Admissibility of Expert Testimony at Summary Judgment in Louisiana: Examining the Embers of Independent Fire Insurance Co. v. Sunbeam Corp.

Author:J. Parker Layrisson

I. Independent Fire-The Setting A. Facts And Procedural History of Independent Fire B. "Certworthiness" of Independent Fire 1. Overview of Summary Judgment and Expert Testimony Legislation 2. Split in the Courts II. The Independent Fire Decision A. Justice Victory's Victory B. Examining the Court's Rationale 1. Legislative Intent 2. Deference to Federal Jurisprudence 3. Judicial Economy 4.... (see full summary)


The author wishes to thank Professor Frank L. Maraist for his careful guidance and generous encouragement in advising this paper.

The interplay between advances in modern technology and expanding notions of tort law has spurred a sharp rise in the use of expert testimony in trials in the past two decades.1 This increase has been so dramatic that some scholars have declared that the American judicial hearing is becoming "trial by expert."2Not surprisingly, parties seeking to extinguish litigation by moving for summary judgment have sought to capitalize on the "trial by expert" trend by supporting such a motion with affidavits and depositions from experts.3 Federal courts have traditionally admitted expert testimony in support of motions for summary judgment.4 Louisiana circuit courts, however, have resisted allowing this type of evidence at summary judgment stage.5 The issue did not squarely reach the Louisiana Supreme Court until last year.

In Independent Fire Insurance Co. v. Sunbeam Corp.,6 the Louisiana Supreme Court considered the admissibility of expert opinion testimony in summary judgment proceedings. Noting that the redactors of the Louisiana Code of Evidence patterned the articles after the Federal Rules of Evidence,7 the court overruled a number of circuit decisions excluding expert opinion evidence and instead adopted the federal rule.8 The standard announced in Independent Fire requires that a trial judge admit expert testimony produced at summary judgment stage if the evidence would be admissible at trial.9

This casenote examines the holding in Independent Fire as well as the implications of the new rule. Part I surveys the relevant provisions of the Louisiana Code of Civil Procedure and the Louisiana Code of Evidence, comparing them to their counterparts in the federal system. Part I also explores the confusion of the lower courts prior to Independent Fire and summarizes the federal rule of law on admissibility of expert testimony at summary judgment. Part II discusses the majority opinion in Independent Fire, focusing on the decision's (1) adherence to legislative intent, (2) principle of deference to federal evidence law, (3) effect on the judicial economy, (4) accordance with fairness, and (5) impact on the trial court's Daubert-Foret analysis. This casenote approves the decision on a whole while noting that this change in the law comes with a price.

I. Independent Fire-The Setting

A. Facts And Procedural History of Independent Fire

Independent Fire is a classic example of the relationship between expert opinion testimony and the motion for summary judgment. often the trier of fact can only comfortably determine an issue of causation with the aid of scientific or technical expert testimony. In such cases, the admission (or denial) of expert testimony, in support of or opposition to a motion for summary judgment, potentially determines the success or failure of the motion.

Independent Fire involved a suit for damages resulting from a fire that severely damaged the home of Mr. and Mrs. Nary Cannon.10 On September 19, 1992, a fire started in Cannon's propane barbecue grill, which was manufactured by Sunbeam Corporation ("Sunbeam"). The fire spread to plaintiffs' home causing damage. The grill contained an undercarriage rack designed for storage. Two propane tanks rested on the rack. The first tank, manufactured by Sunbeam, was connected to the grill and in use at the time the fire started. The other, a spare tank manufactured by Char-Broil, was not in use at the time of the fire. Although Mr. Cannon could not specifically remember when or where he refilled the spare tank, he stated that he routinely filled his tanks at Jenkins Shell Service Station ("Jenkins Shell"). Cannon did, however, recall that he had used the spare tank several times since last refilling it.11

Immediately prior to the accident, Mr. Cannon had cooked hamburgers on his grill, which was located inside an enclosed patio. When finished cooking, he turned the heat selection knob to "clean mode" and went inside his home. Shortly thereafter, he heard a loud hissing sound coming from the grill area. Looking out the patio door, Cannon saw flames spewing from the Sunbeam gas tank and up the wall. He went to a neighbor's house and called for help. Cannon returned to view the fire from a location outside the patio and saw that the flames were still coming from the Sunbeam tank.

The Cannons and their homeowners' insurer, Independent Fire Insurance Company, brought suit against Sunbeam under the Louisiana Products Liability Act. They alleged that an unreasonably dangerous and/or defective condition of the grill or Sunbeam propane tank caused the fire. In response, Sunbeam filed a third party demand against Jenkins Shell alleging that Jenkins Shell overfilled the spare Char-Broil tank. Jenkins Shell filed a motion for summary judgment, asserting that plaintiffs produced no evidence indicating that Jenkins Shell overfilled the spare tank; and, in the alternative, even if the spare tank was overfilled, eyewitness testimony established that the Char-Broil tank was not cause-in-fact of the fire; and that no evidence suggested that plaintiffs' property damage was proximately caused by an act of Jenkins Shell.12 In support of its motion for summary judgment, Jenkins Shell offered the depositions of Mr. Cannon and Mr. Otha Ray Jenkins of Jenkins Shell. Mr. Jenkins testified that he did not remember filling the spare Char- Broil tank. Mr. Jenkins also stated that his propane facility had state-inspected equipment and that he received proper training on filling propane tanks.13 Jenkins Shell also produced the reports of three expert witnesses and portions of their depositions. Fred Liebkemann, a mechanical engineer, opined in his expert report that propane gas discharged by the Sunbeam tank caused the fire. He further concluded, based on his examination of the Jenkins Shell facility and Cannon's eyewitness testimony, that the spare Char-Broil tank had not been overfilled. Another engineer, Harold Myers, agreed that the fire originated from gas escaping from the Sunbeam tank. Finally, Randall Bruff, an investigator for the INS Investigative Bureau, maintained that the most likely cause of the fire was a defect in the hose line connected to the Sunbeam tank.14

In opposition to the motion for summary judgment, the plaintiffs and Sunbeam produced the expert report and partial deposition of William Baynes, the director of engineering services for Sunbeam. Based on tests performed on equipment similar to plaintiffs' propane grill, Baynes concluded that, contrary to Mr. Cannon's eyewitness testimony, it was not possible that the flames came from the operating Sunbeam tank. In Bayne's opinion the only possible source of the flames was an overfilled spare tank.15

Following a hearing, the trial court granted Jenkins Shell's motion for summary judgment.16 The court of appeal affirmed,17 but held that the trial court could not consider the expert opinions at the summary judgment stage.18 Nevertheless, the court of appeal concluded that plaintiffs and Sunbeam failed to produce evidence sufficient to prove all the elements of their negligence claims against Jenkins Shell.19

B. "Certworthiness" of Independent Fire

Understanding why writs were granted in Independent Fire begins with an examination of the relevant articles of the Louisiana Code of Civil Procedure and the Louisiana Code of Evidence, the corresponding Federal Rules, the inconsistent views of Louisiana's appellate courts prior to Independent Fire, and the relevant federal jurisprudence. A study of these materials reveals that federal and state summary judgment legislation, while textually similar, has been interpreted differently.

1. Overview of Summary Judgment and Expert Testimony Legislation

If one of the parties to litigation can demonstrate by affidavits, depositions, and an opponent's admissions that a case presents no genuine issue of material fact,20the trial court may render judgment as a matter of law through a procedure known as summary judgment.21 The Louisiana Code of Civil Procedure provides for summary judgment in Article 966, in particular that a motion for summary judgment shall be granted "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 material fact, and that mover is entitled to judgment as a matter of law."22 In recent years, the Legislature and the Judiciary have battled over the standard applicable in summary judgment proceedings. Before 1996, Louisiana courts granted summary judgment "cautiously and sparingly."23 During that time, courts favored trial on the merits.24 However, in 1996 the Legislature amended Article 966 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action."25 The revision added that the procedure is "favored"26 and that a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.27 Finally, the amendment stated, "[n]otwithstanding any other provision of this Article to the contrary, the burden of proof shall remain with the mover."28

The purpose of the 1996 amendment was to incorporate into Louisiana jurisprudence the holding of Celotex Corp. v. Catrett,29 a United States Supreme Court case which adopted a liberal summary judgment standard.30 However, despite the design of the 1996 amendment, most Louisiana circuit courts held that the amendment did not represent a change in the burden of proof in a summary judgment proceeding.31 The sole exception was Hayes v. Autin,32 which declared that the amendment "levels the playing field"33 between the two parties to a motion for summary judgment in two ways: (1) the supporting documentation submitted by the parties should be scrutinized...

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