Dang v. Toyota Motor Sales, U.S.A., Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DAVID BUI DANG CIVIL ACTION

VERSUS NO. 22-4607

TOYOTA MOTOR SALES, U.S.A., SECTION “R” (2)

INC., ET AL.

ORDER AND REASONS

Before the Court is defendants’ unopposed motion for summary

judgment.1 For the following reasons, the Court grants the motion.

I. BACKGROUND

Plaintiff David Bui Dang brought this action in Louisiana state court

against defendants Toyota Motor Sales, U.S.A., Inc. (“TMS”),2 Toyota Motor

Engineering and Manufacturing North America, Inc. (“TEMA”), and Toyota

Motor North America, Inc. (“TMNA”).3 Plaintiff alleges that on October 19,

2020, he was driving a 2014 Lexus ES350 on the interstate in New Orleans,

Louisiana, when he involuntarily collided with a guard rail.4 Plaintiff asserts

1 R. Doc. 21.

2 On April 11, 2024, the Court dismissed TMS from the action without

prejudice for plaintiff’s failure to serve process. R. Doc. 27.

3 R. Doc. 1-1 at 7.

4 Id. at 7-8; R. Doc. 21-5 at 2.

that the vehicle’s airbags did not deploy upon impact and that, as a result of

the collision and non-deployment of the airbags, he sustained injuries to his

right ankle, right foot, knees, and head.5 Following the accident, the vehicle

was taken to an unknown junkyard by a tow company, after which it was

picked up by an automotive industry company called Copart.6 No

inspections of the vehicle were made by plaintiff or defendants following the

accident.7 Plaintiff alleges that the vehicle was manufactured by defendants

and that it was defective because its airbag safety system failed to deploy

despite a high-impact collision.8 Plaintiff’s complaint alleges that the airbag

system was unreasonably dangerous in construction and/or composition

and, therefore, seeks to hold defendants jointly liable under the Louisiana

Products Liability Act (“LPLA”).9

TEMA answered the suit, explaining that it “does not manufacture,

assemble or sell to the public any Toyota or Lexus vehicles or components

for such vehicles,” and “does not provide after sales service for Toyota or

Lexus vehicles.”10 TEMA further stated that although it had “certain limited

5 R. Doc. 1-1 at 8-9.

6 R. Doc. 21-5 at 3-4.

7 Id. at 4; R. Doc. 21-1 at 2.

8 R. Doc. 1-1 at 8.

9 Id.

10 R. Doc. 1-2 at 1-2.

involvement with the 2014 U.S. bound Lexus ES350, Toyota Motor

Corporation (“TMC”), located in Japan, was responsible for and had overall

design and developmental testing authority for the 2013-2018 U.S. bound

Lexus ES350.”11 TMNA filed an answer, asserting that it is responsible for

business efficiency and coordination among Toyota’s North American sales,

manufacturing, and engineering operations.12 TMNA denied any

responsibility for the “design, developmental testing, manufacture,

assembly, importation, distribution, inspection, sale, marketing, or servicing

of the 2014 U.S. bound Lexus ES350 or any of its systems or component

parts.”13

TEMA and TMNA removed the action on November 21, 2022, based

on diversity jurisdiction.14 TEMA and TMNA now move for summary

judgment.15 They contend that plaintiff never propounded discovery on the

named defendants, never noticed a deposition, and never disclosed any

expert witnesses or provided any expert witness report.16 TEMA and TMNA

further state that, in response to an interrogatory requesting the identity of

11 Id. at 2.

12 R. Doc. 5-2 at 15.

13 Id. at 16.

14 R. Doc. 1.

15 R. Doc. 21.

16 R. Doc. 21-1 at 4-5.

all persons who may testify on plaintiff’s behalf at trial and the substance of

their testimony, plaintiff responded “none.”17 Plaintiff also indicated in his

response to an interrogatory that he would not produce any reports,

correspondence, or analyses prepared by any experts relating to the vehicle.18

TEMA and TMNA therefore contend that, besides his own self-serving

testimony or belief that the vehicle was defective, plaintiff does not intend to

call any witnesses who can support his claims or any experts who can offer

an opinion as to why or how the lack of airbag deployment caused his

injuries.19 Without such testimony, TEMA and TMNA assert that plaintiff

cannot prove injury causation under Louisiana law.20

Moreover, TEMA and TMNA contend that plaintiff lacks evidence to

support his LPLA claim, including evidence that TEMA and TMNA are the

“manufacturers” of the allegedly defective product and that the allegedly

unreasonably dangerous characteristic of the product arose during the

product’s reasonably anticipated use when viewed from the perspective of

the manufacturer.21 TEMA and TMNA also argue that there is neither

evidence of the vehicle and its allegedly defective components and condition,

17 Id. at 5.

18 Id.

19 Id.

20 Id.

21 Id. at 5-6.

nor expert opinions supporting the allegedly unreasonably dangerous

characteristic or its causation of his injuries.22

Finally, TEMA and TMNA assert that plaintiff was intoxicated at the

time of the crash, which they contend negates plaintiff’s claim that his

injuries and damages were solely and proximately caused by the alleged

defect in the vehicle’s airbag safety system.23 TEMA and TMNA attach to

their motion certified medical records taken at the hospital where plaintiff

was treated after the accident, in which the treating physician stated that

plaintiff reportedly “drank a significant amount of alcohol and then crashed

his car on purpose [in] an attempt to end his life secondary to depression and

suicidal thoughts after a break-up 5 months ago.”24 Additionally, TEMA and

TMNA submit the deposition transcript of Officer Michael Christian, the

investigating officer deployed to the scene of the accident, who stated that

plaintiff told him that he had been drinking before the accident.25 Although

plaintiff denied having used alcohol for the twenty-four hours preceding the

accident in his responses to interrogatories,26 he did not deny his alcohol

consumption during a later deposition, stating only that he could not

22 Id.

23 Id. at 6-7.

24 R. Doc. 24-1 at 1, 3.

25 R. Doc. 21-7 at 7-8.

26 R. Doc. 1-3 at 11.

remember whether he consumed alcohol on the morning of the accident.27

TEMA and TMNA argue that this evidence undermines the causation

element of plaintiff’s claim, and that the Court is left with no other evidence

from which it can be deduced that “the cause of the accident was anything

other than the actions of the intoxicated plaintiff.”28 TEMA and TMNA

therefore assert that because plaintiff has insufficient evidence to carry his

burden of proof at trial, summary judgment is warranted. Plaintiff does not

oppose the motion.29

The Court considers the motion below.

27 R. Doc. 21-1 at 6-7; R. Doc. 21-6 at 29.

28 Id. at 7.

29 TEMA and TMNA’s motion for summary judgment was set for

submission on April 3, 2024, making plaintiff’s memorandum in

opposition due on March 26, 2024. See Local Rule 7.5. Plaintiff failed

to respond by that date. Instead, plaintiff filed an opposition fourteen

days later, on April 9, 2024. R. Doc. 26. He did so without seeking

leave of Court, and he offered no explanation for his untimely filing.

Due to a deficiency in plaintiff’s opposition, the Court marked the filing

as deficient, and gave plaintiff seven days to cure the deficiency. R.

Doc. 27. Plaintiff attempted to refile his opposition on April 17, 2024,

but the document was again marked as deficient. R. Doc. 29. Plaintiff

failed to cure the deficiency within seven days and, therefore, the

opposition is stricken from the record and will not be considered by the

Court in ruling on defendants’ motion.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (first citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and then citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). All

reasonable inferences must be drawn in favor of the nonmoving party, but

“unsupported allegations or affidavits setting forth ‘ultimate or conclusory

facts and conclusions of law’ are insufficient to either support or defeat a

motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d

1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little,

37 F.3d at 1075 (noting that the moving party’s “burden is not satisfied with

‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of

evidence” (citations omitted)). “No genuine dispute of fact exists if the

record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party must put forth evidence that would

“entitle it to a directed verdict if the evidence went uncontroverted at trial.”

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)

(quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)

(internal quotation marks omitted)). “[T]he nonmoving party can defeat the

motion” by either countering with evidence sufficient to demonstrate the

“existence of a genuine dispute of material fact,” or by “showing that the

moving party’s evidence is so sheer that it may not persuade the reasonable

fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘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 that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

In the Fifth Circuit, a district court may not grant a “default” summary

judgment on the ground that it is unopposed. See Morgan v. Fed. Express

Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). Even in

the context of unopposed motions for summary judgment, the movant must

show that there is no genuine issue of material fact, and that it is entitled to

summary judgment as a matter of law. Hetzel v. Bethlehem Steel Corp., 50

F.3d 360, 362 n.3 (5th Cir. 1995) (quoting Hibernia Nat. Bank v.

Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.

1985)). If the moving party fails to meet its burden, the Court must deny its

motion for summary judgment. Id. In determining whether the movant has

met its burden, the Court may accept the movant’s evidence as undisputed.

Morgan, 114 F. Supp. 3d at 437 (quoting UNUM Life Ins. Co. of Am. v. Long,

227 F. Supp. 2d 609 (N.D. Tex. 2002)).

III. DISCUSSION

Plaintiff brings his claims pursuant to the LPLA. The LPLA provides

for “the exclusive theories of liability for manufacturers for damage caused

by their products.” La. Rev. Stat. Ann. § 9:2800.52; see also Brown v. R.J.

Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995) (noting that the

LPLA’s remedies are “exclusive”). The elements of a products liability claim

under the LPLA are “(1) that the defendant is a manufacturer of the product;

(2) that the claimant’s damage was proximately caused by a characteristic of

the product; (3) that this characteristic made the product ‘unreasonably

dangerous’; and (4) that the claimant’s damage arose from a reasonably

anticipated use of the product by the claimant or someone else.” Jack v.

Alberto-Culver USA, Inc., 949 So. 2d 1256, 1258 (La. 2007) (citing La. Rev.

Stat. Ann. § 9:280054(A)). A product is “unreasonably dangerous” within

the meaning of the statute “if and only if” it is unreasonably dangerous: (1) in

construction or composition, (2) in design, (3) because of inadequate

warning, or (4) because of nonconformity to an express warranty. La. Rev.

Stat. Ann. § 9:2800.54(B)(1)-(4). Thus, the LPLA limits the plaintiff to four

theories of recovery: construction or composition defect, design defect,

inadequate warning, and breach of express warranty. See id.

In his interrogatory responses, plaintiff contends that the vehicle at

issue was defective both in construction or composition and in design.30

TEMA and TMNA contend that plaintiff cannot sustain his burden under the

LPLA on either theory of recovery.31 See Caboni v. General Motors Corp.,

398 F.3d 357, 361 (5th Cir. 2005) (“[T]he claimant in an LPLA products

liability claim has the burden of proving every element of the claim.” (citing

La. Rev. Stat. Ann. § 9:2800.54(D)). First, they argue that plaintiff cannot

prove that they were the manufacturers of the subject vehicle so as to be

liable under the LPLA.32 See Ayala v. Enerco Group, Inc., 569 F. App’x 241,

245 (5th Cir. 2014) (“The LPLA does not provide a cause of action against

sellers of products not falling under the LPLA’s definition of ‘manufacturer.’”

(citing La. Rev. Stat. Ann. § 9:2800.53)). The LPLA defines a manufacturer

as “a person or entity who is in the business of manufacturing a product for

placement into trade or commerce.” La. Rev. Stat. Ann. § 9:2800.53(1).

“Manufacturing a product” under the Act “means producing, making,

fabricating, constructing, designing, remanufacturing, reconditioning or

refurbishing a product.” Id. The statute further defines a manufacturer to

include (1) an entity that “otherwise holds himself out to be the manufacturer

30 R. Doc. 1-3 at 8-9, 17.

31 R. Doc. 21-1.

32 Id. at 9-10.

of the product”; (2) “[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”; (3) “[a] manufacturer of a product who

incorporates into the product a component or part manufactured by another

manufacturer”; or (4) “[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(1)(a)-(d). TEMA and TMNA denied that they were the

manufacturers of the subject vehicle in their answers and Rule 26

disclosures, and plaintiff has not put forth any evidence or argument

showing that a genuine issue exists as to TEMA and TMNA’s manufacturer

status. Plaintiff has therefore failed to carry his burden of proof at the

summary judgment stage as to this essential element of his LPLA claim. See

Fed. R. Civ. P. 56(c) (stating that 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, 477 U.S. at 322 (holding that a party may support

its motion for summary judgment by showing that there is no evidence to

support an essential element of the non-movant’s claim); see also Stahl v.

Novartis Pharm. Corp., 283 F.3d 254 (5th Cir. 2002) (“[I]f the non-moving

party can point to nothing in the record supporting its claim, summary

judgment is appropriate.”).

Additionally, TEMA and TMNA assert that summary judgment is

warranted because plaintiff cannot prove a defect either in construction or

composition or in design. First, as to the “construction or composition” or

“manufacturing” defect claim, “plaintiff must establish that, at the time the

product left the 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.’” Stahl, 283 F.3d at 261 (quoting La. Rev. Stat. Ann.

§ 9:2800.55). “In other words, a plaintiff must prove that a product ‘is

defective due to a mistake in the manufacturing process.’” Abrogast v. Timex

Corp., No. 05-2076, 2010 WL 148288, at *5 (W.D. La. Jan. 12, 2010)

(quoting Stahl, 283 F.3d at 263). Furthermore, “[t]o make this showing, a

plaintiff ‘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.’” Moore v. BASF Corp., No. 11-1001, 2012 WL

6025917, at *3 (E.D. La. Dec. 4, 2012) (quoting Welch v. Technotrim, Inc.,

778 So. 2d 728, 733 (La. App. 2 Cir. 2001)).

Here, plaintiff alleges that the vehicle involved in the accident was

defective in its construction or composition because its airbag safety system

failed to deploy despite the vehicle sustaining a high impact front end

collision.33 In response to an interrogatory asking plaintiff to specify the

alleged manufacturing defect and to identify any specifications or

performance standards from which he contends the vehicle deviated,

plaintiff responded:34

Research was conducted about the manufacturing defects of the

Toyota airbags and it stated that “NHTSA said in April it had

identified two frontal crash events, including one fatal crash

‘involving Toyota products where (electrical overstress) is

suspected as the likely cause’ of airbags not deploying. Both

involved newer Corolla cars.”

Plaintiff’s reference to an undated, general report, which is not itself in

the record, of two accidents involving vehicles of a different make and model

is insufficient to support a manufacturing defect claim. See Brocato v.

DePuy Orthopaedics, Inc., 2015 WL 854150, at *3 (E.D. La. Feb. 25, 2015)

(noting that a manufacturing defect claim is shown by comparing the

33 R. Doc. 1-1 ¶ 6; R. Doc. 1-3 at 17 (“Plaintiff claims that the airbag failing

to come out is dangerous [in construction and/or composition].”).

34 R. Doc. 1-3 at 8-9.

allegedly defective product to identical product models). Plaintiff has also

failed to show how the allegedly defective vehicle’s airbag system materially

deviated from any comparator products’ airbag systems. See Md. Cas. Co. v.

Wal-Mart Stores, Inc., No. 05-1399, 2009 WL 1766856, at *2 (M.D. La. June

19, 2009) (holding that plaintiffs “failed to present any evidence to create an

issue of material fact regarding the issue of defective construction or

composition of” allegedly defective Christmas tree lights because they did not

argue that the defective lights were materially different from exemplar

lights). Because the subject vehicle has been taken to a junkyard, and

plaintiff did not inspect or test the vehicle’s airbag system beforehand,35

plaintiff cannot demonstrate that the product deviated from any “otherwise

identical” product. See Moore v. BASF Corp., No. 11-1001, 2012 WL

6025917, at *2-3 (E.D. La. Dec. 4, 2012) (holding that because plaintiffs did

not test the particular paint products used in the allegedly defective product,

and did not show that they “even ha[d] custody of the paint in question so

that tests may be conducted,” plaintiffs failed to show that the products

deviated otherwise identical products). Moreover, plaintiff has not

submitted or identified any summary judgment evidence, expert or

otherwise, showing what the manufacturer’s specifications or performance

35 R. Doc. 1-3 at 3-4, 16.

standards were for the Lexus ES350 and its airbags, or how the plaintiff’s

vehicle and its airbag system materially deviated from these standards so as

to render it unreasonably dangerous. See Lacassin v. Virco, Inc., No. 11-CV-

2104, 2012 WL 6183682, at *4-5 (W.D. La. Dec. 11, 2012) (granting summary

judgment on manufacturing defect claim when plaintiff did not present “any

objective evidence, expert or otherwise, that a defective condition actually

existed in the [product] at the time it left [the manufacturer’s] control”);

Arant v. Wal-Mart Stores, Inc., No. 13-cv-2209, 2015 WL 1419335, at *4-5

(W.D. La. Mar. 26, 2015), aff’d 626 F. App’x 237 (5th Cir. 2015) (holding that

expert testimony was required to prove LPLA claims when the question

before the jury was “not an assessment that a lay person can make from a

mere inspection of the product itself,” and granting summary judgment

because plaintiff failed to submit any expert or other testimony as to the

alleged unreasonably dangerous characteristic). Without such evidence,

plaintiff has failed to identify specific facts that establish a genuine issue for

trial as to whether the vehicle was unreasonably dangerous in construction

or composition. See Reynolds v. Bordelon, 172 So. 3d 607, 613-14 (La. 2015)

(finding no competent summary judgment evidence to support plaintiff’s

“construction or composition” defect claim when plaintiff’s expert was not

confirmed as an airbag expert or an accident re-constructionist, and there

was no factual evidence to support claim); Fernandez v. Tamko Bldg. Prods.,

Inc., 2 F. Supp. 3d 854, 870-71 (M.D. La. 2014) (holding that plaintiff failed

to point to any evidence that the product failed to conform to manufacturer’s

performance standards or specifications without evidence of the

performance standards or product specifications or evidence of applicable

industry or regulatory standards); Brunet v. Alcon Lab’ys, Inc., No. 07-3618,

2008 WL 1771911, at *3 (E.D. La. Apr. 17, 2008) (granting summary

judgment on manufacturing defect claim because “plaintiffs [ ] failed to

provide any evidence that suggest[ed] that the [allegedly defective product]

deviated in any way from other [identical products], an essential element of

a manufacturing defect claim under the LPLA”); Lacoste v. Pilgrim Int’l, No.

07-2904, 2009 WL 126847, at *4 (E.D. La. Jan. 15, 2009) (granting summary

judgment because plaintiffs did not put forth evidence of defendant’s

manufacturing specifications or demonstrate how the product in question

materially deviated from such standards).

Turning to plaintiff’s design defect claim, the Court finds that plaintiff

likewise fails to point to evidence of specific facts that create a genuine issue

as to this claim. A product is defective in design if, at the time it left the

manufacturer’s control,

(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.

La. Rev. Stat. Ann. § 9:2800.56.

Plaintiff has not submitted evidence of any possible alternative designs

for the Lexus ES350’s airbag system that would have lowered the risk of the

airbags not deploying. Indeed, in response to an interrogatory requesting

that plaintiff specify the nature of the alleged design defect and any

alternative designs plaintiff claims would have prevented or lessened his

damages, plaintiff merely responded that he “believe[d] that the accident

happened because there were defects related to the sensors in the vehicle.”36

Plaintiff’s unspecific, conclusory response based solely on his own belief and

speculation is insufficient to support a design defect claim. And plaintiff has

not presented any evidence to support the elements of this claim, including

evidence that safer alternative designs were in existence at the time the

vehicle left the manufacturer’s control or that the risk avoided by such

36 R. Doc. 1-3 at 8.

designs outweighed the burden of adopting the designs. See Morgan v.

Gaylord Container Corp., 30 F.3d 586 (5th Cir. 1994) (citing Lavespere v.

Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 181, 183 (5th Cir. 1990)).

Although it is not fatal to plaintiff’s design defect claim that he does not

intend to call any expert witness or present any expert report,37 Malbrough

v. Crown Equip. Corp., 392 F.3d 135, 137 (5th Cir. 2004), plaintiff’s own

testimony, without any “expert testimony or other convincing technical

evidence,” is insufficient to satisfy his burden of proof. Haskins Trucking

Inc. v. Goodyear Tire & Rubber Co., No. 07-0585, 2008 WL 1775272, at *5

(W.D. La. Apr. 17, 2008) (“[A] review of the case law involving Louisiana

products liability claims reveals that courts generally demand, or at a

minimum favor, expert testimony to prove an unreasonably dangerous

defect in composition or design of a product.”); see also Belleau v.

Bridgestone/Firestone N. American Tire, LLC, No. 05-192, 2008 WL

565480, at *1 (M.D. La. Feb. 28, 2008) (holding that plaintiffs’ own

testimony about an accident allegedly caused by defective tire and their

argument that there were issues of fact in defendant’s expert reports was

insufficient evidence to satisfy burden of proof). Plaintiff has therefore failed

37 Id. at 7-8, 16-17.

to set out specific facts showing that a genuine issue exists as to his design

defect claim.

Accordingly, the Court finds that plaintiff has failed to present evidence

sufficient to enable a reasonable trier of fact to conclude that he has

established the essential elements of his LPLA claims. The Court therefore

grants summary judgment in favor of defendants.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the motion for summary

judgment. Plaintiff's claims against TEMA and TMNA are DISMISSED

WITH PREJUDICE.

New Orleans, Louisiana, this__1st__ day of May, 2024.

_herek Veree

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

20