Joycelyn O'Shaughnessy, Wife of/and Michael O'Shaughnessy VS Acuderm, Inc., St. Paul Fire & Marine Insurance Company and Cheminova America Corporation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 2218 JOYCELYN O SHAUGHNESSY WIFE OF AND MICHAEL O SHAUGHNESSY VERSUS ACUDERM INC ST PAUL FIRE MARINE INSURANCE COMPANY AND CHEMINOVA AMERICA CORPORATION Judgment Rendered September 19 Appealed from 2007 the 22nd Judicial District Court In and for the Parish of St Tammany Louisiana Case No 99 13954 The Honorable Peter J Garcia Derek D Gambino New Orleans Louisiana Joseph B Morton III Metairie Louisiana Judge Presiding Counsel for Plaintiffs Appellants Shaughnessy wife of and Jocelyn Michael O Shaughnessy O Counsel for Defendants Acuderm Inc Appellees and St Paul Fire Marine Insurance Company BEFORE GAIDRY MCDONALD AND MCCLENDON JJ GAIDRY J In this products liability suit judgment dismissing their claims the plaintiffs appeal defendants against two a summary We affirm FACTS AND PROCEDURAL HISTORY Plaintiffs filed suit for a caused Cap by an was Joycelyn damages O and Shaughnessy after Mr O Shaughnessy Michael Shaughnessy O suffered injuries allegedly unreasonably dangerous product The product called sold Acuderm by Acuderm Inc a Skin foreign corporation authorized to do business in Louisiana Acuderm and its insurer St Paul Fire St Paul motion filed motion for summary a Acuderm and Charles Yeh and judgment the plaintiffs Cheminova America judgment with a hearing prejudice denied and this The NPF In a to 8 plaintiffs suppOli of their president a to the motion for 1996 letter from Cheminova America the Corporation warning and an August Shaughnessy granted the claims filed 10 1997 FDA court plaintiffs opposition May sale to Mr O a the trial and dismissed the filed August an 1997 Acuderm invoice for After In Company copies of the Skin Cap product labels showing the National Psoriasis Foundation 12 judgment St Paul filed the affidavit of Acudenn manufacturer and distributor information summary Marine Insurance motion for summary against Acudenn and motion for new trial St Paul which was appeal followed DISCUSSION A motion for summary a judgment is full scale trial when there is Ashland Oil Inc 1034 96 1751 writ denied p 97 1911 5 no La La a procedural device used to avoid genuine factual dispute App 1 Cir 6 20 97 10 31 97 2 703 So 2d Sanders v 696 So 2d 1031 29 Surmnary judgment is properly granted if the pleadings interrogatories and admissions that there is judgment no favored and is to designed secure However if the judgment on the subject factual action or defense that there is to the an produce must La C C P court s factual art 966 C of whether 7 at p to the p 6 is material case La can Walker App v or be Phi Beta 1 Cir 12 29 97 in damages absent was a but a showing defective and failed same to that he will be able mi 966 C 2d So is to 2 appropriate appellate judgment is appropriate Because it is the a RHO applicable pmiicular fact of the substantive law 525 out criteria that govern the trial Sigma Fraternity 706 claim nonmoving party judgment light s then the summary A manufacturer is liable for dangerous product the absence of elements essential materiality whether only trial moving party points to establish 696 So 2d at 1035 seen proof at one or more defense under the substantive law that determines dispute If the support for whether summary determination inexpensive 2 only demonstrate 2 to that he is entitled to summary burden at trial La C C P novo and speedy bear the burden of not support sufficient evidence de Sanders 96 1751 will claim action s determining cOUlis review proving is entitled essential elements of his opponent absence of factual satisfy his evidentiary In mover one or more adverse pmiy just of the motion he need matter support for the any show Summary judgment is La C C P art 966 A has the burden of mover art 966 B mover to answers together with affidavits if La C C P law determination of every action The file genuine issue of material fact and that matter of as a on depositions in applicable Chapter 96 2345 528 damages caused by his unreasonably seller of such that he knew a or product is not responsible should have known the declare it La R S 9 2800 54 Jackson l for product v Sears Authorized Retail Dealer Store 36 166 pp 4 5 La So 2d 590 593 However products liability holds itself the component a the I La R S Shaughnessy knew s order injuries the for design own or 821 otherwise exercises control 2 construction or into the incorporates Acuderm 4 quality of product a is the seller of importing or of the alien ego seller under La to be liable for Mr would have to prove that Acuderm plaintiffs should have known the Skin or product 02 9 2800 53 in manufacturing was a 3 its as product for resale and is the alter Accordingly O product alien manufacturer and is in the business of an manufacturer a 12 6 manufacturer for a part manufactured by another manufacturer or distributing 1 labels damage causes may be product characteristic of the a that product of a be the manufacturer of the out to product seller of purposes if it influences over or a 2 Cir App R S 9 2800 Cap products 1 53 were or that Acuderm defective and failed to declare it The following that Acuderm the products not was La R S 9 2800 statements a manufacturing seller 1 53 and that Acudenn had Cap products for or over or influence any characteristic of the J affidavit establish Cap products 1 53 d provides determining whether the of any defect in knowledge a limited time Acuderm did not exercise control not design construction quality of Cap products identified the that the following factors will be considered seller is the alter ego of the alien manufacturer control whether the seller assumes or ownership product warranty obligations of the alien manufacturer or prepares or modifies the product for distribution or or the Skin whether the seller is affiliated with the alien manufacturer common under on Cap products the label La RS 9 2800 court in no modify the Skin Cap products Aucderm did prepare the Skin of Skin s Yeh has been the President of Acuderm since 1983 Acuderm distributor of Skin was a contained in Mr Yeh evidence 4 by way of administers whether the seller any other relevant by the manufacturer as placed labels on Inc but did Laboratorios Cheminova Internacional the Skin not hold itself Acuderm products did stated Cap products which not assume administer any or obligation of the Skin Cap products Acuderm has control Acuderm had products at of any the alleged defective condition of the Skin for O one or more Shaughnessys establish that required were they will put on or that by not May 10 1996 absence of factual support Shaughnessys Shaughnessys Nova to disclose letter from the NPF were ingredient U S distributors of Skin in Skin to communicate The letter from the NPF also secret of in proof the to Cap products Cheminova Alnerica was its only concern but did not was knowledge of a distributors aware Cap Nova Medical expressed the it with NPF to at trial opposition constructive or regarding their advertising practices because the identity of two of the claim sufficient to prove that Acudenn they had actual requested that Cheminova America to out the produce factual support sufficient the O was Cap contribute not or Cap products defective condition of the products and failed The defect in the Skin be able to meet their burden motion for summary judgment manufacturing seller to to ownership the O pointed elements essential However the evidence a common alleged Cap product warranty the time it distributed them and Acuderm did Once Acuderm and St Paul Acuderm By been affiliated with never Cap products through knowledge no Dist Acuderm be the manufacturer of the Skin out to the manufacturer of the Skin S A allege and Net that there that the of the was a products dangerous The August 8 1997 FDA warning alerted consumers that the Skin Cap products contain prescription strength corticosteroids which 5 may pose a health hazard of including worsening psoriasis The in states warning pmi Skin Cap is impOlied from Spain T he FDA issued nationwide a import alert for detention of these products at all border entries stopped distribution of Skin Cap from The and the state of Florida the primary distributor agency has marketing of these sent to two U S previously expressed concern about the unapproved products in two warning letters distributors of these products earlier this year The Acuderm invoice filed O by the Shaughnessys the motion for summary judgment is for three Skin Michael O Shaughnessy as the purchase The Mr O invoice is dated an Cap products and lists actual invoice for Mr O August 12 1997 but the 21 1997 petition alleges In written judgment appropriate was successfully pointed element essential out and the box for the for reasons amount by the establish that We agree product this because Acudenn and St Paul case an court stated that defective they would be able manufacturing seller was put sufficient to on Furthermore show that Acuderm had actual not to show that or summary absence of factual support for Shaughnessys claim plaintiffs in opposition No evidence on the in was Acudenn due is blank ie that Acuderm manufacturing seller of an allegedly defective product knew known that the that judgment that there is to the O s Furthermore the box for the invoice number is marked REPLACEMENT offered Shaughnessy Shaughnessy purchased the Skin Cap products from approximately July to opposition However the invoice filed into purchaser the record does not appear to be in The to satisfy or comi found that the motion their was a non should have the evidence insufficient evidentiary burden constructive was a introduced knowledge of the defect plaintiffs would be able 6 was to carry their to at trial which would prove that Acuderm the evidence that an to was evidentiary burden to at trial Acuderm it The letter from the NPF does specifically products the NPF knew of warning mentioned with two U S condition once purchase warning plaintiffs the FDA alleged was issued and the record summary evidentiary burden at several was of the as one product of those approximate weeks date of the before the FDA it does not appear to be the actual purchase s O in response to Acuderm issued the warning it is clear that the judgment name The FDA although the invoice filed into evidence by the Shaughnessy sufficient evidence was petition is dated after the FDA invoice for Mr O not danger Cap arguably should have known of the dangerous warning in the with regard U S distributors of Skin about the previous discussions distributors but does as only anything Nova Medical and Net Nova were While Acuderm distributors that the states not prove as stated above Shaughnessys simply to Acuderm and establish that they will After reviewing failed to put St Paul be able trial Thus summary judgment was s to motion meet on for their appropriate in this case DECREE The judgment granting St Paul and affirmed dismissing Costs of this the summary judgment in favor of Acuderm and plaintiffs claims against them with prejudice appeal are assessed AFFIRMED 7 to the plaintiffs is
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