Opinion
NO. 20-C-22
03-05-2020
MARGUERITE ZIEGLER ET AL. v. SAFETY TUBS LLC, ET AL.
Mary E. Legnon Chief Deputy Clerk IN RE SAFETY TUBS, LLC AND AS AMERICA, INC. APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL P. MENTZ, DIVISION "F", NUMBER 789-050 Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED IN PART AND DENIED IN PART
In their writ application, relators, Safety Tubs, LLC and AS America, Inc., seek review of the trial court's judgment denying their motion for partial summary judgment. For reasons stated more fully below, we grant relators' writ application in part and deny in part. We further deny plaintiffs' request for oral argument.
On October 30, 2018, plaintiffs, Marguerite Ziegler, Lydia Jemison, Michael Jemison and Rachel Jemison, filed suit against relators, and other defendants, seeking to recover property and personal injury damages resulting from water damage and mold exposure. Plaintiffs allege that Marguerite Ziegler purchased a walk-in tub from relators that was installed in the home where plaintiffs reside. Plaintiffs contend that the tub leaked and allowed mold to grow in the bathroom and surrounding areas. In their original and supplemental and amending petitions, plaintiffs brought claims against relators for negligence, breach of contract and redhibition, as well as for violations of the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401, et. seq. ("LUTPA") and the Louisiana Products Liability Act, La. R.S. 9:2800.51, et. seq. ("LPLA").
On September 23, 2019, relators filed a motion for partial summary judgment seeking to dismiss plaintiffs' personal injury claims for health problems allegedly caused by mold exposure. Relators argued that plaintiffs failed to produce competent evidence during discovery to establish specific causation for their health problems as required in this Court's recent decision, Yaukey v. Ballard, 18-449 (La. App. 5 Cir. 3/20/19), 267 So.3d 183, writ denied, 19-621 (La. 9/6/19), 278 So.3d 358. In Yaukey, this Court explained that in order to establish specific causation, a "plaintiffs in a mold personal injury case must prove . . . a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation)." Id. at 186. Relators argued that plaintiffs could not prove specific causation as they did not list any physicians on their witness list and lacked evidence to establish that plaintiffs suffered health issues caused by mold.
In addition to specific causation, the Yaukey court set forth additional factors a plaintiff must prove in a mold personal injury case:
Plaintiffs in a mold personal injury case must prove: (1) the presence of mold; (2) the cause of the mold and the relationship of that cause to a specific defendant; (3) actual exposure to the mold; (4) the exposure was a dose sufficient to cause health effects (general causation); and (5) a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation). Watters v. Dept. of Social Services, 08-977 (La. App. 4 Cir. 6/17/09), 15 So.3d 1128, 1143, writs denied, 09-1651 (La. 10/30/09), 21 So.3d 291, and 09-1638 (La. 10/30/09), 21 So.3d 293.
Id. at 186.
In opposition, plaintiffs submitted medical records for Lydia and Michael Jemison indicating that it was "quite plausible" that these plaintiffs' health symptoms were caused by exposure to mold in their home. Plaintiffs also argued that their personal injury claims were not limited to physical injuries and therefore, were not limited to the standard set forth in Yaukey, supra. Specifically, plaintiffs argued that they are entitled to recover non-pecuniary damages as a result of relators' breach of contract pursuant to La. C.C. art. 1998.
Relators objected to Lydia and Michael Jemison's medical records in their reply brief because they were not certified as required by La. C.C.P. art. 966(A)(4). Plaintiffs filed a supplemental brief seeking to substitute certified copies of the medical records two days prior to the hearing on the summary judgment motion. Plaintiffs explained that the delay in obtaining certified copies of the records was due to issues caused by the departure of their physician from his practice that were beyond their control. In their writ application, relators argue that the trial court erred by considering the untimely certified medical records. We do not find that the trial court erred by allowing plaintiffs to substitute certified medical records for the medical records previously filed in opposition to the summary judgment motion.
After conducting a de novo review, we find the trial court did not err by denying relator's motion for partial summary judgment with respect to the personal injury claims for mold exposure alleged by plaintiffs, Lydia and Michael Jemison. Relators argue that these records are insufficient because plaintiffs' physician merely stated that it was "quite plausible" their symptoms resulted from mold exposure. However, the Merriam-Webster.com Dictionary lists the term "probable" as a synonym for the term "plausible." Accordingly, we find that the trial court did not err in concluding that the doctor's certified letters were sufficient to create a genuine issue of material fact for the purposes of this summary judgment motion, with respect to the issue of specific causation for plaintiffs, Lydia and Michael Jemison, as required by Yaukey, supra.
However, plaintiffs, Marguerite Ziegler and Rachel Jemison, failed to present any evidence of alleged health problems they experienced due to mold exposure in opposition to the summary judgment motion. Therefore, pursuant to the requirements set forth in Yaukey, supra, we find the trial court erred by failing to dismiss the claims of Marguerite Ziegler and Rachel Jemison seeking to recover damages for health problems allegedly caused by mold exposure.
Plaintiffs also argue that they are entitled to recover general damages for relators' breach of contract pursuant to La. C.C. art. 1998. However, relators' motion for summary judgment did not seek the dismissal of plaintiffs' breach of contract claims, but rather limited its request for dismissal to personal injury claims as addressed in Yaukey, supra. La. C.C.P. art. 966(F) provides that a "summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." Accordingly, we do not address the issue of whether any of the plaintiffs are entitled to recover other damages under their alterative theories of liability including breach of contract and redhibition, as well as for violations of LUTPA and the LPLA.
Based on the foregoing, we grant relators' writ application in part, reverse the trial court's judgment denying relators' motion for partial summary judgment with respect to plaintiffs, Marguerite Ziegler and Rachel Jemison, and grant a partial summary judgment in favor of relators, Safety Tubs, LLC and AS America, Inc., against plaintiffs, Marguerite Ziegler and Rachel Jemison. By granting in part relators' motion for partial summary judgment, we dismiss the personal injury claims arising from health problems allegedly caused by mold exposure brought by plaintiffs, Marguerite Ziegler and Rachel Jemison, against relators, Safety Tubs, LLC and AS America, Inc. All other issues raised in relators' writ application, as well as plaintiffs' request for oral argument, are denied.
Gretna, Louisiana, this 5th day of March, 2020.