Guidry v. Dow Chemical Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHEILA GUIDRY, individually and CIVIL ACTION

on behalf of all others similarly

situated, ET AL.

v. NO. 19-12233

DOW CHEMICAL COMPANY, ET AL. SECTION “F”

ORDER AND REASONS

Before the Court are two motions filed by defendants Dow

Chemical and Union Carbide Company: one for summary judgment and

one for partial judgment on the pleadings. For the reasons that

follow, the motion for summary judgment is DENIED and the motion

for partial judgment on the pleadings is GRANTED.

Background

In 2009, a tank at a Union Carbide facility in Taft, Louisiana

unexpectedly released a quantity of a chemical known as ethyl

acrylate. A class action suit was filed for damages relating to

harms allegedly suffered as a result of that release. More than

12 years later, that case is nearing trial. Before the Court are

two motions by the Defendants seeking to obviate or limit that

trial.

This case has a long and complicated procedural history. It

was originally filed in state court, then removed to federal court,

then remanded back to state court. It was nearing trial in state

court when plaintiffs sent a settlement demand letter in which

they “mused” that “the parameters of a possible settlement can be

safely couched in terms of a range of $60 M[illion] to $275

M[illion].” Guidry v. Dow Chem. Co., 2020 U.S. Dist. LEXIS 202274,

*8 (E.D. La. 2020). On the basis of this and other information,

Defendants removed to federal court a second time, and this Court

denied two motions to remand.1 See id.

Since then, the parties have been engaged in mud-slinging and

time-wasting, with each side accusing the other of various

incurable positional maladies and various forms of misconduct –

and not without cause. Defendants have accused Plaintiffs of

making claims which “border[] on absurdity and [are] vexatious,”

while Plaintiffs have accused Defendants of staking out

“unwarranted” and “arguably frivolous” positions, among other

things. Neither side’s claims about the other’s behavior are

wholly without merit, and the Court expresses its disappointment

in the manner in which counsel is conducting this litigation. With

trial less than five weeks away and with the deadline for pre-

1 The Fifth Circuit denied Plaintiffs’ request to appeal the second

denial without opening a docket.

trial motions now past, the Court considers the various motions

set before it.

Analysis

I. Motion for Summary Judgment on the Issue of Specific

Causation

Defendants submit a motion for summary judgment on the issue

of specific causation. For the reasons that follow, this motion

is DENIED.

A. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary

judgment is appropriate where the record reveals “no genuine

dispute as to any material fact” and where “the movant is entitled

to judgment as a matter of law.” No genuine dispute of fact exists

where the record could not lead a rational trier of fact to find

for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). A genuine dispute of fact

exists only “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

The Supreme Court has emphasized that the mere assertion of

a factual dispute does not defeat an otherwise properly supported

motion. See id. Therefore, where contradictory “evidence is

merely colorable, or is not significantly probative,” summary

judgment remains appropriate. Id. at 249–50 (citation omitted).

Likewise, summary judgment is appropriate where the party opposing

the motion fails to establish an essential element of its case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In

this regard, the nonmoving party must do more than simply deny the

allegations raised by the moving party. See Donaghey v. Ocean

Drilling & Expl. Co., 974 F.2d 646, 649 (5 Cir. 1992). Instead,

it must come forward with competent evidence, such as affidavits

or depositions, to support its competing claim. Id. Hearsay

evidence and unsworn documents that cannot be presented in a form

that would be admissible at trial do not qualify as competent

opposing evidence. Fed. R. Civ. P. 56(c)(2); Martin v. John W.

Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5 Cir. 1987). In

evaluating a summary judgment motion, the Court must read the facts

in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255.

B. Analysis

Defendants would have the Court decide this motion on one

central question: “As a matter of law, can Plaintiffs meet their

burden of proving that ethyl acrylate … was a substantial

contributing factor causing Plaintiffs’ non-specific irritant

symptoms without submitting expert medical testimony supporting

their allegations of specific causation?” Defendants offer many

cases which they say stand for the proposition that, under

Louisiana law, “medical expert testimony [is] a requirement of

proof for specific causation in cases where chemical exposure

allegedly causes some injury forming the basis of a compensation

claim.”

In response, Plaintiffs note that the various cases to which

Defendants point state that medical expert testimony is merely a

requirement to prove general causation and not specific causation.

As the Louisiana Supreme Court has noted, “While expert medical

evidence is sometimes essential, … whether the defendant’s fault[]

was a cause in fact of a plaintiff's personal injury or damage may

be proved by other direct or circumstantial evidence. … See

Prosser, Torts, § 41, p. 269 (5th ed. 1984) (“… on medical matters

within common knowledge, no expert testimony is required to permit

a conclusion as to causation”). Lasha v. Olin Corp., 625 So. 2d

1002, 1005 (La. 1993) (citations omitted).

In toxic tort cases such as this one, the Fifth Circuit has

typically required expert testimony to prove causation. See, e.g.,

Seaman v. Seacor Marine L.L.C., 326 Fed. Appx. 721, 729 (5 Cir.

2009) (“without admissible expert evidence in this toxic-tort

case, Seaman cannot prove causation”). This requirement certainly

applies to general causation but is less clear as applied to

specific causation. In Cibilic v. BP Exploration & Prod., 2017

U.S. Dist. LEXIS 40056 (E.D. La. 2017), another section of this

court granted summary judgment in a toxic tort case because the

plaintiff produced no expert testimony on the issue of causation.

The court therein held that, as “the causal link between exposure

to oil and dispersants and lung cancer is not within the

layperson's common knowledge,” expert testimony was required for

general as well as specific causation. Cibilic, 2017 U.S. Dist.

LEXIS 40056 at *4.

Thus, if this Court holds that the relation between the ethyl

acrylate and the complained-of injuries is “within the layperson’s

common knowledge,” the general causation evidence which Plaintiffs

intend to present at trial is sufficient to meet their burden of

proof with regard to summary judgment. Louisiana courts have found

that common issues such as “dehydration, overheating, exhaustion,

mental anguish, fear, stress, anxiety, and depression” are within

common knowledge. Ainsworth v. Am. Home Assur. Co., 239 So. 3d

359, 365-366 (La. App. 4 Cir. 2018). The court therein held that

“medical expert testimony is not required to establish causation

for temporary pain and suffering.” Id. at 366. The complaints

presented in this case – which include “eyes, nose, or throat

irritation, coughing, choking or gagging, or nausea, or headaches,

dizziness, trouble breathing, or other respiratory issues,”

according to the Plaintiffs – are all forms of temporary pain and

suffering.2

Defendants retort that “whether a chemical release causes

individuals to experience irritant symptoms such as nausea, eye

irritation, coughing, throat irritation and headaches is not a

determination that can be made based on the common knowledge held

by jurors.” In support of this claim, Defendants cite Johnson v.

E. I. DuPont deNemours & Co., 7 So. 3d 734, 740 (La. Ct. App. 5

Cir. 2009), which states: “whether or not plaintiffs suffered

injuries as a result of chemical exposure from the Dupont incident

is not a determination based on common knowledge, so the plaintiffs

were required to present expert medical testimony in order to meet

their burden of proving medical causation.”3 Once again, however,

Defendants have confused specific and general causation.

Plaintiffs have produced an expert whose opinion, if accepted by

the jury, will suffice to prove that the injuries suffered by

2 To the extent that Plaintiffs wish to pursue claims for injuries

not within common knowledge, such as a link between the ethyl

acrylate release and cancer, they will have to prove this with

expert testimony. However, as the list here demonstrates,

Plaintiffs are not advancing any such claims.

3 In Johnson, notably, the expert witness was a medical doctor who

treated individual patients. He described their symptoms but made

no claim as to their cause except to say that his patients informed

him that they had been involved in a chemical explosion. See

Johnson, So. 3d 734 at 738. In this case, the situation is almost

exactly opposite: Plaintiffs have produced an expert who did not

treat the individual patients but who is producing an opinion as

to the cause of their symptoms.

members of the class could have been caused by the ethyl acrylate

release. This is the necessary role of expert testimony in a case

where issues of common knowledge are at play.

The Court agrees with Plaintiffs that “[e]xpert testimony on

general causation combined with specific evidence of the nature of

the class member's exposure is sufficient to permit the jury to

conclude that the E.A. release was more likely than not the cause

of the class representative's transient symptoms.” As the standard

for summary judgment is therefore unmet, the Court will deny this

motion for summary judgment.

II. Motion for Partial Judgment on the Pleadings

Defendants submit a motion for partial judgment on the

pleadings through which they request that the Court dismiss all

claims for punitive damages and strict liability. For the reasons

that follow, this motion is GRANTED.

A. Legal Standard

“A motion brought pursuant to Fed.R.Civ.P. 12(c) is designed

to dispose of cases where the material facts are not in dispute

and a judgment on the merits can be rendered by looking to the

substance of the pleadings and any judicially noticed facts.”

Hebert Abstract Co. v. Touchstone Properties, 914 F.2d 74, 76 (5

Cir. 1990) (citations omitted). Rule 12(c) motions are subject to

the same standard as a motion to dismiss filed under Rule 12(b)(6).

See Doe v. MySpace Inc., 528 F.3d 413, 418 (5 Cir. 2008). “To

survive a motion to dismiss” under Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 [2007]). In stating a plausible claim,

a plaintiff must plead facts which allow “the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In determining whether a plaintiff has

met this burden, a court must “accept all well-pleaded facts as

true and view all facts in the light most favorable to the

plaintiff,” but must not accord an assumption of truth to

conclusory allegations and threadbare assertions. Thompson v.

City of Waco, 764 F.3d 500, 502 (5 Cir. 2014). Further, the Court

may judicially notice matters of public record and other facts not

subject to reasonable dispute. See United States ex rel. Willard

v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5 Cir.

2003).

B. Analysis

In their Rule 12(c) motion, Defendants submit that Louisiana

law in effect at the time of the incident contained no provision

for recovery of punitive damages. Defendants also submit that

under the relevant statutes, strict liability does not exist except

for “ultrahazardous activit[ies],” which are “strictly limited to

pile driving or blasting with explosives.” La. C.C. Art. 667.

Plaintiffs do not dispute this correct statement of law but instead

contend, first, that the motion is untimely, and second, that

Defendants are subject to punitive damages under Louisiana state

conflict of law analysis. The Court will consider each of these

contentions in turn.

Plaintiffs maintain that Defendants’ motion, styled as a Rule

12(c) motion, is more properly a Rule 12(b)(6) motion to dismiss

for failure to state a claim. As Rule 12(b)(6) requires the

defense to be filed before pleading, Plaintiffs ask the Court to

deny the motion as untimely.4 Plaintiffs’ legal precedent for this

assertion is badly construed and out-of-circuit. The leading case

they cite concerns a motion filed under Rule 12(b)(6), and the

court therein rules on the merit of the motion as if it had been

filed under Rule 12(c). See Great Lakes Gas Transmission Ltd.

P'ship v. Essar Steel Minn., LLC, 871 F.Supp.2d 843, 850 (D. Minn.

4 Plaintiffs note that even if this motion had been properly filed

as a motion seeking summary judgment under Rule 56, it would be

untimely, as Rule 56 permits filing until 30 days after the close

of discovery. However, Rule 56 states that the 30 day limit is

“[u]nless … the court orders otherwise,” and the Court’s scheduling

order (Rec. Doc. 82) permitted motions such as this to be filed as

late as 9/14. It appears Plaintiffs are aware of the futility of

this contention, as they do not raise it against the summary

judgment motion already addressed in these Reasons.

2012). Perhaps they cannot find case law on point because the

Federal Rules provide for exactly what Defendants have done in

this case: Rule 12(h)(2) provides that “[f]ailure to state a claim

upon which relief can be granted … may be raised: (A) in any

pleading allowed or ordered under Rule 7(a); (B) by a motion under

Rule 12(c); or (C) at trial.”

Moreover, if the Court were to deny this motion, there would

still be no claim upon which relief may be granted under Louisiana

law.5 Plaintiffs assert that Defendants have shown “blatant

disregard of the Federal Rules and jurisprudence” by filing this

motion. It is instead Plaintiffs who have disregarded the Federal

Rules by asserting this baseless claim for untimeliness.

Plaintiffs’ conflict of laws contention is more substantive,

but still fails. Plaintiffs correctly note that Louisiana state

law provides for punitive damages in limited circumstances. La.

C.C. Art. 3546 reads:

Punitive damages may not be awarded by a court of this state

unless authorized:

(1) By the law of the state where the injurious conduct

occurred and by either the law of the state where the

resulting injury occurred or the law of the place where the

person whose conduct caused the injury was domiciled; or

(2) By the law of the state in which the injury occurred and

by the law of the state where the person whose conduct caused

the injury was domiciled.

5 Pending, of course, Plaintiffs’ conflict of laws assertion, which

will be discussed shortly.

As certified, no member of the class asserting claims for injury

hails from outside the state of Louisiana, so, as the Louisiana

Supreme Court has noted, subparagraph (2) of Art. 3546 provides no

support for punitive damages. See, e.g., Arabie v. CITGO Petroleum

Corp., 89 So. 3d 307, 313 (La. 2012) (“Subparagraph (2) of the

article requires that punitive damages be authorized by both the

state in which injury occurred and the state of domicile of the

person who caused the injury. Because it is undisputed that all

the injuries occurred in Louisiana, subparagraph (2) clearly does

not apply.”).6

The Court then turns to the language in subparagraph (1).

Plaintiffs have not asserted, either in their initial pleadings or

in response, that any injurious conduct occurred outside the state

of Louisiana. To excuse this obvious flaw in their argument,

Plaintiffs rely on their timeliness contention: they claim that,

had Defendants raised this defense on time, Plaintiffs could have

conducted discovery to determine if any injurious conduct occurred

out of the state. This claim is irrelevant. As Defendants point

6 Then-Justice Guidry (the Court is not aware of any relation)

wrote a compelling concurrence in this case, which reads in part:

“Our Legislature has taken concerted effort to bar recovery for

punitive damages in toxic tort cases … To allow recovery under

these facts, would infer a jurisprudential rule that corporations

headquartered out-of-state can be held vicariously liable through

the application of another forum's laws for its Louisiana

employees' tortious acts absent evidence of management's

participation, consent or control.” Arabie, 89 So. 3d at 337-338.

out in their reply, Plaintiffs would have needed such evidence to

prove their claim under the laws of another jurisdiction had this

claim made it to trial, as Louisiana state law does not provide

for punitive damages for in-state conduct. If Plaintiffs wished

to pursue punitive damages under Michigan or Texas law,7 they

should have conducted discovery for the evidence needed to prove

their claim whether or not they anticipated this defense.

Plaintiffs have no leg to stand on. Louisiana law does not

provide for strict liability. Louisiana law only provides for

punitive damages where there is a true conflict of laws arising of

out-of-state injuries or injurious conduct. Plaintiffs have not

asserted that any injury or any injurious conduct occurred outside

of the state of Louisiana. Therefore, the Court will grant this

motion for partial judgment on the pleadings.

Conclusion

Accordingly, IT IS ORDERED:

That Defendants Dow Chemical and Union Carbide’s motion for

summary judgment is DENIED; and

7 Plaintiffs assert that defendant Dow Chemical is a domiciliary

of Michigan and that defendant Union Carbide is a domiciliary of

Texas. As the Court concludes that this motion should be granted,

it declines to conduct an analysis of either the domiciliary of

these defendants or of the laws of those states.

That Defendants Dow Chemical and Union Carbide’s motion for

partial judgment on the pleadings is GRANTED. Plaintiffs’ claims

for punitive damages and strict liability are hereby dismissed

with prejudice.

New Orleans, Louisiana, Sept. 29, 2021

iti C. FELDMAN

UNITED STATES DISTRICT JUDGE