Seguin v. Remington Arms

Case: 17-30499 Document: 00516157336 Page: 1 Date Filed: 01/06/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

January 6, 2022

No. 17-30499 Lyle W. Cayce

Clerk

Precious Seguin,

Plaintiff—Appellee,

versus

Remington Arms Company, L.L.C.,

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CV-2442

Before Owen, Chief Judge, and Dennis and Southwick, Circuit

Judges.

Leslie H. Southwick, Circuit Judge:

Precious Seguin was shot in the hip during a hunting accident when

her father’s firearm accidentally discharged. Seguin claimed that a faulty

design caused the discharge, and she sued the firearm manufacturer for

defective design under Louisiana law. This case presents the limited

question of whether Louisiana Revised Statute § 9:2800.60, which limits

certain products liability claims against firearms manufacturers and sellers,

bars Seguin’s claim. At summary judgment, the district court held that it did

not and entered judgment for Seguin.

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No. 17-30499

The required interpretation of the controlling Louisiana statute

presents unresolved and difficult questions of state law. We therefore

CERTIFY the relevant question to the Louisiana Supreme Court,

requesting that it provide us a definitive answer.

Before addressing the reasons for certification, we must consider an

issue of our jurisdiction. Absent jurisdiction, we have no basis for any ruling

beyond what is needed to dismiss. The complaint filed in the United States

District Court for the Eastern District of Louisiana alleged there was

diversity jurisdiction over the defendant manufacturer, Remington Arms

Company, L.L.C. The parties now agree that the complaint did not make

accurate assertions about Remington’s citizenship. We explain.

Diversity jurisdiction exists where “the matter in controversy exceeds

the sum or value of $75,000, exclusive of interest and costs, and is

between . . . citizens of different States.” 28 U.S.C. § 1332(a). The

complaint stated that the plaintiffs were citizens of Louisiana and that

Remington was a company incorporated in Delaware with its principal place

of business in North Carolina. Instead, Remington is a limited liability

company whose citizenship is determined by the citizenship of each its

members. As we will later explain, the states of Remington’s citizenship —

Delaware and North Carolina — were accurately identified in this complaint,

but the reasons those were the correct states were inaccurately detailed.

The citizenship of the parties must be “distinctly and affirmatively

alleged,” which means alleged in the complaint. Getty Oil Corp. v. Insurance

Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (quoting McGovern v.

American Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975)). Failure to plead

correctly is not necessarily fatal to the suit. “Defective allegations of

jurisdiction may be amended . . . in the trial or appellate courts.” 28 U.S.C.

§ 1653. Whether a formal amendment is needed once the case is on appeal,

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and the significance of whether jurisdictional facts appear in the record when

they were not asserted in the complaint, have been analyzed in many

precedents.

One approach taken by the Supreme Court, before the current statute

regarding amendments was adopted in 1948, was to rely on concessions by

the parties as opposed to record evidence after the plaintiff had insufficiently

alleged the defendant’s citizenship in the complaint. Realty Holding Co. v.

Donaldson, 268 U.S. 398, 399–400 (1925). The Court declined to remand to

district court to remedy the error because the defendant had “conceded . . .

that she was in fact a citizen of Michigan; and the court below assumed the

point.” Id. at 400. The Court continued: “Since the defect may be cured by

amendment and nothing is to be gained by sending the case back for that

purpose, we shall consider the amendment made and dispose of the case.”

Id. Though the Court did not cite the predecessor statute to Section 1653, its

reference to curing the defect by amendment likely was referring to the first

version of the statute, adopted in 1915, which provided that when “diverse

citizenship in fact existed at the time the suit was brought or removed, though

defectively alleged, either party may amend at any stage of the proceedings

and in the appellate court upon such terms as the court may impose.” Act of

March 3, 1915, ch. 90, 38 Stat. 956 (1915); see Newman-Green, Inc. v. Alfonzo-

Larrain, 490 U.S. 826, 831 (1989). Later, in a case in which the complaint

made no allegation about the amount in controversy, the Court stated it was

conceded that the necessary amount was satisfied; because of the court’s

“disposition of the case,” which was to reverse and render, “no purpose

would be served by requiring a formal amendment” under Section 1653.

Schlesinger v. Councilman, 420 U.S. 738, 744 n. 9 (1975).

We have followed different approaches when the complaint fails to

allege jurisdiction properly. In an early opinion after the adoption of the

current statute on amendments, this court sua sponte noted the complaint’s

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failure to allege diverse citizenship sufficiently. See Kaufman v. Western

Union Tel. Co., 224 F.2d 723, 725 (5th Cir. 1955). The court resolved the

appeal on the merits by relying on information outside the lower-court record

but required the plaintiff to file an amended complaint in this court within

ten days after the court’s decision. Id. A slightly later opinion from our court

cited Kaufman and held that allowing an amendment on appeal to the

assertions of jurisdiction in a petition for removal was proper when the truth

of the revisions was conceded by the other party. Firemen’s Ins. Co. v. Robbins

Coal Co., 288 F.2d 349, 350 (5th Cir. 1961).

One opinion attempted to systematize our precedent by stating that

“[w]here jurisdiction is clear from the record, this Court has allowed direct

amendments to the pleadings without a remand.” Molett v. Penrod Drilling

Co., 872 F.2d 1221, 1228 (5th Cir. 1989). When the record is less clear “but

there is some reason to believe that jurisdiction exists, the Court may remand

the case to the district court for amendment of the allegations and for the

record to be supplemented.” Id. A recent remand for a district court to

examine citizenship in the absence of any record evidence is Midcap Media

Finance, L.L.C. v. Pathway Data, Inc., 929 F.3d 310 (5th Cir. 2019).

Examples of declining to remand include one case in which the

plaintiffs had failed to allege all relevant facts of citizenship; we granted the

plaintiffs’ motion to amend the pleadings under Section 1653 “because the

record otherwise evidence[d] a substantial likelihood of diverse citizenship.”

Nadler v. American Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985). In

another case, when the parties stipulated to jurisdictional facts “not subject

to reasonable dispute” set forth in publicly available documents, we took

judicial notice of those facts under Federal Rule of Evidence 201(b)(2) and

relied on Section 1653 in declining to remand to remedy a jurisdictional

pleading deficiency. See Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516,

519 & n.2 (5th Cir. 2015). Finally, in an earlier appeal involving Remington,

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we relied on a joint submission by the parties establishing citizenship.

Burdett v. Remington Arms Co., 854 F.3d 733, 734 n.1 (5th Cir. 2017).

These opinions may well not be entirely consistent, but they reflect

approaches this court has followed. As we were considering our options, we

required the parties in this appeal to state if they could agree on Remington’s

citizenship. They could, as shown in this excerpt from their joint letter:

Remington is a Delaware limited liability company with

its principal place of business in North Carolina. Remington

filed a Corporate Disclosure Statement in the underlying

matter on December 24, 2014. (D.E. 11), providing that the

sole member of Remington is FGI Operating Company, LLC,

and no publicly traded corporation owns ten percent (10%) or

more of its stock.

The parties further agreed to this:

FGI Operating Company, LLC (“FGI Operating”) is

the sole member of Remington. FGI Operating is a Delaware

limited liability company with its principal place of business in

North Carolina. FGI Holding Company, LLC (“FGI

Holding”) is the sole member of FGI Operating. FGI Holding

is a Delaware limited liability company with its principal place

of business in North Carolina. Remington Outdoor Company,

Inc. is the sole member of FGI Holding. Remington Outdoor

Company, Inc. is a Delaware corporation with its principal

place of business in North Carolina.

We conclude that a substantial likelihood of diversity was supported

by the record. First, the complaint alleged the correct states for citizenship

but did not properly explain why they were correct. Second, the recent joint

letter cited a disclosure statement filed in district court by Remington in 2014

that detailed most of the relevant information on citizenship. The likelihood

of diversity is now known to be a reality due to the joint letter. After receiving

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the letter, we required the Plaintiff to file an amended complaint. Plaintiff

did, and the current complaint properly asserts diverse citizenship.

Having assured ourselves of jurisdiction, we now return to the reasons

for certification. We may certify an unsettled question of state law to a state’s

highest court when that court has a procedure permitting such questions to

be posed. See 17A Charles Alan Wright, et al., Federal

Practice & Procedure § 4248 (3d ed. 2015). The Louisiana Supreme

Court has such a procedural rule. See LA. SUP. Ct. R. XII, § 1.

Because this appeal turns on a novel question of Louisiana statutory

interpretation that neither the Louisiana Supreme Court nor any lower

Louisiana court has answered, we now certify the question stated below to

the Louisiana Supreme Court.

Certificate from the United States Court of

Appeals for the Fifth Circuit to the Supreme

Court of Louisiana, Pursuant to Rule XII,

Louisiana Supreme Court Rules.

To the Supreme Court of Louisiana and the

Honorable Justices Thereof:

I. STYLE OF THE CASE

The style of the case in which certification is made is Precious Seguin v.

Remington Arms Company, L.L.C., No. 17-30499, in the United States Court

of Appeals for the Fifth Circuit, on appeal from the United States District

Court for the Eastern District of Louisiana.

II. STATEMENT OF FACTS

Seguin, her father, and two others were tracking a wounded deer at

night in the woods near Loranger, Louisiana, when her father’s firearm

accidentally discharged, injuring Seguin. Seguin believed that a faulty design

caused the accidental discharge, so she brought a Louisiana products liability

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action against Remington Arms Co., L.L.C. (“Remington”) to recover for

her injuries.

Before trial, the parties filed a Joint Statement of Uncontested

Material Facts and cross-motions for summary judgment. The statement of

facts included several stipulations related to the Louisiana Products Liability

Act (“LPLA”). La. Stat. Ann. §§ 9:2800.51–60. The parties stipulated

that the LPLA exclusively governs Seguin’s claims. Remington is a

“firearms manufacturer” under Section 60; Seguin is a “claimant” under

Section 53(4); and Seguin’s only products liability claim was for a design

defect under Section 56 and not for a manufacturing defect under Section 55.

Based on these stipulations, the district court concluded that summary

judgment turned on a single statutory interpretation question: Does LPLA

Section 60(B) permit Seguin to recover for a design defect claim against

Remington?

The district court held that Section 60(B) did not bar Seguin’s Section

9:2800.56 design-defect claim against Remington. The court reasoned that

Section 60(B) was susceptible to two interpretations and was thus

ambiguous. The court also determined that applying either interpretation

would lead to an absurd result. As a result of that conclusion, the district

court considered the legislative intent and history of Section 60(B) and found

that its purpose was not to preclude legitimate design defect claims. It thus

granted summary judgment for Seguin on her design defect claim, dismissed

her remaining claims with prejudice, and entered final judgment in her favor

for $500,000. Remington timely appealed.

III. The Question of Law

The issue on appeal is whether the district court erred when it held

that Section 60(B), part of a 1999 amendment to the LPLA, did not bar

Seguin from bringing a design defect products liability claim against

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Remington, a firearms manufacturer. The LPLA “establishes the exclusive

theories of liability for manufacturers for damage caused by their products.”

La. Stat. Ann. § 9:2800.52. A claimant may recover from a

manufacturer for injuries from an unreasonably dangerous product. Id.

§ 9:2800.54(A). A product is unreasonably dangerous under that statute if:

(1) The product is unreasonably dangerous in construction or

composition as provided in R.S. 9:2800.55;

(2) The product is unreasonably dangerous in design as

provided in R.S. 9:2800.56;

(3) The product is unreasonably dangerous because an

adequate warning about the product has not been provided as

provided in R.S. 9:2800.57; or

(4) The product is unreasonably dangerous because it does not

conform to an express warranty of the manufacturer about the

product as provided in R.S. 9:2800.58.

Id. § 9:2800.54(B).

The Louisiana Legislature amended the LPLA to limit products

liability actions against firearm manufacturers. The amendment is codified

in Section 60 of the LPLA. Id. § 9:2800.60. This appeal focuses on Section

60(B) of that provision, which provides:

No firearm manufacturer or seller shall be liable for any injury,

damage, or death resulting from any shooting injury by any

other person unless the claimant proves and shows that such

injury, damage, or death was proximately caused by the

unreasonably dangerous construction or composition of the

product as provided in R.S. 9:2800.55.

Id. § 9:2800.60(B). On appeal, Remington argues that, under the facts of this

case, Section 60(B) plainly shields the company from all product liability

theories except for a manufacturing defect claim under Section 55. Since

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Seguin had stipulated that her only claim was for a design defect under

Section 56, Remington concludes it was entitled to summary judgment.

Seguin does not dispute that Section 60(B), interpreted literally,

precludes her design defect claim. Instead, she argues that if Section 60(B)

precludes Section 56 design defect claims, then subsections 60(C)–(F),

which address other aspects of a firearm manufacturers’ or sellers’ liability,

would be superfluous. Seguin contends that any effort to interpret these

different sections in a consistent manner reveals that Section 60(B) is

ambiguous. Consequently, the court should consider legislative history, and

that allowing Section 56 design defect claims against firearm manufacturers

would be more consistent with legislative intent. Perhaps most

fundamentally, though, Seguin also argues that either possible literal

interpretation of the statute would be absurd.

The question of whether Section 9:2800.60(B) bars Section 56 design

defect claims against firearm manufacturers presents an issue of state law that

is unanswered by the Louisiana courts, so we invoke Louisiana Supreme

Court Rule XII and certify this question to the Louisiana Supreme Court. See

La. Sup. Ct. R. XXI § 1.

IV. QUESTION THAT WE CERTIFY

We certify the following question of law to the Supreme Court of

Louisiana: Does § 9:2800.60(B) of the Louisiana Products Liability Act bar

an individual, who is shot and injured by a third-party, from bringing a design

defect claim under § 9:2800.56 against a firearm manufacturer or seller?

If the Louisiana Supreme Court accepts this certificate, its answer will

determine the outcome of this appeal. We do not intend to confine the reply

of the Supreme Court of Louisiana to the precise form or scope of the

question certified. QUESTION CERTIFIED.

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James L. Dennis, Circuit Judge, dissenting:

I respectfully dissent from the majority’s certification of its question

to the Louisiana Supreme Court. That question—“Does § 9:2800.60(B) of

the Louisiana Products Liability Act bar an individual, who is shot and injured

by a third-party, from bringing a design defect claim under § 9:2800.56

against a firearm manufacturer or seller?”—is not appropriate for

certification because: (1) it is not determinative of this cause independently

of any other question involved in this case; and (2) there are clear controlling

precedents in the Louisiana Supreme Court decisions that require this court

to affirm the district court’s judgment without seeking an answer to a novel

question that favors a party’s litigation position. See La. Supreme Court Rule

XII, section 1.

The parties in this case, both desiring to avoid the costs of a trial,

entered a stipulation that they would file cross-motions for summary

judgment, with Seguin relying on her theory of a design defect in the rifle

based on her expert’s report, and Remington relying on Louisiana Revised

Statute § 9:2800.60(B) 1 (“§60(B)”), which effectively requires that a claim

against a firearm manufacturer or seller may be pursued or proven only as a

construction or composition claim. Per the stipulation, if the district court

granted Remington’s motion, judgment would be entered denying all of

Seguin’s claims; but, if the court granted Seguin’s motion instead, judgment

would be rendered in her favor in the amount of $500,000, regardless of her

1

§60(B) provides: “No firearm manufacturer or seller shall be liable for any injury,

damage, or death resulting from any shooting injury by any other person unless the claimant

proves and shows that such injury, damage, or death was proximately caused by the

unreasonably dangerous construction or composition of the product as provided in R.S.

9:2800.55.”

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actual damages. After considering briefs and oral arguments, the district

court concluded that applying §60(B) literally would lead to absurd

consequences; therefore, the court concluded that Seguin had presented a

litigable design defect claim under the Louisiana Products Liability Act

(“LPLA”), see La. R.S. 9:2800.56, and, in accordance with the parties’

stipulation, awarded Seguin $500,000 in damages.

I agree that applying §60(B) literally to the present case would lead to

absurd consequences, viz., treating all firearm injury or death claims as if they

were construction or composition claims, contrary to the intent of design or

warning defect claimants; incentivizing the corrupt efforts of special interest

lobbyists; and misshaping the development of Louisiana products liability law

in ways that are incongruous and inappropriate to a shocking degree.

The LPLA, enacted in 1988, was the careful result of a compromise

between the Louisiana Trial Lawyers Association (“LTLA”) and the

Louisiana Association of Business and Industry (“LABI”), see Thomas

Galligan, The Louisiana Products Liability Act: Making Sense of It All, 49 La.

L. Rev. 629, 637-38 (1989); on the other hand, §60(B) was added eleven

years later in 1999. As the district court correctly realized, applying §60(B)

literally would lead to absurd consequences. Not only would it totally isolate

and protect gun manufacturers from claims for design defects and inadequate

warnings, but it would also incentivize the marketing of unsafe firearm

products for use in Louisiana, and would deviate sharply from cases in

Louisiana and all other states and jurisdictions, as well as from the original

LPLA (1988), and from the American Law Institute’s (“ALI”) Restatements

Second and Third of the Law of Torts-Products Liability. To my knowledge,

no other state, jurisdiction, or institute has completely insulated firearms

manufacturers from design defect and inadequate instruction or warning

claims.

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By its literal terms, §60(B) provides that no gun manufacturer or seller

shall be liable to anyone shot by any other person unless the claimant proves

that such injury or death was proximately caused by the construction or

composition of the product under La. R.S. 9:2800.55. Thus, applied literally,

§60(B) is a double-barreled blunderbuss that denies any claim against a gun

maker unless it is proven as a construction or composition claim, a

requirement that is no concession or sop: To prove a gun defective in

construction or composition requires a claimant to prove that “the product

deviated in a material way from the manufacturer’s specifications or

performance standards” at the time it left the manufacturer’s control. See

La. R.S. 9:2800.55.

Thus, if a person is harmed by a rifle that discharged without a trigger

pull, as Seguin claims, she would not be able to hold the manufacturer liable

so long as the rifle met the manufacturer’s own specifications when it left the

maker or seller’s control—even if those specifications included a defectively

designed trigger mechanism that can cause the gun to discharge without a

trigger pull, and even if, as Seguin’s expert Charles Powell wrote in his

report, the gun manufacturer’s entire product line has such a defectively

designed trigger mechanism, and even if the manufacturer has known about

the dangerous defect for years. This is an absurd result, which would

aggravate victims’ actual losses by grotesquely converting all of their claims

into losing manufacturing defect claims. The manufacturing defect claim

under § 9:2800.55 cannot serve to prove a design defect or inadequate

instruction or warning claim; the upshot of a literal application of §60(B) to

this or similar cases would be defeat of all design and inadequate warning

claims against gun manufacturers.

In this respect, a literal application of §60(B) would break sharply with

American and Louisiana products liability law, most of which was made

initially by courts in common law fashion until the ALI began the

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Restatements. Louisiana joined this process and adopted its principles

starting with Weber v. Fidelity & Casualty Insurance Company of New York, 250

So. 2d 754 (La. 1971). It is solidly established in American and Louisiana

products liability law that product defects are divided into manufacturing

defects, design defects, and defects based on inadequate instructions or

warnings. See Restatement (Third) of Torts: Products Liability § 1, cmt. a,

note 1. 2 The identical division is present in the LPLA, as originally enacted,

see La. R.S. 9:2800.55–57 (1988), and was established by the Louisiana

Supreme Court in pre-LPLA Louisiana products liability jurisprudence. See

Halphen v. Johns-Manville, 484 So. 2d 110 (La. 1986). This system of three

2

See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 881-82 (Alaska 1979); Dart

v. Wiebe Mfg., Inc., 709 P.2d 876, 878-79 (Ariz. 1985); Barker v. Lull Eng’g Co., 573 P.2d

443, 454 (Cal. 1978); Cassisi v. Maytag Co., 396 So.2d 1140, 1145 (Fla. Ct. App. 1981); Hunt

v. Harley-Davidson Motor Co., 248 S.E.2d 15, 15-17 (Ga. Ct. App. 1978); Toner v. Lederle

Labs., 732 P.2d 297, 316 (Idaho 1987) (Bakes, J., concurring); Hoffman v. E.W. Bliss Co.,

448 N.E.2d 277, 281 (Ind. 1983); Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 200 (Ky.

1976); Phipps v. General Motors Corp., 363 A.2d 955, 959 (Md. 1976); Back v. Wickes Corp.,

378 N.E.2d 964, 970 (Mass. 1978); Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 182 (Mich.

1984); Bilotta v. Kelley Co., 346 N.W.2d 616, 621-22 (Minn. 1984); Miss. Code Ann. § 11-

1-63 (1993) (establishing different liability tests for manufacturing, design, and failure to

warn defects); Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375-77 (Mo. 1986);

Rix v. General Motors Corp., 723 P.2d 195, 200 (Mont. 1986); Thibault v. Sears, Roebuck &

Co., 395 A.2d 843, 846-47 (N.H. 1978); O’Brien v. Muskin Corp., 463 A.2d 298, 304 (N.J.

1983); see also N.J. Stat. Ann. §§ 2A:58C-2, 3 (West 1987) (establishing different defenses

based on whether product was defective in manufacture, design, or warning); Denny v. Ford

Motor Co., 662 N.E.2d 730, 735 n. 3 (N.Y. 1995); State Farm Fire & Casualty Co. v. Chrysler

Corp., 523 N.E.2d 489, 494 (Ohio 1988) (see also Ohio Rev. Code Ann. §§ 2307.74-76

(Anderson 1991) (establishing different liability tests for manufacturing defects, design

defects, and failure to warn)); Phillips v. Kimwood Mach. Co., 525 P.2d 1033, 1035-38 (Or.

1974) (see also Or. Rev. Stat. § 30.900 (1991)); Turner v. General Motors Corp., 584 S.W.2d

844, 847-48 (Tex. 1979) (see also Tex. Civ. Prac. & Rem. Code Ann. § 82.005 (West 1993)

(sets standards for proving a design defect which do not govern a manufacturing defect));

Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 912 (S.D. 1987); Baughn v. Honda

Motor Co., Ltd., 727 P.2d 655, 661 (Wash. 1986) (see also Wash. Rev. Code Ann. § 7.72.030

(West 1992) (establishing different standards for manufacturing, design, and failure to warn

defects)); Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666, 682 (W. Va. 1979).

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main categories of product defects is also well recognized by eminent law

professors and treatise writers; indeed, it is so fundamental that most

casebook authors and treatise writers organize their discussions concerning

product defects around these categories. See Restatement (Third) of Torts:

Products Liability § 1, cmt. a, note 1. 3 Legal scholarship and commentary

also recognize this division as fundamental to the law of products liability.

Id. 4

3

See, e.g., Fischer and Powers, Products Liability: Cases and

Materials Ch. 2C (1988); Franklin and Rabin, Tort Law and

Alternatives 492-541 (6th ed. 1996); Henderson and Twerski, Products

Liability: Problems and Process Parts I and II (3d ed. 1997); Madden,

Products Liability: Chs. 8, 9, 10 (2d ed. 1988); Noel and Phillips,

Products Liability: Cases and Materials Chs. 5-7 (1976); Owen,

Montgomery and Keeton, Cases and Materials on Products

Liability and Safety Ch. 7 (3d ed. 1996); Phillips, Terry, Maraist,

McClellan, Tort Law: Cases, Materials, Problems 717-30 (1991);

Keeton, Dobbs, Keeton and Owen, Prosser and Keeton, On the Law

of Torts § 99 (5th ed. 1984 & Supp. 1988); Shapo, The Law of Products

Liability Chs. 9, 19 (2d ed. 1990).

4

See, e.g., Sheila L. Birnbaum, Unmasking the Test for Design Defect: from Negligence

[to Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593, 599-600 (1980);

David K. DeWolf & Keller W. Allen, Liability for Manufacturers in Washington: When Is

Strict Liability Appropriate?, 27 Gonz. L. Rev. 217, 235-39 (1991/1992); Dennis J.

Dobbels, Missouri Products Liability Law Revisited: A Look at Missouri Strict Products

Liability Law Before and After the Tort Reform Act, 53 Mo. L. Rev. 227 (1988); Raymond

J. Kenney, Products Liability in Massachusetts Enters the 1990’s, 75 Mass. L. Rev. 70

(1990); Keith Miller, Design Defect Litigation in Iowa: The Myths of Strict Liability, 40

Drake L. Rev. 465, 471 (1991); William Mowery, Comment, Torts—A Survey of the Law

of Strict Products Liability in New Mexico, 11 N.M. L. Rev. 359, 383-87 (1981); Note,

Minnesota Replaces the Restatement Standard with a Negligence Standard, 11 Wm.

Mitchell L. Rev. 891, 892-96 (1985); David G. Owen, The Moral Foundations of Product

Liability Law: Toward First Principles, 68 Notre Dame L. Rev. 427, 463-77 (1993);

William Powers, A Modest Proposal to Abandon Strict Products Liability, 1991 U. Ill. L.

Rev. 639 (1991); Sales, Product Liability Law in Texas, 23 Hous. L. Rev. 1, 15-97 (1986);

Gary T. Schwartz, Foreword: Understanding Products Liability, 67 Cal. L. Rev. 435, 460-

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Yet, contrary to this overwhelming weight of consistent authority, the

unquestioning literal acceptance of §60(B) urged by Remington totally goes

against the grain of Louisiana’s well-balanced, comprehensive products

liability system insofar as firearms are concerned, and, if given credence,

would undermine the most basic principle of products liability: to hold

manufacturers equally and fairly liable for damage caused by the marketing

of unreasonably dangerous products. A literal application of §60(B) would

render a gun manufacturer immune from liability when it sells a firearm that

can, because of a defective trigger-firing-pin design, discharge autonomously

(without a trigger pull), putting all in range at risk of severe injury or death.

A literal application would insulate a gun manufacturer from liability even

when the manufacturer has knowledge of the unreasonably dangerous design

defect, yet does nothing to rectify it and chooses instead to continue to

knowingly sell the unreasonably dangerous and defective firearm. This is an

absurd result that conflicts with the basic principles of Louisiana and

American products liability law, and it cannot be seen as anything other than

a colossal and unwelcome aberration in the law otherwise designed to protect

consumers and ordinary citizens.

As the district court correctly explained, pursuant to Louisiana Civil

Code article 9, “[w]hen a law is clear and unambiguous and its application does

not lead to absurd consequences, the law shall be applied as written and no

further interpretation may be made in search of the intent of the legislature.”

La. Civ. Code art. 9 (emphasis added). However, “where a literal

interpretation would produce absurd consequences, the letter must give way

to the spirit of the law and the statute construed so as to produce a reasonable

result.” Sultana Corp. v. Jewelers Mut. Ins. Co., 860 So. 2d 1112, 1116 (La.

81 (1979); John W. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J.

825, 830-38 (1973).

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2003) (citations removed); see also P. Raymond Lamonica & Jerry

G. Jones, 20 Louisiana Civil Law Treatise: Legislative

Law and Procedure § 7.4 (2011 ed.) (“In situations where the

application of statutory or constitutional text is judicially determined to create

an ‘absurd consequence,’ the literal language of the law need not be

followed.”). In order for a court to find that a literal application results in

absurd consequences, “there must be a determination by the court that the

specific application at issue arising from the literal wording would, if

judicially enforced, produce a factual result so inappropriate as to be deemed

outside the ‘purpose’ of the law.” See, e.g., McLane S., Inc. v. Bridges, 84 So.

3d 479, 485 (La. 2012) (quoting Lamonica & Jones, § 7.4).

The Louisiana Supreme Court has interpreted multiple statutes under

this doctrine, holding that application of the literal wording of the statute

would produce absurd results. See Gulley v. Hope Youth Ranch, 221 So. 3d 21,

27 (La. 2017) (holding that Office of Workers’ Compensation’s application

of Medical Treatment Guidelines was invalid because it led to an absurd

result that was medically unsound); McLane S., 84 So. 3d at 485-86 (holding

that excise tax applied to smokeless tobacco, even though the legislature

failed to amend one portion of the Tobacco Tax Law, because holding to the

contrary would cause “a result outside the purpose of the Tobacco Tax Law

as a whole” and would be absurd); Webb v. Par. Council of Par. of E. Baton

Rouge, 47 So. 2d 718, 720 (La. 1950) (construing the word ‘election’ in a

statute to mean ‘primary election’ rather than ‘general election’ to avoid an

absurd result); Bradford v. Louisiana Pub. Serv. Comm’n, 179 So. 442, 446

(La. 1938) (construing an ‘or’ in a statute as an ‘and’ to avoid an absurd

result) (citing Gremillion v. Louisiana Pub. Serv. Comm’n, 172 So. 163 (La.

1937)).

In my view, the present case is another instance in which the Louisiana

Supreme Court, in a case arising in its court system, would declare that the

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application of the literal wording of a law would lead to absurd consequences.

Applying §60(B) literally as a stand-alone law would lead to the absurd

consequence that if a manufacturer designed a gun that could discharge

autonomously without a trigger pull, no person injured because of that defect

would be allowed to recover damages from the manufacturer. This is a legal

consequence so inappropriate as to be outside the original LPLA, its design

defect definition, see § 9:2800.56, its jurisprudential antecedents, see

Halphen, 484 So. 2d 110, and United States products liability law in general,

see Restatement (Third) of Torts: Products Liability § 1.

The LPLA provides that a manufacturer “shall be liable to a claimant

for damage proximately caused by a characteristic of the product that renders

the product unreasonably dangerous when such damage arose from a

reasonably anticipated use of the product by the claimant or another person

or entity.” La. R.S. 9:2800.54(A). It defines an unreasonably dangerous

product, inter alia, as one “unreasonably dangerous in construction or

composition,” “unreasonably dangerous in design,” or “unreasonably

dangerous because of inadequate warning,” as defined by §§ 9:2800.55, .56,

and .57. See La. R.S. 9:2800.54(B). Under a literal application of §60(B),

even where a firearm is “unreasonably dangerous in design” such that it

discharges without a trigger pull, a manufacturer could not be held liable.

This would contravene the purpose of the LPLA to provide an avenue for

holding manufacturers responsible when a product leaves its control that is

unreasonably dangerous because of a design or warning defect, as well as by

reason of a manufacturing defect.

The absurdity of these consequences is also well-illustrated by the

strength of Seguin’s defective design claim that would be relegated

anomalously to a frivolous manufacturing claim by §60(B). Seguin’s expert,

Charles W. Powell, would have testified, according to his Engineer’s Report,

that the model of firearm at issue, a Remington Model 710 bolt action rifle,

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was defectively designed in that its construction allows foreign materials to

build up unseen inside the fire control assembly (the “Walker trigger”),

which can cause the weapon to fire without the user pulling the trigger. The

Eighth Circuit, in a case in which Powell also gave expert testimony, found

this alleged defect to be present in the fire control assembly of the Remington

Model 700, which is the functional equivalent of the Model 710’s fire control

assembly. See O’Neal v. Remington Arms Co., 817 F.3d 1055, 1057–58 (8th

Cir. 2015). In O’Neal, the court explained that the “inherent design” of the

Walker trigger assembly is such that, if its operative components are

“misaligned by as little as 1/100th of an inch,” the result can be “the weapon

discharging without the trigger being pulled.” Id. Because “[v]ery small

pieces of dirt, manufacturing residue, corrosion deposits, lubricant deposits,

firing deposits, and even condensation can get trapped between the

connector and the trigger when the two parts separate” every time the rifle

is fired, the risk of such misalignment is high. Id. at 1057. Further, the

O’Neal court found evidence that Remington had been aware of the Walker

trigger assembly’s defective design for decades, yet did nothing to fix it. Id.

at 1057–58 (“Remington knows the Walker trigger can cause Model 700

rifles to fire a round when the safety lever is released from the safe position

to the fire position, without the trigger being pulled . . . Remington knew

about this problem with the Walker trigger at least as early as 1979.”).

For all of the foregoing reasons, I respectfully dissent from the

majority’s decision to certify a question to the Louisiana Supreme Court,

rather than applying that court’s already developed precedents dealing with

statutes leading to absurd consequences and that clearly control in the

present case and require that the district court’s judgment be affirmed.

A True Copy

18 Certified Jan 06, 2022

Clerk, U.S. Court of Appeals, Fifth Circuit