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Insight
Smart Phones: Dangerous Weapons?
In Riley v. California, 134 S. Ct. 2473, 2477, 189 L. Ed. 2d 430 (2014), the Supreme Court considered whether police officers could search the contents of a smart phone incident to an arrest. In Riley, an alleged gang member was arrested for possession of a concealed firearm. At the precinct, a police officer went through the arrestee's smart phone looking for evidence of other crimes and found a picture of the arrestee next to a car connected to a drive-by-shooting.
Before determining whether the search violated the Fourth Amendment, the Court looked to a trilogy of case.
The first two cases, Chimel v. California, 395 U.S. 752 (1969) and U.S. v. Robinson, 414 U.S. 218 (1973), held that searches incident to arrests are proper when necessary to protect evidence or officers.
The third, Arizona v. Gant, 556 U.S. 332 (2009), held that police may search a vehicle when it is reasonable to believe that evidence relevant to the crime of arrest may be found, including containers located in the vehicle.
The Supreme Court determined that none of the justifications in the above cases were present in Riley. Unlike Chimel and Robinson, neither the evidence, i.e., the phone, nor the officers were in danger. While officers may examine the physical aspects of the phone to ensure that it will not be used as a weapon, a phone, once secured, poses no threat. Further, multiple options are available to prevent the destruction of evidence without invading the privacy of the arrestee, such as disconnecting the phone from the network or placing the phone in a "Faraday bag."
The Court also considered the prosecution's argument based upon Gant, which compared a cell phone to a physical container. In rejecting this rationale, the Court commented that classifying a smart phone as a physical container is "like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together." The Court's analysis was informed by the vast storage capacity of the modern cell phone.
In conclusion, the Supreme Court held that a smart phone could not be searched incident to arrest under the facts of the case. It will be interesting to observe the extent to which the Court's acknowledgment of the privacy concerns involved in smart phone technology may creep into civil discovery and evidentiary disputes.
Constitutional Law
Evidence
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FMLA CLAIM BLOCKED BY SOVEREIGN IMMUNITY
Louisiana is immune from suits, except when Louisiana elects to waive the defense of sovereign immunity. In Holliday v. Bd. of Sup’rs of LSU Agric. & Mech. Coll., 2014-0585 (La. 10/15/14), the plaintiff alleged that the Board of Supervisors of LSU Agricultural and Mechanical College was in violation of the Family and Medical Leave Act of 1993, a federal law. The Supreme Court of Louisiana ruled that, while Louisiana may have waived sovereign immunity with respect to some claims, Article 1, § 26 of the Louisiana Constitution indicates that Louisiana has not waived its sovereignty within the federal system. Therefore, the Supreme Court reversed the decision of the trial court, and held that the FMLA claim asserted by the plaintiff fell to the sovereign immunity of Louisiana.
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SUPREME COURT NARROWS IMPACT OF BROUSSARD
In Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), the Supreme Court of Louisiana considered whether summary judgment was appropriate when a pedestrian was struck by a bicycle while walking around a dumpster in a parking area. The plaintiff alleged that the dumpster created an unreasonable risk of harm, creating a “blind spot” which prevented pedestrians from seeing oncoming traffic. Finding that any obstruction caused by the dumpster was obvious and apparent, and therefore reasonably safe, the Court granted the defendant’s Motion for Summary Judgment. This case appears to soften the impact of Broussard v. State ex rel. Office of State Bldgs., 2012-1238 (La. 4/5/13), 113 So. 3d 175, 179, which had been interpreted as creating a near-ban on a motion for summary judgment based on “open and obvious” facts.
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Insight
Do Not Pass Go
The Louisiana Supreme Court recently considered the recoverability of indirect economic damages caused by negligent injury to property of others in MAW Enterprises, LLC, et al v. City of Marksville, et al. The Court found the defendant's duty did not include liability for damages resulting from negligent interference of a contract, and dismissed the case.
MAW involved the City of Marksville's denial of a liquor permit to the plaintiff's lessee. The rent was dependent in part upon the amount of gasoline sales.The plaintiff alleged that the City's improper denial of the liquor permit resulted in lower gasoline sales. Under these facts, the Court held that the plaintiff had no cause of action against the City because the damages claimed were not within the "scope of the duty."
The MAW Court extensively discussed its earlier decision in PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La. 1984). Citing to the analysis in PPG, the Court reasoned that holding a tortfeasor responsible for indirect economic damages caused by injury to property of others could improperly create liability in an indeterminate amount for an indeterminate time to an indeterminate class.
The Court held that general tort duties duty did not encompass the plaintiff's injury. Additionally, after a lengthy analysis, the Court held that the duties under La. R.S. 26:71 et seq. (involving the issuance of liquor licenses) likewise did not encompass the plaintiff's damages because these duties were owed only to the person whose liquor license was denied or granted, namely the lessee.
One dissenting Justice found the majority's reliance on PPG improper because, unlike PPG, the plaintiff's damages were not caused by a "negligent injury to property resulting in physical damages." The majority's citation to PPG appears to indicate that PPG's reasoning may be applicable to cases involving both physical and non-physical damages.
Contracts
Insight
Business as Usual?
Louisiana has updated its corporate laws by adopting legislation modeled off the Model Business Corporation Act ("MBCA"). The new set of laws is named "The Louisiana Business Corporation Act" and will replace Louisiana's Business Corporation Law, which was enacted in 1968. The change occurred on May 30, 2014 when the Governor signed HB319 into law as Act 328. The new provisions will go into effect on January 1, 2015.
The MBCA is a set of model laws created in 1950, and are regularly amended and updated by the American Bar Association's Committee on Corporate Laws. The MBCA is meant to govern the functioning of public and private corporations. It has been adopted in whole or in part by a majority of the states.
Representative Franklin J. Foil (R - Baton Rouge) originally introduced HB408 in the 2013 Regular Session to adopt laws modeled off the MBCA based on the recommendation of the Louisiana State Law Institute. However, this bill died toward the end of the session. Thereafter, Rep. Foil introduced HB319 during the 2014 Regular Session, which was passed, thereby adopting much of the MBCA.
The newly adopted laws constitute a comprehensive update to Louisiana's corporate law system and will bring substantial change in some areas. Merely by way of example, the law provides some protections to minority shareholders in closely-held corporation who are being "oppressed."
It will be interesting to see the extent to which Louisiana courts will seek guidance from the decisions of other states that have operated under similar laws for many years.
Corporate Law
Resource
PCF OBLIGATED UNDER STANDING COURT ORDER
In Watkins v. Lake Charles Mem’l Hosp., 2013-1137 (La. 3/25/14), the Supreme Court addressed the extent to which the Louisiana Patient's Compensation Fund (“PCF”) continues to be obligated to make advance payments for custodial/attendant care for a medical malpractice victim, after receiving information indicating that such care may no longer be needed. In this case, the district court pursuant to its continuing jurisdiction had ordered the PCF to pay quarterly and in advance for the victim's custodial/attendant care.In its analysis, the Supreme Court noted that court orders must be obeyed until set aside, and that failure to comply with a court order is constructive contempt of court. The Court then held that the PCF was obligated to comply with the district court's ruling requiring advance payment, unless or until the ruling is modified or set aside by the trial court.
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NOTARIAL TESTAMENT INVALIDATED
In re Succession of Smith, 49-118 (La. App. 2 Cir. 8/13/14), the Second Circuit considered whether the “attestation clause” of the notary and witnesses required for a notarial testament is satisfied by an attestation of the testator signed by the witnesses and notary.In general, in order for a notarial testament to be valid as to form: (1) the testator must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament; (2) the testator must sign his name at the end of the testament and on each separate page; and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the testator declared that the instrument is his last will and testament in their presence. In the case at hand, the court held that the attestation clause at was an attestation clause of the testator, and not of the notary and two witnesses as required. In keeping, the court held that this defect invalidated the notarial testament.
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"NOVEL THEORY" PREVENT CLASS ACTION CERTIFICATION
In Baker v. PHC-Minden, L.P., 49-122 (La. App. 2 Cir. 8/13/14), the court determined that lawsuits brought pursuant to the Health Care Consumer Billing and Disclosure Protection Act (“the Act”) could not be brought as a class action at this time. In general, the Act provides that a contracted health care provider is prohibited from discount billing, dual billing, attempting to collect from, or collecting from an insured a “health insurance issuer liability” or any amount in excess of the contracted reimbursement rate for covered health care services. Recently, the Supreme Court ruled in Anderson v. Ochsner Health Sys., 13-2970 (La. 7/1/14) -- So.3d-- that a private right of action is created by the Act. However, no jurisprudence yet exists to define this right of action.In rejecting class status, the Second Circuit commented that a “court must have experience with a tort in the form of several individual actions before it can certify issues in a way that preserves judicial resources [i.e, class actions.]” Furthermore, the court observed that Louisiana courts will deny class certification when presented with novel and untested legal theories. Because a private action under the Act is a novel issue with no development in the case law, the court reversed the class certification of the trial court.
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EXPERT TESTIMONY REQUIRED TO ESTABLISH COMPLEX MEDICAL MALPRACTICE CASE
In Spiewak v. Sightler, 2013-1028 (La. App. 1 Cir. 2/14/14), the plaintiff filed a medical malpractice claim against Woman's Hospital Foundation. The defendant filed a motion for summary judgment supported by expert opinion evidence that the treatment in question met the applicable standard of care. The plaintiff did not offer expert opinion evidence in opposition to the motion. The motion was granted.
A "med-mal" plaintiff possesses the affirmative burden to establish the applicable standard of care, a breach of that standard of care, and that the substandard care caused injury. When non-evident malpractice is involved, this burden will typically require expert medical testimony.
The First Circuit in Spiewak determined that expert medical testimony was necessary to support the plaintiff's claims because the case involved complex medical issues. On this basis, the First Circuit affirmed the grant of summary judgment in favor of the defendant.
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FORUM SELECTION CLAUSES NOT LONGER PER SE AGAINST LOUISIANA’S PUBLIC POLICY
In Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 2013-1977 (La. 7/1/14), the Supreme Court sought to resolve a circuit split regarding whether forum selection clauses violate public policy in Louisiana. A forum selection clause is a contractual provision which mandates that all disputes be litigated in a particular state, county, parish, or court. The United States Supreme Court held in Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), that contractual forum selection clauses are prima facie valid. Louisiana has followed suit. Therefore, forum selection clauses are not per se against Louisiana's public policy.
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LOUISIANA SUPREME COURT DECIDES THAT THE HEALTH CARE AND CONSUMER BILLING AND DISCLOSURE PROTECTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR PATIENTS AGAINST HEALTH CARE PROVIDERS
The Supreme Court recently considered whether a plaintiff has a private right of action for damages against a health care provider under the Health Care and Consumer Billing and Disclosure Protection Act. Anderson v. Ochsner Health Sys., 2013-2970 (La. 7/1/14) -- So.3d--. The trial court had commented that the text of the Act neither explicitly grants nor prohibits a private right of action. However, based on the trial court's review of the language of the statute, judicial opinions interpreting the statute, and the purpose of the Act, it held that the legislature intended to create a private cause of action. The Louisiana Supreme Court affirmed the trial court's decision, citing to the legislature's failure to expressly prohibit an individual remedy in the Act, the legislative intent to protect consumers, and the constitutional right of access to the courts.
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LIABILITY OF THE PATIENT’S COMPENSATION FUND AND THE INDIVIDUAL PHYSICIAN IS A SEPARATE ISSUE, THUS SUMMARY JUDGMENT FINDING THE PHYSICIAN LIABLE DOES NOT AUTOMATICALLY RENDER THE PCF LIABLE
The Supreme Court recently held that the Patient’s Compensation Fund (PCF) is not bound by a partial summary judgment rendered solely against a defendant physician. In Khammash v. Clark, 2013-1564 (La. 5/7/14) -- So.3d --, the physician settled with the plaintiffs for $100,000 and did not oppose a partial summary judgment which decided that the physician’s conduct was the cause of the plaintiff’s damages. Thereafter, the plaintiffs pursued the remainder of Medical Malpractice Act cap from the PCF.At trial, the jury determined that the physician’s breach was not the cause of the plaintiff’s injuries and awarded no damages. The appeals court reversed, finding that the issue of causation was not properly before the jury as it had been determined by the partial summary judgment. The Supreme Court reversed and held that the liability of the physician and the PCF are independent issues. Therefore, the PCF was not bound by the prior partial summary judgment.
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