Moore v. Toyota Motor Corporation et al

Filing 119

ORDER AND REASONS - IT IS ORDERED that the Defendants' Motion for Summary Judgment (Rec. Doc. 98 ) is GRANTED, and all of the claims of plaintiff, Robert L. Moore against Toyota Motor Sales, U.S.A., Inc., Toyota Motor Corporation, Toyota Motor Engineering & Manufacturing North America, Inc., and Toyoda Gosei Co., Ltd. are DISMISSED with prejudice. Signed by Judge Barry W Ashe on 3/14/2019. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROBERT L. MOORE

CIVIL ACTION

VERSUS

NO. 17-1379

TOYOTA MOTOR CORPORATION,
et al.

SECTION M (5)

ORDER & REASONS
Before the Court is the motion for summary judgment submitted by defendants Toyota
Motor Sales, U.S.A., Inc., Toyota Motor Corporation, Toyota Motor Engineering &
Manufacturing North America, Inc., and Toyoda Gosei Co., Ltd. (collectively, “Defendants”).1
The plaintiff, Robert L. Moore (“Moore”), submitted an opposition on August 15, 2018, which
was marked deficient for failure to include a statement of material facts as required by the Local
Rules.2 The Court granted Moore an extension of time to submit a statement of material facts until
August 27, 2018.3 On this date, although Moore had not yet filed the statement, the Court
continued the October 22, 2018 trial setting and permitted Moore to file a supplemental opposition
memorandum to Defendants’ motion for summary judgment by February 25, 2019.4 Moore did
not file a supplemental opposition memorandum, but, in compliance with a further order of the
Court,5 he filed a statement of material facts to cure his original opposition’s deficiency.6

1

R. Doc. 98.
R. Docs. 100, 101.
3
R. Doc. 104.
4
R. Doc. 107.
5
R. Doc. 110.
6
R. Doc. 111.
2

1

Defendants filed a reply in support of their motion for summary judgment.7 Having considered
the parties’ memoranda and the applicable law, the Court issues this Order & Reasons.
I.

BACKGROUND
This case arises out of an allegedly defective airbag in a 2009 Toyota Corolla.8 Moore

seeks a declaration that Defendants are liable to him under the Louisiana Products Liability Act
(“LPLA”), as well as damages and attorney’s fees. Specifically, Moore claims that Defendants,
as manufacturers of the defective airbag, are liable (1) for the airbag’s being unreasonably
dangerous in construction or composition and (2) in design, (3) for failure to provide an adequate
warning, and (4) for nonconformity with an express warranty.9
Moore and his girlfriend, Kimberly Gross, sought to purchase the vehicle at a Toyota
dealership in New Orleans East.10 Gross purchased the 2009 Toyota Corolla in used condition for
$12,971 on January 25, 2014.11 At the time of the purchase, the vehicle had 9,948 miles on its
odometer.12 Moore and Gross acknowledge that the low mileage was one of the reasons that Gross
purchased the vehicle.13 Moore cannot recall whether he asked the salesperson if the car had been
involved in any accidents.14 Moore denies having the vehicle inspected, either by himself or by a
mechanic, and denies asking for a car report.15 Thus, Moore has no knowledge about the vehicle’s
pre-sale repair history.

7
R. Doc. 114. Defendants later filed a motion for leave to file an additional reply (R. Doc. 112), even though
Moore had not filed any supplemental opposition. The Court denied leave. R. Doc. 118.
8
R. Docs. 20 at 5-7; 80.
9
R. Docs. 20 at 9-11; 80 at 2-3. Moore directs an inadequate warning claim against only Toyoda Gosei. Co.,
Ltd. The Court dismissed with prejudice Moore’s allegations of negligence, intentional tort, breach of contract, breach
of warranty, negligent misrepresentation, fraud, and bad faith, as subsumed by his allegations under the LPLA, and as
previously ordered by the magistrate judge. R. Doc. 74 at 14-16.
10
R. Doc. 98-3 at 45.
11
Id. at 196, 262; see id. at 44.
12
Id. at 197.
13
Id. at 47, 198.
14
Id. at 49.
15
Id. at 49-50. Moore does state that, in his opinion as a diesel engine mechanic, the car had not been in any
prior accidents. Id. at 52.

2

As alleged in the complaint, while Moore was driving the Corolla on a residential street on
January 25, 2016, the airbag suddenly deployed, causing Moore’s vehicle to strike a utility pole.16
Moore suffered severe head injuries, including brain damage and a total loss of his left eye, which
treating physicians at University Medical Center of New Orleans attributed to ballistic fragments.
While he was in the intensive care unit, Moore alleges that the New Orleans Police Department
towed the Corolla.17 Moore has no memory of the accident and complains of short-term memory
loss as a result of the trauma.18
Moore’s counsel took two photographs of the totaled vehicle before Gross sold it to her
insurance company on February 11, 2016.19 At the time of the accident, Gross estimated that the
vehicle had approximately 70,000 miles on its odometer.20 No expert has ever inspected the
vehicle.21 Moore admits that he does not know where the vehicle is currently located.22
II.

PENDING MOTION
In their motion for summary judgment, Defendants principally argue that Moore has

produced insufficient evidence to satisfy his burden to show that Defendants are liable under the
LPLA.23 Specifically, Defendants point to the absence of the vehicle or any of its components,
the lack of an expert’s inspection of the vehicle or its components, Moore’s failure to provide

16

Moore had originally alleged, though, that the airbag deployed after the crash. R. Doc. 1-2 at 2.
R. Docs. 20 at 5-6; 80.
18
R. Doc. 98-3 at 57-60, 64.
19
Id. at 205, 211-15, 225, 296-98. Before Gross sold the vehicle to her insurer, Gross’s insurer also took
some photographs of the vehicle for the purpose of determining a settlement amount. Id. at 222-25, 276-95, 320-29.
Moore does not contend that any of these photographs assist in identifying either the manufacturer of the airbag
module in the vehicle at the time of the crash or any defect in the module itself.
20
Id. at 202.
21
R. Doc. 98-1 at 2-3. Moreover, Moore’s counsel has not filed a witness or exhibit list as the Court required
in its order granting the continuance, which was granted in part to allow Moore time to retain an expert. R. Doc. 107
at 4-5. Indeed, the Court warned that “plaintiff’s counsel has displayed significant ignorance of the Federal Rules of
Civil Procedure, the Local Rules of this district, and the Court’s scheduling order entered on November 9, 2017. The
Court expects that all of plaintiff’s subsequent filings and motions in this case will conform to these rules and this
Order.” Id. at 5.
22
R. Doc. 98-3 at 3, 53.
23
R. Doc. 98-2 at 2.
17

3

discovery responses disclosing specific areas of defect and supporting evidence as required by the
LPLA, and Moore’s failure to provide an expert report as required by Rule 26(a)(2)(B) of the
Federal Rules of Civil Procedure.24 Without evidence to show that the airbag in place at the time
of Moore’s accident was the original equipment airbag, Defendants contend there is no evidence
to show that Defendants, who had different roles in distributing, designing, and manufacturing the
vehicle and airbag components,25 were “manufacturers” of the airbag in the vehicle at the time of
the accident.26
Defendants thus argue that Moore cannot prove that the airbag had not been replaced,
altered, or modified after leaving the control of the manufacturer. Therefore, Moore cannot show
that the alleged unreasonably dangerous condition existed at the time the product left the control
of the manufacturer, and so the manufacturing and design defect claims must fail.27 Moreover,
Defendants maintain that Moore has not identified a flaw in the manufacturing process,28
demonstrated an alternative design,29 specified a deficient warning or proposed an alternative
warning,30 or provided evidence of an express warranty that induced Gross to purchase the
vehicle;31 consequently, each claim for an unreasonably dangerous condition under the LPLA
fails. And, Defendants continue, even if any of the aforementioned elements were met, there is no
evidence to establish that the allegedly defective airbag proximately caused Moore’s injuries, as

24

Id. at 3 & n.11 (noting that no expert report has been produced from the expert Denson Engineers, Inc.,
who the plaintiff identified as its sole expert in response to an interrogatory seeking to identify witnesses who may
testify at trial).
25
Id. at 1 n.1. Toyota Motor Engineering & Manufacturing North America, Inc. is the sole defendant who
argues it has no responsibility for the marketing, advertising, or distribution of the 2009 Toyota Corolla in question,
and therefore cannot be held liable as the manufacturer of the vehicle.
26
Id. at 6-8.
27
Id. at 8-10.
28
Id. at 10-12.
29
Id. at 12-15.
30
Id. at 16-17.
31
Id. at 17-18.

4

Moore does not remember the accident, there were no witnesses, and Moore produces no evidence
to demonstrate causation.32
In response, Moore’s initial opposition argues that the lack of direct evidence is not fatal
to his claims because he relies upon the doctrine of res ipsa loquitur, which permits him to use
circumstantial evidence to show Defendants’ liability. Moore contends that, after the period of
discovery closes, he “will demonstrate at trial through the testimony of first responders, medical
personnel, photographs, medical records, car fax reports, etc., which were all previously submitted
to the defendants,” the existence of the defect and its causation of his injuries.33 Moore also claims
that his discovery responses identified an alternative design for an airbag by referring generally to
one that would not have deployed, explaining that “[s]imply because the plaintiff has not identified
a specific model at this time does not indicate that he will not be able to produce or identify one at
a trial on the merits.”34 Additionally, Moore asserts that “an alternative design … would be one
that used compressed nitrogen or argon gas instead of sodium azide as used in the 2009 Toyota
Corolla.”35 Alternatively, in his original opposition, Moore requested additional time to determine
the best alternative.36
But Moore chose not to file any supplemental opposition to furnish expert testimony
regarding an alternative design, although he was permitted an opportunity to do so. Instead, Moore
finally filed a statement of material facts, which should have been filed months before with his
original opposition and which should have been a list of disputed material facts rather than the
argumentative memorandum he submitted. In the statement, Moore argued again that he would

32

See id. at 14.
R. Doc. 101 at 2.
34
Id. at 3.
35
Id.
36
Id. at 4. The Court effectively granted Moore’s request for additional time by continuing the October 2018
trial setting, in part, to allow Moore time to retain an expert and by permitting him to file a supplemental opposition
to the motion for summary judgment. See R. Doc. 107 at 4-5.
33

5

depend upon the doctrine of res ipsa loquitur to prove his case and asserted that no expert
testimony was necessary to prove the “relatively simple” products liability issue at hand.37
Defendants reply that Moore cannot overcome summary judgment on his manufacturingand-design-defect claims by restating the conclusory allegations in his complaint or depending
upon speculation that vague facts will be proven after a period of discovery.38 Defendants posit
that Moore’s suggestion that photographs, car reports, and the testimony of medical personnel will
prove the existence of a defect at trial is speculative and not proper summary judgment evidence
as to the existence of a defect, as is Moore’s general theorizing about an alternative design.39 Even
if Moore’s proposed alternative design for the airbag to use an inflator other than sodium azide
had a sound foundation despite being made by a layperson, Defendants’ airbag did not use sodium
azide in its inflator; therefore, Moore’s alternative is inapposite and his claim for a design defect
fails.40
Additionally, Defendants cite Lawson v. Mitsubishi Motor Sales of America, Inc., 938 So.
2d 35, 51 (La. App. 2006), to illustrate the inapplicability of res ipsa loquitur in this case, where
the evidence does not exclude an inference of the plaintiff’s own responsibility or that of others
besides Defendants in causing the accident.41 But even if res ipsa loquitur were to apply,
Defendants also rely on Edwards v. Ford Motor Co., 934 So. 2d 221 (La. App. 2006), to show that
Moore fails to meet his burden under that doctrine because Moore has not addressed the
manufacturers’ plausible alternative theories of causation – namely, that Moore crashed the
vehicle, causing the airbag to deploy; that the airbag was replaced or tampered with; and that

37

R. Doc. 111 at 3-4.
R. Doc. 114 at 2.
39
Id. at 3, 8.
40
Id. at 8 & n.35.
41
Id. at 4-5. Defendants also contend that Moore fails to demonstrate the other prerequisites to invoking the
doctrine of res ipsa loquitur because Defendants suggest Moore’s injuries plausibly resulted from a gunshot rather
than the airbag alone. Id. at 5 n.22.
38

6

Moore’s injuries were actually caused by a gunshot wound.42 Thus, Moore cannot show that his
injuries were proximately caused by a defect of the manufactured airbag.43 Also, Defendants argue
that because Moore did not address or dispute their arguments regarding his claims for a defect in
warning or nonconformance to an express warranty, those claims should be dismissed.44
III.

LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “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
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving
for summary judgment bears the initial burden of demonstrating the basis for summary judgment
and identifying those portions of the record, discovery, and any affidavits supporting the
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive

42
Id. at 7, 9-11. Defendants submit the deposition of Eric Patrick, M.D., Moore’s treating radiologist, and
the affidavit of radiologist Cynthia Day, M.D., in support of their contention that the injuries were likely caused by a
gunshot rather than the airbag’s deployment. Id. at 9-11.
43
Id. at 8-11.
44
Id. at 3.

7

law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the
evidence, review the facts, and draw any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656
(2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws
reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th
Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in

8

order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
B. Louisiana Products Liability Act
The LPLA prescribes “the exclusive theories of liability for manufacturers for damage
caused by their products.” La. R.S. 9:2800.52. Under the LPLA, a plaintiff may only recover
against a manufacturer “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.” Id. 9:2800.54(A). The
statute further limits recovery for damage resulting from “unreasonably dangerous” characteristics
to four theories of liability: (1) unreasonably dangerous in construction or composition;45 (2)
unreasonably dangerous in design;46 (3) unreasonably dangerous for failure to provide an adequate
warning;47 and (4) unreasonably dangerous for nonconformity to an express warranty.48 Id.
9:2800.54(B). The unreasonably dangerous characteristic “must exist at the time the product left
control of its manufacturer.” Id. 9:2800.54(C). The plaintiff bears the burden of proving each of
these elements of the LPLA. Id.; see also Johnson v. Transwood, Inc., 2015 WL 5680369, at *3
(M.D. La. Sept. 25, 2015) (an unreasonably dangerous condition is not presumed solely because
an injury occurred).
1. Manufacturer
To recover under any of the four theories that render a product unreasonably dangerous,
the claimant must first prove that the defendant is the “manufacturer” of the product. See Johnson,

45

See La. R.S. 9:2800.55.
See id. 9:2800.56.
47
See id. 9:2800.57.
48
See id. 9:2800.58.
46

9

2015 WL 5680369, at *4. While a “manufacturer” is defined as “a person or entity who is in the
business of manufacturing a product for placement into trade or commerce,” the statute also
recognizes that manufacturers may be the following:
(a) A person or entity who labels a product as his own or who otherwise holds
himself out to be the manufacturer of the product.
(b) A seller of a product who exercises control over or influences a characteristic
of the design, construction or quality of the product that causes damage.
(c) A manufacturer of a product who incorporates into the product a component or
part manufactured by another manufacturer.
(d) A seller of a product of an alien manufacturer if the seller is in the business of
importing or distributing the product for resale and the seller is the alter ego of
the alien manufacturer.
Id. 9:2800.53.
Here, Defendants make two arguments as to why Moore has not met his burden of proving
that Defendants are the manufacturers of the allegedly unreasonably dangerous airbag. First,
Toyota Motor Engineering & Manufacturing North America, Inc. submits that it is not a
manufacturer because it had no responsibility for the marketing, advertising, or distribution of the
2009 U.S.-bound Toyota Corolla.49 Second, while the other Defendants do not deny having played
certain roles that may qualify them as “manufacturers” of the original airbag,50 they contend that
there is no evidence to show that the airbag installed in the vehicle at the time of the accident was
the original airbag.51 Neither Moore nor Gross conducted an inspection of the used vehicle to
identify the airbag make or model at the time of purchase or since, and the vehicle’s current
whereabouts are unknown.52 Therefore, Moore has failed to rebut the plausible alternative that his

49

R. Doc. 98-2 at 1 n.1.
Id. at 1 n.1 & 6.
51
Id. at 6.
52
Id. at 6-7.
50

10

vehicle had an after-market replacement airbag that Defendants did not manufacture.53 The Court
agrees; Moore has not demonstrated that he can prove this essential element of his claim.
To bring a successful claim under the LPLA, a plaintiff must prove that defendants were
manufacturers of the allegedly defective product that caused damage. See Tunica-Biloxi Indians
of La. v. Pecot, 2006 WL 273604, at *4 (W.D. La. Feb. 2, 2006) (summary judgment granted in
favor of defendant who did not qualify as manufacturer under LPLA); Matthews v. Wal-Mart
Stores, Inc., 708 So. 2d 1248 (La. App. 1998) (no recovery for plaintiff who “failed to prove
entitlement to recovery under the LPLA” where plaintiff failed to prove defendant was
manufacturer). Because Moore has not submitted any evidence to show that the airbag was
original to the vehicle, no reasonable juror could conclude that any of the Defendants was a
manufacturer of the airbag.54 See Performance Contractors, Inc. v. Great Plains Stainless, Inc.,
2012 WL 5398534, at *7 (M.D. La. Nov. 2, 2012) (summary judgment appropriate where plaintiff
failed to present evidence that defendant was manufacturer under LPLA).
2. Theories of liability under LPLA
Even if Defendants were the manufacturers of the airbag that allegedly caused Moore’s
injuries, Moore has failed to submit sufficient evidence to sustain a claim under any of the LPLA’s
four theories of liability.
a.

Unreasonably dangerous in construction or composition

“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

53

R. Doc. 114 at 4-5 (citing R. Doc. 114-1, the affidavit of Barry Hare).
Nor does Moore present any summary judgment evidence that Toyota Motor Engineering & Manufacturing
North America, Inc. had any responsibility for the marketing, advertising, or distribution of Gross’ Toyota Corolla.
54

11

products manufactured by the same manufacturer.” La. R.S. 9:2800.55. “Accordingly, a claimant
must demonstrate not only what a manufacturer’s specifications or performance standards are for
a particular product, but how the product in question materially deviated from those standards so
as to render it ‘unreasonably dangerous.’” Welch v. Technotrim, Inc., 778 So. 2d 728, 733 (La.
App. 2001) (citations omitted).
Here, Moore has presented no evidence as to the manufacturer’s specifications or
performance standards for producing the airbag, nor has Moore submitted evidence to show how
a flaw in the manufacturing process caused his particular airbag to be defective. Instead, Moore
points to the crash and his resulting injuries as proof that a manufacturing defect must have
existed.55 However, neither conclusory allegations nor speculative discovery responses can defeat
an adequately-supported motion for summary judgment. Without evidence as to how Moore
would prove the existence of a manufacturing defect at trial, summary judgment for Defendants
would appear warranted on his manufacturing defect claim. See id. at 734 (manufacturing defect
is not presumed from the “mere fact that an accident occurred”).
But Moore insists he plans to invoke the doctrine of res ipsa loquitur in an effort to prove
the existence of the defect. In a products liability case under Louisiana law, res ipsa loquitur may
be used to establish a manufacturer’s liability. Lawson, 938 So. 2d at 49. However, res ipsa
loquitur is unavailable where the evidence does not “sufficiently exclude inference of the
plaintiff’s own responsibility or the responsibility of others besides defendant in causing the
accident,” and the plaintiff disposes of “direct evidence” that would have supported such an
inference. Id. at 50-51.

55

R. Doc. 98-3 at 9-10.
12

In Lawson, the plaintiff sought to use res ipsa loquitur to establish the defendant’s liability
under the LPLA for a defective airbag. The plaintiff theorized that the clock spring, a key
component in activating the airbag, was misaligned at the factory. About one month after the
plaintiff’s accident, the plaintiff’s experts disassembled the airbag for inspection.

Prior to

disassembly, the plaintiff’s experts did not mark the position of the clock spring. Given the
plaintiff’s handling of the evidence, the defendant contended that it was impossible to know
whether the clock spring was misaligned. The Louisiana court of appeal held that the absence of
direct evidence precluded the plaintiff’s dependence upon res ipsa loquitur to establish the
defendant’s liability for a manufacturing defect:
Was this accident the result of a manufacturing defect, as defined by the Louisiana
Products Liability Act? Was the clock spring misaligned at the factory
(i.e., defectively installed)? Or, could a misalignment have occurred if the air bag
system was accessed by a third party (perhaps a previous owner) in an effort to
repair something within the steering column? No one knows for sure. None of the
experts knows the cause of the clock spring’s malfunction. Further, there are no
service records from the Plaintiffs, and the instant record contains no information
regarding the vehicle’s maintenance during its ownership by the rental car
company. Had the Plaintiffs’ experts not tampered with the positioning of the clock
spring, direct evidence would have been available to prove or disprove the
Plaintiffs’ theory of misalignment. We do not believe that the Plaintiffs should be
able to take advantage of the doctrine of res ipsa loquitur, since direct evidence of
a possible misalignment was available prior to Plaintiffs’ disassembly of the
supplemental restraint system. Additionally, Plaintiffs did not adequately address
the probability that a previous owner had accessed, and therefore misaligned, the
clock spring mechanism.
Id. at 51 (emphasis in original).
Setting to the side Moore’s failure to offer any theory of why the airbag allegedly deployed,
the car and the airbag module and components would necessarily be essential direct evidence of
any such theory. As in Lawson, Moore’s handling of the direct evidence precludes his resort to
the doctrine of res ipsa loquitur. Moore did not have an inspection of the vehicle’s airbag done at
purchase or after the accident, and the vehicle is now unavailable. To be sure, Moore does not

13

know where the vehicle is. Instead, Moore relies upon unhelpful photographs of the vehicle and
yet-to-be offered car reports. Neither constitutes direct evidence of a possible defect. See Dortch
v. Doe, 217 So. 3d 449, 454 (La. App. 2017) (affirming summary judgment in products liability
case where plaintiff failed to locate vehicle or to offer expert testimony). Thus, because Moore
has not sufficiently excluded the possibility of his own responsibility or that of others for his
injuries, and because he has disposed of the only direct evidence that could have allowed him to
do so, under Lawson, he cannot avail himself of the doctrine of res ipsa loquitur.
b. Unreasonably dangerous in design
Section 9:2800.56 of the LPLA defines an “unreasonably dangerous in design” product as
one that “if, at the time the product left its manufacturer’s control,” the following elements are
met:
(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. An adequate warning about a
product shall be considered in evaluating the likelihood of damage when the
manufacturer has used reasonable care to provide the adequate warning to users
and handlers of the product.
A plaintiff must prove “that an alternative design existed” at the time the product was
manufactured and perform a risk-utility analysis whereby “the risk avoided by using the alternative
design (magnitude of damage discounted by the likelihood of its occurrence) would have exceeded
the burden of switching to the alternative design (added construction costs and loss of utility).”
Roman v. W. Mfg., Inc., 691 F.3d 686, 701 (5th Cir. 2012). The proposed alternative design “must
be reasonably specific and not based on mere speculation.” Id. (citing Seither v. Winnebago Indus.,
Inc., 853 So. 2d 37, 41 (La. App. 2003)).

14

Here, Moore performs no risk-utility analysis and offers no more than mere speculation of
the most conclusory sort about alternative airbag designs – namely, one “that does not
spontaneously deploy.”56 To the extent Moore’s suggestion that the alternative airbag design not
use sodium azide is more acceptably specific, it is nevertheless untested by an expert’s analysis.57
Moore has engaged no expert. Without scientifically viable evidence to show that an alternative
design would have prevented the accident and without a risk-utility analysis, summary judgment
for Defendants on Moore’s design claim is appropriate. See Broussard v. Proctor & Gamble Co.,
463 F. Supp. 2d 596, 611 (W.D. La. 2006).
c.

Unreasonably dangerous because of inadequate warning

Under the third theory of LPLA liability, a manufacturer must exercise reasonable care to
give an adequate warning for a product that “possessed a characteristic that may cause damage” at
the time the product leaves its manufacturer’s control. A manufacturer is liable for failure to
exercise reasonable care in providing notice of the characteristic and its danger to users and
handlers of the product. La. R.S. 9:2800.57(A). A manufacturer has a continuing duty to provide
an adequate warning after the product leaves its control when the manufacturer obtains actual
knowledge about “a characteristic 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.”
Id. 9:2800.57(C). However, a manufacturer is not liable for failing to warn 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

56

Id. at 10; R. Doc. 101 at 3. Moore effectively concedes he has not proposed a sufficient alternative design
by urging in his opposition that “[s]imply because the plaintiff has not identified a specific model at this time does not
indicate that … he will not be able to produce or identify one at a trial on the merits.” R. Doc. 101 at 3. A plaintiff
must do more in opposing a motion for summary judgment than to make a faint promise of future proof.
57
R. Doc. 114 at 8. Defendants note that the driver side airbag module original to the 2009 Toyota Corolla
had not been the subject of a recall related to exploding airbag inflators or ruptured airbags. R. Docs. 114 at 4; 114-1
at 4.

15

(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.
Id. 9:2800.57(B).
To prevail on an inadequate warning claim, a plaintiff must not only show that the warning
provided was inadequate but also propose an adequate warning that, if provided, “would lead an
ordinary reasonable user or handler of a product to contemplate the danger in using or handling
the product in such a manner as to avoid the danger for which the claim was made.” Seither, 853
So. 2d at 42 (quoting the definition of “adequate warning” set out in La. R.S. 9:2800.53(9))
(dismissing plaintiff’s inadequate warning claims where plaintiff presented no expert testimony
concerning warnings or any language of a proposed adequate warning). Additionally, a plaintiff
must demonstrate that the unreasonably dangerous condition which gives rise to the need for the
warning existed at the time the product left the control of its manufacturer or resulted from a
reasonably anticipated alteration or modification of the product. La. R.S. 9:2800.54(C).
Defendants argue that Moore has simply not identified an inadequate warning or proposed
any alternative warnings to support his claim. Moore offers no argument and points to no evidence
to refute Defendants’ contention that they are entitled to summary judgment on this claim.
d. Unreasonably dangerous because of nonconformity to express warranty
Section 9:2800.58 of the LPLA defines a product as 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.” The
uncontradicted evidence shows that Moore and Gross did not depend upon an express warranty
when Gross purchased the vehicle. Rather, Moore and Gross purchased the vehicle in part for its

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low mileage and low price.58 Because Moore makes no argument and points to no evidence to
refute Defendants’ contention that they are entitled to summary judgment on this claim, summary
judgment is warranted. See Broussard, 463 F. Supp. 2d at 611 (granting summary judgment where
plaintiffs only offered conclusory allegations instead of “supporting evidence that any express
warranties were made”).
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the Defendants’ motion for summary judgment (R. Doc. 98) is

GRANTED, and all of the claims of plaintiff, Robert L. Moore against Toyota Motor Sales,
U.S.A., Inc., Toyota Motor Corporation, Toyota Motor Engineering & Manufacturing North
America, Inc., and Toyoda Gosei Co., Ltd. are dismissed with prejudice.
New Orleans, Louisiana, this 14th day of March, 2019.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

58

R. Doc. 98-3 at 47, 198.
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