Grounds for Appeal: Preparing for Round Two

A deputy arrives at your home or office and announces that you have been served. You quickly realize you have been named as a defendant in a lawsuit. Now what?Whether the suit involves a breach of contract, an automobile accident, or the one and a million other circumstances that can lead to a suit being filed, the process is essentially the same in Louisiana state courts. This blog provides a general roadmap of Louisiana’s “pre-trial” procedure, which applies in most situations. Different procedures are involved with workers’ compensation claims, administrative proceedings, medical malpractice claims, and other areas.Petition/Answer - When a person or company believes they have been damaged by fault, breach, or neglect, Louisiana law provides that the person allegedly wronged, the plaintiff, may file a Petition for Damages. Louisiana does not have a “loser pays” system. For this reason, there is little disincentive to a plaintiff who wants to sue. Once the Petition is filed with the Clerk of Court, the Sheriff serves the defendant with a certified copy of the Petition and the “Citation.”A defendant has fifteen days to file an Answer or to secure an extension from either the plaintiff attorney or the Judge, by filing a Motion for Extension of Time to File Responsive Pleadings. A failure to respond to a suit or obtain an extension within 15 days of service may result in a default judgment.Trial by Judge or Jury -The parties advise if they desire a judge or jury trial in the initial filings. There is no right to a jury in cases which do not have a possible value of more than $50,000. If a plaintiff “stipulates” that case value is at or below $50,000, the defendant has no right to demand a jury trial under Louisiana Code of Civil Procedure article 1732.Exceptions - Defendants have the right to raise “exceptions” to the suit. Common exceptions include a claim that the suit is vague; is filed in the wrong venue (i.e., the wrong location); or is untimely, and therefore “prescribed.” Defendants can use the exception process to challenge the plaintiff’s legal ability to recover. Many exceptions are waived if they are not filed before or with the Answer.Discovery

• Written - After the Answer is filed, the discovery process typically begins. Discovery is an information-gathering process done through different methods. The parties to a lawsuit may issue written Interrogatories, Requests for Admission, and Requests for Production of Documents.
• Depositions - Depositions are a key component of discovery. A deposition allows the attorneys (or the parties themselves, if unrepresented) to ask questions of witnesses before a court reporter. The testimony is taken under oath and can be used later for certain purposes. For example, if the witness is not available to testify at trial, the deposition testimony can often be introduced in lieu of live testimony. Also, if a witness changes his testimony at trial, the deposition can be used to attack the testimony and credibility of the witness.

Case Deadlines - Typically, the court will establish a scheduling order to establish key dates such as deadlines to identify witnesses, exhibits, and any experts who may testify on behalf of the parties. The court often sets a deadline to file “dispositive” motions, such as motions for summary judgment where the plaintiff or the defendant tries to have the case determined before the trial.Alternative Dispute Resolution - Frequently, the parties agree to attempt to mediate the case with the assistance of a mediator. This is a voluntary process. In some cases, the parties will be bound by an agreement to arbitrate which will be conducted outside of the normal court process.There is no law or statute which sets the time frame for the “pre-trial” process. Depending upon the complexity of the suit, the pre-trial phase of a suit may take months, and often years.

A Workers’ Compensation Judge in Monroe, Louisiana found that a claimant met his burden of proving that a specific mosquito bite at work caused him to contract the West Nile Virus, resulting in permanent total disability.

At trial, the claimant asserted that “he specifically remembers being bitten on his left leg by a mosquito” while working in the break room of his employer, Graphic Packaging. Claimant presented evidence that mosquitoes were present at the work site, although his purported eyewitness to the event (who also contracted the disease) was proven to have not been at work that day.

The director of the Ouachita Parish Mosquito Abatement District was offered by the claimant and testified that there was a prevalence of mosquitoes in Ouachita Parish during that summer which carried the West Nile Virus. Mosquitoes trapped near both the employer’s location and the claimant’s house tested positive. According to the director, the only way to determine if a mosquito is infected with West Nile is to have that particular mosquito tested. An expert epidemiologist for the employer added that the most commonly infected mosquitoes would not have been active during the middle of the day when the claimant alleges he was bitten.

Based upon the testimony of the claimant, his witness, and the experts, the Workers’ Compensation Judge ruled that the claimant had sufficiently proven that the specific mosquito infected with the West Nile Virus had bitten him at work. The court also stung the employer and its workers’ compensation insurer with penalties and attorneys' fees, finding that they had not contested the claim on a reasonable basis.

The Court of Appeal in Allen vs. Graphic Packaging, No. 51,080 (La. App. 2d Cir. 1/11/17), - - So 3d - -, upheld the Workers’ Compensation Judge. The court noted that all proof of the “accident” rested upon circumstantial evidence and that the claimant possessed no direct evidence that the break room mosquito carried the disease. In this setting, the claimant “faced a burden of proof to show circumstantially that the break room mosquito carried the disease.” Utilizing the “manifest error or clearly wrong standard,” the appellate court held that the claimant had met his burden despite his indirect proof.

The Allen court ultimately reversed the finding of permanent total disability, because the Workers’ Compensation Judge misapplied the statutory requirements. It also reversed the award of penalties and attorneys' fees noting that “there were numerous factors sufficient to validate Graphic’s reasonable controversion of Allen’s claim.”

A Louisiana federal jury awarded $5 million in favor of Spoked Manufacturing in a suit against Besco Tubular. Keogh Cox Partner, Tori S. Bowling and other counsel represented Spoked Manufacturing in the case. Find out more about this decision at LAW 360.

https://www.law360.com/articles/1180212/jury-hits-besco-with-5m-verdict-in-oil-drilling-patent-case