As all Louisiana attorneys are no doubt aware, the Louisiana Products Liability Act (“LPLA”) “establishes the exclusive theories of liability for manufacturers for damages caused by their products.” La. R.S. § 9:2800.52. From a statutory perspective, a plaintiff generally has the burden of proving by a preponderance of the evidence that: (1) the defendant manufactured the product; (2) the plaintiff’s damages were proximately caused by a characteristic of the product that renders the product unreasonably dangerous; (3) the plaintiff’s damages arose from a reasonably anticipated use of the product; and, (4) the characteristic of the product that renders it unreasonably dangerous existed at the time the product left the manufacturer’s control. La. R.S. § 9:2800.54. A product is unreasonably dangerous if it is unreasonably dangerous (1) in construction or composition, (2) in design, (3) because an adequate warning about the product has not been provided, or (4) because it does not conform to an express warranty of the manufacturer about the product. Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 261 (5th Cir. 2002).
In addition to the above elements of proof, there are specific factors for determining whether a product is unreasonably dangerous in construction or composition (La. R.S. § 9:2800.55), in design (La. R.S. § 9:2800.56, 9:2800.59), because of a lack of adequate warning (La. R.S. § 9:2800.57), and for nonconformity with express warranty (La. R.S. § 9:2800.58).
One would presume that the above factors and elements comprise the plaintiff’s burden of proof; however, the Fifth Circuit jurisprudence dictates otherwise.
The Fifth Circuit has articulated the requisite proximate causation linkage between product defect and injury: “[a] plaintiff must prove not only causation in fact, but also that the product defect was ‘the most probable cause’ of the injury.” Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994) (citing Brown v. Parker–Hannifin Corp., 919 F.2d 308, 311, 312 n.9 (5th Cir. 1990)) (holding plaintiffs had failed to exclude other potential causes of decedent’s hepatitis contraction unrelated to allegedly defective medication). “Cause in fact is generally a ‘but for’ inquiry,” although courts may utilize a “substantial factor” test “in those cases where a single accident may have several causes-in-fact.” Hunt v. McNeil Consumer Healthcare, No. 11-457, 2014 WL 1779471 (E.D La. May 5, 2014) (citing Robert v. Benoit, 605 So.2d 1032, 1042 (La. 1991)). But see Graves v. Page, 96-2201 (La. 11/7/97), 703 So. 2d 566, 570. In order to showing that a product defect was the most probable cause of the plaintiff’s damage, a plaintiff (or his/her/its expert) must either present direct evidence of such causation or exclude all other reasonable possible causes with reasonable certainty:
If the plaintiff resorts to circumstantial evidence, the evidence must exclude other reasonable
hypotheses with a fair amount of certainty. This does not mean, however, that [the plaintiff] must
negate all other possible causes. Otherwise, the mere identification by the record of another
possibility, although not shown to be causally active, would break the chain of causation.
McDaniel v. Terex USA, L.L.C., 466 Fed. Appx. 365, 374 (5th Cir. 2012) (internal citations omitted). A logical question then arises as to the legal effect of superseding or intervening causes:
The superseding cause doctrine is a related facet of proximate causation. Under that doctrine, a
tortfeasor is not liable for damages brought about by a later, separate, independent, intervening
cause, even though the tortfeasor's conduct may have created the original peril. Therefore, a
manufacturer of an unreasonably dangerous product will be relieved of liability only if an intervening
cause superseded the original negligence and alone produced the injury. However, foreseeable
intervening forces are within the scope of the original risk and, therefore, will not relieve the
manufacturer of liability.
Mazant v. Visioneering Inc., 250 Fed. App’x 60, 66 (5th Cir. Oct. 4, 2007) (internal citations omitted).
Written by Marshall T. Cox, McGlinchey Stafford PLLC, and
M. Palmer Lambert, Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC