Savoy v. Kroger Co.

• Decision Date: 07 January 2020
• Docket Number: CASE NO. 2:17-CV-00897
• Citation: Savoy v. Kroger Co., CASE NO. 2:17-CV-00897 (W.D. La. Jan 07, 2020)
• Parties: GERTRUDE SAVOY v. KROGER CO ET AL
• Court: U.S. District Court — Western District of Louisiana

GERTRUDE SAVOY v. KROGER CO ET AL

CASE NO. 2:17-CV-00897

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

January 7, 2020

JUDGE SUMMERHAYS

MAGISTRATE JUDGE KAY

REASONS FOR DECISION

Presently before the Court are four motions for summary judgment: (1) Motion for Summary Judgment [doc. 36] filed by Inteplast Group Corporation ("Inteplast") with regard to the product liability claims; (2) Motion for Summary Judgment [doc. 62] filed by Inteplast and The Kroger Company ("Kroger") on the issue of medical causation; (3) Plaintiff's Motion for Partial Summary Judgment on Medical Causation [doc. 64] filed by Gertrude Savoy; and (4) Motion for Summary Judgment [doc. 65] filed by Kroger. For reasons explained below, the court GRANTS Inteplast's Motion for Summary Judgment with respect to Plaintiff's product liability claims [doc. 36]. The remaining motions [docs. 62, 64, and 65] are DENIED.

I.BACKGROUND

On March 3, 2016, Plaintiff was shopping at Kroger and was at a checkout stand operated by Larissa Perez, a Kroger cashier.¹ Perez bagged the groceries.² Plaintiff then attempted to lift a bag containing two 59-ounce bottles of Gold Peak^® tea from the carousel to her shopping cart.³ Asshe attempted to lift the bag, the plastic bag tore causing the bottles of tea to fall on Plaintiff's right foot.⁴ According to the undisputed facts, the bag was not "double bagged."⁵ Plaintiff contends that Kroger's employees took possession of the bag that failed,⁶ but this bag involved has not been produced in discovery.⁷ Plaintiff alleges that the impact of the bottles caused Complex Regional Pain Syndrome - also known as Reflex Sympathetic Dystrophy ("RSD") - in her foot.⁸ RSD apparently is an incurable nerve condition.⁹ Plaintiff subsequently filed suit in the 14^th Judicial Court in Calcasieu Parish against Kroger, Perez, and Inteplast, the manufacturer of the plastic bag. Inteplast removed the case to this court on July 11, 2017, based upon diversity.

In her complaint, Plaintiff asserts negligence claims against Kroger and Perez. Plaintiff also asserts product liability claims against Inteplast under the Louisiana Product Liability Act. Inteplast, Kroger and Plaintiff have now filed motions for summary judgment. Inteplast contends that there is no evidence establishing that the bag in question was its product. It also asserts that Plaintiff cannot establish all of the elements of a product liability claim as a matter of law. Kroger and Inteplast challenge Plaintiff's ability to prove medical causation and breach of duty. Finally, Plaintiff seeks summary judgment establishing medical causation as a matter of law. Trial of this matter is set for January 27, 2020.

II.LAW

A. Summary Judgment Standard

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Fed. R. Civ. P. 56(a). "The court shall grant summary judgment 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." Id. "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized by the Fifth Circuit:

When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of an issue of material fact with respect to those issues on which the movant bears the burden of proof at trial. However, where the nonmovant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

When reviewing evidence in connection with a motion for summary judgment, "the court must disregard all evidence favorable to the moving party that the jury is not required to believe and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (court must view all facts and evidence in the light most favorable to the non-moving party). "Credibility determinations are not part of the summary judgment analysis." Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d451, 458 (5th Cir. 2002). Rule 56 "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof." Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex v. Catrett, 477 U.S. 317, 322 (1986)).

B. Application of Louisiana Law.

In a diversity case such as this one, the Court applies state substantive law. Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 269 (5th Cir. 2009); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The parties do not dispute that Louisiana law applies to this case.

III.LEGAL ANALYSIS

A. Claims Under the Louisiana Products Liability Act.

Plaintiff alleges that Inteplast is liable for her damages because it manufactured the plastic bag that failed and allegedly caused injuries to her foot. The Louisiana Products Liability Act ("LPLA") establishes the exclusive grounds for recovery against manufacturers for damage caused by their products.¹⁰ To hold a manufacturer liable under the Louisiana Products Liability Act, a plaintiff must prove that (1) the product manufactured by the defendant possesses a characteristic which makes it unreasonably dangerous, (2) that the characteristic which makes the product unreasonably dangerous existed when it left the control of defendant, (3) that the characteristic which makes the product unreasonably dangerous proximately caused the plaintiff's damages, and (4) that the damage arose from a reasonably anticipated use of the product.¹¹ Louisiana law does not allow a fact finder to presume an unreasonably dangerous design solely from the fact that anincident occurred.¹² The mere fact that an accident occurred is not sufficient to establish that a product is defective or unreasonably dangerous.¹³ Plaintiff must prove each element of a claim under the LPLA by a preponderance of the evidence.¹⁴ Plaintiff must show that the bag at issue was unreasonably dangerous due to (1) its design; (2) its construction or composition; (3) the lack of an adequate warning; or (4) its failure to conform to an express warranty.¹⁵ The parties have not asserted the existence of any express warranty so the Court will not address the fourth provision.

1. Identity of The Bag That Failed

Inteplast first alleges that there is no evidence that the bag that allegedly injured her was manufactured by Inteplast because neither Kroger nor Plaintiff has located and produced the bag involved in the accident. Plaintiff, however, points to a contract between Kroger and Inteplast for the manufacture and supply of Inteplast plastic bags to Kroger.¹⁶ In addition, Inteplast's representative, Snehal Desai, confirmed that this (or a similar) vendor agreement was in place at the time of the incident and that he was not aware of any other manufacturer who supplied bags to Kroger.¹⁷ This summary judgment evidence is sufficient to create a genuine question of material fact as to whether Inteplast manufactured the bag in question.

2. Defect in Design.

Under the LPLA,

A product is unreasonably dangerous in design if, at the time the product left its manufacturer's control:

(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.¹⁸

This prong of the LPLA requires proof of an alternative design that would have prevented a plaintiff's injuries. Applied here, that means an alternative bag design that would have prevented Ms. Savoy's injuries. Inteplast argues that Plaintiff cannot establish liability under this provision because she has not designated an expert to testify on this issue. Plaintiff responds that, in Malbrough v. Crown Equip. Corp., the Fifth Circuit rejected a per se rule requiring expert testimony to prove the existence of an alternative design.¹⁹

In Malbrough, the plaintiff was injured while operating a "stand-up" forklift at the Wal-Mart warehouse distribution center where she worked.²⁰ The plaintiff attempted to avoid a collision with another forklift by applying her brakes, which caused her left foot to swing out of the unenclosed operator compartment. As a result, her foot was crushed when the two forklifts collided. The plaintiff sued the manufacturer under the LPLA, claiming that the lack of a door to the operator compartment of the stand-up forklift constitutes a design defect. She intended to present expert testimony on the design defect issue at trial, but the district court granted the manufacturer's motion in limine to exclude her expert witness. The manufacturer then argued that the lack of an expert witness prevented plaintiff from proving her case. The Fifth Circuit concluded that the trier-of-fact was capable of...