United States Court of Appeals

for the Fifth Circuit ____________

No. 22-20614

Summary Calendar

____________

Beverly Barnett, 

Plaintiff—Appellant, 

versus

Kia Motors America, Incorporated, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:21-CV-1591

______________________________

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:*

Beverly Barnett moves for leave to proceed in forma pauperis (IFP) 

on appeal from the dismissal of her product liability action against Kia Motors 

America, Inc. (Kia), in which she alleged that she was injured when her Kia’s 

seatbelt and airbag malfunctioned during a collision. The district court 

_____________________

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion 

should not be published and is not precedent except under the limited circumstances set 

forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2023

Lyle W. Cayce

Clerk

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No. 22-20614

2

granted summary judgment for Kia because Barnett failed to designate an 

expert witness on product liability. Texas law, which governs the substance 

of Barnett’s suit, “require[s] expert testimony and objective proof to support 

a jury finding that a product defect caused the plaintiff’s condition.” Gharda 

USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex. 2015).

To proceed IFP on appeal, Barnett must demonstrate both financial 

eligibility and the existence of a nonfrivolous appellate issue. 28 U.S.C. 

§ 1915(a)(1); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An issue is 

nonfrivolous if it “involves legal points arguable on their merits.” Howard v. 

King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation 

omitted). We may dismiss a frivolous appeal sua sponte. 5th Cir. R. 42.2.

We review a summary judgment de novo, using the same standard as 

that employed by the district court. McFaul v. Valenzuela, 684 F.3d 564, 571 

(5th Cir. 2012). Summary judgment is proper “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Barnett neither identifies an error in the district court’s construal or 

application of Texas law requiring expert testimony to support a product 

liability claim nor disputes the finding that she failed to offer such a witness. 

See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th 

Cir. 1987). Her argument that her own pleaded facts alone suffice to 

overcome summary judgment is baseless in light of Gharda. And insofar as 

Barnett challenges the holding in Gharda, that is a matter for the Texas 

courts. Absent the requisite expert testimony, there can be no genuine 

factual dispute as to whether any product defect caused Barnett’s injuries, 

and Kia is accordingly entitled to judgment as a matter of law. The district 

court’s grant of summary judgment was indisputably proper. See McFaul, 

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684 F.3d at 571. Accordingly, the motion for leave to proceed IFP is 

DENIED, and the appeal is DISMISSED as frivolous.

Case: 22-20614 Document: 00517015334 Page: 3 Date Filed: 12/28/2023