GORDON v. FORD MOTOR COMPANY (2025)

This matter is before us on an application for supervisory writs (Docket No. 25-C-85) filed herein by plaintiff-appellant, Janis Gordon, from the district court's January 14, 2025 judgment granting defendant-appellee's Daubert Motion/Motion in Limine to Exclude Certain Expert Opinions of Mr. Kurt Weiss (the “Daubert Motion”) and on appeal (Docket No. 25-CA-100) by plaintiff-appellant from the district court's judgment, entered on the same day, granting defendant-appellee's Motion for Summary Judgment (the “Summary Judgment Motion”) and dismissing plaintiff's-appellant's case under the Louisiana Product Liability Act, La. R.S. 9:2800.51, et seq. (the “LPLA”). The plaintiff's-appellant's writ application and appeal have been consolidated by us for disposition. For the reasons stated below, we affirm the district court's judgment granting the Daubert Motion, vacate the district court's judgment granting the Summary Judgment Motion as to Ms. Gordon's design defect claim only, affirm the district court's judgment granting Summary Judgment as to Ms. Gordon's remaining claims under the LPLA, and remand the matter for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

On May 22, 2021, Janice Gordon was driving her 2012 Lincoln Navigator (the “2012 Navigator”) northbound on State Hwy. 43, in Pearl River County, Mississippi. Ms. Gordon was in the process of making a left-hand turn into a private driveway when her vehicle was struck by a 2016 Honda Civic, which was also traveling northbound on Hwy. 43 and, at the time, was illegally attempting to pass Ms. Gordon's vehicle on the left.

The right front bumper of the Honda struck the left front wheel of Ms. Gordon's vehicle. Ms. Gordon, who was wearing her seat belt at the time of the collision, suffered a 1 cm puncture-type laceration to the left side of her scalp. She experienced pulsatile bleeding and significant loss of blood. The car's air bags did not deploy. Ms. Gordon told EMTs at the scene that she did not lose consciousness during the accident.¹ She went to the hospital by ambulance, where her injury was cleaned and sutured. She was released from the hospital the same day. Ms. Gordon claimed that days after the accident, she began to experience headaches, tiredness, fatigue, and vision problems that she did not have prior to the accident. She attributed these conditions to the head wound she sustained in the accident.

Ms. Gordon filed suit against the Ford Motor Company (“FMC”), the manufacturer of the 2012 Navigator, on May 18, 2022. In her petition, she alleged that, as a result of the collision, she struck her head on the driver's side seat belt guide (hereinafter, the “D-ring”), which pivoted upward upon impact.² She alleged that when her head struck the D-ring, an artery in her head was punctured or lacerated, causing her to sustain serious injuries. Ms. Gordon further alleged that at the time of the collision, she was using the seat belt for its intended purposes and in a reasonably foreseeable manner but that the D-ring was unsafe, defective, and/or that it malfunctioned at the time of the accident. Ms. Gordon alleged various acts of negligence on the part of FMC in the design and manufacture of the D-ring, and in the sale and distribution of the vehicle containing the allegedly faulty D-ring.

FMC filed an Answer on July 16, 2022. Thereafter the parties engaged in discovery. On March 7, 2024, Ms. Gordon retained Kurt D. Weiss, a collision reconstructionist and forensic engineer, as an expert witness.

Mr. Weiss produced a report entitled “Restraint System Analysis Report,” dated April 15, 2024 (the “Original Report”). Mr. Weiss's opinions in the Original Report related solely to the design of the seatbelt system. He did not address or opine on Ms. Gordon's claims that the D-ring was unreasonably dangerous in construction or composition, failed to conform to an express warranty of the manufacturer, and/or that FMC failed to warn of the hazard posed by the D-ring design. Ms. Gordon testified in her deposition that she was only pursuing her claim that the D-ring was unreasonably dangerous due to faulty design.

In preparation for his deposition, which occurred on October 11, 2024, Mr. Weiss produced a supplemental report (the “Supplemental Report”), dated September 9, 2024. At his deposition, Mr. Weiss testified that the Supplemental Report was intended to be an “opinion page,” because the Original Report did not set forth the supporting bases for his opinions. He described the Supplemental Report as a “cheat sheet,” created so that he would not forget anything when he testified at his deposition. Mr. Weiss said that the Supplemental Report did not contain any new opinions, but memorialized the opinions already presented and provided support for those opinions.³

FMC filed a Motion for Summary Judgment on December 2, 2024. The basis of the Summary Judgment Motion was that Ms. Gordon would not be able to produce evidence at trial to substantiate each essential element of her defective design claim under the LPLA. The bases of FMC's Summary Judgment Motion were first, that Mr. Weiss's opinion that Ms. Gordon struck her head on the exposed metal portion of the D-ring was based on the faulty assumption that the plastic overmold portion of the D-ring had become dislodged when Ms. Gordon's head allegedly struck the D-ring, exposing the metal underneath. Second, FMC contended that to show that an alternative design would have prevented Ms. Gordon's injuries, Mr. Weiss was required to submit design drawings, specifications for materials, and manufacturing tolerances, which he had not produced. Third, FMC contended that Ms. Gordon, through Mr. Weiss, had not undertaken the risk-utility analysis required under La. R.S. 9:2800.56(2). Finally, FMC asserted, in the alternative, that Ms. Gordon's damages should be limited to those incurred as a direct result of the laceration/puncture injury. FMC contended that Ms. Gordon could not produce evidence at trial sufficient to demonstrate that her alleged post-accident conditions were attributable to that injury.

Ms. Gordon opposed FMC's Summary Judgment Motion. She asserted that genuine issues of material fact existed as to whether her head struck the metal D-ring, whether the plastic overlay covering a portion of the D-ring was dislodged during the accident when her head allegedly struck it, whether the D-ring design was unreasonably dangerous, whether a safer alternative was feasible and could be implemented without significant burden or expense to FMC, and whether her post-concussion injuries were related to the alleged head strike to the D-ring.⁴

On December 12, 2024, FMC filed the Daubert Motion, challenging Mr. Weiss's opinions 6 through 10.⁵ Specifically, the Challenged Opinions were that: (6) In response to the impact, Ms. Gordon's head moved rearward and to the left, striking the D-ring; (7) The component D-ring of the 2007-2017 Lincoln Navigator (as well as the comparable Ford Expedition) was defective because it failed to align with long established practices of vehicle occupant safety, one of which was to yield and distribute or absorb applied energy. Instead, Mr. Weiss opined, the subject D-ring presented a uniquely conspicuous, narrow metal edge surrounding the shoulder belt webbing and was the most likely cause of Ms. Gordon's head wound; (8) A field study comparing the driver D-ring height adjuster and plastic cover design of 2007-2017 Lincoln Navigators (and the comparable Ford Expeditions) with thirty-eight domestic, European and Asian SUVs was performed by Mr. Weiss. The findings of the study led Mr. Weiss to conclude that several vehicles in the study, including the 2008 Lincoln MKX and the 2011 Ford Flex, demonstrated a head strike injury mitigating construction by completely encasing the D-ring in plastic, thereby eliminating the potential of an exposed metal edge; (9) The 2003 Lincoln Navigator D-ring offered these similar advantages (i.e., a D-ring that was completely encased in plastic, eliminating the exposed metal edge) over the design found in the 2007-2017 Lincoln Navigators; and, (10) Numerous other SUVs in the field study, e.g., the 2005 Land Rover Range Rover, 2008 GMC Acadia, and 2010 Hyundai Santa Fe, and 2007 Volvo SC90 demonstrated D-ring height adjuster and plastic cover designs that addressed head strike potential by concealing the D-ring behind the B-pillar trim, and eliminating force concentrating rigid structures. The D-ring in the Lincoln Navigator (and comparable Ford Expedition) was similarly concealed by the B-pillar trim beginning with the 2018 model year.

As an initial matter, FMC challenged Mr. Weiss's qualifications to render the opinion that Ms. Gordon's head struck the D-ring at all. According to FMC, only a biomechanical engineer and/or a kinematics expert were qualified to so-opine. FMC contended that Mr. Weiss was not qualified to opine that the cause of Ms. Gordon's head wound was contact with the exposed metal portion of the D-ring because he was not a medical doctor.

FMC further challenged the factual basis for Mr. Weiss's opinion that the D-ring's partial plastic housing was displaced or dislodged by Ms. Gordon's alleged head-strike, fully exposing the metal underneath, causing her laceration/puncture injury. The basis for this challenge was that John Gordon, Ms. Gordon's husband, testified at his deposition that he removed the plastic trim from the D-ring after the accident and did not replace it until approximately September 2024. FMC finally asserted that Mr. Weiss's methodology was faulty.

Ms. Gordon opposed the Daubert Motion. She contended that Mr. Weiss was adequately qualified to opine that her head struck the D-ring on impact and was not required to be a biomechanical engineer to render such an opinion. Ms. Gordon also represented that Mr. Weiss would not be offering any opinions at trial related to the cause of her injuries other than the laceration/puncture wound and that he did not need to be a medical doctor to render that opinion. She further argued that FMC's remaining challenges to Mr. Weiss's opinions involved his credibility and ultimate conclusions, not his methodology.

Trial was scheduled for February 10, 2025. Both the Daubert Motion and the Summary Judgment Motion were heard on January 2, 2025. The Daubert Motion was taken up first and granted from the bench, excluding Mr. Weiss's opinions 6 through 10, as set forth in his Original Report. The district court agreed with FMC's argument as to Challenged Opinions 6 and 7, on the basis that Mr. Weiss was not a biomechanical engineer or a medical doctor and thus lacked the requisite qualifications to render these opinions. Challenged Opinions 9 and 10 were excluded by the district court due to a lack of qualifications because Mr. Weiss was not an expert in vehicle design. FMC's Daubert Motion as to Challenged Opinion 8 was granted because the district court found that it was based on faulty facts and assumptions. As a result of the district court's rulings on Mr. Weiss's qualifications and the factual basis for Challenged Opinion 8, the district court did not discuss whether Mr. Weiss's methodology was reliable.

The Summary Judgment Motion was heard immediately after the Daubert Motion. It was also granted from the bench based on the fact that, without Mr. Weiss's excluded testimony, Ms. Gordon would be unable to satisfy her burden at trial to demonstrate that the D-ring presented an unreasonable risk of harm due to a design defect and that there were other available, financially-feasible designs that would have prevented her injury or made it substantially less likely.

Ms. Gordon filed a Notice of Intent to file Supervisory Writ from the trial court's judgment on the Daubert Motion on January 8, 2025. She also filed, on the same date, a Motion for Appeal from the district court's judgment granting FMC's Summary Judgment Motion. Her Motion for appeal was granted on January 12, 2025. Written judgments on the Daubert and Summary Judgment Motions were entered on January 14, 2025. Once the written judgment on the Daubert Motion was entered, Ms. Gordon filed an Amended Notice of Intent to file Supervisory Writ, and a return date was set for thirty days from the mailing of notice of the written judgment. This writ application and appeal timely followed.

ASSIGNMENTS OF ERROR

Ms. Gordon assigns four errors. Her first three assignments of error relate to the district court's judgment granting the Daubert Motion. She contends that the district court committed reversible legal error in: (1) “ignoring the ample evidence in the record of Mr. Weiss's qualifications as an occupant kinematic and seatbelt performance expert and [assuming] that he was merely an accident reconstructionist;” (2) “ruling that because Mr. Weiss is not a biomechanical engineer or a medical doctor, he is not qualified to opine on a vehicle occupant's movement during a motor vehicle accident and/or whether certain seatbelt D-ring designs subject the vehicle occupant to exposed metal;” and (3) “assuming, contrary to the evidence, that it was an established fact in this matter that the partial plastic overmold of the subject D-ring was not displaced, even partially, during the subject accident.” In her fourth assignment of error, Ms. Gordon contends that the district court “reversibly erred in granting Defendant's Motion for Summary Judgment.”

DISCUSSION

A. THE DAUBERT MOTION

1. Standard of Review – Daubert Motion

The trial judge has great discretion concerning the admissibility and relevancy of evidence, including expert testimony. As an initial matter, the trial court has wide latitude to determine whether an expert has the competence, background, and experience to testify. Lataxes v. Louisiana Home Specialists, LLC, 24-129 (La. App. 5 Cir. 12/30/24), 409 So.3d 1010, 1015, citing Williams v. State Farm Mut. Auto. Ins. Co., 20-248 (La. App. 5 Cir. 2/17/21), 314 So.3d 1010, 1018, writ denied, 21-402 (La. 5/11/21), 315 So.3d 871. A trial court's ruling permitting or excluding expert testimony at trial will not be disturbed on appeal absent a clear abuse of discretion. Id., citing Williams, 314 So.3d at 1018, citing Blair v. Coney, 19-795 (La. 4/3/20), 340 So.3d 775, 781; see also Giavotella v. Mitchell, 19-100 (La. App. 1 Cir. 10/24/19), 289 So.3d 1058, 1069-70; and Harvey v. Hamby, 23-84 (La. App. 4 Cir. 10/4/23, 376 So.3d 225, 234.

If, however, the trial court failed to comply with the requirements of La. C.C.P. art. 1425(F) and conducted no Daubert analysis of any kind, this constitutes a legal error. Leininger v. Heaney, 23-0574 (La. App. 4 Cir. 8/15/24), 414 So.3d 535, 543–44; Arceneaux v. Shaw Grp., Inc., 12-0135 (La. App. 1 Cir. 9/24/12), 103 So.3d 1086, 1091, writ denied, 12-2732 (La. 3/1/13), 108 So. 3d 1177; see also Taylor v. Exxon Mobil Corp., 23-0759 (La. App. 4 Cir. 12/27/23), 381 So.3d 108, 110; Carpenter v. Thomas, 22-872 (La. App. 1 Cir. 3/13/23), 362 So.3d 977, 982 (citations omitted); Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1552 (La. App. 1 Cir. 10/4/11), 77 So.3d 339, 355 (citing Corkern v. T.K. Valve, 04-2293 (La. App. 1 Cir. 3/29/06), 934 So.2d 102, 107). In such an instance, the appellate court reviews the matter de novo. Leninger, 414 So.3d at 544; Arceneaux, 203 So.3d at 1091.

In this appeal, Ms. Gordon has urged us to apply a de novo standard of review to our consideration of the district court's judgment on the Daubert Motion. She contends that “[g]iven the Trial Court's granting of the Motion for Summary Judgment because of its prior ruling on the Daubert Motion, all issues herein should be analyzed under a de novo standard, as the two judgments cannot be separated for purposes of appeal.” Ms. Gordon cites our decision in Lloyd's Syndicate 1861 v. Darwin Nat'l Assurance Co., 17-623 (La. App. 5 Cir. 5/23/18), 248 So.3d 709, 714, in support of this proposition; however, Lloyd's Syndicate involved cross-motions for summary judgment. There was no Daubert issue in that case.

Motions for summary judgment and Daubert motions are separate and distinct procedural devices. The purpose of a Daubert motion is to ensure that scientific or other technical evidence is reliable and to allow a party to challenge a witness's qualifications to testify as an expert by knowledge, skill, experience, training, or education and/or to challenge the methodology used by the expert in reaching his opinion. Nolaluna, LLC v. Crosby, 24-0555 (La. App. 4 Cir. 5/6/25), 421 So.3d 125, 129, writ denied, 25-00717 (La. 10/7/25), 418 So.3d 364. On the other hand, the purpose of the summary judgment procedure is to “pierce the pleadings and to assess the evidence to determine if there are any genuine issues of material fact requiring a trial.” Id. at 130. In the context of a motion for summary judgment, the district court is not entitled to weigh evidence or make credibility determinations. The same is not true in the Daubert context. Id. The standards of review are different, as well. The grant or denial of a summary judgment motion warrants de novo review, while the grant or denial of a Daubert motion is reviewed for abuse of discretion.

We have found no legal error in the district court's judgment on FMC's Daubert Motion that would justify the application of the de novo standard of review in this appeal. Accordingly, we will apply the appropriate standards of review to the district court's judgments on the two motions before us.

2. Standards for Admission of Expert Testimony

Article 702 of the Louisiana Code of Evidence governs the admissibility of expert testimony. It provides, in pertinent part:

A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

In State v. Foret, 93-246 (La. 11/30/93), 628 So.2d 1116, 1121, the Louisiana Supreme Court found that Article 702 is “virtually identical to its source provision in the Federal Rules of Evidence, Rule 702.” As a result, the Court found it appropriate to consider the opinion of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the seminal case interpreting F.R.E. 702. Id.

Under Federal Rule 702, the trial judge must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589, 113 S.Ct. at 2795. The expert's testimony must be grounded in “scientific knowledge,” i.e., it must be based upon the methods and procedures of science as applied to the facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.” Id. at 590, 113 S.Ct. at 2795. There is no requirement that the “subject of scientific testimony must be ‘known’ to a certainty,” but “[p]roposed testimony must be supported by appropriate validation ․.” Id.

In exercising its “gatekeeping” function, the court must determine whether: (1) the evidence or testimony will “assist the trier of fact to understand the evidence to determine a fact in issue” – i.e., whether the evidence is relevant and helpful; and (2) the expert's testimony or evidence has a reliable basis in the knowledge and experience of his discipline. Id. at 591-92, 113 S.Ct. at 2796. The Daubert court found that in order to determine whether the expert's testimony is reliable, the court must determine whether the reasoning or methodology is scientifically valid and observed that consideration of the following factors should inform that decision: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and/or publication; (3) the known or potential rate of error; and (4) whether the theory is generally accepted in the relevant scientific community. Id. at 593-94, 113 S.Ct. 2786.

The Daubert “observations” are not exclusive. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), the Supreme Court held that:

We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is ‘flexible,’ and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a trial court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations.

(Emphasis added). See also, Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 234; Lavigne v. Allied Shipyard, 18-66, 18-1077 (La. App. 4 Cir. 1/15/20), 289 So.3d 1088, 1096.

Generally, the evidence and testimony presented by an expert is reliable if it meets accepted standards in the expert's field of expertise. Lavigne, 289 So.3d at 1098. If the proposed testimony or evidence is found to be reliable and helpful, the court must still weigh its probative value against potential for unfair prejudice, confusion of the issues or misleading the jury. Daubert, 509 U.S. at 595, 113 S.Ct. at 2798; F.R.E. 403.

In Foret, the Court found that Daubert's approach to admissibility aligned with its own view that scientific evidence should be admitted whenever, after “balancing the probative value of the evidence against its prejudicial effect, [the trial court] determines that ‘the evidence is reliable and will aid in a decision,’ ” all subject to the discretion of the trial judge.” Foret, 628 So.2d at 1123, citing State v. Catanese, 368 So.2d 975, 981-82, 983 (La. 1979). Accordingly, the Louisiana Supreme Court adopted “Daubert's requirement that expert scientific testimony must rise to a threshold level of reliability in order to be admissible under La. C.E. art. 702.” Id. Finding “the Daubert court's ‘observations’ on what will help to determine this threshold level of reliability to be an effective guide,” the Court also adopted the “observations.” Id.

The standard for admissibility under F.R.E. 702, as interpreted by Daubert, which applies, by extension to La. C.E. art. 702, “is a flexible one [which has as its] overarching subject․the scientific validity and thus the evidentiary relevance and reliability – of the principles that underlie a proposed submission.” Daubert, 509 U.S. at 594-95, 113 S.Ct. at 2797. “The focus․must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. at 2797. See also, Harvey Canal Ltd. P'ship v. Lafayette Ins. Co., 09-605 (La. App. 5 Cir. 3/9/10), 39 So.3d 619, 627-28. (“Daubert comes into play only when the methodology of the expert is being questioned.”)

The court's role as a gatekeeper, however, does not replace the traditional adversarial system. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence” presented by experts. 509 U.S. at 596, 113 S.Ct. at 2798 (citation omitted).

In rendering his opinion, an expert may rely on facts or data “perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. La. C.C.P. art. 703. Additionally, testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. La. C.C.P. art. 704.

The procedure for challenging an expert's qualifications and/or methodologies is set forth in La. C.C.P. art. 1425(F), which provides, in pertinent part:

(1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.

(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.

(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.

3. Ms. Gordon's Assignments of Error Nos. 1 and 2: Mr. Weiss's Qualifications

The district court found that Mr. Weiss lacked the “knowledge, skill, experience, training, or education” to render his opinion that Ms. Gordon's head contacted the D-ring upon impact, causing her head wound. The district court accepted FMC's arguments and held that because Mr. Weiss is not a biomechanical engineer, he lacked the expertise to opine on the movement of Ms. Gordon's body at the point of impact or to opine as to whether the seat belt design was defective and/or presented an unreasonable risk of harm. The district court found that Mr. Weiss lacked the qualifications to opine that safer designs were available and feasible because he was not an expert in vehicle design. The district court further accepted FMC's argument and held that because Mr. Weiss is not a medical doctor, he lacked the qualifications to opine that the likely cause of Ms. Gordon's head laceration/puncture wound was contact with the metal portion of the D-ring. Ms. Gordon contends that these rulings were erroneous. We agree.

The record shows that Mr. Weiss holds a Bachelor of Science degree in Mathematical Sciences and a Master of Science degree in Mechanical Engineering. Mr. Weiss was employed for some thirty-two years at Automotive Safety Research, Inc., where he rose to the level of head of collision reconstruction. He is also an accredited collision reconstructionist through the Accreditation Commission for Traffic Accident Reconstruction and is a Crash Data Retrieval system operator and analyst. Mr. Weiss claims specialized professional competence in the areas of comprehensive traffic collision reconstruction, EDR analysis, failure mode forensic testing, seat belt assembly performance evaluations, surveillance video analysis, and occupant kinematics.

Mr. Weiss has nearly forty years’ experience in “case study collision science,” including conducing vehicle and collision site inspections, technical research, seat belt performance evaluations and forensic testing, full-scale vehicle and sled testing, EDR analysis, comprehensive traffic collision reconstruction, and computer reconstruction and simulation analysis. Mr. Weiss has testified as an expert witness in traffic collision reconstruction, EDR data analysis, forensic video analysis, and restraint performance analysis in state and federal courts. Mr. Weiss testified in his deposition that he has never been prevented by any court from providing testimony relative to occupant kinematics in conjunction with his opinions. Mr. Weiss has published extensively on traffic collision science, and seat belt construction, performance, and safety, among many other topics relating to traffic accidents.

Mr. Weiss testified at his deposition that “you have to have an understanding of the collision to then apply an understanding or perform an analysis of the performance of the restraint system. So, they go hand in hand. Of course, then there's injury causation and injury analysis as well.” He explained that there is “overlap between the restraint system performance evaluation and the reconstruction to ․ the field of biomechanics.” Although he does not hold a degree in biomechanics, he has received training and attended courses in that field in conjunction with his work evaluating restraint systems and performing accident reconstructions. Mr. Weiss stated that he is qualified to offer opinions on how the body would move in light of its musculature, bones, joints, and muscle activation in a vehicle crash situation.

In this case, Mr. Weiss was tasked with investigating the collision and evaluating the design of the front outboard safety belt assembly, i.e., the D-ring and the plastic D-ring cover attached to the interior B-pillar inside Ms. Gordon's vehicle, for head strike potential in conjunction with the accident. Mr. Weiss explained that his opinion in this case involved occupant kinematics, a field in which he claimed specialized knowledge. He stated that “occupant kinematics comes up in every study of a restraint system performance, you know, a body's response to a certain severity of crash ․ it just comes up in everything we do.”⁶

Although we acknowledge the deference afforded to the district court, we find the district court abused its discretion in ruling that Mr. Weiss lacked the expertise to offer testimony as to Challenged Opinions 6 through 10, which Ms. Gordon characterizes in her appeal brief as “his opinions that (a) Plaintiff's head struck the metal D-ring (Opinions No. 6 and 7) and (b) that the proposed alternative designs eliminate the potential to strike a rigid metal surface (Opinions 8 [sic], 9 and 10)” on the basis that Mr. Weiss was only an accident reconstructionist, not a biomechanical engineer, medical doctor, or vehicle design engineer.⁷ Mr. Weiss's knowledge, skill, experience, training, and education gained throughout his nearly forty years of conducting seat-belt performance evaluations and comprehensive accident reconstructions qualified him to render the Challenged Opinions. It was not necessary that he hold a degree in biomechanics in order to render Challenged Opinions 6 through 10 or that he be an expert in vehicle design to render Challenged Opinions 9 and 10.

Nor did Mr. Weiss have to qualify as a medical doctor to opine that Ms. Gordon's head struck the metal portion of the D-ring and that the head-strike was the most likely cause of the puncture/laceration wound to her head. Mr. Weiss testified at his deposition that he was not offering medical testimony as to the nature of Ms. Gordon's injuries or as to causation relative to her injuries; he was only testifying that her head contacted the D-ring, which could have lacerated/punctured her scalp. Ms. Gordon's counsel stipulated at the hearing on the Daubert Motion that Mr. Weiss would not be providing “any medical opinion whatsoever” and has reiterated this representation in this appeal.⁸

Accordingly, we find that Mr. Weiss possessed the requisite expertise to render Challenged Opinions 6 through 10.

4. Ms. Gordon's Assignment of Error No. 3: Mr. Weiss's Opinion that the D-ring's Plastic Overmold Became Displaced or Dislodged as a Result of Contact with Ms. Gordon's Head

In her third assignment of error, Ms. Gordon argues that the district court erred in “striking Mr. Weiss’ opinion No. 8 on the basis it was an undisputed fact that the partial plastic overmold of the subject D-ring did not become displaced, even partially, during the subject accident.” Ms. Gordon represents that the district court found that “because Mr. Weiss relied on information that the partial plastic overmold became displaced during the accident, which the Trial Court found inaccurate, he cannot state that a D-ring design fully encased in plastic (one of the proposed alternative designs) would not expose an occupant to metal during an accident.” This assertion misrepresents the district court's holding.

The district court found that “opinion number eight is that completely encasing the D-ring in plastic would eliminate the potential of an unexposed metal edge.” This opinion presupposes that there was an exposed metal edge on the D-ring of the 2012 Navigator because the plastic trim cover became dislodged upon making contact with Ms. Gordon's head. This supposition was inaccurate; the evidence showed that “the cover was removed by the husband” after the accident. Therefore, the district court found that Mr. Weiss was “relying on inaccurate information ․ that the – [the metal underneath the plastic overlay] was exposed.”

Article 702(A)(2) provides that the proponent of the expert's testimony, in this case, Ms. Gordon, has the burden of proving that the testimony is based on sufficient facts or data. We agree with the district court that Ms. Gordon has not carried that burden.

After he was retained as an expert witness in this case, Mr. Weiss retained a local expert, Michael Sunseri of Sunseri Consulting Company, to assist in inspecting the 2012 Navigator, imaging the 2012 Navigator's EDR data, photographing the tires and the D-ring, and photographing Ms. Gordon sitting inside the vehicle as she would drive it to determine the location of her head relative to the D-ring height measurements and her seated height relative to various pillars in the car.

Mr. Sunseri inspected the vehicle on March 20, 2024, nearly three years after the accident. The photographs (the “Sunseri Photographs”) of the D-ring taken by him on that date do not depict the plastic trim that should have been around the D-ring's outer rim. The Sunseri Photographs, instead, show a fully metal D-ring. It is clear from Mr. Weiss's testimony that, based on the Sunseri Photographs, he concluded that the plastic trim had been either dislodged or displaced in the accident.  ⁹ In fact, however, the plastic trim had been removed after the accident by Ms. Gordon's husband. Ms. Gordon asserts that her husband's testimony was equivocal and that FMC did not “pin him down” when he testified regarding whether the D-ring was intact when he first inspected the 2012 Navigator after the accident.

Mr. Gordon testified that he looked at the inside of the 2012 Navigator either the day after or two days after the accident and saw no damage to the inside of the vehicle other than blood on the seat, kick board, and seat belt. He did not observe any blood on the D-ring but “it seemed like there was some splatter on the [B-] pillar.” He was asked whether the plastic trim around the perimeter of the D-ring was in place at that time, to which he replied, “I think so.” When questioned about how the plastic trim came to be removed, he stated:

I think that I had pulled that thing off just to see what was underneath it, and it was – and I don't know if I left it off or whatever, but I had found it before you guys [FMC's experts] came. It was under a seat in the back, so I just – I don't know hot it got away from me, but it was in the process of cleaning the car. The D-ring was under – the D-ring cover was underneath one of the seats.

Mr. Gordon stated that he then put the D-ring cover back after he found it. He was then asked:

Q. [Mr. Crochet]: All right. So let me make sure. I think I understand, but let me try to make sure I understand. So, at some point after the accident, you removed the D-ring cover that wraps around the perimeter of the D-ring to see what was gong on under that cover?

A. [Mr. Gordon]: That's right.

Q. And then you're not sure exactly what happened, but, apparently, it got at least temporarily lost and was under a car seat somewhere in the vehicle?

A. That's correct.

We disagree with Ms. Gordon's characterization of this testimony. Mr. Gordon unequivocally testified that on the day following the accident or the day after, he observed no damage to the interior of the vehicle, other than blood splatter in areas other than the D-ring, which had no blood on it, and that he believed that the D-ring was intact when he first saw it after the accident. He further affirmatively testified that he was the one who pulled the plastic cover off the D-ring. The plastic overlay then remained off the D-ring until sometime between March 30, 2024, and September 4, 2024 – approximately three years after the accident – when Mr. Gordon found it underneath a seat in the back of the vehicle and reattached it.¹⁰ In her brief, Ms. Gordon represents that Mr. Gordon testified that when FMC first came to inspect the vehicle, “the plastic overmold was missing because at some point after the accident he removed it ․ However, Mr. Gordon was not asked about the condition or placement of the D-ring prior to him removing it.” Again, this is a mischaracterization of Mr. Gordon's testimony. He testified that he replaced the plastic D-ring trim prior to FMC's first inspection (which occurred on September 4, 2024). Thus, it was missing at the time of Mr. Sunseri's inspection on March 30, 2024.

Ms. Gordon goes on to assert that “any question regarding those key issues is absent from Defendant's questioning, and all Mr. Gordon's testimony does is establish that he was the one who completely removed it.” In fact, Mr. Gordon was questioned about the condition of the D-ring immediately after the accident and he testified that he believed it to have been intact. Photographs taken immediately after the accident depict the plastic trim surrounding the D-ring's outer rim as being intact. Thus, photographic evidence does not support Mr. Weiss's testimony and opinion(s) that the D-ring became dislodged, displaced or dislocated as a result of Ms. Gordon's head striking it.

Moreover, Article 702(A) places the burden on Ms. Gordon, not FMC, to demonstrate that her expert witness relied on sufficient facts and data. She did not meet this burden.

Mr. Weiss also opined that had the plastic trim remained in place, Ms. Gordon would not have experienced a head wound. Mr. Weiss testified:

Q. [By Mr. Crochet]: I just want to make sure I understand.

You don't have any direct evidence telling you that this trim piece moved during this collision, but you're inferring that it may have because you see some pictures where it is not present; is that correct?

A. [By Mr. Weiss]: In addition it takes very little force to slip it off the edge. We have a laceration to the head which wouldn't have occurred if the trim had stayed in place. It's –

Q. Is it your opinion that the trim moved during this accident or do you not know?

A. It likely moved in response to the head contact, thereby exposing the metal edge, causing the laceration. Whether or not it dislodged completely, we don't know.

Q. So, if I'm understanding your opinion correctly, she sustained her laceration according to you by contacting the metal on the D-ring after movement, displacement, if you will, of the trim?

A. Yes.

Q. Could she have sustained her laceration if the trim did not dislodge?

A. No.

(Emphasis added).

Mr. Weiss went on to testify that the plastic trim, once dislodged or displaced, would not have slipped back into place on its own. He speculated that this piece could have been pushed back into place by someone. He knew of no evidence, however, that would support such a scenario. When asked how he determined whether Ms. Gordon would have suffered a laceration if the trim had not moved, Mr. Weiss stated that his opinion was based on his “understanding that it takes 100 pounds or so to create a laceration. And the ten pounds it takes to displace the trim.”¹¹

Mr. Weiss testified that he considered, and dismissed, the other components of the restraint system as causes of Ms. Gordon's head wound because those components were encased in plastic. Mr. Weiss identified the metal portion of the D-ring that sat underneath the plastic trim surrounding the D-ring's perimeter as the sole source of Ms. Gordon's head wound. The only explanation that he offered as to how the metal would have been exposed was that the plastic trim became displaced due to making contact with Ms. Gordon's head. By his own testimony, however, if the plastic trim was not displaced or dislodged, but was in place, she could not have sustained a head laceration/puncture wound.¹² Mr. Gordon's testimony and the photographs of the 2012 Navigator taken immediately after the accident demonstrate that the plastic trim was not dislodged as a result of coming into contact with Ms. Gordon's head or otherwise. Mr. Weiss produced no evidence that the polymer casing of the D-ring dislodged or moved; his opinion was based on his own supposition.

Accordingly, we agree with the district court that Mr. Weiss's Challenged Opinion No. 8 hinges on an assumption that is contrary to and unsupported by the facts. The district court did not abuse its discretion in granting the Daubert Motion as to that opinion. Challenged Opinions No. 6, 7, 9, and 10 are also based on the same flawed assumption and were correctly excluded by the district court, although not for the reasons stated. Although we exclude Challenged Opinions 6, 7, 9, and 10 on different grounds than those stated by the district court at the hearing on the Daubert Motion, we observe that this Court reviews judgments, not reasons for judgment, and judgments are often upheld on appeal for reasons different than those assigned by the trial court. Jessie v. Wendy's Co., 22-156 (La. App. 5 Cir. 12/7/22), 356 So. 3d 467, 471; Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La. 4/1/11), 61 So.3d 507, 572. Having found that Mr. Weiss's Challenged Opinions are based on information and an assumption that is not supported by the facts, we do not address FMC's other bases for challenging Mr. Weiss's methodology.¹³

B. THE SUMMARY JUDGMENT MOTION

1. Summary Judgment Standards and Standard of Review

Appellate courts review summary judgments de novo, under the same criteria as the district courts to determine whether summary judgment is appropriate. Neville v. Redmann, 22-175 (La. App. 5 Cir. 12/31/22), 356 So.3d 568, 575, writ denied, 23-126 (La. 4/4/23), 358 So.3d 861, citing, Lapuyade v. Rawbar, Inc., 18-474 (La. App. 5 Cir. 12/27/18), 263 So.3d 508, 511-12, writ denied, 19-315 (La. 4/15/19), 267 So.3d 1126. Under La. C.C.P. art. 966(A)(3), 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 to judgment as a matter of law.” The burden of proof rests with the mover, unless the mover will not bear the burden of proof at trial on the issue before the court on summary judgment. La. C.C.P. art. 966(D)(1). In that instance, the mover need only show the court the absence of factual support for one or more essential elements of the adverse party's claim. Id. The burden then shifts to the adverse party to establish factual support sufficient to demonstrate the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. A court's determination of whether a genuine issue of material fact exists requires reference to the applicable substantive law. Hacienda Holding Co., L.L.C. v. Home Bank, 20-189 (La. App. 5 Cir. 12/30/20), 309 So.3d 435, 445 (citing Stephens v. Southern Sweeping Servs., 03-826 (La. App. 5 Cir. 11/25/03), 862 So.2d 197, 199).

Article 966(D)(2) and (3) are relevant to this appeal. Those provisions provide:

(2) The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing whether the court sustains or overrules the objections raised.

(3) If a timely objection is made to an expert's qualifications or methodologies in support of or in opposition to a motion for summary judgment, any motion in accordance with Article 1425(F) to determine whether the expert is qualified or the expert's methodologies are reliable shall be filed, heard and decided prior to the hearing on the motion for summary judgment.

2. Applicable Substantive Law

Ms. Gordon's claims arise under the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.52, et seq., which establishes “the exclusive theories of liability for manufacturers for damage caused by their products.” A claimant may recover damages caused by a characteristic of a product, rendering it unreasonably dangerous when being used for its reasonably anticipated use. La. R.S. 9:2800.54(A). Section 2800.54(B) provides that a product is unreasonably dangerous if and only if: (1) it is unreasonably dangerous in construction or composition; (2) it is unreasonably dangerous in design; (3) it is unreasonably dangerous due to inadequate warning about the product; or (4) it is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product.

Ms. Gordon's Petition set forth claims under each subsection of La. R.S. 9:2800.54(B), but she has only pursued her claim for damages due to the design of the D-ring. Section 2800.56 provides that a product is unreasonably dangerous 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. The claimant has the burden of proof on all issues.

Under the LPLA, a manufacturer is liable only for those uses it should reasonably expect of an ordinary consumer.” Butz v. Lynch, 99-1070 (La. App. 1 Cir. 6/23/00), 762 So.2d 1214, 1218, writ denied, 00-2660 (La. 11/17/00), 774 So.2d 980. “Reasonably anticipated use” is defined under the LPLA as “a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” La. R.S. 9:2800.53(7). “The standard for determining a reasonably anticipated use is an objective one (an ordinary person in the same or similar circumstances).” Butz, 762 So.2d at 1218. And “what constitutes a reasonably anticipated use is ascertained from the point of view of the manufacturer at the time of manufacture,” thus precluding “the factfinder from using hindsight.” Payne v. Gardner, 10-2627, (La. 2/18/11), 56 So.3d 229, 231. There is no dispute that Ms. Gordon was using the allegedly defective product in the manner reasonably anticipated by FMC at the time of the accident.

A product is unreasonably dangerous if the article that injured the plaintiff was dangerous to an extent beyond that which would be contemplated by an ordinary consumer. DeBattista v. Argonaut–Southwest Ins. Co., 403 So.2d 26, 30 (La.1981). The question of whether a product is unreasonably dangerous in design is a question of fact. Walker v. Manitowoc Co., Inc., 16-897 (La. App. 3 Cir. 10/10/18), 259 So. 3d 465, 478. A product is not automatically unreasonably dangerous as the result of a design defect just because someone was injured by it. Tuminello v. ABC Ins. Co., 23-446 (La. App. 3 Cir. 2/28/24), 381 So.3d 320, 338, writ denied, 24-401 (La. 5/29/24), 385 So. 3d 702.

In Johnson v. Black & Decker U.S., Inc., 29,996 (La. App. 2 Cir. 10/31/97), 701 So. 2d 1360, 1363, writ denied, 97-2971 (La. 2/6/98), 709 So. 2d 741, the court set forth the elements of a claim that a product is unreasonably dangerous due to its design, stating:

[A]fter establishing that his damage arose from a reasonably anticipated use of the product, a claimant who alleges defect by design under La. R.S. 9:2800.56 must prove three elements. First, he must prove that another way to design the product existed at the time the manufacturer placed the chosen design on the market․ Next he must prove that the alternative design was capable or would have been ‘significantly less likely’ than the chosen design to cause the claimant's complained of damages, or that the alternative design would have significantly reduced such damage․ Finally, the claimant must prove that, at the time the product left the manufacturer's control, the likelihood that the product as designed would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting the alternative design identified by claimant, and the adverse effect, if any, this different mode of design would have on the product's utility.

We now turn to a de novo review of the district court's judgment granting the Summary Judgment Motion.

3. Failure to Comply with La. C.C.P. Article 966(D)(3)

We observe, as an initial matter, that the district court failed to comply with La. C.C.P. art. 966(D)(3) by hearing and deciding the Summary Judgment Motion at the same time it ruled on the Daubert Motion. Article 966(D)(3) is mandatory. It states that a motion challenging the qualifications or methodology of an expert “shall be filed, heard and decided prior to the hearing on the motion for summary judgment.” Although no objection to proceeding with the Summary Judgment Motion was raised by Ms. Gordon at the hearing, and although she did not assign the failure to comply with Article 966(D)(3) as error in this appeal, she appears herein challenging the district court's judgment granting FMC's Summary Judgment Motion. In our de novo review of the Summary Judgment Motion, we are not free to simply ignore the requirements of Article 966(D)(3).

Our colleagues on the Louisiana Fourth Circuit Court of Appeal recently reviewed this provision in Nolaluna, LLC v. Crosby, et al., 24-555 (La. App. 4 Cir. 5/6/25), 421 So.3d 125, writ denied, 25-717 (La. 10/7/25), 418 So.3d 364. There, prior to trial, the defendants filed three motions – a motion for summary judgment seeking to have the district court rule that plaintiff's future lost profits were impermissibly speculative, and two motions to exclude the testimony of plaintiff's expert witnesses as to damages (i.e, Daubert motions), arguing that neither was qualified to opine on plaintiff's claims for damages and that the evidence of plaintiff's damages was too speculative to prove at trial. Id. at 128.

On May 13, 2024, the district court conducted a hearing on both motions to exclude plaintiff's experts and granted both motions in open court. Four days later, on May 17, 2024, the district court conducted a hearing on the defendant's motion for summary judgment, which was granted and a written judgment was signed the same day. Also, on May 17, 2024, the district court signed a written judgment granting one of the motions to exclude. It signed the other judgment granting the second motion to exclude on May 21, 2024. The plaintiff appealed, assigning as error the district court's exclusion of its expert witnesses and the district court's grant of summary judgment dismissing its claims for damages. Notably, the court's opinion does not indicate that the plaintiff raised any issue relative to Article 966(D)(3).

The Fourth Circuit opined initially that “[a] motion for summary judgment and a Daubert motion each serves a distinct function and is subject to a particular procedure ․” A party desiring to challenge the qualifications or methodology of a proffered expert must comply with the provisions of La. C.C.P. art. 1425(F) by filing a motion at least sixty days prior to trial. The district court is then required to hold a contradictory hearing and to rule on the motion at least thirty days prior to trial. La. C.C.P. art. 966 contains “mandatory deadlines for filing and serving a motion for summary judgment, opposition, and reply, and for conducting a summary judgment hearing.” Id. at 131. (Footnote omitted).

In Nolaluna, there was no dispute that the motions were filed and heard within the mandatory pretrial deadlines established in Articles 1425(F) and 966. Notwithstanding that the motions were filed and heard within the established deadlines, the court opined that:

In hearing and deciding the motion for summary judgment – only one month before trial and after all discovery deadlines had elapsed – Nolaluna was left with no recourse to obtain any other expert or seek a continuance of trial to do so ․ Under the procedural circumstances facing this Court, we are disinclined to permit technical pleading rules to triumph over actual justice.

The Louisiana legislature was mindful of these concerns in enacting La. C.C.P. art. 966(D)(3), explicitly requiring that Daubert challenges to summary judgment evidence must be heard and disposed of before the summary judgment hearing. In the comments to this 2023 amendment, the legislature instructed courts: [t]o avoid any possible conflict between the time delays in this Article and Article 1425(F), the court should set appropriate deadlines for the Article 1425(F) hearing in a scheduling or pretrial order.

Id. at 133. (Internal citations and quotation marks omitted).

In this case, trial was scheduled for February 10, 2025. The Summary Judgment Motion was filed on December 2, 2024, seventy days before trial. The Daubert Motion was filed on December 12, 2024, sixty days before trial. The hearing on both motions was conducted on January 2, 2025, thirty-eight days before trial, and the written judgments were entered on January 14, 2025, less than thirty days prior to trial, in violation of La. C.C.P. art. 1425(F). The discovery deadline expired on November 10, 2024, before FMC had filed either of its motions. This timeline made it impossible for Ms. Gordon to retain another expert in time for trial, or to seek a continuance. For that reason, we vacate the judgment of the district court granting FMC's Summary Judgment Motion as to Ms. Gordon's claim of a design defect, and remand the matter to the district court with instructions to allow Ms. Gordon sufficient time to obtain a new expert, if she can.

Although we vacate the district court's grant of summary judgment as to Ms. Gordon's design defect claim, we agree with the district court that Ms. Gordon did not point to any evidence supporting her other claims under the LPLA. Accordingly, we affirm the district court's grant of summary judgment dismissing with prejudice, Ms. Gordon's claims that the D-ring was unreasonably dangerous (1) in construction or composition; (2) due to inadequate warning about the product; and (3) due to failure to conform to an express warranty of the manufacturer about the product.

DECREE

For the reasons stated above, we affirm the district court's decision granting the Daubert Motion as to Mr. Weiss's Challenged Opinions Nos. 6, 7, 8, 9, and 10. We vacate the district court's judgment granting the Summary Judgment Motion as to Ms. Gordon's design defect claim, affirm the district court's decision dismissing Ms. Gordon's construction, warning and warranty claims under the LPLA, with prejudice, and remand the matter for further proceedings consistent with this opinion.

AFFIRMED, IN PART; VACATED, IN PART; AND REMANDED

I concur with the majority's decision to affirm the exclusion of Mr. Weiss's expert opinions 6, 7, 8, 9 and 10, on the grounds that they are not based on reliable or sufficient facts and data, as well as the dismissal of the unopposed LPLA claims. However, I respectfully dissent to reversing the summary judgment as to Ms. Gordon's design claim. The majority's decision to raise a procedural issue regarding the timing of the Daubert and summary judgment hearings sua sponte is unwarranted.

First, Ms. Gordon did not raise this issue in her appellate brief. More importantly, she did not object to the trial court setting these motions for hearing on the same day either prior to the hearing date, or on the day of the hearings after the trial court granted the motion to exclude the expert testimony before taking up the motion for summary judgment. Further, Ms. Gordon did not ask for a continuance after the trial court excluded the expert testimony in order to have time to retain another expert, nor did she take any steps to preserve any issues relating to the timing of the trial court's rulings. Thus, even if there was a procedural error, it was waived by Ms. Gordon. See Ford Motor Credit Company, LLC v. Davis, 20-271 (La. App. 5 Cir. 10/13/21), 329 So.3d 1047, 1054 (finding that a party waived the right to object on appeal to court's violations of mandatory time requirements to set a hearing and serve a summary judgment motion because the party did not seek a continuance nor object to the violations in her opposition or at the hearing); see also Carpenter v. Thomas, 22-872 (La. App. 1 Cir. 3/13/23), 362 So.3d 977, 982 fn. 2 (finding that failure to object to improper procedure with respect to Article 1425(F) motion in opposition memorandum or at hearing resulted in waiver and precluded consideration of the issues on appeal).

Second, I do not agree with the majority that the trial court erred by holding both hearings on the same date. The plain language of Article 966(D)(3) merely requires that the Article 1425(F) motion be “filed, heard and decided prior to the hearing on the motion for summary judgment.” It does not state, as the majority suggests, that they have to be heard on different days or that the Article 1425(F) motion must be decided prior to the filing of the summary judgment motion. The record reflects that the Daubert motion was taken up first and decided before the summary judgment motion was heard, satisfying the requirements of Article 966(D)(3).

Notwithstanding, the majority justifies its decision to raise this issue sua sponte solely on the stated ground that the requirements of Article 966(D)(3) are mandatory. Articles 966(C)(1) and 1425(F)(6), however, allow the parties and court to agree to alter or waive the restrictions governing the timing of hearings on summary judgment motions and motions objecting to expert testimony.¹ And by failing to object, Ms. Gordon, at the very least, tacitly agreed to proceed with the hearing on the motion to exclude her expert's testimony and the motion for summary judgment on the same day. This suggests that there was a likely agreement among the parties and the court to proceed as scheduled so that they could get these motions heard and disposed of before trial. It also highlights why this Court should not raise procedural issues sua sponte absent extraordinary circumstances.

The only case cited in support of its sua sponte ruling is the Fourth Circuit's decision in Nolaluna v. Crosby, 24-555 (La. App. 4 Cir. 5/6/25), 421 So.3d 125, writ denied, 25-717 (La. 10/7/25), 418 So.3d 364. However, the Fourth Circuit does not state anywhere in the opinion that it decided to raise an assignment of error regarding Article 966(D)(3) sua sponte. And shortly after its decision in Nolaluna, the Fourth Circuit refused to address this exact issue regarding the timing of the hearings on Daubert and summary judgment motions pursuant to Article 966(D)(3), because the appellant raised the issue for the first time in his reply brief on appeal. See Harris v. Boh Bros. Construction Co., 24-800, p. 5 (La. App. 4 Cir. 9/16/25), ––– So.3d ––––, 2025 WL 2650393. This shows that the Fourth Circuit does not, in fact, believe that procedural issues like the one before us should be raised sua sponte, as the majority suggests.

I also find that Nolaluna is distinguishable because the Fourth Circuit determined that the trial court erred in excluding the plaintiff's experts. In the present matter, we agree that the trial court properly excluded portions of Mr. Weiss's expert testimony because his opinions are based on the inaccurate factual assumption that the covering was removed from the D-Ring during the accident. A new expert will not be able to change the fact that “the cover was removed by the husband” after the accident.

Finally, the majority did not give the parties notice of its intent to raise this issue sua sponte and allow them the opportunity to address whether reversal of the summary judgment is warranted based on Article 966(D)(3) before ruling. This could be considered error as the Louisiana Supreme Court has previously found that it is legal error for a court of appeal to address an issue not briefed by litigants without first providing notice to the litigants and affording them the opportunity to provide additional briefing prior to rendering judgment on the issue. See Merrill v. Greyhound Lines, 10-2827 (La. 4/29/11), 60 So.3d 600, 602 (involving a pro se claimant who claimed she had inadequate counsel at trial; appellate court determined sua sponte that the OWC was manifestly erroneous in dismissing plaintiff's claim because medical evidence clearly demonstrated that the claimant's work related accident aggravated a pre-existing condition requiring surgery); Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507, 564-65 (Supreme Court held that appellate court committed legal error in failing to give litigants notice of intent to address issue sua sponte, as well as an opportunity to be heard; in addition, it found the appellate court failed to demonstrate how its sua sponte decision was required to serve the interests of justice.)

ON APPLICATION FOR REHEARING

Denied without reasons.

I would grant the application for rehearing for the reasons previously stated in my original dissent and because Louisiana Constitution art. V, § 8(B) mandates “in civil matters only” that “when a judgment of a district court ․ is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.” See also Uniform Rules—Courts of Appeal 1-5; Thompson v. Louisiana State University Health Science Center-Shreveport, 25-1388 (La. 1/21/26), 2026 WL 160566 (per curiam).

FOOTNOTES

1.   Sometime later, at the suggestion of her son, who is a surgeon, but was not Ms. Gordon's treating physician, she formed the opinion that, based on the nature of her injuries, she “must have” briefly lost consciousness.

2.   This piece of equipment tends to be shaped like the letter “D,” hence the name, “D-ring.” The D-ring in the 2012 Lincoln Navigator being driven by Ms. Gordon at the time of the accident, consisted of a metal ring, partially encased in a plastic housing or overmold, which ran around its perimeter. The restraint system height adjuster and D-ring were attached to the B-pillar, which sits between the driver's seat and the seat directly behind the driver.

3.   As discussed in footnote five below, the opinions were not listed in the same order in the Supplemental Report as they had been in the Original Report.

4.   In its Summary Judgment Motion, FMC also argued that Ms. Gordon would be unable to sustain her burden of proof at trial as to her claims that the D-ring was unreasonably dangerous due to its construction or composition, the inadequacy of warnings, or breach of an express warranty. Ms. Gordon conceded these claims at the hearing on the Summary Judgment Motion, leaving her with a single claim for defective design.

5.   The Daubert Motion sought to have the district court exclude Mr. Weiss's opinions 6 through 10, contained in his Original Report (the “Challenged Opinions”). In the Supplemental Report where Mr. Weiss added the bases for his opinions, those opinions became renumbered. For purposes of clarity and consistency, we will address the Challenged Opinions 6 through 10 as they appeared in the Original Report.

6.   An excerpt of the Deposition of FMC's corporate representative and expert engineer, Ram Krishnaswami, was attached to Ms. Gordon's opposition to FMC's Daubert Motion. In that excerpt, Mr. Krishnaswami testified that one does not have to be a biomechanical engineer to opine on occupant kinematics, nor does one have to be a medical doctor to opine on likely causes of injury when an occupant contacts interior components of a vehicle for the very reasons stated by Mr. Weiss.

7.   Challenged Opinion 8 was not excluded due to a perceived lack of qualifications but was excluded on the basis that Mr. Weiss's Challenged Opinion 8 was based on his erroneous factual assumption that the D-ring's polymer trim was dislodged and displaced due to contact with by Ms. Gordon's head. As discussed below, that assumption was contradicted by the facts.

8.   Ms. Gordon's counsel pointed out that Mr. Weiss's Challenged Opinions 6 through 10, did not contain the words “laceration,” “puncture wound,” or “concussion.”

9.   Mr. Weiss relied, in part, on Ms. Gordon's testimony that her head made contact with the D-ring. She testified that she did not know at first that her head hit the D-ring, but after an investigation, concluded that her head had made contact with the D-ring.

10.   Mr. Gordon was deposed on September 23, 2024. FMC's experts inspected the 2012 Navigator on September 4, 2024. The D-ring cover was intact when they inspected the vehicle. It was not intact when Mr. Sunseri inspected the vehicle on March 30, 2024.

11.   Mr. Weiss relied solely upon information provided to him by Mr. Armstrong, a biomechanical engineer and colleague to determine that it would take one hundred pounds of force for a head hitting a metal D-ring to cause a laceration/puncture wound to the scalp. FMC contends that because Mr. Weiss did not independently confirm this information, his methodology was flawed. An expert witness may testify based on information obtained from others and the character of evidence upon which the expert bases an opinion affects only the weight to be afforded the expert's conclusion. State v. Fallon, 290 So.2d 273 (La.1974); State v. Austin, 282 So.2d 711 (La.1973); La. C.E. art. 703. The expert witness testifying in court need not be the person who actually compiled the statistics for comparison. He or she may rely on data prepared by others. Fallon, 290 So.2d at 291.FMC also contends that Mr. Weiss's methodology is flawed because he used a pressure gauge with a hook on the end of it to pry off the outer plastic trim of a similarly constructed D-ring, at a forty-five degree angle, and concluded that ten pounds of force would be required for Ms. Gordon's head to strike the D-ring. FMC contends that Mr. Weiss should have used a head form. Mr. Weiss admitted that prying the trim off with the pressure gauge did not approximate a head strike.Because we have determined that Mr. Weiss relied on a fact not supported by the evidence, which caused him to make a faulty assumption, we do not opine on these issues.

12.   Mr. Weiss admitted that the 2012 Navigator was compliant with federal safety standards applicable to seatbelt construction and performance that were in place at the time of the accident. He was not aware of FMC or any other automobile manufacturer changing the design of the D-rings in their vehicles expressly due to safety concerns. He had not read any literature discussing safety concerns with visible D-rings. Mr. Weiss stated that, other than Ms. Gordon, he had not been asked to opine on any injury caused by occupant contact with a D-ring. He also testified that he was unaware of anyone other than Ms. Gordon having alleged to have been injured by contact with a D-ring.

13.   We observe, however, that as to these challenged opinions, there has been no showing, for purposes of a Daubert/Foret analysis that (1) Mr. Weiss's theory or technique can be and has been tested; (2) his theory or technique has been subjected to peer review and/or publication; (3) the known or potential rate of error; and (4) his theory is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.

1.   La. C.C.P. art. 966(C)(1), which establishes the deadlines to hear and decide a summary judgment motion, states “[u]nless otherwise agreed to by all of the parties and the court: (a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date․.” (Emphasis added.)La. C.C.P. art. 1425(F)(6) provides “[n]otwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial.”

WICKER, J.

CONCURS IN PART AND DISSENTS IN PART WITH REASONS SUS