930 F. Supp. 241
E.D. La.
1996

ORDER AND REASONS

VANCE, District Judge.

This matter is before the Court on defendants Atlantic Richfield Company, NL Industries, Inc., Sherman-Williams Company, SCM Corporation, Glidden Company, Fuller-O’Brien Corporation, and Lead Industries Association, Inc. (“defendants”) Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b), and on the Motion of defendants Glidden Company, Atlantic Richfield Company, Fuller-O’Brien Corporation, NL Industries, Sherwin-Williams Company, and Lead Industries Association, Inc. to Dismiss the Complaint Based Upon Failure to Identify the Manufacturer. The Court heard argument on these motions on April 18, 1996. For the reasons set forth below, defendants’ motions are granted.

I. BACKGROUND

Plaintiff Letetia Jefferson, individually and as the duly qualified legal tutrix of Schanta Jefferson (“plaintiff’), filed this action for damages resulting from Schanta Jefferson’s alleged lead poisoning by ingestion, absorption or inhalation of lead paint pigment. Plaintiff purports to represent a class of all Louisiana parents of children who suffered from lead poisoning from lead paint pigment before they attained the age of six years. Named as defendants are six entities that produced and sold lead paint pigment, together with the Lead Industries Association, Inc., a trade association to which the pigment defendants allegedly belonged. Plaintiffs complaint asserts liability against defendants under a number of legal theories.

Defendants have filed two motions to dismiss the complaint, as amended. The first motion asserts that the complaint is fatally defective because plaintiff has not identified the manufacturer of the lead paint pigment whose product caused her injury. The second motion asserts that the amended complaint is deficient under the Louisiana Products Liability Act (“LPLA”), which states the exclusive grounds of recovery against a manufacturer of an allegedly defective product. Because the Court agrees that the LPLA states the exclusive theories on which liability may be imposed on a manufacturer of a defective product, and because Louisiana law requires that plaintiff identify the manufacturer whose product caused her injury, the Court orders the amended complaint dismissed against the paint pigment manufacturers for failure to state a claim. The amended complaint is likewise ordered dismissed against the Lead Industries Association, Inc. for the reasons stated below.

II. THE COMPLAINT

The amended complaint contains hardly any allegations concerning the circumstances of Schanta Jefferson’s lead poisoning, other than to assert that she contracted lead poisoning before she reached the age of six because of “ingestion, absorption or inhala tion of lead paint pigment.” Complaint at ¶ 10. There are no allegations of where or how she came into contact with the lead paint pigment. Further, she does not allege, and states that she cannot allege, the identity of the manufacturer of the paint pigment that caused her injury. Nor does she assert when the lead paint pigment was applied to whatever it was that she came into contact with containing lead paint pigment. In her opposition memorandum, plaintiff refers to lead paint pigment on the walls of her apartment as the source of her contamination, but this is not alleged in the complaint.

Rather, plaintiff alleges that defendants marketed most of the lead paint pigments used in lead based paints that were sold in the United States between the early part of the twentieth century and the early 1970’s, when lead paint pigment was outlawed for residential purposes. Amended Complaint at ¶¶ 15, 21 and 36. The complaint alleges that lead paint pigment remains in a large majority of residences built before the early 1970’s, posing a health risk to children. Id. at ¶ 21. Plaintiff asserts that from the early part of the twentieth century through at least the late 1950’s, defendants conspired to promote lead paint pigment in residential paint, despite their knowledge of its unreasonable health risks to children. Plaintiff claims that defendants misrepresented the product as safe and faded to disclose or warn of its known health risks. Plaintiff’s asserted theories of recovery are: the manufacture and sale of an unreasonably dangerous product, defective design, negligence, failure to warn, breach of express warranty, breach of express or implied warranty of fitness for a particular purpose, fraud by misrepresentation, market share liability and civil conspiracy. Id. at ¶¶ 23-57.

III. LEGAL ANALYSIS

The standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one. The district court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. Fernandez-Montes v. Allied Pilots Ass’n., 987 F.2d 278, 284 (5th Cir.1993). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Fernandez-Montes, 987 F.2d at 284, 285; Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.1994). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994).

A, Louisiana Products Liability Act— Lead Pigment Manufacturers

No party disputes that this motion is to be decided under Louisiana law or that the Louisiana Products Liability Act applies to plaintiffs claims. 1 At issue is whether plaintiff may assert theories of recovery against a manufacturer of an allegedly defective product that are not recognized by the LPLA and whether plaintiff must identify the manufacturer of the product causing her injuries in order to recover.

The Louisiana Products Liability Act “establishes the exclusive theories of liability for manufacturers for damages caused by their products.” La.Rev.Stat.Ann. § 9:2800.52 (West 1988); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995); Lewis v. Intermedies Intraocular, Inc., 56 F.3d 703, 706 (5th Cir.1995). A plaintiff may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability not set forth in the LPLA. La.Rev.Stat.Aim. § 9:2800.52 (West 1988). The LPLA provides that a manufacturer of a product is liable to a claimant for damage “proximately caused” by a characteristic of the product that rendered it “unreasonably dangerous” when the damage arose from a reasonably anticipated use of the product by the “claimant or another person or entity.” Id. § 9:2800.54A. A claimant may prove that the product was “unreasonably dangerous” only under one of the following four theories: (1) that it was unreasonably dangerous in construction or composition; (2) that it was unreasonably dangerous in design; (3) that it was unreasonably dangerous because of inadequate warning; or (4) that it was unreasonably dangerous because of nonconformity to an express warranty. Id. at § 2800.54(B)(l-4). Thus, the elements of a products liability cause of action under the LPLA are proof of the following:

1. that the defendant is a manufacturer of the product;
2. that the claimant’s damage was proximately caused by a characteristic of the product;
3. that the characteristic made the product unreasonably dangerous in one of the four ways provided in the statute; and
4. that the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else.

Id. § 2800.54; see generally J. Kennedy, A Primer on the Louisiana Products Liability Act, 49 La.L.Rev. 565 (1989) (hereafter “Kennedy”). While the statutory ways of establishing that a product is unreasonably dangerous are predicated on principles of strict liability, negligence, or warranty, respectively, neither negligence, strict liability, nor breach of express warranty is any longer viable as an independent theory of recovery against a manufacturer. See Automatique New Orleans, Inc. v. U-Select-It, Inc., 1995 WL 491151 at *3 n. 2 (E.D.La. Aug. 15, 1995) (no independent negligence claim); Hopkins v. NCR Corp., 1994 WL 757510 at *1-2 (M.D.La. Nov. 17, 1994) (strict liability under article 2317 not cognizable theory against manufacturer); Kennedy, supra, at 589-90. Further, breach of implied warranty or redhibition is not available as a theory of recovery for personal injury, although a redhibition action is still viable against the manufacturer to recover pecuniary loss. Kennedy, supra, at 588.

It is apparent from the foregoing discussion of the exclusivity of the LPLA that plaintiffs allegations of negligence, fraud by misrepresentation, market share liability, breach of implied warranty of fitness and civil conspiracy fail to state a claim against the lead paint pigment manufacturers under the LPLA and must therefore be dismissed. See Brown v. R.J. Reynolds Tobacco Co., 852 F.Supp. 8 (E.D.La.1994), aff'd, 52 F.3d 524 (5th Cir.1995) (summarily dismissing claims for fraudulent misrepresentation, concealment and conspiracy); Hopkins v. NCR Corp., 1994 WL 757510 (M.D.La. Nov. 17, 1994), aff'd, 53 F.3d 1281 (5th Cir.1995) (plaintiff could not bring separate strict liability action against manufacturer as “lessor or owner” under La.Civ.Code Ann. art. 2317 because of preemptive force of LPLA).

Plaintiff does attempt to assert a claim for defective design, failure to warn, and breach of express warranty, which are cognizable liability theories under the LPLA. However, these claims are likewise defective because nowhere in the complaint does plaintiff identify the manufacturer whose product caused her injury. Plaintiff contends that product identification, or identification of the manufacturer whose product caused her injury, is not required under the LPLA. She claims that the theory of market share liability, under which liability is imposed on the basis of each manufacturer’s share of the product market, can serve as a surrogate for identification of the manufacturer of the product that caused her damage. Plaintiff also relies on a civil conspiracy theory to argue that solidary liability may be imposed on the manufacturers under article 2324 of the Louisiana Civil Code for conspiring to promote lead paint pigment fraudulently. The Court has already found that civil conspiracy and fraudulent misrepresentation are not cognizable liability theories under the Louisiana Products Liability Act. Nor can market share liability serve as a liability theory under the Act. The Court now addresses whether market share theory, if not a cause of action, can nevertheless serve as an alternative theory of causation under the LPLA. The Court concludes that it cannot.

1. Product Identification — An Element of a Products Liability Claim

Plaintiffs obligation to identify the manufacturer of the allegedly defective product is inherent in the LPLA’s requirement that plaintiff prove proximate causation. The statute provides in Section 2800.54(A) that

the manufacturer of a product shall be liable to a claimant for damages proximately caused by a characteristic of the product_(emphasis added).

Section 2800.54(D) states that plaintiff has the burden of proving the elements of Subsection 2800.54(A). Plaintiff thus has the burden of proof that a manufacturer’s product proximately caused her injury. In addition, the statute provides that the LPLA “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” Id. at § 2800.52 (emphasis added). Further, Louisiana courts require the identification of a product’s manufacturer in product liability cases. In a pre-LPLA case, the Fifth Circuit, applying Louisiana law, required identification of the manufacturer as an element of plaintiffs product liability claim in Aymond v. Texaco, Inc., 554 F.2d 206, 211 (5th Cir.1977). Louisiana state courts did so as well. See Fricke v. Owens-Coming Fiberglas Corp., 618 So.2d 473, 475 (La.App.1993) (pre-1988 accident) (“we cannot abandon general rule of products liability requiring identification of the product with the manufacturer”); Harrison v. Gulf S. Beverages, Inc., 438 So.2d 261, 262 (La.App. 4th Cir.), writ denied, 443 So.2d 582 (La. 1983); Simms v. Baton Rouge Coca-Cola Bottling Co., 469 So.2d 52, 54 (La.App. 1st Cir.1985), writ denied, 470 So.2d 882 (La. 1985); Roberts v. Louisiana Coca-Cola Bottling Co., 566 So.2d 163, 167 (La.App. 4th Cir.1990). After the adoption of the LPLA, Louisiana courts have likewise required identification of the manufacturer of the defective product. See, e.g., Baldwin v. Kikas, 635 So.2d 1324, 1327 (La.App. 4th Cir.1994), writ denied, 643 So.2d 144 (La.1994) (affirming summary judgment because of insufficient evidence of identity of manufacturer or seller); see also Maldanado v. State Through Dept. of Transportation, 618 So.2d 537, 538-39 (La.App. 4th Cir.1993), writ denied, 623 So.2d 1309 (La.1993) (proof of identity of manufacturer is element of plaintiffs claim).

Market share liability has never been adopted by a Louisiana court. The theory was first developed by the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), a diethylstilhestorol (“DES”) ease. There, plaintiff was unable to identify the manufacturer of the DES that her mother took while she was pregnant, which caused the plaintiffs injury. As a result, the court shifted the burden to the industry defendants to prove that they could not have been the manufacturer of the product causing plaintiffs injury. If a defendant could not exculpate itself, it would be liable for a resulting judgment in proportion to its share of the DES market at the time at issue.

As noted, no Louisiana decision has ever applied this .theory to supplant proof of proximate causation. Moreover, the Fifth Circuit has twice refused to find that market share theory could be applied under Louisiana law. In 1983, in Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), the Fifth Circuit, sitting in diversity, refused to apply market share liability in an asbestos products liability case controlled by Louisiana law. The court reasoned that Louisiana courts had not adopted the theory and that such a radical expansion of tort liability was for Louisiana courts in the first instance. Id. at 583. Three years later, in Bateman v. Johns-Manville Sales Corp., 781 F.2d 1132, 1133 (5th Cir.1986), the Fifth Circuit followed its earlier ruling in Thompson and held that it was for the State of Louisiana to decide for itself to “make the major policy change of adopting the market share theory.” Id. at 1133. The Louisiana legislature adopted the LPLA after both Bateman and Thompson, and it did not include market share liability as an alternative to traditional proof of proxi mate causation. Thus, since there is no, intervening Fifth Circuit or controlling Louisiana precedent to the contrary, this Court is bound by the Fifth Circuit’s decisions in Thompson and Bateman.

Apart from the constraints imposed by precedent, this Court is skeptical of the wisdom of imposing market share liability in a case such as this. Here, the connection between plaintiffs unfortunate injury and defendants’ alleged wrongful conduct is separated by anywhere from 20 to 70 years. Plaintiff concedes that lead paint pigment has not been applied for residential purposes since at least 1972, 20 years before this plaintiff was bom, and most of the wrongful conduct in the complaint allegedly took place between 1917 and the 1950’s. Plaintiff does not even allege when the lead paint pigment was applied to the source of her exposure. Nor does plaintiff allege that defendant’s market share should be determined as of any particular time. She simply alleges that “each pigment defendant is liable to plaintiffs for its proportionate share of lead pigment produced and sold.” Complaint at ¶ 44. This would appear to mean liability based on a defendant’s share of the total production of lead pigment over the total period it was produced and sold. In Sindell, where market share liability was applied, plaintiff could narrow the time of her exposure and of the sale of the DES to the time when her mother was pregnant, at which point the existing manufacturers could be ascertained. Here, while Schanta Jefferson was apparently exposed to lead paint pigment sometime after her birth in 1992, the lead paint pigment had to have been applied more than 20 years before that, and plaintiff does not allege when in this century that this application occurred. Even courts using market share liability have limited each defendant’s liability to the proportion of the judgment “which reflects the share of the market supplied by the defendant at the time of said encounter.” Santiago v. Sherwin Williams Co., 3 F.Bd 546, 550 (1st Cir.1993) (citing cases) (emphasis added). Plaintiff apparently contemplates a less finely tuned application of the doctrine here. Further, as defendants point out, not all manufacturers of lead pigment are defendants in the ease. Eagle-Picher, described in plaintiffs complaint as a “major producer of white lead and a member of the LIA,” is not a defendant. See Complaint at ¶ 88. In sum, with no allegation of when the pigment was applied, or that defendants’ market shares were constant over the whole period that lead pigment was used, and with a “major producer” absent from the ease, the Court finds that market share theory would create too much risk that a defendant will be held liable for more harm than it caused, or, worse yet, without causing any harm at all to the plaintiff. See Santiago, 3 F.3d at 550-52 (rejecting market share liability in lead paint case for similar reasons).

For all of the foregoing reasons, the complaint against the pigment manufacturers must be dismissed for failure to state a legally cognizable claim to relief.

B. Lead Industries Association, Inc.

Lead Industries Association, Inc. is alleged to be a New York corporation. It is not alleged to have manufactured or sold lead paint pigment. The LPLA applies only to manufacturers, and its causes of action do not lie against an incorporated trade association not alleged to have acted as a manufacturer. See Baldwin v. Kikas, 635 So.2d 1324 (La.App. 4th Cir.1994) (nonmanufacturer or nonseller not liable for negligence or strict liability under LPLA). Further, a warranty action does not lie against one who neither sells nor manufactures a product. See Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748 (La.1987) (bank not liable in warranty); cf. Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168 (5th Cir.1996) (Texas law). Plaintiff has not even asserted market share liability against the LIA. See Complaint at ¶44.

The gravamen of plaintiffs allegations against the LIA are that it conspired with the pigment defendants to promote lead pigment through fraudulent misrepresentations. Louisiana law does not recognize an independent cause of action for civil conspiracy. See Louisiana v. McIlhenny, 201 La. 78, 9 So.2d 467, 472 (1942); Junior Money Bags, Ltd. v. Segal, 798 F.Supp. 375, 379 (E.D.La.1990); Silver v. Nelson, 610 F.Supp. 505, 516 n. 15 (E.D.La.1985). Rather, Loui siana Civil Code article 2324 provides that “he who conspires with another person to commit an intentional or willful act is answerable in solido with that person for the damage caused by such act.” La.Civ.Code Ann. art. 2324 (West 1988). The actionable element under article 2324 is the intentional tort the conspirators agreed to commit and committed in whole or in part causing plaintiffs injury. See Kiva Constr. & Engineering v. International Fidelity Insurance Co., 749 F.Supp. 753, 756 (W.D.La.1990); Silver, 610 F.Supp. at 516. Plaintiff asserts that the underlying tort here is fraudulent misrepresentation: “the knowingly fraudulent misrepresentation of the properties of lead pigment.” Plaintiffs Opp.Mem. at 15. However, plaintiffs conspiracy to commit fraudulent misrepresentation claim is defective because the underlying fraudulent misrepresentation claim is defective.

Louisiana Civil Code article 1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may result from silence or inaction.” La.Civ.Code art. 1953. An element of a Louisiana claim for fraudulent misrepresentation is justifiable reliance. See Abbott v. Equity Group, Inc., 2 F.3d 613, 624 (5th Cir.1993); Abell v. Potomac Ins. Co., 858 F.2d 1104, 1131 n. 33 (5th Cir.1988); Silver, 610 F.Supp. at 516. 2 Nowhere in the complaint does plaintiff allege that she bought, used, or ingested the lead paint pigment in reliance on defendants’ misrepresentations. Indeed, it would appear impossible for the injured plaintiff to allege that she ingested the lead pigment in justifiable reliance on the asserted misrepresentations of defendants since they were made before she was born, and the dangers of lead pigment were so publicly known that it was banned by law for residential use 20 years before her birth. Cf. City of Philadelphia v. Lead Industries, Inc., 1992 WL 98482 at *6 (E.D.Pa.1992) (discussing similarly defective fraudulent misrepresentation claim). Hence, the claim of fraudulent misrepresentation is defective as a matter of law.

In addition, plaintiffs fraudulent misrepresentation claim against the LIA is defective because of a failure to allege causation. Plaintiffs complaint does not allege that the fraudulent promotional activities of the LIA caused her lead poisoning. See Santiago, supra, 3 F.3d 546 at 552 (noting same defect). She simply alleges that if defendants had not engaged in fraudulent activity, lead pigment would not have been sold in America for residential use. Complaint at ¶ 52. While plaintiff argues in her brief that “but for” the fraudulent promotional activities of the LIA and the pigment defendants, no paint would have been used residentially and hence no paint would have been used in her apartment, not even this much is alleged in her complaint.

For all of the foregoing reasons, the amended complaint fails to state a claim against the LIA.

IV. CONCLUSION

The amended complaint is ordered dismissed against all defendants.

Notes

1

. The LPLA became effective on September 1, 1988 and applies to those causes of action that accrued on or after September 1, 1988. See La. Acts No. 64, § 2 (West 1988); Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir.1995). Plaintiff filed another suit against her landlord, the Housing Authority of New Orleans ("HANO”), in which she alleges that Schanta Jefferson was bom on July 1, 1992, approximately four years after the effective date of the LPLA. The Court may take judicial notice of the contents of public records on a Rule 12(b)(6) motion. E.g., Fortney v. Petron, Inc., 1992 WL 236936 at *1 (E.D.La. Sept. 1, 1992). Hence, the LPLA clearly applies to Jefferson's claims.

2

. The same is trae if the claim were for negligent misrepresentation. See Abbott v. Equity Group, Inc., 2 F.3d 613 at 624 n. 38 (5th Cir.1993).