Francis Jude Broussard; Rachel Gremillion Broussard v. Procter & Gamble Co; Procter & Gamble Distributing Co; Procter & Gamble Manufacturing Co

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30069
FRANCIS JUDE BROUSSARD; RACHEL GREMILLION BROUSSARD
Plaintiffs - Appellants
v.
PROCTER & GAMBLE CO; PROCTER & GAMBLE DISTRIBUTING CO;
PROCTER & GAMBLE MANUFACTURING CO
Defendants - Appellees
Appeal from the United States District Court for the Western District of
Louisiana, Lafayette
Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Rachel Gremillion Broussard (“Mrs. Broussard”) and her husband, Francis
Jude Broussard (together “the Broussards”), appeal the district court’s grant of
summary judgment to defendants Procter & Gamble Co., Procter & Gamble
Distribution Co., and Procter & Gamble Manufacturing Co. (collectively “P&G”)
on their claims under the Louisiana Products Liability Act, La. Rev. Stat. Ann.
§§ 9:2800.51-.60 (“LPLA”). For the reasons below, we AFFIRM.
I.
Mrs. Broussard suffers from myelomeningocele, a devastating
congenital condition that leaves part of her malformed spinal cord exposed at
a lesion around the level of her fifth lumbar disc. Because of her condition,
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2008
Charles R. Fulbruge III
Clerk

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No. 07-30069
1 One box of Therma Care Heatwrap contains two heatwraps that are individually
wrapped inside a pouch.
2
Mrs. Broussard has chronic pain, poor circulation, and markedly decreased
sensation in parts of her body below the lesion, including her buttocks and
lower extremities.
On February 27, 2004, Mrs. Broussard bought a Therma Care
Heatwrap, an over-the-counter pain reliever, to alleviate muscle soreness in
her lower back. The box of the Therma Care Heatwrap touted that the
heatwrap could be “[u]se[d] anytime day or night, even while [the user is]
sleeping.” Moreover, it claimed that the heatwrap was “[u]ltra thin,
comfortable, discreet under clothing, [so that] no one knows [that the user is]
wearing it.”
Extensive warnings on the box, the individualized pouch, and the
package insert, however, qualified this promotional language.1 For example,
both the box and the pouch warned that consumers should “[a]sk a doctor
before use if [they] have diabetes, poor circulation, rheumatoid arthritis, or [if
they] are pregnant.” In addition, the pouch warned consumers not to use the
wrap “on areas of the body where heat cannot be felt,” and that “when using
this product,” users should “[p]eriodically check [their] skin: (a) if [their] skin
is sensitive to heat, (b) if [their] tolerance to heat has decreased over the
years.” Finally, the package insert warned that consumers who “may be
particularly sensitive to heat” should take various precautions, including
“[p]eriodically check[ing] [their] skin while wearing Therma Care” and
“[w]ear[ing] ThermaCare over a thin layer of clothing instead of directly
against the skin.”
Two days later, Mrs. Broussard used the Therma Care Heatwrap,
strapping it around her lower back against her skin before falling asleep.

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No. 07-30069
2 Francis Jude Broussard claims loss of consortium.
3
When she awoke, Mrs. Broussard found that the heatwrap had slipped to her
buttocks and had caused severe burns on her left buttock.
On February 16, 2005, the Broussards filed suit against P&G, the
manufacturer of Therma Care Heatwrap, pleading claims under the LPLA.2
The district court granted summary judgment to P&G because Mrs.
Broussard failed to show that her use of the heatwrap was “reasonably
anticipated,” and that the heatwrap was “unreasonably dangerous.” The
Broussards subsequently filed this appeal.
II.
We review a grant of summary judgment de novo, applying the same
standard as the district court. Hanks v. Transcon. Gas Pipe Line Corp., 953
F.2d 996, 997 (5th Cir. 1992). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review all evidence in the light most favorable to the
nonmoving party. Exxon Corp. v. Burglin, 4 F.3d 1294, 1297 (5th Cir. 1993).
III.
To recover under the LPLA, plaintiffs must establish that their
damages “were proximately caused by a characteristic of the product that
renders it unreasonably dangerous,” and that their damages “arose from a
reasonably anticipated use of the product.” La. Rev. Stat. Ann. §
9:2800.54(A). “If a plaintiff’s damages did not arise from a reasonably
anticipated use of the product, then the ‘unreasonably dangerous’ question
need not be reached.” Kampen v. Am. Isuzu Motors, Inc., 157 F.3d 306, 309

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No. 07-30069
3 In arguing that Mrs. Broussard’s use of the Therma Care Heatwrap was reasonably
anticipated, the Broussards inexplicably rely on the rationale expressed in the panel opinion
for Kampen v. American Isuzu Motors, Inc.. 119 F.3d 1193 (5th Cir. 1997), reh’g en banc
granted and vacated by 130 F.3d 656 (5th Cir. 1997).
4
(5th Cir. 1998) (en banc). Here, Mrs. Broussard failed to show that her use of
the Therma Care Heatwrap was a reasonably anticipated use.
Mrs. Broussard violated extensive warnings when she used the
heatwrap. The pouch of the Therma Care Heatwrap expressly warned
consumers not to use the heatwrap “on areas of the body where heat cannot
be felt.” Mrs. Broussard used the heatwrap on her lower back despite having
decreased sensitivity to heat below the level of her fifth lumber disc.
Moreover, Mrs. Broussard suffers from poor circulation, and both the box and
the pouch explicitly warned that consumers suffering from poor circulation
should consult a doctor before use. Mrs. Broussard did not consult with her
doctor before using the heatwrap. Finally, the package insert clearly warned
consumers “who may be particularly sensitive to heat” to check their skin
periodically and to wear the heatwrap over a thin layer of clothing. Mrs.
Broussard ignored these precautions.
Our en banc decision in Kampen governs this case.3 Under the holding
in that decision, plaintiffs who used a product in a manner that violates clear
and express warnings can show that their use was reasonably anticipated
only by presenting evidence that the manufacturer had reason to know that
these warnings were ineffectual. See id. at 314. Here, Mrs. Broussard failed
to present even one scintilla of evidence that P&G knew or should have
known that despite the warnings: (1) consumers that have decreased
sensitivity to heat are using the Therma Care Heatwrap; (2) consumers
suffering from poor circulation are using the Therma Care Heatwrap without
first consulting their doctor; or (3) consumers who are particularly sensitive
to heat are ignoring the recommended precautions. Because Mrs. Broussard

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No. 07-30069
5
did not establish that her use of the heatwrap was reasonably anticipated, the
district court properly granted P&G summary judgment on the Broussards’
LPLA claims.
IV.
For the reasons above, we AFFIRM the district court’s grant of
summary judgment in favor of P&G.

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