Opinion
NO. 2018 CW 0650
05-31-2018
HENRY NORRIS WILLIAMS, ET AL v. THE DOW CHEMICAL COMPANY, ET AL
In Re: ExxonMobil Corporation, applying for supervisory writs, 18th Judicial District Court, Parish of Iberville, No. 74597. BEFORE: WHIPPLE, C.J., GUIDRY, WELCH, HIGGINBOTHAM AND CHUTZ, JJ.
WRIT GRANTED. Pursuant to La. Code Civ. P. art. 1602, a continuance shall be granted if, at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case or that a material witness has absented himself without the contrivance of the party applying for the continuance. The party moving for a continuance has the burden of showing that the requirements set forth in La. Code Civ. P. art. 1602 are met. Sullivan v. City of Baton Rouge, 2014-0964 (La. App. 1st Cir. 1/27/15), 170 So.3d 186, 192. When the conditions set forth in La. Code Civ. P. art. 1602 are present, the granting of a continuance is mandatory. The policy behind the mandatory continuance is to ensure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency. Id. In this case, Applicant, ExxonMobil Corporation, met its burden of establishing that its epidemiology research expert, Dr. Gabor Mezei, and its pulmonology expert, Dr. Robert Jones, would be absent at the time of trial through the affidavits of Dr. Mezei and Dr. Jones. Moreover, counsel for Applicants has represented that these expert witnesses are imperative in this case and will provide opinions as to the causation of Henry Norris Williams' squamous cell carcinoma of the esophagus, which issue of causation is the critical issue to be determined at trial. Additionally, Applicant has represented that the plaintiffs in this case have delayed the production of expert reports and supplemental expert reports, which have made it difficult to conduct perpetuation depositions of Applicant's experts prior to trial. Accordingly, the trial court's April 27, 2018 order denying ExxonMobil Corporation's Motion to Continue and Reset Trial is reversed. The Motion to Continue and Reset Trial is hereby granted, and this matter is remanded to the trial court for the setting of a new trial date.
VGW
JMG
JEW
WRC
Higginbotham, J., dissents and would not consider the writ. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT