     Case: 09-30664     Document: 00511151582          Page: 1    Date Filed: 06/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 23, 2010

                                       No. 09-30664                         Lyle W. Cayce
                                                                                 Clerk

RUFUS CRAYTON, JR.; MARGARET CRAYTON,

                                                   Plaintiffs - Appellants
v.

AMADEO ROSSI, S.A.,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:06-CV-7279


Before JONES, Chief Judge, KING, and HAYNES, Circuit Judges.
PER CURIAM:*
        Rufus and Margaret Crayton (“the Craytons”) appeal the district court’s
grant of summary judgment on their products liability claim and derivative
actions stemming from an incident where Mr. Crayton’s gun (manufactured by
Rossi) discharged accidentally. The only issue before us is whether the Craytons
have produced any evidence to prove the necessary element under Louisiana law
that the defect that caused the accidental discharge existed at the time the
product left Rossi’s control in 1973.          The district court concluded that the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30664      Document: 00511151582     Page: 2   Date Filed: 06/23/2010

                                    No. 09-30664

Craytons had failed in their burden to produce any evidence to satisfy this
element. We agree, and, accordingly, we AFFIRM the judgment of the district
court.
                I. FACTUAL & PROCEDURAL BACKGROUND
         The facts of this case, viewed in the light most favorable to appellants as
the non-moving party, are as follows.          Mr. Crayton purchased a Rossi-
manufactured 12-gauge shotgun in 1979. The shotgun was produced in 1973 in
Rossi’s South American plant and then transported to the United States by the
Garcia Corporation, an arms importer. The record is silent as to who owned the
gun, where it was located, or how it was maintained during the six-year gap
between the 1973 manufacture date and the 1979 purchase date. What is
known, however, is that, during the intervening period, the shotgun was
disassembled, nickle-plated, and reassembled by some unknown party other
than Rossi.
         On August 30, 2005, Mr. Crayton was seriously injured by the shotgun
when it fell over and accidentally discharged. For the purposes of this motion,
we accept as true that the accidental discharge was proximately caused by a
malfunction in the right-side safety mechanism as identified by the Craytons’
expert, A.J. McPhate.
         Mr. Crayton and his spouse subsequently filed suit against several
defendants, including Rossi. After all other defendants were dismissed from the
suit, Rossi filed a motion for summary judgment which was granted.              The
Craytons timely appealed.
                           II. STANDARD OF REVIEW
         A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th
Cir. 2006). The inquiry “is limited to the summary judgment record before the
trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009)

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                                  No. 09-30664

(quotation marks omitted). The court must view the evidence in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The moving party is entitled to judgment as a
matter of law when the pleadings, answers to interrogatories, admissions and
affidavits on file indicate no genuine issue as to any material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where, like here, “the burden at trial
[as to the material fact at issue] rests on the non-movant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
non-movant’s case.” Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174
(5th Cir. 2000) (citing Celotex Corp., 477 U.S. at 322). A genuine issue of
material fact exists if a reasonable jury could enter a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
                               III. DISCUSSION
      This appeal from a “no evidence”-based summary judgment presents only
one issue on appeal: whether the district court erred in concluding that the
Craytons failed to advance any evidence that the “characteristic of the product
that render[ed] it unreasonably dangerous . . . exist[ed] at the time the product
left the control of its manufacturer” pursuant to the requirements of section
9:2800.54(C) and (D) of the Louisiana Revised Statutes. The Craytons claim two
pieces of record evidence support their position: the gun itself and the affidavit
of their expert, A.J. McPhate. We find that neither the gun nor the expert
testimony is sufficient to create a genuine issue of material fact as to the origin
of the defect that led to Mr. Crayton’s injury.
      First, regarding the gun itself, the Craytons contend that a simple
comparison of the properly manufactured left firing mechanism and the defective
right mechanism is sufficient to create a genuine issue of material fact as to
whether the defect existed at the time the shotgun left the factory. Even if one
accepts that this evidence allows the Craytons to survive summary judgment on

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the question of whether the shotgun is defective, it still does not provide any
evidence that the defect existed at the relevant time. The mere presence of a
defect more than 35 years after the stipulated manufacture date does not
establish or give rise to a reasonable inference that the defect existed at the time
of manufacture. A review of the photographs of the mechanism (or, as the
district court concluded, a firsthand review and test of the gun) does not make
clear, or even speak to, the origin of the defect – especially in light of the
unaccounted for period of possession between 1974 and 1979. See Allstate Ins.
Co. v. Gen. Elec. Co., No. 00-0523, 2002 U.S. Dist. LEXIS 28255, at *6-8 (W.D.
La. Mar. 6, 2002) (holding that a “break in the chain of custody” of a product
precludes the court from relying upon an otherwise unsupported inference that
an injury-producing defect existed at the time of manufacture); see also Brunet
v. Alcon Labs., Inc., No. 07-3618, 2008 U.S. Dist. LEXIS 31590, at *8 (E.D. La.
Apr. 16, 2008) (accepting manufacturer’s argument that proof an accident
occured “fail[s] to offer any evidence that [a] product deviated in a material way
from the its specifications at the time [the product] left [ the manufacturer’s]
control”).1 To allow implied satisfaction of the “manufacturer’s control” element
from the mere existence of a defect would read that element out of the statute.
We decline to accept a construction of the statute at odds with its clear language.
       The    Craytons’ expert affidavit similarly does not suffice to create a
genuine issue of material fact. Mr. McPhate was retained for the sole purpose
of assessing causation. His only contribution to the present discussion came in
the form of an affidavit filed with the Craytons’ response to Rossi’s motion for


       1
          The Craytons’ argument seems at first blush to suggest they are proceeding on a
theory of res ipsa loquitor at least with regard to the origin of the defect. Yet the Craytons
admitted to the district court that they did not brief the res ipsa issue. Additionally, they have
not briefed the res ipsa issue on appeal notwithstanding the fact that it was expressly
discussed in the motion for summary judgment hearing below. Accordingly, any such
argument has been waived. Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) (“All issues
not briefed are waived.”).

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summary judgment and prepared well after the expert report was submitted.
This secondary submission suffers from a fatal defect: it merely sets out a
variety of conclusory allegations that are actually opinions devoid of an
underlying factual basis and explanation. We have repeatedly rejected the use
of expert affidavits in this way to create issues of material fact at the summary
judgment stage. See Hayter v. City of Mt. Vernon, 154 F.3d 269, 274 (5th Cir.
1998) (holding that “affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for
summary judgment[,]” and that “[w]ithout more than credentials and a
subjective opinion, an expert's testimony that ‘it is so’ is not admissible.”
(quoting Orthopedic & Sports Injury Clinic v. Wang Lab., Inc., 922 F.2d 220, 225
(5th Cir. 1991))); Boyd v. State Farm Ins., 158 F.3d 326, 331 (5th Cir. 1998) (“It
is a well established rule that without more than his credentials and a subjective
opinion, an expert’s testimony that a medical condition simply ‘is so.’ is not
admissible.”); Yaquinto v. Segerstrom, 247 F.3d 218, 227 (5th Cir. 2001)
(rejecting expert evidence that consisted of a conclusive allegation as to cause).
As the affidavit fails to provide any factual support for its conclusion that the
shotgun was defective when it left Rossi’s control, it does not satisfy the
Craytons’ burden.
      As such, we find that the Craytons failed to adduce sufficient competent
evidence to create a genuine issue of material fact as to whether the defect at
issue existed at the time the product left Rossi’s control in 1973.
                              IV. CONCLUSION
      For the reasons we set forth herein, we AFFIRM the district court’s
grant of summary judgment.




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