* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-40133

(Summary Calendar)

_________________________

CHARLES MACDONALD and

WINONA MACDONALD, 

Plaintiffs-Appellants,

STATE OF LOUISIANA, through

the Department of Transportation

and Development

Intervenor-Plaintiff-Appellant,

versus

MONSANTO COMPANY, ET AL.,

Defendants,

DOW CHEMICAL COMPANY,

Defendant-Appellee.

____________________________________________________

Appeal from United States District Court

from the Eastern District of Texas

(1:91-CV-162)

__________________________________________________

September 13, 1995

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:*
 

1Chevron was dismissed from the case pursuant to plaintiffs'

motion to nonsuit.

 

2Although plaintiffs' suit originally was filed in Texas state

court and then removed to federal district court in Texas on the

basis of diversity, the parties agree that Louisiana law is

applicable to the case, presumably because the alleged exposure to

the herbicide occurred in Louisiana. 

This is a diversity case involving a products liability claim

for personal injuries allegedly resulting from the use of an

herbicide manufactured by Dow. Plaintiffs' petition listed

numerous bases for recovery under a products liability theory.

Because we find that plaintiffs failed to establish that any of its

claims warranted trial on the merits, we affirm the district

court's entry of summary judgment in favor of Dow.

I.

This is our second occasion to address the dispute between the

parties in this case. In MacDonald v. Monsanto, 27 F.3d 1021 (5th

Cir. 1994) (MacDonald I), we reversed the district court's denial

of the motion for summary judgment filed by Dow and Chevron1 as to

any of plaintiffs' claims which related to labeling requirements

and the failure to warn, because we concluded that such claims are

preempted by the Federal Insecticide, Fungicide and Rodenticide Act

("FIFRA"), 7 U.S.C. §§ 136-136y. We rendered summary judgment in

favor of Dow and Chevron as to these issues and remanded the case.

Subsequently, Dow brought another motion for summary judgment

as to the remaining claims against it, arguing, inter alia, that

plaintiffs' remaining claims are not actionable under the Louisiana

Products Liability Act ("LPLA"), La.R.S. 9:2800.51 et seq.)2 or

under pre-LPLA law.
3

II.

The standard of review for a summary judgment is well settled.

We review the record de novo to ascertain whether any genuine issue

exists as to any material fact and, upon finding none, to ascertain

whether the moving party is entitled to a judgment as a matter of

law. Fed.R.Civ.P.56(c); Miles v. American Tel. & Tel. Co., 703 

F. 2d 193 (5th Cir. 1983). Without weighing the evidence,

assessing its probative value, or resolving any factual disputes,

id., we merely search the record for resolution-determinative

factual disputes. Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th

Cir. 1980). We review district court determinations of state law

de novo. Salve Regina College v. Russell, ___U.S. ___, 111 S.Ct.

1217, 113 L.Ed.2d 190 (1991).

III.

The LPLA expressly states at Section 2800.52 that the Act

establishes the exclusive theories of liability for manufacturers

for damage caused by their products. Thus, in order to recover

under the LPLA, a plaintiff is limited to the distinct theories of

recovery enumerated in the Act.

The only claims forwarded by plaintiffs which reasonably could

be construed to have survived MacDonald I are (1) the failure to

test properly, (2) the failure to provide safety equipment or

devices, and (3) the claim that the product was unreasonably

dangerous. Dow's position was that plaintiffs' products liability

claims regarding the failure to test, failure to equip, and the
4

unreasonably dangerous nature of the product did not fall within

the purview of the LPLA. The LPLA does not recognize a cause of

action for failure to test or failure to equip, except insofar as

the failure to test or equip renders the product unreasonably

dangerous. Under the LPLA, in order to maintain an action against

a manufacturer for damages resulting from an unreasonably dangerous

product, a plaintiff must show that either (1) the product is

unreasonably dangerous in construction or composition; (2) the

product is unreasonably dangerous in design; (3) the product is

unreasonably dangerous due to inadequate warnings; (4) the product

is unreasonably dangerous because it does not conform to an express

warranty of the manufacturer. See La. R.S. 9:2800.54. 

Our opinion in MacDonald I renders the part of the statute

pertaining to inadequate warnings inapplicable in this case. There

has been no allegation by plaintiff that the product did not

conform to an express warranty. Thus, to recover under the LPLA

due to the unreasonably dangerous nature of the product, in this

case plaintiffs would have to show that the product is unreasonably

dangerous in construction or composition or that it is unreasonably

dangerous in design. In order to make out a claim that a product

was unreasonably dangerous in construction or composition, the

plaintiff would have to prove that the product deviated in a

material way from the manufacturer's specifications or performance

standards for the product or from otherwise identical products

manufactured by the same manufacturer. See La.R.S. 9:2800.55.

There has been no allegation that the herbicide 2,4-D allegedly
5

manufactured by Dow and used by plaintiff was defective because it

differed from other 2,4-D manufactured by Dow. Thus, this theory

of recovery is not available to plaintiffs. 

The final theory of recovery under the LPLA upon which

plaintiffs could arguably rely is that the product was unreasonably

dangerous in design. Under the LPLA, a plaintiff cannot recover on

the basis that a product is unreasonably dangerous in design unless

he can prove that, at the time the product left the manufacturer's

control, there existed an alternative design for the product that

was capable of preventing the claimant's damage. Dow argued in its

motion for summary judgment that 2,4-D is a distinct chemical

composition, and that any alternative design for it would create an

altogether different chemical. Thus, Dow argued that it would be

impossible for plaintiffs to present any alternative design for

2,4-D. With all the theories of recovery under the LPLA having

been eliminated, Dow contended that plaintiffs therefore could not

prove that the product was unreasonably dangerous under the LPLA.

In its motion for summary judgment, Dow presented alternative

arguments in the event that the LPLA was deemed inapplicable by the

district court. As noted above, the applicability of the LPLA is

in dispute because some of the alleged exposure to the herbicide

occurred prior to the effective date of the Act, and some of it

occurred subsequent to the effective date of the Act. 

With regard to the allegation that Dow failed to adequately

test its product, Dow first argued that even under pre-LPLA law
 

3Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115

(La. 1986), the leading pre-LPLA products liability case, limited

its consideration of the duty to test to theories based upon design

defect and a manufacturer's duty to warn. Thus, even under pre-Act

law, the failure to properly test must result in either a defect or

a failure to warn, and a plaintiff must proceed under one of these

theories. Accordingly, the failure to test per se does not give

rise to a cause of action except insofar as it renders the product

unreasonably dangerous.

 

4These tests relate to the physical injuries which McDonald

alleges he suffered.

6

there was no independent action for failure to test a product.3

Moreover, Dow claimed that plaintiffs had presented no competent

summary judgment evidence that a test exists which should have been

performed which would have produced identifiable results. Dow

pointed out that plaintiffs had acknowledged in their answers to

interrogatories that Dow had not violated any industry standard.

Dow also presented summary judgment evidence showing that Dow

conducted extensive tests on 2,4-D, including tests involving

neurotoxicity and polyneuropathy.4

As to plaintiffs' allegation that Dow failed to properly equip

its product with proper safety equipment or devices, Dow pointed

out that MacDonald admitted he had been provided protective eye

wear, a respirator, a protective apron, and rubber gloves.

Plaintiffs did not identify what particular equipment or devices

should have been supplied to MacDonald and were not, nor have they

shown that the failure to furnish such devices or equipment was a

proximate cause of damages. Again, Dow also pointed out that

plaintiffs have made no allegation that Dow violated any industry

standard.
 

5The term "unreasonably dangerous per se" was somewhat of a

term of art under pre-LPLA law. Certain products, by their very

nature, were deemed by the courts to be unreasonably dangerous per

se. No Louisiana court has ever deemed the herbicide 2,4-D

unreasonably dangerous per se.

7

With regard to the claim that the product was unreasonably

dangerous in nature, Dow argued that, even under pre-LPLA law,

plaintiffs would have to prove that the product was unreasonably

dangerous per se, unreasonably dangerous in construction or

composition, unreasonably dangerous due to inadequate warnings, or

unreasonably dangerous because of its design. Halphen v. JohnsManville, supra, 484 So.2d at 115. Plaintiffs did not plead that

the product was unreasonably dangerous per se.

5 Moreover, as

discussed above, they have not alleged that this 2,4-D deviated

from other formulations of the product manufactured by Dow and was

thus unreasonably dangerous in composition; thus, even under preLPLA law, Dow contended that these theories of recovery were not

available to plaintiffs. Thus, Dow maintained that plaintiffs were

limited under pre-LPLA law, just as they would be limited under the

LPLA, to a claim that the product was defective in design. Under

the pre-LPLA law in a defective design case, plaintiffs would have

to prove that there was a feasible way to produce the product with

less harmful consequences. Id. Dow maintained that plaintiffs

have adduced no summary judgment to support such an allegation. 

As an additional basis for summary judgment, Dow included in

its motion a detailed discussion of its allegation that plaintiffs

have failed to prove that MacDonald was exposed to Dow's 2,4-D.

The Louisiana Department of Transportation, for whom MacDonald
8

worked when he was allegedly exposed to 2,4-D, purchased product

made by several different manufacturers during the relevant time

periods. Thus, Dow maintained that plaintiffs could not link Dow

to the 2,4-D to which MacDonald was exposed. A threshold inquiry

in any products liability case is that the product was indeed

manufactured by the defendant manufacturer. Dow maintained that

Louisiana has yet to adopt the "market share" theory of liability

that has been recognized in other jurisdictions, which would allow

recovery even in the absence of specific proof that a particular

manufacturer manufactured the product which injured the plaintiff.

Plaintiffs' response to Dow's motion for summary judgment

consisted of only three and a quarter pages and wholly did not

address many of the contentions raised by Dow. Plaintiffs' relied

upon a Fourth Circuit case, Worm v. American Cyanamid Co., 5 F.3d

744, 749 (4th Cir. 1993), and Williams v. State, 640 So. 2d 365,

368 (La. 1st Cir. 1994) for the proposition that its claims for

negligent testing, formulation, and manufacture are not preempted

by FIFRA. However, plaintiffs' response begged the question of

whether their claims could survive summary judgment. Moreover,

plaintiffs did not even argue, much less produce any competent

summary judgment evidence, to establish that under Louisiana law

their claims could survive a summary judgment motion. For example,

as Dow pointed out, plaintiffs have not pointed to a particular

test which was done improperly or which was not done on the

product, and which would have produced results which would have

prevented plaintiffs' injuries. Also, as to plaintiffs' claims for
 

6As alluded to above, plaintiffs' claims that the herbicide

lacked the necessary safety devices or equipment to make it safe

for use is tantamount to a claim that the product, as sold, was not

designed properly.

9

failure to equip, plaintiffs feebly responded merely that the

failure to equip or provide safety mechanisms would be actionable

under pre-LPLA law, without citing any authority. Plaintiffs did

not forward any summary judgment evidence to indicate what safety

measures or equipment Dow should have provided but did not. Under

the pre-LPLA law and the LPLA itself, in a defective design case6,

the plaintiff must show either that there was a feasible way to

market the product with less harmful consequences (under pre-LPLA

law) or that an alternative design actually already existed at the

time the product left the manufacturer's control (under the LPLA).

In their response to Dow's motion for summary judgment, plaintiffs

did not provide even a scintilla of argument, much less evidence,

illustrating how they contend the product could have been

manufactured to make it less dangerous, nor did they even describe

or present evidence as to how they contend the product caused the

plaintiffs' injuries. 

Finally, in their response to the motion for summary judgment,

plaintiffs did respond to Dow's allegations that the LPLA applied

to this case and that plaintiffs could not trace the 2,4-D used by

MacDonald to Dow. They pointed out, using Dow's own summary

judgment evidence, that the LPLA might not apply because some of

the herbicide spraying occurred prior to the effective date of the

LPLA. They also attempted to trace sales of Dow's product to Bel
10

Chemical, who in turned sold product to the Louisiana Department of

Transportation and Development, where MacDonald was exposed to 2,4-

D. 

The district court granted Dow's motion for summary judgment

as to all of plaintiffs' remaining claims, without giving reasons.

Thus, this Court cannot discern whether the motion was granted due

to plaintiffs' failure to trace the product back to Dow or because

plaintiffs did not forward competent summary judgment evidence to

establish that there are genuine issues of material fact

surrounding their claims which would have entitled them to trial on

the merits. 

Plaintiffs have appealed the grant of summary judgment, filing

a four and a half page brief to this Court in a case in which the

record comprises nearly a thousand pages. Plaintiffs' brief merely

revisits the issue pertaining to linking the product to Dow and the

issue of the applicability of the LPLA. The brief also contains a

few vague assertions regarding plaintiffs' claims for failure to

test and failure to equip. For example, plaintiffs again claim

that claims for negligent testing, formulation, and manufacture are

not preempted by FIFRA, citing Worm, supra, and Williams, supra,

which cited Worm. Plaintiffs' assertions beg the question of what

genuine issue of material fact exists surrounding its claims of

failure to test, failure to equip, and design defect. Plaintiffs

have failed to adduce any summary judgment evidence to even suggest

that their claims are viable under either pre-LPLA law or the LPLA.

Even in their brief to this court, plaintiffs continue to resort to
11

such vague allegations such as "a fact issue exists that if

Appellee had provided some type of safety equipment then this

incident could have been avoided (emphasis added)." Plaintiffs

adduced no evidence or argument to enable this court to even

remotely discern what safety equipment or device plaintiffs contend

might have prevented plaintiffs' injuries. The same holds true for

plaintiffs' allegations concerning the failure to test and the

unreasonably dangerous nature of the product. Moreover, plaintiffs

did not even attempt to brief these latter issues or even try to

explain to this court what tests Dow should have conducted on the

product, or how Dow might have manufactured an herbicide which

would be less dangerous than 2,4-D. On that basis alone, we could

consider the issues waived. See Yohey v. Collins, 985 F.2d 222,

224 (5th Cir. 1993). 

IV.

In any event, we conclude that summary judgment was properly

granted in favor of Dow as to all claims surviving MacDonald I,

because plaintiffs failed to adduce any summary judgment evidence

in its response to Dow's motion for summary judgment which would

establish that its claims warranted trial on the merits. 

Federal Rule of Civil Procedure 56(e) provides, in pertinent

part: 

When a motion for summary judgment is made and supported

as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse

party's pleading, but the adverse party's response, by

affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine

issue for trial. If the adverse party does not so
12

respond, summary judgment, if appropriate, shall be

entered against the adverse party (emphasis added).

Even if we were to resolve in plaintiffs' favor the issue of

the applicability of the LPLA and the plaintiffs' ability to link

Dow to the product to which MacDonald was exposed, we would be

unable and unwilling to reverse the summary judgment granted in

favor of Dow because plaintiffs have for the most part rested upon

the bald, vague allegations in their pleadings. Their response to

Dow's motion for summary judgment is completely devoid of any

evidence which would permit their claims of negligent testing,

formulation and manufacture of the herbicide to survive summary

judgment, under either pre-LPLA or post-LPLA law. Accordingly,

under Rule 56(e), the district court correctly entered summary

judgment in favor of Dow. It is not necessary that we reach the

alternative argument forwarded by Dow regarding plaintiffs' failure

to link Dow to the product to which MacDonald was exposed. Our

determination that plaintiffs' claims cannot survive summary

judgment under either pre-LPLA law or the LPLA itself pretermits

any further discussion of the applicability of the LPLA. AFFIRMED.