United States District Court, W.D. Louisiana, Lake Charles Division
IN RE TEXAS PETROLEUM INVESTMENT CO. as owner and operator of the M/V MICHELLE
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Summary Judgment [doc. 54] filed by
defendant Phoenix Forge Group, LLC (“Phoenix”)
and opposed by claimant Gentry Hebert. This matter has been
referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
litigation arises from injuries incurred by Hebert on
September 3, 2015, while he was working as an employee of
Prosper Operators, Inc. (“Prosper”) on assignment
to Texas Petroleum Investment Company (“TPIC”) as
a crew member of the M/V Michelle in Cameron Parish,
Louisiana. See doc. 24, att. 3, pp. 1-6 (state court
complaint). Hebert alleges in relevant part that, as he was
opening a valve to bleed pressure from a leaking gas line,
“the ruinous, defectively manufactured, constructed,
assembled, installed, and/or maintained swedge
[sic], collar, two inch . . . pipe riser, pressure
gauge, bleeder valve and its appurtenances exploded, ”
resulting in the loss of Hebert's right leg. Id.
September 2, 2016, Hebert filed a petition for damages
against vessel owner TPIC; his employer Prosper Operators,
Inc. (“Prosper”) and Prosper's worker's
compensation insurer, Gray Insurance Company; JIREH Oilfield
Services, LLC, which allegedly assembled the pipeline parts
that failed; and Phoenix Forge Group, LLC
(“Phoenix”), which allegedly manufactured the
swage and collar, in the 38th Judicial District Court,
Cameron Parish, Louisiana. Doc. 24, att. 3.
as owner and operator of the M/V Michelle, filed a complaint
for exoneration from or limitation of liability in this court
on February 3, 2017. Doc. 1. The other parties then filed
answers and claims in this proceeding, to which TPIC has
responded with its own answers and cross-claims. Phoenix now
moves for summary judgment, asserting that Hebert's
claims against it arise solely on a theory of products
liability and that Hebert has no evidence to dispute
Phoenix's contention that it did not manufacture, sell,
or distribute any of the parts involved. Doc. 54, att. 1.
Hebert opposes the motion. Doc. 66, att. 1.
Summary Judgment Standard
should grant a motion for summary judgment when 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. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
action Hebert asserts Phoenix is liable under general
maritime law for negligently designing, manufacturing, and/or
selling the “the swedge [sic], collar, two
inch (2”) pipe riser, pressure gauge, bleeder valve and
its appurtenances.” Doc. 20, ¶¶ 29-30, 36-40.
Phoenix notes that Hebert's claims also reference
specific product liability elements contained in the
Louisiana Products Liability Act (“LPLA”),
Louisiana Revised Statute § 9:2800.51 et seq.
Doc. 54, att. 1, p. 10. It maintains that, under either law,
Hebert's claims against it must fail because it did not
design, manufacture, or distribute any of these parts.
Id. at 10-13.
maritime law is “an amalgam” of common law rules,
modifications, and maritime-specific creations. Vickers
v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir.
1987). For products liability claims, the Fifth Circuit
applies the substantive law outlined in the Restatement
(Second) of Torts. Id.; see also Pavlides v.
Galveston Yacht Basin, Inc., 727 F.2d 330 (5th Cir.
1984). To prevail on such a claim, the plaintiff must show
(1) that the defendant sold or manufactured a product; (2)
that the product was unreasonably dangerous or defective when
it left the defendant's control; and (3) that the defect
caused the plaintiff's injury. Penn Maritime, Inc. v.
Rhodes Electronic Svcs., Inc., 41 F.Supp.3d
507, 524 (E.D. La. Aug. 19, 2014); see also Transco Synd.
No. 1, Ltd. v. Bollinger Shipyards, Inc., 1 F.Supp.2d
608, 613-14 (E.D. La. 1998) (noting that these provisions
extend to manufacturers). Louisiana product liability law may
be applied in maritime actions where it is consistent with
the Restatements. Transco Synd. No. 1, 1 F.Supp.2d
at 614. Under the LPLA, a plaintiff must establish that (1)
the defendant manufactured or sold the product; (2) the
claimant's damage was proximately caused by a
characteristic of the product; (3) this characteristic made
the product unreasonably dangerous; and (4) the
plaintiff's damage arose from a reasonably anticipated
use of the product. Stahl v. Novartis Pharm. Corp.,
283 F.3d 254, 260-61 (5th Cir. 2002).
support of its motion Phoenix states that it “has not,
and does not” manufacture, distribute, or sell
“any products, ” and that it did
not manufacture, sell, or distribute any product alleged to
be defective in this petition. Doc. 54, att. 2, ¶¶
9-12 (emphasis added). To this end it relies on an affidavit
from its human resources manager, Robert G. Harron.
See doc. 54, att. 3. Hebert responds by admitting
that he has, at this time, no evidence to support his
contention that Phoenix manufactured any of the allegedly
defective products. Doc. 66, att. 1, p. 2. He states that he
is unable to identify the manufacturer of these parts because
TPIC cannot locate the failed riser package and because the
serial numbers on the swage were either erased by