MARVEN GARDNER v. BIANACA TYREE LATIN LYNDON SOUTHERN INSURANCE COMPANY AND KIA MOTORS AMERICA LLC (2026)

Marven Gardner appeals the trial court's June 2, 2025 judgment that granted a motion for summary judgment filed by defendant, Kia Motors America, Inc. (“KMA”) and dismissed Gardner's claims against KMA with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On or about November 20, 2018, Bianca Tyree Latin (“Latin”) was driving a 2007 Kia Spectra northbound on Interstate 55 in Tangipahoa Parish, Louisiana, while Joyce Marie Gardner (“Joyce”) rode as a passenger in the vehicle. As Latin drove down the exit ramp to exit onto Louisiana Highway 44, she failed to stop her vehicle and struck a 2015 Toyota Sienna driven by Janet Faye Lawler. As a result of the accident, Joyce struck her head on the windshield of the Kia Spectra and suffered a subdural hematoma. Joyce allegedly died as a result of the injuries she sustained in the car accident.

On November 20, 2019, Joyce's husband, Marven Gardner (“Gardner”), individually and on Joyce's behalf, filed a wrongful death and survival suit against Latin, Lyndon Southern Insurance Company, and KMA. As to KMA, Gardner alleged claims under the Louisiana Products Liability Act (“LPLA”), specifically alleging the “trigger switch component of the airbag system” manufactured by KMA was defective because the passenger side airbag in the Kia Spectra failed to deploy at the time of the accident. Gardner alleged KMA is liable for the following: (1) failing to properly manufacture and design the air bag instrumentation; (2) failing to provide adequate warnings of the dangerous nature of the instrumentation; (3) failing to comply with any applicable federal, state, and parish regulations or ordinances; (4) failing to properly manufacture and design the “air bag instrumentation's trigger pin component,” and/or failing to implement an alternative design, which was known to KMA at time the Kia Spectra was manufactured; and (5) any and all other acts of negligence or legal fault.

KMA answered Gardner's suit, generally denying all of the allegations against it, and specifically asserting, in pertinent part, “that it distributes vehicles, the component parts of which are designed, assembled, and manufactured by others for whom KMA has no legal responsibility.”

On August 30, 2024, the trial court signed a case management scheduling order, which, among other things, ordered Gardner to identify expert witnesses by November 15, 2024, and provide expert reports by January 15, 2025. The case management scheduling order required KMA to identify expert witnesses by December 15, 2024, and provide expert reports by February 15, 2025.

On December 6, 2024, KMA filed a motion for summary judgment seeking dismissal of Gardner's claims against it. KMA argued Gardner will be unable to meet his burden of proof for his LPLA claims because the subject Kia Spectra's airbags should not have deployed in the underlying minor car collision, and therefore, no product defect caused Joyce's injuries.² In support of its motion for summary judgment, KMA attached the affidavit of Geoffrey J. Germane, Ph.D, P.E., a licensed professional engineer with expertise in the discipline of mechanical engineering, including the application of mechanical engineering principles to crash reconstruction, crash mechanics, vehicle dynamics, kinematics, and failure analysis of vehicles and components damaged by crash forces.

In his affidavit, Dr. Germane attested to the fact that he inspected the subject Kia Spectra on February 23, 2023, in conjunction with individuals inspecting the vehicle on behalf of Gardner, and he inspected the site of the car crash the same day. Dr. Germane opined “[t]he subject crash was a low-severity full frontal inline rear override collision” and “[t]he subject 2007 Kia Spectra impacted the rear of a 2015 Toyota Sienna at a low speed during which the front bumper of the Kia primarily engaged the lower portion of the back door of the Toyota, above its rear bumper.” Dr. Germane explained that “[t]he rear bumper of the Toyota was only slightly deformed near the striker for the rear hatch.” Dr. Germane stated that photographs show “minor front bumper damage” to the Kia Spectra and he noted the front bumper “was displaced rearward approximately 1.4 in. at vehicle centerline[.]” Dr. Germane noted that the police report indicated Joyce was not wearing her seatbelt. Dr. Germane opined that “[c]onsistent with the low severity of the collision, no crash information was recorded by the airbag control unit and thus no airbag deployment was commanded.”

Dr. Germane stated the Kia Spectra contained advanced airbags, which were required of all vehicles sold in the United States after September 1, 2006. Dr. Germane noted “[a]irbag deployment was controlled by an airbag control unit.” Dr. Germane explained “[f]or an adult driver or right front occupant in a full frontal crash, the deployment threshold is a 16 mph [change in velocity], comparable to the vehicle striking a rigid barrier at 16 mph.” Dr. Germane opined that the Kia Spectra impacted the rear of the Toyota Sienna traveling at approximately 7-12 miles per hour and the change in velocity of the Kia Spectra was approximately 6-9 miles per hour, “with an extended deceleration pulse duration of approximately 0.125-0.150 sec. due to combined dynamic crush which likely approached 10 in. during engagement with the Toyota rear door.” Dr. Germane opined that “[t]he barrier equivalent [change in velocity] of the Kia was therefore lower than its actual [change in velocity], and well below the threshold [change of velocity] of 16 mph.” Therefore, it was Dr. Germane's “opinion that the frontal airbags in the 2007 Kia Spectra should not have deployed in this minor collision, and the airbag system performed as designed and was not defective.”

On December 13, 2024, KMA filed a formal designation of its expert witnesses, including Dr. Germane. KMA filed Dr. Germane's expert report on February 14, 2025.

On January 2, 2025, Gardner filed a motion to compel discovery responses and a motion for continuance of KMA's motion for summary judgment. Gardner stated that he wished to depose Dr. Germane and requested that the trial court order KMA to provide sufficient responses to Gardner's interrogatories and requests for production of documents, which Gardner asserted were propounded on KMA on July 24, 2020. Gardner sought an order compelling the deposition of Dr. Germane and discovery responses from KMA prior to January 30, 2025, the date set for the hearing on KMA's motion for summary judgment. Gardner noted that on December 5, 2024, he requested supplemental discovery responses and dates to depose KMA's expert. Gardner argued KMA's motion for summary judgment should be continued to allow him time to complete discovery, specifically to depose Dr. Germane.

Following the filing of Gardner's motion to compel, KMA's motion for summary judgment, which was originally set for January 30, 2025, was reset to March 6, 2025.³ On February 10, 2025, KMA filed an opposition to Gardner's motion to compel. KMA noted that a Rule 10.1 ⁴ conference was not held prior to Gardner's filing of the motion. KMA also argued that Gardner has never articulated the alleged deficiencies in KMA's discovery responses, but speculated that Gardner is unsatisfied with KMA's lack of responses to “various vehicle design and manufacturing documents[.]” However, KMA noted that it does not design, manufacture, or test vehicles. KMA stated that it is a distributor of vehicles in the United States and “cannot respond to any discovery requests unrelated to the distribution, servicing and sales of Kia vehicles.” KMA asserted that Gardner's motion to compel was a delay tactic, asserting that Gardner cannot prevail at trial because he failed to identify an expert witness by the trial court's scheduled deadline of November 15, 2024, or provide an expert report by the January 15, 2025 deadline.

On February 24, 2025, a hearing was held on Gardner's motion to compel. The record does not contain a transcript of the hearing and the minute entry corresponding to the hearing does not indicate whether evidence was introduced at the hearing.⁵ Following argument, the trial court took the matter under advisement. On March 18, 2025, the trial court signed a written judgment denying Gardner's motion to compel, adopting KMA's opposition and supplemental opposition to the motion to compel as its reasons for judgment. Notice of judgment was mailed to the parties on March 31, 2025. On April 30, 2025, Gardner filed a notice of intent to seek supervisory review of the trial court's judgment denying his motion to compel and requested a stay of the trial court proceedings pending resolution of his writ application. On May 13, 2026, the trial court denied Gardner's request for a stay and refused to set a return date, finding the notice of intent was untimely.⁶

On May 1, 2026, a hearing was held on KMA's motion for summary judgment. Following argument, the trial court granted KMA's motion for summary judgment. On June 2, 2025, the trial court signed a written judgment granting KMA's motion for summary judgment and dismissing Gardner's claims against KMA with prejudice. Gardner now appeals.

ASSIGNMENTS OF ERROR

Gardner asserts the following assignments of error:

1. The Trial Court erred in denying [Gardner's] Motion to Continue the Summary Judgment Hearing.

2. The Trial Court erred in denying [Gardner's] Motion to Compel Discovery.

3. The Trial Court erred in granting summary judgment in favor of [KMA] without giving [Gardner] the opportunity to depose [KMA's] expert witness.

4. The Trial Court's actions violated Louisiana Code of Civil Procedure Article 1425.

DISCUSSION

In his first, second, and fourth assignments of error, Gardner argues the trial court erred by denying his motion to compel and motion to continue. Gardner argues he filed his motion to compel to obtain information about Dr. Germane that was “critical” to opposing KMA's motion for summary judgment.⁷ Gardner further argues the trial court violated La. C.C.P. art. 1425 by denying his motion to compel.⁸ Gardner asserts the trial court should have granted his motion to continue to allow him time to depose Dr. Germane. In his related third assignment of error, Gardner argues the trial court erred in granting KMA's motion for summary judgment without first allowing him to conduct additional discovery.

Initially, we note that there is no ruling from the trial court denying Gardner's motion for a continuance. KMA's motion for summary judgment was originally set for hearing on January 30, 2025. However, the matter was reset so that the trial court could hear Gardner's motion to compel before ruling on KMA's motion for summary judgment. On February 24, 2025, the trial court held a hearing on Gardner's motion to compel and the motion was denied on March 18, 2025. KMA's motion for summary judgment was not heard until May 1, 2025. Despite the motion for summary judgment being reset, Gardner never filed an opposition to the motion for summary judgment. Furthermore, Gardner did not file another motion to continue after his motion to compel was denied.

It is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central Railroad Co., 93-0783 (La. 1/14/94), 631 So. 2d 401, 406. Moreover, it is not an abuse of the trial court's wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. Duncan v. Poydras, 2010-2094 (La. App. 1 Cir. 6/10/11), 68 So. 3d 1184, 1186.

Louisiana Code of Civil Procedure article 966(A)(3) provides that a motion for summary judgment may be granted after an opportunity for adequate discovery if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. The requirement that a summary judgment should be considered only after “adequate discovery” has been construed to mean that there is no absolute right to delay action on a motion for summary judgment until discovery is complete; rather, the requirement is only that the parties have a fair opportunity to carry out discovery and to present their claim. Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1 Cir. 1/9/20), 294 So. 3d 522, 527.

In Duncan, 68 So. 3d at 1185, a significantly similar case, the plaintiff filed suit against Ford Motor Company (“Ford”) under the LPLA ⁹ alleging the airbag in his vehicle was defective because it did not deploy after a car accident. Ford moved for summary judgment on the plaintiff's claims, arguing there was no evidence in the record to prove the plaintiff's injuries were caused by a defect in the vehicle. The trial court denied a motion to compel discovery filed by the plaintiff seeking to depose Ford's expert and granted Ford's motion for summary judgment, dismissing the plaintiff's claims against Ford with prejudice. Id. at 1185.

On appeal, the plaintiff argued the trial court erred in denying his motion to compel and in granting Ford’ s motion for summary judgment before allowing him to depose Ford's expert. Id. at 1185. This Court affirmed the trial court's judgment, explaining that “it is not an abuse of the trial court's wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed.” Id. at 1186. This Court noted that the plaintiff had six years from the time of the accident to the filing of Ford's motion for summary judgment to complete discovery and depose Ford's expert. Therefore, this Court found the trial court did not abuse its discretion by denying the plaintiff's motion to compel and granting Ford's motion for summary judgment without allowing the plaintiff to depose Ford's expert. Id. This Court further found on its de novo review that Ford met its initial burden by pointing out there was no evidence showing the plaintiff's damages were caused by a defect in the Ford vehicle. Thereafter, the plaintiff failed to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial. Accordingly, this Court found Ford was entitled to summary judgment and dismissal of the plaintiff's LPLA claims. Id. at 1187.

As noted, the record of this matter does not contain a transcript of the hearing on Gardner's motion to compel, without which this Court cannot ascertain whether Gardner introduced evidence to support his motion. Gardner argues that he needed to depose Dr. Germane in order to oppose KMA's motion for summary judgment, but he does not explain what information he needed to obtain. KMA complied with the case management scheduling order by timely identifying Dr. Germane as an expert and providing a copy of his expert report. There is no indication from the record of this matter that Gardner timely identified an expert or provided an expert report to KMA. This litigation has been pending for more than six years, which is more than adequate time for Gardner to conduct discovery. We find the trial court did not abuse its vast discretion by denying Gardner's motion to compel. See Duncan, 68 So. 3d at 1186.

Gardner alleged the trigger switch component of the airbag system in the Kia Spectra was defectively designed or manufactured by KMA because the airbags did not deploy after the underlying accident on November 20, 2018. In support of its motion for summary judgment, KMA attached the affidavit of Dr. Germane, who expressed his expert opinion that the frontal airbags in the Kia Spectra should not have deployed in the minor collision, and the airbag system performed as designed and was not defective. Thus, KMA met its initial burden of pointing out an absence of factual support for Gardner's LPLA claims. See La. C.C.P. art. 966(D)(1); Duncan, 68 So. 3d at 1187. Gardner did not file an opposition to KMA's motion for summary judgment, and therefore, he failed to produce factual support sufficient to establish a genuine issue of material fact regarding the allegedly defective condition of the Kia Spectra's airbag system. On de novo review, we find the trial court did not err by granting KMA's motion for summary judgment. Accordingly, these assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the trial court's June 2, 2025 judgment granting summary judgment in favor of Kia Motors America, Inc. and dismissing with prejudice Marven Gardner's claims against Kia Motors America, Inc. is affirmed. Costs of this appeal are assessed to Marven Gardner.

AFFIRMED.

FOOTNOTES

2.   KMA also argued Gardner cannot prevail on his LPLA claims because Latin admitted she caused the accident and Joyce failed to mitigate her damages by failing to wear her seatbelt. In support of these assertions, KMA attached to its motion for summary judgment a copy of a State of Louisiana Uniform Motor Vehicle Traffic Crash Report (“police report”). There was no objection to the documents attached to KMA's motion for summary judgment. See La. C.C.P. art. 966(D)(2). However, the police report is an unsworn and unverified document because it was not attached to, or identified in, an affidavit or otherwise authenticated. See Pottinger v. Price, 2019-0183 (La. App. 1 Cir. 10/23/19), 289 So. 3d 1047, 1053. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Alden v. Rice, 2024-0721 (La. App. 1 Cir. 5/28/25), 2025 WL 1513144, *4 (unpublished), writ denied, 2025-00821 (La. 10/1/25), 417 So. 3d 576. Therefore, we find the police report has no evidentiary value.

3.   On February 6, 2025, KMA filed a supplemental memorandum in support of its motion for summary judgment. The only noticeable difference between the original memorandum and the supplemental memorandum is that photographs of the Kia Spectra and Toyota Sienna were attached to Dr. Germane's affidavit. We note that La. C.C.P. art. 966(B)(3) prohibits the filing of additional documents with a reply memorandum.

4.   See Rule 10.1 of the Rules for Louisiana District Courts.

5.   The appellant bears the burden of furnishing the appellate court with a record of the proceedings below. When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant. Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So. 3d 192, 196.

6.   We note that Gardner's notice of intent was filed on the thirtieth day after notice of mailing of judgment. Therefore, the notice of intent, while delayed, was not untimely. See La. C.C.P. art. 1914(B); Rule 4-2, Uniform Rules of Louisiana Courts of Appeal. Where a relator files a notice of intent to seek writs and/or a motion and order requesting a return date with the trial court within 30 days of the ruling at issue, this Court has interpreted a return date set outside the 30-day period as an implicit extension of the return date by the trial court. See Spangler v. Chiasson, 95-2113 (La. App. 1 Cir. 4/22/96), 681 So. 2d 956, 957. As noted, in the instant case, the trial court refused to set a return date. Notwithstanding this fact, Gardner never filed a writ application with this Court. Therefore, Gardner failed to timely seek supervisory review of the trial court's judgment denying his motion to compel. See Rules 4-2 and 4-3, Uniform Rules of Louisiana Courts of Appeal.

7.   The trial court's denial of Gardner's motion to compel is an interlocutory ruling. See Royer v. Our Lady of the Lake Hosp., Inc., 2017-1764 (La. App. 1 Cir. 2/22/19), 2019 WL 851165, *9, writ denied, 2019-0489 (La. 5/28/19), 273 So. 3d 307. Although an interlocutory judgment is not itself appealable, it is subject to review on appeal when a final, appealable judgment has been rendered in the case. Id.

8.   Louisiana Code of Civil Procedure article 1425 governs the pretrial disclosure of expert witnesses and discovery of facts known or opinions held by those experts.

9.   Under the LPLA, “[t]he manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.” La. R.S. 9:2800.54(A). A product may be considered unreasonably dangerous if and only if the product is unreasonably dangerous in construction or composition, as provided in La. R.S. 9:2800.55; in design, as provided in La. R.S. 9:2800.56; because an adequate warning about the product has not been supplied, as provided in La. R.S. 9:2800.57; or because the product does not conform to the manufacturer's express warranty about the product, as provided in La. R.S. 9:2800.58. La. R.S. 9:2800.54(B).

BALFOUR, J.