RECENT DEVELOPMENTS IN TOXIC TORT AND PRODUCT LIABILITY LAW IN LOUISIANA

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1 RECENT DEVELOPMENTS IN TOXIC TORT AND PRODUCT LIABILITY LAW IN LOUISIANA Campbell E. Wallace Caroline C. Boling Frilot, LLC 1100 Poydras Street, Suite 3700 New Orleans, LA Telephone: (504) Facsimile: (504)

2 TABLE OF CONTENTS 1. TOXIC TORT - WHEN IS A SETTLEMENT NOT A SETTLEMENT? THE U.S. FIFTH CIRCUIT LETS BP OFF THE HOOK? TOXIC TORT - DÉJÀ VU - THE LOUISIANA SUPREME COURT FINDS A WAY AROUND THE LEGISLATURE ANTI-CORBELLO LEGISLATION ON ENVIRONMENTAL PROPERTY DAMAGES CLAIMS AND THE LEGISLATURE PREPARES TO OVERTURN THE RULING PRODUCT LIABILITY - RULE 12(B)(6) MOTIONS TO DISMISS THE DEATH KNELL OF NOTICE PLEADING AND YOUR CASE IF YOU DO NOT PLEAD SPECIFIC FACTS IN A COMPLAINT PRODUCT LIABILITY - MOTIONS FOR SUMMARY JUDGMENT BASED ON THE LPLA (AND MEDICAL CAUSATION) - A MANUFACTURER S BEST FRIEND? TOXIC TORTS - MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF S FAILURE TO PROVE CAUSATION IN A LONG- TERM EXPOSURE CASE - ANY AMOUNT OF ASBESTOS CREATES A DISPUTED ISSUE OF MATERIAL FACT PREEMPTION - WHEN DOES CONGRESS BAR YOUR CLAIMS UNDER LOUISIANA LAW? WHAT FEDERAL CLAIMS DOES A PLAINTIFF HAVE? WHEN STATUS MATTERS a. WHO IS A MERE SELLER UNDER THE LPLA? b. WHO IS A STATUTORY EMPLOYER? PRODUCT LIABILITY AND TOXIC TORT - PROCEDURE POINTERS a. PERSONAL JURISDICTION OVER ALIEN MANUFACTURERS b. PRESCRIPTION FOR PRODUCT LIABILITY AND WARRANTY CLAIMS c. OBSCURE - BUT IMPORTANT - REMOVAL RULES ii

3 1. TOXIC TORT - WHEN IS A SETTLEMENT NOT A SETTLEMENT? THE U.S. FIFTH CIRCUIT LETS BP OFF THE HOOK? In re Deepwater Horizon, 732 F.3d 326 (5th Cir. 2013). This litigation arises out of the April 2010 oil spill from BP s oil well in the Gulf of Mexico. BP freely negotiated settlement terms with class action Plaintiffs to settle certain economic loss claims and the district court approved the voluntary settlement. BP did not like how much it was paying under the settlement agreement after it went into effect and appealed to the U.S. Fifth Circuit to relieve it from its contractual obligations to pay the agreed settlement to the Plaintiff class members. BP argued, and a split Fifth Circuit panel agreed, that a portion of the settlement agreement was invalid because it was ambiguous and the district court had no authority to approve a class settlement for Plaintiffs that had not sustained any loss or loss related to the BP oil spill. On remand, District Judge Barbier recently ruled that BP is judicially estopped from taking the positions it is now asserting about the settlement based on its prior representations to the Court about its understanding of the settlement agreement and reliance thereon by all concerned. This may be a short-lived victory as the Fifth Circuit is deciding if the entire settlement between BP and the Plaintiff class members should be a do-over. The Fifth Circuit remanded the settlement agreement reached between BP and the Business and Economic Loss ( BEL ) claimants to the district court to determine whether the claims administrator has been improperly calculating awards based on varying accounting methods employed by claimants. Id. at The district court must also determine if the claims administrator is interpreting the settlement to include members that have not sustained - 1 -

4 any loss or have sustained losses unrelated to the oil spill. Id. at 343. If such is the case, as BP alleges, then the settlement may be deemed unenforceable as to those members. Id. 2. TOXIC TORT - DÉJÀ VU - THE LOUISIANA SUPREME COURT FINDS A WAY AROUND THE LEGISLATURE ANTI-CORBELLO LEGISLATION ON ENVIRONMENTAL PROPERTY DAMAGES CLAIMS AND THE LEGISLATURE PREPARES TO OVERTURN THE RULING. State v. Louisiana Land and Exploration Co., No , 2012 WL (La. Jan. 30, 2013). For decades, landowners and oil companies have battled over legacy environmental liabilities, who is responsible for clean-up costs for oilfield operations on the landowner s lands, and what is the measure of recovery. This dispute came to a head in February 2003 when the Louisiana Supreme Court in Corbello v. Iowa Production, (La. 2/25/03); 850 So. 2d 686, held that $33 million in theoretical clean-up costs for land valued at less than $1 million was the proper measure of damages for the landowner -- whether he pocketed the $33 million or performed the clean-up. Id. at Six months after Corbello was rendered, the Louisiana Legislature passed legislation to overrule Corbello and limit damage recoveries in legacy suits. See La. Rev. Stat. Ann. 30:2015.1, 30:29 (2013). In Louisiana Land, the Louisiana Supreme Court held a landowner may recover damages in excess of those needed to fund a statutorily-required clean-up plan; thus, a landowner may recover tort and contract claims for all alleged contamination and losses related to his property. Id. at *16. The State and the Vermillion Parish School Board filed suit as landowners against several parties, alleging that the Defendant oil company activities contaminated their property. Id. at *1-2. Plaintiff s legacy lawsuit included claims under Act 312, which provides a procedure for clean-up of oilfield sites. Id. at *3. Under Act 312, the Plaintiff does not receive the portion of a - 2 -

5 remediation damage award needed to fund the clean-up plan, instead the funds are deposited into the registry of the court, and the final decisions on remediation are made by the court in order to ensure that clean-up of the property is done to protect the public interest. Id. at *16. Defendants filed a motion for partial summary judgment, arguing that the Plaintiffs were barred from recovery of damages exceeding those necessary to fund a clean-up of their property. Id. at *3-4. The Louisiana Supreme Court interpreted the language of Act 312 to find that the Act does not interfere with private rights, and thus does not prohibit an award of damages for an amount greater than the amount necessary to fund a clean-up plan. Id. at *16. Act 312 only changes how the award for remediation is spent. Thus, the Plaintiffs could recover tort and contract damages in excess of those needed to fund a remediation plan. Id. The next chapter in the battle over legacy lawsuits will likely be fought in the Legislature in Oil companies are arguing that the surge in legacy lawsuits has driven exploration in Louisiana to historic lows, and they need protection from these suits to come back to Louisiana and drill without fear of legacy liabilities. 3. PRODUCT LIABILITY - RULE 12(B)(6) MOTIONS TO DISMISS THE DEATH KNELL OF NOTICE PLEADING AND YOUR CASE IF YOU DO NOT PLEAD SPECIFIC FACTS IN A COMPLAINT. Watson v. Bayer Healthcare Pharmaceuticals Inc., No , 2013 WL (E.D. La. April 11, 2013) (Feldman, J.). Plaintiff failed to state a claim for relief in her Complaint against Bayer Healthcare Pharmaceuticals, Inc. ( Bayer ), the maker of the Mirena intrauterine contraceptive, id. at *5, and her case was dismissed, without prejudice, pursuant to Rule 12(b)(6) FRCP. Plaintiff used a Mirena intrauterine contraceptive from 2007 until 2012 when she underwent surgery to have the Mirena removed because it had become embedded in her uterus

6 Id. at *2. Plaintiff sued Bayer, alleging that the Mirena device was defective under the Louisiana Product Liability Act ( LPLA ), along with theories of negligence, breach of implied warranty, breach of express warranty, negligent misrepresentation, fraudulent misrepresentation, and concealment. Id. Because Plaintiff s claims arose out of her use of the Mirena product, the LPLA establishes her exclusive avenue of recovery. Accordingly, the court held that Plaintiff could not recover on any theory of recovery besides her claims under the LPLA. Id. at *3. Next, Judge Feldman considered whether Plaintiff had alleged sufficient facts, if true, that stated a plausible claim for relief as required under Ashcroft v. Iqbal, 556 U.S. 662, (2009). The Court found that Plaintiff failed to state a claim under the LPLA because she failed to state how the Mirena device deviated from its intended design, failed to allege how the device was improperly designed, how the alleged defect caused her injuries, and failed to state how any allegedly inadequate warnings caused her injuries. Id. at *4-5. The Court ruled that the Plaintiff could seek leave to file an amended complaint. Id. at *5. Scianneaux v. St. Jude Medical S.C., Inc., et al, No , 2013 WL (E.D. La. Aug. 19, 2013) (Vance, J.). St. Jude won dismissal, with prejudice, of Plaintiff s suit because Plaintiff failed to state non-preempted, parallel claims against the manufacturer of her medical device, and claims it under the LPLA. Id. at *4-5. In Scianneaux, supra, Plaintiff alleged injuries resulting from surgery to replace a defibrillator implanted in her chest when the leads connecting the device to her heart failed and caused a stroke. Id. at *1. Plaintiff failed to allege a violation of the LPLA, and instead sought relief based on general theories of breach of express and implied warranties, strict liability, fraud, - 4 -

7 and negligence. Id. at *2. The LPLA provides the exclusive remedy against a manufacturer for damages caused by its product pursuant to La. Rev. Stat. 9: , and, therefore, Plaintiff had no legal claim for relief for his non-lpla claims.. Id. The device at issue was a Class III device under the Federal Food, Drug, and Cosmetic Act, ( FFDCA ), 21 U.S. C. 360c, subject to the FDA s pre-market approval process. The Medical Device Amendments ( MDA ) to the FFDCA, 21 U.S. C. 360k, expressly preempt state law claims against manufacturers when the effect is to establish safety standards that are different from, or in addition to the requirements for pre-market approved products under the FFDCA. Id. at *3. A Plaintiff only has a claim under the LPLA if she can show the manufacturer s violation of FDA regulations rendered the device unreasonably dangerous. Id. The Plaintiff failed to identify which FDA regulations were violated or explain how the manufacture or sale of the device deviated from FDA requirements. Id. Thus, the Court held that Plaintiff s claims were preempted. Id. at *4. Plaintiff also failed to establish a plausible LPLA claim even after being afforded the opportunity to amend the complaint. Thus, the Court dismissed the Plaintiff s Complaint with prejudice. Id. at *5. Wollens v. Merck & Co., No , 2012 WL (E.D. La. Dec. 13, 2012) (Lemmon, J.). To survive dismissal under the LPLA, a Plaintiff is not required to plead specific facts and must only give the Defendant fair notice of the claim. Id. at *

8 Plaintiff filed suit against Merck alleging that she suffered physical injuries as a result of her ingestion of Zocor, Merck suppressed information about the drug, and Merck failed to warn of the danger posed by use of the drug. Id. at *1. Merck sought dismissal, arguing that the Plaintiff failed to sufficiently allege causes of action under the Louisiana Products Liability Act, the Louisiana law of redhibition, Louisiana Civil Code article 2520, or, for medical monitoring. Id. Judge Lemmon found that Plaintiff s Complaint met the pleading requirements of Fed. Rule Civ. Proc. 8(a)(2) because Merck was given fair notice of the claims against it, and Plaintiff was not required to prove the merits of her claims at the pleading stage. Id. at *2. The lesson learned in these cases is simple: Allege in your client s Complaint all facts you can and tie those fact-specific allegations to the essential elements of Plaintiff s claims under the LPLA. Failure to do so may result in dismissal, with prejudice, of your client s meritorious claims in federal court. 4. PRODUCT LIABILITY - MOTIONS FOR SUMMARY JUDGMENT BASED ON THE LPLA (AND MEDICAL CAUSATION) - A MANUFACTURER S BEST FRIEND? Rhodes v. Bayer Healthcare Pharmaceuticals, Inc., No , 2013 WL (W.D. La. March 28, 2013). A manufacturer s motion for summary judgment was granted following the Court s exclusion of Plaintiff s expert causation witnesses. Id. at *4. Plaintiff sued Bayer Healthcare Pharmaceuticals, Inc. ( Bayer ) alleging that taking two antibiotic Avelox caused her permanent nerve damage. Id. at *1. The Court excluded Plaintiffs first expert causation witness, a professor emeritus of pharmacy, finding him unqualified to testify. Id. at *2. In opposing Defendant s motion for summary judgment, Plaintiff relied on her - 6 -

9 second medical causation expert, her neurologist, who diagnosed Plaintiff with neuropathy. Id. However, Plaintiff failed to connect this diagnosis to the use of Avelox, the doctor was not designated as an expert, and the Court found the doctor s medical impressions to be inconclusive. Id. The Court held that Dr. Kumar s medical impressions were not valid expert causation evidence. Id. After excluding Plaintiff s second expert witness, Judge Hicks determined that Plaintiff had no evidence to support causation, an essential element of her LPLA claims against Bayer. The Court reached this result after ruling that Plaintiff s claims required expert evidence from a physician on medical causation, including proof that Plaintiff s treating physician would have changed his prescription of the Bayer drug if he had read the warning at issue. Ayers v. ANR Pipeline Co., No. 1: , 2013 WL (W.D. La. Dec. 3, 2013). Plaintiffs alleged injury following the release of natural gas after emergency shutdowns of a gas compressor station. Defendants filed motions for partial summary judgment against Plaintiffs on the ground they could not prove medical causation, i.e., that their injuries were more likely than not caused by the gas release. Plaintiffs claimed that they were entitled to the presumption of medical causation as set forth in Housley v. Cerise, 579 So. 2d 973 (La. 1991). Id. at *2 (citing Wisner v. Illinois Cent. Gulf R.R., 537 So. 2d 740 (La. App. 1 Cir. 1988)). However, the medical causation presumption is available only when Plaintiffs establish they were in good health prior to the accident which the Plaintiffs failed to do. Id. As a result, the Court held that the medical causation presumption did not apply and dismissed Plaintiff s claims on summary judgment because they had no proof of medical causation

10 Hill v. Exxon Mobil Corp. No , 2013 WL (E.D. La. April 30, 2013). Plaintiff s failure to introduce any evidence that radiation exposure was caused by two Defendants dismissed based on no-evidence summary judgments resulted in denial of Plaintiff s Rule 59(e) FRCP motion against the same defendants. Id. at *3. Plaintiff sued Defendants, Shell and Chevron, alleging they provided pipes that contained NORM radioactive scale, and his exposure to the NORM-contaminated pipes put him at an increased risk for cancer. Id. at *1. The Court had granted these Defendants no-evidence motions for summary judgment, finding that the Plaintiff could not prove that his radiation exposure was caused by Shell and Chevron. Id. Plaintiff moved to alter and amend the judgment based on new evidence obtained from depositions after these two Defendants were dismissed. Id. Although the Court found that the Plaintiff deposed the new witnesses after the Defendants motions for summary judgment were submitted, and Plaintiff made no attempt to supplement the record before summary judgments were entered, Defendants did not argue that they would be prejudiced by the additional evidence. So the Court considered the additional evidence in ruling on Plaintiff s Rule 59(e) motion. Id. at *2. The Court denied Plaintiff s Rule 59(e) motion, finding nothing in the new evidence showed he cleaned any Chevron or Shell pipes with NORM in them. Id. at *3. Guillory v. Constanza Farms, Inc., (La. App. 3 Cir. 11/7/12); 103 So. 3d A worker sued a backhoe manufacturer for injuries to his back sustained while trying to repair a leaking hydraulic line on the backhoe. Id. at The trial court entered summary judgment on liability under the LPLA against the manufacturer and the Louisiana Third Circuit affirmed. Id

11 In its opinion, the Third Circuit relied on the affidavit testimony of Plaintiff s expert on causation, the reasonably anticipated use of the product, the design of the hydraulic line of the backhoe, and its unreasonably dangerous nature without a protective barrier or cage to protect the flimsy hydraulic line from being punctured by tree limbs in normal use. Id. at The lower courts apparently disregarded Defendant s expert s opinion testimony, as the Louisiana Supreme Court reversed and remanded the judgment in a three sentence per curiam decision. Guillory v. Constanza Farms, Inc., (La. 2/22/13); 108 So. 3d 742. Loconte Partners, L.L.C. v. Montgomery & Associates, Inc., (La. App. 4 Cir. 5/15/13). A building owner sued the manufacturer, seller and installer of a leaky spray foam roof covering for property damages. Id. at 907. All claims against the Defendant-manufacturer under the LPLA were dismissed in a no-evidence motion for summary judgment after Plaintiff s counsel failed to offer any evidence to oppose the manufacturer s motion for summary judgment and admitted his client had no evidence to establish a genuine issue of material fact under the LPLA. Id. at Landry v. Avondale Industries, Inc., (La. App. 4 Cir. 3/6/13); 111 So. 3d 508. In this asbestos exposure case, Plaintiff secured a partial summary judgment on liability against the Defendant-manufacturers of gaskets and gloves. Id. at 509. The judgment was reversed based on the existence of material issues of fact about the amount of asbestos and whether the asbestos exposures attributable to the Defendants were significant exposures in causing Plaintiff s mesothelioma. Id. at

12 5. TOXIC TORTS - MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF S FAILURE TO PROVE CAUSATION IN A LONG-TERM EXPOSURE CASE - ANY AMOUNT OF ASBESTOS CREATES A DISPUTED ISSUE OF MATERIAL FACT. J. C. Williams v. Asbestos Defendants, (La. App. 4 Cir. /16/12); 95 So. 3d 497. Plaintiff sued multiple Defendants for asbestosis and lung cancer caused by his exposure to asbestos. Id. at 499. A group of Defendants filed a motion for partial summary judgment on the applicable comparative law and the availability of punitive damages for Plaintiff s claims against them. Id. at 500. The appellate court reversed partial summary judgments in favor of Defendants ruling that: Plaintiff s asbestos injuries from before 1980 and after 1980 were indivisible. Therefore, the jury not the Court must determine if post-1980 comparative fault applies based on the facts they find at trial, Id. at 503; and Punitive damage claims present fact questions about a Defendant s intent that bar summary judgment. Id. at These rulings recreate uncertainty in the law applicable in asbestos cases. Francis v. Union Carbide Corp., (La. App. 4 Cir. 5/8/13); 116 So. 3d 858. Plaintiff claimed his mesothelioma was caused by second hand, take-home exposures to asbestos. Id. at 859. The Fourth Circuit reversed a summary judgment in favor of a Defendant manufacturer, holding that: [E]very non-trivial exposure to asbestos contributed to and constitutes a cause of mesothelioma. McAskill v. Am. Marine Holding Co., , pp. 7-8 (La. App. 4 Cir. 3/4/09), 9 So. 3d 264, 268, and... a genuine issue of material fact existed because the Plaintiff submitted a receiving report that demonstrated that the

13 Defendant/contractor performed insulation work while the Plaintiff s father was working at the refinery. This Court reasoned that this evidence along with other circumstantial evidence, like the presence of asbestos, was never denied, and proof that the Plaintiff s father worked at the refinery at the correct time period, raised at the very least a genuine issue of material fact. Id. Id. at 862. This ruling appears contrary to long-standing Fourth Circuit precedent, like Vodanovich v. A.P. Green Indus., Inc., 869 So. 2d 930 (La. App. 4 th Cir 2004). 6. PREEMPTION - WHEN DOES CONGRESS BAR YOUR CLAIMS UNDER LOUISIANA LAW? WHAT FEDERAL CLAIMS DOES A PLAINTIFF HAVE? Sons v. Medtronic Inc., No. 6: , 2013 WL (W.D. La. Jan ). Medtronic, Inc. won a Rule 12(b)(6) dismissal of Plaintiff s suit because Plaintiff failed to state non-preempted, parallel claims against the manufacturer. Id. at *7. Plaintiff alleged that he suffered with medical problems following Defendant s failure to properly wire and monitor his heart pacemaker. Id. at *1. Plaintiff asserted claims under the Louisiana Products Liability Act for defects in the pacemaker s design, manufacture, inspection, and marketing and for failure to provide adequate warnings. Id. at *4. Plaintiff also asserted claims for negligence, strict liability, and failure to properly train the medical community. Id. Medtronic first filed a Motion to Dismiss, arguing that the Plaintiff s claims were preempted by federal law. Id. Congress passed the Medical Device Amendments ( MDA ) to the Federal Food, Drug, and Cosmetic Act ( FDCA ) in 1976 that authorizes the FDA to regulate the safety and effectiveness of medical devices that undergo pre-market FDA approval. Id. at *2. The MDA sets forth an express preemption clause that prohibits States from imposing any requirement which is different from, or in addition to, any requirement which relates to the safety or effectiveness of [covered medical devices]. 21 U.S.C. 360k(a). Thus, a

14 Plaintiff must state a parallel claim, i.e., for violation of an FDA regulation related to the medical device, in order to recover state tort damages for injuries suffered from a defective medical device. Id. at *4. The Court held that all of Plaintiff s product liability claims under state law were preempted because his Complaint sought to impose duties different from or in addition to requirements established by federal law, his negligence claims were barred by the exclusivity provisions of the LPLA and the manufacturer owed no legal duty to train doctors in use of the medical device.. Id. at *7. Morris v. Pliva, Inc., No , 2013 WL (5th Cir. Feb. 14, 2013). Federal law preempts claims that generic drug makers failed to communicate warnings approved for brand-name equivalent drugs. Id. at *2. Plaintiff was prescribed metoclopramide for over two years; however, ingesting the drug for greater than twelve weeks has been advised against on FDA-approved brand-name manufacturer s product labels. Id. at *1. Plaintiff brought claims against Defendant for failure to warn. Id. The Court found that this case was controlled by the Supreme Court case PLIVA, Inc. v. Mensing, 131 S. Ct (2011), which held that state law claims for failure-to-warn in a different manner than brand-name manufacturer s product warnings asserted against generic drug manufacturers are preempted by federal law. Id. at Under the duty of sameness, a generic manufacturer need only prove its product warning was the same as that of the brand-name drug manufacturer for a state law failure-to-warn claim to be preempted against

15 it. Id. Thus, Plaintiff s suit was properly dismissed by the district court. Morris, 2013 WL , at *3. 7. WHEN STATUS MATTERS. a. WHO IS A MERE SELLER UNDER THE LPLA? Alexander v. Toyota Motor Sales, U.S.A., (La. 9/27/13); 123 So. 3d 712. Plaintiff filed a failure-to-warn suit against Toyota, alleging she was injured as a result of a Toyota car dealer s failure to attach a revised air bag warning to her 1995 vehicle when it was serviced. Id. at 713. The National Highway Traffic Safety Administration ( NHTSA ) required manufacturers and dealers to install revised warning labels to cars manufactured after February Id. at 714. The Court held that the NHTSA did not require manufacturers and dealers to install the revised warning labels to vehicles manufactured prior to February 1997, such as the Plaintiff s vehicle, and Plaintiff otherwise failed to produce any factual evidence of a defect under the LPLA. Id. at 714. As such, the Court granted Defendants motion for summary judgment, dismissing the Plaintiff s claims against the Toyota dealership. Id. at 715. In reaching its ruling, the Court held that an auto dealership is a non-manufacturer seller that is not subject to the LPLA, and reiterated well-established law that a seller only owes a person injured by a defect in a product it sells a duty of reasonable care based on principles of negligence. b. WHO IS A STATUTORY EMPLOYER? Johnson v. Motiva Enter. LLC, No , 2013 WL (La. App. 5 Cir. Oct. 30, 2013). Shell Oil Company and AbClean, Inc. contracted such that Shell, and its affiliates, including Motiva, would be entitled to statutory employer status for cleaning services performed

16 by AbClean employees in Louisiana. Id. at *3. Plaintiff worked as a truck driver for United States Industrial Services, Inc. ( USIS ), a successor entity to AbClean. He sued Motiva alleging exposure to benzene following a workplace incident. Id. at *4. Plaintiff argued Defendant, Motiva, had no statutory immunity because it was not a privy to the contract granting statutory employer immunity and the statutory employer provision in the contract was ambiguous because the contract also stated Plaintiff s employer was an independent contractor. The Louisiana Fifth Circuit affirmed the trial court s broad interpretation of La. Rev. Stat. 23: 1061(A)(3), holding that the contract was unambiguous and Motiva was entitled to statutory employer status pursuant to the contract with the employer s predecessor. Id. at * PRODUCT LIABILITY AND TOXIC TORT - PROCEDURE POINTERS. a. PERSONAL JURISDICTION OVER ALIEN MANUFACTURERS Ainsworth v. Moffett Engineering Ltd., No , 2013 WL (5th Cir. May 9, 2013). An alien manufacturer is subject to personal jurisdiction based on the U.S. Fifth Circuit s stream-of-commerce theory of personal jurisdiction, despite the Supreme Court s recent holding in J. McIntyre Machinery Ltd. v. Nicastro, 131 S. Ct (2011), which held, in a plurality opinion, that an isolated sale is not an adequate basis for personal jurisdiction. Id. at *2. In Ainsworthy, a Mississippi resident allegedly died because of a defective forklift manufactured by an alien Defendant located in Ireland. The Defendant claimed it had no direct jurisdictional contact with Mississippi and there was no personal jurisdiction for the Plaintiffwidow s lawsuit against it. Plaintiff asserted that personal jurisdiction existed over the alien

17 Defendant based on the stream-of-commerce theory, i.e., Defendant placed its product in the stream of commerce with the expectation it would be purchased by consumers in the forum state. The Fifth Circuit distinguished the single, isolated sale at issue in J. McIntyre, finding jurisdiction under the stream-of-commerce theory: the Defendant manufacturer s exclusive U.S. distributor marketed Defendant s products throughout the United States, Defendant sold over 13,000 forklifts to its U.S. distributor, and Defendant s distributor has sold 203 forklifts in Mississippi. Id. at *3. b. PRESCRIPTION FOR PRODUCT LIABILITY AND WARRANTY CLAIMS Marseilles Homeowners Condominium Association, Inc. v. Broadmoor, L.L.C., (La. App. 4 Cir. 2/27/13); 111 So. 3d Plaintiffs, condominium owners, sued the builder of their building, Broadmoor. Id. at Broadmoor filed a third-party demand against the window manufacturer, Pella, after the condominiums had water intrusion in their windows in Id. at Broadmoor repaired the water damage in Id. Plaintiffs timely sued Broadmoor in 2003, but Broadmoor waited until 2008 to bring Pella into the case. Id. Pella was successful in its time-bar defenses to Broadmoor s claims, defeating Broadmoor s claims of contra non valentum, and prevailing on one-year time bar defenses for redhibition, a ten-year express warranty (limited by the Court to a one-year term), and product liability claims. Id. at c. OBSCURE - BUT IMPORTANT - REMOVAL RULES Perritt, et al. v. Westlake Vinyls Co., et al., No.: 3:12-cv-253 (M.D. La. Nov. 1, 2013)

18 Class members claims may not be aggregated to meet the jurisdiction amount for federal diversity jurisdiction. (3:13-cv-253 Doc. 50 at p. 2). The Middle District of Louisiana vacated its previous ruling that denied two consolidated motions to remand. (3:13-cv-253 Doc. 50 at p. 2). The Court s prior order incorrectly determined that the jurisdictional minimum [ for establishing subject matter jurisdiction under 28 U.S.C was] satisfied by aggregating the potential recoveries of putative class members. (3:13-cv-253 Doc. 7 at p. 18 n. 40). The Court vacated the prior Order, determining that in class actions, the amount in controversy of each class member is separately tested, and the potential recovery of class numbers is not considered in the aggregate. (3:13-cv-253 Doc. 50 at p. 2); see also Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 873 (5th Cir. 2002) ( We know that in class actions, we separately test the amount in controversy of each class member, whether class representative or rank and file. We also know that we are not to aggregate the potential recovery of class members. (footnotes omitted)). Morvant v. Asbestos Corp., No , 2013 WL (E.D. La. Nov. 6, 2013). Involuntary dismissals pursuant to a summary judgment prevent removal of a suit. Id. at *2. Plaintiff sued six Defendants in state court alleging exposure to asbestos. Id. at *1. The Plaintiff subsequently settled her claims with three Defendants, and two Defendants were dismissed on summary judgment. Id. The remaining Defendants attempted removal on grounds of diversity jurisdiction in light of the settlements and summary judgment rulings that created complete diversity. Id. Generally, diversity must exist at the time of filing and the time of removal, but an exception exists where the non-diverse Defendant is voluntarily dismissed by the

19 Plaintiff. Id. This exception did not apply here, where two of the in-state Defendants were dismissed involuntarily on motion for summary judgment, not by voluntary dismissal by the Plaintiff. Id. at *

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