representing the appellant case you've heard a lot of food cases before the jurisprudence is very lengthy on this i don't want to characterize any of the issues in this case as being an important but i want to prioritize and i want to go to the the issue that i think really begs to be discussed more than anything else i don't know how many issues we'll get to the central issue is this the district court concluded that summary judgment was appropriate because the district court felt that the plaintiff plaintiffs needed to show one or more specific acts of negligence the district court concluded that no specific act or acts of negligence had been shown therefore that summary judgment was appropriate the thing is that showing a specific act or acts is consistent with article twenty three fifteen of the civil code and the duty risk analysis but it's not the exclusive manes of showing fault in a food poisoning or deleterious food case we might be able to argue about whether or not read of deshon still exist as one of those means and we'll talk about that i've proposed to and delicatessen case which is a nine hundred ninety eight louisiana supreme court case and without being like one of the authors of a treatise or something i'm not going to go into the long history but the cases did this marvelous job of talking about going back to allegedly bad food sometimes we adopt concepts from the common law sometimes we mix in together sometimes we talk about the foreign versus natural distinction i recall and they should the grocery should be a jury trial the jury should be able to decide if it does or doesn't speak for itself but race ipsa loquitur to war and duty toward a fair toward our subsets of the law of negligence of article twenty twenty three fifteen of the code of civil procedure negligence and twenty three fifteen plainly were played in the original complaint and in the two supplemental complaints so those issues are alive and well and with all due respect to the district court plaintiffs here didn't have to show a specific cause they might eventually given the opportunity to complete discovery which was never allowed if discovery were completed they might be able to show to the satisfaction of a judge or  jury that there was a particular act of negligence but the facts that are of record already at least strongly suggest race absolutely so the narrow the specific holding of the district court in dismissing the summary judgment and using s judgment to dismiss the case was no showing of a particular act or acts of negligence and that's not what the law requires the law also allows and allows duty to warn is as other means of category there are still twenty three fifteen ordinary negligence and duty risk they're still racist so there's still the duty to warn so if you go to the porteous case and you look at a footnote this is where i think a bit of uncertainty comes in  footnote number had a supreme court said two other areas of substantive law that arguably could apply in this case where the sales and obligation are calls on breach of contract on the sales articles on repetition that goes on the sites and cases then later on in the footnote simplices this court however finds that the duty risk toward analysis in louisiana negligence law is the proper analysis for this type of case the problem with the ambiguity is there are very subsets of food cases within the general rubric of a food case so the supreme court didn't really define what type of case they were talking about because this particular case involved a broken tooth resulting from a foreign object in a shrimp po boy which is a little different from some of the other cases that talk about pearls boys some of the cases who talk about the infected people and hurting or killing people or other cases where food is served for parents or going to a restaurant which is another type of food case cases they were cooked and i thought they came in some kind of container and then they were dumped into the case of the display case on i never get done in the well that's what summary judgment is about exactly right we're talking about credibility because now we have to talk about the deposition of the store manager of the lady whose deposition i took and she had first was rather certain of her testimony and she said well our procedures in the c in the seafood department at that when dixie on parchin train driver saw dealt with this this and this and that's what they were and they were followed but the more i questioned her the more uncertain she became and the less dogmatic she became about what the procedures were and whether they were followed and whether records were and whether the records still exist there's also the unresolved fact question maybe a person from kansas who has not had teeth before but louisianians like gulf coast texans know about the risks of of inherent in chief and that's a good question for a jury there's a good argument that living in louisiana is probably not good for you for a lot of reasons but because it is driving over alligators which i've done but in any event with the warning  infer from the circumstances what it what is there about the evidence when you say that of the lady's testimony got more and more vague or inconsistent i mean my understanding was that they had thermometer in the seafood case and they checked it three times a day she said that that was their procedure but that eventually the more you question her it became clear that she couldn't really they so sure that they had followed all their procedures and if they had followed the procedures in this particular situation well that i understand and of course you know your client it was probably two or three years after the fact when your client when you posed the woman right well then one of the complicating factors is that your responses to my communications eventually found out well because she can't respond she's not with us any bore then it took about four months or so to actually find out who were the proper it was a hope of getting you know the right parties plain and yeah i couldn't do anything with the case for four months right understand all that but the evidence you have as i understand it is a deposition of this one store manager or managerial employee right on each crab was individually laid on top of ice do you have any evidence that that's an unsafe practice we don't have any evidence that that's out of practice but we have evidence that they where they have they bought the crabs and they were wrapped exist or not but so it's the first friday and by now deceased original client goes in with her family members baez says i'll take six of those credits they are their own i guess but just because art i still doesn't mean that they're necessarily sound or healthy because there's another case in here i could pull it out if you want where when dixie said well we had a freezer cooler that went bad we put it on ice and it was bad so here factor putting something on ice doesn't mean that the food is as healthy so they buy it take it home it's about a ten minute ride at most back to the house the apartment immediately off ramp it immediately  eventually now deceased goes to make a gumbo with it she takes a bite she takes a smell and she says this is next this is terrible and she had it she had ingested some of it and so they immediately you know you could think a jury should be able to decide that so i could go into a big paper trail here about all the cases and if your best case for having that amount of evidence go to a jury  to help us with our research what is your best case under louisiana law first saying that this situation should go to the jury poplar versus dillard's department stores incorporated but they had a cafeteria that sort of thing so you wouldn't think food you would think clothes or shoes like that any of it and i could go on i could talk about libor says churches fried chicken that's what it's a nine hundred eighty one louisiana f it's november i finally got a lot of clients and you know we can start doing discovery again and we still we do some discovery and then when dixie sought an extension of the discovery deadline there was no objection we there between the extension filed a motion for summary judgment whether still discovery ongoing but then there was also a deadline for filing a motion for summary judgment there's been the suggestion that my clients were diligent in pursuing it was acceptable that they were reasonably diligent so we did make a rule fifty sixty request for additional the discovery which was not honored all right for your late on this morning but i just wanted to address to the issues you raised judge of my opposing counsel in the first one was you didn't plead and this is there's no ready bishan calling now when this went on motion for summary judgment that's not even in the opposition to the summary judgment at least as far as the rest and the read of bishan claim he did argue a failure to warn theory in opposition and when judge vance considered this she noted you didn't plead a failure to warn theory but i'll address it anyway the reason why she didn't address the recip saw in the read a bishan claim is because they were never raised before in the trial this is the first time we're seeing it he he said he thought at churches second case he did i'm not sure when he cited that case it's clear from the record in mind you this is this is thirty six days before trial when the opposition's filed it's apparent in the pleadings that he's proceeding on the theory of negligence if he wanted to raise recip saw or another theory certainly could have done it in opposition he could have even filed a motion for a new trial after he got a ruling where the courts said yours is a negligence claim i'm going to consider it under negligence law and second of all judge jones you asked did this come in containers and you're opinion she's looking at the petitions she announced i mean it no she didn't announcement it's it wasn't for oral argument it's in the ruling it addresses the negligence claim and it goes to the law as it applies  never addressed those additions those issues to this record their first time on appeal they appear in his appellate review you were asking question about the condition of the crabs and yes the record evidence supports and he's speaking about this until the east who is a winded see manager who testified that they would have received the crabs from one of two cellars they would have immediately looked at them they would have immediately put them in for dray ssion they would have put them on ice and as you said there were thermometers in the refrigerated case which were checked three times a day so this isn't a case where windex is manufacturing anything miss smith picked out six scraps when dixie wrapped it up in paper presumably to weigh it and she checked it so there's no packaging here and that's relevant if you are not cook of trial the motion for summary judgment was filed on january thirtieth the trial is march twelfth the opposition was filed february sixth this is thirty four days away from trial it's nine days before the close of discovery of which plaintiff is knowledgeable the trial date the cut off of discovery at the time the motion for summary judgment was decided and as judge advance notice as discovery is complete and close there is no discovery plaintiff's never moved for a continuance of the trial date there's no motion to compel there's no pending deposition notice there's nothing plaintiff is content this case is ready to you know motion for summary judgment is exactly that it's designed to test the case before we proceed to trial everything's fixed here discovery is closed plaintiff is confident with the theories it's plated in its three petitions in its complaints  n dixon makes a showing look based upon the evidence we know you can't prove your case at trial it becomes incumbent then upon plaintive to to demonstrate with evidence that he can present his case in a disputed material issue of fact the jury in this case what evidence do we have and the evidence we have in the record is the evidence in opposition to our motion for summary judgment and we go through that in our brief the evidence submitted in opposition is basically in two forms it's personal depositions of the plaintiffs or their statements saying that they purchased crabs and my mother got sick and we have a doctor's opinion saying she had this bacteria in her bloodstream so i'm presuming it comes from the crowds that they purchased from when dixie none of this talks about when dixie's conduct none of this talks about what when dixie did to pure negligence and under louisiana law in article twenty three fifteen you have to establish all your elements of a negligence client what is the duty which is the breach of duty is a causation  legal causation ok will the duty we know the duty because porteous says it you have to act reasonably important is actually talks about what is reasonable is because the question there were oysters which like in this case simile were delivered only we have an invisible bacteria in this case in the evidence establishes and i'm going to go back to what plaintive said no evidence about the fact whether the whether the air monash i go philia is a stinky  bacteria there's nothing in the record losses you know off smell or anything there's nothing in the records to that there's the doctor's testimony that this is a bacteria and it was noted in her bloodstream but what's interesting  what is in the record is plaintiff's opposition evidence and i want to get back to that because he quotes to miss della weeds who is from when dixie we know what her testimony is going to be in that's partially while we move for summary judgment and what does mr del aside from they are attempting to say that our testimonies equivocal on certain things there's things that she says which or undisputed they're coming from the find its opposition and that's judge jones as you say we had procedures in place we got the crabs we immediately inspected them we would have rejected them if they didn't look fresh and wholesome we didn't do that i would nobody if we did it because i'm the manager what happens after that we immediately put them either on storage or on display on ice in a refrigerated container that container has a thermometer it's monitored at least three times a day that's the evidence we have now what does that evidence show when  entirely reasonable there is an absence there's no evidence that when dixie did anything in this case to breach its duty of reasonableness and that's what they judged vance's ruling in this case there's simply no evidence to me climb this is this is perfect for summary judgment and i want to move on to the failure to warn claim because she does address that because it was raised in opposition and what she says about that in her opinion is she says first you never you have to prove that when dixie knew or should have known about this and there's just no evidence in the record that either when dixie knew or that it should or could have known about invisible bacteria that you know the only thing i'll say about that is that as a shopper at the grocery store myself i notice the most of the much of the prepackaged cooked semi cooked food in the grocery store comes with warnings of one sort or another you know do not leave out on the counter cook within two days that kind of thing yes or no and there's actually evidence of that in that in this case because in reply to that opposition if you look at page five it's forty six of the record you're going to see the warnings that were in place if crabs were sold on the day that they were which is a disputed issue meaning that was something that came out on the tab it was one is on the tab that would have been applied to the crabs and in the other one is a giant sign in front of the seafood container saying warning if you're in you know compromise you should use caution and consuming seafood and it's undisputed in this case not only that the erroneous bacteria is extremely brave there by dr powers playing some doctor it's also undisputed by both doctors that unfortunately mr mrs smith is very immunocompromised she's she's got a laundry list of conditions which is outlined in the brief and no disrespect to her in any way but she's been undergoing dialysis for decades she's in them you know compromise day and i certainly don't want to diminish anything anyone in this lawsuit but she fits that category unfortunately of someone who is susceptible to this virus where she got it is never really settled in this case our experts think she would have gotten from a crab she most likely got it from dialysis so the court talks about the duty to warn and as i said it's not pleasant but under the under the semi in case you have to show that they knew or should have known and there's no evidence of that and third of all there is actually a warning here the only undisputed evidence is that it's there but you know judge vance goes even further and says they're not explaining what type of warning should have been there which should have been done it's just it's not fair as to the rest if the claims and the read of bishan claims those just aren't there and they're not pleaded they were never discretion in this is an abuse of discretion part of the appeal to refuse a rule fifty sixty motion for additional discovery i want to note again that trial is thirty six days away when this opposition is filed the partner  the what was the timeframe between that and certain cheney and schedule trial date your honor hoping in answer all of that was there enough time to complete discover  it seemed like a fairly prompt trial date to me all day was was prompt but plaintiff is cognizant of the trial date of the discovery cutoff date which is eight days after it filed its opposition and then you should know judges that there is a motion to continue discovery in this case and that motion was filed by windex it was not filed but claims it's true it's uncontested but that motion was filed by when dixie we don't have a motion to continue discovery in this case by plaintiffs we don't have a motion to compel any discovery now with regards to your question about how much discovery was done i think quite a lot you know there's i think they were content to rely upon their theory when you look at his opposition evidence alone is fourteen items of evidence including four depositions recorded statement a doctor's opinion the doctor's deposition medical records the plaintiff's depositions the plaintiff so you know we there's no surprise here but trial is coming up and that's why the trial court denied the rule fifty sixty motion she's cognizant of her trial calendar she notes that the first time this is ever have been more diligent but you know as it is it's within the trial courts of the scratch and to disallow additional discovery and to make that ruling right now the trial court is absolutely clear days away from trial discovery is closed the trial court had already granted in the extension of the discovery deadline which had passed there is no pending motion to compel him plaintiff has cited to the  case but that case is radically different we're arguing that jacked up six flags and walters and work well and in the cowell case they had made the request for motion two months before the discovery cutoff deadline and pleading their fifty six b pleading was rejected by the texas court because it was presumably filed by a law firm and not an attorney so it was never considered two months before when it should have been when the trial actually got around to considering it uses you know the time it's done they were diligent in that case this is two months before discovery here the only the first time it appears is thirty six days away from and in response to an opposition from motion for summ when you look i have to also mention that referring to an informal e mail amongst counsel that was circulated after the filing of the opposition saying we may want more information and so they raised this in opposition and there were two issues the temperature of the cooler and surveillance video and so the trial court indulged them and said i'm going to consider those and show you why they're not material facts which would present a summary judgment first of all she talks about the temperature deposition there is evidence in the record about temperature and i've been through it again i won't repeat it there's no notice of deposition there's no motion to compel  aware that there's this informal e mail where when dixie indicated if we have documents responsive to that we will get back to you but as you noted this is two years ago the documents had been destroyed there's nothing more there but there is record evidence offered by the plaintiffs that temperature is not an issue the plaintiffs even testified that they said they saw these perhaps they didn't see anything wrong they were sitting on ice when they purchased them  miss delaware is testifies that we have procedures in effect we look at it we would reject it if not it's monitored there's no evidence in the record i must also add that any other person suffered any such surveillance issue all surveillance would have shown is people at most purchasing the seafood before the saint the judge said this is this is not going to create a disputed issue of fact  miss della reese testified it's used for shoplifting for accidents we immediately access it other than that it's reported over we just don't finally your honour's we found the cross question for appeal in this case an issue of costs we did move for costs in the motion for summary judgment when the judgment came down it didn't mention cost whatsoever it didn't instruct as to file a petition for cause actually what the cost be here we're not seeking attorneys fees in this case your honor the only cost we're seeking are the costs we are entitled to and that would be a clerk in marshall fees printed electronic copies seasons of sparseness for printing and witnesses these for  much money docketing we know we never had the chance to present that before the district court that's why we're simply asking for remained how much money approximately can give you a ballpark i've thousand dollars i can  do i can do a post argument brief if you if you love i just wonder if there's nothing i imagine it's not ten thousand dollars it may get into the thousands i mean and experts here who we had to depose and pay their fees deposition c of trial preparation right but the way i'm reading the cases your honor is that cost to would generally prepare for trial including deposition costs and other costs of course we wouldn't seek anything that's all i know that well i just wondered because this is not a commonly raised issue and right here i should we spend our time on something if it's only a couple thousand dollars you're right your hon we just noticed in all of the case law from the circuit saying that costs are presumed in favor of the winning party it's not the nature of a sanction and unfortunately trial court never got to pass on that issue so the only thing we would request we ask you to  judgment in all respects otherwise just simply remand so that the court instead consider a called ok you have red light thank thank you very briefly state of the cost issue the motion for summary judgment is regarding claims cost or remedy not a claim this is been briefed i don't want to waste time talking about the cost issue but i just hit that with a look at a promise what i will mention is that is presupposing that because crabs have been cooked to put on ice that that ensures their wholesomeness unfit for human consumption there's that's an argument without any supporting evidence and again something maybe the jury should think about or consider in any but i really want to talk about is this lee was a red a bishan case the fried chicken case it was cited at two thirteen to fourteen pages of the record in the opposition when dixie was also said that the crabs had a warning that's a disputed that is definitely disputed rubbled fairy disputed that kyoko smith disputed that their testimony is found of pages two twenty four three eleven and three twelve of the  record on appeal so there was a unresolved credibility in fact issue about whether or not there was a warning at all not to mention its adequacy so that's that's under solved and the summary judgment is not right on that issue the trial court also did not require or the court the law does not require that there be a motion to compel to show due diligence and of course it harkens to the here to host a case that's been