The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ABDEL MOHAMED HAMIDAH, ET AL. CIVIL ACTION
VERSUS NO. 20-2253
PC BAYWOOD, LLC, ET AL. SECTION “A” (3)
Order
The following motions are before the Court: Motion in Limine to Exclude the
Reports, Testimony, and Opinions of Bill Price (Rec. Doc. 124), filed by Defendants;
Motion to Bifurcate and Separate Juries (Rec. Doc. 121), filed by Plaintiffs; and a
Motion for Summary Judgment (Rec. Doc. 123), filed by Defendants.
The Plaintiffs filed this lawsuit after a fire destroyed their rented apartments that
were owned by Defendant PC Baywood (“PC”). The Plaintiffs are three separate
families who rented three separate apartments from Defendants. All three families lived
in Building 11 of the apartment complex. Building 11 burned down on October 2, 2019
resulting in loss of personal property and displacing the Plaintiffs from their homes. The
fire was initially investigated by two Jefferson Parish Fire Investigators the day of the
fire. Another private examiner investigated the scene a week later, and all three
examiners were able to place the ignition of the fire to a second-floor wood framed
balcony. However, the investigators were unable to reach a definitive conclusion as to
the cause of the fire. Plaintiffs have alleged that the fire was either caused by
Defendants’ employee who had been working at the complex a few hours earlier, or that
the fire was caused by the Defendants’ failure to maintain the apartment complex in
proper condition.
I. Plaintiffs’ Motion to Bifurcate and Separate Juries
The Court will first address the Plaintiffs’ motion to bifurcate and separate juries
for each individual plaintiff. Central to the Plaintiffs’ argument is the allegation that
Plaintiff Hamidah has a different burden of proof than plaintiffs Khan and Hamed.
Defendants argue, and the Court agrees, that there has been no indication that the
same burden of proof fails to apply to all three families. The Plaintiffs also argue that if
the Court were to not bifurcate the trials, the Plaintiffs would be prejudiced because of
the potential of the jury incorrectly applying the facts to the elements for each individual
plaintiff.
A. Standard
Courts may separate trials into different phases or among plaintiffs or claims for
several reasons. Federal Rules of Civil Procedure Rule 42(b). Among those reasons
are to avoid prejudice, for the convenience of the Court, or to expedite and economize
the trial process. Id. Ultimately, the Court has broad discretion to determine if multiple
trials are warranted. First Texas Savings Association v. Reliance Insurance Company,
950 F.2d 1171, 1174 (5th Cir. 1992). That broad discretion is to be left to the trial court
and the trial court alone. Nester v. Textron, Inc., 888 F.3d 151, 163 (5th Circuit. 2018).
However, to separate issues to different juries is the exception, not the rule within the
Fifth Circuit. McDaniel v. Anheuser-Busch, Inc., 987 F .2d 298, 304 (5th Cir. 1993).
Ultimately, the Court should not bifurcate if the bifurcation would result in unnecessary
delay, or cause additional expense to the parties even if it does in some way promote
judicial economy. Laitram Corp. v. Hewlett–Packard Company, 791 F. Supp. 113, 115
(E.D. La. 1992).
B. Discussion
The Plaintiffs’ argument is based on three points: 1) bifurcation would be in the
interest of efficient case management, 2) bifurcation in this matter eliminates confusion
of differing applicable burdens, and 3) lack of bifurcation would submit Plaintiffs to
undue risk of prejudice. The Plaintiffs now argue that some of the plaintiffs would have
a different burden of proof than others, and therefore all Plaintiffs would be prejudiced
because of the differing elements of proof. They further argue that because of the
potential for different burdens, the jury would likely be confused in applying the different
standards to the common set of facts in this case. On the other hand, the Defendants
argue that requiring them to defend the same claims separately would be prejudicial
and a waste of the Court’s time and resources because not only is there a common set
of facts and claims among Plaintiffs, but it would require the Defendants to pay
exponentially more legal fees for the defense of these claims. Furthermore, the
Defendants argue the prejudice that the Plaintiffs could potentially sustain if different
burdens were to apply can be easily cured by a proper jury instruction.
The Court must determine if the potential for any prejudice exists, to which party
it would affect, and ultimately if bifurcating would be an appropriate use of the Court’s
resources. This case was filed in 2020. The parties have already endured multiple
years of costly litigation. Requiring the Defendants to defend the same claims under the
same set of facts at separate trials would substantially prejudice the Defendants more
so than it would promote judicial economy or eliminate any potential jury confusion.
Additionally, the Court recognizes that even if there are multiple different burdens of
proof among plaintiffs, the appropriate solution would be a proper jury instruction. The
Plaintiffs’ motion to bifurcate is DENIED.
II. Defendants’ Motion to Exclude Expert Witness and Testimony of Bill Price
The Court will next address the Defendants’ motion to exclude the expert
testimony of Fire Investigator Bill Price. The Defendants argue that Mr. Price fails to
reach a conclusion, his opinion is conclusory, and that his methods are unreliable.
Plaintiffs argue that the Defendants’ grounds for exclusion are a matter of weight and
not admissibility. Notably, the Defendants have previously moved to exclude Mr. Price
previously, and the Court dismissed that motion without prejudice so that all parties
could conduct proper discovery. As of the submission of this motion, all parties were
able to conduct Mr. Price’s deposition and thorough discovery, and much of that
discovery was included as exhibits submitted to the Court with these written motions.
A. Legal Standard
The District Court is the gatekeeper of expert testimony. Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 589 (1993); Kuhmo Tire Co., Ltd. v. Carmichael, 526
U.S. 137 (1999). For a witness to render an expert opinion, that person must be
qualified by knowledge, skill, experience, training, or education. Federal Rule of
Evidence 702. That opinion must help the trier of fact understand the evidence at issue,
be based on sufficient facts and data, and be the product of reliable principles and
methods. Id. To determine the reliability of the methodology, the Court traditionally
looks to a number of factors: 1) whether the theory used by the expert can be tested, 2)
whether the theory was peer reviewed, 3) the potential rate of known error for the
method used, and 4) if the method is accepted by the expert’s professional or scientific
community. Daubert, 509 U.S. 579, 592-594, 113 S.CT. 296-97. Of course, the list of
factors should not apply strictly to all experts of all types of expertise, as the Supreme
Court and the Fifth Circuit have recognized that applying Rule 702 restrictively would
make certifying expert witnesses exceedingly difficult in an ever-evolving litigious world.
Instead, the Court considers the specific factors where there are reasonable measures
of reliability of expert testimony, meaning that while the Court is still the gatekeeper of
expert testimony, it is not meant to replace the adversarial system entirely. Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Circuit 2022). Fed. R. Evid. 702 advisory
committee’s notes (2000). Additionally, expert witnesses must have the necessary
knowledge, skills, or training to testify in a particular field on a given subject, however
Rule 702 does not mandate that an expert be highly qualified in that field. Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009). When presented with this particular issue
of the sufficiency of the level of expertise, often the actual question is one of the weight
of the testimony, not the admissibility. Daubert, 509 U.S. at 596 (1993), Viterbo v. Dow
Chemical Company, 826 F.2d 420, 422 (5th Circuit 1987).
B. Discussion
The Defendants’ first argument to strike Mr. Price as an expert witness is that Mr.
Price allegedly misused the National Fire Protection Association Guide for Fire and
Explosion Investigations handbook (“NFPA 921”) in forming his conclusion, rendering
the “reliable principles and methods” prong of Rule 702 unsatisfied. In making their
argument, the Defendants cite to other District Court decisions within this Court’s district
that allegedly excluded fire experts for misusing the same NFPA 921 guidelines that Mr.
Price used in this case. In particular, the Defendants cite to Judge Vance’s order in
Atlantic Specialty Insurance Company v. Porter, stating that Judge Vance excluded the
expert from offering any opinions at trial, and that Judge Vance relied on the expert’s
lack of adherence to NFPA 921 as a reason to exclude the testimony. No. CV 15-570,
2016 WL 6124193 (E.D. La. Oct. 20, 2016). Upon reviewing the proposed persuasive
case law, and contrary to the argument made by Defendants, Judge Vance ruled the
fire expert was reliable and his testimony was admissible even though the expert’s
testimony slightly wavered from NFPA 921 guidelines in forming his conclusion. Id.
This Court does not find the Defendants’ argument persuasive to support the
Defendant’s objection to Mr. Price’s alleged use of NFPA 921. Placing aside the
Defendants’ reliance on Atlantic Specialty Insurance, defense counsel would have wide
latitude to cross exam the expert. Even if this Court were to find that Mr. Price did not
strictly adhere to the NFPA 921 guidelines, it does not necessarily prohibit him from
eliciting an expert opinion as to how and when the fire started. Regardless, the Court
finds that Mr. Price used reliable methods when forming his conclusion, that he had
sufficient facts and data to come to that conclusion, that his testimony is relevant to the
factfinder, and that he was able to reach a conclusion to a sufficient degree of
necessary certainty. Defendants’ first ground for striking Mr. Price has no merit and is
denied.
Defendants’ second argument alleges that Mr. Price’s report fails to meet the
requirements of Federal Rule of Civil Procedure 26 and therefore should be stricken.
The Court finds no merit in this objection as Mr. Price was deposed, issued two reports,
and these motions were delayed by approximately a year while the parties were able to
conduct extensive and additional discovery on this issue.
Finally, the Defendants move to strike Mr. Price’s testimony because they argue
Mr. Price’s opinion will not assist the fact finder in this case because the opinion in one
of itself does not meet the Plaintiffs’ burden of proof. Defendants argue that because
Mr. Price’s opinion does not rule out an electrical fire as a possible source of ignition,
instead of pinpointing a specific cause of ignition to a higher level of certainty, the
opinion should be excluded. The Court finds no merit in this assertion.
The issues raised by the Defendants in this motion go to the weight of the
testimony and not admissibility. As such Defendants’ Motion to Exclude Expert
Witness and Testimony of Bill Price (Rec. Doc. 124) is DENIED, and Mr. Bill Price
will be qualified as an expert witness at trial if he is so called as a witness by Plaintiffs.
III. Defendant’s Motion for Summary Judgment
Finally, the Court addresses the last motion it has under submission, the
Defendants’ Motion for Summary Judgment (Rec. Doc. 123). The Defendants move
for summary judgment on both of the Plaintiffs’ theories of liability: 1) premises liability
and 2) fraud in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”). Should
this Court find there is a genuine issue of material fact on the two theories of liability, the
Defendants ask the Court to bar damages with respect to: 1) treble damages on LUTPA
because the Louisiana Attorney General had not previously put Defendants on notice
that they were engaging in unfair trade practices, 2) mental anguish damages unless
there is evidence Defendants are tortiously liable for igniting the fire, and 3) special
damages, capping them at $15,000 per apartment. Both parties submitted statements
of uncontested facts and numerous exhibits. For the following reasons, the Motion for
Summary Judgment is DENIED in part and GRANTED in part.
A. Procedural History
This motion was first filed on November 23, 2021 (Rec. Doc. 49). It was
dismissed as premature and denied without prejudice on December 15, 2021 (Rec.
Doc. 83) so that both parties could conduct additional necessary discovery. Since that
initial dismissal the Plaintiffs supplemented their expert reports, submitted that expert to
deposition, and both sides have had the opportunity to file motions upon which this
Court has previously ruled.
B. Legal Standard
Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed
in the light most favorable to the non-movant, “show that there is no genuine issue as to
any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). “[A] dispute about
a material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” In re Taxotere (Docetaxel) Prod. Liab. Litig., 994 F.3d
704, 707–08 (5th Cir. 2021) (quoting Anderson, 477 U.S. at 248). The court must draw
all justifiable inferences in favor of the non-moving party. Sedgwick James, 276 F.3d at
759 (citing Anderson, 477 U.S. at 255).
“If the moving party meets the initial burden of showing that there is no genuine
issue of material fact, the burden shifts to the non-moving party to produce evidence or
designate specific facts showing the existence of a genuine issue for trial.” Engstrom v.
First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995). Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish the existence
of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). Conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial. Sedgwick James, 276 F.3d at 759 (citing
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)). The district court has no duty to
survey the entire record in search of evidence to support a non-movant’s position. Id.
(citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline,
845 F.2d 1300, 1307 (5th Cir. 1988)).
C. Discussion
Negligence
In their first request, the Defendants move the Court for summary judgment on the
Plaintiffs’ negligence claim, arguing that no evidence exists in the record that the
Defendants caused the ignition of the fire. The Defendants argue that the Plaintiffs must
prove that the Defendants caused the fire to reach their burden of proof. In response, the
Plaintiffs argue that their expert, Mr. Price found “a high probability that the source of
ignition for the Baywood Apartments fire is an electrical fault likely caused by a rodent
chewing on a wire or due to the age of the wiring”.1 Further, the Plaintiffs argue that the
1 Plaintiffs’ Exhibit AD, Supplemental Report of Bill Price.
proper burden that they must prove to prevail in this case is to show that the fire was
caused by a defect or vice that the Defendant knew or should have known to exist in the
property. The Court finds that there is a genuine issue of material fact and summary
judgment is denied.
The Defendants’ main argument in this portion of the motion is that no party can
identify a cause of the fire that is more likely than any other. Mr. Price submitted a
supplemental report and increased his level of certainty that the fire was caused by an
electrical spark caused by a rodent chewing on the high from “possible” to “high
probability”. The Defendants argue that his opinion did not have the sufficient level of
certainty of “more probable than not”, therefore Plaintiffs cannot legally reach their
burden. Both sides then provided the Court with case comparisons showing how other
district courts in this jurisdiction and elsewhere have dealt with similar issues. The Court
does not need to reach that level of analysis for this portion of the motion. The
Defendants’ attempted distinction between the words “high probability” and “more
probable than not” is flawed. Regardless of their flaw in reasoning, the prevailing issue
remains as to the source of the fire. The dispute between the competing levels of certainty
of the different expert witnesses in this case has no bearing on this motion for summary
judgment. For purposes of this motion the Defendants have the burden to prove that no
reasonable jury could return a verdict for the non-moving party, with the Court viewing the
evidence in the light most favorable to the Plaintiffs. Irrespective of the Plaintiffs’
likelihood of success at trial, the record produced in this motion contains sufficient factual
disputes as to the cause of the fire.
As the parties are aware, often in cases that involve mass casualty of property
through fire, there is not always a clear trail of breadcrumbs leading the factfinder or court
to the cause of the fire. That is precisely why courts have allowed the use of
circumstantial evidence to prove the source of ignition of fires in similar cases. Here, the
Court was provided with work orders from pest control showing the existence of a growing
rodent problem at Building 11. That fact was also acknowledged by both parties’ fire
experts. The existence of the rodent problem, combined with the testimony of an expert
opinion supports this Court’s holding that the source of the ignition of the fire is a genuine
issue of material fact.
Louisiana Unfair Trade Practices Act
In the Defendants’ second part of its motion for summary judgment, they ask the
Court to bar recovery of Plaintiffs’ LUTPA claim. The Defendants argue that there was
no material misrepresentation made to the Plaintiffs by offering them renter’s insurance
because the terms of the insurance were included in the insurance agreement. The
Plaintiffs argue that the inducement by sending a flyer to each plaintiff contained
misrepresentations about the terms of insurance that were offered.
For the Plaintiffs to prevail on a LUTPA claim, they must prove fraud. Plaintiffs
must prove: 1) a misrepresentation, suppression, or omission of true information; 2) the
intent to obtain an unjust advantage or to cause damage or inconvenience over them;
and 3) the error induced by Defendants’ fraudulent act must relate to a circumstance
substantially influencing Plaintiffs to the contract at issue. Louisiana Civil Code Article
1953. LUTPA provides causes of action for those who suffer an “ascertainable loss”
caused by another person’s unfair trade practice. LUTPA prohibits a narrow range of
practices. Cheramie Servs., 35 So. 3d, 1055. Negligence alone, not coupled with some
sort of misrepresentation, deception, or other immoral and unethical conduct is not
enough for a LUTPA violation. Pizzaloto v. Hoover Company, 486 So.2d 124, 127 (LA.
App. 5 Cir. 1986). Furthermore, a plaintiff cannot recover through LUTPA if the damage
was caused by an erroneous assumption that he never confirmed. Id., at 127.
On this ground of their motion, the Defendants prevail. Based on the exhibits
presented to the Court, the Plaintiffs’ LUTPA cause of action is hardly a misrepresentation
by the Defendants and nothing more than assumptions made by the Plaintiffs. Central to
the Plaintiffs’ argument is that the Defendants’ advertisement to purchase additional
liability insurance misled the Plaintiffs into thinking that their personal property would be
insured in the event of the type of accident similar to the one that occurred in this case.
However, the flyer (Plaintiff Ex. U., Rec. Doc. 127-22) was not the only form of written
communication that Defendants published to the Plaintiffs regarding this insurance.
Numerous times the Plaintiffs were warned that this additional policy did not include the
things they are now claiming they assumed it included.2 The Plaintiffs clearly assumed
that this additional insurance policy was in some way similar to a renter’s insurance policy,
which many residents of apartments purchase to insure their personal property.
However, no where in the flyer that the Plaintiffs now claim to have induced them into
purchasing the policy does the phrase “renter’s insurance” appear.
The Court has not been provided with evidence of a misrepresentation by
Defendants. Louisiana Law requires the Plaintiffs to prove more than that an erroneous
assumption was never confirmed. To that point, the record is clear that the Plaintiffs never
read the insurance policy, lease addendum, or lease agreement provisions regarding this
2 Defendant’s Exhibit F-1; H-1; F-2; G-1 (Rec. Doc. 123-15, 16, 17)
additional coverage, all of which were given to them by the Defendants. Because no
misrepresentation existed, no reasonable jury could conclude that Plaintiffs can meet their
burden on their LUTPA claim. Therefore, no genuine issue of material fact exists, and
summary judgment is granted on the Plaintiffs’ LUTPA claim.
Damages
Finally, the Court turns it attention to the Defendants’ motion for summary
judgment to preclude the Plaintiffs’ recovery on damages. The Defendants’ motion is
three-fold: 1) Plaintiffs cannot recover on treble damages through LUTPA, 2) Plaintiffs
cannot recover special damages capped at more than $15,000 per apartment, and 3)
Plaintiffs cannot recover general damages unless they can prove that the Defendants
caused the fire. The above rulings render parts one and three of this portion of
Defendants’ motion moot. The Court has already ordered that the Plaintiffs’ LUTPA claim
is legally insufficient, therefore that portion of the claim for damages will also be barred.
Next, the Court has ruled that the Plaintiffs have genuine issues of material fact in dispute
to support its’ theory that Defendants were at fault for starting the fire. The Court was
provided with sufficient evidence, which was not disputed by the Defendants, that the
Plaintiffs experienced mental anguish from the emotional toll of experiencing their homes
burn to the ground. Therefore, they will not be barred from general damages and that
portion of the motion is denied. The Defendants argue that special damages for each
apartment should be capped at $15,000 since the Plaintiffs believed they had purchased
$15,000 in insurance coverage. The Defendants cite no legal authority to support their
theory, nor can the Court find any. The Defendants’ motion to limit the special damages
at $15,000 is denied.
D. Conclusion
In sum, there is a genuine issue of material fact as to the source of the fire and
whether Defendants were responsible for the fire. That portion of the Defendants’ motion
is DENIED. However, there is no evidence that Plaintiffs were materially misled by the
Defendants. Mere assumptions by one party are not enough to prove a
misrepresentation, especially when that same party signed a lease addendum without
reading the document. Therefore, the Motion for Summary Judgment on Plaintiffs’
LUTPA claim is GRANTED. Likewise, Plaintiffs’ claim for LUTPA damages is DENIED
as MOOT. Further, the Court’s ruling on the negligence claim renders the Defendants’
motion with respect to general damages MOOT as well. Finally, the Defendants’ motion
with the request to cap special damages at $15,000 is DENIED.
Accordingly;
IT IS ORDERED that Plaintiffs’ Motion to Bifurcate and Separate Juries (Rec.
Doc. 121) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion in Limine to Exclude the
Reports, Testimony, and Opinions of Bill Price (Rec. Doc. 124) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment
(Rec. Doc. 123) is GRANTED IN PART AND DENIED IN PART. The motion is granted
with respect to the Plaintiffs’ LUTPA claim. The motion is denied in part with respect to
the other claims.
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January 23, 2023
C t
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UNITED STATES DISTRICT JUDGE
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