The Louisiana Fifth Circuit Court of Appeal recently rendered its decision in Campos v. Unlimited Master Contractors (No. 18-CA-435). The decision provides a context in which to discuss the legal concept of prejudice, which in a legal proceeding is a discussion of the harm that is affected by a particular action or inaction.
In this instance, the Louisiana Workers' Compensation Judge excluded from consideration evidence that the injured worker wanted to have considered. It may be axiomatic to many, but the import of such a decision is worthy of discussion. In any legal proceeding, some party will have a "burden of proof."
That phrase means that the party must prove its point or the party will not prevail. It is common that an injured worker, like a plaintiff in a civil case, will have the burden of proving entitlement to workers' compensation benefits. Similarly, an employer/carrier will have the burden of proving any "affirmative defense" to providing those benefits. Similarly, a party will have the burden of demonstrating how its evidence meets the requirements of any evidence code or rules. A party seeking to exclude evidence on the grounds of undue prejudice will have the burden of demonstrating that prejudice.
It is important to remember that all evidence is likely prejudicial (Merriam-Webster: "tending to injure or impair"). The whole point of any party introducing evidence is to prove their own case. Anything that proves the case of one party is by definition going to hurt, erode, or impeach the case of some other party. Some find that challenging, but it is a simple truth. As such, that evidence is "prejudicial" is rarely sufficient in itself to exclude the evidence. Instead, such prejudice must be marked to be excluded. To exclude it, that evidence must be unduly prejudicial. There must be a demonstration by the party that seeks to keep that evidence out, a demonstration of "undue prejudice."
The burden of proof is not always fixed. In a particular case, the burden of persuading the judge may be upon different parties regarding different issues and at different stages of the case. However, the consistent requirement is that whatever party has the burden of proof on any particular point must present evidence to support its contentions on that point. The opposing party or parties may also present evidence, cross-examine the first party's witnesses, or make arguments against the burden party's efforts at proof.
In Campos, the trial judge excluded the injured worker's evidence. That exclusion of "all of his" evidence would make it impossible for him to prevail if he had the burden of proof. In this instance, the exclusion was a reaction to behavior, a "sanction." Mr. Campos "failed to file a pre-trial statement pursuant to the court’s scheduling order." The trial judge excluded all of his evidence, and then dismissed his "claim for compensation for failing to carry his burden of proof."
The case was somewhat complex in that there was a dispute regarding who employed Mr. Campos. Those complications were described in detail in the Court's opinion. Such disputes are not uncommon in workers' compensation. In September 2017 the trial judge "signed a Scheduling Conference Order, ordering that all pre-trial statements be filed 30 days prior to trial." The trial was "scheduled for February 15, 2018." The trial did not proceed on that day.
On February 6, 2018, the injured worker filed a "motion seeking to perpetuate his testimony for trial through a telephone deposition in lieu of his live testimony." He had "been deported to El Salvador in December 2017" and thus could not attend the trial. The judge denied the motion for telephonic deposition but ordered "a video deposition could be taken." No video deposition was prepared, however, and at trial in May 2018, the injured worker sought to admit as evidence the deposition in which he had testified in June 2017.
At trial, the judge noted that neither the worker nor the defense had filed "a pre-trial statement." Furthermore, the judge concluded the worker "failed to submit a (video) deposition." The judge therefore "struck all the witnesses and exhibits" the worker "intended to offer into evidence." As there was thus no evidence with which the worker could prove his case, the judge dismissed the worker's claims.
The appellate court agreed that no pre-trial statements had been filed. And, it reminded that in Louisiana "the trial court has much discretion in imposing sanctions for a party’s failure to comply with scheduling orders." The Court explained that in its review of a trial judge decision that "imposed sanction, each case must be decided upon its own facts and circumstances." It noted that dismissal is one appropriate sanction for "a party’s disobedience of or disregard for court orders."
However, the Court reminded that “this extreme penalty obviously should seldom be imposed and should be reserved for only the most flagrant case.” The dismissal of claims has been characterized by the Louisiana Supreme Court as "a draconian penalty." One important consideration in this regard, according to the Court, is whether the party or the party's attorney is responsible for the violation of the order.
The Court concluded here that the trial judge "abused its discretion in imposing the harshest sanction" for "failure to file a pre-trial statement." It concluded that the worker was not shown to have caused or contributed to that failure by his attorney. And, the Court noted that "counsel’s failure to file a pre-trial statement did not prejudice the" employer/carrier. In fact, by the time of trial "all the evidence was known to the" employer/carrier" and it "had been previously provided to" them. The Court also noted that there was no indication of the worker or counsel repeatedly violating orders. It also reminded that "neither party complied with the trial court’s pre-trial order."
The Court therefore ordered that the case return to the trial judge for a hearing on the merits of the claim, called a "remand." The Court instructed that this include "consideration of Claimant’s evidence, including the admissibility of the evidence, and determination of whether he meets his burden of proof."
The decision was not unanimous. Judge Liljeberg dissented, explaining that there were two instances of the worker failing to comply with orders. The judge cited the failure to file a pre-trial statement and the failure to procure and submit a video deposition. The dissent noted that the case "was pending since August 31, 2015, and the trial date was continued on four prior occasions." It noted that the attempts to introduce the 2017 deposition were in contravention of the trial judge's order regarding a video deposition, and was just before trial commenced. The dissent concluded, "it is clear the workers’ compensation judge’s decision to exclude Claimant’s evidence was based on far more than the failure to file a pre-trial statement."
It is likely that a Florida appellate court would have reached the same conclusion and reversed the exclusion of all evidence. In 1981, the Florida Supreme Court decided Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). There, the dispute was over the disclosure of witnesses. The plaintiff in that civil case was allowed to present the testimony of an undisclosed witness. The trial court concluded that the plaintiff's disclosure that it would call “any and all necessary impeachment or rebuttal witnesses" was sufficient notice to the defendants. The Supreme Court disagreed.
The Court concluded that "a trial judge's discretion in determining whether an unlisted witness can testify should be guided primarily by whether prejudice would accrue to the objecting party." That analysis has since been employed in Florida workers' compensation cases. In Medical Logistics Inc. v. Marchines, 911 So. 2d 823 (Fla. 1st DCA 2005), the Court reversed a Judge of Compensation Claims (JCC) exclusion of surveillance evidence. The Court cited Binger, and reminded that exclusion of evidence for violating a pre-trial disclosure requirement requires "a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice." This analysis is seemingly similar to that described by the Louisiana appellate court.
Thus, in Florida, a JCC cannot simply exclude evidence based upon a "uniform policy" that "failure to provide notice" "will always result in a finding of procedural prejudice." The Court characterized such a policy as "antithetical to the case-specific analysis prescribed in Binger." Like in Campos, however, there is a dissenting opinion in Medical Logistics that is worthy of a careful reading also. That dissent illustrates the potential for different judges to view the prejudice analysis differently. The dissent focuses on who is responsible for the failure to comply with the pre-trial order and explains why that particular appellate judge found the trial judge's analysis sufficient, explaining there was no justification or explanation for the failure to comply.
The lessons of disclosure are worthwhile. Parties should follow the orders issued by the trial judge. Too often, there are anecdotal instances in which parties have failed to carefully read orders in a case. Step one in complying with an order is of course carefully reading the order.
Furthermore, if a party finds itself prejudiced by some other party's failure to comply with an order, that party will likely be called upon to explain in detail how such non-compliance has resulted in actual, not conjectural, prejudice. In this sense the objecting party must show prejudice, not merely allege it. One might say the objecting party has the burden of proving prejudice or actual harm.
If the Medical Logistics dissent is to be credited, the arguments on this prejudice point may also require the party proffering that evidence to explain and justify its failure to disclose in the first instance. That is, why did the party not comply with a rule or order applicable to the case? Is there a valid reason, is it simply neglect or error, or did the party affirmatively decide not to comply?
In both the Campos and Medical Logistics, we see that trial judges face difficult decisions regarding arguments over admitting evidence. In each, we also see that appellate judges may not always view the decisions of the trial judge identically.
While there is discretion allowing the trial judge to determine what is or is not admissible, the appellate courts remind that discretion is to consider the facts and circumstances present in a particular case. It is not appropriate for trial judges to instead have personal policies or local rules that drive results without such factual analysis. And, finally, that analysis should be about whether the alleged failure or non-compliance is demonstrated to have resulted in "actual" prejudice to the other party.
Campos reminds the experienced and instructs the novice. It is worthy reading for anyone that would litigate a workers' compensation case, as counsel or as a pro se party.
