CLARK, J.
The instant case presents a claim under the Louisiana Products Liability Act ("LPLA"). We granted its companion case to determine the viability of negligent spoliation of evidence as a cause of action in Louisiana.
On March 15, 2008, a multi-vehicle accident occurred in St. Tammany Parish.
On March 12, 2009, the plaintiff filed suit against Bordelon and other defendants. With regard to Nissan, the plaintiff asserted claims under the LPLA for the failure of the air bags to deploy and/or operate. Specifically, he alleged the Infiniti was defective (1) due to a construction or composition defect; (2) due to a design defect; (3) for failure to contain an adequate warning; and (4) for failure to conform to an express warranty.
On July 8, 2013, Nissan filed a motion for summary judgment. In opposition, the plaintiff filed the affidavit of Dr. Richard Baratta. Ultimately, the trial court made several evidentiary rulings and concluded that there was an absence of factual support for any of the product liability theories, and it granted summary judgment in favor of Nissan. The court of appeal affirmed the judgment, finding no error in the evidentiary rulings and that there were no genuine issues of material fact upon which to survive summary judgment.
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant.
A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law."
This court explained the summary judgment procedure as follows:
The plaintiff avers that the trial court improperly excluded evidence in its consideration of the motion for summary judgment. We will address each category of evidence that the lower courts ruled inadmissible.
First, the plaintiff attempted to admit post-accident photographs of the vehicle. However, the photographs were not verified or authenticated in any way. The plaintiff did not introduce an affidavit or testimony by any person familiar with the photographs, the photographer or otherwise, in order to lay the foundation that the photographs were actually depictions of the plaintiff's vehicle or that the depictions were accurate.
Next, the plaintiff argues the airbag service bulletin printed from the National Highway Traffic Safety Administration (NHTSA) should have been admissible. However, no corroborating testimony or affidavit was presented to establish the printout's authenticity. As noted by the court of appeal, the front page of the printout states that public documents were unavailable at the time the printout was produced; thus, the plaintiff cannot avail himself of any self-authenticating public document exception to survive this hurdle of admissibility.
Further, the plaintiff sought to admit other incident investigation reports created by Nissan, presumably in an effort to illustrate that Nissan knew of an ongoing problem of its vehicles' airbags failing to deploy and failed to warn consumers. However, as articulated by the court of appeal, the plaintiff failed to establish the reports' relevancy to this proceeding. The reports do not reference the plaintiff's accident, nor do they demonstrate any similarities to the plaintiff's specific vehicle or the instant circumstances surrounding the alleged failure of the airbags to deploy. Rather, the investigation reports pertain to varying makes and models of vehicles in varying years in varying locales. Thus, we
The plaintiff also attempted to introduce pre-accident invoices for service performed on his vehicle by the car dealership that sold him his vehicle, Ray Brandt Infiniti. While the documents purportedly are records made and kept in the course of regularly conducted business activity for purposes of the business records hearsay exception, the plaintiff introduced no affidavit of the custodian or any other witness to corroborate their nature.
Additionally, the plaintiff, in opposing the motion for summary judgment, sought to introduce the affidavit and the curriculum vitae of his expert in accident reconstruction, Dr. Richard V. Baratta, Ph.D., P.E. The trial court admitted into the evidence the affidavit, in which Dr. Baratta opines the "airbags should have deployed to assist in mitigating [the plaintiff's] injuries." However, the trial court found his curriculum vitae inadmissible because it was unsworn and uncertified.
Last, we find evidentiary problems with emailed materials sent by Dr. Baratta to the plaintiff's attorney. Allegedly, the materials were used to support the conclusions drawn in Dr. Baratta's affidavit; however, they, too, are not authenticated, irrelevant, and constitute hearsay. Accordingly, the trial court properly excluded these emails.
Having established what evidence is and is not before us, we turn now to the motion for summary judgment. Nissan, as the movant, must satisfy his burden by "submitting affidavits or pointing out the lack of factual support for an essential element in the opponent's case."
The plaintiff's case arises under the LPLA, which provides the exclusive theories under which a plaintiff can pursue a claim against a manufacturer for an alleged product defect.
Moving to the plaintiff's first alleged theory, a product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer.
To the extent the plaintiff is arguing the owner's manual qualifies as Nissans' performance standards, we note that, by its own acknowledgement, the air bags "may not inflate" in certain side collisions. This caveat necessarily precludes a finding that there existed a stated expectation of a specified performance.
Moreover, the manual's language that the air bags "are designed to inflate in higher severity side collisions on the side of the vehicle impacted" begs the question of whether the plaintiff's collision is a collision that falls within the expectations that would trigger inflation of the air bags. We find the plaintiff offered nothing to answer this inquiry in the affirmative so as to satisfy his burden of proof on a construction or composition defect. Dr. Baratta's affidavit makes a conclusory statement, unaided by factual support, that the
The next theory under the LPLA advanced by the plaintiff is a design defect.
Accordingly, the plaintiff was first required to show an alternative design for the supplemental restraint system existed at the time it left Nissan's control. The plaintiff proposed no other design for the product, and, indeed, admitted that he did not develop an alternative design. Without proving this required element, it is unnecessary to address the remaining elements of this theory insofar as the LPLA requires all elements to be proven.
The plaintiff next alleged his vehicle and/or air bag system was unreasonably dangerous due to an inadequate warning. La.R.S. 9:2800.57(A) provides:
"Adequate warning" is defined as "a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made."
Inasmuch as the owner's manual contained a warning about the side air bag "ordinarily not inflat[ing] in the event of a frontal impact, rear impact, rollover or lower severity side collision," we note the initial impact, as described in the police investigation report, was a rear collision, followed by a frontal collision. Thus, we find the warning contained in the owner's manual adequately explained that the side air bags typically do not deploy in frontal or rear collisions, precluding a finding of a genuine issue of material fact on this ground.
For each of the above theories, we also note, pursuant to La.R.S. 9:2800.54(C), the plaintiff must show that the vehicle/supplemental restraint system was in substantially the same condition as it was when it left its manufacturer's control and that there were no alterations or modifications to the vehicle's air bag system. Again, there is an absence of factual proof to assist the plaintiff in meeting this required evidentiary burden. The plaintiff's pleadings, responses to discovery requests, subsequent appellate briefs, and exhibits (including Dr. Baratta's affidavit) are silent as to the vehicle's condition at the time it left Nissan's control and are silent as to whether the air bag system was in an unaltered and unmodified condition at the time of the accident. The plaintiff produces no evidence to show the alleged defect in the air bag system was not caused by the collision itself. Accordingly, we find the plaintiff failed to produce evidence that would demonstrate he could carry the burden of proof on these required elements, in addition to those articulated in the above-specified theories.
Last, the plaintiff brought a claim under the express warranty provision of the LPLA. "A product is unreasonably dangerous when it does not conform to an express warranty made at any time by the manufacturer about the product if the express warranty has induced the claimant or another person or entity to use the product and the claimant's damage was proximately caused because the express warranty was untrue."
Dr. Baratta's affidavit opines that the owner's manual gave an expectation that in a high severity side impact, the side curtain air bags would deploy. However, and as discussed above, the manual specifically provided that the side air bags "may not
For the reasons expressed herein, we find no error in the grant of summary judgment in favor of Nissan and we affirm the judgment of the court of appeal.
HUGHES, J., dissenting.
I respectfully dissent. I cannot conclude that summary judgment is proper in this case.
The curriculum vitae of plaintiff's expert was excluded because it was "unsworn and uncertified". Must an affidavit be obtained from each school and each publisher? Is there any greater gift to a defense attorney than a plaintiff's expert with an inaccurate C.V.? La.Code Civ. P. art. 967 allows an expert to give an opinion on the facts by affidavit for purposes of summary judgment. But assessing the credibility of experts is the province of the fact finder.