No. _____________
In The United States Court Of Appeals for the Fifth Circuit
ROGER J. LEBLANC, KAREN M. DAVIS, and ASHLEY GUILLORY Individually and on behalf of all others similarly situated,
PETITIONER PLAINTIFFS
V.
EXXON MOBIL CORPORATION
RESPONDENT DEFENDANT
On Petition for Appeal from the United States District Court Middle District of Louisiana No. 14-cv-201 c/w 14-cv-218
PETITION FOR PERMISSION TO APPEAL
Charles F. Zimmer, II C.F. Zimmer, LLC
John H Smith
Loren D. Shanklin Alicia Sosa
Smith Shanklin Sosa, L.L.C.
Eric J. O’Bell O’Bell Law Firm, L.L.C.
Daniel E. Becnel, Jr.
Salvadore Christina, Jr. Becnel Law Firm, LLC
Paul M. Brannon
Brannon Law Firm, L.L.C.
Attorneys for Petitioner-Plaintiffs
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made in order that the Judges of this Court may evaluate possible
disqualifications or recusal.
Roger J. Leblanc Karen M. Davis Ashley Guillory Charles F. Zimmer, II C.F. Zimmer, LLC 9213 Rosecrest Lane River Ridge, Louisiana 70123 Eric J. O’Bell (La #26693) O’Bell Law Firm, L.L.C. 3500 N. Hullen Street Metairie, Louisiana 70002 John H Smith Loren D. Shanklin Alicia Sosa Smith Shanklin Sosa, L.L.C. 16851 Jefferson Hwy, Suite 5A Baton Rouge, LA 70817
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Paul M. Brannon Brannon Law Firm, L.L.C. 4916 Lake Como Avenue Metairie, Louisiana 70006 Daniel E. Becnel Jr. (2926) Salvadore Christina, Jr. (27198) Becnel Law Firm LLC P. O. Drawer H Reserve, LA 70084 Angela M. Spivey McGuireWoods LLP 1230 Peachtree Street, NE Promenade, Suite 2100 Atlanta, Georgia 30309-3534 Ronald G. Franklin Kelly Beth Hapgood McGuireWoods LLP 600 Travis Street Suite 7500 Houston, Texas 77002 James C. Percy William D. Lampton Jones Walker LLP 8555 United Plaza Blvd., 5th Floor Baton Rouge, Louisiana 70809
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TABLE OF CONTENTS I. ISSUES PRESENTED ................................................................... - 1 -
II. STATEMENT OF JURISDICTION ............................................... - 1 -
III. STANDARD OF REVIEW ............................................................. - 2 -
IV. REASONS TO GRANT THE PETITION FOR PERMISSION TO
APPEAL .......................................................................................... - 2 -
V. STATEMENT OF THE CASE ....................................................... - 7 -
A. STATEMENT OF FACTS .................................................................... - 7 -
B. PROCEEDINGS AND DISPOSITION BELOW ...................................... - 13 -
VI. LAW AND ARGUMENT ...............................................................- 15 -
A. THE REASONABLE PERSON STANDARD ......................................... - 15 -
VII. CONCLUSION ...........................................................................- 19 -
VIII. STATEMENT REGARDING ORAL ARGUMENT ...................- 20 -
IX. CERTIFICATE OF SERVICE ......................................................- 22 -
X. CERTIFICATE OF COMPLIANCE ..............................................- 22 -
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CASES Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) -------- - 20 - Becnel v. Mercedes-Benz USA, LLC, NO: 14-0003 (E.D. La., 2014) ------------------------------------------------- - 16 - Belville v. Ford Motor Co., 13-cv-6529 (S.D. W. Va., 2014) ------------- - 17 - Ford Motor Credit v. Laing, 705 So.2d 1283 (La.App. 2 Cir. 1998) ------------------------------------------------------------ - 16 - Gulf Production Co. v. Hoover Oilfield Supply, 672 F.Supp.2d 752 (E.D. La., 2009) ----------------------------------------- - 16 - In re Ford Motor Co. Vehicle Paint Litig., 1996 WL 426548 (E.D. La. Jul. 30, 1996) --------------------------------- - 17 - Jackson v. Slidell Nissan, 693 So.2d 1257 (La.App. 1 Cir. 1997) ------------------------------------------------------------ - 16 - Jackson v. Slidell Nissan, 693 So.2d 1257 (La.Ct.App. 1997) ----------------------------------------------------------------- - 16 - Johnson v. Chl Enterprises, 115 F.Supp.2d 723 (W.D. La., 2000) ------------------------------------------------------------------- - 16 - Leblanc v. Wyeth, Inc., 495 F.Supp.2d 609 (W.D. La., 2007) ------------------------------------------------------------------- - 16 - Mire. v. Eatelcorp, Inc., 849 So.2d 608 (La.App. 1 Cir. 2003) ---------- - 17 - Mire. v. Eatelcorp, Inc., 927 So.2d 1113 (La.App. 1 Cir. 2005) -------- - 17 - New Orleans Assets, L.L.C. v. Carl E. Woodward, 278 F.Supp.2d 772 (E.D. La., 2003) ---------------------------------------- - 16 - Orr v. Jones, 95 So.3d 583 (La.App. 5 Cir. 2012) -------------------------- - 17 -
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Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640 (5th Cir., 2002) ------------------------------------------------- - 15 - Pitre v. Yamaha Motor Co., NO. 13-5327 (E.D. La., 2014) ------------- - 17 - Pratt v. Himel Marine, Inc., 823 So.2d 394 (La.App. 1 Cir. 2002) ---- - 17 - Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372 (5th Cir. 2007) ---------------------------------------------------- - 6 - Safeco Ins. Co. of Am. v. Chrysler Corp., 834 So.2d 1026 (La. App. 3 Cir. 7/31/02) -------------------------------------------------------- - 17 - Stuart v. American Cyanamid Co., 158 F.3d 622 (C.A.2 (N.Y.), 1998) -------------------------------------------------------------- - 16 - Vincent v. Hyundai Corp., 633 So.2d 240 (La.Ct.App. 1993) ----------- - 16 - Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La. 1992) -------------- - 18 -
STATUTES
28 U.S.C. §1292 ----------------------------------------------------------------------- - 1 -
Fed.R.Civ.P. 23(f) advisory committee notes --------------------------------- - 6 -
Federal Rule of Civil Procedure 23(f) ---------------------------------- - 1 -, - 15 -
La.Civ.C. Art. 2520 ---------------------------------------------------------- - 1 -, - 20 -
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APPENDIX
Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume I of III-------------- ------------------------------ Exhibit A
Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume II of III------------------------------------------- Exhibit B
Leblanc v. Exxon, No. 3:14-cv-201, Class Certification Hearing Transcript Volume III of III----------- ------------------------------ Exhibit C
Oral Reasons for Judgement, Class Certification Hearing----------------------------------------- Exhibit D
Written Reasons for Judgement, Class Certification----------------------------------------------------- Exhibit E
Gerard Forde deposition submitted as trial testimony ------------------------------------------------------ Exhibit F
Karl W. Gardner deposition submitted as trial testimony ------------------------------------------------------ Exhibit G
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I. Issues Presented
The case law on redhibition claims in Louisiana clearly instructs
that an “objective reasonable person” standard applies when
adjudicating contractual redhibition cases under La.Civ.C. Art. 2520, et
seq. The Honorable District Court denied tens of thousands of consumers
of a contaminated commodity gasoline product access to Rule 23’s
administrative tools, finding that an individual subjective analysis of
“inconvenience or uselessness” was required for each consumer.
If a subjective individual finding is now required, then class
administration of mass Louisiana redhibition claims is now impossible in
federal court. Should this court at least review a ruling that materially
alters consumer protection legislation originating before 1808?
II. Statement of Jurisdiction
The Honorable District Court denied class certification and thereby
vested this Court of Appeals with jurisdiction under 28 U.S.C. §1292(e),
pursuant to Federal Rule of Civil Procedure 23(f).
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III. Standard of Review The question before the Court is whether to grant the Petitioners
the right to file an appeal based on a complete record, or to allow the
denial of class certification to resolve the merits of the matter below.
Denial of class certification by the District Court triggers the “unfettered”
discretion of this Court to allow an appeal pursuant to the plain language
of Fed.R.Civ.P. 23(f). See, e.g., Shin v. Cobb County Bd. Of Educ., 248
F.3d 1061, 1063-65 (11th Cir. 2001).
IV. Reasons to Grant the Petition for Permission to Appeal Respondent ExxonMobil, Corporation (“Exxon”), contaminated at
least five million (5,000,000) gallons of commodity-level gasoline with
approximately 100,000 pounds of tackifying resin intended for its
adhesion production facility.1 The gasoline was distributed to nearly
every gas station within an 80-mile radius of the Baton Rouge facility
(regardless of brand name), and caused severe and immediate damage to
thousands of engines.2 Many others had what Exxon calls “self-
correcting” problems like hard starts, sluggishness, rough idle, black
1 See, testimony of Timothy Daly, Ph.D., Plaintiff Expert, Exhibit A, p. 114-:5 – 115:2. 2 See, testimony of John E. Dill, Claims Supervisor for Exxon Mobil Risk Management, Exhibit B, p. 9:15-22; and p. 44:2-13.
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smoke, warning lights, knocking, shaking, misfiring, etc.3 The long-term
impact of the resin in engines is a disputed merits question. In spite of
the law of redhibition, Exxon refuses to reimburse the purchase price
unless the consumer repaired tort damages.4
Petitioners filed suit under Louisiana’s contractual redhibition statute
since the contaminated gasoline contained a redhibitory defect – i.e., a
vice or a defect that renders the gasoline useless or so inconvenient that
no reasonable person would purchase it if fully informed of the
contaminant, the likelihood of damage to engines and the inconvenience
of inspection to determine long-term damage. Not a single witness,
including Exxon’s own expert, testified they would have purchased the
gas with full knowledge.5
On its face, the case presents a quintessential class: (i) millions in
damage to tens of thousands of consumers of a commodity product, (ii)
from a harmful contamination the buyer cannot evaluate or distinguish
at the time of purchase, (iii) sold to a wide population in a tight
3 Testimony of John E. Dill, Exhibit B, pp. 55:11 – 56:4. 4 Id., at p. 86:15-19. (“Q: Were you authorized in this case to pay claims to people who just showed up and said I purchased defective fuel? A: No, I was authorized to pay people who claimed they had a problem…”) 5 See, testimony of Dennis Assanis, Exxon litigation expert, Exhibit C, 43:18 – 47:6.
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geographic area, (iv) who were not informed of the contaminated name
brands, the symptoms to look for, or the damaging nature of the defective
commodity, and (v) who must use common evidence to prove virtually
every element of their claims.
The Honorable District Court denied class certification, finding that
whether or not a redhibitory defect existed – the fundamental question
for the jury – would require an individual analysis of each buyer’s
subjective experience with the contaminated gasoline. In application, this
decision means two buyers of the same commodity product could have
different legal remedies based on their subjective knowledge about the
defective product. Can a contaminated commodity product have a
redhibitory defect in one engine, causing $19,053 in damage, but not have
a redhibitory defect in the next engine that bought the gas moments later
from the same pump, for the same use, but had a “self-correcting” event?
Petitioners contend the Honorable District Court erred by applying an
individual tort-based analysis – i.e., each consumer must show they were
harmed – to a contract claim for rescission of the sale of a defective
product. This critical distinction has been analyzed multiple times, and
it is clear that the jury is empowered to find all five million gallons of the
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contaminated gasoline had a redhibitory defect when sold to all the class
members, by applying a reasonable person standard. There is no
necessity for an individual analysis of each buyers subjective feelings
regarding inconvenience or uselessness when a preponderance of
objective data is readily available, and legally required.
The District Court’s decision is the death knell of the putative class
members’ claims. It deprives the putative class members of access to a
jury, since virtually none will be able to prosecute an individual claim
against Exxon on highly technical matters – e.g., the formation tendency
of injector valve deposits and combustion chamber deposits from a heat
activated polymer resin never expected to enter an internal combustion
engine.6 Even if they did tackle this daunting challenge, each of the
thousands of claims would use the exact same evidence to show
contamination and resultant redhibitory defect or vice. The unique
questions regard volume purchased and location, which are the plaintiffs’
burden at trial.
6 See, e.g., testimony of Dan Daly, Ph.D., Exhibit A, at pp. 103:23 – 104:23; and, Exhibit F, Gerard Forde deposition submitted as trial testimony, at p. 48:6-10 (“Q:…But you don’t want E1000 resin sent to the fuel side of the facility; correct? A: That is correct.”)
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The instant matter presents several of the factors this circuit, and
others, have identified as warranting appellate review at this
interlocutory stage.7 Most significantly, the denial of class certification
has eradicated the potential for restitution for tens of thousands of
consumers of a contaminated commodity, without any consideration of
the merits of their claims.
Further, the District Court’s opinion usurps a state legislative
consumer protection device as old as Louisiana itself, by eliminating Rule
23’s administrative tools. This “death knell” decision will be used to
insulate future contamination events, and alter the delicate balance
between large manufactures and consumers. A procedural ruling that
destroys the application of state law should be subject to this Court’s
review. The denial of class certification means no review of the merits
will ever take place, and if this petition is denied, there will never be an
opportunity for appellate review.
Finally, the denial of access to Rule 23’s administrative tools presents
the important question of whether Louisiana’s redhibition statute’s
7 See, e.g., Fed.R.Civ.P. 23(f) advisory committee notes; and, Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372 (5th Cir. 2007).
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“uselessness” and “inconvenient” language requires subjective individual
proof in federal court. Objective “reasonable person” proof, as required up
to this point, is capable of class-wide analysis. This decision, therefore,
will determine if the federal courts apply Louisiana state law differently
than the state courts, and differently than prior federal decisions.
Needless to say, this is a matter of substantial public interest that will
impact existing and future claims regarding large sales of defective
products to retail consumers. Such important changes in the law should
not be abandoned at the district court level at the interlocutory stage.
V. Statement of the Case A. Statement of Facts It is undisputed that on March 7, 2014, a pump malfunction in
Exxon’s chemical plant sent approximately 100,000 pounds of Escorez
resin, intended for adhesion production at the chemical plant, into
Exxon’s gasoline production system.8 The Escorez resin was identified as
matching the Escorez 2203 product – a heat activated adhesive in the
8 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 42:24 – 45:6; and Exhibit B, testimony of Mike Noorman, p. 153:6-12.
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“Escorez 1000” family of adhesive products. Escorez 2203 resin has no
role in the production of gasoline.9
Under proper operating conditions a chemical called a “raffinate” is
used in the gasoline production. “The raffinate is a gasoline-like molecule
that is normally blended into gasoline.”10 The Escorez resin, on the other
hand, “is a very heavy molecule, that typically is not in gasoline.”11 The
“gasoline-like” raffinate easily separates from the not-gasoline-like heavy
Escorez resin and each chemical is pumped to its intended processing
facility: tackifying resin to the adhesion finishing area, and raffinate to
the gasoline refinery.
The signs of contamination surfaced, at the latest, on March 13,
2014, when gasoline exceeded Exxon’s internal warning threshold for
unwashed gums.12 Five days later, Exxon’s Global Product Quality unit
was contacted about the high gum level in Baton Rouge, and instructed
the refinery to take additional samples. In spite of the fact it triggered an
internal alarm, and was obviously out of the norm by a multiple of 10,
9 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 47:24 – 50:6. 10 See id., at pp. 42-44. 11 See id., at pp. 43-44 (emphasis added). 12 See id., at p. 79:7 - 83:1.
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Exxon continued to send this gasoline to the Baton Rouge terminal for
local distribution before conducting a full investigation. Local
distribution included supplying this “commodity”13 gasoline to local
Chevron, Shell, Murphy, Sams, Circle K, Racetrack and other brand
names stations.
On March 26th Exxon shut down the local terminal after dozens of
consumer complaints made clear the gasoline was causing engines to fail,
run rough, sputter, etc.14 Exxon quickly determined that the high volume
of “gum” was not the normal blending byproduct the ASTM “gum” test is
designed to measure, but an Escorez resin contaminate.15
By March 29th the faulty adhesion return stream was identified and
shut down to prevent further contamination. Days later, on March 31st
the Baton Rouge Terminal was reopened. After the terminal was
reopened, Exxon determined that levels of Escorez below 22 mg/hml
should not cause damage, at least not to the two (2) vehicles it tested. The
contaminated gasoline that left the facility contained between 27 mg/hml
13 Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 21:14 – 22:23, and 25:12-20. 14 Testimony of John E. Dill, Exhibit B, pp. 55:11 – 56:6. 15 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 41:15 – 42:6, and 42:12 – 44:6.
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and 49 mg/hml, according to Exxon, while evidence shows levels in excess
of 50 mg/hml sampled from local pumps.16 Thus, all 5,000,000 gallons
exceeded the level of Escorez Exxon determined as deleterious to engines
– even if a hypothetical uninformed driver did not perceive the vice.
Exxon had never tested the impact of Escorez resin in engines.17 In
fact, no one has ever studied this industrial adhesive in engines. But high
molecular weight polymers are known to be troublesome. Engines that
showed immediate harm from the Escorez resin showed evidence of
severe intake valve sticking. In simple terms, the adhesive resin’s ability
to bind the intended movement of the precision valves caused specific
symptoms.18 Exxon admits that even small impediments to the intake
valve movement could cause long-term problems – e.g., a loss of
compression due to a partially open valve.19
Exxon’s in-house experts developed a list of anticipated symptoms
that applied to all makes and models of automotive engine – they did not
16 See, Exhibit F, Gerard Forde deposition submitted as trial testimony, at pp. 80:5 – 85:25. 17 See, Exhibit B, Testimony of Mike Noorman, at p. 151:8-21. 18 See id., at pp. 119:8 – 122:10, (“I was trying to confirm that the failure mode that we are observing here was related to intake valve sticking, and identifying a sticky material on a valve that had not had an opportunity to wash away was quite important in that investigation.”), see also, id., at p. 150:24 – 151:4 (“Q: That sticky material was till visible correct? A: It was. Q: In fact, you touched it, didn’t you? A: I did. Q: You felt the sticky nature of it, correct? A: I did.”) 19 See, deposition of Karl W. Gardner, submitted as trial testimony, Exhibit G, p. 23:11-22.
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need to evaluate every engine type to anticipate the problems all designs
would encounter. No manufacturer was immune from the symptoms, and
over 41 manufactures’ engines needed repair. The symptoms included:
(1) check engine lights, (2) running rough, (3) knocking, (4) shuttering,
(5) sluggishness, (6) shaking, (7) misfiring, (8) starting problems, (9) poor
acceleration, (10) clogged fuel injectors, (11) sticking valves, and (12)
damage to “parts potentially affected by a fuel issue of this nature, i.e.,
high gum levels.”20
According to Exxon, in many cases the valve sticking was enough
to destroy the valve train and cause over $5,000 in damage.21 In
thousands of others, the damages were less severe, but required repair –
over $4.7 million, or roughly $1,500 per engine, to repair.22
A newer Toyota [or] Nissan truck with large high compression V8 engine that for one reason or another winds up with two piston rods through the engine block and requirement of a complete engine replacement. So in terms of claims that we paid, there are everything from $55 to $21,000.23
20 Testimony of John E. Dill, Exhibit B, pp. 55:11-56:6. 21 Id., at p. 95: 18-24. 22 Id., at p. 24:22-24. 23 Id., at p. 25:7-12.
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Exxon asserts the vast majority of engines had a “self-correcting event,”
or no noticeable event, and thus required no mechanical repair to
continue functioning at some level. Exxon’s litigation expert opined that
if the contaminated gas was replaced with clean gas:
“…the atypical fuel would create, as we have seen, your honor, in some of the videos, but also in the field, we have seen valves that would accumulate a coating of this gummy deposit…In the first injection it probably won’t wash away all the sticky deposits, so my engine will turn and the[sic] crank and all will be a little rough. But two, three times, five times, ultimately, it’s going to basically wash away the deposits and the engine will reestablish the normal operation.”24
If the engine received no repair, Exxon asserts the fuel was not
defective and redhibition does not apply. Whether those “self-correcting
events” reduced engine efficiency by impeding proper valve seal or travel
is an open merits question at this early stage. Whether these “self-
correcting” hard starts, sluggishness, rough idle, black smoke and similar
events were inconvenient enough to satisfy the reasonable person
standard is the merits question for the jury.
Exxon’s litigation expert says that regardless of the thousands of
repair claims, there is no long-term impact from the adhesive. In spite of
24 Testimony of Dennis Assanis, Exxon litigation expert, Exhibit B, at pp. 191:25 – 192:4.
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this opinion derived for litigation, Exxon’s in-house experts are running
long-term tests to determine the impact of Escorez on engines.25 At this
stage, Plaintiffs’ experts have only had brief access to a small portion of
the relevant data. From the data they have seen, they anticipate that the
heat-activated nature of the Escorez 2203 compound will present long-
term issues with valve and combustion chamber deposits, along with
sludge in the oil system due to seep of Escorez into the engine oil.
From this data and related data, the jury can decide the ultimate
question: Would the knowledge of thousands of engines requiring
mechanical repair, plus thousands more enduring “self-correcting
events,” plus the need to inspect valves to determine if deposits are
forming, render the gas so useless or inconvenient to cause a reasonable
buyer to avoid the sale?
B. Proceedings and Disposition Below Petitioners filed suit on April 3, 2014, and filed the initial motion
for class certification within the 90-day statutory period, before discovery
started. Exxon produced only its claims files, declaring that it had
admitted the gas was “atypical,” and therefore no discovery was
25 Testimony of Mike Noorman, Exhibit B, pp. 138:20 – 139:22, and 154:3-12.
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necessary regarding the nature of the defect – i.e., what was the
contaminant, and what symptoms would it cause. Petitioners moved to
compel discovery about the nature of the defect, and Exxon eventually
produced more information showing it was actually a contamination
event, not a blending error as reported. That additional information,
however, did not come until fact discovery had ended, and Petitioners’
expert reports were tendered.
A class certification hearing was conducted from February 18th
through the 20th, 2015. The hearing included ten live witnesses, and
three witness submitted by deposition testimony. At the conclusion of the
final live witness on February 20th, the Court announced a decision was
ready and would be read into the record within the hour. The oral reasons
for judgment are attached as Exhibit D. Written reasons, incorporating
the oral reasons, were issued on March 17th. See, Exhibit E. Plaintiffs’
motion for reconsideration was denied on April 20, 2015.
The District Court denied class certification, finding an individual
subjective analysis would be necessary to determine if each and every
putative class member found the gas useless or inconvenient. This
individual analysis, the District Court held, failed almost every element
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of Rule 23 – commonality, typicality, predominance, superiority,
ascertainability, etc. – because a case-by-case analysis of uselessness or
inconvenience would be necessary at each stage. As the Court stated,
“[t]here is no uniform method for determining who should be a class
member, rather, each plaintiff would bear the burden of proving that the
fuel purchased rendered the gasoline useless or inconvenient, or
otherwise diminished its usefulness.” Exhibit D, at p. 59:18 – 22.
VI. Law and Argument A. The Reasonable Person Standard Redhibition is a statutory contract claim; it is distinctly different
from a tort claim. “Redhibition is an avoidance of sale. Accordingly, the
goal of the remedy is to return the injured party to the position he or she
was in before the sale occurred, not to the position he or she was in before
his or her injury, as in a tort remedy. These distinct inquiries will not
necessarily produce the same measure of damages.” Patin v.
Thoroughbred Power Boats Inc., 294 F.3d 640, 656 (5th Cir. 2002).
Critical to this petition, and central to the District Court’s error, the
redhibition statute and opinions applying it, direct that the method of
proving redhibition is by a preponderance of evidence “the seller sold the
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thing to him and it is either absolutely useless for its intended purpose
or its use is so inconvenient or imperfect that, judged by the reasonable
person standard, had he known of the defect, he would never have
purchased it…” Stuart v. American Cyanamid Co., 158 F.3d 622, 630
(C.A.2 (N.Y.) 1998) (emphasis added), citing, Jackson v. Slidell Nissan,
693 So.2d 1257, 1262 (La.Ct.App. 1997), and Vincent v. Hyundai Corp.,
633 So.2d 240, 243 (La.Ct.App. 1993), writ denied, 634 So.2d 832 (La.
1994).
This fundamentally important “reasonable person” standard is not
disputable, and is plainly stated by at least one federal appellate court,
federal district courts in Louisiana and West Virginia, and every
Louisiana state appellate circuit. See, e.g., Stuart, infra; Johnson v. Chl
Enterprises, 115 F.Supp.2d 723, 728 (W.D. La., 2000); Leblanc v. Wyeth,
Inc., 495 F.Supp.2d 609, 615 (W.D. La., 2007); Becnel v. Mercedes-Benz
USA, LLC, No: 14-0003, pp. 18 – 19, May 13, 2014 (E.D. La., 2014); Gulf
Production Co. v. Hoover Oilfield Supply, 672 F.Supp.2d 752, 760 (E.D.
La., 2009), citing, New Orleans Assets, L.L.C. v. Carl E. Woodward, 278
F.Supp.2d 772 (E.D. La., 2003), citing, Ford Motor Credit v. Laing, 705
So.2d 1283, 1285 (La.App. 2 Cir. 1998), and Jackson v. Slidell Nissan,
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693 So.2d 1257, 1262 (La.App. 1 Cir. 1997); Belville v. Ford Motor Co.,
13-cv-6529, November 14, 2014, pp. 20 - 21 (S.D. W. Va., 2014), citing,
Pratt v. Himel Marine, Inc., 823 So.2d 394, 403 (La.App. 1 Cir. 2002); Orr
v. Jones, 95 So.3d 583, 588 (La.App. 5 Cir. 2012).
The Louisiana First Circuit Court of Appeal stated this plainly,
twice, in the Mire v. Eatelcorp decisions, stating “the relevant inquiry on
commonality of issues ‘does not involve the buyer’s subjective knowledge
or reliance, but rather is an objective inquiry into the deficiency and
whether it diminishes the product’s value or renders it so inconvenient
that the buyer would not have purchased it had he known of the
deficiency.”26
This directive to consider the redhibitory defect from the
perspective of a reasonable person, and not require proof of tort damage,
is the heart of the consumer protection goals of the redhibition
framework, and distinguishes it from the Louisiana Production Liability
Act.27 This consumer protection device goes back to Roman law, and was
26 Mire. v. Eatelcorp, Inc., 927 So.2d 1113, 1116 (La.App. 2005), reasserted in, Mire. v. Eatelcorp, Inc., 849 So.2d 608, 614 (La.App. 1 Cir. 2003). 27 See, Pitre v. Yamaha Motor Co., NO. 13-5327, p. 25 (E.D. La., 2014) quoting, Safeco Ins. Co. of Am. v. Chrysler Corp., 834 So.2d 1026, 1046 (La. App. 3 Cir. 2002); and TruSouth Oil Co., LLC v. Burlington Ins. Co., 2012 WL 4483465 *5 (W.D. La. 2012). See also, In re Ford Motor Co. Vehicle Paint Litig., 1996 WL 426548 (E.D. La. Jul. 30, 1996).
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part of the law of Louisiana from 1808, forward.28 “In contrast with the
Roman and civilian principles, the English doctrine of caveat emptor,
foreign to the civil law, long prevailed in the common law, affording little
protection at all to vendees.”29
The District Court misapplied this standard, and has altered a
critical consumer protection device. The law of redhibition is not so
subjective or pliable that one gallon of gas can simultaneously have, and
not have, a redhibitory defect. The use of a reasonable person standard
guarantees that subjective feelings and individual knowledge cannot
warp a well-intended consumer protection device through subjective
appreciation of a product’s qualities. If individual subjective proof is now
needed, no redhibition claim can ever apply class procedures in federal
court, and redhibition is thus dead as a consumer protection device.
The Honorable District Court’s error is summarized by two
contrasting summaries of the legal standard stated in her opinion. She
stated the proper standard, but applied a slight variation. Citing La. C.C.
art 2520, she quoted the presumption language, including “must be
28 See, Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1127 (La. 1992). 29 Id., at 1128.
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presumed a buyer would not have bought…” Exhibit E, at p. 5. When
analyzing the facts, however, she summarizes the application of the law
as “must be presumed the buyer…” Id., emphasis added. The change from
“a buyer” to “the buyer” in the specific context of a class certification
hearing rendered class treatment impossible. Proving what “the”
individual class member would do requires individual proof, while
proving what “a” reasonable buyer would do is clearly within the bounds
of class treatment. Prior opinions using the words “the buyer” were not
dealing with class certification questions. This error led the District
Court to find “it will be incumbent on the Court to hear individualized
evidence of uselessness or inconvenience in order to determine whether
what the Plaintiffs characterize[30] as ‘defective’ was redhibitory.” Id., at
p. 6.
VII. Conclusion It was legal error for the District Court to require individual proof
of redhibition – the ultimate question for the jury – at the class
certification phase, when, at trial it is actually a presumption, satisfied
30 The District Court characterized the gasoline as contaminated – “…the fact that the gas was contaminated, and I use the word contaminated, with Escorez, is not ipos facto a redhibitory defect.” Exhibit D, at p. 56, ln. 7 – 9.
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by a preponderance of evidence as to what a “reasonable” buyer would do
if fully informed of the adhesive contamination. If the District Court
misapplied this legal standard, the opinion is subject to de novo review.31
But review can only happen if this Petition is granted.
The heightened standard applied by the District Court’s individual
subjective proof standard has functionally robbed the putative class of
their Seventh Amendment right to trial, and shattered Louisiana’s
consumer protection apparatus. This Honorable Court’s review is both
warranted, and essential.
VIII. Statement Regarding Oral Argument
Petitioners LeBlanc, Davis and Guillory are confident the issues
presented in this petition for permission to appeal are adequately briefed,
and respectfully submit that oral argument is likely not essential to aid
the Court’s decision. Petitioners stand ready to provide oral argument
should the Court deem it helpful.
31 See, Regents of Univ., Cal v. Credit Suisse First Bos., 482 F.3d 372, 380 (5th Cir. 2007) (quoting, Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998).
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Respectfully submitted, this 4th day of May, 2015.
/s/ Charles F. Zimmer II____ Charles F. Zimmer II (T. A.) (La. #26759) C.F. Zimmer, LLC 9213 Rosecrest Lane River Ridge, Louisiana 70123 Telephone: (504) 405-5597 Mobile: (504) 729-8082 [email protected] Eric J. O’Bell (La #26693) O’Bell Law Firm, L.L.C. 3500 N. Hullen Street Metairie, Louisiana 70002 Tel: (504) 456-8677 Fax: (504) 456-8653 [email protected] John H Smith (La. #23308) Loren D. Shanklin (La. #33366) Alicia Sosa (La. #34101) Smith Shanklin Sosa, L.L.C. 16851 Jefferson Hwy, Suite 5A Baton Rouge, LA 70817 Telephone: (225) 223-6333 Facsimile (888) 413-8345 [email protected]
Daniel E. Becnel Jr. (La. # 2926) Salvadore Christina, Jr. (La. #27198) Becnel Law Firm LLC P. O. Drawer H Reserve, LA 70084 (985) 536-1186 (985) 536-6445 Fax [email protected] [email protected] Paul M. Brannon, (La. #22269) Brannon Law Firm, L.L.C. 3500 North Hullen Street Metairie, LA 70002 (504) 456-8696 (504) 456-8697
Counsel for the Petitioner-Plaintiffs
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IX. CERTIFICATE OF SERVICE
I certify that on May 4, 2015, the foregoing Brief was filed
electronically using the Court’s CM/ECF system, which will give notice
of the filing to counsel for the Appellee. In addition, one copy of the
Petition was served on counsel for the Respondent by electronic mail to
/s/ Charles F. Zimmer II Attorney for Petitioners
X. CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because this brief contains 4,052 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using Microsoft
Word 365 in Century font size 14.
/s/ Charles F. Zimmer II Attorney for Petitioners
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