Robert Sensat v. R360 Environmental Solutions, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-623

ROBERT SENSAT

VERSUS

R360 ENVIRONMENTAL SOLUTIONS, INC., ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-24-13
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Michael W. Robinson
Pucheu, Pucheu & Robinson, LLP
Post Office Box 1109
Eunice, LA 70535-1109
(337) 457-9075
COUNSEL FOR PLAINTIFF/APPELLANT:
Robert Sensat

Robert E. Kerrigan, Jr.
Raymond C. Lewis
Deutsch Kerrigan, L.L.P.
755 Magazine Street
New Orleans, LA 70130
(504) 593-0697
COUNSEL FOR DEFENDANTS/APPELLEES:
R360 Environmental Solutions, Inc.
Michael Spell

PICKETT, Judge.

The plaintiff appeals the trial court’s judgment awarding him $1,000 in

medical expenses in accordance with the jury’s verdict, which awarded him $2,500

in medical expenses and assigned him 60% fault for the injuries he suffered in the

accident at issue. For the following reasons, we affirm the judgment of the trial

court.

FACTS

On May 2, 2012, Robert Sensat delivered waste products for his employer to

a facility owned and operated by R360 Environmental Solutions, Inc. It had been

raining, and the truck Mr. Sensat was driving got stuck in mud as he drove on

R360’s facility. Mr. Sensat sought the assistance of R360’s employee, Michael

Spell, to free the truck. Mr. Spell used a tractor to pull the truck from the mud.

During that maneuver, Mr. Sensat’s truck overturned.

On January 14, 2013, Mr. Sensat sued R360, US Liquids of LA., L.P.

(hereinafter referenced together with R360 Environmental Solutions, Inc. as

R360), and Mr. Spell, alleging that R360’s failure to properly maintain its facility

and Mr. Spell’s negligence contributed to his truck becoming stuck and

overturning and that he was injured as a result of their negligence. He sought to

recover general and special damages for his injuries. American Interstate Insurance

Company, the workers’ compensation insurer of Mr. Sensat’s employer, intervened

to recover amounts it paid in workers’ compensation benefits to Mr. Sensat.

Shortly after the accident occurred, Mr. Sensat’s supervisor accompanied

him to have a drug screen performed. The drug screen revealed the presence of

THC (marijuana) and hydrocodone (Norco) in Mr. Sensat’s system, but it did not

quantify the concentration of the drugs. Mr. Sensat filed a motion in limine to

prevent the drug screen results from being introduced into evidence and to prevent

the defendants’ expert neurologist from testifying as to any effect the marijuana

and hydrocodone may have had on Mr. Sensat when the accident occurred and on

causation. The trial court denied the motion.

During jury selection, multiple prospective jurors indicated that they had

“zero tolerance” or similar beliefs regarding drug use and that they would assume

the presence of drugs in Mr. Sensat’s system contributed to the occurrence of the

accident and/or Mr. Sensat’s alleged injuries. Each party had six peremptory

challenges. Neither party challenged ten of the empaneled jurors. Mr. Sensat

exhausted his six peremptory challenges before twelve jurors were empaneled. He

attempted to have two of the last nine empaneled jurors excluded, but the trial

court denied his challenges for cause of those two jurors.

The case was tried over the course of four days. Negligence in causing the

accident and causation of Mr. Sensat’s claimed injuries were contested by the

parties. The jury returned a unanimous verdict in favor of Mr. Sensat in the

amount of $2,500 for medical expenses. It assigned 60% fault to Mr. Sensat and

40% fault to the defendants. The trial court rendered judgment awarding Mr.

Sensat $1,000 in damages, together with legal interest thereon from the date of

judicial demand. Mr. Sensat filed a motion for judgment notwithstanding the

verdict or new trial, which the trial court denied. Mr. Sensat then filed this appeal.

ASSIGNMENTS OF ERROR

Mr. Sensat asserts that the trial court committed the following four errors

during the course of the trial, which he contends require reversal of the judgment in

his favor and remand for a new trial:

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1. The Trial Court erred in denying the Motions in Limine, and in not
excluding any reference to the [drug] screens taken immediately after
the accident showing the presence of THC and Hydrocodone, when
there was absolutely no evidence to suggest that these substances
played any part whatsoever in causing the accident, particularly when
there were no consecrations [sic] measured, and the defendants made
no effort to show that such substances played a part in affecting Mr.
Sensat[’]s ability to be pulled by a bulldozer out of the mud.

2. The Trial Court erred in not properly applying Article 403 of the
Louisiana Code of Evidence, excluding evidence which was
marginally relevant, if at all, since the probative value for showing
what the defendants suggested, that Mr. Sensat did not always follow
the rules, was far outweighed by prejudicial effects of the perception
by the jury that the presence of drugs in Mr. Sensat’s system, meant
that Mr. Sensat was 60% at fault of [sic] being pulled by a bulldozer,
and that he suffered no injuries and that he should not recover for his
injuries.

3. The Trial Court erred in negating completely the provisions of the
Louisiana Code of Civil Procedure concerning jurors, because the
judge allowed jurors to be impaneled, simply because they answered
they would be fair and follow the judge’s instructions despite having
previously making [sic] it very plain they would be prejudice [sic]
against Mr. Sensat and would not give him a fair trial.

4. The Trial Court errored [sic] in not excusing for cause all jurors who
plainly stated they would not be fair to Mr. Sensat, regardless of any
statements they made in response to the usual rehabilitation questions,
given that so many jurors stated they would not be fair for the same
reason, and the jury was essentially poisoned against Mr. Sensat, such
that the trial was long since [sic] over before the first witness was
called to the stand.

Failure to Brief

The defendants point out that Mr. Sensat did not brief his first two

assignments of error regarding the trial court’s denial of his request to exclude any

reference to the drug screens taken shortly after the accident occurred which

showed the presence of marijuana and hydrocodone in his system. Uniform

Rules—Courts of Appeal, Rule 2-12.4(B)(4) provides:

(4) All assignments of error and issues for review must be
briefed. The court may consider as abandoned any assignment of error
or issue for review which has not been briefed.

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In accordance with this rule, Mr. Sensat’s assignments of error one and two are

deemed abandoned. See also Cook v. St. Genevive Health Care Servs., Inc., 19-

300 (La.App. 3 Cir. 11/6/19), 283 So.3d 574.

Jury Selection

Mr. Sensat’s third and fourth assignments of error address the trial court’s

determinations that: (1) numerous jurors honestly answered its questions as to

whether they could put aside their personal opinions regarding Mr. Sensat’s use of

drugs when not working and would follow the law as instructed, and (2) these

jurors were “rehabilitated” such that they could fairly evaluate Mr. Sensat’s claims

as instructed. Mr. Sensat made fourteen challenges for cause during jury selection.

Eight of his challenges were granted; six were denied. He urges that because

fourteen of the thirty potential jurors initially indicated they could not put aside

their personal beliefs, this case is unlike other cases where trial courts were held to

have properly concluded that potential jurors were rehabilitated by the trial courts’

and parties’ discussions and questioning. He does not, however, cite or discuss

any legal or jurisprudential support for his arguments.

The importance of a juror’s ability to be fair and impartial is addressed in

La.Code Civ.P. art. 1765(2), which provides that a juror may be challenged for

cause when he “has formed an opinion in the case or is not otherwise impartial, the

cause of his bias being immaterial.” When a juror’s ability to be impartial is

challenged, the trial court must determine whether the juror can put aside his

personal thoughts and apply the law as instructed. “[I]f a prospective juror is able

to declare to the [trial] court’s reasonable satisfaction that he could render an

impartial verdict according to the law and evidence, a challenge for cause to that

juror is properly denied.” Scott v. Am. Tobacco Co., 01-2498, p. 6 (La. 9/25/01),

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795 So.2d 1176, 1182. The trial court is vested with broad discretion in ruling on

challenges for cause, and its rulings on such challenges will be reversed only when

“a review of voir dire as a whole indicates an abuse of discretion.” Bannerman v.

Bishop, 28,382, p. 3 (La.App. 2 Cir. 7/2/96), 688 So.2d 570, 572, rev’d on other

grounds on reh’g, (10/16/96), writ denied, 96-2755 (La. 1/10/97), 685 So.2d 146.

Trial courts may consider criminal jurisprudence when addressing challenges for

cause in civil trials. Bannerman, 688 So.2d 570.

In Simms v. Progressive Insurance Co., 38,804 (La.App. 2 Cir. 9/29/04),

883 So.2d 473, writ denied, 04-2871 (La. 1/28/05), 893 So.2d 78, the appellants

argued that the trial court’s refusal to remove six individuals for cause due to bias

constituted error which deprived them of a fair trial. The Simms court looked to

criminal jurisprudence before addressing this issue, stating:

In State v. Coates, 27,287 (La.App. 2 Cir. 9/27/95), 661 So.2d
571, writ denied, 95-2613 (La. 2/28/96), 668 So.2d 365, this court
addressed the trial court’s discretion in ruling on challenges for cause
as follows:

In order to preserve the issue for appeal, the
defendant must object to the ruling refusing to sustain a
challenge for cause. If the defendant has exhausted all of
his peremptory challenges . . . no showing of prejudice is
needed; he need only show the erroneous denial of a
challenge for cause.

....

A refusal by a trial judge to excuse a prospective
juror on the ground he is not impartial is not an abuse of
discretion where, after further inquiry or instruction
(frequently called “rehabilitation”), the potential juror has
demonstrated a willingness and ability to decide the case
impartially according to the law and the evidence. “[A]
challenge for cause should be granted, even when a
prospective juror declares his ability to remain impartial,
if the juror’s responses as a whole reveal facts from
which bias, prejudice, or inability to render judgment

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according to law may be reasonably inferred.” (Citations
omitted.)

Simms, 883 So.2d at 479-80.

Here, as in Simms, all of the empaneled jurors who initially indicated that

they had “zero tolerance” for a person’s use of drugs like marijuana and

hydrocodone when working and believed that Mr. Sensat’s use of the drugs

somehow contributed to the accident were ultimately deemed to be rehabilitated.

The trial court and counsel for both parties discussed the issue with the potential

jurors and explained to them that Mr. Sensat’s drug use was not the “crux” of the

case, that all the facts surrounding the accident had to be considered in deciding the

case, and that, as jurors, they must apply the law as instructed by the trial court to

the facts presented by the parties. In this process, the jurors learned how the

accident occurred and the parties’ claims that the other party was at fault in causing

the accident and why. The parties also informed the potential jurors that Mr.

Sensat had prior injuries to his back and left leg and that he had complaints after

the accident similar to the complaints he had before the accident. They also

informed the jury of their medical expert’s opinions as to whether or not Mr.

Sensat was injured in the accident. Thereafter, the six jurors at issue answered

“yes” when asked if they would follow the trial court’s instructions. Though these

six jurors initially expressed harsh personal sentiments about drug use, “they also

indicated that they could comply with the law as instructed by the [trial] court . . .

This is what our judicial system requires of jurors.” Id. at 480.

Townes v. Liberty Mutual Insurance Co., 09-2110 (La.App. 1 Cir. 5/7/10),

41 So.3d 520, presented a scenario very similar to this case. In Townes, the

plaintiff had been drinking before being involved in the automobile accident at

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issue, and testing established that he was legally intoxicated. As in this case, a

number of the jury panel members indicated they would find such a driver at fault

simply because he was driving a car involved in the accident. The trial court posed

the following to those individuals:

[I]f selected on a jury, you will decide what the facts of the case are.
The Court will give you the law. The question is, can you apply the
law to the facts as you determine them to be even if you disagree with
what the law is?”

Townes, 41 So.3d at 530. The jurors all indicated that they could put their personal

opinions aside and follow the law as instructed. The first circuit found no abuse of

discretion by the trial court in denying the plaintiffs’ challenges for cause.

Here, after explaining that the jurors had a duty to apply the law to the facts

as it instructed, the trial court and defense counsel posed similar questions to the

challenged jurors. The trial court was in the best position to determine whether the

jurors were honest when they stated they would follow the trial court’s instructions

when deciding the case, and we find no abuse of discretion in the trial court’s

conclusion that the jurors had been rehabilitated or its denial of Mr. Sensat’s

challenges for cause.

The defendants urge that Mr. Sensat waived his right to appeal the trial

court’s rulings on his challenges for cause because he did not object to the trial

court’s determinations that the jurors at issue had been rehabilitated or to its

denials of his challenges for cause. See Coates, 661 So.2d 571. We further note

Mr. Sensat did not use all of his peremptory challenges to remove jurors he

challenged for cause. Rather, he used peremptory challenges as backstrikes to

remove two jurors he had previously accepted, instead of using them to strike the

two jurors at issue herein, which has also been held to result in a waiver of his right

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to appeal the seating of these two jurors. See State v. Magee, 11-574, p. 30 (La.

9/28/12), 103 So.3d 285, 309, which restated the longstanding tenet: “when the

defendant does not use an available peremptory challenge to correct an erroneous

ruling on a challenge for cause, the ability to change the ultimate composition of

the jury selected to try the case is not impaired.” Our review of the jurisprudence

has not revealed an instance in which the above precepts have been applied in civil

cases; therefore, we addressed these assigned errors in the interest of justice.

Lastly, we observe that La.Code Civ.P. art. 1797 requires that only nine

jurors concur to render a verdict. Accordingly, even if Mr. Sensat’s arguments that

the unanimous jury was tainted with two prejudiced jurors who should have been

dismissed for cause are true, ten, not just nine, jurors who were not challenged for

cause concurred in the verdict. Therefore, Mr. Sensat has not shown that he was

prejudiced by the jurors whose challenges for cause were denied.

DISPOSITION

For the reasons discussed above, the judgment of the trial court is affirmed.

All costs are assessed to Robert Sensat.

AFFIRMED.

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