Cecelia Perkins v. Numotion and/or United Seating and Mobility, L.L.C., and Pride Mobility Products Corporation

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT
CECELIA PERK.INS NO. 2020 CW 0993
PAGE 1 OF 3
VERSUS

NUMOTION AND/ OR UNITED SEATING AND
MOBILITY, L. L. C., AND PRIDE MOBILITY
PRODUCTS CORPORATION JANUARY 11, 2021

In Re: Cecelia Perkins, applying for rehearing, 19th Judicial
District Court, Parish of East Baton Rouge, No.
668177.

BEFORE: WHIPPLE, C. J., GUIDRY, McDONALD, MCCLENDON, THERIOT,
HOLDRIDGE, CHUTZ, PENZATO, LANIER, WOLFE, AND HESTER, JJ.

APPLICATION FOR REHEARING GRANTED IN PART; DENIED IN PART.
WRIT GRANTED IN PART; DENIED IN PART. This court recognizes

that in its October 22, 2020 ruling, it erroneously stated

defendant, Numotion and/ or United Seating and Mobility, LLC
Numotion"), judicially confessed to fault concerning the

underlying accident. As such, this court grants plaintiff' s

application for rehearing in part in order to amend its previous
ruling, noting that only defendant, Pride Mobility Products
Corporation (" Pride"), judicially confessed to sole fault in its
Amended Answer to the Petition for Damages and the Restated
Petition for Damages. Plaintiff' s issues
claims, including of

fault and damages, remain pending against Numotion.
Furthermore, this court grants plaintiff' s application for
rehearing in part, to allow for the depositions of the
identified Pride employees to occur, but limiting the scope of

those depositions by prohibiting questions that are relevant

solely to the fault of Pride in causing the accident at issue,
since Pride has judicially confessed such fault. Information
from the identified Pride employees regarding possible joint
liability with and/ or comparative fault of Numotion, whether

Numotion had knowledge of the defect, the between
relationship
Pride and Numotion, product recalls, and/ or other issue
any
having relevance in this matter independent of the issue of

Pride' s fault in causing the accident is discoverable. In all

other respects,
plaintiff' s application for rehearing is denied.

PMC

WRC

WIL
EW
CHH

Holdridge, J., concurs. I write to further emphasize that
the issue of the comparative fault of all of the parties must be
determined by the jury after the trial. In accordance with
Louisiana Civil Code article 2323( A), the " percentage of fault
of all persons
causing or contributing to the injury, death, or
loss shall be determined . While Pride has confessed to
its fault, that judicial confession does not preclude the
plaintiff from proving or the jury from finding a percentage of
fault on other parties.
On the jury verdict form and in the jury

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

NO. 2020 CW 0993
PAGE 2 OF 3

instructions, the court must state that there is no issue as to
Pride' s fault but that the jury must decide the issue as to the
fault of any other defendants and must quantify the percentages
of fault attributed to each defendant. A defendant, like Pride,

does not get to judicially confess " sole fault" and preclude the

plaintiff from proving the fault of other parties.

Whipple, C. J., concurs in part and dissents in part.

Pretermitting whether we should address the discovery order at

issue in this matter, based on Herlitz Construction Co., Inc. v.

Hotel Investors of New Iberia, Inc., 396 So. 2d 878 ( La. 1981)
per curiam), I agree with the majority on rehearing that the
depositions of the Pride employees should take place, but would
allow for such depositions to be conducted without any
limitation or restrictions as initially ordered by the district
court. Louisiana' s discovery statutes are to be liberally and
broadly construed to achieve their intended objectives. Hodges
v. Southern Farm Bureau Casualty Insurance Co., 433 So. 2d 125,
129 ( La. 1983). Moreover, district courts have broad discretion
in ruling on pre- trial discovery, and an appellate court should

not upset such rulings absent an abuse of that discretion.
Ghassemi v. Ghassemi, 2007- 1927 ( La. App. 1st Cir. 10/ 15/ 08),
998 So. 2d 731, 750, writs denied, 2008- 2674 ( La. 1/ 16/ 09), 998
So. 2d 104 & 2008- 2675 ( La. 1/ 16/ 09), 998 So. 2d 104. As such,

because I find no abuse of the broad discretion afforded to the
district court herein, I would allow the depositions of the

Pride employees to take place as ordered by the district court.

Of particular importance in this matter, Louisiana employs

a " pure" comparative fault system, whereby the fault of all

persons causing contributing to
or
injury is to be quantified.

Landry v. Bellanger, 2002- 1443 ( La. 5/ 20/ 03), 851 So. 2d 943,
952. As set forth in La. Civ. Code art. 2323( A), " where a

person suffers injury, death, or loss, the degree or percentage
of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the
person is a party to the action or a nonparty[.]" See also

Smegal v. Gettys, 2010- 0648 ( La. App. lst Cir. 10/ 29/ 10), 48
So. 3d 431, 439 ( in determining the percentages of fault, the
trier of fact should consider both the nature of the conduct of
each party at fault and the extent of the causal relation

between the conduct and the damages claimed). Herein,
notwithstanding Pride' s judicial confession of " sole fault," the
trier of fact is still required to quantify a percentage of

fault to Pride, as a party to the action, and to any other party
responsible in causing the underlying accident, when rendering a
verdict. As such, despite any suggestion to the the
contrary,
deposition testimony sought by plaintiff of the Pride employees

remains relevant and discoverable.

Accordingly, I agree with the majority' s decision on

rehearing en banc that the depositions should take place, but
dissent from the majority' s limitation on their scope, as I
would affirm the district court' s judgment allowing complete

depositions of the Pride employees to occur.

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

NO. 2020 CW 0993
PAGE 3 OF 3

Theriot, J., concurs in part and dissents in part. I find
no abuse of the broad discretion afforded to the district court

herein and would allow the depositions of the Pride employees to
take place asby ordered the district court, for the reasons

assigned by Chief Judge Whipple.

Guidry, McDonald, and Penzato, JJ., dissent in part. We
recognize that this court in its October 22, 2020 ruling,
erroneously stated defendant Numotion and/ or United Seating and

Mobility, LLC (" Numotion") judicially confessed to fault

concerning the underlying accident. As such, we agree with

granting the rehearing application in part in order to amend the,
previous ruling, noting that only defendant Pride Mobility
Products Corporation (" Pride") judicially confessed to sole

fault in its Amended Answer to the Petition for Damages and the
Restated Petition for Damages. Plaintiff' s claims, including
issues of fault and damages, remain pending against Numotion.
Nevertheless, depositions of the Pride employees do not

otherwise expedite the litigation, narrow the area of

controversy, or otherwise avoid unnecessary testimony, as Pride

judicially confessed to being " solely at fault in causing the
accident at issue." See Lehmann v. American Southern Home
Insurance Co., 615 So. 2d 923, 925 ( La. App. 1st Cir.), writ

denied, 617 So. 2d 913 ( La. 1993); see also C. T. Traina, Inc. v.

Sunshine Plaza, Inc., 2003- 1003 ( La. 12/ 3/ 03), 861 So. 2d 156,
159 ( per curiam). There has been no showing by plaintiff that
the Pride employees possess information regarding the acts

and/ or omissions of Numotion. Accordingly, plaintiff' s

application for rehearing should be denied in all other

respects.

COURT OF APPEAL, FIRST CIRCUIT

YI

Y` CLERK OF COU
FOR THE COURT