Pamela Davis Lyles vs. K&B Louisiana Corporation, et al.
In this asbestos action, plaintiff Pamela Davis Lyles alleges asbestos exposure from the daily use of Johnson & Johnson’s Baby Powder and Shower-To-Shower between 1969 and the 1990s. The plaintiff further claims to have ultimately developed peritoneal mesothelioma from the use of these talcum powder products. On October 23, 2023, Ms. Davis Lyles initiated this litigation by filing a complaint naming Johnson & Johnson and Johnson & Johnson Consumer Companies Inc. (collectively hereinafter, the “talc defendants”), among others, as defendants. Her complaint asserted claims for negligence, strict liability, product liability, civil conspiracy, and punitive damages against the talc defendants. On December 27, 2023, this matter was removed to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1452(a) and Rule 9027 of the Federal Rules of Bankruptcy Procedure. The talc defendants thereafter filed a motion seeking to dismiss some of the plaintiff’s claims, including claims for punitive damages and civil conspiracy, pursuant to Rule 12(b)(6). The plaintiff opposed the talc defendants’ motion to dismiss.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is “plausible on its face” when the pleaded facts allow the court to “[d]raw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept the complaint’s factual allegations as true and must “draw all reasonable inferences in the plaintiff’s favor.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The court need not, however, accept as true legal conclusions couched as factual allegations. See Iqbal, supra, 556 U.S. at 667. To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff’s claims are true. Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” will not suffice. Id. at 678 (quoting Twombly, 550 U.S. at 555). Rather, the complaint must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff’s claim. See Lormand, 565 F.3d at 255-57.
Punitive Damages
“In Louisiana, there is a general public policy against punitive damages; thus, a fundamental tenet of our law is that punitive or other penalty damages are not allowable unless expressly authorized by statute.” Ross v. Conoco, Inc., 2002-0299, p. 14 (La. 10/15/02), 828 So. 2d 546, 555. “Additionally, such statutes are to be strictly construed.” Simoneaux v. Taylor Seidenbach, Inc., 708 F. Supp. 3d 821, 826, n.2 (E.D. La. 2023) (Zainey, J.). A prior statute – Article 2315.3 – authorized punitive damages, but it has been repealed. However, “Louisiana courts have continued to recognize the viability of this statute so long as some of the activity occurred while the statute was still in effect, relying on section 2 of the Act, which states that the provisions are only applicable to those causes of action arising on or after the effective date.” Id.
Prior to its repeal in 1996, Article 2315.3 provided a pertinent part: “In addition to general and special damages, exemplary damages may be awarded if it is proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.” Bonnette v. Conoco, Inc., 837 So.2d 1219, 1237 (La. 2003), (citing La. Civ. Code. art. 2315.3). To obtain an award of punitive damages under Article 2315.3, the plaintiff must show that (1) the defendants’ conduct was wanton and reckless, which requires a showing of a disregard of an excessive degree of danger that they knew or should have known about, (2) the danger threatened or endangered public safety, (3) the activity “occurred in the storage, handling or transportation of hazardous or toxic substances”, and (4) the plaintiff’s injury was caused by this conduct. Id.
In this case, the federal court found the plaintiff’s claims against the talc defendants arise out of her personal use of their products. She does not allege that her injuries “occurred in the course of the storage, handling or transportation of the baby powder; rather, it is fully premised on the manufacturing and labeling of the product.” See Simoneaux, 708 F. Supp. 3d at 827. “[C]onduct . . . within the realm of products liability, lies outside the scope of article 2315.3. Williams v. A.C. & S., Inc., 700 F. Supp. 309, 310 (M.D. La. 1988). Accordingly, repealed Louisiana Civil Code Article 2315.3 does not apply here. Id. The federal court therefore dismissed the plaintiff’s claim for punitive damages against the talc defendants with prejudice.
Civil Conspiracy
“The Louisiana Supreme Court has held that conspiracy by itself is not an actionable claim under Louisiana law.” Ames v. Ohle, 2011-1540, p. 11 (La. App. 4 Cir. 5/23/12) 97 So.3d 386, 393. Instead, the only actionable element of a conspiracy claim is “the intentional tort the conspirators agreed to commit and committed in whole or in part causing plaintiff’s injuries.” Rhyce v. Martin, 173 F. Supp. 2d 521, 535 (E.D. La. 2001). “[C]ourts are entitled to glean the underlying intentional tort in a civil conspiracy claim, where such a conclusion is reasonable.” Simoneaux, 708 F. Supp. 3d at 827 (citing Ames, 97 (So.3d at 393-94)). To survive a motion to dismiss, however, a plaintiff “must plead with particularity the conspiracy as well as the overt acts…taken in furtherance of the conspiracy due to the stricter pleading requirements for fraud.” Id. at 828 (quoting U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 193 (5th Cir. 2009)). Further, when pleading fraud, “[a]t a minimum, Rule 9(b) requires that a plaintiff set forth the ‘who, what, when, where, and how’ of the alleged fraud.” U.S. ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997) (quoting Williams v. WMX Tech., Inc., 112 F.3d 175, 179 (5th Cir. 1997)).
Here, the federal court therefore found the plaintiff brings a civil conspiracy claim against the talc defendants. The plaintiff asserts, inter alia, that the talc defendants “conspired among themselves and with other entities to cause her injuries by exposing her to harmful and dangerous asbestos-containing talcum powder products.” She further avers the talc defendants’ overt acts include, among other things, withholding knowledge about the risks their products posed, allowing misleading information to be disseminated, distorting results of medical examinations, and fraudulently misrepresenting the risks their products posed to the public and public officials.
In Simoneaux, the court found the plaintiff’s civil conspiracy claim against the talc defendants survived a motion to dismiss by similarly naming purported members of the conspiracy even though he did “not state explicitly which of the talc defendants committed each specific act.” Contrastingly to the instant case, though, the plaintiff in Simoneaux included specific information in his allegation of overt acts, such as the dates that reports of allegedly false information were disseminated, the name of a specific group influenced by their threats of litigation, and the title of a specific program to which the conspirators allegedly submitted doctored reports. Id. The plaintiff in the instant action, however, failed to provide such specifics. The federal court therefore found the lack of specificity regarding the “what” and “when” of the talc defendants’ alleged conspiratorial acts makes the plaintiff’s civil conspiracy claim insufficiently pled. As such, the federal court dismissed her claim of civil conspiracy against the talc defendants without prejudice.
Read the full decision here.
