Erin and Owen C. Sketchler, Individually and on behalf of their minor son, Oliver Sketchler v. Daniel Hernandez, Octabio Hernandez, Louis C. Paxton, Audwin D. Finley, ADF Enterprises, Inc., Old American County Mutual Fire Insurance Company, National General Insurance Company, Cooper Insurance & Associates, Inc., The State of Louisiana through the L

STATE OF LOUISIANA
j Eal COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0292

ERIN AND OWEN C. SKETCHLER, INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR SON, OLIVER SKETCHLER

VERSUS

DANIEL HERNANDEZ, OCTABI0 HERNANDEZ, LOUIS C. PAXTON,
AUDWIN D. FINLEY, ADF ENTERPRISES, INC., OLD AMERICAN
COUNTY MUTUAL FIRE INSURANCE COMPANY, NATIONAL GENERAL
INSURANCE COMPANY, COOPER INSURANCE & ASSOCIATES, INC.,
THE STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT
OF TRANSPORTATION AND DEVELOPMENT, GRACO CHILDREN' S
PRODUCTS, INC. & AMERICAN HONDA MOTOR CO., INC.

JUDGMENT RENDERED: MAY 1 9 2021

Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa • State of Louisiana
Docket Number 2015- 1152 • Division E

The Honorable Brenda B. Ricks, Judge Presiding

Michael C. Darnell COUNSEL FOR APPELLANTS
Bruce Feingerts PLAINTIFFS— Erin and Owen
New Orleans, Louisiana C. Sketchler, individually and on
behalf of their minor son, Oliver
Sketchler

Jerry L. Saporito COUNSELS FOR APPELLEE
Caitlin Spieker DEFENDANT— Graco Children' s
New Orleans, Louisiana Products, Inc.

Stephen M. Copenhaver, pro hac vice
Joseph J. Krasovec, III, pro hac vice
Chicago, Illinois

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WELCH, J.

Plaintiffs, Erin and Owen C. Sketchler, individually and on behalf of their

minor son, Oliver, appeal a summary judgment in favor of defendant, Graco

Children' s Products, Inc. (" Graco"), dismissing plaintiffs' claims against it with

prejudice. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a motor vehicle accident that occurred on April 18,

2014, in the eastbound lane of Interstate 12 in Tangipahoa Parish.' Daniel

Hernandez, traveling westbound in the left lane on Interstate 12, collided with a

vehicle driven by Louis C. Paxton.2 The Hernandez vehicle then crossed the

median and entered the eastbound left lane, whereupon it crashed into the rear of

an 18 -wheeler driven by Audwin D. Finley. After striking the Finley vehicle, the

Hernandez vehicle struck the vehicle driven by Mr. Sketchler and in which Mrs.

Sketchler and Oliver were passengers. Each member of the Sketchler family was

seriously injured in the accident. Oliver, who was two -years old on the date of the

accident, suffered serious injuries including multiple skull fractures, subarachnoid

hemorrhage, subdural hematoma, traumatic encephalopathies, and two broken legs.

At the time of the accident, Oliver was secured in the rear, right seat of the

Sketchler vehicle in a Graco SnugRide® 30 child restraint system.

Plaintiffs filed suit against multiple defendants, including Graco, alleging a

claim under the under the Louisiana Products Liability Act (" LPLA"), La. R.S.

9: 2800. 51, et seq., for an allegedly defective child passenger restraint system.

Graco filed a motion for summary judgment, arguing that plaintiffs would be

1 We borrow these facts from our earlier opinion. See Sketchler v. Hernandez, 2018- 1634 ( La.

App. 1St Cir. 9/ 4/ 20), 2020 WL 5269829, at * 1 ( unpublished), writrag_ nted, judgment rev' d,
2020- 01475 ( La. 3/ 2/ 21), 311 So. 3d 343 ( per curiam).

2 The manner and location of the Hernandez -Paxton collision is disputed. See Sketchler, 2020
WL 5269829 at * 2 ( Holdridge, J., dissenting).

0)

unable to meet their burden of proving that the product at issue was defective or

that it caused any injury to Oliver Sketchler." Specifically, Graco contended that

the plaintiffs either disposed of or misplaced the child restraint, and without the

ability for Graco to inspect the child restraint, there is no evidence in existence to

establish that it was defective. Plaintiffs opposed the summary judgment, arguing

that according to the opinions of their experts, the child restraint was defective,

failed to perform as it should have, and that such failure caused injuries and

damages to Oliver.

Following a hearing, the trial court took the matter under advisement.

Thereafter, the trial court issued reasons for judgment, finding that because the

child restraint was disposed of or misplaced, spoliation of evidence occurred,

rendering plaintiffs unable to present evidence sufficient to carry their burden of

proof on one or more element of their LPLA claim. Accordingly, the trial court

granted Graco' s motion for summary judgment and dismissed plaintiffs' claims

against it, with prejudice. The trial court signed a judgment in accordance with its

written reasons on June 25, 2018.

The plaintiffs now appeal, raising two assignments of error. They contend

the trial court erred in granting Graco' s motion for summary judgment because

genuine issues of material fact exist as to whether Graco' s child restraint was

defective or that it caused any injury to Oliver Sketchler. Plaintiffs alternatively

contend the trial court wrongly disregarded their expert' s affidavit by determining

that there was an insufficient basis for his opinion without following the

procedures set forth in La. C. C. P. art. 1425( F).

LAW

After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

3

to judgment as a matter of law. La. C. C. P. art. 966( A)(3). In reviewing a trial

court' s ruling on a motion for summary judgment, appellate courts review

evidence de novo using the same criteria that govern the trial court' s determination

of whether summary judgment is appropriate. Georgia- Pacific Consumer

1St
Operations, LLC v. City of Baton Rouge, 2017- 1553, 2017- 1554 ( La. App.

Cir. 7/ 18/ 18), 255 So. 3d 16, 22, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d

194.

The Code of Civil Procedure places the initial burden of proof on the party

filing the motion for summary judgment, here Graco. See La. C. C. P. art.

966( D)( 1). If the mover will not bear the burden of proof at trial on the issue

raised in the motion for summary judgment, as in the instant matter, the mover is

not required to negate all of the essential elements of the adverse party' s claim,

action, or defense. See La. C. C. P. art. 966( D)( 1). See also Babin v. Winn- Dixie

Louisiana. Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 39. However, the mover

must demonstrate the absence of factual support for one or more elements essential

to the adverse party' s claim, action, or defense. La. C. C. P. art. 966( D)( 1). See

also La. C. C. P. art. 966, Comments --2015, Comment 0).

Once the motion for summary judgment has been made and properly

supported, the burden shifts to the non-moving party to produce factual support,

through the use of proper documentary evidence attached to its opposition, which

establishes the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1). If the non-

moving party fails to produce sufficient factual support in its opposition which

proves the existence of a genuine issue of material fact, La. C. C. P. art. 966( D)( 1)

mandates the granting of the motion for summary judgment. See Babin, 764 So.

2d at 40; Jenkins v. Hernandez, 2019- 0874 ( La. App. 1St Cir. 6/ 3/ 20), 305 So. 3d

365, 371, writ denied, 2020- 00835 ( La. 10/ 20/ 20), 303 So. 3d 315.

4

In ruling on a motion for summary judgment, the trial court' s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. Janney v.

Pearce, 2009- 2103 ( La. App. 1st Cir. 5/ 7/ 10), 40 So. 3d 285, 289, writ denied,

2010- 1356 ( La. 9/ 24/ 10), 45 So. 3d 1078. 3 Because it is the applicable substantive

law that determines materiality, whether a particular fact in dispute is material can

be seen only in light of the substantive law applicable to the case. Georgia- Pacific

Consumer Operations, LLC, 255 So. 3d at 22.

The LPLA provides the exclusive theories of liability for manufacturers for

damage caused by their products. See La. R.S. 9: 2800. 52. A claimant may not

recover from a manufacturer for damage caused by a product on the basis of any

theory of liability that is not set forth in the LPLA. See La. R.S. 9: 2800. 52;

ExPert Riser Sols.,
LLC v. Techcrane Int' 1, LLC, 2019- 1165 ( La. App. 1st Cir.
12/ 30/ 20), So. 3d , 2020 WL 7770882, at * 4.

To recover under the LPLA, a plaintiff must establish four elements: ( 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. See La. R. S. 9: 2800. 54( A); Delahoussaye v. Boelter,

2019- 0026 ( La. App. 1st Cir. 11/ 15/ 19), 290 So. 3d 669, 674.

3
Simply showing the presence of disputed facts is insufficient if there is no legal issue presented
by those contested facts. See Franklin Credit Mgmt. Corp. v. Gray, 2007- 1433 ( La. App. 4th

Cir. 1/ 14/ 09), 2 So. 3d 598, 603, writ denied, 2009- 0476 ( La. 4/ 17/ 09), 6 So. 3d 795. A
genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons
could disagree. If on the state of the evidence, reasonable persons could reach only one
conclusion, there is no need for a trial on that issue. A fact is " material" when its existence or
nonexistence may be essential to a plaintiffs cause of action under the applicable theory of
recovery. Kasem v. State Farm Fire & Cas. Co., 2016- 0217 ( La. App. 1st Cir. 2/ 10/ 17), 212
So. 3d 6, 13.

5

Louisiana Revised Statutes 9: 2800. 54( B) sets forth that 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; 141

2) The product is unreasonably dangerous in design as
provided in R.S. 9: 2800. 56;[ 5]

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; 161 or

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. 171

A plaintiff suing a manufacturer on the basis of a claimed injury resulting

from a defect in a product has the burden of proving the product was defective and

the defect caused plaintiffs injury. United Fire Group v. Caterpillar, Inc.,

2013- 2115 ( La. App. 1st Cir. 8/ 18/ 14), 2014 WL 4067756, at * 6 ( unpublished). A

plaintiff in a products liability action must prove that the product was defective,

i. e., unreasonably dangerous to normal use; that the product was in normal use at

the time the injury occurred; that the defect caused the injury; and that the

condition existed when the product left the control of the manufacturer or supplier.

Plaintiff must prove each of these elements by a preponderance of the evidence. A

4 " 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." See La. R.S. 9: 2800. 55.

5 A product is unreasonably dangerous in design if, at the time it left the manufacturer' s control,
there existed an alternative design that was capable of preventing the claimant' s damage, and the
likelihood and gravity of that damage outweighed the burden on the manufacturer of adopting
the alternative design and any adverse effect on the product' s utility. See La. R.S. 9: 2800. 56;
United Fire Group, 2014 WL 4067756 at * 5.
6
Liability may be imposed on a manufacturer, pursuant to La. R.S. 9: 2800. 57, because an
adequate warning about the product was not provided.

Liability may be imposed pursuant to La. R.S. 9: 2800.58, because a product does not conform
to an express warranty by the manufacturer.

0

preponderance of the evidence exists when the evidence, direct or circumstantial,

taken as a whole shows that the fact of causation sought to be proved is more

probable than not. United Fire Group, 2014 WL 4067756 at * 6.

DISCUSSION

Graco sought summary judgment on the basis that plaintiffs would be unable

to meet their burden of proving essential elements of their LPLA claim— that the

child restraint was defective or caused any injury to Oliver. In their memorandum

in support of their motion for summary judgment, Graco argued that plaintiffs

could not meet their burden of proof on these two elements because plaintiffs

either disposed of or misplaced the child restraint at issue. Graco pointed out that

plaintiffs did not allege that the child restraint failed to secure Oliver during the

accident, but rather, that the child restraint flipped onto its side during the accident,

which allegedly contributed to Oliver' s injuries. Graco argued that the child

restraint itself is the best evidence of its condition and functionality, the manner in

which it was installed at the time of the accident ( including whether it showed any

evidence of improper installation), and its performance during the accident

including whether it moved within the vehicle and if so, how and why). Without

the ability to inspect the child restraint, Graco argued that there is no evidence in

existence to establish that the child restraint was defective or that such alleged

defect caused Oliver' s injuries.

In support of its motion for summary judgment, Graco presented the petition

for damages; plaintiffs' responses to interrogatories and requests for production of

documents; the depositions of Owen and Erin Sketchler; the deposition of Derwin

Miley, a firefighter who responded to the accident; the deposition of Dr. Lori Ann

McBride, Oliver' s treating neurosurgeon; the deposition of Dr. William Accousti,

Oliver' s treating orthopedic surgeon; and a copy of the Graco SnugRideR 30 User

Manual. Based on our de novo review, the evidence submitted on behalf of Graco

7

was sufficient to point out an absence of factual support for one or more elements

essential to plaintiffs' LPLA claim.

Therefore, the burden shifted to plaintiffs to produce evidence sufficient to

establish the existence of a genuine issue of material fact. To support its position,

plaintiffs submitted their petition for damages; the affidavit of Erin Sketchler; the

affidavit of Gary R. Whitman, a mechanical engineer who consults in the fields of

occupant crash protection, crash safety, crash survival, emergency escape, and life

support engineering; and the affidavit of Dr. Morteza Shamsnia, a board certified

neurologist who treated the Sketchler family, including Oliver.

In considering expert testimony for purposes of a motion for summary

judgment, if an expert' s affidavit contains opinions that lack an adequate factual

basis, are not sufficiently reliable, or are otherwise inadmissible under La. C. E. art.

702 and La. C. C. P. art. 967( A), the opposing party must object to the affidavit.

See La. C. C. P. art. 1425( F). In the absence of an objection, as in this case, the trial

court is statutorily obligated to consider the expert' s opinions. See La. C. C. P. art.

966( D)( 2); Mariakis v. N. Oaks Health Sys., 2018- 0165 ( La. App. 1St Cir.

9/ 21/ 18), 258 So. 3d 88, 96. At that point, in determining whether the evidence

creates a genuine issue of material fact, the trial court cannot make credibility

determinations, evaluate testimony, or otherwise weigh the evidence. The trial

court must assume all affiants are credible. See Thompson v. Center for

Pediatric and Adolescent Medicine, L.L.C., 2017- 1088 ( La. App. 1St Cir.

3/ 15/ 18), 244 So. 3d 441, 446- 47, writ denied, 2018- 0583 ( La. 6/ 1/ 18), 243 So. 3d

1062; Bass v. DISA Global Solutions, Inc., 2019- 1145 ( La. App. 1St Cir. 6/ 12/ 20),

305 So. 3d 903, 909, writ denied, 2020- 01025 ( La. 11/ 4/ 20), 303 So. 3d 651;

Walker v. City of Independence Police Dep' t, 2018- 1739 ( La. App. 1St Cir.

2/ 7/ 20), 296 So. 3d 25, 34.

8

There was no objection to any of plaintiffs' evidence submitted in opposition

to Graco' s motion. Pursuant to La. C. C. P. art. 966( D)( 2), the court shall consider

any documents filed in support of or in opposition to the motion for summary

judgment to which no objection is made. Mariakis, 258 So. 3d at 96.

Accordingly, the law mandated that the trial court consider the expert affidavits

submitted by plaintiffs in their opposition.

Plaintiffs' expert, Mr. Whitman, reviewed the entirety of the evidence,

including the accident report, photos of plaintiffs' vehicle involved in the crash,

and a Graco SnugRide® 30 child restraint system. Mr. Whitman noted that

although the child restraint involved in the Sketchler accident was no longer

available for inspection, in his expert experience, he opined that " it is often

necessary and acceptable to rely on witness testimony and testing to reach

conclusions and formulate expert opinions regarding the design, use[,] and

performance of said item," therefore negating Graco' s contention that plaintiffs

could not prove a defect without producing the actual child restraint. Mr. Whitman

further opined that in his expert experience, " a well- designed and properly

installed rear -facing infant seat should be able to restrain and protect the infant and

prevent any serious injuries in an accident of this severity...." Based on his review

of the evidence, Mr. Whitman concluded that the child restraint was " properly

installed and secured by the vehicle' s seat belt at the time of the crash"; thus,

improper installation was not a contributing factor to Oliver' s injuries.

Mr. Whitman opined that the Graco SnugRide® 30 child restraint system

lacks a support leg to minimize the amount of forward and downward rotation that

occurs during a frontal crash. Mr. Whitman opined that the child restraint at issue

more probably than not failed to perform properly in this crash by allowing

excessive forward and downward rotation of the entire infant seat assembly, and/ or

allowed the carrier to detach from its base, and ultimately caused the injuries that

51

infant Oliver suffered in this crash." Although Mr. Whitman' s affidavit did not use

the term " defect," the affidavit established facts such that a fact -finder could

determine that the Graco child restraint was unreasonably dangerous.

Plaintiffs also presented the affidavit of another expert, Dr. Morteza

Shamsnia, a board- certified neurologist who treated the Sketchler family, including

Oliver, after the accident. Dr. Shamsnia evaluated and treated Oliver following the

accident; he also reviewed all of Oliver' s medical records generated following the

accident, in addition to the accident report and photographs of Oliver post-

accident. Dr. Shamsnia also noted that he " had an opportunity to review the work

of [ Mr. Whitman,] and [ agreed] with his conclusions that the injuries Oliver

experienced were caused by the lack of protection caused by the child restrain seat

and assembly." Dr. Shamsnia opined:

Based on my examination and evaluation, review of

Oliver' s medical records, and other material retrieved

relating to his injuries, including but not limited to the
Whitman report, I find that Oliver' s injuries were caused
by the car accident of April 18, 2014[,] and also caused
and enhanced by the failure of the child restraint system
to lessen the severity of the child' s injuries. This failure
will require the child to need lifetime care and will
effect [ sic] his future learning, earning, and psychosocial
capabilities, to his detriment.

Contrary to plaintiffs' contention, there is no evidence in the record, nor in

the trial court' s reasons for ruling, to indicate that the trial court weighed the

credibility of plaintiffs' experts, including Mr. Whitman and Dr. Shamsnia.

In granting Graco' s motion, the trial court found that spoliation occurred and

reasoned, " Plaintiffs cannot meet their burden of proof without producing the child

restraint."' In civil litigation, the theory of spoliation of evidence refers to an

intentional destruction of evidence for the purpose of depriving the opposing

8 Louisiana Code of Civil Procedure article 966( F) sets forth that "[ a] summary judgment may be
rendered or affirmed only as to those issues set forth in the motion under consideration by the
court at that time." Here, Graco did not raise the issue of spoliation in its motion; rather, Graco
raised spoliation in its memorandum.

10

parties of its use. Gladney v. Milam, 39, 982 ( La. App. 2nd Cir. 9/ 21/ 05), 911 So.

2d 366, 369. Generally, a litigant' s failure to produce evidence that is available to

him raises a presumption that the evidence would have been detrimental to his

case. Gladney, 911 So. 2d at 369. However, this adverse presumption is not

applicable when the failure to produce the evidence is adequately explained.

Gladney, 911 So. 2d at 369.

In response to Graco' s requests for production of the child restraint involved

in the accident, plaintiffs stated:

After diligent search, [ Plaintiffs] have been unable to
locate the car seat at this juncture due to the fact that

Plaintiffs] were unconscious immediately following the
accident, moved in with Owen Sketchler' s father for
several months following the accident, and have since
moved from our home in Ponchatoula to a home in
Metairie. However, we will continue to look for the car
seat...."

As explained by plaintiffs, there was no intentional misplacement or

destruction of the child restraint. Plaintiffs were severely injured and incapacitated

after the accident, as was their two- year old son. Plaintiffs were treated in

hospitals and then forced to move in with relatives to care for them during their

recovery, and have since moved to a new home in a different parish. However, in

its reasons for judgment, the trial court stated: " Plaintiffs have not adequately

explained the disappearance of the child restraint." In ruling on a motion for

summary judgment, the trial court' s role is not to evaluate the weight of the

evidence or to determine the truth of the matter, but instead to determine whether

there is a genuine issue of triable fact. A trial court cannot make credibility

decisions on a motion for summary judgment. Janney, 40 So. 3d at 289. Here, the

trial court made an improper credibility determination that plaintiffs' explanation

of the missing child restrain was inadequate. Because no party objected to

plaintiffs' evidence in oppositiontheir responses to Graco' s requests for

11

production wherein they explained the missing child restraint— we must accept

plaintiffs' explanation of the missing child restraint as credible. See Janney, 40

So. 3d at 289. Therefore, the trial court erred in its finding that spoliation

occurred. Further, where the evidence on summary judgment presents a choice of

reasonable inferences, such inferences must be viewed in the light most favorable

to the party opposing summary judgment. Campbell v. Hosp. Serv. Dist. No. 1

Caldwell Parish, 35, 015 ( La. App. 2nd Cir. 8/ 22/ 01), 793 So. 2d 521, 526. Any

doubt as to a dispute regarding a material issue of fact must be resolved against

granting the motion and in favor of a trial on the merits. Tillman v. Nationwide

Mut. Ins. Co., 2020- 0250 ( La. App. I" Cir. 2/ 22/ 21), So. 3d , 2021

WL 672504, at * 2.

Based on our de novo review, we reverse the trial court' s grant of summary

judgment in favor of Graco, finding that genuine issues of fact exist.

DECREE

We reverse the trial court' s June 25, 2018 judgment and remand this matter

to the trial court for further proceedings consistent with this opinion. All costs of

this appeal are assessed against defendant/ appellee, Graco Children' s Products,

Inc.

REVERSED AND REMANDED.

12