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Butler v. Denka Performance Elastomer, L.L.C.

Butler v. Denka Performance Elastomer, L.L.C.

United States Court of Appeals for the Fifth Circuit

October 15, 2021, Filed

No. 20-30365

Opinion

 [*432]  Stephen A. Higginson, Circuit Judge:

In this environmental tort case, Juanea Butler alleges that neoprene production from the Pontchartrain Works Facility exposed residents of St.

John the Baptist Parish, Louisiana, to unsafe levels of chloroprene, which she contends may result in a myriad of adverse health conditions including an elevated risk of cancer. Butler sued Denka Performance Elastomer and DuPont—the current and former owners of the facility—as well as the Louisiana Departments of Health ("DOH") and Environmental Quality ("DEQ") in state court seeking class certification, damages, and injunctive relief for various state tort claims.

Following removal, the district court denied Butler's motion to remand to state court;1 granted each of the defendants' motions to dismiss because Butler's claims were either time-barred or failed to state a plausible claim;2 denied in part Butler's motion for leave to amend as futile;3 and dismissed the amended petition for failure to state a claim.4 Butler appeals each ruling. [**3] 5

DuPont owned and operated the Pontchartrain Works Facility ("PWF") from 1969  [*433]  until 2015, when DuPont sold the plant to Denka. For decades, it is alleged, the plant has emitted unsafe levels of chloroprene into the air, exposing nearby residents in the vicinity to adverse health effects. Though DuPont sold the neoprene manufacturing facilities of the PWF to Denka, it retained ownership of the underlying land and buildings.

On June 5, 2018, Butler filed her initial class action petition in Louisiana state court.6 She complains only of the chloroprene released as a result of the facility's neoprene production, and both the PWF's owners and the state's alleged failure to regulate those emissions.

Butler acknowledges that she is not the first to complain about these chloroprene emissions. The district court, accepting as true as it must the allegations in Butler's complaint and undisputed by the parties on appeal, summarized the relevant background as follows:

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16 F.4th 427 *; 2021 U.S. App. LEXIS 31171 **

JUANEA L. BUTLER, individually and as representative of all others similarly situated, Plaintiff-Appellant, versus DENKA PERFORMANCE ELASTOMER, L.L.C.; E. I. DUPONT DE NEMOURS & COMPANY; STATE OF LOUISIANA, through the DEPARTMENT OF HEALTH, incorrectly named as LOUISIANA STATE THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS; STATE OF LOUISIANA, through the DEPARTMENT OF ENVIRONMENTAL QUALITY; Dupont PERFORMANCE ELASTOMERS, L.L.C., formerly known as DUPONT DOW ELASTOMERS, L.L.C., Defendants-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Louisiana. USDC No. 2:18-CV-6685.

Butler v. Denka Performance Elastomer, LLC, 2020 U.S. Dist. LEXIS 91998, 2020 WL 2747276 (E.D. La., May 27, 2020)Butler v. Denka Performance Elastomer LLC, 2019 U.S. Dist. LEXIS 40266, 2019 WL 1160814 (E.D. La., Mar. 13, 2019)Butler v. Denka Performance Elastomer, LLC, 2019 U.S. Dist. LEXIS 943, 2019 WL 92659 (E.D. La., Jan. 3, 2019)

CORE TERMS

chloroprene, emissions, symptoms, district court, custody, prescription, neoprene, constructive notice, exposure, notice, removal, pleadings, allegations, threshold, federal court, concentrations, diagnosis, tolling, liability claim, state court, asserts, waive, period of prescription, reasonable care, legal duty, manufacturing, immunity, damages, sovereign immunity, irritation

Civil Procedure, Removal, Postremoval Remands, Appellate Review, Special Proceedings, Class Actions, Class Action Fairness Act, Constitutional Law, State Sovereign Immunity, Waiver, Interstate Commerce, Governments, State & Territorial Governments, Claims By & Against, Torts, Public Entity Liability, Immunities, Sovereign Immunity, Nonremovable Actions, Rule of Unanimity, Consent, Legislation, Interpretation, Appeals, Standards of Review, Abuse of Discretion, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, De Novo Review, Pleadings, Amendment of Pleadings, Leave of Court, Dismissal, Involuntary Dismissals, Failure to State Claims, Statute of Limitations, Time Limitations, Begins to Run, Actual Injury, Equitable Estoppel, Tolling, Tolling, Discovery Rule, Complaints, Requirements for Complaint, Evidence, Inferences & Presumptions, Presumptions, Creation, Strict Liability, Negligence, Elements, Duty, Standards of Care, Reasonable Care, Products Liability, Theories of Liability, Negligence, Proof, Violations of Law, Standards of Care, Reviewability of Lower Court Decisions, Preservation for Review