106 F.3d 1245 (5th Cir. 1997), 96-30600, Jefferson v. Lead Industries Ass'n, Inc.

Docket Nº:96-30600.
Citation:106 F.3d 1245
Party Name:Letetia JEFFERSON, Individually and as Duly Qualified Legal Tutrix for Schanta Jefferson, Plaintiff-Appellant, v. LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.; Atlantic Richfield Company; Sherwin Williams; SCM Corporation; Glidden Company; Fuller-O'Brien Corp., Defendants-Appellees.
Case Date:March 12, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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106 F.3d 1245 (5th Cir. 1997)

Letetia JEFFERSON, Individually and as Duly Qualified Legal

Tutrix for Schanta Jefferson, Plaintiff-Appellant,



Atlantic Richfield Company; Sherwin Williams;

SCM Corporation; Glidden Company;

Fuller-O'Brien Corp.,


No. 96-30600.

United States Court of Appeals, Fifth Circuit

March 12, 1997

        R. Glen Cater, Jennifer N. Willis, Cater & Willis, New Orleans, LA, Joseph M. Bruno, Bruno & Bruno, New Orleans, LA, Wendell H. Gauthier, Gauthier & Murphy, Metairie, LA, Roy F. Amedee, LaPlace, LA, Daniel E. Becnel, Jr., Becnel, Landry & Becnel, Reserve, LA, for plaintiff-appellant.

        Monica T. Surprenant, Baldwin & Haspel, New Orleans, LA, Mary Morrissey Sullivan, Mark L. Sullivan, Richard L. Nahigian, Sullivan, Sullivan & Pinta, Boston, MA, for Lead Industries Ass'n, Inc., defendant-appellee.

        Frederick W. Bradley, Liskow & Lewis, New Orleans, LA, Timothy S. Hardy, Kirkland & Ellis, Washington, DC, Jeffrey A. Hall, Chicago, IL, for NL Industries, Inc., defendant-appellee.

        Philip Herbert Curtis, Arnold & Porter, New York City, A.R. Kee Christovich, Jr., New Orleans, LA, C. Edgar Cloutier, Christovich

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& Kearney, New Orleans, LA, for Atlantic Richfield Co., defendant-appellee.

        Jonathan C. McCall, New Orleans, LA, Charles H. Moellenberg, Jr., Paul M. Pohl, Jones, Day, Reavis & Pogue, Pittsburg, PA, for Sherwin Williams, Sherwin-Williams Co., defendants-appellees.

        Dominic J. Gianna, New Orleans, LA, for SCM Corp. and Glidden Co., defendants-appellees.

        Janie S. Mayeron, Jeffrey J. Weill, G. Marc Whitehead, Michael T. Nilan, Popham, Haik, Schnobrich & Kaufman, Minneapolis, MN, Alan D. Weinberger, New Orleans, LA, for Glidden Co., defendant-appellee.

        David L. Carrigee, New Orleans, LA, Wade R. Joyner, Charles W. Siragusa, Crowley, Barrett & Karaba, Chicago, IL, for Fuller-O'Brien Corp., defendant-appellee.

        Appeal from the United States District Court for the Eastern District of Louisiana.

        Before JOLLY, JONES and WIENER, Circuit Judges.

        PER CURIAM:

        This diversity jurisdiction case was filed in federal district court by Plaintiff-Appellant Letetia Jefferson, individually and as duly qualified legal tutrix of Schanta Jefferson, and as the purported representative of the class of all Louisiana parents of children who suffered from lead poisoning resulting from exposure to lead paint pigment before they attained the age of six years. The suit implicates the Louisiana Products Liability Act (LPLA), 1 under which Jefferson sought recovery against a number of manufacturers of lead paint pigment (the Manufacturers) 2 and their trade association (the Association). 3 She also sought recovery on alternative theories based on non-LPLA grounds. On appeal, Jefferson seeks reversal of the district court's dismissal of her complaint against the Manufacturers under Federal Rule of Civil Procedure 12(b)(6), primarily for failure to state a claim under the LPLA, due to her inability to identify which of the Manufacturers actually made the particular lead paint pigment that caused the alleged injuries, and secondarily due to the unavailability of a cause of action grounded in civil conspiracy. She also appeals the dismissal of her claim against the Association, resulting from the fact that it is not a manufacturer and thus not amenable to liability under the LPLA. Additionally, Jefferson now urges on appeal that we should certify two key questions of law to the Louisiana Supreme Court. For the reasons set forth below, we decline Jefferson's invitation to certify and we affirm the order of the district court dismissing her action pursuant to Rule 12(b).



        Jefferson has filed a motion with this court asking that, pursuant to Louisiana Supreme Court Rule XII § 1, we certify questions to that court, regarding the LPLA and Louisiana Civil Code Article 2324. Specifically, Jefferson's motion asks us to certify the following two questions:

        1. If a small group of defendants-manufacturers act in concert to produce a completely fungible product which is defective within the meaning of the Louisiana Products Liability Act, La. R.S. 9:2800.52 et seq., and if those defendants are also guilty of a breach of express warranty under the LPLA, can those defendants be held liable for damage caused by that product, even if the plaintiff cannot identify the specific defendant who manufactured that portion of the product that injured him?

        2. Can the defendant be held solidarily liable under the civil conspiracy provisions of Louisiana Civil Code Article 2324, or, alternatively, can the defendants be liable for their share of the

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market of that wholly fungible product?

        In support of certification, Jefferson's brief notes that (1) "[t]he issue of a completely fungible product in the context of the LPLA has never been decided by any Louisiana court," (2) the LPLA does not "specifically address the issue of allocation of fault among manufacturers who combine to produce a single defective product," and (3) the question whether defendants should be liable in solido under Article 2324 is an issue not addressed by the LPLA or, to date, the jurisprudence of Louisiana. Jefferson contends, in the alternative, that questions addressing the foregoing issues should be certified because the Louisiana Supreme Court has never ruled on the applicability of market share liability. 4

        In opposing certification, the Defendants contend, inter alia, that (1) there is no discrete question of law to certify, (2) there is no genuine uncertainty with respect to state law, (3) certification is not available as a means of changing existing circuit precedent, (4) Louisiana's unique position as a civil law jurisdiction mandates that the legislature rather than the courts adopt new theories of liability, and (5) a plaintiff's initial election to sue in federal court should proscribe his efforts to turn to the state supreme court for guidance after he loses his case in federal district court.

        As a general proposition we are chary about certifying questions of law absent a compelling reason to do so; the availability of certification is such an important resource to this court that we will not risk its continued availability by going to that well too often. Alone, the absence of a definitive answer from the state supreme court on a particular question is not sufficient to warrant certification. Rather, we must "decide the case as would an intermediate appellate court of the state in question if ... the highest court of the state has not spoken on the issue or issues presented." 5 So, absent genuinely unsettled matters of state law, we are reluctant to certify. 6

        Before liability may be imposed, under the LPLA, a plaintiff must show proximate causation ---- a link between the actions of a manufacturer and the injury-causing product. 7 The clear guidance provided by this requirement counsels against certifying Jefferson's proffered question to the Louisiana Supreme Court.

        Neither is certification a proper avenue to change our binding precedent. 8 Albeit prior to the adoption of the LPLA, we have previously considered and rejected market share liability in Louisiana products liability cases. 9 Since those precedents were established, there has been no change in the Louisiana jurisprudence either before or after adoption of the LPLA, and the failure of the Louisiana

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legislature to embrace market share liability when it confected the LPLA or by subsequent amendment implies continued rejection of that theory by Louisiana. This, in turn, weighs heavily against certification.

        Although not alone dispositive, Jefferson's choice of forum cannot be ignored. By filing suit in federal court, Jefferson consciously exercised her option to litigate in either state or federal court when she chose the latter. That her electing to file in federal court might have been done in anticipation of removal by the defendants is of no moment: "[T]he court should be slow to honor a request for certification from a party who chose to invoke federal jurisdiction." 10

        We do not lightly abdicate our mandate to decide issues of state law when sitting in diversity, and in the same vein "[w]e use much judgment, restraint and discretion in certifying" cases to the highest state court. 11 When we view the certification sought by Jefferson in light of the foregoing factors and policy considerations, we are satisfied that this case is not a viable candidate for certification. We therefore deny Jefferson's motion to certify. If the inapplicability of either the market share or the civil conspiracy theories of recovery in Louisiana products liability cases is to be changed to make either or both of those theories pertinent, such change should come from the legislature as the primary source of Louisiana law or from the highest court of that state as a secondary source of law, not from a federal court sitting in diversity.


RULE 12(b)(6)


        In our de novo review of the district court's dismissal of Jefferson's claim, we conclude that the district court not only reached the correct result but did so for the correct reasons. Moreover, we are satisfied that we could not improve on the analysis of the district court as set forth in Judge Vance's clear, concise, and thorough ORDER AND REASONS filed on May 31, 1996. We therefore incorporate her opinion herein by reference and attach a copy hereto as Appendix A.




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