     Case: 14-30362       Document: 00512885333         Page: 1     Date Filed: 12/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-30362                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
JORGE FERNANDEZ; RENEE FERNANDEZ,                                        December 30, 2014
                                                                            Lyle W. Cayce
               Plaintiffs - Appellants                                           Clerk

v.

TAMKO BUILDING PRODUCTS, INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-518


Before KING, JOLLY, and COSTA, Circuit Judges.
PER CURIAM:*
       Jorge Fernandez was a roofer. He fell and was injured severely when
the No. 15 felt underlayment on which he was working tore beneath his feet.
He and his wife sued the felt’s manufacturer, TAMKO Building Products, Inc.,
under the Louisiana Products Liability Act, La. Rev. Stat. Ann. § 9:2800.51–
60, alleging that TAMKO should have provided a proper and adequate warning
that the felt had a propensity to tear when used on steep-sloped roofs and that


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                       No. 14-30362
the felt on which he was working was defective in its construction or
composition. The district court dismissed the plaintiffs’ complaint on summary
judgment, and they appeal.
       We have reviewed the briefs, the pertinent portions of the record, and
the applicable provisions of Louisiana law.               Further, we have heard the
arguments of counsel. Still, we find no reversible error in the district court’s
grant of summary judgment. To prevail on their failure-to-warn claim, the
plaintiffs must show that the allegedly inadequate warning proximately
caused Fernandez’s injuries. See La. Rev. Stat. Ann. § 9:2800.54(A). This they
cannot do, for one essential reason: neither Fernandez nor anyone else
positioned to prevent Fernandez from using the No. 15 felt at issue read the
warning that TAMKO did provide. See Peart v. Dorel Juvenile Grp., 456 F.
App’x 446, 447–48 (5th Cir. 2012); Ortolano v. BDI Mktg., 05-989 (La. App. 5
Cir. 4/25/06); 930 So. 2d 192, 196–97. 1 This failure means that, because no
warning was read before using the product, the warning, inadequate as it
might have been, could not have been a cause of the injury suffered by the use
of the product.
       As for the plaintiffs’ construction-or-composition claim, we agree with
the district court that this claim fails because the plaintiffs have presented no
evidence “demonstrat[ing] . . . what [the] manufacturer’s specifications or
performance standards are” for No. 15 felt, see Welch v. Technotrim, Inc.,
34,355 (La. App. 2 Cir. 01/24/01); 778 So. 2d 728, 733, or what “otherwise
identical products manufactured by” TAMKO are like. See La. Rev. Stat.
§ 2800.55. Absent such evidence, the plaintiffs will not be able to show that



       1  The district court also dismissed the plaintiffs’ failure-to-warn claim on the ground
that Fernandez was a “sophisticated user” to whom TAMKO owed no duty to warn. Because
we hold that the failure-to-warn claim fails on causation grounds, we express no view on the
district court’s “sophisticated user” holding.
                                              2
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                                No. 14-30362
the No. 15 felt at issue “deviated in a material way from” the way in which it
should have been manufactured, and thus they will be unable to prevail on a
construction-or-composition theory. See id.
     For these reasons, the district court’s grant of summary judgment is
                                                                  AFFIRMED.




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