Berthelot v. Union Carbide Corporation ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA QUINCEE BERTHELOT CIVIL ACTION VERSUS NO. 22-793 UNION CARBIDE CORPORATION, SECTION: “J”(5) ET AL. ORDER & REASONS Before the Court is a Motion to Dismiss Under Rule 12(b)(6) (Rec. Doc. 4) filed by Defendants, The Dow Chemical Company and Union Carbide (collectively, “Defendants”). This case arises out of alleged exposure to ethylene oxide (“EtO”) emitted by a petrochemical plant owned and operated by Defendants. Plaintiff, Quincee Berthelot (“Plaintiff”), brought claims for negligence, battery, and nuisance under articles 667-669 of the Louisiana Civil Code, alleging that EtO exposure was a substantial factor in causing her breast cancer. Now, Defendants move to dismiss Plaintiff’s claims for failure to state a claim under Rule 12(b)(6). This case is nearly identical to Ellis v. Evonik Corp., which the Court finds to be persuasive. See Ellis v. Evonik Corp., 2022 U.S. Dist. LEXIS 95318 (E.D. La. May 27, 2022). Accordingly, for the reasons stated in Ellis v. Evonik Corp., IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Under Rule 12(b)(6) (Rec. Doc. 4) is GRANTED in part and DENIED in part. The motion is granted as to Plaintiff’s negligence and battery claims. The motion is denied as to Plaintiff’s nuisance claim under articles 667-669 of the Louisiana Civil Code. IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her complaint with respect to the duty allegedly breached by the Defendants, in support of her claim for negligence under article 2315 of the Louisiana Civil Code. Any amended complaint shall be filed within twenty-one (21) days from the date of this Order. IT IS FURTHER ORDERED that Plaintiff is NOT granted leave to amend her battery allegations, and the battery claim is DISMISSED WITH PREJUDICE. New Orleans, Louisiana, this lst day of June, 2022. Mel fale CARL J. BA tng R~ UNITED STATES DISTRICT JUDGE