United States District Court, W.D. Louisiana, Lake Charles Division
REASONS FOR DECISION
R. SUMMERHAYS UNITED STATES DISTRICT JUDGE.
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)
Plaintiffs 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
Plaintiffs product liability claims [doc. 36]. The remaining
motions [docs. 62, 64, and 65] are DENIED.
March 3, 2016, Plaintiff was shopping at Kroger and was at a
checkout stand operated by Larissa Perez, a Kroger
cashier. Perez bagged the groceries. Plaintiff then
attempted to lift a bag containing two 59-ounce bottles of
Gold Peak® tea from the carousel to her shopping
cart. As she attempted to lift the bag, the
plastic bag tore causing the bottles of tea to fall on
Plaintiffs right foot. According to the undisputed facts, the bag
was not "double bagged." Plaintiff contends that
Kroger's employees took possession of the bag that
failed,  but this bag involved has not been
produced in discovery. Plaintiff alleges that the impact of the
bottles caused Complex Regional Pain Syndrome - also known as
Reflex Sympathetic Dystrophy ("RSD") - in her
foot. RSD apparently is an incurable nerve
condition. Plaintiff subsequently filed suit in the
14th 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.
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 Plaintiffs 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.
Summary Judgment Standard
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
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618
(5th Cir.1994) (internal citations omitted).
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.3d 451, 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)).
Application of Louisiana Law.
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.
Claims Under the Louisiana Products Liability Act.
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. 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 plaintiffs damages, and (4)
that the damage arose from a reasonably anticipated use of
the product. Louisiana law does not allow a fact
finder to presume an unreasonably dangerous design solely
from the fact that an incident occurred. The mere fact
that an accident occurred is not sufficient to establish that
a product is defective or unreasonably
dangerous. Plaintiff must prove each element of a
claim under the LPLA by a preponderance of the
evidence. 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. The parties have not asserted the
existence of any express warranty so the Court will not
address the fourth provision.
Identity of The Bag That Failed
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. 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. This summary
judgment evidence is sufficient to create a genuine question
of material fact as to whether Inteplast manufactured the bag
Defect in Design.
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.
prong of the LPLA requires proof of an alternative design
that would have prevented a plaintiffs 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 & per
se rule requiring expert testimony to prove the
existence of an alternative design.
Malbrough, the plaintiff was injured while operating
a "stand-up" forklift at the Wal-Mart warehouse
distribution center where she worked. 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 understanding whether
adding a door to the forklift cab would have prevented the
incident without the assistance of an expert. According to
the Malbrough court, "there may be cases in
which the judge or jury, by relying on background knowledge
and common sense, can fill in the gaps in the plaintiffs case
and thus undertake the utility balancing required by the LPLA
without the aid of expert testimony."
argues that the same rationale applies to her case. The flaw
in Plaintiffs comparison is that, in Malbrough, the
plaintiff clearly asserted an alternative design, i.e. a
forklift cab that included a door. Here, Plaintiff has not
even suggested, much less submitted any evidence of, an
alternative design that would have prevented the incident.
Accordingly, Plaintiff has failed to meet her burden of
establishing this essential element of her claim that the
Inteplast bag contained a design defect.
Unreasonably Dangerous in Construction or
[a] product is unreasonably dangerous in construction or
composition if, at the time the product left its
manufacturer's control, the product deviated in a
material way from the manufacturer's specifications or
performance standards for the product or from otherwise
identical products manufactured by the same
argues that Plaintiff cannot prove the essential elements of
this claim because the bag at issue has not been located and
thus cannot be inspected for defects in its materials or its
construction. The Court agrees. Whether or not the bag's
materials or construction was defective is product specific
and cannot be determined without inspecting the bag in
question. Inteplast never had possession of that bag after
the incident in question, and neither Plaintiff nor Kroger
has produced the bag that injured Plaintiff.
further argues that the fact of the bag's failure,
standing alone, is sufficient evidence of a construction
defect. But Louisiana law is clear that a construction defect
cannot be inferred based solely on the fact that an accident
occurred. While Plaintiff has not specifically
urged the doctrine of res ipsa loquitur, that
doctrine is the only support for Plaintiffs position that the
fact of the accident alone establishes evidence of a defect.
The Fifth Circuit has recognized that res ipsa
loquitur generally applies to Louisiana products
The Louisiana Supreme Court explains the principle of res
ipsa loquitur as "a rule of circumstantial evidence
that infers negligence on the part of defendants because the
facts of the case indicate that the negligence of the
defendants is the probable cause of the accident, in the
absence of other equally probable explanations offered by
credible witnesses." Montgomery v. Opelousas Gen.
Hosp., 540 So.2d 312 (La. 1989) (citing Boudreaux v.
Am. Ins. Co., 262 La. 721, 264 So.2d 621, 636 (1972)).
However, because res ipsa loquitur is "a
qualification of the general rule that negligence is not to
be presumed," it "must be sparingly applied."
Spott v. Otis Elevator Co., 601 So.2d 1355, 1362
(La. 1992) (quoting Day v. Nat'l U.S. Radiator
Corp., 241 La. 288, 128 So.2d 660, 665 (1961)). Res
ipsa loquitur is reserved for those circumstances that
"are of such an unusual character as to justify, in the
absence of other evidence bearing on the subject, the
inference that the accident was due to the negligence of the
one having control of the thing which caused the
injury." Lawson v. Mitsubishi Motor Sales of Am.,
Inc., 938 So.2d 35, 49 (La. 2006) (quoting Larkin v.
State Farm Mut. Auto. Ins. Co., 233 La. 544, 97 So.2d
389, 391 (La. 1957)).
court, however, also has recognized that res ipsa
loquitur is not available in a products liability case
where a plaintiff cannot exclude other potential causes of
injury that do not relate to the defective construction of
the product. Here, Plaintiff has not excluded other
potential causes of her injury because she has also alleged
that Kroger and Perez negligently overfilled the bag with
heavy items, that Kroger failed to implement adequate
training and supervision, and that these negligent actions
were a cause of her injuries. Accordingly, the doctrine of
res ipsa loquitur is inapplicable to prove a defect
in the construction of the bag that injured Plaintiff.
Without that presumption and without evidence of the bag that
caused her injuries, Plaintiff cannot establish that the bag
was unreasonably dangerous in construction or composition.
prevail on an inadequate warning claim under the LPLA,
Plaintiff must establish that "the product possessed a
characteristic that may cause damage" at the time the
product left Inteplast's control, and that Inteplast
"failed to use reasonable care to provide an adequate
warning of such characteristic and its dangers to users and
handlers of the product." An "adequate
warning" is "a warning or instruction that would
lead an ordinary reasonable user or handler of a product to
contemplate the danger in using or handling the product and
either to decline to use or handle the product or, if
possible, to use or handle the product in such a manner as to
avoid the danger for which the claim is made." La. R.S.
9:2800.53(9). Plaintiff must also establish that the
Inteplast's inadequate warning with respect to this
characteristic proximately caused her injury. In other words,
Plaintiff must establish some reasonable connection between
this potentially dangerous characteristic and her
injury. A manufacturer's duty to warn,
however, does not include warnings concerning dangers that
are, or should be, "obvious" to an ordinary
it is not clear whether Plaintiff is framing her claim as a
failure to warn that Inteplast's bags may generally fail
and cause damage regardless of the weight of the grocery
items in the bag, or that Inteplast failed to provide a more
specific warning of bag failure if too many heavy items are
placed in its bags. Regardless of how she frames her
failure-to-warn claim, this claim fails for at least three
reasons. First, Plaintiff cannot rest on a "mere
allegation of inadequacy" to survive summary judgment
but must instead offer evidence (not merely
conclusory allegations) of what warning should have been
provided and how this warning would have prevented her
injuries.Plaintiff points to no such evidence in
the summary judgment record. To the contrary, when Plaintiff
was questioned at her deposition about the information
printed on the bag that failed, she stated that "[t]here
was some writing on the bag, but I did not read
it." This admission shows that a written
warning on the bag would have been futile because it would
not have changed Plaintiffs actions and thus would not have
prevented her injuries. Plaintiff posits no evidence of any
other alternative type of warning or instruction that would
have prevented her injuries.
to demonstrate that the product in question has a potentially
damage-causing characteristic, "a plaintiff must provide
evidence about the 'cause, frequency, severity, or
consequences' of the dangerous characteristic in
question." Here, Plaintiff has not come forward
with evidence of a potentially damage-causing characteristic
of Inteplast's bags that existed at the time the bags
left Inteplast's control. Plaintiff appears to base her
inadequate warning claim on an alleged tendency for Inteplast
bags to tear and fail. In that regard, she points to evidence
of four other instances where Kroger bags tore,
causing the items in the bag to fall to the
ground.Inteplast responds that these four
incidents have to be viewed in the context of the total
number of bags sold to Kroger: 9.7 billion Inteplast
bags between January 1, 2012 and December 31,
2018. In contrast, the only evidence as far as
the frequency, ...