Reyes v. The Dow Chemical Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRIAN REYES CIVIL ACTION

VERSUS NO. 19-13734

THE DOW CHEMICAL COMPANY, ET AL SECTION "B"(3)

ORDER AND REASONS

Before the Court are plaintiff Brian Reyes’ “Motion for

Partial Summary Judgment on Medical Causation” (Rec. Doc. 25) and

defendant Dow Chemical Company’s opposition (Rec. Doc. 31).

For the reasons discussed below,

IT IS ORDERED that the motion (Rec. Doc. 25) is DENIED.

FACTS OF THE CASE AND PROCEDURAL HISTORY

This dispute arises out of a motor vehicle crash that occurred

on or about June 28, 2018 in the Parish of Jefferson, State of

Louisiana. Rec. Doc. 1-2 at 1. Plaintiff Brian Reyes, who is a

truck driver responsible for transporting materials, reported to

defendant Dow Chemical Company’s (“Dow”) facility at the Dow Pool

Yard located in Port Allen, Louisiana on the aforementioned date.

Id. at 4. According to the state complaint, Dow’s employee John

Doe loaded micro-beads into Reyes’ trailer, which “were a type of

expandable polymeric beads used as plastic molding compounds.” Id.

Before plaintiff departed the Dow Chemical Plant, he

conducted his normal, detailed pre-trip inspection of the tractor-

trailer. Id. at 5. Plaintiff alleges that the trailer had already

been improperly loaded and sealed, “such that Mr. Reyes was unable

to observe first-hand, nor did he observe first-hand, the

defectively loaded cargo.” Id.

Plaintiff departed from the Dow Chemical Plant in his tractor,

towing the trailer containing the micro-beads and heading towards

the Port in New Orleans. Id. Plaintiff then decided to reroute to

the Triple G Yard. Id. As plaintiff rounded a bend on the

interstate at Interstate 10 and Clearview Parkway, plaintiff

alleged that the improperly loaded cargo in the trailer shifted

and caused a tire to blow and the trailer to tip sideways, pulling

down the entire tractor-trailer with it. Id.

On June 19, 2019, plaintiff filed the instant complaint in

the 24th Judicial District Court for the Parish of Jefferson,

raising a negligence cause of action against the defendant Dow

Chemical Company, Dow Industries, LLC, employee John Doe, ABC

Insurance Company, Atlantic Specialty Insurance Company, and One

Beacon Insurance Company.1 See generally Rec. Doc. 1-2; Rec. Doc.

1 at 2. Plaintiff alleges that defendants’ negligence caused

injuries to his neck, left arm, hip, ear, head and memory. Rec.

Doc. 25-1 at 3. On November 20, 2019, defendant removed the state

action to this Court on the grounds of complete diversity and

damages in excess of $75,000. Rec. Doc. 1 at 3.

1 According to the Notice of Removal, Dow Industries, LLC, Atlanta Specialty

Insurance Company, and One Beacon American Insurance Company were dismissed

without prejudice from the state action. Rec. Doc. 1 at 3.

On December 2, 2020, plaintiff filed the instant motion for

partial summary judgment. Rec. Doc. 25. Plaintiff asserts that the

factual allegations of this matter triggers the medical causation

presumption of Housley. Rec. Doc. 25-1 at 6. Plaintiff argues that

the Housley presumption should be applied in his favor because his

injuries manifested after the incident, creating a “reasonable

possibility” that the accident caused his injuries. Id. at 8.

On December 15, 2020, defendant timely filed an opposition to

the motion for partial summary judgment. Rec. Doc. 31. Defendant

generally argues that Housley is not applicable at the summary

judgment phase, and even if it was supported at this stage in the

proceedings, plaintiff’s summary judgment evidence is insufficient

to prove causation. Id. at 2, 4. Defendant also asserts that

plaintiff’s partial summary judgment motion is premature because

discovery is still on-going. Id. at 5.

Following the submission of the parties’ pleadings, defendant

discovered information regarding who was responsible for loading

the tractor on the day of the incident. Rec. Doc. 24 at 3. Upon

doing so, defendant identified Frontier Logistics as the party

responsible for loading and securing the subject trailer. Id. After

receiving this information, plaintiff has since filed an amended

complaint, identifying Frontier Logistics as another potential

tort-feasor. See Rec. Doc. 49.

LAW AND ANALYSIS

A. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment is appropriate when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material

fact exists if the evidence would allow a reasonable jury to return

a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). As such, the court should view all facts

and evidence in the light most favorable to the non-moving party.

United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th

Cir. 2006).

When the movant bears the burden of proof, it must

“demonstrate the absence of a genuine issue of material fact” using

competent summary judgment evidence. Celotex, 477 U.S. at 323.

However, “where the non-movant bears the burden of proof at trial,

the movant may merely point to an absence of evidence.” Lindsey v.

Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the

movant meet its burden, the burden shifts to the non-movant, who

must show by “competent summary judgment evidence” that there is

a genuine issue of material fact. See Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16

F.3d at 618. However, “a party cannot defeat summary judgment with

conclusory allegations, unsubstantiated assertions, or only a

scintilla of evidence.” See Sec. & Exch. Comm’n v. Arcturus Corp.,

912 F.3d 786, 792 (5th Cir. 2019).

B. The Housley Presumption

In Louisiana, a negligence cause of action is subject to the

duty-risk analysis, requiring proof of a duty, breach of duty,

causation, scope of liability, and damages. Lemann v. Essen Lane

Daiquiries, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 632-33;

see also La. Civ. Code art. 2315. Nevertheless, the Louisiana

Supreme Court created a presumption applicable to the issue of

medical causation in tort claims. See Housley v. Cerise, 579 So.2d

973, 980 (5th Cir. 1991). The so-called Housley presumption

provides:

A claimant’s disability is presumed to have resulted

from an accident, if before the accident the injured

person was in good health, but commencing with the

accident the symptoms of the disabling condition appear

and continuously manifest themselves afterwards,

providing that the medical evidence shows there to be a

reasonable possibility of causal connection between the

accident and the disabling condition.

Id. (citing Lukas v. Insurance Company of North America, 342 So.2d

591, 596 (La. 1977)). As such, to trigger the Housley presumption,

the plaintiff must prove (1) that he was in good health prior to

the accident, (2) that subsequent to the accident, symptoms of the

alleged injury appeared and continuously manifested themselves

thereafter, and (3) that there was a reasonable possibility of

causation between the accident and alleged injury based on medical

evidence, circumstantial evidence, or common knowledge. Kelly v.

AME Janitorial Services Co., 2009-1167 (La.App. 4 Cir. 3/3/10), 33

So.3d 358, 360 (citing Juneau v. Strawmyer, 94-0903 (La.App. 4

Cir. 12/15/94), 647 So.2d 1294, 1299).

Plaintiff seeks partial summary judgment on the issue of

medical causation, arguing that his injuries and factual

allegations trigger the Housley presumption. Rec. Doc. 25-1 at 7-

8. However, plaintiff’s motion flies in the face of settled Fifth

Circuit and Supreme Court jurisprudence advising against ruling on

a motion for summary judgment before the discovery cut-off. See

Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 354 (5th Cir.

1989)(“Summary judgment should not. . .ordinarily be granted

before discovery has been completed.”); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986)(holding that courts may deny

summary judgment if the non-moving party has not had an opportunity

to make full discovery).

Consequently, courts have generally held that Housley does

not apply at the summary judgment stage of proceedings. For

example, in Miller v. Mr. B’s Bistro, Inc., this Court was “not

persuaded” to apply the Housley presumption on summary judgment

because “plaintiffs [were] asking the Court to presume an element

of the case in their favor, at the exact point when all factual

conflicts are to be resolved against them.” No. Civ.A. 04-3271,

2005 WL 2036780, at *3 (E.D.La. Aug. 3, 2005)(Fallon, J.); see

Savoy v. Kroger Co., No. 2:17-CV-00897, 2020 WL 97377, at *8-9

(W.D.La. Jan. 7, 2020)(denying plaintiff’s motion for partial

summary judgment because Housley presumption was inapplicable at

that point); see also Turner v. Knight Transportation, No.: 1:13-

02864, 2016 WL 8253803, at *2 (W.D.La. March 24, 2016)(same).

Noting the lack of jurisprudence granting summary judgment upon

the Housley presumption, the court guided, “the Housley

presumption generally comes into play when a party appeals an

adverse decision in the trial court.” Id. at *2.

Notably, plaintiff admits that he “has not found any Louisiana

cases specifically applying the Housley presumption at the summary

judgment stage.”2 Rec. Doc. 25-1 at 6. Plaintiff nonetheless argues

that the absence of controlling case law applying the Housley

presumption on summary judgment is insufficient grounds for

denial. Id. at 6-7. Rather, plaintiff points to Louisiana cases

wherein the court granted summary judgment based on evidence

triggering a presumption of an essential element. Rec. Doc. 25-1

at 5; see Leblanc v. Bouzon, 2014-1041 (La.App. 3 Cir. 3/4/15),

2 Plaintiff states, “Although Mr. Reyes has not found any Louisiana cases

specifically applying the Housley presumption at the summary judgment stage,

there are likewise no Louisiana cases that would justify straying from the

established burden shifting framework for presumption at the summary judgment

stage.” Rec. Doc. 25-1 at 6.

159 So.3d 1144 (affirming summary judgment because evidence that

the forward driver was at a complete stop prior to being struck

from behind by defendant motorist creates presumption of

defendant’s fault); see also Alexander v. Blue Williams, 2018-

0776, p. 11 (La.App. 4 Cir. 1/23/19), --- So.3d --- (affirming

summary judgment for the defendants because evidence of qualified

privilege created a presumption of falsity and malice in defamation

suit).

Defendant principally argues that Housley is inapplicable at

this stage in the proceedings. Rec. Doc. 31 at 2. Defendant further

argues that plaintiff’s cited case law does not support the

applicability of Housley in this matter because “those

presumptions are materially different from the Housley

presumption.” Id. at 3. Defendant claims that the presumptions are

dissimilar because medical causation “requires medical expert

testimony to establish or refute.” Id. at 4.

Notably, there have been discovery disputes between the

parties to the extent that defendant failed to timely and

adequately respond to plaintiff’s requests. See Rec. Doc. 22.

Additionally, this Court has since extended the existing discovery

deadline to June 15, 2021. Rec. Doc. 44. Despite its belated

discovery responses, defendant Dow Chemical seems to suggest that

Frontier Logistics may be responsible for its actions in the

loading process of plaintiff’s trailer. See Rec. Doc. 31-2 at 6-

7. Consequently, plaintiff filed an amended complaint to include

Frontier Logistics. See Rec. Doc. 49. Moreover, plaintiff offers

case law to advance a novel argument that the Housley presumption

applies in the same manner as other presumptions under Louisiana

law. However, as indicated in Miller, Turner, and Savoy, applying

the Housley presumption in the present context is inappropriate.

Because parties are engaged in ongoing discovery, particularly

discovery related to plaintiff’s injuries, summary judgment at

this time on causation issues is premature.

Assuming arguendo that the Housley presumption may be applied

on summary judgment, defendant argues that plaintiff’s evidence is

insufficient to establish medical causation. Generally, expert

testimony to establish or refute medical causation may become

necessary. Hutchinson v. Shah, 94-0264 (La.App. 1 Cir. 12/22/94),

648 So.2d 451, 453; see Talbot v. Electric Insurance Company, Civil

Action 17-299-SDD-EWD, 2018 WL 6274314, *4 (M.D.La. Nov. 30,

2018)(granting defendant’s motion for partial summary judgment

based on plaintiff’s failure to submit expert testimony required

to prove medical causation). The Housley case demonstrates a

plaintiff’s evidentiary burden to prove this essential element.

In Housley, the plaintiff attempted to prove medical

causation through expert testimony, evidence of the plaintiff’s

health before her fall, and evidence of the temporal relationship

between the plaintiff’s fall and the premature rupture of her water

bag. Housley, 579 So.2d at 979. During trial, the medical expert

testified that the fall was a “contributing factor” of the rupture

in plaintiff’s water bag. Id. at 980. The Louisiana Supreme Court

believed the expert’s testimony was “clearly sufficient to

establish a ‘reasonable possibility’ of a causal connection

between the fall and the rupture of the water bag.” Id.

Although medical testimony is traditionally favored and

sometimes required by courts to prove causation, causation can

still be shown through other direct or circumstantial evidence,

including common knowledge. Lasha v. Olin Corp., 625 So.2d 1002,

1005 (La. 1993). However, “when the conclusion regarding medical

causation is not one within common knowledge, expert medical

testimony is required.” Hutchinson, 648 So.2d at 452.

For example, in Cannet, the plaintiff testified at trial that

she did not have any physical ailments prior to the accident but

immediately thereafter felt stiff, her ankle was swollen, and she

endured neck, upper back, and shoulder pain. Cannet v. Franklynn

Pest Control Co., Inc., 08-56 (La.App. 5 Cir. 4/29/08), 985 So.2d

270, 276. The court stated, “we do not find that expert medical

testimony was required in this case where the facts and plaintiff’s

complaints were not uncommon or complicated, and medical causation

could be determined via common knowledge.” Id.

Here, plaintiff did not provide any medical testimony in the

form of a deposition or affidavit by his attending doctor or

medical expert. Rather, plaintiff offers excerpts of his medical

records following the incident. See generally Rec. Doc. 25-3. The

medical records include photos of his injuries, consultant reports

by his doctors, and a list of his prescribed medication. Id.

However, that submitted evidence does not clearly state that the

sued-upon injuries were in all medical probability caused by the

sued-upon accident. See id. at 4-6.

Plaintiff suggests basing a medical causation decision on

common knowledge. Because the Housley and Cannet courts reviewed

the plaintiffs’ causation evidence produced at trial, a summary

decision on causation at this stage appears to be premature.

Additionally, there is no case authority for using one side’s

common knowledge evidence to prove medical causation at the

summary judgment phase, particularly considering t h e

recent extension of discovery deadlines. This ruling does not

preclude a future examination of the Housley presumption.

New Orleans, Louisiana this 23rd day of April, 2021

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE