Lapuyade v. Rawbar, Inc.

190 So. 3d 1214, 15 La.App. 5 Cir. 705, 2016 WL 1535993, 2016 La. App. LEXIS 672
CourtLouisiana Court of Appeal
DecidedApril 13, 2016
DocketNo. 15-CA-705
StatusPublished
Cited by9 cases

This text of 190 So. 3d 1214 (Lapuyade v. Rawbar, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lapuyade v. Rawbar, Inc., 190 So. 3d 1214, 15 La.App. 5 Cir. 705, 2016 WL 1535993, 2016 La. App. LEXIS 672 (La. Ct. App. 2016).

Opinion

MARC E. JOHNSON, Judge.

lain this tort case, Plaintiff appeals the trial court’s sustaining of Defendants’ exceptions of prescription. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

Plaintiff, Francesca Lapuyade, filed suit on October 10, 2012 against Acme Oyster House (“Acme”) alleging she contracted salmonella poisoning after eating a lettuce wedge with blue cheese dressing and artichoke soup at its establishment located on Veterans Blvd. in Metairie on May 6, 2012. She alleged that she became ill the day after eating at Acme and was admitted to East Jefferson General Hospital on May 9, 2012, where she remained for eight days before being discharged on May 17, 2012. Plaintiff asserted Acme was negligént in failing to properly store, handle and prepare the food it served to its customers. Acme answered the lawsuit on December 6, 2012, denying, all allegations.1

Almost two years .after the incident, on April 2, 2014, Plaintiff amended her petition to add Little Tokyo Restaurant, Inc. (“Little Tokyo”), Moon Marine USA Corp. (“Moon Marine”), and their insurers as defendants. In the amended petition, Plaintiff alleged that she had dined at Little Tokyo restaurant located on N. Carroll-ton Ave. in New Orleans on April 29, 2012. Although she alleged that her ¡¿treating doctor believed the source of her food poisoning was Acme, which he noted in her medical records, Plaintiff stated that her treating doctor indicated for the first time in October 2013 that there had been a salmonella outbreak at the time Plaintiff became sick that had been traced to a product called “tuna scrape.” Plaintiff asserted that the source of this tuna scrape was Moon Marine, which had distributed its product to Little Tokyo.

Plaintiff again amended her petition on June 26, 2015, adding JFC International, Inc. (“JFC”) as a defendant. Plaintiff alleged. that JFC was advised by Moon Marine in April 2012 to contact its accounts, to which JFC distributed the tuna scrape, and notify the accounts that the tuna scrape had been recalled because an FDA investigation revealed the tuna was potentially ' contaminated with salmonella. Plaintiff asserted that JFC failed to notify Little Tokyo of the recall, which occurred prior to her dining at Little Tokyo and becoming ill.

On February 9, 2015, Moon Marine filed an exception of prescription asserting that [1217]*1217Plaintiffs petition against it was prescribed on its face, as it was not filed within one year from the .date of loss. Moon Marine pointed out that Plaintiff conceded in her amended petition that her initial petition against Acme did not interrupt prescription as to the other defendants because the parties were not joint tortfeasors. Moon Marine argued that the doctrine of contra non valentón, which was pled by Plaintiff in her amended petition, did not apply because Plaintiff could have discovered her claims against Moon Marine had she used reasonable diligence to determine the source of her salmonella infection. Thereafter, JFC and Little Tokyo filed their own exceptions of prescription, adopting Moon Marine’s evidence and argument.

11;After a hearing on Defendants’ exceptions -of.prescription, the trial court sustained the exceptions and dismissed Plaintiffs claims against Defendants with prejudice. Plaintiff appeals the maintaining of the exceptions of prescription.

ISSUES

Plaintiff raises three issues on appeal. First, she argues the trial court erred in finding that her claims against Moon Marine, JFC and Little Tokyo were prescribed. She also contends the trial court erred in ruling on the exceptions of prescription before hearing all the evidence. Second, Plaintiff asserts the trial court erred'in admitting excerpts from Dr. Richard Witzig’s deposition into evidence at the hearing on the exception of prescription bn the basis the requirements of La. C.C.P. art. 1450 were not met. Third, Plaintiff maintains the trial court erred in denying her motion to strike Moon Marine’s exhibit of a Google search screenshot taken from counsel’s cell phone, which was later admitted into evidence.

LAW & ANALYSIS

Admissibility of Dr. Witzig’s Deposition2

.Plaintiff argues that the trial court erred in allowing portidns of Dr. Witzig’s deposition that were attached as exhibits to Moon Marine’s exception of prescription into evidence in lieu of live testimony where Moon Marine failed to comply with La. C.C.P. art. 1450.

Article 1450 allows the use of a deposition, or parts thereof, at the trial or hearing of a -motion to be used against any party who'was present or represented at the taking of the deposition or who had reasonable notice under certain circumstances set forth in Subsection A. Plaintiff asserts Moon Marine failed to show that Dr. Witzig was unavailable under Subsection A(3)(a) or that he resided greater than 100 miles from the place of the hearing or was out of state under | (¡Subsection A(3)(b). ■ Plaintiff further maintains Moon Marine failed to give the required notice of. exceptional circumstances under Subsection A(3)(c) or the required notice for using the deposition of an expert witness under Subsection A(5).

In filing its exception of prescription, Moon, Marine attached excerpts of Dr. Witzig’s deposition as an exhibit. In her opposition to the exception, Plaintiff also attached.excerpts, of Dr. Witzig’s deposition as an exhibit. At the very beginning of the hearing on the exception of prescription, Moon Marine made a statement to the trial court referencing Dr. Witzig’s testimony. Plaintiff,objected to Moon Marine’s use of Dr. Witzig’s deposition rather than his live testimony. ■ Moon Marine responded that the testimony was sworn, and the trial court overruled the objection.

Thereafter, Plaintiff proceeded to call her witnesses. . At the conclusion of the [1218]*1218hearing, Moon Marine offered all of the exhibits attached to its exception of prescription and reply to Plaintiffs opposition to its ■ exception into evidence. Plaintiff likewise offered all of her attached- exhibits into evidence. ■ As a result, the trial court admitted all of the exhibits attached to the exception, opposition and reply into evidence.'

The jurisprudence indicates that a party, may waive or be estopped from making.an objection to the admission or exclusion of evidence based-on that party’s failure to object, an act he does or omits before the evidence is offered, or from some affirmative act he does after the court’s ruling on the evidence. Harkins v. MG. Mayer Yacht Services, 05-668 (La. App. 4 Cir. 12/13/06); 952 So.2d 709, 718. In Combs v. Hartford, 544 So.2d 583, 585 (La.App. 1st Cir.1989), writ denied, 550 So.2d 630 (La.1989),. the plaintiff filed a motion in limine seeking to |7exclude certain photographs, which was denied. Plaintiff noted his objection ■ for purposes of appeal. Thereafter, plaintiffs counsel began questioning the plaintiff, about the photographs to which, he had objected, and then introduced the photographs into evidence. The appellate court found that the plaintiff was precluded from assigning error to the inclusion of his own evidence. Additionally, in Acosta v. Lea, 56 So.2d 201 (La. App.

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Bluebook (online)
190 So. 3d 1214, 15 La.App. 5 Cir. 705, 2016 WL 1535993, 2016 La. App. LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapuyade-v-rawbar-inc-lactapp-2016.