Insight

Class Actions in a State of Undress

Published on: April 4, 2013

Almost no litigation grabs attention and headlines more than a high-profile class action. The Louisiana Supreme Court's recent class action ruling was no exception in a case involving salacious conduct and a violation of privacy.

The plaintiff in Jane Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13) was an unnamed victim of a "peeping tom." She contended that an employee of a popular gym placed a pen camera in the women's bathroom where he would tape unsuspecting women in various states of undress. The pen camera could hold only 1-2 hours of film. The perpetrator testified that, after viewing, he would immediately delete the footage. The images of only four women were seen on the footage when it was discovered. After the employee was arrested, one of the victims filed the class action lawsuit. At issue before the Louisiana Supreme Court was whether the class action was properly certified by the Trial Court.

Class action is a nontraditional litigation procedure that was introduced into Louisiana civil procedure in 1961. Louisiana class action procedure is modeled after the original federal rule and has been extensively revised since its inception. Louisiana Code of Civil Procedure Article 591 provides the elements that must be met before a class action can be certified. Failure to meet one of the threshold requirements of Article 591 precludes class action treatment. Once of these threshold requirements is numerosity, i.e. a class of potential plaintiffs "so numerous that joinder of all members is impractical." La. C.C.P. art. 591(a)(1). The requirement of numerosity was at issue in Jane Doe.

In its analysis, the Supreme Court stressed that courts must perform a rigorous analysis to determine whether the proposed class action meets the requirements of Article 591. Simply pleading a class action is insufficient. Instead, the plaintiff "must be prepared to prove in fact" that the Article 591 requirements are met. Id. at p. 9. To establish the "numerosity" requirement, the class representative cannot simply allege that several persons were affected by the defendant's bad acts. She must be able to offer some proof of a definable group of aggrieved persons so numerous that joinder is impractical.

In Jane Doe, the Supreme Court held that the plaintiff did not satisfy numerosity. The employee's testimony revealed that he may have recorded approximately 20 women. However, because the footage was deleted, most of the potential class members could not show that their privacy had been violated. Only nine women had positive knowledge that they were on video. According to the Jane Doe Court, nine class members did not meet the numerosity requirement and the class was decertified. While the Court did not reveal a "magic number" to meet numerosity, we now know it may be higher than nine.

There is an old adage that "bad facts make bad law." In Jane Doe, the Louisiana Supreme Court did not let the egregious nature of the conduct impact its view that the requirements of Article 591 must be met in every circumstance.

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Court Addresses the Reach of the Louisiana Health Emergency Powers Act’s Immunity Provision for Claims Against Health Care Providers

The Louisiana Health Emergency Powers Act (LHEPA), La. R.S. 29:760 et seq, was enacted in 2003 to allow the government to use extraordinary powers in order to respond to potential or actual public health emergencies. Historically, claims against medical providers have been governed by a negligence standard, which requires a plaintiff to prove the provider failed to act with reasonable care. However, La. R.S. 29:771(2)(c), which was enacted as part of the LHEPA, provides what has been described as a limited or quasi-immunity for health care providers:

During a state of public health emergency, any health care providers shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.

This provision imposes a heightened standard of gross negligence or willful misconduct for claims against health care providers and their employees. “Gross negligence” has been defined as “the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.”* Therefore, absent a showing of gross negligence or willful misconduct, the provision provides immunity from civil liability for all claims against all health care providers.

The reach and application of this heightened standard of gross negligence under the LHEPA has been the subject of recent rulings from Louisiana courts. In Lejeune v. Steck, which was decided before COVID-19 in connection with a public health emergency declared following Hurricane Katrina, the Louisiana Fifth Circuit Court of Appeals ruled that the LHEPA’s heightened standard applied to all medical providers in the state while the state was in a public health emergency.^

In Lejeune, a doctor left a sponge in a patient during a surgery. The plaintiff argued that a general negligence standard should apply because the surgery occurred outside the Hurricane Katrina emergency area. However, the Court found that the plaintiff must prove gross negligence or willful misconduct because the LHEPA “does not provide for a limited set of health care providers, nor does it limit its application to only those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.” Thus, the Court ruled the LHEPA was broad reaching and covered all health care providers in all areas of Louisiana during the public health emergency.

More recently, Governor Edwards invoked the LHEPA on March 11, 2020 in response to COVID-19. In line with the all-inclusive application seen in Lejeune, the Louisiana Second Circuit Court of Appeals recently held that the LHEPA applied to all claims against health care providers that arose during the public health emergency declared for COVID-19.

In Lathon v. Leslie Lakes Ret. Ctr., the Second Circuit applied the LHEPA to a premises liability claim.^^ The plaintiff slipped and fell in a puddle at Leslie Lakes Retirement Center. The accident occurred during the declared public health emergency. The retirement center filed a motion for summary judgment and argued that because it qualified as a health care provider, the gross negligence standard set forth in the LHEPA should apply to the plaintiff’s claim.

The court agreed and found that the statute dictated that immunity applied in favor of any healthcare provider for any personal injury or property damage claim as long as it arose during a public health emergency. In so holding, the Court stated that the purpose of the LHEPA was to alleviate the liability burden on healthcare providers during public health emergencies. Therefore, the Court found its ruling aligned with the purpose of the act. The Lathon decision is significant because it applied the LHEPA’s statutory immunity to personal injury claims against healthcare providers outside of a medical malpractice setting.

At least one justice on the Louisiana Supreme Court voiced a desire to address the constitutionality of this statutory immunity provision. However, the Court ultimately declined to review the Second Circuit’s ruling. Therefore, under Lathon, it appears the statutory immunity granted under the LHEPA applies to any claim brought against any healthcare provider for acts that occur during a public health emergency. While it remains to be seen how courts will address this issue in the future, these decisions show the reach and application of the LHEPA continue to evolve.

References:
*Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099 (La. 7/5/94), 639 So. 2d 216.

^Lejeune v. Steck, 13-1017 (La. App. 5 Cir. 5/21/14), 138 So. 3d 1280, writ denied sub nom. Daigle v. Steck, 2014-1408 (La. 10/3/14), 149 So. 3d 800.

^^Lathon v. Leslie Lakes Ret. Ctr., 54,479 (La.App. 2 Cir. 9/21/22); 348 So.3d 888, writ denied, 2022-01566 (La. 12/20/22); 352 So.3d 80.

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Kids and Pets Left in Vehicles: Louisiana Legislature Makes Rescuers Immune, Maybe

Louisiana summers are hot and humid. Suffocating. Temperatures in July and August regularly exceed 100 degrees, but the temperature inside a parked car is even higher. According to the Centers for Disease Control, the inside of a parked car can reach 130 to 172 degrees when the outdoor temperature is between 80 and 100 degrees. Cracking the windows or parking in the shade has little effect. Because it only takes 10 minutes for the interior temperature of a parked vehicle to rise 20 degrees, children and animals left alone for “just a few minutes” are at risk. On average, 37 children and hundreds of pets die of vehicular heat stroke each year. In an effort to address this problem, the Louisiana Legislature recently passed a law to encourage action.The Legislature enacted two statutes to provide immunity from claims of property damage or trespass for any person causing damage to a motor vehicle while rescuing a minor or animal in distress. La. R.S. 37:1738 et seq. provides immunity if the person:

Makes a good-faith attempt to locate the owner before entering the vehicle.
Contacts local law enforcement, the fire department, or calls 911 before entering the vehicle.
Determines that the vehicle is locked and has a good-faith belief that there are no other reasonable means for the minor or animal to be removed from the vehicle.
Believes that removal of the minor or animal from the vehicle is necessary because the minor or animal is in imminent danger of suffering harm.
Uses force that was reasonably necessary under the circumstances to enter the vehicle.
Places a notice on the windshield of the vehicle providing details of the person’s contact information, the reason entry was made, the location of the minor or animal, and notice that the proper authorities have been notified.
Remains with the minor or animal in a safe location reasonably close to the vehicle until emergency responders arrive. If the person cannot remain with the minor or animal, the person must do the following:
For a minor: notify local law enforcement, the fire department, or the 911 operator and take the minor to the closest police station or hospital.
For an animal: notify local law enforcement, the fire department, animal control, or the 911 operator and take the animal to the closest shelter.

One wonders if a person reacting in an emergency will remember to leave a detailed note or to make the call before they act. If they do not, the immunity may be lost because immunity statutes are strictly construed in Louisiana. Also, the immunity does not apply to bodily injuries suffered by a minor during the rescue activities.So, if you see a child or animal in danger in a hot car, the law now allows you to act with immunity, maybe.

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Were You Lying Then, Or Are You Lying Now?

Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.

Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied?　

Helm: Yes!

Sir Wilfrid: And now today you've told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now?　

Whether in court, deposition or on the big screen, the impeachment of witness creates drama-the kind of drama opposing attorneys try to avoid.

In O'Dwyer v. Our Lady of the Lake, -- So. 3d ---, 2013 WL 2131763 (La. 5/17/13), the Louisiana Supreme Court was asked to decide whether audio recordings of a defense witness must be disclosed before the deposition of the witness. The O'Dwyer plaintiff was a nursing student who alleged that she had been targeted for termination from the nursing program through "harassment, bullying, stalking, and intimidation."

O'Dwyer's attorney sought to depose the nursing program director. The defendant sought production of audiotaped conversations between the program director and another student before the deposition was allowed, and successfully obtained a written order that the audiotapes be produced. The First Circuit denied the plaintiffs' writ, but writs were granted by the Louisiana Supreme Court.

The O'Dwyer Court looked to prior jurisprudence. In Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So. 2d 1164), the Supreme Court held that a defendant was not required to produce surveillance of the plaintiff until after the plaintiff's deposition. The Court highlighted the "important function in the search for truth" served by surveillance. After all, the value of the surveillance could be minimized were a plaintiff able to view the evidence and tailor his or her testimony to match. Therefore, the evidence was viewed as potential impeachment evidence and could be withheld prior to deposition.

In Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La. 2/22/07), 950 So. 2d 654, the Court refused to extend Wolford to the production of video which captured the accident itself. Video of the accident upon which the plaintiff sued was direct evidence and not primarily impeachment evidence. Therefore, it had to be produced prior to the plaintiff's deposition.

In O'Dwyer, the Court concluded that the audiotapes were made for impeachment and therefore need not be produced until after the nursing director's deposition. Justice Weimer, in dissent, challenged the characterization of the audiotapes as exclusively impeachment evidence. He cited to the language of the writ application which described the tapes as "unique evidence that may be used for direct or impeachment evidence at trial."

O'Dwyer indicates that a court may look to the primary function of the evidence in deciding its discoverability. The fact that the audiotapes may serve as direct evidence did not require their production when their primary function was impeachment.