Jefferson v. Lead Industries Ass'n, Inc., Civil Action No. 95-2835.

• Citation: 930 F. Supp. 241
• Decision Date: 31 May 1996
• Docket Number: Civil Action No. 95-2835.
• Parties: Letetia JEFFERSON, et al. v. LEAD INDUSTRIES ASSOCIATION, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

930 F. Supp. 241

Letetia JEFFERSON, et al. v. LEAD INDUSTRIES ASSOCIATION, INC., et al.

Civil Action No. 95-2835.

United States District Court, E.D. Louisiana.

May 31, 1996.

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

Monica Tufano Surprenant, Baldwin & Haspel, New Orleans, LA, Mary Morrissey Sullivan, Mark L. Sullivan, Richard L. Nahigian, Sullivan, Sullivan & Pinta, Boston, MA, for Lead Industries Association, Inc.

Frederick William Bradley, Liskow & Lewis, New Orleans, LA, Jeffrey A. Hall, Barlit, Beck, Herman, Palenchar & Scott, Chicago, IL, Donald E. Scott, Barlit, Beck, Herman, Palenchar & Scott, Denver, CO, Timothy S. Hardy, Kirkland & Ellis, Washington, DC, for NL Industries, Inc.

C. Edgar Cloutier, Christovich & Kearney, New Orleans, LA, Ingo Werner Sprie, Jr., Lawrence R. Miller, Philip H. Curtis, Bruce R. Kelly, Arnold & Porter, New York City, for Atlantic Richfield Company.

Jonathan Christopher McCall, Chaffe, McCall, et al., New Orleans, LA, Charles H. Moellenberg, Jr., Louis W. Hensler, III, Paul Michael Pohl, Jones, Day, et al., Pittsburgh, PA, for Sherwin-Williams Company.

Dominic Joseph Gianna, Middleberg, Riddle & Gianna, New Orleans, LA, for SCM Corporation.

Dominic Joseph Gianna, Middleberg, Riddle & Gianna, New Orleans, LA, Michael T. Nilan, Janie S. Mayeron, Jeffrey J. Weill, G. Marc Whitehead, Popham, Haik, et al., Minneapolis, MN, for Glidden Company.

David Louis Carrigee, Burke & Mayer, New Orleans, LA, Wade R. Joyner, Charles W. Siragusa, Jeffrey S. Burns, Crowley Barrett & Karaba, Ltd., Chicago, IL, for Fuller-O'Brien Corporation.

ORDER AND REASONS

VANCE, District Judge.

This matter is before the Court on defendants Atlantic Richfield Company, NL Industries, Inc., Sherman-Williams Company, SCM Corporation, Glidden Company, Fuller-O'Brien Corporation, and Lead Industries Association, Inc. ("defendants") Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b), and on the Motion of defendants Glidden Company, Atlantic Richfield Company, Fuller-O'Brien Corporation, NL Industries, Sherwin-Williams Company, and Lead Industries Association, Inc. to Dismiss the Complaint Based Upon Failure to Identify the Manufacturer. The Court heard argument on these motions on April 18, 1996. For the reasons set forth below, defendants' motions are granted.

I. BACKGROUND

Plaintiff Letetia Jefferson, individually and as the duly qualified legal tutrix of Schanta Jefferson ("plaintiff'), filed this action for damages resulting from Schanta Jefferson's alleged lead poisoning by ingestion, absorption or inhalation of lead paint pigment. Plaintiff purports to represent a class of all Louisiana parents of children who suffered from lead poisoning from lead paint pigment before they attained the age of six years. Named as defendants are six entities that produced and sold lead paint pigment, together with the Lead Industries Association, Inc., a trade association to which the pigment defendants allegedly belonged. Plaintiff's complaint asserts liability against defendants under a number of legal theories.

Defendants have filed two motions to dismiss the complaint, as amended. The first motion asserts that the complaint is fatally defective because plaintiff has not identified the manufacturer of the lead paint pigment whose product caused her injury. The second motion asserts that the amended complaint is deficient under the Louisiana Products Liability Act ("LPLA"), which states the exclusive grounds of recovery against a manufacturer of an allegedly defective product. Because the Court agrees that the LPLA states the exclusive theories on which liability may be imposed on a manufacturer of a defective product, and because Louisiana law requires that plaintiff identify the manufacturer whose product caused her injury, the Court orders the amended complaint dismissed against the paint pigment manufacturers for failure to state a claim. The amended complaint is likewise ordered dismissed against the Lead Industries Association, Inc. for the reasons stated below.

II. THE COMPLAINT

The amended complaint contains hardly any allegations concerning the circumstances of Schanta Jefferson's lead poisoning, other than to assert that she contracted lead poisoning before she reached the age of six because of "ingestion, absorption or inhalation of lead paint pigment." Complaint at ¶ 10. There are no allegations of where or how she came into contact with the lead paint pigment. Further, she does not allege, and states that she cannot allege, the identity of the manufacturer of the paint pigment that caused her injury. Nor does she assert when the lead paint pigment was applied to whatever it was that she came into contact with containing lead paint pigment. In her opposition memorandum, plaintiff refers to lead paint pigment on the walls of her apartment as the source of her contamination, but this is not alleged in the complaint.

Rather, plaintiff alleges that defendants marketed most of the lead paint pigments used in lead based paints that were sold in the United States between the early part of the twentieth century and the early 1970's, when lead paint pigment was outlawed for residential purposes. Amended Complaint at ¶¶ 15, 21 and 36. The complaint alleges that lead paint pigment remains in a large majority of residences built before the early 1970's, posing a health risk to children. Id. at ¶ 21. Plaintiff asserts that from the early part of the twentieth century through at least the late 1950's, defendants conspired to promote lead paint pigment in residential paint, despite their knowledge of its unreasonable health risks to children. Plaintiff claims that defendants misrepresented the product as safe and failed to disclose or warn of its known health risks. Plaintiff's asserted theories of recovery are: the manufacture and sale of an unreasonably dangerous product, defective design, negligence, failure to warn, breach of express warranty, breach of express or implied warranty of fitness for a particular purpose, fraud by misrepresentation, market share liability and civil conspiracy. Id. at ¶¶ 23-57.

III. LEGAL ANALYSIS

The standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one. The district court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir.1993). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Fernandez-Montes, 987 F.2d at 284, 285; Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.1994). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994).

A. Louisiana Products Liability Act — Lead Pigment Manufacturers

No party disputes that this motion is to be decided under Louisiana law or that the Louisiana Products Liability Act applies to plaintiff's claims.¹ At issue is whether plaintiff may assert theories of recovery against a manufacturer of an allegedly defective product that are not recognized by the LPLA and whether plaintiff must identify the manufacturer of the product causing her injuries in order to recover.

The Louisiana Products Liability Act "establishes the exclusive theories of liability for manufacturers for damages caused by their products." La.Rev.Stat.Ann. § 9:2800.52 (West 1988); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995); Lewis v. Intermedics Intraocular, Inc., 56 F.3d 703, 706 (5th Cir.1995). A plaintiff may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability not set forth in the LPLA. La.Rev.Stat.Ann. § 9:2800.52 (West 1988). The LPLA provides that a manufacturer of a product is liable to a claimant for damage "proximately caused" by a characteristic of the product that rendered it "unreasonably dangerous" when the damage arose from a reasonably anticipated use of the product by the "claimant or another person or entity." Id. § 9:2800.54A. A claimant may prove that the product was "unreasonably dangerous" only under one of the following four theories: (1) that it was unreasonably dangerous in construction or composition; (2) that it was unreasonably dangerous in design; (3) that it was unreasonably dangerous because of inadequate warning; or (4) that it was unreasonably dangerous because of nonconformity to an express warranty. Id. at § 2800.54(B)(1-4). Thus, the elements of a products liability cause of action under the LPLA are proof of the following:

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 the characteristic made the product unreasonably dangerous in one of the four ways provided in the statute; and

4. that the claimant's damage arose from a reasonably anticipated use of the product by the claimant or someone else.

Id. § 2800.54; see generally J. Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989) (hereafter "Kennedy"). While the statutory ways of establishing that a product is unreasonably dangerous are predicated on principles of strict liability, negligence, or warranty, respectively, neither negligence, strict liability, nor breach of express warranty is any longer viable as an independent theory of recovery...