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Rainy day, a slippery floor and constructive notice

In one of those opinions concluding oddly in relation to the text, a Third Circuit panel reversed a defense merchant liability, slip and fall summary judgment. See, Barton v. Wal-Mart Stores, Inc., 18-146 (La.App. 3 Cir. 09/26/18).

Several paragraphs describe details that don't seem to suggest a final statement on the impropriety of credibility determinations for summary judgment purposes. Rather, the facts, as described, could be grounds for explanation that the plaintiff's credibility alone, no matter how strong, could not overcome an "absence of factual support for" proof of constructive notice. Nevertheless, the matter returns to the 9th JDC for further proceedings.

Posted: Sept. 27, 2018

$4.2M Bench Trial Judgment - Open, but Not Obvious

Manson Gulf, LLC v. Modern American Recycling Service, Inc.,
15-3627 (USDC-EDLA 09/04/18);
on remand from
Manson Gulf, LLC v. Modern American Recycling Service, Inc.,
17-30007 (U.S. 5th Circuit 12/18/17)

Witness: “grating can play tricks on your eye... . " From four to eight feet away, the hole in the platform looked like solid floor.

Inspecting a salvaged oil production platform for "excess oil in pipes," James LaFleur fell through a hole 50 feet to his death on a barge deck below. His surviving spouse and children brought survival and wrongful death claims under the Longshore and Harborworkers' Compensation Act and state tort law.

Louisiana's federal Eastern District trial court granted defense summary judgments. Plaintiffs appealed the court's finding of fact supporting Manson Gulf's motion that the hole was an "open and obvious" danger that a "reasonably competent stevedore should anticipate encountering." See Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 164 (1981). The U.S. Fifth Circuit reversed on finding contradictory evidence about the appearance of the hole.

On remand, the court recited that contrary testimony - quoted above - in findings of fact favoring plaintiff recovery. A September 4, 2018, judgment based on those findings awarded damages of $4,210,756.00, composed of the following:

  • Survival damages for conscious pain and suffering - $400,000;
  • Loss of earnings and earning capacity - $810,756.00;
  • Spouse's wrongful death damages - $1,500,000;
  • Each of three children's wrongful death damages (ages 14, 15 and 16 at time of death) - $500,000.

Testimony supporting survival damages suggested severe pain throughout "approximately ten to fifteen minutes" of consciousness. Compare McBride v. Estis Well Serv., L.L.C., 16-30481 (U.S. 5th Circuit 04/10/17), 853 F.3d 777.

Posted: Sept. 10, 2018

An Issue Laden Opinion

On Friday, a five judge First Circuit panel issued an opinion discussing evidence, Daubert, new trials, JNOV motions and general damages. See, Spann v. Gerry Lane Enterprises, Inc., 2016-0793 (La.App. 1 Cir. 08/24/18). Judge Whipple wrote the majority opinion and Judge McDonald dissented on evidentiary grounds. The majority included Judges Higginbotham, Theriot and Chutz.


Patricia Spann lost control of her Chevrolet Cobalt on S. Acadian Thruway in Baton Rouge and collided with "several vehicles driving in the opposite lanes." She fractured multiple facial bones, two thoracic vertebrae, one lumbar vertebra, a wrist and elbow. Ms. Spann sued Gerry Lane Enterprises for alleged defective performance of power steering system recall repairs.

Judge Robert Downing, sitting on the 19th JDC bench pro tempore, dismissed Gerry Lane on summary judgment. Judge Donald Johnson granted a new trial motion supported with subsequently obtained expert evidence.

Later, Judge Johnson denied a re-urged defense summary judgment motion and a jury assigned 70% fault to Ms. Spann and 30% fault to Gerry Lane at trial. Total damages awarded by the jury prior to comparative fault reduction included $122,338.80 past medical expenses, $25,000 past loss of earnings and $25,000 "for loss of physical abilities, disfigurement, and impairment." The jury declined to award damages for pain and suffering, mental anguish, permanent disability and loss of enjoyment of life.

Judge Johnson granted a plaintiff JNOV motion and increased general damages by $700,000, for a total of $725,000.

The First Circuit affirmed Judge Johnson's pre-trial and evidentiary rulings, but reduced general damages to $125,000, "the highest reasonable amount that can be awarded." Judge McDonald, dissenting, would have reversed Judge Johnson's grant of a new trial and reinstated the summary judgment entered by Judge Downing in favor of Gerry Lane.

Evidence and Daubert

An initial joint vehicle inspection was completed by defense and plaintiff experts. After Gerry Lane was dismissed on summary judgment, plaintiff's mechanical engineering expert, Edward Carrick, conducted two additional inspections and testing of Ms. Spann's vehicle without defense participation. These inspections occurred, in the words of Judge McDonald, "in clear violation of [a] February 4, 2015 consent judgment, which prohibited Ms. Spann, and anyone on her behalf, from altering her car, performing tests without prior court approval, removing parts from the car, and conducting destructive tests."

The majority found no merit in a defense Daubert argument which it described as attacking the expert's credibility, but not methodology. Further, regarding civil contempt as grounds for reversal, although the plaintiff's second and third expert inspections in contravention of the consent order "troubl[ed] the [trial] court," admitting the evidence was not an abuse of discretion.

New Trial

Plaintiff presented the trial court with results of the additional expert analysis in support of the motion for new trial. She argued the evidence could not have been obtained prior to the hearing. The First Circuit "pretermitted" discussing prior availability of the evidence, a peremptory ground for new trial under La. C.C.P. 1972(2). Instead, the majority concluded that Judge Downing's original judgment summarily dismissing the defendant was "contrary to the law and evidence," and appropriate for new trial under La. C.C.P. art. 1972(1).

JNOV, Inconsistent Verdict and Quantum

The First Circuit agreed with Judge Johnson and the plaintiff that the jury's verdict awarding $122,338.80 past medical expenses, but nothing for pain, suffering and mental anguish was inconsistent and an abuse of discretion. In an effort to salvage the result, the defendant argued that the evaluation should consider general damages as a whole. See, Mason v. Hilton, 2012 CA 2073 (La.App. 1 Cir. 11/07/13). For that reason, argued the defense, the jury's $25,000 award, ostensibly for impairment and disfigurement, was within the discretionary range. On the contrary, the First Circuit review led to the conclusion "that reasonable and impartial jurors in this case could not differ as to the fact that an award of $25,000.00 for general damages is abusively low, especially in light of the type of physical injuries sustained by Ms. Spann, the duration of her hospital stay, and the continued assistance that she needed at home after being discharged from the hospital." Judge Johnson's decision to grant plaintiff's JNOV was affirmed.

On quantum, the defense appeal found substantial relief. Here, the majority focused primarily on plaintiff's successful, albeit protracted, recovery from her injuries. In conclusion, the opinion states:

In light of the absence of medical testimony regarding any future medical care or procedures that Ms. Spann may need and Ms. Spann's own testimony regarding the time frame in which she became generally able to resume her normal activities, we find that $125,000.00 is the highest reasonable amount that can be awarded to Ms. Spann for general damages. Accordingly, as the jury previously awarded Ms. Spann $25,000.00 for general damages and the trial court maintained this award, we find that the trial court should have awarded Ms. Spann an additional $100,000.00 for general damages, not an additional $700,000.00. Accordingly, while we find that the trial court properly granted the motion for JNOV, we amend the amount of general damages awarded by the trial court in the JNOV.

Posted: Aug. 26, 2018

Summary judgment deadlines - a med-mal lesson

Amendments to La. C.C.P. art. 966 a few years ago challenged the capacity of the procedurally habituated to adjust. A recent med-mal defense summary judgment and reversal at the Third Circuit illustrates. See Dufour v. The Schumacher Group of Louisiana, Inc., 2018-0020 (La.App. 3 Cir. 08/01/18).

Beth Dufour, in pain during pregnancy, arrived at the Rapides Regional emergency room for care. Four hours later she was discharged after learning that she miscarried. She was not seen by an Ob/Gyn.

Later, with "increased pain and bleeding, fever, and further complications", Ms. Dufour was seen by her personal Ob/Gyn who diagnosed an ectopic pregnancy. Emergency surgery with removal of a fallopian tube ensued.

A medical review panel found no breach of the standard of care by the hospital or attending ER physician. Ms. Dufour and her husband filed suit in the 9th JDC. After a period of discovery, the defendants filed a motion for summary judgment. Following two continuances, a hearing was scheduled for June 12, 2017. The Dufours filed an opposition with attached affidavit of Dr. Thomas Arnold addressing informed consent. The June hearing was also continued and the court "permitted [plaintiffs] to engage in additional discovery for the purpose of adequately defending against RMC's summary judgment motion." After plaintiffs initiated further discovery, the defendants filed a motion to quash and for protective order.

On August 4, prior to the re-scheduled hearing on August 21, the Dufours filed a supplemental opposition attaching an additional affidavit of Dr. Arnold and an affidavit of Dr. Christina Lord. The court initially overruled a defense objection and allowed the new evidence. Later, the trial judge reversed that decision, excluded the affidavits and found that plaintiffs failed to produce evidence raising a genuine issue of material fact as to breach of the standard of care.

Exclusion of the evidence turned on the application of La. C.C.P. art. 966(B)(2) requiring opposition memoranda to be filed 15 days prior to the hearing. Although the Dufours final opposition with supporting affidavits was filed 17 days prior to the August hearing, the deadline had passed if calculated in relation to the June hearing date.

The Third Circuit reversed. Key points from Judge Kyzar's opinion include:

  • "[D]istrict courts, in applying the deadline imposed by the article [966(B)], ... have the discretion to consider late-filed opposition materials, absent prejudice to the mover. Smith v. Rapides Healthcare Sys., L.L.C., 13-1172 (La.App. 3 Cir. 3/5/14), 134 So.3d 122";
  • "The rescheduling of the hearing reset the time for the filing of opposition documents. Mahoney v. East Carroll Parish Police Jury, 47,494 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La. 2/8/13), 108 So.3d 88";
  • "While ... the Dufours did not request time to file additional expert affidavits nor did the trial court order that they be allowed to file additional expert affidavits, we note that neither did the trial court deny the right to file any supplemental response affidavits";
  • "Baez [v. Hospital Service District No. 3 of Allen Parish, et al, 2016-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98] does not stand for the proposition that a party is only permitted to file a single opposition without the ability to supplement that opposition even when the supplemental opposition is filed within the delays provided for in La.Code Civ.P. art. 966(B);"
  • The "purpose of a surreply is to enable the non-movant to contest matters presented for the first time in the opposing party's reply";
  • "The filings on behalf of the Dufours were not filed as a surreply; ... [they] were filed as part of the Dufours' response to the original motion for summary judgment"; and
  • "Because the hearing on the motion for summary judgment was reset, the deadline for filing opposition documents to the motion was reset as well in the absence of any limiting orders from the trial court, of which there were none in this case."

Posted: Aug. 20, 2018

Burden of proof - MVA disputes edition

A pair of recent CDC defense judgments found the plaintiffs failing to carry their burden of proof in motor vehicle accidents. See Williams v. Liberty Mut. Ins. Co., 2015-4019 (Civil District Court 07/18/18); and Vallejos v. USAA General Indemnity Co., 2016-9368 (Civil District Court 08/03/18).

Judge Robin Giarrusso succinctly noted in Williams Reasons for Judgment: "A picture is worth a thousand words. There is no damage to Mr. Lewis' car."

A little more explanation was needed from Judge Bruno before he concluded that "equivocal" evidence is not a preponderance. In Vallejos, the drivers disputed who sideswiped whom by changing lanes on Veterans Memorial Boulevard.

Posted: Aug. 10, 2018

Constructive notice - 10 minutes to a triable fact under La. R.S. § 9:2800.6

Louisiana's First Circuit Court of Appeal reversed a defense summary judgment on finding a genuine issue of material fact regarding constructive notice under the Merchant Liability Act (La. R.S. § 9:2800.6). See Foto v. Rouse's Enterprises, LLC, 2017-1601 (La.App. 1 Cir. 08/06/18). Evidence that a clear substance was on the floor of defendant's grocery store at least 10 minutes "was sufficient to constitute constructive notice."

Plaintiff testified that she was present in the aisle where she slipped between 9:30 a.m. and 9:40 a.m. During that time no other person was present in the aisle. Plaintiff slipped in a clear liquid substance that did not come from a product shelved in the area. Thus, the evidence supported a reasonable conclusion that the liquid was present for at least 10 minutes. Further, this was sufficient duration to give rise to a triable issue as to whether the defendant had constructive notice of the hazardous condition.

Concurring, Judge Crain writes:

With this evidence, granting defendant summary judgment requires the conclusion that ten minutes, as a matter of law, is not an unreasonable period for the condition to exist. While a very close call, I cannot reach that conclusion under the facts presented.

Posted: Aug. 8, 2018

24th JDC jury: $500K for 3 level lumbar fusion

A Jefferson Parish jury returned a couple of interesting damage awards for a husband's lumbar and wife's cervical fusions. For a three level lumbar fusion and second revision surgery, Christopher Baldassaro was awarded $300,000 for pain and suffering and $200,000 for mental anguish. Raquel Baldassaro was awarded $200,000 for pain and suffering and $200,000 for mental anguish for a single level cervical arthroplasty and future ulnar nerve release and transposition surgery. Loss of consortium damages awarded to each spouse was $50,000. See, Baldassaro v. Travelers Prop. Cas. Co. of America, 727,793 (24th JDC 07/18/18).

Special damages to the husband included $459,000 for past medicals, $400,000 for future medicals, $158,192 for past loss of earnings, and $400,000 for future loss of earnings and earning capacity. The wife's special damages included past medical of $127,176.01, future medicals of $100,000.00, past wage loss of $200,000 and future loss of earnings and earning capacity of $310,000.

Posted: Aug. 1, 2018

The inverse of Erie is Ireland

Louisiana's Supreme Court unanimously reversed a (La.) Fifth Circuit opinion with reference to the (U.S.) 5th Circuit's analysis of a comparable issue, making it's decision a rare inversion of the Erie doctrine.

A per curiam opinion in Forvendel v. State Farm Mut. Auto. Ins. Co., 2017-2074 (La. 06/27/18), held that an insurer's waiver of anti-stacking as a defense to one UM claim does not effect waiver of the same defense for a subsequent UM claim arising out of a different occurrence.

Plaintiff was involved in two relevant motor vehicle accidents, one in 2007 and a second in 2013. In connection with his 2007 accident, plaintiff claimed UM benefits under a personal auto policy and under a second policy issued to his mother. State Farm mistakenly paid benefits under both UM coverages. Following his 2013 accident, plaintiff made the same claims for UM benefits. State Farm asserted an anti-stacking defense against compensation under both policies. Plaintiff argued that State Farm waived the defense by virtue of its prior errant claim handling.

Relying on Steptore v. Masco Construction Co., Inc., 1993-2064 (La. 08/18/94), 643 So.2d 1213, the trial judge agreed with the plaintiff's position and awarded UM benefits under both policies following a bench trial on the 2013 claim. By a 2-1 decision, Louisiana's Fifth Circuit Court of Appeal affirmed.

The Supreme Court distinguished Steptore based on the difference between waiver of coverage defense[s] as to the original claim and subsequent claims. On the final result, defense counsel, Ryan Acomb of Porteous, Hainkel & Johnson, L.L.P. comments:

The Supreme Court correctly noted that it had not addressed this precise issue before. Its decision is consistent with the application of principles of “waiver” in insurance law throughout other state and federal jurisdictions and similar lower court caselaw in Louisiana.

The Supreme Court's opinion cited with approval the U.S. Fifth Circuit opinion in American Int. Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254 (U.S. 5th Circuit 12/15/03). In American Intern. the plaintiff brought a declaratory judgment action in diversity seeking to have the United States District Court for the Eastern District of Louisiana declare that it did not owe a pro rata share of indemnity with Canal for pollution damages caused by a common insured. Canal argued at the trial court that an "other insurance" escape clause was waived by American International's prior payment of another claim against the same insured arising out of a factually similar scenario. The U.S. Fifth Circuit affirmed that portion of the trial court's judgment rejecting the waiver defense.

The federal appellate court's reasoning discussed by Louisiana's Supreme Court without explicit disagreement was more expansive than the obvious different claims scenario. Once I've had a chance to look closer at the potential implications, I'll update this post with further comment.

Posted: July 5, 2018

UM rejection - a dissent's view on reading plurality opinions

It's been a while since selection/rejection of UM coverage was a regular subject of appellate discussion. It still comes up on occasion and does again in the Third Circuit opinion Higginbotham v. USAgencies Ins. Co., 2017-0491 (La.App. 3 Cir. 06/13/18). The opinion is worth reading for a refresher on the basic requirements and a split between First and Third Circuit jurisprudence.

But I found Judge Amy's dissent to be the most interesting reading (joined by Judge Gremillion). He describes jurisprudential views on the value of plurality opinions. It may not occur often, but the point is an important one to consider when arguments rely on case law, particularly opinions of Louisiana's Supreme Court, that represent the holding of a particular case, but are not endorsed by a majority of the panel.

Posted: June 17, 2018

Prescription and service of process - in Theriot, First Circuit pushes Pullin

For the second time in less than two months the First Circuit held that plaintiff consent to dismissal under La. C.C.P. art. 1672 for failure to request service within 90 days is not a voluntary dismissal for purposes of prescription. See, Theriot v. Archer, 2017-1304 (La.App. 1 Cir. 04/30/18); citing with approval Pullin v. Chauvin, 2017-1292 (La.App. 1 Cir. 03/15/18).

In both cases defendants obtained plaintiffs' consent to judgments on exceptions of insufficiency of service of process and dismissal without prejudice as provided in La. C.C.P. art. 1672(C) for failure to comply with the requirements of La. C.C.P. 1201(C).

Two panels of the First Circuit have now concluded without dissent that this scenario does not trigger Civil Code article 3463 which provides, in relevant part, that "[i]nterruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action... ."

Posted: May 3, 2018