Tammy Martinez v. Lg Electronics U.S.A., Inc., Lg Electronics Alabama, Inc., and Home Depot U.S.A.

TAMMY MARTINEZ * NO. 2024-C-0445

VERSUS *
COURT OF APPEAL
LG ELECTRONICS U.S.A., *
INC., LG ELECTRONICS FOURTH CIRCUIT
ALABAMA, INC., AND HOME *
DEPOT U.S.A. STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 18-0962, DIVISION “B”
Honorable Jeanne Nunez Juneau, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Dale N.
Atkins)

B. Adam Hays
Vikram S. Bhatia
MG+M THE LAW FIRM
365 Canal Street, Suite 3000
New Orleans, Louisiana 70130

David R. Frohn
MG+M THE LAW FIRM
3729 Cobblestone Drive
Lake Charles, LA 70605-2570

Joseph L. McReynolds
Raymond C. Lewis
DEUTSCH KERRIGAN, L.L.P.
755 Magazine Street
New Orleans, Louisiana 70130

COUNSEL FOR RELATORS/DEFENDANTS—LG ELECTRONICS
U.S.A., INC.; LG ELECTRONICS ALABAMA, INC.; AND HOME
DEPOT U.S.A.

Paul Addison Lea, Jr.
PAUL A. LEA, JR., APLC
229 N. Bermont Street
Covington, LA 70433

COUNSEL FOR RESPONDENT/PLAINTIFF—TAMMY MARTINEZ

WRIT GRANTED; JUDGMENT
REVERSED; JURY VERDICT
REINSTATED; STAY LIFTED
August 2, 2024

RML

PAB

DNA

This is a redhibition suit arising out of a house fire. Relator—Tammy

Martinez—was the homeowner. Ms. Martinez sued Respondents—LG Electronics

U.S.A., Inc.; LG Electronics Alabama, Inc.; and Home Depot U.S.A. (“collectively

LG”)—alleging a defective LG Window Aircondition Unit (the “Unit”) caused the

fire. Following a two-day jury trial, a verdict was rendered in LG’s favor. Ms.

Martinez filed post-trial motions, including a motion for new trial (“MNT”). On

May 30, 2024, the trial court rendered a judgment granting the MNT. From that

judgment, LG seeks supervisory review. For the reasons that follow, we grant LG’s

writ, reverse the trial court’s judgment, and reinstate the jury’s verdict. The stay

order granted by this Court is lifted.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2017, Ms. Martinez purchased the Unit from Home Depot. Shortly

thereafter, she installed the Unit in the dormer window of the upstairs master

bedroom of her house located in Meraux, Louisiana. A few days later, a fire broke

out in her house. Ms. Martinez’s neighbor–A.J. Rinkus (“Mr. Rinkus”)—noticed

the fire and called the St. Bernard Fire Department (the “Fire Department’).

According to Mr. Rinkus, the smoke from the fire was coming from the Unit. The

1

Fire Department determined that the area of origin of the fire was the dormer

window of the upstairs master bedroom where the Unit was located. But, the Fire

Department was unable to determine the cause and origin of the fire. At the time of

the fire, Ms. Martinez was not home. Although someone else was home, no one

was injured in the fire.

Thereafter, Ms. Martinez commenced this redhibition suit against LG. In her

petition, she averred that she purchased the Unit on July 9, 2017; that she installed

the Unit on July 11, 2017; and that the Unit caused the fire that occurred on

July 14, 2017. She further averred that “[w]itnesses who observed that [sic] the fire

stated that the fire started in said window unit and then spread to the rest of the

dwelling, a fact confirmed by fire investigators.” She still further averred that the

Unit had a redhibitory defect.

A jury trial was held on October 17-18, 2023. At trial, each side called two

witnesses. Ms. Martinez called herself and her expert, Ted Kaplon (an electrical

engineer); LG called its expert, James Miller (a mechanical and an industrial

engineer)1 and Chad Ricks (an insurance claims adjuster). The parties submitted

the video depositions of two witnesses: Charles Licciardi, Jr. (“Chief Licciardi”)

(the Fire Department’s Assistant Chief) and Mr. Rinkus (Ms. Martinez’s neighbor).

In her written reasons for the May 30, 2024 judgment, the trial court

summarized the pertinent facts to the MNT—the testimony of Mr. Kaplon and Mr.

Licciardi—as follows:

Mr. Kaplon [a registered professional engineer] testified that he was the
first person to investigate the scene of the instant fire other than the fire

1 In its writ application, LG argues that the trial court improperly sustained Ms. Martinez’s

untimely objection—raised for the first time at trial—to the qualifications of LG’s expert fire
investigator, Mr. Miller. Because we find merit to LG’s other argument that the trial court
improperly granted Ms. Martinez’s MNT, we pretermit this issue.

2

department. He opined that the fire originated in the upstairs master
bedroom at the east window alcove with a plausible cause as
undetermined electrical failure in the LG A/C. Thereafter, he conducted
a further examination of the unit and added that the fire “clearly started
inside [the LG Unit]. Physical evidence of the localized damage to a
printed circuit board inside the unit clearly demonstrated that the fire
originated inside the unit rather than its damage being a result of the
fire external to the unit.” Mr. Kaplon stated that in his expert opinion
the fire started “inside the LG A/C. There was not enough physical
evidence to indemnify a specific electrical cause of the fire, but the
origin of the fire is clearly inside the unit.”

The jury viewed testimony of St. Bernard Parish Fire Department
Assistant Fire Department Chief Charles Licciardi, Jr. Mr. Licciardi
testified that his role in the instant matter was Fire Department
Investigator. He opined that the origin of the fire was in the window
area of a room on the second floor. He stated that when he arrived to
investigate the window had already been removed and was on the front
lawn. When questioned about whether he saw any other electrical
equipment in the area, he noted “[a]ccording to my report, and from
what I can remember, there are other things. I think it was—it was kind
of used as a, maybe an office, little section of the room, if I can
remember correctly. So they had some computer equipment there as
well.” In response to questioning about the cause of the fire, Assistant
Chief Licciardi responded “Undetermined. I couldn’t make a
determination of what caused the fire.” He went on to state “So do I
know that the fire originated because of the A/C unit? No. Was it in the
area where I’m confident that the fire started? Yes.” When asked: “Q:
Is your opinion that the source of the fire or cause of the fire could not
be determined? A: By me, yes sir, yes. Yes. Sir.” He later stated, “I was
not able to determine that the equipment actually caused the fire.”

At the close of Ms. Martinez’s case, LG moved for a directed verdict. LG

argued that Ms. Martinez failed to show a defect in the Unit. LG emphasized that

Mr. Kaplon was asked whether he could point to a specific defect in the Unit, and

he could not. Thus, LG contends that Ms. Martinez’s redhibition claim should be

dismissed. The trial court denied the motion.

At the close of the trial, the jury rendered a verdict in LG’s favor. In so

doing, the jury answered the jury interrogatory on the jury verdict form as follows:

Interrogatory No. 1: Is it more likely than not that LG aircondion unit
in question was the source of the fire and therefore defective?

3

[Jury’s Answer:] No.

The trial court entered a judgment in accordance with the jury’s verdict,

dismissing Ms. Martinez’s claims against LG.

In response, Ms. Martinez filed post-trial motions for judgment

notwithstanding the verdict (“JNOV”) and, in the alternative, MNT. Ms. Martinez

contended that LG failed to present any evidence that the fire started anywhere

other than the Unit and that she was able to demonstrate through Mr. Rinkus’

eyewitness testimony, through circumstantial evidence, and through Mr. Kaplon’s

direct, professional engineering testimony, that the Unit was the cause of the fire.

The trial court denied the JNOV motion, finding that “reasonable and fair-minded

men in the exercise of impartial judgment may reach different conclusions in

regard to [the] cause of the fire.” But, the trial court granted the MNT. This writ

followed.

DISCUSSION

The trial court granted Ms. Martinez’s MNT based on the discretionary

ground codified in La. C.C.P. art. 1973, which provides that “[a] new trial may be

granted in any case if there is good ground thereof, except as otherwise provided

by law.” The pertinent jurisprudential principles governing a MNT under La.

C.C.P. art. 1973 include the following:

• A trial court’s discretion in ruling on a MNT is great; its decision will not be
disturbed on appeal absent an abuse of that discretion. Davis v. Wal-Mart
Stores, Inc., 00-0445, p. 10 (La. 11/28/00), 774 So.2d 84, 93.

• The fact that a determination on a MNT involves judicial discretion does not
imply that a trial court can freely interfere with any verdict with which it
disagrees. Guillory v. Lee, 09-0075, p. 38 (La. 6/26/09), 16 So.3d 1104, 1131.
The discretion by which a trial court has to grant a new trial must necessarily
be tempered by the court’s respect of—and obligation not to usurp the fact
finding responsibility of—the jury. Martin v. Heritage Manor S. Nursing
Home, 00-1023, p. 3 (La. 4/3/01), 784 So.2d 627, 630. A trial court must

4

cautiously exercise the discretionary power to grant a new trial because “a
successful litigant is entitled to the benefits of a favorable jury verdict.” Id.
(internal citations and quotations omitted).

• “The breadth of the trial court’s discretion to order a new trial varies with the
facts and circumstances of each case.” Myles v. Hosp. Serv. Dist. No. 1 of
Tangipahoa Parish, 17-1014, p. 20 (La. App. 1 Cir. 4/6/18), 248 So.3d 545,
561. A proper application of La.C.C.P. art. 1973 requires an examination of
the facts and circumstances of the individual case. Lamb v. Lamb, 430 So.2d
51, 53 (La. 1983).

• When a trial court is convinced by its examination of the facts that the
judgment would result in a miscarriage of justice, a new trial should be
ordered pursuant to La. C.C.P. art. 1973. See Horton v. Mayeaux, 05-1704,
pp. 9-10 (La. 5/30/06), 931 So.2d 338, 344 (citations omitted). But, the
granting of a new trial cannot be used to provide a losing party a second bite
at the apple absent facts establishing that otherwise a miscarriage of justice
would occur. In re Gramercy Plant Explosion at Kaiser, 04-1151 to 1191, p.
17 (La. App. 5 Cir. 3/28/06), 927 So.2d 492, 502.

• The Louisiana Supreme Court has consistently found that jury confusion
constitutes a good ground for granting of a new trial. Napoleon v. LAMMICO,
22-0667, p. 2 (La. App. 4 Cir. 12/1/22), 2022 WL 19008502 (unpub.) (citing
Pitts v. Louisiana Med. Mut. Ins. Co., 16-1232 (La. 3/15/17), 218 So. 3d 58;
Warren v. Shelter Mut. Ins. Co., 16-1647 (La. 10/18/17), 233 So. 3d 568), writ
denied, 23-00012 (La. 3/7/23), 357 So.3d 320.

• But, “the confusion had to be substantial enough to mislead the jury ‘to the
extent that it was prevented from dispensing justice.’” Provosty v. Arc Constr.,
LLC, 15-1219, p. 7 (La. App. 4 Cir. 11/2/16), 204 So.3d 623, 628 (citation
omitted). “[I]t must appear that the jury’s confusion was unreasonable and a
clear illustration of its failure to impartially apply the reasoning faculty on the
facts before it.” 66 C.J.S. §107.

• “[O]rdering a new trial on discretionary grounds is more likely to indicate . .
. that the district court is concerned about some failing on its own part to
conduct the trial in a manner that assures that justice has been done.” Horton,
05-1704, pp. 11-12, 931 So.2d at 345.

• In granting a new trial, it is necessary for the trial court to state an articulable
reason (or reasons) as to why the trial court is exercising its discretionary
powers under La. C.C.P. art. 1973. Horton, 05-1704, p. 10, 931 So.2d at 344.

Here, the trial court stated articulable reasons for granting the new trial

under La. C.C.P. art 1973. The trial court stated that it was granting the MNT

because it found jury confusion warranted a new trial. In particular, it cited the

5

following three reasons it believed established jury confusion: (i) Chief Licciardi’s

limited investigation for arson; (ii) Mr. Kaplon’s uncontradicted expert testimony;

and (iii) Mr. Rinkus’ eyewitness testimony. In the written reasons for the May 30,

2024 judgment, the trial court observed as follows:

• “Chief Licciardi did not collect evidence at the scene to determine the cause
and origin of the fire. His role as he testified was to determine whether the fire
was set intentionally or not.”2

• “[T]he only cause and origin expert, Ted Kaplon, testified in this matter and
his expert testimony remains uncontroverted. Mr. Kaplon testified that the fire
started inside the LG air conditioning unit.”

• “[T]he only eyewitness, [Mr.] Rinkus, testified in his video deposition that
flames were coming out of the A/C unit.”

Based on these three reasons, the trial court concluded that a new trial was required

to avoid a miscarriage of justice.

2 The trial court further articulated, as to Chief Licciardi, the following:

It is clear to this Court that the jury erroneously relied on Assistant Chief
Charles Licciardi, Jr.’s testimony when determining that the LG Air Conditioning
Unit was not the source of the fire. Chief Licciardi’s testimony was compelling.
[LG] displayed Chief Licciardi’s photograph on the screen in his formal St. Bernard
Fire Department uniform. His title and position presented as commanding and
authoritative to the jury. When Chief Licciardi testified that he was not able to
determine that the equipment actually caused the fire, the jury made facial
expressions and there were grumblings amongst the jurors that was noted by the
Court.

However, the Court finds the jury misinterpreted Chief Licciardi’s
testimony and ignored a crucial element of his testimony. Chief Licciardi testified:
“So typically for the fire department, as a fire department investigator, we would
obviously try to determine the area of origin as much as possible, and the source if
we could. However, the general—well, the biggest component of that investigation
is to try to figure out if it maybe was intentionally set or not intentionally set. If we
feel like it was intentionally set, which accelerants in the area could indicate, you
know, then we would call in additional resources and such. If I don’t feel like it was
intentionally set, you know, I wouldn’t call in additional resources. I would do my
best on the scene to determine what I could, you know. But of course we’re not
collecting evidence and not being an engineer and doing any testing after that point.
So I guess to answer your question, you’re correct. The main thing that we do on
the scene is to try to figure out if it was an intentionally set fire or not an
intentionally set fire.” He went on to state that he has not ruled out the A/C unit as
the source.

6

In its writ application, LG contends that the trial court erred in finding a

miscarriage of justice, warranting the grant of the MNT. Conversely, Ms.

Martinez, in her opposition, contends that a miscarriage of justice would occur in

the absence of upholding the trial court’s grant of the MNT. Tracking the trial

court, Ms. Martinez cites the following three reasons as supporting the trial court’s

judgment: (i) Chief Liccardi’s testimony that his investigation was limited to arson;

(ii) Mr. Kaplon’s uncontradicted expert testimony that the origin of the fire was

from within the Unit; and (ii) Mr. Rinkus’ eyewitness testimony that he saw flames

coming from the Unit. We find none of the three cited reasons is sufficient alone,

or taken together, to establish a miscarriage of justice, which is required to grant a

new trial. Although the reasons somewhat overlap, we separately address each of

them.

Chief Licciardi’s Limited Investigation For Arson

In his video deposition, Chief Licciardi testified that he was the Fire

Department’s investigator for the fire. In his deposition, Ms. Martinez’s attorney

raised the issue of whether Chief Licciardi’s investigation was limited to arson.

Her attorney posed the question whether Chief Licciardi would investigate until he

found “the absolute source of the fire or [whether] is it [his] normal course of

business to ensure it’s not an accelerant or an arson matter.” In response, Chief

Licciardi testified that the biggest component of his investigation is to try to figure

out if the fire was maybe “intentionally set or not intentionally set.” Nonetheless,

Chief Licciardi explained that there was more to his investigation than determining

whether arson was involved. Chief Licciardi testified that he was on the scene on

7

the day of the fire, and he explained what he observed. The jury could consider

Chief Licciardi’s testimony regarding his investigation, including his inability to

determine a cause and origin for the fire. Another relevant factor regarding Chief

Licciardi’s testimony, as LG emphasizes, is that Chief Licciardi was the only

independent witness on the cause and origin issue. The jury likewise could

consider this factor.

Mr. Kaplon’s Uncontradicted Expert Testimony

The trial court, accepting Ms. Martinez’s contention, found that Mr.

Kaplon’s expert testimony, as an electrical engineer, was uncontradicted. Even

assuming that finding was correct, the jury was not required to accept Mr.

Kaplon’s testimony. As this Court has observed, “[e]ven uncontradicted expert

testimony is not binding on the factfinder.” Hansel v. Holyfield, 00-0062, p. 16

(La. App. 4 Cir. 12/27/00), 779 So.2d 939, 949 (citation omitted). Rather, “[t]he

factfinder has discretion to accept or reject expert testimony and to determine the

amount of weight it may be due, which is largely dependent upon the expert’s

qualifications and the facts upon which their opinions are based.” Breaux v.

Woods, 20-161, p. 4 (La. App. 3 Cir. 11/18/20), 307 So.3d 395, 400 (citation

omitted).

The record reflects that Mr. Kaplon prepared two reports in the case—one in

2017, and another in 2021. His first report was for the adjusting firm retained by

Ms. Martinez’s homeowner’s insurer. Mr. Kaplon’s 2017 report, prepared for the

adjusting firm, concluded that it was only plausible that the cause of the fire was an

undetermined electrical failure in the Unit. Thereafter, Mr. Kaplon was retained by

Ms. Martinez’s attorney. In his 2021 report, while retained by Ms. Martinez’s

attorney, Mr. Kaplon’s opinion changed from plausible to “physical evidence

8

consistent with and indicative of the fire originating inside the AC.” The jury could

consider Mr. Kaplon’s change of opinion as well as his affiliation with Ms.

Martinez’s attorney.

Moreover, LG cites to several deficiencies in Mr. Kaplon’s investigation of

the fire, including his failure to notify LG when he initially commenced his

investigation. LG emphasizes that NFPA protocol specifically recommends that all

interested parties be at the fire scene from the beginning of an investigation.

According to LG, another deficiency was that there were fire-damaged items at the

scene that Mr. Kaplon failed to collect. The jury could take these deficiencies into

consideration. Hence, even if uncontradicted, Mr. Kaplon’s testimony was not

dispositive.

Mr. Rinkus’ Eyewitness Testimony

In his video deposition, Mr. Rinkus testified that, while checking his mail,

he noticed that flames were coming out the side of the Unit and that it started to

catch the house on fire. He further testified that he believed the Unit was operating

at the time of fire. But, Mr. Kaplon testified that the Unit has two fans—one

pushing hot air out the back and the other blowing cool air into the room. For this

reason, Mr. Kaplon explained that smoke could have been coming out of the Unit

even if the fire started inside the room rather than in the Unit. Mr. Rinkus’

testimony, thus, did not dictate a finding that the Unit was a cause of the fire.

Recapping, even assuming Mr. Kaplon’s testimony was uncontradicted, the

jury was not required to accept it. Chief Licciardi’s investigation, albeit focused on

arson, was not limited thereto. Finally, Mr. Rinkus’ testimony that he saw smoke

coming from the Unit is not dispositive of the origin of the fire. None of the three

factors, alone or taken together, supports the trial court’s finding that a miscarriage

9

of justice would result if it failed to grant a new trial. We, thus, find the trial court

abused its discretion in granting Ms. Martinez’s MNT.

CONCLUSION

For the foregoing reasons, we grant LG’s writ, reverse the trial court’s May

30, 2024 judgment, and reinstate the jury verdict. The stay order granted by this

Court is lifted.

WRIT GRANTED; JUDGMENT REVERSED; JURY VERDICT
REINSTATED; STAY LIFTED

10