Kenneth Trahan and Lisa A. Trahan v. State of La., Department of Health & Hospitals

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-743

KENNETH TRAHAN AND
LISA A. TRAHAN

VERSUS

STATE OF LOUISIANA THROUGH THE
DEPARTMENT OF HEALTH AND HOSPITALS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 94-798,
HONORABLE PATRICK MICHOT, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED FOR FURTHER PROCEEDINGS
IN ACCORDANCE WITH INSTRUCTIONS HEREIN.

Colleen McDaniel
Assistant Attorney General
556 Jefferson Street, Fourth Floor
Lafayette, Louisiana 70501
(337) 262-1700
Counsel for Defendant/Appellee:
State of Louisiana, Department of Health& Hospitals
Louisiana Health Care Authority
University Medical Center

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

Robert W. Hallack
Attorney at Law
Post Office Box 77258
Baton Rouge, Louisiana 70816
(225) 291-4357
Counsel for: Plaintiff Appellant
Lisa A. Trahan
Kenneth Trahan

J. Clemille Simon
Attorney at Law
Post Office Box 52242
Lafayette, Louisiana 70505
(337) 232-2000
Counsel for Plaintiff/Appellant:
Kenneth Trahan
Lisa A. Trahan

SULLIVAN, Judge.

Kenneth and Lisa Trahan appeal various discovery rulings made by the trial

court and the dismissal of their claims against the State of Louisiana, through the

Department of Health and Hospitals (the State), for failure to comply with court-

ordered discovery. We affirm in part, reverse in part, and remand for further

proceedings.

Facts

On February 23, 1993, while employed by Incendere, Inc., a waste management

service specializing in medical waste management, Kenneth Trahan was injured when

he opened the door of a trailer transporting boxes of medical waste and one of the

boxes fell on him. The medical waste was owned and loaded in the trailer by

University Medical Center (UMC).1 Kenneth and his wife, Lisa, filed suit against the

State of Louisiana, alleging that Kenneth’s injuries occurred as a result of the

negligence of the UMC employees who improperly loaded the medical waste.

Kenneth and Lisa separated in December 1995 and were thereafter divorced. Lisa

moved from Louisiana and currently resides in Virginia.

Initially, this matter was vigorously litigated. A motion for summary judgment

was granted in favor of the State; then the pace of the litigation slowed. The grant of

summary judgment was reversed on appeal in 1995. However, activity in the matter

did not increase until June 2001 when new counsel enrolled on behalf of the Trahans

and responded to interrogatories and requests for production propounded by the State

in 1994. Shortly thereafter, the State noticed the depositions of the Trahans. It then

filed a motion to dismiss for failure to prosecute, pursuant to La.Code Civ.P. art. 561,

which was denied.

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UMC is operated by the Department of Health and Hospitals.

On May 15, 2002, the State deposed Kenneth. That same day, the State began

deposing Lisa, who appeared by telephone, but terminated the deposition when Lisa

testified that she would come to Louisiana to be deposed. Thereafter, a number of

discovery issues were presented to the trial court for determination. Ultimately, by

judgment dated March 26, 2004, the trial court dismissed the Trahans’ claims because

they failed to comply with the trial court’s order which directed them to answer the

1994 interrogatories and requests for production “fully, under oath, and in writing on

or before January 7, 2004” and which directed Lisa to “submit in person to a

deposition . . . in this Parish and State by February 6, 2004.”

The Trahans assign six errors: five arise out of discovery rulings made by the

trial court and the last arises out of the dismissal of the their claims.

Standard of Review

Trial courts have broad discretion in ruling on discovery matters that are

presented during the course of litigation, including the scope of discovery. Moak v.

Ill. Cent. R.R. Co., 93-783 (La. 1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co.,

564 So.2d 814 (La.App. 3 Cir. 1990). Such discretion will not be disturbed on appeal

absent a clear showing of abuse. Moak, 631 So.2d 401.

Dismissal for Failure to Comply with Discovery

We first consider whether the dismissal of the Trahans’ claims for failure to

respond to court-ordered discovery was error. Pursuant to La.Code Civ.P. art. 1471,

a trial court can impose sanctions for a litigant’s failure to respond to discovery. It

provides in part:

If a party or an officer, director, or managing agent of a party or
a person designated under Articles 1442 or 1448 to testify on behalf of
a party fails to obey an order to provide or permit discovery, including
an order made under Article 1469 or Article 1464, the court in which the

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action is pending may make such orders in regard to the failure as are
just, and among others the following:

(1) An order that the matters regarding which the order was made
or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order.

(2) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence.

(3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.

(4) In lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination.

....

In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the attorney
advising him or both to pay the reasonable expenses, including
attorney’s fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.

In Horton v. McCrary, 93-2315 (La. 4/11/94), 635 So.2d 199, the supreme

court addressed the propriety of the dismissal of a plaintiff’s claims for failure to

comply with discovery, observing that “[t]here is a distinction between the sanctions

available for failure to comply with discovery and the sanctions available for

disobedience of court ordered discovery” and that “[t]rial judges must have severe

sanctions available to deter litigants from flouting discovery orders.” Id. at 203. The

court further noted that dismissal is a “draconian” penalty which should only be

applied in “extreme circumstances.” Id.

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Comparing the Louisiana rule for sanctioning a party who fails to comply with

discovery with the Federal rule, the Horton court identified four factors appellate

courts should consider when determining whether a trial court’s dismissal of a

plaintiff’s claims is an abuse of discretion:

(1) whether the violation was willful or resulted from inability to
comply;

(2) whether less drastic sanctions would be effective;

(3) whether the violations prejudiced the opposing party’s trial
preparation; and

(4) whether the client participated in the violation or simply
misunderstood a court order or innocently hired a derelict attorney.

Id. The court further observed that “[t]he record must support ‘a finding that the

failure was due to . . . wilfulness, bad faith, or fault’” before dismissal of a plaintiff’s

claims is appropriate. Id. quoting Allen v. Smith, 390 So.2d 1300, 1302 (La.1980).

In In re Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243, this court

determined that without sworn testimony no assessment of these factors could be

made. Here, as in Wiley, only counsels’ arguments are available for us to consider.

Without evidence concerning these factors, we cannot determine whether the trial

court’s dismissal of the Trahans’ claims was error. Accordingly, the judgment of

dismissal is vacated, and the matter is remanded for an evidentiary hearing in

accordance with Horton, 635 So.2d 199, and Allen, 390 So.2d 1300.

Termination of Lisa Trahan’s Deposition

Shortly after new counsel enrolled for the Trahans, the State noticed their

depositions. Two days prior to the scheduled deposition, the Trahans’ attorney

notified counsel for the State that Lisa would not appear in person for her deposition

but would be available by telephone. On the date of the scheduled deposition,

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counsel for the State began the deposition and questioned Lisa but terminated the

deposition after Lisa testified that she could appear in Louisiana for her deposition.

The Trahans’ attorney then began questioning Lisa. Counsel for the State objected

to continuing the deposition. The trial judge was contacted, and after a conference,

the trial judge ordered that the deposition be terminated.

This issue was previously addressed pursuant to an application for writs filed

by the Trahans with this court. No error was found with the trial court’s termination

of Lisa’s deposition. See Trahan v. State of Louisiana, 02-626 (La. 3 Cir. 6/3/02), an

unpublished opinion. Lisa again urges that the trial court erred in terminating her

telephone deposition. Relying on La.Code Civ.P. art. 1444, she argues that without

evidence that the questioning was in “bad faith” or was in an “unreasonable manner,”

termination of the deposition was error.

As this issue has been previously considered by this court, application of the

“law of the case” doctrine must be considered. This doctrine applies to prior rulings

of the appellate court and/or supreme court in the same case. It applies to parties who

were involved in the litigation at the time of the prior ruling and had their day in

court. The doctrine provides that “an appellate court ordinarily will not reconsider

its own rulings of law in the same case.” Sharkey v. Sterling Drug, Inc., 600 So.2d

701, 705 (La.App. 1 Cir.), writs denied, 605 So.2d 1099, 1100 (La.1992). The

purposes of the doctrine are to avoid litigating the same issue again, promote

consistency of result within the case, promote essential fairness to the parties, and

judicial efficiency. Cree Oil Co. v. Home Ins. Co., 94-1219 (La.App. 3 Cir. 3/8/95),

653 So.2d 620, writ denied, 95-1554 (La. 9/29/95), 660 So.2d 875. Application of

the doctrine is discretionary and is inapplicable to cases in which the prior decision

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was palpably erroneous or its application would result in manifest injustice. Willett

v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196.

Lisa testified that she was willing to attend a deposition in Louisiana.

Additionally, her argument does not address the fact that the State was not notified

until just days before her scheduled deposition that she would not be present for the

deposition but would be available by telephone for her deposition. We find no error

with the trial court’s termination of her deposition and will not reconsider our prior

decision.

The State’s Failure to Comply with Uniform Local Rule 10.1

Local Rule 10.1 of the Uniforms Rules for the Courts of Appeal requires that

any party filing a discovery motion first attempt to arrange a conference with the

opposing party to try to amicably resolve the discovery dispute and that a discovery

motion must include a certificate stating that the parties conferred and why they were

unable to agree or that opposing counsel refused to confer after reasonable notice.

In August 2003, counsel for the State contacted the Trahans’ attorney by telephone

to discuss various pending discovery issues and, during that conversation, notified

him that she considered the conversation to be a Rule 10.1 conference. The Trahans

filed a motion to dismiss the motion to compel for failure to comply with Local Rule

10.1, arguing that, because counsel for the State did not notify their attorney prior to

the telephone conference that she intended it to serve as a Rule 10.1 conference and

the required certificate was not attached to the motion to compel, the motion did not

satisfy the requirements of Rule 10.1 and should not be considered by the trial court.

After conducting a hearing on all of the pending motions, the trial court determined

that the telephone conversation satisfied the requirements of Rule 10.1.

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“Local rules of court are intended solely to aid in the orderly and efficient

conduct of litigation and are not to be construed so literally as to defeat their intended

purpose. . . . the trial court has great discretion in the construction, interpretation,

application or enforcement of its own rules.” Miller v. Miller, 35,934 (La.App. 2 Cir.

5/8/02), 817 So.2d 1166, 1172, writ denied, 02-1890 (La. 10/25/02), 827 So.2d 1154

(citation omitted). We find no error in the trial court’s consideration of the motion

to compel.

Exception of Vagueness

In its motion to compel, the State asserted that the Trahans’ responses to

discovery were “not only incomplete but false.” The State did not specify how the

responses were deficient but referenced its prior motion to dismiss, stating its

“objections to the discovery were set forth in its Motion to Dismiss for Failure to

Prosecute filed May 2, 2002, and supporting memorandum.” The Trahans filed an

exception of vagueness2 in response to the motion to compel, asserting that the

allegations contained therein were vague.

The State had alleged in its motion to dismiss that the Trahans’ responses “do

not contain materials older than 1993 and 1994” and “were not sworn to by

KENNETH or LISA TRAHAN ‘under oath’ as required by La. C.C.P. Art. 1458.”

In its Reasons for Ruling on the motion to compel, the trial court found the “adequacy

2
Pursuant to La.Code Civ.P. art. 926, an exception of vagueness is a dilatory exception filed
in response to a petition to compel the plaintiff to amplify and define his claims to allow the
defendant to adequately prepare his defense. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir.
10/8/97), 702 So.2d 890. Therefore, filing an exception of vagueness in response to a motion to
compel is technically incorrect. However, a pleading is to be treated based on the allegations therein,
not the title. See Smith v. Williams, (La.App. 2 Cir. 1988), 535 So.2d 959. Accordingly, we address
the Trahans’ allegations regarding the State’s failure to specify what was incomplete or false in their
discovery responses.

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of the plaintiffs’ discovery responses was previously briefed in the motion to dismiss

for failure to prosecute.”

There is no information in either the motion to dismiss or the motion to compel

as to what the State contends is false. However, Kenneth testified in his deposition

that at least one of the answers to interrogatories prepared by his attorney was

“incorrect” and “false.” Having been in attendance at that deposition, counsel for the

Trahans was aware that at least one response to the propounded discovery was indeed

false. We find no error with the trial court’s refusal to grant the exception of

vagueness.

Discovery Responses

In its motion to compel, the State also asserted that the Trahans’ responses to

its discovery were not “full and complete.” In addition to referring to its previously

filed motion to dismiss for failure to prosecute, the State also stated in its motion to

compel that “the Plaintiffs had neither been aware of the discovery nor had they

participated in answering it.” The State did not specify why the responses provided

by the Trahans were not “full and complete.” As previously noted, the State had

indicated in its motion to dismiss for failure to prosecute that the responses were

insufficient because the answers provided at the time the motion to compel was filed

did not contain materials older than 1993 or 1994 and were not sworn to by the

Trahans.

A review of the Trahans’ answers to their interrogatories and the record reveals

that their attorney initially answered the interrogatories at a time when he had not met

or been in contact with either of them. The Trahans’ depositions also reveal that

some of the answers provided were not correct at the time that their attorney answered

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the interrogatories. In August 2003, the Trahans supplemented their original answers

under oath but did not answer each interrogatory.

The State wants the Trahans to respond to its discovery requests as though their

attorney had never responded on their behalf. The trial court ordered them to do so.

Under these circumstances, we do not find the trial court’s order an abuse of

discretion.

Lisa Trahan’s Appearance for Deposition in Louisiana

In its motion to compel, the State also requested that the trial court order Lisa

to appear in Louisiana for her deposition. The trial court granted the request and

ordered Lisa to appear for her deposition before February 6, 2004 “or face dismissal

of her claim with prejudice at her cost.” Lisa sought a protective order which would

require the State to pay her travel expenses. She argued that it would be a hardship

for her to travel to Louisiana for her deposition because she is a pauper, lives in

Newport News, Virginia, and is the single parent of a young child who would need

supervision during her absence. She further argued that her potential for recovery is

extremely limited as she and Kenneth Trahan separated shortly after his injury. This

ruling of the trial court was also the subject of a writ application to this court which

was denied. See Trahan v. UMC, 04-201 (La.App. 3 Cir. 2/7/04), an unpublished

opinion.

In light of our remand of this matter, Lisa will need to travel to Lafayette for

the evidentiary hearing on whether the trial court properly dismissed her and

Kenneth’s claims; the State will be able to depose her at that time. Accordingly, we

need not consider this issue.

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Disposition

All of the trial court’s rulings issued in conjunction with discovery motions are

affirmed. The trial court’s judgment of dismissal is vacated, and this matter is

remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR
FURTHER PROCEEDINGS IN ACCORDANCE WITH INSTRUCTIONS
HEREIN.

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