Petition for Writ of Certiorari — Hernandez v. Kmart Corp.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

TONI DECOSSAF HERNANDEZ,

Petitioner

a versus

KMART CORPORATION, et a/.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John E. Ruiz, Jr.

Attorney for Petitioners

127 S. Roman Street

P.O. Box 791180

New Orleans, LA 70179-1180

Tel.: [504] 482-0113

QUESTIONS PRESENTED

1. Whether the Trial Court erred and abused its

discretion when it denied petitioner's motion for leave to

amend her complaint (which was originally filed in State

~ court and removed to Federal court by the defendant

ccrporation) to add as a defer. dant the non-diverse store

manager and the non-diverse corporation that was the

owner and/or operator of the K-Mart store in Chalmette.

Louisiana, when Louisiana law had only recently been

Clarified to provide that a store manager could be held

liable for unreasonably dangerous conditions upon store

premises and federal district courts had consistently

construed petitions naming store managers as defen-

dants to be a fraudulent joinder to avoid diversity juris-

diction of the federal courts, thus denying the plaintiffs

the benefit of the State forum they had selected when

they initiated their claim?

2. Whether the Trial Court erred and denied peti-

tioner a fair trial when it refused to instruct the jury

according to Louisiana Jaw that causation of an injury

may be established upon the basis of proof of a plain-

tiffs good health before an accident and proof of injuries

that could possibly have been caused by an accident of

the type aileged by the plaintiff?

3. Whether the Trial Court erred in excluding the

testimony o1 safety experts concerning the unlikelinood

that a store patron would have seen the clear, small

puddle of bubbie bath on a mottled green flecked tile

floor while shopping, and in denying petitioner's motion

for alternative post-verdict relief from the jury's determi-

nation that petitioner was 25% responsibie for her inju-

ries (either upon a motion for a judgment non obstante

veredicto or a motion for a new trial), when there was no

evidence before the Trial Court upon which a valid

determination of comparative fault could have been

-jl- =

made under Louisiana iaw--the substantive law the

Federal District Court was bound to apply in this case

arising under its diversity jurisdiction?

4. Whether the Trial Court erred in denying such

post-verdict relief to Mr. Hernandez on his loss of

consortium claim when he and Mrs. Hernandez testified.

without contradiction, about the nature and extent of their

pre-accident marital activities and the substantial differ-

ences produced by Mrs. Hernandez's Injuries?

-ili-

LIST OF ALL PARTIES TO THE PROCEEDING

The parties to the proceedings below were Toni

Decossaf Hernandez and Sherman Hernandez, plaintiffs,

and K-Mart Corporation, defendant. Piaintiff also sought

to add as parties defendant two non-diverse parties.

viz., K-Mart #3387, Inc., a Louisiana corporation that is

a subsidiary of defendant K-Mart Corporation, and John

Galloway, the store manager, both of whom have an

interest in the outcome of this Court's decision of this

Case.

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TABLE OF CONTENTS

Questions Presented

List of All » = cies

Table of Authorities

Petition

Opinions Below

Jurisdiction

Statutes and Rules Involved

Statement of the Case

Basis for Federal Jurisdiction

Reasons for Granting the Writ

(1) Refusal to permit diversity-destroying

amendment and remand to State court

(2) Refusal to instruct in accordance with

Louisiana law

(3) Exclusion of relevant expert opinion

(4) Denial of loss of consortium claim

Conclusion

Certificate of Service

Table of Contents (continued) Page

APPENDIX:

App. A - Fifth Circuit's opinion A-1

App. B - Minute Entry of 1/3/92 denying motion

for leave to file diversity-destroying

amendment of State complaint A-9

App. C - Order and Reasons denying post-verdict

relief A-13

App. D - Order denying petition for rehearing A-25

App. E - Excerpts of Statutes and Rules InvoivedA-27

TABLE OF AUTHORITIES CITED

CASES:

Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514

(1881) 29

Bergeron v. K-Mart Corp., 540 So.2d 406

(La.App. 1 Cir. 1989) 40

Bonnette v. K-Mart, Inc., 502 So.2d 202

(La.App. 3 Cir. 1987) 40

Canter v. Koehring Co., 283 So.2d 716

(La.1973) 25, 26, 28

Cash v. Charter Marketing Co., 607 So.2d 1036

(La.App. 3 Cir. 1992) 40

-Vvl-

Table of Authorities (continued) Page

Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413,

31 S.Ct. 460, 55 L.Ed. 521 (1911) 31

Chicago, R.I. & P.R. Co. v. Schwyhart, 227 U.S.

184, 33 S.Ct. 250, 57 L.Ed. 473 (1912) 31

Chicago, R.|. & P.R. Co. v. Whiteaker, 239 U.S. 421,

36 S.Ct. 152, 60 L.Ed. 360 (1915) 31

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

__ US. , 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993) 41, 42

Elder v. Wal-Mart Stores, Inc., 751 F.Supp. 639

(E.D.La.1990) 12, 27

Finley v. Bass, 478 So.2d 608 (La.Ap. 2 Cir. 1985) 43

Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227,

9 L.Ed.2d 222 (1962) 29

Freeman v. Wal-Mart Stores, Inc., 775 F.Supp. 208

(W.D.La.1991) 12, 27

Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct.

1464, 89 L.Ed. 2079, 160 A.L.R. 1231 (1945) 34

Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136,

14 L.Ed.2d 8 (1965) 34

Hensgens v. Deere & Co., 833 F.2d 1179 (5 Cir.

1987), cert. den., 493 U.S. 851, 110 S.Ct. 150,

107 L.Ed.2d 108 (1989) 30, 31, 32, 33

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Table of Authorities (continued) Page

Holmes v. Great A & P Tea Co: 587 So.2d 750

(La.App. 4 Cir. 1991), writ den., 592 So.2d 412

(1A.1992) 12, 24, 25, 27, 28, 32

Housley v. Cerise, 579 So.2d 973 (La.1991) 13, 34

International Primate Protection League v. Ad-

ministrators of Tulane Educational Fund,

500 U.S. , 111 $.Ct. 1700, 114 L.Ed.2d

134 (1991) 22

Peralta v. Schwegmann Bros. Giant Supermarkets,

Inc., 406 So.2d 720 (La.App. 4 Cir. 1981), writ

den., 410 So.2d 762 (La.1982)__ 40

Perez v. Wal-Mart Stores, Inc., 608 So.2d 1006

(La.1992) 39

Warner v. Great A & P Tea Co., 583 So.2d 61

(La.App. 2 Cir. 1991) 42, 43

CONSTITUTIONAL, STATUTORY AND RULES PROVI-

SIONS CITED:

United States Constitution:

Seventh Amendment 21

United States Code:

28 U.S.C. §1254(1) 3

28 U.S.C. §1332(a)(1) 3, 19

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Table of Authorities (continued)

28 U.S.C. §1441 ef Seq.

28 U.S.C. §1441(a)

28 U.S.C. §1447(c)

28 U.S.C. §1447(e)

Supreme Court Rules:

Rule 10.1(a), Supreme Court Rules

Rule 10.1(c), Supreme Court Rules

Federal Rules of Civil Procedure:

Rule 15(a), F.R.C.P.

Federal Rules of Evidence:

Rule 401, F.R.Evid.

Rule 701, F.R.Evid.

Rule 702, F.R.Evid.

Rule 704, F.R.Evid.

Louisiana Constitution of 1974:

Art. 5, §5(C), La.Const.1974

Art. 5, §10(B), La.Const.1974

Page

33,

w

44

42

1 2g

21

21

Table of Authorities (continued) Page

Louisiana Revised Statutes of 1950:

La.R.S. 9:2800.6 3, 22, 23, 24, 25, 27, 28

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

TON! DECOSSAF HERNANDEZ,

Petitioner

versus

K-MART CORPORATION, et ai.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

i

States Court of Appeals for the Fifth Circuit entered in

this action on May 19, 1993.

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix A,

p-A-1 through A-8, post) is unreported. That unreported

opinion is referenced in a "Table of Decisions Without

Reported Opinions" appearing at 993 F.2d 1543 (Table).

The Trial Court's Minute Entry, dated January 3, 1992

and entered on January 7, 1992, denying petitioners’

motion for leave to amend their complaint to add non-

diverse parties and to remand this case to the State

court from which it had been removed, is unreported. It

is annexed hereto as "Appendix B," p. A-9, et seq., post.

Also unreported is the Trial Court's written Order and

Reasons denying petitioners’ alternative motions for

post-verdict relief, which was entered in these proceed-

ings on April 16, 1992. It is annexed hereto as "Appen-

dix C," p. A-13, et seq., post.

JURISDICTION

The opinion of the Court of Appeals was entered

on May 19, 1993. (Appendix A, post) A timely petition

for rehearing was filed on June 14, 1993. On June 25,

1993, the Court below denied petitioner's petition for

rehearing without considering the supplement thereto.

(Appendix D, p. A-25, post) This petition is filed within

ninety days of the date of the order denying petitioner's

petition for rehearing.

The jurisdiction of this Court is invoked by peti-

tioner pursuant to 28 U.S.C. §1254(1).

STATUTES AND RULES INVOLVED

The statutes and rules with which this case is

involved are set forth in Appendix E, pp. A-26 ef seq.,

post. They are: 28 U.S.C. §§1332(a), 1441(a), 1447(c)

and 1447(e); Rules 701 and 702, F.R.Evid.; Rule 15(a),

F.R.C.P.; and La.R.S. 9:2800.6--all as construed in the

a

™

applicable jurisprudence of the United States and the

State of Louisiana.

STATEMENT OF THE CASE

On July 26, 1989, Toni Hernandez was shopping

in a K-Mart store’ in Chalmette, Louisiana. In the

section of the store where health and beauty aids were |

displayed for sale, Mrs. Hernandez was looking at

merchandise. She then turned away from the shelves

and started to walk down the aisle. She stepped into a

small, clear puddle of Sesame Street Bubble Bath. Her

foot slipped and she fell, but she was caught by her

husband before she hit the floor. She twisted her back

and her ankle.

The vinyl tile flooring in that section of the store

was a mottled green color with green flecks in it. The

color of the floor made it difficult for a customer engaged

‘She was shopping in K-Mart #3387 in Chalmette,

Louisiana. K-Mart #3387, Inc. is a Louisiana corporate

subsidiary of K-Mart Corporation. The plaintiffs are

Louisiana citizens.

-4-

ee

in shopping to see a smail clear puddle of liquid on it.’

Despite the potential hazard from such slippery sub-

stances leaking on the floor, the store did not undertake

to place skid-resistant carpets, mats or other protective

devices upon the floor to absorb such spilled substanc-

es. Thus, the risk of a slip and fall hazard in that area

of the store was highly likely to be encountered by

customers. The store did not detail personnel to keep

vigilance in that area, consistent with the risks that were

likely to be encountered by its patrons. Rather, the

*Plaintiff listed two experts to testify before the jury

with regard to the nature and extent of the hazard

created by the deposit of a clear slippery substance

upon the tile floor as well as the unlikelihood that such

a substance would be seen by a customer who was

occupied with shopping. The Trial Court excluded that

evidence, contending that the jury did not need such

testimony. The error of the Trial Court's ruling on the

admissibility of their testimony is made a basis for this

petition because the jury found Mrs. Hernandez to have

been 25% responsible for the accident. The error of the

exclusion of that testimony is limited to the issue of

plaintiff's comparative negligence since the jury found K-

Mart to have been liable to the plaintiff and 75% respon-

sible for all of the injuries she sustained in the accident.

-5-

manager generally delegated to all employees the duty

of discovering and correcting such premises hazards

while they were incidentally performing their other duties

near such hazards.

Ms. Camille Hebert, a K-Mart employee who wit-

nessed Mrs. Hernandez's fall from a short distance

away, did not see the liquid on the floor before Mrs.

Hernandez slipped in it. When Mrs. Hernandez pointed

out to Ms. Hebert the small puddle of liquid on which she

had slipped, Ms. Hebert discovered even more of the

spilled liquid a few feet away from the place where Mrs.

Hernandez slipped. It was store policy that all of the

employees were charged with the responsibility of

observing such hazards when they were in the area and

when such hazards were thus discovered, either to clean

them up or to see that they were cleaned up before they

left the area. No one was assigned to inspect the aisles

regularly. No one did. Ms. Hebert's testimony that she

was in the area and did not see the substance on the

floor before Mrs. Hernandez’ fall shows the defective-

ness of K-Mart's method of delegating to everyone the

obligation of incidentally finding and correcting such

hazardous conditions without undertaking task-specific,

regularly scheduled inspections of the aisles for such

hazards.

On the date of the accident, Mrs. Hernandez was

taken to a local hospital emergency room where she was

examined. She then complained of pain in her low back

and left ankle. The emergency room physician ordered

plain x-rays and rendered palliative treatment. He

referred Mrs. Hernandez to an orthopedist for further

evaluation and treatment.

Mrs. Hernandez was treated by orthopedists for

approximately seven months for her low back condition,

which was diagnosed as a lumbar sprain. She was

treated with traction and medication for her back problem

——————————

during that period. After that problem became resolved

and Mrs. Hernandez continued to complain about

persistent ankle pain, Dr. McLaughlin ordered a CAT

scan and bone scan of her left ankle and foot. Those

examinations revealed the existence of a cyst in the

posterior portion of her left talus that communicated with

the subtalar joint. An x-ray taken on the date of the

accident had revealed a spot that could not be definitely

identified by plain x-ray techniques. That was the cyst.

Thus, the cyst clearly pre-existed the accident. But Mrs.

Hernandez had never had any ankle or foot symptoms

before the slip at the K-Mart store. The symptoms that

developed after she twisted her ankle persisted from the

time of her slip at the K-Mart store until after she was

operated on in February of 1990 to excise the cyst and

to insert a bone graft taken from her hip.

Dr. McLaughlin testified that an accident of the

type sustained by Mrs. Hernandez could change the

eo

Structures of a cyst and cause the onset of symptoms,

as she had experienced in this case. He observed that

the onset of symptoms at the time of her injury to her left

ankie showed a causal relationship between the accident

and the condition for which she required medical treat-

ment, viz., the symptoms caused by the aggravation of

the cyst. Even the defendant's expert orthopedic

surgeon, who was retained only to render testimony and

not treatment, testified that there was a 50-50 chance

that the slip and twisting of Mrs. Hernandez's ankle

aggravated the cyst and made it become symptomatic,

thus requiring the surgical treatment she was provided.

The parties stipulated that the medical bills

incurred by Mrs. Hernandez equalled $20,916.58.

Defendant K-Mart explicitly reserved its right to dispute,

and it vigorously disputed, the issue of the causal rela-

tionship between the injuries and/or conditions that were

treated and the slip by Mrs. Hernandez at its store. The

jury, however, awarded all of the stipulated medical

expenses to Mrs. Hernandez. Thus, the jury found that

all of those conditions were causally related to the

accident at K-Mart.

At the Pre-Trial Conference that was conducted

immediately before trial, plaintiffs’ counsel advised the

Trial Court of his intention to file a motion to remand this

removed case to the State Court on the basis that the

jurisdictional amount of $50,000, exclusive of interest

and cost, was not in controversy. Plaintiff was ordered

by the Trial Court to file a memorandum in support of

such a motion before trial. Plaintiff's counsel, after

researching the issue of remand based on the absence

of jurisdictional amount, moved for remand to State court

on the additional basis that plaintiffs snould be granted

leave to amend their petition to add two non-diverse

defendants against whom plaintiffs had viable claims

under Louisiana law. That amendment would have de-

-10-

a

stroyed complete diversity, and it would have required a

remand of this case pursuant to 28 U.S.C. §1447(c and

e), as then recently amended. Plaintiff filed a motion for

leave to amend the petition and tendered a proposed

amending petition, incorrectly using the State Court

caption instead of the Federal Court caption. By Minute

Entry dated January 3, 1992 and entered on January 7,

1992, the Trial Court denied plaintiffs’ motion for leave to

amend their original petition and to remand this cause to

the State Court on the ground that plaintiffs sought to

amend their suit beyond the expiration of the delays

provided by the Court's Rule 16 Scheduling Order. That

ruling was made despite the plaintiffs’ demonstration that

the decision upon which they relied to establish the

viability of the State law claim against the store manager

had been decided by the Louisiana Supreme Court after

the said cutoff date® and that other federal courts in

Louisiana had declined to remand cases against store

managers to the State Courts before that decision.‘

That ruling was also made despite the showing by

plaintiffs that the discovery of the existence and identity

of the other non-diverse defendant, a Louisiana corpora-

tion named K-Mart #3387, Inc., had occurred only

As shown by the Trial Court's ruling on petitioners’

motion for leave to amend and to remand, the deadline

for amending the complaint after its removal to the

Federal courts was August 2, 1991. Appendix B, p. A-

10, post. The decision which clarified Louisiana law to

establish the existence of a cause of action against the

store manager was not rendered until after the expiration

of the amendment cutoff date. Holmes v. Great A. & P.

Tea Co., 587 So.2d 750 (La.App. 4 Cir. Sept. 26, 1991),

writ den., 592 So.2d 412 (La. Jan. 31, 1992).

*See, e.g., Elder v. Wal-Mart Stores, Inc., 751

F.Supp. 639 (E.D.La.1990); Freeman v. Wal-Mart

Stores, Inc., 775 F.Supp. 208, 209 n. 1 (W.D.La.19971).

In Freeman, Senior Judge Hunter acknowledged that he

had recently refused to remand a case to State court

when a claim had been made against a non-diverse

store manager and that the analysis in Holmes v. Great

A &P Tea Co., supra, caused him to change his position

vis-a-vis the legitimacy of a claim made against a store

manager which would defeat federal diversity jurisdiction.

-12-

———— ee

recently and plaintiffs did not then know the full extent of

that defendant's duties that would make it liable for the

risks encountered by Mrs. Hernandez in the K-Mart store

#3387.

During the trial, the Trial Court refused to instruct

the jury, according to Housley v. Cerise, 579 So.2d 973

(La.1991), as follows:

You may presume that Mrs. Hernandez’'s

injury resulted from her slip in K-Mart if you are

Satisfied that before the accident she was in good

health, but following the accident the symptoms of

her disabling condition appeared and continuously

manifested themselves afterward[,] providing that

the medical evidence shows that there was a

reasonable possibility of causal connection be-

tween the accident and the disabling condition.

There was evidence of the pre-existence of the cyst, but

there was also evidence that the cyst was asymptomatic

before the accident sued upon. There was evidence that

the cyst became symptomatic concurrently with the

occurrence of the twisting of Mrs. Hernandez's ankle and

that it persisted until surgically corrected by the excision

-|3-

of the cyst and transplantation of a bone graft from her

hip into the space left by the excision of the cyst.

Medical testimony showed that the accident, occurring

as the plaintiff described it, could produce changes in the

pre-existing cystic structure that could make the cyst

become symptomatic. Dr. McLaughlin testified that the

surgical treatment rendered for the cyst was made

necessary because of the symptoms that were historical-

ly related to the s!ip and twisting of plaintiffs ankle at the

K-Mart store. The objection to the denial of that request-

ed instruction was renewed in plaintiffs’ motion for post-

verdict relief, based upon the contention that the denial

of the requested instruction affected the jury's deter-

mination of quantum because of the circumstantial

nature of the proof of causation and the absence of

instructions upon the proof required to establish plaintiff's

claim.

-14-

Although there was no evidence that Mrs. Her-

nandez saw or would likely have seen the small, clear

puddle of slippery bubble bath without closely inspecting

the floor, the jury held her to have been 25% responsible

for the accident and her resulting injuries. Such a

finding imputed to her knowledge of the existence of a

hazard that she should have discovered, which is clearly

contrary to Louisiana law. Plaintiffs sought to offer

evidence from a safety expert that such a condition of

the store was unlikely to be discovered by a customer

without that person undertaking an "inspection" for that

purpose. The Trial Court excluded such testimony.

Accordingly, plaintiffs raised that issue in their post-

verdict motion. The Triai Court denied it, basing its

opinion upon its conclusion that plaintiffs contributory

negligence could have been found from the admitted

evidence.

-15-

Mr. and Mrs. Hernandez testified about the

frequency of their sexual relations before the accident

and the effect upon that aspect of their marriage that

was caused by Mrs. Hernandez's pain from the injuries

she sustained in the slip at K-Mart. That evidence was

uncontradicted. No factual basis was recited as a

potential basis for the jury's determination that Mr.

Hernandez was unentitled to compensation for his loss

of consortium resulting from his wife's injuries at K-Mart.

The judges of the Court of Appeals, apparently drawing

upon their own experiences concerning frequency of

marital relations, considered that the jury could have

found the uncontradicted testimony of the plaintiffs to be

incredible. Mr. Hernandez testified that he and Mrs.

Hernandez had sexual intercourse daily, sometimes as

often as twice daily. The Court said: "Given the fre-

quency of pre-accident sexual relations alleged by

Hernandez, the jury rightly could view his claim with

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————————

some skepticism." (Appendix A, p. A7-A8, post.) The

Court below thus affirmed the jury's denial of Mr. Her-

nandez's claim for loss of consortium in the face of

uncontradicted evidence of such loss--a result that

clearly could not have happened under Louisiana law.

BASIS FOR FEDERAL JURISDICTION

Federal jurisdiction over these proceedings was

asserted by the defendants who filed a notice of removal

and removed this case from the Thirty-Fourth Judicial

District Court for the Parish of St. Bernard, State of

Louisiana, to the United States District Court for the

Eastern District of Louisiana. Petitioners sought to

amend their original petition to add non-diverse parties

against whom they had viable State law claims. The

district court denied petitioners’ motion for leave to

amend their petition and to remand these proceedings to

the State court from which this suit was removed. The

Court did not rule on petitioners' motion to remand

-l7/]-

based upon the absence of the required amount in

controversy. The jury awarded damages to the petition-

er, Toni D. Hernandez, in the following amounts:

A.

. B.

C.

D

S.

Pain and suffering $10,000.00

Past medical expenses $20,916.58

Future medical expenses $ -0-

. Past loss of earnings $ 1,000.00

Loss of future earning capacity $ -0-

That award amounted to $31,916.58. The jury, however,

found Mrs. Hernandez to be comparatively negligent and

assigned 25% of the fauit for her injuries, damages and

losses to her own negligence. The district court accord-

ingly reduced the award to Mrs. Hernandez to $23,936.-

45. The jury determined that Mr. Hernandez was not

entitled to any remuneration for his loss of consortium

with his wife as a result of the injuries the jury found to

have been proven to be causally related to Mrs. Hernan-

dez's slip at the K-Mart store.

-18-

There is a legitimate issue whether the federal

courts had jurisdiction over these proceedings upon

removal of this case from the State courts. Jurisdiction

was asserted and exercised by the federal courts

pursuant to the removal statuies, 28 U.S.C. §1441 ef

seq., and the federal jurisdictional statute concerning the

diversity of citizenship among the parties, 28 U.S.C.

§1332.

REASONS FOR GRANTING THE WRIT

Petitioners respectfully assert that there were

numerous errors in these proceedings which have

produced a result which is inconsistent with Louisiana

substantive law governing cases of this type. This

petition asserts as grounds for the exercise of this

Court's extraordinary power of supervision over the lower

courts only those issues we believe to merit this Court's

attention. The issues presented are (1) whether the trial

court abused its discretion and denied petitioners’ right

-19-

to sue a proper party defendant whose citizenship would

have destroyed the subject matter jurisdiction of the

federal court when it refused leave to amend the petition

to add such a defendant and require a remand of this

removed case; (2) whether the federal trial court, in this

diversity of citizenship jurisdictional case, improperly

denied plaintiffs the benefit of substantive Louisiana

precedent when it refused to instruct the jury upon the

sufficiency of proof of causation of damages under

Louisiana law, thus affecting the outcome of this trial by

denying the jury guidance which would have reduced the

likelinood of compromise by the jurors upon either the

issue of quantum of damages or victim fault; (3) whether

the trial court erred in excluding relevant expert opinion

testimony which would have provided the jury with

information which would have avoided a determination of

partial fault of the victim; and (4) whether the trial court

erred in denying Mr. Hernandez's motion for a new trial

-2?0-

on his claim for loss of consortium when the uncontra-

dicted evidence permitted no conclusion other than that

he had sustained such a loss.

(1) Refusal to permit diversity-destroying

amendment and remand to State court

Plaintiffs had a right to sue in the forum of their

choice, viz., the Louisiana courts in which errant jury

verdicts are corrected by the appellate courts under their

power to review questions of law or fact. See Art. 5,

§§5(C), 10(B), La.Const.1974. That appellate power

leads to greater uniformity in the application of Louisiana

law, and it also leads to greater predictability of the

outcome when determining in which forum one should

sue. The Seventh Amendment to the United States

Constitution prevents federal appellate courts from

undertaking such extensive review of jury verdicts.

Thus, the petitioners' choice of the Louisiana forum was

the exercise of a substantial right. Accord International

Primate Protection League v. Administrators of Tulane

-2?1-

Educational Fund, 500U.S.__, 111 S.Ct. 1700, 1704,

114 L.Ed.2d 134, 143 (1991).

Before this case was removed to federal court,

Louisiana law was not ciear that a store manager could

be held personally liable for unreasonably dangerous

conditions upon premises of his employer under the new

slip and fall law, La.R.S. 9:2800.6. In 1988, the Louisi-

ana legislature promulgated a statute which governed

slip and fall litigation upon merchants premises, provid-

ing:

A. A merchant owes a duty to persons who use

his premises to exercise reasonable care to keep his

aisles, passageways, and floors in a reasonably safe

condition. This duty includes a reasonable effort to

keep the premises free of any hazardous conditions

which reasonably might give rise to damage.

B. In a suit for damages by a person who has

suffered damages as a result of a hazardous condition

while on the merchant's premises, the person must

prove that the accident was caused by a hazardous

condition. The burden of proof then shifts to the

merchant to prove that he acted in a reasonably

prudent manner in exercising the duty of care he

owed to the person to keep the premises free of any

hazardous conditions.

-2?2?-

C. In exculpating himself from liability under this

Subsection, the merchant need not introduce the

testimony of every employee of the merchant or any

particular proportion thereof, but is only required to

introduce the testimony of any employee shown to

have actually created the hazardous condition and

those employees and management personnel whose

job responsibilities included inspection or clean-up of

the area where the accident giving rise to the damag-

es occurred.

D. "Merchant" means one whose business is to

sell goods, foods, wares, or merchandise at a fixed

place of business. (Added by Acts 1988, No. 714, §1)

In the appellate court, respondent argues that no

“personal” duty was owed by the employees to store

patrons since La.R.S. 9:2800.6 imposed that duty only

upon the merchant. Respondent argued (Appellee's

Brief, p. 18):

In addition to defining the duty owed to the

premises user, this statute also provides for the

burden of proof and evidentiary requirements in suits

filed by customers. The duty to customers is owed

only by the merchant, which in this case is Kmart.

Although reference is made to employees of the

merchant with respect to evidentiary requirements,

nothing in the statute creates a personal duty on the

part of the merchant's employees. Furthermore,

defendant submits that the fact that the responsibilities

of the employees are discussed only with respect to

-23-

the evidentiary burdens of the merchant infers a

specific intention on the part of the legislature not to

create a personal duty on behalf of employees.

Plaintiffs had informed the district judge, when they

sought to amend their suit to add the store manager as

a defendant whose presence would destroy diversity of

citizenship between the plaintiffs and defendants, that

the Louisiana courts had only recently clarified Louisiana

law to establish that a store manager may be held liable

for a premises hazard under La.R.S. 9:2800.6. See

Holmes v. Great Atlantic & Pac. Tea Co., 587 So.2d 750

(La.App. 4 Cir. 1991), writ den., 592 So.2d 412

(La.1992). On appeal, the Court below wrote (Appendix

A, p. A-3, post):

Hernandez seeks to justify her delay in seeking the

amendment by claiming that a Louisiana appellate

decision clarified the law in this area, allowing her to

sue the manager. See Holmes v. Great Atlantic &

Pac. Tea Co., [supra]. We find this claim puzzling, as

that decision states that the law on this point has

been settled since 1973. See id. at 752.

-2?4-

That position was not puzzling to Louisiana practitioners,

many of whom had construed Louisiana law in the same

manner as had plaintiffs’ counsel, including the defense

counsel who continued to press that argument before the

Fifth Circuit despite the contrary holding of the Louisiana

Court of Appeal in Holmes. The respondents’ argument

in the Court below was almost identical to the rejected

position of the merchant in Holmes (587 So.2d at 752):

Bolling asserts that La.R.S. 9:2800.6(A) statutorily

provides that the exc/usive duty owed to a customer

injured on the merchant's premises is owed by the

merchant and not by the merchant's employees.

Bolling contends that since the responsibilities of the

employees are discussed only with respect to the

evidentiary burden of the merchant, this infers a

specific intention on the part of the legislature not to

create a personal duty on the part of employees.

This interpretation of R.S. 9:2800.6 is unfounded.

Although Section A defines the duty owed by the

merchant, the language of the statute in no way ,

creates an exclusive remedy that preempts claims

against the merchant's employees who may also be

at fault.

The 1973 case to which the Fifth Circuit referred is

Canter v. Koehring Co., 283 So.2d 716 (La.1973), which

“specifically approve[d]," 283 So.2d at 722, a line of

cases which established the following criteria for impos-

ing individual liability upon an employee when the

employer owed a duty to the injured person (283 So.2d

at 721):

1. The principal or employer owes a duty of care

to the third person (which in this sense includes a co-

employee), breach of which has caused the damage

for which recovery is sought.

2. This duty is delegated by the principal or

employer to the defendant.

3. The defendant officer, agent, or employee has

breached this duty through personal (as contrasted

with technical or vicarious) fault. The breach occurs

when the defendant has failed to discharge the

obligation with the degree of care required by ordinary

prudence under the same or similar circumstances --

whether such failure be due to malfeasance, misfeas-

ance, or nonfeasance, including when the failure

results from not acting upon actual knowledge of the

risk to others as well as from a lack of ordinary care

in discovering and avoiding such risk of harm which

has resulted from the breach of the duty.

4, Withregard to the personal (as contrasted with

technical or vicarious) fault, personal liability cannot

be imposed upon the officer, agent, or employee

simply because of his generai administrative respon-

sibility for performance of some function of the

-?6-

employment. He must have a personal duty to-

wards the injured plaintiff, breach of which specific-

ally has caused the plaintiff's damages. If the defen-

dant's general responsibility has been delegated

with due care to some responsible subordinate or

subordinates, he is not himself personally at fault

and liable for the negligent performance of this

responsibility, unless he personally knows or per-

sonally should know of its non-performance or mal-

performance and has nevertheless failed to cure the

risk of harm. (Emphasis added)

Based upon the view that §2800.6 imposed a duty

upon the merchant but not the employees who did not

cause the hazard, many federal courts in Louisiana have

generally treated claims against store managers as a

fraudulent joinder. See, e.g., Elder v. Wal-Mart Stores,

Inc., 751 F.Supp. 639 (E.D.La.1990); Freeman v. Wal-

Mart Stores, Inc., 775 F.Supp. 208, 209 n. 1 (W.D.La.

1991), to mention only the reported cases. There were

also a number of unreported cases to the same effect.

Under that interpretation of §2800.6, which the respon-

dent continued to urge after the opposite holding was

made by the Louisiana courts in Holmes, naming the

-2?]-

store manager (if his identity nad even been known then)

would have been met with a claim of fraudulent joinder.

It was only after Holmes was decided and the Louisiana

Supreme Court denied a petition for a writ of review that

the liability of a store manager for violation of the duties

imposed by La.R.S. 9:2800.6 upon his employer became

clear and that the holding of Canter v. Koehring Co.,

Supra, applied in a case brought under La.R.S. 9:2800.6.

It was only then that plaintiffs were justified in seeking to

amend their suit tu make the non-diverse store manager

a party defendant. Before trial they sought to do so but

were denied that opportunity by the district court.®

°Significantly, removal of a case from the State

courts may be undertaken even during the trial, except

in a criminal case, when the grounds for removal first

become known at that stage of the proceedings.

Consequently, it would be anomalous to deny a plaintiff

an opportunity to amend his pleadings to require remand

at that stage of the proceedings when discovery of the

yrounds for amendment and remand come to light only

after the cutoff date imposed by the Court for amending

the pleadings.

-28-

ee

Although Rule 15(a), F.R.C.P., mandates that

leave to amend a complaint "be freely given when justice

so requires," this Court's holding in Foman v. Davis, 371

U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), has

led to the understanding that "the grant or denial of an

opportunity to amend is within the discretion of the

District Court." In 1988, Congress provided in 28 U.S.C.

§1447(e) for discretion on the part of federal district

courts in removed cases to permit amendment of a suit

to destroy diversity. In such cases where amendment

was permitted, Congress required that a removed case

be remanded to the State courts for further proceedings.

28 U.S.C. §1447(c, e). That required a departure from

the long line of cases, typified by Barney v. Latham, 103

U.S. 205, 26 L.Ed. 514 (1881), which hold that remova-

bility and entitlement to a remand of removed proceed-

ings are determined by the state of the pleadings at the

time of removal. Once there was no longer complete

-29-

diversity between the plaintiffs and defendants, federal

subject matter jurisdiction would have been lost.

In Hensgens v. Deere & Co., 833 F.2d 1179 (5

Cir. 1987), cert. den., 493 U.S. 851, 110 S.Ct. 150, 107

L.ed.2d 108 (1989), the Court held that it was not

necessary that a party be indispensable before a diversi-

ty-destroying amendment may be allowed to cause

remand of removed proceedings to State court. That

Court held that proper parties may be brought in by

amendment, even though the federal courts thereby lose

jurisdiction over the controversy. The Court established

certain criteria for the exercise by a district judge of the

discretion to determine whether to permit such an

amendment. Those criteria are (833 F.2d at 1182):

the extent to which the purpose of the amendment is

to defeat federal jurisdiction, whether plaintiff has

been dilatory in asking for amendment, whether

plaintiff will be significantly injured if amendment is not

allowed, and any other factors bearing on the equities.

-30-

————————

We respectfully submit that the Hensgens factor

inquiring into the motive to defeat federal diversity

jurisdiction is improper and inconsistent with this Court's

holdings upon the related issue of fraudulent joinder

which would prohibit removal in the first instance. The

joinder of a resident defendant for the purpose of

defeating removal jurisdiction is not improper where, by

the settled law of the state in which the action is brought,

the resident defendant is solidarily liable with the non-

resident defendant(s). Chicago, B. & Q. R. Co. v.

Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521

(1911); Chicago, R.!. & P.R. Co. v. Schwyhart, 227 U.S.

184, 33 S.Ct. 250, 57 L.Ed. 473 (1912); Chicago, R./. &

P.R. Co. v. Whiteaker, 239 U.S. 421, 36 S.Ct. 152, 60

L.Ed. 360 (1915). Thus, although it might have been

petitioners’ intention to provoke a remand by the joinder

of the resident store manager, we submit that it was

improper for that motivation to have been considered to

-3l-

ee

be grounds for denying his motion for leave to amend

his pleadings and to remand this cause to the State

courts from which it had been removed. As shown in

the district court, Holmes was not decided until after the

amendment cutoff date, hence it is contrary to justice to

bar petitioners from amending their complaint on that

basis. Petitioners were significantly injured in the

deprivation of their choice of forum with its attendant

benefit of appellate review of the facts and a predictable

legal result. Since amendment must be freely allowed

when it was in the interest of justice to permit it, and

since the refusal to allow petitioner to amend and

destroy the diversity jurisdiction of the trial court deprived

petitioners of viable claims against the resident defen-

dant store manager which were then countenanced

under Louisiana law as construed in Holmes, the second

Hensgens factor was clearly satisfied. The Trial Court

abused its discretion when it refused to permit the

-32-

amendment of this suit which would have returned this

case to the plaintiff's chosen forum.

This Court has never decided, especially since the

1988 amendments to 28 U.S.C. §1447, under what

circumstances a diversity-destroying amendment should

be permitted. The Hensgens test, which imposes

conditions which are contrary to a plaintiff's rights with

regard to the issue of removability in the first instance,

should not be regarded as a proper test of when such an

amendment should be allowed. This case presents a

recurring issue which will plague federal litigation until it

is resolved by this Honorable Court. This is thus a

proper case in which to grant review upon a writ of

certiorari. Rule 10.1(a, c), Supreme Court Rules.

2) Refusal to instruct in accordance with Louisi-

ana law

Federal courts sitting in a case arising under diversity

of citizenship jurisdiction or removal jurisdiction predicat-

ed upon the diversity of citizenship of the parties are

-33-

bound to follow the substantive law of the State in which

the claim arose. Hanna v. Plumer, 380 U.S. 460, 465,

85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). In determining

whether an issue is controlled by State law, the inquiry

is: “does it significantly affect the result of a litigation for

a federal court to disregard a law of a State that would

be controlling in an action upon the same claim by the

same parties in a State court?" Hanna v. Plumer, supra,

380 U.S. at 466, quoting Guaranty Trust Co. v. York,

326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079, 160

A.L.R. 1231 (1945).

In this case, the Court refused to inStruct the jury, in

accordance with Housley v. Cerise, 579 So.2d 973

(La.1991), that establishment of the issue of causation

could be based upon proof of plaintiffs previously

asymptomatic pre-existing condition, symptom onset

immediately following the incident for which reparation is

sought, and medical evidence that it was "reasonably

-34-

possible" for that mechanism of injury to have produced

that result. Without such an instruction defining the

burden of proof upon that issue, the jury was left to

apply the ordinary preponderance of evidence standard

without the benefit of this principle which relaxed the

burden in the above described scenario. The jury held

that K-Mart was liable for all of the plaintiffs injuries,

damages and losses, but it awarded the plaintiff a

pittance for the injuries she actually sustained. She had

suffered for several months with a lumbar sprain. She

had required substantial orthopedic surgery to relieve the

symptoms precipitated by the slip at the defendant's

store which activated a previously asymptomatic condi-

tion. That surgery entailed not only a procedure in the

site of the injury but another to remove a segment of

bone to use as a bone graft in the area of the primary

surgery. For all of that, the jury awarded only $10,000

in general damages.

-35-

i

The refusal to properly instruct the jury in accord-

ance with Louisiana decisions significantly affected the

result of this case, not on the issue of liability but the

issue of quantum. The only reasonable explanation for

the low award made by the jury in this case, especially

when compared with comparable cases in State court,

was that the jury compromised on the issue of damages

in order to reach a consensus on the issue of liability.

The trial court denied petitioners’ right to a fair trial when

it refused to properly instruct the jury. The Court below

thus sanctioned an impermissible departure from con-

trolling law which calls for this Court's intervention and

correction to produce a just result. Such a basis for the

exercise of this Court's jurisdiction is found in Rule

10.1(a), Supreme Court Rules.

3) Exclusion of Relevant Expert Opinion

This is a slip and fall case involving a clear,

viscous substance spilled upon a mottled green tile floor.

-36=

Plaintiffs sought to call a safety expert and a physicist to

establish the unreasonably dangerous nature of the

condition which caused Mrs. Hernandez to slip and twist

her ankle and back. The defendants, at a pre-trial

conference, informed the Court that it intended to file a

motion in /imine to suppress that expert testimony. The

trial court subsequently ruled that plaintiffs’ expert

witnesses’ testimony was inadmissible because the

subject upon which they would testify was obviously

correct. The safety experts were proffered to testify

regarding a number of things: the dangerousness of

such a condition, the unlikelihood a customer would

have seen and avoided the hazard while shopping, the

attractiveness to children of the packaging of the prod-

uct, the placement of the product within reach of small

children, and the ease with which such children could

open the bottles and spill their contents upon the tile

floor, thus creating a high risk of the hazard encountered

-37]-

by Mrs. Hernandez. The physicist was proffered to

testify regarding the scientific principles relative to

slipperiness of the substance and its hazardous nature

in combination with the coefficient of friction of the tile

floor on which the viscous substance was deposited.

That testimony had a tendency to make the existence of

some facts, and the non-existence of some others, that

were of consequence to the determination of the store's

fault and the absence of fault of the victim more proba-

ble or less probable, respectively, than could be shown

without the evidence. Rule 401, F.R.Evid. Thus, the

evidence was "relevant." /bid.

The evidence tended to show that the presence

of the liquid on the floor presented an unreasonably

dangerous hazard which should not have been permitted

to remain undiscovered in a merchant's store, especially

in the area where there were numerous products of that

nature placed on shelves for sale to customers, any one

-38-

or more of which could have been defective and leaking

or opened by a customer and leaking upon the floor.

Such expert evidence also tended to show that a

shopper would not have been comparatively negligent if

her activities diverted her attention from the floor and the

substance was not an obvious hazard. As previously

noted, the federal courts sitting in diversity must apply

Louisiana law. In the instant case, the Fifth Circuit

Clearly failed to do so when it failed to follow the Louisi-

ana Supreme Court's decision in Perez v. Wal-Mart

Stores, Inc., 608 So.2d 1006 (La.1992), which held that

a store customer should not be held liable for any

comparative fault at all unless there is some kind of

large or clearly visible obstruction or spill on the floor of

the store. As the evidence showed in this case, there

was no such spill. The bubble bath was a clear liquid

upon a green tile floor which was difficult to see in the

absence of an inspection for such substances. It is clear

-39-

sceneihhenieaenmennerniet ete

under Louisiana law that a customer of a store does not

have to undertake such an inspection in order to avoid

being held contributorily negligent. See, e.g., Peralta v.

Schwegmann Bros. Giant Supermarkets, Inc., 406 So.2d

720 (La.App. 4 Cir. 1981), wnt den., 410 So.2d 762

(La.1982). Moreover, Louisiana courts have consistently

held that a store customer had no fault in failing to see

a Clear liquid on a store floor. See, e.g., Bergeron v. K-

Mart Corp., 540 So.2d 406 (La.App. 1 Cir. 1989): Cash

v. Charter Marketing Co., 607 So.2d 1036 (La.App. 3

Cir. 1992): Bonnette v. K-Mart, Inc., 502 So.2d 202

(La.App. 3 Cir. 1987).

The Court excluded the evidence on the basis

that the conclusions were obvious and did not require

scientific evidence. That the testimony went to an

ultimate conclusion of fact may not be a basis for

excluding the evidence. Rule 704, F.R.Evid.

-40-

This Court, in the recent case of Daubert v.

Merrell Dow Pharmaceuticals, Inc., __ U.S. ,113

S.Ct. 2786, 125 L.Ed.2d 469 (1993), set forth guidelines

for determining when expert testimony is admissible

under Rule 702, F.R.Evid. In that case this Court held

that (113 S.Ct. at 2797):

The inquiry envisioned by Rule 702 is, we em-

phasize, a flexible one. Its overarching subject is the

scientific validity -- and thus the evidentiary relevance

and reliability -- of the principles that underlie a

proposed submission. The focus, of course, must be

solely on principles and methodology, not on the

conclusions that they generate.

The trial court in this case focused upon the conclusions,

rather than the principles and methodology, and exclud-

ed relevant evidence that would have assisted the trier

of fact in its determination of the issue of Mrs. Hernan-

dez's contributory negligence. Such evidence is offered

routinely in cases tried in Louisiana courts. Louisiana

has adopted a Code of Evidence which substantially

follows the Federal Rules of Evidence.

This Court, in Daubert, supra, 113 S.Ct. at 2798,

held that exclusion of relevant evidence was inappropri-

ate. This Court indicated that the method of dealing with

such evidence was, instead (ibid.):

Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of

attacking shaky but admissible evidence. See Rock

v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.

Ed.2d 37 (1987).

The decisions of the courts below are inconsistent

with this Court's holding in Daubert. Therefore, this is an

appropriate case for summary reversal and remand for

a new trial. See Rule 10.1(c), Supreme Court Rules.

(4) Denial of loss of consortium claim

Under Louisiana law, there are several compo-

nents to a claim for loss of consortium: (1) loss of love

and affection, (2) society and companionship, (3) sexual

relations, (4) the right of performance of marital services,

(5) the right of support from a spouse, (6) aid and

assistance, and (7) loss of felicity. Warner v. Great

-42?-

OO

Atlantic & Pac. Tea Co., 583 So.2d 61, 65 (La.App. 2

Cir. 1991). Proof of any of these elements is sufficient

for an award of loss of consortium. /bid. ; Finley v. Bass,

478 So.2d 608 (La.App. 2 Cir. 1985). In the instant

case, the jury made no award for Mr. Hernandez’s loss

of consortium, even though he established several of the

elements stated above and his and his wife's testimony

was not contradicted by the defendants. The Court of

Appeals, upon review of this issue, appeared to con-

Clude that the plaintiff's testimony concerning the fre-

quency of sexual relations before his wife's injury

somehow made the entirety of his testimony suspect.

The evidence which was offered at trial on this issue did

not suggest otherwise than that Mrs. Hernandez sus-

tained an injury (the jury compensated her for it) and that

her injury was painful and caused her to miss work (the

jury compensated her for both of those). Under Louisi-

ana law, there was no basis for refusing to award Mr.

-~43-

Hernandez a reasonable amount as compensation for

his losses attributable to the proven injury of his wife.

No reasonable jury could have concluded that the

plaintiff did not prove his claim for loss of consortium

under Louisiana law. Thus, the refusal to grant plaintiff

either a new trial or to render a judgment non obstante

veredicto in his favor on the issue of liability and order a

new trial on the issue of damages was an abuse of

discretion which denied plaintiff a fair trial.

No decision of this Court has decided when a

federal court must step in to prevent a miscarriage of

justice such as this one when the uncontradicted evi-

dence clearly establishes a party's claim and there is no

competent evidence to refute it. Therefore, this is also

an appropriate case in which this Court should exercise

its supervisory jurisdiction. Rule 10.1(a), Supreme Court

Rules.

-44-

CONCLUSION

For the foregoing reasons, this Court should grant

a writ of certiorari and review the judgment and opinion

of the Court below, following which it should vacate the

judgments below and remand this Cause for a new trial

on the issue of damages and the comparative fault of

the plaintiff.

Respectfully submitted.

JOHN E. RUIZ, JR.

Attorney for Petitioners

127 S. Roman Street

P.O. Box 791180

New Orleans, LA 70179-1180

Tel.: [504] 482-0113

-45-

CERTIFICATE OF SERVICE

| certify that | have caused a copy of the forego-

ing to be served upon opposing counsel, by United

States Mail, first class postage prepaid, by mailing a

copy thereof to Rodney A. Seydel, Esq., Attorney for K-

Mart Corporation, at the following address this 23rd day

of September, 1993:

Rodney A. Seydel, Esq.

Attorney at Law

650 Poydras Street

Twenty-First Floor

New Orleans, LA 70130-6121

Tel.: [504] 523-1385

JOHN E. RUIZ, JR.

Attorney at Law

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-3478

TON! DECOSSAF HERNANDEZ,

Petitioner

Versus

K-MART CORPORATION. et al.,

Respondent

Appeal from the United States District Court

for the Eastern District of Louisiana

(CA-90-2180 "I")

Before WISDOM. DAVIS, and SMITH. Circuit Judges.

Al

PER CURIAM:

This slip and fall case arose on July 26, 1989,

when Toni Hernandez slipped in a small puddle of

bubble bath or shampoo in a Chalmette, Louisiana K-

Mart store. Hernandez’ husband caught her before she

fell, but the slip injured her back and aggravated a

dormant cyst in her ankle. After a three-day trial, the

jury awarded damages of $31,916.58. After reviewing

the briefs and record, we conclude that no error occurred

and affirm the judgment.

I.

The district court established August 2, 1991, as

the deadline for amending the complaint. On December

30, 1991, eight days before trial, Hernandez sought to

‘Local Rule 47.5.1 provides: "The publication of

opinions that have no precedential value and merely

decide particular cases on the basis of well-settled

principles of law imposes needless expense on the

public and burdens on the legal profession." Pursuant

to that rule, the court has determined that this opinion

should not be published.

A2

————————

join the K-mart manager as an additional defendant -- a

joinder that would have destroyed diversity of citizenship

and deprived the district court of jurisdiction. We review

the district court's denial of Hernandez's motion for

abuse of discretion. Daves v. Payless Cashways, !nc.,

661 F.2d 1022, 1024 (5 Cir. Unit A Nov. 1981).

The district court did not abuse its discretion.

Hernandez seeks to justify her delay in seeking the

amendment by claiming that a Louisiana appellate

decision clarified the law in this area, allowing her to sue

the manager.- See Holmes v. Great Atlantic & Pac. Tea

Co., 587 So.2d 750 (La.App. 4 Cir. 1991), writ den., 592

So.2d 412 (La.1992). We find this claim puzzling, as

that decision states that the law on this point has been

settled since 1973. See id. at 752.

Simply because a court had held that joinder was

improper in another case involving this K-Mart, does not

mean that the law was confused. Rather, the court in

A3

the other case applied the settled law and concluded

that no liability could be imposed under that standard.

Even if the law were incorrectly applied in that other

case, Hernandez had no excuse for not attempting to

join the manager earlier.

II.

Next, snenainiliee argues that the district court

erred by failing to grant her motion for judgment as a

matter or law or for a new trial on the ground that the

evidence does not support a finding of comparative

negligence. The jury found Hernandez twenty-five

percent at fault. We must affirm the verdict unless the

evidence points so overwhelmingly in favor of one party

that a reasonable jury could not have arrived at the

verdict. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5

Cir. 1969) (en banc).

Hernandez calls our attention to Doming v. K-Mart

Corp., 540 So.2d 400, 405 (LaApp. 1 Cir. 1989),

A4

affirming the trial court's granting of a judgment notwith-

standing the verdict on the issue of comparative negli-

gence. The trial court reduced the jury finding of forty

percent negligence to five percent. Here, however, the

record presents adequate evidence to support the

verdict. Hernandez had shopped at this store many

times and was familiar with the store’s layout. She

testified that at the time of the accident, she was looking

straight ahead, rather than down, and was not looking at

displays or merchandise. A reasonable jury could find

negligence from these facts.’

Ut.

Hernandez also argues that the jury verdict

undercompensated her for pain and suffering and

" We reject Hernandez's argument that the district

court abused its discretion in excluding the testimony of

her safety experts. The testimony offered by the experts

related to matters within the common knowledge of

typical people, thereby obviating the need for expert

analysis. Peters v. Five Star Marine Serv., 598 F.2d

448, 449 (5 Cir. 1990) (per curiam).

AS

a

disregarded evidence of her loss of earnings. We will

not disturb a jury finding on damages unless it is entirely

disproportionate to the injury sustained. Ca/derera v.

Eastern Airlines, 705 F.2d 778, 784 (5 Cir. 1983). We

do not believe that the award for pain and suffering was

So disproportionate as to justify a new trial, as the award

was approximately half as large as the damages for

medical expenses. This award is especially justified, as

Hernandez admitted on cross-examination that she had

reinjured her ankle when she fell off of her crutches.

Given that she had previously denied this injury, the jury

had reason to question her veracity.

Likewise, we cannot conclude that the jury's

award for loss of earnings was unreasonable. Hernan-

dez worked for her mother's accounting firm and testified

that she had missed thirty-nine weeks of work because

of the accident. Hernandez's mother testified, without

documentation, that just prior to the accident she had

A6é

decided to increase Hernandez's workload and respon-

sibilities substantially. We think a reasonable jury could

view this testimony with some skepticism. As a result.

we cannot disturb the jury's findings.

IV.

Finally, Hernandez asserts that the jury erred by

failing to award damages for loss of consortium.”

Hernandez's husband testified that he had sexual

relations with his wife once or twice per day, every day

before the accident, and that this dwindled to about once

per month after the accident. He testified that Hernan-

dez was bedridden for four months, yet she never told

her doctor. Given the frequency of pre-accident sexual

relations alleged by Hernandez, the jury rightly could

2 K-Mart Corporation argues that we do not have

jurisdiction over the loss of consortiim claim because

Hernandez's husband is not listed as a party on the

notice of appeal. Although the notice of appeal uses the

phrase “et a/.," we previously have held that “ef a/."

suffices to provide notice where there are only two

parties. Morales v. Pan Am. Life Ins. Co., 914 F.2d 83,

85 (5 Cir. 1990).

A?

view his claim with some skepticism. When combined

with the overall questionable nature of testimony on

other issues, the jury reasonably could choose not to .

believe Mr. Hernandez's testimony.

The judgment of the district court is AFFIRMED.

ess —_—_ —_ —

A8

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MINUTE ENTRY

JANUARY 3, 1992

MENTZ, J.

TONI DECOSSAS HERNANDEZ, ET ACIVIL ACTION

VERSUS NO. 90-2180

KMART CORPORATION SECTION "I" (1)

Before the court is the plaintiff Toni Hernandez's

Motion to Amend Complaint and to Remand to State

Court. After reviewing the motion, memoranda of

counsel, the record, and the law, the court denies the

motion.

The plaintiff seeks to amend the complaint and

add two non-diverse defendants, and to have the case

remanded to state court. In determining whether to

allow the amendment, the court must carefully balance

the equities. Hensgens v. Deere & Co., 833 F.2d 1179,

AY

1182 (5 Cir. 1987). In this case, the court finds that the

equities weigh in favor of denying the amendment.

First, the court notes that the deadline for

ameridments to the complaint was August 2, 1991.

Plaintiff asserts that she recently discovered the state

court decision, Holmes v. Great Atlantic & Pacific Tea

Co., 587 So.2d 750 (4 Cir. 1991), which provides for a

cause of action against the store manager. However,

this recent case does not explain the plaintiff's failure to

join K-Mart #3387, a Louisiana corporation, as a defen-

dant. The plaintiff asserts that she is still attempting to

find out the extent to which K-Mart #3387 is involved in

the subject K-Mart store. The time for discovery has

already ceased, and there is no excuse for failing to join

this non-diverse defendant prior to the eve of trial.

Second, that this case has already been contin-

ued twice upon motion of the plaintiff. At the pre-trial

conference, the plaintiff indicated that she might file a

Al10

motion to remand based upon the jurisdictional amount.

The court indicated that it did not think such a motion

would be successful, but that the court would consider

such a motion if the parties could present appropriate

authority therefor. Instead, the plaintiff has filed a

motion to remand on different grounds. The court finds

that the interests of justice require that this case proceed

to trial.

The court does not find that the plaintiff will be

significantly injured by denial of the amendment. While

it will deprive the plaintiff of a possible claim against the

store manager, the plaintiff still has a claim against the

K-Mart Corporation. When weighed against the preju-

dice to the defendants of yet another delay, the court

finds that amendment is unwarranted.

Finally, the plaintiff has not provided the court with

an amended complaint which would allow removal. The

amended complaint attached to plaintiffs motion has a

All

state court caption, thus the plaintiff has not even

presented an amended complaint which applies to this

action.

The plaintiff has had ample opportunity to amend

the complaint, and the court finds that it would be

inappropriate to amend the complaint and remand the

case on the eve of trial. The court denies the motion.

Accordingly,

IT IS ORDERED that the plaintiff Toni Hernan-

dez's Motion to Amend Complaint and to Remand to

State Court is DENIED.

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TONI DECOSSAS HERNANDEZ, ET ACIVIL ACTION

VERSUS NO. 90-2180

KMART CORPORATION SECTION "I" (1)

ORDER AND REASONS

Mentz, J.

Before the Court is the Motion for Judgment as a

Matter of Law, or for Judgment Notwithstanding the

Verdict, or Alternatively for a New Trial, filed by the

plaintiffs, Toni Decossas Hernandez and Sherman

Hernandez. Finding that the jury verdict and judgment

in this matter are well-supported by the evidence and the

law, the Court DENIES the motion.

The piaintiffs' claims arise from injuries sustained

by Toni Hernandez when she slipped on some Sesame

Street Bubble Bath which was on the floor at the K-Mart

Al3

ed

store in Chalmette, Louisiana. This matter was tried in

January, 1992, and the jury returned a verdict in favor of

the plaintiffs. Damages were awarded of $20,916.58 for

past medicals, $10,000 pain and suffering, $1,000 past

wage loss, and no damages for future medicals, future

loss of wages, or Sherman Hernandez's loss of consor-

tium. In addition, the jury assigned 25% contributory

negligence to the plaintiff, Toni Hernandez.

The plaintiffs complain that a number of this

Court's evidentiary rulings, and some allegedly inflam-

matory remarks by defense counsel, caused the jury to

improperly assess contributory negligence against the

plaintiff, Toni Hernandez, and to award low amounts in

damages. The plaintiffs ask this Court either to grant

judgment as a matter of law reversing the jury's deter-

mination that Toni was contributorily negligent, or to

grant a new trial. The Court notes that many of plaintiffs’

complaints contained in this motion cannot be remedied

Al4

by this Court with a judgment as a matter of law. The

Court cannot assess particular amounts of damages or

percentages of fault, as these are findings of fact not

matters of /aw.

Rule 50(a) of the Federal Rules of Civil Procedure

provides:

(1) If during a trial by jury a party has been

fully heard with respect to an issue and there is

no legally sufficient evidentiary basis for a rea-

sonable jury to have found for that party with

respect to that issue, the court may grant a

motion for judgment as a matter of law against

that party on any claim * * * which cannot under

the controlling law be maintained without a fav-

orable finding on that issue.

(2) Motions for judgment as a matter of law

may be made at any time before the submission

of the case to the jury. Such a motion shall

specify the judgment sought and the law and the

facts on which the moving party is entitled to the

judgment.

Pursuant to Rule 50(b), a party who has made a motion

for judgment as a matter of law which was not granted

may renew such motion by filing and service not later

than ten days after the entry of the judgment.

Al5

The piaimifts' argument regarding the jury's finding

of contributory negligence appears to be that if the

plaintiffs had been allowed to present their safety experts

and rebuttal witness regarding K-Mart's liability, the jury

would have come to a different conclusion. The crux of

this argument is not that based upon the evidence

presented at trial the plaintiffs are legally entitled to a

judgment that Toni Hernandez was not contributorily

negligent, but that, if other evidence was presented at

trial, the jury would have found that Toni Hernandez was

not contributorily negligent. The plaintiffs’ burden under

Rule 50(a)(1), however, is to demonstrate that there is

"no legally sufficient evidentiary basis" for a reasonable

jury to find that Toni Hernandez was contributorily

negligent." This the plaintiffs have not done; they have

relied upon "facts" which were excluded from evidence

rather than the facts in evidence. The Court finds that

the jury's verdict that Toni Hernandez was 25% contribu-

Al6

torily negligent was supported by the evidence at trial.

A Motion for Judgment as a Matter of Law is an inappro-

priate vehicle for challenging a Court's evidentiary

rulings.

The plaintiffs have moved in the alternative for a

new trial pursuant to Rule 59 of the Federal Rules of

Civil Procedure. A new trial may be granted under Rule

59 if "the verdict is against the great weight of the

evidence, the damages awarded are excessive, the trial

was unfair, or prejudicial error was committed in its

course.” Smith v. Transworld Drilling Co., 773 F.2d 610,

613 (5 Cir. 1985) (footnotes omitted). The plaintiffs’

argument in favor of the motion for new trial is that a

number of the Court's rulings either rendered the pro-

ceedings unfair, or amounted to prejudicial error.

The plaintiffs complain of the following: (1) the

Court's order prohibiting the testimony of plaintiffs’ safety

experts; (2) the Court's order prohibiting plaintiffs' expert,

Al?

Wilfred Gallardo, from testifying under Rule 406 of the

Federal Rules of Evidence regarding his observations of

unclean conditions at the K-Mart store on dates other

than the date of the accident: (3) the Court's order

prohibiting Teddy Lenaris from testifying as a rebuttal

witness; (4) the defendant's failure to produce a sample

floor tile, as per the Court's order of December 20, 1991.

(5) defense counsel's allegedly inflammatory remarks

during closing arguments on various other subjects,

including Toni Hernandez's truthfulness about subse-

quent injuries, the extent of her loss of future earnings,

and the loss of consortium claim; and (6) the Court's

failure to give plaintiffs requested jury instruction re-

garding medical causation. The Court finds that none of

these asserted "errors" rendered the proceedings unfair,

or constituted prejudicial error.

First, the Court order prohibiting the testimony of

plaintiffs safety experts was proper. This case invoived

Al18

a slip on bubble bath; the jury needed no expert testi-

mony in order to understand that bubble bath is slip-

pery.' Expert testimony was also not necessary to help

the jury understand that a clear liquid might be difficult

to see given the color of the tile.* Finally, expert testimo-

ny is not necessary for the jury to understand and

evaluate the clean-up procedures in place at the store.

The plaintiffs further allege that the defendant's motion

in limine should not have been granted because the

defendants did not list it as a contemplated motion in the

Pre-Trial Order. The Court's Minute Entry following the

Pre-Trial Conference, however, indicates that the

" The plaintiffs argument that an expert was neces-

sary to explain to the jury that the tile surface had a low

“coefficient of friction" is without merit; there was no

dispute that the bubble bath on the floor caused the slip.

* The plaintiffs also complain of the defendant's

failure to provide the plaintiffs with a sample tile. The

Court finds that the failure to produce the tile did not

amount to prejudicial error. The plaintiff produced

photographs which demonstrated the color of the tile.

The Court also notes that the plaintiffs did not at any

time prior to tria! attempt to compel production of the tile.

Al9

defendant informed the Court at the conference of its

intent to file a motion to strike plaintiffs’ expert's [sic].°

Therefore, the plaintiffs’ argument that the motion was

untimely is wholly without merit.

Having been denied the opportunity to present the

testimony of their experts, the plaintiffs sought to have

their expert, Wilfred Gallardo, testify regarding his

personal observations of conditions at the K-Mart. The

plaintiffs sought such testimony pursuant to Rule 406 of

the Federal Rules of Evidence as evidence of K-Mart's

habit of failing to clean spills. Gallardo did not observe

conditions in the store on the day of the accident,

therefore the only relevance of his proposed testimony

would have to be on the issue of habit. However,

Gallardo's visits to the store were not sufficiently fre-

quent as to be reliable evidence of habit, therefore, the

> "The defendant contemplates filing a motion to

strike plaintiffs expert witnesses. Such motion should

be filed not later than December 30, 1991 at 5:00

p.m." See Minute Entry, December 23, 1991.

A20

—— EE

evidence was properly excluded.

_ The plaintiffs’ complaint regarding the Court's

refusal to allow Teddy Lenaris from testifying as a

rebuttal witness is also without merit. The plaintiffs

sought to use Lenaris as a rebuttal witness to testify that

K-Mart employees did not actually follow the clean-up

and safety practices which they testified to. Lenaris was

not listed as a witness in the Pre-Trial Order. The

Court's standard scheduling order requires that parties

list all witnesses, except “rebuttal witnesses _ __ when

necessity cannot be reasonably be [sic] anticipated" for

their use. Attorney's [sic] should be careful in failing to

list a witness who is really part of their case-in-chief

See Morgan v. Commercial Union, 606 F.2d 554 (5 Cir.

1979). The Court disallowed Lenaris’ testimony because

he was really part of plaintiffs' case-in-chief. In addition,

the Court does not agree with plaintiffs’ argument that

his use could not be reasonably anticipated. The

A21

———

plaintiffs assert that the testimony of the K-Mart employ-

ees far exceeded their deposition testimony with respect

to clean-up practices at the store. The Court notes, for

example, that Brenda Doucet testified in her deposition

regarding clean-up training and practices numerous

times. See Plaintiffs’ Memorandum in Support, Ex. B,

pp. 12, 18, 20, 35-36, 41. Where the issue at trial was

the reasonableness of K-Mart's clean-up practices, the

plaintiffs would have been remiss if they had not antici-

pated that the store employees would testify that they

were always on the look out for unsafe conditions.

The Court also notes that the testimony of the

expert witnesses and Lenaris would have been relevant

only to the issue of K-Mart's liability, an issue which the

ary determined in the plaintiffs’ favor. The plaintiffs go

on to argue that because this evidence was not present-

ed regarding liability, the jury rendered a verdict on

damages which was too low. The plaintiffs here confuse

A22

the issues of liability and damages. The burden is on

the plaintiffs to prove the amount of their damages

caused by the accident.* Once the jury determined that

K-Mart was liable for the accident, the issue of damages

is a separate inquiry. The plaintiffs have not pointed out

in this motion, any specific evidence, which was pre-

sented to the jury, which would warrant a larger award

for damages.

As to plaintiffs’ complaints regarding allegedly

inflammatory statements made in closing arguments, the

Court points out that such statements were just that --

* The plaintiffs also argue that because the Court

did not give their requested instruction on medical

causation, see Housley v. Cerise, 579 So.2d 973 (La.

1991), the jury award for pain and suffering was too low,

and the jury failed to award damages for future medicals.

The plaintiffs do not cite, however, what evidence would

have supported an award of future medicals. The Court

finds that from the evidence presented at trial, the jury

could easily concluded [sic] that Toni Hernandez would

incur no future medical expenses as a result of her

accident at K-Mart. The damage awards in this case

result, not from improper rulings by the Court, but from

a failure of the plaintiffs to present sufficient evidence to

warrant a greater award.

A23

argument. The Court properly instructed the jury that

staiements made by counsel are not evidence, and that

the jury is free to disregard the arguments of counsel.

It is certainly proper for counsel, during argument, to

point out any inconsistencies in tne testimony. The

Court does not find that any of the alleged statements in

the closing arguments was [sic] unduly prejudicial.

For the foregoing reasons, the Court finds that a

new trial in this matter is unwarranted.

Accordingly,

IT IS ORDERED that

(1) the Motion for Judgment as a Matter of Law,

or for Judgment Notwithstanding the Verdict, or Alterna-

tively for a New Trial filed by plaintiffs Toni Decossas

Hernandez and Sherman Hernandez is DENIED; and

(2) the hearing on the motion set for April 22,

1992 is CANCELED.

[Dated and signed by the Trial Judge on 4/13/92].

A24

APPENDIX D

IN-THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-3478

TON! DECOSSAF HERNANDEZ,

Petitioner

versus

K-MART CORPORATION, et a/.,

Respondent

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING

(June 25, 1993)

Before WISDOM, DAVIS, and SMITH, Circuit Judges.

A25

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

above entitled and numbered cause be and the same is

hereby denied.

ENTERED FOR THE COURT:

J. Smith

United States Circuit Judge

A26

APPENDIX E

EXCERPTS OF STATUTES AND RULES INVOLVED

Section 1332(a)(1) of Title 28 of the United States

Code provides:

(a) The district courts shall have original jurisdic-

tion of all civil actions where the matter in controversy

exceeds the sum or value of $50,000, exclusive of

interest and costs, and is between--

(1) citizens of different States:

eee *

Section 1441(a) of Title 28 of the United States

Code provides:

(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a State

court of which the district courts of the United States

have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending. For purposes

of removal under this chapter, the citizenship of

defendants sued under fictitious names shall be

disregarded.

A27

Subsections (c) and (e) of 28 U.S.C. §1447

provide:

(c) A motion to remand the case on the basis of

any defect in removal procedure must be made within

30 days after the filing of the notice of removal under

section 1446(a). If at any time before final judgment

it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs

and any actual expenses, including attorney fees,

incurred as a result of the removal. A certified copy

of the order of remand shall be mailed by the clerk to

the clerk of the State court. The State court may

thereupon proceed with such action.

~_* & &

(e) If after removal the plaintiff seeks to join

additiona! defendants whose joinder would destroy

subject matter jurisdiction, the court may deny joinder,

or permit joinder and remand the action to the State

court.

Rule 701, Federal Rules of Evidence, provides:

lf the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or inferenc-

es is limited to those opinions or inferences which are

(a) rationally based on the perception of the witness

and (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.

A28

Rule 702, Federal Rules of Evidence, provides:

If scientific, technical, or other specialized knowl-

edge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form

of an opinion or otherwise.

Rule 15(a), Federal Rules of Civil Procedure,

provides:

(a) Amendments. A party may amend the

party's pleading once as a matter of course at any

time before a responsive pleading is served or, if the

pleading is one to which no responsive pleading is

permitted and the action has not been placed upon

the trial calendar, the party may so amend it at any

time within 20 days after it is served. Otherwise, a

party may amend the party's pleading only by leave of

court or by written consent of the adverse party; and

leave shall be freely given when justice so requires.

A party shall plead in response to an amended

pleading within the time remaining for response to the

original pleading or within 10 days after service of the

amended pleading, whichever period may be the

longer, unless the court otherwise orders.

Section 2800.6 of Title 9 of the Louisiana Revised

Statutes of 1950, as amended, provided at the time rele-

vant to this action:

A29

A. Amerchant owes a duty to persons who use

his premises to exercise reasonable care to keep his

aisles, passageways, and floors in a reasonably safe

condition. This duty includes a reasonable effort to

keep the premises free of any hazardous conditions

which reasonably might give rise to damage.

B. In a suit for damages by a person who has

suffered damages as a result of a hazardous condition

while on the merchant's premises, the person must

prove that the accident was caused by a hazardous

condition. The burden of proof then shifts to the

merchant to prove that he acted in a reasonably

prudent manner in exercising the duty of care he

owed to the person to keep the premises free of any

hazardous conditions.

C. In exculpating himself from liability under this

Subsection, the merchant need not introduce the

testimony of every employee of the merchant or any

particular proportion thereof, but is only required to

introduce the testimony of any employee shown to

have actually created the hazardous condition and

those employees and management personnel whose

job responsibilities included inspection or clean-up of

the area where the accident giving rise to the damag-

es occurred.

D. "Merchant" means one whose business is to

sell goods, foods, wares, or merchandise at a fixed

place of business. (Added by Acts 1988, No. 714, §1)

A30