Louisiana Record

Thursday, April 9, 2020

Louisiana federal court dismisses some defendants in claims that boy’s AML caused by paint exposure

Federal Court

By John Sammon | Mar 23, 2020

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NEW ORLEANS – The U.S. District Court for the Eastern District of Louisiana dismissed plaintiffs' allegations against some of the paint companies they claims caused their son to develop leukemia.

Plaintiffs Jenna White and Justin White, Sr., filed the suit on March 5 in state court against the defendants, Sherwin Williams Co., Annie Sloan U.S., PPG Industries, Lowe’s Home Center, Jolie Design and Décor, Tyner Petrus Co., W.M. Barr & Co., Behr Process Co., Home and Ranch Hardware and Rust-Oleum Sales Company, Inc.

The couple alleged that while Jenna White was pregnant with her son, Justin White, Jr., she was exposed to toxic levels of benzene, benzene-containing products, toluene, xylene, and other solvents in products manufactured and/or sold by the defendants.

The plaintiffs contended that the paint exposure caused their son to contract acute myeloid leukemia (AML). The plaintiffs brought claims under allegations of gross negligence, and strict liability under Louisiana’s Products Liability Act.

Annie Sloan is a type of paint called “chalk paint” used in furniture decoration to give furniture an aged and rustic look.

The defendants removed the action to the U.S. District Court, claiming the suit came under federal jurisdiction.

The plaintiffs then moved to remand the action back to state court arguing that the issue did not raise a federal question on the face of the complaint. This U.S. Court denied the plaintiffs’ motion to remand.

The plaintiffs asked the U.S. Court to reconsider its order and reasons for denying the motion to remand. The defendants opposed the request and asked the court to dismiss the claims against them.

“The plaintiffs spent considerable time explaining case law from other circuits and making disingenuous arguments,” the court opinion read. “Accordingly, the court sees no need to disturb its previous decision denying plaintiffs’ motion to remand.”

Additionally the U.S. Court found that the paint in question did not exist at the time the original complaint was made.

“The plaintiffs’ complaint alleges that from November 2017 through April 2018, Jenna White used products allegedly manufactured by ASUSI (Annie Sloan paint) and that these products caused Justin White, Jr.’s AML," the opinion read. "Because ASUSI had not come into existence as of the last date of exposure relevant to the plaintiffs’ claims, ASUSI cannot possibly be found liable for any purported tortious conduct that took place before the company came into existence. An insurmountable bar to relief exists and plaintiffs’ claims against ASUSI must be dismissed.”

The plaintiffs’ motion for reconsideration was denied. The defendant’s motion to dismiss was granted and claims dismissed with prejudice.

 

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