     Case: 17-30362      Document: 00514410891         Page: 1    Date Filed: 04/02/2018




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

                                      No. 17-30362
                                                                                Fifth Circuit

                                                                              FILED
                                                                           April 2, 2018

DANNY BAREFOOT,                                                          Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

WEYERHAEUSER NR COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:15-CV-240


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
PER CURIAM:*
       After he was involved in a single-vehicle accident, Danny Barefoot
brought claims against Weyerhaeuser NR Company alleging the company
negligently caused the accident. After determining Barefoot failed to present
evidence that could prove causation, the district court granted summary
judgment for Weyerhaeuser. For the following reasons, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   I. BACKGROUND
       On January 17, 2014, as Danny Barefoot exited Highway 1 in
Shreveport, Louisiana, his vehicle, an eighteen-wheeler truck, rolled over. He
began his journey in Natchitoches, Louisiana. There, Barefoot, a commercial
truck driver, picked up a load of timber joists from Weyerhaeuser to transport
to Louisville, Kentucky. Approximately eighty miles into the trip, Barefoot
attempted to exit Interstate 220 onto Louisiana Highway 1 in Shreveport,
Louisiana. His eighteen-wheeler rolled over as he drove down the looped exit
ramp. The police report of the accident included an eyewitness statement given
by Chad Sewell. 1 Sewell stated that although Barefoot was not speeding, his
lumber shifted as he exited the loop, and the truck rolled over. 2 Barefoot filed
a claim against Weyerhaeuser alleging the company improperly packaged the
joists. 3 This packaging, according to Barefoot, allowed the bands to break,
which caused the load to shift. This shift in weight forced the truck to roll over.
       At the close of discovery, Weyerhaeuser moved for summary judgment
arguing that no reasonable juror could find Weyerhaeuser negligent because
Barefoot could not present any evidence proving Weyerhaeuser caused his
injury. 4 As summary judgment evidence, Barefoot presented the deposition
testimony of accident reconstruction expert A. J. McPhate. McPhate testified
that, taking the information in Sewell’s witness statement as true, bands could


       1 Sewell was never deposed and did not provide a sworn statement.
       2 Sewell’s witness statement reads, “I was headed east on I220 when I exited off to
head north on Hwy 1. Big truck was in front and his load of lumber shifted. He was NOT
speeding. As it shifted it began to roll, landing on its roof, trailer upside down.”
       3 Barefoot initially alleged Weyerhaeuser improperly loaded the joists. However, after

the close of discovery, he changed his theory to allege that Weyerhaeuser improperly
packaged the load.
       4 This was Weyerhaeuser’s second motion for summary judgment. The first, argued

on the same grounds, was denied because the district court found the motion premature when
recent rulings allowed Barefoot more time for discovery. Thus, even if Barefoot had not yet
presented sufficient evidence supporting causation, the court reasoned that he had time
remaining to gather evidence.
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                                  No. 17-30362
have broken and this could have caused the joists to shift and the truck to roll
over. In developing this opinion, McPhate reviewed depositions of Barefoot and
Weyerhaeuser employees who loaded the truck, the accident report, and a
Google Earth aerial map. He also used software programs to reconstruct and
calculate the truck loading. The district court was not satisfied that this
evidence, even if believed, would allow a reasonable juror to find Weyerhaeuser
caused Barefoot’s accident, so it granted Weyerhaeuser’s motion. Barefoot
timely filed this appeal.
                            II. STANDARD OF REVIEW
      We generally review a district court’s order granting summary judgment
de novo, applying the same standard as the court below. Templet v.
Hydrochem, Inc., 367 F.3d 473, 477 (5th Cir. 2004). “The court shall grant
summary judgment if 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). A movant, who does not bear the burden of proof at trial,
successfully shifts the summary judgment burden to the non-movant by
demonstrating that the non-movant lacks evidence sufficient to carry her trial
burden. See In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017). If
the non-movant fails to present “sufficient evidence . . . for a jury to return a
[favorable] verdict,” summary judgment should be granted. See id. A jury
cannot return a favorable verdict as a matter of law if the non-movant fails to
present evidence of an essential element. See Lindsey v. Sears Roebuck & Co.,
16 F.3d 616, 618 (5th Cir. 1994). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

                                III. DISCUSSION
      Here, the parties dispute whether McPhate’s testimony was sufficient to
satisfy causation. As a result of the court’s subject-matter jurisdiction being
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based in diversity, Louisiana law controls. See Fontenot v. Upjohn Co., 780 F.2d
1190, 1194 (5th Cir. 1986). “[C]ausation is an essential element of any tort
claim.” MB Indus., LLC v. CNA Ins. Co., 74 So. 3d. 1173, 1187 (La. 2011)
(quoting Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109, 1110 (La.
1982)) (internal marks omitted). The plaintiff must establish some causal
connection between the defendant’s actions and the injury. See id.
        Because the trial burden is upon Barefoot to prove Weyerhaeuser caused
his accident, he must present some evidence supporting his factual allegations.
Because Barefoot alleges that bands broke, causing his accident, he must
present evidence that the bands broke and the broken bands could have caused
the truck to roll over. These facts are material to Barefoot’s theory of liability.
Thus, to survive a motion for summary judgment he must present some
evidence that, if believed, proves both of these facts. See Lindsey, 16 F.3d at
618.
        Barefoot asserts that his expert’s testimony was sufficient to do just that.
It was not. McPhate equivocated on whether broken bands actually caused the
accident. He provided testimony that it was possible for broken bands to cause
the timber joists to shift, which could result in the truck rolling over. He
testified that although distracted driving, speeding, and road and truck
conditions could also cause a rollover, if he were to accept Sewell’s eyewitness
testimony, he could conclude that one or more bands broke.
        However, McPhate admitted that he did not know if any band actually
broke. The expert testified that his usual analysis involves going to the scene,
checking super elevation, measuring the trailer, estimating the rollover
threshold, checking the tires, and estimating speed. McPhate did not conduct
any of this analysis. Instead, he depended completely on deposition testimony,
a skeletal witness statement, and an aerial map. With this evaluation, he
refused “to go out on [a] limb” and state the bands had broken. He admitted
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                                  No. 17-30362
that in order to make that claim, he would have had “to see the remains of the
tractor and the trailer.”
      This equivocation does not “assist the trier of fact to . . . determine a fact
in issue.” See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993)
(quoting FED. R. EVID. 702); see also Pipitone v. Biomatrix, Inc., 288 F.3d 239,
245 (5th Cir. 2002) (“[The doctor’s] testimony on causation is not helpful to the
fact-finder because of his inability to conclude that it was more likely than not
that the [defendant’s product] caused the infection . . . .”). McPhate’s testimony
helps determine whether broken bands can cause an accident like Barefoot’s,
but it offers no assistance in determining if bands actually broke and actually
caused the accident. Even if the fact-finder accepts McPhate’s testimony as
true, she will be no closer to understanding if the bands actually broke.
Barefoot presented no evidence that the bands actually broke; he presented a
hypothetical on how his accident could have happened, but he failed to present
evidence supporting the hypothetical.
      Barefoot correctly contends that it is for the jury to decide if the bands
actually broke. But in order for the jury to reach that decision, it must be
presented with some evidence that the event occurred. See Fontenot, 780 F.2d
at 1196. In Fontenot, this circuit determined that “a party should not be
entitled to put her opponent to trial on the merits by making the bare
allegations of notice pleading.” Id. at 1192. There, Fontenot argued that a drug
manufactured by the defendant, Upjohn, caused heart defects in her two
children. Id. After seven months of discovery, the plaintiff presented not “even
a scintilla of eviden[ce]” that the drug caused the heart defects. Id. The
defendant moved for summary judgment contending that Fontenot was unable
to prove that its product caused her children’s heart defects. Id. Without
providing evidence that Upjohn’s drug caused her injury, Fontenot answered
that the drug she ingested was “probably made by Upjohn.” Id. at 1193. She
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averred that because causation “addresses itself to the merits of the case,” it
could not be the basis for granting a motion for summary judgment. Id. The
district court did not find this argument persuasive, and neither did we. Id. at
1196–97. In considering the issue squarely for the first time, we stated, “There
is no sound reason why conclusory allegations should suffice to require a trial
when there is no evidence to support them even if the movant lacks contrary
evidence.” Id. at 1195–96.
      Here, as in Fontenot, Barefoot only presents conclusory allegations.
“[T]here is no evidence of causation to put into balance.” Id. at 1196. After
months of discovery, Barefoot provided no evidence of an actual broken band
from the accident. He simply concluded that the bands broke, and from that
conclusion his expert opined that broken bands could cause an accident like
his. Barefoot failed to present “evidence, direct, circumstantial, or inferential,
that would create a genuine issue of fact.” Id. Like Upjohn, Weyerhaeuser
“should be permitted . . . to rely upon the complete absence of proof of an
essential element of [Barefoot]’s case.” Id. at 1195. Barefoot wholly fails to
prove causation, an essential element of his claim. It is not the case here that
there is competing evidence of whether bands broke. There was no evidence
that bands broke. McPhate only testified that it was a possibility, given
Sewell’s statement. Although this testimony could arguably allow a fact-finder
to believe that an accident could be caused by bands breaking, it alone does not
assist the fact-finder in determining that bands actually broke and caused
Barefoot’s accident. Barefoot failed to create a genuine issue of material fact.
As such, he failed to meet his summary judgment burden, and the district court
did not err in granting Weyerhaeuser’s summary judgment motion.
                              IV. CONCLUSION
      For the aforementioned reasons, we AFFIRM the district court’s order
granting Weyerhaeuser’s summary judgment motion.
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