The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUSTIN WHITE, SR., ET AL. CIVIL ACTION
VERSUS NO. 19-11580
SHERWIN-WILLIAMS CO., ET AL. SECTION: “H”
ORDER AND REASONS
Before the Court are Defendants PPG Industries, Inc.; The Sherwin-
Williams Company; and Behr Process Corporation’s Motions for Judgment on
the Pleadings (Docs. 76, 77, and 78, respectively) and Defendants PPG
Industries, Inc.; The Sherwin-Williams Company; Lowe’s Home Centers, LLC;
W.M. Barr & Company, Inc.; and Behr Process Corporation’s Motion for Entry
of a Lone Pine Scheduling and Discovery Order (Doc. 80). For the following
reasons, the Motions for Judgment on the Pleadings are GRANTED, and the
Motion for Entry of a Lone Pine Scheduling and Discovery Order is DENIED.
BACKGROUND
Plaintiffs, Jenna White and Justin White, Sr., filed this suit against
Defendants in state court.1 Plaintiffs allege that while Jenna White was
1 The Defendants in this case are W.M. Barr & Company, Inc.; Behr Process Corporation;
Home and Ranch Hardware, Inc.; Rust-Oleum Sales Company, Inc.; PPG Industries, Inc.;
Sherwin-Williams Company; Lowe’s Home Centers, Inc.; Jolie Design & Decor, Inc.; and
Tyner-Petrus Co. Inc.
pregnant with her son, Justin White, Jr. (“Justin”), she was exposed to toxic
levels of benzene, benzene-containing products, toluene, xylene, and other
solvents in products manufactured and/or sold by Defendants. Plaintiffs
contend that this exposure proximately caused Justin’s acute myeloid
leukemia (“AML”). Plaintiffs bring claims under theories of negligence, gross
negligence, strict liability, and the Louisiana Products Liability Act (“LPLA”).
Defendants removed the action to this Court, invoking federal question
subject matter jurisdiction. Subsequently, Plaintiffs moved to remand the
action back to state court. Plaintiffs argued that this Court lacked subject
matter jurisdiction because they did not raise a federal question on the face of
their Complaint. This Court denied Plaintiffs’ Motion to Remand, finding that
Plaintiffs’ state law LPLA claims “arise under” the laws of the United States
because they require resolution of a substantial question of federal law in
dispute between the parties, thereby conferring subject matter jurisdiction
upon this Court.2
Presently before the Court are Motions for Judgment on the Pleadings
filed separately by Defendants PPG Industries, Inc. (“PPG”); The Sherwin-
Williams Company (“Sherwin-Williams”); and Behr Process Corporation
(“Behr”). In their Motions, Defendants each argue that the LPLA establishes
the exclusive theory of liability for manufacturers whose products allegedly
cause damages, and all claims brought against them that are not under the
LPLA should accordingly be dismissed. Plaintiff filed an opposition to the
Motions. Additionally, Defendants PPG; Sherwin-Williams; Lowe’s Home
Centers, LLC (“Lowe’s”); W.M. Barr & Company, Inc. (“WM”); and Behr filed a
Motion for Entry of a Lone Pine Scheduling and Discovery Order. Plaintiff
opposes. The Court will address each Motion in turn.
2 Doc. 51.
LEGAL STANDARD
Rule 12(c) provides that a party may move for judgment on the pleadings
after pleadings are closed but early enough not to delay trial.3 The standard
for determining a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to
dismiss.4 To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”5 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.”6
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”7 A court need not, however,
accept as true legal conclusions couched as factual allegations.8
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true.9 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”
will not suffice.10 Rather, the complaint must contain enough factual
allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim.11
3 FED. R. CIV. P. 12(c).
4 Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177,180 (5th Cir. 2007).
5 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
6 Id.
7 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
8 Iqbal, 556 U.S. at 667.
9 Id.
10 Id. at 678 (quoting Twombly, 550 U.S. at 555).
11 Lormand, 565 F.3d at 255–57.
LAW AND ANALYSIS
I. Motions for Judgment on the Pleadings
Plaintiffs allege that Defendants PPG, Sherwin-Williams, and Behr
“manufactured, supplied, sold, and distributed” various products used by
Plaintiff Jenna White that allegedly contained “benzene, toluene, xylene, and
other solvents.”12 Plaintiffs allege that Jenna White’s use of these products
while pregnant proximately caused Justin’s AML.13 Plaintiffs’ claims against
these particular Defendants are brought under theories of negligence, gross
negligence, strict liability, and the LPLA.
PPG, Sherwin-Williams, and Behr argue that all claims brought against
them not under the LPLA should be dismissed because when a plaintiff brings
an action under the LPLA, the LPLA creates the exclusive theory of liability.
Plaintiffs, in their Opposition, cite to this Court’s earlier Order and Reasons
dismissing all non-LPLA claims against Defendant WM.14 Plaintiffs conclude
their Opposition with a request that this Court “grant Defendants’ Motion to
dismiss all non-LPLA claims.”15
Indeed, the LPLA expressly states that it “establishes the exclusive
theories of liability for manufacturers for damage caused by their products. A
claimant may not recover from a manufacturer for damage caused by a product
on the basis of any theory of liability that is not set forth in [the LPLA].”16 The
Fifth Circuit has held that, “for causes of action arising after the effective date
of the LPLA, negligence, strict liability, and breach of express warranty are
not available as theories of recovery against a manufacturer, independent from
12 Doc. 1-2 at ¶¶ 4, 9–12.
13 Id. at ¶¶ 18–22.
14 Doc. 71.
15 Docs. 82 at 2, 83 at 2, 84 at 2.
16 LA. STAT. ANN. § 2800.52.
the LPLA.”17 Plaintiffs acknowledge this controlling precedent and acquiesce
to Defendants’ requested relief. Accordingly, for the same reasons that all non-
LPLA claims raised against Defendant WM were dismissed, the Court must
dismiss all non-LPLA claims raised against Defendants PPG, Sherwin-
Williams, and Behr.
In Plaintiffs’ Opposition to these Motions, Plaintiffs request that the
Court “take judicial notice that [Behr, Sherwin-Williams, and PPG] judicially
confessed that the LPLA is the only theory of liability the plaintiff [sic] can
bring against [Behr, Sherwin-Williams, and PPG] and therefore, no FHSA
[Federal Hazardous Substances Act] claims could possibly exist in this case.”18
Plaintiffs’ obtuse request is denied as meritless. This Court has
adjudicated the issue of the FHSA’s applicability to this matter ad nauseam.
It is axiomatic to this Court that, by virtue of the LPLA being the exclusive
theory of liability for Defendants, no other claims are viable against these
Defendants—including FHSA claims. In light of Plaintiffs’ repeated
demonstrations of misunderstanding, this Court strongly urges Plaintiffs to
heed Defendant Behr’s apt assessment: “[W]hile Plaintiffs are limited to
asserting claims under the LPLA by the exclusive provisions of that statute . . .
Plaintiffs’ claims under the LPLA for failure to warn will nevertheless be
measured and adjudicated according to standards set forth in the FHSA and
its implementing regulations.”19
II. Motion for Entry of Lone Pine Scheduling and Discovery
Order
Defendants PPG, Sherwin-Williams, Lowe’s, WM, and Behr ask this
Court to issue a Lone Pine scheduling and discovery order. Specifically,
17 Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002).
18 Docs. 82 at 2, 83 at 2, 84 at 2.
19 Doc. 104 at 2.
Defendants’ proposed Lone Pine order would require Plaintiffs to submit
evidence related to exposure and causation before the parties conduct
discovery. Defendants emphasize the uniqueness of Plaintiffs’ allegations of
in utero exposure to benzene as the cause of Justin’s AML and note that it is
something for which they have never been sued. Plaintiffs argue that a Lone
Pine order is inappropriate for a number of reasons. Specifically, Plaintiffs note
that this is not a mass tort case and that Defendants failed to demonstrate how
standard discovery procedures would be inadequate. Plaintiffs also aver that
discovery has not yet begun, so entry of a Lone Pine order would be premature.
“Lone Pine orders take their name from Lore v. Lone Pine Corp., in which
the New Jersey Superior Court approved a pretrial order that required
plaintiffs in a mass tort proceeding to provide basic facts about their case via
expert reports or risk dismissal.”20 Lone Pine orders are “designed to handle
the complex issues and potential burdens on defendants and courts in mass
tort litigation.”21 Courts use Lone Pine orders “to identify and cull potentially
meritless claims and streamline litigation in complex cases.”22 “Lone Pine
burden-shifting is appropriate in exceptional circumstances where the
defendant can establish that it would be unduly burdensome to conduct
discovery using the standard discovery methods provided by the Federal Rules
of Civil Procedure.”23 Whether to issue a Lone Pine order falls within “the wide
discretion afforded district judges over the management of discovery.”24
20 Smith v. Atrium Med. Corp., No. CIV.A. 14-418, 2014 WL 5364823, at *1 (E.D. La. Oct. 21,
2014) (citing Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, at *1–3 (N.J.
Super. Ct. Nov. 18, 1986)) (internal citations omitted).
21 Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
22 In re Vioxx Prod. Liab. Litig., 557 F. Supp. 2d 741, 743 (E.D. La. 2008) (quoting Baker v.
Chevron USA, Inc., No. 1:05–cv–227, 2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007)).
23 Smith, 2014 WL 5364823, at *1 (quoting Jackson v. Syngenta Crop Prot., LLC, CIV. A. No.
12-581, 2013 WL 4039403, at *1 (M.D. La. Aug. 7, 2013)).
24 Id. (citing Acuna, 200 F.3d at 340).
Ultimately, “a court should strive to strike a balance between efficiency and
equity.”25
This Court finds Plaintiffs’ arguments against entering a Lone Pine order
compelling. First, this is not a mass tort case involving suit by hundreds of
plaintiffs against numerous defendants. “The number of plaintiffs—two, with
just their child as the focus of the case—is simply too low to require the
plaintiffs to provide prima facie proof to support their claims pursuant to a
Lone Pine order.”26 That Defendants have yet to be sued for damages resulting
from in utero exposure to their products does not serve to elevate this case to a
mass tort or complex litigation. Second, Defendants fail to establish how
standard discovery procedures would be inadequate for this case. Defendants
assert that Plaintiffs will not be able to meet their burden of establishing
causation, but they fail to articulate how the ordinary discovery process will be
inadequate in fleshing out this issue. Moreover, Plaintiffs correctly note that
the Federal Rules of Civil Procedure provide for expert reports and that this
Court will set a deadline for their production. Finally, the current posture of
this case makes Defendants’ request inappropriate. As of the date of the filing
of this Motion, the parties have not engaged in any discovery. “To require
plaintiff to produce evidence demonstrating . . . causation at this juncture of
the proceedings, without the benefit of discovery, would place an additional
burden on plaintiff not contemplated by the Federal Rules of Civil
Procedure.”27
Simply put, this Court sees no exceptional circumstances in this matter
that necessitate the entry of a Lone Pine scheduling and discovery order. While
25 Id. (citing In re Vioxx Prod. Liab. Litig., 557 F. Supp. 2d at 744).
26 Jackson, 2013 WL 4039403, at *1.
27 Smith, 2014 WL 5364823, at *2 (citing McManaway v. KBR, Inc., 265 F.R.D. 384, 388 (S.D.
Ind. 2009)).
Plaintiffs’ claim may be unique and the first of its kind for Defendants,
uniqueness is not the requisite threshold for entry of Lone Pine orders.
CONCLUSION
For the foregoing reasons, Defendants PPG, Sherwin-Williams, and
Behr’s Motions for Judgment on the Pleadings (Docs. 76, 77, 78, respectively)
are GRANTED, and all non-LPLA claims brought against them are
DISMISSED WITH PREJUDICE. Defendants PPG; Sherwin-Williams;
Lowe’s Home Centers, LLC; WM; and Behr’s Motion for Entry of a Lone Pine
Scheduling and Discovery Order (Doc. 80) is DENIED. The Scheduling Order
issued on April 7, 2020 (Doc. 90) will govern this matter.
New Orleans, Louisiana this 29th day of May, 2020.
g TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE