IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-40133
(Summary Calendar)
_________________________
CHARLES MACDONALD and
WINONA MACDONALD,
Plaintiffs-Appellants,
STATE OF LOUISIANA, through
the Department of Transportation
and Development
Intervenor-Plaintiff-Appellant,
versus
MONSANTO COMPANY, ET AL.,
Defendants,
DOW CHEMICAL COMPANY,
Defendant-Appellee.
____________________________________________________
Appeal from United States District Court
from the Eastern District of Texas
(1:91-CV-162)
__________________________________________________
September 13, 1995
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
This is a diversity case involving a products liability claim
for personal injuries allegedly resulting from the use of an
herbicide manufactured by Dow. Plaintiffs' petition listed
numerous bases for recovery under a products liability theory.
Because we find that plaintiffs failed to establish that any of its
claims warranted trial on the merits, we affirm the district
court's entry of summary judgment in favor of Dow.
I.
This is our second occasion to address the dispute between the
parties in this case. In MacDonald v. Monsanto, 27 F.3d 1021 (5th
Cir. 1994) (MacDonald I), we reversed the district court's denial
of the motion for summary judgment filed by Dow and Chevron1 as to
any of plaintiffs' claims which related to labeling requirements
and the failure to warn, because we concluded that such claims are
preempted by the Federal Insecticide, Fungicide and Rodenticide Act
("FIFRA"), 7 U.S.C. §§ 136-136y. We rendered summary judgment in
favor of Dow and Chevron as to these issues and remanded the case.
Subsequently, Dow brought another motion for summary judgment
as to the remaining claims against it, arguing, inter alia, that
plaintiffs' remaining claims are not actionable under the Louisiana
Products Liability Act ("LPLA"), La.R.S. 9:2800.51 et seq.)2 or
under pre-LPLA law.
1
Chevron was dismissed from the case pursuant to plaintiffs'
motion to nonsuit.
2
Although plaintiffs' suit originally was filed in Texas state
court and then removed to federal district court in Texas on the
basis of diversity, the parties agree that Louisiana law is
applicable to the case, presumably because the alleged exposure to
the herbicide occurred in Louisiana.
II.
The standard of review for a summary judgment is well settled.
We review the record de novo to ascertain whether any genuine issue
exists as to any material fact and, upon finding none, to ascertain
whether the moving party is entitled to a judgment as a matter of
law. Fed.R.Civ.P.56(c); Miles v. American Tel. & Tel. Co., 703
F. 2d 193 (5th Cir. 1983). Without weighing the evidence,
assessing its probative value, or resolving any factual disputes,
id., we merely search the record for resolution-determinative
factual disputes. Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th
Cir. 1980). We review district court determinations of state law
de novo. Salve Regina College v. Russell, ___U.S. ___, 111 S.Ct.
1217, 113 L.Ed.2d 190 (1991).
III.
The LPLA expressly states at Section 2800.52 that the Act
establishes the exclusive theories of liability for manufacturers
for damage caused by their products. Thus, in order to recover
under the LPLA, a plaintiff is limited to the distinct theories of
recovery enumerated in the Act.
The only claims forwarded by plaintiffs which reasonably could
be construed to have survived MacDonald I are (1) the failure to
test properly, (2) the failure to provide safety equipment or
devices, and (3) the claim that the product was unreasonably
dangerous. Dow's position was that plaintiffs' products liability
claims regarding the failure to test, failure to equip, and the
3
unreasonably dangerous nature of the product did not fall within
the purview of the LPLA. The LPLA does not recognize a cause of
action for failure to test or failure to equip, except insofar as
the failure to test or equip renders the product unreasonably
dangerous. Under the LPLA, in order to maintain an action against
a manufacturer for damages resulting from an unreasonably dangerous
product, a plaintiff must show that either (1) the product is
unreasonably dangerous in construction or composition; (2) the
product is unreasonably dangerous in design; (3) the product is
unreasonably dangerous due to inadequate warnings; (4) the product
is unreasonably dangerous because it does not conform to an express
warranty of the manufacturer. See La. R.S. 9:2800.54.
Our opinion in MacDonald I renders the part of the statute
pertaining to inadequate warnings inapplicable in this case. There
has been no allegation by plaintiff that the product did not
conform to an express warranty. Thus, to recover under the LPLA
due to the unreasonably dangerous nature of the product, in this
case plaintiffs would have to show that the product is unreasonably
dangerous in construction or composition or that it is unreasonably
dangerous in design. In order to make out a claim that a product
was unreasonably dangerous in construction or composition, the
plaintiff would have to prove that 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. See La.R.S. 9:2800.55.
There has been no allegation that the herbicide 2,4-D allegedly
4
manufactured by Dow and used by plaintiff was defective because it
differed from other 2,4-D manufactured by Dow. Thus, this theory
of recovery is not available to plaintiffs.
The final theory of recovery under the LPLA upon which
plaintiffs could arguably rely is that the product was unreasonably
dangerous in design. Under the LPLA, a plaintiff cannot recover on
the basis that a product is unreasonably dangerous in design unless
he can prove that, at the time the product left the manufacturer's
control, there existed an alternative design for the product that
was capable of preventing the claimant's damage. Dow argued in its
motion for summary judgment that 2,4-D is a distinct chemical
composition, and that any alternative design for it would create an
altogether different chemical. Thus, Dow argued that it would be
impossible for plaintiffs to present any alternative design for
2,4-D. With all the theories of recovery under the LPLA having
been eliminated, Dow contended that plaintiffs therefore could not
prove that the product was unreasonably dangerous under the LPLA.
In its motion for summary judgment, Dow presented alternative
arguments in the event that the LPLA was deemed inapplicable by the
district court. As noted above, the applicability of the LPLA is
in dispute because some of the alleged exposure to the herbicide
occurred prior to the effective date of the Act, and some of it
occurred subsequent to the effective date of the Act.
With regard to the allegation that Dow failed to adequately
test its product, Dow first argued that even under pre-LPLA law
5
there was no independent action for failure to test a product.3
Moreover, Dow claimed that plaintiffs had presented no competent
summary judgment evidence that a test exists which should have been
performed which would have produced identifiable results. Dow
pointed out that plaintiffs had acknowledged in their answers to
interrogatories that Dow had not violated any industry standard.
Dow also presented summary judgment evidence showing that Dow
conducted extensive tests on 2,4-D, including tests involving
neurotoxicity and polyneuropathy.4
As to plaintiffs' allegation that Dow failed to properly equip
its product with proper safety equipment or devices, Dow pointed
out that MacDonald admitted he had been provided protective eye
wear, a respirator, a protective apron, and rubber gloves.
Plaintiffs did not identify what particular equipment or devices
should have been supplied to MacDonald and were not, nor have they
shown that the failure to furnish such devices or equipment was a
proximate cause of damages. Again, Dow also pointed out that
plaintiffs have made no allegation that Dow violated any industry
standard.
3
Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115
(La. 1986), the leading pre-LPLA products liability case, limited
its consideration of the duty to test to theories based upon design
defect and a manufacturer's duty to warn. Thus, even under pre-Act
law, the failure to properly test must result in either a defect or
a failure to warn, and a plaintiff must proceed under one of these
theories. Accordingly, the failure to test per se does not give
rise to a cause of action except insofar as it renders the product
unreasonably dangerous.
4
These tests relate to the physical injuries which McDonald
alleges he suffered.
6
With regard to the claim that the product was unreasonably
dangerous in nature, Dow argued that, even under pre-LPLA law,
plaintiffs would have to prove that the product was unreasonably
dangerous per se, unreasonably dangerous in construction or
composition, unreasonably dangerous due to inadequate warnings, or
unreasonably dangerous because of its design. Halphen v. Johns-
Manville, supra, 484 So.2d at 115. Plaintiffs did not plead that
the product was unreasonably dangerous per se.5 Moreover, as
discussed above, they have not alleged that this 2,4-D deviated
from other formulations of the product manufactured by Dow and was
thus unreasonably dangerous in composition; thus, even under pre-
LPLA law, Dow contended that these theories of recovery were not
available to plaintiffs. Thus, Dow maintained that plaintiffs were
limited under pre-LPLA law, just as they would be limited under the
LPLA, to a claim that the product was defective in design. Under
the pre-LPLA law in a defective design case, plaintiffs would have
to prove that there was a feasible way to produce the product with
less harmful consequences. Id. Dow maintained that plaintiffs
have adduced no summary judgment to support such an allegation.
As an additional basis for summary judgment, Dow included in
its motion a detailed discussion of its allegation that plaintiffs
have failed to prove that MacDonald was exposed to Dow's 2,4-D.
The Louisiana Department of Transportation, for whom MacDonald
5
The term "unreasonably dangerous per se" was somewhat of a
term of art under pre-LPLA law. Certain products, by their very
nature, were deemed by the courts to be unreasonably dangerous per
se. No Louisiana court has ever deemed the herbicide 2,4-D
unreasonably dangerous per se.
7
worked when he was allegedly exposed to 2,4-D, purchased product
made by several different manufacturers during the relevant time
periods. Thus, Dow maintained that plaintiffs could not link Dow
to the 2,4-D to which MacDonald was exposed. A threshold inquiry
in any products liability case is that the product was indeed
manufactured by the defendant manufacturer. Dow maintained that
Louisiana has yet to adopt the "market share" theory of liability
that has been recognized in other jurisdictions, which would allow
recovery even in the absence of specific proof that a particular
manufacturer manufactured the product which injured the plaintiff.
Plaintiffs' response to Dow's motion for summary judgment
consisted of only three and a quarter pages and wholly did not
address many of the contentions raised by Dow. Plaintiffs' relied
upon a Fourth Circuit case, Worm v. American Cyanamid Co., 5 F.3d
744, 749 (4th Cir. 1993), and Williams v. State, 640 So. 2d 365,
368 (La. 1st Cir. 1994) for the proposition that its claims for
negligent testing, formulation, and manufacture are not preempted
by FIFRA. However, plaintiffs' response begged the question of
whether their claims could survive summary judgment. Moreover,
plaintiffs did not even argue, much less produce any competent
summary judgment evidence, to establish that under Louisiana law
their claims could survive a summary judgment motion. For example,
as Dow pointed out, plaintiffs have not pointed to a particular
test which was done improperly or which was not done on the
product, and which would have produced results which would have
prevented plaintiffs' injuries. Also, as to plaintiffs' claims for
8
failure to equip, plaintiffs feebly responded merely that the
failure to equip or provide safety mechanisms would be actionable
under pre-LPLA law, without citing any authority. Plaintiffs did
not forward any summary judgment evidence to indicate what safety
measures or equipment Dow should have provided but did not. Under
the pre-LPLA law and the LPLA itself, in a defective design case6,
the plaintiff must show either that there was a feasible way to
market the product with less harmful consequences (under pre-LPLA
law) or that an alternative design actually already existed at the
time the product left the manufacturer's control (under the LPLA).
In their response to Dow's motion for summary judgment, plaintiffs
did not provide even a scintilla of argument, much less evidence,
illustrating how they contend the product could have been
manufactured to make it less dangerous, nor did they even describe
or present evidence as to how they contend the product caused the
plaintiffs' injuries.
Finally, in their response to the motion for summary judgment,
plaintiffs did respond to Dow's allegations that the LPLA applied
to this case and that plaintiffs could not trace the 2,4-D used by
MacDonald to Dow. They pointed out, using Dow's own summary
judgment evidence, that the LPLA might not apply because some of
the herbicide spraying occurred prior to the effective date of the
LPLA. They also attempted to trace sales of Dow's product to Bel
6
As alluded to above, plaintiffs' claims that the herbicide
lacked the necessary safety devices or equipment to make it safe
for use is tantamount to a claim that the product, as sold, was not
designed properly.
9
Chemical, who in turned sold product to the Louisiana Department of
Transportation and Development, where MacDonald was exposed to 2,4-
D.
The district court granted Dow's motion for summary judgment
as to all of plaintiffs' remaining claims, without giving reasons.
Thus, this Court cannot discern whether the motion was granted due
to plaintiffs' failure to trace the product back to Dow or because
plaintiffs did not forward competent summary judgment evidence to
establish that there are genuine issues of material fact
surrounding their claims which would have entitled them to trial on
the merits.
Plaintiffs have appealed the grant of summary judgment, filing
a four and a half page brief to this Court in a case in which the
record comprises nearly a thousand pages. Plaintiffs' brief merely
revisits the issue pertaining to linking the product to Dow and the
issue of the applicability of the LPLA. The brief also contains a
few vague assertions regarding plaintiffs' claims for failure to
test and failure to equip. For example, plaintiffs again claim
that claims for negligent testing, formulation, and manufacture are
not preempted by FIFRA, citing Worm, supra, and Williams, supra,
which cited Worm. Plaintiffs' assertions beg the question of what
genuine issue of material fact exists surrounding its claims of
failure to test, failure to equip, and design defect. Plaintiffs
have failed to adduce any summary judgment evidence to even suggest
that their claims are viable under either pre-LPLA law or the LPLA.
Even in their brief to this court, plaintiffs continue to resort to
10
such vague allegations such as "a fact issue exists that if
Appellee had provided some type of safety equipment then this
incident could have been avoided (emphasis added)." Plaintiffs
adduced no evidence or argument to enable this court to even
remotely discern what safety equipment or device plaintiffs contend
might have prevented plaintiffs' injuries. The same holds true for
plaintiffs' allegations concerning the failure to test and the
unreasonably dangerous nature of the product. Moreover, plaintiffs
did not even attempt to brief these latter issues or even try to
explain to this court what tests Dow should have conducted on the
product, or how Dow might have manufactured an herbicide which
would be less dangerous than 2,4-D. On that basis alone, we could
consider the issues waived. See Yohey v. Collins, 985 F.2d 222,
224 (5th Cir. 1993).
IV.
In any event, we conclude that summary judgment was properly
granted in favor of Dow as to all claims surviving MacDonald I,
because plaintiffs failed to adduce any summary judgment evidence
in its response to Dow's motion for summary judgment which would
establish that its claims warranted trial on the merits.
Federal Rule of Civil Procedure 56(e) provides, in pertinent
part:
When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse
party's pleading, but the adverse party's response, by
affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine
issue for trial. If the adverse party does not so
11
respond, summary judgment, if appropriate, shall be
entered against the adverse party (emphasis added).
Even if we were to resolve in plaintiffs' favor the issue of
the applicability of the LPLA and the plaintiffs' ability to link
Dow to the product to which MacDonald was exposed, we would be
unable and unwilling to reverse the summary judgment granted in
favor of Dow because plaintiffs have for the most part rested upon
the bald, vague allegations in their pleadings. Their response to
Dow's motion for summary judgment is completely devoid of any
evidence which would permit their claims of negligent testing,
formulation and manufacture of the herbicide to survive summary
judgment, under either pre-LPLA or post-LPLA law. Accordingly,
under Rule 56(e), the district court correctly entered summary
judgment in favor of Dow. It is not necessary that we reach the
alternative argument forwarded by Dow regarding plaintiffs' failure
to link Dow to the product to which MacDonald was exposed. Our
determination that plaintiffs' claims cannot survive summary
judgment under either pre-LPLA law or the LPLA itself pretermits
any further discussion of the applicability of the LPLA. AFFIRMED.
12