Lead Opinion
b 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.
FACTS AND PROCEDURAL HISTORY
On March 15, 2008, a multi-vehicle accident occurred in St. Tammany |2Parish.
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 Infin-iti 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.
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 [ Jitigant.*
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.”
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 |4meet 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 plaintiffs vehicle or that the depictions were accurate.
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.
| ^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 plaintiffs accident, nor do they demonstrate any similarities to the plaintiffs 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
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.
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 plaintiffs] injuries.” However, the trial court [ fifound his curriculum vitae inadmissible because it was unsworn and uncertified.
Last, we find evidentiary problems with emailed materials sent by Dr. Baratta to the plaintiffs 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.
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.”
The plaintiffs 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.
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 1-¡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;
*613 (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 plaintiffs 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.
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 plaintiffs 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. Ba-ratta’s affidavit makes a conclusory statement, unaided by factual support, that the
The next theory under the LPLA advanced by the plaintiff is a design defect.
(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.
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 Impossible, to use or handle the product in such a manner as to avoid the damage for which the claim is made.”
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(0), 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 plaintiffs 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 lnproduCes 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.”
Dr. Baratta’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
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.
. See Reynolds v. Bordelon, 14-2362, (La.6/30/15) 172 So.3d 589, which was issued contemporaneously with this opinion.
. Reynolds v. Bordelon, 14-121 (La.App.1 Cir.9/19/14), 2014 WL 4667570.
. Reynolds v. Bordelon, 14-2362 (La.2/27/15), 159 So.3d 1061.
. 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.
. 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.
. La.Code Civ. P. art. 966(B).
. La.Code Civ. P. art. 966(C)(2).
. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880, 882-83.
. La.Code Evid. Art. 901(A) and (B)(1).
. La.Code Evid. Art. 902.
.La. Code Evid. Art. 401.
. La.Code Evid. Art. 803(6).
. See La.Code Civ. P. Art. 967(A).
. La.Code Civ. P. art. 966.
. La. R.S. 9:2800.52.
. La. R.S. 9:2800.55.
. Id.
.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.
. La. R.S. 9:2800.56.
. La. R.S. 9:2800.54(D).
. La. R.S. 9:2800.53(9).
. See Alexander v. Toyota, 13-756 (La.9/27/13), 123 So.3d 712.
. La. R.S. 9:2800.58.
. Reynolds v. Bordelon, 14-121, p. 7 (La. App.1 Cir.9/19/14), 2014 WL 4667570.
Dissenting Opinion
dissenting.
|TI respectfully dissent. I cannot conclude that summary judgment is proper in this case.
The curriculum vitae of plaintiffs 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 plaintiffs 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.