Preserving objections to expert testimony

To be admissible, expert testimony must be reliable under the standards first articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and adopted by the Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993). Code of Civil Procedure art. 1425(F) provides a detailed procedure for bringing motions in limine to exclude an expert’s testimony under Daubert. Article 1425(F)(1) begins with permissive language rather than mandatory language: “Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable” under the Code of Evidence. Query: To challenge an expert under Daubert, must a party file and pursue a motion under art. 1425(F), or may the challenging party reserve the Daubert objection for trial?

At least three Louisiana courts of appeal have suggested that the challenging party must bring the Daubert challenge by pre-trial motion. To my knowledge, the first court to do so in a civil case was the Louisiana Fourth Circuit in Brown v. Schwegmann, 958 So. 2d 721 (La. App. 4 Cir. 2007).

The defendant-appellant in Brown argued on appeal that the plaintiff’s expert on damages used a deficient methodology in his calculations. The appellant’s main problem was failure to object to the expert’s testimony at trial. But the Fourth Circuit also noted that the appellant “failed to move for a Daubert hearing as to the admissibility of [the expert’s] testimony prior to trial.” Id. at 724. The court held that the appellant failed to preserve his Daubert challenge for two reasons. The first was his failure to object at trial. The second was his failure to file a pre-trial Daubert motion. “[W]hen the objecting party fails to request a Daubert hearing, objections to the admissibility of an expert witness’s testimony under Daubert are not preserved for appeal.” Id.

Since Brown was decided, two more Louisiana courts of appeal in civil cases have followed its pronouncement concerning the necessity of a pre-trial hearing to preserve a Daubert challenge for appeal. See Harris v. State, Dept. of Transp. & Dev., 997 So. 2d 849, 868 (La. App. 1 Cir. 2008), and Wilczewski v. Brookshire Grocery Store, 2 So. 3d 1214, 1223–24 (La. App. 3 Cir. 2009).

These decisions appear to illustrate a more general principle: when the Code of Civil Procedure or other legislation establishes a specific procedure for obtaining a particular ruling from a trial court, litigants must follow that procedure to preserve the issue for appeal. This principle accords with the definition of preservation of error that we saw in the first post of this series: that preservation of error requires “the taking of all steps necessary under the rules of procedure ... in bringing an improper act or statement to the trial court’s attention ....” Black's Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014).

This analysis raises another question: do Brown and similar cases apply to an argument that a witness is not qualified as an expert? Whether a witness qualifies as an expert is a distinct question from whether the witness’s opinions are reliable under Daubert. See Cheairs v. State, Dept. of Transp. & Dev., 861 So. 2d 536, 542–43 (La. 2003)Brown and the cases following it were concerned with Daubert challenges, not challenges to the witnesses’ qualifications as experts. Yet the legislation on which they are based, La. Code Civ. P. art. 1425(F), applies to both the witness’s qualification as an expert and the reliability of the witness’s opinions under Daubert.

I don’t know the answer to this question. Traditionally, the ruling on a witness’s qualification as an expert does not occur until trial, and only after the proponent of the witness’s testimony has elicited testimony establishing the witness’s qualifications.

Usually, this question is moot because a motion in limine to exclude expert testimony usually includes an attack on the witness’s qualifications if a credible attack can be made. My suggestion to anyone seeking to exclude purported expert testimony for any reason is to file a motion under art. 1425(F) and to include in the motion all arguments against admissibility of the purported expert’s opinions.


Preserving objections to summary-judgment evidence

Louisiana appellate courts review summary judgments de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of LSU, 591 So. 2d 342, 345 (La. 1991). Based on this standard of review, one might think that an appeal from a summary judgment is a total do-over of the district court’s hearing of the motion. That thought would be a mistake. The evidentiary foundation for any argument supporting or opposing the motion must be built in the trial court. Objections to an opponent’s evidence must first be made in the trial court.

Recent amendments to La. Code Civ. P. art. 966 have established specific procedures for admitting and for objecting to evidence offered for or against a summary-judgment motion. Under paragraph (F)(2), evidence attached to the motion or to the opposing memorandum is deemed admitted unless excluded in response to an objection made in accordance with paragraph (F)(3). Paragraph (F)(3), in turn, allows the objection to be made either in a memorandum or a written motion to strike, stating the specific grounds for the objection. The written objection must be served on opposing counsel according to La. Code Civ. P. art. 1313 (that is, by mail or e-mail) within the time specified by La. Dist. Ct. R. 9.9. This means that objections to the mover’s evidence must be served at least eight calendar days before the hearing, and any objections to the opposing party’s evidence must be served before 4:00 p.m. two working days before the hearing (so as to allow at least one full working day between service and the hearing).

I have not seen any caselaw interpreting these relatively new provisions. But the language of art. 966(F) seems straightforward and direct: the evidence is admitted unless an objection is made according to paragraph (F)(3). It follows that failure to object in the manner dictated by paragraph (F)(3) constitutes waiver of the objection.

Besides making your objections properly according to art. 966(F), make sure the judge rules on any properly made objections. Remember our mantra: without a ruling by the trial court, there is nothing for the appellate court to review.


Preserving constitutional challenges

Before leaving the topic of preserving claims and defenses, let’s look at something that can be part of a claim or a defense: an argument that a law is unconstitutional.

The general rule in Louisiana is that litigants must first raise constitutional attacks in the trial court, not the appellate court. The constitutional challenge must be specially pleaded, and the grounds for the claim must be particularized. Mosing v. Domas, 830 So. 2d 967, 975 (La. 2002). “Specially pleaded” means that the challenge must be stated in a pleading, that is, in a petition, an answer, an exception, or a motion. Merely raising the argument in a brief or memorandum is insufficient. Becnel v. Lafayette Ins. Co., 773 So. 2d 247, 255 (La. App. 4 Cir. 2000)Allen v. Carollo, 674 So. 2d 283, 290 (La. App. 1 Cir. 1996).

The Louisiana Supreme Court has recognized four exceptions to this general rule, three of which can apply in a civil case: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; and (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court. Unwired Telecom v. Parish of Calcasieu, 903 So. 2d 392, 399 n. 5 (La. 2005)Mosing v. Domas, 830 So. 2d at 975 n. 2.


Preserving affirmative defenses

As we saw in an earlier post, an affirmative defense “raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975).

Preserving an affirmative defense is more of a process than a series of a few discrete steps. Initially, you must plead the defense in your answer to the plaintiff’s petition. See La. Code Civ. P. art. 1005. But you must not stop at merely pleading the defense: you must obtain a decision, either by summary judgment or at the trial of the case. If the latter, you must offer evidence at trial to prove the defense and insist that the judge or jury make a specific finding of fact on the defense. If the case is tried by jury, you must request the appropriate jury instructions and ask for the defense to be included on the verdict form.


Preserving peremptory exceptions

The peremptory exception is a means of defense, other than a denial or avoidance of the demand, to dismiss or defeat the demand. See La. Code Civ. P. art. 921. Its function is to have the plaintiff’s action declared legally nonexistent or barred by effect of law. Id. art. 923. The defenses that may be raised through the peremptory exception include, but are not limited to, prescription (statute of limitations), peremption (statute of repose), res judicata, nonjoinder of a necessary or indispensable party, no cause of action, no right of action, and discharge in bankruptcy. Id. art. 927(A).

The peremptory exception is probably the easiest defense to preserve. Except for prescription, the defenses listed in art. 927 may be noticed by either the trial or the appellate court on its own motion. La. Code Civ. P. art. 927(B). Unlike the declinatory and dilatory exception, which must be pleaded at the outset of the case, the peremptory exception may be pleaded at any stage of the proceeding in the trial court before submission of the case for a decision. Id. art. 928(B). In fact, La. Code Civ. P. art. 929(B) suggests that it may even be pleaded after trial.

The peremptory exception may even be pleaded for the first time in the court of appeal, if pleaded before submission of the case for a decision. Id. art. 2163. But I would caution against saving the exception for the appeal. Article 2163 says that the appellate court “may consider the peremptory exception filed for the first time in that court ....” (Emphasis added.) That word may means that the appellate court has discretion to either consider or not consider the peremptory exception pleaded for the first time in that court. Seee.g., Sowers v. Dixie Shell Homes of Am., 762 So. 2d 186, 189 (La. App. 2 Cir. 2000)Fontenot v. Chapman, 377 So. 2d 492, 494 (La. App. 3 Cir. 1979). So if you save the peremptory exception for the appeal, you are at the appellate court’s mercy. If you plead the exception timely in the trial court, the trial court must consider it. See La. Code Civ. P. art. 929.

There are only two things you need do to preserve a peremptory exception: (1) plead it, and (2) seek a hearing and decision on the exception.

To plead the exception, you must file a formal pleading raising the exception. Merely arguing the exception in a brief or in open court is insufficient, because neither a brief nor an oral argument is a pleading. Smith v. Jones, 504 So. 2d 570, 573 (La. App. 3 Cir. 1987)see also La. Code Civ. P. art. 852 (pleadings consist of petitions, exceptions, written motions, and answers).

You must also seek a hearing and decision on the exception; otherwise the appellate court will deem the exception abandoned or waived. See, e.g., Williams v. Vidrine, 330 So. 2d 396, 396–97 (La. App. 3 Cir. 1976)Shear v. Shear, 695 So. 2d 1026, 1030–31 (La. App. 5 Cir. 1997).


Preserving peremptory exceptions and affirmative defenses: An introduction

In the last post on preservation of error, we looked at preserving declinatory and dilatory exceptions. These exceptions tend to be procedural rather than substantive: they impede the plaintiff’s ability to pursue the action but do not defeat the plaintiff’s action.

Substantive defenses — those that defeat the plaintiff’s action — come in two species: peremptory exceptions and affirmative defenses. According to La. Code Civ. P. art. 923, “[t]he function of the peremptory exception is to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” The definition of an affirmative defense is similar. “An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff's demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975).

Code of Civil Procedure art. 927 provides a non-exclusive list of defenses that can be raised through the peremptory exception, while art. 1005 provides a non-exclusive list of affirmative defenses. But because these lists are non-exclusive, it can sometimes be difficult to tell whether an unlisted defense should be pleaded as a peremptory exception or an affirmative defense. Fortunately, this difficulty causes few problems in practice. Most lawyers who plead peremptory exceptions replead them in the answer as affirmative defenses. And La. Code Civ. P. art. 1005 allows a trial court to treat a “mistakenly designated” affirmative defense as a peremptory exception and vice-versa.

Nevertheless, it is important to understand the distinction between peremptory exceptions and affirmative defenses because, as we will see in later posts, the ways to preserve these defenses for appellate review differ.


Preserving dilatory and declinatory exceptions

This post is the first of several examining the preservation of defenses. A defense, depending on its nature, may be pleaded by an exception or by the answer.

An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant to retard, dismiss, or defeat the plaintiff’s action. See La. Code Civ. P. art. 921. There are three kinds of exceptions: declinatory, dilatory, and peremptory. Id. art. 922.

The function of the declinatory exception is to decline the jurisdiction of the court. Id. art. 923. The objections that may be raised through this exception include insufficiency of citation, insufficiency of service of process, lis pendens, improper venue, the court’s lack of jurisdiction over the defendant’s person, and the court’s lack of subject-matter jurisdiction. Id. art. 925(A).

The function of the dilatory exception is to retard the progress of the action. Id. art. 923. The objections that may be raised through this exception include prematurity, want of amicable demand, unauthorized use of summary proceeding, nonconformity of the petition with rules governing the form of the petition, vagueness or ambiguity of the petition, lack of procedural capacity, improper cumulation of actions or parties, and discussion. Id. art. 926(A). (Discussion is the right of a secondary obligor to compel the creditor to enforce the obligation against the primary obligor, or if the obligation is a mortgage, to enforce it against the property affected by the mortgage before enforcing it against the secondary obligor’s property. La. Code Civ. P. art. 5151.)

Note that the codal lists of objections that can be raised through the declinatory or dilatory exception are non-exclusive. It can sometimes be difficult to tell which category an unlisted defense falls in. For example, if the plaintiff’s claim is subject to arbitration, the objection might arguably be raised through the declinatory exception (it is analogous to improper venue), though in practice, it is usually raised through the dilatory exception of prematurity. 

Fortunately, the rules for asserting (and thus preserving) defenses that can be raised through the declinatory or dilatory exception are identical. These exceptions must be pleaded before or in the answer, and before or along with any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time to plead, security for costs, or dissolution of an attachment. When both exceptions are pleaded, they must be filed at the same time and may be incorporated in the same pleading. See La. Code Civ. P. art. 928(A).

If you plead either of these exceptions, you must include all objections that may be raised through one or the other; any excluded objection is waived. La. Code Civ. P. art. 925(C). The only “exception” (sorry) to this rule is the objection of lack of subject-matter jurisdiction. Id. This is because subject-matter jurisdiction cannot be conferred by the parties’s consent. Id. art. 3.

Remember our basic rule: to preserve an issue for appeal, you must not only raise it timely and properly in the trial court; you must also obtain the trial court’s ruling on it. This rule applies to defenses that can be raised by the declinatory or dilatory exception. Code of Civil Procedure art. 929(A) requires declinatory and dilatory exceptions to be tried and decided before the trial of the case. And La. Dist. Ct. R. 9.8(a) requires all exceptions to be accompanied by a proposed order setting the exception for hearing. When the trial court does not rule on declinatory or dilatory exceptions, those exceptions are considered abandoned. LP&L v. City of Houma, 229 So. 2d 202, 204 (La. App. 1 Cir. 1969).

If the trial court overrules your declinatory or dilatory exception, you may need to apply to the court of appeal for a supervisory writ. Louisiana courts have held that a parties waive the exceptions of improper venue and prematurity by failing to apply for a supervisory writ after these exceptions were overruled by the trial court. See, e.g., Thomas v. Desire Community Housing Corp., 773 So. 2d 755, 760–61 (La. App. 4 Cir. 2000) (exception of prematurity waived by failing to seek immediate review); Alexander v. Palazzo, 5 So. 3d 950, 953 (La. App. 1 Cir. 2009) (party waived objection to venue by failing to apply for a supervisory writ to review overruling of exception); Mousa v. Kasem, 731 So. 2d 981, 983 (La. App. 4 Cir. 1999) (same). This is because the erroneous overruling of these exceptions cannot, as a practical matter, be corrected on appeal from the final judgment in the case. Alexander, 5 So. 3d at 953.

Indeed, the Louisiana Supreme Court has held that a supervisory writ is the only means to seek appellate review of an adverse venue ruling. Land v. Vidrine, 62 So. 3d 36, 39–41 (La. 2011). Nevertheless, if the party aggrieved by a venue ruling fails to apply for a supervisory writ, the transferee court considering an exception of peremption or prescription should reconsider venue for the purpose of determining whether suit was filed timely in a proper venue under La. Civ. Code art. 3462. See Land, 62 So. 3d at 41–42 (peremption); Phillips v. Patterson Ins. Co., 704 So. 2d 246 (La. 1998) (prescription).

In a slight extension of the must-take-a-writ rule, the Louisiana Fourth Circuit has held that, when a trial court overrules a dilatory exception of prematurity and the court of appeal denies a supervisory writ, the defendant must apply to the Louisiana Supreme Court for a writ. Bodenheimer v. New Orleans Public Belt, 828 So. 2d 77, 81 (La. App. 4 Cir. 2002). In pleading the exception, the defendant in Bodenheimer argued that the dispute was subject to an arbitration clause. After the trial court overruled the exception and the court of appeal denied a supervisory writ, the defendant failed to apply to the Louisiana Supreme Court for a writ; instead the defendant attempted to resurrect the exception in an appeal after final judgment. The Fourth Circuit held that, by failing to apply to the Louisiana Supreme Court for a writ, the defendant waived the exception.

So much for declinatory and dilatory exceptions. Our next post will begin an examination of peremptory exceptions and affirmative defenses.


Preserving claims or causes of action

Up to now, this series of posts on preserving error has examined general rules and principles underlying the doctrine of error preservation. We will now begin examining the application of those general rules and principles to specific stages of litigation. Note that, when examining how and when to raise a specific issue in the trial court, we usually consult the Code of Civil Procedure or other legislation.

Error preservation begins with the commencement of a civil action by the filing of a petition. See La. Code Civ. P. art. 421. With few exceptions, the petition must assert all causes of action arising from the transaction or occurrence that is the subject matter of the litigation. La. Code Civ. P. art. 425(A) and art. 891. This is because the final judgment in the case will extinguish all causes of action arising from the transaction or occurrence that is the subject matter of the litigation. If the judgment is in the plaintiff’s favor, those causes of action are extinguished and merged into the judgment. If the judgment is in the defendant’s favor, those causes of action are extinguished, and the judgment bars a subsequent action on them. See La. R.S. 13:4231.

Thus, the rule for preserving claims or causes of action is simple: plead them or lose them. (And of course, when you get to trial, prove them or lose them.)

As we will see in later posts, preserving defenses is trickier. Some defenses are pleaded in the answer; others are pleaded in exceptions; and there are three different species of exceptions (dilatory, declinatory, and peremptory). And the rules governing exceptions are different from those governing the answer. But we will find our way through by following one simple rule: When in doubt, look at the Code of Civil Procedure.


The basic rule for preserving error

Preserving errors for appeal can seem complicated; it seems that every possible error a trial court can make has a corresponding procedure for preserving the error for appellate review. But in fact, this entire area of law can be summed up in just one basic two-part rule for preserving any error for appeal. Here it is:

To preserve an error for appellate review, you must:

  1. Raise the issue properly and timely in the trial court; and
  2. Obtain a ruling from the trial court.

This basic rule applies to error preservation at all stages of litigation, from pleading through discovery, motion practice, trial, and post-trial. You must raise the issue properly and timely in the trial court to avoid sandbagging and to give the trial court a fair opportunity to make the right call. You must obtain a ruling from the trial court because, without a ruling, there is nothing for the court of appeal to review.

But how does one know when and how to raise and issue in the trial court? The answer is usually found in the Code of Civil Procedure, the Code of Evidence, or other legislation; occasionally the answer is found in caselaw.