Rhodes v. Bayer Healthcare Pharmaceuticals, Inc., No. 10-1695, 2013 WL 1282450 (W.D. La. March 28, 2013).

A manufacturer’s motion for summary judgment was granted following the Court’s exclusion of Plaintiff’s expert causation witnesses. Id. at *4.

Plaintiff sued Bayer Healthcare Pharmaceuticals, Inc. (“Bayer”) alleging that taking two antibiotic Avelox caused her permanent nerve damage. Id. at *1. The Court excluded Plaintiffs’ first expert causation witness, a professor emeritus of pharmacy, finding him unqualified to testify. Id. at *2. In opposing Defendant’s motion for summary judgment, Plaintiff relied on her second medical causation expert, her neurologist, who diagnosed Plaintiff with neuropathy. Id. However, Plaintiff failed to connect this diagnosis to the use of Avelox, the doctor was not designated as an expert, and the Court found the doctor’s “medical impressions” to be inconclusive. Id. The Court held that the doctor’s medical impressions were not valid expert causation evidence. Id.

After excluding Plaintiff’s second expert witness, Judge Hicks determined that Plaintiff had no evidence to support causation, an essential element of her LPLA claims against Bayer. The Court reached this result after ruling that Plaintiff’s claims required expert evidence from a physician on medical causation, including proof that Plaintiff’s treating physician would have changed his prescription of the Bayer drug if he had read the warning at issue.

Yolande Burst v. Shell Oil Company, et al, C.A. No. 14-109 (E.D. La. 8/8/2014)

In Burst the court granted partial summary judgment after ruling that one or more of the plaintiffs’ experts could not testify on causation in each case. Using this strategy, defendants focus the court on a single, essential element of a plaintiff’s claims, i.e., causation, and ask it to determine if there is sufficient evidence for plaintiffs to prove causation on their tort claims.

In Burst, supra, the plaintiffs brought a product liability action against Shell Oil Company, Chevron USA, Inc. (as successor to Gulf Oil Corporation), and Texaco, Inc., alleging that the deceased was exposed in 1958-1971 to a benzene-containing product, i.e., gasoline, while working as a gas station attendant and mechanic. The benzene exposures allegedly caused the deceased’s leukemia that led to his death.

The manufacturer defendants moved for partial summary judgment on several grounds, including that plaintiff failed to offer expert opinion evidence on the issue of general causation. General causation is whether a substance is capable of causing a particular injury or condition. The defendants argued that expert medical testimony was required on the issue of general causation about whether exposure to gasoline could cause leukemia and if this was within the common knowledge of jurors.

Plaintiff argued that the defendants have agreed to general causation by a general stipulation that stated “very high levels of exposure to benzene over a long duration [a]re capable of causing some sub-types of acute myeloid leukemia.” Defendants took the position that the proper general causation question was whether exposure to gasoline, not benzene, can cause leukemia, because the plaintiff’s husband had been exposed to benzene-containing gasoline manufactured and sold by the defendants.

United States District Judge Sarah Vance agreed with the defendants and held that plaintiff had failed to carry her burden with respect to general causation and offer admissible expert opinion testimony that “the substance at issue,” i.e., benzene-containing gasoline, is capable of causing the kind of harm alleged by plaintiff, relying in part upon the Seaman v. Seacor Marine, LLC, 326 Fed. App’x. 721, 723 (5th Cir. 2009) (in a toxic tort suit plaintiffs “cannot expect lay fact-finders to understand medical causation; expert testimony is thus required to establish causation).

Hinson v. Techtronic Industries Outlets, Inc., 2015 WL 5024588 (W.D. La. 2015)

 The Hinson case is a textbook example of the danger a Plaintiff faces under the Louisiana Products Liability Act (“LPLA”) in failing to satisfy the proof requirements to establish a claim under the exclusive theories of liability under the LPLA.

*          *          *          *

 The Plaintiff in Hinson sustained injuries while using a pressure washer manufactured by defendant, Techtronic. Plaintiff, a self-employed stock broker, attempted to get the pressure washer to start, and the handle used to crank the engine broke in his hand, resulting in a shard piercing his index finger. He filed a product liability action against the pressure washer manufacturer, the manufacturer of a component part of the washer (Honda), and the seller of the fully-assembled product (Home Depot).

Defendants moved for summary judgment on the ground that Plaintiff could not prove any elements essential to his products liability claims, and the court granted the motion:

• On his defective construction claim, the Plaintiff “did not have the handle inspected and did not have any expert testify as to how the handle was defective.” However, Defendants proffered experts who inspected the handle and found that it had visual deformities and abrasions that were the result of the handle impacting harder surfaces, which was a post-manufacturing problem.

• On his defective design claim, Plaintiff failed to show any evidence of an available alternative design for the handle and thus could not prove that a design defect caused his injury. In contrast, Defendants’ experts offered uncontroverted evidence that the design of the handle was proper and made of material commonly used for handles because of its high strength, toughness, and chemical resistance.

• Plaintiff similarly failed to show that Defendants were liable due to a failure to warn under the LPLA. Defendants argued that Plaintiff should have known that the handle was durable but not indestructible, that Plaintiff received an operator’s manual with the pressure washer, and that he failed to read it.

• Defendants said that because Plaintiff failed to read the operator’s manual, which contained a warning to wear rubber gloves and instruction on the proper handling and storage of the washer, that there was “no basis to believe the Plaintiff would have heeded a warning about the handle had one been included in the operator’s manual, and that any warning about the handle would have been futile.” The court concluded that any presumption that Plaintiff would have read the warning had one been provided was rebutted by Defendants’ evidence that such warning would have been futile, and ignored by Plaintiff.

• Finally, Defendant failed to show that the washer failed to conform to an express warranty because the warranty on the pressure washer did not implicate any damage to the handle, only to the pressure washer itself.

Plaintiff argued that res ipsa loquitor should be invoked to show that Defendants were at fault. However, Defendants submitted uncontroverted evidence that plausibly explained the accident involving the handle. Thus, the court found that the allegations by Plaintiff were not so unusual to support the use of the res ipsa locquitor doctrine that “the only reasonable and fair conclusion is that the accident resulted from a breach of duty or omission on the part of the defendant.”