Richard L. Reynolds VS Robert J. Bordelon III, Robert J. Bordelon, Jr., USAgencies Casualty Insurnce Company, Automobile Club Inter-Insurnce Exchange and/or Auto Club Family Insurnce Company d/b/a Triple A Insurance, Nissan North America, Infinity Division of Nissan North Ameri (2014CA0121 Consolidated With 2014CA0122)

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NOT DESIGNATED FOR PUBLICATIO N STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 CA 0121 RICHARD L. REYNOLDS VERSUS ROBERT J. BORDELON III, ROBERT J. BORDELON JR., USAGENCIES CASUALTY INSURANCE COMPANY, AUTOMOBIL E CLUB INTER-INSUR ANCE 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 CONSOLIDAT ED WITH NO. 2014 CA 0122 STATE FARM MUTUAL AUTOMOBIL E INSURANCE COMPANY AS SUBROGEE OF/AND LINDA DUPUY VERSUS ROBERT BORDELON AND USAGENCIES CASUALTY INSURANCE COMPANY Judgment Rendered: September 19, 2014 ******** Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2009-11451c/w2009-11501 The Honorable Allison Penzato, Judge Presiding ******** Christine Y. Voelkel Mandeville , Louisiana Counsel for Plaintiff/A ppellant Richard L. Reynolds Keith W. McDaniel Quincy T. Crochet Covington, Louisiana Counsel for Defendant/Appellee Nissan North America, Inc. ******* * BEFORE: GUIDRY, THERIOT , AND DRAKE, JJ. 2 THERIOT,J. In this personal injury case, the plaintiff, Richard L. Reynolds, appeals a summary judgment granted in favor of the appellee, Nissan North America, Inc. ("Nissan"), by the 22nd Judicial District Court, dismissing Reynolds's petition for damages as to Nissan with prejudice. For the following reasons, we affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On March 15, 2008, Mr. Reynolds was involved in a five-car accident at the intersection of Louisiana Highway 22 and Beau Chene Drive in Mandeville, Louisiana. The accident occurred when Robert Bordelon III, while traveling westbound on Highway 22 in a 1985 Chevrolet Suburban, drifted into the right lane, side swiping vehicle #2 that was slowing down as it approached the intersection. Mr. Bordelon accelerated after impact and moved into the left lane, but again drifted into the right lane, striking Mr. Reynolds's vehicle (vehicle #3) on the rear driver's side as Mr. Reynolds was also slowing down. The impact propelled Mr. Reynolds' s vehicle into vehicle #4, striking it on the rear passenger side. At the same time, Mr. Bordelon's vehicle spun counterclockwise, striking vehicle #5 on the rear passenger comer. Bordelon's vehicle again struck vehicle #4 on the rear driver's side, sending vehicle #4 in a clockwise spin. Vehicle #4 and Mr. Bordelon's vehicle came to rest in the intersection. Mr. Reynolds's vehicle was the most severely damaged and came to rest in a ditch on the north side of Highway 22. Mr. Reynolds and his passenger were removed from the vehicle by paramedics and taken to the emergency room of Lakeview Hospital where they were treated for their injuries. Mr. Reynolds's injuries were severe, allegedly consisting of broken ribs, a punctured lung, a closed-head injury, a 3 broken arm, trauma to the spine, temporary paralysis, a cracked pelvis, and other injuries. Mr. Bordelon was booked in the St. Tammany Parish Jail for driving while intoxicated first offense, reckless operation of a vehicle, first degree vehicular negligent jnjuring, and other charges. Mr. Reynolds filed a petition for damages on March 12, 2009. He named Nissan as a defendant, alleging that the air bag system in his 2003 Infiniti G35S, which was manufactured by Nissan, failed to completely deploy upon impact in the accident and such failure contributed to his injuries. Mr. Reynolds alleged that Nissan is strictly liable for general and special damages under the Louisiana Products Liability Act (LPLA). 1 On July 8, 2013, Nissan filed a motion for summary judgment to dismiss Mr. Reynolds's products liability claim with prejudice. The hearing on the motion was held August 14, 2013. The trial court granted Nissan's motion on August 23, 2013, finding that Mr. Reynolds had not proven liability by Nissan under any theory of the LPLA. Nissan was dismissed from Mr. Reynolds's lawsuit with prejudice. Notice of the judgment was mailed to Mr. Reynolds on September 4, 2013, and his devolutive appeal was granted by the trial court on November 4, 2013. ASSIGNMENTS OF ERROR Mr. Reynolds alleges four assignments of error: 1. The trial court committed reversible error m granting Nissan's motion for summary judgment. 2. The trial court committed reversible error in failing to properly consider the evidence submitted at the hearing as well as in failing to properly consider the entire record including previously submitted evidence. 3. The trial court committed reversible error in excluding certain summary judgment evidence from proper consideration despite such evidence having been previously admitted into evidence, considered, and/or was deemed admitted by Nissan. 1 La. R.S. 9:2800.51, et seq. 4 4. The trial court committed reversible error in erroneously finding Mr. Reynolds did not meet the burden of proof for summary judgment purposes as genuine issues of material fact existed, and, as such, Nissan is not entitled to summary judgment as a matter of law. STANDARD OF REVIEW Louisiana Code of Civil Procedure article 966(C)(2) provides: The burden of proof [on a motion for summary judgment] 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 Appellate review of a summary judgment is as follows: In determining whether summary judgment is appropriate, appellate courts review summary judgment de nova under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Furthermore, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of Because it is the applicable substantive law that law. determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Brassette v. Exnicios, 2011-1439 (La. App. 1 Cir. 5/14112), 92 So.3d 1077, 1081, writ denied, 2012-1583 (La. 11/9/12), 100 So.3d 831 (citations omitted). DISCUSSION Sufficiency of Evidence Initially we must consider whether certain evidence was properly excluded by the trial court at the hearing on summary judgment before reviewing the ruling of the summary judgment itself. Several documents 5 that Mr. Reynolds attempted to introduce at the hearing were excluded by the trial court, pursuant to Nissan's objection. We shall address each piece of excluded evidence below. Mr. Reynolds' s exhibit B, photographs of his vehicle taken after the accident, were excluded for not being authenticated. Generally photographs are admissible only if verified or authenticated by extrinsic evidence. Wallace v. Travelers Ins. Co., 195 So.2d 712, 718 (La. App. 1 Cir. 1967). The trial court, however, is vested with some discretion in determining the sufficiency of preliminary proof of authenticity. Macaluso v. Populis, 339 So.2d 386, 389 (La. App. 1 Cir. 1976). Although the better practice dictates that a photograph be verified and authenticated by the photographer who took it, nevertheless, authentication may be accomplished by the testimony of anyone with sufficient knowledge to aver that the picture fairly represents the subject matter it purports to portray. Id. Some of the photographs in exhibit B are marked with the dates in which they were taken, while others are not; regardless, Mr. Reynolds did not present any corroborating deposition testimony or affidavits to verify that the vehicle in the photographs was his. The trial court was within its discretion to sustain Nissan's objection to this exhibit. Nissan also objected to Mr. Reynolds's exhibit C for its lack of authenticity. The exhibit is a printout of an airbag service bulletin of the National Highway Traffic Safety Administration (NHTSA). The printout is from NHTSA's website, and the document states on the first page that public documents were unavailable at the time of the printing. Again, Mr. Reynolds did not provide any corroborating evidence to lay a foundation for the document's authenticity, and since the document is not a public document, it cannot fall under one of the self-authenticating public 6 document exceptions of La. C.E. art. 902c The trial court was correct to exclude this evidence. Mr. Reynolds's exhibit E-2 was excluded on Nissan's objections of relevance and hearsay. The exhibit includes incident investigation reports authored by Nissan. Nissan admitted in the hearing that the reports are records of regularly conducted business activity, and for that reason the documents meet the hearsay exception of La. C.E. art. 803( 6). (R. 846). However, the evidence could still be excluded if it is not relevant to the hearing on summary judgment. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. The investigation reports detail Nissan's independent investigations of accidents involving automobiles it has manufactured. Mr. Reynolds attempted to introduce these reports to establish that Nissan had knowledge of a number of the vehicles it manufactured were failing to deploy their airbags upon impact, therefore imposing upon Nissan a duty to provide a warning about this defect in its products. None of these reports, however, give details about the accident involving Mr. Reynolds' s vehicle. While every report involves a vehicle manufactured by Nissan where the airbags failed to deploy upon impact, these incidents are of varying dates in varying locations around the country. No other information can be gleaned from the reports as to the history of these vehicles to show that, other than having a common manufacturer, they have anything in common with Mr. Reynolds' s vehicle. Whatever probative value this evidence may have would be outweighed by its tendency to cause prejudice or confusion of the issues. La. C.E. art. 403. 7 Mr. Reynolds's exhibit F contains invoices for service on his vehicle prior to the accident. The invoices appear to be from Ray Brandt Infiniti (Ray Brandt), the car dealership from which Mr. Reynolds purchased his vehicle. While the documents appear to be records of regularly conducted business activity, Mr. Reynolds did not provide deposition testimony or an affidavit of a representative from Ray Brandt to certify them as such. The records were therefore correctly excluded as hearsay evidence by the trial court. See La. C.E. art. 803( 6). Mr. Reynolds's exhibit H is listed as the curriculum vitae of Dr. Richard V. Baratta, Ph.D., P.E., Vice President of Rimkus Consulting Group, Inc. Dr. Baratta was utilized by Mr. Reynolds as an expert in traffic accident reconstruction. His affidavit, Mr. Reynolds's exhibit G, contains Dr. Baratta's conclusion that the failure of the side curtain airbag's deployment more likely than not contributed to the severity of Mr. Reynolds's injuries. While exhibit G was admitted as evidence, exhibit H was excluded pursuant to Nissan's objection over its lack of authenticity for not being sworn. Since the affidavit and the curriculum vitae were introduced as separate exhibits, Nissan argued that they are two separate documents, and that each must be duly sworn to be admissible. We see that the introduction of the two documents as separate exhibits rather than attaching them together as one exhibit was most likely an oversight by Mr. Reynolds, since the affidavit refers to the curriculum vitae as attached. We shall treat the two exhibits as being attached. However, La. C.C.P. art. 967(A) requires all papers referred to in an affidavit and attached thereto to be sworn or certified copies. There is nothing about exhibit H that indicates it is a sworn or certified copy of Dr. Baratta's curriculum vitae, and the trial court correctly excluded it. 8 Mr. Reynolds's exhibit I, a list of materials reviewed by Dr. Baratta, suffers from the same defect found in exhibit H, including the fact that it is not referred to in the sworn affidavit Nissan also objected to its relevance. Without commenting on its relevance, we see that this exhihit stands alone since it is not referenced by exhibit H and would have to be a sworn or certified document. Exhibit I was correctly excluded. Finally, Mr. Reynolds's exhibit J is a series of emailed documents from Dr. Baratta to Mr. Reynolds's counsel of record. The documents appear to be materials on which Dr. Baratta based his conclusion in the affidavit. Nissan objected to exhibit J on the grounds of lack of authenticity, hearsay, and relevance. As with exhibit C, no foundation is given as to exhibit J's authenticity. As with exhibit E-2, exhibit J references automobile accidents that are not Mr. Reynolds' s accident, and they further do not reference automobiles manufactured by Nissan" The trial court was correct to exclude exhibit J. Summary Judgment The trial court found that Mr. Reynolds had not proven any theory of liability under the LPLA with the affidavits and evidence admitted at the hearing. Those theories, as given by the trial court in its reasons for judgment, are violation of performance standards, inadequate warning, and violation of express warranty. Mr. Reynolds alleges that the driver's side curtain airbag system in his vehicle, which was manufactured by Nissan, did not deploy upon impact, and, therefore, did not mitigate his injuries as its design intended. The LPLA provides the exclusive theories of liability against manufacturers for damage caused by their products. Butz v. Lynch, 1999-1070 (La. App. 1 Cir. 6/23/00), 762 So.2d 1214, 1217, writ denied, 2000-2660 (La. 11/17/00), 774 So.2d 980; see also La. R.S. 9:2800.52. Louisiana Revised Statutes 9:2800.54 establishes the elements of a cause of action under the statute. Butz, 762 So.2d at 1217. Louisiana Revised Statutes 9:2800.54(B) provides: A product is unreasonably dangerous if and only if: 1. The product is unreasonably dangerous in construction or composition; 2. The product is unreasonably dangerous in design; 3. The product is unreasonably dangerous because an adequate warning about the product has not been provided; or 4. The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product. 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. La. R.S. 9:2800.55. The owner's manual for Mr. Reynolds's vehicle was admitted as exhibit D. The first section of the manual concerns the supplemental restraint system, or the air bag system. On page 1-20, the manual states: 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 sideimpact 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. Important to note is that these design guidelines are voluntary and are not compulsory guidelines mandated by the automobile manufacturing 10 industry or another govemmg organization. These are Nissan's own performance standards, and according to those standards, the side curtain airbags are designed to deploy in "'higher severity side collisions," but "may not inflate in certain side collisions. ~ Thus, it must be determined whether 1 Mr. Reynolds's collision was the kind of collision where the side curtain airbag should have been deployed. In Dr. Baratta' s affidavit, he points out that the owner's manual "gives the owner an expectation that in a high severity impact such as [Mr. Reynolds's], the side curtain airbags would deploy." We disagree that the owner's manual provides this expectation, as it clearly states that in certain collisions, the air bags may not deploy. Dr. Baratta goes on to state that deployment of the air bags would have more likely than not reduced the severity of Mr. Reynolds's injuries. However, Dr. Baratta's curriculum vitae, which would establish him as an expert on automobile accident reconstruction, and his list of reviewed materials, which would have supported his conclusions, were excluded from the record by the trial court. The affidavit alone is insufficient to certify Dr. Baratta as an expert in his field. Affidavits that are devoid of specific underlying facts to support a conclusion of ultimate "fact" are not legally sufficient to defeat summary judgment. Lewis v. Four Corners Volunteer Fire Dept, 2008-0354 (La. App. 1 Cir. 9/26/08), 994 So.2d 696, 700. With respect to a violation of performance standards by Nissan, Mr. Reynolds did not meet his burden pursuant to La. C.C,P. art 966(C)(2) to show that an issue of material fact exists. With respect to Mr. Reynolds's argument that Nissan did not provide an adequate warning with the air bag system, La. R.S. 9:2800.57 provides, in pertinent part: 11 A. 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. B. A manufacturer is not required to provide an adequate warning about his product when: ( 1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product's characteristics; or (2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic. The owner's manual provides the following warning concerning the side curtain air bag system: "The supplemental side air bag and curtain side impact air bag ordinarily will not inflate in the event of a frontal impact, rear impact, rollover or lower severity side collision." According to the State Police accident report, Mr. Bordelon's vehicle initially struck Mr. Reynolds's vehicle in the driver's side rear. This impact propelled Mr. Reynolds' s vehicle forward and to the right into the passenger side rear of another vehicle. According to this statement of the report, which was admitted into the record at the hearing, Mr. Reynolds's vehicle first sustained a collision to the rear .and then a collision to the front. The owner's manual warns that the side curtam air bags typically do not deploy in frontal or rear impacts. Dr. Baratta' s affidavit suggests that the vehicle sustained a rightward lateral change of speed between 14 and 17 miles per hour, but does not state that the vehicle sustained an impact on the driver's side, which, according to the owner's manual, would have likely deployed the air bags. Even without- taking into account the evidentiary defects of Dr. 12 Baratta's affidavit, its conclusions do not indicate how the air bags operated contrary to the warning given in the owner~s manual. We find that Mr. Reynolds has not met his burden to prove an issue of material fact exists regarding the adequacy of any warnings given by ~issan. The final products liability theory that Mr, Reynolds argued was that Nissan's product did not conform to an express warranty that Nissan provided. 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 to use the product and then the claimant's damage was proximately caused because the express warranty was untrue. La. R.S. 9:2800.58. Mr. Reynolds does not point to any specific express warranty given by Nissan, but instead claims 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. Our reasonmg concemmg the performance standards also applies here. automobile's conformity to Again, Dr. Baratta's affidavit suggests that Nissan warranted that the automobile's side curtain airbags would deploy in the event of a high impact collision, giving Mr. Reynolds the false expectation that his injuries would be mitigated. That suggestion is inconsistent with the language in the owner's manual. The manual states that the air bags do not deploy in every kind of accident, and more specifically, the side curtain air bags may not deploy if the vehicle is not impacted with ~nough force on the side which the air bags are located. Since Mr. Reynolds cannot identify a particular express warranty that clearly would give him the expectation that the side curtain air bags would have deployed in his automobile accident, he cannot satisfy the burden of proof for this element of the LPLA. 13 CONCLUSIO~ The evidence properly excluded by the trial court cannot be considered by this court. Therefore, considering all of the admitted evidence, we find that Mr. Reynolds did not O\iercome his evidentiary burden at the hearing to prove there was a genuine issue of material fact as to whether Nissan was liable under the LPLA pursuant to any of the theories of liability. DECREE The trial court's decision to grant summary judgment in favor of Nissan North America, Inc. and to dismiss Richard L. Reynolds's petition for damages with prejudice with respect to Nissan is affirmed. All costs of this appeal are assessed to Mr. Reynolds. AFFIRMED. 14

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