Leone v. General Motors LLC, et al

Filing 65

ORDER AND REASONS: IT IS ORDERED that the 60 , 62 , 63 , and 64 motions are GRANTED AS UNOPPOSED, it appearing to the Court that the motions have merit. IT IS FURTHER ORDERED that all of Plaintiffs claims in the above-captioned matter are DISMISSED WITHOUT PREJUDICE, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/23/2017.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TANYA LEONE

CIVIL ACTION

VERSUS

NO. 16-6830

GENERAL MOTORS, LLC, ET AL.

SECTION "B"(3)

ORDER AND REASONS
Before the Court are Defendant “General Motors LLC’s Motion
for Summary Judgment,”

(Rec. Doc.

60) and “Motion to Strike

Plaintiffs’ Expert Mechanic, Sid Gearhart” (Rec. Doc. 63), as well
as Defendant Avis Budget Car Rental, L.L.C. and Budget Rent A Car
System, Inc.’s “Motion for Summary Judgment,” (Rec. Doc. 62) and
“Motion in Limine to Strike Sid Gearhart as Plaintiff’s Expert
Witness and to Exclude His Testimony at Trial” (Rec. Doc. 64). The
motions were set for submission on August 23, 2017. Pursuant to
Local Rule 7.5, Plaintiff’s memoranda in opposition were due on or
before August 15, 2017. No memoranda in opposition were filed.
Further, no party filed a motion to continue the noticed submission
date or a motion for extension of time within which to oppose the
motions. Thus, the motions are deemed to be unopposed. As discussed
below, it further appears to the Court that the motions have merit.
Accordingly,
IT IS ORDERED that the motions (Rec. Docs. 60, 62-64) are
GRANTED AS UNOPPOSED.

1

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an April 22, 2015 motor vehicle

accident. Rec. Doc. 1-1 at 2-3, ¶¶ 5-6. Tanya Leone (“Plaintiff”)
alleges

that

her

2014

Chevrolet

Cruze

(VIN

number

1G1PG5SB9E7407408) “suddenly, unexplainably and unintentionally
accelerated in speed . . . [and] application of the brakes failed
to stop the vehicle.” Id. at 3, ¶¶ 5, 8. To avoid hitting another
vehicle, Plaintiff “swerved the vehicle left, over the median . .
. and thereafter hit the base of a traffic signal.” Id. at 3, ¶ 6.
She insists that both she and her minor son, Nikko Leone, suffered
damage as a result of the accident. Id. at 3, ¶¶ 8, 11.
The Chevrolet Cruze was manufactured by Defendant General
Motors LLC (“GM”) and owned and maintained by Defendant Avis Budget
Car Rental, L.L.C. (“Avis”) and/or Defendant Budget Rent A Car
System, Inc. (“Budget”). Rec. Docs. 1-1 at 3-4, ¶¶ 9-10, 17; 13 at
1-2.1

Avis answered the original petition and explained that it was incorrectly
referred to as “Avis Budget Rental” in Plaintiff’s original petition. See Rec.
Docs. 5 at 1; 8. On June 27, 2016, Plaintiff filed an amended complaint. She
stated that the defendant named “Avis Budget Rental” in her original petition
“has as its correct name BUDGET RENT A CAR SYSTEM, INC.” Rec. Doc. 13 at 1
(emphasis in original). In the memorandum in support of their motion for summary
judgment, Avis and Budget explain that the Chevy Cruze was part of the Budget
fleet and was rented from that company. Rec. Doc. 62-3 at 1. The purpose of the
amended complaint was to replace Avis with Budget; however, the effect was to
substitute Budget for “Avis Budget Rental,” while maintaining Avis as a separate
Defendant. Id. at 1-2. Avis and Budget state that all parties understand that
Budget is the proper defendant and that Budget has “stipulated that although
not the registered owner, as the vehicle’s custodian and lessor, it was
responsible for maintaining and servicing the vehicle.” Id. at 2. Nonetheless,
the instant motion was filed on behalf of both Avis and Budget. Id.
1

2

On April 20, 2016, Plaintiff filed suit in the 24th Judicial
District Court for the Parish of Jefferson, alleging that the Cruze
was defectively designed and/or manufactured and that Defendants
were liable pursuant to the Louisiana Products Liability Act
(“LPLA”), LA. REV. STAT. ANN. § 9:2800.51. Rec. Doc. 1-1 at 3-4, ¶¶
12-14, 16.
On May 23, 2016, GM removed the matter pursuant to this
Court’s diversity jurisdiction under 28 U.S.C. § 1332. Rec. Doc.
1 at 3, ¶¶ VIII-IX.
Under

this

Court’s

scheduling

order,

Plaintiff’s

expert

reports had to be exchanged no later than June 9, 2017. Rec. Doc.
22 at 2. On June 7, 2017, Plaintiff filed a motion to continue the
trial date, arguing that her second expert required additional
time to conduct discovery and complete his report. Rec. Doc. 28-1
at 2. However, Plaintiff’s expert completed his inspections in
2015, Plaintiff knew about the June 9, 2017 deadline as early as
August 5, 2016, and Plaintiff waited to file a motion to continue
until two days before the expert report deadline and set the motion
for submission more than a month later. Rec. Doc. 55 at 4.
Accordingly, this Court determined that there was no good cause to
modify the scheduling order and we denied the motion to continue.
Id.
Despite this Court’s order, Plaintiff filed a witness list on
July 10, 2017 identifying Sid Gearhart as an “expert mechanic.”
3

Rec. Doc. 51 at 1. Because Plaintiff failed to exchange Gearhart’s
expert report, Defendants moved to strike Gearhart from the witness
list. Rec. Docs. 63-64.
II.

THE PARTIES’ SUMMARY JUDGMENT CONTENTIONS

GM argues that Plaintiff has not identified experts who will
testify at trial, supplied expert reports, identified defects in
the Cruze, or specified whether any such defect is due to the
vehicle’s design, composition, specification, warnings, or express
warranty. Rec. Doc. 60-2 at 5.
Avis and Budget argue that Plaintiff failed to allege that
their ownership and/or maintenance of the vehicle “caused or
contributed to the existence of any defect(s) in the vehicle, or
that [they] knew, or in the exercise of reasonable care should
have known, of the alleged ruin, vice or defect(s) which allegedly
caused or contributed to the accident,” such that Plaintiff failed
to state a claim upon which relief may be granted. Rec. Doc. 62-3
at 4. They further argue that, even if Plaintiff had alleged such
claims,

she

cannot

produce

any

evidence

to

support

those

allegations. Id.
Essentially, both Defendants argue that Plaintiff has not
produced sufficient evidence to meet her burden of proof.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

if

“the

pleadings,
4

depositions,

answers

to

interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
“portions

of

interrogatories,

‘the
and

pleadings,
admissions

depositions,
on

file,

answers

together

with

to
the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are

5

insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
A. LPLA CLAIMS AGAINST DEFENDANT GM
The LPLA provides “the exclusive theories of liability for
manufacturers for damage caused by their products.” LA. REV. STAT.
ANN. § 9:2800.52. Generally, it provides that a “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 claimant or another person
or entity.” LA. REV. STAT. ANN. § 9:2800.54(A). It establishes four
theories

of

liability:

(1)

a

manufacturing

defect

under

§

9:2800.55;2 (2) a design defect under § 9:2800.56;3 (3) failure to
adequately warn under § 9:2800.57;4 and (4) failure to conform to

This statute provides that “[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.”
3 This statute provides that a product is unreasonably dangerous in design if,
at the time it left the manufacturer’s control, (1) there existed an alternative
design that would have prevented the plaintiff’s damage and (2) the likelihood
that the design would cause the plaintiff’s damage and the gravity of that
damage outweighed the burden of adopting the alternative design and the adverse
effect of the alternative design on the product’s utility.
4 This statute provides that a product is unreasonably dangerous if, at the time
it left the manufacturer’s control, it “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.” A warning is not required when “[t]he product is 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 “[t]he 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.” §
9:2800.57(B). Further, “[a] manufacturer of a product who, after the product
2

6

a

manufacturer’s

express

warranty

under

§

9:2800.58.5

§

9:2800.54(B).
For manufacturing defects, the “characteristic of the product
that renders it unreasonably dangerous . . . must exist at the
time

the

product

left

the

control

of

its

manufacturer.”

§

9:2800.54(C). For design defects and inadequate warnings, that
characteristic

must

exist

at

the

time

the

product

left

the

manufacturer’s control “or result from a reasonably anticipated
alteration
plaintiff’s

or

modification

burden

to

of

prove

the
the

product.”
elements

Id.

It

is

included

in

the
§§

9:2800.54(A)-(C). § 9:2800.54(D).
“As

both

[the

Fifth

Circuit]

and

Louisiana

courts

have

recognized, for expert testimony not to be required in a products
liability case, ‘the product itself, or at least the . . . feature
in

question,

must

be

relatively

uncomplicated,

and

the

implications . . . such that a layman could readily grasp them.’”
Stewart v. Capital Safety USA, No. 16-30993, 2017 WL 2347612, at
*3 (5th Cir. May 30, 2017) (emphasis added) (quoting Lavespere v.

has left his control, acquires knowledge of a characteristic of the product
that may cause damage and the danger of such characteristic, or who would have
acquired such knowledge had he acted as a reasonably prudent manufacturer, is
liable for damage caused by his subsequent failure to use reasonable care to
provide an adequate warning of such characteristic and its danger to users and
handlers of the product.” § 9:2800.57(C).
5 This statute provides that “[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 the claimant’s damage was proximately caused because the express
warranty was untrue.”

7

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 184 (5th Cir. 1990)
abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d
1069 (5th Cir. 1994)) (citing McKey v. Gen. Motors Corp., 96-0755,
p. 7 (La. App. 1 Cir. 2/14/97); 691 So. 2d 164, 170 n.2).
“Consequently, courts consistently require expert testimony in
products liability cases, even when the products in question are
in common use.” Id. (footnote omitted).
In Underwood v. General Motors LLC, after filing LPLA claims
against a car manufacturer, the plaintiffs failed to exchange
expert reports by the court’s deadline. No. 14-188, 2015 WL
5475610, at *1 (M.D. La. Sept. 17, 2015), aff’d sub nom., 642 F.
App’x 468 (5th Cir. 2016). Three months after the expert report
deadline, the plaintiffs moved for an extension. Id. The motion
was denied because the plaintiffs failed to show good cause for
their non-compliance with the court’s scheduling order. Id. The
manufacturer

moved

for

summary

judgment

and

the

plaintiffs,

“flout[ing]” the court’s earlier order, opposed the motion by
attaching an affidavit and curriculum vitae of a purported expert.
Id. at *2. After striking those materials from the record, the
court noted that “Louisiana courts and federal courts interpreting
Louisiana law have held that it is not possible for a jury to
determine a product to be defective under the LPLA without expert
testimony.” Id. at *2-3 (citing Bourgeois v. Garrard Chevrolet,
Inc., 02-288, p. 9 (La. App. 4 Cir. 2/21/02); 811 So. 2d 962, 9668

67, writ denied, 02-0846 (La. 5/24/02); 816 So. 2d 854; Campbell
v. Mitsubishi Motors, Inc., 344 F. Supp. 2d 962, 966 (W.D. La.
2004)). The court was not persuaded by the plaintiffs’ argument
that a genuine issue of material fact existed because lay witness
testimony “that flames appeared on the car dashboard and a ‘series
of booms’ happened prior to any collision” was “contrary to the
assumptions relied upon by [d]efendant’s experts.” Id. The court
explained:
The Fifth Circuit has acknowledged that “there may be
cases in which the judge or the jury, while relying on
background knowledge and ‘common sense,’ can ‘fill in
the gaps’” such that an expert opinion would be
unnecessary. This is not such a case. Whether or not a
fuel tank or an automobile electrical system was
defective, or was the proximate cause of driver or
passenger injury, is not part of the everyday experience
of the average finder of fact. A juror would need expert
testimony to evaluate these issues concerning highly
technical aspects of automobile engineering.
Id. (internal citations omitted). Plus, the plaintiffs failed to
present evidence that any alleged defect existed at the time the
vehicle left the manufacturer’s control. Id. at *4. Consequently,
the court granted the manufacturer’s motion for summary judgment.
Id.
On appeal, the Fifth Circuit affirmed because the plaintiffs
did not present evidence of (1) the manufacturer’s specifications
or performance standards or how the vehicle allegedly differed
from

them;

(2)

an

alternative,

9

feasible

design;

or

(3)

the

existence of a defect when the vehicle left the manufacturer’s
control. 642 F. App’x at 472.
Like the plaintiffs in Underwood, Plaintiff has failed to
exchange expert reports by this Court’s deadline and failed to
demonstrate good cause for that failure. Without such reports, it
is highly unlikely that Plaintiff would be able to satisfy her
burden of proof. Yet, unlike the plaintiffs in Underwood, Plaintiff
has not even attempted to present evidence of a manufacturing
defect, an available alternative design, an inadequate warning, or
an express warranty. She also failed to show that any such defect
existed at the time the vehicle left GM’s control. Essentially,
Plaintiff failed to present a genuine issue of material fact
warranting trial. See also Centauri Specialty Ins. Co. v. Gen.
Motors, LLC, No. 16-226, 2017 WL 1015311, at *9 (M.D. La. Mar. 15,
2017) (granting summary judgment in favor of the car manufacturer
where the plaintiff failed to identify an unreasonably dangerous
characteristic, present evidence that this characteristic existed
when

it

left

the

manufacturer’s

control

or

resulted

from

a

reasonably anticipated alteration of the product, and it was the
type of case “which would require expert testimony to carry
Plaintiff’s burden on the existence of a defect and causation” and
there was no such evidence); Lucas v. Gen. Motors, LLC, No. 13748, 2014 WL 3924658 (W.D. La. Aug. 8, 2014) (the plaintiff brought
LPLA claims against a car manufacturer, alleging that the air bag
10

was unreasonably dangerous because it failed to deploy during a
collision,

but

presented

no

expert

testimony

to

address

the

manufacturer’s motion for summary judgment; instead, he argued
that his deposition testimony and the police report showing that
he was traveling at 55 miles per hour at the time of the collision
created a genuine issue of material fact; the court found such
evidence

insufficient

to

rebut

the

conclusions

of

the

manufacturer’s experts); Green-Johnson v. Enter. Rent-A-Car, No.
06-5475, 2008 WL 941708 (E.D. La. Apr. 7, 2008) (in an LPLA action
against a car manufacturer, the plaintiff failed to present expert
testimony, identify a specific defect, present evidence of an
alternative design, inadequate warning, or express warranty, such
that

the

court

granted

summary

judgment

in

favor

of

the

manufacturer); Campbell v. Mitsubishi Motors, Inc., 344 F. Supp.
2d 962 (W.D. La. 2004); Reynolds v. Bordelon, 2014-2371, p. 2 (La.
6/30/15); 172 So. 3d 607, 610.
B. CLAIMS AGAINST DEFENDANTS AVIS AND BUDGET
Defendants

Avis

and

Budget

are

not

alleged

to

be

the

manufacturer and therefore are not subject to liability under the
LPLA.

Nonetheless,

Louisiana

law

provides

that

“[w]e

are

responsible, not only for the damage occasioned by our own act,
but for that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody.” LA.
CIV. CODE art. 2317. Accordingly,
11

The owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care.
LA. CIV. CODE art. 2317.1. “To recover under article 2317, ‘a
plaintiff must prove he was injured by a thing, the thing was in
the defendant’s custody, there was a vice or defect creating an
unreasonable risk of harm in the thing, and the injured person’s
damage arose from such a defect.’” In re FEMA Trailer Formaldehyde
Prod. Liab. Litig., 838 F. Supp. 2d 497, 511 (E.D. La. 2012)
(quoting Spott v. Otis Elevator Co., 601 So. 2d 1355, 1363 (La.
1992)). “Article 2317.1, enacted in 1996, abrogates the concept of
‘strict liability’ in cases involving defective things and imposes
a negligence standard based on the owner or custodian’s knowledge
or constructive knowledge of the defect.” Gros v. Warren Props.,
Inc., No. 12-2184, 2012 WL 5906724, at *10 (E.D. La. Nov. 26, 2012)
(citing Hagood v. Brakefield, 35,570 (La. App. 2 Cir. 1/23/02);
805 So. 2d 1230, 1233, writ denied, 02-0557 (La. 4/26/02); 815 So.
2d 90). Therefore, the plaintiff must show that (1) the thing was
in the defendant’s custody or control; (2) the thing had a vice or
defect that presented an unreasonable risk of harm; (3) the
defendant knew or should have known of the unreasonable risk of
harm; and (4) the defect caused the damage. Johnson v. Ryder Truck

12

Rental, Inc., 10-834, p. 5 (La. App. 5 Cir. 5/24/11); 66 So. 3d
1127, 1129 (citation omitted).
To their motion, Avis and Budget attached the affidavit of
Brent Thompson, the head of the department responsible for the
maintenance of vehicles in Defendants’ rental fleets. Rec. Doc.
62-4 at 1. He stated that the Cruze was purchased new on July 1,
2014 and used until it was involved in the underlying accident.
Id. at 2. The vehicle’s repair history shows that it was subject
to periodic preventive maintenance and that a broken tail lamp was
replaced on April 2, 2015. Id. Thompson further stated that the
records

did

“not

reflect

any

complaints

or

conditions

which

required [any other] repair or maintenance . . . .” Id. at 3.
Further, both Plaintiff and her husband testified that they did
not experience any problems with the Cruze during the three-day
period between their rental of the vehicle and the accident. Rec.
Docs. 62-5 at 4; 62-6 at 4.
Plaintiff’s claims against Avis and Budget fail for the same
reason that her claims against GM failed:

Plaintiff has not

presented evidence that Avis or Budget knew or should have known
of

any

such

defect.

To

the

contrary,

Defendants

presented

maintenance records, an affidavit, and Plaintiff’s own testimony
to suggest that they did not know and should not have known of any
alleged defect. Finally, Plaintiff has not presented evidence that

13

any alleged defect caused her damages. Therefore, there is no
genuine issue of material fact warranting trial.
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that the motions (Rec. Docs. 60, 62-64) are
GRANTED AS UNOPPOSED, it appearing to the Court that the motions
have merit.
IT IS FURTHER ORDERED that all of Plaintiff’s claims in the
above-captioned matter are DISMISSED WITHOUT PREJUDICE.
A motion for reconsideration of this Order, based on the
appropriate Federal Rule of Civil Procedure, if any, must be filed
within

ten

accompanied

(10)
by

days

of

opposition

this

Order.

memoranda

to

The
the

motion

must

original

be

motions.

Because such a motion would not have been necessary had timely
opposition memoranda been filed, the costs incurred in connection
with the motion, including attorney’s fees, may be assessed against
the party moving for reconsideration. See FED. R. CIV. P. 16, 83. A
statement of costs and fees conforming to Local Rules 54.2 and
54.3 shall be submitted by all parties desiring to be awarded costs
and attorney’s fees no later than eight (8) days prior to the
noticed submission date of the motion for reconsideration.
New Orleans, Louisiana, this 23rd day of August, 2017.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
14