# Smith v. 3 M Co

> District Court, W.D. Louisiana · September 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10194388

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** September 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10194388

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
LARRY SMITH, ET AL. CIVIL ACTION NO. 20-837
VERSUS JUDGE ELIZABETH E. FOOTE
3M CO., ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
MEMORANDUM RULING

Before the Court are partial motions to dismiss filed by Defendants 3M Company
(“3M”), Empire Abrasive Equipment Corporation (“Empire Corp.”) and Empire Abrasive
Company, L.P. (“Empire Co.”). Record Documents 9, 19, 23, 35, 46, and 49. Plaintiffs Larry
Smith and Dionne Smith oppose all motions. Record Documents 15, 32, 45, 52, and 53. For
the reasons stated herein, all pending motions for partial dismissal [Record Documents 9, 19,
23, 35, 46, and 49] are DENIED.

I. Background
Plaintiff Larry Smith (“Smith”) was employed by Libbey Glass Company from 1980
until 2013. Record Document 30 at ¶ 14. He worked in the cleaning and molding room where
his job duties included abrasive blasting, and he was “continuously exposed to silica and other
hazardous dust.” Id. at ¶s 14-15. Because of this exposure, he wore respirators manufactured,
designed, sold, and recommended by 3M. Id. at ¶s 15-17. Specifically, he alleges that he utilized

the respirators known as 3M 8710 and 3M 8210. Id. at ¶ 18. Empire Co. and/or Empire Corp.
designed, manufactured, distributed, and sold the abrasive blast equipment Smith used in the
course of his work. Id. at ¶ 14.
In June 2020, Plaintiffs filed suit. Record Document 1. Invoking this Court’s diversity
jurisdiction, Smith alleged that the 3M respirators failed to perform properly, which caused him
to develop “an occupational lung disease including silicosis and/or pneumoconiosis.” Id. at ¶

18. He also alleged that Empire Corp.’s abrasive blast cleaning equipment was “defectively
designed, manufactured, produced, distributed, and/or sold and inefficient for abrasive blasting
users.” Id. at ¶ 64. He alleged that the defective design made the product unreasonably
dangerous and was a “producing cause” of his lung disease. Id.
The June 2020 complaint contains numerous counts:
• Count I: product liability claim against 3M. Id. at ¶s 23-30.

• Count II: breach of implied and express warranty claim against 3M. Id. at ¶s
31-36.

• Count III: negligence against 3M. Id. at ¶s 37-41.
• Count IV: misrepresentation against 3M. Id. at ¶s 42-43.
• Count V: fraud against 3M. Id. at ¶s 44-47.
• Count VI: exemplary/punitive damages against 3M. Id. at ¶s 48-53.
• Count VII: gross negligence (seeking punitive damages) against 3M. Id. at ¶s
54-59.

• Count VIII: defective design and failure to warn against Empire Corp. Id. at
¶s 60-62

• Count IX: defective design and failure to warn against Empire Corp.1 Id. at
¶s 63-65.

• Count X: negligence against Empire Corp. Id. at ¶s 66-68.

1 Count VIII and Count IX are identical.
• Count XI: breach of express and implied warranties against Empire Corp.
Id. at ¶s 69-70.

• Count XII: loss of consortium on behalf of Smith’s wife, Plaintiff Dionne
Smith. Id. at ¶s 71-74.

In response to the complaint, 3M filed a partial motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Record Document 9. In that motion, 3M argues that “the
implied warranty component of Count II, and all of Counts III, IV, V, VI, and VII” should be
dismissed. Id. It contends that the implied warranty component of Count II and all of Counts
III, IV, V must be dismissed because Smith filed suit under the Louisiana Products Liability
Act (“LPLA”) and, therefore, may not recover under any theory of liability that is not set forth
in the LPLA. Record Document 9-1 at 1, 6-7. 3M argues that Counts VI and VII seeking
punitive damages must be dismissed because Louisiana law requires punitive damages to be
authorized by statute, which is not the case here. Id. at 3-5.
Plaintiffs filed an opposition to 3M’s motion to dismiss addressing the LPLA challenge
and, contemporaneously therewith, filed an amended complaint which removed the claims
seeking punitive damages (Counts VI and VII) but still contained all other counts. Record
Documents 15 and 16. In response, 3M filed a motion to dismiss re-urging the arguments it
raised regarding the implied warranty component of Count II and all of Counts III, IV, and V.
Record Document 19.
Empire Corp. also filed a partial motion to dismiss pursuant to Rule 12(b)(6) in response
to Plaintiffs’ amended complaint. Record Document 23. In this motion, Empire Corp. argues

that the implied warranty and negligence claims contained in Counts X and XI of the amended
complaint must be dismissed.2 Record Document 23. Like 3M, Empire Corp. maintains that
these claims are barred because the LPLA is the exclusive remedy in this products liability case.
Record Document 24 at 3.

Subsequent to this, the Court reviewed Plaintiffs’ amended complaint and noted that
they failed to properly establish diversity jurisdiction because the complaint failed to name the
state of incorporation and principal place of business for Empire Corp. Record Document 29.
The Court ordered Plaintiffs to amend their complaint to properly establish diversity
jurisdiction. Id. Plaintiffs did so. Record Document 30. This second amended complaint is
identical to the amended complaint in all relevant respects except that it alleges the facts

necessary to establish diversity jurisdiction and adds Empire Co. as a defendant to each claim
originally filed only against Empire Corp. Id.
Because Plaintiffs again amended their complaint, 3M again renewed its motion to
dismiss all non-LPLA claims. Record Document 35. Likewise, Empire Corp. filed another
motion to dismiss seeking dismissal of all non-LPLA claims against it. Record Document 49.
For the first time, Empire Co. filed a motion to dismiss. Record Document 46. Like the other

Defendants, Empire Co. argues that Smith’s non-LPLA claims must be dismissed. Record
Document 47.

2 Plaintiffs’ first amended complaint removes Counts VI and VII but does not renumber
the remaining counts. Thus, the numbering of counts used in the Court’s summary above
remains an accurate reflection of the numbering in Plaintiffs’ amended complaints.
II. Law and Analysis
A. Rule 12(b)(6) Standard
In order to survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting
Twombly, 550 U.S. at 555). A court must accept as true all of the factual allegations in the

complaint in determining whether plaintiff has stated a plausible claim. See Twombly, 550 U.S. at
555; In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). However, a court is
“not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986). If a complaint cannot meet this standard, it may be dismissed
for failure to state a claim upon which relief can be granted. Iqbal, 556 U.S. at 678–79. A court
does not evaluate a plaintiff’s likelihood for success, but instead determines whether a plaintiff

has pleaded a legally cognizable claim. U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d
370, 376 (5th Cir. 2004). A dismissal under 12(b)(6) ends the case “at the point of minimum
expenditure of time and money by the parties and the court.” Twombly, 550 U.S. at 558. A court
may consider “the complaint, its proper attachments, ‘documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.’” Wolcott, 635
F.3d at 763 (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
B. Mooted Motions
Several motions in this case have become moot as Plaintiffs amended their complaint
and Defendants filed subsequent motions after each complaint. First, 3M’s original motion to

dismiss Counts VI and VII seeking punitive damages, the implied warranty component of
Count II, and all of Counts III, IV, V, VI, and VII as non-LPLA claims [Record Document 9]
is DENIED as moot because Plaintiffs filed an amended complaint and because they
withdrew any claims seeking punitive damages. Likewise, 3M’s motion to dismiss [Record
Document 19] and Empire Corp.’s motion to dismiss [Record Document 23] filed in response
to Plaintiffs’ first amended complaint is DENIED as moot because Plaintiffs subsequently

filed a second amended complaint. The Court now turns to the remaining partial motions to
dismiss filed after Plaintiffs submitted their second amended complaint. Record Documents
35, 46, and 49. These motions all seek the same relief—dismissal of all non-LPLA claims related
to the allegedly defective products.3
C. Exclusivity of the Louisiana Products Liability Act

The LPLA became effective on September 1, 1988 and “establishes the exclusive
theories of liability for manufacturers for damage caused by their products.” Brown v. R.J.
Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995) (quoting La. Rev. Stat. § 9:2800.52). The
theories of liability contained in the LPLA are defective design, defective manufacture, failure
to warn, and breach of express warranty. La. Rev. Stat. §§ 9:2800.55-.58. Theories such as
negligence, breach of implied warranty, and fraudulent misrepresentation do not arise under

3 The parties do not seek dismissal of Count XII (Dionne Smith’s loss of consortium
claim), or of any claims filed under the LPLA.
the LPLA. Lewis v. GE Healthcare, Inc., No. 5:19-CV-00490, 2020 WL 1490719, at *4 (W.D. La.
Mar. 25, 2020) (collecting cases). The LPLA is not retroactively applicable, however, and is
therefore not a bar for causes of action which accrued prior to its enactment. Brown, 52 F.3d at

527 (citing Cole v. Celotex Corp., 599 So. 2d 1058, 1063 (La. 1992)).
In this case, Plaintiffs do not dispute that several of their claims, such as negligence and
breach of implied warranty, are barred by the LPLA if they accrued after the LPLA’s 1988
enactment. Record Document 15 at 6. Thus, when Smith’s claims accrued is the central issue
for determination in this matter because if they accrued after 1988, then all of Smith’s non-
LPLA claims must be dismissed. The parties disagree about how to determine when Smith’s

claims accrued, however.
Defendants, citing Fifth Circuit precedent, argue that Smith’s claims related to the 3M
masks and to abrasive blasting equipment accrued when Smith’s injuries occurred. Record
Documents 20 at 2 and 40 at 2. While Smith does not plead the exact date on which he became
ill, they reason that it was after the LPLA’s enactment because he alleges eight years of exposure
prior to its enactment and twenty-five years afterward. Record Document 20 at 2.

According to Plaintiffs, the Court must apply the significant-exposure theory to
determine the accrual date. Record Document 15 at 6-10. This theory, which has been applied
by the Louisiana Supreme Court in several cases involving plaintiffs with a long-latency
occupational disease, determines a claim’s accrual date by determining when the plaintiff has
exposures that are “significant” and “later result in the manifestation of damages.” Austin v.
Abney Mills, Inc., 01-1598 (La. 9/4/02); 824 So. 2d 1137, 1154 (quoting Cole, 599 So. 2d at 1066).

Plaintiffs argue that the accrual date under this standard cannot be determined at this stage of
the litigation because it is heavily fact-based, and that the motion to dismiss must therefore be
denied. Record Document 15 at 9.
The Court turns first to determining which test applies to the instant case. The parties

have directed the Court’s attention to three main cases relevant to this issue—two from the
Louisiana Supreme Court and one from the Fifth Circuit Court of Appeals. A discussion of
each in chronological order is helpful.
In Cole v. Celotex Corporation, the Louisiana Supreme Court had to determine the
applicability of a Louisiana comparative fault statute to several plaintiffs who were exposed to
asbestos in the workplace. Cole, 599 So. 2d at 1061-62. The statute at issue contained a clause

stating that it did not apply to “claims arising from events that occurred prior to” August 1,
1980. Id. at 1064. The court therefore focused its analysis on defining the “relevant ‘events’ in
long-latency occupational disease cases.” Id. at 1066. Ultimately, the court decided that “the key
relevant events giving rise to a claim in long-latency occupational disease cases are the repeated
tortious exposures resulting in continuous, on-going damages, although the disease may not be
considered contracted or manifested until later.” Id. It therefore held that “when the tortious

exposures occurring before [the comparative fault statute’s] effective date are significant and
such exposures later result in the manifestation of damages,” the law in effect before the
comparative fault statute applies. Id.
Nearly ten years later, in 2001, the Fifth Circuit had to decide the accrual date in a case
involving the LPLA. Grenier v. Med. Eng’g Corp., 243 F.3d 200 (5th Cir. 2001). In Grenier, a
plaintiff underwent breast augmentation surgery in 1983 and began experiencing health

problems in the early 1990s that she later alleged were caused by the implants. Id. at 203-04.
Like Plaintiffs in this case, the plaintiff in Grenier included in her complaint numerous theories
of liability including defective design, defective manufacture, failure to warn, breach of warranty
and negligent misrepresentation. Id. at 203. Also like in this case, the availability of claims other

than the those permitted by the LPLA turned on when the plaintiff’s claims accrued. Id. The
Grenier plaintiff, relying on Cole, argued that her claims accrued in 1983 when she received the
implants and began having significant exposure to the product later causing her illness. Id. at
204. The Fifth Circuit rejected this argument. It reasoned that Cole was distinguishable because
the Louisiana Supreme Court was interpreting a statute that applied to “claims arising from events
that occurred” after a certain date, and the LPLA does not contain the same “events” language.

Id. (emphasis in original). The court stated that, “although the events giving rise to [the
plaintiff’s] injuries occurred in 1983, that fact has no bearing on the question of when the
injuries occurred and the cause of action accrued.” Id. The Fifth Circuit held that the date of
injury is the relevant date for accrual. Id.
The next year, in 2002, the Louisiana Supreme Court issued its decision in Austin v.
Abney Mills, Inc. Austin, 824 So. 2d at 1154-55. The Austin plaintiff suffered from a long-latency

asbestos-related disease which he contracted after working for two companies between 1955
and 1998. Id. at 1139. He filed a tort suit against his employers and unnamed executive officers
of the companies. Id. The defendants moved for dismissal, arguing that because the plaintiff
became disabled in 1998, the worker’s compensation statute enacted in 1975 was his exclusive
remedy. Id. at 1141. The court therefore had to determine “when a tort cause of action under
La. Civ. Code art. 2315 accrues in a long-latency occupational disease case in which the
individual suffers from the disease.” Id. at 1143. The court looked to its earlier opinion in Cole
for guidance and explained that:
While the Cole court may not have answered the question presented to us in the
instant case, it did set out a framework for determining when a cause of action
accrues in long-latency occupational disease cases, i.e., the significant exposure
theory, especially when the individual suffers from the disease and the court
must determine the applicable law.

Id. at 1150. The court held that the “significant tortious exposure” theory applies to determine
the accrual date “in a long-latency occupational disease case [ ] wherein the plaintiff suffers
from the disease.” Id. at 1154. The Austin court did not address the Fifth Circuit’s holding in
Grenier, but it did expressly reject the argument that Cole should be limited to its facts because
it was merely interpreting the meaning of “events” under a different statute. Id. at 1152-53.
Defendants argue that because neither the Fifth Circuit nor the Louisiana Supreme
Court has explicitly disavowed Grenier, it remains good law and must be followed. Record
Documents 20 at 3-4 and 40 at 2-3. The Court is not persuaded. First, the holding in Austin
plainly rejected the Grenier court’s rationale for distinguishing Cole when it held that the theory
enunciated in Cole would not be limited to those facts. Second, the Court is persuaded by the
fact that other federal district courts have applied Austin and the significant tortious exposure
theory in cases involving long-latency occupational diseases, including in those involving the
applicability of the LPLA. See, e.g., Hayes v. Asbetos, Corp., Ltd., No. 2:13-2392, 2014 WL
1270011, at *3 (W.D. La. Mar. 27, 2014); Moore v. BASF Corp., No. CIV.A. 11-1001, 2012 WL
4928910, at *2 (E.D. La. Oct. 16, 2012); Singleton v. Chevron USA, Inc., 835 F. Supp. 2d 144, 149
(E.D. La. 2011); Guidry v. S. Petroleum Lab'ys, No. CV 03-936, 2007 WL 9700898, at *3 (M.D.

La. Dec. 11, 2007); Young v. Taylor-Seidenbach, No. CIV.A. 04-715, 2004 WL 1403399, at *3 (E.D.
La. June 22, 2004). Thus, this Court will likewise apply the significant tortious exposure theory
to determine when Smith’s claims accrued and, consequently, whether the LPLA is the
exclusive remedy for Smith’s claims related to products liability.

Under the significant exposure theory, a cause of action in a long-latency occupational
disease case where the plaintiff suffers from the disease accrues when “the exposures are
‘significant and such exposures later result in the manifestation of damages . . . .’ ” Austin, 824
So. 2d at 1154 (quoting Cole, 599 So. 2d at 1066). In a case involving asbestos, tortious
exposures are significant “when asbestos dust has so damaged the body that the fibrogenic
effects of its inhalation will progress independently of further exposure.” Id. (citing Abadie v.

Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So. 2d 46, 65). The plaintiff has the
burden of proof. Id.
At this stage in the litigation, Plaintiffs have carried their burden of pleading facts
sufficient to establish that their cause of action accrued prior to 1988 by alleging that Mr.
Smith’s exposure began in 1980. The exact date at which his exposure was so significant that
Smith’s alleged lung disease would have progressed without further exposure is a factual issue

which cannot appropriately be determined when ruling on a motion to dismiss. Defendants’
motions for partial dismissal [Record Documents 35, 46, and 49] are therefore DENIED.
III. Conclusion
For the reasons stated herein, Record Documents 9, 19, and 23 are DENIED as moot.
The Defendants’ remaining motions for partial dismissal [Record Documents 35, 46, and 49]
are DENIED. This matter is REFERRED to the Magistrate Judge for entry of a scheduling

order.
THUS DONE AND SIGNED thif2nd day of September, 2021.

ELIZABELSHERNY-FOOT
ST) Bs DISTRICT JUDGE

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10194388. Public record. Not legal advice.