Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 10-20-2018

Case Style:


Case Number: CW 16-897 consolidated with CW 16-898, CA 18-221 & CA 18-223



Plaintiff's Attorney: Walter Leger, Jr.
Franklin Glen Shaw
Walter Leger, III
Michael L. Barras

Defendant's Attorney: Edward Paul Landry
Michael T. Pulaski
Keith W. McDaniel
Harry Joseph Philips, Jr.
L. Adam Thames


At the time of the accident, Plaintiffs were employed as riggers for
BWW. BWW and Morris Material, Inc., entered into a contract for BWW to
fabricate and assemble a port gantry crane, which is a large tower crane with a steel
support tower and a horizontal boom that holds the operator’s cab and the crane’s
operating mechanism. Port gantry cranes are generally used to offload cargo from
Although the port gantry crane was to be sold to the Port of Lake
Charles, its fabrication and construction began in 2010 at BWW’s facility in New
Iberia, Louisiana. BWW fabricated the crane in two sections: (1) the main body
tower section and (2) the boom section, which BWW planned to construct on the
ground. To lift the boom and attach it to the tower section, BWW utilized the model
888 crane at issue in this case, which was manufactured by Manitowoc in 1998 and
was purchased by the Bayou Companies in 2008. At the time of the accident, BWW
was leasing the crane from the Bayou Companies.
On May 26, 2011, Plaintiffs were standing on the lifted boom,
attempting to fasten the boom section to the tower section, when the crane allegedly
malfunctioned, causing the boom to crash into the tower. As a result, Plaintiffs fell
to the ground and sustained serious personal injuries. BWW also sustained property
damage. Allianz, which provided builders’ risk insurance coverage for BWW, paid
for BWW’s property damage.
Plaintiffs each filed separate product liability lawsuits against
Manitowoc, alleging that the crane was unreasonably dangerous because of an
inadequate warning, defective design, and/or defect in construction or composition
under the LPLA. BWW and Allianz intervened in the lawsuits. The trial court
subsequently consolidated the two suits.
In their amended petitions, Plaintiffs/Intervenors contended that the
accident was a result of a defect relating to six bearing retainer cap screws that
secured the brake and clutch assembly to the crane’s hoist drum.
Plaintiffs/Intervenors alleged that the cap screws had loosened, causing the drum to
disengage from the crane shaft and fall, a defect Manitowoc had advised its
distributors of in 2002 through the issuance of its Service Bulletin 90. A post
accident investigation of the crane revealed the six cap screws had backed out, but
Manitowoc contended that the malfunction was due to neglect and poor maintenance
of the crane by various distributers and previous owners as well as the unsafe and
overloaded use by BWW.
In its answer and amended answers, Manitowoc raised affirmative
defenses of comparative fault against several third-parties, including the Coast Crane
Company (Coast Crane) (the original distributor),3 T&T Truck & Crane Service (the
original purchaser in 1998), and Northern Crane Services, which possessed the crane
from 2003-2008. Manitowoc contended that Coast Crane could bear some
comparative fault because it was the original distributor and the crane was in Coast
Crane’s distributorship territory at the time Service Bulletin 90 was issued.
Moreover, Manitowoc discussed with Coast Crane the inspection procedure required
in that service bulletin while Coast Crane was working on the crane and viewing the
drum clutch assembly that Plaintiffs/Intervenors claim was defective; thus,
Manitowoc posited that Coast Crane’s failure to make the corrections recommended
3Coast Crane has since been dissolved through bankruptcy proceedings.
by Service Bulletin 90 could cast it at fault. As to T&T Truck & Crane Service and
Northern Crane Services, Manitowoc asserted they could be liable for the long-term
failure of maintenance and inspection of the crane, which Manitowoc argued was a
critical cause of the load drop.
Manitowoc moved for summary judgment, seeking to have
Plaintiffs’/Intervenors’ claims against it dismissed on the grounds that the crane was
not being used in a reasonably anticipated manner at the time of Plaintiffs’ accident
or, alternatively, that Plaintiffs/Intervenors did not prove the existence of a defect in
the crane that caused their damages. It also filed a Motion for Dismissal of Certain
Claims and Causes of Action and for Spoliation Presumption. By that motion,
Manitowoc sought to have Plaintiffs/Intervenors sanctioned for destroying, losing,
or intentionally refusing to produce critical evidence that would have been essential
to Manitowoc’s defense, i.e., the drum adapter. Manitowoc asserted that due to
spoliation of evidence, certain claims by Plaintiffs/Intervenors should be dismissed
and/or the jury should be instructed to apply an adverse presumption that if the
missing evidence had been produced, it would have been in Manitowoc’s favor.
Plaintiffs/Intervenors also sought partial summary judgment on the
issue of whether Manitowoc was the manufacturer of the crane and whether
Manitowoc, as the manufacturer, failed to warn of a defect in the crane as required
by the LPLA. They argued that Manitowoc’s failure to send Service Bulletin 90 to
the owners of the crane breached its duty to warn under the LPLA, rendering the
crane unreasonably dangerous. Plaintiffs/Intervenors also sought judgment
dismissing Manitowoc’s affirmative defenses against its distributors and previous
owners of the crane, arguing that Manitowoc could not delegate its duty to warn.
Following a hearing, the trial court denied Manitowoc’s motion for
summary judgment. In its written reasons, the trial court found the following
genuine issues of material fact existed: (1) “whether the crane was being used in a
reasonably anticipated manner at the time of the incident”; (2) whether there was an
unreasonably dangerous condition in the construction or composition of the crane
that proximately caused Plaintiffs’/Intervenors’ damages; (3) whether there was an
unreasonably dangerous condition in the design of the crane that proximately caused
Plaintiffs’/Intervenors’ damages; and (4) whether “Manitowoc failed to provide an
adequate warning, and this failure caused [Plaintiffs’/Intervenors’] damages.”
In a separate judgment, the trial court denied Manitowoc’s motion
pertaining to spoliation evidence. The trial court also granted
Plaintiffs’/Intervenors’ motion for partial summary judgment, finding that
Manitowoc was the manufacturer of the crane and that Manitowoc had breached its
non-delegable duty to warn of defects in the crane. Finding that the various
distributors and owners of the crane did not owe a duty to warn, the trial court
dismissed Manitowoc’s affirmative defenses as to those parties. The trial court
designated both judgments immediately appealable under La.Code Civ.P. art.
Manitowoc then filed two separate writ applications with this court,
seeking review of the ruling whereby the trial court denied its motion for summary
judgment as well as review of the trial court’s denial of Manitowoc’s motion for
spoliation sanctions. This court signed an order consolidating the two writ
applications. Manitowoc also filed two separate appeals from the trial court’s
judgment granting Plaintiffs’/Intervenors’ motion for partial summary judgment on
their failure to warn claim. In the interest of judicial efficiency and economy, this
court granted Manitowoc’s motion to consolidate its writ applications with the
appeals. All these matters are now before this court.

An appellate court reviews a motion for summary judgment de novo,
using the identical criteria that govern the trial court’s consideration of whether
summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d
880. Therefore, just like the trial court, we are tasked with determining whether “the
motion, memorandum, and supporting documents show that there is no genuine
issue as to material fact and that the mover is entitled to judgment as a matter of
law.” La.Code Civ.P. art. 966(A)(3).
A genuine issue of material fact exists “if reasonable persons could
disagree. If on the state of the evidence, reasonable persons could reach only one
conclusion, there is no need for a trial on that issue.” Smith v. Our Lady of the Lake
Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (quoting W. Schwarzer,
Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material
Fact, 99 F.R.D. 465, 481 (1983)). In determining whether a material factual dispute
exists, a court should consider all of the record evidence but must refrain from
determining the merits, making credibility determinations, and evaluating testimony.
Id. All doubts are resolved in favor of the non-moving party. Id.

At the center of these product liability actions is the LPLA, which
provides “the exclusive theories of liability for manufacturers for damage caused by
their products.” La.R.S. 9:2800.52. To successfully bring a products liability action
under the LPLA, a plaintiff must establish four elements: (1) the defendant is a
manufacturer of the product; (2) the claimant’s damage was “proximately caused by
a characteristic of the product”; (3) this characteristic “renders the product
unreasonably dangerous”; and (4) 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). Under the LPLA,
A product is unreasonably dangerous if and only if:

(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;

(2) The product is unreasonably dangerous in design as provided in 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 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 R.S. 9:2800.58.

La.R.S. 9:2800.54(B).
While the characteristic that renders the product unreasonably
dangerous in construction/composition or in design must exist when the product
leaves the manufacturer’s custody, the characteristic that renders the product
unreasonably dangerous for failure to adequately warn or conform to a warranty
“must exist at the time the product left the control of its manufacturer or result from
a reasonably anticipated alteration or modification of the product.” La.R.S.
9:2800.54(C). The burden is on the claimant to prove these elements. La.R.S.
In their motions for summary judgment, the parties herein argue that
each is entitled to judgment as a matter of law on certain elements of the claims.
Manitowoc argues that it is entitled to judgment on the elements of (1) reasonably
anticipated use; (2) unreasonably dangerous in construction or composition; (3)
unreasonably dangerous due to an inadequate warning; and (4) unreasonably
dangerous in design. Plaintiffs/Intervenors, on the other hand, argue they are entitled
to judgment on the element of unreasonably dangerous due to an inadequate
To succeed on their motions, the parties have to prove there is no
genuine issue of material fact as to these elements, meaning that, even viewing the
evidence in the light most favorable to the non-moving party, no reasonable
factfinder could find for the non-moving party. Smith, 639 So.2d 730. Having
reviewed the record, we cannot say that any of the parties have demonstrated a lack
of evidence as to each of these elements such that no reasonable factfinder could
find in favor of the non-moving parties. We turn now to a discussion of each element
and the record evidence pertaining thereto.

Reasonably Anticipated Use

“Under the LPLA, a manufacturer is liable only for those uses it should
reasonably expect of an ordinary consumer.” Butz v. Lynch, 99-1070, p. 7 (La.App.
1 Cir. 6/23/00), 762 So.2d 1214, 1218, writ denied, 00-2660 (La. 11/17/00), 774
So.2d 980. “Reasonably anticipated use” is defined under the LPLA as “a use or
handling of a product that the product’s manufacturer should reasonably expect of
an ordinary person in the same or similar circumstances.” La.R.S. 9:2800.53(7).
“The standard for determining a reasonably anticipated use is an objective one (an
ordinary person in the same or similar circumstances).” Butz, 762 So.2d at 1218.
And “what constitutes a reasonably anticipated use is ascertained from the point of
view of the manufacturer at the time of manufacture,” thus precluding “the fact
finder from using hindsight.” Payne v. Gardner, 10-2627, p. 3 (La. 2/18/11), 56
So.3d 229, 231.
In its motion for summary judgment, Manitowoc asserts that Plaintiffs’
claims should be dismissed because the manner in which they were using the crane
at the time of the incident, i.e., riding a “suspended load,” was not a reasonably
anticipated use. The record evidence establishes that a suspended load is a free
floating object that is held aloft by a crane. According to Manitowoc’s evidence, the
riding of a suspended load without fall protection was a violation of the Occupational
Safety and Health Administration (OSHA) standards, BWW’s operating procedures,
the crane’s Operator’s Manual, and accepted industry practice in the crane industry.
Such a use, Manitowoc maintains, was obviously dangerous and was well known by
BWW’s employees as a violation of OSHA standards.
Plaintiffs, however, presented evidence that the boom was no longer
classified as a “suspended load” because the boom was pinned and connected to a
super structure, i.e., the tower. Although Manitowoc disregards this evidence as
“seemingly contrived” and based on regulations applicable to ironworkers, we find
this evidence presented by Plaintiffs’ expert, William Clifford Dickinson, precludes
summary judgment on this issue.
Manitowoc also argues that the manner in which BWW used the crane
was not a reasonably anticipated use because the crane was overloaded and poorly
maintained as per the testimony of its experts in the crane industry, Bradley D.
Closson and Michael Parnell. But again, Plaintiffs/Intervenors presented factual
evidence, through the testimony of the crane operator, Christopher S. Alleman,
disputing whether the crane was overloaded at the time of the accident. They further
submitted evidence of the crane’s annual inspections, which were required by OSHA
and performed by independent OSHA-certified inspectors, as well as testimony that
the crane was regularly inspected by BWW and the Bayou Companies’ crane
operators, none of which inspections revealed poor maintenance. This evidence as
well raises genuine issues of material fact which likewise precludes summary
judgment on this element.

Unreasonably Dangerous

As stated above, a product may be deemed unreasonably dangerous in
any one of four ways: (1) in construction or composition; (2) in design; (3) for
failure to provide an adequate warning; or (4) for failure to conform to an express
manufacturer’s warranty. La.R.S. 9:2800.54(B). Each is a distinct possible theory
of recovery governed by a separate statute as set forth in La.R.S. 9:2800.54(B).
While Manitowoc argues that Plaintiffs/Intervenors lack sufficient
evidence to prove that the crane was unreasonably dangerous in construction,
warning, and design, Plaintiffs/Intervenors argue that there is no genuine issue of
material fact that Manitowoc failed to warn the crane owners of a defect with the
cap screws, rendering the crane unreasonably dangerous under their theory of failure
to warn. However, we find there are genuine issues of material fact regarding
whether the product was unreasonably dangerous with respect to all three theories.

1. Construction or Composition
Pursuant to La.R.S. 9:2800.55, “[a] product is unreasonably dangerous
in construction or composition if, at the time the product left its manufacturer’s
control, the product deviated in a material way from the manufacturer’s
specifications or performance standards for the product or from otherwise identical
products manufactured by the same manufacturer.” “[W]hether a defect is
unreasonably dangerous in . . . composition is a question of fact.” Morris v. United
Servs. Auto. Ass’n, 32,528, p. 8 (La.App. 2 Cir. 2/18/00), 756 So.2d 549, 557.
Manitowoc argues that Plaintiffs/Intervenors lack sufficient evidence
upon which they could demonstrate an unreasonably dangerous condition in
construction or composition in existence when the crane left Manitowoc’s custody
and control. However, Plaintiffs/Intervenors argue that, according to the deposition
testimony of Michael Brunet, Manitowoc’s former Director of Product Safety,
Manitowoc’s plans and specifications called for Loctite 242 to be “applied” to all
six cap screws. Plaintiffs/Intervenors claim that a microscopic examination of the
screws after the accident apparently revealed no Loctite on the threads. Rather, the
Loctite 242 had collected at the top and bottom of five screws; the sixth screw was
completely devoid of Loctite. According to Plaintiffs’/Intervenors’ expert, Dr.
Thomas C. Shelton, P.E.,4 the unintended load drop was proximately caused by the
fact that Loctite coverage for the cap screws deviated in a material way from
Manitowoc’s specifications.
Given the lack of evidence in the crane history file, produced by
Manitowoc in discovery, that the cap screws were ever replaced,
Plaintiffs/Intervenors argue that there is ample evidence that the cap screws were the
original cap screws that Manitowoc installed; therefore, there is ample evidence that
the crane was unreasonably dangerous in construction or composition when it left
4The two-letter title, P.E., stands for licensed professional engineer.
Manitowoc’s control. We find this evidence is sufficient to raise a genuine issue of
material fact as to this theory.

2. Failure to Warn
In a failure to warn case, a product is considered unreasonably
dangerous if the claimant can prove that “at the time the product left the
manufacturer’s control, the product possessed a characteristic that may cause
damage and the manufacturer failed to use reasonable care to provide an adequate
warning of such characteristic and its danger to users and handlers of the product.”
La.R.S. 9:2800.57(A). The LPLA defines “[a]dequate warning” as:
a warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the danger for which the claim is made.

La.R.S. 9:2800.53(9). Moreover, the LPLA imposes a continuing duty on the
manufacturer to warn the users and handlers of its product of defects the
manufacturer learns of after the product leaves its custody:
A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

La.R.S. 9:2800.57(C).
At issue in the present case is Manitowoc’s continuing duty to warn of
a defect that it discovered in its model 888 cranes after the subject crane left its
control in 1998—a defect that was documented in Service Bulletin 90. As explained
in Mr. Brunet’s deposition, Manitowoc investigated another model 888 crane located
in Colorado that suffered a similar malfunction, an unintended load drop, on July 25,
2002. In its investigation, Manitowoc learned that the cap screws could loosen and
cause damage to the clutch assembly which could, in turn, result in load drops when
the crane was operating in freefall mode. Thereafter, Mr. Brunet immediately
drafted Service Bulletin 90 to warn its distributors. As Mr. Brunet explained, service
bulletins were the method that Manitowoc used to communicate service issues
involving its cranes.
Service Bulletin 90 advised distributors that loose cap screws could
cause damage to the clutch assembly and requested that all model 888 cranes
equipped with freefall be inspected by a Manitowoc qualified service technician. If
any crane was found to have loose cap screws, the screws should have been removed,
applied with Loctite 242, and re-tightened to fifty-three foot-pounds. Attached to
the bulletin was an inspection form that was to be completed by the distributor and
returned to Manitowoc within thirty days from the date the bulletin was issued. The
inspection report would then be placed in the crane history file, a service and
ownership history file that Manitowoc maintained for all the cranes that it sold.
At the time that Service Bulletin 90 was issued, Manitowoc identified
forty-two cranes that were manufactured with freefall installed by Manitowoc.
Manitowoc sent Service Bulletin 90 to its distributors via facsimile in October 2002.
Thereafter, Manitowoc relied upon its distributors to identify the model 888 cranes
that the distributors had sold and to contact the owners of those cranes to both warn
the owners and to inspect and, if need be, perform the recommended repair.
It is undisputed that the crane at issue was subject to Service Bulletin
90 and that the service bulletin was not sent to the owners. What is disputed is
whether Manitowoc breached its duty to warn by issuing its bulletin to its
distributors, not the owners. Plaintiffs/Intervenors moved for summary judgment on
this issue, and the trial court granted their motion, finding the warning was not
sufficient because it was not sent to the owners. Manitowoc also sought summary
judgment, arguing that Plaintiffs/Intervenors failed to show anything related to
Service Bulletin 90 caused the load drop and resulting damages that were sustained
in this case. Regardless, Manitowoc argued that Plaintiffs/Intervenors failed to
present an alternative warning and means of ensuring compliance with any such
warning that would have avoided the incident at issue in this case. Once again, we
find that the factual disputes in this matter preclude summary judgment on this
theory of recovery.
“Whether a particular warning or instruction is adequate is a question
for the trier of fact.” Jack v. Alberto-Culver USA, Inc., 06-1883, p. 5 (La. 2/22/07),
949 So.2d 1256, 1259. Several factors come into play in determining the adequacy
of the warning, namely: (1) “the severity of the danger,” (2) the likelihood of
successful communication of the warning to foreseeable consumers, (3) “the
intensity and form of the warning,” and (4) “the cost of improving the strength or
mode of the warning.” Bloxom v. Bloxom, 512 So.2d 839, 844 (La.1987). It stands
to reason that this fact-intensive inquiry is both case-specific and industry-specific
as the duty itself is one of “a reasonably prudent manufacturer.” See La.R.S.
In granting summary judgment, the trial court relied upon this court’s
holding in Marks v. OHMEDA, Inc., 03-1446, p. 9 (La.App. 3 Cir. 3/31/04), 871
So.2d 1148, 1155, writs denied, 04-1617, 04-1653 (La. 10/8/04), 883 So.2d 1019,
1020, that “the duty established by La.R.S. 9:2800.57(C) is a duty placed directly
upon the manufacturer. It cannot be delegated.” Marks, however, is clearly
distinguishable from the instant case, particularly in that the factfinder reached its
conclusion as to the insufficiency of the warning after a six-day bench trial on the
merits. This matter is before the court on summary judgment.
Moreover, the manufacturer in Marks published its warning in a trade
publication—a medical journal—but took no direct action to notify its users. The
record evidence in the present matter establishes that Manitowoc issued its warning
to its distributors, relying, as was its historical practice, on its distributors to not only
inform their buyers/owners, but also to inspect and repair the potential defect.
Whether that procedure was reasonable and sufficient in this circumstance under the
inquiry recited above is a question of fact that we find must be determined by the
factfinder and cannot be resolved on summary judgment.
Nevertheless, because the factfinder could reasonably determine, as the
trial court herein did, that Manitowoc breached its duty by failing to send any
notice/warning directly to the owners, we further find no merit at this time in
Manitowoc’s argument on Plaintiffs’/Intervenors’ failure to establish an alternative
warning. Finally, we note that Plaintiffs/Intervenors, through their experts’
opinions, have produced sufficient evidence for a reasonable factfinder to conclude
that the alleged defect for which Manitowoc may have had a duty to warn—the cap
screw assembly—could have caused the injuries and damages in this matter.
Therefore, none of the parties are entitled to summary judgment on this
theory of recovery. Moreover, as a genuine issue of material fact exists on the
adequacy of Manitowoc’s warning procedure under these circumstances,
Plaintiffs/Intervenors are not entitled at this time to judgment on Manitowoc’s
affirmative defenses as to its distributors as well as the crane’s previous owners.
3. Design
Louisiana Revised Statutes 9:2800.56 defines a product that is
unreasonably dangerous in design as follows:
A product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:

(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and

(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

As with the previous theories, the question of whether a product is unreasonably
dangerous in design is a question of fact. Morris, 756 So.2d 549.
Manitowoc argues it is entitled to summary judgment on this theory as
well because Plaintiffs/Intervenors have failed to show a feasible alternative design
that could have prevented the incident. However, through the reports and
depositions of their experts, namely Dr. Shelton, Russ Rasnic, P.E., and G. Fred
Liebkemann IV, P.E., Plaintiffs/Intervenors have put forth evidence of four
alternative designs, which their experts opine would have substantially reduced the
chances of their injuries and damages. We find this evidence is also sufficient to
raise a genuine question of material fact and withstand summary judgment as to this
In light of all the genuine issues of material fact that exist on this record,
we find summary judgment is not appropriate at this time. Accordingly, we reverse
the trial court’s judgment granting partial summary judgment on Manitowoc’s
failure to warn and its affirmative defenses. On the showing made, we further find
no abuse of discretion in the trial court’s refusal to strike Plaintiffs’/Intervenors’
Exhibits 6, 9, 10, 14, 16, 23, 31, 34, and 37.5 Therefore, we likewise deny
Manitowoc’s writ application in docket number CW 16-897 in its entirety.

Spoliation Sanctions
The sole remaining issue before this court is Manitowoc’s motion for
spoliation sanctions. As our brethren in the first circuit recently explained:
Spoliation of the evidence is an evidentiary doctrine that refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use in pending or anticipated litigation. . . .

A trial court has the authority to impose sanctions on a party for spoliation of evidence and other discovery misconduct under both its inherent power to manage its own affairs and the discovery articles provided in the Louisiana Code of Civil Procedure. Under La. C.C.P. art. 1471, when a party refuses or is unable to comply with a discovery order, the trial court in a pending action “may make such orders in regard to the failure as are just,” thereby granting the trial court broad discretion to impose a range of sanctions. La. C.C.P. art. 1471(A); see also Fed.R.Civ.P. 37. Even without a discovery order, La. C.C.P. art. 191 authorizes trial courts to impose sanctions for spoliation of the evidence, since the destruction of evidence clearly interferes with the court’s ability to fairly administer justice. Specifically, La. C.C.P. art. 191 provides that a trial court “possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”

5In its application, Manitowoc merely lists the exhibits after first stating that it objected to them because they did not conform to the requirements of La.Code Civ.P. art. 966(A)(4). Without argument, Manitowoc then simply concludes: “The trial court erred in failing to strike these documents.” The exhibits are as follows: (1) Exhibit 6 – OSHA inspection tags; (2) Exhibit 9 – May 26, 2011 JSA; (3) Exhibit 10 – Manitowoc Load Capacity Chart; (4) Exhibit 14 – Rocky Mountain Investigative File; (5) Exhibit 16 – List of Model 888’s with freefall; (6) Exhibit 23 – Toby Dugas Diagram; (7) Exhibit 31 – 21722 OSHA certificate; (8) Exhibit 34 – Crane History File; and (9) Exhibit 37 – Freefall drawing showing Loctite specifications.
. . . .
The range of possible sanctions include dismissing a case, rendering a default judgment, striking pleadings, striking a claim or defense, and excluding evidence. See La. C.C.P. art. 1471; Spoliation of Evidence at 61 & n. 5. A determination as to what sanction is appropriate in a particular case is a matter within the province of the trial court, depending upon the facts present. As with other evidentiary and discovery rulings, the trial court has much discretion in deciding which sanction, if any, to impose. Cf. Hutchinson v. Westport Insurance Corporation, 041592 (La.11/8/04), 886 So.2d 438, 440 (per curiam); also see Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009). The appellate standard of review for a trial court’s evidentiary ruling on this issue is whether the trial court abused its broad discretion. See BancorpSouth Bank, 131396 at p. 22, 155 So.3d at 641; Paradise v. Al Copeland Investments, Inc., 09-0315 (La.App. 1st Cir. 9/14/09), 22 So.3d 1018; Everhardt v. Louisiana Department of Transportation and Development, 07-0981 (La.App. 4th Cir. 2/20/08), 978 So.2d 1036, 1045.

Carter v. Hi Nabor Super Market, LLC, 13-529, pp. 6-9 (La.App. 1 Cir. 12/30/14),
168 So.3d 698, 703-705, writ denied, 15-190 (La. 4/17/15), 168 So.3d 399 (emphasis
in original).
Manitowoc argues that all of the elements necessary for dismissal of
certain causes of action and a claim for an adverse inference are present here because
Plaintiffs/Intervenors have destroyed, lost, or intentionally refused to produce
evidence within their control without an adequate explanation. The evidence to
which Manitowoc refers is the drum adapter, which Manitowoc emphasizes was “the
very component part of the crane to which the retaining screws were mated” and
“could very well be the Rosetta Stone of this matter.”
However, Manitowoc has presented no evidence that
Plaintiffs’/Intervenors’ employees or representatives intentionally discarded or
destroyed the drum adaptor. Rather, the evidence suggests that the drum adapter
was one of the many items that were stolen out of the Bayou Companies’ warehouse
on or about February 28, 2014. The evidence further shows that a former employee
of the Bayou Companies pled guilty to the theft. In light of this evidence, we find
no abuse of discretion in the trial court’s denial of Manitowoc’s motion for spoliation
sanctions as Manitowoc has not established that Plaintiffs/Intervenors intentionally
destroyed the drum adaptor, which Manitowoc even concedes it inspected, at least
visually, on a previous occasion. Therefore, we likewise deny Manitowoc’s writ in
docket number CW 16-898, finding no abuse of the trial court’s broad discretion.

Outcome: For the foregoing reasons, the judgment of the trial court granting
partial summary judgment in favor of Plaintiffs/Intervenors is reversed. Writs are denied.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case