PRODUCT LIABILITY UPDATE-Footnote 4

MachineReynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So. 3d 607 (2015)

 A product liability claim under the LPLA requires strict compliance with the evidentiary requirements for each theory of liability under the Act. But, a litigant should not overlook the basic evidentiary requirements for admissible summary judgment evidence, as occurred in the Bordelon case.

  • Plaintiff, Reynolds, owned a Nissan sedan with supplemental side airbags. In rear and front-end collisions, the side airbags would not deploy.
  • Plaintiff sued Nissan for injuries he sustained when his side airbags failed to deploy. The manufacturer was granted summary judgment at the trial level based upon evidentiary rulings, and the Louisiana Supreme Court affirmed.
  • Plaintiff presented unverified and unauthenticated post-accident photographs of his vehicle as summary judgment evidence. The Supreme Court agreed that the lack of verification (by affidavit or testimony) rendered the photographs inadmissible.
  • Plaintiff offered an airbag service bulletin printed from the National Highway Traffic Safety Administration, but failed to produce any corroborating testimony or affidavit of the bulletin’s authenticity and failed to avail himself of any self-authenticating public document exception to its inadmissibility.
  • Plaintiff next attempted to admit “other incident” investigation reports prepared by Nissan in an attempt to show its knowledge of an ongoing problem with its airbags, but the reports pertained to “varying makes and models of vehicles in varying years in varying locales” and were thus irrelevant.
  • Plaintiff sought to introduce pre-accident invoices for service performed on his vehicle but the court excluded this evidence because Plaintiff failed to introduce an affidavit of the custodian of the invoices to meet the business records hearsay exception.

In opposition of Defendant’s motion for summary judgment, Plaintiff filed an affidavit from his expert in accident reconstruction, Dr. Richard Baratta. The trial court excluded Dr. Baratta’s curriculum vitae as inadmissible because it was unsworn and uncertified, as was the data reviewed by Dr. Baratta in forming his opinion.

Plaintiff failed to show a disputed issue of fact for trial that there was a defect in construction or composition in his car. The vehicle’s manual stated plainly that the airbags “may not inflate” in some front-end collisions, and were designed to inflate in “higher severity side collisions.” The court held that Plaintiff could not show that his collision was of a type for which the airbags should have deployed.

Dr. Baratta was no help to Plaintiff’s case because: (1) his CV was inadmissible and thus he was not established as an expert, and (2) his conclusory opinions were unsupported “by any factual evidence and contained no explanation as to how he reached his conclusion.”

Plaintiff similarly failed to show a design defect because Plaintiff’s expert “proposed no other design for the product, and, indeed, admitted that he did not develop an alternative design.”

On Plaintiff’s warning claim, Plaintiff’s expert did not specify what warning was inadequate, did not offer a proposed adequate warning, and did not provide any evidence to support this claim. The court further noted that the car’s operator manual states the side airbags ordinarily do not inflate in front or rear-end collisions, which were the impacts suffered by Plaintiff’s vehicle, and thus the warning was adequate.

Plaintiff’s express warranty claim under the LPLA failed because he did not point to a specific warranty that induced him to buy the car, did not prove that such warranty was untrue, and did not show that the failure to conform to a warranty caused his injuries. Plaintiff’s claim that “he, as a consumer, bought the vehicle because [the manufacturer] warranted that ‘[the vehicle] will perform like it is supposed to’” was deemed a “general warranty” that could not be accepted for the purposes of an express warranty claim.

Underlying and undermining each of Plaintiff’s claims was a fatal flaw, raised by the court, that Plaintiff failed to present evidence that the vehicle’s airbag 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.” Plaintiff did not even present evidence that the alleged defect was not caused by the accident itself.

In dissent, Justice Hughes noted that summary judgment was not proper because the CV was excluded as unsworn and unverified. Rhetorically, Judge Hughes asked “[m]ust an affidavit be obtained from each school and each publisher?” Judge Hughes further noted that “assessing the credibility of experts is the province of the fact finder, and there may be no “greater gift to a defense attorney than a Plaintiff’s expert with an inaccurate C.V.”

 

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