Larry F. Mitchell v. State of Louisiana, Department of Transportation and Development, 219 So. 3d 1061

Plaintiff's vehicle was struck by a tree that fell from defendant's property, causing property damage and personal injury.
Defendant had agreed to appear at a jury trial by live audio-video but notified plaintiff about one week before trial that she would be unavailable.
Plaintiff moved to exclude or limit use of the defendant's discovery deposition at trial; the trial court found the defendant unavailable and admitted the deposition.
The Court of Appeal disagreed that the defendant’s unavailability showing was sufficient but held any error was harmless and affirmed on liability.
The Louisiana Supreme Court granted writs, received briefing, heard oral argument, then recalled the writ as improvidently granted and denied relief.
Two justices (Crichton and Weimer) dissented from the writ recall, arguing the Court should have decided the merits and addressed issues of unavailability, counsel conduct, and harmless error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of deposition for unavailable party witness	Deposition should be excluded because defendant was available and misrepresented her availability	Deposition admissible because trial court found defendant unavailable	Writ recall; merits not decided by the Court; Court of Appeal treated admission as harmless error
Standard for proving witness unavailability	Need showing of diligent, good-faith efforts to secure presence; misrepresentation undermines claimed unavailability	Court could find defendant unavailable under the circumstances	Again not resolved by the Supreme Court; dissenters questioned adequacy of availability showing
Harmless-error review of admitting deposition	Admission was prejudicial because plaintiff lost opportunity to cross-examine live before jury	Any error was harmless given other evidence and appellate review	Court of Appeal held error (if any) was harmless; Supreme Court declined to review on merits by recalling writ
Practice of recalling a granted writ	Plaintiff argued merits should be decided after briefing and oral argument	Majority exercised discretion to recall writ as improvidently granted	Two justices dissented, criticizing recall as poor practice and arguing the case should be decided on the merits

McGrail v. Lee, 874 So.2d 66 (La. 2003) (dissent cited for the proposition that a case should be decided on the merits after briefing and argument)
Driscoll v. Stucker, 893 So.2d 32 (La. 2005) (discusses requirement of diligent, good-faith efforts to obtain witness presence before deeming them unavailable)
George v. Dugas, 203 So.3d 1043 (La. 2016) (noting no fixed rule for recalling a granted writ; dissent criticized recall practice)
State v. Davis, 958 So.2d 1175 (La. 2007) (dissent cited opposing recall of a granted writ after briefing and argument)
Mitchell v. State, Dep’t of Transp. & Dev., 193 So.3d 152 (La. App. 2 Cir. 2016) (appellate decision holding deposition admission was harmless error and assessing expert credibility)
Yarnell Ice Cream Co. v. Allen, 777 So.2d 472 (La. 2001) (dissent cited to show prior instances where the Court granted writs to resolve important legal issues)
State v. Crandell, 924 So.2d 122 (La. 2006) (dissent referenced for criticism of recalls after writs are granted)