BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21
VERSUS FIFTH CIRCUIT
PERRY BADEAUX, ET AL COURT OF APPEAL
STATE OF LOUISIANA
March 22, 2024
Susan Buchholz Chief Deputy Clerk
IN RE BLAZE D'AQUIN AND TAYLOR D'AQUIN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 819-345
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Jude G. Gravois, John J. Molaison, Jr., and Scott U. Schlegel
WRIT GRANTED
Plaintiffs, Blaze and Taylor D’Aquin, seek review of the trial court’s
December 13, 2023 judgment, which granted defendant RPM Pizza Greater New
Orleans, LLC’s (“RPM”) “Motion in Limine to Exclude Untimely Produced
Medical Records.” In its judgment, the trial court excluded records and
corresponding testimony from Mr. D’Aquin’s neurologist, Dr. Anne Foundas,
which plaintiffs produced after the expiration of the discovery deadline and shortly
before the first trial date. For the following reasons, we grant the writ application,
reverse the trial court’s ruling, and remand for further proceedings.
Plaintiffs allege that on May 30, 2021, Mr. D’Aquin suffered injuries,
including a brain injury, when defendant, Perry Badeaux, disregarded a stop sign
and collided with Mr. D’Aquin’s motorcycle. Plaintiffs allege that Mr. Badeaux
was in the course and scope of his employment with RPM at the time of the
24-C-21 accident. RPM contests liability and damages arguing that Mr. D’Aquin was
travelling at a high rate of speed and that his injuries are not as serious as claimed.
This matter was set for a jury trial on Monday, September 11, 2023. On
Friday, September 8, 2023, the defense learned that Mr. D’Aquin had undergone
additional testing when plaintiffs’ counsel emailed defense counsel a new report
and records from Dr. Foundas. On Sunday, September 10, 2023, RPM filed a
motion in limine seeking to exclude the new medical records and report, as well as
corresponding testimony from Dr. Foundas, as untimely. RPM argued that the
only records plaintiffs had previously produced from Dr. Foundas were for a single
visit, which occurred four months after the accident in September 2021. RPM
claimed that it was prejudiced by the late disclosure, because it would not have
time to verify the records, provide them to its own expert, or conduct additional
discovery.
On the morning of September 11, 2023, trial was continued and reset to
Monday, May 13, 2024, because the ad hoc judge presiding at that time could not
serve for the entire duration of the trial. RPM’s motion in limine was set for
hearing on December 7, 2023. The ad hoc judge also entered a new pre-trial order
at the time, stating that discovery would remain closed, but that the discovery
cutoff date “may be modified by consent of all parties.”
In their opposition to the motion in limine, plaintiffs argued that the experts
for both sides agreed that the persistence of neurological deficits beyond two years
after a traumatic event is significant, and that the follow-up testing and evaluation
were performed to determine Mr. D’Aquin’s status at the two-year point. Plaintiffs
asserted that RPM was not prejudiced by the late disclosure due to the continuance
of the trial date.
RPM replied that it would be prejudiced if the trial court allowed the new
evidence from Dr. Foundas, because it would have to incur additional expenses to
2 address the results of the new testing. RPM pointed out that plaintiffs were ready
to proceed to trial without this evidence and the only reason for the continuance
was the unavailability of the court.
At the conclusion of the hearing on December 7, 2023, the trial court granted
RPM’s motion in limine and excluded Dr. Foundas’ new report and corresponding
testimony. It signed a written judgment granting the motion on December 13,
2023.
Trial courts have great discretion when ruling on evidentiary matters, such
as a motion in limine. Anderson v. Bd. of Sup'rs of Louisiana State Univ. & Agr. &
Mech. Coll., 06-153 (La. App. 5 Cir. 10/17/06), 943 So.2d 1198, 1202. Further,
La. C.C.P. art 1551 provides the trial court with great discretion in implementing
pre-trial orders and ensuring that the particulars are enforced. Cobena v. ACE Am.
Ins. Co., 21-630 (La. App. 5 Cir. 8/3/22), 347 So.3d 1117, 1125, writ denied, 22-
1337 (La. 11/16/22), 349 So.3d 1007.
The theory inherent behind pre-trial procedure is avoiding surprise and
ensuring orderly disposition of the case. Moonan v. Louisiana Med. Mut. Ins. Co.,
16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533, writ denied, 16-2048 (La.
1/9/17), 214 So.3d 869. A pre-trial order controls the subsequent course of the
action, but can be modified to prevent manifest injustice. La. C.C.P. art. 1551;
Perniciaro v. Hamed, 20-62 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 833.
Absent an abuse of discretion, the trial court's decision to admit or exclude
evidence upon objection on the grounds of failure to abide by the pre-trial order
will be upheld. Cobena, 347 So.3d 1125-26.
While the trial judge has great discretion in deciding whether to receive or
refuse testimony objected to on the grounds of failure to abide by the pre-trial
order, any doubt is resolved in favor of receiving the information. Perniciaro, 309
So.3d at 833; Moonan, 202 So.3d at 533. This Court has stated, “[i]n deciding
3 whether to modify a pretrial order, a trial court must be ever mindful of the fact
that the objective of our legal system is to render justice between litigants upon the
merits of the controversy rather than to defeat justice upon the basis of
technicalities.” Henderson on behalf of Rolland v. Ruffino, 17-158 (La. App. 5 Cir.
10/25/17), 231 So.3d 912, 922.
After review of the writ application, opposition, exhibits, and the applicable
law, we find that the trial court abused its discretion by granting RPM’s motion in
limine. If trial had proceeded on September 11, 2023, as scheduled, RPM would
have been unfairly prejudiced by the late disclosure of Dr. Foundas’ new report
and corresponding testimony, and the exclusion of such would have been
warranted. However, due to no fault of the parties, the trial was continued for
several months, thereby negating the element of surprise and allowing ample time
for additional discovery, if necessary.
Further, plaintiffs contend that Mr. D’Aquin sustained a brain injury as a
result of the May 2021 accident, and the parties dispute the severity and duration of
Mr. D’Aquin’s injuries. Dr. Foundas was not new to the case. She examined Mr.
D’Aquin on September 24, 2021, and prepared a report of her findings and
impressions. A neuropsychologist, Dr. Anneliese Boettcher, reviewed Mr.
D’Aquin’s records and issued a report dated June 12, 2023, with her findings and
impressions. Although RPM was not aware of Dr. Foundas’ updated September
2023 report until shortly before the original trial date, the continuance allowed time
for discovery pertaining to her updated report.
Considering that the element of surprise has been removed and that any
doubt should be resolved in favor of receiving the information, we find that the
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BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21
VERSUS FIFTH CIRCUIT
PERRY BADEAUX, ET AL COURT OF APPEAL
STATE OF LOUISIANA
March 22, 2024
Susan Buchholz Chief Deputy Clerk
IN RE BLAZE D'AQUIN AND TAYLOR D'AQUIN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 819-345
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Jude G. Gravois, John J. Molaison, Jr., and Scott U. Schlegel
WRIT GRANTED
Plaintiffs, Blaze and Taylor D’Aquin, seek review of the trial court’s
December 13, 2023 judgment, which granted defendant RPM Pizza Greater New
Orleans, LLC’s (“RPM”) “Motion in Limine to Exclude Untimely Produced
Medical Records.” In its judgment, the trial court excluded records and
corresponding testimony from Mr. D’Aquin’s neurologist, Dr. Anne Foundas,
which plaintiffs produced after the expiration of the discovery deadline and shortly
before the first trial date. For the following reasons, we grant the writ application,
reverse the trial court’s ruling, and remand for further proceedings.
Plaintiffs allege that on May 30, 2021, Mr. D’Aquin suffered injuries,
including a brain injury, when defendant, Perry Badeaux, disregarded a stop sign
and collided with Mr. D’Aquin’s motorcycle. Plaintiffs allege that Mr. Badeaux
was in the course and scope of his employment with RPM at the time of the
24-C-21 accident. RPM contests liability and damages arguing that Mr. D’Aquin was
travelling at a high rate of speed and that his injuries are not as serious as claimed.
This matter was set for a jury trial on Monday, September 11, 2023. On
Friday, September 8, 2023, the defense learned that Mr. D’Aquin had undergone
additional testing when plaintiffs’ counsel emailed defense counsel a new report
and records from Dr. Foundas. On Sunday, September 10, 2023, RPM filed a
motion in limine seeking to exclude the new medical records and report, as well as
corresponding testimony from Dr. Foundas, as untimely. RPM argued that the
only records plaintiffs had previously produced from Dr. Foundas were for a single
visit, which occurred four months after the accident in September 2021. RPM
claimed that it was prejudiced by the late disclosure, because it would not have
time to verify the records, provide them to its own expert, or conduct additional
discovery.
On the morning of September 11, 2023, trial was continued and reset to
Monday, May 13, 2024, because the ad hoc judge presiding at that time could not
serve for the entire duration of the trial. RPM’s motion in limine was set for
hearing on December 7, 2023. The ad hoc judge also entered a new pre-trial order
at the time, stating that discovery would remain closed, but that the discovery
cutoff date “may be modified by consent of all parties.”
In their opposition to the motion in limine, plaintiffs argued that the experts
for both sides agreed that the persistence of neurological deficits beyond two years
after a traumatic event is significant, and that the follow-up testing and evaluation
were performed to determine Mr. D’Aquin’s status at the two-year point. Plaintiffs
asserted that RPM was not prejudiced by the late disclosure due to the continuance
of the trial date.
RPM replied that it would be prejudiced if the trial court allowed the new
evidence from Dr. Foundas, because it would have to incur additional expenses to
2 address the results of the new testing. RPM pointed out that plaintiffs were ready
to proceed to trial without this evidence and the only reason for the continuance
was the unavailability of the court.
At the conclusion of the hearing on December 7, 2023, the trial court granted
RPM’s motion in limine and excluded Dr. Foundas’ new report and corresponding
testimony. It signed a written judgment granting the motion on December 13,
2023.
Trial courts have great discretion when ruling on evidentiary matters, such
as a motion in limine. Anderson v. Bd. of Sup'rs of Louisiana State Univ. & Agr. &
Mech. Coll., 06-153 (La. App. 5 Cir. 10/17/06), 943 So.2d 1198, 1202. Further,
La. C.C.P. art 1551 provides the trial court with great discretion in implementing
pre-trial orders and ensuring that the particulars are enforced. Cobena v. ACE Am.
Ins. Co., 21-630 (La. App. 5 Cir. 8/3/22), 347 So.3d 1117, 1125, writ denied, 22-
1337 (La. 11/16/22), 349 So.3d 1007.
The theory inherent behind pre-trial procedure is avoiding surprise and
ensuring orderly disposition of the case. Moonan v. Louisiana Med. Mut. Ins. Co.,
16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533, writ denied, 16-2048 (La.
1/9/17), 214 So.3d 869. A pre-trial order controls the subsequent course of the
action, but can be modified to prevent manifest injustice. La. C.C.P. art. 1551;
Perniciaro v. Hamed, 20-62 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 833.
Absent an abuse of discretion, the trial court's decision to admit or exclude
evidence upon objection on the grounds of failure to abide by the pre-trial order
will be upheld. Cobena, 347 So.3d 1125-26.
While the trial judge has great discretion in deciding whether to receive or
refuse testimony objected to on the grounds of failure to abide by the pre-trial
order, any doubt is resolved in favor of receiving the information. Perniciaro, 309
So.3d at 833; Moonan, 202 So.3d at 533. This Court has stated, “[i]n deciding
3 whether to modify a pretrial order, a trial court must be ever mindful of the fact
that the objective of our legal system is to render justice between litigants upon the
merits of the controversy rather than to defeat justice upon the basis of
technicalities.” Henderson on behalf of Rolland v. Ruffino, 17-158 (La. App. 5 Cir.
10/25/17), 231 So.3d 912, 922.
After review of the writ application, opposition, exhibits, and the applicable
law, we find that the trial court abused its discretion by granting RPM’s motion in
limine. If trial had proceeded on September 11, 2023, as scheduled, RPM would
have been unfairly prejudiced by the late disclosure of Dr. Foundas’ new report
and corresponding testimony, and the exclusion of such would have been
warranted. However, due to no fault of the parties, the trial was continued for
several months, thereby negating the element of surprise and allowing ample time
for additional discovery, if necessary.
Further, plaintiffs contend that Mr. D’Aquin sustained a brain injury as a
result of the May 2021 accident, and the parties dispute the severity and duration of
Mr. D’Aquin’s injuries. Dr. Foundas was not new to the case. She examined Mr.
D’Aquin on September 24, 2021, and prepared a report of her findings and
impressions. A neuropsychologist, Dr. Anneliese Boettcher, reviewed Mr.
D’Aquin’s records and issued a report dated June 12, 2023, with her findings and
impressions. Although RPM was not aware of Dr. Foundas’ updated September
2023 report until shortly before the original trial date, the continuance allowed time
for discovery pertaining to her updated report.
Considering that the element of surprise has been removed and that any
doubt should be resolved in favor of receiving the information, we find that the
trial court abused its discretion by granting RPM’s motion in limine and excluding
Dr. Foundas’ updated report and corresponding testimony from trial. Accordingly,
4 we grant the writ application, reverse the trial court’s judgment that granted RPM’s
motion in limine, and remand for further proceedings.
Gretna, Louisiana, this 22nd day of March, 2024.
FHW SMC JGG
5 BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21
SCHLEGEL, J., DISSENTS WITH REASONS
I respectfully dissent. This matter was set for a jury trial on Monday,
September 11, 2023. But on Friday, September 8, 2023, only days before the trial
was set to begin, plaintiffs’ counsel emailed the defense a new report and records
from Dr. Foundas, showing that Mr. D’Aquin had recently undergone additional
testing. As expected, RPM filed a motion in limine seeking to exclude the new
medical records and report, as well as corresponding testimony from Dr. Foundas.
On the morning of trial, the ad hoc judge presiding continued the trial and set the
motion in limine for hearing. The trial judge heard arguments on December 7,
2023 and granted the defendant’s motion in limine.
The majority recognizes the trial court’s vast discretion when ruling upon
evidentiary issues but then goes on to suggest that since “the element of surprise
has been removed,” the trial court somehow abused its discretion when it excluded
the new evidence. But this opinion fails to take into account the fact that the
additional testing could have been completed prior to the discovery deadline and
well before the prior trial date. The two-year mark following the injury was May
30, 2023, which was 3 months before the September 11th trial date. And the
plaintiff wasn’t re-examined until September 5, 2023, only 6 days before trial was
set to begin. The trial court clearly took all of this into account when making its
decision.
24-C-21 As a court of review, we are not to ask would we have ruled differently if we
had been asked to make the decision, but whether or not the trial court abused its
discretion. Considering the unique circumstances presented in this matter, as well
as the trial court’s broad discretion, I cannot say the trial court was clearly wrong
and would find that the trial court did not abuse its discretion by granting the
RPM’s motion in limine.
Accordingly, this writ application should be denied and therefore, I dissent.
SUS
2 BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21
MOLAISON, J., DISSENTS WITH REASONS
I agree with Judge Schlegel’s well-reasoned dissent. The continuance in
this matter was a necessity for the trial judge. In my opinion, had the court not
excluded the last-minute testimony out of fairness, then the continuance would
have benefited one party over the other. Under similar circumstances, this Court
has affirmed the trial court’s ruling. See Dufrene v. Willingham, 97-1239 (La.
App. 5 Cir. 10/28/98), 721 So. 2d 1026, writ denied, 99-0032 (La. 3/12/99), 739
So. 2d 212. Granting the writ would have the effect of overruling the trial
court’s authority to control its own docket, including its ability to regulate pre-
trial discovery. For these reasons, I respectfully dissent.
JJM
24-C-21 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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