Keogh Cox's Win Prevents Plaintiff from Recovering Louisiana Lottery Jackpot

The Louisiana Supreme Court recently considered the recoverability of indirect economic damages caused by negligent injury to property of others in MAW Enterprises, LLC, et al v. City of Marksville, et al. The Court found the defendant's duty did not include liability for damages resulting from negligent interference of a contract, and dismissed the case.

MAW involved the City of Marksville's denial of a liquor permit to the plaintiff's lessee. The rent was dependent in part upon the amount of gasoline sales.The plaintiff alleged that the City's improper denial of the liquor permit resulted in lower gasoline sales. Under these facts, the Court held that the plaintiff had no cause of action against the City because the damages claimed were not within the "scope of the duty."

The MAW Court extensively discussed its earlier decision in PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La. 1984). Citing to the analysis in PPG, the Court reasoned that holding a tortfeasor responsible for indirect economic damages caused by injury to property of others could improperly create liability in an indeterminate amount for an indeterminate time to an indeterminate class.

The Court held that general tort duties duty did not encompass the plaintiff's injury. Additionally, after a lengthy analysis, the Court held that the duties under La. R.S. 26:71　et seq. (involving the issuance of liquor licenses) likewise did not encompass the plaintiff's damages because these duties were owed only to the person whose liquor license was denied or granted, namely the lessee.

One dissenting Justice found the majority's reliance on PPG improper because, unlike PPG, the plaintiff's damages were not caused by a "negligent injury to property resulting in physical damages." The majority's citation to PPG appears to indicate that PPG's reasoning may be applicable to cases involving both physical and non-physical damages.

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).

The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”

What is “electronic discovery”? “Discovery” includes the exchange of information between parties in a lawsuit. “Electronic discovery” is the process of collecting, preparing, reviewing, and producing “electronically-stored information” in the context of a civil action.

What is electronically stored information (“ESI”)? The Federal Rules of Civil Procedure define ESI as information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. Because of the wide variety of computer systems currently in use, and the rapidity of technological change, courts often give an expansive definition of ESI which can include any type of information that is stored electronically, including emails, images, spreadsheets, “metadata,” PDF documents, databases, and other groupings of information.

Are printed copies of my emails sufficient? In litigation, emails are commonly produced as printouts or PDFs. However, courts may require the production of emails in their native electronic form to allow the other party to certify that the produced emails have not been altered. If the court finds that a party, anticipating litigation, intentionally deletes or destroys ESI, that party may be exposed to a claim that they have “spoliated” evidence. An opponent may even complain if a party fails to take affirmative steps to prevent information from being deleted or overridden as part of an automated process. For instance, this often occurs when a surveillance camera system “writes over” older video to create space for new video.