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Campos v. Unlimited Master Contractors, LLC

Court of Appeals of Louisiana, Fifth Circuit

January 30, 2019



          COUNSEL FOR PLAINTIFF/APPELLANT, JUAN CAMPOS Cristian P. Silva William R. Penton, III


          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.


         In this claim for workers' compensation benefits, Claimant appeals a judgment excluding all of his evidence on the basis he failed to file a pre-trial order pursuant to the court's scheduling order which resulted in the dismissal of his disputed claim for compensation for failing to carry his burden of proof. For the following reasons, we vacate the judgment and remand the matter for further proceedings.


         Claimant, Juan Campos, filed a Disputed Claim for Compensation - 1008 Form on August 31, 2015 against his employer, Unlimited Master Contractors, LLC ("UMC"), seeking workers' compensation benefits for back, ribs and shoulder injuries he allegedly sustained in a work-related accident on July 11, 2015. Claimant asserted that the accident occurred when he fell off the roof of a house located on Broad St. in New Orleans while he was installing plywood. Claimant amended his disputed claim in March 2016 to add Eddie Smith, Vanessa Smith and LL5 Enterprises, LLC ("LL5") as defendants/employers.[1]

         LL5 filed an answer denying all claims. UMC denied that they had any employer/employee relationship with Claimant and filed an exception of no cause of action. Claimant filed a motion to strike the answers of LL5 and UMC on the basis the pleadings were not filed by licensed attorneys. He further sought a default judgment against the two defendants. According to a minute entry dated September 23, 2016, the workers' compensation court granted Claimant's motion to strike LL5's and UMC's answers and entered a preliminary default judgment. There is nothing in the record indicating that Claimant confirmed the preliminary default judgment against either LL5 or UMC.

         Meanwhile, Eddie and Vanessa Smith ("the Smiths") filed exceptions of no cause of action and no right of action, which were overruled after a hearing. Thereafter, in February 2017, the Smiths filed their answer. On September 26, 2017, the workers' compensation court signed a Scheduling Conference Order, ordering that all pre-trial statements be filed 30 days prior to trial. The order further noted that trial was scheduled for February 15, 2018.

         Approximately one week prior to trial, on February 6, 2018, Claimant filed an ex parte motion seeking to perpetuate his testimony for trial through a telephone deposition in lieu of his live testimony. Claimant's counsel represented that Claimant had been deported to El Salvador in December 2017 and would be unable to be present for trial. The Smiths objected to the motion and a hearing was held. On March 13, 2018, the workers' compensation court denied Claimant's motion "based on the facts and information presented." However, the court ordered that upon receipt of documentation showing Claimant's unavailability for trial and the duration for which he would be unavailable, a video deposition could be taken pursuant to La. C.C.P. art. 1434, but did not order Claimant to submit to or provide a video deposition.

         On May 4, 2018, Claimant submitted a letter from the U.S. Immigration and Customs Enforcement dated May 2, 2018, stating that Claimant had been removed from the United States on November 9, 2017. Claimant also submitted a copy of Section 212 of the Immigration and Nationality Act to show that because he has been removed from the United States, he is unable to return to the United States for a period of ten years. Claimant urged that based on these two documents, he had adequately demonstrated his unavailability for trial.

         Thereafter, on May 21, 2108, Claimant filed a motion to admit his June 26, 2017 deposition at trial in lieu of live testimony. His motion was not ruled upon prior to trial, which was held on May 23, 2018. At the beginning of trial, the Smiths indicated that they had a motion to dismiss based on two grounds - Claimant's inability to be present at trial - arguing against the use of Claimant's June 2017 deposition on the basis it was a "discovery" deposition and not a "perpetuation" deposition - and the failure of Claimant to file a pre-trial statement.[2]

         Addressing Defendants' motion to dismiss, the workers' compensation judge noted that her prior February 2018 ruling regarding the use of deposition testimony in lieu of live testimony was not followed; specifically, Claimant failed to submit a deposition in compliance with La. C.C.P. art. 1434. Further, remarking that neither Claimant nor the Smiths had filed a pre-trial statement, the workers' compensation judge struck all the witnesses and exhibits Claimant indicated that he intended to offer into evidence during trial on the basis they were not listed in the pre-trial statement and granted the Smiths' motion to dismiss. Claimant proffered his evidence, which included various exhibits and a statement regarding the content of a witness' testimony.

         The workers' compensation court subsequently signed a written judgment on June 8, 2018, denying Claimant's motion to use his June 2017 deposition in lieu of live testimony and excluding all of his evidence at trial on the basis he failed to file a pre-trial statement. The judgment concluded that Claimant failed to meet his burden of proving that he sustained a work-related accident and injuries and dismissed Claimant's disputed claim for compensation with prejudice.


         The sole issue raised in this appeal is whether the workers' compensation court abused its discretion in excluding all of Claimant's witnesses and exhibits at trial on the basis his attorney failed to file a ...

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