Leon Greenblatt v. Sewerage & Water Board of New Orleans, B&K Construction Co., LLC, Cajun Constructors, LLC, Linfield, Hunter & Junius, Inc. and Boh Bros Construction Co., LLC
287 So.3d 763
La. Ct. App.2019Background
- SELA (Southeast Louisiana Urban Drainage Project) was a USACE-funded post‑Katrina drainage project; CPRA was the federal non‑federal sponsor and entered a Cooperative Endeavor Agreement with the Sewerage & Water Board of New Orleans (S&WB) for local control/implementation.
- Leon Greenblatt sued S&WB and three USACE contractors in 2015 alleging SELA construction damaged two Napoleon Avenue properties; contractors were dismissed in federal court on federal‑contractor immunity and the case against S&WB was remanded.
- Trial (consolidated with Sewell proceedings for liability issues) found S&WB liable under inverse condemnation and strict‑liability theories (La. Civ. Code arts. 2317, 2317.1, 667); Sewell precedent resolved liability and comparative‑fault questions.
- On damages, the trial court awarded Greenblatt $94,429.51 for property damage (rejected loss of rent, diminution, and emotional distress claims) and later awarded $37,771.80 in attorney fees under La. R.S. 13:5111(A).
- S&WB appealed, raising evidentiary objections to two expert reports (produced for federal mediation), a spoliation/adverse‑inference claim, a late challenge to damages, and a challenge to the attorney‑fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of two deceased‑expert writings (residual hearsay / mediation materials) | Reports are reliable expert materials; admissible under court's gatekeeping (Daubert/Kumho) and other evidence supported causation. | Reports were protected by settlement privilege (FRE/La. C.E. art. 408) and lacked required expert‑report detail; denial of cross‑examination prejudiced S&WB. | Court affirmed admission: settlement rule doesn’t bar expert reports as "statements," trial court acted within discretion; any error as to one letter was harmless given other evidence of causation. |
| Causation (vibrations/pile driving caused property damage) | Expert observations and reports, photos, and contractor/project info supported that pile driving/vibrations from SELA caused gaps/cracks and porch separation. | S&WB disputed sufficiency of the reports, lack of pre‑repair inspection, and argued alternative causes. | Court upheld trial court’s causation finding; admission of expert evidence was not an abuse of discretion and trial court’s factual conclusion was reasonable. |
| Spoliation / adverse presumption (pre‑trial renovations) | Repairs were legitimate tenant‑safety/maintenance acts; no intent to deprive S&WB of evidence. | Greenblatt began renovations before suit and failed to preserve pre‑repair condition; S&WB sought an adverse presumption. | Court rejected adverse‑presumption/spoliation relief; Louisiana does not recognize negligent spoliation as a cause of action and trial court found no intentional destruction. |
| Damages challenge raised in reply brief | (No new argument raised by Greenblatt on appeal.) | S&WB challenged the amount of damages in its reply. | Court refused to consider the damages argument because it was raised for the first time in the reply brief (procedurally improper). |
| Attorney fees under La. R.S. 13:5111(A) | Fees appropriate for inverse condemnation recovery; counsel’s work, complexity, hearings, and contingency support the award. | S&WB argued fees were unauthorized for non‑statutory theories and sought a lower percentage. | Court affirmed fee award as within trial court discretion; applied Rivet factors and manifest‑error review to underlying findings. |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (articulates the manifest‑error/clearly‑wrong standard for appellate review of factual findings)
- Mart v. Hill, 505 So.2d 1120 (La. 1987) (companion authority on the two‑part test for manifest error review)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) (trial court gatekeeping standard for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony, not only scientific)
- Lombard v. Sewerage & Water Bd. of New Orleans, 284 So.2d 905 (La. 1973) (S&WB may be treated as proprietor for strict‑liability claims arising from drainage/works)
- Reynolds v. Bordelon, 172 So.3d 589 (La. 2015) (Louisiana does not recognize a cause of action for negligent spoliation of evidence)
- Rivet v. State Dep’t of Transp. & Dev., 680 So.2d 1154 (La. 1996) (factors to consider in awarding attorney fees in inverse‑condemnation cases)
- Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993) (standard of review for factual findings used in fee determinations)
- Holzenthal v. Sewerage & Water Bd. of New Orleans, 950 So.2d 55 (La. App. 4 Cir. 2006) (S&WB liability under strict‑liability/Art. 667 in drainage construction context)
- Boudreaux v. Bollinger Shipyard, 197 So.3d 761 (La. App. 4 Cir. 2016) (trial court has wide discretion to qualify expert witnesses)