Willie Buard v. Colfax Treating Company, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-658

WILLIE BUARD, ET AL.

VERSUS

COLFAX TREATING COMPANY, LLC, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 214,915
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Raymond L. Brown, Jr.
Samuel Newman Poole, Jr.
Edward E. Rundell
Charles Stovall Weems, III
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Defendants/Appellees:
Colfax Treating Company, L.L.C.
Roy O. Martin Lumber Company, L.L.C.

Richard J. Arsenault
Paul J. Tellarico
John Randall Whaley
Neblett, Beard & Arsenault
P.O. Box 1190
Alexandria, LA 71309
(318) 487-9874
Counsel for Plaintiffs/Appellants:
Chad and Donna Tarver, et al.

Hunter W. Lundy
Lundy, Lundy, Soileau & South, LLP
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0907
Counsel for Plaintiffs/Appellants:
Chad and Donna Tarver, et al.

James P. Ryan
Morrow, Morrow, Ryan & Bassett
P.O. Drawer 1787
Opelousas, LA 70571
(337) 948-4483
Counsel for Plaintiffs/Appellants:
Chad and Donna Tarver, et al.

Gary Hays
Attorney at Law
1103 Main Street
Pineville, LA 71360
(318) 443-9244
Counsel for Plaintiffs/Appellants:
Chad and Donna Tarver, et al.

DECUIR, Judge.

Plaintiffs, Donna and Chad Tarver and their minor children, Dylan and Luke

(Tarvers), appeal a judgment of the trial court denying their motion for new trial.

FACTS

The Tarvers lived adjacent to an industrial plant, operated by Colfax

Treating Company, L.L.C. and Roy O. Martin Lumber Company, L.L.C. (Colfax),

in Pineville from October, 1998 through February, 2003. Colfax produces

preservative treated utility poles and other wood products and has done so for over

fifty years.

The Tarvers filed suit alleging that they were exposed to harmful chemicals

which adversely affected the health of their children. Neither party disputes that

the Tarvers experienced at least minor exposure to chemical emissions. The

disputed issues were medical causation and whether the dose exposure was

sufficient to contribute to the medical conditions alleged. A unanimous jury ruled

in favor of Colfax. The Tarvers filed a motion for new trial based on alleged juror

misconduct. The motion was denied by the trial court. The Tarvers lodged this

appeal.

JUROR MISCONDUCT

The Tarvers allege that the trial court erred in failing to grant their motion

for new trial. They contend that a juror, Jennifer Peterman (Peterman), responded

falsely to a voir dire question and, therefore, improperly biased the jury.

In discussing motions for new trial related to juror misconduct this court in

Uriegas v. Gainsco, 94-1400, pp. 13-14 (La.App. 3 Cir. 9/13/95), 663 So.2d 162,

170, writ denied, 95-2485 (La. 12/15/95), 664 So.2d 458, said:

A decision to deny a motion for new trial based upon jury misconduct
is reviewed pursuant to an abuse of discretion standard. Wright v.
Hirsch, 560 So.2d 835 (La.1990). Peremptory grounds for granting a
new trial in a civil jury case are present if it is shown that the jury was

bribed or behaved improperly so that impartial justice has not been
done. La.Code Civ.P. art. 1972(3). Otherwise, a trial judge is granted
wide discretion in allowing or denying the motion. La.Code Civ.P.
art. 1973. Improper behavior by a juror or jury is not defined and
must be determined by the facts and circumstances of each particular
case. Green v. Dupre, 520 So.2d 761 (La.App. 3 Cir. 1987), writ
denied, 522 So.2d 568 (La.1988); Blandino v. Brown Erection Co.,
341 So.2d 577 (La.App. 2 Cir.1977).

The possibility that the decision making process was tainted by
an outside influence should not be overlooked as insignificant. Willis
v. Louisiana Power & Light Co., 524 So.2d 42 (La.App. 2 Cir.), writ
denied, 525 So.2d 1059 (La.1988). However, not every instance of
jury misconduct necessitates the granting of a new trial. Gormley v.
Grand Lodge, 503 So.2d 181 (La.App. 4 Cir.), writ denied, 506 So.2d
1227 (La.1987). Instead, the burden falls upon the mover to prove
that the level of behavior was of such a grievous nature as to preclude
the impartial administration of justice. Id.

In this case, Peterman was asked if she knew or had any affiliation with

Colfax’s counsel, Ray Brown. Peterman responded in the negative and was

subsequently seated as a juror and was selected as jury foreman.

After trial, the Tarvers became aware that Ray Brown’s wife attended the

trial on several occasions. In the course of such attendances, she and Peterman

recognized each other. Peterman did not report this to the court.

The Tarvers filed a motion for new trial and request for discovery. The trial

court allowed limited discovery and questioning of Peterman regarding her

relationship to Ray Brown’s wife. In the course of that discovery, it was revealed

that more than a decade before this trial, Peterman had worked as a part time court

reporter on social security claims in which Ray Brown’s wife was involved as

counsel. The two became acquainted but drifted apart before ever discussing

spouses. Discovery revealed no contact between the two in the ensuing years. The

trial court denied the motion for new trial.

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Our review of the record reveals no behavior ―of such a grievous nature as to

preclude the impartial administration of justice.‖ The trial court did not abuse its

discretion in denying the motion for new trial.

ADMISSIBILITY OF EXPERT TESTIMONY

The Tarvers allege that the trial court erred in permitting cumulative and

prejudicial testimony by the Colfax’s expert witnesses.

In Langlinais v. Dearman, 07-44, p. 10 (La.App. 3 Cir. 5/30/07), 957 So.2d

945, 951, this court discussed the admission of cumulative evidence as follows:

While the trial court is afforded great discretion in determining the
admissibility of expert witness testimony, when that testimony may
prove to be cumulative the trial court should make sure that the
testimony fulfills three conditions:

The first condition questions the relevance of the
testimony to be elicited. The second seeks to ascertain
that the fact finder will be aided by the testimony. The
third, balancing the probative value of this testimony
against substantial prejudice, confusion, or inefficiency,
guards against undue removal of reason from the fact
finding process, as well as waste. Want of any of the
three is fatal to admission of an expert's unbridled
testimony.

Frederick [v. Woman’s Hosp. of Acadiana,] 626 So.2d [467
(La.App. 3 Cir. 1993] at 471.

Keeping these conditions in mind, we must remember our
standard for reviewing the trial court's decision on the motion in
limine. "The admission of cumulative evidence is at the trial court's
discretion." Mitchell v. Limoges, 05-832, p. 3 (La.App. 3 Cir. 3/1/06),
923 So.2d 906, 908, writ denied, 06-723 (La. 6/16/06), 929 So.2d
1285.

In this case, the Tarvers contend the trial judge improperly allowed Colfax to

put on an excessive number of cumulative witnesses for the purpose of confusing

the jury. We have carefully reviewed the record and find that the trial judge

allowed eleven expert witnesses for each side. Though the various specialties of

Colfax’s experts do not exactly coincide with those of the Tarvers, the trial court

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clearly acted within its discretion in allowing their testimony. The Tarvers had

ample opportunity to cross examine and demonstrate any deficiencies in the

qualifications or conclusions of the various experts. Accordingly, we find no

abuse of discretion in the trial court’s admission of the testimony of Colfax’s

expert witnesses.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All

costs of these proceedings are taxed to the Tarvers.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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