Full opinion text
ORDER & REASONS ELDON E. FALLON, District Judge. Before the Court are twelve motions: (1) a Motion for Summary Judgment (Rec. Doc. No. 145) filed by Defendant Radiator Specialty Company (“Radiator”); (2) a Motion for Partial Summary Judgment (Rec. Doc. No. 139) filed by Plaintiff Macie Wagoner; (3) a Motion for Summary Judgment (Rec. Doc. No. 154) filed by Defendant Exxon Mobil Corporation (“ExxonMobil”); (4) a Motion to Exclude Dr. Sheila Butler and Dr. Jack Saux and for Summary Judgment (Rec. Doc. No. 147) filed by Radiator; (5) a Motion to Exclude Dr. Butler and Dr. Saux and for Summary Judgment (Rec. Doc. No. 156) filed by ExxonMobil; (6) a Motion to Strike the Affidavit of Eric Wagoner, to Exclude Dr. Bhaskar Kura, and for Summary Judgment (Rec. Doc. No. 149) filed by Radiator; (7) a Motion to Exclude Dr. Kura and for Summary Judgment (Rec. Doc. No. 151) filed by Exxon-Mobil; (8) a Motion to Exclude Dr- Melvyn Kopstein (Rec. Doc. No. 150) filed by ExxonMobil; (9) a Motion to Exclude Dr. Kopstein (Rec. Doc. No. 152) filed by Radiator; (10) a Motion to Exclude Dr. David Pyatt (Rec. Doc. No. 140) filed by Plaintiff; (11) a Motion to Exclude Dr. Richard Monson and Dr. Ethan Natelson (Rec. Doc. No. 141) filed by Plaintiff; and (12) a Motion to Exclude Mr. John Spencer (Rec. Doc. No. 135) filed by Plaintiff. The Court, having heard the parties’ oral arguments and reviewed the submitted memoranda and applicable law, now issues this Order and Reasons. I. BACKGROUND This case arises out of the death of James Wagoner, Jr. on December 12, 2009, allegedly due to defects in products that contain benzene. In her Complaint, Plaintiff Macie Wagoner, who filed suit on behalf of herself and as the legal representative of the decedent, avers that as part of his work from the 1970s until 2008, the decedent frequently came into contact with products containing benzene and that as a result, he was chronically exposed to a toxic substance. Among the products that the decedent allegedly used is Liquid Wrench, which is manufactured by Defendant Radiator Specialty Co. (“Radiator”), and Varsol, which is manufactured by Defendant Exxon Mobil Corporation (“ExxonMobil”). Plaintiff alleges that as a result of chronic exposure to benzene, the decedent suffered from and eventually died of multiple myeloma (MM). In her Complaint, Plaintiff has asserted a number of claims against Defendants, including ones alleging design and warning defects. In their Answers, Defendants have denied liability. In March 2011, Radiator filed a motion for summary judgment, arguing that its Liquid Wrench product complied with the labeling requirements of the Federal Hazardous Substances Act (FHSA), 15 U.S.C. § 1261 et seq., and that as a consequence,. all of Plaintiffs claims are preempted. In June 2011, the Court granted the motion in part and denied it in part. The Court found that the Liquid Wrench product complied with the FHSA and its implementing regulations and that as a result, under the express preemption clause of the FHSA, it provided adequate warnings as a matter of state law. The Court accordingly granted summary judgment as to Plaintiffs failure-to-warn claims. However, the Court concluded that the FHSA neither expressly nor impliedly preempted Plaintiffs remaining claims because the FHSA is focused on the adequacy of warnings, and not product design. The Court therefore denied Radiator’s motion as to Plaintiffs remaining claims. II. PENDING MOTIONS The parties have now filed twelve motions. The following briefly summarizes the main contentions of the parties. 1. Radiator’s Motion for Summary Judgment (Rec. Doc. No. 145) Radiator has moved for summary judgment as to Plaintiffs remaining claims. Noting that Alabama law is applicable, Radiator argues that Plaintiffs remaining claims under the Alabama Extended Manufacturers’ Liability Doctrine (AEMLD) fail because the Court has found that the warnings on its Liquid Wrench product are adequate under both federal and state law. Radiator asserts that as a consequence, the warnings allow it to establish as a matter of law its assumption of risk defense. It also contends that adequate warnings otherwise preclude the finding that Liquid Wrench was an “unreasonably dangerous” product under the AEMLD. With respect to Plaintiffs non-AEMLD claims, Radiator has advanced two principal arguments. First, Radiator has suggested that the AEMLD subsumes these claims. Second, Radiator argues that Plaintiff has not adduced sufficient evidence to prevail on these claims. In particular, Radiator emphasizes that there is no evidence that it was negligent or wanton with respect to its Liquid Wrench product. Radiator concludes that summary judgment as to Plaintiffs nonAEMLD claims is therefore appropriate. Plaintiff has filed an opposition to this motion. Plaintiff agrees that Alabama law is applicable, but she contends that under the AEMLD, an adequate warning does not obviate a manufacturer’s liability. Plaintiff also argues that the AEMLD does not subsume her remaining claims and that she has adduced sufficient evidence to show negligence, wantonness, and fraud on the part of Radiator. 2. Plaintiffs Cross-Motion for Partial Summary Judgment (Rec. Doc. No. 139) Plaintiff has filed a cross-motion for partial summary judgment, which addresses only her AEMLD claims against Radiator. In her motion, Plaintiff argues that there is evidence that benzene poses a serious health risk, that there are inexpensive substitutes that could have been used to manufacture Liquid Wrench, and that Radiator knew of the dangerousness of the Liquid Wrench product that contained benzene. Plaintiff also asserts that there is no evidence to support any of the affirmative defenses that are available under the AEMLD, including the lack of causal relation, assumption of risk, and contributory negligence. Radiator has filed an opposition to this motion. It argues that Plaintiff’s motion for partial summary judgment should be denied for the reasons it has advanced in support of its own motion for summary judgment. 3. ExxonMobil’s Motion for Summary Judgment (Rec. Doc. No. 154) ExxonMobil has filed a motion for summary judgment, in which it has made several arguments. These contentions can be grouped as follows. First, ExxonMobil asserts that Plaintiff has not adduced evidence to show that Varsol had a warning, design, or manufacturing defect or that it was unreasonably dangerous per se under the applicable Louisiana law. Second, ExxonMobil asserts that Plaintiff has failed to provide evidence to sustain the finding of causation. It has made three specific arguments in this regard: 1) that there is no evidence that the decedent used the Varsol product that it manufactured, 2) that there is no evidence that the decedent read the warnings or labels on Varsol, and 3) that Plaintiffs allegation that the decedent suffered from and died of MM as a result of his use of Liquid Wrench precludes a finding of causation as to ExxonMobil. Plaintiff has filed an opposition to ExxonMobil’s motion. Plaintiff agrees that Louisiana law is applicable, but argues that she has adduced evidence to support her claim that Varsol had a warning, design, and manufacturing defect and that it was unreasonably dangerous per se. With respect to ExxonMobil’s arguments on causation, Plaintiff asserts that 1) there is evidence that the decedent used the Varsol product manufactured by ExxonMobil, 2) that the applicable Louisiana law establishes a presumption that an adequate warning would have been heeded and that ExxonMobil has not rebutted that presumption, and 3) that ExxonMobil misunderstands the law in arguing that her claim against Radiator precludes a finding of causation with respect to her claim against ExxonMobil. 4.Radiator’s Motion to Exclude Dr. Sheila Butler and Dr. Jack Saux and for Summary Judgment (Rec. Doc. No. 147) Radiator has moved to exclude Dr. Butler and Dr. Saux under Federal Rule of Evidence 702. These two doctors have been retained by Plaintiff to offer an opinion on both aspects of the causation inquiry in this toxic tort case: general causation — whether benzene exposure can cause MM — and specific causation — whether benzene exposure caused MM in the decedent. Radiator has presented three main contentions in support of its request to exclude Dr. Butler and Dr. Saux. First, it asserts that the two doctors are not qualified to render an expert opinion on the question of general causation. It notes that the question of whether benzene can cause MM is one that must be resolved by reference to epidemiological studies. Radiator observes that neither Dr. Butler nor Dr. Saux is an epidemiologist or a toxicologist. Second, Radiator argues that the two doctors’ opinion regarding general causation lacks a reliable foundation. Radiator asserts that their opinion regarding the presence of an association between benzene and MM rests on an unreliable or irrelevant basis because 1) they undertook an incomplete review of the relevant literature and 2) the studies on which they did rely are either not specifically related to benzene or fail to show statistically significant results. In addition, Radiator complains that in making the further determination of whether an association actually entails a causal relationship, the two doctors failed to satisfy all of the Bradford Hill criteria, including the criterion of biological plausibility. Third, Radiator also objects to the two doctors’ opinion on the question of specific causation. According to Radiator, neither of the doctors ruled out other potential causes of MM in the decedent, and neither considered the possibility that the cause of MM in the decedent is simply unknown. Finally, Radiator has requested summary judgment in conjunction with this evidentiary motion. It notes that if Dr. Butler and Dr. Saux are excluded, then Plaintiff has no witnesses on the issues of general and specific causation. Radiator argues that the absence of competent evidence on causation would make summary judgment appropriate. Plaintiff has filed an opposition to Radiator’s motion. First, Plaintiff argues that Dr. Butler and Dr. Saux are qualified to render an opinion on general causation. Second, Plaintiff states that in rendering their opinion on general causation, the two doctors relied on studies showing statistically significant associations between benzene and MM. Third, Plaintiff contends that Dr. Butler and Dr. Saux undertook a sufficiently broad review of the relevant literature. Fourth, Plaintiff asserts that the two doctors also correctly applied the Bradford Hill criteria and that, in the alternative, the criteria merely guides, but does not control the question of whether a causal relationship underlies an association. Fifth, Plaintiff states that the two doctors did rule out alternative causes in providing their opinion on specific causation. 5. ExxonMobil’s Motion to Exclude Dr. Butler and Dr. Saux and for Summary Judgment (Rec. Doc. No. 156) ExxonMobil has also moved to exclude Dr. Butler and Dr. Saux and, in doing so, has made arguments that are substantially similar to those of Radiator. ExxonMobil’s contentions touch upon the two doctors’ qualifications, the studies on which they relied to render their opinion on general causation, their Bradford Hill analysis, and their consideration of alternative causes for their opinion on specific causation. ExxonMobil has also requested summary judgment. It notes that if Dr. Butler and Dr. Saux are excluded, then Plaintiff has no witnesses on the issues of general and specific causation. ExxonMobil argues that summary judgment would therefore be appropriate. Plaintiff has filed an opposition, presenting essentially the same arguments that she has made in opposition to Radiator’s motion. 6. Radiator’s Motion to Strike Affidavit of Eric Wagoner, to Exclude Bhaskar Kura, and for Summary Judgment (Rec. Doc. No. 149) In this motion, Radiator asks the Court to strike the affidavit of Eric Wagoner, to exclude Dr. Kura’s expert testimony, and to grant summary judgment in its favor. Radiator notes that Eric Wagoner is one of the decedent’s brothers and that Mr. Wagoner testified at a deposition in October 2010 regarding the decedent’s work as a mechanic while in Alabama. In particular, Mr. Wagoner’s testimony related to the amount of Liquid Wrench that the decedent used, as well as the amount of ventilation at the workplace. Radiator states that after the deposition, Mr. Wagoner provided an affidavit in which he gave inconsistent statements about the amount of Liquid Wrench used and the amount of ventilation at the workplace. Radiator asserts that because Mr. Wagoner has failed to justify this change in testimony, the affidavit must be stricken under the sham affidavit doctrine. Radiator also argues that Dr. Kura’s testimony should be excluded under Rule 702. In this case, Dr. Kura has been retained by Plaintiff to offer an opinion regarding, inter alia, 1) the decedent’s exposure to benzene as a result of using Liquid Wrench and 2) the amount of benzene in Liquid Wrench. In its motion, Radiator argues that neither opinion is reliable. As to the decedent’s exposure to benzene, Radiator asserts that Dr. Kura 1) relied on the sham affidavit of Eric Wagoner and 2) otherwise made assumptions about the decedent’s work condition that are not reflected in the proffered evidence. As to his calculation of the content of benzene in the Liquid Wrench product, Radiator asserts that Dr. Kura employed a dubious method to ascertain that amount. Radiator argues that under these circumstances, Dr. Kura’s testimony must be excluded. Plaintiff has filed an opposition to Radiator’s motion. Plaintiff argues that Eric Wagoner’s affidavit does not contradict his deposition testimony. According to Plaintiff, it merely clarifies the testimony. As to Dr. Kura’s calculation of the amount of benzene in Liquid Wrench, Plaintiff argues that it rests on a sound methodology. And with respect to Dr. Kura’s assessment of the decedent’s exposure to benzene, Plaintiff argues that all of his factual assumptions are grounded in the proffered evidence, including Eric Wagoner’s deposition testimony and his affidavit. 7. ExxonMobil’s Motion to Exclude Dr. Kura and for Summary Judgment (Rec. Doc. No. 151) Dr. Kura was also retained by Plaintiff in connection with her claims against ExxonMobil. More specifically, Dr. Kura was asked to render an opinion as to 1) the adequacy of the warnings for Varsol and 2) the decedent’s exposure to benzene as a result of Varsol. In its motion, ExxonMobil asks the Court to exclude Dr. Kura’s testimony regarding both of these subjects. As to the adequacy of the Varsol warnings, ExxonMobil argues that 1) Dr. Kura is not qualified to render an opinion on product labeling and 2) Dr. Kura did not identify or apply any appropriate methodology in concluding that the warnings are inadequate. As to Dr. Kura’s determination of the decedent’s exposure to benzene as a result of Varsol, ExxonMobil advances several arguments. First, ExxonMobil argues that if the Court grants its separate motion to exclude Dr. Melvyn Kopstein, then Dr. Kura’s testimony must also be excluded. This is because Dr. Kura relied on Dr. Kopstein’s calculation of the benzene content of Varsol in making the exposure assessment for the decedent. Second, ExxonMobil asserts that Dr. Kura’s opinion is not reliable because there is no evidence that the decedent actually used Varsol. Third, ExxonMobil contends that Dr. Kura’s calculation is also unreliable because he erroneously assumed that Dr. Kopstein’s calculation of the average exposure concentration of benzene from Varsol represents a time-weighted average. Plaintiff has filed an opposition to ExxonMobil’s motion. First, Plaintiff argues that Dr. Kura has substantial experience in environmental engineering that makes him qualified to render an opinion on the question of the adequacy of warnings. Second, Plaintiff argues that there is evidence that the decedent used Varsol. Third, Plaintiff asserts that Dr. Kura’s assessment of the decedent’s exposure to benzene as a result of Varsol is sound. 8.ExxonMobil’s Motion to Exclude Melvyn Kopstein (Rec. Doc. No. 150) Dr. Kopstein has been retained by Plaintiff to render an opinion on the benzene content of Varsol. In its motion, ExxonMobil argues that Dr. Kopstein’s testimony should be excluded in all respects. First, ExxonMobil stresses that some of the opinions expressed by Dr. Kopstein are not appropriate subjects for expert testimony. In particular, according to ExxonMobil, in addressing ExxonMobil’s testing of Varsol, Dr. Kopstein sought to ascertain the credibility of ExxonMobil personnel and otherwise commented on ExxonMobil’s litigation strategy. Second, ExxonMobil briefly notes that Dr. Kopstein was not present at the time that ExxonMobil tested Varsol and thus does not have a basis upon which to opine on the validity of the testing. Third, as to Dr. Kopstein’s calculation of the benzene content of Varsol, ExxonMobil states that Dr. Kopstein employed an unreliable methodology. According to ExxonMobil, Dr. Kopstein determined the amount of benzene in Varsol not by testing the product but by reviewing various literature, which address mineral spirits and not Var-sol specifically. Plaintiff has filed an opposition to ExxonMobil’s motion. First, Plaintiff argues that the material that Dr. Kopstein considered in determining the amount of benzene in Varsol is of the type normally relied upon by experts. Second, Plaintiff asserts that ExxonMobil’s argument regarding the absence of Dr. Kopstein from the testing is disingenuous. Plaintiff states that Exxon-Mobil itself did not allow Dr. Kopstein to witness the testing and that in any event, it is not necessary for an expert to observe a test in person in order to be able to opine on its soundness. Third, Plaintiff asserts that in discussing the reliability of ExxonMobil’s documents regarding Varsol, Dr. Kopstein addressed subjects that are appropriate for expert testimony. 9. Radiator’s Motion to Exclude Dr. Kopstein (Rec. Doc. No. 152) As noted, Dr. Kopstein has been retained by Plaintiff to render an opinion regarding her claims against ExxonMobil specifically. Radiator has filed a motion asking that Dr. Kopstein be precluded from providing testimony regarding Liquid Wrench and/or Radiator. In her response, Plaintiff has indicated that Dr. Kopstein will not offer an opinion regarding Liquid Wrench and/or Radiator in this case. 10. Plaintiffs Motion to Exclude Dr. David Pyatt (Rec. Doc. No. 140) Dr. David Pyatt, a toxicologist, has been retained by Defendants to render an opinion on the question of general causation. In her motion, Plaintiff argues that Dr. Pyatt’s opinion that there is insufficient epidemiological evidence for the proposition that benzene can cause MM should be excluded because it is unreliable. According to Plaintiff, some of the studies upon which Dr. Pyatt relied do not mention benzene or MM, and the studies that do discuss benzene do not involve a quantitative evaluation of benzene exposure. Plaintiff also states that in rendering his opinion, Dr. Pyatt ignored studies that find a statistically significant relationship between benzene exposure and MM. Separately, Plaintiff asks that Dr. Pyatt be precluded from testifying as to subjects not covered by his expert report, such as the link between obesity and MM. Plaintiff invokes Federal Rule of Civil Procedure 37 for this request. Defendants oppose the motion. Defendants argue that Dr. Pyatt undertook an appropriate review of the literature to address the question of general causation. With respect to the proposed testimony regarding the link between obesity and MM, Defendants state that the subject was discussed at Dr. Pyatt’s deposition, that the material on which Dr. Pyatt relied to opine on obesity and MM was made available to Plaintiff before the close of the expert discovery deadline, and that the continuance of the trial dates in this case will give Plaintiff an opportunity to re-depose Dr. Pyatt and to prepare rebuttal testimony. 11. Plaintiffs Motion to Exclude Dr. Richard Monson and Dr. Ethan Natelson (Rec. Doc. No. 141) Dr. Richard Monson, an epidemiologist, and Dr. Natelson, a hematologist, have also been retained by Defendants to offer an opinion on general causation. In her motion to exclude, Plaintiff raises arguments that are essentially the same as those that she makes with respect to Dr. Pyatt. Plaintiff contends that the opinion of Dr. Monson and Dr. Natelson about the question of general causation is unreliable because their review of the relevant literature is flawed. Plaintiff also asks that these two doctors be precluded from providing testimony regarding the link between obesity and MM. Defendants oppose the motion. With respect to the two doctors’ testimony on general causation, Defendants advance substantially the same observations as those in their opposition to Plaintiffs motion to exclude Dr. Pyatt. With regard to the subject of obesity, Defendants note that neither Dr. Monson nor Dr. Natelson intends to address that topic at trial. 12. Plaintiffs Motion to Exclude Mr. John Spencer (Rec. Doc. No. 135) Mr. Spencer, an industrial hygienist, has been retained by Defendants to opine primarily on the amount of benzene to which the decedent was exposed as a result of Liquid Wrench and Varsol. Plaintiff seeks to exclude Mr. Spencer’s testimony with respect to both Defendants. With regard to Radiator, Plaintiff argues that Mr. Spencer erred in disregarding an estimate of benzene exposure that was apparently made in a facility manufacturing Liquid Wrench; incorrectly criticized Dr. Kura’s calculation of the amount of benzene in Liquid Wrench; made incorrect assumptions about the decedent’s use of Liquid Wrench; and erred in rejecting Dr. Kura’s calculation of the decedent’s dermal exposure to benzene. With regard to Exxon-Mobil, Plaintiff also argues that Mr. Spencer was incorrect in rejecting Dr. Kura’s dermal exposure assessment and that he erred in determining the amount of benzene that was in Varsol. Plaintiff also contends that Mr. Spencer is not qualified to render an opinion on general causation. Defendants oppose Plaintiffs motion. In its brief, Radiator notes that during his deposition, Mr. Spencer provided an adequate explanation as to why he has refused to give weight to the benzene exposure assessment made in the manufacturing facility; that his determination of the amount of benzene in Liquid Wrench is sound; that in rendering his opinion, he considered all of the testimony regarding the facts surrounding the decedent’s use of Liquid Wrench; and that he also properly explained why, in his view, Dr. Kura’s dermal exposure assessment is flawed. In its separate brief, ExxonMobil echoes Radiator’s argument that Mr. Spencer properly explained his rejection of Dr. Kura’s dermal exposure assessment. ExxonMobil also states that Mr. Spencer is qualified to render an opinion on general causation and that he did not err in opining on the amount of benzene in Varsol. The Court will discuss the above motions in turn. III. LAW AND ANALYSIS A. Standard of Review for Motions for Summary Judgment A district court can grant a motion for summary judgment only when the “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, the district court “will review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). The court must find “[a] factual dispute [to be] ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party [and a] fact [to be] ‘material’ if it might affect the outcome of the suit under the governing substantive law.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995) (citing Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative,” summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). B. Radiator’s Motion for Summary Judgment (Rec. Doc. No. 145) and Plaintiffs Cross-Motion for Partial Summary Judgment (Rec. Doc. No. 139) As noted above, Radiator has moved for summary judgment as to Plaintiffs remaining claims against it. Noting that Alabama law is applicable, Radiator argues that Plaintiffs remaining claims under the Alabama Extended Manufacturers’ Liability Doctrine (AEMLD) fail because the Court has found that the warnings placed on the Liquid Wrench product are adequate as a matter of federal and state law. Radiator asserts that the warnings allow it to establish as a matter of law its assumption of risk defense and that they otherwise preclude the finding that Liquid Wrench was an “unreasonably dangerous” product. Radiator also argues that the AEMLD subsumes Plaintiffs remaining non-AEMLD claims and that Plaintiff has otherwise failed to adduce sufficient evidence to support those claims. Plaintiff has filed a cross-motion for partial summary judgment, contending that she is entitled to judgment as a matter of law on her AEMLD claims. 1. The applicable law As the Court is sitting in diversity, the threshold question of the choice of law is to be resolved by reference to the conflict-of-law rules of Louisiana. See Houston N. Hosp. Prop. v. Telco Leasing, Inc., 680 F.2d 19, 21 (5th Cir.1982). Under those rules, if the injured person was not domiciled in Louisiana at the time of the alleged injury, the state whose law is applicable is determined by evaluating the “pertinent contacts” of the states whose policies might be implicated by the case. See La. Civ.Code art. 3542. Here, it is undisputed that Plaintiffs claims against Radiator arise out of the decedent’s work as a mechanic in Alabama during the 1970s. It is also undisputed that at that time, the decedent was a resident of Alabama. The parties are correct in suggesting that Alabama law applies to Plaintiffs claims against Radiator. 2. Plaintiffs AEMLD Claims a. The AEMLD — The Alabama Supreme Court discussed the Alabama Extended Manufacturers’ Liability Doctrine (AEMLD) in the two companion cases of Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976). The Alabama Supreme Court held that to establish liability under the AEMLD, a plaintiff must show that 1) “he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer,” 2) “the seller was engaged in the business of selling such a product,” and 3) the product “was expected to, and did, reach the [plaintiff] without substantial change in the condition in which it was sold.” Atkins, 335 So.2d at 141; Casrell, 335 So.2d at 132-33. In so holding, the Alabama Supreme Court largely adopted Section 402A of the Second Restatement of Torts. See Atkins, 335 So.2d at 143 (noting that a plaintiffs prima facie case “is established when the plaintiff proves substantially the elements set out” in Section 402A). Nonetheless, the court insisted that unlike the Restatement, which provides for strict liability, see Restatement (Second) of Torts § 402A (1965), a claim under the AEMLD is one that sounds in negligence, see Atkins, 335 So.2d at 141 (“We simply hold that selling a dangerously unsafe product is negligence as a matter of law.”); Casrell, 335 So.2d at 132 (‘We do not intend to impose a no-fault concept.”). In addition to laying out the elements of a plaintiffs claim under the AEMLD, the Alabama Supreme Court also held that a number of defenses are available. See Atkins, 335 So.2d at 143; see also Casrell, 335 So.2d at 134. The court explained that a defendant may establish a general denial defense, whereby it shows that the plaintiff has not proven an element of his prima facie case. See Atkins, 335 So.2d at 143; see also Casrell, 335 So.2d at 134. The court also held that a defendant may assert several affirmative defenses, including the lack of causal relation, assumption of risk, and contributory negligence. See Atkins, 335 So.2d at 143; see also Casrell, 335 So.2d at 134. In this case, Radiator argues that it cannot be held liable under the AEMLD because the warnings that it provided on the Liquid Wrench product have been found to be adequate as a matter of law. Radiator correctly notes that this Court has found that the warnings that appeared on the Liquid Wrench product comply with the requirements of the FHSA. The Court has also held that as a result, under the express preemption provision of the FHSA, the warnings are adequate as a matter of state law. Radiator is correct in arguing that in light of these findings, it cannot be held liable under the AEMLD. But this conclusion requires further elaboration. b. Adequate warnings and assumption of risk — In the course of discussing the affirmative defense of assumption of risk, the Alabama Supreme Court in Atkins stated that “[t]he defendant may establish that ... [it] adequately warned the consumer of the danger.” Atkins, 335 So.2d at 143. In other words, according to the court, the presence of an adequate warning may support the finding that by using the product, the plaintiff assumed the risk of injury. See id. In its brief, Radiator relies on this notion to argue that it has established as a matter of law the affirmative defense of assumption of risk and that accordingly, it is entitled to summary judgment on Plaintiffs remaining AEMLD claims. This contention is not persuasive. Since Atkins, the Alabama Supreme Court has had the opportunity to elaborate on the nature of the defense of assumption of risk. It has emphasized that to prevail on this defense, a defendant must prove that “the plaintiff had knowledge of, and an appreciation of, the danger [he] faced.” Ex Parte Potmesil, 785 So.2d 340, 343 (Ala.2000). In this inquiry, “the plaintiffs state of mind is determined by [a] subjective standard.” McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991) (emphasis added). In other words, “assumption of the risk proceeds from the injured person’s actual awareness of the risk.” Id. (emphasis added). The defense is not established “[i]n cases where the defendant fails to show that the plaintiff subjectively appreciated the danger.” Ex Parte Potmesil, 785 So.2d at 343. The relationship between assumption of risk and product warnings was addressed in the Alabama Supreme Court’s subsequent decision in Horn v. Fadal Machining Centers, LLC, 972 So.2d 63 (Ala.2007). In that case, the decedent was operating a milling machine when a cutting tool in the milling machine broke and flew out of the machine, striking the decedent in the throat. Id. at 67-68. The manual for the machine, as well as warning stickers on the machine, warned that the machine was not to be operated with its doors open. Id. The defendant argued that its warnings were adequate and that by failing to heed the warnings, the decedent assumed the risk of injury. Id. at 74. The Alabama Supreme Court was unpersuaded. Id. at 74-75. The court reiterated that the key to the defense of assumption of risk is the plaintiffs subjective awareness of the particular risk that caused the injury. See id. at 75. Thus, an assumption of risk defense is established if 1) the warning covers the risk that underlies the action and 2) the warning was in fact read by the injured person. See id. at 75-79. In Horn, the court found that 1) it was unclear whether the warning could be understood to refer to the specific risk that was at issue, see id. at 77-78, and 2) the defendant had failed to present evidence that the decedent had previously read the manual, id. at 79. The court therefore declined to hold that the defendant had established as a matter of law the defense of assumption of risk. Id. The Alabama Supreme Court’s analysis in Horn makes it clear that as Atkins indicated, “the presence of an adequate warning may be part of a defendant’s assumption of the risk defense.” Id. at 74 (internal citation omitted) (emphasis added). However, it demonstrates that the adequacy of a warning for the purpose of establishing the affirmative defense is not the same as the adequacy of a warning for the purpose of undermining a prima facie case for a warning-defect claim. To enable a defendant to prevail on the affirmative defense of assumption of risk, a warning must be of such specificity that it conveyed to the injured person an “actual awareness of the risk” that underlies the claim. Id. at 75 (quoting McIsaac, 587 So.2d at 324). For a warning to undermine the prime facie case for a warning-defect claim, however, it merely needs to be the result of the “exercise [of] reasonable diligence” on the part of the defendant. King v. S.R. Smith, Inc., 578 So.2d 1285, 1287 (Ala.1991). Here, Radiator’s attempt to prevail as a matter of law on the affirmative defense of assumption of risk falls short. Although it is true that this Court has found that the warnings on the Liquid Wrench product are adequate to defeat Plaintiffs failure-to-warn claims, the warnings do not convey anything more than a “general awareness” that Liquid Wrench may pose a danger. Horn, 972 So.2d at 77. Moreover, Radiator has not pointed to evidence that the decedent, in fact, read the warnings on the Liquid Wrench product. Cf. id. at 79. Thus, Radiator has not shown that its warnings gave the decedent “a conscious appreciation or actual awareness of the specific danger [that has been] made the basis of this action,” namely blood disorders such as MM. Id. at 77 (internal quotation marks omitted). Under these circumstances, Radiator has not established as a matter of law its affirmative defense of assumption of risk. c. Adequate warnings and design defects — The question remains as to whether the finding of this Court that the warnings attached to the Liquid Wrench product are adequate for the purpose of Plaintiffs failure-to-warn claims should otherwise preclude liability with respect to Plaintiffs remaining AEMLD claim. As Plaintiffs own motion for partial summary judgment indicates, her remaining AEMLD claim is one that alleges a design defect in Liquid Wrench. According to Plaintiff, Liquid Wrench could have been designed without using benzene in order to make it equally effective, but safer. In its brief, however, Defendant asserts that its adequate warnings obviated any danger posed by the Liquid Wrench product. Thus, the question that remains is whether the presence of adequate warnings defeats Plaintiffs claim of a design defect. The answer is in the affirmative. As one federal court foretold, it is the case that under the AEMLD, “a defendant who convinces the factfinder that a warning label was adequate may not be held liable.” Pitts v. Dow Chem. Co., 859 F.Supp. 543, 551 (M.D.Ala.1994). Indeed, in Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28 (Ala.2003), the Alabama Supreme Court held that “even if’ cigarettes are “unreasonably dangerous,” it is the case that “liability under the AEMLD is ‘obviated by [the presence of] an adequate warning.’ ” Id. at 34 (per curiam) (quoting Casrell, 335 So.2d at 133) (emphasis added). In other words, even if there is a safer design that could reasonably be implemented to eliminate a risk of danger, the presence of an adequate warning obviates any duty on the part of the manufacturer to implement such a design. To be sure, whether a warning is adequate is often a contested issue of fact that is to be determined by the jury. See, e.g., Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 217 (Ala.1994); Bean v. BIC Corp., 597 So.2d 1350, 1353-54 (Ala.1992); Deere & Co. v. Grose, 586 So.2d 196, 199 (Ala.1991). Here, however, the Court has found, as a matter of federal law, that the Liquid Wrench product had the warnings required under the FHSA and its implementing regulations. The Court has also held that as a consequence, under the express preemption provision of the FHSA, the warnings are adequate as a matter of state law. The presence of adequate warnings therefore precludes liability under the AEMLD. See Tillman, 871 So.2d at 34; Pitts, 859 F.Supp. at 551. The Alabama Supreme Court’s approach to this issue in Tillman is in stark contrast to that of the Restatement. Under the Restatement, the fact that a defendant has prevailed on a warning defect claim does not necessarily mean that it cannot be held liable for a design defect. See Restatement (Third) of Torts: Products Liability § 2 cmt. 1 (1998). It is only “when an alternative design to avoid risks cannot reasonably be implemented” — in other words, when a product is unavoidably unsafe — that “adequate instructions and warnings” will preclude liability. Id. This rule has the salutary effect of ensuring that risks be designed away whenever it is reasonable to do so. Id. It helps to minimize and even eliminate any residual risk that remains after the placement of an otherwise adequate warning. Id. In Casrell, the Alabama Supreme Court hinted at this approach when it stated in the course of discussing what makes a product “unreasonably dangerous” that the “danger may be obviated by an adequate warning.” Casrell, 335 So.2d at 133 (emphasis added). By using the word “may,” the court indicated that while there are certainly cases where a product cannot be deemed “unreasonably dangerous” because it carries “an adequate warning,” there are also cases where a product can be deemed “unreasonably dangerous” despite having an adequate warning. Id. As noted, this is consistent with the Restatement’s approach to the question of whether an adequate warning may defeat a design defect claim. Subsequent cases hewed to this approach. In Stone v. Smith, Kline & French Laboratories, 447 So.2d 1301 (Ala. 1984), the court held that adequate warnings precluded the plaintiff from establishing that the product was “unreasonably dangerous.” Id. at 1304. But it recognized that the product at issue was “unavoidably unsafe.” See id. Similarly, in Yarbrough v. Sears, Roebuck & Co., 628 So.2d 478 (Ala.1993), the Alabama Supreme Court held that the product could not be deemed “unreasonably dangerous” in part because of the warnings on the product. Id. at 481, 482. The court, however, also rested its holding on the fact that the plaintiff had failed to show that any risk inherent in the product could be designed away — in other words, that there was a design defect. Id. at 482. The court’s holding in Tillman — that an adequate warning, in and of itself, precludes a design defect claim — therefore represents not only a significant departure from the Restatement, but also a shift from the court’s prior precedents. Under our federal system, however, “the highest court of the state is the final arbiter of what is state law.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940). And this Court is “bound to follow the latest decision ... of the [Alabama] Supreme Court.” Melvin v. Loots, 23 So.3d 666, 671 (Ala.Civ.App.2009) (quoting State v. Bilotta, 522 So.2d 300, 301 (Ala.Civ.App.1988)). As noted above, the presence of adequate warnings precludes AEMLD liability. Accordingly, Radiator’s motion must be granted with respect to Plaintiffs remaining AEMLD claim. 3. Plaintiffs Non-AEMLD Claims a. Whether the claims are subsumed under the AEMLD — In its motion, Radiator argued that Plaintiffs non-AEMLD claims merge with her AEMLD claims. In support of this proposition, Radiator cited to Wakeland v. Brown & Williamson Tobacco Corp., 996 F.Supp. 1213 (S.D.Ala.1998). There, the court concluded that the AEMLD subsumes non-AEMLD claims, such as common-law negligence. Id. at 1217. The decision in Wakeland, it is worth noting, is not the only one that, in the past, concluded that negligence and other non-AEMLD claims are subsumed under the AEMLD. See, e.g., Grimes v. Gen. Motors Corp., 205 F.Supp.2d 1292, 1294 (M.D.Ala.2002); Brock v. Baxter Healthcare Corp., 96 F.Supp.2d 1352, 1356 n. 2 (S.D.Ala.2000). As Radiator acknowledged at oral argument, however, reliance on Wakeland is misplaced. In Tillman, the Alabama Supreme Court held that the AEMLD does not subsume other common-law actions, such as ones that allege negligence and wantonness. See Tillman, 871 So.2d at 34-35 (per curiam). Since then, the court has adhered to that holding. See, e.g., Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 102 (Ala.2004). As noted above, “the highest court of the state is the final arbiter of what is state law.” West, 311 U.S. at 236, 61 S.Ct. 179. The Alabama Supreme Court’s conclusion that negligence and other non-AEMLD claims do not merge with the AEMLD precludes summary judgment on the ground asserted by Radiator. b. Whether sufficient evidence has been proffered — Radiator has raised the separate contention that the proffered evidence is insufficient to sustain Plaintiffs non-AEMLD claims. In response, Plaintiff argues that she has adduced evidence to support her claims of negligence, wantonness, and fraud. The Court will address these in turn. i. Negligence: The Alabama Supreme Court has recognized that common-law negligence is a theory available to a plaintiff in a product liability case. See, e.g., Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 237-38 (Ala.1995). “Negligence is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something that a reasonably prudent person would not have done under the same or similar circumstances.” Id. at 238 (citing Elba Wood Prods., Inc. v. Brackin, 356 So.2d 119 (Ala.1978)). “To recover under a negligence claim, the plaintiff must establish (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the plaintiff suffered a loss or an injury; and (4) that the defendant’s negligence was the actual and proximate cause of that loss or injury.” Id. (citing Lollar v. Poe, 622 So.2d 902 (Ala.1993)). In this case, Radiator does not dispute that it owed to the decedent a duty to exercise reasonable care with respect to its Liquid Wrench product. The rule that “a manufacturer may be liable for negligence to remote users has been long-established in Alabama.” Medley v. United States, 480 F.Supp. 1005, 1009 (M.D.Ala.1979) (citing Crane Co. v. Davies, 242 Ala. 570, 8 So.2d 196 (1942); Miles v. Chrysler Corp., 238 Ala. 359, 191 So. 245 (1939)). Nor has Radiator suggested that Plaintiff has not suffered a loss or an injury, although, to be sure, the precise amount of Plaintiffs damages may be in dispute. Instead, Radiator’s principal argument is that Plaintiff has not adduced any evidence showing that it breached its duty to exercise reasonable care. In response, however, Plaintiff has pointed to evidence that could support a finding of negligence. Indeed, there is evidence that at the relevant time, Radiator used Raffinate, which was produced by U.S. Steel Corporation, to manufacture the non-deodorized version of Liquid Wrench. Pl.’s Ex. 15 (Rec. Doc. No. 251-15 at 3-4); Pl.’s Ex. 19 (Rec. Doc. No. 251-19 at 4). There is also evidence that in the spring of 1963, Radiator asked U.S. Steel to specify the amount of benzene in Raffinate, Pl.’s Ex. 18 (Rec. Doc. No. 251-18 at 1), and that, in response, U.S. Steel informed Radiator that the estimated benzene content of Raffinate was 5 percent, Pl.’s Ex. 21 (Rec. Doc. No. 251-21 at 1). In addition, there is evidence that U.S. Steel prepared a safety data sheet regarding Raffinate for dissemination to its customers and that at all relevant times, Radiator was the only customer of U.S. Steel that purchased Raffinate. Pl.’s Ex. 19 (Rec. Doc. No. 251-19 at 4, 11-12). Moreover, the safety data sheet states that “[t]he toxicity of Raffinate is principally due to its benzene content” and that “[i]n severe cases, the bone marrow is affected so as to produce blood cell deficiencies.” Pl.’s Ex. 20 (Rec. Doc. No. 251-20 at 6, 7). The document indicates that “[cjhronic exposure to low concentrations of the [Raffinate] vapors can cause severe damage to the blood-forming structures” and that “[r]egular employees should have regular, periodic blood studies.” Id. (Rec. Doc. No. 251-20 at 3, 7). Finally, there is evidence that at all relevant times, Radiator manufactured and marketed a deodorized version of Liquid Wrench, which did not contain benzene. Pl.’s Ex. D (Rec. Doc. No. 139-7 at 12). Viewing this evidence in the light most favorable to Plaintiff, the Court finds that it can support the finding of negligence. Indeed, a jury could conclude that a reasonable manufacturer would have altered the design of the non-deodorized formula of Liquid Wrench or withdrawn the Raffinate formula of Liquid Wrench and that Radiator’s failure to do so was a breach of its duty to exercise due care. Radiator resists this conclusion by arguing that there is no evidence that the safety data sheet was ever received by Radiator. The aforementioned evidence, however, supports the reasonable inference that Radiator did receive the information. Indeed, there is evidence that the safety data sheet was written for U.S. Steel customers and that at the relevant time, Radiator was the only U.S. Steel customer that purchased Raffinate. In its motion, Radiator also emphasizes that the safety data sheet does not specifically mention cancer or otherwise characterize benzene as a carcinogen. However, consistent with Plaintiffs theory of the case, the document does describe the risk of damage to blood and blood-forming organs. To be sure, as Radiator also suggests, a reasonable jury reviewing the evidence that the parties have adduced thus far could also conclude that Radiator did, in fact, exercise reasonable care. It is undisputed that at all relevant times, Radiator took steps to ensure that warnings were put in place on the label of the Liquid Wrench product. Those warnings instruct users to “[r]ead [the] cautionary directions carefully.” Def.’s Ex. F (Rec. Doc. No. 145-8 at 4). The directions, in turn, tell users to use the product “only with adequate ventilation” and to “[a]void prolonged or repeated breathing of vapor and contact with skin.” Id. A reasonable jury could find that the placement of these and other warnings constituted a reasonable response to the information indicating that chronic exposure to benzene could lead to blood disorders. At this stage of the case, however, the determination as to whether it was reasonable for Radiator to place these warnings on the product instead of either withdrawing the Raffinate version of Liquid Wrench from the market or otherwise modifying the formula for the non-deodorized version of Liquid Wrench is a question that is properly directed toward the jury. In light of the evidence, the Court cannot at this time resolve as a matter of law the question of whether Radiator exercised reasonable care. Accordingly, summary judgment as to Plaintiffs negligence claim is inappropriate. ii. Wantonness: Under Alabama law, “[w]antonness is the doing of some act or omission to do some act with reckless indifference to the knowledge that such act or omission will likely or probably result in injury.” Bishop v. Poore, 475 So.2d 486, 487 (Ala.1985). Thus, to establish wantonness, a plaintiff must show that 1) the defendant knew that “injury would likely or probably result from his conduct” and that 2) the defendant acted “consciously and intentionally ... with reckless indifference to [these] consequences.” Miller v. Bailey, 60 So.3d 857, 867 (Ala.2010) (quoting Smith v. Roland, 243 Ala. 400, 10 So.2d 367, 369 (1942)). As noted above, Plaintiff in this case has pointed to evidence showing that Radiator knew that the Raffinate it used to produce the non-deodorized version of Liquid Wrench at the relevant time contained benzene. There is also evidence showing that Radiator was informed by U.S. Steel that the toxicity of Raffinate was due to its benzene content; that “[i]n severe cases, the bone marrow is affected so as to produce blood cell deficiencies”; and that “[c]hronic exposure to low concentrations of the [Raffinate] vapors can cause severe damage to the blood-forming structures.” Pl.’s Ex. 20 (Rec. Doc. No. 251-20 at 3, 6, 7). When viewed in the light most favorable to Plaintiff, this evidence can support the finding of wantonness. Of course, the evidence also strongly supports the notion that Radiator did not act “with reckless indifference” to the safety of others. Miller, 60 So.3d at 867. As Radiator has stressed and as noted above, Radiator took steps to ensure that the label on the Liquid Wrench product complied with the mandates of the FHSA. Radiator put in place warnings stating that Liquid Wrench should be used only if there is adequate ventilation and that users should avoid vapors and contact with the skin. Def.’s Ex. F (Rec. Doc. No. 145-8 at 4). In light of these measures, it may be difficult to find that in producing and distributing the Liquid Wrench product, Radiator acted with “reckless indifference” to the safety of others. Miller, 60 So.3d at 868. At this stage of the case, however, the Court finds that these competing views preclude summary judgment. The Court may, however, revisit this question in the context of a Rule 50 motion. iii. Fraudulent misrepresent tation/fraudulent suppression: Alabama law recognizes causes of action for both fraudulent misrepresentation, which involves an affirmatively false representation, and fraudulent suppression, which involves a concealment or a failure to disclose. See Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716, 724-25 (Ala.2009). To prevail on a claim of fraudulent misrepresentation, a plaintiff must show, inter alia, that there was reliance on the false representation. Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994). Similarly, to succeed on a claim of fraudulent suppression, a plaintiff must demonstrate, inter alia, that “the concealment or failure to disclose induced the plaintiff to act.” Booker v. United Am. Ins. Co., 700 So.2d 1333, 1339 n. 10 (Ala.1997). In this case, Plaintiff suggests that she has a viable claim of fraudulent misrepresentation and fraudulent suppression against Radiator. She contends that the Material Safety Data Sheet (MSDS) for Liquid Wrench should have disclosed the risk of blood disorders. Plaintiff, however, has not cited evidence to support the elements of reliance or inducement, which are essential to the claims of fraudulent misrepresentation and fraudulent suppression. In particular, Plaintiff has not pointed to evidence that the decedent relied on any representations in the MSDS or that any failure to disclose the risk of blood disorders in the MSDS induced the decedent to use the product. Thus, even if one were to assume arguendo that Plaintiff has adduced evidence relevant to the other elements, it is clear that Radiator is entitled to summary judgment as to these claims. 4. Summary For the reasons stated above, Radiator’s Motion for Summary Judgment must be granted in part and denied in part. Summary judgment with respect to Plaintiffs remaining AEMLD claim, as well as her claims of fraudulent suppression and fraudulent misrepresentation, is appropriate. Summary judgment as to Plaintiffs negligence and wantonness claims is not warranted, however. In addition, Plaintiffs cross-Motion for Partial Summary Judgment, which addresses Plaintiffs AEMLD claim, must be denied. C. ExxonMobil’s Motion for Summary Judgment (Rec. Doc. No. 154) In its motion, ExxonMobil raises several arguments in support of its request for summary judgment. These contentions can be grouped as follows. First, Exxon-Mobil asserts that Plaintiff has not adduced evidence to show that Varsol had a warning, design, or manufacturing defect or that it was unreasonably dangerous per se under the applicable Louisiana law. Second, ExxonMobil asserts that Plaintiff has failed to provide evidence to sustain the finding of causation. It makes three specific arguments in this regard: 1) there is no evidence that the decedent used the Varsol product manufactured by Exxon-Mobil, 2) there is no evidence that the decedent read the warnings or labels on Varsol, and 3) Plaintiffs allegation that the decedent suffered from and died of MM as a result of his use of Liquid Wrench precludes a finding of causation as to Exxon-Mobil. 1. The applicable law As noted above, in this case, the threshold question of the choice of law is to be resolved by reference to the conflict-of-law rules of Louisiana. See Houston N. Hosp. Prop., 680 F.2d at 21. Under those rules, if the alleged injury was sustained in Louisiana and if the injured person was domiciled in Louisiana at the relevant time, then Louisiana law is applicable. See La. Civ.Code art. 3545. Here, it is undisputed that Plaintiffs claim against ExxonMobil arises out of the decedent’s work in Louisiana from around 1981 to 1983. It is also undisputed that at that time, the decedent was a resident of Louisiana. The parties are thus correct in suggesting that Louisiana law applies to Plaintiffs claims against ExxonMobil. In addition, the parties agree that Louisiana law as it existed before the enactment of the Louisiana Products Liability Act (LPLA), La.Rev.Stat. Ann. § 9:2800.51 et seq., is applicable. This suggestion is also correct. The Louisiana Supreme Court has held that the LPLA altered substantive rights and that as a result, “it is not retroactive.” See Gilboy v. Am. Tobacco Co., 582 So.2d 1263, 1264-65 (La.1991). Accordingly, the principles of law that are applicable to Plaintiffs claims against ExxonMobil are those that were articulated by the Louisiana Supreme Court in Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971), and subsequent cases such as Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986). 2. Whether Varsol was unreasonably dangerous To prevail on a product liability action under pre-LPLA Louisiana law, a plaintiff must prove that the product is “unreasonably dangerous to normal use.” Weber, 250 So.2d at 755. The Louisiana Supreme Court has identified four theories by which a plaintiff can show that a product is “unreasonably dangerous.” Halphen, 484 So.2d at 113-15. In particular, a product is “unreasonably dangerous” if it has 1) a warning defect, 2) a design defect, 3) a manufacturing defect or if 4) it is unreasonably dangerous per se. See id. In this case, ExxonMobil contends that Plaintiff has not provided sufficient evidence to show that Varsol was unreasonably dangerous in any of these ways. The Court will discuss the possibilities in turn. a. Warning defect — A product is “unreasonably dangerous” if “the manufacturer fails to adequately warn about a danger related to the way the product is designed.” Halphen, 484 So.2d at 114-15. In particular, “[a] manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user.” Id. at 115. Thus, “when the danger is known to the manufacturer and cannot justifiably be expected to be within the knowledge of users generally, the manufacturer must take reasonable steps to warn the user.” Chappuis v. Sears Roebuck & Co., 358 So.2d 926, 930 (La.1978). The Louisiana Supreme Court has identified a number of non-exhaustive factors relevant to the determination of whether a warning is adequate. These include “the severity of the danger, the likelihood that the warning will catch the attention of those who will foreseeably use the product and convey the nature of the danger to them, the intensity and form of the warning, and the cost of improving the strength or mode of the warning.” Bloxom v. Bloxom, 512 So.2d 839, 844 (La.1987) (internal citations omitted). A duty that is subsumed within the duty to warn is the duty of a manufacturer “to test and inspect its product” in a way that is “commensurate with the dangers involved.” Halphen, 484 So.2d at 115. In its motion, ExxonMobil argues that Plaintiff has failed to provide evidence of what constitutes an “adequate warning,” id., or “reasonable steps,” Chappuis, 358 So.2d at 930. In response, however, Plaintiff points to the report of Dr. Kopstein, who gave the opinion that Varsol is a defective product because its labels and its MSDS “do not mention the presence of benzene, let alone warn about its known health risks.” Pl.’s Ex. C (Rec. Doc. No. 162 — 4 at 44). Plaintiff also cites the report of Dr. Kura, who wrote that ExxonMobil “fail[ed] to identify [b]enzene as a hazardous ingredient on the MSDS sheets and warning labels and the potential to cause damage to the blood and blood forming organs[,] including cancer.” Pl.’s Ex. D (Rec. Doc. No. 162-5 at 18). In light of this, it is clear that Plaintiff has put forward evidence to support her warning defect claim. Indeed, Plaintiff has offered evidentiary support for the notion that the content of Varsol’s warning label and MSDS should have been expanded to discuss benzene and the risks of blood disorders. In its brief, ExxonMobil attacks the qualifications of Dr. Kura to render an opinion on the issue of warnings, as well as the reliability of the opinions. Such questions, however, lie, in the first instance, in the domain of Daubert. Without first concluding that the opinions of Dr. Kura and Dr. Kopstein are inadmissible, the Court cannot say that Plaintiff has failed to present sufficient evidence in support of her warning defect claim. In its reply brief, ExxonMobil suggests that at the time that the decedent used Varsol, there were insufficient studies showing a link between benzene and MM and that, as a consequence, it could not have known at that time that benzene can cause MM. According to ExxonMobil, this precludes liability with respect to Plaintiffs warning defect claim. This contention is also unavailing. To be sure, it is true that under the applicable Louisiana law, a manufacturer’s duty to warn “is governed by the standard of knowledge available to the manufacturer ... at the [relevant] time.” Toups v. Sears, Roebuck & Co., 507 So.2d 809, 818 (La.1987); accord Restatement (Third) of Torts: Products Liability § 2 cmt. a (1998) (noting that the duty to warn hinges on “the knowledge of risks ... reasonably attainable at the time of distribution”). ExxonMobil’s argument, however, neglects Plaintiffs theory of the case. As Plaintiffs expert opinions indicate, Plaintiff in this case is asserting that the danger posed by benzene is the risk of blood-related diseases. Pl.’s Ex. D (Rec. Doc. No. 162-5 at 18). Plaintiff has further argued that at the relevant time, the scientific literature was such that ExxonMobil either knew or should have known that benzene has a harmful effect on blood and blood-forming organs. For instance, Plaintiff has pointed to an ExxonMobil docume