Center for America

State Tort Law Profile

State List

 

Louisiana

Last updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Abolished

Joint liability has been abolished, except for defendants who conspire to commit intentional or willful acts.  

La. Civ. Code art. 1804, 2324.

 

 Non-Economic Damages

Abolished

See above.

 

May a Jury Allocate Fault Between All Persons Contributing to an Injury?

Yes

La. Civ. Code. art. 2323(A).

Market Share Liability

No

Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir. 1983), cert. denied, 465 U.S. 1102 (1984); Jefferson v. Lead Indus. Ass’n Inc., 930 F. Supp. 241 (E.D. La. 1996), aff’d, 106 F.3d 1245 (5th Cir. 1997).

 

Defenses

Comparative Negligence

Yes, pure comparative negligence

La. Civ. Code art. 2323.

Assumption of Risk

No

Subsumed into comparative negligence.  

Murray v. Ramada Inns, Inc., 521 So. 2d 1123 (La. 1988).

 

Product Misuse

Yes

A manufacturer is only liable only if the injury arose from a reasonably anticipated use of the product, and, if not, then a court need not reach the issue of whether the product is unreasonably dangerous.  

Johnson v. Black & Decker U.S., Inc., 701 So. 2d 1360 (La. Ct. App. 1997); Daigle v. Audi of Am., Inc., 598 So. 2d 1304 (La. Ct. App. 1992).

 

Compliance With Government Standards

No

Compliance or noncompliance with government standards are admissible, but not determinative on the issue of liability.  

Dunne v. Wal-Mart Stores, Inc., 679 So. 2d 1034 (La. Ct. App. 1996); Hopper v. Crown, 646 So. 2d 933 (La. Ct. App. 1994).

 

Statute of Repose

No, except for improvements to real property

5-year statute of repose after the owner has taken possession of the improvement to real property.

La. Rev. Stat. Ann. § 9:2772.

 

Government Contractor Defense

Uncertain

 

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

La. Rev. Stat. Ann. § 9:2799.6.

Compensatory Damages

Is there a statutory limit on economic damages?

Yes, in medical malpractice cases only

In medical malpractice cases, the state limits total damages to $500,000, excluding damages recoverable for future medical care. 

La. Rev. Stat. Ann. § 40:1299.42(B); Butler v. Flint Goodrich Hosp. of Dillard Univ., 607 So. 2d 517 (La. 1992) ($500,000 limit on general damages in medical malpractice actions did not violate equal protection provisions of State or Federal Constitutions), cert. denied, 508 U.S. 909 (1993); Monistere v. Engelhardt, 896 So. 2d 1105 (La. App.), writ denied, 916 So. 2d 141 (La. 2005); Ruiz v. Oniate, 806 So. 2d 81 (La. App. 2001); Moody v. United Nat. Ins. Co., 657 So. 2d 236 (La. App.), writ denied, 663 So. 2d 713 (La. 1995); LaMark v. NME Hosps., Inc., 542 So. 2d 753 (La. App.), writ denied, 551 So. 2d 1334 (La. 1989); Batson v. S. La. Med. Center, 727 So. 2d 613 (La. App. 1998) (cap did not violate State Constitution’s provisions on equal protection, access to courts, sovereign immunity, or local or special laws), rev’d on other grounds, 750 So. 2d 949 (La. 1999); see also Owen v. United States, 935 F.2d 734 (5th Cir. 1991) (cap did not violate equal protection provision of State Constitution), reh’g denied, 943 F.2d 1315 (5th Cir. 1991), cert. denied. 502 U.S. 1031 (1992); Williams v. Kushner, 524 So. 2d 191 (La. App. 1988) (statute did not violate right to individual dignity or access to courts provisions of State Constitution), aff’d on other grounds, 549 So. 2d 294 (La. 1989); but see Arrington v. ER Physicians Group, 940 So. 2d 777 (La. App. 2006) (cap violated adequate remedy provision of State Constitution), vacated on procedural grounds sub nom. Arrington v. Galen-Med., Inc., 947 So. 2d 719, 947 So. 2d 724, 947 So. 2d 727 (La. 2007).

 

Is there a statutory limit on non-economic damages?

Yes, in medical malpractice cases only

See above.

Is recovery for medical monitoring permitted without physical injury?

No

La. Civ. Code art. 2315.  Medical monitoring is awarded as damages for cases filed before July 19, 1999.  See Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998), limited by 783 So. 2d 1251 (La. 2001).

 

Punitive Damages

Is there a statutory limit?

Punitive damages are not permitted

La. Civ. Code art. 3546.

Is there any restriction on imposing multiple punitive damage awards for same conduct?

N/A

 

Does the state receive a portion of the punitive damage award?

N/A

 

What standard is used?

N/A

 

Procedure

Venue

Conducive to Abuse - 
Does the statute permit forum shopping?

No

For a domestic corporation -- in the parish where its registered office is located.

For a foreign corporation licensed to do business in Louisiana -- in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.

For a foreign corporation not licensed to do business in Louisiana or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer -- in a parish where the process may be, and subsequently is, served on the defendant; 

For a nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process -- in the parish of the designated post office address of an agent for the service of process; 

For a foreign or alien insurer -- in the parish of East Baton Rouge.

La. Code Civ. Pro. art. 42.

Louisiana has codified the doctrine of forum non conveniens and provides that the court may dismiss a case upon the motion of a defendant if it arises out of state.  

La. Code Civ. Pro. art. 123.

 

Class Actions

Is there a right to an immediate appeal of class certification?

No

Relief is only available by extraordinary showing of irreparable injury justifying interlocutory appeal under La. Code Civ. Pro. art 2083.

Carr v. GAF, Inc., 702 So.2d 1384 (La. 1997).

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No, limit on appeal bonds applies only in tobacco cases or any litigation where the state is a judgment creditor

When the judgment is for a sum of money, the amount of the security shall be equal to the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs. However, in all cases, except litigation related to the tobacco Master Settlement Agreement, or any litigation where the state is a judgment creditor, where the amount of the judgment exceeds $150 million dollars, the trial court, upon motion and after a hearing, may, in the exercise of its broad discretion, fix the security in an amount sufficient to protect the rights of the judgment creditor while at the same time preserving the favored status of appeals in Louisiana.

La. Code Civ. P. Art. 2124(B)(1).

In civil litigation under any legal theory involving a signatory, or successor of a signatory, or an affiliate of a signatory, to the tobacco Master Settlement Agreement, the appeal bond shall be determined in accordance with the Code of Civil Procedure, except that the total amount of security required of all defendants collectively shall not exceed $50 million.  

La. Rev. Stat. Ann. § 39:98.6.

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes*

*Louisiana adopted Daubert in a criminal case in 1993.  

State v. Foret, 628 So. 2d 1116, 1123 (La. 1993).

In 1996, a Louisiana appellate court held Daubert not determinative because the expert’s opinion did not “constitute scientific expert testimony pertaining to new scientific knowledge.”  Cross v. Cutter Biological, 676 So. 2d 131, 146 (La. Ct. App. 1996).  The court cited State v. Foret  for the proposition that Daubert enumerates illustrative considerations to determine whether the reasoning or methodology underlying an expert’s testimony is scientifically valid and can properly be applied to the facts at issue.

Some Louisiana courts do not apply Daubert to expert testimony concerning hedonic damages involving loss of enjoyment of life.  Chustz v. J.B. Hunt Transp., Inc., 659 So. 2d 784, 785 (La. Ct. App. 1995).  Further, Daubert  is not used to evaluate the expertise of a proffered expert witness.  State v. Lewis, 654 So. 2d 761, 764 (La. Ct. App. 1995).  A Daubert hearing allows the trial court to conduct a preliminary assessment of whether the reasoning or methodology underlying the proffered testimony is scientifically valid and whether it can be applied to the facts at issue.  McMahon v. Reg. Transit Auth., 704 So. 2d 392, 394 (La. Ct. App. 1997).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Uncertain

Any person who suffers any ascertainable loss of money or movable property . . . as a result of the use or employment by another person of an unfair or deceptive method, act or practice . . . may bring an action individually but not in a representative capacity to recover actual damages.

La. Rev. Stat. Ann. § 51:1409(A).

 

What is the level of scienter (intent) required of a defendant?

Uncertain

Are class actions permitted?

No

La. Rev. Stat. Ann. § 51:1409(A).

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages only.

La. Rev. Stat. Ann. § 51:1409(A).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No*

If the court finds the unfair or deceptive method, act or practice was knowingly used, after being put on notice by the director or attorney general, the court shall award three times the actual damages sustained.

La. Rev. Stat. Ann. § 51:1409(A).

 

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes

La. Rev. Stat. Ann. § 51:1409(A).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“The provisions of this Chapter shall not apply to… [a]ny conduct which complies with section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C. 45(a)(1)], as from time to time amended, any rule or regulation promulgated thereunder and any finally adjudicated court decision interpreting the provisions of said Act, rules and regulations.”

La. Rev. Stat. Ann. § 51:1406.

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

Yes

Hardship exemptions are limited to: (1) the impossibility of obtaining an appropriate substitute caregiver; (2) the incurring of costs that would have a substantial adverse impact on the payment of the individual’s necessary daily living expenses; or (3) physical illness or disease.  Jurors may not receive an excuse from service solely because they will need to be absent from work.

La. Rev. Stat. Ann. § 13:3042(D).

 

May jurors automatically postpone and reschedule service?

Yes

Individuals may reschedule jury service one time to a more convenient time within 6 months.

La. Rev. Stat. Ann. § 13:3042.1.

 

Is a juror's employment and leave time adequately protected during service?

Yes

An employer may not discharge or otherwise subject to any adverse employment action, without cause, any employee called to serve or presently serving any jury duty and no employer shall make, adopt, or enforce any rule, regulation, or policy providing for the discharge of any employee who has been called to serve, or who is presently serving on, any grand jury or on any jury at any criminal or civil trial, provided the employee notifies his or her employer of such summons within a reasonable period of time after receipt of a summons and prior to his or her appearance for jury duty.

La. Rev. Stat. Ann. § 23:965(A).

 

Is there a limit on the frequency of jury service?

No

Is the length of service limited to no more than one day or one trial?

No

The length of jury service varies widely.  Several parishes require a 2-week commitment.  Louisiana district courts may adopt local rules providing for one-day or one-trial term of service.  Many parishes continue to require jurors to perform longer periods of jury service.

La. Rev. Stat. Ann. § 13:3047.

 

Juror per diem

$25, plus mileage*

Employers are required to compensate their employees during the first day of jury service.  After the first day of jury service, jurors not compensated by their employers receive $25 plus a mileage allowance, for each day of attendance in court.

La. Rev. Stat. Ann. §§ 13:3049(B)(2),  23:965(B)(1).

 

Is additional compensation available on lengthy trials?

No*

Under a 2003 law, a juror who does not receive full compensation from his or her employer, may receive additional compensation from the court of up to $300 after the tenth day of service.  Jurors who suffer financial hardship may also receive up $100 per day after the third day of service, if the trial lasts over 10 days.  The Judicial Council of the Supreme Court of Louisiana is directed to promulgate rules for the administration of the fund.  These additional payments are not available until the legislature adopts legislation providing a funding source for the fund.

La. Rev. Stat. Ann. § 13:3050.

 

Is the potential penalty for nonappearance sufficient to encourage participation?

No

The judge may punish a juror for failure to appear for jury service by a fine of not more than $50, imprisonment of not more than 3 days, or both.

La. Rev. Stat. Ann. § 13:3049(A).

 

Problem Jurisdictions

Orleans Parish

 

Named as a jurisdiction on the "watch list" in the American Tort Reform Association's Judicial Hellholes report.

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com.  Original material © 2009 Center for America.