An Exercise in Inaction

In 2021, the Louisiana Legislature amended La. R.S. 9:2800.9 to provide that a legal action against a person for sexual abuse of a minor, if barred by liberative prescription prior to the effective date of the amendment, is revived for a three-year period after the effective date of the amendment. In 2022, La. R.S. 9:2800.9 was amended again to specifically state the Legislature’s intent to revive any cause of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.

On March 22, 2024, the Louisiana Supreme Court issued its decision in Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, and found the statute was unconstitutional because it conflicted with due process protections set forth in the Louisiana Constitution. Specifically, the Court found that a defendant has a vested property right in accrued prescription and that revival of a prescribed cause of action violated due process.

However, the Louisiana Supreme Court granted the plaintiffs’ request for rehearing, and on June 12, 2024, the Court vacated its prior ruling and found that the amendments to La. R.S. 9:2800.9 were constitutional.

On rehearing, the court agreed that a defendant has a vested property right in accrued prescription but found another step in constitutional analysis was required— examination of whether the legislature’s revival of prescribed causes of action for sexual abuse of minors “comports with substantive due process.” The Court noted, “The essence of substantive due process is protection from arbitrary and capricious action.”

In Bienvenu, the defendants’ right to plead prescription was an economic interest that did not implicate fundamental rights. The statute at issue was social welfare legislation, enacted to address societal costs of child sexual abuse. Therefore, the Court found the applicable due process test was whether the legislation was reasonable in relation to the goal to be attained and was adopted in the interest of the community as a whole. The statute needed only to have a rational relationship to a legitimate governmental interest to survive due process scrutiny.

The Court found the amendments to La. R.S. 9:2800.9 passed this test because (1) the provision assists in identifying hidden child predators so children will not be abused in the future; (2) shifts the costs of the abuse from the victims and society to those who actually caused it; and (3) educates the public about the prevalence and harm from child sexual abuse to prevent future abuse. These interests were found legitimate and compelling. Thus, the statute was constitutional and could be applied retroactively “to revive, for the period stated, all causes of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.”

References:

Bienvenu v. Defendant 1, 2023-01194 (La. 3/22/24), 382 So. 3d 38, reh'g granted, 2023-01194 (La. 5/10/24), and opinion vacated on reh'g, 2023-01194 (La. 6/12/24).

Bienvenu v. Defendant 1, 2023-01194 (La. 6/12/24).

Winning or losing in court often comes down to who possesses the burden of proof. Like a driver at a four-way stop, a litigant has to know when it is their turn.

Civil Procedure Article 966, the "Summary Judgment Article," provides that the mover bears the burden of proof. The Louisiana Supreme Court recently addressed this burden in Dan Veuleman & Jody Veuleman v. Mustang Homes, LLC, 2013-C-190 (La. 4/5/13), - So. 3d - in the context of insurance coverage.

The general rule in Louisiana is that an insurer bears the burden of proving that a loss falls within a policy exclusion. In Veuleman, the insurer argued that the loss was excluded through a "work product" exclusion. However, the "work product" exclusion contained a "subcontractor" exception. The plaintiffs argued that the work was performed by a subcontractor and should for that reason be covered under the policy.

At the hearing, the insurer introduced its policy as evidence of the exclusion. However, it offered no evidence to show who performed the work at issue. The plaintiffs attempted to introduce an affidavit to establish that the work was performed by a subcontractor. The court of appeal rejected the affidavit as insufficient and concluded that the plaintiffs did not establish that their claims were spared from the work product exclusion.

The Louisiana Supreme Court disagreed. It stressed that the insurer, not the plaintiff, possessed the burden of proving that the policy exclusion applied. The Court stated that "[t]he insurer offered no proof to accomplish its burden." Id. at 1.　

The Veuleman Court held that the appellate court "erroneously shifted the burden of proof on the motion for summary judgment" to the plaintiffs and that the insurer had the burden to show that "the exception [to the exclusion] is not met." In keeping, the Court vacated the summary judgment and remanded the matter for further proceedings.

The Veuleman decision reminds that a litigant should be aware when it is their turn to go.

Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.

Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied?　

Helm: Yes!

Sir Wilfrid: And now today you've told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now?　

Whether in court, deposition or on the big screen, the impeachment of witness creates drama-the kind of drama opposing attorneys try to avoid.

In O'Dwyer v. Our Lady of the Lake, -- So. 3d ---, 2013 WL 2131763 (La. 5/17/13), the Louisiana Supreme Court was asked to decide whether audio recordings of a defense witness must be disclosed before the deposition of the witness. The O'Dwyer plaintiff was a nursing student who alleged that she had been targeted for termination from the nursing program through "harassment, bullying, stalking, and intimidation."

O'Dwyer's attorney sought to depose the nursing program director. The defendant sought production of audiotaped conversations between the program director and another student before the deposition was allowed, and successfully obtained a written order that the audiotapes be produced. The First Circuit denied the plaintiffs' writ, but writs were granted by the Louisiana Supreme Court.

The O'Dwyer Court looked to prior jurisprudence. In Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So. 2d 1164), the Supreme Court held that a defendant was not required to produce surveillance of the plaintiff until after the plaintiff's deposition. The Court highlighted the "important function in the search for truth" served by surveillance. After all, the value of the surveillance could be minimized were a plaintiff able to view the evidence and tailor his or her testimony to match. Therefore, the evidence was viewed as potential impeachment evidence and could be withheld prior to deposition.

In Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La. 2/22/07), 950 So. 2d 654, the Court refused to extend Wolford to the production of video which captured the accident itself. Video of the accident upon which the plaintiff sued was direct evidence and not primarily impeachment evidence. Therefore, it had to be produced prior to the plaintiff's deposition.

In O'Dwyer, the Court concluded that the audiotapes were made for impeachment and therefore need not be produced until after the nursing director's deposition. Justice Weimer, in dissent, challenged the characterization of the audiotapes as exclusively impeachment evidence. He cited to the language of the writ application which described the tapes as "unique evidence that may be used for direct or impeachment evidence at trial."

O'Dwyer indicates that a court may look to the primary function of the evidence in deciding its discoverability. The fact that the audiotapes may serve as direct evidence did not require their production when their primary function was impeachment.