United States District Court, W.D. Louisiana, Alexandria Division
DEIDRA A. FONTENOT
MOHAMMAD S. RAKIN AND WERNER ENTERPRISES, INC. of NEBRASKA
PEREZ-MONTES MAG. JUDGE.
the court are the plaintiffs motion in limine (Doc.
86) and partial motion for summary judgment (Doc. 87).
Defendants have filed oppositions to both motions which are
currently ripe for decision.
instant lawsuit arises out of an automobile accident that
occurred on November 4, 2014, in Pineville, Louisiana.
According to plaintiff, Deidra A. Fontenot, she was
proceeding southbound on U.S. 165 in her 2001 Nissan Maxima
when Mohammad S. Rakin attempted to make a left hand turn
from the northbound lane onto T. Hollingsworth Road in the
2013 Peterbuilt tractor trailer he operated on behalf of his
employer, Werner Enterprises of Nebraska. (Doc. 1-3).
Fontenot claims that Rakin failed to yield to oncoming
traffic and traffic signals that caused her vehicle to
"slam" into the trailer he was towing.
(Id. at p.1). Fontenot sustained bodily injuries as
a result of the accident and was taken to Rapides Regional
Medical Center for treatment.
September 26, 2014, Fontenot filed a Petition for Damages in
the 9th Judicial District Court for the Parish of
Rapides, Louisiana against Mohammad S. Rakin and Werner
Enterprises, Inc. of Nebraska. Therein, she alleged she
sustained bodily injuries, incurred medical expenses and
suffered mental anguish and suffering for which she sought
October 30, 2014, the defendants removed the matter to this
court citing 28 U.S.C. §1332, providing for diversity
jurisdiction. (Doc. 1). The defendants answered the
complaint and requested a trial by jury (Docs. 5 and 18).
one year later, through the course of discovery, defendants
learned that Fontenot underwent a urine drug screen on the
evening of the accident, approximately six or seven hours
after arriving at Rapides Regional Medical Center for
treatment. The drug screen was positive for the presence of
THC, benzodiazepines, methadone and opiates. Based on this
finding, the defendants sought and were granted leave to
supplement and amend their answer to assert a thirteenth
defense pursuant to Louisiana Revised Statute 9:2798.4 that
they were not liable for Fontenot's injuries or damages
because she was "intoxicated at the time of the accident
in question and greater than 25% comparatively negligent as a
result of such intoxication." (Doc. 53).
urine drug screen results and the aforementioned affirmative
defense are at the heart of both the motion in
limine and motion for partial summary judgment.
Motion in Limine
seeks to exclude "any and all evidence or inference to
the use of illicit or nonprescription drugs, including the
drug screen from Rapides Regional Medical Center." (Doc.
86). The urine drug screen performed by Rapides Regional
Medical Center showed a positive result for several
controlled substances, THC, benzodiazepines, methadone and
opiates. (Doc. 86-4). The motion states that it seeks to
exclude the laboratory report "based on reliability,
relevance, foundation and hearsay concerns"; however,
the memorandum focuses on exclusion of "illicit"
and "non-prescription drugs" and not the entirety
of the report. This, coupled with the fact that the positive
test results for Fontenot's prescription drugs,
benzodiazepines and opiates, is material to her argument that
La. R.S. 9:2798.4(D) applies to preclude the defendants'
immunity defense, we will not address the exclusion of the
report as a whole. Rather, the ruling shall be limited to
"any and all evidence or inference to the use of illicit
or non-prescription drugs."
expert toxicologist, Dr. William George, testified via
deposition that the positive test results from the urine drug
screen were indicative of drug use prior to the time of the
test, not impairment or intoxication, as follows: "I
would, again, say it does not measure the level of
intoxication, it is not intended to. It's a measurement
of a drug and/or its metabolite in the urine which is not
indicated by itself to indicate intoxication." (Doc.
87-3, p. 35) (See also Id. at 16, 30-33, 39-40). He
also provided testimony regarding how long the drugs at issue
could remain in one's system subsequent to use. While THC
could remain present in the urine of a frequent user up to a
month, it would only remain in the urine of an occasional
user one or two days. (Id. at 26, 40).
Benzodiazepines could remain present in urine three to five
days, whereas amphetamines and opiates could remain for two
to three days. (Id at 25, 27).
George testified that he considered all evidence, including
the urine drug screen results, to determine the amount of the
drugs in Fontenot's system at the time of the accident
and whether that rendered her intoxicated. (Doc. 13-15). Dr.
George established a calculation and determined the amount of
Valium that remained in her system. (Id.). He then
considered the supplemental effect of the other drugs (for
which she tested positive) on the Valium in her system.
Though not conceded by Dr. George, it is clear that there was
no evidence before him indicating the levels of THC or
methadone in her system nor could any be calculated as there
was no evidence of the date and time she used marijuana