Jeremy Faciane and Faith Faciane Versus Morteza Shamsnia, M.D.

• Court: Louisiana Court of Appeal
• Decided: August 9, 2025
• Docket: 25-C-352
• Status: Unknown

Opinion

JEREMY FACIANE AND FAITH FACIANE NO. 25-C-352

VERSUS FIFTH CIRCUIT

MORTEZA SHAMSNIA, M.D., ET AL. COURT OF APPEAL

STATE OF LOUISIANA

August 09, 2025

Linda Tran First Deputy Clerk

IN RE UNITED EDUCATORS INSURANCE, A RECIPROCAL RISK RETENTION GROUP

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 756-172

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED; RULINGS REVERSED; MATTER REMANDED; STAY DENIED

Relator, United Educators Insurance, A Reciprocal Risk Retention Group

(“United”), seeks review of the trial court’s July 31, 2025 ruling that partially

granted a joint motion in limine filed by plaintiffs, Ashleigh Holloway and Faith

Faciane, individually and on behalf of her minor son, Jeremy Faciane, and the trial

court’s August 5, 2025 ruling that denied relator’s motion for partial

reconsideration of the July 31, 2025 ruling and denied relator’s motion to stay. In

their motion,1 plaintiffs sought the exclusion of reference at trial or the listing on

the jury interrogatory form of the Greater New Orleans Expressway Commission

(“GNO”) or any other third party. Plaintiffs argued that United has produced no

evidence of fault of any other party than those named in the lawsuits; thus, United

1 Plaintiffs raised other evidentiary issues in their motion. However, those issues are not the subject of the instant writ application and will not be addressed.

25-C-352 should not be allowed to argue to the jury and/or make any reference at trial

regarding the fault of a third party.

In opposition, United argued that the fault of GNO is relevant to the matter

and should referenced to the jury and included on the jury verdict form. It averred

that the blow-out Ms. Holloway’s vehicle experienced on the Causeway Bridge

placed its occupants in a far more dangerous position than the scenario of where

she could have moved her vehicle onto a suitable shoulder. It contended GNO has

the relevant duties in connection with the maintenance, operation, and safety of the

Causeway Bridge and should be subject to Louisiana’s assumption of duty

doctrine. As such, United asserted that GNO should be apportioned fault in this

matter.

Louisiana law mandates that a defendant assert its affirmative defenses,

including the affirmative defense of the fault of others, in its answer. Amedee v.

Aimbridge Hosp. LLC, 21-01906 (La. 10/21/22), 351 So.3d 321, 332. La. C.C. art.

2323(A) provides that in an action for damages where a person suffers injury, the

degree or percentage of fault of all persons causing or contributing to the injury,

death, or loss shall be determined, regardless of whether the person is a party to the

action or a nonparty.

Upon review, we conclude that the trial court erred in granting plaintiffs’

Motion in Limine. It is undisputed that defendant pled the affirmative defense of

third-party fault in its answer. The proper procedural vehicle for challenging a

timely-asserted affirmative defense is a motion for summary judgment, rather than

a motion in limine. See Robinette v. Lafon Nursing Facility of the Holy Family,

15-1363 (La. App. 4 Cir. 6/22/17), 223 So.3d 68, 75. Accordingly, we grant this

writ application and reverse the trial court’s July 31, 2025 and August 5, 2025

rulings on plaintiffs’ Motion in Limine.

2 The matter is remanded to the trial court for further proceedings. Relator’s

request for a stay is denied.

Gretna, Louisiana, this 9th day of August, 2025.

JGG FHW SUS

3 JEREMY FACIANE AND FAITH FACIANE NO. 25-C-352

JOHNSON, J., DISSENTS, IN PART, WITH REASONS

I, respectfully, dissent, in part, from the majority disposition in this matter.

Here, the trial court granted Plaintiffs’ motion in limine as to the allocation of fault

for GNO. In its written reasons for denying reconsideration, the trial court stated

that no third-party demand has been brought against GNO, and that defense was

unpursued in discovery. It further stated that United has not designated an expert

witness to testify as to negligent design, and United has not presented any

documentary evidence addressing that point.

A trial court is afforded broad discretion in its consideration of evidentiary

matters, including motions in limine, which are not to be disturbed on review absent

a clear abuse of that discretion. George v. Progressive Waste Solutions, of La., Inc.,

22-1068 (La. 12/9/22), 355 So.3d 583.

After review, I find that the trial court partially erred in granting Plaintiffs’

motion in limine. I find that the trial court erred in excluding allocation of third-

party fault from the jury verdict form.2 While the trial court cannot exclude the

allocation of fault of a non-party on the jury verdict form for this matter, I opine that

United has failed to show that it will present any evidence of its defense that GNO

may be at fault at trial. None of the reports or other documentary evidence presented

insinuate that fault for the accident that occurred on the Causeway Bridge was due

2 La. C.C. art. 2323(A) provides, in pertinent part, “In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty….”

25-C-352 to negligent design. The record before us does not contain any deposition testimony

that the accident was caused by negligent design. Although United argues to this

Court that the exclusion of any reference to third-party fault deprives it from

presenting a defense, ultimately, United has failed to show how it would present

admissible evidence to support its defense that GNO is at fault in this matter.

Therefore, I further find that the trial court did not err in excluding references to

GNO’s fault at trial.

Accordingly, I would grant the writ, in part, and deny it, in part.

MEJ

2 JEREMY FACIANE AND FAITH FACIANE NO. 25-C-352

MARCEL, J., CONCURS IN PART, DISSENTS IN PART

In this case arising from a 2015 automobile rear-end collision on the

Causeway Bridge over Lake Ponchartrain, defendant United Educator’s Insurance

seeks supervisory review of the trial court’s July 31, 2025 ruling that partially

granted a joint motion in limine filed by plaintiffs, Ashleigh Holloway and Faith

Faciane, individually and on behalf of her minor son, Jeremy Faciane.

Upon review of the writ application and the judgments contained therein, I

find that the trial court erred in excluding allocation of third-party fault from the

jury verdict form. The appropriate procedural mechanism for dismissing an

affirmative defense is a motion for summary judgment, which has not been filed

here. To the extent the trial judge granted the motion in limine on the basis of an

Article 966 ‘absence of evidence’ analysis, such a determination constitutes legal

error.

Nevertheless, the trial court is afforded broad discretion in its consideration

of evidentiary matters, including motions in limine, which are not to be disturbed

on review absent a clear abuse of that discretion. George v. Progressive Waste

Solutions, of La., Inc., 22-1068 (La. 12/9/22), 355 So.3d 583. While it is not

within the judge’s discretion to exclude all argument or mention of defendant’s

affirmative defense of third-party fault since that defense has not been

appropriately dismissed, it is within the judge’s discretion to not allow defendant to

introduce evidence or testimony relating to that affirmative defense that has not

25-C-352 been produced in accordance with the court’s pre-trial order. The jury as fact-

finder will weigh the evidence presented in its allocation of fault.

Accordingly, I find this writ should be granted in part to reverse only that

portion of the July 31, 2025 judgment that grants plaintiffs’ motion in limine to

exclude the Causeway Commission from the jury verdict form. In all other

respects, this writ should be denied.

TSM

2 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. TRAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

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25-C-352 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Nancy A. Miller (DISTRICT JUDGE) George D. Fagan (Relator) Neal J. Favret (Respondent) Leila A. D'Aquin (Relator)

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