Guarisco v. Boh Bros. Construction Co., LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARYBETH GUARISCO CIVIL ACTION

VERSUS NO: 18-7514

BOH BROTHERS SECTION: "J"(3)

CONSTRUCTION CO., LLC AND

ILLINOIS NATIONAL

INSURANCE COMPANY

ORDER & REASONS

Before the Court is a Motion for Summary Judgment on the Grounds of

Government Contractor Immunity (Rec. Doc. 45) and a Motion for Summary

Judgment and Sanctions for Spoliation (Rec. Doc. 52) filed by defendant, Boh Bros

Construction Co. LLC, (“Boh”), oppositions thereto (Rec. Doc. 78 and 82) filed by

Plaintiff, Marybeth Guarisco, and replies (Rec. Doc. 95 and 93) filed by Boh. Apart

from cites to the specific record document when appropriate, the Court will treat

defendant’s two motions for summary judgment (“MSJ”) as one motion articulating

alternative legal theories. Having considered the motions and legal memoranda, the

record, and the applicable law, the Court finds the MSJ should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND

The backdrop of this case involves the Southeast Louisiana Drainage Project

(“SELA”), a federally-funded enterprise cosponsored by the Sewerage and Water

Board of New Orleans (“SWB”) and the United States Army Corps of Engineers (“the

Corps”). SELA involves extensive construction at multiple sites throughout Orleans,

Jefferson, and St. Tammany parishes and is designed to improve flood control and

drainage in urban areas. On January 23, 1997, the federal government entered into

a Project Cooperation Agreement with SWB outlining the roles and responsibilities

of the Government and SWB during construction of the Orleans Parish SELA Project

segments. The Agreement specifically states that “…all work on the Project … shall

be exclusively within the control of the Government.” Boh asserts that on November

26, 2013, the Corps issued Solicitation No. W912P8-14-R-001 seeking competitive

bids for the Louisiana Avenue SELA Project segment (“Project”). Boh was the

successful bidder selected by the Corps to act as general contractor on the Project.

(See Rec. Doc. 1-4).

The instant dispute arises out of an automobile accident that occurred on April

7, 2017 at the intersection of Louisiana Avenue and Baronne Street in New Orleans,

Louisiana (“the Intersection”)—at the site of the Project. Plaintiff alleges that Boh

converted Louisiana Avenue’s two river-bound lanes into a two-way street and

negligently placed traffic control signs on the roadbed at the intersection, thereby

causing Plaintiff’s accident. On April 2, 2018, Plaintiff filed suit against Boh and its

insurance carrier, Illinois National Insurance Company, in the Civil District Court

for the Parish of Orleans. Boh timely removed the case under Title 28 U.S.C. § 1442.

On April 4, 2019, this Court issued an order and reasons denying Plaintiff’s Motion

to Remand (Rec. Doc. 28), finding in part that Boh had a colorable defense for

government contract immunity.

After copious procedural disputes between the parties, Boh has moved for

summary judgment on two grounds. First, Boh argues that it is entitled to

government contractor immunity (“GCI”), the same defense this Court recognized as

colorable in its order denying the motion to remand. Second, Boh argues that Plaintiff

has not provided facts sufficient to prove the negligence elements of duty, breach, or

causation. Boh further asks this Court to impose sanctions on Plaintiff for spoliation

of evidence, alleging Plaintiff intentionally altered and deleted photos at the accident

to better support her claim.

LEGAL STANDARD

Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a

dispute as to any material fact exists, a court considers “all of the evidence in the

record but refrains from making credibility determinations or weighing the evidence.”

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th

Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but

a party cannot defeat summary judgment with conclusory allegations or

unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be

satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”

Delta, 530 F.3d at 399.

If the dispositive issue is one on which the moving party will bear the burden

of proof at trial, the moving party “must come forward with evidence which would

entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal

citations omitted). The nonmoving party can then defeat the motion by either

countering with sufficient evidence of its own, or “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to return a

verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the

burden of proof at trial, the moving party may satisfy its burden by merely pointing

out that the evidence in the record is insufficient with respect to an essential element

of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts

to the nonmoving party, who must, by submitting or referring to evidence, set out

specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may

not rest upon the pleadings but must identify specific facts that establish a genuine

issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.

DISCUSSION

I. MR. FOGERTY’S TESTIMONY IS ADMISSIBLE AS SUMMARY JUDGMENT

EVIDENCE

As a preliminary matter, the Court addresses Plaintiff’s contention that the

deposition testimony of John Fogerty, the Corps’ resident engineer on the project, is

inadmissible under Federal Rule of Civil Procedure 32(a). Fogerty offered the

testimony in support of Boh’s GCI claim in the Sewell litigation. 2016 WL 7385701.

The Sewell litigation arose from several lawsuits filed by businesses and homeowners

adjacent to the Project, all asserting various claims against the SWB and assorted

contractors, including Boh. Id. Rule 32(a) states that a deposition from an earlier

suit may only be used in a later action if it “involve[s] the same subject matter

between the same parties, or their representatives or successors in interest.” The

parties hotly dispute whether Plaintiff constitutes a “successor in interest” to the

plaintiffs who sued Boh in the Sewell litigation.

The admissibility of evidence in a MSJ is not governed by Rule 32, however,

but rather Rule 56. Rule 56 requires only that summary judgment evidence “be

capable of being ‘presented in a form that would be admissible in evidence’” at trial,

not that it actually be presented in an admissible form. Therefore, as long as there is

no reason Boh could not depose Mr. Fogerty for this case, or produce him at trial, then

his deposition testimony from prior litigation constitutes competent MSJ evidence.

LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016).

Numerous other district courts in this Circuit have found that depositions failing the

Rule 32 standard “may still be considered under Rule 56 summary judgment

purposes as if it were a sworn affidavit.” New York Marine and General Insurance

Company v. Cardona, No. 17-246 2018 WL 6588582 *3 (W.D. Tex. 2018) (citing In re

Ward, 558 B.R. 771, 779 (Bankr. N.D. Tex. 2016); Bingham v. Jefferson County, Tex.,

No. 1:11-CV-48, 2013 WL 1312563, at *1 (E.D. Tex. Mar. 1, 2013), report and

recommendation adopted as modified, No. 1:11-CV-48, 2013 WL 1312014 (E.D. Tex.

Mar. 27, 2013) (citing Vondriska v. Cugno, 368 F. App'x 7, 8–9 (11th Cir. 2010)

(unpublished); see also Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n.12 (5th

Cir. 1993). Indeed, the “weight of authority is that depositions can be the equivalent

of affidavits and are therefore admissible at the summary judgment stage.” Alexander

v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014).

Consequently, as there does not appear to be any reason Mr. Fogerty’s

testimony is not capable of being presented in an admissible form, the Court finds

that it may consider Mr. Fogerty’s deposition in the Sewell litigation as an affidavit

at this stage in the proceedings.

II. GOVERNMENT CONTRACTOR IMMUNITY

GCI is an affirmative defense. As such, Boh must present evidence showing it

is entitled to GCI. If it does so, the burden shifts to Plaintiff to raise a genuine issue

of material fact regarding the GCI. See Smith v. Xerox Corp, 866 F.2d 135 (5th. Cir.

1989).

Boh argues at length that the Court should grant its GCI claim under the “law

of the case” doctrine (Rec. Doc. 45 at 13). The “law of the case” doctrine states “that

when a court decides on a rule of law, that decision should govern the same issue in

subsequent stages of the case.” Lonatro v. Orleans Levee Dist., CIV.A. 11-357, 2011

WL 4460187 at *3 (E.D. La. Sept. 2011). Here, the rule of law previously decided by

this Court is that Boh had a colorable claim for CCI sufficient to justify removal. The

standard of proof required to find a claim is colorable is less than the standard

required to succeed on a MSJ. See Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir.

2017); see also. Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (a defendant

need not “win his case before he can have it removed.”). Nonetheless, although the

“law of the case” doctrine does not unequivocally entitle Boh to GCI, the evidence and

analysis used by the Court when ruling on the motion to remand may still be

applicable to the instant MSJ.

GCI was first established by the Supreme Court in Yearsley v. W.A. Ross

Constr. Co., 309 U.S. 18 (1940), and then expanded in Boyle v. United Techs. Corp.,

487 U.S. 500 (1988). “That defense provides immunity to contractors for conduct that

complies with the specifications of a federal contract.” Crutchfield v. Sewerage and

Water Board of New Orleans, 829 F.3d 370 at 375. Immunity under the government

contractor defense attaches if the defendant can establish that (1) the government

approved reasonably precise specifications; (2) the equipment or work conformed to

those specifications; and (3) the contractor warned the government about any dangers

that were known to the contractor but not to the government. Sewell v. Sewerage &

Water Bd. of New Orleans, No. CV 15-3117, 2016 WL 7385701, at *3 (E.D. La. Dec.

21, 2016), aff'd, 697 F. App'x 288 (5th Cir. 2017); In re Katrina Canal Breaches Litig.,

620 F.3d 455, 460 (5th Cir. 2010); Wilde v. Huntington Ingalls, Inc., 616 Fed.Appx.

710, 715 (5th Cir. 2015).

A. The Government Approved Reasonably Precise Specifications

The first prong of the Boyle test has two requirements: reasonably precise

specifications and government approval— “which together are intended to ‘assure

that the design feature in question was considered by a Government officer, and not

merely by the contractor itself.’” Sewell, 2016 WL 7385701, at *3 (quoting Boyle, 487

U.S. at 512). Reasonable precision requires “that the discretion over significant

details and all critical design choices be exercised by the government.” Trevino v.

General Dynamics, 865 F.2d 1474, 1481 (5th Cir. 1989); see also Kerstetter v. Pacific

Scientific Co., 210 F.3d 431, 435 at 438 (finding that specifications are reasonably

precise “as long as the specifications address, in reasonable detail, the product design

feature, alleged to be defective.”). This inquiry focuses not on the designer of the

offending feature of the project, but rather on the detail of the specifications presented

to the government for approval. See In re Aircraft Crash Litigation Frederick,

Maryland, 752 F.Supp. 1326, 1341-42 (S.D. Ohio 1990) aff'd, Darling v. Boeing Co.,

935 F.2d 269 (6th Cir. 1991). Likewise, “[t]he government need not prepare the

specifications to be considered to have approved them.” Kerstetter, 210 F.3d at 435

(citing Trevino, 865 F.2d at 1480 (5th Cir. 1989)). “Government approval simply

requires meaningful, substantive review of the specifications.” Sewell, 2016 WL

7385701, at *3; see also Trevino, 865 F.2d at 1480, 1486; Stout v. Borg-Warner Corp.,

933 F.2d 331, 335-36 (5th Cir. 1991) (explaining that the government’s substantive

review of specifications is sufficient, but rubber stamping is not).

Here, Boh has provided the affidavit of its Project Manager, Cameron Johnson,

which states that the “plans and specifications administered by the corps were

reasonably precise.” (Rec. Doc. 45-2). This attestation is supported by the portion of

the contract with the Corps produced by Boh governing traffic control and

coordination. (Rec. Doc. 9-1). This document outlines detailed specifications

pertaining to traffic control and coordination, submittals, the Traffic Control Device

Plan (“TCDP”), and road closure, as well as the use of barricades, danger, warning,

and detour signs. Furthermore, the TCDP itself provides detailed and precise traffic

specifications, such as the exact placement of traffic signs and the method of properly

conducting lane closures. (Rec. Doc. 95-3). Boh was also bound by supplementary

statutes and regulations, such as the requirement that all signage conform to the

Manual on Uniform Traffic Control Devices. The Court finds that taken cumulatively,

evidence provided by Boh sufficiently shows that the plans and specifications

governing traffic control were reasonably precise.

The Court further finds that the Corps meaningfully reviewed and approved

the traffic specifications. Mr. Johnson attests that the Corps conducted a detailed,

substantive review of and approved all traffic-related submittals and modifications

to the TDCP (Rec. Doc. 16-1 at 3). The level of review process routinely consisted of

“continuous back and forth between [Boh] and [the Corps], often times requiring

[Boh] to provide re-submittals on the same component of work until [the Corps]

ultimately approved the submittal.” Id.

The deposition of John Fogerty, the Resident Engineer and Administrative

Contracting Officer for the Corps on the entire Project, supports this finding as well.

Mr. Fogerty testified that Boh could not commence work until the Corps approved

Boh traffic plans and specifications, and that the Corps review of the plans was

“substantive.” (Rec. Doc. 95-6 at 1549-53). Based on the foregoing, the Court finds

that Boh has produced enough evidence to satisfy the first Boyle prong.

Having found that Boh satisfied its evidentiary obligations with regards to the

first Boyle prong, the burden then shifts to Plaintiff to prove the existence of a genuine

issue of material fact on this issue.

Plaintiff’s opposition to Boh’s MSJ is centered on two primary arguments: (1),

the TDCP approved by the Corps shows the Intersection as closed, but it was open at

the time of the accident; and (2) Boh did not use the template TDCP provided by the

Corps, but instead created ITS own. In addition to using these assertions to claim

Boh’s traffic control plans do not satisfy the requirements of the first Boyle prong,

Plaintiff also attempts to discredit the testimony of Mr. Johnson by claiming these

facts contradict his statements and make him an unreliable witness, thereby

undermining a substantial amount of Boh’s proffered evidence.

The Court finds that Plaintiff has failed to create a genuine issue of material

fact with regards to the first Boyle prong because Plaintiff’s assertions constitute

neither disputes nor material facts. First, Boh readily concedes the TCDP in effect

at the time of the accident shows the Intersection as closed, despite the Intersection

clearly being open the day of the accident. (Rec. Doc. 95 at 7).1 What Plaintiff asserts

as a genuine dispute of material fact is instead just a misunderstanding of the role

the TDCP plays in setting the traffic specifications for the Project. The TDCP is not

intended to be an exact representation of the layout of the Project at every second of

1 The TDCP in effect at the time of the accident was the thirteenth out of seventeen TDCP’s submitted by contractors

and approved by the Corps throughout the life of SELA. As SELA shifted and changed locations, new TDCP’s were

needed. Work could not commence until the TDCP for that specific portion of the project was approved. The thirteenth

TDCP was approved by the Corps on February 6, 2017.

every day. As stated incontrovertibly in the testimony of Boh corporate representative

Anthony Aziz, “Not every intersection is shown as closed, not every intersection is

shown as open…[the] key is, you can’t show every one closed because then you’re —

then you would be deficient with respect to the contract obligation of keeping no more

than two consecutive intersections closed.” (Rec. Doc. 95-2 at 10-13).

Rather, the TDCP functions as a “typical layout of a closed intersection,” that

just happens to show the Intersection as the typical closed intersection. Id. The record

indicates that it was extremely common for intersections and streets to be open or

closed depending on the progress of the construction. (Rec. Doc. 95-5). The TDCP

represents the reasonably precise traffic control measures for Boh to take whenever

it opened an intersection as needed during construction. It would be the height of

inefficiency to require a government contractor to obtain “substantive review” of

every intersection opened or closed during a construction project. The contractor must

be able to do so quickly to avoid bringing traffic to a halt. Therefore, there is no actual

“dispute” over the open versus closed nature of the Baronne Street intersection, nor

is it a material fact on the issue of GCI.

Second, it is clear from the record that Boh used the TDCP provided by the

Corps as the basis for its final, modified TDCP. Not only did the pre-approved Corps

TDCP act as the template for the modified TDCP, but the Corps approved the

modified TDCP created by Boh. (Rec. Doc. 45-2, Exhibit A and Rec. Doc. 95, Exhibit

F). Thus, the “issue” of whether Boh ultimately implemented the template TDCP or

the modified TDCP is irrelevant, because either way the Corps’ approval satisfies the

government approval requirements of the first Boyle prong.

For the foregoing reasons, Plaintiff has not successfully created a genuine issue

of material fact rebutting Boh’s evidence that it had governmentally approved,

reasonably precise traffic control specifications on the Project.

B. Defendant’s Work Conformed to the Specifications

Like the first prong, the second prong of the Boyle test requiring a government

contractor to have performed the work in accordance with the approved specifications

“serve[s] to locate the exercise of discretion in the government.” Trevino, 865 F.2d at

1481. Conformity may be satisfied by proof that “the government supervised and

controlled the implementation of [the government approved reasonably precise]

specifications,” Levy v. Phillips and Jordan, Inc., No. 08-5065, 2009 WL 2922057, *2

(E.D. La. Sept. 9, 2009). However, a breach of “some general admonition against an

unwanted condition” does not negate a showing of a contractor’s conformity with

reasonably precise specifications. Kleeman v. McDonnell Douglas Corp., 890 F.2d 698,

703 (5th Cir. 1993) (quoting Harduval v. General Dynamic Corp., 878 F.2d 1311, 1319

n.3 (11th Cir. 1989)) (precatory contract terms “represent little more than hopes of

participants that the project on which they are about to embark will turn out well”).

Here, Boh has produced evidence that the Corps’ oversight on the Louisiana

Avenue Project was extensive and steady. Mr. Johnson’s affidavit indicates that the

Corps engaged in extensive oversight of the Project by maintaining a daily presence

onsite and providing a Quality Assurance representative to inspect Boh’s work each

day to ensure conformity with the plans, specifications, and Corps-approved

submittals. (Rec. Doc. 45-1 at 3). Mr. Johnson’s affidavit is supported by the

performance evaluations conducted by the Corps. The performance evaluation for the

relevant time frame states that “quality control inspections are performed by the

[quality control] team every day,” and “[q]uality control is adapted based on all

Government comments.” (Rec. Doc. 45-5 at 10).

These monitoring efforts not only lessen the concern that Boh used its own

discretion in lieu of the Corps’ reasonably precise specifications, but also constitute

persuasive evidence of conformity under precedent set by the Fifth Circuit in

Kerstetter. See Sewell, 2016 WL 7385701, at *4. Moreover, Defendant has produced

proof that the Corps not only monitored, but approved Defendant’s work. Specifically,

Mr. Johnson attests that the Corps “expressly approved all traffic-related submittals

and modifications to the [Traffic Control Device Plan] implemented by [Defendant]

on the Project.” (Rec. Doc. 45-1 at 3). The relevant performance evaluation states “Boh

Bros has been effective in securing the worksite, establishing traffic controls, and

constructing safe pedestrian access on a heavy urban project site.” (Rec. Doc. 45-5 at

11).2

Finally, the affidavits of Mr. Johnson and Mr. Fogarty, taken together, provide

evidence that Boh was not to be paid unless its work conformed to the Corps’

2 The Corps conducted four evaluations throughout the life of the Project. One at 14% completion, a second at 75%

completion, a third at 90% completion, and a final at 100% completion. The performance evaluations were all

conducted by John Fogerty, the Corps’ resident engineer on the project. The relevant evaluation here is evaluation

#3, which was conducted at the 90% completion stage.

requirements. Here, Boh has been paid in full by the Corps (Rec. Doc. 45-1). Courts

have consistently held that government payment to the contractor without set off

constitutes “compelling proof” that the contractor conformed to specifications. See

Sewell, 2016 WL 7385701 at *4 (citing, e.g. Miller v. Diamond Shamrock Co., 275 F.3d

414, 420 (5th. Cir. 2001).

For the foregoing reasons, the Court finds that Boh has submitted sufficient

evidence to entitle it to summary judgment on the second Boyle prong. The burden

subsequently shifts to Plaintiff to create a genuine issue of material fact.

Plaintiff has provided no facts to counter Boh’s assertion that its work

conformed to the Corps’ requirements. Rather, Plaintiff again relies on attacking

Boh’s evidence, particularly Mr. Johnson’s affidavit, by highlighting the same alleged

inconsistencies used to attack Boh’s evidence on Boyle prong one. For the reasons

stated in Part A, the alleged inconsistencies either do not exist, or fail to create a

genuine dispute as to a material element of Boyle’s second prong.

Plaintiff correctly states that Mr. Fogerty’s deposition was taken in 2016, well

before the accident in question occurred, and therefore his testimony cannot be used

as direct evidence for the proposition Boh was working on the Project in conformity

with Corps specifications in 2017. Nevertheless, Mr. Fogerty’s testimony is far from

useless. Mr. Fogerty’s testimony establishes that Project performance evaluations

conducted by the Corps account for traffic control (Rec. Doc. 45-7 at 2). It also states

the standard Corps practice that payment is not made unless the work has been

reviewed by the Corps and conforms to specifications (Rec. Doc. 45-7 at 3). These

general truths about the functioning of the Project are not only useful in establishing

the level of control the Corps had over the Project, but they also reinforce Mr.

Johnson’s claims that the Corps reviewed and oversaw the Project in detail.

C. Defendant Was Unaware of Reasons Not Known to the Corps That

Would Make Implementation of the Reasonably Precise

Specifications Unsafe or Unreasonable

The final prong of the Boyle test requires that the contractor was “unaware of

reasons not known to the government that would make the implementation of

specifications unsafe or unreasonable.” Levy, 2009 WL 2922057 at *2. A government

contractor is “only responsible for warning the government of dangers about which it

has actual knowledge,” not “constructive knowledge.” Miller, 275 F.3d 414 at 422

(citing Trevino v. General Dynamics Corp., 865 F.2d 1474, 1487 (5th. Cir. 1989). Mr.

Johnson’s affidavit attests that “[Defendant] did not know of any dangers relating to

the traffic control and coordination plans, specifications, or [Corps-approved]

submittals that were not known to [the Corps].” (Rec. Doc. 45-1 at 3). Thus, via its

corporate representative, Boh, has provided sufficient MSJ evidence it had no

knowledge of any dangers unknown to the Corps.

Furthermore, Defendant asserts that the Corps had knowledge of the risks

associated with the construction activities undertaken by Defendant, including the

risks associated with implementation of the traffic control measures necessitated by

the project. (Rec. Doc. 45 at 23). Defendant emphasizes that the Corps’ knowledge of

the risks is bolstered by the fact that the Louisiana Avenue Project was the last of

seven SELA projects that the Corps had completed in Uptown New Orleans. Id.

Plaintiff provides no evidence anyone affiliated with Boh had any prior knowledge of

unknown or unsafe risks associated with the reasonably precise specifications.

Plaintiff’s sole argument is Mr. Johnson’s, affidavit is insufficient because he does not

have personal knowledge of Boh’s lack of awareness. The Court is not persuaded.

Once Mr. Johnson testified as to Boh’s lack of subjective knowledge, the burden

shifted to Plaintiff to provide some shred of evidence that Mr. Johnson’s testimony

was incorrect. Plaintiff failed to do so.

Considering the foregoing and the lack of competent evidence that Defendant

failed to report a dangerous condition that was unforeseen by the Corps, the Court

concludes that Defendant has established the last prong of Boyle.

D. The Sewell Litigation is Persuasive

In Sewell v. Sewerage & Water Board of New Orleans, eight consolidated

lawsuits were brought by owners of homes and businesses adjacent to the Project

against the Sewerage & Water Board of New Orleans. 2016 WL 7385701. After being

brought into the litigation as a third-party defendant, Boh moved for summary

judgment on its defense of GCI. The Sewell court, in granting summary judgment in

Boh’s favor, noted “reasonably precise specifications governed….application of traffic

mitigation measures.” Id. at 3. The court further noted that “in the absence of

conflicting evidence, the government’s written acceptance of a contractor’s work

constitutes compelling proof of conformity.” Id. at *4 (citing Miller, 275 F.3d 420).

The Court finds the decision of the court in Sewell persuasive regarding

Plaintiff’s argument that Boh is not entitled to GCI because the SELA contract

“mandated that Boh exercise its own discretion” with regards to traffic control (Rec.

Doc. 78-2 at 30). The court in Sewell rejected any contention that the SELA contract

allowed Boh the level of discretion needed to defeat GCI. Precatory, or generalized,

contract language that could be interpreted as imparting a modicum of discretion to

Boh is insufficient to defeat the more detailed requirements and supervision detailed

in the SELA contract and subsequent documents. See Sewell 2016 WL 7385701 (citing

Kleeman v. McDonnell Douglas Corp., 890 F.2d 698, 703 (5th Cir. 1993) (quoting

Harduval v. General Dynamic Corp., 878 F.2d 1311, 1319 n.3 (11th. Cir. 1989))

(precatory contract terms “represent little more than hopes of participants that the

project on which they are about to embark will turn out well.”).

Although not in any way binding on the Court, the Sewell decision is

nonetheless instructive in its interpretation of certain provisions of the SELA

contract, and the Court agrees with the decision that the SELA contract does not

allow Boh discretion sufficient to defeat GCI.

III. SANCTIONS FOR SPOLIATION

As the Court finds Boh entitled to summary judgment via its claim of GCI, it

is unnecessary to address Boh’s claim that Plaintiff’s suit for negligence fails as a

matter of law. There remains, however, Boh’s claim for sanctions for spoliation.

Spoliation is the “destruction or the significant and meaningful alteration of

evidence.” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir.2015) A district court has

broad discretion to use its inherent powers to administer sanctions for spoliation.

Orchestratehr, Inc. v. Trombetta, 178 F.Supp.3d 476 (N.D. Texas Apr. 2018) (citing

Hodge v. Wal–Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.2004). The Court’s

inherent authority is limited to “instances of bad faith or willful abuse of the judicial

process.” Pressey v. Patterson, 898 F.2d 1018 (5th Cir.1990).

Boh contends that Plaintiff willfully spoliated evidence by altering a

photograph to delete evidence of a two-way street sign and deleting up to 22 videos

and photographs entirely.3 Boh supports its contention via the affidavit of Dr. Gavin

Manes, an expert computer scientist retained by Boh to prove Plaintiff deleted and

altered the photographs. (Rec. Doc. 93-1). Dr. Manes’ affidavit emphatically states

that photos of the accident in the Plaintiff’s possession were deliberately deleted or

altered. Id. Boh’s contention is further supported by Plaintiff’s own Facebook post

showing the picture in its unaltered condition containing the two-way street sign.

(Rec. Doc. 52-1 at 11). As punishment for this conduct, Boh asks the Court to impose

sanctions on Plaintiff in the form of attorneys’ fees and costs. Plaintiff neither denies

Boh’s allegations nor provides evidence of a plausible, alternative reason the

photographs were altered and deleted. (Rec. Doc. 82 at 19).

Boh’s request is complicated by the digital nature of the evidence at issue.

Although spoliation of digital evidence is ostensibly addressed in Fed. R. Civ. Pro.

37(e), the plain language of Rule 37(e) only applies to cases where the digital evidence

3 Plaintiff’s claim is largely premised on Boh’s alleged failure to properly place a two-way sign at the intersection of

Baronne Street and Lafayette Street. The primary picture at the center of Boh’s spoliation claim is a picture taken the

day of the accident by the Plaintiff showing that a two-way sign was in position at the time of the accident.

is irrevocably lost.4 Here, it is undisputed that the photographs are not lost. Boh is in

actual possession of the unaltered photograph showing the two-way sign. (Rec. Doc.

52-1 at 11). Boh obtained the picture from a Facebook post made by Plaintiff after the

accident. Regarding the alleged deleted videos or photographs, Boh admits they may

still be recovered through additional discovery. (Rec. Doc. 93 at 8-9). Thus, it would

be premature for the Court to find Rule 37(e) applies here, as there is no proof any of

the digital evidence at issue is permanently lost.

Nevertheless, that does not end the Court’s inquiry into this matter. Because

the power to sanction spoliation is an inherent power of the Court, that power may

be invoked even in the presence of procedural rules sanctioning the same conduct.

Chambers v. NASCO, Inc. 501 U.S. 32 (1991); see also Haeger v. Goodyear Tire &

Rubber Co., 793 F.3d 1122, 1131–32 (9th Cir.2015) (“This inherent power is not

limited by overlapping statutes or rules.”). A fortiori, the Court’s inherent power is

certainly not restricted when the procedural rule does not sanction the precise

conduct at issue—Plaintiff’s unsuccessful attempt to destroy or alter evidence.

To allow a party to avoid sanctions merely because the attempt to destroy

evidence was unsuccessful would be to ignore one of the primary goals of sanctioning

spoliative conduct. “A party’s falsification of evidence and attempted destruction of

4 Rule 37(e) states if electronically stored information that should have been preserved in the anticipation or conduct

of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced

through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may

order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the

intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was

unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the

party; or (C) dismiss the action or enter a default judgment.

authentic, competing information threatens the integrity of judicial proceedings even

if the authentic evidence is not successfully deleted.” CAT3, LLC v. Black Lineage,

Inc. 164 F.Supp.3d 488 (S.D. New York Jan. 2016).

Having established that the Court possesses the inherent power to sanction

spoliative conduct, it must also be noted that inherent powers should be exercised

with restraint and discretion. Chambers, 501 U.S. at 44. The rule in this Circuit is

that “courts have a duty to impose the least severe sanction that is sufficient to deter

future conduct.” Mendoza v. Lynaugh, 989 F.2d 191, 196 (5th Cir. 1993).

Here, the Court finds that Plaintiff intentionally altered evidence to make it

appear more favorable to her case. The Court bases its finding on the affidavit of Dr.

Gavin Manes and Plaintiff’s own Facebook post, as well as the lack of rebuttal

evidence presented by Plaintiff. The Court further finds that Boh has been prejudiced

by having to employ Dr. Manes as an expert witness. The Court concludes that the

least severe sanction possible to deter future similar conduct is to impose Dr. Manes’

expert fees as a sanction on the plaintiff.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendant Boh Bro’s Motion for Summary

Judgment on the Issue of Government Contractor Immunity (Rec. Doc. 45) is

GRANTED.

IT IS FURTHER ORDERED that Boh Bro’s Motion for Sanctions for

Spoliation of Evidence (Rec. Doc. 52) is GRANTED, and Plaintiff shall reimburse

Boh Bro’s for the expert fees of Dr. Manes. Such reimbursement shall be made within

21 days from the date of this order.

IT IS FURTHER ORDERED that Boh Bro’s Motion to Strike Witnesses and

Exhibit List (Rec. Doc. 35) is DENIED as MOOT.

New Orleans, Louisiana this 3rd day of October, 2019.

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OK Pebuc

_ LK XIN, ( /

CARL J. BARBIERY

UNITED STATES DISTRICT JUDGE

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