“Forensic Defendants” Dismissed from Wrongful Conviction Suit

Historically, Louisiana law provided that a professional rescuer injured in the performance of his or her duties “assumes the risk” of an injury and is not entitled to damages. See Worley v. Winston, 550 So.2d 694, 696 (La. App. 2 Cir.), writ denied, 551 So.2d 1342 (La. 1989). This is known as the Professional Rescuer’s Doctrine and applied as a defense to claims raised by firefighters, policeman, and others. The doctrine prevented recovery because the professional rescuer “assumed the risk” of injury. Recently, the Louisiana Supreme Court in Doe v. McKesson, 2021-00929 (La. 3/25/22) rejected the doctrine as a bar to suit by the professional rescuer.

In Doe, the Supreme Court of Louisiana accepted a certified question from the Fifth Circuit of the United States Court of Appeals as to the viability of the doctrine. In response, the Supreme Court held that the Professional Rescuer’s Doctrine has been abrogated in Louisiana both legislatively under La. C.C. art. 2323 and jurisprudentially in Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988).

The Court cited La. C.C. art. 2323(A), which provides that the fault of “all persons […] shall be determined” in a civil action. Subsection (B) of the article provides this rule applies “to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.”

In Murray, the Supreme Court previously held that the doctrine of assumption of risk no longer had a place in Louisiana tort law following the adoption of comparative fault. Nevertheless, the Murray Court identified two exceptions:

• Cases “where the plaintiff, by oral or written agreement, expressly waives or releases a future right to recover damages from the defendant,” if “no public policy concerns would invalidate such a waiver, the plaintiff's right to recover damages may be barred on a release theory;” and

• “[I]n the sports spectator or amusement park cases (common law’s “implied primary” assumption of risk cases).”

Murray, 521 So.2d at 1134. (internal citations omitted).

The Doe court observed that Murray provided no exception relative to professional rescuers. The Court further observed that, while the legislature had enacted statutes that bar plaintiff recovery in other settings, no such statute had been passed to codify the Professional Rescuer’s Doctrine.

Although professional rescuers injured in the performance of their duties may still be found at fault, the is no longer an automatic bar to suit.

In a case handled by our firm, a Lafayette-based global catering and life support client was sued by an employee based in Dubai for alleged violations of the Americans with Disabilities Act. The jury unanimously found that the employer (1) did not discriminate against the plaintiff because of a disability or (2) retaliate against him because he raised a complaint regarding the alleged discrimination.

The plaintiff had a written contract of employment with a one-year term that automatically renewed if he was not terminated. Upon the contract expiration date, the employer advised plaintiff that the contract would not be renewed for a successive term.

Plaintiff, an Army veteran, suffered from PTSD following his military service and deployment in Iraq. He claimed defendant discriminated against him on the basis of his PTSD, which he claimed as a mental health disability. Plaintiff further claimed that defendant retaliated against him after he complained to his direct supervisor and the head of human resources about the alleged discrimination. To support his case, plaintiff claimed he was not disciplined before his termination and did not receive negative performance reviews during employment. Significant pre-trial motion practice occurred and framed the issues for trial in two ways.

First, the defense learned of actions taken by plaintiff following the termination of his employment that would have provided a legitimate basis for termination had the actions been discovered before he was terminated. The defense argued that evidence of such “after-acquired” misconduct was relevant to credibility and independently relevant to calculate backpay that plaintiff sought, citing McKennon v. Nashville Banner Pub. Co. and McClung v. Hajek. Over defendant’s objection, the Trial Court excluded the evidence as highly prejudicial, instead finding that back pay was an equitable remedy to be decided by the Court in a subsequent evidentiary hearing related to the issue of back pay.

Second, the defense argued that non-certified medical record evidence submitted by plaintiff was hearsay and thus inadmissible to prove a disability. The Court agreed with the defendant and issued a limiting instruction that the jury was not to consider uncertified medical records for the truth of the matter asserted.

At trial, our client presented ample evidence of plaintiff’s performance deficiencies with respect to the vetting of vendors, which jeopardized the employer’s government contracts and the jobs of other employees. The majority of plaintiff’s performance issues arose in Dubai, plaintiff’s key area of oversight. Therefore, it was unbelievable that he would not know of, or take responsibility for, those performance deficiencies. In addition, the language of the written employment contract allowed for non-renewal of the contract. In a unanimous verdict as required by Fed. R. Civ. P. 48, the jury ultimately found that although the plaintiff proved he suffered a disability, he failed to prove discrimination or retaliation under the Act.

References:

Staples v. Taylor International Services, Inc., et al., 6:20-cv-00192-RRS-CBW.

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 361–62, 115 S. Ct. 879, 886, 130 L. Ed. 2d 852 (1995).

McClung v. Hajek, 79 F.3d 1145 (5th Cir. 1996).

Part 1 of this two-part series explored the basic elements of the attorney-client privilege. Part 2 will discuss some of the restrictions to the privilege.

The privilege applies only to legal matters.

While legal advice is protected, advice that is considered “business advice” may not. Unfortunately, the line between legal and business advice is not always clear. Legal advice requires that the attorney interpret law and apply it to specific facts to do one (or both) of two things: tell the client what to do in the future or tell the client what was done right (or wrong) in the past. Business advice involves discussions about the operations of a client which are independent from legal considerations.

If the communication involves both legal advice and business advice, the general rule is that the legal advice must predominate over the business advice. See, Exxon Mobil Corp. v. Hill, 2013 WL 3293496 (E.D. La. June 28, 2013), vacated and remanded on other grounds by Exxon Mobil Corp. v. Hill (5th Cir. May 6, 2014).

The crime-fraud exception.

The privilege is also subject to the “crime fraud” exception. Communications between an attorney and client regarding either: 1) a plan or intent to commit a crime or fraud; or 2) while the crime or fraud is being committed, are not protected by the attorney-client privilege. Remember, you obtain the services of an attorney to obtain legal advice, not illegal advice. As explained by the court in State v. Menard, 02-1182 (La. App. 3 Cir. 5/7/03), 844 So. 2d 1117, the reasons for the privilege cease to operate when the legal advice refers to future wrongdoing.

Other exceptions.

The privilege also has other limitations, including the fact that it may be waived, intentionally or unintentionally, by the client. As discussed in Part 1 of this blog, the decision to include third-parties in conversations and communications (including emails) between the client and the attorney may waive the privilege. If a client sues an attorney after the relationship has terminated, the privilege is likewise waived, and the attorney can discuss privileged communications to defend himself against that suit. Similarly, if an attorney acted as a notary or witness to a document, the attorney may discuss whether a document is authentic or whether the signors were legally competent to sign. Interestingly, the privilege also does not apply to communications with a deceased client if the communications are relevant to an inheritance dispute.

The attorney client privilege offers broad protection; however, it is important to remember that this protection is not without its limits.