Frank Tony Martin Versus Pham Le Brothers, LLC D/B/A Super Saver Discount, India Imports, LLC D/B/A International Wholesale Club and Seneca Specialty Insurance Company

FRANK TONY MARTIN NO. 21-C-159

VERSUS FIFTH CIRCUIT

PHAM LE BROTHERS, LLC D/B/A SUPER COURT OF APPEAL
SAVER DISCOUNT, INDIA IMPORTS, LLC
D/B/A INTERNATIONAL WHOLESALE CLUB STATE OF LOUISIANA
AND SENECA SPECIALTY INSURANCE
COMPANY

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 786-245, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

September 22, 2021

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Susan M. Chehardy,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT APPLICATION GRANTED; JUDGMENT
REVERSED ON APPARENT MANUFACTURER
ISSUE AND SUMMARY JUDGMENT GRANTED
ON SAME ISSUE
HJL
SMC
JJM

COUNSEL FOR DEFENDANT/RELATOR,
INDIA IMPORTS, LLC D/B/A INTERNATIONAL WHOLESALE CLUB
David A. Strauss
Robin D. Cassedy

COUNSEL FOR PLAINTIFF/RESPONDENT,
FRANK TONY MARTIN
Stephen M. Huber
Charles M. Thomas
Logan E. Schonekas

COUNSEL FOR DEFENDANT/RESPONDENT,
PHAM LE BROTHERS, LLC D/B/A SUPER SAVER DISCOUNT
Timothy W. Hassinger

LILJEBERG, J.

Defendant/Relator, India Imports, LLC d/b/a International Wholesale

Club (“International Wholesale Club”), filed a writ application requesting that this

Court reverse the trial court’s denial of its motion for summary judgment seeking

to dismiss the claims filed against it by plaintiff, Frank Tony Martin. Mr. Martin

alleges that International Wholesale Club is liable to him as the manufacturer/seller

of a disposable lighter that allegedly exploded and caused him to sustain severe

burns to his face and upper body. In its writ application, International Wholesale

Club argues that the trial court erred by finding that genuine issues of material fact

exist as to whether it can be considered an apparent manufacturer of the disposable

lighter under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et. seq.

(“LPLA”). For reasons explained more fully below, we find that pursuant to the

undisputed facts and applicable law, International Wholesale Club did not hold

itself out as a manufacturer of the disposable lighter and therefore, is not liable to

Mr. Martin as an apparent manufacturer. Therefore, we grant International

Wholesale Club’s writ application, reverse the trial court’s ruling denying

summary judgment on the issue of whether International Wholesale Club can be

held liable as an apparent manufacturer and grant International Wholesale Club’s

motion for summary judgment on this issue.1

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Martin alleges that on September 2, 2017, he was lighting a cigar with

an MK lighter he purchased from a convenience store owned by co-defendant,

Pham Le Brothers, LLC d/b/a Super Saver Discount (“Super Saver”). He claims

1
Mr. Martin alleges that International Wholesale Club and the co-defendants are liable to him as
manufacturers and non-manufacturing sellers. In its motion for summary judgment, International
Wholesale Club also argued that it has no liability as a non-manufacturing seller of the disposable lighter.
Though the trial court’s written judgment did not grant any part of the summary judgment motion,
International Wholesale Club states in its writ application that its alleged liability as a non-manufacturing
seller is not an issue for consideration by this Court. Based on this statement by International Wholesale
Club, we limit our analysis to its liability as an apparent manufacturer and do not address its alleged
liability as a non-manufacturing seller.

21-C-159 1

the lighter released flammable fluid and unexpectedly exploded, catching his shirt

and upper body on fire. Mr. Martin suffered severe burns to his face and upper

body.

On or about August 1, 2018, Mr. Martin filed a petition for damages against

the convenience store, Super Saver, its insurer, Seneca Specialty Insurance

Company, and relator, International Wholesale Club, the wholesaler that allegedly

sold the MK lighter to Super Saver. Mr. Martin specifically alleges that on or

about March 9, 2017, Super Saver purchased a case containing 1000 MK lighters

from International Wholesale Club and the case contained the defective lighter. In

January 2021, Mr. Martin filed a First Supplemental and Amending Petition for

Damages (“Supplemental Petition”), adding two additional defendants, Ravi’s

Import Warehouse (“Ravi’s”) and Arrow Lighter, Inc. d/b/a MK Lighter, Inc. and

MK Lighter Company (“MK Lighter Company”). Mr. Martin alleges that

International Wholesale Club purchased the MK lighters from Ravi’s located in

Dallas, Texas, and the MK Lighter Company manufactured the MK lighter at

issue. Mr. Martin claims that all of the defendants are liable to him as actual and

apparent manufacturers, as well as non-manufacturing sellers of the MK lighter.

He asserts claims for construction and composition defects, design defects and for

providing inadequate warnings regarding these alleged defects under the LPLA, as

well as under theories of redhibition and negligence.

Mr. Martin does not claim that International Wholesale Club is the actual

manufacturer of the MK lighter. Rather, this writ application concerns the issue of

whether International Wholesale Club is liable to Mr. Martin as an apparent

manufacturer of the MK lighter, that is whether International Wholesale Club

labeled the lighter as its own or otherwise held itself out as a manufacturer of the

MK lighter. The pertinent facts are largely undisputed. In his deposition,

International Wholesale Club’s owner, Hiren Shah, testified that his company

21-C-159 2

operates as a wholesaler that sells products to 800 to 900 convenience store

customers located in Louisiana and Mississippi. Mr. Shah explained that

International Wholesale Club sells most products found in convenience stores, with

the exception of alcohol and gasoline.

In 2017, when the incident at issue occurred, International Wholesale Club

purchased MK lighters from Ravi’s in packs of 50 lighters referred to as a “brick”

of lighters.2 International Wholesale Club resold the lighters to convenience stores

by the brick or by the case.3 Mr. Shah testified that International Wholesale Club

did not make any changes to the bricks of lighters prior to reselling them to its

retail customers. Neither the lighters, nor the packaging for the bricks of lighters,

contain any reference to International Wholesale Club. The metal part at the top of

the lighter contain the initials “MK” etched in the metal. The packaging/display

case from which the lighters are sold includes the description “MK LIGHTER” in

large letters on multiple sides.

Mr. Shah further testified that International Wholesale Club does not solicit

customers and obtains new customers mostly by word of mouth. With respect to

its marketing efforts, Mr. Shah explained that International Wholesale Club has

one salesperson, Himu Vhargushastri. Mr. Vhargushastri testified that he regularly

visited 80 to 100 convenience stores a week to accept orders, which he then

forwarded to International Wholesale Club’s warehouse. Mr. Shah also explained

that International Wholesale Club publishes an extensive catalog of all its products

approximately once a year. International Wholesale Club sends the catalogs to

customers with their deliveries or they are available at International Wholesale

Club’s warehouse.

2
Ravi’s is a wholesaler that sells to other wholesalers, as well as directly to convenience stores.
3
A case contains 20 bricks of lighters for a total of 1,000 lighters.

21-C-159 3

Mr. Shah also explained that International Wholesale Club sells products,

including MK lighters, to its customers from its warehouse located in Metairie.

During his deposition, he described it as a “cash and carry” similar to a

membership club “like a Sam’s Club.” He explained that International Wholesale

Club sold MK lighters from their Metairie location by the brick in the same

packaging they are received without any changes or alterations. Super Saver’s

owner, Bin Pham, testified that he usually placed his orders with International

Wholesale Club through Mr. Vhargushastri and only went to International

Wholesale Club’s warehouse if the convenience store was short on a popular item.

On or about December 10, 2020, over two years after Mr. Martin filed his

original petition, International Wholesale Club filed its motion for summary

judgment seeking the dismissal of all of Mr. Martin’s claims against it. In its

summary judgment motion, International Wholesale Club argued that it is not

liable for any claims under the LPLA because, as a wholesaler that supplies

products to local convenience stores, it is not a manufacturer of the MK lighter. It

argued that it has no knowledge regarding the design and construction of MK

lighters and made no changes to them before selling them to the convenience

stores. It further argued that it does not label the MK lighters as its own or

otherwise hold itself out as the manufacturer of the MK lighter. It asserted that

neither the lighters, nor the packaging in which the lighters are contained and

displayed, have any labels referring to International Wholesale Club. It further

argued that International Wholesale Club never received any complaints from

customers regarding MK lighters and it was not aware of any defects or other

problems with the lighters.

In opposition, Mr. Martin argued that International Wholesale Club is liable

as an apparent manufacturer under the LPLA and is presumed to have known of

the defects in the MK lighter, because it held itself out as a manufacturer of the

21-C-159 4

MK lighter. Mr. Martin bases this allegation on a page in the catalog of products

International Wholesale Club published for its convenience store customers. The

page at issue contains 24 separate boxes with pictures of different lighters and

related products. Under each picture, there is a bar code and number, as well as a

brief description of the product, i.e. “Fujima Torch L940 Angle 20ct,” “Bic Lighter

Plain 50ct,” “Lighter Cheap 50ct.” Each picture also contains the initials “IWC” in

the top right corner of the box, which Mr. Shah confirmed stands for International

Wholesale Club.

Mr. Martin argues that the picture of lighters with the description “Lighter

Cheap 50ct” represented the MK lighters. He notes that Mr. Shah and Mr.

Vhargushastri testified that the only cheap lighters International Wholesale Club

sold at the time of the incident in 2017 were MK lighters. Mr. Martin claims

genuine issues of material fact exist as to whether International Wholesale Club

held itself out as a manufacturer of these lighters because it chose not to include

the manufacturer name “MK” next to the picture of the lighters, as it did with the

Fujita and BIC lighters on the page, and the only identifying information next to

the picture are the initials “IWC.”

In reply, International Wholesale Club argued that a picture on one page in

its catalog is not sufficient to defeat summary judgment when it did not label the

actual lighter with its name and did nothing to give the impression that it

manufactured the lighters. International Wholesale Club argued that MK lighters

and the packaging are only labeled with “MK” and “MK LIGHTER” and did not

refer to International Wholesale Club in any way. International Wholesale Club

argued that the photograph at issue in the catalog depicts a lighter, but it is not

specifically an MK lighter.4 Mr. Shah and Mr. Vhargushastri explained in their

4
The brand or manufacturer of the “cheap lighters” is not legible in the picture provided with the writ
application.

21-C-159 5

deposition testimony that International Wholesale Club did not specify a particular

brand for the cheap lighters pictured in the catalog because that category of product

was intended to encompass any lighters below the price point of Bic lighters,

which is a more expensive product. They both testified that at the time of the

incident in 2017, MK lighters were the only brand of cheap lighters International

Wholesale Club was selling and that International Wholesale Club’s customers

requested MK lighters by name. They further explained that International

Wholesale Club used a generic or vague description in the catalog for the cheaper

lighters to allow the possibility of selling different brands of cheap lighters if

necessary to meet customer requests.

International Wholesale Club also noted that all of the lighters pictured on

the catalog page, including those containing the brand names BIC and Fujima,

include the letters “IWC” in the upper right hand corner of each box, making it

unlikely that the letters would create the impression that it manufactured cheap

lighters. International Wholesale Club finally argued that Mr. Martin did not

provide any evidence that he ever saw the catalog or the specific page with the

picture and description at issue.

The trial court held a hearing on International Wholesale Club’s motion for

summary judgment on February 9, 2021. After listening to argument, the trial

court denied the motion and in its oral reasons stated that questions of material fact

existed on the following grounds:

And, as it relates to the India Imports' motion for summary
judgment, the Court is likewise denying the motion for summary
judgment based on the fact that the Court believes there are questions
of material fact as to whether or not under Louisiana Products
Liability Law, that International Wholesaler (sic) is potentially
considered a manufacturer in light of their own marketing materials
that specifically list the lighter not as an MK lighter, but as an IWC,
that at least has the IWC insignia next to it. This is marketing material
specifically produced by IWC for the sale of these particular lighters
and they market it under IWC. That, in this Court's mind again, raises

21-C-159 6

a question of fact as to whether or not IWC is considered the
manufacturer of these lighters under Louisiana law.

In its written judgment signed on March 3, 2021, the trial court ruled that

International Wholesale Club’s summary judgment motion was denied due to

questions of material fact as to whether International Wholesale Club “is

considered a manufacturer under the Louisiana Products Liability Act by holding

itself out to be an apparent manufacturer of the MK lighters.”

International Wholesale Club filed a timely writ application with this Court,

and after reviewing its arguments and Mr. Martin’s opposition, this Court issued an

order docketing the matter for additional briefing and argument pursuant to La.

C.C.P. art. 966(H).5 This Court specifically requested that the parties address the

application of the following standard set forth in a recent federal court decision,

Pablovich v. Rooms to Go Louisiana Corp., 20-617, 2021 WL 1401759, p. 4 (E.D.

La. Apr. 14, 2021), to determine whether a seller held itself out as a manufacturer:

‘Whether a holding out has occurred must be judged from the
viewpoint of the purchasing public, and in light of circumstances as of
the time of purchase.’ Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d
888, 896 (5th Cir. 2010) (quoting Hebel v. Sherman Equip., 92 Ill. 2d
368, 375, 442 N.E.2d 199, 203 (1982)).

We also requested that the parties address how the decision in Frierson v.

Spanset, Inc., 09-3153, 2010 WL 11537999 (E.D. La. Aug. 17, 2010), discussed

more fully below, may or may not apply to this case.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-

scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369

(La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is

5
La. C.C.P. art. 966(H) provides:

On review, an appellate court shall not reverse a trial court’s denial of a motion for
summary judgment and grant a summary judgment dismissing a case or a party without
assigning the case for briefing and permitting the parties an opportunity to request oral
argument.

21-C-159 7

favored and is designed to secure the just, speedy, and inexpensive determination

of every action. La. C.C.P. art. 966(A)(2). Under La. C.C.P. art. 966(D)(1), the

initial burden is on the mover to show that no genuine issue of material fact exists.

If the moving party will not bear the burden of proof at trial, the moving party must

only point out that there is an absence of factual support for one or more elements

essential to the adverse party's claim, action, or defense. Id. The nonmoving party

must then produce factual support sufficient to establish the existence of a genuine

issue of material fact or that the mover is not entitled to judgment as a matter of

law. Id. If the nonmoving party fails to do so, summary judgment should be

granted. Babino v. Jefferson Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d

1123, 1125.

In ruling on a motion for summary judgment, the judge’s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. All doubts

should be resolved in the non-moving party’s favor. Larson v. XYZ Insurance Co.,

16-745 (La. 5/3/17), 226 So.3d 412, 416. A fact is material if it potentially ensures

or precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. Id. A genuine issue is one as to which reasonable

persons could disagree; if reasonable persons could reach only one conclusion,

there is no need for a trial on that issue and summary judgment is appropriate. Id.

Appellate courts review a judgment granting or denying a motion for

summary judgment de novo. Ruel v. Dalesandro, 18-243 (La. App. 5 Cir. 7/9/19),

276 So.3d 626, 632. Thus, appellate courts ask the same questions the trial court

does in determining whether summary judgment is appropriate: whether there is

any genuine issue of material fact, and whether the mover is entitled to judgment

as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5

Cir. 11/29/11), 78 So.3d 849, 852.

21-C-159 8

The LPLA “establishes the exclusive theories of liability for manufacturers

for damage caused by their products.” La. R.S. 9:2800.52. In addition to the entity

that actually manufactures a product, the LPLA defines a manufacturer as one

“who labels a product as his own or who otherwise holds himself out to be the

manufacturer of the product.” La. R.S. 9:2800.53(1). This provision is commonly

referred to as the apparent manufacturer doctrine. This doctrine allows a plaintiff

to hold a seller or distributor liable for injuries caused by a product defect, when

the seller leads a reasonable consumer to believe that it is the manufacturer of the

product. See Meunier v. Home Depot U.S.A., Inc., 19-12141, 2021 WL 795878, p.

3 (E.D. La. May 2, 2021), citing Chevron USA, Inc. v. Aker Maritime, Inc., 604

F.3d 888, 895 (5th Cir. 2010); Frierson, p. 3, 2010 WL 11537999.

In the supplemental briefing requested by this Court, both Mr. Martin and

International Wholesale Club agree that under the apparent manufacturer doctrine

set forth in the LPLA, a court determines whether a seller held itself out as the

manufacturer of the product by considering the viewpoint of the purchasing public

and in light of the circumstances as of the time of purchase as set forth in

Pablovich, supra. After reviewing a broad range of cases decided by Louisiana

state and federal courts addressing the apparent manufacturer doctrine, we agree.

As explained above, Mr. Martin contends that International Wholesale Club

is liable as an apparent manufacturer, not because it placed a label identifying the

company in any way on the product, but because it placed its initials “IWC” on the

top corner of the picture of a brick of lighters identified as “Lighter Cheap 50ct” in

a catalog provided to its customers. Mr. Martin does not claim that he saw the

catalog at issue at Super Saver or at any time prior to the incident. Therefore, the

evidence does not indicate that International Wholesale Club held itself out as a

manufacturer of the MK lighter when analyzing the circumstances at the time Mr.

Martin purchased the MK lighter at Super Saver.

21-C-159 9

In his supplemental memorandum filed with this Court, however, Mr. Martin

expands his arguments and contends that when considering the evidence from the

purchasing public’s view, genuine issues of material fact exist as to the apparent

manufacturer issue because International Wholesale Club sold defective lighters

that 1) included the brand name “MK Lighter” and did not identify the Chinese

manufacturer, Zhuoye Lighter Company, Ltd.; 2) marketed the lighters in a catalog

as their own cheap lighters, and 3) distributed the catalogs out to the public at its

“brick and mortar store” where it sold MK lighters. Mr. Martin further cites to

Chevron, 688 F.3d at 896, for its finding that “[a]s a general rule, it takes very little

under Louisiana law to present a jury issue if a product does not bear the actual

manufacturer’s mark.”

We first address Mr. Martin’s argument that a genuine issue of material fact

exists because the MK lighter does not identify the actual manufacturer, Zhuoye

Lighter Company, Ltd. Before addressing the caselaw Mr. Martin cites to in

support of this argument, we must first consider that Mr. Martin did not introduce

any admissible evidence regarding a manufacturer of the lighter other than MK

Lighter Company. We recognize that in his initial petition, Mr. Martin alleges that

Zhuoye Lighter manufactured that MK lighter in China and that International

Wholesale Club was an affiliate that distributed the MK lighter. When Mr. Martin

filed his Supplemental Petition, however, he removed all references to Zhuoye

Lighter and replaced them with allegations naming MK Lighter Company as the

manufacturer of the MK lighter. Mr. Martin did not allege that International

Wholesale Club is an affiliate of MK Lighter Company, and did not re-allege,

incorporate or adopt any allegations from the original petition into his

21-C-159 10

Supplemental Petition. As a result, the Supplemental Petition is a superseding

petition that completely replaced all allegations contained in the original petition.6

Mr. Martin also argues that the present matter falls within a line of cases,

such as Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978), where the

product itself does not identify the actual manufacturer. In Chappuis, a Sears

Craftsman hammer chipped as the plaintiff was driving a nail and the metal

fragment lodged in the plaintiff’s eye. The hammer was manufactured by Vaughan

and Bushnell to Sears’ specifications, with Sears’ name and its “Craftsman”

trademark on the handle. Based on these facts, the Supreme Court determined that

Sears held the product out as its own and also recognized that due to the “size,

volume and merchandising practices of Sears,” it was within the class of

professional vendors presumed to know the defects in the products they sell. Id. at

930. Chappuis is completely distinguishable from the present matter because the

MK lighter contains the name of the manufacturer as alleged by Mr. Martin, the

lighter did not include International Wholesale Cub’s name or brand, the company

did not dictate any specifications for the lighter or its labeling, and Mr. Martin

presented no evidence to establish that International Wholesale Club is a

professional vendor of MK lighters.

Even if evidence existed regarding another manufacturer in addition to MK

Lighter Company, this issue is not relevant to the determination of whether

International Wholesale Club held itself out as the manufacturer. Mr. Martin has

not alleged that International Wholesale Club has any relationship or connections

to MK Lighter Company or any other manufacturer. Mr. Martin does not cite to

any law or jurisprudence requiring a distributor or seller to disclose the name of all

6
Louisiana courts have acknowledged that the wording used in an amending petition may have the effect
of superseding and replacing the allegations in an original petition. See Gereighty v. Domingue, 17-339
(La. App. 5 Cir. 5/30/18), 249 So.3d 1016, 1023, fn. 4 (finding that allegations in earlier reconventional
demand were abandoned when defendant filed a new reconventional demand that replaced all allegations
and did not re-allege or incorporate any allegations from prior pleadings); see also Santiago v. Tulane
University Hospital and Clinic, 12-1095 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 685-86.

21-C-159 11

entities involved in manufacturing a product to avoid liability as an apparent

manufacturer. This is simply not required under the LPLA. The inquiry is

whether International Wholesale Club labeled the product as its own or held itself

out as a manufacturer by engaging in actions that would lead a reasonable

consumer to believe it was a manufacturer. Furthermore, Mr. Martin presents no

evidence that International Wholesale Club had any knowledge regarding the name

of a manufacturer other than MK lighter.

Mr. Martin also argues that this Court should treat the failure to list the

manufacturer’s name next to the picture in the catalog as equivalent to the factual

circumstances considered in cases where the actual product does not bear the

manufacturer’s name. Consequently, Mr. Martin urges this Court to apply the

observation stated in Chevron, supra, that “it takes very little under Louisiana law

to present a jury issue if a product does not bear the actual manufacturer’s mark,”

to the present matter. The two Louisiana cases the Chevron court cites to in

support of its observation, however, involve situations where the product itself

contained absolutely no reference to the manufacturer. See Louviere v. Ace

Hardware Corp., 05-259 (La. App. 3 Cir. 11/2/05), 915 So.2d 999, 1002 (genuine

issue of material fact exists on manufacturer issue where price tag includes seller’s

name with no other labels on the product to indicate the identity of the

manufacturer); Cooke v. Fairmont Hotel Co., 90-4759 (E.D. La. 2/5/93), 1993 WL

35146 (shipping labels with wire supplier’s name and brief description of product

precluded summary judgment where the wire was not labeled with the name of the

manufacturer).

Accordingly, this matter does not fall within the line of cases where the

product itself contains no reference to the manufacturer, therefore requiring “very

little to create a jury issue.” Rather, this Court is presented with the opposite

scenario because the MK lighter clearly displays the manufacturer’s initials “MK”

21-C-159 12

at the top, the packaging in which the lighters are sold state “MK LIGHTER” on

several sides, and there is no reference to International Wholesale Club on the

product or the packaging. The pertinent inquiry for this Court, therefore, is

whether in light of these circumstances, the picture in the catalog creates a genuine

issue of material fact as to whether International Wholesale Club held itself out as

a manufacturer?

Not surprisingly, we found few cases where courts held a seller or distributor

liable when the product itself displayed the manufacturer’s name or brand and did

not contain any reference to the distributor or seller. The most prominent case we

identified is, Chevron, supra, which involved defective bolts. The bolts contained

the initials “OF” for the manufacturer, Oriental Fastener Co. Though the

distributor, Lone Star, did not manufacture the defective bolts and the bolts did not

include Lone Star’s name or mark, the court determined that the jury did not err in

holding Lone Star liable as a manufacturer because the evidence indicated Lone

Star was “‘well-known’ as a bolt manufacturer” and did not inform its customer

that the bolts it sold were not its own. 604 F.3d at 898. Furthermore, the shipping

box included Lone Star’s mark and the packing slip accompanying the bolts stated

they were either manufactured or distributed by Lone Star. Id. at 891.

In Media Production Consultants v. Mercedes-Benz of North America, Inc.,

262 So.2d 377, 380-81 (La. 1972), the court held a Mercedes-Benz distributor

liable as a manufacturer because the evidence indicated that the distributor led

American consumers to believe the distributor was the manufacturer. The

Louisiana Supreme Court based this determination on the fact the distributor had

exclusive rights to market the cars in the United States, and for selling, servicing

and establishing franchise dealerships. The distributor also inspected, adjusted and

prepared vehicles for sale prior to sending them to dealerships and included its

name in the owner’s manuals and service policies provided to purchasers of the

21-C-159 13

vehicles. Id. Furthermore, in Rutherford v. Coca–Cola Bottling Co. of Shreveport,

501 So.2d 1082 (La. App. 2nd Cir.1987), a consumer brought an action against the

local Coca-Cola bottler in Shreveport for injuries allegedly suffered after finding a

bug in a canned soft drink. The can’s label contained the names of the national

company, Coca-Cola, USA, and the cannery of the beverage, but not the name of

the local bottler, which was the distributor of all Coca-Cola products in Shreveport.

Nevertheless, the local bottler was held liable for the defect because the evidence

indicated that it held itself out as the manufacturer of Coca-Cola products in the

Shreveport area. Id. at 1085-86.

The common denominator in all three of these cases where the product itself

contained the actual manufacturer’s name or brand, and no reference to the

distributor, is that when viewed from the perspective of the purchasing public, the

courts found liability based on evidence that the distributor was also an actual

manufacturer of a similar product or evidence existed that the general public in the

area perceived the distributor to be a manufacturer of the product. There is no

evidence to support either of these scenarios in the present matter.

Because he did not see the catalog page at issue, Mr. Martin further argues

that this Court should not consider the circumstances as of the time of his purchase

as instructed by the jurisprudence cited above, but rather the Court should consider

all possible point of sale scenarios along the chain from the manufacturer to the

eventual consumer that uses the MK lighter. Based on this alternative analysis, he

contends that a genuine issue of material fact exists because the catalog was

available at International Wholesale Club’s warehouse and it sold the MK lighters

to the general public from this location.

First, after thoroughly reviewing the record presented by the parties, we find

no evidence that International Wholesale Club sold individual lighters to the

general purchasing public from its warehouse in Metairie. Mr. Shah and Mr.

21-C-159 14

Vhargushastri both testified that International Wholesale Club’s customers are

retail convenience stores, not the general public. Mr. Martin contends that the fact

International Wholesale Club operates a “cash and carry” business similar to Sam’s

Club indicates that it sells to the general purchasing public. However, this

assumption is contrary to the deposition testimony establishing that International

Wholesale Club sells lighters by the brick of 50 Mk lighters from the warehouse,

not on an individual basis. Mr. Shah further testified that International Wholesale

Club produced the catalog for its convenience store customers, not the general

purchasing public. Also, though the catalog was available at the warehouse, Mr.

Martin did not present any evidence indicating the catalog was provided to

customers with each sale that occurred at the warehouse. He also failed to provide

any evidence that any convenience store owners or operators believed International

Wholesale Club manufactured lighters.

Second, after reviewing relevant caselaw, Louisiana courts do not generally

consider the factual circumstances at issue when a distributor sells to another

retailer higher up in the chain of sales in order to determine whether the distributor

held itself out as a manufacturer. Instead, as indicated by the numerous cases

outlined above, courts review the circumstances at issue with respect to the person

or entity consuming or using the product at issue. In fact, in Frierson, supra, the

court recognized that under the LPLA, in order to find a distributor held itself out

as a manufacturer, there must be some evidence that a consumer could believe the

distributor was a manufacturer based on information included with the product at

the point of sale. Frierson, p. 3, 2010 WL 11537999.

Frierson is also similar in that the court considered the issue of whether a

marketing brochure created a genuine issue of material fact on the apparent

manufacturer issue. The plaintiffs in Frierson alleged that Mr. Frierson was

injured when he was attempting to secure cargo on his work truck with a winch bar

21-C-159 15

that unexpectedly broke. The winch bar was manufactured by Peak Power

Products7 and distributed by the defendant, Spanset, Inc. to a Truckpro auto parts

store. Truckpro in turn sold the winch bar to J&S Trucking, Mr. Frierson’s

employer. The plaintiffs filed suit against Spanset under the LPLA alleging that

the winch bar was defective and that Spanset was liable as a manufacturer.

The plaintiffs moved for summary judgment on the issue of whether Spanset

held itself out as an apparent manufacturer under the LPLA based on several pieces

of evidence. First, Spanset advertised the winch bar, as well as other products it

sold, in a brochure, and the Spanset name appeared on the page where the winch

bar appeared. Second, plaintiffs alleged that Spanset’s name was on the box in

which Spanset sent the bars to its vendors. Third, some of Spanset’s vendors, who

sold the winch bar, advertised it as a Spanset product. Finally, though the winch

bar did not bear any identifying marks regarding the manufacturer, Peak, or the

distributor, Spanset, Peak did mark the winch bar with an internal control number

“AB 6361,” as requested by Spanset. The bar was also marked with the word

“China.”

The Frierson court first considered whether a brochure which contained

Spanset’s name on the same page as the product established that Spanset was

holding itself out as a manufacturer of the winch bar. The court explained that it

could not locate “any case finding that the content of a distributor’s brochure, like

the one in this case, contributed to a finding that the distributor was a

‘manufacturer’ under the LPLA.” Id. at p. 2. The closest case the Frierson court

located was Bush v. J.C. Penney Co., 99-2692, 2002 WL 1160083, p. 2 (E.D. La.

May 29, 2002), where the court found a genuine issue of material fact existed as to

whether J.C. Penney held itself out as a manufacturer because the instructions that

accompanie[d] the lamp included language stating, “’[c]ongratulations on your

7
The full name of the manufacturer is Peak Power Products Ningbo Peak Industrial Company Limited.

21-C-159 16

new JCPenny [ ] floor lamp!’” The Frierson court emphasized that the “fact that

the instruction was included with the product was key to the court’s finding, and

makes it distinguishable from the instant case.” Id.

The Frierson court went on to find that a review of Louisiana cases applying

the LPLA indicated that in order to conclude that a distributor held itself out as a

manufacturer, the plaintiff must present evidence of information included with the

product at the point of sale that could lead a consumer to believe the distributor

was a manufacturer:

A review of cases applying the LPLA makes it clear that in order to
find that a distributor held itself out as a manufacturer, there must be
some evidence that a consumer could believe the distributor was a
manufacturer based on information included with the product at the
point of sale. See Allstate Ins. Co. v. Fred’s, Inc., 44,508 (La. App. 2
Cir. 3/17/10); 33 So.3d 976, 978; Louviere v. Ace Hardware Corp.,
05-259, p. 1 (La. App. 3 Cir. 11/2/05); 915 So.2d 999; Peterson v.
G.H. Bass and Co., 97-2843, p. 1 (La. App. 4 Cir. 5/20/98); 713 So.2d
806; Bush, 2002 WL 1160083, at *2; see also Matthews v. Wal-Mart
Stores, Inc., 97-0449, p. 2 (La. App. 4 Cir. 3/11/98); 708 So.2d 1248
(“Plaintiff testified that nothing on the lamp or the box it came in
identified the manufacturer.”). Spanset observes persuasively that if a
distributor is deemed a “manufacturer” of a product under the LPLA
simply because its logo appears in a brochure advertising that product,
then every distributor would be a “manufacturer.” There is no
evidence here that Spanset’s brochure was included with the winch
bar at the point of sale. The Spanset brochure is therefore not relevant
to whether it held itself out as a manufacturer of the winch bar.

Id. at pp. 2-3.

The Frierson court also determined that the boxes used to ship the winch

bars to vendors were not relevant because the plaintiffs did not present evidence

indicating that the winch bars were resold in the same box to consumers and

therefore, available to the consumer at the point of sale. Id. at p. 3. The court

further determined that the vendors’ actions in advertising the winch bar as a

Spanset product were not relevant to determining whether Spanset held itself out as

a manufacturer, unless the vendor’s actions were directed by Spanset. Id. at p. 4.

Finally, the court found that even though Spanset directed Peak to place a control

21-C-159 17

number on the winch bars, the evidence did not support a claim that Spanset was a

manufacturer under the LPLA because the control number did not contain

Spanset’s own name or logo. The court reached the conclusion that the control

number was irrelevant because it did not include information that would lead a

reasonable consumer to believe Spanset was the manufacturer of the winch bar. Id.

We recognize the Spanset case was in a different procedural posture because

the trial court was considering whether to grant summary judgment in favor of the

plaintiffs on the apparent manufacturer issue. However, we find the Spanset

court’s analysis of the information available to the consumer of the product at the

time of sale to be instructive to the circumstances at issue in the present matter.

There is simply no evidence to indicate that that alleged catalog page created for

International Wholesale Club’s convenience store customers was available at the

time consumers, such as Mr. Martin, were purchasing MK lighters and led

reasonable consumers to believe International Wholesale Club was a manufacturer

of MK lighters. We further recognize that all of the lighters pictured on the page

contained the initials IWC next to them.

Based on the foregoing, we find that the catalog page at issue does not create

a genuine issue of material fact as to International Wholesale Club’s status as an

apparent manufacturer. Accordingly, we grant International Wholesale Club’s writ

application, reverse the trial court’s ruling denying summary judgment on the issue

of whether International Wholesale Club can be held liable as an apparent

manufacturer and grant International Wholesale Club’s motion for summary

judgment on this issue.

WRIT APPLICATION GRANTED;
JUDGMENT REVERSED ON APPARENT
MANUFACTURER ISSUE AND SUMMARY
JUDGMENT GRANTED ON SAME ISSUE

21-C-159 18

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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21-C-159
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24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
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