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Lachney v. O'Reilly Automotive Stores, Inc.

United States District Court, W.D. Louisiana, Alexandria Division

November 6, 2017

RONALD LACHNEY, Plaintiff
v.
O'REILLY AUTOMOTIVE STORES, INC., ET AL., Defendants

          DRELL CHIEF JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before the Court are: (1) a Motion to Amend Answer to Complaint (Doc. 21) (“Motion to Amend”); (2) a Motion for Extension of Expert Witness Deadlines (Doc. 29) (“First Motion for Extension”); (3) a Motion in Limine to Exclude Defense Expert (Doc. 43) (“Motion in Limine”); and (4) a Motion for Extension to Preserve Deadline to Retain Rebuttal Witness/Experts (“Second Motion for Extension”) (Doc. 51). All of the motions relating to Defendants' attempt to add an affirmative defense not asserted in Defendants' original answer.

         Because Plaintiff will not be prejudiced, and the proposed amendment will not be futile, Defendants are entitled to leave to amend. Further, the defense implicates additional medical issues which have not been fully addressed in discovery. Thus, both parties are entitled to additional time to conduct expert discovery. The Motion to Amend and the First and Second Motions for Extension are granted. The Motion in Limine is denied. And the fact and expert discovery deadlines are reset as set forth below.

         I. Background

         Plaintiff Ronald Lachney (“Lachney”) filed this lawsuit in the Twelfth Judicial District Court in Avoyelles Parish. Lachney seeks damages for personal injuries allegedly sustained in a car accident with Defendant Freck Williams (“Williams”). Williams was driving a vehicle owned by Defendant O'Reilly Automotive Stores, Inc. (“O'Reilly”), and insured by Defendant Safety National Casualty Corp. (“Safety National”), at the time of the accident.

         Defendants answered Lachney's Petition in state court. Defendants then removed.

         On May 1, 2017 - the scheduled deadline for amending pleadings - Defendants filed a Motion to Amend Answer (Doc. 21), seeking leave to assert additional affirmative defenses. In the proposed Amended Answer (Doc. 21-2), Defendants added three affirmative defenses: (1) an exclusion of any medical expenses paid by Medicare and/or Medicaid; (2) a credit for any medical expenses discounted or “marked down” by any medical provider; and (3) the defense of “sudden emergency, ” excluding Defendants from any liability “for the sudden medical emergency of Freck Williams that may have led to, caused, or contributed to the incident forming the basis of this litigation.” (Doc. 21-2, p. 2).

         Lachney opposes the amendment - in particular, the addition of the sudden emergency defense. The defense raised additional disputes regarding expert witnesses and discovery. Additional motions therefore followed. The Court addresses each motion in turn.

         II. Law and Analysis

         A. The Motion to Amend should be granted.

         Under Fed.R.Civ.P. 15(a)(2), a party may amend its pleading only with the opposing party's written consent or the court's leave. “Rule 15(a) requires a trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (internal citations and quotations omitted). While leave to amend should not be granted automatically, a court must have a “substantial reason” to deny leave. Id. (quoting Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)).

         In deciding whether to grant leave to amend, a court may consider such factors as: (1) undue delay, bad faith, or dilatory motive on the part of the movant; (2) repeated failure to cure deficiencies by amendments previously allowed; (3) undue prejudice to the opposing party by virtue of the allowance of the amendment; and (4) futility of the amendment. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981); accord Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004).

         Moreover, when a defendant fails to assert affirmative defenses in the answer, special considerations arise:

Under Federal Rule of Civil Procedure 8(c), a party must affirmatively state an affirmative defense in responding to a pleading. If a defendant fails to raise an affirmative defense in its responsive pleading, it is waived. Fed.R.Civ.P. 12(b); Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). “However, ‘[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise...technical failure to comply precisely with Rule 8(c) is not fatal.' ” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983). “An affirmative defense is not waived if the defendant ‘raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.' ” Id.; See also, Burnett v. State Farm Fire and Cas. Co., 2010 WL 4627727, at *4 (M.D. La. Nov. 4, 2010) (“However, a defendant does not per se waive its right to plead an affirmative defense by failing to plead the defense in its answer. Instead, the court may permit the defendant to amend its answer to include the defense if the plaintiff was on notice of the defense within a reasonable time and is not prejudiced by the defendant's failure to include the defense in its answer.”) (internal citations omitted). Courts in this circuit “look at the overall context of the litigation and have found no waiver where no evidence of prejudice exists and sufficient time to respond to the defense remains before trial.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983).

Scott v. E.I. du Pont de Nemours & Co., CV 13-741-SDD-EWD, 2016 WL 1464565, at *3 (M.D. La. Apr. 13, 2016).

         Lachney argues that: (1) Defendants unduly delayed the amendment; (2) Lachney will be prejudiced by the amendment; and (3) the amendment is futile. And as threshold matters, the parties dispute whether the proposed amendment: (1) raises the defense of “sudden emergency” or, rather, the defense of “sudden loss of consciousness”; and (2) whether each of those defenses is, technically, an “affirmative defense” which must be specifically pled.

         1. Defendants' proposed amendment raises the affirmative defense of “sudden loss of consciousness.”

         Defendants first argue that the defense of “sudden emergency” is not an affirmative defense which must be specifically pled. Defendants cite Dupree v. Sayes, a Louisiana appellate court decision noting that “the sudden emergency doctrine is not an affirmative defense and, therefore, need not be specifically pled in the defendant's answer.” Dupree v. Sayes, 42, 792 (La.App. 2 Cir. 12/5/07, 4), 974 So.2d 22, 24. However, as Lachney correctly counters, Dupree and ...


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