--- SO.3D ---, 2019 WL 364555 (LA.APP. 2019)
Facts: In a claim for workers’ compensation benefits, a claimant appealed a judgment excluding all of his evidence on the basis he failed to file a pretrial order pursuant to the court’s scheduling order, which resulted in the dismissal of his disputed claim for compensation for failing to carry his burden of proof. For the following reasons, the Court of Appeals of Louisiana vacated the judgment and remanded the matter for further proceedings.
The claimant, Juan Campos, filed a Disputed Claim for Compensation—1008 Form on August 31, 2015, against his employer, Unlimited Master Contractors, LLC (UMC), as well as defendants/employers Eddie Smith, Vanessa Smith, and LL5 Enterprises, LLC
(LL5), seeking workers’ compensation benefits for back, rib, and shoulder injuries he allegedly sustained in a work-related accident on July 11, 2015. Campos asserted that the accident occurred when he fell off the roof of a house located on Broad Street in New Orleans while he was installing plywood.
LL5 filed an answer denying all claims, while UMC denied that they had any employer–employee relationship with Campos and filed an exception of no cause of action. Campos filed a motion to strike the answers of LL5 and UMC on the basis the pleadings were not filed by licensed attorneys. He further sought a default judgment against the two defendants. According to a minute entry dated September 23, 2016, the workers’ compensation court granted Campos’s motion to strike LL5’s and UMC’s answers and entered a preliminary default judgment. There is nothing in the record indicating that Campos confirmed the preliminary default judgment against either LL5 or UMC.
Meanwhile, Eddie and Vanessa Smith (the Smiths) filed exceptions of no cause of action and no right of action, which were overruled after a hearing. Thereafter, in February 2017, the Smiths filed their answer. On September 26, 2017, the workers’ compensation court signed a Scheduling Conference Order, ordering that all pretrial statements be filed 30 days prior to the trial. The order further noted that trial was scheduled for February 15, 2018.
Approximately one week prior to the trial, on February 6, 2018, Campos filed an ex parte motion seeking to perpetuate his testimony for trial through a telephone deposition in lieu of his live testimony. Campos’s counsel represented that Campos had been deported to El Salvador in December 2017 and would be unable to be present for trial. The Smiths objected to the motion and a hearing was held. On March 13, 2018, the workers’ compensation court denied Campos’s motion “based on the facts and information presented.” However, the court ordered that upon receipt of documentation showing Campos’s unavailability for trial and the duration for which he would be unavailable, a video deposition could be taken, but did not order Campos to submit to or provide a video deposition.
On May 4, 2018, Campos submitted a letter from the U.S. Immigration and Customs Enforcement dated May 2, 2018, stating that Campos had been removed from the United States on November 9, 2017. Campos also submitted a copy of Section 212 of the Immigration and Nationality Act to show that because he has been removed from the United States, he is unable to return to the United States for a period of 10 years. Campos urged that based on these two documents, he had adequately demonstrated his unavailability for trial.
Thereafter, on May 21, 2108, Campos filed a motion to admit his June 26, 2017 deposition at trial in lieu of live testimony. His motion was not ruled upon prior to trial, which was held on May 23, 2018. At the beginning of the trial, the Smiths indicated that they had a motion to dismiss based on two grounds: Campos’s inability to be present at trial, arguing against the use of Campos’s June 2017 deposition on the basis it was a “discovery” deposition and not a “perpetuation” deposition, and the failure of Campos to file a pretrial statement.
Addressing the defendants’ motion to dismiss, the workers’ compensation judge noted that her prior February 2018 ruling regarding the use of deposition testimony in lieu of live testimony was not followed; specifically, Campos failed to submit a deposition in compliance with La. C.C.P. art. 1434. Furthermore, remarking that neither Campos nor the Smiths had filed a pretrial statement, the workers’ compensation judge struck all the witnesses and exhibits Campos indicated that he intended to offer into evidence during trial on the basis they were not listed in the pretrial statement and granted the Smiths’ motion to dismiss. Campos proffered his evidence, which included various exhibits and a statement regarding the content of a witness’s testimony.
The workers’ compensation court subsequently signed a written judgment on June 8, 2018, denying Campos’s motion to use his June 2017 deposition in lieu of live testimony and excluding all of his evidence at trial on the basis he failed to file a pretrial statement. The judgment concluded that Campos failed to meet his burden of proving that he sustained a work-related accident and injuries and dismissed Campos’s disputed claim for compensation with prejudice.
Issue: Did the workers’ compensation court abuse its discretion in excluding all of Campos’s witnesses and exhibits at trial on the basis his attorney failed to file a pretrial statement pursuant to the scheduling order of the court?
Analysis: The trial court has much discretion in imposing sanctions for a party’s failure to comply with scheduling orders, and its ruling will not be reversed absent an abuse of that discretion. In reviewing an imposed sanction, each case must be decided upon its own facts and circumstances.
In Benware v. Means, the Louisiana Supreme Court recognized that La. C.C.P. art. 1551 authorizes the dismissal of a case for a party’s disobedience of or disregard for court orders pertaining to pretrial procedure. However, it cautioned that “this extreme penalty obviously should seldom be imposed and should be reserved for only the most flagrant case.” It emphasized that a dismissal of a case for the violation of a pretrial order is a “draconian penalt[y] which should be applied only in extreme cases.” The supreme court went on to discuss the factors that should be considered in determining the appropriateness of the penalty for a pretrial order violation.
It noted that one important consideration is whether the misconduct was by the attorney or the client, or both. In discussing this factor, the supreme court referred to its earlier decision in Horton, wherein it reversed a sanction that granted a default judgment against a defendant whose attorney failed to comply with discovery orders issued by the trial court. In its decision, the Horton court discussed the fact that the record contained no evidence that the client participated in violating the trial court’s order. The Horton court also noted the four factors considered by the federal courts before granting a default as a sanction: (1) the willfulness of the offending party in refusing to comply; (2) whether less harsh penalties are effective; (3) whether the opposing party’s trial preparation was prejudiced by the offense; and (4) whether the client participated in the offense.
In addition to considering the client’s culpability in noncompliance, the supreme court in Benware also listed additional factors to consider in determining the appropriateness of the penalty for violating pretrial orders: “the stage of the proceeding at which the violation
occurred, the presence or absence of prejudice to the opposing party’s preparation of the case, and the nature and persistency of the misconduct that constitutes the violation.” Additionally, courts have required that the record show that the sanctioned party was clearly aware that his noncompliance would result in the dismissal of his case.
Considering these factors, the Court of Appeals of Louisiana held that the workers’ compensation court abused its discretion in imposing the harshest sanction against the Claimant—excluding all of his evidence—for his failure to file a pretrial statement. First, there is nothing in the record indicating that Campos had any part in or contributed in any way to his counsel’s failure to file a pretrial statement. For example, there is no indication that Campos refused to provide the necessary information for counsel to prepare the pretrial statement. When faced with the motion to dismiss for failing to file a pretrial statement, counsel for Campos offered absolutely no explanation.
Second, while his failure was inexcusable, the record shows that Campos’ counsel’s failure to file a pretrial statement did not prejudice the Smiths. In proffering his evidence, Campos’s counsel provided a statement to the court noting that all the evidence was known to the Smiths and had been previously provided to the Smiths well in advance of trial pursuant to discovery requests, which was not contradicted by the defendants.
Finally, there is no evidence of any gross disregard for the authority of the court and its efficient operation. This is not a case of repeated violations of pretrial orders and/or requests ignored by Campos. In fact, neither party complied with the trial court’s pretrial order to file a pretrial statement.
For the foregoing reasons, the court held that the workers’ compensation court erred in excluding all of Campos’s exhibits and witnesses at trial on the basis he failed to file a pretrial statement. Accordingly, the June 8, 2018, judgment was vacated and remanded for further proceedings.
Do you agree with the Court of Appeals’ assessment regarding Campos’s culpability in failing to produce the pretrial statement? Why or why not?
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