Otwell v. Hutchison

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

JAMES HUGH OTWELL, ET AL. CASE NO. 3:18-CV-00523

VERSUS JUDGE TERRY A. DOUGHTY

SIDNEY HUTCHISON, ET AL. MAG. JUDGE KAREN L. HAYES

RULING

Pending before the Court is a Motion for Summary Judgment filed by Defendant Ace

Tire & Axle, Inc. (“Ace”) [Doc. No. 52]. Plaintiff James Hugh Otwell (“Otwell”) has filed a

response in which he states he does not oppose the granting of Ace’s Motion for Summary

Judgment [Doc. No. 54].

For the following reasons, Ace’s motion is GRANTED.

I. FACTS

Plaintiffs, James and Carrie Otwell, filed suit against Sidney Hutchison (“Hutchison”);

his insurer, National Fire Insurance Company (“National Fire”); Cappaert Manufactured

Housing, Inc. (“Cappaert”); and Ace, seeking to recover damages for personal injuries.

On May 10, 2016, Hutchison was towing a Cappaert mobile home from Vicksburg,

Mississippi, to Monroe, Louisiana. Hutchison was proceeding south on U.S. Highway 165 and

Otwell was traveling directly behind Hutchison. According to the First Amended Complaint, as

Hutchison was driving south on U.S. Highway 165, a hub on an axle allegedly broke, causing a

tire to become free from the Cappaert mobile home Hutchison was towing and strike Otwell’s

vehicle. Specifically, Plaintiffs have asserted “the hub for one of the tires on the mobile home

failed, causing the wheel (with metal rim) to separate from the hub and axle” and come down the

highway. [Doc. No. 23].

Ace refurbishes axles, hubs, rims, and tires and then provides the refurbished axles, hubs,

rims, and tires to Cappaert. Plaintiffs have alleged that Ace did not properly refurbish the axles,

hubs, rims, and tires sold to Cappaert. In particular, Plaintiffs alleged that the incident was

caused by the negligence of Ace in the following manner: a) failure to properly inspect the

wheels and hubs on the refurbished axle; b) failure to properly refurbish the wheels and hubs on

its used axles; and c) providing defective wheels and hubs on its refurbished axles. [Doc. No. 23,

¶ 32].

Ace contends that Plaintiffs’ allegations raise design and/or manufacturing defect claims

against it under the Louisiana Products Liability Act, La. R.S. 9:2800.51 et. seq. (“LPLA”). Ace

argues that Plaintiffs fail to set forth any evidence and/or expert testimony to establish liability

under the LPLA. Accordingly, Ace contends that Plaintiffs’ claims should be dismissed.

II. LAW AND ANALYSIS

A. Summary Judgment

Summary judgment “shall [be] grant[ed] . . . if 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). A fact is “material” if proof of its existence or nonexistence would affect the

outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a

reasonable fact finder could render a verdict for the nonmoving party. Id.

If the moving party can meet the initial burden, the burden then shifts to the nonmoving

party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache

Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court

must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its

favor. Anderson, 477 U.S. at 255.

In deciding unopposed summary judgment motions, the Fifth Circuit has noted that a

motion for summary judgment cannot be granted simply because there was no opposition. Hetzel

v. Bethlehem Steel Corp., 50 F.3d 360, 362 fn.3 (5th Cir. 1995) (reversal of the granting of an

unopposed summary judgment was not warranted because trial court addressed the merits of the

motion as an alternative holding) (citing Hibernia Nat'l Bank v. Administración Cent. Sociedad

Anónima, 776 F.2d 1277, 1279 (5th Cir. 1985) (where the Fifth Circuit disapproved the granting

of an unopposed summary judgment solely on the basis it violated a local rule)). The movant has

the burden to establish the absence of a genuine issue of material fact and, unless it has done so,

the court may not grant the motion, irrespective of whether any response was filed. Powell v.

Delaney, No. CIV.A.SA00CA0426NN, 2001 WL 1910556, at *5–6 (W.D. Tex. June 14, 2001).

Nevertheless, if no response to the motion for summary judgment has been filed, the

court may find as undisputed the statement of facts in the motion for summary judgment. Id. at

*1 and n. 2, citing id.; see also Thompson v. Eason, 258 F.Supp.2d 508, 515 (N.D.Tex.2003)

(where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary

judgment evidence and movant's evidence may be accepted as undisputed). See also UNUM Life

Ins. Co. of America v. Long, 227 F.Supp.2d 609 (N.D.Tex.2002) (“Although the court may not

enter a ‘default’ summary judgment, it may accept evidence submitted by [movant] as

undisputed.”); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D.Tex.1996) (“A summary

judgment nonmovant who does not respond to the motion is relegated to [his] unsworn

pleadings, which do not constitute summary judgment evidence.”).

The court has no obligation to “sift through the record in search of evidence” to support

the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr, 19 F.3d 1527,

1533 (5th Cir.1994).

B. Analysis

Ace’s status as a manufacturer under the LPLA is undisputed. Plaintiffs have specifically

plead that “Ace is in the business of refurbishing used wheels, hubs, and axles.” [Doc. No. 23, ¶

5]. In response, Ace admitted that it is in the business of refurbishing and selling products to

mobile home manufacturers. [Doc. No. 34].

The LPLA establishes the exclusive theories against manufacturers for damages caused

by their products. LA. R.S. 9:2800.52. Pursuant to the LPLA, the manufacturer of a product shall

be liable to a claimant for damage proximately caused by a characteristic of the product that

renders the product unreasonably dangerous when such damage arose from a reasonably

anticipated use of the product by the claimant or another person or entity. LA. R.S. 9:2800.54;

Pickett v. RTS Helicopters, 128 F.3d 925, 928 (5th Cir. 1997). The LPLA further provides the

four exclusive theories under which a manufacturer may be held liable:

B. A product is unreasonably dangerous if and only if:

(1) the product is unreasonably dangerous in construction or

composition as provided in R.S. 9:2800.55;

(2) the product is unreasonably dangerous in design as

provided in R.S. 9:2800.56;

(3) the product is unreasonably dangerous because an

adequate warning about the product has not been provided

as provided in R.S. 9:2800.57;

(4) the product is unreasonably dangerous because it does

not conform to an express warranty of the manufacturer

about the product as provided in R.S. 9:2800.58.

LA. R.S. 9:2800.54(B); Pickett, supra. at 928. Under Louisiana law, the above are the exclusive

theories of liability against manufacturers for damages allegedly caused by their products. Brown

v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995); Lewis v. Intermedics Intraocular,

Inc., 56 F.3d 703, 706 (5th Cir. 1995). Hence, any claims premised on negligence or any theory of

liability beyond those set forth in the LPLA are not cognizable and should be dismissed as a matter

of law.

Here, Ace contends, and the Court agrees, that Plaintiffs have asserted design and/or

manufacturing defect claims against it, but that Plaintiffs have not asserted a defect in warning

claim or a breach of expressed warranty claim.

1. Design Defect

Pursuant to Louisiana Revised Statute 9:2800.56, a plaintiff seeking to establish a

manufacturer’s product suffered from an unreasonably dangerous design must show the following

four elements are all met:

(1) the defect existed at the time it left the manufacturer;

(2) there existed an alternative design for the product that was

capable of preventing the claimant’s damage;

(3) the likelihood that the product’s design would cause the

claimant’s damage; and

(4) that 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.

McKey v. General Motors Corp., 96-0755 (La. App. 1st Cir. 2/14/97), 691 So.2d 164, 170;

Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998); McCarthy v. Banek

Medical. Inc., 65 F.Supp.2d 410, 411 (E.D. La. 1999).

To avoid summary judgment on a claim of defective design, the plaintiffs must submit

specific and competent evidence that at the time the product left the manufacturer’s control, the

above four elements existed. McCarthy, 65 F.Supp.2d at 411. Louisiana law does not allow a fact

finder to presume an unreasonably dangerous design solely from the fact that injury occurred.

Ashley v. GMC, 666 So.2d 1320, 1322 (La. App. 2nd Cir. 1996). Without expert or technical

evidence to support the contention that the design was defective or to establish an alternative

design, plaintiffs fail to create an issue of fact to be tried to a jury. McCarthy, 65 F.Supp.2d at 412;

Marks v. R.J. Reynolds Tobacco Co., 965 F. Supp. 857, 859-60 (W.D., La. 1997).

In the instant matter, Plaintiffs have retained Rahn M. Huffstutler (“Huffstutler”), an

engineer, to offer certain opinions in this matter related to the liability issues. While Huffstutler

offered twenty-three opinions regarding or related to the incident, he did not offer an opinion

regarding a defect in design or an alternative design of any of the Ace products. [Doc. No. 52-10].

Without expert or technical evidence to support the contention that the design was defective or to

establish an alternative design, Plaintiffs fail to create an issue of fact to be tried to a jury.

McCarthy, 65 F.Supp.2d at 412; Marks, 965 F. Supp. at 859-60. Accordingly, any alleged design

defect claim must be dismissed.

2. Unreasonably Dangerous in Construction or Composition

To the extent Plaintiffs have also alleged the axle, hub, rim, or tire were unreasonably

dangerous in construction or composition, Ace asserts Plaintiffs cannot offer adequate evidence to

support this claim and, as such, the claim should be dismissed.

Louisiana Revised Statute 9:2800.55 provides:

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.

In order to establish that a product was unreasonably dangerous in construction or

composition, a claimant must demonstrate what a manufacturer’s specifications or performance

standards are for a particular product and how the product in question materially deviated from

those standards so as to render it unreasonably dangerous. Milton v. Rapiscan Security Products,

04-591, 2005 WL 1400433 (E.D. La. 2005); Welch v. Technotrim, Inc., 34-355 (La. App. 2 Cir.

1/24/01), 778 So.2d 728.

Here, Plaintiffs have failed to develop any evidence that the subject products (axle, hub,

rim and tire) in any way deviated from the manufacturer’s specifications or performance

standards and, therefore, they cannot meet their burden of proving a manufacturing defect at

trial. Moreover, under Louisiana law, a trier of fact may not infer the existence of a vice or defect

in a product merely based on the fact an accident occurred. Jaeger v. Automotive Cas. Ins. Co.,

1995-2448 (La. App. 4 Cir. 10/9/96), 682 So.2d 292.

Additionally, Plaintiffs’ discovery responses do not identify a defect in construction or

composition. [Doc. Nos. 52-8 and 52-9]. Likewise, Huffstutler did not identify a “defect in

construction or composition” or “manufacturing defect” in his report. [Doc. No. 52-10]. As a

result, Plaintiffs have failed to offer any evidence that the Ace products deviated from its

standards, or, the specific manner in which a product may have deviated. Thus, Plaintiffs cannot

meet their burden of proving that any Ace product was unreasonably dangerous in construction

or composition and this claim should be dismissed.1

1 Having found that Ace is entitled to summary judgment on these grounds, the Court need not consider

Ace’s additional argument that, since neither Plaintiffs nor any of the Defendants have the axle or hub, Plaintiffs

have no evidence to support a product liability claim.

CONCLUSION

For the foregoing reasons, Ace’s Motion for Summary Judgment [Doc. No. 52] is

GRANTED. Plaintiffs’ claims against Ace are DISMISSED WITH PREJUDICE.

Monroe, Louisiana, this 19" day of February, 2020.

[se : = ol

TERRY A. DOUGHTY ()

UNI STATES DISTRICT JUDGE