STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1066
CONSOLIDATED WITH
09-1279
MARY PHYLLIS SOILEAU
VERSUS
SMITH’S TRUE VALUE AND RENTAL, ET AL.
************
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 69,770 HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and J. David Painter, Judges.
AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.
W. Glenn Soileau Jacques P. Soileau Soileau Law Offices P. O. Box 344 Breaux Bridge, LA 70517 (337) 332-4561 COUNSEL FOR PLAINTIFF/APPELLEE: Mary Phyllis Soileau J. Michael Percy Andrew P. Texada Stafford, Stewart & Potter P. O. Box 1711 Alexandria, LA 71309 (318) 487-4910 COUNSEL FOR DEFENDANTS/APPELLANTS: Deere & Company John Deere Limited PETERS, J.
These consolidated matters involve a dispute over discovery compliance. The
defendants, John Deere Limited and Deere & Company (also referred to collectively
as “Deere”), brought this appeal, seeking reversal of the trial court’s judgment
sanctioning them for failure to comply with its discovery order. The plaintiff, Mary
Phyllis Soileau, has answered the appeal, seeking additional sanctions. For the
following reasons, we reduce the award of expenses, affirm in all other respects, and
remand with instructions.
PROCEDURAL HISTORY ON APPEAL
The consolidation of these two matters arose because the defendants filed both
an appeal and a supervisory writ on the issues now before us. This court considered
the supervisory writ application and, on October 19, 2009, granted the application for
the limited purpose of consolidating it with the appeal. Soileau v. Smith’s True Value
and Rental, 09-1066 (La.App. 3 Cir. 10/19/10).
In concluding that the matter is now properly before us on appeal, we recognize
that the defendants have not made any allegation of irreparable harm or injury, and
note the general rule that judgments and orders dealing with discovery are
interlocutory matters which cannot be appealed absent some showing of irreparable
injury. La.Code Civ.P. art. 2083, Pitre v. Kero-Sun, Inc., 520 So.2d 1192 (La.App.
3 Cir. 1988). However, we also note that “all contempt judgments are now
considered final judgments, subject to immediate appeal.” Hodges v. Hodges, 02-
489, p. 9 (La.App. 3 Cir. 10/2/02), 827 So.2d 1271, 1276, writ denied, 02-2485 (La.
11/8/02), 828 So.2d 1122. See also Stiltner v. Stiltner, 00-2079 (La.App. 4 Cir.
11/8/00), 772 So.2d 909. ANALYSIS OF THE TRIAL COURT RECORD
This litigation arises from a November 1, 2007 accident wherein Ms. Soileau
sustained personal injuries when a John Deere Model 460 front end loader became
detached from a John Deere Model 4510 tractor and struck her right leg. Ms. Soileau
brought an action for damages against a number of defendants, including Deere &
Company, on April 21, 2008. She amended her petition on August 11, 2008, to name
John Deere Limited as a defendant.
The appeal now before us is based on the trial court’s determination that Deere
& Company and John Deere Limited violated its March 12, 2009 order directed at the
defendants’ obligation to provide specific information sought by the plaintiff through
discovery. The March 12, 2009 order reads in pertinent part as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that the defendants, John Deere Limited and Deere and Company, answer all of the Interrogatories and Request for Production of Documents previously sent to the defendants in compliance with Article 1458 of the Louisiana Code of Civil Procedure and shall provide the name of all persons answering the Interrogatories and shall answer all of the Interrogatories under oath.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff, MARY PHYLLIS SOILEAU, is entitled to depose Deborah Jean Morrison and the defendants shall give available dates to the Plaintiff for her deposition.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Deborah Jean Morrison, Deere and Company, and John Deere Limited provide all of the information previously withheld at the request of Deborah Jean Morrison regarding the Consumer Protection Agency file including and not limited to all the correspondence, interoffice communications, memorandums, emails, list of incidents, bulletins, and particularly all those pages objected to by Deborah Jean Morrison in her correspondence to the Consumer Protection Agency in December 2008.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Deere and Company and John Deere Limited pay all of the expenses of the Plaintiff in the deposing of Dave Willer in Canada to Plaintiffs
2 [sic] Counsel in the taking of the deposition of Dave Willer on January 06, 2009.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Sanctions which will, or may be imposed in this matter, as well as the amount of Attorney Fees which will or may be imposed is deferred until such time as the court has an opportunity to review the response of Deere and Company, John Deere Limited, and Deborah Jean Morrison to the Orders of this court regarding the Motion to Compel and for Sanctions for failure to Answer Interrogatories and Request for Production of Documents.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that John Deere Limited, Deere and Company and Deborah Morrison comply with the Orders regarding discovery in this Judgment within the next fifteen (15) days.
The discovery history leading up to this order is extensive and begins with the
initial petition filed by Ms. Soileau on April 21, 2008. However, the primary
discovery issue now before us relates to Ms. Soileau’s attempts to obtain the accident
history of the John Deere Model 400 series front end loaders. Contemporaneously
with her initial suit, Ms. Soileau filed interrogatories and requests for production of
documents directed at Deere & Company. Among other information Ms. Soileau
sought through the initial discovery process, she asked for information concerning the
accident history of all John Deere Model 460 front end loaders from the time of
manufacture and distribution through December of 2007. Deere & Company objected
to the interrogatories seeking this information1 but, subject to its objection, answered
the interrogatories by stating that it had no reports of an individual being injured by
a Model 460 loader associated with a trailer detachment, nor had there been any
1 Deere & Company consistently objected to all interrogatories related to prior claims associated with its machinery, complaining that the interrogatories were “overly broad and burdensome” that the information sought was “not limited to circumstances similar” to those involved in the litigation, and that “the information sought [was] neither relevant nor calculated to lead to admissible evidence.”
3 claims or lawsuits against it asserting a personal injury from a detachment by a Model
460 loader.2
Ms. Soileau propounded a second set of interrogatories and requests for
production of documents to Deere & Company, continuing to seek the same or similar
information. In its June 24, 2008 response, Deere & Company continued to generally
deny the existence of a history of complaints associated with detachment problems
with the Model 460 series, while at the same time divulging that it had received one
report of a 400 series loader of a “similar design to the Model 460 loader involved in
this litigation” detaching from a tractor, and seven other reports of similar detachment
events involving 400 series loaders “of a different design from the Model 460 loader
involved in this litigation.”3 On the one hand it denied any legal claims or lawsuits
involving the 400 series, and on the other hand listed two suits, one in Florida and
one in California, that involved problems with 400 series loaders. Deere & Company
then listed a report of an unexpected detachment arising from a 2005 incident in
Pylesville, Maryland involving a Model 410 loader, which it suggested was of a
“similar design” to the loader involved in this litigation. Also, it listed seven
additional reports involving the unexpected detachment of 400 series loaders,
suggesting that all were of a “different design” from the loader involved in this
2 Deere & Company did acknowledge a 2002 California property damage claim where “the ram in a loader cylinder cracked.” 3 Significantly, Deere & Company did not state that the latching mechanism was different on other 400 series loaders, but only that the reports of detachment events involved other loaders of the series.
4 litigation. Despite this assertion, two of the seven in the list were described as Model
460 series loaders.4
On October 9, 2008, Deere & Company provided Ms. Soileau with
supplemental answers to her interrogatories. In these answers, Deere & Company
revealed that it had received nine additional reports of unexpected detachment of a
400 series loader, all involving a different design from the Model 460 loader involved
in this litigation. However, when Deere & Company listed the reports, five referred
to a Model 460 loader.5 Deere & Company did not explain why these reports were
not provided originally other than to say that they were not available at that time.
However, it asserted that they had already been supplied through a United States
Consumer Product Safety Commission report which it had previously provided to Ms.
Soileau.
Despite Deere & Company’s assertion that it had provided Ms. Soileau with
the entire Consumer Product Safety Commission report, the record reflects otherwise.
In fact, although this report contains significant information relative to recalls of
equipment manufactured under the Deere name, the defendants did everything they
could to prevent Ms. Soileau from obtaining the full report.
The report itself became an issue in this litigation when, on July 21, 2008, and
in response to a June 30, 2008 letter from Ms. Soileau’s attorney, Deere &
Company’s attorney provided Ms. Soileau with sixty-two pages of the Consumer
4 One was described as a Model 460 loader in Tecumseh, Michigan, which disengaged in April of 2000, and another as a Model 460 loader in Illinois, which disengaged in September of 2002. 5 These included an incident in Uniontown, Pennsylvania, in July of 1999; an incident in Jerseyville, Illinois, in November of 1999; an incident in McKinney, Texas, in December of 1999; an incident in Bernardston, Massachusetts, in December of 1999; and an incident in Brantford, Ontario, in January of 2000.
5 Product Safety Commission’s 2000 recall of John Deere model 410, 420, 430 and 460
loaders. This was Deere & Company’s version of “the entire [Consumer Product
Safety Commission] recall file” referred to in its November 13, 2008 responses to
discovery.
On June 30, 2008, Ms. Soileau also contacted the Consumer Product Safety
Commission seeking, under the federal Freedom of Information Act, 5 U.S.C. § 552,
all information the agency had in its possession with regard to the 400 series loaders.
The Consumer Product Safety Commission did not immediately respond to Ms.
Soileau’s request. Instead it first forwarded a copy of its entire file to Deere &
Company, where Deborah J. Morrison, Deere & Company’s assistant general
counsel, reviewed the file. She then corresponded with the agency and objected “to
disclosure of portions of the records attached to [the agency’s] letter.”6 Finally, on
December 24, 2008, or six months after her request, the Consumer Product Safety
Commission forwarded Ms. Soileau a redacted copy of its records on the 2000 recall
of certain John Deere loaders, noting in the transmittal letter that certain information
had been withheld. The redacted copy contained 277 pages, or 215 pages more than
the “entire” file provided by Deere & Company in July of 2008. Still, the 277-page
file included thirty-five blank pages and twenty-nine additional pages with
information blacked out.
On December 23, 2008, Ms. Soileau filed a motion to compel Deere &
Company and John Deere Limited to answer her interrogatories; to have the
6 Specifically, Ms. Morrison objected to the disclosure of eight pages containing Deere’s internal bulletins to distributors; twelve pages of “recall Effectiveness Check Summaries,” stating that those pages contained the names and addresses of Deere retail customers; four pages that contained a list of names and addresses of customers who purchased the loaders; one page that contained a summary of incidents reported by customers and/or dealers; two pages of internal e-mails from Ms. Morrison to Deere engineers; and twenty-one pages containing records of calls from John Deere dealers to Deere’s dealer technical assistance center.
6 defendants sanctioned; to prohibit the defendants from producing certain evidence at
trial; to order the defendants to make Ms. Morrison available for a deposition; and to
be awarded penalties and attorney fees. She based this request for relief on her
assertion that the defendants made incorrect, misleading, and incomplete
representations in response to her interrogatories; refused to allow her to depose Ms.
Morrison; and objected to Ms. Soileau obtaining a certified copy of the records from
the Consumer Products Safety Commission.
The day after this filing, on December 24, 2008, Ms. Soileau served Dave
Willer, who was the project engineer with general supervisory responsibility for the
design of the Model 460 loader, with a notice of the deposition scheduled for January
6, 2009, in Ontario, Canada. Mr. Willer is a former employee of John Deere Limited
and a Canadian citizen. After having two conversations with Ms. Morrison, Mr.
Willer decided not to appear at the deposition.7
On January 15, 2009, Deere & Company filed a motion seeking a protective
order preventing Ms. Soileau from taking Ms. Morrison’s deposition. That same day,
Mrs. Soileau filed a motion for contempt, expenses, attorney fees, and sanctions
based on the non-appearance of Mr. Willer at the January 6, 2009 deposition.
Specifically, Ms. Soileau accused Ms. Morrison of “witness tampering and
stonewalling” based on the fact that Mr. Willer decided not to appear for the
deposition after being contacted by Ms. Morrison.
Deere & Company and John Deere Limited responded to Ms. Soileau’s
accusations concerning Ms. Morrison’s activities by providing the trial court with Ms.
Morrison’s affidavit, wherein she asserted that when she saw a December 4, 2008
7 Ms. Soileau acknowledges that, although Mr. Willer received notice of the deposition date and place, the service itself was not proper for a Canadian citizen physically located in Canada.
7 letter from Ms. Soileau’s attorney which indicated that Mr. Willer agreed to testify
at a deposition only if John Deere approved the appearance, she contacted Mr. Willer
“to make sure he did not mistakenly believe that he needed Deere’s permission to
testify in this matter.” She asserted in her affidavit that she informed Mr. Willer that
whether or not he appeared for the deposition was entirely his decision. Ms.
Morrison also asserted in her affidavit that, on Christmas Eve of 2008, Mr. Willer
called her at home to advise her that he had received a subpeona issued by a
Louisiana Court for a January 6, 2009 deposition. Ms. Morrison stated that “Mr.
Willer was aware, and I agreed, that neither document [a subpeona and letters
rogatory issued by a Louisiana court] was a valid subpeona compelling his
appearance at a deposition in Ontario, Canada,” and that she again told him whether
he appeared at the deposition was “entirely his decision.”
On January 29, 2009, Deere & Company and John Deere Limited filed a
supplemental memorandum to the trial court wherein they attempted to explain away
their initial failure to list all the information required by Ms. Soileau and blamed their
oversight on the quirks of their record-keeping system. However, they asserted that
Deere & Company amended its discovery response to include those reports “[a]s soon
as they were discovered.”
The hearing giving rise to the March 12, 2009 order occurred on January 30,
2009. In addition to the procedural history set forth herein, Ms. Soileau directed the
trial court’s attention to the fact that the defendants’ responses to her first, second,
and third sets of interrogatories were verified by Deere & Company’s assistant
corporate secretary.
8 Ms. Soileau also noted to the trial court that the answers provided, even when
amended with “newly discovered information,” were incomplete in that names and
addresses of the customers involved were not provided. Again, the defendants
responded by explaining that the nature of their record keeping of incident reports
caused them to initially overlook reports not provided in the early responses.
With regard to the non-appearance of Mr. Willer at the January 6, 2009
deposition, Ms. Soileau’s counsel pointed out that he was not made aware that Mr.
Willer would not appear until he was already in Canada. The defendants relied on
Ms. Morrison’s affidavit to justify their actions.
When the hearing occurred, trial had been set for March 16, 2009. Given its
findings on the discovery issues, the trial court upset that trial date, reset the matter
for July 20, 2009, and set a discovery deadline of May 8, 2009.
Between April 14, 2009, and May 7, 2009, Deere & Company and John Deere
Limited provided Ms. Soileau with additional information requested in her discovery
endeavors. One of the issues raised by these filings relates to the content of certain
compact discs (CDs) that purport to contain testing data on the 400 Series loaders.
Ms. Soileau requested in one of her requests for production that the defendants
“[p]lease produce a complete and accurate copy of any and all files comprising
Deere’s 109 file sequence that have not already been provided on Disc 1 and Disc 2,”
In response, Deere stated:
Deere objects to this request on the grounds it is overly broad and burdensome. Without waiving this objection, Deere avers that all of the 109 test records related to the latching system of the 400 series loaders during the period requested have been or are being produced. The 109
9 files which are not produced are not relevant to the latching system of the 400 series loaders and therefore are not relevant to the issues involved in this lawsuit.
(Emphasis added.)
In other words, the defendants acknowledged that they had additional data, but
unilaterally determined that it was not relevant and, not only did not provide the data,
but did not acknowledge its existence until they answered this request. In response
to Ms. Soileau’s request for additional files in the 438 file sequence, she received the
same response—“the files in the 438 account not produced are not relevant to the
issues involved in this lawsuit.”
In their May 5, 2009 response, the defendants supplemented their answers to
earlier interrogatories by acknowledging that they had “discovered old warranty
claims . . . which mention in the narrative a loader becoming detached,” and that one
claim related to the same design as that found on the Model 460 loader at issue in this
litigation. They attached thirty-four warranty forms to the supplemental answer.
However, many of the forms were not complete in that they did not include the
customer name, address, or telephone number; or the name and/or location of the
dealer.
These revelations were followed by two motions in limine—one by each
side—seeking to either allow or prevent the introduction of the discovered
information concerning prior incidents or reports relating to detachments of front
loaders. At a May 21, 2009 hearing, the trial court granted Ms. Soileau’s motion in
limine but denied the defendants’ motion. In doing so, the trial court concluded that
the prior incidents involved equipment substantially the same as the Model 460
loader at issue here. The defendants sought review of this judgment by an application
10 for supervisory writs to this court, which was denied. Soileau v. Smith’s True Value
and Rental, 09-725 (La.App. 3 Cir. 9/1/09). The defendants’ attempt to have the
supreme court address the issues met the same fate. Soileau v. Smith’s True Value
and Rental, 09-2113 (La. 12/11/09), 23 So.3d 921.
On May 11, 2009, Ms. Soileau followed up on her February 17, 2009
interrogatories and request for production of documents with a letter asking for
specific test reports. The defendants assert in their brief on appeal that by June 1,
2009, Deere “produced several thousand more pages of test reports, including all
available records requested in counsel’s letter of May 11th.”
On May 15, 2009, Ms. Soileau made thirty-one requests for production, asking
for the names, addresses, and telephone numbers of the consumers who purchased a
loader or tractor with the product identification numbers given in those thirty-one
forms. Ms. Soileau also asked to be told which dealer the consumer purchased the
loader or tractor from and when the customer was provided with a “Latch Plate
Retainer.”
On May 22, 2009, Ms. Soileau filed the motion that is the subject of the appeal
before us, seeking to compel Deere to respond to her discovery requests, to have
Deere held in contempt, and to have sanctions imposed. In this motion, Ms. Soileau
asserted that the defendants violated the court’s March 12, 2009 order for discovery
by intentionally and wilfully failing to timely disclose thirty-one prior incident reports
and “that there are still other prior incidents and/or details known to Deere about prior
incident reports which Deere has still not provided to the Plaintiff, again in deliberate
violation of this Court’s order that has been in effect since January 30, 2009.” Ms.
Soileau also contended in the May 22, 2009 motion that although Deere produced two
11 CDs of memoranda, pictures, and information relating to the testing and design of the
400 series loaders in response to the court order, she had discovered “that certain files
and information were omitted, left blank, and/or were missing.” Ms. Soileau asserted
that Deere subsequently submitted an additional five testing files, but was still
refusing to provide the specific information that Ms. Soileau requested.
On June 1, 2009, Deere & Company and John Deere Limited provided Ms.
Soileau with the names, addresses, and telephone numbers of twenty-nine of the
consumers who purchased the loaders, but stated that for two of the loaders they did
“not have any retail customer information.” The defendants also provided the names
and addresses of the thirty-one dealers from whom the loaders were purchased.
On July 1, 2009, the trial court held a hearing on Ms. Soileau’s motion for
contempt and sanctions that is the subject of this appeal. In rendering judgment, the
trial court provided the parties with a rather lengthy statement of the reasons behind
its decision. The trial court made it clear to the litigants of its dissatisfaction with the
defendants’ approach to discovery from the beginning of the litigation and noted that
its position concerning full discovery had been made clear on numerous occasions.
The trial court pointed out that the piecemeal release of the information on the prior
incidents did not meet the requirements imposed by the rules of discovery or the trial
court’s March 12, 2009 order and that the defendants had offered no satisfactory
explanation for their failure to timely provide this information. Specifically, the trial
court concluded that the defendants did not take their obligations seriously and found
as a matter of fact that the defendants were “hiding” information otherwise required
to be divulged under the rules of discovery.
12 On August 3, 2009, the trial court signed a judgment finding the defendants in
violation of the court’s March 12, 2009 order, ordering the defendant to produce
certain information, and sanctioning the defendants for failure to comply with its
March 12, 2009 order for discovery.8 The August 3, 2009 judgment of the trial court
reads in pertinent part as follows:
IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion to Compel, for Sanctions, and Contempt is GRANTED;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant[s] DEERE AND COMPANY and JOHN DEERE LIMITED is [sic] in contempt of this Court’s March 12, 2009 Order compelling discovery;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant[s] DEERE AND COMPANY and JOHN DEERE LIMITED produce, within 10 days of the execution of this Judgment, all photographs, videos, test reports, a complete accounting of all prior incidents, and all other information that the Deere Defendant has to date omitted from its previous discovery responses, in direct violation of this Court’s March 12, 2009 Order compelling the disclosure of information requested by Plaintiff through prior written discovery;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant[s], DEERE AND COMPANY and JOHN DEERE LIMITED, be and are hereby sanctioned in accordance with LSA-C.C.P. art. 1471 A.(1), and that the following facts are hereby deemed to be established in this case as a matter of law:
(a) The Deere product that is the subject of this lawsuit, a Deere 400 Series front end loader, was unreasonably dangerous and defective as designed, as indicated by the loader’s propensity to spontaneously detach from the tractor;
(b) Fifteen incidents occurred after Deere’s 2000 recall of the loader, indicating that even with Deere’s purported corrective measures in place, the 400 series loader was still dangerous and defective as designed, and that the loader in the subject accident suffered from precisely those same dangers and defects;
8 The record contains additional filings between the hearing and the March 12, 2009 judgment relating to discovery issues arising from the trial court’s instructions in its reasons for judgment. However, those issues are not before the court in this appeal.
13 (c) Deere had knowledge of the dangers in its defectively designed 400 series loader, and knowledge that those dangers were non- obvious, were non-apparent, and/or were hidden; yet Deere failed to warn Plaintiff and/or third parties of these hidden known dangers;
(d) Deere’s failure to warn of the known hidden dangers in its dangerous and defectively designed 400 series loader, as well as the actual manifestation of those dangers in this case, which were inherent in that defective design, were the predominate causes of the injuries sustained by the Plaintiff;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that DEERE AND COMPANY and JOHN DEERE LIMITED, shall be subject to further sanctions under LSA-C.C.P. art. 1471 in the event that DEERE AND COMPANY and JOHN DEERE LIMITED violate this Judgment compelling discovery, and said sanctions may include but shall not be limited to the entry of Judgment by default against DEERE AND COMPANY and JOHN DEERE LIMITED, all as provided by LSA-C.C.P. art. 1471 A. (3);
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that DEERE AND COMPANY and JOHN DEERE LIMITED, in accordance with LSA-C.C.P. art. 1471 C., shall be condemned to pay the reasonable expenses occasioned by Plaintiff in compelling Defendant’s disclosure of the information sought in these proceedings in the amount of $ 10,000.00 , as well as reasonable attorney’s fees in the amount of $ 15,000.00 , both of said amounts to be paid to Plaintiff within 30 days of the execution of this Judgment;
Deere & Company and John Deere Limited have appealed, asserting the
following assignments of error:
1. The trial court erred in holding Deere in contempt of court.
2. The trial court erred in holding Deere in contempt of the court’s order of March 12, 2009 compelling discovery.
3. The trial court erred in holding that the design of the Deere loader was defective and that the modifications made in 2000 were not effective.
4. The trial court erred in holding that Deere failed to warn plaintiff and other users of the dangers of the loader accidently detaching.
5. The trial court erred in holding that the defective design and failure to warn were the “predominant” causes of plaintiff’s injuries.
14 6. The trial court erred in awarding plaintiff $15,000.00 in attorney fees and $10,000.00 in expenses occasioned in compelling Deere’s disclosure of information.
7. The plaintiff’s answer to appeal is meritless and should be denied.
Ms. Soileau answered the appeal, asserting that:
Given the extent of Deere’s discovery misconduct, and the extreme to which Plaintiff has been prejudiced by that misconduct, the article 1471 remedy selected by the trial court was abusively low, inequitable, and beyond the bounds of statutory discretion allowed trial courts.
The court should have granted Plaintiff other 1471 remedies in addition to a mere finding of fact; or in the alternative, the court should have entered a default judgment against Deere for the amount of damages established by the record.
OPINION
For purposes of clarity in organization, we will address the defendants’
assignments of error out of order.
Violation of Court-Ordered Discovery
Deere & Company and John Deere Limited complain in their second
assignment of error that the trial court erred in holding them in contempt of the March
12, 2009 order, simply because they did not violate the order. Thus, in this section
we first address the essential question of whether the trial court erred in finding that
the defendants violated the court’s March 12, 2009 order.
It requires no citation that a party propounding discovery is entitled to a timely
response. When no response is forthcoming, or if a party is dissatisfied with that
response, that party may apply to a court for an order compelling discovery. La.Code
Civ.P. art. 1469(2).
With regard to discovery in this case, Ms. Soileau was met with piecemeal and
untimely responses to her requests. Given her dissatisfaction with the defendants’
15 responses, she availed herself of the provisions of La.Code Civ.P. art. 1469(2).
Recognizing the deficiencies in the defendants’ efforts at responding to discovery, the
trial court rendered its March 12, 2009 order and, as a part of that order, instructed
Deere & Company and John Deere Limited to “answer all of the Interrogatories and
Request for Production of Documents previously sent to the defendants in compliance
with Article 1458 of the Louisiana Code of Civil Procedure,” within fifteen days.
The record reflects that the defendants clearly did not comply within the fifteen days,
did not seek an extension of that time, and continued to provide information
piecemeal until two days before the discovery deadline.
Nonetheless, the defendants assert on appeal, as they did at the July 1, 2009
hearing, that they should not be found in violation of the March 12, 2009 order
because they had not discovered the thirty-one warranty claims previously and they
forwarded them to Ms. Soileau promptly upon their discovery. However, the trial
court noted that in documents provided to the Consumer Product Safety Commission
in 2000, Ms. Morrison had mentioned searching the warranty database, and that the
database was at all times in the defendants’ control. We also note that at the July 1,
2009 hearing, the defendants’ counsel was unable to explain how his clients were
able to provide the customers’ names, addresses, and phone numbers and the dealers’
names and locations in its June 1, 2009 response, when less than a month before they
had certified that they had no information other than what was on the face of the
documents that they attached to their answer. The defendants’ counsel made general
allegations concerning the problems associated with different reporting databases, the
large size of the companies, and their many franchises and dealers throughout the
country.
16 The defendants also point to the trial court’s oral reasons for judgment, in
which the trial court stated that they failed to make a “reasonable” search of the
warranty records. Using this language, the defendants argue that because the trial
court did not find that the defendants intentionally violated the court’s discovery
order, it was error to find that they had violated the March 12, 2009 discovery order.
This argument ignores the language in the oral reasons for judgment, wherein the trial
court made the specific finding that the defendants had deliberately violated the
discovery order, saying “I think John Deere has tried to put an obstacle at every turn
of the discovery of previous incidents.”
Finally, the defendants argue that because Ms. Soileau did not suffer any unfair
prejudice, “any deficiencies in Deere’s discovery responses do not warrant the
imposition of any sanctions for failure to respond to discovery.” The general rule is
that “[t]he decision whether to grant relief against a recalcitrant party rests within the
discretion of the trial court and will not be disturbed absent an abuse of that
discretion.” LeJeune v. Lafayette Tower Service, 94-1240, p. 4, (La.App. 3 Cir.
4/5/95), 653 So.2d 112, 114. The trial court’s oral reasons for judgment, given at the
close of the hearing, indicate that it found that Deere’s violations of the March 12,
2009 court order were willful. At the close of the hearing on July 1, 2009, the trial
court stated that “I do not feel that John Deere has made a reasonable effort” in
providing information on prior claims.” When considering the prejudice to Ms.
Soileau, it is notable that the second supplemental answers to Ms. Soileau’s second
set of interrogatories were sent on May 5, 2009, and the responses providing the
additional information not on the forms sent with the second supplemental answers
were sent on June 1, 2009, all at a time when a March 12, 2009 court order provided
17 that the deadline for all fact discovery was May 8, 2009, and the jury trial was set for
July 20, 2009.9 As the trial court noted, it would require extraordinary effort for Ms.
Soileau’s counsel to find and depose more than thirty-one people in that time frame.
We find no abuse of the trial court’s discretion in its finding that Deere &
Company and John Deere Limited violated the court’s March 12, 2009 order
compelling discovery and, therefore. no merit in this assignment of error.
Sanctions
In their second assignment of error, Deere & Company and John Deere Limited
argue that they should not be sanctioned under La.Code Civ.P. art. 1471. The
supreme court has explained that “[t]here is a distinction between the sanctions
available for failure to comply with discovery and the sanctions available for
disobedience of court ordered discovery.” Horton v. McCary, 93-2315, p. 9 (La.
4/11/94), 635 So.2d 199, 203. Because refusal to comply with a court order
addressing discovery is such “a serious matter . . . [t]rial judges must have severe
sanctions available to deter litigants from flouting discovery orders.” Id. at 203.
These “severe sanctions” are made available to the trial court through La.Code Civ.P.
art. 1471(A), which provides generally that the court may “make such orders in regard
to the failure as are just” including the following specific sanctions:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
9 The trial court’s August 3, 2009 judgment moved the date of trial to March 15, 2010.
18 (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Subparagraphs (1), (2), and (3) of this Paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
We further note that the scope of review has been set by the supreme court. “The trial
court has much discretion in imposing sanctions for failure to comply with discovery
orders, and its ruling should not be reversed absent an abuse of discretion.”
Hutchinson v. Westport Ins. Co., 04-1592, p. 2 (La.11/08/04), 886 So.2d 438, 440.
We find no abuse of discretion in the trial court’s judgment in imposing sanctions
under La.Code Civ.P. art. 1471.
Contempt of Court Sanction
The defendants argue that their actions did not constitute contempt within the
meaning of La.Code Civ.P. art. 221.10 This argument falls because Ms. Soileau opted
to file a motion for discovery sanctions under La.Code Civ.P. art. 1471, rather than
a motion for contempt under La.Code Civ.P. art. 221. Still, the trial court may find
a defendant in contempt of court for failure to obey a discovery order. La.Code
Civ.P. art. 1471(A)(4). Thus, we treat the defendants’ first assignment of error as an
10 Louisiana Code of Civil Procedure Article 221 provides:
A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
Contempts of court are of two kinds, direct and constructive.
19 assertion that the trial court erred in finding them in contempt of court as a sanction.
While noting that the trial court did not punish defendants with a fine or
imprisonment under La.R.S. 13:4611(d), for the reasons previously stated, we find
no error in the trial court’s imposition of a finding of contempt of court.
Factual Findings Sanctions
In their third, fourth, and fifth assignments of error, the defendants argue that
the trial court erred in sanctioning them under La.Code Civ.P. art. 1471 by imposing
the following factual findings: that the design of the Deere loader was defective and
that the modifications made in 2000 were not effective; that the defendants failed to
warn Ms. Soileau and other users of the dangers of the loader accidently detaching;
and that the defective design and failure to warn were the “predominant” causes of
Ms. Soileau’s injuries.
Specifically, the defendants argue that these factual findings are contrary to the
evidence that had so far been presented in the case and that they bypass the
requirements of the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51 et.
seq.11 Louisiana Code of Civil Procedure Article 1471 gives the trial court broad
authority and discretion to impose any sanctions that are just, including an order that
designated facts shall be taken as established for the purposes of the lawsuit.
La.Code Civ.P. art. 1471(A)(1). Contrary to Deere’s argument, that article does not
require that the designated facts be supported by the weight of evidence. Nor does
the LPLA prohibit a trial court from ordering that designated facts shall be taken as
established for the purposes of a suit brought under that act. Although the LPLA
11 Deere also argues that the question of whether the design was still defective after the recall was related to a writ application pending before the Louisiana Supreme Court, in which Deere sought to preclude evidence of other incidents that were not factually similar. However, since the supreme court has now entered an order denying that writ application, Soileau v. Smith’s True Value and Rental, 09-2113 (La 12/11/09), this argument is now moot.
20 “establishes the exclusive theories of liability for manufacturers for damage caused
by their products,” La.R.S. 9:2800.52, this does not limit the trial court’s power to
impose sanctions when a party disobeys the court’s order concerning discovery.
Thus, we find no merit in these arguments.
The defendants also argue that the sanctions imposed are “the functional
equivalent of dismissing a plaintiff’s claims for failure to respond to discovery.” The
defendants correctly state that the ultimate sanction for failure to comply with
discovery orders is dismissal with prejudice or entry of a default judgment, and that
“[b]oth dismissal and default are draconian penalties which should be applied only
in extreme circumstances.” Horton, 635 So.2d at 203. However, we do not find that
the sanctions imposed have the effect of a default judgment.
To determine whether the trial court’s sanctions have the functional effect of
entering a default judgment against Deere & Company and John Deere Limited, we
must look at the substantive law at issue in this case, the LPLA.
To maintain a successful products liability action under the LPLA, a plaintiff must establish four elements: (1) that the defendant is a manufacturer of the product; (2) that the claimant’s damage was proximately caused by a characteristic of the product; (3) that this characteristic made the product “unreasonably dangerous;” and (4) that the claimant’s damage arose from a reasonably anticipated use of the product by the claimant or someone else. La. R.S. 9:2800.54(A). A product is “unreasonably dangerous” under the LPLA if and only if the product meets at least one of the following criteria: (1) the product is unreasonably dangerous in construction or composition as provided in La. R.S. 9:2800.55; (2) the product is unreasonably dangerous in design as provided in La. R.S. 9:2800.56; (3) the product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in La. R.S. 9:2800.57; or (4) the product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in La. R.S. 9:2800.58. La. R.S. 9:2800.54(B).
Jack v. Alberto-Culver USA, Inc., 06-1883, p. 4 (La. 2/22/07), 949 So.2d 1256, 1258 (footnote omitted).
21 Further, the plaintiff must prove that the characteristic which renders the product
unreasonably dangerous existed at the time that the product left the manufacturer’s
control or resulted from a reasonably anticipated alteration or modification of the
product. La.R.S. 9:2800.54(C).
The facts that the trial court deemed to be established satisfy two of the four
elements that Ms. Soileau is required to prove: that her damage was proximately
caused by a characteristic of the product and that this characteristic made the product
“unreasonably dangerous.” Ms. Soileau still has the burden of proving that the
defendants are the manufacturers of the product; that her damage arose from a
reasonably anticipated use of the product, and that the characteristic that rendered the
product unreasonably dangerous either existed at the time that the product left the
manufacturer’s control or resulted from a reasonably anticipated alteration or
modification of the product. Because the trial court’s designation of certain facts as
established does not resolve all, or even most, of the elements that the plaintiff must
prove, we hold that the trial court’s August 3, 2009 order is not the functional
equivalent of a default judgment. Contrast with Columbia Homestead Ass’n v.
Arnoult, 615 So.2d 1 (La.App. 4 Cir. 1992), where the court of appeal held that the
trial court’s ruling prohibiting the defendants from presenting any affirmative
defenses or a reconventional demand at the trial of the matter had the “equivalent
effect” of entering a default judgment against them on the principal demand and
dismissing their reconventional demand; and Skidmore v. Salvadras, 496 So.2d 435,
438 (La.App. 1 Cir. 1986), where the court of appeal held that the effect of the trial
court’s ruling that the plaintiff would not be allowed to testify was “equivalent to a
dismissal of his cause of action altogether.”
22 Finally, the defendants assert that the trial court’s sanction to the effect that
“Deere’s failure to warn of the known hidden dangers in its dangerous and defectively
designed 400 series loader, as well as the actual manifestation of those dangers in this
case, which were inherent in that defective design, were the predominate causes of
the injuries sustained by the Plaintiff” lacks clarity by the use of “predominate.” It
seems most likely that the trial court intended to state that the failure to warn and the
defective design were the proximate cause or causes of Ms. Soileau’s injuries. See
La.R.S. 9:2800.54(A). However, rather than change the verbiage, we remand this
matter to the trial court to consider whether the sanction requires amendment to
reflect the legal term as opposed to the term used.
Attorney Fees and Expenses
The defendants argue in assignment of error number six that the trial court
erred in awarding Ms. Soileau $15,000.00 in attorney fees and $10,000.00 in
expenses incurred in compelling their disclosure of information through the discovery
process. In considering this argument, we first note that La.Code Civ.P. art. Article
1471(C) provides in pertinent part that in addition to the sanctions that may be
imposed, “the court shall require the party failing to obey the order . . . to pay the
reasonable expenses, including attorney fees, caused by the failure, unless the court
finds that the failure was substantially justified or that other circumstances make an
award of expenses unjust.” (Emphasis added.)
The defendants had the burden of proof to establish substantial justification or
circumstances that would make the otherwise mandatory award unjust. Corumia v.
Broadhurst, 584 So.2d 377 (La.App. 3 Cir. 1991). In this matter, the trial court
determined that the defendants’ failure to comply with the court’s order was not
23 substantially justified, and the defendants made no showing to establish other
circumstances that would cause the award to be unjust. Therefore, we find no error
in the trial court’s award of attorney fees and expenses.
We find no error in the amount of the attorney fees awarded as well, as it is
apparent from the record before us that Deere’s failure to comply with the trial court’s
orders concerning discovery caused Ms. Solieau’s counsel to put forth a substantial
amount of time and effort. We conclude that the trial court’s $15,000.00 award is
supported by the record before us and should not be altered. However, as to the
actual expenses associated with discovery, Ms. Soileau introduced no evidence
separate from the record. It was Ms. Soileau’s obligation to establish the amount of
these reasonable expenses. See Corumia, 584 So.2d 377. We reduce the expenses
award to the lowest reasonable amount considering the expenses that are apparent on
the face of the record before us: $2,000.00.
Answer to the Appeal
In her answer to the appeal, Ms. Soileau seeks an increase in the sanctions
imposed. Based on our review of the issues above, we find that the trial court did not
abuse its discretion in selecting the appropriate sanctions for Deere’s violations of the
court’s discovery orders. Prewitt v. Rodrigues, 04-1195 (La.App. 3 Cir. 2/2/05), 893
So.2d 927.
DISPOSITION
For the foregoing reasons, we reduce the expenses awarded to Ms. Soileau to
$2,000.00; remand to the trial court for it to consider whether to amend the verbiage
of the sanction; and affirm the trial court order as amended in all other respects. We
remand for further proceedings consistent with this opinion. We assess all costs of
24 this appeal fifty percent to the plaintiff, Mary Phyllis Soileau, and fifty percent to the
defendants, Deere & Company and John Deere Limited.