LEGAL02/30203241v1

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DEBRA HARRISON, as Administrator of the 

Estate of MAX BARLOW, deceased, et al.,

)

)

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Plaintiffs, )

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v. )

)

Civil Action No. 

2:06-CV-757-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”).1Plaintiff claims 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, ¶ 12, 53. Louisiana-Pacific acquired the 

Lockhart Facility in November 1983. Complaint, ¶ 53. 

Relative to the instant motion, Plaintiff claims that Louisiana-Pacific manufactured 

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

Alabama for use as firewood. Complaint, ¶¶ 97-98, 155-158. According to Plaintiff, 

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

Complaint, ¶ 159. 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, Plaintiff fails 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. Plaintiff Fails to Allege that Decedent 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, Plaintiff cannot state 

a valid AEMLD claim unless Decedent was “the ultimate user or consumer” of the firewood. 

Casrell, 335 So. 2d at 131. 

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In this case, Plaintiff does not allege that Decedent actually used or consumed any 

chemically-treated scrap wood sold by Louisiana-Pacific. Complaint, ¶¶ 155-158. Nor does 

any Plaintiff allege that his or her decedent 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, Plaintiff asserts an AEMLD cause 

of action based solely on the allegation that the general public burned chemically-treated 

scrap wood sold by Louisiana-Pacific. Complaint, ¶ 157. 

Count Six thus fails as a matter of law. Because Plaintiff does not allege that 

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

product, Plaintiff cannot state a claim under the AEMLD. Rule 12(b)(6) therefore requires 

this Court to dismiss Count Six.

C. Plaintiff Fails To Allege That Louisiana-Pacific Was “In The Business” Of 

Selling Firewood.

Likewise, Plaintiff fails 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, Plaintiff seemingly attempts 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, ¶ 158. Plaintiff does not allege, however, 

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

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causing Decedent’s 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, ¶¶ 97-98, 155-158. 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. Plaintiff Fails 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 does Plaintiff fail to allege that Decedent actually used, consumed, or was 

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

firewood, Plaintiff also omits 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). Plaintiff 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, Plaintiff 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 Decedent, as an end user or consumer, in substantially the same condition as when it

was sold. See Complaint, ¶¶ 155-158. Nor does Plaintiff assert that Louisiana-Pacific 

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

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

be granted and should be dismissed.

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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