                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #032


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of June, 2015, are as follows:



BY CLARK, J.:

2014-C -2371      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      C/W
                  STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF/AND
                  LINDA DUPUY     v.     ROBERT BORDELON AND USAGENCIES CASUALTY
                  INSURANCE COMPANY (Parish of St. Tammany)

                  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.
                  AFFIRMED.

                  HUGHES, J., dissents with reasons.
06/30/15



                          SUPREME COURT OF LOUISIANA

                                     NO. 2014-C-2371

                                RICHARD L. REYNOLDS

                                          VERSUS

   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

                                 CONSOLIDATED WITH

        STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
                 AS SUBROGEE OF/AND LINDA DUPUY

                                          VERSUS

                         ROBERT BORDELON AND
                USAGENCIES CASUALTY INSURANCE COMPANY

             ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                 FIRST CIRCUIT, PARISH OF ST. TAMMANY

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.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.

                          FACTS AND PROCEDURAL HISTORY

        On March 15, 2008, a multi-vehicle accident occurred in St. Tammany



1
    See Reynolds v. Bordelon, 14-2362, (La. ) _So.3d_, which was issued contemporaneously
with this opinion.
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

                                   APPLICABLE LAW

         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




2
    Reynolds v. Bordelon, 14-121 (La. App. 1 Cir. 9/19/14), 2014 WL 4667570.
3
    Reynolds v. Bordelon, 12-2362 (La. 2/27/15), 159 So.3d 1061.
                                                2
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

4
  Duncan v. U.S.A.A. Ins. Co., 2006-363 p. 3 (La.11/29/06), 950 So.2d 544, 546; La. C.C.P. art.
966.
5
   Wright v. Louisiana Power & Light, 2006-1181 p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King
v. Parish National Bank, 2004-0337 p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of
Santiago, 2003-1424 p. 5 (La.4/14/04), 870 So.2d 1002, 1006.
6
    La. Code Civ. P. art. 966(B).
7
    La. Code Civ. P. art. 966(C)(2).
                                               3
         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


                                        DISCUSSION

Evidentiary Rulings

         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.

8
     Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880, 882-83.
9
     La.Code Evid. Art. 901 (A) and (B)(1).
10
     La.Code Evid. Art. 902.
                                                4
         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



11
     La.Code Evid. Art. 401.
12
     La.Code Evid. Art. 803(6).

                                          5
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.

Barrata to the plaintiff’s attorney. Allegedly, the materials were used to support

the conclusions drawn in Dr. Barrata’s affidavit; however, they, too, are not

authenticated, irrelevant, and constitute hearsay.       Accordingly, the trial court

properly excluded these emails.

Review of the Merits

         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 pursue a claim against a manufacturer for an

alleged product defect.15        La.R. 9:2800.54 sets forth the elements of a products

liability claim:

         A. The manufacturer of a product shall be liable to a claimant for
            damage proximately caused by a characteristic of the product that
            renders the product unreasonably dangerous when such damage
            arose from a reasonably anticipated use of the product by the

13
     See La. Code Civ. P. Art. 967(A).
14
     La.Code Civ. P. art. 966.
15
     La. R.S. 9:2800.52.
                                             6
              claimant or another person or entity.

           B. A product is unreasonably dangerous if and only if:

           (1) The product is unreasonably dangerous in construction or
           composition as provided in R.S. 9:2800.55;

           (2) The product is unreasonably dangerous in design as provided in
           R.S. 9:2800.56;

           (3) The product is unreasonably dangerous because an adequate
           warning about the product has not been provided as provided in R.S.
           9:2800.57; or

           (4) The product is unreasonably dangerous because it does not
           conform to an express warranty of the manufacturer about the product
           as provided in R.S. 9:2800.58.

           C. The characteristic of the product that renders it unreasonably
              dangerous under R.S. 9:2800.55 must exist at the time the product
              left the control of its manufacturer. The characteristic of the
              product that renders it unreasonably dangerous under R.S.
              9:2800.56 or 9:2800.57 must exist at the time the product left the
              control of its manufacturer or result from a reasonably anticipated
              alteration or modification of the product.

           D. The claimant has the burden of proving the elements of
              Subsections A, B and C of this Section.

           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.16 To prove

this theory, the plaintiff must show (1) what Nissan’s specifications or

performance standards were for the vehicle/airbags and (2) how the plaintiff’s

vehicle/airbags materially deviated from these standards so as to render it

unreasonably dangerous.17         In an effort to meet this burden of proof, the plaintiff

16
     La. R.s. 9:2800.55.
17
     Id.
                                              7
introduced the owner’s manual for his vehicle.        Relative to the supplemental

restraint system/air bags, the manual provides:

      These [air bag] systems are designed to meet voluntary guidelines to
      help reduce the risk of injury to out-of-position occupants . . . The
      supplemental side air bags and curtain side-impact air bags are
      designed to inflate in higher severity side collisions on the side of the
      vehicle impacted, although they may inflate if the forces in another
      type of collision are similar to those of a higher severity side impact.
      They are designed to inflate on the side where the vehicle is impacted.
      They may not inflate in certain side collisions. Vehicle damage [or
      lack of it] is not always an indication of proper supplemental side air
      bag and curtain side-impact air bag operation.

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 air bag should have

deployed. This conclusion is insufficient on two grounds. First, the curriculum

vitae that sought to establish Dr. Barratta’s expertise, was ruled inadmissible.

Thus, we find nothing to confirm his expertise as an airbag expert or even an

accident re-constructionist. Second, Dr. Barratta’s conclusory statements are not

supported by any factual evidence and contain no explanation as to how he reached

his conclusion.    The list of reviewed materials, which perhaps could have

established this factual requisite, also suffered the fate of inadmissibility.

Accordingly, we find the plaintiff presented no evidence sufficient to establish he


                                         8
would satisfy his evidentiary burden of proving a composition or construction

defect.

         The next theory under the LPLA advanced by the plaintiff is a design

defect.18 A product is unreasonably dangerous in design if, at the time the product

left its manufacturer’s control:

     (1) There existed an alternative design for the product that was capable
        of preventing the claimant’s damage; and

     (2) The likelihood that the product’s design would cause the claimant’s
         damage and the gravity of that damage outweighed the burden on the
         manufacturer of adopting such alternative design and the adverse
         effect, if any, of such alternative design on the utility of the product.19

     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.20

     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:

         A product is unreasonably dangerous because an adequate warning
         about the product has not been provided if, at the time the product left
         its manufacturer’s control, the product possessed a characteristic that
         may cause damage and the manufacturer failed to use reasonable care
         to provide an adequate warning of such characteristic and its danger to
         users and handlers of the product.

“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
18
   Our review of the record reveals a possible concession by the plaintiff at the hearing on the
motion for summary judgment that he was abandoning this particular product liability theory;
however, in the interest of judicial efficiency, we address this theory nonetheless.
19
     La. R.S. 9:2800.56.
20
     La. R.S. 9:2800.54(D).


                                               9
possible, to use or handle the product in such a manner as to avoid the damage for

which the claim is made.”21 The plaintiff did not specify what warning was

inadequate, did not provide a proposed adequate warning, and did not provide any

evidence to support this claim. The plaintiff stated in a discovery response that

Nissan failed to provide an adequate warning that there existed a defect with the air

bag system. However, this conclusory statement again fails for presuming a defect

has been proven when no evidence was presented to show the nature or existence

of that defect.22

         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


21
     La. R.S. 9:2800.53(9).
22
     See Alexander v. Toyota, 13-756 (La. 9/27/13), 123 So.3d 712.
                                                10
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.”23          The plaintiff did not identify (1) a specific express

warranty that induced him to use his vehicle, (2) did not prove that the warranty

was untrue, and (3) did not show that the failure to conform to that express

warranty caused his injuries. Rather, the plaintiff alleged that he, as a consumer,

bought the vehicle because Nissan warranted that “[the vehicle] will perform like it

is supposed to.” As stated by the court of appeal, the plaintiff did not “point to any

specific express warranty given by Nissan, but instead claim[ed] generally that

Nissan had given him the expectation that his vehicle’s air bag system would

mitigate his injuries in a severe automobile accident, and it did not.”24 We cannot

accept a general alleged warranty for purposes of an express warranty claim. The

LPLA makes it very clear that in order for the manufacturer to be liable, there must

be a specified stated warranty, i.e., express.

         Dr. Barrata’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 inflate in certain side collisions.” Thus, in the absence of an express


23
     La. R.S. 9:2800.58.
24
     Reynolds v. Bordelon, 14-121, p. 7 (La. App. 1 Cir. 9/19/14), 2014 WL 4667570.
                                               11
statement warranting to the plaintiff that his air bags would have deployed in a

collision substantially similar to his own, we find he cannot prevail on this claim at

trial.

                                      CONCLUSION

         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.

AFFIRMED.




                                          12
06/30/15



                      SUPREME COURT OF LOUISIANA

                                  NO. 2014-C-2371

                            RICHARD L. REYNOLDS

                                       VERSUS

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

                             CONSOLIDATED WITH

    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
             AS SUBROGEE OF/AND LINDA DUPUY

                                       VERSUS

                      ROBERT BORDELON AND
             USAGENCIES CASUALTY INSURANCE COMPANY

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
            FIRST CIRCUIT, PARISH OF ST. TAMMANY


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.
