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In re Texas Petroleum Investment Co.

United States District Court, W.D. Louisiana, Lake Charles Division

May 8, 2019

IN RE TEXAS PETROLEUM INVESTMENT CO. as owner and operator of the M/V MICHELLE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before 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. § 636.

         I. Background

         This 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. at 6.

         On 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.

         TPIC, 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.

         II. Summary Judgment Standard

         A court 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.

         If the 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).

         A court 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).

         III. Application

         In this 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.

         General 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).

         In 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 ...


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