Larroquette v. Cardinal Health 200, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 17, 2006
October 3, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT

______________________

No. 05-30020

______________________

BRENDA LARROQUETTE,

Plaintiff-Appellant,

versus

CARDINAL HEALTH 200, INC., ET AL.,

Defendants

TOURO INFIRMARY; ANSELL HEALTHCARE PRODUCTS, INC.,

Defendants-Appellees.

___________________________________________________
Appeal from the United States District Court for
the Eastern District of Louisiana
___________________________________________________

Before JONES, Chief Judge, KING, and DENNIS, Circuit

Judges.

DENNIS, Circuit Judge:

This diversity jurisdiction case queries whether the

1
plaintiff, Brenda Larroquette, a Louisiana nurse

anesthetist who developed an allergy to latex gloves

after using them on the job for 24 years, improperly

joined her battery action against her former in-state

hospital employer, Touro Infirmary, with her products

liability actions against non-resident latex glove

manufacturers to defeat federal jurisdiction and removal.

The district court decided that the joinder was improper,

denied plaintiff’s remand motion, and dismissed her

action against Touro. We affirm. Joinder of a non-diverse

party is improper if there is no reasonable basis to

predict that the plaintiff might be able to recover

against that party. Louisiana statutes make workers’

compensation recovery an employee’s exclusive remedy for

a work-related injury caused by the employer’s conduct,

except when suit is based on an intentional tort. Under

this exception, “intent” means that the employer either

(1) consciously desired the physical result of its act;

or (2) knew, to a substantial certainty, that the result

would follow from its conduct. Here, there is no

reasonable basis to predict that Ms. Larroquette might be

2
able to recover against Touro for an intentional act of

battery. She alleges Touro caused her to develop latex

allergy by requiring her to work with latex gloves for

approximately four years. But she does not contend that

Touro desired to harm her. Nor does she allege facts that

support a finding that Touro knew to a substantial

certainty that the use of latex gloves would harm her.

Her allegations might support a claim of negligence or

recklessness, but they do not support a finding of

battery or any other unlawful intentional act.

Therefore, the plaintiff’s joinder of her battery action

against the non-diverse Touro Infirmary was improper, as

the district court correctly decided.

I. Facts Alleged

Essentially, Ms. Larroquette’s battery claim is

framed by the following pertinent allegations of facts

and tacit admissions of facts in her pleadings:

(1) Ms. Larroquette used latex gloves in her

work as a nurse anesthetist from 1979 until 2000

without symptoms of latex sensitization;

(2) Ms. Larroquette used latex gloves as a nurse

3
 anesthetist for Touro from 1997 to 2000 without

symptoms of latex sensitization;

(3) while working for Touro in 2000, she had an

anaphylactic reaction requiring emergency

hospital treatment, but her doctors did not

associate that reaction with latex;

(4) during her employment by Touro from 1997 to 2001,

Touro provided and required that its employees use

latex gloves, stocking its entire facility with them;

(5) Touro knew of medical studies showing that 8 to

12 percent of health care workers are susceptible to

latex sensitization, a precursor to a latex allergy;

(6) by October of 2000, 195 Touro employees had

developed some form of latex allergy;

(7) a national health organization, in addition to

two Touro staff members, urged Touro to take greater

precautions to prevent latex allergies;

(8) in 2003, after leaving Touro’s employ in 2001,

Ms. Larroquette suffered a second reaction and was

diagnosed with Type I Latex Allergy; and

(9) Ms. Larroquette’s complaint does not allege, and in

4
effect tacitly admits, that Touro did not have any

feasible means of predicting which employees would

develop latex sensitization.

II. Procedural History

In 2003, Ms. Larroquette filed suit in the Civil

District Court for the Parish of Orleans, Louisiana,

against: Touro Infirmary, a Louisiana non-profit hospital

corporation; Cardinal Health 200, Inc., and Ansell

Healthcare Products, Inc., foreign corporations

authorized to do business in Louisiana; Kimberly Clark

Corporation, and Johnson & Johnson Medical, Inc., foreign

corporations not licensed to do business in Louisiana;

and Touro’s insurers, Safety National Casualty

Corporation and St. Paul Fire and Marine Insurance

Company.

After setting forth the allegations and factual

contentions described in part I, ante, Ms. Larroquette’s

complaint asserts, as a legal conclusion without any

additional factual support, that because Touro required

its employees to use latex gloves, Touro had

substantially certain knowledge that harmful contact and

5
injury would result to Ms. Larroquette, and Touro thereby

committed the intentional tort of battery upon her.

Thus, she asserts that Touro and its liability insurers

are liable to her for damages.

Further, her complaint avers that the defendant

latex glove manufacturers made and distributed the latex

gloves she used from 1979 to 2003; that these gloves

proximately caused her latex allergy and other damages;

that the latex gloves were unreasonably dangerous in

design and because of inadequate warning; and that the

latex glove manufacturers are therefore liable to her

under the Louisiana Products Liability Act, LA. REV. STAT.

ANN. § 9:2800.51 et seq (1988).

Cardinal Health 200, Inc., removed the case to the

federal court, where it and the other defendants asserted

that Touro was improperly joined in an effort to defeat

diversity jurisdiction. Ms. Larroquette moved to remand

the case to state court, arguing that Touro was properly

joined, thus foreclosing diversity jurisdiction. The

district court accepted the defendants’ argument,

dismissed Touro from the case, and denied Ms.

6
Larroquette’s motion to remand.

III. Improper Joinder

As we observed in Smallwood v. Illinois Cent. R. Co.,

385 F.3d 568, 572 (5th Cir. 2004)(en banc):

The starting point for analyzing claims of improper
joinder must be the statutes authorizing removal to
federal court of cases filed in state court. The
federal removal statute, 28 U.S.C. § 1441(a), allows
for the removal of “any civil action brought in a
State court of which the district courts of the
United States have original jurisdiction.” Subsection
(b) specifies that suits arising under federal law
are removable without regard to the citizenship of
the parties; all other suits are removable “only if
none of the parties in interest properly joined and
served as defendants is a citizen of the State in
which such action is brought.” To remove a case
based on diversity, the diverse defendant must
demonstrate that all of the prerequisites of
diversity jurisdiction contained in 28 U.S.C. § 1332
are satisfied. Relatedly, a district court is
prohibited by statute from exercising jurisdiction
over a suit in which any party, by assignment or
otherwise, has been improperly or collusively joined
to manufacture federal diversity jurisdiction.

Smallwood, 385 F.3d at 572 (footnotes omitted).

Synthesizing these statutory provisions, we have

recognized two tests for establishing improper joinder:

“(1) actual fraud in the pleading of jurisdictional

facts, or (2) inability of the plaintiff to establish a

cause of action against the non-diverse party in state

7
court.” Id. at 573 (internal quotations and citation

omitted). We have further explained the second test as

an inquiry into “whether the defendant has demonstrated

that there is no possibility of recovery by the plaintiff

against an in-state defendant, which stated differently

means that there is no reasonable basis for the district

court to predict that the plaintiff might be able to

recover against an in-state defendant.” Id. at 573

(internal citation omitted). In the present case, only

the second test is pertinent.

In applying the second test, we ordinarily conduct a

Rule 12(b)(6)-type analysis, looking initially at the

allegations of the complaint to determine whether, under

state law, the complaint states a claim against the in-

state defendant. Id. In a few cases, in which a

plaintiff has stated a claim but has misstated or omitted

discrete facts, the district court may, in its

discretion, pierce the pleadings and conduct a summary

inquiry. Id. We have no need to pierce the pleadings

here.

IV. Louisiana Law: Workers’ Compensation & Battery

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 The Supreme Court of Louisiana, in Cole v. State

Department of Public Safety and Corrections, 825 So.2d

1134 (La. 2002), reaffirmed the following principles:

(1) under the provisions of Louisiana Revised Statutes §

23:1032, a worker is ordinarily limited to recovering

workers' compensation benefits rather than tort damages

for work-related injuries; and (2) Section 1032(B)

provides an exception to this exclusivity when a worker

is injured as a result of an employer's intentional act.

This exception allows tort recovery by an employee-

plaintiff who sustains damages as a result of an

intentional battery committed by a co-employee during the

course and scope of employment, i.e., the exclusivity

provisions of the Louisiana Workers' Compensation Act do

not apply in such a case. Id. at 1138-39 (internal

citations omitted).

The court made clear, however, that in this context

“intent” or “intentional” continues to mean that the

person “‘either (1) consciously desires the physical

result of his act, whatever the likelihood of that result

happening from his conduct; or (2) knows that the result

9
is substantially certain to follow from his conduct,

whatever his desire may be as to that result.’” Id. at

1140 (quoting Reeves v. Structural Preservation Systems,

731 So.2d 208, 211 (La. 1999) and Bazley v. Tortorich,

397 So.2d 475, 481 (La. 1981)).

The Cole court also reaffirmed the holding of Caudle

v. Betts, 512 So.2d 389 (La. 1987):

In a battery “the intention need not be malicious
nor need it be an intention to inflict actual damage,
but it is sufficient if the actor intends to inflict
either a harmful or offensive contact without the
other's consent[; and] that the defendant may be
liable although intending nothing more than a
good-natured practical joke, or honestly believing
that the act would not injure the plaintiff, or even
though seeking the plaintiff's own good.”

Id. at 1141(emphasis added). Nevertheless, the court

plainly did not relax the requirement that, in order to

recover from her employer for an intentional work-related

tort such as battery, an employee must prove that the

employer “either desired to bring about the physical

results of his act or believed they were substantially

certain to follow from what he did.” Bazley, 397 So.2d at

482.

V. Analysis

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 Applying the foregoing principles to the factual

allegations of Ms. Larroquette’s complaint, we conclude

that the joinder of the battery suit against Touro with

the products liability action against the foreign

corporations was improper. There is no reasonable basis

to predict that Ms. Larroquette might be able to recover

from Touro for intentionally causing her sensitization

and allergy to latex. Assuming without deciding that

Touro’s actions and policy in requiring its employees to

use latex gloves by stocking its facilities with only

that type of gloves was causally related to Ms.

Larroquette’s latex sensitization, her factual

contentions cannot reasonably support a finding that

Touro either desired to cause her harm or knew to a

substantial certainty that her latex sensitization or

allergy would result from its conduct.

According to her pleadings, Ms. Larroquette safely

used latex gloves in her work with other employers for 18

years before she was hired by Touro in 1997. Until the

third of her four years at Touro, the time at which she

suffered her first reaction, she had shown no sign of

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being susceptible of an allergy to latex. Even then, her

doctors failed to recognize her symptoms as being latex-

related. Thus, Touro evidently was not on notice of her

susceptibility to any sort of latex reaction until 2003,

well after she had gone to work for a different hospital.

Furthermore, Ms. Larroquette alleges facts that

preclude a finding that she or Touro knew with

substantial certainty that she was susceptible to latex

sensitization. For example, she alleges that Touro was

aware of medical studies indicating that 8 to 12 percent

of all healthcare workers exposed to latex in 1997 became

sensitized to it; conversely, it necessarily follows from

these studies, that 88 to 92 percent of all healthcare

workers exposed to latex in 1997 were not sensitized.

She alleges that by October of 2000, 195 Touro employees

had developed a latex allergy; she does not, however,

allege that this exceeded the 8 to 12 percent normal

latex allergy rate reported by the medical studies to

which Touro had access. Because her complaint neither

gives the time frame of the reported latex allergies nor

the size of the work force involved, we must assume that

12
this information, if available, would not have been

favorable to her case. Accordingly, her factual

contentions foreclose rather than support the proposition

that Touro knew to a substantial certainty that Ms.

Larroquette would develop an allergy from her exposure to

latex gloves and particles during her employment at Touro

from 1997 to 2001.

The procedural principles she relies upon do not lead

to a different conclusion. We certainly adhere to the

precept that “[a] Rule 12(b)(6) dismissal is not

warranted just because the district court ‘believes the

plaintiff is unlikely to prevail on the merits.’” United

States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355

F.3d 370, 376 (5th Cir. 2004) (quoting Clark v. Amoco

Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). We

further agree that “‘[e]ven if it seems ‘almost a

certainty to the court that the facts alleged cannot be

proved to support the legal claim,’ the claim may not be

dismissed so long as the complaint states a claim.” Id.

(quoting Clark, 794 F.2d at 970).

These precepts are corollaries of the principal

13
inquiry we undertake on a defendant’s motion under

Federal Rule of Civil Procedure 12(b)(6) to dismiss for

failure to state a claim upon which relief can be

granted. In that respect, it is well-settled that “a

complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S.

41, 45-46 (1957). This principle, of course, is very

similar to the test we apply to determine whether joinder

is improper in a diversity removal case, viz., whether

there is no reasonable basis to predict that plaintiff

might be able to recover against an in-state defendant.

Smallwood, 385 F.3d at 573.

Applications of those principles, precepts, and tests

to the instant case, however, do not assist Ms.

Larroquette in overcoming the defendants’ claims of

improper joinder. The facts she alleges simply do not

support her legal claim or provide a reasonable basis for

predicting that she might be able to recover against

Touro for the intentional tort of battery. We do not

14
doubt her ability to prove the facts she alleges, but

those factual contentions make it appear beyond doubt

that she can prove no set of facts in support of her

claim which would entitle her to relief against Touro.

In sum, the facts she alleges bear the earmarks only of

Touro’s negligence, or at most of its recklessness,

rather than of Touro’s desire to cause harm to Ms.

Larroquette or of its certain knowledge of future harm to

her.

Further, Ms. Larroquette attempts to argue by analogy

from Louisiana battery cases in which plaintiffs have

succeeded at trial or in opposing summary judgment under

the substantially certain knowledge theory. But her

exercise only serves to distinguish the present case from

those cases and confirm that there is no reasonable basis

to predict that she might be able to recover from Touro

in tort, rather than in workers’ compensation.

For example, in Swope v. Columbian Chemicals Co., 281

F.3d 185 (5th Cir. 2002), this court found that the

plaintiff had successfully opposed a motion for summary

judgment by presenting cogent evidence that the

15
employer’s officers knew full well that the plaintiff had

been required to inhale dangerous ozone on a regular

basis during his work and that ozone inhalation is

immediately organically damaging to all humans.1 In other

1
The plaintiffs provided a plethora of evidence, a small
smattering of which we describe here: (1) Columbian had been
provided Material Safety Data Sheets (MSDS) regarding ozone for
at least ten, and probably twenty, years prior to the plaintiff’s
disability, some of which provided this warning: “DANGER! OZONE
IS A HIGHLY TOXIC, IRRITANT GAS! MAY BE FATAL IF INHALED! MAY
CAUSE DAMAGE TO THE LUNGS, RESPIRATORY SYSTEM, AND EYES! DO NOT
GET IN EYES, ON SKIN, OR ON CLOTHING. DO NOT BREATHE GAS OR
VAPOR. USE ONLY WITH ADEQUATE VENTILATION. WASH THOROUGHLY AFTER
HANDLING. KEEP AWAY FROM COMBUSTIBLE MATERIALS.” The MSDS also
contained other warnings concerning long-term exposure to various
concentrations of ozone, including: scarring and thickening of
small air passages which could lead to chronic lung disease;
earlier and more severe symptoms for those currently suffering
from lung disease; possible increased susceptibility to lung
disease and infection; and uncontrollable coughing spasms; (2)
deposition testimony demonstrating Columbian’s knowledge that it
required its employees to be exposed without protective
equipment; (3) testimony of numerous witnesses that Columbian
knew that inhalation of ozone could be fatal to workers and
damage their lungs; (4) information Columbian had received from
an industrial hygienist who toured their plant, (a) warning it of
the danger of ozone damage to workers, namely the plant’s faulty
design/maintenance, (b) suggesting implementation of a
preventative maintenance program,(c) informing it of workers’
complaints of symptoms associated with ozone exposure, and (d)
warning it that chronic exposure decreases workers’ ability to
detect the ozone odor; (5) information Columbian had received
from an industrial hygiene consulting group, which advised
Columbian that excessive ozone concentrations were found and
would translate into excessive employee exposures; (6) testimony
that despite surveys and recommendations by the workers’ union,
Columbian did not purchase or install any ozone monitors until
after the plaintiff’s final inhalation; the monitors were later
removed because the alarms sounded so frequently (every time a
person walked in or out of the buildings); (7) detailed testimony
of repeated complaints by numerous workers to Columbian due to
frequent ozone exposure incidents with serious effects;

16
words, for purposes of testing the summary judgment

motion, it could be reasonably inferred that the employer

knew to a substantial certainty that the plaintiff was

being injured by his employer-required ozone inhalation.

The operative facts alleged by Ms. Larroquette do not

rise to the level of intent, however; they merely tend to

establish that Touro knew that there was an 8 to 12

percent risk that Ms. Larroquette and its other

healthcare employees could develop latex reactions from

using latex gloves.

In Robinson v. North American Salt Co., 02-1869 (La.

App. 1st Cir. 6/27/03), 865 So.2d 98, the state court of

appeal decided that the jury could have reasonably

concluded that the employer knew that the employee’s

entanglement and crushing injury by a moving conveyor

belt was substantially certain to occur based on evidence

that: (1) the employee was required to chip rust away

from the conveyor frame 8 to 12 inches from an exposed,

(8)testimony of numerous witnesses regarding Columbian’s failure
to educate its workers on the effects of ozone exposure and its
lackadaisical attitude regarding the same. Swope v. Columbian
Chemicals Co., 281 F.3d 185, 197-201 (5th Cir. 2002).

17
moving conveyor belt while he was suspended in air in the

unstable bucket of a man lift; (2) the employer’s safety

policy prohibited making employees work near a conveyor

belt unless its power and mobility had been completely

shut down and locked out; (3) the plaintiff employee and

other employees specifically protested to the employer

that their being forced to perform rust chipping work so

near a moving conveyor belt was patently dangerous; and

(4) the employee’s expert mechanical engineer testified

that the plaintiff’s specific type of injury by

entanglement with the moving conveyor belt was

“inevitable” or “incapable of failing.” Id. at 105-08.

Here, unlike the statistical 8 to 12 percent risk of

latex sensitization based on somewhat removed medical

studies known to Ms. Larroquette’s employer, Mr.

Robinson’s employer and its project engineer were

intimately familiar with the open, obvious, and deadly

danger to which they deliberately exposed him for the

sake of avoiding the overhead of shutting down the salt

mine operations during the rust chipping.

Ms. Larroquette cites Caudle v. Betts, 512 So.2d 389

18
(La. 1987), although its seriously contested issue

involved the extent of damages rather than whether the

harmful or offensive contact was intentional. In Caudle,

the trial judge erroneously found after a bench trial

that no battery had occurred; that although the

employer’s CEO intended to electrically shock the

plaintiff, an employee, as a practical joke, he did not

intend to injure him beyond a momentary, unpleasant jolt;

and, further, that the serious injury to the employee's

occipital nerve which resulted was neither foreseeable

nor intentional.2 The Louisiana Supreme Court reversed

and explained: “It is undisputed that when Mr. Betts

shocked the employee, Mr. Caudle, with the condenser, he

intended the contact to be offensive and at least

slightly painful or harmful. The fact that he did so as

a practical joke and did not intend to inflict actual

damage does not render him immune from liability.”

2
As explained by an eminent Louisiana scholar when
discussing Caudle, “The trial judge found that defendant intended
to shock plaintiff, but did not intend to injure him beyond a
passing, relatively minor electric shock. In other words, he
intended the act and probably the offensive consequences, but not
the unforeseen harmful consequences.” Wex S. Malone & H. Alston
Johnson III, 14 Louisiana Civil Law Treatise-Workers’
Compensation, § 365 (4th ed. 2002).

19
Caudle, 512 So. 2d at 392.3 Ms. Larroquette, on the other

hand, does not allege that Touro knowingly or

purposefully acted to harm her, and she fails to allege

facts amounting to a reasonable basis to predict that she

might recover in tort against Touro.

Finally, in Abney v. Exxon Corp., 98-0911 (La. App.

1st Cir. 9/24/99), 755 So.2d 283, the court of appeal

affirmed the trial court’s finding that the employer

committed intentional torts upon four welder employees.

The employees testified that they were required to weld

sheets of stainless steel to the inside surface of a

fractionation tower while being exposed to known human

carcinogens without protective equipment. They became ill

and eventually were either transferred or quit work

because of the working conditions on that particular job.

Before doing so, the employees suffered nose bleeds and

other symptoms every time they went into the tower, and

they informed the employer’s supervisory personnel of

3
Id. (“[E]very first-year tort student is well versed in
the rule of the ‘eggshell skull’ plaintiff, and his right to
collect for even unexpected consequences of a relatively minor
contact. Thus the fact that the actor may not have intended the
full consequences of his action is of no significance.”).

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these problems. Ms. Larroquette’s exposure to the 8 to

12 percent risk of latex reaction or sensitization did

not produce any symptoms that either she or her doctors

identified as latex related until she experienced her

second reaction in 2003, some two years after leaving

Touro’s employ.

CONCLUSION

For these reasons, the judgment of the district court

denying the plaintiff’s motion to remand and dismissing

her action, after concluding that the joinder was

improper, is AFFIRMED.

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