Marchesani v. Pellerin-Milnor Corp.

REVISED OCTOBER 4, 2001

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________

No. 00-30353
__________________________

DENNIS MARCHESANI; TRIXIE TINA MARCHESANI,
Plaintiffs-Appellants,

SAFETY NATIONAL CASUALTY CORPORATION;
CRESCENT HOSIERY MILLS,
Intervenors-Appellants,

versus

PELLERIN-MILNOR CORPORATION,
Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court
For the Eastern District of Louisiana
___________________________________________________
October 3, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:

In this diversity case, we are called on to apply Louisiana’s

choice of law rules to determine whether Tennessee’s ten-year

statute of repose for product liability claims bars Plaintiffs-

Appellants Dennis and Trixie Tina Marchesani’s product liability

suit in the district court situated in Louisiana against Defendant-

Appellant Pellerin-Milnor Corporation (“Milnor”) as manufacturer of

the offending product in question. Left to our own devices after

the Louisiana Supreme Court declined to accept our certified
question,1 we conclude that Louisiana’s choice of law rules require

the Louisiana-based district court to apply Louisiana’s own

prescriptive and peremptive rules, under which the Marchesanis’

claims are not time-barred. We therefore reverse the district

court’s grant of summary judgment in favor of Milnor and remand for

further proceedings consistent with this opinion.

I.

FACTS AND PROCEEDINGS

Dennis Marchesani, a domiciliary of Tennessee, was employed by

Crescent Hosiery Mills at its facility in Niota, Tennessee. On

August 25, 1998, while in the course of his employment, Marchesani

was walking past a pressurized apparel dye machine manufactured by

Milnor, a Louisiana corporation, when “suddenly and without

warning, the door of the machine blew open, releasing hot, caustic

chemicals and steam throughout the immediate area,” resulting in

Marchesani’s alleged injuries. All of Marchesani’s medical

treatment as a result of the accident has taken place in Tennessee,

and he has been receiving workman’s compensation benefits in

Tennessee.

Marchesani and his wife, Trixie Tina Marchesani, filed a

products liability suit against Milnor in federal district court

for the Eastern District of Louisiana, alleging negligent

1
See Marchesani v. Pellerin-Milnor Corp., 248 F.3d 423 (5th
Cir. 2001), certification declined, No. 2001-CQ-1169, —— So. 2d.——,
available at 2001 WL 798209 (La. June 29, 2001).

2
manufacture and design of the pressurized dye machine. Marchesani

alleges that his injuries were caused by a design defect that

permits the machine to be operated even though the door is not

completely secure. The suit was timely filed under Louisiana law.

Milnor denied liability and moved for summary judgment on the

ground that Tennessee law, which restricts products liability suits

to claims brought within ten years following the date the product

was first purchased for use,2 applies to the Marchesanis’ claims,

making their action time-barred. The Marchesanis countered that

Louisiana law should govern their action, and in the alternative

that the Civil Code’s choice of law articles on prescription

(statutes of limitation) and peremption (statutes of repose)3

require that Louisiana’s own law of prescription, under which the

Marchesanis’ claims are timely filed, should govern in this

2
Tenn. Code Ann. § 29-28-103 (“Any action against a
manufacturer or seller of a product for injury to person or
property caused by its defective or unreasonably dangerous
condition must be brought within . . . ten (10) years from the date
on which the product was first purchased for use or
consumption[.]”).
3
La. Civ. Code Ann. art. 5349 provides:

When the substantive law of another state would be
applicable to the merits of an action brought in this
state, the prescription and peremption law of this state
applies, except . . . [i]f the action is not barred under
the law of this state, the action shall be maintained
unless [1] it would be barred in the state whose law is
applicable to the merits and [2] maintenance of the
action in this state is not warranted by [a] the policies
of this state and its relationship to the parties or the
dispute nor by [b] any compelling considerations of
remedial justice.

3
instance. Without mentioning these choice of law articles, the

district court granted Milnor’s motion for summary judgment,

reasoning that (1) Tennessee’s substantive law applies to the

merits of the Marchesanis’ claim, (2) Tennessee’s products

liability statute of repose is substantive, ergo (3) the

Marchesanis’ action is time-barred.4 The Marchesanis then

perfected this appeal.

II.

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo, applying the

same standard as the district court.5 Likewise, we review de novo

a district court’s determination of state law,6 granting no

deference to that court’s interpretation.7

4
As an initial matter, we note our disagreement with the
district court’s determination that our decision in Allison v. ITE
Imperial Corp., 928 F.2d 137 (5th Cir. 1991), controls this case.
Allison was decided under Mississippi’s significantly different
choice of law rules which provide that when, as here, the pertinent
contacts do not favor a particular state, the law of the state
where the injury occurred should control, unless other
considerations point to a “more significant relationship” with
another state. See id. at 143 (internal punctuation omitted)
(emphasis added). As Louisiana’s choice of law articles do not
follow this approach, Allison is inapposite to the analysis in the
instant case.
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
6
Allison, 928 F.2d at 139.
7
Salve Regina College v. Russell, 499 U.S. 225, 238 (1991).

4
B. Choice of Law Analysis

A federal court considering a diversity case that implicates

choice of laws must determine which state’s law applies by

following the choice of law rules of the forum state.8

Accordingly, Louisiana’s choice of law rules control our

determination of whether Louisiana or Tennessee law applies to the

Marchesanis’ product liability claims.

Article 3545 of the Louisiana Civil Code expressly addresses

choice-of-law questions in product liability cases.9 Under this

article, Louisiana law will be applied in such cases “(1) when the

injury was sustained in this state by a person domiciled or

residing in this state; or (2) when the product was manufactured,

produced, or acquired in this state and caused the injury either in

this state or in another state to a person domiciled in this

state.”10 As the Marchesanis neither reside nor are domiciled in

Louisiana, article 3545 is clearly inapplicable to the instant

case. Accordingly, we must turn to other articles of the Louisiana

Civil Code to ascertain the proper choice of law analysis for this

case.

1. Determining the Applicable State Law

8
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); Klaxon Co. v.
Stentor Electric Mfg. Co., 313 U.S. 487 (1941); Allison, 928 F.2d
at 138.
9
See La. Civ. Code Ann. art. 3545.
10
Id.

5
 As an initial matter, we must decide whether the law of

Tennessee or Louisiana governs. Not surprisingly, the parties

vigorously dispute which article of the Louisiana Civil Code

governs the choice of law question before us. The Marchesanis

argue that article 3549, which relates specifically to issues of

prescription and peremption, should be applied to determine whether

Tennessee’s statute of repose bars their claims. In contrast,

Milnor contends that article 3549 is not pertinent because

Tennessee’s statute of repose is not procedural but substantive,

and is an essential and inseparable part of Tennessee’s product

liability law. We will address these arguments in turn.

The text of article 3549 provides:

When the substantive law of this state would be
applicable to the merits of an action brought in
this state, the prescription and preemption law of
this state applies. When the substantive law of
another state would be applicable to the merits of
an action brought in this state, the prescription
and peremption law of this state applies, except .
. . [i]f the action is not barred under the law of
this state, the action shall be maintained unless
[1] it would be barred in the state whose law is
applicable to the merits and [2] maintenance of the
action in this state is not warranted by the
policies of this state and its relationship to the
parties or the dispute nor by any compelling
considerations of remedial justice.11

As the italicized portions of this article make plain, we must

first decide which state’s law applies to the merits before

resorting to the more specific provisions of article 3549.

Accordingly, we must apply the general choice of law rules

11
La. Civ. Code Ann. art. 3549 (emphasis added).

6
applicable to tort claims, which are set forth in article 3542, to

determine whether the law of Tennessee or Louisiana applies to the

merits of the Marchesanis’ claims.

Article 3542 provides:

[A]n issue of delictual or quasi- delictual
obligations is governed by the law of the state
whose policies would be most seriously impaired if
its law were not applied to that issue. That state
is determined by evaluating the strength and
pertinence of the relevant policies of the involved
states in the light of: (1) the pertinent contacts
of each state to the parties and the events giving
rise to the dispute, including the place of conduct
and injury, the domicile, habitual residence, or
place of business of the parties, and the state in
which the relationship, if any, between the parties
was centered; and (2) the policies referred to in
Article 3515, as well as the policies of deterring
wrongful conduct and of repairing the consequences
of injurious acts.12

Article 3515, in turn, is the “general and residual rule” that

guides and informs Louisiana’s approach to choice of law and is

closely paralleled by article 3542. Article 3515 provides that,

except as otherwise specified in the part of the Civil Code

addressing choice of law,

an issue in a case having contacts with other
states is governed by the law of the state whose
policies would be most seriously impaired if its
law were not applied to that issue. That state is
determined by evaluating the strength and
pertinence of the relevant policies of all involved
states in the light of: (1) the relationship of
each state to the parties and the dispute; and (2)
the policies and needs of the interstate and
international systems, including the policies of
upholding the justified expectations of parties and
of minimizing the adverse consequences that might

12
La. Civ. Code Ann. art. 3542.

7
 follow from subjecting a party to the law of more
than one state.13

In sum, the choice of law methodology contained in Louisiana’s

Civil Code requires that, in sequence, we (1) examine the pertinent

contacts of each state with respect to “the particular issue as to

which there exists an actual conflict of laws”14 (so as to determine

the “relationship of each state to the parties and the dispute”),

(2) identify the various state policies that might be implicated in

the choice of law, and then (3) evaluate the “strength and

pertinence” of these policies in light of “the relationship of each

state to the parties and the dispute,” and in light of “the

policies and needs of the interstate and international systems” (so

as to resolve the ultimate question of which state’s policies would

be “most seriously impaired if its law were not applied to that

issue”).15 We proceed now to do just that.

2. Examination of Pertinent Contacts

Article 3542 (the general choice of law provision for tort

claims) instructs us to examine “the pertinent contacts of each

state to the parties and the events giving rise to the dispute,

including [1] the place of conduct and injury, [2] the domicile,

habitual residence, or place of business of the parties, and [3]

the state in which the relationship, if any, between the parties

13
La. Civ. Code Ann. art. 3515.
14
See id., Revision Comment (d).
15
See, generally, id., Revision Comments.

8
was centered.”16 The district court correctly concluded that

Louisiana and Tennessee have an equal number of such contacts

because (1) the place of “conduct,” i.e., the “alleged events

giving rise to the accident,” is Louisiana, but the place of

“injury” is Tennessee, and (2) the Marchesanis are domiciled in

Tennessee, but Milnor is incorporated and manufactures its products

in Louisiana. Accordingly, the pertinent contacts in this case

favor neither Louisiana nor Tennessee law.

3. Identification of Pertinent Policies

Articles 3515 and 3542, taken together, enumerate four

policies that must be considered in the choice of law analysis with

respect to tort claims: (1) upholding the justified expectations of

parties,17 (2) minimizing the adverse consequences that might follow

16
La. Civ. Code Ann. art. 3542 (emphasis added). The district
court did not expressly consider the third factor, “the state in
which the relationship, if any, between the parties was centered”
(emphasis added). In Allison, the district court, applying
Mississippi’s choice of law rules, decided that when, as in the
instant case, there is no preexisting relationship between the
parties in a products liability case, the state in which the
injured party came into contact with the product of the defendant
is the “center of the relationship.” See Allison, 928 F.2d at 142.
On appeal, however, we expressed doubts about the “helpfulness” of
the “center of the relationship” test in the context of a product
liability action (as opposed, say, to the context of whether to
apply guest statutes in automobile accident cases), because “the
center of the relationship will always be identical to the place of
injury.” Id. at n.5. We went on to note that the language of the
Mississippi choice of law provision at issue in that case “makes
allowance for the possibility that there will be no relationship
between the parties by its use of the phrase ‘if any.’” Id.
Although admittedly dicta, this language (bolstered by the use of
“if any” in article 3542) suggests that the third factor is
likewise inapplicable to the instant case.
17
La. Civ. Code Ann. art. 3515.

9
from subjecting a party to the law of more than one state,18 (3)

deterring wrongful conduct,19 and (4) repairing the consequences of

injurious acts.20 In addition, Milnor suggests that the following

policies should also play a role in our analysis: (5)

discouragement of forum shopping and (6) interstate uniformity of

result.21

4. Evaluation of the Policies’ “Strength and Pertinence”

We begin the evaluation by emphasizing that under Louisiana’s

choice of law rules, the ultimate question is not which state has

the most “significant interest” in the dispute, but rather which

state’s policies would be most seriously impaired if its law were

not applied to the issue, i.e., the “state which, in light of its

relationship to the parties and the dispute and its policies

rendered pertinent by that relationship, would bear the most

serious legal, social, economic, and other consequences if its law

were not applied.”22 Furthermore, the Louisiana legislature has

18
Id.
19
La. Civ. Code Ann. art. 3542.
20
Id.
21
See also La. Civ. Code Ann. art. 3515, Revision Comment (c)
(noting that the policies of preventing forum shopping and favoring
interstate uniformity of result are “universally acknowledged”).
22
See id., Revision Comment (b) (explicitly rejecting the
“governmental interest” approach). Accordingly, the district
court’s reliance on Allison’s choice of law analysis is misplaced
to the extent that the Mississippi choice of law rules at issue in
that case provided that when contacts do not favor a particular
state, the law of the state where the injury occurred should
control, unless other considerations point to a “more significant

10
made clear that “[w]hat is to be evaluated is not the wisdom or

goodness of a state policy, either in the abstract or vis-à-vis the

policy of another state, but rather the ‘strength and pertinence’

of this policy in space.”23

With these precepts in mind, we turn now to consider the

“strength and pertinence” of the various policies identified in

this case. At first blush, the policies of (1) upholding the

justified expectations of parties, (2) minimizing the adverse

consequences that might follow from subjecting a party to the law

of more than one state, (3) discouraging forum shopping, and (4)

favoring interstate uniformity of result, do not appear

sufficiently implicated in this case to weigh very heavily in our

analysis. Certainly, a Louisiana corporation engaged in

manufacturing products in Louisiana should not be surprised at

being subjected to Louisiana’s product liability law; for that

matter, Tennessee citizens injured in Tennessee have no reason to

expect that any law other than that of Tennessee will govern their

claims. Neither should we be overly concerned in this case with

minimizing the adverse consequences that might flow from subjecting

a party to the law of more than one state when the party in

question is a manufacturer who, presumably, sells products across

relationship” with another state. See Allison, 928 F.2d at 143
(emphasis added). Under Louisiana’s choice of law rules, however,
we must focus our inquiry on determining which state’s policies
would be most seriously impaired by not applying that state’s law.
23
See La. Civ. Code Ann. art. 3515, Revision Comment (c).

11
the United States (and in fact is arguing for the application of

the law of another state). Likewise, although it is clear enough

that by filing suit in Louisiana the plaintiffs in this case have

sought out a forum where their claims are not time-barred, the

policy of discouraging forum shopping does not seem as intimately

implicated by a suit in which the forum chosen by the plaintiffs ——

however advantageous to their interests that forum may be —— is the

defendant’s state of incorporation and principal place of business

as well as the state in which the offending product was

manufactured and from which it was shipped.24 Neither does the

policy of favoring uniform interstate results seem to come much

into play, particularly given the lack of any “uniform” approach to

product liability law throughout the states (demonstrated by the

fact that only fifteen states have enacted product liability

statutes of repose like that adopted by Tennessee).

Accordingly, the policies specifically identified by

Louisiana’s own choice of law statute with respect to torts ——

deterring wrongful conduct and repairing the consequences of

injurious acts25 —— are the most “pertinent” to the choice of law

analysis in this case. The question we must answer, then, is which

24
In this respect, this case is further distinguishable from
Allison, in which the defendant was a Delaware corporation; its
principal place of business was in Illinois, and its predecessor in
interest had manufactured the product in Pennsylvania; and the
plaintiffs were Mississippi residents who originally filed suit in
Mississippi state court on the basis of an injury that occurred in
Tennessee.
25
La. Civ. Code Ann. art. 3542.

12
state’s policies of deterrence and compensation with respect to

product liability claims would be most seriously impaired if its

law were not applied in the instant case.

Tennessee, for its part, enacted the comprehensive Tennessee

Products Liability Act26 (the “Act”), of which the ten-year statute

of repose is a component, in response to the rising costs of

responding to and defending product liability suits as well as the

associated increases in insurance premiums. Additionally, the Act

sought to provide certainty and finality as to the time within

which product manufacturers and sellers could be subjected to a

liability claim. Presumably, Tennessee was willing to incur higher

costs in terms of worker’s compensation claims in exchange for

providing manufacturers with certainty and consumers with

ostensibly lower product costs.

Louisiana, too, has a well-established policy of limiting the

time within which plaintiffs must come forward with their claims.

Louisiana’s prescriptive period for all tort claims, including

product liability claims, runs for only one year following the date

of the injury.27 Unlike Tennessee, however, Louisiana has not

chosen to enact a peremptive period as a means of effecting its

policies of certainty and finality with respect to product

liability claims. The two states in question, then, appear to have

26
Tenn. Code Ann. §§ 29-28-101 et seq.
27
La. Civ. Code Ann. art. 3492. Tennessee’s statute of
limitations for tort claims is the same. See Tenn. Code Ann. § 28-
3-104.

13
struck different bargains with respect to balancing, on one hand,

the goals of certainty and finality with, on the other hand, the

goals of deterrence and compensation.

Our task is most decidedly not to determine which state has

struck the better bargain, but rather to evaluate which state’s

general scheme would suffer more damage, i.e., which would be more

adversely affected, if its law were not applied. Asked as a

rhetorical question, would Tennessee’s comprehensive scheme of

product liability, which focuses on the date that the product is

first purchased for use, be more seriously impaired if Tennessee’s

statute of repose were not applied to this case involving Tennessee

residents, employers, and worker’s compensation payments than would

Louisiana’s scheme, which focuses on the date of the victim’s

injury, thereby affording a Louisiana manufacturer an “escape

hatch” that would not be available if the injury had occurred

either in Louisiana or to an individual domiciled in Louisiana?

Although the question is a close one, particularly given the

need to make a value judgment on such a slippery slope as public

policy, we agree initially with the district court that the law of

Tennessee applies to the merits of this case, although we arrive at

that conclusion by a somewhat different route. Unlike the district

court, which believed itself bound by our decision in Allison, we

do not see that case (which was decided under Mississippi’s

significantly different choice of law rules) as controlling here.

Rather, our independent analysis of the respective policy interests

14
that each state has in having its law applied to the merits of this

case leads us to conclude that it is Tennessee, with its more

comprehensive approach to product liability claims, whose policies

would be most seriously impaired if its law were not applied in

this instance.

C. Louisiana’s Choice of law Provision for Prescription
and Peremption

Our conclusion that the law of Tennessee applies to the merits

of the Marchesanis’ claims does not end the inquiry, however. The

Marchesanis contend that even if the law of Tennessee governs the

merits of their claims, Louisiana Civil Code Article 3549, which

applies with respect to both prescription and peremption, precludes

the application of Tennessee’s peremptive statute of repose to bar

their claims. Conversely, Milnor contends that article 3549 is

inapplicable to the instant case and, in the alternative, that

maintenance of this action in Louisiana is not warranted by

Louisiana policies or by any compelling considerations of remedial

justice.

As quoted above, article 3549 provides as follows:

When the substantive law of this state would be
applicable to the merits of an action brought in
this state, the prescription and preemption law of
this state applies. When the substantive law of
another state would be applicable to the merits of
an action brought in this state, the prescription
and peremption law of this state applies, except .
. . [i]f the action is not barred under the law of
this state, the action shall be maintained unless
[1] it would be barred in the state whose law is
applicable to the merits and [2] maintenance of the
action in this state is not warranted by the

15
 policies of this state and its relationship to the
parties or the dispute [3] nor by any compelling
considerations of remedial justice.28

For the purposes of article 3549, “peremption” —— defined by the

Louisiana Civil Code as “a period of time fixed by law for the

existence of a right, [which] [u]nless timely exercised . . . is

extinguished upon the expiration of the peremptive period”29 —— “is

treated as a species of liberative prescription.”30 Under Louisiana

law, then, if a statutory time limit bars the enforcement of a

substantive right or cause of action, it is prescriptive; if,

instead, the statutory time limit affects the very existence of the

right granted, i.e., terminates the cause of action, it is

peremptive.31 Furthermore, under Louisiana law, “when an ordinance

or statute creates a right of action and fixes the time in which to

commence the action, the time so fixed is an integral part of the

right created and is peremptive or substantive, as opposed to

28
La. Civ. Code Ann. art. 3549 (emphasis added).
29
La. Civ. Code Ann. art. 3458.
30
La. Civ. Code Ann. art. 3549, Revision Comment (a).
31
See Pounds v. Schori, 377 So.2d 1195, 1198 (La. 1980) (“Our
jurisprudence has long recognized a major distinction between a
statute of limitations (prescription) and a peremption. It has
been repeatedly held that prescription bars the remedy sought to be
enforced and terminates the right of access to the courts for
enforcement of the existing right. A peremptive statute, however,
totally destroys the previously existing right with the result
that, upon expiration of the prescribed period, a cause of action
or substantive right no longer exists to be enforced.”).

16
prescriptive or procedural.”32 Accordingly, there can be no real

question that, under either Tennessee or Louisiana law, Tennessee’s

statute of repose, which Louisiana would label “peremptive,” is

substantive rather than procedural.33 The procedural/substantive

dichotomy is immaterial to our inquiry today, however, because

Louisiana’s choice of law rules do not distinguish between

“substantive” and “procedural” statutory time limits, instead

treating peremption as a “species of prescription” for purposes of

choice of law analysis.34 In light of this clear directive, we have

no choice but to follow it to the inexorable conclusion that

Louisiana’s law of prescription, under which the Marchesanis’

claims are not time-barred, controls this case.

Article 3549 also provides, however, that notwithstanding the

fact that an action otherwise time-barred under the law of another

state can proceed under Louisiana’s law of prescription and

peremption, if “the maintenance of the action in [Louisiana] is not

warranted by the policies of [Louisiana] and its relationship to

the parties or the dispute nor by any compelling considerations of

32
Houston Industries, Inc. v. Fitch, 752 So.2d 974, 976 (La.
Ct. App. 2000) (writ denied).
33
See also Allison, 928 F.2d at 144 (“The parties do not
dispute that the Tennessee statute of repose is substantive. It is
not a simple statute of limitations and has been construed as being
substantive.”); Winsor v. Taylor, 118 So. 876, 880 (La. 1928)
(noting that “the so-called prescription by which tax titles are
quieted . . . has been more appropriately referred to as a statute
of repose, or peremption, rather than prescription”) (emphasis
added).
34
See La. Civ. Code Ann. art. 3549, Revision Comment (a).

17
remedial justice,”35 then the claim should not go forward in

Louisiana. Accordingly, Milnor attempts to benefit from this

statutory shield by arguing that even if a straightforward

application of article 3549 would otherwise permit the Marchesanis’

claims to advance under Louisiana’s law of prescription, the

maintenance of this action in Louisiana is not warranted either by

Louisiana’s policies or by any compelling considerations of

remedial justice.

Milnor’s reach, however, exceeds its grasp of article 3549's

high standards for displacing Louisiana’s law of presciption.

Article 3549 makes clear that its provisions “reaffirm. . . the

basic rule of the lex fori [law of the forum, here Louisiana] for

actions that have been filed timely under Louisiana prescription or

peremption law[;]” the rationale for this rule is to “promote[]

whatever substantive policies [Louisiana] has in not providing for

a shorter prescriptive period[.]”36 These substantive and

procedural policies are entitled to preference in a Louisiana court

“unless it is amply demonstrated that neither set of policies is

actually implicated in the particular case and that the opposing

substantive policies of another state, that of the lex causae [law

of the place of injury, here Tennessee], are implicated more

intimately.”37 Only when both requirements are satisfied may

35
See La. Civ. Code Ann. art. 3549.
36
Id., Revision Comment (g).
37
Id.

18
Louisiana law be displaced.38

Under the instant facts, it is difficult if not impossible to

maintain that the policies of deterrence, compensation, and

predictability underlying Louisiana law with respect to product

liability claims are not “actually implicated” in this case such

that applying Louisiana’s law of prescription is not warranted. We

reach this conclusion not by any imprudent attempt to divine

meaning from Louisiana’s legislative election not to enact a

product liability statute of repose of its own, but rather by

attending to the policy implications of what the Louisiana

legislature has done, which is to limit plaintiffs to one year

following the date of injury to bring their claims forward.

Likewise, we must also be mindful that in enacting choice of law

rules that privilege Louisiana’s own rules of prescription, the

legislature expressly declared that it did so to “preserve[] to the

plaintiff the opportunity to fully pursue his judicial remedies as

long as he does so within the time specified by the law of this

state.”39

Neither has the Louisiana legislature left us entirely bereft

of guidance as we attempt to navigate the murky waters of policy

analysis in our search to ascertain whether maintenance of the

Marchesanis’ action is “not warranted by the policies of

38
Id.
39
Id.

19
[Louisiana].” We are cautioned that “if none of the parties are

domiciled in this state and neither they nor their dispute are

related to this state in any other significant way,” then “the

policies of this state would not be served by imposing on its

overburdened courts the adjudication of a dispute which, but for

the existence of jurisdiction, is essentially a foreign dispute.”40

Such is not the case here, however, as the defendant manufacturer

is domiciled in Louisiana and the legislature has expressly noted

that “if the defendant is a Louisiana domiciliary, there would seem

to be less of a concern about forum shopping by the plaintiff and

less of an argument of unfair surprise by the defendant.”41

We are also instructed that “if the plaintiff is a Louisiana

domiciliary, then dismissing his action would deprive him of the

opportunity to litigate in the most convenient forum, and would

close to him the doors of the judicial system which he helps

sustain through his taxes.”42 In such a case, “dismissal . . .

might not be warranted in light of the policies of this state

derived from its relationship to the plaintiff.”43 Here, such

concerns are not implicated by the Tennessee plaintiffs, so yet

again we confront factors that would lead our analysis in opposite

directions. Even if both factors should point our analysis in the

40
Id., Revision Comment (i) (emphasis added).
41
Id.
42
Id.
43
Id.

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same direction, however, the Louisiana legislature has made clear

that the question whether maintenance of the action is warranted by

the policies of Louisiana “should be determined by the court by

examining all the circumstances surrounding the particular case”44

and not merely by a mechanical tabulation of factors.

Bearing all the foregoing in mind and remembering that time

bar is an affirmative defense, which here is advanced by Milnor, we

are convinced in the end that Milnor has failed to demonstrate

that, under all relevant circumstances, maintenance of this action

is not warranted by the policies of Louisiana. The plaintiffs in

this case, although residents of Tennessee, have neither slept on

their rights nor engaged in the kind of purely opportunistic forum

shopping that would raise concerns about burdening Louisiana courts

with entirely “foreign disputes” or surprising defendants unfairly.

To the contrary, the plaintiffs have filed suit in the state of the

defendant’s own incorporation and principal place of business,

which is also the state in which the allegedly defective product

was designed and manufactured. We can hardly say that the

maintenance of this action, timely brought under Louisiana’s law of

prescription against a Louisiana manufacturer, is not warranted ——

even mandated —— by the policies of Louisiana that underlie its own

long-standing policy decision to permit plaintiffs allegedly

injured by a defective product to bring a cause of action within

one year following that injury.

44
Id.

21
 We are likewise convinced that Milnor has failed to make an

alternative showing under article 3549 that maintenance of this

action in Louisiana is not warranted by "compelling considerations

of remedial justice.” We are mindful of the Louisiana

legislature’s admonition that we should not interpret this

requirement “as a command or even as a license for entertaining a

particular action simply because it is barred in all or most other

states. Such egregious examples of forum shopping . . . are

neither encouraged nor condoned by this [a]rticle.”45 We are not

dealing, however, with a situation in which the Marchesanis’ cause

of action is barred in “all or most other states” save Louisiana,

but rather one in which the cause of action would be permitted to

go forward in the great majority of states, including Louisiana.

Under these circumstances, Milnor has failed to convince us that

“compelling considerations of remedial justice” do not warrant ——

indeed, require —— the maintenance of this product liability action

in Louisiana against a Louisiana manufacturer.

Accordingly, we hold that under Louisiana’s choice of law

rules, Louisiana’s law of prescription governs (and accordingly

does not bar) prosecution in that state of the Marchesanis’ product

liability claims against Milnor.46 In so doing, we are cognizant

of Milnor’s contention that article 3549 was “doubtless drafted

45
Id., Revision Comment (j) (emphasis added).
46
We therefore do not reach the Marchesanis’ claim that
Tennessee’s statute of repose, as applied to them, is
unconstitutional.

22
with the idea that there would be little conceptual difference

between replacing one state’s procedural prescriptive rules with

another’s.” We are not called on to read Louisiana’s legislative

mind, however, but to interpret and apply a statute that on its

face encompasses both procedural, prescriptive rules and

substantive, peremptive provisions such as Tennessee’s ten-year

statute of repose. Our task, when making an Erie guess as to how

the Louisiana Supreme Court would rule if squarely faced with this

issue, is to attempt “to predict state law, not to create or modify

it.”47 Should the Louisiana legislature decide that a different

approach than that currently embodied in its choice of law articles

is called for, it is certainly free to enact that legislative

judgment into law and knows how to do so.

In reversing summary judgment and remanding for further

proceedings, we decide only that the Marchesanis’ cause of action

is not time-barred in Louisiana by Tennessee’s ten-year statute of

repose. Accordingly, we take no position on either the merits of

the Marchesanis’ claims or any procedural issues not yet addressed

by the district court.

III.

CONCLUSION

For the reasons explained above, the district court’s grant of

47
United Parcel Service, Inc. v. Weben Industries, Inc., 794
F.2d 1005, 1008 (5th Cir. 1986) (citation omitted).

23
summary judgment is reversed, and the case is remanded for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.

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