IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30516

TESS WILTZ, doing business as Opelousas Crawfish House, 

 Plaintiff - Appellant

BEAUCOUP CRAWFISH OF EUNICE, INCORPORATED, 

 Intervenor Plaintiff - Appellant

v.

BAYER CROPSCIENCE, LIMITED PARTNERSHIP; ALLIANZ GLOBAL

RISKS U S INSURANCE COMPANY, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Louisiana

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

The Louisiana crawfish industry suffered a precipitous decline when rice

seed coated with a pesticide allegedly decimated the 1999-2000 farm-raised

crawfish crop. The plaintiffs in this putative class action are buyers and

processors of farm-raised crawfish who seek to recover their economic loss from

the pesticide manufacturer under the Louisiana Products Liability Act (LPLA),

LA. REV. STAT. ANN. § 9:2800.54. The district court granted summary judgment

to the manufacturer because the plaintiffs’ economic loss was unaccompanied by

damage to their own person or property. For the following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

June 28, 2011

Lyle W. Cayce

Clerk

Case: 10-30516 Document: 00511522606 Page: 1 Date Filed: 06/28/2011
No. 10-30516

I. BACKGROUND

A. Crawfish farming and processing

Louisiana crawfish are farmed in rice ponds. The Louisiana farm-raised

crawfish crop allegedly suffered a precipitous decline beginning in the 1999-2000

crawfish season. According to plaintiffs-appellants Tess Wiltz d/b/a Opelousas

Crawfish House (Wiltz) and Beaucoup Crawfish of Eunice, Inc. (Beaucoup

Crawfish), the decline was caused by the application of rice seed coated with

ICON, a pesticide manufactured and sold by defendant-appellee Bayer

CropScience, L.P. (Bayer). ICON rice allegedly was introduced in Louisiana rice

ponds during the 1999 planting season and taken off the market a few years

later.1

The plaintiffs buy crawfish from crawfish farmers and then either resell

the crawfish live or process them for tail meat. As crawfish buyers and

processors, the plaintiffs assert they play “an essential and necessary role in the

creation, preservation and perpetuation” of the Louisiana crawfish industry. 

The plaintiffs have submitted evidence indicating that they create a market for

small “peeler” crawfish, sell bait to crawfish farmers, provide loans to crawfish

farmers, and provide logistical support to crawfish farmers by storing and

transporting crawfish. According to the plaintiffs, “the farmers and the

Buyer/Processors are really one unified group and not two separate groups,” and

harm to the latter is “inevitable if a defective product were to sterilize or kill the

Bayer has filed a motion to strike certain parts of the plaintiffs’ brief. We deny 1

the motion. The plaintiffs’ discussion of the crawfish industry is supported by the

record, including an expert report. Similarly, the plaintiffs’ discussion of the Phillips

litigation, addressed below, is supported by the record and published case law. 

2

Case: 10-30516 Document: 00511522606 Page: 2 Date Filed: 06/28/2011
No. 10-30516

crawfish crops.” The plaintiffs allege they suffered economic loss when ICON

rice drastically reduced the number of crawfish they could buy and process. 

Although the plaintiffs have submitted evidence suggesting they work

closely with crawfish farmers, the plaintiffs have not submitted any evidence

suggesting ICON actually harmed their crawfish. Nor is there any evidence 2

that the plaintiffs were deprived of an actual, legal right to buy crawfish from

the crawfish farmers.3

The plaintiffs allege they own certain crawfish ponds, but there is no evidence 2

those ponds were affected by ICON.

The plaintiffs do not argue on appeal that they had legally enforceable

3

contracts to buy crawfish from the crawfish farmers. Indeed, they acknowledge that

“they have no breach of contract claims against the Farmers.” 

At times the plaintiffs have been somewhat more equivocal. Beaucoup Crawfish

produced an affidavit asserting that “both the buyer/processor and the

farmer/fishermen make a commitment for the entire crawfish harvest season to either

buy all that they produce, or commit to a certain minimum or maximum number of

sacks per day, [and] that these customary practices are widely known in the industry.” 

Similarly, the plaintiffs’ expert concludes that crawfish processors operate in a “supply

chain structure” that “[i]n some cases . . . will impose production controls or input

requirements on the supplier.” According to the expert, this supply chain may

“constitute a ‘contract’ as economists understand the term” for “purposes of economic

analysis.” Neither Beaucoup Crawfish nor its expert, however, purports to connect

these generic statements about the crawfish industry to any actual contract relevant

to this case. For her part, Wiltz acknowledged at her deposition that she did not have

any agreement to buy all of a farmer’s crawfish, nor was any farmer obligated to sell

her all of its crawfish. 

Even interpreted in the plaintiffs’ favor, this evidence does not raise a justifiable

inference that Wiltz and Beaucoup Crawfish had an actual, enforceable right to buy

crawfish from any particular crawfish farmer. In any event, as discussed below, we

think the Louisiana Supreme Court would deny the plaintiffs’ claims even if they had

an enforceable right to buy crawfish.

3

Case: 10-30516 Document: 00511522606 Page: 3 Date Filed: 06/28/2011
No. 10-30516

B. Crawfish litigation

Litigation concerning the decline in the Louisiana crawfish industry has

been proceeding in the Louisiana state courts for some time. Because some of

this state litigation is relevant to our case, we provide a brief summary before

turning to the case at hand. 

In December 1999, a class of crawfish farmers sued Bayer and others in

Louisiana state court. The farmers’ class action settled in 2004.

In 2000, a group of crawfish buyers and processors, including Beaucoup

Crawfish, sued Bayer and others under the LPLA in Louisiana state court (the

Phillips litigation). The claims asserted in the Phillips litigation are essentially 4

identical to the claims asserted in this case. After trial in July 2007, a jury

found Bayer liable to three test plaintiffs. Bayer appealed, asserting that its

duty not to harm the farmers’ crawfish did not extend to crawfish buyers and

processors. A five-judge panel of a Louisiana court of appeal reversed the

judgments. The five-judge panel reasoned that the plaintiffs “failed to prove a

proprietary interest in the crawfish crop destroyed by the use of ICON.” Phillips

v. G & H Seed Co., 10 So. 3d 339, 344 (La. Ct. App.), writ denied, 21 So. 3d 284

(La. 2009), reh’g not considered, 24 So. 3d 871 (La. 2010). 

Back at the trial court, Bayer moved for summary judgment against all

remaining plaintiffs. Relying on the five-judge panel’s decision, the trial court

granted the motions on the ground that the plaintiffs failed to show a

proprietary interest in the farmers’ crawfish. This time the plaintiffs appealed,

asserting that the trial court erred in applying a bright-line “proprietary

The Phillips litigation began as a putative class action but evolved into a large 4

joinder action. 

4

Case: 10-30516 Document: 00511522606 Page: 4 Date Filed: 06/28/2011
No. 10-30516

interest” requirement. According to the plaintiffs, the trial court instead should

have used a multi-factor “duty-risk” analysis to determine the scope of Bayer’s

duty of care. A three-judge panel of the Louisiana court of appeal reversed the

trial court’s grant of summary judgment. Phillips v. G & H Seed Co., __So. 3d__,

2011 WL 1773269 (La. Ct. App. May 11, 2011). The three-judge panel “cho[s]e 5

not to apply the law of the case doctrine” and “decline[d] to follow” the decision

of the five-judge panel. Id. at *4-5. The three-judge panel reasoned that the

five-judge panel’s decision “was contrary to the law” because it imposed “a

bright-line litmus test mandating proprietary interest in damaged property as

a prerequisite to recovery.” Id. at *5, 7. The three-judge panel thus remanded

the case to the trial court with instructions to apply “a multi-factor, policydriven, duty-risk analysis” to determine “the scope and extent” of Bayer’s duties

under the LPLA. Id. at *5. The three-judge panel did not, however, “determine

or even speculate on the result of the required duty-risk analysis.” Id. at *8.

Meanwhile, in December 2008, Wiltz filed this putative class action in

Louisiana state court after she was denied leave to intervene in the Phillips

litigation. Phillips v. G & H Seed Co., 32 So. 3d 1134, 1138 (La. Ct. App.), writ

denied, 38 So. 3d 325 (La. 2010). As mentioned, the LPLA claims asserted in

this case are essentially the same as the claims asserted in the Phillips

litigation. Bayer removed this case to federal court pursuant to 28 U.S.C.

§§ 1332 and 1453. After removal, plaintiff Beaucoup Crawfish intervened as a

second putative class representative. Bayer then filed a motion to abstain

pending resolution of the Phillips litigation as well as motions for summary

 Bayer’s application for rehearing en banc or for panel rehearing is currently 5

pending before the Louisiana court of appeal.

5

Case: 10-30516 Document: 00511522606 Page: 5 Date Filed: 06/28/2011
No. 10-30516

judgment against both Wiltz and Beaucoup Crawfish. The district court denied

Bayer’s motion to abstain but granted both motions for summary judgment

because the plaintiffs’ economic loss was unaccompanied by damage to their own

person or property. The plaintiffs appealed. For the following reasons, we 6

affirm.

II. STANDARDS

We review summary judgment de novo, using the same standards as the

district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.

2010). Summary judgment is proper when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). We view the evidence and all justifiable inferences in the light

most favorable of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

In a diversity case such as this one, we apply state substantive law. Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). There is no dispute that Louisiana

law applies to this case. When faced with unsettled questions of Louisiana law,

we adhere to Louisiana’s Civilian decision-making process by first examining

primary sources of law, namely, Louisiana’s Constitution, codes, and statutes. 

Moore v. State Farm Fire & Cas. Co., 556 F.3d 270 (5th Cir. 2009). This is

The plaintiffs recently filed a motion to stay this appeal pending resolution of 6

the Phillips litigation. We note that the plaintiffs filed their motion the same day the

three-judge panel issued its decision in the Phillips litigation. We also note that the

plaintiffs previously objected to a similar motion to stay filed by Bayer in the district

court. It would thus appear that the plaintiffs’ motion to stay is simply an attempt to

preserve a victory in what they now perceive to be the more favorable forum. In any

event, the plaintiffs have not established any other basis to stay this appeal. 

Accordingly, the plaintiffs’ motion to stay is denied.

6

Case: 10-30516 Document: 00511522606 Page: 6 Date Filed: 06/28/2011
No. 10-30516

because the primary basis of Louisiana’s Civil Law is legislation and not the

prior decisions of its courts. In Re: Katrina Canal Breaches Litig., 495 F.3d 191,

206 (5th Cir. 2007). In the absence of a definitive resolution in the State’s

primary sources, however, we look next to the final decisions of the Louisiana

Supreme Court. Moore, 556 F.3d at 269. Only in the absence of such a final

decision must we make an “Erie guess” as to how that court would resolve the

issue if presented with the same case. Id. Although we do not disregard the

decisions of Louisiana's intermediate courts unless we are convinced the

Louisiana Supreme Court would decide otherwise, we are not strictly bound by

them. In Re: Katrina, 495 F.3d at 206.

III. DISCUSSION

A. The economic-loss rule

In most jurisdictions, the “economic-loss rule” bars recovery in tort when

a party suffers economic loss unaccompanied by harm to his own person or

property. See, e.g., Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875,

879 (1997) (noting tort law in area of commercial cases involving defective

products “ordinarily (but with exceptions) does not permit recovery for purely

economic losses, say, lost profits”); Louisiana ex rel. Guste v. M/V TESTBANK,

752 F.2d 1019, 1027 (5th Cir. 1985) (en banc) (“Courts applying the tort law of

Texas, Georgia, Florida, Alabama, Mississippi and Louisiana have consistently

denied recovery for economic losses negligently inflicted where there was no

physical damage to a proprietary interest.”); Great Sw. Fire Ins. Co. v. CNA Ins.

Cos., 557 So. 2d 966, 970 (La. 1990) (recognizing the “general inhibition in

negligence law against compensation for purely economic loss not the result of

either bodily harm to the claimant or physical injury to property in which

7

Case: 10-30516 Document: 00511522606 Page: 7 Date Filed: 06/28/2011
No. 10-30516

claimant has a proprietary interest”); RESTATEMENT (THIRD) OF TORTS: PRODS.

LIAB. § 21 cmt. d (1998) (“A second category of economic loss excluded from the

coverage of this Restatement includes losses suffered by a plaintiff but not as a

direct result of harm to the plaintiff’s person or property.”). The economic-loss

rule has been characterized as a pragmatic limitation on both proximate

causation and the scope of a defendant’s duty of care. Compare TESTBANK, 752

F.2d at 1023 (noting the economic loss rule is “a pragmatic limitation imposed

by the Court upon the tort doctrine of foreseeability), with Rardin v. T & D

Mach. Handling, Inc., 890 F.2d 24, 26 (7th Cir. 1989) (“The issue is not

causation; it is duty.”), with Roberts v. Benoit, 605 So. 2d 1032 (La. 1991), on

reh’g, 605 So. 2d at 1052 (“Regardless if stated in terms of proximate cause, legal

cause, or duty, the scope of the duty inquiry is ultimately a question of

policy . . . .”).

The economic-loss rule has a distinguished lineage traceable at least to

Justice Holmes’s opinion in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303,

308 (1927). In Robins, the employees of a dry dock negligently damaged a vessel

subject to a charter agreement. Id. at 309. The charterer lost use of the vessel

for a period of time and sued the dry dock in tort for economic damages. Id. The

Supreme Court rejected the charterer’s claim. TheSupreme Court reasoned that

the damage to the vessel “was no wrong to the [charterer] but only to those to

whom [the vessel] belonged.” Id. The Supreme Court concluded that the harm

to the charterer “arose only through their contract with the owners,” and that,

as a general rule, “a tort to the person or property of one man does not make the

tort-feasor liable to another merely because the injured person was under a

contract with that other unknown to the doer of the wrong.” Id. We recently

8

Case: 10-30516 Document: 00511522606 Page: 8 Date Filed: 06/28/2011
No. 10-30516

noted that Robins may be read as both denying recovery for economic loss

resulting from physical damage to the property of another, and also denying

recovery for negligent interference with contractual rights. See Catalyst Old

River Hydroelectric Ltd. P’ship v. Ingram Barge Co., 639 F.3d 207, 210 (5th Cir.

2011). Although Robins strictly interpreted federal maritime law, its reasoning

has influenced state tort law as well. See, e.g., PPG Indus., Inc. v. Bean

Dredging, 447 So. 2d 1058, 1060 (La. 1984) (discussing Robins in context of

Louisiana state tort law). 

Courts and commentators have identified several justifications for the

economic-loss rule. These justifications tend to echo four themes. First, without

some pragmatic limitation on the tort doctrine of foreseeability, a defendant

could be held liable for “wave upon wave of successive economic consequences.” 

TESTBANK, 752 F.2d at 1028; see also E. River S.S. Corp. v. Transamerica

Delaval, Inc., 476 U.S. 858, 874 (1986) (noting “foreseeability is an inadequate

brake” on products-liability law). As the Louisiana Supreme Court has 7

recognized, “[b]ecause the list of possible victims and the extent of economic

damages might be expanded indefinitely, the court necessarily makes a policy

decision on the limitation of recovery of damages.” PPG, 447 So. 2d at 1061-62. 

It is generally agreed that a line must be drawn somewhere, and the economicloss rule has the virtue of being predictable and generally applicable. 

TESTBANK, 752 F.2d at 1028. Second, although the economic-loss rule may

produce seemingly unfair outcomes in certain cases, a case-by-case approach is

See also Robins, 275 U.S. at 309 (“The law does not spread its protection so 7

far.”); Rardin, 890 F.2d at 28 (noting the economic-loss rule was designed to limit

“for-want-of-a-nail-the-kingdom-was-lost liability”).

9

Case: 10-30516 Document: 00511522606 Page: 9 Date Filed: 06/28/2011
No. 10-30516

“no less arbitrary.” Id. This is because a case-by-case approach does not resolve 8

the line-drawing problem but merely postpones it: ultimately, some plaintiffs

will be allowed to recover and others will be found too remote. Id. A case-bycase approach has the additional drawback of producing unpredictable results

that are “less judicial and more the product of a managerial, legislative or

negotiated function.” Id. Third, the economic-loss rule helps preserve the

distinct functions of tort and contract law by allowing parties to allocate

economic risks by contract. E. River, 476 U.S. at 870-71. For example, when 9

a defective product malfunctions and causes a purchaser to lose profits but

nothing more, that loss “is essentially the failure of the purchaser to receive the

benefit of its bargain,” and the allocation of that loss is the “core concern” of

private contracts and contract law. Id. at 870. Finally, the economic-loss rule

promotes first-party loss insurance over third-party liability insurance. 

TESTBANK, 752 F.2d at 1029. A regime of first-party loss insurance efficiently

encourages the party with the best information (that is, the party with

knowledge of its own risk of loss) to decide whether to assume, allocate, avoid,

or insure against its risk of loss. Id.; see also Mt. Lebanon Personal Care Home,

Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002); Rardin, 890

See also E. River, 476 U.S. at 875 (noting economic-loss rule avoids reliance 8

“on a far murkier line”). 

See also Chevron USA, Inc. v. Aker Maritime, Inc., 604 F.3d 888, 900 (5th Cir. 9

2010) (“The purpose of the doctrine is to maintain the traditional distinction between

contract and tort.”); Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc.,

276 F.3d 845, 848 (6th Cir. 2002) (“Where tort law, primarily out of a concern for

safety, fixes the responsibility for a defective product directly on the parties responsible

for placing the product into the stream of commerce, contract law gives the parties to

a venture the freedom to allocate risk as they see fit.”). 

10

Case: 10-30516 Document: 00511522606 Page: 10 Date Filed: 06/28/2011
No. 10-30516

F.2d at 26. First-party loss insurance also is the more feasible way to mitigate 10

disasters “inflicting large and reverberating injuries through the economy.” 

TESTBANK, 752 F.2d at 1029.

B. Louisiana’s version of the economic-loss rule

Louisiana is free, of course, to accept, reject, or modify the economic-loss

rule in its own tort and products-liability law. As it happens, the Louisiana

Supreme Court adopted a slightly modified version of the economic-loss rule in

PPG Industries, Inc. v. Bean Dredging. 

In PPG, a dredging contractor negligently damaged a pipeline owned by

a natural-gas company. 447 So. 2d at 1060. As a result, the gas company was

unable to fulfill a natural-gas contract with a manufacturer, and the

manufacturer was required to obtain fuel from another source at an increased

cost. Id. The manufacturer sued the contractor in tort for its economic loss. Id. 

The Louisiana Supreme Court rejected the claim, holding that the

manufacturer’s purely economic loss did “not fall within the scope of the

protection intended by the law’s imposition of a duty on dredging contractors not

to damage pipelines negligently.” Id. The court’s reasoning was succinct, and

similar to the primary justification for the economic-loss rule: for “policy

reasons,” the law does not “require that a party who negligently causes injury

to property must be held legally responsible to all persons for all damages

flowing in a ‘but for’ sequence from the negligent conduct.” Id. at 1059, 1061. 

This is because the “imposition of responsibility on the tortfeasor for such

Cf. E. River, 476 U.S. at 871 (noting economic losses “can be insured”);

10

Richard A. Posner, Common-Law Economic Torts: An Economic and Legal Analysis,

48 ARIZ. L. REV. 735, 737-38 (2006). 

11

Case: 10-30516 Document: 00511522606 Page: 11 Date Filed: 06/28/2011
No. 10-30516

damages could create liability in an indeterminate amount for an indeterminate

time to an indeterminate class.” Id. at 1061 (quotation marks omitted). In other

words, “[b]ecause the list of possible victims and the extent of economic damages

might be expanded indefinitely, the court necessarily makes a policy decision on

the limitation of recovery of damages.” Id. at 1061-62. The court concluded it

was “highly unlikely” that the “duty not to negligently injure property

encompass the risk that a third party who has contracted with the owner of the

injured property will thereby suffer an economic loss.” Id. at 1061. 

Although the reasoning and result in PPG flow from the standard

economic-loss rule, certain language in the decision left the door open for caseby-case adjustments. PPG emphasized that policy considerations determine the

“reach” of the rule, and instructed courts to consider whether there is an “ease

of association” between “the rule of conduct, the risk of injury, and the loss

sought to be recovered.” Id.; see also Roberts, 605 So. 2d at 1054 (“The critical

test in Louisiana, however, is phrased in terms of ‘the ease of association’ which

melds policy and foreseeability into one inquiry: Is the harm which befell the

plaintiff easily associated with the type of conduct engaged in by the

defendant?”). PPG also instructed courts to “consider the particular case in the

terms of the moral, social and economic values involved, as well as with a view

toward the ideal of justice.” Id. 

Before applying PPG to the case at hand, we must address one final point. 

The plaintiffs emphasize that PPG conducted a “duty-risk” analysis. This is

true, because PPG involved a claim for negligence under Louisiana Civil Code

article 2315, and the “Louisiana courts have adopted a duty-risk analysis in

12

Case: 10-30516 Document: 00511522606 Page: 12 Date Filed: 06/28/2011
No. 10-30516

determining whether to impose liability under [article] 2315.” Pinsonneault v. 11

Merch. & Farmers Bank & Trust Co., 816 So. 2d 270, 275 (La. 2002). To prevail

under a duty-risk analysis, a plaintiff must prove five separate elements:

1. the defendant had a duty to conform his conduct to a specific

standard (the duty element);

2. the defendant failed to conform his conduct to the appropriate

standard (the breach of duty element);

3. the defendant’s substandard conduct was a cause-in-fact of

the plaintiff’s injuries (the cause-in-fact element);

4. the defendant’s substandard conduct was a legal cause of the

plaintiff’s injuries (the scope of liability or scope of protection

element); and

5. actual damages (the damage element).

Roberts, 605 So. 2d at 1051. As discussed above, PPG was primarily concerned

with the first, second, and fourth of these elements.

Although our case involves claims under the LPLA, the parties agree that

PPG still applies. Indeed, the plaintiffs’ main argument on appeal is that PPG’s

duty-risk analysis provides “the appropriate analysis for determining liability

and causation.” For its part, the Louisiana court of appeal has twice applied

PPG to the same LPLA claims asserted in this case. See Phillips, 10 So. 3d at

344; Phillips, 2011 WL 1773269, at *5. Moreover, other Louisiana courts of

appeal have conducted duty-risk analyses in LPLA actions. See, e.g., Marks v.

OHMEDA, Inc., 871 So. 2d 1148, 1153 (La. Ct. App. 2004) (analyzing “legal

fault” and “duty” in LPLA action); Goodrich v. Caterpillar, Inc., 717 So. 2d 1235,

Article 2315 states: “[e]very act whatever of man that causes damage to 11

another obliges him by whose fault it happened to repair it.” La. Civ. Code. art. 2315.

13

Case: 10-30516 Document: 00511522606 Page: 13 Date Filed: 06/28/2011
No. 10-30516

1237 (La. Ct. App. 1998) (same). In light of both the parties’ failure to contest 12

the issue as well as supporting decisions from the Louisiana courts of appeal, we

are not convinced that the Louisiana Supreme Court would decide that PPGdoes

not apply to claims under the LPLA. Accordingly, we will apply PPG to the

plaintiffs’ claims.

To be sure, our best Erie guess is that the Louisiana Supreme Court would

apply PPG to the plaintiffs’ claims. The LPLA imposes liability on

manufacturers only for damages “proximately caused” by an unreasonably

dangerous product. LA. REV. STAT. ANN. § 9:2800.54(A); Stahl v. Novartis

Pharm. Corp., 283 F.3d 254, 261, 266 (5th Cir. 2002); Jack v. Alberto-Culver

USA, Inc., 949 So. 2d 1256, 1258 (La. 2007). As the Louisiana Supreme Court

noted in Roberts v. Benoit, PPG may be thought of as a limitation on “legal or

proximate cause.” 605 So. 2d at 1052, 1056; see also id. at 1052 (“[P]roximate

cause, or one of its functional equivalents, such as scope of the duty in duty-risk

analysis, is necessary to truncate liability at some point.”). PPG thus fits

comfortably within the plain language of the LPLA. 

Perhaps the more important point is that PPG is “a policy decision in

purest form” that does not turn on fine distinctions between “proximate cause,

legal cause, or duty.” Id. at 1052. Although PPG specifically concerned a claim

for negligence, its policy considerations apply with equal force in the productsliability context. See E. River, 476 U.S. at 871-74. Thus, just as PPG imposed

Cf. Dede v. Tip’s Dev., L.L.C., 16 So. 3d 526, 529-30 (La. Ct. App. 2009) (noting that 12

a “duty/risk analysis must be applied” in cases involving “injury as the result of the condition

of a thing, whether under a strict liability theory or negligence liability theory”).

14

Case: 10-30516 Document: 00511522606 Page: 14 Date Filed: 06/28/2011
No. 10-30516

a pragmatic limitation on the sweeping language of article 2315 of the Louisiana

Civil Code, so too, we predict, it imposes a pragmatic limitation on the LPLA. 13

Our prediction is not a stretch. Liability under the LPLA is expressly tied

to liability under article 2315. The LPLA provides that “[c]onduct or

circumstances that result in liability under this Chapter are ‘fault’ within the

meaning of Civil Code Article 2315.” LA. REV. STAT. ANN. § 9:2800.52. Thus, as

one leading treatise notes, an LPLA claim against a manufacturer “continues to

be in tort,” and “all the peripheral characteristics of tort actions not specifically

governed by the [LPLA] continue to be applicable, such as . . . proximate

cause . . . .” WILLIAM E. CRAWFORD, 12 LOUISIANA CIVIL LAW TREATISE: TORT

LAW § 16.23 (2d ed. 2011); see also Quick v. Murphy Oil Co., 643 So. 2d 1291,

1295 (La. Ct. App. 1994) (recognizing same). As already discussed, one of the

peripheral characteristics of tort actions in Louisiana is that they are governed

by PPG. We predict LPLA actions too are governed by PPG. 

C. Application

Reasoning by analogy, PPG strongly suggests that we should uphold

summary judgment in this case. In PPG, a defendant negligently damaged

property owned by a third party. As a result, the third party was unable to

supply a product to the plaintiff, and the plaintiff suffered purely economic loss. 

The Louisiana Supreme Court held, as a matter of policy, that the plaintiff could

not recover its purely economic loss in tort. Similarly, in this case, Bayer

damaged crawfish owned by crawfish farmers. As a result, the farmers were

unable to supply crawfish to the plaintiffs, and the plaintiffs suffered purely

See PPG, 447 So. 2d at 1059 (finding that although “this case falls literally

13

within the expansive terms of La. C.C. Art. 2315 . . . the customer cannot recover his

indirect economic loss”). 

15

Case: 10-30516 Document: 00511522606 Page: 15 Date Filed: 06/28/2011
No. 10-30516

economic loss. The essential facts in this case thus mirror the facts in PPG. 

Unless there is some convincing reason to distinguish PPG, it would seem that

the policy considerations at issue in that case would counsel the same result in

this case.

The plaintiffs and others have pointed to three basic differences between

this case and PPG, but we find that none justifies a different outcome. One

difference is that the plaintiffs in this case did not have enforceable contracts to

buy crawfish from the crawfish farmers. Thus, according to the plaintiffs, they

“have not otherwise protected themselves from risk – indeed they have no breach

of contract claims against the Farmers.” In other words, the plaintiffs assert

that they should be permitted to recover against Bayer in tort because they

cannot recover against the crawfish farmers in contract. That the plaintiffs

chose to run their business without enforceable supply contracts is not a

satisfactory basis for distinguishing PPG. The plaintiffs are sophisticated

participants in a multimillion-dollar commercial industry. Just as the

manufacturer in PPG could have allocated the risk of a supply disruption in its

contract with the natural-gas company, the plaintiffs here could have allocated

the risk of a supply disruption by negotiating enforceable supply contracts in the

first place. Indeed, by not negotiating such contracts, the plaintiffs would

appear to have made a choice to bear the risk of a supply disruption, presumably

because they did not think that risk was worth the cost of reallocation or

insurance. The plaintiffs’ own business calculation is not a sound reason to

impose indefinite liability on Bayer. 

If anything, the plaintiffs’ failure to negotiate enforceable contracts with

the crawfish farmers diminishes the “ease of association” between the damaged

crawfish and the plaintiffs’ economic loss. In PPG, there was no ease of

16

Case: 10-30516 Document: 00511522606 Page: 16 Date Filed: 06/28/2011
No. 10-30516

association between a damaged natural-gas pipeline and a manufacturer’s lost

profits even though the manufacturer had a contractual right to obtain gas from

the pipeline. In other words, PPG held that not even a binding, contractual right

to buy a third party’s property was sufficient to create an ease of association

between negligent damage to that property and the plaintiff’s resulting economic

loss. See Roberts, 605 So. 2d at 1056 (characterizing PPG as holding that there

is no “ease of association” between the “duty not to damage someone else’s

property” and “the risk that the other party’s business arrangements would be

affected.”). Here, the association between the damaged crawfish and the

plaintiffs’ economic loss is even more attenuated than in PPG. Even assuming

the plaintiffs had some inchoate “proprietary interest” in the farmers’ crawfish

(as the plaintiffs contend), the plaintiffs still did not have an actual, enforceable

right to buy those crawfish. The plaintiffs may have had reasonable

expectations that they would be able to buy the crawfish, but the plaintiffs

remained dependent on the farmers’ continued goodwill because the farmers

could have sold their crawfish to other buyers at any time. Under such 14

circumstances, we find that the “ease of association” between Bayer’s allegedly

negligent act and the plaintiffs’ purely economic loss is too attenuated to support

a cause of action in tort. As we have recognized before, “[i]f a plaintiff connected

The plaintiffs’ expert asserts that if “crawfish farmers sell their output to 14

another buyer-processor, causing disruption to the buyer-processor’s supply of raw

crawfish, the buyer-processor may retaliate by refusing to purchase crawfish from that

farmer in the future.” He also asserts that if a buyer-processor fails to honor his

purchase “commitment,” “the crawfisherman would view that as being ‘unloyal.’”

Absent from the expert’s characterization of these informal enforcement mechanisms

(and the record) is any indication that the farmers or processors would be entitled to

legal relief.

17

Case: 10-30516 Document: 00511522606 Page: 17 Date Filed: 06/28/2011
No. 10-30516

to the damaged chattels by contract cannot recover, others more remotely

situated are foreclosed a fortiori.” TESTBANK, 752 F.2d at 1024.

Even if the plaintiffs had some legal right to buy the farmers’ crawfish, we

believe the Louisiana Supreme Court still would reject their claims. As

mentioned above, the existence of a contract was insufficient to justify recovery

of purely economic loss in PPG. This is consistent with the Louisiana courts’

refusal to recognize a cause of action for negligent interference with contractual

relations. See PPG, 447 So. 2d at 1060 n.1 (observing that “[r]ecovery of

economic losses for negligent interference with contractual relations is almost

uniformly denied in other jurisdictions”); Carter v. Smith, 607 So. 2d 6, 7 (La. Ct.

App. 1992) (“Louisiana does not recognize a cause of action for negligent

interference with contract rights.”). Notably, in Great Southwest Fire 15

Insurance Co. v. CNA Insurance Cos., the Louisiana Supreme Court refused to

recognize a tort duty that “would, in effect, be to recognize . . . something very

similar to an action for negligent interference with contract.” 557 So. 2d at 969. 

The court’s reasoning in Great Southwest was essentially the same as its

reasoning in PPG: the court sought to avoid the threat of “a chain of recoveries,”

in which interference with one contract “also prejudices the performance of

another contract and so on more or less indefinitely.” Id. at 970. Indeed, Great

See also Hennig v. Alltel Commc’ns, Inc., 903 So. 2d 1137, 1141 (La. Ct. App.

15

2005) (“There exists no cause of action in Louisiana for recovery of physical or economic

damages arising from negligent interference with contractual relations of a third

party.”); Colbert v. B.F. Carvin Constr. Co., 600 So. 2d 719, 722 (La. Ct. App. 1992)

(“We note that there is as yet no remedy in Louisiana for negligent interference with

contract.”); cf. RESTATEMENT (SECOND) OF TORTS § 766C cmt. a (“[T]here is as yet no

general recognition of liability for negligent interference with an existing contract or

with a prospective contractual relation . . . .”).

18

Case: 10-30516 Document: 00511522606 Page: 18 Date Filed: 06/28/2011
No. 10-30516

Southwest analogized to the economic-loss rule and observed that “while physical

harm generally has limited effects, a chain reaction occurs when economic harm

is done and may produce an unending sequence of financial effects best dealt

with by insurance, contract, or other business planning devices.” Id. Great

Southwest further recognized that courts generally “have refused to cross the

bright line that has traditionally marked negligence claims for economic harm

as off limits.” Id. The court stated that it would “proceed with caution” before

expanding its “narrowly drawn action” for intentional interference with

contractual rights. Id. at 969. 

Here, the plaintiffs seek to impose a duty on Bayer that would, in effect,

recognize a claim for negligent interference with contractual relations: the

plaintiffs expected to buy crawfish from the crawfish farmers, and the plaintiffs

allege that Bayer negligently interfered with the farmers’ ability to satisfy that

expectation. Moreover, the same policy considerations addressed in Great

Southwest (and PPG) beset this case. The plaintiffs are commercial parties who

could have protected themselves though contracts or insurance, and there are

serious line-drawing problems concerning whether other parties intimately

associated with the crawfish industry (e.g., crawfish retailers, restaurants,

employees) would be allowed to recover as well. We see no indication that the

Louisiana Supreme Court would be willing to extend tort liability to the type of

iterative economic loss the plaintiffs seek to recover in this case.

A second potential difference between PPG and this case is that the

plaintiffs here allege a “symbiotic” relationship with the crawfish farmers. 

According to the plaintiffs, “the farmers and the Buyer/Processors are really one

unified group and not two separate groups,” and harm to the latter is “inevitable

if a defective product were to sterilize or kill the crawfish crops.” The problem

19

Case: 10-30516 Document: 00511522606 Page: 19 Date Filed: 06/28/2011
No. 10-30516

with this argument is that it is the same one addressed by the Louisiana

Supreme Court in Roberts: “[a]lthough ease of association encompasses the idea

of foreseeability, it is not based on foreseeability alone.” 605 So. 2d at 1045; cf.

E. River, 476 U.S. at 874 (finding that foreseeability alone “is an inadequate

brake” on products-liability law). The ease of association test “melds policy and

foreseeability into one inquiry.” Roberts, 605 So. 2d at 1054. Thus, although it

was certainly foreseeable that negligently damaging a natural-gas pipeline

would cause manufacturers relying on that pipeline to seek fuel elsewhere at an

increased cost, PPG nonetheless held, as a matter of policy, that the

manufacturer could not sue in tort for its purely economic loss. Similarly,

although it may have been foreseeable (even “particularly foreseeable,” as the

plaintiffs contend) that damaging the farmers’ crawfish would cause crawfish

processors to lose business, that is not a sufficient reason to permit recovery of

purely economic loss in tort.16

A final factual difference between PPG and this case is that the plaintiffs

here may not have had an alternative source of crawfish. The argument seems

to be that Bayer’s alleged negligence impacted most if not all crawfish farmers

in the industry, and thus the plaintiffs had no way to mitigate their losses. Of

course, as already discussed, one way for the plaintiffs to have mitigated their

losses would have been to buy insurance or negotiate with the crawfish farmers

over the risk of a supply disruption. In any event, we do not think the extent of

We note that there is no evidence that Bayer knew anything about Wiltz and 16

Beaucoup Crawfish in particular. Thus, although Bayer may have foreseen harm to

the crawfish industry generally, there is no indication that it should have foreseen

harm to the plaintiffs specifically.

20

Case: 10-30516 Document: 00511522606 Page: 20 Date Filed: 06/28/2011
No. 10-30516

a plaintiff’s (or an entire industry’s) loss determines the plaintiff’s right to relief

in tort. PPG did not even address the extent of the plaintiff’s loss, and instead

focused on the problem of allowing tort liability “in an indeterminate amount for

an indeterminate time to an indeterminate class.” 447 So. 2d at 1061. This

problem would be exacerbated, not solved, by a rule permitting recovery in tort

for purely economic loss whenever the harm to an industry is most widespread.

We note that our decision is consistent with other decisions by the

Louisiana courts of appeal in similar cases. First, in the Phillips litigation, a

five-judge panel of the Louisiana court of appeal has already held that PPG bars

the exact same claims asserted here. Phillips, 10 So. 3d at 342-44. Although a

three-judge panel of the same court recently “declined to follow” the five-judge

panel, the three-judge panel notably did not hold that the plaintiffs were entitled

to relief. Phillips, 2011 WL 1773269, at *8 (declining to “speculate on the result

of the required duty-risk analysis”). Because we have conducted a duty-risk

analysis and applied PPG to this case, our decision is consistent with both the

three-judge panel’s decision and the five-judge panel’s decision. Second, in

Dempster v. Louis Eymard Towing Co., a Louisiana court of appeal held that

fishermen could not recover purely economic loss from a barge that ruined a

fishing site that the plaintiffs did not own. 503 So. 2d 99, 101 (La. Ct. App.), writ

denied, 505 So. 2d 1136 (La. 1987). Notably, the plaintiffs could not recover even

though they had been fishing in the spot “for years” and had invested capital in

their fishing enterprise. Id. at 100. Similarly, in Louisiana Crawfish Producers

Association-West v. Amerada Hess Corp., a Louisiana court of appeal concluded

that crawfishermen could not recover purely economic loss against oil companies

that ruined a crawfishing site that the plaintiffs did not own. 935 So. 2d 380,

21

Case: 10-30516 Document: 00511522606 Page: 21 Date Filed: 06/28/2011
No. 10-30516

383-84 (La. Ct. App.), writ denied, 943 So. 2d 1094 (La. 2006). Each of these

cases is analogous, if not identical, to the case at hand. Their consistent results,

as well as the Louisiana Supreme Court’s consistent refusal to review those

results, reinforce our prediction that the Louisiana Supreme Court would not

recognize the relief the plaintiffs seek in this case. 

To conclude, after considering the Louisiana Supreme Court’s decision in

PPG, as well as the legally relevant moral, social, and economic values involved,

we find that there is no “ease of association” between the damage to the farmers’

crawfish and the plaintiffs’ purely economic loss. Although there may be some

cases in which the Louisiana Supreme Court would authorize recovery in tort for

purely economic loss, we do not think this commercial dispute is one of those

cases. Accordingly, we affirm the district court’s grant of summary judgment.

D. Certification

As a final matter, the plaintiffs have requested that we ask the Louisiana

Supreme Court to define “the level or degree of ‘proprietary’ interest sufficient

to state a cause of action for economic damages.” 

We may certify a determinative question of Louisiana law to the Louisiana

Supreme Court if the question is not resolved by the “clear controlling precedent”

of the Louisiana Supreme Court. LA. REV. STAT. ANN. § 13:72.1(A). We are

“chary about certifying questions of law absent a compelling reason to do so.” 

Jefferson v. Lead Indus. Ass’n., Inc., 106 F.3d 1245, 1247 (5th Cir. 1997). 

Certification may be appropriate when there are “genuinely unsettled matters

of state law.” Id. On the other hand, the mere “absence of a definitive answer

from the state supreme court on a particular question is not sufficient to warrant

certification.” Id. 

22

Case: 10-30516 Document: 00511522606 Page: 22 Date Filed: 06/28/2011
No. 10-30516

We find that there is no compelling reason to certify the plaintiffs’

proposed question to the Louisiana Supreme Court. A five-judge panel of the

Louisiana court of appeal already has rejected the plaintiffs’ arguments. 

Phillips, 10 So. 3d at 344. The Louisiana Supreme Court already has declined

(twice) to consider those arguments. Phillips, 21 So. 3d 284 (La. 2009), reh’g not

considered, 24 So. 3d 871 (La. 2010). Id. And in any event, as discussed above,

we think this case is resolved by the Louisiana Supreme Court’s clear and

controlling decision in PPG. 

IV. CONCLUSION

For the reasons stated, we AFFIRM summary judgment. Bayer’s motion

to strike is DENIED. The plaintiffs’ motion to certify and motion to stay are

DENIED.

23

Case: 10-30516 Document: 00511522606 Page: 23 Date Filed: 06/28/2011