1 La.Rev.Stat. Ann. 9:2800.52 et seq. (West 1991).

2 Defendants-Appellees NL Industries, Inc., Atlantic Richfield

Company, Sherwin Williams , SCM Corporation, Glidden Company, and

Fuller-O'Brien Corp.

3 Defendant-Appellee Lead Industries Association, Inc.

1 United States Court of Appeals,

Fifth Circuit.

No. 96-30600.

Letetia JEFFERSON, Individually and as Duly Qualified Legal

Tutrix for Schanta Jefferson, Plaintiff-Appellant,

v.

LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.;

Atlantic Richfiel d Company; Sherwin Williams; SCM Corporation;

Glidden Company; Fuller-O'Brien Corp., Defendants-Appellees.

March 12, 1997.

Appeal from the United States District Cour t for the Eastern

District of Louisiana.

Before JOLLY, JONES and WIENER, Circuit Judges.

PER CURIAM:

This diversity jurisdiction case was filed in federal district

court by Plaintiff-Appellant Letetia Jefferson, individually and as

duly qualified legal tutrix of Schanta Jefferson, and as the

purported representative of the class of all Louisiana parents of

children who suffered from lead poisoning resulting from exposure

to lead paint pigment before they attained the age of six years.

The suit implicates the Loui siana Products Liability Act (LPLA), 1

under which Jefferson sought recovery against a number of

manufacturers of lead paint pigment (the Manufacturers) 2 and their

trade association (the Association). 3 She also sought recovery on2

alternative theories based on non-LPLA grou nds. On appeal,

Jefferson seeks reversal of the district court's dismissal of her

complaint agai nst the Manufacturers under Federal Rule of Civil

Procedure 12(b)(6), primarily for fai lure to state a claim under

the LPLA, due to her inability to identify which of the

Manufacturers actually made the particular lead paint pigment that

caused the alleged inju ries, and secondarily due to the

unavailability of a cause of action grounded in civil conspiracy.

She also appeals the dismissal of her claim against the

Association, resulting from the fact that it is not a manufacturer

and thus not amenable to liabilit y under the LPLA. Additionally,

Jefferson now urges on appeal that we should certify two key

questions of law to the Louisiana Supreme Court. For the reasons

set forth below, we decline Jefferson's invitation to certify and

we affirm the order of the district court dismissing her action

pursuant to Rule 12(b).

I

CERTIFICATION

Jefferson has filed a motion with this court asking that,

pursuant to Louisiana Supreme Court Rule XII § 1, we certify

questions to that court, regarding the LPLA and Lo uisiana Civil

Code Article 2324. Specifically, Jefferson's motion asks us to

certify the following two questions:

1. If a small group of defendants-manufacturers act in concert to

produce a completely fungible product which is defect i ve within the meaning of the Louisiana Products Liability Act,

La. R.S. 9:2800.52 et seq., and if those defendants are also

guilty of a breach of express warranty under the LPLA, can

those defendants be held liable for damage caused by that4 The market share theory would abrogate the requirement that

a products liability claimant identify the manufacturer of the

damage-causing product and replace it by imposing pro rata

liability in the ratio of the market share of each manufacturer of

a fungible product that is so generic that the individual

manufacturer cannot be identified. The key element enabling

complainants to recover under the market share theory in a fungible

products case is the shift of the burden of proof from the

plaintiff to the defendants-manufacturers, requiring them to show

that they did not manufacture the offending product. See Sindell

v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d

924, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140

(1980).

3 product, even if the plaintiff cannot identify the specific

defenda nt who manufactured that portion of the product that

injured him?

2. Can the defendant be held solidarily liable under the civil

conspiracy provisions of Louis iana Civil Code Article 2324,

or, alternatively, can the defendants be liable for their

share of the market of that wholly fungible product?

In support of certification, Jefferson's brief notes that (1)

"[t]he issue of a completely fungible product in the context of the

LPLA has never been decided by any Louisiana court," (2) the LPLA

does not "specifically address the issue of allocation of fault

among manufacturers who combine to produce a single defective

product," and (3) the question whether defendants should be liable

in solido under Article 2324 is an issue not addressed by the LPLA

or, to date, the jurisprudence of Louisiana. Jefferson contends,

in the alternative, that questions addressing the foregoing issues

should be certified because the Louisiana Supreme Court has never

ruled on the applicability of market share liability. 4

In opposing certification, the Defendants contend, inter alia,

that (1) there is no discrete question of law to certify, (2) there

is no genuine uncertainty with respect to state law, (3)5 Transcontinental Gas Pipeline Corp. v. Transportation Ins.

Co., 958 F.2d 622, 623 (5th Cir.1992); s ee also Sweari ngen v. Owens-Corning Fiberglas Corp., 968 F.2d 559, 564 (5th Cir.199 2 )

(refusing to certify question even though state supreme court had

not directly confronted issue, when "under the plain language of

[the statute], [the] decisional analysis is relatively

straightforward").

6 See DiPascal v. New York Life Ins. Co., 749 F.2d 255, 260

(5th Cir.1985).

4 certification is not available as a means of changing existing

circuit precedent, (4) Louisiana's unique position as a civil law

jurisdiction mandates that the legislature rather than the courts

adopt new theories of liability, and (5) a plaintiff's initial

election to sue in federal court should proscribe his efforts to

turn to the state supreme court for guidance after he loses his

case in federal district court.

As a general proposition we are chary about certifying

questions of law absent a compelling reas o n to do so; the

availability of certification is such an important resource to this

court that we will not risk its continued availability by going to

that well too often. Alone, the absence of a definitive answer

from the state supreme court on a particular question is not

sufficient to warrant certification. Rather, we must "decide the

case as would an intermediate appellate court of the state in

question if

... the h ighest court of the state has not spoken on

the issue or issues presented." 5 So, absent genuinely unsettled

matters of state law, we are reluctant to certify. 6

Before liability may be imposed, under the LPLA, a plaintiff

must show proximate causation

---- a link between the actions of a7 La.Rev.Stat. Ann. § 2800.54.A (West 1991).

8 See Lee v. Frozen Food Express, Inc., 592 F.2d 271, 272 (5th

Cir.1979).

9 Thompson v. Johns-Manville Sales Corp., 71 4 F.2d 581, 583

(5th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1598, 80

L.Ed.2d 129 (1984); Bateman v. Johns-Manville Sales Corp., 781

F.2d 1132, 1133 (5th Cir. 1986) ("Although the plaintiffs request

it, we decline to certify the question to the Louisiana Supreme

Court. Thompson disposes of the question whether to adopt market

share theory....").

5 manufacturer and the injury-causing product. 7 The clear guidance

provided by this requirement counsels against certifying

Jefferson's proffered question to the Louisiana Supreme Court.

Neither is certification a proper avenue to change our binding

precedent. 8 Albeit prior to the adoption of the LPLA, we have

previously considered and rejected market share liabi lity in

Louisiana products liability cases. 9 Since those precedents were

established, there has been no change in the Louisiana

jurisprudence either before or after adoption of the LPLA, and the

failure of the Louisiana legislat ure to embrace market share

liability when it confected the LPLA or by subsequent amendment

implies continued rejection of that theory by Louisiana. This, in

turn, weighs heavily against certification.

Although not alone dispositive, Jefferson's c hoice of forum

cannot be ignored. By filing suit in federal court, Jefferson

consciously exercised her option to litigate in either state or

federal court when she chose the latter. That her electing to file

in federal court might have been done in anticipation of removal by

the defendants is of no moment: "[T]he court should be slow to1 0 17A Charles A. Wright, Arthur R. Miller, Edward H. Cooper,

Federal P ractice and Procedure § 4248, at 176 (1988); s ee also,

e.g., Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C.Cir.1988);

National Bank v. Pearson, 863 F.2d 322, 327 (4th Cir.1988);

Seaboard Sur. Co. v. Garrison, Webb & Stanaland, P.A., 823 F.2d

434, 438 (11th Ci r.1987); C olonial Park Country Club v. Joan of

Arc, 746 F.2d 1425, 1429 (10th Cir.1984); Cantwell v. University

of Mass., 551 F.2d 879, 880 (1st Cir.1977).

1 1 Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274 (5th

Cir.), cert . denied, 425 U.S. 930, 96 S.Ct. 1659, 48 L.Ed.2d 172

(1976) (quoting Barnes v. Atlantic & Pacific Life Ins. Co., 514

F.2d 704, 705 n. 4 (5th Cir.1975)).

6 honor a request for certification from a party who chose to invoke

federal jurisdiction." 10

We do not lightly abdicate our mandate to decide issues of

state law when sitting in diversity, and in the same vein "[w]e use

much judgment, restraint and discretion in certifying" cases to the

highest state court. 11 When we view the certification sought by

Jefferson in light of the foregoing factors a nd policy

considerations, we are satisfied that this case is not a viable

candidate for certification. We therefore deny Jefferson's motion

to certify. If the inapplicability of either the market share or

the civil conspiracy theories of recovery in Louisiana pro ducts

liabi lity cases is to be changed to make either or both of those

theories pertinent, such change should come from the legislature as

the primary s ource of Louisiana law or from the highest court of

that state as a secondary source of law, not from a federal court

sitting in diversity.

II

RULE 12(b)(6) DISMISSAL

In our de novo review of the district court's dismissal of12 La.Rev.Stat. Ann. § 9:2800.52 (West 1991).

1 3 Jefferson may w ell be correct in insisting that, without

making either the market share or civil conspiracy theories

available, there will continue to exist a category of products

liability claims that, on the one hand, can look only to the LPLA

as the exclusive source of theories of manufacturers' product

7 Jef ferson's claim, we conclude that the district court not only

reached the correct result but did so for the correct reasons.

Moreover, we are satisfied that we could not improve on the

analysis of the district court as set forth in Judge Vance's clear,

concise, and thorough ORDER AND REASONS filed on May 31, 1996. We

therefore incorporate her opinion herein by reference and attach a

copy hereto as Appendix A.

III

CONCLUSION

Jefferson's action is gov erned by the LPLA which expressly

provides "the exclusive theories of liability for manufacturers for

damage caused by their products. A claimant may not recover from

a manufacturer for damage caused by a product on the basis of any

theory of liability that is not set forth in this chapter." 12 Thus

Louisiana law eschews all theories of recovery in this case except

those explicitly set forth in the LPLA. That in turn leaves as the

sole question on appeal whether, unde r the allegations of her

amended complaint, Jefferson could prove any set of facts that

would entitle her to relief despite the absence of any allegation

identifying the particular manufacturer of the lead paint pigment

products pu rported to have caused the injury of which she

complains. 13 For the reasons more specifically set forth by theliability in Louisiana, but which, on the other hand, can never

state a compensable cause of action under the LPLA. She refers to

those situations in which the plaintiff's injury is alleged to have

been caused by a fungible product made and marketed by two or more

manufacturers, and thereby making it im possible to identify the

particular manufacturer or manufacturers which actu ally made the

product that caused plaintiff's injury. We agree that under

existing case law and our decision today, the plaintiff's complaint

in such fungible products cases cannot possibly contain allegations

that would satisfy the proximate cause element of the

manufacturer's product liability under the LPLA, and thus can never

state a claim on which relief c ould be granted to the plaintiff.

But the existence of such a lacuna ---- whether legislatively

intentional or accidental

---- is not a valid reason for us to

alter our conclusion that, as a matter of law, neither the market

share theory nor the civil conspiracy theory is a presently

available alternative to the requirement that, to successfully

plead the proximate cause element in a Louisiana products liability

case, the plaintiff must identify the particular manufacturer of

the product that causes the injury.

8 district court, we therefore affirm its dismissal of Jeff erson's

action; and for the reasons we have set forth above, we decline

her invitation to certify her proposed questions to the Louisiana

Supreme Court.

AFFIRMED; Motion to certify DENIED.

APPENDIX A

United States District Court

Eastern District of Louisiana

Letetia JEFFERSON, et al.

v.

LEAD INDUSTRIES ASSOCIATION, INC., et al.

Civil Action

No. 95-2835

Section "R"

ORDER AND REASONS9

This matter is before the Co urt on defendants' Atlantic

Richfield Company, NL Industries, Inc., Sherwin-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 Ma nufacturer. The

Court heard argument on these motions on April 18, 1996. For the

reasons set forth below, defendants' motions are granted.

1 . BACKGROUND

Plaintiff Letetia Jefferson, individually and as the duly

qualified leg al 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 Associa tion, Inc., a

trade association t o which the pigment defendants allegedly

belonged. Plaintiff's 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 fatally10

defective because plaintiff has not identified the manufacturer of

the lead paint pigment whose product caused her injury. The second

m otion asserts that the amended complaint is deficient under the

Louisiana Products Liability Act ("LPLA"), which states the

exclusive grounds of recovery against a manufac turer of an

allegedly defective product. Because the Court agrees that the

LPLA states the exclusive theorie s on which liability may be

imposed on a manufacturer of a defective product, an d because

Louisiana law requires that plaintiff identify the manufacturer

whose pr oduct caused her injury, the Court orders the amended

complaint dismissed against the paint pigment manufacturer s for

failure to state a claim. The amended complaint is likewise

ordered dismissed against the Lead Industries Association, Inc. for

the reasons stated below.

2 . 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

inhalation 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 pig ment was applied to whatever it was that she came into

contact with containing lead paint pigment. In her opposition11

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 WW 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. I d. 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 failed 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 fitnes s for a particular purpose, fraud by misrepresentation,

market share liability and civil conspiracy. Id. at WW 23-57.

3 . 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 resolve1 4 The LPLA be came effective on September 1, 1988 and applies

to those causes of actio n that accrued on or after September 1,

1988. S ee La. Acts No. 64, § 2 (West 1988); B rown 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 born on July 1, 1992, approximately four years after the

effective date of the LPLA. The Court may take judicial notice of

the content s 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.

12 any ambiguities or doubts regarding the sufficiency of the claim in

favor of the plaintiff. F ernandez-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; L effall 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 p revent 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 plaintiff's claims. 14 At issue is whether plaintiff may assert

theories of recovery against a m anufacturer of an allegedly

defective product that are not recognized by the LPLA and whether

plaintiff must identify the manufacturer of the product causing her13

injuries in order to recover.

The Louisiana Products Liability Act "establishes the

exclusive theories of liability for manu f acturers 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); L ewis v. Intermedics Intraocular, Inc., 56 F.3d 703,

706 (5th Cir.1995). A plaintiff may not recover from a

manufactur er for damage caused by a product on the basis of any

theory of liability not set forth in the LPLA. La.Rev.Stat. Ann. §

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 "unreasona bly

dangerous" when the damage arose from a reasonably anticipated use

of the product by the "claimant or another person or entity." I d.

at § 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 dang erous because of inadequate

warning; or (4) that it was unreasonably dangerous because of

nonconfor mity to an express warranty. I d. at § 2800.54(B)(1-4).

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 dangerous14

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. § at 2800.54; s ee generally, J. Kennedy, A Primer on the

Louisiana Products Liability Act, 49 La. L.Rev. 565 (19 89)

(hereafter "Kennedy"). While the statutory ways of establishing

that a product is unrea sonably 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. S ee Automatique New Orleans, Inc.

v. U

- Select-It, Inc

., 1995 WL 491151 at *3 n. 2 (E.D.La. Aug.15,

1995) (no independe nt negligence claim); H opkins v. NCR Corp.,

1994 WL 757510 at *1-2 (M.D.La. Nov.17, 1994) (strict li ability

under article 2317 not cogniza ble 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 d iscussion of the

exclusivity of the LPLA that plaintiff's allegations of negligence,

fraud by misrepresentation, market share liability, breach o f

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. S ee 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 fraudulent15

mis representation, concealment and conspiracy); H opkins 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 complai nt does

plaintiff identify the manufactur er 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 liabili ty 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 conspirin g to promote lead paint pigment fraudulently. The

Court has already found that civil conspiracy and fra udulent

misrepresentation are not cognizable liability theories under the

Louisiana Product s 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 the16

LPLA. The Court concludes that it cannot.

i. Product Identification -

An Element of a Products Liability Claim

Plain tiff's 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

burde n 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, requ ired

identification of the manufacturer as a n element of plaintiff's

product liability claim in Aymond v. Texaco, Inc., 554 F.2d 206,

211 (5th Cir.1977). Louisiana state courts did so as well. S ee

Fricke v. Owens-Cor ning 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"); H arrison v. Gulf S. Beverages, Inc., 438 So.2d

261, 262 (La.App. 4th Cir.), writ denied, 443 So.2d 582 (La.1983);17

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. Lou isiana 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. S ee, e.g., Baldwin v. Kikas, 635 So.2d

1324, 1327 (L a.App. 4th Cir.1994), w rit denied, 643 So.2d 144

(La.1994) (affirming summary judgment because of insufficient

evidence of identity of manufacturer or s eller); s ee also

Maldanado v. State Through

APPENDIX A—Continued

Dept. of Transportatio n, 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 plaintiff's 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 diethylstilbestorol ("DES")

case. There, plaintiff was unable to identify the manufacturer of

the DES that her mother took while she was pregnant, which caused

the plaintiff's 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 plaintiff's 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.18

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 T hompson v. JohnsManville Sale s Corp., 714 F.2d 581 (5th Cir.1983), the Fifth

Circuit, sitting in diversity, refused to apply marke t share

liability in an asbestos products liability case contro lled 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 B ateman 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 mark et share theory." I d. 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 proximate 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 plaintiff's

unfortunate injury and defendants' alleged wrongful conduct is

separated by anywhere from 20 to 70 years. Plaintiff concedes that19

lead paint pigment has not been applied for residential p urposes

since at least 1972, 20 years before this plaintiff was born, 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 S indell, 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 c ould 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 bee n applied more than 20 years before

that, and plaintiff does not allege when in this century that this

application o ccurred. Even courts using market share liability

have limi ted 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." S antiago v. Sherwin

Williams Co., 3 F.3d 546, 550 (1st Cir.1993) (citing cases)

(emphasis added). Plaintiff apparently contemplates a less finely

tuned application of the doctrine here. Further, as defendants20

point out, not all manufacturers of lead pigment are defendants in

the case. Eagle-Picher, described in plaintiff's 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 appl ied, or that defendants' market shares

were constant over the whole period that lead pigment was used, and

with a "major producer" absent from the case, the Court finds that

market share theory would create too much risk that a defendant

will be held liable for m ore harm than it caused, or, worse yet,

without causing any harm at all to the plaintiff. S ee 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 l ie against an incorporated trade

association not alleged to have acted as a manufacturer. S ee

Baldwin v. Kikas, 635 So.2d 1324 (La.A pp. 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. S ee

Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748 (La.1987) (bank21

not liable in warranty); c f. Allgood v. R.J. Reynolds Tobacco

Co., 80 F.3d 168 (5th Cir.1996) (Texas l aw). Plaintiff has not

even asserted market share liability against the LIA. See Complaint

at ¶ 44.

The gravamen of plaintiff's al legations 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. McIlhenn y, 201 La. 78, 9 So.2d 467, 472 (1942);

Junior Money Bags, Lt d. v. Segal, 798 F.Supp. 375, 379

(E.D.La.1990); S ilver v. Nelson, 610 F.Supp. 505, 516 n. 15

(E.D.La.1985). Rather, Louisiana 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 plai ntiff's injury. S ee Kiva Constr. &

E ngineering v. International Fidelity Insurance Co., 749 F.Supp.

753, 756 (W.D.La.1990); S ilver, 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." Plaintiff's Opp. Mem. at 15.

However, plaintiff's conspiracy to commit fraudulent

misrepresentation claim is defective because the underlying

fraudulent misrepresentation claim is defective.1 5 The same is true if the claim were for negligent

misrepresentation. See Abbott v. Equity Group, Inc., 2 F.3d 613,

624 n. 38 (5th Cir.1993).

22 Louisiana Civil Code article 1953 defines fraud as "a

m isrepresentation 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 ot her. 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 Ci r.1988); S ilver, 610 F.Supp. at 516. 15 Nowhere in the

complaint does plaintiff allege that she bought, used, or ingested

the lead paint p igment 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. C f. 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, plaintiff's fraudulent misrepresentation claim

against the LIA is defective because of a failure to allege

causation. Plaintiff's complaint does not allege that the23

fraudulent promotional activities of the LIA caused her lead

poisoning. S ee Santiago, supra, 3 F.3d at 552 (noting same

defect). She simply alleges that if defendants had not engaged in

fraudulent activit y, 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 apart ment, 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.

4. CONCLUSION

The amended complaint is ordered dismissed against all

defendants.

New Orleans, Louisiana, this ____ day of __________, 1996.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE