Reynolds v. Bordelon
| Decision Date | 30 June 2015 |
| Docket Number | No. 2014–C–2371.,2014–C–2371. |
| Citation | 172 So.3d 607 |
| Parties | Richard L. REYNOLDS v. Robert J. BORDELON III, Robert J. Bordelon Jr., USAgencies Casualty Insurance Company, Automobile Club Inter–Insurance Exchange, and/or Auto Club Family Insurance Company d/b/a Triple A Insurance, Nissan North America, Infinity Division of Nissan North America, Inc., A Luxury Car Division of Nissan Motors, Insurance Auto Auctions Corp., ABC Insurance Company, DEF Insurance Company and XYZ Insurance Company. State Farm Mutual Automobile Insurance Company as Subrogee of/and Linda Dupuy v. Robert Bordelon and USAgencies Casualty Insurance Company. |
| Court | Louisiana Supreme Court |
Christine Yvonne Voelkel, for Applicant.
Chopin, Wager, Richard & Kutcher, LLP, Richard Allan Chopin, McCranie Sistrunk, Anzelmo, Hardy, McDaniel & Wel, Keith W. McDaniel, Quincy T. Crochet, Meghan Brianne Shumaker, Zachary Popvich, Stone Pigman Walter Wittmann, LLC, Michael Quirk Walshe, Jr., Justine Paul Lemaire, for Respondent.
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.1 We now address the underlying products liability case and review the appropriateness of the lower court's grant of summary judgment. For the reasons expressed below, we affirm.
On March 15, 2008, a multi-vehicle accident occurred in St. Tammany Parish.
Robert J. Bordelon, III is alleged to have caused the accident when he swerved two separate times from the left lane of traffic to the right lane, colliding with two vehicles. The second collision involved the instant plaintiff, Richard Reynolds, who was driving a 2003 Infiniti G35S, which was manufactured by Nissan North America (“Nissan”). After the initial impact, the plaintiff was pushed into another vehicle and came to rest in a ditch. The accident caused the plaintiff to sustain serious injuries.
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.2 We granted the plaintiff's writ application to review the grant of summary judgment.3
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.4 A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.5
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.”6 The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.7
This court explained the summary judgment procedure as follows:
[The summary judgment procedure] first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. (Emphasis added; citation omitted).8
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.9 Accordingly, we agree that the lack of verification deems the photographs inadmissible at the summary judgment hearing.
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.10 Accordingly, we find no error in the evidentiary ruling that excluded the NHTSA service bulletin.
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 find the reports are not relevant evidence as they do not have a tendency to make the existence of a material fact more probable or less probable than such a determination would be without the evidence.11
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.12 Accordingly, the invoices were properly excluded.
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.13 Our own review of the curriculum vitae supports the finding that it is not a sworn or certified copy and is, thus, inadmissible. Additionally, the materials reviewed by Dr. Baratta, were unsworn and uncertified and bore the added defect of not being referenced in the curriculum vitae. Accordingly, they were properly ruled inadmissible as well.
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.”14 The plaintiff, as the party who bears the burden of proof at trial, must then “come forth with evidence which demonstrates he will be able to meet the burden at trial.”
The plaintiff's case arises under the LPLA, which provides the exclusive theories under which a plaintiff can...
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