Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 181 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying 93 Motion for Summary Judgment. Signed by Judge Susie Morgan. (bwn)

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Thibodeaux v. Wellmate Doc. 181 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is Defendant’s m otion for sum m ary judgm ent. 1 For the reason s set forth below, the m otion is D EN IED . BACKGROU N D This is a products liability action. Plaintiff J oel C. Thibodeaux (“Thibodeaux”) was hired by Plaintiff-in-Intervention Chevron USA Inc. in J une 20 0 7 as an operator. 2 A Wellm ate 12 tank, m anufactured by Defendant Pentair Water Treatm ent OH Com pany (“Pentair”), was installed as part of a potable water system on the Chevron-operated platform on which Thibodeaux was working. 3 On J uly 5, 20 11, Thibodeaux and two of his coworkers, Fred Adam s (“Adam s”) and Matt Duhon (“Duhon”), attem pted to address a pressure-related issue with the water pressure tank. 4 Thibodeaux, Adam s, and Duhon isolated the tank from the system , bled all the water pressure from the system , an d disconn ected the plum bing connecting the tank’s drain assem bly to the system . 5 While Thibodeaux was unscrewing the threaded drain assem bly from the bottom of the tank, 6 1 R. Doc. 93. R. Doc. 93-4 at 4. 3 Id. at 5– 6, 10 – 11. 4 R. Doc. 93-5 at 6– 7; R. Doc. 93-6 at 3; R. Doc. 93-1 at ¶ 21; R. Doc. 10 1-2 at ¶ 21. 5 R. Doc. 93-6 at 4; R. Doc. 93-1 at ¶ 22; R. Doc. 10 1-2 at ¶ 22. 6 R. Doc. 93-4 at 18– 19; R. Doc. 10 2-1 at 7; R. Doc. 93-6 at 4. 2 1 Dockets.Justia.com pressure in the bladder released and Thibodeaux was injured. 7 Thibodeaux testified in his deposition that every bone from his eyebrow to his chin was fractured, and he has undergone several m edical procedures an d extensive treatm ent as a result. 8 Thibodeaux filed this lawsuit on May 30 , 20 12. 9 In his third am ended com plaint, 10 Thibodeaux brings claim s against Pentair under the Louisiana Products Liability Act (“LPLA”). 11 On February 5, 20 16, Pentair filed a m otion for sum m ary judgm ent arguing (1) Thibodeaux cannot establish any of the required elem ents under the LPLA, and (2) Pentair discharged its duty to warn when it provided warnings to Chevron. 12 Thibodeaux filed his opposition on February 23, 20 16, 13 and Pentair filed a reply m em orandum in support of its m otion on March 2, 20 16. 14 STAN D ARD OF LAW Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”15 “An issue is m aterial if its resolution could affect the outcom e of the action.”16 If the dispositive issue is one on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”17 If the 7 R. Doc. 93-20 at 5; R. Doc. 10 1 at 10 ; R. Doc. 10 2-1 at 8 . R. Doc. 93-4 at 23. 9 R. Doc. 1. 10 R. Doc. 77. 11 LA. R EV. STAT. §§ 9:280 0 .51– .60 . 12 R. Doc. 93. 13 R. Doc. 10 1. 14 R. Doc. 10 7. 15 F ED . R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 16 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 17 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 8 2 m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 18 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim . 19 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 20 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”21 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose 18 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 20 See id. at 332. 21 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 19 3 upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”22 LAW AN D AN ALYSIS The Louisiana Products Liability Act provides the “the exclusive theories of liability for m anufacturers for dam age caused by their products” under Louisiana law. 23 “The plain language of the Act shows that a plaintiff, asserting a products liability action against a m anufacturer, faces a two-tiered burden: the plaintiff m ust show that (1) his dam ages were proxim ately caused by a characteristic of the product that renders it unreasonably dangerous, and (2) his dam ages arose from a reasonably anticipated use of the product.”24 If a plaintiff’s dam ages did not arise from a reasonably anticipated use of the product, the Court need not reach the “unreasonably dangerous” inquiry. 25 Pentair argues in its m otion for sum m ary judgm ent that Thibodeaux cannot establish either prong required to prevail in a products-liability action because he cannot dem onstrate that his dam ages arose from a reasonably anticipated use of the tank, that the tank was unreasonably dangerous, or that any characteristic that rendered the tank unreasonably dangerous caused his dam ages. 26 Finally, Pentair raises the sophisticated- 22 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 23 LA. STAT. ANN . § 9:280 0 .52. See also Kam pen v. Am erican Isuzu Motors, Inc., 157 F.3d 30 6, 30 9 (5th Cir. 1998). 24 Blanchard v. Midland Risk Ins., 20 0 1-1251 (La. App. 3 Cir. 5/ 8/ 0 2), 817 So. 2d 458, 460 , w rit denied, 20 0 2-1517 (La. 9/ 20 / 0 2), 825 So. 2d 1178, and w rit denied, 20 0 2-1594 (La. 9/ 20 / 0 2), 8 25 So. 2d 1181 (quotin g Kam pen , 157 F.3d at 30 9– 10 ). See also LA. STAT. ANN . § 9:28 0 0 .54(D); Ellis v. W easler Eng’g Inc., 258 F.3d 326, 331 (5th Cir.), opinion am ended on denial of reh’g, 274 F.3d 881 (5th Cir. 20 0 1). 25 Kam pen, 157 F.3d at 30 9. See also Kelley v. Hanover Ins. Co., 98-50 6 (La. App. 5 Cir. 11/ 25/ 98), 722 So. 2d 1133, 1136, w rit denied, 98-3168 (La. 2/ 12/ 99), 738 So. 2d 576 (“[B]efore reaching the question whether a product is unreasonably dangerous because of an inadequate warnin g, a plaintiff m ust first m eet the threshold requirem ent of Sec. 280 0 .54 A, which is that the injury arose from a ‘reasonably anticipated use’ of the product. It is only after such use is shown that the in quiry m oves on to whether an adequate warnin g was required.”). 26 R. Doc. 93-20 at 13– 21. 4 user defense, arguing it discharged its duty to warn Thibodeaux by warning Chevron, a sophisticated user. 27 I. Did Plaintiff’s Dam ages Arise from a Reasonably Anticipated Use? “Under the LPLA, a m anufacturer is liable only for those uses it should reasonably expect of an ordinary consum er.”28 The LPLA defines “reasonably anticipated use” as “a use or handling of a product that the product’s m anufacturer should reasonably expect of an ordinary person in the sam e or sim ilar circum stances.”29 Courts determ ine what uses of a product its m anufacturer should have reasonably expected at the tim e of m anufacture. 30 “The standard for determ ining a reasonably anticipated use is an objective one (an ordinary person in the sam e or sim ilar circum stances).”31 Whether a plaintiff’s dam ages arose from a reasonably anticipated use of the challenged product is a question of fact. 32 “The court’s function on a m otion for sum m ary judgm ent concerning a reasonably anticipated use is to determ ine whether there is a legally sufficient evidentiary basis in a particular case for a reasonable juror or trier of fact to find for the plaintiff.”33 When assessing whether a m aterial factual dispute exists, the Court considers “all of the evidence in the record but refrain s from m aking credibility determ inations or weighing the evidence.”34 All reasonable inferences are drawn in favor of the non-m oving 27 Id. at 21– 23. Butz v. Ly nch, 1999-10 70 (La. App. 1 Cir. 6/ 23/ 0 0 ), 762 So. 2d 1214, 1218, w rit denied, 20 0 0 -2660 (La. 11/ 17/ 0 0 ), 774 So. 2d 980 . 29 LA. STAT. ANN . § 9:280 0 .53. 30 Blanchard, 817 So. 2d at 460 . 31 Butz, 762 So. 2d at 1218 . 32 Ellis, 258 F.3d at 331; W hite v. Black & Decker (U.S.) Inc., No. 0 3-0 874, 20 0 4 WL 1373271, at *3 (E.D. La. J un e 16, 20 0 4), aff’d sub nom . W hite v. Black & Decker (US) Inc., 122 F. App’x 795 (5th Cir. 20 0 5); Scordill v. Louisville Ladder Grp., LLC, No. 0 2-2565, 20 0 3 WL 22427981, at *8 (E.D. La. Oct. 24, 20 0 3). 33 Calvit v. Procter & Gam ble Mfg. Co., 20 7 F. Supp. 2d 527, 530 (M.D. La. 20 0 2). 34 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 28 5 party. 35 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the n on-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 36 The Court finds a genuine issue of m aterial fact exists with respect to whether this was a reasonably anticipated use. Pentair claim s a warning was on the tank and that Thibodeaux used the tank in direct violation of the warning. 37 Thibodeaux den ies this and argues that Pentair has failed to present evidence that the particular Wellm ate 12 tank involved in Thibodeaux’s accident had a warning on it when it left Pentair’s control. 38 Pentair’s corporate representative J oel Voytek testified in his deposition that, although Pentair could not tell exactly when the tank was m anufactured as the serial num ber was not visible on the tank, Pentair determ ined based on the tank itself that it was m anufactured som etim e between 20 0 3 and 20 0 8. 39 The parties do not dispute this. 40 Craig Berkenm eier, a m em ber of Chevron’s root cause analysis team , testified in his deposition that repair records for the Chevron platform on which Thibodeaux was injured indicate that the potable water pressure tank was replaced in J anuary of 20 0 6, 41 and the parties have stipulated that the Wellm ate 12 tank was placed on the platform in J anuary 20 0 6. 42 Although Pentair’s corporate representative testified that, ordinarily, tanks m anufactured between 20 0 3 and approxim ately August 20 0 6 would have had a label on the drain assem bly, 43 Pentair has not presented com petent sum m ary judgm ent eviden ce 35 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 37 R. Doc. 93-20 at 13. 38 See R. Doc. 10 1 at 12. 39 R. Doc. 93-3 at 4– 5. 40 R. Doc. 93-1 at ¶ 4; R. Doc. 10 1-2 at ¶ 4. See also R. Doc. 93-3 at 5. 41 R. Doc. 93-12 at 12– 15. 42 See R. Doc. 114 at 7; R. Doc. 174 at 1; R. Doc. 93-20 at 10 . 43 R. Doc. 93-3 at 11– 13; R. Doc. 93-8 . 36 6 to establish that, viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable person could find to the contrary. 44 There are not sufficient undisputed facts for the Court to m ake this determ ination, and sum m ary judgm ent m ay not be granted in favor of Pen tair on this basis. II. Were Plaintiff’s Dam ages Proxim ately Caused by a Characteristic that Renders the Tank Unreasonably Dangerous? A. Unreasonably Dangerous Pentair argues that Thibodeaux lacks sufficient evidence to establish that the Wellm ate 12 was unreasonably dangerous. 45 Under the LPLA, a product m ay be deem ed unreasonably dangerous in any one of four ways: (1) in construction or com position ; (2) in design ; (3) for failure to provide an adequate warning; or (4) for failure to conform to an express m anufacturer’s warranty. 46 Each is a distinct possible theory of recovery governed by separate statutes as delineated in La. Rev. Stat. § 9:280 0 .54(B), and proof of any one is sufficient. 47 Thibodeaux argues in his opposition that there are genuine issues of m aterial fact regarding whether the product was unreasonably dangerous (1) in construction or com position, (2) in design, and (3) for failure to provide an adequate warning. 48 The Court finds there are genuine issues of m aterial fact regarding whether the product was unreasonably dangerous with respect to all three theories. 44 Sm ith, 298 F.3d at 440 . R. Doc. 93-20 at 18 – 21. 46 LA. R EV. STAT. § 9:28 0 0 .54(B); Rey nolds v. Bordelon, 20 14-2371 (La. 6/ 30 / 15), 172 So. 3d 60 7, 612– 15. 47 LA. R EV. STAT. § 9:28 0 0 .54(B). 48 R. Doc. 10 1 at 25. Thibodeaux does not address (4) failure to conform to an express m anufacturer’s warranty in his opposition. Id. 45 7 1. Construction or Com position La. Rev. Stat. § 9:280 0 .55 provides that “[a] product is unreasonably dangerous in construction or com position if, at the tim e the product left its m anufacturer’s control, the product deviated in a m aterial way from the m anufacturer’s specifications or perform ance standards for the product or from otherwise identical products m anufactured by the sam e m anufacturer.”49 Whether a defect is unreasonably dangerous in construction or com position is a question of fact. 50 Pentair argues Thibodeaux lacks sufficient eviden ce to establish that the tank was unreasonably dangerous in design. 51 Thibodeaux’s m aterials science expert Cynthia Sm ith concluded that the tank was unreasonably dangerous in construction and com position and will testify as such at trial. 52 She based this conclusion in part her conclusion that there was a “network of raised features [she] observed across the entire exterior surface of the air cell” and her fin ding that “[t]he hardness of the air cell m aterial was below the m anufacturer’s specified range, indicating the m aterial was softer than it should have been.”53 Sm ith also found that “[t]he air cell m aterial . . . exhibited a m elt flow rate that was well above the m anufacturer’s specified range, indicating that the m aterial either did not conform to the m anufacturer’s specification at the tim e of m anufacturer, or that the m aterial was insufficiently stabilized to prevent degradation during service.”54 49 LA. R EV. STAT. § 9:28 0 0 .55. Morris v. United Servs. Auto. Ass’n, 32,528 (La. App. 2 Cir. 2/ 18/ 0 0 ), 756 So. 2d 549, 557. 51 R. Doc. 93-20 at 18 . 52 R. Doc. 10 2-13 at 8 . 53 Id. 54 Id. 50 8 Pentair has not shown a lack of evidence such that no reasonable trier of fact could find in favor of the plaintiff. Thibodeaux has provided sufficient com petent sum m ary judgm ent eviden ce to raise a genuine issue of m aterial fact as to whether the tank was unreasonably dangerous in construction or com position. 2. Design La. Rev. Stat. § 280 0 .56 defines a product that is unreasonably dangerous in design: A product is unreasonably dangerous in design if, at the tim e the product left its m anufacturer’s control: (1) There existed an alternative design for the product that was capable of preventing the claim ant's dam age; and (2) The likelihood that the product’s design would cause the claim ant’s dam age and the gravity of that dam age outweighed the burden on the m anufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of dam age when the m anufacturer has used reasonable care to provide the adequate warning to users and handlers of the product. 55 Whether a defect is unreasonably dangerous in design is a question of fact. 56 The Wellm ate 12 tank contained an internal air cell, or bladder, attached to both the top of the tank and the drain assem bly at the bottom of the tank. 57 Edward Lebreton, Pentair’s form er chief engineer, testified at his deposition that m ost water tanks of this type conn ect the air cell only at the top of the tank, leaving only water at the bottom of the tank. 58 Lebreton stated in his deposition that he did not know of any other water pressure tanks that were designed to connect the air cell both to the top and bottom of the tank. 59 55 LA. R EV. STAT. § 9:28 0 0 .56. Morris, 756 So. 2d at 557. 57 See R. Doc. 93-4 at 11; R. Doc. 10 2-6 at 17– 20 . 58 R. Doc. 10 2-6 at 17– 20 . 59 Id. at 19. 56 9 Sm ith opines in her report that the tank was unreasonably dangerous in design. 60 She identified Pentair’s attachm ent of the air cell to the tank as a design defect: “the air cell was attached to [the] bottom of the drain assem bly, where it could becom e twisted and tear. If the air cell had been attached to the top of the tank as is com m on in pressure tanks m anufactured by other com panies, this accident could not have happened.”61 Sm ith testified in her deposition that the air cell becam e caught on the drain assem bly, which had sharp corners, causing the air cell to twist as the drain assem bly was unscrewed. 62 “[B]ased on Pentair’s design, the air cell should have rotated freely within the drain pipe and should not have been im pacted by unthreading the drain pipe.”63 Sm ith referred to this as a “defective design.”64 Pentair has not shown a lack of evidence such that no reasonable trier of fact could find in favor of the plaintiff. Thibodeaux has provided sufficient com petent sum m ary judgm ent eviden ce to raise a genuine issue of m aterial fact as to whether the tank was unreasonably dangerous in design. 3. W arning With respect to a m anufacturer’s duty to provide an adequate warning, La. Rev. Stat. § 9:280 0 .57 provides in pertinent part: A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the tim e the product left its m anufacturer’s control, the product possessed a characteristic that m ay cause dam age and the m anufacturer failed to use reasonable care 60 See R. Doc. 10 2-13 at 15. 61 Id. 62 R. Doc. 93-14 at 17– 18 (“I believe that it caught at the exterior, and as the air cell twisted, m aterial was extruded outward from the interior of the air cell toward the exterior of the air cell, resulting in a hole that is deform ed outward toward the exterior surface.”). Expert opin ion testim ony in the form of a deposition m ay be considered in support of or in opposition to a m otion for sum m ary judgm ent. Bourgeois v. Garrard Chevrolet, Inc., 20 0 2-0 288 (La. App. 4 Cir. 2/ 21/ 0 2), 811 So. 2d 962, 966, writ denied, 20 0 2-0 8 46 (La. 5/ 24/ 0 2), 816 So. 2d 854. 63 R. Doc. 93-14 at 35. 64 R. Doc. 93-14 at 29. 10 to provide an adequate warning of such characteristic and its danger to users and handlers of the product. B. A m anufacturer is not required to provide an adequate warning about his product when: (1) The product is not dangerous to an extent beyond that which would be contem plated by the ordinary user or handler of the product, with the ordinary knowledge com m on to the com m unity as to the product's characteristics; or (2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that m ay cause dam age and the danger of such characteristic. 65 The LPLA defines “adequate warning” as “a warning or instruction that would lead an ordinary reasonable user or handler of a product to contem plate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a m anner as to avoid the dam age for which the claim is m ade.”66 Pentair concedes it was required to provide an adequate warning but argues that Thibodeaux cannot dem onstrate that the warnings were inadequate when the tank left Pentair’s control. 67 Thibodeaux, on the other hand, contends that Pentair’s warn ings were inadequate “due to their content, placem ent, and absen ce.”68 The plaintiff bears the burden of establishing that, at the tim e the product left the m anufacturer’s control, the m anufacturer failed to provide an adequate warning. 69 “Whether a particular warning or instruction is adequate is a question for the trier of fact.”70 When determ in ing the adequacy of a warning, the trier of fact considers the 65 LA. R EV. STAT. § 9:28 0 0 .57. LA. R EV. STAT. § 9:28 0 0 .53(9). 67 R. Doc. 93-20 at 13– 17, 20 – 21. 68 R. Doc. 10 1 at 16. 69 Jack v. Alberto-Culver USA, Inc., 20 0 6-1883 (La. 2/ 22/ 0 7), 949 So. 2d 1256, 1258. 70 Id. at 1259. 66 11 severity of the danger, the likelihood of successful com m unication of the warning to foreseeable consum ers, the intensity and form of the warning, and the cost of im proving the strength or m ode of the warning. 71 As previously discussed, Pentair has failed to establish that no reasonable trier of fact could conclude there was not a warning on the tank at the tim e of m anufacture. 72 Moreover, “[t]he adequacy of a particular warning is a question for the trier of fact, and should usually not be determ ined at sum m ary judgm ent.”73 B. Causation Pentair further argues Thibodeaux cannot establish that an unreasonably dangerous condition caused his accident. 74 The Court finds there are genuine issues of m aterial fact regarding causation. Sm ith opined in her report that, “[i]f the air cell had been attached to the top of the tank[, . . .] this accident could not have happened.”75 Pentair has failed to establish that no reasonable trier of fact could find that the air cell’s being attached to the bottom of the tank was the cause of the accident. III. Is Defendant Entitled to Sum m ary J udgm ent on the Sophisticated-User Defense? Pentair argues that Thibodeaux cannot succeed on his failure-to-warn claim because Pentair discharged its duty to warn by warning Chevron, a sophisticated user. 71 Bloxom v. Bloxom , 512 So. 2d 839, 841 (La. 1987); W agoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 793 (E.D. La. 20 11). 72 See supra Part I. 73 Bell v. Uniroy al, Inc., 96-2838 (La. App. 4 Cir. 6/ 11/ 97), 696 So. 2d 268 , 270 . See also Brow n v . Sears, Roebuck & Co., 516 So. 2d 1154, 1155 (La. 1988) (“A determ ination of whether a particular warning is adequate is a question of fact, to be m ade by balancing a num ber of factors, such as the likelihood the warnin g will con vey the nature of the dan ger to the users, the intensity and form of the warn in g, and the cost of im provin g the stren gth or m ode of the warn ing.”). 74 R. Doc. 93-20 at 17– 18. 75 R. Doc. 10 2-13 at 15. See also R. Doc. 93-14 at 17– 18, 29, 35 (opin ing that the sharp corners of the drain assem bly caught on the air cell, causin g it to fail and that “I do not believe [Thibodeaux] would have been injured had the air cell not failed”). 12 Thibodeaux argues in his opposition that the very existence of a sophisticated-user affirm ative defense is “suspect.”76 Thibodeaux also argues that, even if the sophisticateduser affirm ative defense exists, Pentair has failed to plead it as an affirm ative defense. 77 “The only provision of the LPLA that affords a basis for arguing or guessing that m anufacturers’ liability is lim ited by a sophisticated user or purchaser defense is section 280 0 .57(B)(2).”78 Under La. Rev. Stat. § 9:280 0 .57(B), a m anufacturer is not required to provide an adequate warning about its product when “[t]he user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that m ay cause dam age and the danger of such characteristic.”79 Thus, if the sophisticated-user defense is available to Pentair, it would provide a defense only to Thibodeaux’s claim that the tank was unreasonably dangerous due to an inadequate warning. Even if Pentair prevailed on this point, Thibodeaux m ight be entitled to recover under other theories. 80 CON CLU SION For the foregoing reasons; IT IS ORD ERED that Pentair’s m otion for sum m ary judgm ent is D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 7th d ay o f May, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 76 R. Doc. 10 1 at 30 . See also Sw ope v. Colum bian Chem icals Co., 281 F.3d 18 5, 20 7 (5th Cir. 20 0 2) (“Subsequent to the enactm ent of the LPLA and this court’s decision in Davis one Louisiana interm ediate appellate court has expressed uncertainty as to whether the LPLA perpetuates a sophisticated purchaser or user defense.” (citin g Black v. Gorm an – Rupp, 655 So.2d 717, 722 (La. App. 4th Cir. 1995))). 77 R. Doc. 10 1 at 30 . 78 Sw ope, 281 F.3d at 20 6. 79 LA. R EV. STAT. § 9:28 0 0 .57(B). 80 See supra Part II.A. 13

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