Hulin v. Fibreboard Corp., Civil Action No. 86-11-B.
| Citation | 966 F.Supp. 428 |
| Decision Date | 09 December 1996 |
| Docket Number | Civil Action No. 86-11-B. |
| Parties | Esther B. HULIN, et al. v. FIBREBOARD CORPORATION, et al. |
| Court | U.S. District Court — Middle District of Louisiana |
George R. Covert, Baton Rouge, LA, Thomas E. Bezanson, Chadbourne & Parke, New York City, for Ester B. Hulin.
George R. Covert, Baton Rouge, LA, for Susan H. Berry, Thomas Hulin, Sally H. Blanchard, Mary H. Desselle, Joseph G. Hulin, Janet M. Hulin.
Edwin A. Ellinghausen, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, for Fibreboard Corporation.
David Lynn Tolin, Weller, Whellus & Green, Beaumont, TX, for Pittsburgh Corning Corp.
Kathleen Diane Lambert, Maria I. O'Byrne Stephenson, Law Offices of Maria I. O'Byrne Stephenson, New Orleans, LA, James B. Pressly, Jr., Haynesworth, Marion, McKay & Guerard, Greensville, SC, Lisa Carol Matthews, Stephenson, Matthews, Chavarri & Cerniglia, L.L.C., New Orleans, LA, for Rockwool Manufacturing Company.
Sally A. Shushan, Robert E. Winn, Sessions & Fishman, L.L.P., New Orleans, LA, David L. Wallace, Wallace & O'Neal, DeRidder, LA, Deborah A. Barnhart, Peter K. Eck, Bruce G. Sheffler, Chadbourne & Parke, New York City, for American Tobacco.
Charles Louis Chassaignac, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Reynolds Robacco.
Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for Flintkote Company.
RULING ON MOTION IN LIMINE TO DETERMINE APPLICABILITY OF
American Tobacco Company's ("American") has filed a motion in limine seeking to have this Court determine the applicability of the "unreasonably dangerous per se" theory ("per se" theory) of products liability first enunciated in Halphen v. Johns-Manville Sales Corp.1 For the reasons which follow, the Court finds that the "per se" theory of products liability was a substantive change in Louisiana law, and cannot be applied retroactively. Because the plaintiff's cause of action arose before Halphen was decided, the "per se" theory is not applicable to this case.
The issue before the Court on the pending motion is very clear. Did the enunciation of the "unreasonably dangerous per se" theory of products liability in Halphen substantively change Louisiana law, or merely restate the law in Louisiana as it already existed?
Simply put, the issue the Court must decide on this motion in limine is "what law governs?" In order for the Court to decide this issue, it is necessary for the Court to review the Louisiana law on products liability. There are three separate time periods in which the products liability law in Louisiana can be divided: (1) the law as it existed before Halphen was decided on February 24, 1986; (2) the law as it existed under Halphen; and, (3) the law as it now exists under the Louisiana Products Liability Act ("LPLA")2 which became effective on September 1, 1988.
Before Halphen, Louisiana did not explicitly recognize the "per se" theory of liability. When the Louisiana Supreme Court rendered its decision in Halphen, it marked the first time this theory was actually recognized and promulgated by the court. Thereafter, the Louisiana Legislature enacted the LPLA which abolished the "per se" theory of liability.
Plaintiffs' sole cause of action remaining against American is based on the "per se" theory of products liability. It is clear that plaintiffs' cause of action arose before Halphen was decided. Plaintiffs contend the Court may apply Halphen because the decision did not substantively change Louisiana law. American contends Halphen was a substantive change. Therefore, this Court must decide whether the "per se" theory of liability announced by Halphen was a substantive or procedural change in Louisiana law. If the "per se" theory is substantive, the Court cannot apply the Halphen decision retroactively to this case.
In order for this Court to determine if Halphen created a substantive change in Louisiana law, it is necessary for the Court to set forth a brief overview of the Louisiana law of products liability.
The starting point for any discussion of the applicable products liability law in Louisiana before Halphen was decided and before the LPLA was enacted is Weber v. Fidelity & Casualty Ins. Co.3 Weber set forth three categories of recovery in products liability for products which are unreasonably dangerous in (1) design, (2) composition and (3) manufacture. Under Weber,
[a] manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect.4 (Emphasis added.)
Although not discussed in Weber, pre-Halphen Louisiana law also recognized a fourth category of recovery involving products that are unreasonably dangerous due to a failure to warn.5
Weber and Halphen each held that "[i]n order to recover from a manufacturer, [a] plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and the condition existed at the time the product left the manufacturer's control."6
Halphen not only incorporated the four theories of recovery listed above, but also added a fifth category for products which are "unreasonably dangerous per se." The "unreasonably dangerous per se" theory of products liability [was] "imposed solely on the basis of the intrinsic characteristics of the product irrespective of the manufacturer's intent, knowledge, or conduct."7 This was "the purest form of strict liability and clearly distinguished from other theories in which the manufacturer's knowledge or conduct is an issue."8
"A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product."9 "This theory considers the product's danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory's purpose is to evaluate the product itself, not the manufacturer's conduct."10 "The fact that a risk or hazard related to the use of a product was not discoverable under existing technology or that the benefits appeared greater than they actually were are both irrelevant."11 Thus, "[i]f a plaintiff proves that the product is unreasonably dangerous per se, it is not material that the case could have been tried as a design defect case or other type defect case."12
The defense was abolished in a case tried solely under the "per se" theory.13 The defense allowed the defendant to introduce evidence that "[h]e did not know and, in light of then-existing reasonably available scientific and technological knowledge, could not have known of the design characteristic that caused the damage or the danger of such characteristic."14
The Court now turns to a discussion of how the "per se" theory of liability became part of Louisiana tort law. This analysis is important because it will aid the Court in deciding whether the Halphen decision can be applied retroactively. The Court begins this discussion with a review of the arguments the plaintiff in Halphen made and the Louisiana Supreme Court's response. The plaintiff in Halphen argued that certain language in the Weber opinion was the genesis of the "per se" theory in Louisiana.15 Weber stated that
[i]f the product is proven defective by reason of normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them.16
Similarly, under the "per se" theory, a manufacturer could be liable "irrespective of the manufacturer's intent, knowledge or conduct."17 When the Weber court stated that "if the product is proven defective by reason of normal use, ... the manufacturer is presumed to know the vices in the things he makes,"18 it appeared the Weber court had articulated an "unreasonably dangerous per se" theory of products liability. In fact, this was the argument made by the plaintiff in Halphen. The majority in Halphen rejected this argument. The Halphen court noted that Weber did not address "the difficult issues presented by scientifically unknowable dangers or liability for failure to warn." The Halphen court did "not attribute to the Weber court any intention to decide these issues prematurely."19 Instead, the Halphen court noted that "Weber is the court's landmark opinion on strict products liability, and [the court] continue[s] to be guided by its basic holding and its spirit."20 The Halphen court then proclaimed that "the principle of strict liability has developed since Weber, and its shape will continue to be molded by its purpose within our codal framework."21
Thus, the Halphen court did not rely on Weber in formulating the "per se" theory. Instead, the Louisiana Supreme Court concluded that the "per se" theory had "developed since Weber." In addition, Halphen suggested that the "shape" of the "per se" theory would "continue to be molded" by the Louisiana Supreme Court. This language indicates that the "per se" theory had evolved since the court's decision in Weber, and, therefore, did not exist until Halphen was decided. This is an important distinction for this Court to consider in determining whether Halphen is...
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