We granted these writs to determine whether Louisiana Code of Civil Procedure
FACTS AND PROCEDURAL HISTORY
Mr. Nary Cannon testified in his deposition as follows. On the evening of September 19, 1992, a fire started in his propane gas barbeque grill, which was manufactured by defendant, Sunbeam Corporation ("Sunbeam"). Mr. Cannon testified that on that evening, he had cooked hamburgers on the Sunbeam grill inside their enclosed patio. A propane tank manufactured by Sunbeam was underneath the grill on a rack and was connected to the grill and in use. A spare propane tank, manufactured by Char-Broil, was also being stored on the bottom rack next to the Sunbeam tank. Mr. Cannon preheated the grill for five to ten minutes, and cooked the hamburgers. After cooking the hamburgers, he turned the grill to the "clean mode," which is set at a higher temperature, and went inside his home. Shortly thereafter, he heard a loud hissing sound coming from the grill, looked out the patio door, and saw flames coming out of the Sunbeam tank and going up the back wall and in all directions from there. He immediately went inside to get his family out of the house and then went to a neighbor's house to call 911. He returned to view the fire from outside the patio, about 25 feet from the grill, and saw the flames still coming only from the Sunbeam tank. He then heard another loud hissing sound and saw flames coming from the Char-Broil tank and hitting the back wall. The Cannon's home was severely damaged in the fire and the Sunbeam grill and both tanks were destroyed.
The Cannons and their homeowners' insurer, Independent Fire Insurance Company, brought suit against Sunbeam, contending that the fire was caused by an unreasonably dangerous and/or defective condition of the barbeque grill or the safety valve on the Sunbeam propane tank. Sunbeam filed a third-party demand against Ray Jenkins and/or Otha Jenkins d/b/a Jenkins Towing and Jenkins Shell Service Station ("Jenkins Shell"), claiming that it negligently overfilled the spare Char-Broil tank, that the tank vented, and that the vapors ignited. Plaintiffs then amended their petition to assert a negligence claim against Jenkins Shell.
Jenkins Shell filed a motion for summary judgment, asserting that there was no evidence that Jenkins Shell had overfilled the spare tank nor any evidence that plaintiffs' property damage was proximately caused by an act of Jenkins Shell. In support of this motion, Jenkins Shell produced the deposition of Mr. Cannon which contained his eyewitness account of the fire, as stated above. In this deposition, Cannon also stated that although he did not remember exactly when or where he last filled the Char-Broil tank and had not kept any receipts, he routinely had his tanks filled at Jenkins Shell. He further testified that he had used the Char-Broil tank one or two times since it was last filled.
Jenkins Shell also produced the affidavit and deposition of Otha Ray Jenkins, who stated that he did not remember filling the Cannon's spare Char-Broil tank. Mr. Jenkins also described the customary procedure for filling a propane tank the size of the Char-Broil tank in question and attested to the fact that his propane gas facility has state inspected equipment and that he has been properly trained to fill propane tanks.
Jenkins Shell also produced the expert report and partial deposition of Harold Myers, an engineer who opined that based on the eyewitness testimony and his knowledge of other problems associated with Sunbeam grills, the fire originated from the discharge of gas from the safety valve of the Sunbeam tank when it was subjected to excessive heat in the compartment where the tanks are housed on the grill. Lastly, Jenkins Shell produced the partial deposition of expert witness Randall Bruff, an investigator for the INS Investigative Bureau, who opined that the most likely cause of the fire was the malfunction of the hose line which connected to the Sunbeam tank.
In opposition to the motion for summary judgment, plaintiffs and third-party plaintiffs produced the expert report and partial deposition of William Baynes, the Director of Engineering Services for Sunbeam Outdoor Products. Mr. Baynes performed tests using equipment similar to the Cannon's grill, but with a properly-filled spare propane tank and a non-defective operating tank and grill. He tested the grill by replicating the use of the grill as described by Mr. Cannon and by allowing the grill to remain lit on a high setting for an extended period of time, and neither caused the safety relief valve on the properly filled spare tank and nondefective operating tank to vent and expel propane. Based on his testing, he concluded that it was not possible that the flames came from the operating Sunbeam tank because when a tank is in use, the pressure in the tank, and thus the temperature, is decreasing, whereas the temperature in the spare tank is increasing. He opined that, contrary to Mr. Cannon's recollection of the incident, the only possible scenario was that the fire resulted from the accidental venting of the safety relief valve of an overfilled spare tank, the Char-Broil tank, stored under the grill. He testified that his conclusion was not based on any first-hand knowledge as to how the tank was filled because he was not present when it was filled.
At the hearing on the motion for summary judgment, the trial judge asked plaintiffs' attorney the following questions about Baynes' conclusion that the spare tank was overfilled:
The court granted Jenkins Shell's motion for summary judgment, giving the following oral reasons:
The court of appeal affirmed, but held that it could not consider the expert opinions based on a line of First Circuit cases that held as follows:
Independent Fire Ins. Co. v. Sunbeam Corp., 98-0888 (La. 1 Cir. 5/14/99), 733 So.2d 743, 746. The court concluded that, without considering the ultimate opinions or beliefs expressed by the any of the experts, plaintiffs and third-party plaintiffs did not produce sufficient evidence to prove all elements of their negligence claim against Jenkins Shell. Id. at 747. We granted writs filed by Sunbeam and Independent Fire Insurance Company to consider whether the First Circuit correctly excluded from consideration the opinions expressed by the expert witnesses. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 c/w 99-2257 (La.11/12/99), 748 So.2d 1172.
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment
La. C.C.P. art. 966(C)(2). "In effect, the amendment `levels the playing field' between the parties in two ways: first, the supporting documentation submitted by the parties should be scrutinized equally, and second, the overriding presumption in favor of trial on the merits is removed." Hardy v. Bowie, 98-2821, p. 5 (La.9/8/99), 744 So.2d 606 (citing Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41). "The amendment to Art. 966 brings Louisiana's standard for summary judgment closely in line with the federal standard under Fed. Rule Civ. Proc. 56(c) ..." Id.
Article 967 of the Louisiana Rules of Civil Procedure, which was enacted in 1960 and has been amended only once, in 1966, describes the type of documentation a party may submit in support of or opposition to a motion for summary judgment. At issue in this case is the following language of Article 967:
La. C.C.P. art. 967 (emphasis added). Consistent with other First Circuit opinions, the court of appeal in this case cited this article in refusing to consider the expert opinions, submitted by way of expert reports and depositions, in ruling on Jenkins Shell's motion for summary judgment:
733 So.2d at 746 (citing Jones v. Allstate Ins. Co., 619 So.2d 111, 114 (La.App. 1
The Third and Fifth Circuits take the view that expert opinions, by way of either affidavit or deposition, that are not based on first hand observation or knowledge, are not proper support of a motion for summary judgment. See Read v. State Farm Fire & Cas. Ins. Co., 98-720 (La. App. 3 Cir. 12/23/98), 725 So.2d 85 (holding that affidavit containing expert opinion does not meet the personal knowledge requirement of Article 967); Griggs v. Riverland Med. Ctr., 98-256 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, writ denied, 99-0385 (La.5/28/99), 735 So.2d 622; Duhon v. Southern Pac. Transp. Co., 98-268 (La. App. 3 Cir. 10/7/98), 720 So.2d 117; Ivy v. Freeland, 576 So.2d 1117 (La.App. 3 Cir. 1991) (holding that depositions containing expert testimony are also inadmissible); Hidalgo v. General Fire & Cas. Co., 254 So.2d 493 (La.App. 3 Cir.1971); but see Quick v. Myers Welding & Fabricating, Inc., 94-282 (La.App. 3 Cir. 12/7/94), 649 So.2d 999, writ denied, 95-0729 (La.4/28/95), 653 So.2d 598 (holding that expert opinion as to degree to which a welder should be aware of the consequences of an act associated with the welding process was not precluded by La. C.C.P. art. 967); McElreath v. Progressive Ins. Co., 595 So.2d 693 (La.App. 5 Cir.), writ denied, 596 So.2d 557 (La.1992); Weston v. Raymond Corp., 531 So.2d 528 (La. App. 5 Cir.), writ denied, 533 So.2d 360 (La.1988).
However, the Fourth Circuit has allowed expert opinion to support a motion for summary judgment. In Obiago v. Merrell-National Laboratory, Inc., 560 So.2d 625 (La.App. 4 Cir.), writ denied, 565 So.2d 445 (La.1990), the court held that "an expert's opinion, derived from scientific/medical data ... is more a statement of fact based on personal knowledge acquired through research and experience." See also Buffa v. Lawrence's Bakery, Inc., 615 So.2d 418 (La.App. 4 Cir.1993) (allowing expert's affidavit because it "includes facts derived from his own personal observation and inspection of plaintiffs' property as well as his opinion as a professional engineer of the cause of the damage"); Richoux v. Tulane Medical Ctr., 617 So.2d 13 (La.App. 4 Cir.1993) (holding that "[t]he opinion of a medical review panel is admissible as expert evidence in a malpractice" at the summary judgment stage, although expert opinion of an independent doctor is not); Fortenberry v. Berthier, 503 So.2d 596 (La.App. 4 Cir.1987).
The Second Circuit has treated this issue inconsistently. In some cases it has held that affidavits or depositions containing expert opinions are inadmissible. See e.g., McCoy v. Physicians & Surgeons Hosp., Inc., 452 So.2d 308 (La.App. 2 Cir.) (holding that "[s]tatements in affidavits or depositions of the opinion or belief of an expert based on his special training and experience do not meet the requirement of personal knowledge"), writ denied, 457 So.2d 1194 (La.1984); Barnett v. Staats, 25,357 (La.App. 2 Cir. 1/19/94), 631 So.2d 84; Bockman v. Caraway, 29,436 (La.App. 2 Cir. 4/2/97), 691 So.2d 815 (affidavits not admissible). In other cases, the Second Circuit has held that affidavits containing expert opinion evidence are proper support for a motion for summary judgment. See e.g., Gardner on Behalf of Gardner v. Louisiana State Univ. Med. Ctr. in Shreveport, 29,946 (La.App. 2 Cir. 10/29/97), 702 So.2d 53; Bailey v. United Gas Pipe Line Co., 27,655 (La.App. 2 Cir. 12/6/95), 665 So.2d 664, writ denied, 96-0058 (La.2/28/96), 668 So.2d 372.
Contrary to the unsettled state of the jurisprudence under our state law, federal courts, which are governed by virtually the same "personal knowledge" requirement as Louisiana Courts,
In Daubert, the plaintiff offered expert opinion evidence in opposition to a motion for summary judgment, which the lower courts found was not sufficient to overcome defendants' motion for summary judgment because the expert opinion was based on a scientific technique which was not "generally accepted" as reliable in the relevant scientific community, citing Frye v. U.S., 54 App.D.C. 46, 47, 293 F. 1013 (1923). 951 F.2d 1128 (9 Cir.1991). The United States Supreme Court granted certiorari because of the split of authority between the circuits regarding the proper standard for the admission of expert testimony. 506 U.S. 914, 113 S.Ct. 320, 121 L.Ed.2d 240 (1992). In formulating the proper standard on this motion for summary judgment, the Court did not even refer to the "personal knowledge" requirement of Rule 56(e). Instead, the Court focused on Federal Rule of Evidence 702 regarding the general admissibility of expert testimony, which is identical to Louisiana Code of Evidence article 702.
Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. The Court found that "[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), n. 10 whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592, 113 S.Ct. 2786. The Court explained that this would entail "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. The Court then enumerated four factors which the trial court may consider in fulfilling its gatekeeping role.
In another summary judgment case, the Supreme Court recently held in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), that Daubert's general "gatekeeping" obligation "applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge." The Court further held that the trial court may consider one or more of the four Daubert factors, but that the list of factors "neither necessarily nor exclusively applies to all experts or in every case." 119 S.Ct. at 1171.
In considering whether expert opinion testimony will be admissible at trial, this Court has adopted the Daubert standards as those to be utilized by Louisiana courts. State v. Foret, 628 So.2d 1116 (La.1993). In so doing, we reasoned:
628 So.2d at 1122-23. We concluded that "[a]s we find the Daubert court's `observations' on what will help to determine this threshold level of reliability to be an effective guide, we shall adopt these `observations,' as well." Id. at 1123.
As stated earlier, because of the similarity between the amendments to La.Code of Civ. Proc. art. 966 and Fed. Rule Civ. Proc. 56(c), we have also adopted the federal courts' more liberal standard for summary judgment. Hardy v. Bowie, supra,
After all, it would be inequitable and illogical to allow a party who has eyewitness testimony to be granted a summary judgment over a party who has no eyewitness testimony, but who does have expert opinion evidence, which if believed, would contradict the eyewitness testimony. In such a case, the party with only expert opinion evidence may have actually prevailed at trial but would lose on summary judgment because his evidence would not be admissible as it is not based on personal knowledge. For example, a driver of a vehicle, claiming that her brakes were defective, may testify that she was pressing the brakes of her car but nonetheless the car increased its forward speed before a collision. She could file a motion for summary judgment attaching her affidavit attesting to the facts as she remembers them. The car or brake manufacturer, who has no eyewitness evidence, may nonetheless have expert opinion evidence that, based on his knowledge of the brake system and his training and experience, the brakes did not fail and the driver must have pressed the accelerator instead of the brakes. A jury may not believe the driver and may be convinced that based on the defendant's expert evidence, which is based on the circumstances of the case (i.e., increased, rather than decreased, speed), the driver did in fact press the accelerator and not the brakes, and would find in favor of the defendant at trial. In such a case, it would be illogical and inequitable to allow that same plaintiff, who would have lost at trial, to prevail on summary judgment because the defendant's evidence submitted in opposition to the motion was not based on personal knowledge under La. C.C.P. art. 967.
Further, as stated by the authors of a learned treatise when discussing the unsettled state of the law among Louisiana courts, "[i]t is doubtful that the redactors of the Code had experts in mind when they used the term `personal knowledge.'" Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure, § 6.8, p. 145 (1999). Article 967 was enacted in 1960, well before the proliferation of expert opinion evidence on summary judgment. Since that time, the Legislature has enacted Article 702, which allows an expert, by virtue of his knowledge, skill, experience, training, or education, to testify in the form of an opinion as to matters about which he has no personal knowledge.
We also note that, although no affidavits were submitted in support of or in opposition to the motion for summary judgment filed by Jenkins Shell, we disagree with the argument that because La. C.C.P. art. 967 specifies only that "affidavits shall be made on personal knowledge" and makes no mention of depositions, that there should be a distinction between affidavits containing expert opinions and depositions containing expert opinions. Although it is true that an expert is subject to cross examination at a deposition, affidavits are subject to challenge as well, by way of a Daubert hearing, a motion to strike,
Thus, having determined that, rather than automatically excluding expert opinion evidence at the summary judgment stage, the Daubert-Foret standards should
In this case, Jenkins' Shell presented eyewitness testimony that the flames came first from the Sunbeam tank, indicating that no condition of the spare Char-Broil tank caused the fire. Jenkins Shell also presented the expert reports and partial depositions of three experts, each of whom, based on the eyewitness account of the fire, expressed differing opinions as to the exact condition of the Sunbeam tank or grill that caused the fire, but each of whom related the cause of the fire to the Sunbeam equipment. In opposition to this motion, Sunbeam and Independent Fire presented the expert report and partial deposition of one expert witness, who opined that the Char-Broil tank must have been overfilled and this must have caused the fire, based on his testing which involved a Sunbeam tank and grill and a correctly filled Char-Broil tank. No one has argued that any of this expert opinion evidence would be inadmissible at trial under Daubert-Foret or any other evidentiary rules, and based on the record before us, we see no reason why it would be. Therefore, the remaining determination to be made is whether the evidence submitted by plaintiffs and third-party plaintiffs created a genuine issue of material fact, i.e., that Jenkins Shell overfilled the tank.
Although plaintiffs and third-party plaintiffs presented no direct evidence that the Char-Broil tank was overfilled, they did present circumstantial evidence from their expert that the Char-Broil tank was overfilled and this caused the fire.
Article 967 of the Louisiana Rules of Civil Procedure does not preclude from consideration expert opinion testimony in the form of an affidavit or deposition submitted in support of or opposition to a motion for summary judgment. Assuming no credibility determination is at issue, the trial judge must consider this evidence if he or she determines that such evidence would be admissible at trial. If qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material fact, the motion for summary judgment should be denied.
The decisions of the lower courts granting Jenkins Shell's motion for summary judgment are reversed and this case is remanded to the trial court for trial on the merits.
KNOLL, J., dissents and assigns reasons.
TRAYLOR, J., dissents for reasons assigned by KNOLL, J.
KNOLL, Justice, dissenting in part.
I agree with the majority's analysis that this Court adopt the federal Daubert-Foret standards for admissibility of expert opinion evidence at the summary judgment stage. I disagree, however, with the majority's conclusion that the evidence submitted by plaintiffs and third-party plaintiffs (nonmovers in the motion for summary judgment) created a genuine issue of material fact, i.e., that Jenkins Shell overfilled the spare tank and this tank caused the plaintiffs' harm. The majority's error arises from its failure to appreciate that the nonmovers' evidence, i.e., Sunbeam's engineer's naked expert opinion, did not meet the requirement of LA.CODE CIV. P. art. 967 in that it did not "set forth specific facts showing that there is a genuine issue for trial" that Jenkins Shell overfilled the spare tank and that this tank caused the plaintiffs' harm. (emphasis added). See Monks v. G.E. Co., 919 F.2d 1189, 1192 (6th Cir.1990) ("[T]he issue of admissibility of an expert's affidavit is distinct from the issue of whether the affidavit is sufficient to withstand a summary judgment motion.") A party opposing summary judgment may not rely on bare ultimate expert conclusions to secure a free pass to trial.
Jenkins Shell filed its motion for summary judgment and supported its motion with the deposition of Mr. Cannon. Pertinent to the issues of whether Jenkins Shell overfilled the spare tank and whether this tank was the cause of plaintiffs' damage, Mr. Cannon testified that he did not remember when or where he last had the spare tank filled and that the spare tank had been used once or twice after it was allegedly overfilled but before the fire. As
Sunbeam's expert opinion does not contain a scintilla of specific facts pertinent to the material claim at issue that Jenkins Shell overfilled the spare tank and that this tank was the cause of plaintiffs' harm. These are the only specific facts that bring Jenkins Shell into this litigation. A simple reading of the expert report and opinion reveals no facts to support an assertion that Jenkins Shell overfilled the spare tank or that a tank was even overfilled, but only argument, supposition, and bare conclusions concerning irrelevant details and general assertions to this claim. Simply stated, Sunbeam's expert opinion is nothing more than a simple assumption lacking any factual support that Jenkins Shell overfilled the spare tank and that this tank was the cause of plaintiffs' harm. The expert opinion assumes the ultimate fact in this claim, i.e., that Jenkins Shell overfilled that spare tank. (See Expert Report of Bill Baynes, Opinions # 9 & # 10).
In my view, opinions in expert affidavits do not automatically create a genuine issue of material fact. Given the codal dictate that summary judgment is "favored and shall be construed to accomplish these ends," I cannot agree that the evidence submitted by plaintiffs and third-party plaintiffs created a genuine issue of material fact that would defeat granting summary judgment in favor of Jenkins Shell. While an expert opinion is deemed admissible in opposing summary judgment, it should not defeat summary judgment when such an opinion is not grounded on specific facts that are material to the genuine issue for trial. Nonmovers have failed to establish a genuine issue of fact regarding their claims against Jenkins Shell, and the trial court properly granted summary judgment on those claims. Absent specific facts, the majority's conclusion does nothing more than frustrate this codal dictate and will render summary judgment practice a battle of baseless expert opinions. Accordingly, I respectfully dissent in part.