Earl T. Lindsay, Jr. v. Ports America Gulfport, Inc.

• Court: Louisiana Court of Appeal
• Decided: June 15, 2021
• Docket: 2021-C-0236
• Status: Published

Opinion

EARL T. LINDSAY, JR., ET AL. * NO. 2021-C-0236

VERSUS * COURT OF APPEAL PORTS AMERICA * GULFPORT, INC., ET AL. FOURTH CIRCUIT * STATE OF LOUISIANA *******

CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01610, DIVISION “C” Honorable Sidney H. Cates, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dale N. Atkins)

David Cannella Christopher C. Colley Benjamin D. Rumph Kristopher Thompson BARON & BUDD, PC 2600 CitiPlace, Suite 400 Baton Rouge, LA 70808

COUNSEL FOR PLAINTIFFS/RELATORS

James M. Williams Inemesit O’Boyle Erin B. Rigsby CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP One Galleria Boulevard, Suite 1100 Metairie, LA 70001

Jason F. Giles Anthony Joseph Milazzo, III Justin A. Reese Brian Lee King THE KING FIRM, LLC 2912 Canal Street New Orleans, LA 70119

Randall Edward Treadaway TREADAWAY BOLLINGER, LLC 406 North Florida Street, Suite 2 Covington, LA 70043

Richard P. Sulzer SULZER & WILLIAMS, LLC 201 Holiday Boulevard, Suite 335 Covington, LA 70433

Gus David Oppermann, V WHEAT OPPERMANN, PLLC 848 Heights Boulevard Houston, TX 77007

John Kearney Nieset CHRISTOVICH & KEARNEY, LLP 601 Poydras Street, Suite 2300 New Orleans, LA 70130

Jacque Pierre DeGruy PUSATERI, JOHNSTON, GUILLOT & GREENBAUM, LLC 1100 Poydras Street, Suite 2250 New Orleans, LA 70163

Kevin J. LaVie Meredith Blanque PHELPS DUNBAR, LLP 365 Canal Street, Canal Place, Suite 2000 New Orleans, LA 70130

Alan Guy Brackett MOULEDOUX BLAND LEGRAND & BRACKETT, L.L.C. 701 Poydras Street, Suite 4250 New Orleans, LA 70139

Desiree W. Adams TAYLOR, WELLONS, POLITZ & DUHE, APLC 1515 Poydras Street, Suite 1900 New Orleans, LA 70112

Anthony M. Williams ENTERGY SERVICES, LLC 639 Loyola Avenue, 26th Floor New Orleans, LA 70113

COUNSEL FOR DEFENDANTS/RESPONDENTS

WRIT GRANTED; JUDGMENT VACATED AND REMANDED; STAY LIFTED JUNE 15, 2021 PAB TGC DNA

This case involves the wrongful death and survival actions of the heirs of

Earl T. Lindsay, Sr. Plaintiffs/Relators, Earl T. Lindsay, Jr. and Jocelyn Lindsay

Butler, seek review of the district court’s March 18, 2021, judgment, which

granted Intervenors’/Respondents’, Reginald Rivers and Mosi Makori, re-urged

motion to compel DNA testing, pursuant to La. R.S. 9:396. For the reasons that

follow, we grant Plaintiffs’ writ application, vacate the district court’s judgment,

and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

In February 2015, Earl T. Lindsay, Sr. (“Decedent”) was diagnosed with

asbestos-related lung cancer. Shortly after his diagnosis, on February 18, 2015, he

succumbed to the disease. On June 23, 2015, Earl T. Lindsay, Jr. and Jocelyn

Lindsay Butler (collectively “Plaintiffs”), Decedent’s natural children, were placed

in possession of Decedent’s pending mesothelioma claim. On February 17, 2016,

Plaintiffs filed an original petition for damages and claims for wrongful death and

survival actions against Decedent’s former employers and their insurers.

1 Petition for Intervention

On May 1, 2017, Reginald Rivers and Mosi Makori, on behalf of his father

Lyndon Rivers, (collectively “Intervenors”), filed a petition to intervene in the

original petition for damages filed by Plaintiffs. Intervenors alleged that Decedent

was the biological father of Reginald and Lyndon Rivers. In December 2017,

Intervenors filed their first amending and/or supplemental petition for intervention

and to establish paternity. In this pleading, Intervenors alleged that Decedent

acknowledged Intervenors as his biological children and held himself out as

Intervenors’ biological father during his lifetime.

Exception of Prescription

In response to Intervenors’ petition to intervene, Plaintiffs and Defendants,

SSA Gulf, Inc., Ports America Gulfport, Inc., Hartford Accident and Indemnity

Company, Crowley Marine Services, Inc., and James J. Flanagan Shipping

Corporation, filed peremptory exceptions of prescription, which were scheduled

for hearing on November 9, 2018. On November 29, 2018, the district court

sustained Plaintiffs and Defendants’ exceptions of prescription, and Intervenors

appealed.

This Court, on December 4, 2019, vacated the district court’s judgment and

remanded the case to the district court with the following instructions:

We find the trial court erred in dismissing with prejudice the petition to intervene. Applying the law and facts at hand, we find remand to the trial court appropriate for a hearing to allow Intervenors an opportunity to establish decedent’s paternity, which has not been addressed. After a hearing, the trial court is instructed to determine whether Intervenors meet the requirements of La. C.C. art. 2315.2.

2 Lindsay v. Ports Am. Gulfport, Inc., 19-0360, pp. 11-12 (La. App. 4 Cir. 12/4/19),

286 So.3d 534, 541, writs denied, 20-0038 (La. 3/9/20), 294 So.3d 479, and 20-

0017 (La. 3/9/20), 307 So.3d 1028.

Motion to Compel

On September 20, 2018, before the district court heard the exceptions of

prescription, Intervenors filed a motion to compel DNA testing of Plaintiffs and

Intervenors. Intervenors attached, as exhibits to their motion to compel, affidavits

from five individuals, purporting to have a relationship with Decedent. The

affiants attested that Decedent publicly acknowledged Intervenors and held himself

out to be their father. Plaintiffs filed an opposition memorandum and attached, as

exhibits, their own deposition testimony, wherein they testified Decedent denied

having any children, other than his three natural children1. There was no ruling on

this motion by the district court.

Re-urged Motion to Compel

On December 1, 2020, after this Court remanded the matter to the district

court, Intervenors re-urged their motion to compel DNA testing of Plaintiffs and

Intervenors, which came for hearing on March 11, 2021.2 At the conclusion of the

hearing, the district court granted the motion. A judgment was issued on March

18, 2021, wherein the district court granted the re-urged motion to compel DNA

1 The decedent’s third natural child died prior to the pending litigation. 2 While the affidavits were attached to Intervenors’ original motion to compel and appear in the record, they were not attached to the re-urged motion, nor were they offered, filed and introduced into the record. In addition, Plaintiffs did not file an opposition to the re-urged motion to compel; rather, during the hearing on the re-urged motion to compel, Plaintiffs orally adopted their original opposition wherein they attached their deposition testimony. This Court has “recognize[d] the well-established principle that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” See Bottle Poetry, LLC v. Doyle Rest. Group Franchise Co., LLC, 13-0406, p. 7 (La. App. 4 Cir. 1/15/14), 133 So.3d 60, 66 (quoting Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88).

3 testing and ordered the Plaintiffs and Intervenors to submit to DNA testing within

thirty (30) days of the signing of the judgment. Plaintiffs filed a notice of intent to

apply for supervisory writs and requested a stay of the proceedings, which the

district court granted. This timely filed writ application followed.

DISCUSSION

Plaintiffs assign three errors for review: (1) Louisiana Revised Statute 9:396

does not apply to compel the DNA testing of alleged siblings; (2) the district court

violated Plaintiffs’ equal protection and due process rights in ordering DNA

testing; and (3) Intervenors failed to prove a reasonable possibility of paternity by

clear and convincing evidence.

Standard of Review

“A party seeking to compel discovery bears the burden of proving that the

matters sought to be discovered are relevant. In determining whether to compel

discovery, the trial judge has vast discretion.” Fat Catz Music Club, Inc. v.

Fountain Servs. of La., Inc., 20-0586, 2021 WL 1571560, at *4 (La. App. 4 Cir.

4/21/21)(quoting State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-0458, p. 18

(La. App. 3 Cir. 6/20/01), 790 So.2d 673, 685). In addition, “absent a clear

showing of abuse, a trial court’s broad discretion in regulating pre-trial discovery

will not be disturbed on appeal.” Id. (citation omitted). Notwithstanding,

“questions of law, such as the proper interpretation of a statute, are reviewed by

appellate courts under the de novo standard of review, and the appellate court is not

required to give deference to the lower court in interpreting a statute.” Jarquin v.

Pontchartrain Partners, L.L.C., 19-0737, p. 7 (La. App. 4 Cir. 1/22/20) 289 So.3d

1129, 1134 (citing Carver v. La. Dep’t of Pub. Safety, 17-1340, p. 4 (La. 1/30/18),

4 239 So.3d 226, 230). As this case involves mixed questions of fact and questions

of law, we employ both abuse of discretion and de novo standards of review.

Court Ordered DNA Testing under La. R.S. 9:396

First, Plaintiffs contend the district court erred in ordering Plaintiffs to

submit to DNA testing because La. R.S. 9:396 does not apply to compel the DNA

testing of alleged siblings. Intervenors, on the other hand, argue the proof of

Decedent’s paternity to Reginald and Lyndon Rivers is a relevant fact to this

litigation, and the district court acted within its discretion under La. R.S. 9:396 to

order DNA testing of Plaintiffs.

Louisiana Revised Statute 9:396 provides in pertinent part:

A. (1) Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court may, on its own initiative, or shall, under either of the following circumstances, order the mother, child, and alleged father, or the mother’s husband or former husband in an action en desaveu, to submit to the collection of blood or tissue samples, or both, and direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures:

(a) Upon request made by or on behalf of any person whose blood or tissue is involved, provided that such request is supported by a sworn affidavit alleging specific facts which either tend to prove or deny paternity.

(b) Upon motion of any party to the action made at a time so as not to delay the proceedings unduly.

(2) If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

The Louisiana Supreme Court, in Sudwischer v. Estate of Hoffpauir, 589

So.2d 474 (La. 1991), on rehearing, examined the issue of whether La. R.S. 9:396

permitted a biological child to be compelled to provide DNA testing to aid in

proving paternity and filiation of an illegitimate child. In Sudwischer, the plaintiff,

5 an alleged natural child, filed an action to establish filiation and prove paternity of

her alleged deceased natural father. The plaintiff’s father died intestate, leaving a

surviving spouse, an adopted son, and a legitimate daughter. In an effort to

establish filiation to the decedent, the plaintiff filed a motion to compel the

decedent’s legitimate daughter to submit to a blood test. The trial court denied the

plaintiff’s motion on the ground that La. R.S. 9:396 did not mandate the blood

testing of siblings. Id. The appellate court denied writs, and the Supreme Court

reversed the lower courts’ ruling.3 In concluding that the statute was not

prohibitory, the Sudwischer Court opined that “[t]here is no indication that the

statutory language [in La. R.S. 9:396] expresses a deliberate policy of limitation.”

Id. at 475. The Supreme Court reasoned that the illegitimate child’s emotional and

financial interest in knowing her father outweighed the natural child’s privacy

interest, there were no religious or physical obstacles to prevent the natural child

from providing DNA, and the DNA testing would produce relevant evidence to be

used in evaluating the illegitimate child’s claim. Id. at 476.

Thus, based on the foregoing, we conclude La. R.S. 9:396 does not

automatically prohibit a sibling from being compelled to submit to DNA testing.

This assignment of error lacks merit.

Due Process/Reasonable Probability of Paternity

Plaintiffs next argue that the compulsory DNA testing ordered by the district

court violated their constitutionally protected due process rights, and Intervenors

failed to prove a reasonable probability of paternity. We agree.

In In Interest of J.M., 590 So.2d 565 (La. 1991), the Louisiana Supreme

Court examined whether an individual’s constitutional right to due process is

3 Sudwischer v. Estate of Hoffpauir, 577 So.2d 1 (La. 1991).

6 implicated when compulsory blood testing is ordered. In In Interest of J.M., the

plaintiff filed a paternity action against her former spouse, with whom she was

separated from at the time of the child’s conception, and against the defendant.

The plaintiff alleged that she and the defendant had an exclusive sexual

relationship that was proximate in time with the child’s conception. The plaintiff

petitioned the court for both her former spouse and the defendant to complete

blood testing. The defendant denied the plaintiff’s allegations, and in response, the

defendant filed a rule for protective order, arguing that the compulsory blood test

would violate his constitutional rights. The trial court granted the defendant’s

protective order, but the appellate court reversed.

On review, the Louisiana Supreme Court quoted Mathews v. Eldridge, 424

U.S. 319 (1976), wherein the United States Supreme Court set forth the factors to

be considered in determining whether a proposed procedural safeguard is required

by due process, and wrote:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

In Interest of J.M., 590 So.2d at 569. The Supreme Court explained, “before the

court may issue an order for compulsory blood testing, the moving party must

show that there is a reasonable possibility of paternity.” Id. at 568. Moreover, “in

cases in which paternity is contested and a party to the action refuses to voluntarily

undergo a blood test, a show cause hearing must be held in which the court can

determine whether there is sufficient evidence to establish a prima facie case

which warrants issuance of a court order for blood testing.” Id. The Supreme

7 Court concluded that court-ordered blood testing for paternity “require[s] a

showing, on a rule to show cause, at which the parties have an opportunity to

present evidence regarding the mother’s relationship with the alleged father, with

rights of cross-examination and confrontation of witnesses, and in which counsel

may present oral argument to the court.” Id. at 570.

In the case sub judice, review of the record shows that during the re-urged

motion to compel hearing, the parties presented only oral argument to the district

court before compulsory DNA testing was ordered. The hearing, as explained in In

Interest of J.M., should have consisted of evidence presented in support of or in

opposition to Intervenors’ mother’s alleged relationship with Decedent and

Decedent’s alleged acknowledgment of Intervenors, with the parties’ ability to

exercise their right to cross-examine and confront witnesses. We conclude the

hearing conducted by the district court was insufficient: 1) to protect Plaintiffs’ due

process rights before issuing an order for compulsory DNA testing; and, 2) to

determine whether Intervenors presented requisite evidence to establish the

reasonable possibility of paternity.

This assignment of error has merit.

CONCLUSION

For the foregoing reasons, we grant the writ application, vacate the district

court’s judgment and remand the matter for an evidentiary hearing consistent with

this writ opinion.

WRIT GRANTED; JUDGMENT VACATED AND REMANDED; STAY LIFTED

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