Garcia v. Westlake Chem. Corp.

• Decision Date: 21 September 2021
• Docket Number: Civil Action 18-00764-BAJ-EWD
• Parties: HUGO GARCIA v. WESTLAKE CHEMICAL CORPORATION, ET AL.
• Court: U.S. District Court — Middle District of Louisiana

HUGO GARCIA v. WESTLAKE CHEMICAL CORPORATION, ET AL.

Civil Action No. 18-00764-BAJ-EWD

United States District Court, M.D. Louisiana

September 21, 2021

RULING AND ORDER

BRIAN A. JACKSON, JUDGE.

Before the Court is Defendant NLB Corporation's Motion For Summary Judgment (Doc. 81). Plaintiff opposes the Motion. (Doc. 84). Defendant filed a Reply. (Doc. 89). The parties filed supplemental briefing. (Doc. 115; Doc. 116). Following a hearing on the matter, and for the reasons stated herein the Motion is DENIED.

I. FACTS

This is a personal injury matter. Plaintiff Hugo Garcia alleges that he was injured while “performing hydro-blasting work at a chemical plant owned and operated by Defendants Westlake Chemical Corporation, Westlake Chemical LLC, and Axiall LLC” as part of his employment with Turner Industries LLC. (Doc. 81-1, ¶ 1; Doc. 84-1, ¶ 1). Plaintiff further alleges that while he was using a hydro-blasting gun to perform that work, the whip hose attached to the hydroblasting gun (hereinafter “Whip Hose”) failed, causing highly pressurized water to strike his hands and knock him to the ground. (Id.).

Plaintiff alleges Louisiana Products Liability Act (“LPLA”) claims against Defendant NLB Corporation as the alleged manufacturer of the Whip Hose. (Doc. 40, ¶¶ 5; 12; 21-25). Plaintiff asserts that he was “injured during normal and anticipated use of the [Whip] Hose because the [Whip] Hose was unreasonably dangerous.” (Id. at ¶ 22). NLB moved for summary judgment, arguing that it was neither the seller nor manufacturer of the Whip Hose, and accordingly, it cannot be held liable under the LPLA. (Doc. 81).

II. PROCEDURAL HISTORY

This matter was removed to the Court on August 13, 2018, based on diversity jurisdiction, 28 U.S.C. § 1332. (Doc. 1). A federal court sitting in diversity applies the substantive law of the forum state. Lewis v. M7 Prods., LLC, 427 F.Supp.3d 705, 722 (M.D. La. 2019) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). Accordingly, the Court will apply Louisiana law.

III. LEGAL STANDARD

A. Summary Judgment

A court may grant summary judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on motions for summary judgment, courts are required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Coleman v. Hous. Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997).

To survive summary judgment, however, the nonmoving party must do more than allege an issue of material fact: “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and quotation marks omitted). A party that fails to present competent evidence opposing a motion for summary judgment risks dismissal on this basis alone. E.g., Broussard v. Oryx Energy Co., 110 F.Supp.2d 532, 536 (E.D. Tex. 2000) (“Plaintiff produced no genuine issue of material fact to prevent the granting of [Defendant's] Motion, and therefore, the Court could grant [Defendant's] Motion for Summary Judgment on this basis alone.”).

B. Louisiana Products Liability Act

The LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” La. Rev. Stat. § 9:2800.52. To prevail on a LPLA claim, plaintiff “must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant's damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product ‘unreasonably dangerous'; and (4) that the claimant's damage arose from a reasonably anticipated use of the product by the claimant or someone else.” Cooper v. Wyeth, Inc., No. CIV.A. 09-929-JJB-CN, 2010 WL 2653321, at *1 (M.D. La. June 25, 2010) (citing Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 260-61 (5th Cir. 2002); La. Rev. Stat. § 9:2800.54(A)). A product is considered unreasonably dangerous in only four circumstances: (1) defect in the product's construction or composition; (2) design defect; (3) inadequate warning; or (4) failure to conform the manufacturer's express warranty. Cooper, 2010 WL 2653321, at *1 (citing La. Rev. Stat. § 9:2800.54(B)(1-4); Jefferson v. Lead Indus. Ass'n, 106 F.3d 1245, 1248 (5th Cir. 1997) (holding that Louisiana law only recognizes the four theories of recovery for products liability actions set forth by the LPLA)).

IV. DISCUSSION

NLB argues that it did not sell or manufacture the Whip Hose that allegedly caused Plaintiff's injuries, and accordingly, cannot be held liable as a “manufacturer” under the LPLA. (Doc. 81-1, p. 5). NLB asserts that because Plaintiff has failed to present sufficient evidence to prove otherwise, the Court should grant summary judgment in NLB's favor. (Id.).

Plaintiff responds that there is ample evidence for a jury to find that the Whip Hose was sold by NLB. (Doc. 84, p. 15). Additionally, Plaintiff contends that he must only establish, and has established, that NLB held the Whip Hose out “as [its] own or otherwise [held itself] out to be the manufacturer of the [Whip Hose].” (Doc. 115, p. 6). Accordingly, Plaintiff contends that summary judgment should be denied. For the reasons stated below, the Court finds that a genuine issue of material fact precludes summary judgment.

Plaintiff may only recover from a defendant who qualifies as a manufacturer of the product under the LPLA. Vita v. Rooms to Go La. Corp., No. CIV.A. 13-6208, 2014 WL 6835913, at *2 (E.D. La. Dec. 3, 2014) (citing La. Rev. Stat. § 9:2800.52 (1988)). The LPLA defines “manufacturer” in several ways:

(1) “Manufacturer” means a person or entity who is in the business of manufacturing a product for placement into trade or commerce. “Manufacturing a product” means producing, making, fabricating, constructing, designing, remanufacturing, reconditioning or refurbishing a product. “Manufacturer” also means:

(a) A person or entity who labels a product as his own or who otherwise holds himself out to be the manufacturer of the product.

(b) A seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage.

(c) A manufacturer of a product who incorporates into the product a component or part manufactured by another manufacturer.

(d) A seller of a product of an alien manufacturer if the seller is in the business of importing or distributing the product for resale and the seller is the alter ego of the alien manufacturer. The court shall take into consideration the following in determining whether the seller is the alien manufacturer's alter ego: whether the seller is affiliated with the alien manufacturer by way of common ownership or control; whether the seller assumes or administers product warranty obligations of the alien manufacturer; whether the seller prepares or modifies the product for distribution; or any other relevant evidence. A “product of an alien manufacturer” is a product that is manufactured outside the United States by a manufacturer who is a citizen of another country or who is organized under the laws of another country.

La. Rev. Stat. § 9:2800.53(1) (emphasis added). The LPLA defines a “seller” as “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.” Id. § 9:2800.53(2).

Louisiana courts require the identification of a product's manufacturer in product liability cases. Jefferson v. Lead Indus. Ass'n, Inc., 930 F.Supp. 241, 246 (E.D. La. 1996), aff'd, 106 F.3d 1245 (5th Cir. 1997) (citing Baldwin v. Kikas, 635 So.2d 1324, 1327 (La.App. 4th Cir. 1994), writ denied, 643 So.2d 144 (La. 1994) (affirming summary judgment because of insufficient evidence of identity of manufacturer or seller); see also Maldanado v. State Through Dept. of Transp., 618 So.2d 537, 538-39 (La.App. 4th Cir. 1993), writ denied, 623 So.2d 1309 (La. 1993) (proof of identity of manufacturer is element of plaintiff's claim)). Louisiana Revised Statutes § 2800:54(D) provides that Plaintiff has the burden of proving the elements of Subsection 2800.54(A).^[1] Here, Plaintiff bears the burden of proving that NLB qualifies as a “manufacturer” of the Whip Hose under the LPLA. See Maldanado, 618 So.2d at 538-39. The Court will review the record evidence Plaintiff offered to establish NLB as both the seller and manufacturer of the Whip Hose in turn.

A. NLB as Alleged Seller of Whip House

NLB admits that it sold three whip hoses to Axiall in 2012, but it alleges that all three hoses were sold to Axiall six years prior to the incident. (Doc. 81-1, p. 2, 5-6). NLB contends that the Whip Hose would not have been stored for six years prior to use. (Id.) NLB also argues that the hose was changed out five times before 2018, so logically, the Whip Hose involved in the incident...