Thomas

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

WILLIE WALLACE THOMAS ET AL CIVIL ACTION NO. 22-2159

VERSUS JUDGE EDWARDS

UNION PACIFIC RAILROAD CO MAG. JUDGE HORNSBY

MEMORANDUM RULING AND ORDER

Before the Court is a Motion for Partial Summary Judgment (R. Doc. 32) filed

by Union Pacific Railroad Company (“Defendant” or “Union Pacific”). Willie Thomas

(“Thomas”) and Jennifer Thomas (together “Plaintiffs”) oppose (R. Doc. 34).

Defendant replied (R. Doc. 35).

Having carefully considered the parties’ memoranda and the applicable law,

Defendant’s Motion for Partial Summary Judgment is GRANTED IN PART and

DENIED IN PART.

BACKGROUND

This suit stems from an incident that occurred on May 27, 2021, at 2232

Hollywood Ave., Shreveport, Louisiana (the “Property”).1 As an initial matter,

Plaintiffs contend that the Property “was in the care, custody, control and managed

by [P]laintiff[s].”2 Additionally, Plaintiffs have a purported 10 year lease over the

Property (the “Lease”).3 Upon arriving at the Property, Thomas “noticed several loads

1 See R. Doc. 14 at ¶¶ 7, 13.

2 Id. at ¶ 6.

3 See R. Doc. 34-2 at 1. The Lease is between Living Word Christian Fellowship and Thomas for a term

of ten (10) years and a sum certain rent of $1,000.

of track ballast”4 and “heavy equipment” (the “Material”), which was placed on the

Property by Union Pacific crewmen.5 Plaintiffs claim that Union Pacific was

performing a track maintenance project on the railroad adjacent to the Property and

used the Property’s parking lot for the Material.6

According to Plaintiffs, Union Pacific’s crew lacked “permission or

authorization” to place the Material on the Property.7 Thomas approached the

foreman on scene to determine the reason why the Material was placed on the

Property, to which the foreman stated that he thought “it would be ok to use the

[P]roperty.”8 Once Thomas “informed the foreman” of their unwanted presence, “[t]he

foreman apologized” and “informed the crew members to remove all equipment from

the [P]roperty.”9 However, the crew members did not remove the Material because

Thomas refused to permit its removal;10 instead, the crew members exited the

Property.11 Plaintiffs then allege that, while placing caution tape around the

Material, Thomas “stepped on one of the track ballast” causing him to fall and injure

“his right ankle, right knee, left arm, and back.”12

By June 10, 2021, an agent for Union Pacific contacted Thomas to discuss the

removal of the Material.13 The parties entered into an agreement—a Temporary

4 “[T]he rocks that form the track bed upon which railroad ties and track are laid.” R. Doc. 32-1 at 5,

fn. 2.

5 R. Doc. 14 at ¶¶ 7–8.

6 See id. at ¶ 9; see also R. Doc. 32-1 at 5.

7 R. Doc. 14 at ¶ 9.

8 See id. ¶ 9.

9 See id. at ¶¶ 10–11.

10 R. Doc. 32-1 at 5.

11 R. Doc. 14 at ¶ 12.

12 Id. at ¶ 13.

13 See id. at ¶¶ 17–18.

Construction Easement (the “Agreement”)—allowing for the removal of the Material

from the Property.14 The Agreement provided that Union Pacific “lawfully seized” the

Property, which would be “free from encumbrances.”15 The Agreement further stated

that Thomas would “warrant and defend … against the lawful claims of all

persons….”16 Subsequent to the Agreement and payment by Defendant, the Material

was removed on June 12, 2021.17

According to Plaintiffs, no further issues occurred on the Property until June

29, 2021.18 Thomas arrived to the Property after being informed of a workmen

presence on the Property.19 A disagreement ensued as Thomas immediately

instructed the workers to leave the Property but refused to relinquish the equipment

to the workers.20 Due to this disagreement, officers from the Shreveport Police

Department were dispatched.21 Following discussions with the officers, Thomas

“allowed the foreman’s crew to move the construction equipment.”22

As a result of the May 27, 2021 incident, Thomas sought medical treatment on

June 15, 2021 due to the intensifying of his injuries.23 From June 15, 2021 to June

29, 2021, Thomas received several X-Rays and an MRI scan illustrating the extent of

14 Id. at ¶ 18; see R. Doc. 32-1 at 6; see R. Doc. 32-3.

15 R. Doc. 32-3 at 1.

16 Id. at 1.

17 R. Doc. 14 at ¶ 19. Union Pacific agreed to pay Plaintiffs $8,000 for a temporary construction

easement on the Property. See R. Doc. 32-3.

18 See R. Doc. 14 at ¶¶ 33–34.

19 See id. at ¶¶ 34–35. The parties dispute whether Union Pacific employees were on site on June 29,

2021. Defendant argues that the crew on site on June 29, 2021, was “an independent construction

contractor, Kenneth Evertt & Sons.” R. Doc. 32-1 at 23. Thomas deposed that he did not know who the

workers were employed with at the time of the incident. See R. Doc. 32-4 at 17–18.

20 R. Doc. 14 at ¶ 36; see R. Doc. 32-1 at 23.

21 See R. Doc. 14 at ¶¶ 36–38.

22 Id. at ¶ 45.

23 See id. at ¶ 21.

his injuries.24 Because Thomas’s pain continued, he visited several more medical

providers in an effort to reduce his pain.25 Finally, on September 16, 2021, Thomas

was referred to Dr. Bharat Guthikonda (“Dr. Guthikonda”).26 Dr. Guthikonda

informed Thomas that he needed “immediate surgery” due to this injuries, which

later relieved some of Thomas’s pain.27 But Thomas’s relief was only temporary,

requiring Dr. Guthikonda to order an ESI injection for Thomas’s pain.28 The medical

treatment was to no avail, and Thomas claims to continue to suffer pain.29

Plaintiffs filed their civil action in the First Judicial District Court in Caddo

Parish, Louisiana on May 31, 2022.30 In their action, Plaintiffs allege that Defendant

is liable for trespass, personal injury damages, intentional infliction of emotional

distress (“IIED”), and negligent hiring, retention, training, and/or supervision.31

Defendant thereafter timely removed the case on July 19, 2022.32 After Plaintiffs

amended their Complaint, Defendant filed the instant motion on October 16, 2023.33

Defendant moves for summary judgment on the following grounds: (1) Plaintiffs lack

standing or have otherwise comprised their trespass claim; (2) Plaintiffs cannot prove

medical causation; (3) Plaintiffs cannot establish intentional infliction of emotional

24 See id. at ¶¶ 21–32. Dr. Shirley Tan ordered these scans due to Thomas’s “chronic bilateral thoracic

back pain, acute left ankle pain, acute pain of left shoulder[,] and acute right ankle pain.”

25 See id. at ¶¶ 50–60.

26 See id. at ¶¶ 61–62. Dr. Guthikonda is a Board-certified neurosurgeon. See R. Doc. 32-7 at 8.

27 See R. Doc. 14 at ¶¶ 63–64.

28 See id. at ¶¶ 72–75.

29 See id. at ¶¶ 74–75.

30 See R. Doc. 1-1.

31 See R. Doc. 14 at 14–19.

32 See R. Doc. 1.

33 See R. Doc. 14; R. Doc. 32.

distress; (4) Plaintiffs cannot establish a loss of business opportunity claim; and (5)

Plaintiffs’ loss of consortium claim must be limited.34

SUMMARY JUDGMENT STANDARD

Under Rule 56(a), summary judgment shall be granted when the evidence

shows “that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”35 “Only disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”36 “A dispute is genuine if the summary judgment evidence is

such that a reasonable jury could return a verdict for the non-moving party.”37 “[A]

party asserting that a fact cannot be or is genuinely disputed must support the motion

by citing to particular parts of materials in the record.”38 In evaluating a motion for

summary judgment, a court “may not make credibility determinations or weigh the

evidence” and “must resolve all ambiguities and draw all permissible inferences in

favor of the non-moving party.”39

“[A] party seeking summary judgment always bears the initial responsibility

of informing the district court of the basis for its motion, and identifying those

portions of the pleadings, depositions, … [and] the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.”40 “The moving party

34 See R. Doc. 32.

35 Fed. R. Civ. P. 56(a).

36 Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)).

37 Id. (internal citations omitted).

38 Fed. R. Civ. P. 56(c)(1)(A).

39 Total E&P USA Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (internal

citations omitted).

40 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247).

may meet its burden to demonstrate the absence of a genuine issue of material fact

by pointing out that the record contains no such support for the non-moving party’s

claim.”41 If the movant meets this initial burden, then the non-movant has the burden

of going beyond the pleadings and designating specific facts that prove that a genuine

issue of material fact exists.42 If the non-movant is unable to identify anything in the

record to support its claim, summary judgment is appropriate.43

Pleadings filed by pro se litigants must be construed liberally and under less

stringent standards.44 But this liberal construction does not negate a pro se litigant’s

burden under Rule 56. Pro se litigants are required to “properly … present summary

judgment evidence” to defeat summary judgment.45

LAW AND ANALYSIS

I. Plaintiff’s Trespass Claim

Under Louisiana Civil Code article 2315, a plaintiff may bring an action for

trespass “when there is an unlawful physical invasion of the property or possession

of another.”46 To bring such an action, a plaintiff must either be an owner or possessor

of the property in question.47 Once a plaintiff proves damages as a result of a trespass,

41 Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002).

42 Celotex Corp., 477 U.S. at 324.

43 Stahl, 283 F.3d at 263.

44 See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Andrade v. Gonzales, 459 F.3d

538, 543 (5th Cir. 2006).

45 E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (citation modified).

46 Taylor v. Denka Performance Elastomer, LLC, 332 F.Supp.3d 1039, 1055 (E.D. La. 2018) (citing

Richard v. Richard, 24 So.3d 292, 296 (La. App. 3 Cir. 11/04/09)) (citation modified).

47 LaRue v. Crown Zellerback Corp., 512 So.2d 862, 863 (La. Ct. App. 06/23/87), writ denied, 514 So.2d

1176 (La. 1987) (internal citations omitted).

recovery of general damages may include mental and physical pain, anguish, distress,

and inconvenience.48

Defendant presents two bases for its argument that Plaintiffs cannot prevail

on their trespass claim. First, Defendant asserts that Plaintiffs lack standing to bring

a trespass claim.49 Second, Defendant claims that Plaintiffs “compromised” any claim

for trespass against Defendant.50 The Court will analyze each separately.

a. Whether Plaintiffs have Standing for their Trespass Claim

Defendant first argues that Plaintiffs lack standing to assert and, thus, recover

damages under a trespass claim.51 Defendant claims that, to have standing, Plaintiffs

must either be “owner[s] or” have some “other possessory interest in the [P]roperty.”52

But Defendant appears to argue that, because Plaintiffs have failed to prove

ownership, Plaintiffs cannot bring a claim for trespass.53 Not so. Defendant admits

that a possessor of property can bring a trespass claim.54 Here, Plaintiffs assert their

possessory interest in the Property through their Lease.55

Defendant avers that Thomas’s Lease “should be stricken and not considered

for failure to produce in discovery.” Federal Rule of Civil Procedure 37(c)(1) provides

that a party who failed to disclose information under Rule 26(a) or (e) cannot rely on

48 Fleischmann v. Duckworth, 2022 WL 2232680, at *3 (La. App. 5 Cir. 06/22/22) (internal citations

omitted).

49 R. Doc. 32-1 at 10.

50 Id. at 15.

51 Id. at 10–11.

52 Id. at 11.

53 See id. at 11–15.

54 See id. at 10; see LaRue, 512 So.2d at 863 (internal citations omitted).

55 R. Doc. 34-2 at 1.

such undisclosed evidence on a motion unless the failure to disclose is harmless.56 In

determining whether a violation of Rule 26(a) or (e) is harmless, the Fifth Circuit

considers several factors, such as: “(1) the importance of the evidence; (2) the

prejudice to the opposing party of including the evidence; (3) the possibility of curing

such prejudice by granting a continuance; and (4) the explanation for the party's

failure to disclose.”57

Here, the importance of producing a written lease agreement bears little on

the outcome of this decision, as discussed below. Defendant provides no argument as

to the prejudicial effect that would arise upon the Court considering the fact that

Thomas was a lessee of the Property.58 Plaintiffs, in attaching the Lease to their

Opposition, do not explain their failure to produce it in discovery.59 However, Thomas

disclosed the existence of the Lease in his deposition on May 9, 2023, when he testified

that he was “a leaseholder.”60 Thus, Defendant has failed to demonstrate that the

failure to produce a copy of the written Lease caused a prejudicial surprise

warranting its exclusion for the limited purpose of establishing Plaintiffs’ possessory

interest in the Property.61 In any event, even if the Court did not consider the Lease

document itself, the Court still considers Thomas’s capacity as a lessee because a

valid lease is not contingent upon a written agreement.62

56 See Fed. R. Civ. Proc. 37(c)(1).

57 Joe Hand Promotions, Inc. v. Chios, Inc., 544 Fed. Appx. 444, 447 (5th Cir. 2013) (citing Tex. A & M

Research Found. V. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003)).

58 See R. Doc. 35 at 6.

59 See id. at 6. Defendant only provides that the Lease must be stricken because Plaintiff did not

produce the Lease in discovery and failed to supplement the Lease thereafter.

60 R. Doc. 32-4 at 1, 13.

61 See Joe Hand Promotions, Inc., 544 Fed. Appx. at 447.

62 See La. Civ. Code art. 2681.

In the alternative, Defendant contends that the Lease is invalid due to

Thomas’s failure to pay rent.63 Defendant further argues that Thomas’s “reference to

some future $1,000 per month” rent is “purely potestative and prohibited under

Louisiana law.”64 Again, not so. A valid lease requires three elements: (1) the thing,

(2) the price, and (3) the consent of the parties.65 Article 2676 does not require rent

to be paid immediately or on a certain date. Rather, article 2676 only requires an

agreement to rent that is either “sum certain or determinable.”66 Article 2703 also

provides that rent is due at the beginning of the term “[i]n the absence of a contrary

agreement.”67 Here, a contrary agreement exists as the lessor, Living Word Christian

Fellowship, agreed to lease Thomas the premises at a sum certain to be paid at a

future date.68 Thus, all three essential elements for a valid lease—albeit an oral

lease—exist here.

Defendant’s argument as to the “potestative [suspensive] condition” here is

also flawed.69 Louisiana Civil Code article 1770 provides that “[a] suspensive

condition that depends solely on the whim of the obligor makes the obligation null.”

Thomas’s assertion that rent would be paid when he began “getting the building

operational” on the Property does not constitute a suspensive condition relying on the

63 See R. Doc. 32-1 at 13–14.

64 Id. at 14.

65 La. Civ. Code art. 2670.

66 La. Civ. Code art. 2676.

67 La. Civ. Code art. 2703.

68 See R. Doc. 32-4 at 13; R. Doc. 34-2 at 1.

69 Potestative was the term used in former Code articles for suspensive conditions dependent on an

obligor’s whim. La. Civ. Code arts. 2024 (1870), amended and recodified at La. Civ. Code art. 1770

(1984); see also La. Civ. Code art. 1770, Revision Comments (e) (“This Article eliminates the expression

‘potestative condition’….”).

obligor’s whim and, thus, does not run afoul of article 1770. Instead, this “condition”

is a suspensive term.

“A term for the performance of an obligation is a period of time either certain

or uncertain.”70 A suspensive term “postpones the exigibility of the performance.”71

Thomas’s testimony is instructive here. Thomas deposed that “once the building [was]

operational,” then rent would be due.72 The question was not “if” the building became

operational but “when” the building became operational. Thus, the agreement

asserted by Thomas embodied a suspensive term, not a suspensive condition,

postponing the exigibility of performance.73 A landlord is entitled to confer possession

of a thing in exchange for rent to be paid at an uncertain date, where such an

agreement will, as here, form a valid lease.

Louisiana Civil Code article 2702 states that “[e]xcept as otherwise provided

in Article 2700, the lessor is not bound to protect the lessee’s possession against a

disturbance caused by a person who does not claim a right in the leased thing. In such

a case, the lessee may file any appropriate action against that person.”74 Thus, article

2702 affords a “lessee … a right of action for damages sustained against the person

occasioning the disturbance.”75 Louisiana Civil Code article 3659 defines a

disturbance as “an eviction or any other physical act that prevents the possessor of

70 La. Civ. Code art. 1778.

71 See 5 Saúl Litvinoff & Ronald J. Scalise Jr., Louisiana Civil Law Treatise: Law of Obligations § 6.8

(2d ed. 2001).

72 R. Doc. 32-4 at 13.

73 See 5 Saúl Litvinoff & Ronald J. Scalise Jr., Louisiana Civil Law Treatise: Law of Obligations § 6.8

(2d ed. 2001).

74 La. Civ. Code art. 2702.

75 Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318, 323–24 (La. 1993).

immovable property or a right therein from enjoying his possession quietly or that

throws an obstacle in the way of that enjoyment.”76 Therefore, a lessee may file an

action for property damage for any physical act that prevents a lessee from enjoyment

of the property.77 As such, Plaintiffs have standing to bring a trespass claim.

b. Whether Plaintiffs Compromised their Trespass Claim

Now to Defendant’s position that the trespass claim has since been

compromised. Defendant argues that “any claim for trespass … was compromised…”

due to the entering of the Agreement between Thomas and Union Pacific.78 The

Agreement—a temporary construction easement—provides for the “storage and

removal of ballast” on the Property.79 The Agreement further states that Thomas

“shall warrant and defendant … against the lawful claims of all persons….”80

Louisiana defines a compromise as “a contract whereby the parties, through

concessions made by one or more of them, settle a dispute or an uncertainty

concerning an obligation or other legal relationship.”81 However, “[a] compromise

settles only those differences that the parties clearly intended to settle[.]”82 The

language in the Agreement does not clearly reflect the parties intent to settle

76 See Indian Harbor Ins. Co. v. Covington Flooring Co., Inc., No. 24-30243, 2025 WL 416992, at *3

(5th Cir. 2025).

77 Defendant’s argument that La. Civil Code art. 2691 excludes a lessee’s ability to pursue a trespass

claim is misplaced. Article 2691 provides a mechanism for a lessee, such as Plaintiffs, to seek recourse

against a lessor for necessary repairs of the thing leased.

78 R. Doc. 32-1 at 15.

79 R. Doc. 32-3 at 1.

80 Id.

81 La. Civ. Code art. 3071.

82 La. Civ. Code art. 3076.

Plaintiffs’ trespass claim. Given the lack of clarity in the Agreement, a genuine issue

of material fact exists as to whether the agreement constituted a settlement.

Thus, since Plaintiffs have standing to bring a trespass claim and since the

Agreement is not clear as to whether a settlement occurred, summary judgment is

not appropriate as to Plaintiffs’ trespass claim.

II. Evidence of Medical Causation

Defendant also seeks summary judgment on the grounds that Plaintiffs cannot

prove medical causation.83 Defendant argues that Plaintiffs cannot establish medical

causation from the fall to any of Thomas’s three surgeries.84

“In a personal injury suit, plaintiff bears the burden of proving a causal

relationship between the injury sustained and the accident which caused the

injury.”85 Plaintiffs must prove causation by a preponderance of the evidence. To

determine this causal relationship, a plaintiff must “prove[] through medical or lay

testimony that it is more probable than not that the subsequent injuries were caused

by the accident.”86 Although medical testimony is traditionally favored and

sometimes required by courts to prove causation, causation can still be shown

through other direct or circumstantial evidence, including common knowledge.87

However, “when the conclusion regarding medical causation is not one within

common knowledge, expert medical testimony is required.”88 “A trial court has wide

83 R. Doc. 32-1 at 15.

84 See id. at 16–21.

85 Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757, 759 (La. 1995).

86 Kliebert v. Breaud, 134 So.3d 23, 28 (La. App. 5 Cir. 01/31/14).

87 Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993).

88 Hutchinson v. Shah, 648 So.2d 451, 452 (La. App. 1 Cir. 12/22/94).

discretion to admit or exclude expert testimony.”89 Nevertheless, “[c]ausation is an

issue of fact that is generally decided at trial on the merits.”90

First, Defendant claims that Thomas’s thoracic spine surgery did not derive

from the fall.91 Defendant relies on Dr. Guthikonda’s testimony and Dr. David

Smith’s (“Dr. Smith”) report.92 Dr. Guthikonda opined that the thoracic spine surgery

was needed due to the existence of “discitis, osteomyelitis, epidural abscess collection,

and kyphosis” in Thomas’s spine.93 Dr. Guthikonda further provided that Thomas’s

injuries and pain “could be a result of the fall” but “it is certainly difficult to say.”94

However, Dr. Smith stated that Thomas’s thoracic spine abnormalities were

“definitely and unequivocally those of discitis with osteomyelitis” and not from a

“traumatic injury after the first fall.”95

Second, as to the cervical spine surgery performed on May 11, 2022, Dr.

Guthikonda stated that he could not opine on the causation of Thomas’s cervical pain

as he was not an expert in that area.96 Dr. Smith observed “only degenerative

changes” rather than traumatic injuries from the fall on Thomas’s cervical spine.97

89 Edmonds v. Illinois Cent. Gulf R. Co., 910 F.2d 1284, 1287 (5th Cir. 1990); see also Viterbo v. Dow

Chemical, 826 F.2d 420, 422 (5th Cir. 1987) (holding that “[i]n rulings on the admissibility of expert

opinion evidence[,] the trial court has broad discretion….”) (internal citations omitted).

90 Jones v. Tim Williams Wood Prods., LP, No. 18-826, 2020 WL 3815265, at *6 (W.D. La. July 6, 2020)

(quoting Estate of Adams v. Home Health Care of Louisiana, 775 So.2d 1064, 1065 (La. 2000)).

91 See R. Doc. 32-1 at 16–19.

92 See id. at 16. Defendant provides that Dr. Smith is “a professor and diagnostic radiologist” who

reviewed all of Thomas’s imaging following the incident on May 27, 2021.

93 See R. Doc. 32-7 at 20.

94 See id. at 17–18.

95 R. Doc. 32-9 at 3.

96 See R. Doc. 32-7 at 27–28.

97 See R. Doc. 32-9 at 1.

Third, Dr. Guthikonda opined that Thomas’s lumbar spine surgery on March

21, 2023, likely occurred as a result of a motor vehicle accident that Thomas had after

the cervical spine surgery.98 Dr. Smith concurred in providing that “no evidence of

trauma” existed as to Thomas’s lumbar spine following the fall in May 2021.

Plaintiff, however, contends that he received treatment only for “the fall

reported in May 2021” and, thus, these surgeries only occurred as a result of

Defendant’s actions.99 To prove medical causation, Plaintiffs rely on Dr. Steve Allison,

a doctor of physical therapy (“Dr. Allison”), who opined that “[t]here is nothing else

in [Thomas’s] history other than the 05/27/2021 trip and fall accident that would

indicate a cause of the severity of his current chronic pain conditions, physical

impairments, functional limitations/restrictions, and loss of enjoyment of life

activities.”100

In its Reply, Defendant asserts that “physical therapists are barred from

opining on medical causation of injuries.”101 Defendant relies on Allemore v. Camellia

Hospice of Louisiana, where the Louisiana First Circuit held that “a person must

have an M.D. or a D.O. degree and a duly recorded license in order to be a physician

and to engage in the ‘practice of medicine.’ Only with those qualifications can an

individual diagnose an injury or its cause.”102 The Court agrees.

98 See R. Doc. 32-8 at 15–16.

99 See R. Doc. 34 at 12–13.

100 Id. at 13; see R. Doc. 34-2 at 24.

101 R. Doc. 35 at 2.

102 2014 WL 3583546, at *6 (La. App. 1 Cir. 07/21/14), writ denied, 152 So. 3d 872 (La. 2014).

“In the absence of expertise in an ancillary field,” the Fifth Circuit has held

that “a non-physician is not qualified to give medical testimony.”103 Dr. Allison is not

a medical doctor.104 While Dr. Allison may evaluate patients and provide treatment

options, his qualifications and degrees in physical therapy do not align with or

support his challenged medical causation testimony as to Thomas’s injuries. There is

no evidence to suggest that Dr. Allison can offer expert testimony outside his area of

practice—physical therapy. Thus, Dr. Allison cannot make a diagnosis as to the cause

of Thomas’s injuries.

Nevertheless, taking Dr. Guthikonda’s testimony that the thoracic spine injury

could have resulted from the fall in a light most favorable to Plaintiffs, a genuine

issue of material fact exists as to whether the May 27, 2021, fall caused Thomas’s

thoracic spine injuries. Absent any other expert medical testimony pertaining to

medical causation, Plaintiffs have not shown a genuine issue of material fact as to

medical causation for the cervical spine and lumbar spine injuries. Thus, Defendant

is entitled to summary judgment on Thomas’s cervical spine and lumbar spine

injuries.

103 Carlson v. Bioremedi Therapeutic Systems, Inc., 822 F.3d 194, 200 (5th Cir. 2016) (citing Edmonds,

910 F.2d at 1286–87 (holding that a psychologist could not offer medical testimony to a patient’s heart

disease)).

104 See R. Doc. 34-2 at 25. Dr. Allison’s own report acknowledges that “[w]hile physicians (medical

doctors) are trained to provide medical diagnoses based on an assessment of clinical and laboratory

findings, the American Medical Association (AMA) recognizes that most physicians are not trained in

assessing an individual’s work ability or disability.” Medical diagnoses are not a question of

assessment but a question of causation. See Kliebert v. Breaud, 134 So.3d 23, 28 (La. App. 5 Cir.

01/31/14).

III. Plaintiffs’ Intentional Infliction of Emotional Distress Claim

To establish a claim of intentional infliction of emotional distress (“IIED”), a

plaintiff must establish the following: “(1) that the conduct of the defendant was

extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was

severe; and (3) that the defendant desired to inflict severe emotional distress or knew

that severe emotional distress would be certain or substantially certain to result from

his conduct.”105 This standard is demanding. “The conduct must be so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious and utterly intolerable in a civilized community.”106

This does not include and, thus, liability cannot be assessed to “mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.”107 As to

severity, “[t]he distress suffered must be [so extreme] that no reasonable person could

be expected to endure it.”108 Lastly, the defendant must intend to cause this severe

emotional distress and nothing less.109

Defendant asks this Court to grant summary judgment on Plaintiffs’ claims

that it intentionally inflicted emotional distress on Thomas. In support, Defendant

asserts that Thomas’s interactions with Union Pacific’s foreman “fall woefully short

of” the IIED standard.110 Defendant contends that Thomas informed Union Pacific’s

foreman “to remove all equipment from the [P]roperty” on May 27, 2021.111 Following

105 White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).

106 Id.

107 Id.

108 Id. at 1210.

109 Id.

110 R. Doc. 32-1 at 22.

111 Id.

Thomas’s request to remove the equipment, Defendant states that its foreman

“provided [P]laintiff with the proper contact information and avenues to resolve the

issue.”112 After the initial exchange, Defendant contends that Thomas had two more

interactions with workers on the Property: on June 29, 2021, when police were called

after Thomas refused to allow crewmen to remove their equipment from the

Property,113 and on November 22, 2021, when Thomas observed but did not engage

or otherwise interact with an alleged employee of Defendant.114 Defendant argues

that these interactions cannot be said to be severe or outrageous.115

Defendant also contends that, regardless of the outrageousness of the alleged

conduct, Plaintiffs fail to demonstrate how the emotional distress suffered was

severe.116 In support of this position, Defendant cites to a PHQ2 test that Thomas

took on July 29, 2021.117 Thomas responded to the test by indicating that he did not

feel “down, depressed, or hopeless.”118 Thus, Defendant argues that Plaintiffs cannot

present evidence such that the damages suffered were severe.

Plaintiffs, in opposition, failed to address the IIED arguments presented by

Defendant. In their Amended Complaint, Plaintiffs claim that Defendant is liable for

IIED caused by Defendant’s actions.119 In so claiming, Plaintiffs state that

Defendant’s “dumping track ballast in the parking lot of Plaintiff’s business” along

112 Id. at 23; see R. Doc. 32-4 at 15–16. Thomas deposed that Defendant’s foreman gave him a claim

number and form to resolve any property damage issue.

113 R. Doc. 32-1 at 23; see R. Doc. 34-4 at 19–20.

114 R. Doc. 32-1 at 24; see R. Doc. 14 at 13.

115 R. Doc. 32-1 at 22–24.

116 Id. at 24.

117 Id.; R. Doc. 32-14 at 2.

118 R. Doc. 32-1 at 24–25; R. Doc. 32-14 at 2.

119 R. Doc. 14 at ¶ 78.

with “having heavy equipment on new concrete” caused “Plaintiff to suffer emotional

distress which was and continues to be severe in nature.”120 Plaintiffs further aver

that Defendant caused further distress when Defendant “false[ly]” accused Thomas

of stealing.121

The Court agrees with Defendant. Plaintiffs have pled no facts nor point to any

evidence in the record of such conduct that is extreme, outrageous, and exceeds “all

possible bounds of decency and to be regarded as atrocious and utterly intolerable in

a civilized community.”122

First, on May 27, 2021, Defendant’s employee “apologize[d]” to Thomas for

entering the property without consent.123 The employee then gave Thomas the

necessary information to resolve any property damage issue deriving from the

Material.124 This conduct is inconsistent with the “extreme” or “outrageous” standard.

Second, the workers’ actions on June 29, 2021, also fall short of the IIED standard. A

worker on site called the police and alleged that Thomas was stealing equipment from

the crewmen.125 The police advised Thomas of these allegations and informed Thomas

that it was a civil matter.126 During this conversation, a worker allegedly commented

to Thomas that “we’ve got ways to handle people like [Thomas].”127 Regardless of

120 Id. (citation modified).

121 Id.

122 Deville v. Robinson, 132 So.3d 1277, 1280 (La. App. 3 Cir. 02/26/14), (citing White, 585 So.2d at

1209).

123 R. Doc. 32-4 at 14.

124 Id. at 14–15.

125 R. Doc. 32-1 at 23; R. Doc. 32-4 at 20–21.

126 R. Doc. 32-4 at 20–21. Thomas deposed that the police threatened to arrest him for theft.

127 Id. at 22.

whether Union Pacific is responsible for this worker,128 this conduct—calling the

police and the alleged threat—is insufficient to substantiate an IIED claim, which

required Plaintiffs to prove extreme and outrageous conduct.

Even if the record before the Court could lead a reasonable person to conclude

that the conduct was outrageous or extreme, Plaintiffs have failed to illustrate that

Defendant intended to cause any emotional distress, let alone severe distress.129 To

the extent Thomas suffered any emotional distress, Defendant could not have known

or have been substantially certain that placing the Material on the Property, calling

the police, or making a comment would result in extreme emotional distress.130

The Court finds that Plaintiffs have failed to demonstrate a genuine issue of

material fact on their IIED claim—thus, warranting summary judgment.

IV. Plaintiffs’ Loss of Business Opportunity Income Claim

In this case, Plaintiffs have also alleged a claim for loss of business income

relating to a purported lease of a cell tower with Crown Castle.131 Defendant moves

for summary judgment and asserts that no genuine issue of material fact exists as to

Plaintiffs’ inability to assert such a claim.132 Defendant requested from Crown Castle

128 Defendant argues that the crew on site on June 29, 2021, was “an independent construction

contractor, Kenneth Evertt & Sons.” R. Doc. 32-1 at 23. The police report attached to Defendant’s

Motion indicates that Kenneth Evertt & Sons contracted through Defendant. R. Doc. 32-10 at 1.

Thomas deposed that he did not know who the workers were employed with at the time of the incident.

See R. Doc. 32-4 at 17–18.

129 See Curran v. Aleshire, 67 F.Supp.3d 741, 754–55 (E.D. La. 2014) (holding that the evidence before

the court failed to indicate that the defendant desired to inflict distress or knew that such distress

would result as a result of the defendant’s conduct).

130 See, e.g., Nwachukwu v. U-Haul Co. of Louisiana, No. 23-1864, 2025 WL 903127, *8 (E.D. La. Mar.

25, 2025), appeal dismissed, No. 25-30181, 2025 WL 2745789 (5th Cir. 2025) (holding that reporting

an incident to the police could not rise to the level of extreme and outrageous conduct necessary to

substantiate an IIED claim).

131 R. Doc. 14 at 15.

132 R. Doc. 32-1 at 25.

any agreement it had with Thomas, to which Crown Castle responded: “we could not

locate any agreements, contracts, servitudes, easements, and/or rights-of-way

agreements, nor records of any fees paid between Crown Castle and Willie Wallace

Thomas.”133 As such, Defendant argues that Plaintiffs cannot claim damages related

to loss of business income with Crown Castle.134 Plaintiffs failed to dispute

Defendant’s argument in their Opposition. Thus, Defendant has shown that no

genuine issue of material fact exists and an entitlement to judgment as a matter of

law on Plaintiffs’ loss of business income claim.

V. Plaintiffs’ Loss of Consortium Claim

Defendant lastly seeks judgment on Plaintiffs’ remaining claims of loss of

consortium. “A loss of consortium claim is a derivative claim and cannot be

maintained if the primary claim is not viable as a matter of law.”135 Since the Court

has found that Thomas’s claim as to his thoracic injury has survived summary

judgment, the consortium claim will not be dismissed.

133 R. Doc. 32-12.

134 See R. Doc. 32-1 at 25.

135 Williams v. Genesis Energy, LLC, No. 20-35, 2021 WL 1227873, at *13 (M.D. La. Mar. 31, 2021).

CONCLUSION

Considering the foregoing,

IT IS ORDERED that Defendant’s Motion for Partial Summary Judgment (R.

Doc. 32) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ trespass claim

and claims related to injuries to Thomas’s thoracic spine and loss of consortium

remain.

THUS DONE AND SIGNED in Chambers this 12th day of March, 2026.

sbarenle

sheet

UNITED STATES DISTRICT JUDGE

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