LEGAL02/30202601v1

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ROBERT D. BROOKS and ALICE 

BRADLEY,

)

)

)

Plaintiffs, )

)

v. )

)

Civil Action No. 

2:06-CV-680-LES-CSC

PACTIV CORPORATION and LOUISIANAPACIFIC CORPORATION, )

)

)

Defendants. )

)

DEFENDANT LOUISIANA-PACIFIC CORPORATION’S MEMORANDUM OF 

LAW IN SUPPORT OF MOTION TO DISMISS COUNT SIX

Pursuant to Fed. R. Civ. P. 12(b) and 7(b), Defendant Louisiana-Pacific Corporation 

(“Louisiana-Pacific”) submits this Memorandum of Law in Support of its “Motion to Dismiss 

Count Six” filed concurrently herewith. As set forth below, Rule 12(b)(6) requires this Court 

to dismiss Count Six because it fails to state a claim upon which relief may be granted.

BACKGROUND

This is one of eighteen elated lawsuits before this Court stemming from operations at a 

former lumber mill in Lockhart, Alabama (the “Facility”).1Plaintiffs claim that Defendant 

1 Chambers v. Pactiv Corp., et al., Civ. No. 2:06-cv-00083-LES-CSC; Phillips v. Pactiv 

Corp., et al., Civ. No. 2:06-cv-00084-LES-CSC; Thompson v. Pactiv Corp., et al., Civ. No. 

2:06-cv-00085-LES-CSC; Edwards v. Pactiv Corp., et al., Civ. No. 2:06-cv-00086-LES-CSC; 

Madden v. Pactiv Corp., et al., Civ. No. 2:06-cv-00186-LES-CSC; Davis v. Pactiv Corp., et 

al., Civ. No. 2:06-cv-00187-LES-CSC; Douglas v. Pactiv Corp., et al., Civ. No. 2:06-cv00188-LES-CSC; Thompson v. Pactiv Corp., et al., Civ. No. 2:06-cv-00189-LES-CSC; 

Kelley v. Pactiv Corp., et al., Civ. No. 2:06-cv-00190-LES-CSC; Cravey v. Pactiv Corp., et 

al., Civ. No. 2:06-cv-00191-LES-CSC; Adams v. Pactiv Corp., et al., Civ. No. 2:06-cv00660-LES-CSC; Cassady v. Pactiv Corp., et al., Civ. No. 2:06-cv-00679-LES-CSC; Brooks 

v. Pactiv Corp., et al., Civ. No. 2:06-cv-00680-LES-CSC; Anderson v. Pactiv Corp., et al., 

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Pactiv Corporation (“Pactiv”) or its predecessor owned and operated the Facility from “the 

late 1950’s” until November 1983. Complaint, ¶ 10, 51. Louisiana-Pacific acquired the 

Lockhart Facility in November 1983. Complaint, ¶ 51.

Relative to the instant motion, Plaintiffs claim that Louisiana-Pacific manufactured 

chemically-treated wood products and sold scrap wood to residents of Lockhart and Florala, 

Alabama for use as firewood. Complaint, ¶¶ 95-96, 159-162. According to Plaintiffs, 

chemicals made the firewood “defective and unreasonably dangerous when burned.” 

Complaint, ¶ 163. Count Six of the Complaint asserts a “Products Liability” against 

Louisiana-Pacific under the Alabama Extended Manufacturer’s Liability Doctrine 

(“AEMLD”). As shown below, however, Plaintiffs fail to allege the required elements of a 

valid AEMLD claim.

STANDARD OF REVIEW

Under Fed. R. Civ. P. 12(b)(6), motions to dismiss must be granted where Plaintiff 

“can prove no set of facts in support of [a] claim which would entitle [Plaintiff] to relief.” 

Jones v. Phyfer, 761 F.2d 642, 644 (11th Cir. 1985)(quoting Conley v. Gibson, 355 U.S. 41, 

45-46 (1957)). This Court must therefore dismiss all causes of action that Alabama law does 

not recognize, see, e.g., Official Comm. of Unsecured Creditors of PSA, Inc. v. Edwards, No. 

05-12320, 2006 WL 212219, at *11 (11th Cir. Jan. 30, 2006), and all causes of action for 

which Plaintiff fails to allege the necessary legal elements. See, e.g., Lotierzo v. Woman’s 

World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002).

Civ. No. 2:06-cv-00739-LES-CSC; Harrison v. Pactiv Corp., et al., Civ. No. 2:06-cv-00757-

LES-CSC; Lawrence v. Pactiv Corp., et al., Civ. No. 2:06-cv-00758-LES-CSC; Hamilton v. 

Pactiv Corp., et al., Civ. No. 2:06-cv-00759-LES-CSC; K.C. v. Pactiv Corp., et al., Civ. No. 

2:06-cv-00904-LES-CSC.

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ARGUMENT AND CITATION OF AUTHORITY

Pursuant to Rule 12(b)(6), this Court should dismiss Count Six for failure state a valid 

claim under the AEMLD. 

A. Elements of a Valid AEMLD Claim.

The AEMLD is a judicially-created doctrine of strict liability for defective products 

based on Section 402A of the Restatement of Torts (Second). See Casrell v. Altec Indus., Inc., 

335 So. 2d 128, 132-33 (Ala. 1976); Atkins v. Am. Motors Corp., 335 So. 2d 134, 140-41 

(Ala. 1976). To establish liability under the AEMLD, a plaintiff must show that (i) an injury 

was caused by one who sold a product in a defective condition that made the product 

unreasonably dangerous to plaintiff as the ultimate user or consumer; (ii) the seller was 

engaged in the business of selling such a product; and (iii) the product was expected to, and 

did, reach the user without substantial change in the condition in which it was sold. See 

Casrell, 335 So. 2d at 132-33; Atkins at 335 So. 2d 140-41. 

B. Plaintiffs Fail to Allege that They Used or Consumed a Defective Product.

As noted above, the AEMLD imposes liability on parties who sell a defective product 

that is “unreasonably dangerous to the plaintiff as the ultimate user or consumer.” Casrell, 

335 So. 2d at 132; Atkins, 335 So. 2d at 141; see also Rudd v. Gen. Motors Corp., 127 F. 

Supp. 2d 1330, 1333 (M.D. Ala. 2001). As the Alabama Supreme Court has noted, AEMLD 

liability attaches only because a defendant “has exposed expected users of a product not 

reasonably safe to unreasonable risks.” Atkins, 335 So. 2d at 141. Thus, Plaintiffs cannot state 

a valid AEMLD claim unless they were “the ultimate user or consumer” of the firewood. 

Casrell, 335 So. 2d at 131. 

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In this case, no Plaintiff alleges that he or she actually used or consumed any 

chemically-treated scrap wood sold by Louisiana-Pacific. Complaint, ¶¶ 159-162. Nor does 

any Plaintiff allege that he or she indirectly or “passively” burned or used any allegedly 

contaminated firewood. Id.; see Atkins, 335 So. 2d at 148-49 (endorsing Restatement 

(Second) of Torts § 402(A), cmt. l). Instead, Plaintiffs assert an AEMLD cause of action 

based solely on the allegation that the general public burned chemically-treated scrap wood 

sold by Louisiana-Pacific. Complaint, ¶ 161.

Count Six thus fails as a matter of law. Because neither Plaintiff alleges that he or she

burned, used, consumed, or otherwise had a tangible connection to a defective product, 

Plaintiffs cannot state a claim under the AEMLD. Rule 12(b)(6) therefore requires this Court 

to dismiss Count Six.

C. Plaintiffs Fail To Allege That Louisiana-Pacific Was “In The Business” Of 

Selling Firewood.

Likewise, Plaintiffs fail to allege that Louisiana-Pacific was “in the business of”

selling firewood. Alabama law clearly establishes that the AEMLD only applies if “the seller 

was engaged in the business of selling” the allegedly defective product. Casrell, 335 So.2d at 

132-33; Atkins at 335 So.2d 140-41. “That requirement excludes isolated or occasional 

sellers.” Baugh v. Bradford, 529 So. 2d 996, 999 (Ala. 1988). Occasional sellers simply do 

not fall within the ambit of the AEMLD. McGraw v. Furon Co., 812 So. 2d 273, 275-76 

(Ala. 2001).

Here, Plaintiffs seemingly attempt to side-step this element of a viable AEMLD claim 

by alleging that Louisiana-Pacific’s Facility “was engaged in the manufacture and sale and 

placement of wood and wood products.” Complaint, ¶ 162. Plaintiffs do not allege, however, 

that Louisiana-Pacific was “in the business” of selling firewood, the specific product allegedly 

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causing their injuries. Indeed, Louisiana-Pacific allegedly sold the firewood as scrap material 

or co-product, not as a product manufactured as primary part of Louisiana-Pacific’s regular 

business. Complaint, ¶¶ 95-96, 159-162. Because the occasional sale of a discarded item does 

not render the seller “in the business” of selling a defective product, McGraw, 812 So. 2d at 

275-76, Count Six fails to state a viable claim under the AEMLD and should be dismissed.

D. Plaintiffs Fail to Allege that Defective Firewood Reached End Users or 

Consumers Without Substantial Change in Condition, or that LouisianaPacific Expected it to Do So.

Not only do Plaintiffs fail to allege that they actually used, consumed, or were exposed 

to any defective firewood and that Louisiana-Pacific was in the business of selling firewood,

Plaintiffs also omit two other critical elements of a prima facie AEMLD claim. Proof that the 

allegedly-defective product reached the consumer without substantial change in the condition 

in which it was sold is an “essential element” of a viable AEMLD claim. See Hannah v. 

Gregg, Bland & Berry, Inc., 840 So. 2d 839 (Ala. 2002). Plaintiffs must also show that a 

selling defendant actually expected the product to reach the end user or consumer without 

substantial change in condition. Id. Without both of these showings, Plaintiffs cannot recover 

under the AEMLD. Clarke Indus., Inc. v. Home Indem. Co., 591 So. 2d 458 (Ala. 1991).

Here, Count Six does not allege that Louisiana-Pacific sold firewood that ultimately 

reached Plaintiffs, as end users or consumers, in substantially the same condition as when it

was sold. See Complaint, ¶¶ 159-162. Nor do Plaintiffs assert that Louisiana-Pacific expected 

the firewood to reach the end users or consumers without a substantial change in condition. 

Id. Accordingly, Count Six fails to state an AEMLD claim upon which relief can be granted 

and should be dismissed.

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CONCLUSION

For the foregoing reasons, this Court should dismiss Count Six pursuant to Rule 

12(b)(6) for failure to state a claim upon which relief can be granted.

Respectfully submitted this 22nd day of December, 2006.

/s/Bernard Taylor

Bernard Taylor (admitted pro hac vice)

Douglas S. Arnold (admitted pro hac vice)

Orlyn O. Lockard, III (admitted pro hac vice)

Counsel for Defendant Louisiana-Pacific

Corporation

OF COUNSEL:

ALSTON & BIRD LLP

One Atlantic Center

1201 West Peachtree Street, N.W.

Atlanta, Georgia 30309

Tel: (404) 881-7000

Fax: (404) 881-7777

bernard.taylor@alston.com

doug.arnold@alston.com

skip.lockard@alston.com

ADDITIONAL COUNSEL:

Dennis R. Bailey 

ASB No. 4845-I71D

R. Austin Huffaker 

ASB NO. 3422-F55R

RUSHTON, STAKELY, JOHNSON, & GARRETT, P.A.

184 Commerce Street

Post Office Box 270

Montgomery, AL 36101

Tel: (334) 206-3100

Fax: (334) 262-6277

drb@rsjg.com (Bailey)

rah2@rsjg.com (Huffaker)

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Laura Proctor

ASB 1504-R54L

Associate General Counsel

Louisiana-Pacific Corporation

414 Union Street North, Suite 2000

Nashville, Tennessee 37219

Tel: (615) 986-5878

Fax: 1-866-741-5091

laura.proctor@lpcorp.com

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CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of December, 2006, I filed the foregoing via the 

CM/ECF system which will send notice of said filing to the following:

W. Eason Mitchell

Gregory A. Cade

Fred R. DeLeon

W. Lee Gresham, III

Robert Leslie Palmer

Mark R. TerMolen

John C. Berghoff, Jr.

Matthew C. Sostrin

John A. Earnhardt

H. Thomas Wells, Jr.

Richard Elder Crum

/s/Orlyn O. Lockard, III

Of Counsel

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