Yolanda Denise Wilkerson v. Darden Direct Distribution, Inc. d/b/a Olive Garden, and Rana Meal Solutions, LLC, Liberty Mutual Insurance and Illinois National Insurance Company

Judgment rendered March 4, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,263-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

YOLANDA DENISE Plaintiff-Appellant
WILKERSON
versus
DARDEN DIRECT Defendants-Appellees
DISTRIBUTION, INC. D/B/A
OLIVE GARDEN, AND RANA
MEAL SOLUTIONS, LLC,
LIBERTY MUTUAL INSURANCE
AND ILLINOIS NATIONAL
INSURANCE COMPANY
*****
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 151689

Honorable Charles Jacobs, Judge
*****
DAVIS LAW FIRM Counsel for Appellant
By: S. P. Davis
Kharmen Davis

LUNN IRION LAW FIRM, LLC Counsel for Appellees,
By: Gerald M. Johnson, Jr. Darden Direct
Distribution, Inc. d/b/a
Olive Garden, Rana Meal
Solutions, LLC, and
Illinois National
Insurance Company

*****

Before WILLIAMS, MOORE, and GARRETT, JJ.

GARRETT, J.

The plaintiff, Yolanda Denise Wilkerson,1 appeals from a trial court

judgment which dismissed, with prejudice, her claims arising out of injuries

she allegedly suffered as the result of biting down on a piece of lobster shell

in a serving of lobster ravioli at a restaurant. For the reasons expressed

below, we reverse the trial court judgment and remand the matter for a new

trial.

FACTS

On December 4, 2015, the plaintiff ate lunch with a friend, Sammy

Steadman, at the Olive Garden Restaurant in Bossier City. At some point

during the meal, she complained to the restaurant’s culinary manager, Ithaca

Perkins, that she had found a white or cream-colored foreign object in the

lobster ravioli she ordered. On December 21, 2015, she went to the

Professional Denture Clinic, where she was seen by a dentist, Dr. Michael

Feavel, D.D.S., and a denturist.

On December 2, 2016, the plaintiff filed suit against Darden Direct

Distribution, Inc., d/b/a Olive Garden, and its insurer, Liberty Mutual

Insurance Company. She also sued Rana Meal Solutions, LLC (“Rana

Meal”), the supplier of the lobster ravioli, and its insurer, Illinois National

Insurance Company. She alleged that, on December 4, 2015, while dining at

the Bossier City Olive Garden Restaurant, she was served a defective lobster

ravioli meal which contained a large lobster shell. She asserted that, as a

result of biting down on the shell, she broke a tooth and cut her gum. She

further contended that the incident was observed by and reported to the

1
The plaintiff testified at trial that, due to divorce, her last name was now Smith.

restaurant’s employees, who observed her injury and drafted a report. The

plaintiff alleged that all the defendants were negligent in failing to properly

inspect and process the lobster ravioli.

The plaintiff propounded interrogatories and requests for production

of documents to the defendants. Interrogatory No. 8 made the following

inquiry:

Please state in detail whether any of your employees were made
aware of the incident and injury to plaintiff’s teeth, gum and
mouth on December 4, 2015. Then state whether an incident
report was generated.

Additionally, Request for Production No. 6 stated: “Please produce a copy

of the incident report.” While the interrogatories and the requests for

production are included in the appellate record, the defendants’ responses

are not.

In January 2017, a general denial answer was filed in which (1)

GMRI, Inc., d/b/a Olive Garden (“GMRI”), asserted that it was incorrectly

called Darden Direct Distribution, Inc., in the petition, and (2) Liberty

Mutual alleged that it was not an insurer for GMRI for any amounts less

than $500,000. They also asserted comparative fault and assumption of the

risk. In February 2017, the plaintiff voluntarily dismissed her claims against

Liberty Mutual without prejudice at defendant’s cost, while reserving her

rights against all other parties.

In February 2017, Rana Meal, GMRI, and Illinois National Insurance

Company filed an answer in which they asserted that the plaintiff’s injuries

were caused solely and exclusively by her own negligence. They alleged

comparative fault and failure to mitigate damages.

2

A bench trial was set for April 23, 2018. By joint motions to

continue, it was reset, first to July 11, 2018, then to September 11, 2018, in

order to complete additional discovery.

When court convened on September 11, 2018, the parties extensively

discussed the availability of several witnesses. Plaintiff’s counsel told the

court that the sheriff’s office had failed to timely serve his subpoenas on Dr.

Feavel, the plaintiff’s treating dentist, and John Dudley, who was described

as the owner of the facility where the plaintiff was treated.2 Apparently, the

defendants’ subpoena had not been served on Dr. Feavel either. Defense

counsel informed the court that he was willing to allow the plaintiff to use

Dr. Feavel’s discovery deposition, which was taken in September 2017, but

that the plaintiff insisted on his live testimony. Defense counsel further told

the court that John Dudley, who had only prepared the plaintiff’s dentures,

had thus far refused to give a deposition and, consequently, had not been

subpoenaed by the defense. Additionally, defense counsel objected to the

plaintiff presenting the testimony of Mr. Steadman, the plaintiff’s dining

companion. Defense counsel asserted that he had twice tried unsuccessfully

to subpoena Mr. Steadman for a deposition. Plaintiff’s counsel stated that he

had only talked to Mr. Steadman for the first time the day before trial.

Finding that the plaintiff was entitled to have her treating dentist

testify, the trial court ruled that it would take testimony from two of the

witnesses who were present and then recess the trial to allow Dr. Feavel and

Mr. Dudley to be subpoenaed at least 30 days prior to the resumption of

2
The record indicates that there are two Dudleys associated with the Professional
Denture Clinic – John Dudley and William Dudley.

3

trial. The trial court also instructed plaintiff’s counsel that, if he wished to

present Mr. Steadman’s testimony, it was his responsibility to make him

available for a discovery deposition. Mr. Steadman, who was present in

court, was placed under the rule of sequestration in anticipation of his future

testimony.

Ms. Perkins was the first witness called by the plaintiff. She testified

that she was the highest ranking managerial person at the restaurant on

December 4, 2015. A service professional, Suzie Smith, advised her that the

plaintiff had an issue with her ravioli. When Ms. Perkins spoke to the

plaintiff, she and a male companion were seated at the bar. The plaintiff told

her that there was a lobster shell or bone fragment in her ravioli and that she

had cut her tooth on it. The piece of ravioli was displayed to Ms. Perkins in

a napkin held by Suzie.3 Because it had been chewed, Ms. Perkins could see

inside the ravioli; she did not observe any bone fragments, shell, or blood.

She collected information from the plaintiff for an incident report, which she

later sent to the restaurant’s legal group, and comped the plaintiff’s meal.

She testified that the plaintiff did not appear to be having any issues and

denied giving the plaintiff a contact number. Ms. Perkins further testified

that she had never encountered any other complaints of foreign objects in the

lobster ravioli.

Plaintiff’s counsel objected to and sought to exclude Ms. Perkins’s

testimony about an incident report on the basis that he had been advised

during discovery that there was no such report. Defense counsel stated that

3
Ms. Perkins testified that, while she was speaking with the plaintiff and doing an
incident report, Suzie (who was unaware that she should keep it) threw away the napkin
and its contents.

4

it was his understanding that there were no paper incident reports and that all

such reports were submitted electronically. He produced a copy of a

document he described as a computer printout of information that the

manager would have supplied when reporting the matter to corporate and

stated that he believed that it was produced to the plaintiff during discovery.

Plaintiff’s counsel declined to look at the document. The trial court

overruled the plaintiff’s objection to Ms. Perkins’s testimony mentioning the

incident report, as well as her motion to totally exclude Ms. Perkins’s trial

testimony.

The plaintiff’s testimony concerning the incident differed from that of

Ms. Perkins. She testified that, when she bit into a piece of ravioli, a white

and cream-colored piece of shell or bone stuck her in the right upper gum

and cracked or chipped a right upper tooth. She said she “screamed a little”

and “caught” her mouth. She then spit the bone out on her plate, where it

remained, and there was blood mixed in the food she spat out. The plaintiff

said that when Ms. Perkins came to the table, she got a fork, picked around,

and saw the bone. According to the plaintiff, Ms. Perkins told her it was the

fault of the packing company, not the restaurant, and she was very sorry.

Ms. Perkins took the plate to the back and then returned. The plaintiff

testified that she was in obvious pain, but Ms. Perkins did not offer her

medical treatment. She assessed her pain as 10 out of 10. She said Ms.

Perkins gave her a phone number for Olive Garden’s headquarters; the

plaintiff said she called the number, and someone (whose name she could

not recall) called her back and settled her claim.

The plaintiff testified that she did not immediately seek medical help

because of her fear of dentists. She admitted that she was not a regular

5

dental patient and that she could not recall the last time she had gone to a

dentist since 2010. However, she maintained that she had no issues with her

teeth and gums and that she had no chipped teeth prior to her Olive Garden

mishap. She testified that, at the time of the alleged incident, she had had

front upper dentures for about 16 to 17 years. She stated that on

December 21, 2015, she went to the Professional Denture Clinic because her

gums were pussy and infected. She stated that she gave them a history about

the Olive Garden incident and that she was given antibiotics and pain

medications. The plaintiff testified that, as part of her treatment, six upper

teeth were extracted, her preexisting denture was removed, and a new

temporary upper denture was implanted. However, she has not been back to

get the permanent upper denture. She further testified that none of her lower

teeth were pulled. When the trial court queried why the denture clinic’s

treatment plan referred to a “lower combination partial,” she said that it was

a mistake. At the conclusion of her testimony, the case was recessed until

November 19, 2018. Plaintiff’s counsel agreed with defense counsel’s

suggestion about trying to arrange a trial deposition for Dr. Feavel.

To that end, on September 27, 2018, plaintiff’s counsel sent a letter to

the Professional Denture Clinic on Pines Road in Shreveport which was

addressed to both Dr. Feavel and “Mr. Bill Dudley.” It informed them that

the trial had been continued to November 19, 2018, for their trial testimony

and offered to arrange to take their trial depositions in lieu of them having to

testify at trial.4 The record also contains the sheriff’s returns showing

4
The letter in its entirety read as follows:

Mrs. Yolanda Wilkerson’s trial began on September 11, 2018. The trial
was continued to November 19, 2018 for both your trial testimony. I am
writing to accommodate your busy schedules. I called your office on

6

personal service on November 2, 2018, of a summons on “Bill” Dudley and

a summons and a subpoena duces tecum on Dr. Feavel.

When court reconvened on November 19, 2018, plaintiff’s counsel

informed the judge that, although subpoenaed, neither Dr. Feavel nor Mr.

Dudley were present. The trial court instructed counsel to phone the

witnesses. It then took up another case in order to give them additional time

to arrive. When the matter was finally taken up, the trial judge placed on the

record the following information which it had already shared with counsel

during a pretrial conference: Both subpoenas had been served at the

Professional Denture Clinic. The trial judge stated that he had called the

phone number for the clinic and talked to a person who identified himself as

John Dudley. This person informed him that William R. Dudley, who the

judge assumed was “Bill Dudley,” had been retired for “five, going on six

years,” and Dr. Feavel had not worked there for “two, going on three

years.”5 John Dudley also said that the subpoena had been left at the

facility’s front desk. The trial judge further stated that he then searched for

Dr. Feavel on the Internet and discovered a different address and phone

number for him.

During a lengthy discussion on the record, plaintiff’s counsel stated

that he understood that both Bill Dudley and Dr. Feavel still worked at the

Monday and left a message to accommodate your schedules by taking a
trial deposition at your office, so you will not have to appear in court. I
need for you to let me know by October 5, 2018 whether you will allow us
to take your trial deposition which will prevent us from subpoenaing you
to testify on November 19, 2018. If you are willing to submit to trial
depositions at your office let me know your available dates also. Please
contact me should you have any questions. I await your response.
5
We note that this assertion directly contradicts the information in Dr. Feavel’s
discovery deposition, which had been taken by the defendants approximately 14 months
before in September 2017. Dr. Feavel testified at that time that he was an independent
contractor with the Professional Denture Clinic on Pines Road.

7

denture clinic. He informed the court that, a week after he sent his

September 27, 2018 letter to the clinic address, Dr. Feavel called him from

the clinic number and told him he would get back with him with potential

deposition dates for him and “Mr. Dudley.” However, he did not hear back

from Dr. Feavel, and he twice tried unsuccessfully to contact him.

Plaintiff’s counsel further recounted talking to a receptionist at the denture

clinic, who also told him that they would get back to him. He was never told

that the letter recipients no longer worked at the clinic. He informed the

court that he expected “John Bill Dudley” or “Bill Dudley” to be present in

court and that this man had told him that the plaintiff’s broken tooth had

ruptured her skin and caused an infection, which led to the clinic’s treatment

plan for her.6 He stated that this conversation took place after Dr. Feavel’s

deposition and, consequently, Dr. Feavel had not been asked questions about

it. He further stated that he told defense counsel about the situation, but they

were unsuccessful in getting “Mr. Dudley” to submit to a deposition. He

introduced into evidence his letter and the subpoena returns.

After additional discussion, the trial court denied the plaintiff’s

request for a continuance. It found that the “Bill Dudley” subpoena had not

6
Plaintiff’s counsel recounted:

I know he created this treatment plan. I talked to him about the treatment
plan. I said, why is the treatment plan at that price? He told me because
of the fact that Ms. Wilkerson had a pre-existing denture when she bit
down on this bone at – at Olive Garden it broke her tooth, it – it ruptured
her – her skin, caused an infection. And because the infection was so
widespread they had to remove the pre-existing denture in order to put the
new –.
...
Because of the fact when I talked to Mr. Dudley after Mr. - - after Dr.
Feavel’s deposition Mr. Dudley explained to me that the infection’s what
caused the problem. Then I had a subsequent conversation with Dr.
Feavel and I told him Dr. - - Mr. Dudley told me that this was the cause of
his plan. Dr. Feavel at that time agreed and said, yes, that is correct.

8

been properly issued because “you have to have a full name and a correct

address.” The trial court stated that, if the intended recipient was “William

R. Dudley,” “it took me approximately five minutes to find out that he’s not

at that address.” Additionally, over the plaintiff’s objections, the court

allowed the defendants to admit Dr. Feavel’s discovery deposition into

evidence pursuant to La. C.C.P. art. 1450(A)(5), which permits an expert’s

deposition to be used “notwithstanding the objection of counsel to the use of

that deposition, if the court finds that, under the circumstances, justice so

requires.” The trial court reasoned that the subpoena for Dr. Feavel also

appeared not to have been properly served. The trial court chastised

plaintiff’s counsel for not resorting to an Internet search – as it had – to find

Dr. Feavel’s “correct” phone number when he did not hear back from the

dentist. The trial court declared that it “took me approximately thirty

seconds to find out his correct address” on the Internet. The court

discounted the plaintiff counsel’s explanation that he had been told that both

men still worked at the clinic, declaring that “I had a conversation this

morning with a John Dudley who gave me all of this information within five

minutes. And how you got a totally different story I don’t understand but

something is not right here.” The medical records and treatment plan for the

plaintiff from the denture clinic were also admitted into evidence, as was

Mr. Steadman’s deposition.

In his deposition, Mr. Steadman generally corroborated the plaintiff’s

account of the Olive Garden incident and contradicted portions of the

manager’s version. He testified that, while they were eating, the plaintiff

suddenly made a noise and “caught her mouth.” She removed something

“off white” from her mouth and put it on the side of her plate. He described

9

it as looking “like some type of bone.” While he did not recall seeing any

blood, he conceded that he could not say the plaintiff was lying if she had

testified that there had been bleeding. The manager came out, talked to the

plaintiff, and wrote down some information on paper. The manager also

removed the object, but Mr. Steadman did not know what she did with it.

After the manager spoke to the plaintiff, they left the restaurant and he took

the plaintiff home.

Dr. Feavel testified in his deposition that he first saw the plaintiff on

December 21, 2015, when she came in to have her teeth cleaned and that a

treatment plan was done at that time. He opined that she knew she needed a

denture. He did a gross debridement. He described her hygiene habits as

the “upper level of poor.” She had a broken lower tooth, but the records

indicated no treatment was provided for it. He stated it was not badly

broken and she did not complain of pain when he examined her. Dr. Feavel

testified that the plaintiff did not tell him about the Olive Garden incident.

Dr. Feavel initially opined that none of the treatment provided by his clinic

was caused by the plaintiff biting down on something. Instead it was related

to a lack of dental hygiene and a lack of adequate past dental treatment. In

August 2016, he extracted six upper teeth and put in stitches in the upper

right area near a wisdom tooth. He put in her temporary or healer denture.

However, she had not scheduled coming back for the permanent denture.

During his deposition, Dr. Feavel was questioned about a “to-whom-

it-may-concern” letter, which was found in the plaintiff’s clinic records.

Although it was not introduced into evidence, it was read to Dr. Feavel as

follows:

10

Whom it may concern, Ms. Yolanda Wilkerson was seen in our
office on December 21, 2015. Patient states she had an incident
at Olive Garden. When we saw her for her gross debridement,
deep cleaning, Ms. Wilkerson was found irritated and tooth
number twenty-nine was broken.7

Dr. Feavel opined that the letter and the treatment plan were written by John

Dudley. He stated that obviously John or William Dudley had talked to the

plaintiff and obtained this information. Based on the history she gave of

biting down on the ravioli and the fact that tooth #29 was broken, Dr. Feavel

concluded that it was more probable than not that the ravioli caused her

tooth to break and made her gum bleed.

In his deposition, Dr. Feavel testified that the one of the Dudleys, who

were second-generation denturists and “premium people in their field,”

formulated the plaintiff’s treatment plan and that he reviewed it. According

to him, the Dudleys prepared the plan based on his observations and

recommendations and that “[w]e always cross reference.”

On February 11, 2019, the trial court issued a written opinion in which

it ruled against the plaintiff. It found that she failed to carry her burden of

proving that the incident ever occurred, holding that the only evidence in her

favor was her own “self-serving testimony.” The court summarized the

testimony of the other witnesses as follows. The treating dentist, Dr. Feavel,

testified that the plaintiff became his patient shortly after the alleged incident

but she never related that incident to him. Dr. Feavel also testified that she

needed dentures due to long-term poor dental hygiene, not trauma. The

Olive Garden manager stated that, while the plaintiff complained of biting

down on an alleged piece of lobster shell, she was unable to produce it. The

7
According to the plaintiff’s dental records, Tooth #29 is a lower tooth. In her
testimony, the plaintiff indicated that she injured a right upper tooth.

11

plaintiff’s dining companion, Mr. Steadman, stated that the plaintiff made a

noise while eating and then produced a small white object from her mouth.

He did not know the nature of the object or observe any sign (such as blood)

of a trauma to the plaintiff. She did not complain to him of any injury to her

teeth or seek immediate medical treatment. Instead he drove her home after

the meal. The trial court concluded that the plaintiff’s testimony was

“simply not credible, especially in light of the fact that despite claiming

damage to an upper front tooth she presented dental records concerning the

replacement of her bottom teeth only.”8 Judgment dismissing the plaintiff’s

claims, with prejudice and at her cost, was signed on March 7, 2019.

The plaintiff appealed. Although the plaintiff has urged several

assignments of error, we find that the trial court erred in denying the

plaintiff’s motion for continuance under all the circumstances presented

here.

MOTION FOR CONTINUANCE

Law

A continuance may be granted in any case if there is good ground

therefor. La. C.C.P. art. 1601. A continuance shall be granted if at the time

a case is to be tried, the party applying for the continuance shows that he has

been unable, with the exercise of due diligence, to obtain evidence material

to his case; or that a material witness has absented himself without the

contrivance of the party applying for the continuance. La. C.C.P. art. 1602.

8
This statement is incorrect. The plaintiff’s records from the denture clinic
primarily concern the extractions of upper teeth, which were related to the upper denture.
The “treatment plan,” a document detailing the proposed treatment and providing a cost
breakdown, included two apparently erroneous references to lower denture work.
However, it also referred to the extraction of the upper teeth for the upper denture.

12

“Good” ground is something less than “peremptory” ground, for

which La. C.C.P. art. 1602 declares a continuance “shall” be granted.

Inability to obtain evidence that is material despite “due diligence” is a

peremptory ground under La. C.C.P. art. 1602. Inability to obtain material

evidence despite diligence that is not quite “due diligence” may therefore be

a “good,” though not a peremptory, ground. Sands v. State Through La.

State Med. Ctr., Sch. of Dentistry, 458 So. 2d 960 (La. App. 4 Cir. 1984),

writ denied, 460 So. 2d 1044 (La. 1984).

It is a well-established rule that the trial judge has wide discretion in

acting upon a motion for continuance. The ruling will not be disturbed on

appeal in the absence of a clear showing of abuse of that discretion. Sauce v.

Bussell, 298 So. 2d 832 (La. 1974); Howard v. Lee, 50,366 (La. App. 2 Cir.

1/13/16), 185 So. 3d 144. An abuse of discretion occurs when such

discretion is exercised in a way that deprives a litigant of his day in court.

Howard v. Lee, supra.

While recognizing the much discretion vested in a trial judge in the

matter of granting or refusing continuances, it has never been held that such

discretion is absolute or that it may be exercised arbitrarily. Appellate courts

are vested with the right and duty to correct such errors by the trial judge in

matters of this kind. However, it should be pointed out that appellate courts

only interfere in such matters with reluctance and in what are considered

extreme cases. Sauce v. Bussell, supra; Howard v. Lee, supra

The trial court must consider the particular facts in each case in

deciding whether to grant or deny a discretionary continuance. Some factors

to consider are diligence, good faith, and reasonable grounds. Tarbutton v.

Tarbutton, 52,102 (La. App. 2 Cir. 6/27/18), 251 So. 3d 590; Connor v.

13

Scroggs, 35,521 (La. App. 2 Cir. 6/12/02), 821 So. 2d 542. Equally

important is the defendant’s corollary right to have his case heard as soon as

is practicable. The trial court may also weigh the condition of the court

docket, fairness to both parties and other litigants before the court, and the

need for orderly and prompt administration of justice. Tarbutton v.

Tarbutton, supra; Howard v. Lee, supra; Connor v. Scroggs, supra.

Discussion

When plaintiff’s counsel was unsuccessful in arranging for trial

depositions of the two witnesses, he had them subpoenaed. The subpoenas

were served at the denture clinic because plaintiff’s counsel was under the

impression that both witnesses worked there. This belief was supported by

one of the prospective witnesses, Dr. Feavel, contacting him a week after he

sent the September 27, 2018 letter to the denture clinic and by a

conversation with the clinic receptionist. Both of these incidents tend to

counter the statements made to the trial judge that the witnesses had been

gone from the clinic for many years. Consequently, we are unable to say

that plaintiff’s counsel was unreasonable in relying upon the service returns

indicating that the sheriff had properly served the summonses upon these

witnesses at the denture clinic. Certainly his reliance was just as reasonable

as the trial judge’s independent Internet searches and telephone conversation

with someone purporting to be one of the denturists at the clinic.9 Plaintiff’s

counsel was not required to follow the trial court’s example in conducting

Internet searches when he reasonably believed that the address utilized for

9
We note that the judge repeatedly stated that he did not know why John Dudley
would lie to him and that “I have to take John Dudley at his word.” The implication from
these statements was that he did not have to take plaintiff’s counsel, an officer of the
court, at his word.

14

service was valid and the sheriff’s returns showed that personal service had

been made on both witnesses.

While the trial judge has wide discretion in acting upon a motion for

continuance, an abuse of discretion occurs when such discretion is exercised

in a way that deprives a litigant of her day in court. Under the facts of this

case, we find that the trial court abused its discretion in denying the

plaintiff’s motion for continuance. It placed undue weight on the right of the

defendants to have the case heard as soon as possible and gave little or no

consideration of the plaintiff’s good faith and reasonable belief in the

sheriff’s service of the subpoenas. Furthermore, there was no showing that

the defendants would have been prejudiced by the granting of the

continuance. The plaintiff, whose credibility was put at issue by the

defendants, was deprived of the opportunity to present evidence which may

have bolstered her credibility. Under the circumstances presented here, the

plaintiff was prejudiced by not being allowed to present her case.

Based on the foregoing, we reverse the trial court judgment and

remand the matter for a new trial.10

INCIDENT REPORT

The plaintiff also argues that the trial court erred in denying her

motion to exclude the testimony of Ms. Perkins, in whole or in part, on the

basis of the defendants’ failure to produce in discovery the incident report

authored by Ms. Perkins.

10
Reversing the trial court judgment and ordering a new trial should also resolve
the issue of whether Dr. Feavel’s discovery deposition was properly admitted, over the
plaintiff’s objections, under La. C.C.P. art. 1450(A)(3) and (5) and La. C.E. art. 804(A).
See Mitchell v. State, Dep’t of Transp. & Dev., 50,432 (La. App. 2 Cir. 3/23/16), 193 So.
3d 152, writ granted, 16-1097 (La. 10/12/16), 207 So. 3d 1061, order recalled, 16-1097
(La. 1/25/17), 219 So. 3d 1061, and writ denied, 16-1097 (La. 1/25/17), 219 So. 3d 1061.

15

At trial, Ms. Perkins testified that she filled out an incident report

about the plaintiff’s complaint. Plaintiff’s counsel objected to this testimony

on the basis that he had been told during discovery that no such document

existed. The trial court responded by inquiring if plaintiff’s counsel had

taken the witness’s deposition.

MR. DAVIS [plaintiff’s counsel]: Judge, I didn’t make - - take
her deposition, but I have a right to explore my discovery, Judge.
You know that. I asked for the incident report, Judge. I was told
in discovery that one - - didn’t one exist.

THE COURT: Well.

MR. DAVIS: Had I gotten one, then, yes, I may would’ve taken
her deposition. But I’m entitled to know that, Judge.

THE COURT: Mr. Johnson - -

MR. DAVIS: I’m entitled to’ve had a copy of that incident
report.

THE COURT: - - if he - - if he didn’t have it in his possession or
didn’t know it was taken, I’m gonna overrule your objection.
You may continue. These - - that’s a - - that’s a pre-trial
discovery matter.

MR. JOHNSON [defense counsel]: Your honor, for the record
it’s my understanding that there are no paper incident reports,
that this is all submitted electronically and – and goes into a
computer system and - and that’s how it works.

MR. DAVIS: Judge, that’s not what she just testified to, Judge.
She testified she did a paper report and she attached a ticket to it.
I requested that in my pre-trial discovery. If I’m told by an
attorney, Judge, it doesn’t exist, I’m supposed to take that and
believe that so it – so it didn’t exist.

THE COURT: Mr. Davis, this is a pre-trial discovery matter.
Okay. This incident happened back in December of 2015. How
you choose to conduct your discovery is your business, but, you
know, this was an issue then the issue that you’ve raised is
something that should’ve been raised pre-trial after, you know,
you had taken the deposition of the restaurant manager.

MR. DAVIS: Judge, I never took it.

16

THE COURT: So I’m - - I’m overrule - - I made my ruling. I’ll
note your objection to my ruling. But we need to move on.

(OBJECTION NOTED FOR THE RECORD)

MR. DAVIS: Judge, I want to make another motion. I’m
strenuously objecting to the court’s ruling and I’m moving that -
that Ms. Ithaca Perkins’ testimony be excluded from this trial
period because of the fact that I was led to believe and told in
discovery that I requested an incident report and I was told one
did not exist. So I’m moving to exclude her testimony in this
trial at this time.

THE COURT: That is denied.

MR. DAVIS: Okay. And let the record reflect that I object to
the court’s ruling.

MR. JOHNSON: Your Honor, I do have a copy of, I think what
is a computer printout of the information that Ms. Perkins would
have supplied in connection with her reporting of the incident. I
think this was produced in discovery and I’ll show it to Mr.
Davis and would ask if, you know, if you’ve ever seen that
before. If not - -

MR. DAVIS: Judge, it’s untimely.

MR. JOHNSON: - - in any - -

MR. DAVIS: It’s untimely.

MR. JOHNSON: In any event, you – you’re free to ask her
questions about it.

MR. DAVIS: And I don’t want to see it at this point, Judge.

MR. SHERIFF: One at a time.

MR. JOHNSON: But – but what I’m saying, Your Honor, is that
I believe that was produced in discovery. It’s simply a computer
printout of data, basic personal information about Ms. Wilkerson
when – when the witness is called upon to submit to the powers
that be information about a claim she takes down basic
information about where the person lives, what their contact
information is, and I was gonna - - I’ll bring this out in – in my
examination of her, but I offer that document to Mr. Davis. I
think it was produced in discovery and – and he’s welcome to
question Ms. – Ms. Perkins on it today.

THE COURT: Fair enough. But again, all this what we’re
arguing about here is something that was easily discoverable in a

17

pre-trial discovery deposition of a witness who you called first
Mr. Davis. I don’t understand why, you know, I can’t tell you
how to practice law, but I don’t understand why you called a
witness first that you never deposed.

MR. DAVIS: Judge, I have a right to try my case.

THE COURT: And if - - and if you had deposed her this issue
could’ve been solved. That’s why - - that’s why I’ve denied
your motions. So we need to move on.

In her testimony, Ms. Perkins not only admitted doing an incident

report, but she also stated that it included a copy of the ticket, thus indicating

that there was, in fact, a paper incident report. Without contradiction,

plaintiff’s counsel repeatedly stated on the record that, in response to his

discovery requests, he had been informed by the defendants that no such

report existed. Defense counsel responded by offering a computer-generated

printout that he thought had been produced in discovery. The trial court

never questioned defense counsel about his failure to produce the actual

incident report, pursuant to the plaintiff’s discovery requests. Instead, the

trial court chose to repeatedly and dismissively criticize plaintiff’s counsel

for failing to depose Ms. Perkins, an action plaintiff’s counsel was not

required to do. In so doing, the trial court unfairly attempted to place the

responsibility – and the blame – for the defendants’ discovery failure on the

plaintiff’s counsel, who was entitled to rely upon the veracity of the

defendants’ discovery responses.

At oral argument, defense counsel was questioned by the panel about

the existence of a written incident report. He stated that, based upon Ms.

Perkins’s testimony, he thought there was a paper report, which he referred

to as an “interim document,” but he did not know what happened to it. He

insisted that the data in the incident report and the computer printout were

18

the same. He stated that he could not recall how he responded to the

plaintiff’s discovery request for the incident report; however, he believed

that the computer printout was handed over to the plaintiff.11

While questioning Ms. Perkins at trial, defense counsel elicited a

declaration from her that there was no information in the incident report that

she had not described in her testimony. Because the record contains neither

the incident report nor the computer printout, we are unable to judge the

veracity of this statement. At any rate, it goes without saying that plaintiff

was entitled to the incident report pursuant to her discovery request and that,

on remand, the defendants should make every effort to produce it or provide

a definitive answer as to what became of this document.

This discovery issue, combined with the trial court’s failure to grant

the plaintiff’s motion for continuance, compels this court to reverse the trial

court judgment and remand the matter for a new trial. As a result, we

pretermit the plaintiff’s final assignment of error pertaining to whether the

trial court was manifestly erroneous in its judgment dismissing the plaintiff’s

case.

CONCLUSION

The trial court judgment dismissing the plaintiff’s claims is reversed.

The matter is remanded to the trial court for a new trial. Costs of this appeal

are assessed to the defendants.

REVERSED AND REMANDED.

11
During oral argument, plaintiff’s counsel stated that the discovery response
received from the defendants indicated that no written report was done.

19