Wolfe v. Union Carbide Corporation ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA YVONNE WOLFE CIVIL ACTION VERSUS NO. 22-798 UNION CARBIDE CORPORATION, SECTION M (1) et al. ORDER & REASONS Before the Court is a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendants The Dow Chemical Company (“Dow”) and Union Carbide Corporation (“Union Carbide”) (together, “Defendants”).1 Plaintiff Yvonne Wolfe responds in opposition,2 and Defendants reply in further support of their motion.3 This case arises out of alleged exposure to ethylene oxide (“EtO”) near a petrochemical plant in Hahnville, Louisiana, owned and operated by Dow and Union Carbide (the “facility).4 Wolfe, who has lived near the facility for decades, brought claims for negligence, battery, and nuisance under Louisiana Civil Code articles 667-669, alleging that EtO exposure was a substantial factor in causing her to develop breast cancer.5 This case is nearly identical to Ellis v. Evonik Corp., 2022 WL 1719196 (E.D. La. May 27, 2022), in which the court dismissed the plaintiffs’ battery claims, denied the motion to dismiss their nuisance claims, and dismissed their negligence claims without prejudice but with leave to 1 R. Doc. 4. 2 R. Doc. 8. 3 R. Doc. 12. 4 R. Doc. 3 at 1. 5 Id. at 1-12. amend the complaint to cure the shortcomings of their negligence allegations, if possible. Accordingly, for the reasons stated in Ellis, IT IS ORDERED that Defendants’ motion to dismiss (R. Doc. 4) is GRANTED in part and DENIED in part. The motion is granted as to Wolfe’s negligence and battery claims. The motion is denied as to her nuisance claim under articles 667-669, at this pleadings stage of the case. IT IS FURTHER ORDERED that Wolfe is granted leave to amend the negligence allegations of her complaint to articulate the specific duty or standard of care allegedly breached by Defendants. Any amended complaint shall be filed within twenty-one (21) days from the date of this Order. IT IS FURTHER ORDERED that Wolfe is NOT granted leave to amend the allegations pertaining to her battery claim and that claim is DISMISSED WITH PREJUDICE. New Orleans, Louisiana, this 30th day of June, 2022. ________________________________ BARRY W. ASHE UNITED STATES DISTRICT JUDGE