp. 4-11); Plaintiff's Response, Docket Entry No. 59, p. 7
112.
See also PCA's Reply, Docket Entry No. 60, p. 4.
4
5
Notice of Removal, Docket Entry No. 1.
Plaintiff's Motion to Remand Based on Improper Removal by
Packaging Corp. of America, Inc. ("Motion to Remand"), Docket Entry
No. 9.
6
7
Memorandum Opinion and Order, Docket Entry No. 15, p. 11.
Motion to Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(2)
as to Defendant Elite Specialty Welding, LLC (Docket Entry No. 27).
8
9
Order, Docket Entry No. 28.
-3-
v. Elite Specialty Welding, LLC, et al., 4:17-CV-03284, pending
before a different judge of this court. 10
On February 6, 2018, Intervenors - the Decedent's surviving
mother, brother, and sister - filed a Motion for Leave to Intervene
as Plaintiffs Under Rule 24(b), 11 which the court granted.12
The
Intervenors assert claims for negligence and gross negligence and
seek damages for mental anguish and loss of consortium;
the
Decedent's mother also seeks damages under the Texas Wrongful Death
Statute, Tex. Civ. Prac.
&
Rem. Code § 71.001, et seg. 13
At a hearing held on September 21, 2018,
the court denied
PCA's motion to consolidate without prejudice.14
On
November
16,
2018,
PCA
filed
an
Amended
Motion
to
Consolidate, 15 which the court denied on January 7, 2019.16
10
Defendant Packaging Corporation of America, Inc.'s Motion to
Consolidate Cormier Lawsuit with Pending Action, Docket Entry
No. 29.
1
Motion for Leave to Intervene as Plaintiffs Under Rule 24(b),
Docket Entry No. 30.
1
12
Order Granting Motion to
Rule 24(b), Docket Entry No. 31.
Intervene as
Plaintiffs Under
1
3
Complaint in Intervention, Docket Entry No. 32.
14
Hearing Minutes and Order, Docket Entry No. 48.
15
Defendant Packaging Corporation of America, Inc.'s Amended
Motion to Consolidate Cormier Lawsuit with Pending Action, Docket
Entry No. 50.
16
Order, Docket Entry No. 53.
-4-
II.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material facts are
Fed. R. Civ. P. 56.
"genuine"
Disputes about
if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
A
"party moving for summary judgment must 'demonstrate the absence of
a genuine issue of material fact,' but need not negate the elements
of the nonmovant' s case."
Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en bane) (per curiam) (quoting Celotex
Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986)).
"If the moving
party fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant' s response."
If, however, the
moving party meets this burden, Rule 56 requires the nonmovant to go
beyond the pleadings and show by admissible evidence that specific
facts exist over which there is a genuine issue for trial.
Id.
"[T]he court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or
weigh the evidence."
Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097, 2110
(2000).
Factual controversies are to be
resolved in favor of the nonmovant, "but only when there is an
actual controversy, that is, when both parties have submitted
evidence of contradictory facts."
-5-
Little, 37 F.3d at 1075.
III.
Analysis
PCA moves the court for summary judgment arguing that the
claims asserted in this action are governed by Louisiana law, and
that neither plaintiff nor intervenors have capacity to assert
claims under Louisiana law. 17
PCA argues that it is entitled to
summary judgment because
Plaintiff Joe Gooch has brought suit as both the legal
representative of the estate of Decedent and also as his
surviving father. Intervenors have brought suit as the
mother and siblings of Decedent.
Plainly, under
Louisiana law, not one of these individuals has capacity
to maintain a claim against PCA. It is undisputed that
Decedent has a surviving son, Derrick Gooch, who has
filed a wrongful death and survival action in Louisiana.
Louisiana Civil Code Article 2315.1 (survival action) and
Article 2315.2 (wrongful death) establish a hierarchy of
those that have a right of action. That is, suit may
only be brought by the spouse and child of the deceased.
Only in the event there exists no spouse or child may the
parents of a decedent bring suit, and only if there exist
no spouse, child or parents may the siblings of a
decedent bring suit. 18
Asserting that "Texas Has the Most Significant Relationship
With The Instant Litigation," 19 Plaintiff and Intervenors respond:
While the fact that the Decedent was killed at a PCA
facility in Louisiana weighs in favor of the application
of Louisiana law, that fact alone is not determinative of
which state law should be applied. The parties agree
that the "most significant relationship" test is
appropriate for the analysis of choice of law, but
Plaintiff disagrees with the outcome upon the application
PCA's MSJ, Docket Entry No. 57, pp. 1 and 6.
Reply, Docket Entry No. 60, p. 1.
17
See also PCA's
18
PCA's MSJ, Docket Entry No. 57, p. 6 � 8.
19
Plaintiff's Response, Docket Entry No. 59, pp. 2 and 9.
-6-
to the facts of this matter. Additionally, Plaintiff
disagrees that Defendant's Motion (even if granted) would
destroy all of the remaining claims brought by the
Plaintiffs.20
Plaintiff and Intervenors argue that plaintiff "would still have a
right to maintain any claims brought on behalf of the estate of
Jody Lynn Gooch, " 21 and that they all "would still be able to bring
claims for their own mental anguish and loss of consortium which
are actions independent of survivorship or wrongful death." 22
Plaintiff and Intervenors also argue that
Texas law has already been applied to this matter when
[he] and Evelyn Tauber were awarded workers compensation
benefits by the Texas Department of Insurance - Division
of Workers Compensation. A decision to apply Louisiana
law at this late juncture would deprive the insurance
carrier of their right to seek subrogation for these
funds.23
A.
Choice of Law Analysis Requires Application of Louisiana Law
1.
Applicable Law
"In diversity cases, federal courts apply the choice-of-law
rules of the forum state."
National Union Fire Insurance Company
of Pittsburgh, Pennsylvania v. American Eurocopter Corp., 692 F.3d
405, 408 (5th Cir. 2012) (citing Klaxon Co. v. Stentor Electric
Manufacturing Co., 61 S. Ct. 1020, 1021 (1941))
20
21
"Texas courts
Plaintiff's Response, Docket Entry No. 59, pp. 5-6 1 7.
Id. at 6 1 9.
-7-
initially determine whether there is a conflict between Texas law
and the other potentially applicable law." Bailey v. Shell Western
E&P, Inc., 609 F.3d 710, 722 (5th Cir. 2010).
See also Duncan v.
Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984) ("[W]e must
first determine whether there is a difference between the rules of
Texas and New Mexico on this issue.").
exists
in
a
Restatement
tort
case,
(Second)
of
"Texas
When a conflict of laws
courts
Conflict
of
generally
Law's
'most
follow
the
significant
relationship' test, which entails considering the contacts listed
in Restatement §
145
in light of the factors set forth in
Restatement§ 6."
National Union Fire Insurance Co., 692 F.3d at
408 (citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.
2000), and Restatement (Second) of Conflict of Laws, § 173 (2010)).
Section
145
sets
forth
the
following
contacts
to
considered:
(1)
The rights and liabilities of the parties with
respect to an issue in tort are determined by the
local law of the state which, with respect to that
issue, has the most significant relationship to the
occurrence and the parties under the principles
stated in§ 6.
(2)
Contacts to be taken into account in applying the
principles of§ 6 to determine the law applicable
to an issue include:
(a)
the place where the injury occurred,
(b)
the place where the conduct causing the injury
occurred,
-8-
be
(c)
the domicile, residence, nationality, place of
incorporation and place of business of the
parties, and
(d)
the place where the relationship,
between the parties is centered.
if any,
These contacts are to be evaluated according to
their relative importance with respect to the particular
issue.
Id.
§
145.
[T]he number of contacts with a particular state is not
determinative. Some contacts are more important than
others because they implicate state policies underlying
Consequently,
the particular substantive issue.
selection of the applicable law depends on the
qualitative nature of the particular contacts.
Duncan, 665 S.W.2d at 421 (citing Gutierrez v. Collins, 583 S.W.2d
312, 319 (Tex. 19 7 9)).
Co.,
646 F.2d 161,
163
See also Crim v. International Harvester
(5th Cir. 1981)
(recognizing that the
court's analysis under the most significant relationship test "does
not turn on the number of contacts the event had with each
jurisdiction, but, more importantly, on the qualitative nature of
those contacts as they are affected by the policies of the rule").
Section 6 of the Restatement (Second) of Conflicts sets forth the
following factors to be considered:
(1)
A court, subject to constitutional restrictions,
will follow a statutory directive of its own state
on choice of law.
(2)
When there is no such directive, the factors
relevant to the choice of the applicable rule of
law include
(a)
the needs of the interstate and international
systems,
-9-
(b)
the relevant policies of the forum,
(c)
the relevant policies of other interested
states and the relative interests of those
states in the determination of the particular
issue,
(d)
the protection of justified expectations,
(e)
the basic policies underlying the particular
field of law,
(f)
certainty, predictability and uniformity of
result, and
(g)
ease in the determination and application of
the law to be applied.
Restatement (Second) of Conflict of Laws§
governing personal injuries, and§
6 (1971).
Section 146,
175, governing wrongful death,
create a presumption that
the local law of the state where the injury occurred
determines the rights and liabilities of the parties,
unless, with respect to the particular issue, some other
state has a more significant relationship under the
principles stated in section 6 to the occurrence and the
parties, in which event the local law of the other state
will be applied.
Restatement (Second) of Conflict of Laws§§
146, 175.
A choice-of-law determination is a legal question for the
court to decide.
408.
National Union Fire Insurance Co., 692 F.3d at
See also Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202,
204 (Tex. 2000) ("Which state's law governs an issue is a question
of law for the court to decide.").
"But determining the state
contacts to be considered by the court in making this legal
determination involves a factual inquiry."
-10-
Hughes Wood Products,
18 S.W.3d at 204.
"Thus, a movant for summary judgment seeking to
have the law of another state applied must satisfy its burden of
proof with respect to fact questions necessary to the choice of law
decision."
Id. at 205.
"In the posture of a summary judgment
ruling, facts genuinely in dispute are considered in the light most
favorable to the non-movant."
National Union Fire Insurance Co.,
692 F.3d at 408.
2.
Application of Texas's Choice of Law Rules to the
Asserted Claims and the Undisputed Facts
Plaintiff has asserted causes of action for negligence and
gross negligence that resulted in the Decedent's death and "seeks
to recover damages for the alleged pain and suffering of his son
prior to his death and for damages relating to the alleged wrongful
death of his son," 24 including damages for "loss of friendship and
services of his son," 25 and for "significant mental anguish." 26
Intervenors
assert
causes
of
action
for
negligence,
gross
negligence, and wrongful death,27 and allege that "Evelyn Tauber is
entitled to recover damages under the Texas wrongful death statute
and that all three Intervenors are separately entitled to damages
Id. at 4 1 2 (citing Plaintiff's Original Petition, Exhibit 3
to Notice of Removal, Docket Entry No. 1-3, pp. 6-7 11 20-29).
24
Plaintiff's Original Petition, Exhibit
Removal, Docket Entry No. 1-3, p. 6 1 21.
25
26
Id.
3
to
Notice
of
1 22.
27 Complaint
in Intervention, Docket Entry No. 32, pp. 3-4
11 11-16.
-11-
for mental anguish and loss of consortium."28
All the causes of
action in this case rely on the same theory of liability, i.e.,
that PCA's negligence and/or gross negligence resulted in the
wrongful death of the Decedent,
Jody Lynn Gooch.
Because the
parties argue that either Texas or Louisiana law applies,
this
court's inquiry is limited to the substantive law of those two
states.29
See Perez v. Lockheed Corp.
( In re Air Disaster at
Ramstein Air Base, Germany), 81 F.3d 570, 577 (5th Cir.), cert.
denied,
117 S. Ct. 583
Ammunition,
multitude
Inc.,
of
(1996)
(citing Mitchell v. Lone Star
913 F.2d 242,
states
with
occurrence in question,
a
249
(5th Cir. 1990)
relationship
to
the
("Of the
parties
and
only Texas and North Carolina need be
considered - the parties have only asserted the applicability of
the laws of these two states.")).
(a) Conflicts Exist Between Texas and Louisiana Law
Citing the Texas Civil Practices
&
Remedies Code§§ 71.004 and
71.021 and the Louisiana Civil Code Articles 2315.1 and 2315.2, PCA
Plaintiff's Response, Docket Entry No. 59, p. 4 1 3 (citing
Complaint in Intervention, Docket Entry No. 32, pp. 4-5 1117-18).
28
Plaintiff's Response, Docket Entry No. 59, pp. 2 and 9
(asserting that "Texas Has the Most Significant Relationship With
The Instant Litigation"), and id. at 5 1 7 (agreeing that "the
'most significant relationship' test is appropriate for the
analysis of choice of law"); PCA's MSJ, Docket Entry No. 57, pp. 2
and 8 ("Texas Choice of Law Principles Dictate That Louisiana Law
Applies to Plaintiffs' Survival and Wrongful Death Actions"); id.
at 10 ("Louisiana Has The Most Significant Relationship With The
Instant Litigation").
29
-12-
argues that "Louisiana and Texas state laws differ with regard to
whether the parents and/or siblings of a deceased individual have
capacity to bring a survival or wrongful death action when a
surviving child is present." 30
PCA argues that
[t] he Louisiana Civil Code establishes a hierarchy of
beneficiaries who can recover in [] survival and wrongful
death actions.
Pursuant to Louisiana Civil Code
Arts. 2315.1 and 2315.2, as long as there is a surviving
spouse and/or child, no other beneficiary may recover
under a survival or wrongful death theory of liability.
[] On the other hand, Texas Law permits the
surviving spouse, children, and parents of the deceased
to bring one or more wrongful death actions for the
benefit of all. Tex. Civ. Prac. & Rem. Code § 71.004.
Further, under Texas law, survival actions may be brought
"in favor of the heirs, legal representatives, and the
estate of the injured person." Id. Tex. Civ. Prac. &
Rem. Code § 71.021. Texas law clearly expands the scope
of those who may maintain claims in survival or wrongful
death beyond that contemplated by Louisiana. 31
Plaintiff and Intervenors agree that "there is a conflict of
law between Texas and Louisiana law regarding whether or not
parents or siblings can recover under survival or wrongful death
theories of liability, " 32 but argue that PCA
has not presented any evidence or arguments suggesting a
conflict of law that prevents Joe Gooch from pursuing the
claims he is bringing on behalf of the Estate of Jody
Lynn Gooch. Additionally, [PCA] has not presented any
evidence or arguments suggesting a conflict of law
30
PCA' s MSJ, Docket Entry No. 57, p. 10 � 17.
Id. �� 17-18. See also id. at n. 5 (noting that "Texas law
does not permit a surviving sibling such as Intervenors Bobby Gooch
and Lameshia Machelle Springfield to bring claims in wrongful
death") .
31
32
Plaintiff's Response, Docket Entry No. 59, p. 8 � 16.
-13-
between Texas and Louisiana concerning whether Plaintiff
or Intervenors could still maintain actions other than
those of survival or wrongful death, specifically mental
anguish and loss of consortium claims. Therefore these
claims should be preserved regardless of the Court['s]
determination concerning [PCA's MSJ] . 33
The Texas Civil Practice and Remedies Code § 71.021 permits
survival actions to be brought "in favor of the heirs,
representatives, and the estate of the injured person."
legal
But the
Louisiana Civil Code Article 2315.1 only permits the estate to
bring the survival action in the absence of surviving immediate
relatives. Accordingly, the court concludes that a conflict exists
between Texas and Louisiana law as to whether the representative of
the Decedent's estate can maintain a survival action against PCA.
See Movant v. Oil States International, Inc., 3 F. Supp. 3d 561,
572-73 (E.D. La. 2014) (recognizing conflict between Texas and
Louisiana law regarding the ability of an estate representative to
bring a survival action).
Plaintiff's and Intervenors' contention that PCA has failed to
present "evidence or arguments suggesting a conflict of law between
Texas and Louisiana concerning whether Plaintiff or Intervenors
could still maintain actions other than those of survival or
wrongful death, specifically mental anguish and loss of consortium
claims," 34 has no merit because neither plaintiff nor Intervenors
have asserted causes of action for loss of consortium and/or mental
33
Id. at 8-9 � 16.
-14-
anguish that are independent of their causes of action for
negligence and gross negligence for which they seek loss of
consortium and mental anguish as elements of damages.
Moreover,
neither plaintiff nor Intervenors have cited any authority from
which the court could conclude that such claims are cognizable
under Texas law. See Roberts v. Williamson, 111 S.W.3d 113, 115-20
(Tex. 2003) (recognizing that all statutory beneficiaries under the
Texas Wrongful Death Act are entitled to recover damages not only
for loss of companionship but also mental anguish, and declining to
extend the right to recover damages for loss of consortium beyond
those made available by the Texas Wrongful Death Act); Boyles v.
Kerr, 855 S.W.2d 593, 594 (Tex. 1993) ("We hold that there is no
general
duty
distress.
in
Texas
not
to
negligently
inflict
emotional
A claimant may recover mental anguish damages only in
connection with defendant's breach of some other legal duty.").
(b)
Section 145 Contacts
(1)
Place Where the Injury Occurred
The place of the injury is DeRidder,
Louisiana, where the
Decedent died in an explosion at PCA's Containerboard Mill.35
This
contact weighs heavily in favor of the application of Louisiana law
because
Texas
courts
recognize
that
the
most
significant
relationship test includes a presumption in favor of the law of the
See Plaintiff's Original Petition, Exhibit 3 to Notice of
Removal, Docket Entry No. 1-3, p. 4 � 12; Complaint in
Intervention, Docket Entry No. 32, p. 2 � 9.
35
-15-
place of the injury in personal injury and wrongful death cases.
See Enterprise Products Partners, L.P. v. Mitchell, 340 S.W.3d 476,
480 (Tex. App. - Houston [1st Dist.] 2011, pet. abated) (citing
Restatement (Second) of Conflict of Laws §§ 146, 175).
(2)
Place Where the Conduct Causing the Injury
Occurred
Plaintiff and Intervenors allege that PCA failed to provide
the Decedent with a safe place to work at the Containerboard Mill
in
DeRidder,
equipment,
Louisiana,
by
inter
alia
failing
to
maintain
failing to clean or purge equipment of potentially
combustible material, failing to provide sufficient personnel to
perform operations, failing to follow policies and protocols, and
"creating an environment and condition that allowed the deadly
explosion." 36
Plaintiff also alleges that PCA failed to learn from
a similar incident in 2008 at a facility in Tomahawk, Wisconsin,
where three workers were killed while welding on a storage tank. 37
Exhibit B to PCA's MSJ is the Declaration of Bruce Kummerfeldt,
PCA's Senior Director of Health and Safety.
In pertinent part
Kummerfeldt states:
3.
PCA is a corporation organized under the laws of
Delaware.
PCA's corporate headquarters and
principal place of business are in Lake Forest,
Plaintiff's Original Petition, Exhibit 3 to Notice
Removal, Docket Entry No. 1-3, p. 5 1 15(g); Complaint
Intervention, Docket Entry No. 32, p. 3 1 ll(g)
of
in
Plaintiff's Original Petition, Exhibit
Removal, Docket Entry No. 1-3, pp. 4-5 1 14.
of
36
37
-16-
3
to
Notice
Illinois.
From that location, the majority of
PCA's senior management team, including its Chief
Executive Officer, Executive Vice President, Chief
Financial Officer, Senior Vice President of Sales
and Marketing,
and General Counsel,
direct,
control,
and
coordinate
the
corporation's
activities.
PCA's Senior Vice President of Mill
Operations operates out of Florida and its Vice
President of Process Control and Engineering
Technology operates out of Tennessee.
None of
PCA's senior management team operate out of Texas.
4.
The decision related to the operation and safety of
the DeRidder Mill are made by individuals either
operating out of the DeRidder Mill or by the
senior-management team operating out of Lake
Forest, Illinois. 38
Citing the Kummerfeldt Declaration and 29 C.F.R. § 1910.119,
plaintiff and Intervenors argue that "[s]ome or all of the[] people
[who] would have been responsible (to varying degrees) for ensuring
process safety management principals, under OSHA regulation, were
carried out at all PCA plants nationwide
including DeRidder."39
Plaintiff and Intervenors argue that
[a]s a result, the facts presented at trial would likely
center, in large part, around PCA's failure to learn the
lessons at their prior fatal accidents (specifically one
that was virtually identical to the one that killed Jody
Gooch) and their failure to communicate them to their
facilities throughout the country, including those in
Texas and their one facility in Louisiana. As a result,
a significant portion of the conduct causing the injury
to occur almost certainly took place somewhere other than
Louisiana. 40
Declaration of Bruce Kummerfeldt ( "Kummerfeldt Declaration") ,
Exhibit B to PCA's MSJ, Docket Entry No. 58, pp. 2-3 11 3-4.
38
39
40
Plaintiff Response, Docket Entry No. 59, p. 10
Id. 1 21.
-17-
1 20.
Plaintiff and Intervenors conclude "this factor does not point to
the application of Louisiana law; arguably it would instead point
to the application of Illinois law." 41
PCA has submitted undisputed evidence in the form of the
Kummerfeldt Declaration showing that decisions related to the
operation and safety of the DeRidder Mill are made either by
individuals operating out of the DeRidder Mill or by the senior
management team operating out of Lake Forest,
The
Illinois.
conduct causing the injury thus discloses contacts with Louisiana
and Illinois, but does not disclose any contacts with Texas.
"When
the injury occurred in a single, clearly ascertainable state and
when the conduct which caused the injury also occurred there, that
state will usually be the state of the applicable law with respect
to most issues involving the tort."
Conflict of Laws§ 145, cmt. e.
Restatement
(Second)
of
"This is particularly likely to be
so with respect to issues involving standards of conduct, since the
state of conduct and injury will have a natural concern in the
determination of such issues."
Id.
The undisputed fact that at
least some of the conduct causing the injury occurred in Louisiana,
coupled with the absence of evidence that any of the conduct
causing the injury occurred in Texas, leads the court to conclude
that the place where the conduct causing the injury occurred weighs
in favor of applying Louisiana law.
41
Id. 1 22.
-18-
(3)
Plaintiffs
residents,
and
Domicile, Residence, Place of Incorporation,
and Place of Business of the Parties
and
Intervenors
that
PCA
is
a
allege
that
Delaware
principal place of business in Illinois.42
they
are
corporation
Texas
with
its
Citing Brown v. Cities
Service Oil Co., 733 F.2d 1156, 1159 (5th Cir. 1984), PCA argues
that "[c]ourts in the Fifth Circuit have decisively held that a
Plaintiff's residence in Texas, without more, is not sufficient to
support application of Texas law." 43
PCA argues that "this factor,
without more, cannot sway this Court from applying Louisiana law." 44
Plaintiff and Intervenors argue that "this factor does not skew
towards the application of Louisiana law." 45
In Brown, 733 F.2d at 1159, the Fifth Circuit held that the
facts that the plaintiff was a Texas resident at the time of trial
and that he was examined by two Texas doctors in preparation for
trial, were entitled to little weight when those contacts comprised
the totality of the contacts with Texas, and both the injury and
the condu�t causing the injury occurred in Louisiana.
Because the
plaintiff and the Intervenors are residents of Texas, while PCA
Plaintiff's Original Petition, Exhibit 3 to Notice of
Removal, Docket Entry No. 1-3, pp. 2-3 11 2-4; Complaint in
Intervention, Docket Entry No. 32, pp. 1-2 11 1-4.
42
43
PCA's MSJ, Docket Entry No. 57, p. 12
Id. at 13.
pp. 2-3.
44
45
See also PCA's Reply,
1 26.
Docket Entry No. 60,
Plaintiff's Response, Docket Entry No. 59, p. 11
-19-
1 24.
does business in Louisiana but is a Delaware corporation with its
principal place of business in Illinois, this factor weighs in
favor of the application of Texas law, but only weakly. See Hooper
v. Marriott International, Inc., 979 F. Supp. 2d 735, 741 (N.D.
Tex. 2013) (noting that one's place of residence "receives less
weight than the place of injury in the choice-of-law analysis");
Beatty v. Isle of Capri Casino, Inc., 234 F. Supp. 2d 651, 656
(E.D. Tex. 2002) ("[T]he case law and the Restatement instruct this
court to place more emphasis on the place of the alleged misconduct
than on the residential preference of the plaintiff.").
(4)
Plaintiff
and
Place Where
Centered
Intervenors
the
Parties'
allege
that
Relationship
the
Decedent
is
was
employed by Elite to perform work at PCA's Containerboard Mill in
Louisiana and died performing that work.46
Asserting that the
operative Purchase Order between PCA and Elite was entered into in
Louisiana, 47 PCA argues that "[t]he relationship between the parties
is centered on the Decedent's work at the PCA Containerboard Mill
in DeRidder, Louisiana."48 The relationship shared by the parties
Plaintiff's Original Petition, Exhibit 3 to Notice of
Removal, Docket Entry No. 1-3, p. 4 11 12-13; Complaint in
Intervention, Docket Entry No. 32, p. 2 11 9-10.
46
PCA's MSJ, Docket Entry No. 57, p. 13
Kummerfeldt Declaration, Exhibit B to PCA's MSJ,
No. 5 8, p. 3 1 5) .
47
48
PCA's MSJ, Docket Entry No. 57, p. 13
-20-
1 27.
1 27
(citing
Docket Entry
consists of the Decedent having been employed by Elite to work at
PCA's mill in Louisiana pursuant to a Purchase Order between PCA
and Elite entered in Louisiana.
Because PCA did not have a direct
relationship with the plaintiff, the Intervenors, or the Decedent,
the parties' indirect relationship was centered in Louisiana, the
site of the injury.
See, e.g., Beatty, 234 F. Supp. 2d at 655-56
(concluding that where the plaintiff merely visited the casino
location, the defendant did not have an individual relationship
with plaintiff specifically, so the site of the casino was the
center of the parties' relationship).
Accordingly, this contact
weighs in favor of applying Louisiana law.
(c)
Section 6 Factors
The general factors and policy considerations set out in § 6
of the Restatement (Second) of Conflict of Laws also dictate that
for purposes of certainty,
uniformity,
and predictability PCA
should be subject to the laws of Louisiana for its actions in
Louisiana.
As a company choosing to do business in Louisiana, PCA
could reasonably expect that the laws of Louisiana would apply to
an injury that occurred on its property in that state relating to
decisions allegedly made in Louisiana. So too, Decedent, by coming
to Louisiana to work, could reasonably expect that Louisiana law
would apply to his own actions and to any injuries that he incurred
in that state.
"Generally speaking,
it would be unfair and
improper to hold a person liable under the local law of one state
-21-
when he had justifiably molded his conduct to conform to the
requirements of another state."
Restatement (Second) of Conflict
of Laws § 6, cmt. g.
Moreover, the State of Louisiana has chosen to enact laws that
limit the number of claims resulting from a wrongful death or
survivorship action by establishing a hierarchy of recovery that
excludes certain claimants in favor of others. Louisiana therefore
has a "specific interest" in defining standing and capacity to
maintain the causes of action asserted in this lawsuit.
Every rule of law, whether embodied in a statute or in a
common law rule, was designed to achieve one or more
purposes. A court should have regard for these purposes
in determining whether to apply its own rule or the rule
of another state in the decision of a particular issue.
Restatement (Second) of Conflict of Laws § 6, cmt. e.
If the
residence of the Decedent's beneficiaries determined which law
would apply, PCA could be subjected to different state laws with
varying results based on the beneficiaries' states of residence.
See Crim, 646 F.2d at 163 (finding relevant policy considerations
weigh in favor of applying law at situs of land because Arizona
landowners should not be subjected to different legal duties
depending on an invitee's state of residence).
Louisiana
has
the
most
qualitative
contacts
with
this
controversy, including "the place where the injury occurred," "the
place where the conduct causing the injury occurred," and "the
place
where
centered."
the
relationship
between
parties
is
Restatement (Second) of Conflict of Laws § 145(2).
In
-22-
the
contrast, Texas has very little connection to this controversy
other than being the residence of the plaintiff, the Intervenors,
and the Decedent, and the principal place of business of the
Decedent's employer, all factors that are entitled to less weight
than the place of injury, the place of the conduct causing the
injury, and the place where the parties' relationship is centered.
The
court
therefore
concludes
that
Louisiana
has
the
most
significant relationship with this action and that Louisiana law
should apply to the causes of action asserted by the plaintiff and
Intervenors.
See Mathes v. Patterson-UTI Drilling Co. L.L.C., 44
F.
691,
Supp.
3d
698
(S.D.
Tex.
2014)
(reaching
a
similar
conclusion on analogous facts); Jordan v. Chevron U.S.A., Inc.,
Civil Action No. H-18-3496, 2018 WL 5723148, at *2-3 (S.D. Tex.
Nov. 1, 2018) (same).
B.
Application of Louisiana Law to the Undisputed Facts
Asserting that "Neither Plaintiff nor the Intervenors Have
Capacity to Bring A Claim Under Louisiana Law," 49 PCA argues that
it "is entitled to summary judgment" because "Plaintiffs'
own
responses to discovery conclusively demonstrate that they lack
capacity, and they, therefore, will be unable to adduce any
evidence establishing they have a right of action." 50
49
50
PCA' s MSJ, Docket Entry No. 57, p. 17.
Id. 1 39.
-23-
PCA argues:
It is undisputed that Decedent has left a surviving
child, Derrick Gooch, who, has brought his own lawsuit to
recover on behalf of his father under Louisiana's
Because
survivorship and wrongful death statutes.
Decedent left a surviving child, Plaintiff (the surviving
father), Intervenor Evelyn Tauber (the surviving mother)
and Intervenors Bobby Gooch and Lameshia Machelle
Springfield (the surviving siblings) do not have a right
to recovery under either Louisiana's survivorship or
wrongful death statute. Accordingly, their claims must
be dismissed. 51
The Plaintiff and Intervenors do not dispute that they lack
capacity to bring claims under Louisiana law.
Instead, plaintiff
and Intervenors argue
that "[p] ublic policy would favor allowing legitimate
claims to go forward in the face of conflicting state
statutes concerning who can recover for the death of a
family member," 52
that "Jody Lynn Gooch was a Texas resident employed by a
Texas Company doing work just over the border in
Louisiana. All four Plaintiffs are Texas residents. . .
Texas has a significant interest in this matter and Texas
law should apply," 53 and
that "there is no legitimate reason that the Louisiana
legislature should be concerned with the application of
its statute
. to cut off a Texas resident's claim
against an Illinois corporation." 54
Louisiana Civil Code Article 2315.1 governs survival actions
and articulates a specific hierarchy for identifying who has the
right of action.
In pertinent part Article 2315.1 provides:
51
Id. � 40.
See also PCA's Reply, Docket Entry No. 60, pp. 5-8.
52
Plaintiff's Response, Docket Entry No. 59, p. 12.
53
Id. at 13 � 30.
-24-
A.
If a person who has been injured by an offense or
quasi offense dies, the right to recover all
damages for injury to that person, his property or
otherwise, caused by the offense or quasi offense,
shall survive for a period of one year from the
death of the deceased in favor of:
(1)
The surviving spouse and child or children of
the deceased, or either the spouse or the
child or children.
( 2)
The surviving father and mother of the
deceased, or either of them if he left no
spouse or child surviving.
(3)
The surviving brothers and sisters of the
deceased, or any of them, if he left no
spouse, child, or parent surviving.
(4)
The surviving grandfathers and grandmothers of
the deceased, or any of them, if he left no
spouse, child, parent, or sibling surviving.
B.
In addition, the right to recover all damages for
injury to the deceased, his property or otherwise,
caused by the offense or quasi offense, may be
urged by the deceased's succession representative
in the absence of any class of beneficiary set out
in Paragraph A.
C.
The right of action granted under this Article is
heritable, but the inheritance of it neither
interrupts nor prolongs the prescriptive period
defined in this Article.
La. Civ. Code Art. 2315.1.
Louisiana Civil Code Article 2315.2
establishes an almost identical hierarchy for recovery in the case
of
wrongful
death
While
actions.
a
Decedent's
succession
representative is the last class of beneficiary who can bring a
survival action,
a Decedent's succession representative has no
Pursuant to these
right to bring a wrongful death action.
Louisiana
statutes
neither
a
-25-
parent,
a
sibling,
nor
a
representative of the Decedent's estate has a right of action under
either the survivorship or wrongful death statute if the decedent
has a surviving spouse or child. See Jenkins v. Mangano Corp., 774
So. 2d 101, 105 (La. 2000) ("When a tort victim is survived by a
child, the parents of the tort victim have no right to recover for
the damages sustained by the victim or for their own damages for
the victim's wrongful death."); Trahan v. Southern Pacific Co., 209
F. Supp. 334, 336 (W.D. La. 1962) ("Article 2315 clearly gives a
surviving parent the right to sue for the wrongful death of a child
only 'if he left no spouse or child surviving.'
The Courts of
Louisiana have consistently held that a petition brought by one of
the inferior beneficiaries must negative the existence of primary
beneficiaries in order to state a right of action under this
article.").
The undisputed facts of this case establish that the Decedent
has a surviving son, Derrick Gooch,
Decedent's
father
and
estate
that the plaintiff is the
representative,
and
that
the
Intervenors are the Decedent's mother (Evelyn Tauber) and siblings
(Bobby Gooch and Lameshia Machelle Springfield).
Under Louisiana
law, the Decedent's surviving son is the only individual who has a
right to recover damages under Articles 2315.1 and 2315.2.
To the extent that plaintiff and Intervenors argue that they
have capacity to maintain actions under Louisiana law other than
those of survival or wrongful death, i.e., for mental anguish and
-26-
loss of consortium, 55 the argument has no merit because neither
plaintiff nor Intervenors have asserted causes of action for loss
of consortium and/or mental anguish that are independent of their
causes of action for negligence and gross negligence for which they
seek loss of consortium and mental anguish as elements of damages.
Moreover,
neither
plaintiff
nor
Intervenors
have
cited
any
authority from which the court could conclude that such claims are
cognizable under Louisiana law.
governing
Louisiana Civil Code Art. 2315.B
"Liability for Acts Causing Damages"
provides that
"[d]amages may include loss of consortium, service, and society,
and shall be recoverable by the same respective categories of
persons who would have had a cause of action for wrongful death of
an injured person."
Louisiana Civil Code Art. 2315.B.
Moreover,
any independent claims for mental anguish asserted by plaintiff and
Intervenors is precluded because the mental anguish that they
undoubtedly
experienced
"did
not
occur
within
the
limited
circumstances prescribed by Article 2315.6 as the sole basis for
awarding damages for mental anguish caused by negligent injury
inflicted upon another person."
Trahan v. McManus, 728 So.2d 1273,
1281 ( La. 19 9 9 ) .
IV.
Conclusion and Order
For the reasons explained above, the court concludes that PCA
has carried its burden of proving that it is entitled to judgment
55Id.
-27-
as a matter of law because Louisiana has the most significant
relationship to this controversy and Louisiana law therefore
applies to the claims asserted in this action.
Under Louisiana law
plaintiff and Intervenors lack capacity to assert claims against
PCA arising from the death of Jody Lynn Gooch.
Accordingly,
Defendant Packaging Corporation of America's Motion for Summary
Judgment (Docket Entry No. 57) is GRANTED.
SIGNED at Houston, Texas, on this the 17th day of July, 2019.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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