Pratt et al
Filing
137
MEMORANDUM RULING re 100 MOTION for Summary Judgment filed by Barksdale Langley Bolling Family Housing L L C, American Management Services Central L L C, American Management Services L L C; 103 MOTION for Summary Judgment filed by Arcost-Agbayani J V; and 118 MOTION for Summary Judgment filed by Lexington Insurance Co. Signed by Judge S Maurice Hicks on 09/24/2013. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
BENJAMIN L. PRATT, JR., ET AL.
CIVIL ACTION NO. 09-1734
VERSUS
JUDGE S. MAURICE HICKS, JR.
LANDINGS AT BARKSDALE, ET AL.
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court are three Motions for Summary Judgment.
Documents 100, 103 & 118.
See Record
The first motion was filed by Defendants American
Management Services, Central, LLC (“AMS Central”), American Management Services,
LLC (“AMS”), and Barksdale, Langley, Bolling Family Housing LLC (“BLBFH”). See Record
Document 100. The second motion was filed by Defendant Arcost-Agbayani J/V (“Arcost”).
See Record Document 103. The third motion was filed by Defendant Lexington Insurance
Company (“Lexington”) and simply joins in and adopts in full the motion filed by AMS
Central, AMS, and BLBFH. See Record Document 118. Plaintiffs have opposed all three
motions. See Record Documents 112 & 126. For the reasons set forth below, the Motions
for Summary Judgment (Record Documents 100, 103 & 118) are GRANTED.
BACKGROUND
Plaintiffs in this matter are Benjamin L. Pratt, Jr. (“Airman Pratt”) and Ramona Pratt
(“Ms. Pratt”). Airman Pratt is a plaintiff individually and as a representative of his minor
child, Benjamin L. Pratt, III (“Pratt III”). Ms. Pratt is a plaintiff individually and as a
representative of her minor children, Pratt III and Raven Hosley (“Hosley”).
In early 2007, Airman Pratt signed a lease agreement (“Lease”) with BLBFH for the
provision of housing for his family while serving as a senior airman for the United States
Air Force. The property was located at 1509 “A” Lake Drive, Barksdale Air Force Base,
Louisiana. In August 2007, a large tree branch fell on the property, damaging the roof and
allowing water to enter the premises. Plaintiffs allege that the branch remained on the roof
for a number of weeks and was then removed. However, “instead of competently patching
the hole in the roof,” a plastic tarp was placed over the hole and, after a few weeks, water
once again began to intrude the property. Record Document 112 at 6. A piece of plywood
was eventually nailed down on the roof, but Plaintiffs allege this “fix” did not completely
prevent water from coming inside the property. See id.
In September 2008, Airman Pratt contends that he went into the attic and discovered
apparent mold growth. See Record Document 112 at 7. Plaintiffs allege that Airman Pratt
requested that the roof be fixed and for a mold test to be conducted. See id. The roof was
fixed, but no mold test was performed. See id. Airman Pratt eventually hired Ioannis
Petikas (“Petikas”), a Certified Microbial Consultant and Certified Asbestos Air Monitor, of
Envirocon, Inc. to perform an air quality assessment. See id. Petikas performed his testing
on October 9-10, 2008. See Record Document 100, Exhibit B to Exhibit B. This was
approximately one month after the roof was repaired the final time. See Record Document
112 at 8.
In October 2008, Airman Pratt gave verbal notice of his intention to move his family
out of the property. See id. at 11. In November 2008, the Pratt family moved out of the
property. See id.
In their petition, Plaintiffs allege that Ms. Pratt, Pratt III, and Hosley have suffered
respiratory distress and other medical conditions for which they take medication. See
Record Document 1-2 at ¶ XVII. They assert that their exposure to mold while living in the
Page 2 of 18
aforementioned property caused and/or contributed to their conditions. See id. More
specifically, Plaintiffs have asserted claims based on negligent maintenance, breach of
contract and defamation. See id. at ¶¶ XIX - XXIV. The negligent maintenance and breach
of contract claims stem from the alleged growth, presence, and proliferation of toxic mold.
See id. at ¶¶ XIX-XXIII.
LAW AND ANALYSIS
I.
Summary Judgment Standard.
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir.2010).1 “A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
See id. “Rule 56[(a)] mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004).
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could
1
The Court notes that amended Rule 56 requires that there be “no genuine dispute
as to any material fact,” but this change does not alter the Court’s analysis. F.R.C.P. 56(a)
and Advisory Committee Notes.
Page 3 of 18
not support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).
II.
Toxic Tort Claims.
Again, Plaintiffs’ negligent maintenance and breach of contract claims stem from the
alleged growth, presence, and proliferation of toxic mold. See Record Document 1-2 at ¶¶
XIX-XXIII. The parties do not dispute that Louisiana’s duty-risk analysis governs the mold
claims.2 “Under this analysis, a plaintiff must prove five separate elements:
(1)
the defendant had a duty to conform his . . . conduct to a specific
standard of care;
(2)
the defendant failed to conform his . . . conduct to the appropriate
standard of care;
(3)
the defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries;
(4)
the defendant’s substandard conduct was a legal cause of the
plaintiff's injuries; and
(5)
actual damages.”
S.J. v. Lafayette Parish Sch. Bd., 2009-2195 (La. 7/6/10), 41 So. 3d 1119, 1125. The
plaintiff “must prove every essential element of his case, including medical causation, by
a preponderance of the evidence.” Taylor v. Kerr-McGee Corp., No. 00-2102, 2006 WL
2
Plaintiffs originally filed their Petition in the Twenty-Sixth Judicial District Court for
the Parish of Bossier and Defendants removed the matter to this Court. See Record
Document 1. The Notice of Removal was filed on the basis of federal question subject
matter jurisdiction. See id. at 2 (“Federal courts have federal question subject matter
jurisdiction under 28 U.S.C. § 1331 over cases arising from incidents that occur on a
federal enclave.”). Barksdale Air Force Base is a federal enclave. See id. at 3. “The
federal law of every enclave includes state law which was in force at the time of the
cession, where such state law is not inconsistent with federal law or policy.” Lord v. Local
Union No. 2088, Int’l Bhd. of Elec. Workers, AFL-CIO, 646 F.2d 1057, 1059-1060 (5th Cir.
1981).
Page 4 of 18
39260, *2 (W.D.La. Jan. 5, 2006), citing Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).
In toxic mold cases, “causation has been characterized as ‘the Achilles heel.’”
Watters v. Dep’t of Soc. Servs., 2008-0977 (La. App. 4 Cir. 6/17/09), 15 So. 3d 1128, 1142,
writ denied, 2009-1651 (La. 10/30/09), 21 So. 3d 291 and writ denied, 2009-1638 (La.
10/30/09), 21 So. 3d 293. “Plaintiffs in a mold personal injury case must establish
causation on five different levels:
(I)
the presence of mold;
(ii)
the cause of the mold and the relationship of that cause to a specific
defendant;
(iii)
actual exposure to the mold;
(iv)
the exposure was a dose sufficient to cause health effects (general
causation); and
(v)
a sufficient causative link between the alleged health problems and
the specific type of mold found (specific causation).”
Id. at 1142-1143.
In a toxic tort suit, “the plaintiff must present admissible expert
testimony to establish general causation as well as specific causation.” Seaman v. Seacor
Marine LLC, 564 F.Supp.2d 598, 600 (E.D. La. 2008), aff’d, 326 F. App’x 721 (5th Cir.
2009) (emphasis added). “In the absence of an established scientific connection between
exposure and illness, or compelling circumstances3 . . ., the temporal connection between
3
In describing “compelling circumstances,” the Fifth Circuit referred to Cavallo v. Star
Enter., 892 F.Supp. 756 (E.D.Va. 1995). See Moore v. Ashland Chem. Inc., 151 F.3d 269,
278 (5th Cir. 1998). In Cavallo, the plaintiff alleged that she suffered respiratory illness as
a result of exposure to aviation jet fuel vapors. Her proffered expert relied substantially on
the temporal proximity between exposure and symptoms. The Cavallo court concluded that
this reliance was “not supported by appropriate validation” and was “ultimately unreliable.”
Cavallo, 892 F.Supp. at 773. The Cavallo court observed that although “there may be
instances where the temporal connection between exposure to a given chemical and
subsequent injury is so compelling as to dispense with the need for reliance on standard
Page 5 of 18
exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight
in determining causation.” Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir.
1998).
Defendants’ Motions for Summary Judgment focus on general causation and
specific causation. As to general causation, Defendants argue that no airborne spores or
particles sufficient to create a health risk were found and that Plaintiffs failed to produce
any expert testimony or report establishing that they were exposed to a harmful level of
mold. As to specific causation, Defendants contend that Plaintiffs have presented no
medical expert testimony to support a causal relationship that the conditions in the property
caused or exacerbated their heath problems.
A.
General Causation.
“General causation refers to proving exposure in a dose sufficient to cause health
effects – that exposure to mold can cause disease.” Id. at 1143, n. 18. Put another way,
general causation is “establishing that the [substance] involved is capable of causing the
type of harm from which the plaintiff suffers.” Id., citing Daniel A. Farber, Toxic Causation,
71 Minn. L.Rev. 1219, 1227-1228 (1987).
Plaintiffs rely upon Petikas’ Industrial Hygiene Assessment Report to establish
general causation. See Record Document 100, Exhibit B to Exhibit B. Petikas made the
following visible findings:
Mold Growth - Visible fungal growth was found in small quantities behind the
base board in the northwest corner of the master bedroom. No other areas
methods of toxicology,” this was not such a case. Id. at 773-774. The court pointed out that
the plaintiff was not doused with jet fuel and that there was no mass exposure of jet fuel to
many people who in turn suffered similar symptoms.
Page 6 of 18
yielded visible fungal growth.
Id. at 4. Petikas reported that he found three types of mold during the investigation:
Curvularia, Stachybotrys, and Chaetomium. See id. at 7. Curvularia was the only mold
found in the spore trap air samples. See id. at 5, 7.4 Stachybotrys and Chaetomium were
found in bulk samples and the finding was localized to the sheetrock surface sampled in
the master bedroom. See id. at 6-7.
Petikas concluded:
The concentration of Curvularia spores found in the air samples is not
normally considered a concern. The overall concentrations of spores
found in the air during both sampling events are consider[ed] normal for
indoor concentrations and does not indicate a cause of concern.
However, the visible presence of fungal growth in the master bedroom and
identification of Chaetomium and Stachbotrys spores does indicate a problem
with contamination and is indicative of water intrusion. Based on the airborne
fungal results, the concentration of visible fungal elements does not
seem to be translating into a potential airborne threat, but does need
attention as it can escalate further over time.
Id. at 8 (emphasis added).
During his deposition, Petikas testified that the Curvularia spores did not constitute
a health risk. See Record Document 100, Exhibit B at at 37-38. As to Chaetomium and
Stachbotrys, he stated that neither posed an airborne threat. See id. at 39. He noted that
there were more mold spores outside than inside. See id. at 29. Finally, in discussing
environmental health and/or safety risks, Petikas testified:
Q:
Okay, It says: This assessment – the third paragraph – this
assessment was conducted in order to determine if surface and/or
airborne mold spores were present in the home which could pose an
undue environmental health and/or safety risk to the occupants of the
home; is that right?
4
In allergic testing, no Plaintiff demonstrated any allergic sensitivity to Curvularia.
See Record Document 100, Exhibits 2 & 3 to Exhibit A.
Page 7 of 18
A:
Yes.
Q:
And in reading your conclusion, would it be correct to state that at the
time you performed your examination in October of 2008, you found
no such risk; is that right?
A:
No such airborne risk.
Q:
Okay. No such airborne risk?
A:
Yes.
Id. at 30-31.
Defendants argue that summary judgment should be granted because Plaintiffs have
failed to establish a level of exposure to mold sufficient to cause adverse health effects in
general, i.e., general causation. Conversely, Plaintiffs contend that summary judgment
should be denied. They heavily upon the Watters decision for the principle “that general
causation . . . [can be] established although it is impossible to determine unsafe levels of
mold exposure.” Record Document 112 at 15. However, as noted by Defendants, a close
reading of Watters reveals that the “finding of causation was based, albeit implicitly, on [the
expert’s] opinion that this is a Sick Building Syndrome case.” Watters, 15 So.3d at 1148.
Plaintiffs in the instant matter have presented no expert testimony or argument regarding
“Sick Building Syndrome.” See generally Record Document 123 at 5.
In order for Plaintiffs to establish general causation, they bear the burden of proving,
by a preponderance of the evidence, that they were exposed to a harmful level of mold.
See Atkins v. Ferro Corp., 534 F.Supp.2d 662 (M.D.La. 2008); see also Taylor, 2006 WL
39260, *2 (“The plaintiff must establish by a preponderance of the evidence the presence
of the injury causing substance, that he or she has been exposed to the substance, and
that the exposure has resulted in certain injuries.”).
Page 8 of 18
It is essential that Plaintiffs
demonstrate that they were, in fact, exposed to harmful levels of mold. See Taylor, 2006
WL 39260, *2. Petikas’ report simply fails to assist Plaintiffs in meeting their burden of
proving exposure to a harmful level of mold, namely because he concluded that there was
no airborne risk.
Plaintiffs have also attached to their opposition lab reports which purport to show
“abnormal” levels of mold in their blood in November 2008. See Record Document 112,
Exhibit I. The Court is perplexed by these reports. While the motion to strike such reports
based on grounds of authentication was denied, the Court notes that Plaintiffs have offered
no expert testimony to interpret the lab reports, i.e., the meaning of “abnormal” or an
explanation of the numerical values listed in the reports. See Hallett v. Richmond, No. 0550044, 2009 WL 5125628, *3 (N.D. Ill. May 15, 2009) (“Any testimony interpreting the
information contained in the lab report is expert testimony.”); see also Seaman, 564
F.Supp.2d at 600 (In a toxic tort suit, “the plaintiff must present admissible expert
testimony to establish general causation.”). It is simply unknown as to what, if anything,
the lab reports establish. Thus, they are insufficient to create a genuine dispute of material
fact.
Plaintiffs further rely upon their own lay testimony regarding the visibility of mold in
the property. Yet, “scientific knowledge of the harmful level of exposure to a chemical,
plus knowledge that the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain the plaintiffs’ burden in a toxic tort case.” Allen v. Pennsylvania Eng’g
Corp., 102 F.3d 194, 199 (5th Cir. 1996) (emphasis added). Standing alone, the lay
witness testimony of Plaintiffs is insufficient to establish a harmful level of exposure to mold.
Page 9 of 18
Based on the foregoing, the Court finds that Plaintiffs have failed to make a showing
sufficient to establish general causation, an element essential to their toxic mold claims and
one which they must prove by a preponderance of the evidence. See Patrick, 394 F.3d at
315.
B.
Specific Causation.
“Evidence concerning specific causation in toxic tort cases is admissible only as a
follow-up to admissible general causation evidence.” Knight v. Kirby Inland Marine Inc.,
482 F.3d 347, 351 (5th Cir. 2007). Thus, a court need not reach the second step of the
causation “two-step process” if it is determined that Plaintiffs have failed to create a
genuine dispute of material fact as to general causation. See id. Such is the case here.
Notwithstanding, the Court will move to its consideration of specific causation in the instant
matter.
“Specific causation refers to proving a sufficient causative link between the alleged
health problems and the specific type of mold.” Watters, 15 So. 3d at 1143, n. 18. In other
words, specific causation is “establishing, given that the toxic substance in question can
cause harm of the type suffered by the plaintiff, that the plaintiff’s harm did in fact result
from such exposure.” Id., citing Daniel A. Farber, Toxic Causation, 71 Minn. L.Rev. 1219,
1227-1228 (1987).
Plaintiffs have designated Dr. Adrian Casillas (“Dr. Casillas”) as their medical expert.
He is allergist with a specialization in allergy and immunology. See Record Document 100,
Exhibit 1 to Exhibit A. Dr. Casillas examined Ms. Pratt, Hosley, and Pratt III on March 3,
2011, approximately two and one half years after the family moved out of the property, to
conduct allergy testing to determine if “some molds might be a factor in their asthma.”
Page 10 of 18
Record Document 100, Exhibit A at 22.
Medical Evidence as to Pratt III
Dr. Casillas noted that Pratt III had a positive family history of allergic disease. See
id., Exhibit 2 to Exhibit A. Dr. Casillas further noted that Pratt III was diagnosed with
asthma at approximately 1 year of age. See id. Pratt III’s first birthday was in June 2007
and predates the branch falling on the property in August 2007. See Record Document 1-2
at ¶ IV.
As to the specific allergy testing, Pratt III had a positive reaction to cat, dust mite,
Timothy grass, oak tree, Alternaria, Helminthosporium, Mucor, and Rhizopus. See Record
Document 100, Exhibit 2 to Exhibit A. In his deposition, Dr. Casillas stated that Alternaria,
Helminthosporium, Mucor, and Rhizopus are outdoor molds. See Record Document 100,
Exhibit A at 42-43. Dr. Casillas explained that all of the things to which Pratt III exhibited
a positive reaction were hard to avoid due to their ubiquitous nature. See id. at 49.
Additionally, the only mold to which Pratt III showed a positive reaction that was tested for
by Petikas was Alternaria. Alternaria was not included within Petikas’ conclusions as a
possible or future concern. Finally, Dr. Casillas testified in his deposition that he did not
have the opinion that Pratt III had an exacerbation of his upper respiratory problems,
including asthma, because of the Alternaria present in the property. See id. at 102-103.
Medical Evidence as to Hosley
Dr. Casillas testified that Hosley was diagnosed with asthma in 2003 when she was
approximately six months of age. See Record Document 100, Exhibit A at 58. He also
noted that her medical history indicates ongoing respiratory problems since that time. See
id. These respiratory problems predate the branch falling on the property in August 2007.
Page 11 of 18
See Record Document 1-2 at ¶ IV. Hosley also has a medical history of asthma. See
Record Document 100, Exhibit 3 to Exhibit A.
As to the specific allergy testing, Hosley tested positive for a reaction to cat, dust
mite, Bermuda grass, Johnson grass, Timothy grass, box elder, pigweed, Alternaria,
Cladosporium, Helminthosporium, Mucor, Phoma, and Stemphyllium. See id. Dr. Casillas
testified that the molds Alternaria, Cladosporium, Helminthosporium, Mucor, Phoma, and
Stemphyllium are predominantly outdoor molds. See id., Exhibit A at 64. Dr. Casillas
explained that all of the allergens Hosley tested positive for are ubiquitous and hard to
avoid. See id. at 66-67. Additionally, Petikas’ report did not reference any of the
aforementioned molds as concerns in his report conclusion. Dr. Casillas did not opine that
there was an exacerbation of Hosley’s asthma or upper respiratory problems due to her
exposure to any allergens while living in the property. See id. at 103-104.
Medical Evidence as to Ms. Pratt
Ms. Pratt has a significant family history of asthma. See Record Document 100,
Exhibit 4 to Exhibit A. She also has a history of upper respiratory symptoms dating back
to her childhood. See id. She also reported a history of migraines since 2007. See id. Dr.
Casillas drew no relation between her upper respiratory problems and the migraines. See
Record Document 100, Exhibit A at 73-74.
As to the specific allergy testing, Ms. Pratt tested positive for cockroaches,
pteronyssinus (dust mite), d. farinae (dust mite), Bermuda grass, Timothy grass, and box
elder. See Record Document 100, Exhibit 4 to Exhibit A. She did not test positive for an
allergy to any of the molds tested. See Record Document 100, Exhibit A at 79-80. Dr.
Casillas did not opine that Ms. Pratt’s respiratory problems were exacerbated by living in
Page 12 of 18
the property. See id. at 82.
Based on the medical evaluations of Dr. Casillas, Defendants argue that Plaintiffs
have failed to establish a sufficient causative link between their health problems and
exposure, while living in the property, to specific varieties of mold to which they were
actually allergic. Defendants additionally contend that Plaintiffs have failed to rule out other
possible causes for their health problems. Defendants specifically note that neither Pratt
III, Hosley, nor Ms. Pratt showed allergic sensitivity to Curvularia, the only type of mold
found in the spore trap air samples.
Conversely, relying upon Housley v. Cerise, 90-2304, 90-2324 (La. 5/6/91), 579
So.2d 973,5 Plaintiffs argue that “medical causation may be proven where there exists a
reasonable possibility that symptoms were caused by the negligent act based upon the
temporality of the symptoms.” Record Document 112 at 16. More specifically, they
contend that “temporality is another basis for establishing medical causation for symptoms
claimed to be related to a mold exposure.” Id. at 17. Plaintiffs argue that the “Housley
presumption” should apply and that “circumstantial evidence paired with diagnosis of
symptoms known to be caused by mold spores” is sufficient, at a minimum, to create a
genuine dispute of material fact.
5
“In the context of personal injury actions, the Housley presumption may be
summarized as follows.” Thomas v. Comfort Ctr. of Monroe, LA, Inc., 2010-0494 (La. App.
1 Cir. 10/29/10), 48 So.3d 1228, 1238. “A plaintiff may be aided in meeting his burden of
proof that a claimed injury or medical condition is caused by an accident by a presumption
that the injury or condition was caused [by] the accident if he establishes three things: (1)
he must prove that he was in good health prior to the accident; (2) he must show that after
the accident, the symptoms of the claimed injury appeared and continuously manifested
themselves; and (3) the medical evidence shows there to be a reasonable possibility of
causation between the accident and the claimed injury.” Id.
Page 13 of 18
Causation in a mold case is not within common knowledge and expert medical
testimony will be required to establish general and specific medical causation. See
Seaman, 564 F.Supp.2d at 600. The medical evaluations and records submitted to this
Court do not establish that Plaintiffs’ exposure to mold caused their symptoms, as Pratt III,
Hosley, and Ms. Pratt all suffered respiratory problems prior to the tree falling on the
property in August 2007. Moreover, Plaintiffs’ own medical expert, Dr. Casillas, explained
that Plaintiffs are allergic to many ubiquitous allergens. Dr. Casillas further stated in his
deposition that he was not of the opinion that the mold exposure in the property caused or
exacerbated Plaintiffs’ allergies and asthma. In fact, Dr. Casillas’ allergy testing revealed
that neither Pratt III, Hosley, nor Ms. Pratt were allergic to Curvularia, the only type of
airborne mold found in the property.
Plaintiffs’ temporality/Housley presumption argument likewise fails. Plaintiffs all had
well-documented, pre-existing respiratory problems. Such problems were never well
controlled. Thus, Plaintiffs are unable to show that they were in good health prior to the
tree falling on the property in August 2007 and the Housley presumption is simply not
applicable. See Thomas, 48 So.3d at 1238 (reasoning that a plaintiff may be aided in
meeting burden of proof that a claimed medical condition is caused by an accident/incident
by presumption that the condition was caused by the accident/incident if he establishes
that he was in good health prior to the accident/incident).
Based on the foregoing, the Court finds that Plaintiffs have failed to make a showing
sufficient to establish specific causation, an element essential to their toxic mold claims and
one which they must prove by a preponderance of the evidence. See Patrick, 394 F.3d at
315.
Page 14 of 18
III.
Defamation Claim.6
In their Petition, Plaintiffs alleged “that Defendants published defamatory remarks
to Airman Pratt’s CO regarding the amount of damage to the property intentionally and in
retaliation for Airman Pratt moving off base and informing Defendants that he may file a
lawsuit.” Record Document 1-2 at ¶ XXIV. Later, during his deposition, Airman Pratt
testified that a letter to him from Andrew Smith, Assistant Community Manager at the
Landings, was “the only basis for [his] claim of defamation.” Record Document 100, Exhibit
C at 148; see also Record Document 112 at 19-20. Plaintiffs further contend that “the
same Assistant Community Manager issued an email falsely stating that [Airman] Pratt
‘abandoned’ his ‘unit,’ and alleging that [Airman] Pratt ‘owes us quite a bit of money as
well.’” Record Document 112 at 20. Plaintiffs maintain that this email made its way to
Airman Pratt’s commanding officer. See id.
“Defamation is a tort which involves the invasion of a person’s interest in his or her
reputation and good name.” Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552,
559. A plaintiff must prove four elements to establish a defamation cause of action: “(1) a
false and defamatory statement concerning another; (2) an unprivileged publication to a
third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting
injury.” Id. “Thus a plaintiff, in order to prevail in a defamation action, must prove that the
defendant, with actual malice or other fault, published a false statement with defamatory
6
Defendants AMS Central, AMS, BLBFH, and Lexington moved for summary
judgment on the defamation claim. See Record Documents 100 and 118. Arcost did not
move for summary judgment on the defamation claim, as it believed such claim was not
applicable and/or directed to it. See Record Document 103 at 3, n. 12. Plaintiffs did not
dispute Arcost’s contention in their opposition briefs. Thus, the Court must assume that
Plaintiffs did not assert the defamation claim against Arcost.
Page 15 of 18
words which caused plaintiff damages.” Id.; see also Sommer v. State, Dep’t of Transp.
& Dev., 97-1929 (La. App. 4 Cir. 3/29/00), 758 So. 2d 923, 939. If one of the elements is
missing, the defamation cause of action fails. See Sommer, 758 So.2d at 939.
Letter
The defamation claim based on Andrew Smith’s letter to Airman Pratt fails as a
matter of law, as Plaintiffs have presented no competent summary judgment evidence
demonstrating that the letter was published to a third party. See Trentecosta, 703 So.2d
at 559 (second element requires “an unprivileged publication to a third party”).
Email
The email in question provides:
I’m trying to get in touch with this service member who abandoned this unit.
His name is Benjamin Pratt and he is now at Anderson AFB. I have a DSN
number of 366-4538. I was wondering if you could get an address because
I need to send him a certified letter. He also owes quite a bit of money as
well. Thank you for your help sir!
Record Document 100, Exhibit 9 to Exhibit C. Airman Pratt argues that the words in this
email are “defamatory per se” because they tend to injure his personal or professional
reputation. Record Document 112 at 20; see also Arledge v. Hendricks, 30,588 (La. App.
2 Cir. 6/26/98), 715 So. 2d 135, 138 (“Words which expressly or implicitly accuse another
of criminal conduct or which, by their nature, tend to injure one’s personal or professional
reputation are considered defamatory per se.”) (emphasis added). Even if this Court
assumes that the email was defamatory per se, the claim fails because “truth is an absolute
defense to the action for defamation.” Connor v. Scroggs, 35,521 (La. App. 2 Cir. 6/12/02),
821 So. 2d 542, 551.
Airman Pratt admitted in his deposition that he provided only oral notice to vacate.
Page 16 of 18
See Record Document 100, Exhibit C at 160. Yet, the plain language of the Lease required
written notice:
Thereafter, this Lease shall be automatically renewed on a month-to-month
basis except upon the occurrence of one of the following events: 1) Owner
gives Resident written notice of Owner’s intention to terminate the Lease at
least 30 days before the end of the Original Term.
Id., Exhibit 5 at ¶ 1 to Exhibit C. Airman Pratt further testified that he “turned off” the
allotment used to pay rent and agreed that “by definition” he had abandoned the unit. See
id., Exhibit C at 151. Thus, there is no genuine dispute that Airman Pratt did not follow the
proper procedure in moving out of the unit, abandoned the unit, and failed to continue his
rent allotments, thereby making the statements in the email correspondence true.
Accordingly, the defamation claim relating to the email fails.
CONCLUSION
The Court finds that summary judgment is appropriate, as Plaintiffs have failed to
establish general and specific causation as to their toxic tort claims involving mold.
Additionally, summary judgment is appropriate as to the defamation claim because
Plaintiffs have failed (1) to show the letter was published to a third party and (2) to
overcome the defense of truth as to the email. Accordingly, the Motions for Summary
Judgment (Record Documents 100, 103 & 118) are GRANTED. All of Plaintiffs’ claims
against Defendants AMS Central, AMS, BLBFH, Lexington, and Arcost are DISMISSED.
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An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 24th day of September,
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