ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 77, 420, DIVISION "E" HONORABLE MICHELE R. MOREL, JUDGE PRESIDING
LAWRENCE J. CENTOLA, III ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT
JOSEPH J. MASELLI, JR. SCOTT H. MASON ATTORNEYS AT LAW COUNSEL FOR DEFENDANT/APPELLEE
Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg
FREDERICKA HOMBERG WICKER JUDGE
Plaintiffs/Appellants, Diana Becnel, George Becnel, and Johnna Hurd appeal the trial court's granting of Defendant/Appellee Dr. Leanne Redman's Exception of No Cause of Action, which dismissed all of plaintiffs' claims against her. For the following reasons, we reverse the trial court's judgment and remand the matter for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
On October 10, 2013, Diana Becnel, George Becnel, and Johnna Hurd filed suit against Advocare, a self-described "health and wellness" company, and against the members of the Advocare Scientific and Medical Advisory Board. According to her petition, Ms. Becnel is a personal trainer and the owner of a day spa and salon who was originally interested in selling Advocare's products. The petition further states that Ms. Becnel was referred to Advocare by a friend, and was "impressed with Advocare's seeming commitment to health, nutrition, wellness, and fitness." Ms. Becnel's petition quotes sections from Advocare's website which includes accolades about Advocare's "highly regarded and recognized" Scientific and Medical Advisory Board. Appellee, Dr. Leanne Redman, is a member of Advocare's Scientific and Medical Advisory Board. According to Ms. Becnel's petition, Advocare's website boasts that members of the Scientific and Medical Advisory Board "use their knowledge and experience in the fields of medicine, nutrition and science to ensure that all Advocare products are formulated with the highest quality ingredients based on the latest scientific research." The petition states that after researching Advocare, Ms. Becnel ultimately decided to try Advocare's "SLAM" energy product.
Ms. Becnel's petition alleges that she began to feel adverse effects from the "SLAM" energy product before she could throw the bottle in the trash. According to her petition, she lost consciousness shortly after consuming the "SLAM" energy product and was transported by ambulance to St. Charles Parish Hospital. She was later diagnosed with a seizure disorder and a myocardial infarction secondary to her reaction to the "SLAM" energy product. The petition further states that Ms. Becnel "believed that the SLAM product had been fully researched by the Scientific and Medical Advisory Board and that the product was safe for use by everyone." Ms. Becnel's petition alleges that Advocare and the Scientific and Medical Advisory Board are liable for a construction of composition defect pursuant to La. R.S. 9:2008.55, and a design defect under La. R.S. 9:2800.56. Becnel further alleges that Advocare and their Scientific and Medical Advisory Board are liable to her for negligent misrepresentation.
According to her petition, Ms. Becnel's damages as a result of ingesting Advocare's "SLAM" product include her past and future pain and suffering, lost wages, mental anguish, medical costs, and loss of enjoyment of life. Ms. Becnel's husband, George Becnel, and daughter, Johnna Hurd, also brought claims for loss of consortium. In addition, Ms. Hurd brought a claim for Lejeune damages because she alleges that she was present at the time when her mother lost consciousness after drinking the "SLAM" energy product.
The trial court held a hearing on Dr. Redman's Exception of No Cause of Action on March 27, 2013. On April 23, 2014, the trial court granted Dr. Redman's Exception of no Cause of Action. This timely appeal follows.
Both of Plaintiffs' assignments of error concern whether or not the trial court properly granted Dr. Redman's Exception of No Cause of Action. In their first assignment of error, Plaintiffs argue that the district court erred in granting Dr. Redman's Exception of No Cause of Action because they properly alleged a claim of negligent misrepresentation against Dr. Redman and the other members of Advocare's Scientific and Medical Advisory Board. In their second assignment of error, Plaintiffs argue that the district court erred in granting the Exception of No Cause of Action because they properly alleged the duty owed by Dr. Redman in their original petition for damages.
The standard of review for an appellate court examining a trial court's granting of an exception of no cause of action is de novo because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 349. Since the evaluation of an exception of no cause of action is performed solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. New Orleans Craft Temple, Inc. v. Grand Lodge of Free & Accepted Masons, 13-525 (La.App. 5 Cir. 12/19/13); 131 So.3d 957, 963. On review, the pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Ramey v. ...