United States: Past Time for Rule 11 in Louisiana

The Louisiana Product Liability Act ("LPLA") was enacted way back in 1988 – almost 30 years ago – to rein in the Louisiana courts' product liability insanity (inanity?) epitomized by Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La. 1986), which had allowed strict liability without defect under something called "unreasonably dangerous per se."  "One of the legislature's primary purposes in enacting the LPLA was to overrule Halphen." Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995).  To accomplish this objective, the LPLA explicitly "establishes the exclusive theories of liability for manufacturers for damage caused by their products," and under that statute a plaintiff "may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in [the LPLA]."  La. R.S. §9:2800.52.

Appellate courts applying Louisiana law have held that the legislature meant what it said. "The plaintiff's case arises under the LPLA, which provides the exclusive theories under which a plaintiff can pursue a claim against a manufacturer for an alleged product defect." Reynolds v. Bordelon, 172 So. 3d 607, 612 (La. 2015).  "[T]he LPLA is the exclusive remedy against manufacturers for damages resulting from a defective product."  Aucoin v. Southern Quality Homes, LLC, 984 So. 2d 685, 691 n.8 (La. 2008) (noting exception for the peculiar doctrine of redhibition; see our post about redhibition here).  A "plaintiff's exclusive remedy against [a manufacturer] sounds in products liability as governed by the Louisiana Products Liability Act."  Payne v. Gardner, 56 So. 3d 229, 231 (La 2011). Accord Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 616 (5th Cir. 2014) ("the LPLA provides [plaintiff's] exclusive remedy"); Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (LPLA "provides that it is the exclusive remedy for products liability suits"); Jefferson v. Lead Industries Ass'n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997) ("Louisiana law eschews all theories of recovery in this case except those explicitly set forth in the LPLA"); Haley v. Wellington Specialty Insurance Co., 4 So. 3d 307, 311 (La. App. 2009) ("[t]he LPLA establishes the exclusive theories of liability for manufacturers for damages caused by their products"); Jenkins v. International Paper Co., 945 So. 2d 144, 147 (La. App. 2006) ("[t]he exclusive theories of liability for manufacturers for damages caused by their products are set forth in the . . . LPLA"); Slaid v. Evergreen Indemnity, Ltd., 745 So. 2d 793, 797 (La. App. 1999) (LPLA "establishes the exclusive theories of liability for manufacturers for damages caused by their products"); Ashley v. General Motors Corp., 666 So. 2d 1320, 1321-22 (La. App. 1996) ("[a] claimant may not recover from a manufacturer for damages caused by a product on the basis of any theory of recovery not set forth in the Act").

Thus, "neither negligence, strict liability, nor breach of express warranty is any longer viable as an independent theory of recovery against a manufacturer."  Jefferson, 106 F.3d at 1251.  "[A]llegations of negligence, fraud by misrepresentation, market share liability, breach of implied warranty of fitness and civil conspiracy fail to state a claim . . . under the LPLA."  Id. at 1252.  Similarly, "both federal and Louisiana courts have read the Act's exclusive remedy provision to prevent plaintiffs from bringing intentional tort claims." Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 262 (5th Cir. 2002) (citations omitted).

The LPLA applies to all Louisiana product liability cases that accrue after the act's effective date of September 1, 1988.  Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La. 1991); Brown, 52 F.3d at 530.  Like we mentioned above, that's almost thirty years ago.

Yet, time after time, we see Louisiana plaintiffs filing – and courts dismissing – complaints chock full of non-LPLA common-law "causes of action" which since 1988 have had no possible legal validity.  E.g., Donald v. AstraZeneca Pharmaceuticals LP, 2017 WL 1079186, at *1-2 (E.D. La. March 22, 2017); Pramann v. Janssen Pharmaceuticals, 2017 WL 58469, at *2 (E.D. La. Jan. 5, 2017); Guidry v. Janssen Pharmaceuticals, Inc., 2016 WL 633673, at *3 (E.D. La. Feb. 17, 2016); Lyles v. Medtronic, Inc., 2016 WL 247584, at *3-4 (W.D. La. Jan. 20, 2016); Toups v. Synthes, Inc., 2015 WL 6738541, at *4-5 (E.D. La. Nov. 4, 2015); Hargrove v. Boston Scientific Corp., 2014 WL 4794763, at *14 (E.D. La. Sept. 24, 2014); Audrict v. Depuy Orthopaedics, Inc., 2014 WL 906562, at *1-2 (E.D. La. March 7, 2014); Corley v. Stryker Corp., 2014 WL 783066, at *1-2 (W.D. La. Feb. 25, 2014); Scianneaux v. St. Jude Medical, S.C., 961 F. Supp.2d 808, 811 (E.D. La. 2013); Gavin v. Medtronic, Inc., 2013 WL 3791612, at *15-16 (E.D. La. July 19, 2013); Aucoin v. Amneal Pharmaceuticals, LLC, 2012 WL 2990697, at *5 (E.D. La. July 20, 2012); Cooper v. Wyeth, Inc., 2010 WL 2653321, at *2 (M.D. La. June 25, 2010); Lewis v. Pfizer Pharmaceutical Co., 2010 WL 2545195, at *2 (W.D. La. June 18, 2010).  These are just the prescription medical product cases since 2010 – we have to believe that many more similar Louisiana cases exist involving other products.

Through ignorance, sloth, or just plain cussedness, plaintiffs' lawyers in Louisiana have persisted for decades in bringing claims that have no pretense of viability under controlling state law represented by the LPLA. Isn't it time for Rule 11?

Federal Rule of Civil Procedure 11 provides, in pertinent part, that sanctions are available when:

Fed. R. Civ. P. 11(b)(2).  "[M]onetary sanctions can be imposed against the attorney but not the client for violations of Rule 11(b)(2)."  Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 568 n.8 (5th Cir. 2006) (citation and quotation marks omitted).  The "obligation [under Rule 11(b)(2)] must be satisfied; [its] violation . . . justifies sanctions."  Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796, 802 (5th Cir. 2003) (en banc).  "[I]n determining compliance . . ., the standard under which an attorney is measured is an objective, not subjective, standard of reasonableness under the circumstances."  Id. (citation and quotation marks omitted).  "[P]laintiffs violate[] Rule 11(b)(2)" when they "fil[e] complaints replete with obviously deficient claims."  Marceaux v. Lafayette City-Parrish Consolidated Gov't, 614 F. Appx. 705, 709 (5th Cir. 2015).

With respect to the LPLA's statutory extinguishment of common-law causes of action, as developed above, the law is crystal clear and uniform appellate authority that common-law claims of whatever type (except redhibition) are barred stretches back decades. The statute is plain on its face, thus the "legal issues are not that complex."  Marceaux v. Lafayette City-Parrish Consolidated Gov't, 14 F. Supp. 3d 760, 771 (W.D. La. 2014), aff'd, 614 F. Appx. 705 (5th Cir. 2015).

To us it seems like the other side's persistence in filing facially LPLA-barred common-law causes of action in Louisiana product liability cases is an open and shut case for Rule 11 sanctions.  Defense counsel would, of course, have to comply with the pre-filing and safe harbor provisions of Rule 11(c), so plaintiffs could withdraw those claims within 21 days, and the defendant would recover nothing.  However, using the case-law cited in this post, preparing an almost boiler-plate motion based on LPLA exclusivity (needing only party names, paragraph numbers, and the pertinent common-law claims to be filled in individually) should not be very costly – and once drafted, the motion could be used repeatedly to force dismissal of the barred claims, thus saving the expense of individualized motions to dismiss.

We DDL bloggers are happy to offer the Louisiana defense bar these tools to put an end to plaintiffs' routine violation of the LPLA.

This article is presented for informational purposes only and is not intended to constitute legal advice.