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Savoy v. Kroger Co.

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

January 7, 2020

GERTRUDE SAVOY
v.
KROGER CO ET AL

          KAY MAGISTRATE JUDGE.

          REASONS FOR DECISION

          ROBERT R. SUMMERHAYS UNITED STATES DISTRICT JUDGE.

         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) 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.

         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] As she attempted to lift the bag, the plastic bag tore causing the bottles of tea to fall on Plaintiffs 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 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.

         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 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.

         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.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)).

         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 plaintiffs 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 an incident 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 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.[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 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."[21]

         Plaintiff 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.

         3. Unreasonably Dangerous in Construction or Composition.

         Under the LPLA,

[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 manufacturer.[22]

         Inteplast 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.

         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.[23] 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 liability cases:

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)).[24]

         The 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.[25] 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.

         4. Inadequate Warning.

         To 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."[26] 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.[27] A manufacturer's duty to warn, however, does not include warnings concerning dangers that are, or should be, "obvious" to an ordinary user.[28]

         Here, 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.[29]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."[30] 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.[31] Plaintiff posits no evidence of any other alternative type of warning or instruction that would have prevented her injuries.[32]

         Second, 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."[33] 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.[34] 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.[35]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.[36] In contrast, the only evidence as far as the frequency, ...


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