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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 19

FROM : CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 9th day of March, 2007 , are as follows:

BY VICTORY, J .:

2006-C- 1181

BETTY JO H. WRIGHT, ET AL v. LOUISIANA POWER & LIGHT, ET AL. (Parish of Ouachita) For the reasons stated herein, the judgment of the court of appeal is reversed, and the judgment of the trial court granting defendants' motion for summary judgment is reinstated. REVERSED. KNOLL, J., dissents and assigns reasons.

03/09/2007

SUPREME COURT OF LOUISIANA NO. 06-C-1181 BETTY JO WRIGHT, ET AL. VERSUS LOUISIANA POWER & LIGHT, ET AL.

KNOLL, J., dissents. For the following reasons, I respectfully dissent. In my view, the court of appeal correctly found the defendants' argument that they had no duty to disclose they had obtained possession and ownership of the subject vehicle to be specious. The defendants' actions show they consciously hid the fact that they had the car. Although "[d]iscovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity," this court further explained that "the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved." Gladstone v. American Auto. Ass'n, Inc., 419 So.2d 1219, 1223 (La. 1982)(emphasis added). Pursuant to La. Code Civ. Pro. art. 1428(2), a party has a duty to supplement responses to discovery requests when "he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment." (Emphasis added). The defendants filed a second spoliation motion on July 31, 1998. After this motion was filed, defendants' attorney purchased the vehicle on March 1, 1999. Defendants did not inform the plaintiffs or the court of their purchase of the vehicle; indeed, they proceeded to argue their spoliation motion on August 23, 1999 without telling the court or the plaintiffs they had purchased the car. Moreover, the defendants filed a motion on August 13, 1999 to limit plaintiffs' expert witness

03/09/2007 SUPREME COURT OF LOUISIANA
NO. 06-C-1181 BETTY JO H. WRIGHT, ET AL. versus LOUISIANA POWER & LIGHT, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF OUACHITA VICTORY, J. We granted a writ application in this nullity action to determine whether the court of appeal erred in reversing the trial court's rulings granting exceptions of no cause of action and prescription, and motion for summary judgment in favor of defendant. After reviewing the record and applicable law, we find that court erred in reversing the trial court's ruling granting the motion for summary judgment and reinstate the trial court's ruling. FACTS AND PROCEDURAL HISTORY On the afternoon of October 16, 1988, Ned Wright drove his 1982 MercedesBenz SL open-topped convertible up a guy wire anchoring a light pole in Monroe, Louisiana, causing the car to overturn. Mr. Wright, who was unbelted, was partially ejected and died minutes after the accident. His wife, Betty Jo Wright, who was sitting in the passenger seat, survived. Tests taken at the hospital showed Mr. Wright had a blood alcohol level of 0.19 at the time of the accident. There is no dispute that Mr. Wright was solely at fault in causing the accident. In November of 1988, Mrs. Wright, through her attorneys, sold the 1982 Mercedes to Steven Taylor for $11,455 in Monroe. Taylor repaired and replaced all of the Mercedes's damaged parts, including the windshield frame, i.e., the A-pillars

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above the belt line, the left front fender, the headlight assembly, and the left door. All removed parts were sold to Auto Shred and destroyed and no photographs were taken by Taylor of the vehicle in its damaged condition. On September 12, 1989, plaintiffs1 filed suit against Louisiana Power and Light (LP&L)2, as the owner of the utility pole, and Mercedes-Benz of North America, Inc. (MBNA).3 Plaintiffs alleged that the open-topped convertible was defectively designed because it lacked adequate "rollover protection" that would have prevented Mr. Wright's death. Specifically, plaintiffs faulted the convertible's design because it (1) lacked a rollover bar and (2) lacked stronger A-pillars.4 On October 23, 1989,
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"Plaintiffs" are the spouse and children of the deceased. LP&L was dismissed before trial. MBNA is now known as Mercedes-Benz USA, LLC, ("MBUSA").

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In Paragraph XIII of the original Petition, plaintiffs alleged that the Mercedes was unreasonably dangerous for the following reasons: a. The vehicle was unreasonably dangerous in construction or composition in that it failed to meet minimum rollover protection standards of defendant or of otherwise identical vehicle marketed elsewhere; b. The vehicle was unreasonably dangerous in design and alternative feasible designs existed at the time which were capable of preventing the damage claimed; c. The vehicle was unreasonably dangerous because of the failure to warn of dangers associated with rollover and the lack of occupant protection; and, d. The vehicle was unreasonably dangerous because of non-conformity to the representations of the vehicle as a safe, stable, and extensively tested "sports car." Daimler Benz Aktiengesellschaft (now known as DaimlerChrysler Aktiengesellschaft) was added as a defendant in the First Supplemental and Amending Petition and all allegations against MBNA were alleged against Daimler. Daimler was the parent corporation of MBNA, now known as MBUSA. In a Second Supplemental and Amending Petition, plaintiffs added the following allegations: a. Failure to properly design, engineer, and/or manufacture the aforesaid 1982 Mercedes-Benz 380 SL; b. Failure to equip the aforesaid 1982 Mercedes-Benz 380 SL with occupant crash safety equipment, including but not limited to a rollover bar, headache bar, bulkhead and/or windshield of sufficient strength to withstand a foreseeable rollover event; c. Failure to provide proper and safe guidelines and/or warnings for the use of said vehicle. 2

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plaintiffs propounded a request for production of documents to MBNA, requesting the following: "Request for Production No. 20: Any and all tangible evidence retrieved from the accident site involved herein or taken from the vehicle in question following the death of Ned. D. Wright." On December 8, 1989, MBNA responded to the request as follows: "Response to Request for Production No. 20: Defendant, MBNA, has no such evidence." There is no dispute that this response was truthful and correct at the time it was made. MBNA propounded a Request for Production on plaintiffs, seeking the production of the vehicle or any parts of the vehicle. Plaintiffs responded that "Plaintiff does not own or control the vehicle in question and cannot produce same" and "Plaintiff does not have any component parts of the vehicle in question in her possession." In February of 1990, Taylor sold the repaired vehicle in Dallas, Texas to the Dallas Auto Mart. On January 1, 1992, Defendants filed a spoliation motion alleging that plaintiffs spoliated evidence by selling the vehicle to a person who would undoubtedly replace all of the Mercedes' damaged parts, particularly the A-pillars which were alleged to be defective. Defendants claimed that the failure of plaintiffs to preserve the evidence which they knew would be involved in litigation prejudiced their ability to prepare a defense and sought the following relief: (1) dismissal of all plaintiffs' claims regarding the vehicle; or (2) refusal to allow any evidence to be presented regarding alleged defects in the vehicle. Plaintiffs responded to the spoliation motion that the vehicle was sold without any attempt to hide or destroy evidence or to gain any unfair advantage, and that defendants had waited nearly two years from the date of the accident to request information concerning the whereabouts of the vehicle and "had they acted more promptly, knowing full well the significance

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of their delay, they may have had an opportunity to examine the car before repairs were made." The trial court denied the motion. After the enrollment of new and additional counsel, on July 31, 1998, defendants filed a Motion for Partial Summary Judgment and/or Motion to Partially Dismiss based on Spoliation and/or Motion in Limine to Exclude Claims Concerning the Alleged Defects in the A-pillar. This motion was supplemented on or about November 30, 1998, and defendants filed a reply brief on August 13, 1999. The motion claimed that they were unable to present a defense to the defective A-pillars claim because plaintiffs had allowed the A-pillars to be destroyed. Plaintiffs defended this motion on the same grounds it defended the first spoliation motion. While this motion was pending, defendant's new counsel, Timothy Smith, hired an investigator to find the vehicle in question. The investigator found the vehicle by conducting a Department of Motor Vehicles search and traced it to Texas. On November 23, 1998, defendants filed into the record a "Supplemental Exhibit List," which specifically listed as an exhibit: "1. Registration Certificate from Texas showing that Ned Wright's vehicle was sold to Mr. Hudson."5 On March 1, 1999, Mr. Smith purchased the vehicle on behalf of defendants from its then owner, Meredith Misenhelter, and after examination confirmed that the A-pillars had been removed. Title to the vehicle was put into Mr. Smith's name. Defendants did not inform plaintiffs or the court that they had purchased and had possession of the vehicle. On August 23, 1999, the spoliation motion regarding the A-pillars was argued and denied by the trial court.

At oral argument on the motion in the trial court, defense counsel stated that the actual Texas title history referred to in the Supplemental Exhibit List was in the courtroom at trial in defendants' Exhibit Book. 4

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On August 13, 1999, defendants filed a Motion to Limit Dr. Limpert's [plaintiffs' expert] Testimony to Design Defect Theories Regarding the Lack of Additional Spot welds on A-pillars and Lack of a Fixed Roll Bar. As part of their argument, defendants argued that Dr. Limpert had admitted that he never saw Mr. Wright's vehicle. The trial court denied defendant's motion in limine, allowing Dr. Limpert to testify as an expert. On March 3, 2000, the Second Circuit denied defendants' writ application, ruling as follows: The trial court correctly decided that Dr. Limpert's testimony has a sufficiently reliable basis for admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Dr. Limpert testified extensively that the structures and forces involved in an auto crash of this type are simple and, given the witness' expertise in engineering, readily capable of explanation. Moreover, Dr. Limpert has access to the blueprints of the A-pillar design in question and to DBAG's [Daimler Benz Aktiengesellschaft] own A-pillar test results. Trial on the merits occurred from April 3-19, 2000. On April 19, 2000, the trial court granted Directed Verdict in favor of MBNA because it was a "nonmanufacturing seller." The jury found in favor of all defendants. Plaintiffs' motion for new trial was denied and in March of 2001 the case was settled regarding a cost award assessed against plaintiffs and plaintiffs' appeal was dismissed with prejudice. On December 10, 2003, plaintiffs filed a Petition for Damages and for Equitable Remedy Nullifying Judgment and Ordering New Trial Based upon Fraud or Ill Practices and Spoliation of Evidence, naming as defendants the original

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defendants to the Wright lawsuit, and also the law firms representing those defendants.6 The Petition alleged as follows: VIII. The plaintiffs' causes of action in the prior litigation were based upon product liability claims related to alleged defects in design, defects in material or composition, and defects as a result of failure to warn. IX. During the course of the litigation, plaintiffs requested that the defendants produce any tangible evidence from the accident site and this request included the vehicle in question. X. The defendants initially responded to the requested production of the vehicle in question in an apparent truthful manner, but subsequently their counsel located and purchased the vehicle in his individual name. XI. After purchasing the vehicle, defense counsel for defendant did not inform the plaintiffs or the Court that they had physical possession of the vehicle, and filed numerous pleadings suggesting just the opposite. XII. While having possession of the vehicle in question, defendants sought to have the plaintiffs' claims dismissed on the basis of spoliation, on the basis of failure to demonstrate defects in design, construction or composition, or in failure to warn, and on the basis that the plaintiffs' experts who had not examined the case were incompetent to testify as experts. XIII. Defendants had an affirmative obligation under Article 1428 of the Code of Civil Procedure to disclose the possession and ownership of the vehicle and failed to do so.

Plaintiffs also filed a "Rule to Show Cause Why the Court Should Not Grant Action Seeking Equitable Remedies Declaring Judgments Null and Ordering a New Trial Based Upon Fraud or Ill Practices." These actions were consolidated and transferred to the trial judge in the original case, Judge Alvin R. Sharp. 6

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XIV. Defendants had an affirmative obligation to the Court to disclose that their attacks on the plaintiffs' legal position and on the plaintiffs' experts were inaccurate because the defendants had actual possession of the vehicle. XV. The failure to disclose of this "crown jewel of product liability litigation" to opposing counsel or to the Court constituted a fraud or ill practice as defined by Article 2004 of the Louisiana Code of Civil Procedure and constituted conscious spoliation of evidence by secreting and later destroying the vehicle at issue. XVI. The plaintiffs first learned of the possibility of the above recited fraud or ill practice less than one year from the date of the filing of this Petition. XVII. As a result of the intentional hiding of critical evidence, plaintiffs were prevented from presenting critical evidence to the Court and the jury, all of which resulted in the lost opportunity to present factual evidence to a trier of fact to obtain just compensation for the damages sustained by the plaintiffs in the accident of 16 October 1988. XVIII. Defendants' conscious decision to secret and destroy the critical evidence in the former litigation constituted a fraud or ill practice, negligent spoliation of evidence, intentional spoliation of evidence, and/or fraud upon the court, thereby entitling the plaintiffs to recover all damages related to the former litigation. XIX. The defendants acted in concert and with full knowledge of the deceit upon the Court and opposing counsel and should, therefore, be solidarily cast in judgment for the entirety of all damages sustained. On April 23, 2004, plaintiffs propounded discovery requests to defendants seeking, among other things, information concerning any inspection of the vehicle done by defendants after defendants acquired the vehicle. On May 5, 2004,

defendants filed a Motion for Protective Order, seeking to stay all discovery until 30
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days after the court had determined which division the matter would proceed, see footnote 6, supra, and "the proper division has resolved MBUSA's exceptions demonstrating that plaintiffs state no cause of action as a matter of law." The trial court granted the protective order. On November 2, 2004 MBUSA filed exceptions and an alternative Motion for Summary Judgment in response to plaintiffs' Petition to nullify the judgment. MBUSA claimed, among other things, that: 1. Plaintiffs cannot plead facts demonstrating that the defendants owed them any duty to disclose information regarding Ned Wright's 1982 Mercedes-Benz 380 SL convertible (the "Subject Vehicle"); 2. Plaintiffs cannot meet the requirement of "diligence" under Article 2004 because they failed to exhaust obvious possibilities for finding the Subject Vehicle, including: (a) procuring the vehicle after the litigation started, but while it was still in Monroe, for most if not all of that time in the possession of the very person to whom plaintiffs had sold the vehicle; (b) searching the public records through easily available sources by using the Vehicle Identification Number ("VIN") that is unique to the Subject Vehicle; or (c) propounding discovery to defendants specifically requesting production of the vehicle or information about its current location. 3. Plaintiffs cannot demonstrate that their knowledge of the location of the Subject Vehicle at the time of trial would have changed the outcome of the jury's verdict, because in the original proceeding, plaintiffs themselves argued that the vehicle was irrelevant to their claim; and 4. Plaintiffs' claims are all prescribed by the applicable statute of limitations because, under plaintiffs' own (current) theory, they now suggest that they believed the vehicle was a "critical piece of evidence" all along, yet they knew that it was missing. Thus, they clearly had the requisite level of notice

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